# EUR-Lex - 61998J0459 - EN

Avis juridique important

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# 61998J0459

**Judgment of the Court (Fifth Chamber) of 11 January 2001. - Isabel Martínez del Peral Cagigal v Commission of the European Communities. - Appeal - Officials - Application for review of classification in grade - Action - Expiry of time-limits - New material fact - Equal treatment. - Case C-459/98 P. **

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European Court reports 2001 Page I-00135 *

Summary
Parties
Grounds
Decision on costs
Operative part

## Keywords

1. Officials Actions Prior administrative complaint Time-limits Time-bar Re-opening of prescribed period Condition New fact Decision altering the criteria for classification in grade on recruitment

(Staff Regulations, Arts 31(2), 90 and 91)

2. Officials Equal treatment Recruitment Classification in grade Reconsideration Right to request a reconsideration restricted to officials recruited after delivery of the judgment of 5 October 1995 in Case T-17/95 Lack of objective justification

(Staff Regulations, Art. 5(3))

Summary

1. The Commission's decision of 7 February 1996 altering the criteria for classification in grade of officials recruited after 5 October 1995 must be regarded as a decision of general application which called in question a number of administrative decisions which had become final, and thereby constituted a new fact liable to have an adverse effect on officials recruited before 5 October 1995 and allowing them to submit a request, within the periods prescribed in Articles 90 and 91 of the Staff Regulations, for a review of their classification.

## Summary

( see para. 45 )

2. The decision of 7 February 1996, adopted following the judgment of 5 October 1995 in Case T-17/95 Alexopoulou and altering the criteria for classification in grade of officials recruited after 5 October 1995, infringed the general principle of equal treatment laid down in Article 5(3) of the Staff Regulations, since the difference in treatment resulting from the fact that Commission officials appointed after 5 October 1995 could request that their classification in grade be reconsidered, while those who had been appointed before that date could not, is not objectively justified by the fact that 5 October 1995 was the date of delivery of that judgment.

For the purpose of complying with that judgment, it was not necessary, as regards officials who were not parties to the proceedings, to take 5 October 1995 as the date on which the decision of 7 February 1996 was to take effect. Furthermore, although, in adopting that decision, the Commission displayed a regard for the welfare of officials who had been appointed after 5 October 1995 and had not challenged the classification decision within the prescribed period, there is nothing to justify, or even explain, why it did not extend that concern to officials who had been appointed between 1983 and 5 October 1995 and were in the same situation.

( see paras 51-53 )

Parties

In Case C-459/98 P,

## Parties

Isabel Martínez del Peral Cagigal, an official of the Commission of the European Communities, residing in Brussels (Belgium), represented by A. Creus and B. Uriarte Valiente, avocats,

appellant,

APPEAL against the order of the Court of First Instance of the European Communities (First Chamber) of 14 October 1998 in Case T-224/97 Martínez del Peral Cagigal v Commission [1998] ECR-SC I-A-581 and II-1741, seeking to have that order set aside,

the other party to the proceedings being:

Commission of the European Communities, represented by J. Guerra Fernández and F. Duvieusart-Clotuche, acting as Agents, with an address for service in Luxembourg,

defendant at first instance,

THE COURT (Fifth Chamber),

composed of: D.A.O. Edward, acting as President of the Chamber, P. Jann and L. Sevón (Rapporteur), Judges,

Advocate General: P. Léger,

Registrar: L. Hewlett, Administrator,

having regard to the Report for the Hearing,

after hearing oral argument from the parties at the hearing on 15 December 1999,

after hearing the Opinion of the Advocate General at the sitting on 28 March 2000,

gives the following

Judgment

Grounds

1 By application lodged at the Registry of the Court of Justice on 16 December 1998, Mrs Martínez del Peral Cagigal brought an appeal pursuant to Article 49 of the EC Statute of the Court of Justice and the corresponding provisions of the ECSC and EAEC Statutes against the order of the Court of First Instance of 14 October 1998 in Case T-224/97 Martínez del Peral Cagigal v Commission [1998] ECR-SC I-A-581 and II-1741 (hereinafter the contested order), in that the Court of First Instance dismissed as inadmissible her action for annulment, first, of the decision of the Commission of the European Communities of 24 October 1996 rejecting her request for reclassification and, second, of the Commission's decision of 29 April 1997 rejecting her complaint against the decision of 24 October 1996.

## Grounds

Legal and factual background

2 Article 5(3) of the Staff Regulations of Officials of the European Communities (hereinafter the Staff Regulations) provides:

Identical conditions of recruitment and service career shall apply to all officials belonging to the same category or the same service.

3 Article 31 of the Staff Regulations provides as follows:

1. Candidates thus selected shall be appointed as follows:

officials in Category A or the Language Service:

to the starting grade of their category or service;

officials in other categories:

to the starting grade for the post for which they have been recruited.

2. However, the appointing authority may make exceptions to the foregoing provisions within the following limits:

(a) in respect of Grades A 1, A 2, A 3 and LA 3,

up to half the appointments to posts becoming vacant;

up to two-thirds of the appointments to newly created posts;

(b) in respect of other grades,

up to one-third of the appointments to posts becoming vacant;

up to half the appointments to newly created posts.

Save in respect of Grade LA 3, this provision shall be applied by groups of six posts to be filled in each grade for the purpose of this provision.

4 Following an action by an official, the Court of First Instance annulled the classification decision concerning him (judgment of the Court of First Instance of 5 October 1995 in Case T-17/95 Alexopoulou v Commission [1995] ECR-SC I-A-227 and II-683).

5 That official had been classified in the basic grade of her category pursuant to an internal decision of 1 September 1983 on the criteria applicable to appointment in grade and classification in step on recruitment (hereinafter the decision of 1 September 1983), whereby the Commission had waived the discretion conferred upon it by Article 31(2) of the Staff Regulations. The Court of First Instance considered, however, in regard to that decision that, while the discretion conferred upon the appointing authority by Article 31(2) of the Staff Regulations may, according to the case-law, be governed by internal decisions such as the decision of 1 September 1983, the Commission cannot, simply by means of a decision, restrict or limit the legal effects of provisions of the Staff Regulations. It held that the Commission could not waive altogether the discretion conferred upon it by Article 31(2) of the Staff Regulations by debarring itself absolutely from appointing a newly recruited official to a grade other than the starting grade in the career bracket and that, accordingly, the decision of 1 September 1983 was contrary to the Staff Regulations.

6 The Court of First Instance stressed, in particular, on that occasion that, in order to prevent Article 31(2) of the Staff Regulations from being deprived of any legal significance, the appointing authority was required in special circumstances, such as where a candidate had exceptional qualifications, specifically to assess the possible application of that provision. Such an obligation arose in particular where the specific needs of the department required the recruitment of a specially qualified official and therefore justified resort to Article 31(2) of the Staff Regulations or where the person recruited possessed exceptional qualifications and requested the application of those provisions. The Court of First Instance stated, however, that in the light of the great diversity of the types of practical experience evidenced by the candidates applying for posts as officials, the appointing authority enjoyed a wide discretion within the framework of Article 31 and the second paragraph of Article 32 of the Staff Regulations and the internal decisions implementing those provisions when assessing the previous experience of a candidate recruited as an official, as regards both the nature and duration thereof and its relevance to the post to be filled (Alexopoulou v Commission, cited above, paragraph 21).

7 Following the judgment in Alexopoulou v Commission, the Commission adopted the decision of 7 February 1996 (hereinafter the decision of 7 February 1996), published in Administrative Notices of 27 March 1996, amending the decision of 1 September 1983. The first paragraph of Article 2, as amended, of the latter decision now reads as follows:

The [appointing authority] shall appoint a probationary official in the starting grade of the career bracket to which he is recruited.

By way of exception to this principle, the appointing authority may decide to appoint a probationary official to the higher grade of the career bracket where the specific needs of the service require the recruitment of a person with particular qualifications or where the person recruited has exceptional qualifications.

8 The decision of 7 February 1996 states that it is to take effect on 5 October 1995, the date of the judgment in Alexopoulou v Commission, cited above.

9 A large number of officials applied to be reclassified in the higher grade of the career bracket pursuant to Article 31(2) of the Staff Regulations. More than 80 actions were initiated before the Court of First Instance for annulment of appointment decisions or annulment of decisions rejecting applications for revision of a classification decision.

10 The chronology of Mrs Martínez del Per Cagigal's career as an official and of the decisions material to her dispute with the Commission may be summarised as follows:

9 November 1993: appointment as a probationary official as an administrator in Grade A 7, Step 1, with effect from 16 October 1993, at the Commission;

26 November 1993: decision classifying her in Grade A 7, Step 3, with effect from 16 October 1993;

5 October 1995: date of the judgment in Alexopoulou v Commission and taking effect of the decision of 7 February 1996;

7 February 1996: general decision of the Commission amending the decision of 1 September 1983;

27 March 1996: decision of 7 February 1996 published in Administrative Notices;

21 June 1996: application for revision of classification in grade on taking up her post with the Commission;

24 October 1996: application rejected;

23 January 1997; complaint filed;

29 April 1997: decision rejecting the complaint;

29 July 1997: action initiated before the Court of First Instance.

The contested order

11 Following a plea of inadmissibility raised by the Commission, the contested order declared the action inadmissible on the ground that the decision of 7 February 1996 did not constitute a new fact which would permit the re-opening of the time-limits laid down in Articles 90 and 91 of the Staff Regulations against the decision of 26 November 1996 classifying Mrs Martínez del Peral Cagigal in grade.

12 In paragraph 26 of that order the Court of First Instance observed that Mrs Martínez del Peral Cagigal had not lodged a complaint against the classification decision of the appointing authority of 26 November 1993 within the three months prescribed in Article 90(2) of the Staff Regulations. It pointed out in that regard, in paragraph 27, that an official could not call in question the conditions of his initial recruitment after it had become final.

13 In paragraph 28 of the contested order, the Court of First Instance held that the purpose of Mrs Martínez del Peral Cagigal's application was to call in question the conditions of her initial recruitment, since it was a request for reconsideration of her classification in grade on the date on which she took up her post.

14 After reiterating, in paragraph 29 of the contested order, the principle that only the existence of a material new fact may justify the submission of an application for reconsideration of a decision which was not challenged within the prescribed period, the Court of First Instance held in paragraph 30 that the nature and legal impact of the decision of 7 February 1996 were not such that it constituted a new fact, since it had neither the purpose nor the effect of calling in question administrative decisions which had become final before it entered into force.

15 The Court of First Instance further observed, in paragraphs 31 and 32 of the contested order, that Article 31(2) of the Staff Regulations did not contain a rule designed to apply to every official but that, on the contrary, it conferred on the appointing authority the discretion to appoint a newly recruited official, by way of exception, to the higher grade in his career bracket.

16 As regards Mrs Martínez del Peral Cagigal's argument that the rejection of her application constituted an infringement of Article 5(3) of the Staff Regulations, the Court of First Instance observed in paragraph 33 of the contested order that it followed from the judgment in Alexopoulou v Commission that, as a general rule, when appointing a newly recruited official, the appointing authority was not required to examine in each case whether Article 31(2) of the Staff Regulations should be applied or to state reasons for its decision not to make use of that provision.

17 In the light of those considerations and, in particular, the fact that Article 31(2) of the Staff Regulations was in the nature of a derogation, the Court of First Instance held in paragraph 34 of the contested order that the Commission's rejection of an application for reclassification in grade submitted after the expiry of the time-limit for lodging a complaint could not constitute a breach of Article 5(3) of the Staff Regulations.

18 In paragraph 35 of the contested order the Court of First Instance also rejected Mrs Martínez del Peral Cagigal's argument that the Commission had failed to fulfil its duty to have regard to the interests of officials, pointing out that that duty could not lead the administration to construe a Community provision in a manner contrary to its actual wording. In this case, Article 31(2) of the Staff Regulations could not be interpreted as meaning that it was intended to apply to all officials.

19 The Court of First Instance found that Mrs Martínez del Peral Cagigal had been unable to establish the existence of new facts making it possible to re-open the periods prescribed in Articles 90 and 91 of the Staff Regulations and held in paragraph 37 of the contested order that she was barred from challenging the decision of 26 November 1993. The Court of First Instance therefore declared the action inadmissible.

The appeal

20 The appeal is based on five grounds.

21 The first ground alleges infringement of Community law in that the contested order is not consistent with the case-law of the Court of First Instance and the Court of Justice on the re-opening of the period prescribed for instituting proceedings where a new fact has supervened, according to which an internal Commission decision amending the criteria for classifying officials must be regarded as a new fact.

22 The second ground alleges infringement of Article 176 of the EC Treaty (now Article 233 EC), pursuant to which the Commission should have taken all the necessary measures to comply with the judgment in Alexopoulou v Commission.

23 The third ground alleges breach of the fundamental principle of equal treatment embodied in Article 5(3) of the Staff Regulations and recognised in the case-law of the Court of First Instance and the Court of Justice.

24 The fourth plea alleges infringement of Community law, in that the contested order is not consistent with the Commission's duty under Article 24 of the Staff Regulations to have regard to the interests of its officials.

25 The fifth ground alleges that the statement of reasons for the contested order is defective in that it does not sufficiently explain why the decision of 7 February 1996 cannot be regarded as a new fact.

First ground, alleging infringement of Community law in that the contested order is not consistent with the case-law of the Court of First Instance and the Court of Justice on the re-opening of the period prescribed for instituting proceedings where a new fact has supervened

26 By her first ground of appeal, Mrs Martínez del Peral Cagigal relies on various judgments of the Court of First Instance and the Court of Justice which have established that other general decisions laying down criteria for classifying new staff have been regarded as a new fact justifying the submission of a request for reconsideration of an individual classification decision. She is unable to understand why the decision of 7 February 1996, whose subject-matter is the same, does not constitute such a new fact.

27 She also disputes the assertion of the Court of First Instance that Article 31(2) of the Staff Regulations must be regarded as an exception to the general rules on classification, which is alleged to explain the distinction between the decision of 7 February 1996, which merely expresses a reservation consistent with that provision, and the other decisions of a general nature referred to in paragraph 26 of the present judgment, which lay down rules intended to apply to all officials.

28 Mrs Martínez del Peral Cagigal contends that a distinction must be drawn between, on the one hand, reconsideration of an official's classification in the light of the new criteria, which constitutes a mandatory administrative measure which the administration cannot decline to take and, on the other hand, the decision resulting from such a measure, which constitutes an administrative measure in regard to which the administration may exercise its discretion.

29 She further submits that the Court of First Instance contradicted itself in holding that the decision of 7 February 1996 had retroactive effect vis-à-vis all officials recruited after 5 October 1995 and at the same time stating in paragraph 30 of the contested order that the decision had neither the purpose nor the effect of calling in question administrative decisions which had become final before it entered into force.

30 She concludes that the decision of 7 February 1996 constitutes a new fact which entails the re-opening of the period prescribed for requesting a review of the classification made when she took up her post with the Commission.

31 The Commission submits, first, that the grounds of appeal on which Mrs Martínez del Peral Cagigal now relies are the same as the pleas in law which she raised in the action for annulment before the Court of First Instance. They should therefore be declared inadmissible, in accordance with the case-law of the Court of Justice on appeals. The Commission observes in that regard that the wording of certain points of the appeal is identical in all respects to the wording of certain points in her application to the Court of First Instance.

32 The Commission then contends that the decision of 7 February 1996 is of limited scope, being purely for information purposes, and that it adds nothing to the rule in the Staff Regulations as interpreted in Alexopoulou v Commission.

33 The Commission also maintains that the distinction which Mrs Martínez del Peral Cagigal draws between a mandatory administrative measure and a discretionary administrative measure is artificial and immaterial, since the decision does not automatically concern all officials, but only those who seek its application and those who consider that they satisfy the prescribed conditions.

34 Last, the Commission contends that the contradiction between, on the one hand, the fact that it is recognised that officials recruited after 5 October 1995 are able to lodge a complaint outside the three-month period and, on the other hand, the reference to the mandatory nature of time-limits for lodging complaints and bringing actions, is only apparent. The decision of 7 February 1996 adds no right to those conferred by Article 31(2) of the Staff Regulations and, more generally, has no legal effects giving rise to rights. Therefore no retroactivity can be invoked and the contradiction complained of does not exist.

35 As regards the objection of inadmissibility raised by the Commission, it follows from Article 168a of the EC Treaty (now Article 225 EC), the first paragraph of Article 51 of the EC Statute of the Court of Justice and Article 112(1)(c) of the Rules of Procedure of the Court of Justice that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside, and also the legal arguments specifically advanced in support of the appeal (Case C-352/98 P Bergaderm and Goupil v Commission [2000] ECR I-5291, paragraph 34).

36 That requirement is not satisfied by an appeal which, without even including an argument specifically identifying the error of law allegedly vitiating the contested judgment, confines itself to reproducing the pleas in law and arguments previously submitted to the Court of First Instance. Such an appeal amounts in reality to no more than a request for re-examination of the application submitted to the Court of First Instance, which the Court of Justice does not have jurisdiction to undertake (Bergaderm and Goupil v Commission, cited above, paragraph 35).

37 In the present case, however, the ground of appeal specifically challenges the reasoning of the Court of First Instance and includes a detailed argument designed to show that the Court of First Instance infringed Community law in making an order which was incompatible with the case-law of the Court of Justice and the Court of First Instance on the re-opening of the period for bringing actions where a new fact has supervened.

38 In those circumstances, unless the appeal procedure is to be rendered meaningless, the fact that the same arguments have already been submitted at first instance in order to challenge the legality of the decision of a Community institution cannot provide a ground for declaring them inadmissible.

39 The ground of appeal must therefore be declared admissible.

40 As regards the substance of this ground of appeal, it is necessary first to determine the scope of the decision of 7 February 1996. That decision, which was published on 27 March 1996, states that it is to take effect as from 5 October 1995, the date of the judgment in Alexopoulou v Commission.

41 That decision, which was in the nature of a measure adopted in order to implement the judgment in Alexopoulou v Commission, amended the criteria for classifying newly recruited officials applied by the Commission since the decision of 1 September 1983 and admitted the possibility of a review of the classification of a certain category of officials, namely those appointed after 5 October 1995.

42 The decision therefore had the effect of calling in question administrative decisions which have become final, contrary to what the Court of First Instance states in paragraph 30 of the contested order, since certain officials were able to request a review of their classification even though they had not brought an action within the prescribed period against the decision determining their classification on appointment.

43 As regards the argument that Article 31(2) of the Staff Regulations does not contain a rule intended to apply to all officials, it is sufficient to point out that, as the Court of First Instance itself held, in order to prevent Article 31(2) of the Staff Regulations from being deprived of any legal significance, ... the appointing authority is required in special circumstances, such as where a candidate has exceptional qualifications, specifically to assess the possible application of that provision. Such an obligation arises in particular where the specific needs of the department require the recruitment of a specially qualified official and therefore justify resort to Article 31(2) of the Staff Regulations or where the person recruited possesses exceptional qualifications and requests the application of those provisions (Alexopoulou v Commission, cited above, paragraph 21).

44 It follows that, although the appointing authority has a discretion when assessing the needs of a department and the professional experience of a candidate, that discretion does not mean that it is not required to consider a request for the application of the provisions of Article 31(2) of the Staff Regulations from a candidate official who believes that he has exceptional qualifications.

45 Consequently, the decision of 7 February 1996 altering the criteria for classification was a decision of general application which called in question a number of administrative decisions which had become final. Contrary to what the Court of First Instance states in paragraph 30 of the contested order, it thereby constituted a new fact of such a kind as to have an adverse effect on officials recruited before 5 October 1995. Consequently, those officials had to be in a position to submit a request to the Commission, within the periods prescribed in Articles 90 and 91 of the Staff Regulations, for a review of their classification.

46 It follows that the request for reclassification submitted by Mrs Martínez del Peral Cagigal on 21 June 1996 was submitted validly and that her action before the Court of First Instance against the decision rejecting that request was admissible.

47 Since this ground of appeal is well founded, the contested order must be set aside without its being necessary to examine the other grounds of appeal.

Substance of the action

48 In accordance with Article 54 of the EC Statute and the corresponding provisions of the ECSC and EAEC Statutes of the Court of Justice, as the state of the proceedings so permits, the Court of Justice will itself give final judgment on the substance of the application for annulment of the decision of the Commission of 24 October 1996 rejecting Mrs Martínez del Peral Cagigal's request for a review of her classification in grade, upheld by the decision of the Commission of 29 April 1997 rejecting the complaint lodged on 23 January 1997.

49 Mrs Martínez del Peral Cagigal maintains that those decisions are based on a general decision that is vitiated by illegality. The decision of 7 February 1996 infringes the principle of equal treatment, since it does not apply to officials appointed before 5 October 1995.

50 In that regard, it should be pointed out that the principle of equality of treatment laid down in Article 5(3) of the Staff Regulations is a general rule forming part of the law applicable to the Community civil service. Discrimination contrary to that rule occurs where identical or comparable situations are treated in an unequal way and the discrimination is not objectively justified (see, in that regard, Joined Cases 198/81 to 202/81 Micheli and Others v Commission [1982] ECR 4145, paragraphs 5 and 6; for the conditions of recruitment, see Joined Cases 66/83 to 68/83 and 136/83 to 140/83 Hattet and Others v Commission [1985] ECR 2459, paragraph 24, and Case 119/83 Appelbaum v Commission [1985] ECR 2423, paragraph 25).

51 In the present case, the decision of 7 February 1996 treated officials appointed after 5 October 1995 more favourably than those appointed before that date, since those appointed after 5 October 1995 were able to request that their classification be reconsidered, whereas those appointed before that date were no longer able to do so.

52 That difference in treatment is not objectively justified by the fact that 5 October 1995 is the date on which the judgment in Alexopoulou v Commission was delivered. For the purpose of complying with that judgment, it was not necessary, as regards officials who were not parties to the proceedings, to take 5 October 1995 as the date on which the decision of 7 February 1996 was to take effect. Furthermore, although, in adopting that decision, the Commission displayed a regard for the welfare of officials appointed after 5 October 1995 who had not challenged the classification decision within the prescribed period, there is nothing to justify, or even explain, why it did not extend that concern to officials appointed between 1983 and 5 October 1995 who were in the same position.

53 It must therefore be held that, in so far as it treated comparable situations in an unequal way without even stating any reasons that might objectively justify that discrimination, the decision of 7 February 1996 infringed the general principle of equal treatment laid down in Article 5(3) of the Staff Regulations.

54 It follows that, since it was based on that general decision infringing the principle of equal treatment, the decision of the Commission of 24 October 1996 rejecting Mrs Martínez del Peral Cagigal's request for a review of her classification in grade, upheld by the decision of the Commission of 29 April 1997 rejecting the complaint lodged on 23 January 1997, must be annulled.

Decision on costs

Costs

## Decision on costs

55 Under the first paragraph of Article 122 of the Rules of Procedure, where the appeal is well founded and the Court of Justice itself gave final judgment in the case, the Court is to make a decision as to costs. Under Article 69(2) of the Rules of Procedure, which apply to appeal proceedings by virtue of Article 118, the unsuccessful party is to be ordered to pay the costs if they are applied for in the successful party's pleadings. Since Mrs Martínez del Peral Cagigal has applied for costs and the Commission has been unsuccessful, it must be ordered to bear its own costs and also to pay the whole of the costs incurred by Mrs Martínez del Peral Cagigal before the Court of First Instance and before the Court of Justice.

Operative part

On those grounds,

## Operative part

THE COURT (Fifth Chamber)

hereby:

1. Sets aside the order of the Court of First Instance of the European Communities of 14 October 1998 in Case T-224/97 Martínez del Peral Cagigal v Commission;

2. Annuls the decision of the Commission of the European Communities of 24 October 1996 rejecting Mrs Martínez del Peral Cagigal's request for a review of her classification in grade, upheld by the decision of the Commission of 29 April 1997 rejecting the complaint lodged on 23 January 1997;

3. Orders the Commission of the European Communities to bear all the costs of the proceedings before the Court of First Instance and the Court of Justice.