Judgment — ECLI:EU:T:2008:605
Date: 2008-12-18
Language of the case: French
Court formation: Appeals Chamber
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Concepts: Appeals;Specific cases of acts having adverse effect;Transfer to the EU scheme of rights acquired under a national scheme;Obligation to assist officials;General
Procedure: Staff cases - inadmissible;Appeal - successful

summary of the pleas in law on which the application is based. The application is thus the initiating document of the action in which the applicant must define the subject-matter of the dispute (see, by analogy, Case 232/78 Commission v France [1979] ECR 2729, paragraph 3; Case C‑256/98 Commission v France [2000] ECR I‑2487, paragraph 31; and the order in Case C‑242/07 P Belgium v Commission [2007] ECR I‑9757, paragraph 41). 72 Furthermore, since it would be ultra vires for the Community Court before which an action for annulment has been brought to rule ultra petita, the scope of the annulment which it pronounces may not go further than that sought by the applicant (see Case C‑310/97 P Commission v AssiDomän Kraft Products and Others [1999] ECR I‑5363, paragraph 52, and the case-law cited therein). 73 It must be pointed out in that regard that, as is apparent from paragraphs 40 and 41 of the judgment under appeal, Mr Genette argued before the Civil Service Tribunal that ‘the purpose of his application [was] not to obtain the withdrawal of [the decisions of 11 June and 26 August 2002] but to require the Commission to permit him to withdraw the request … to transfer [of 13 July 2001]’, and that ‘the decisions of 11 June and 26 August 2002 would remain in existence as they were even if the Commission granted his request’. In addition, as is clear from paragraph 41 of the judgment under appeal, Mr Genette himself argued before the Civil Service Tribunal that withdrawal of the decisions of 11 June and 26 August 2002 could not be envisaged at that stage and could be envisaged only if the Belgian authorities, possibly as a result of an action brought in the Belgian courts, took new decisions on the basis of the law of 2003 as to the sums to transfer to the Community pension scheme, something which had not yet occurred. Consequently, Mr Genette argued at first instance that his claims for annulment of the Commission’s refusal to permit him to withdraw his transfer request of 13 July 2001 could not be interpreted as an application for annulment of the Commission’s refusal to withdraw its decisions of 11 June and 26 August 2002. 74 Under those circumstances, it must be concluded that the Civil Service Tribunal could not, as it did in paragraph 50 of the judgment under appeal, redefine the principal subject-matter of the action as the annulment of the Commission’s refusal to withdraw the decisions of 11 June and 26 August 2002 (see, by analogy, Case C‑176/06 P Stadtwerke Schwäbisch Hall and Others v Commission (not published in the ECR), paragraph 25). 75 The Commission was therefore right to argue that the Civil Service Tribunal had ruled ultra petita by annulling in the present case, as is apparent from point 1 of the operative part in conjunction with paragraph 136 of the grounds of the judgment under appeal, the refusal of the Commission to withdraw its decisions of 11 June and 26 August 2002, contained in its decision of 25 January 2005. 76 Consequently, the first plea in law put forward by the Commission in Case T‑99/07 P must be upheld. 77 It follows from the foregoing that the Civil Service Tribunal could, without encroaching on the powers reserved to the Kingdom of Belgium, neither rule ultra petita nor redefine the principal subject-matter of Mr Genette’s action as being the annulment of the Commission’s refusal to withdraw its decisions of 11 June and 26 August 2002. The judgment under appeal must be set aside inasmuch as it carries out such a re-characterisation. 78 In addition, since the Civil Service Tribunal had ruled ultra petita by modifying the subject-matter of the action before it, the judgment under appeal must be set aside inasmuch as it annuls the Commission’s refusal to withdraw its decisions of 11 June and 26 August 2002, contained in its decision of 25 January 2005. Finally, since the annulment of the Commission’s refusal to permit Mr Genette to submit a new transfer request was itself merely a consequence of the annulment of the refusal to withdraw the decisions of 11 June and 26 August 2002 (see paragraph 54 above), the judgment under appeal must also be set aside inasmuch as it annuls the refusal of the Commission, in its decision of 25 January 2005, to permit Mr Genette to submit a new transfer request. 79 It follows from the foregoing that the judgment under appeal must be set aside in its entirety. The action at first instance 80 In accordance with Article 13(1) of Annex I to the Statute of the Court of Justice, if the appeal is well founded, the Court of First Instance may, where the decision of the Civil Service Tribunal is quashed, itself give judgment in the matter, where the state of the proceedings so permits. 81 Such is the case here. The Court has at its disposal all the factors necessary to rule on the action. Arguments of the parties 82 In Case T‑99/07 P, the Commission asks the Court, if it decides to set aside the judgment under appeal and rule on the dispute itself, to declare the action inadmissible on the ground that the request of 31 October 2004, in so far as it seeks to cause Mr Genette to be permitted to withdraw his transfer request of 13 July 2001, is without purpose since there is no legal basis in the Staff Regulations on which such permission could be granted. Nor can Article 9 of the law of 1991 provide a legal basis for the permission requested, since the Staff Regulations do not provide for it. The scope of provisions of the Staff Regulations cannot depend on the content of national law. The decision of 25 January 2005 cannot therefore be regarded as an act adversely affecting Mr Genette and giving him a right of action. In the alternative, the Commission contends that the action should be dismissed as unfounded. 83 At first instance, the Commission, in support of which the Kingdom of Belgium intervened, also claimed that the action should be dismissed as inadmissible or, in the alternative, unfounded. The objections of inadmissibility raised by the Commission before the Civil Service Tribunal in support of those claims were based on the ground that the application was submitted after expiry of the period laid down in Article 91(3) of the Staff Regulations and on the inadmissibility of the request of 31 October 2004 by reason of the irrevocable nature of the decisions of 11 June and 26 August 2002, on the absence of a new fact justifying that request and on the late submission thereof in the light of the requirement to submit it within a reasonable time. 84 Mr Genette contends that, far from seeking that its claims at first instance be granted, the Commission has put forward new claims before the Court. In particular, it has put forward a new plea in law alleging that it did not have the power to entertain the request of 31 October 2004. That plea is based on a new definition of the subject-matter of the dispute, which no longer is, as the Commission claimed at first instance, the withdrawal of its decisions of 11 June and 26 August 2002 but the withdrawal of the transfer request of 13 July 2001. Even supposing that it was not new, that plea should be rejected as inadmissible since it was ambiguously formulated in the appeal. 85 Moreover, Mr Genette claimed at first instance that the action was admissible and, consequently, that the objections of inadmissibility raised by the Commission should be rejected. Findings of the Court 86 Since the conditions for admissibility of an action under Articles 90 and 91 of the Staff Regulations are a matter of public policy, it is for the Community judicature, where appropriate, to consider them of its own motion (Case T‑587/93 Ortega Urretavizcaya v Commission [1996] ECR‑SC I‑A‑349 and II‑1027, paragraph 25; Case T‑157/96 Affatato v Commission [1998] ECR‑SC I‑A‑41 and II‑97, paragraph 21; order in Case T‑132/97 Collins v Committee of the Regions [1998] ECR‑SC I‑A‑469 and II‑1379, paragraph 12; and order in Case T‑25/98 de Compte v Parliament [1998] ECR‑SC I‑A‑629 and II‑1903, paragraph 38). Its review is not confined to objections of inadmissibility raised by the parties (see Case T‑99/95 Stott v Commission [1996] ECR II‑2227, paragraph 22, and Joined Cases T‑94/01, T‑152/01 and T‑286/01 Hirsch v ECB [2003] ECR‑SC I‑A‑1 and II‑27, paragraph 16, and the case-law cited therein). 87 Articles 90 and 91 of the Staff Regulations make the admissibility of an action subject to the condition that it is brought against an act adversely affecting the official. Only acts which directly and immediately affect the official’s legal situation can be regarded as adversely affecting him (Case 204/85 Stroghili v Court of Auditors [1987] ECR 389, paragraph 6, and Affatato v Commission, cited in paragraph 86 above, paragraph 21). Furthermore, it is apparent from the case-law that the refusal of the appointing authority to grant an official’s request submitted under Article 90(1) of the Staff Regulations cannot constitute an act adversely affecting the official if the appointing authority does not have the power to adopt the measures requested of it (Case T‑35/98 Hecq and SFIE v Commission [1999] ECR‑SC I‑A‑11 and II‑41, paragraph 30). 88 In the present case, since the request of 31 October 2004 was submitted under Article 90(1) of the Staff Regulations, the Court considers that it must ascertain of its own motion whether the decisions contested in the action, namely the decision of 25 January 2005 and the decision of 10 June 2005, could adversely affect Mr Genette within the meaning of Article 90(2) of the Staff Regulations. 89 First of all, it should be recalled that Article 11(2) of Annex VIII to the old Staff Regulations, in addition to being intended to enable the Community pension scheme to be coordinated with the national pension schemes, seeks to ensure that Community officials may retain the rights which they have acquired in a Member State even though they may be limited, or even conditional or future, or insufficient to give rise to the immediate award of a pension, and that account may be taken of those rights by the pension scheme to which the persons concerned are affiliated at the end of their careers, in this case the Community pension scheme (Commission v Belgium, cited in paragraph 56 above, paragraph 12). 90 For those reasons, it is clear that the ‘right’ mentioned in Article 11(2) of Annex VIII to the old Staff Regulations is intended to confer upon officials a right which they may freely exercise (Commission v Belgium, cited in paragraph 56 above, paragraph 13). 91 In the present case, Mr Genette exercised the right provided for in Article 11(2) of Annex VIII to the old Staff Regulations by submitting, on the basis of the law of 1991, the transfer request of 13 July 2001. Consequently, the bodies managing the Belgian pension schemes concerned, namely Inasti and ONP, on the one hand, and the Commission, on the other, acted in a coordinated fashion in order for the former to adopt, in accordance with the detailed rules laid down in that regard by the law of 1991, decisions calculating the amount of the pension rights acquired by Mr Genette under the Belgian pension schemes and for the latter to adopt, in accordance with Article 11(2) of Annex VIII to the old Staff Regulations and the general implementing provisions therefor, the decisions of 11 June and 26 August 2002 converting that amount into years of pensionable service with which Mr Genette was to be credited under the Community pension scheme according to the age at which he entered the pension scheme and subject to the fulfilment of certain additional conditions. Those decisions had the double effect of preserving for Mr Genette, in the Belgian legal system, the amount of the rights acquired by him in the Belgian pension schemes and of ensuring that, in the Community legal order and subject to the fulfilment of certain additional conditions, those rights are taken into account in the Community pension scheme, in accordance with the age at which Mr Genette entered that pension scheme. 92 It is apparent from the text of the request of 31 October 2004 itself that the request is based on the alleged illegality of the law of 1991, ‘since, in [Mr Genette’s] view, the system of subrogation provided for in [that] law … is discriminatory and contrary to Article 11(2) of Annex VIII to the [old] Staff Regulations’ and on the fact that ‘since the system of subrogation provided for in the law [of 1991] was contrary both to Article 11(2) of [Annex VIII to] the [old] Staff Regulations and to the principle of equal treatment, [neither] the “amount to be transferred in Mr Genette’s case, calculated by Inasti on 3 January 2002 and by ONP on 13 February 2002, [nor] the decisions … of 11 June and 26 August 2002 concerning the number of years of pensionable service to be taken into account on that basis were … correct’. It is ‘[u]nder those circumstances’ that, according to the request of 31 October 2004, ‘the Commission [must] agree to permit [Mr Genette] to apply to the Belgian authorities on the basis of [Article 9 of] the law of 1991 to withdraw his [transfer] request of 13 July 2001 on the basis of that law and to submit a new one on the basis of Article [4(1)] of the law of … 2003’. 93 The request of 31 October 2004 was thus based on a challenge to the application by Inasti and ONP of the law of 1991 for the purpose of calculating the amount of the rights acquired by Mr Genette under the Belgian pension schemes. However, according to the case-law referred to in paragraph 57 above, such a challenge, which concerns the application of national law by the bodies managing national pension schemes, is, in accordance with the division of powers which flows from the second subparagraph of Article 11(2) of Annex VIII to the old Staff Regulations, part of the national legal system and, consequently, is within the sole jurisdiction of the national authorities or the national courts, and proceedings brought before the latter could, in an appropriate case, give rise to a reference to the Court of Justice for a preliminary ruling under Article 234 EC. 94 Consequently, the second subparagraph of Article 11(2) of Annex VIII to the old Staff Regulations deprives the Commission of any power to entertain a challenge concerning, essentially, the application by Inasti and ONP of the law of 1991 to Mr Genette’s case and, on that basis, to permit the latter to request those bodies to withdraw decisions they have already adopted on the basis of the law of 1991 and to adopt new ones on the basis of the law of 2003. 95 Under those circumstances, it cannot be considered that, in rejecting the request of 31 October 2004 in its decisions of 25 January and 10 June 2005, the Commission adopted an act adversely affecting directly and immediately Mr Genette’s legal situation or his situation under the Staff Regulations. 96 It follows that the rejection of the request of 31 October 2004 contained both in the decision of 25 January 2005 and the decision of 10 June 2005 cannot be regarded as an act adversely affecting Mr Genette within the meaning of Article 90(2) of the Staff Regulations. 97 Thus, and without there being any need to rule on the admissibility of the Commission’s argument set out in paragraph 82 above or on whether the objections of inadmissibility referred to in paragraph 83 above are well founded, the action must be declared inadmissible inasmuch as it is directed against the rejection of the request of 31 October 2004 contained both in the decision of 25 January 2005 and that of 10 June 2005. 98 In so far as Mr Genette argued, in answer to questions from the Court of First Instance and at the hearing, that his action was also directed against the rejection of a request for the Commission’s assistance pursuant to Article 24 of the Staff Regulations, impliedly formulated in the request of 31 October 2004, it must be made clear that a request under Article 90(1) of the Staff Regulations must be sufficiently clear and precise to enable the Commission to ascertain in specific terms the content of the decision which it is being asked to adopt. 99 In the present case, as the Commission pointed out at the hearing, the request of 31 October 2004 contains nothing clear and precise which would allow it to be interpreted, even taking a broad approach, as seeking the Commission’s assistance pursuant to Article 24 of the Staff Regulations. Thus, the decision of 25 January 2005 cannot itself be interpreted as an implied rejection of a request for assistance under Article 24 of the Staff Regulations. 100 In so far as, in Mr Genette’s view, it is apparent from the complaint of 22 April 2005 that the Commission failed to take a step required by the Staff Regulations by failing to grant him its assistance of its own motion for the purpose of acting before the Belgian administrative or judicial authorities, it must be pointed out that the failure of an institution to assist its officials and other staff under Article 24 of the Staff Regulations constitutes an act adversely affecting them within the meaning of Article 90(2) of the Staff Regulations only if the obligation to assist is imposed on the institution independently of any request from its officials or other staff. 101 However, according to case-law, it is, in principle, for the official concerned to request assistance from the relevant institution and only exceptional circumstances may oblige the Community institution to provide specific assistance not in response to a request from the official concerned but on its own initiative (Case 229/84 Sommerlatte v Commission [1986] ECR 1805, paragraph 20). 102 In the present case, no exceptional circumstance is apparent from the documents in the file, in particular no assistance granted to officials in a situation comparable to that of Mr Genette, which would have justified the Commission taking, in regard to him, any measure of assistance on its own initiative (see, to that effect, Sommerlatte v Commission, cited in paragraph 101 above, paragraphs 21 and 22). 103 It follows that the Commission’s failure to act did not constitute, in the present case, an act having adverse effects within the meaning of Article 90(2) of the Staff Regulations. 104 Account must be taken, however, of the fact that, at the same time as he submitted the complaint of 22 April 2005, Mr Genette submitted a request for assistance under Article 24 of the Staff Regulations asking the Commission to ‘[d]ecide to grant him financial and technical assistance for any action before the Belgian administrative and judicial authorities for the purpose of challenging the conformity with Community law of the decisions adopted in regard to him by the Belgian authorities on the basis of the Belgian law of 21 May 1991’. That request was expressly rejected by the Commission in the decision of 10 June 2005 which constitutes, in that regard, an act adversely affecting Mr Genette. 105 As the Court has consistently held, any action challenging an act adversely affecting the applicant and originating from the appointing authority must, as a general rule, necessarily be preceded by a complaint which has been rejected by express or implied decision. By virtue of Article 91(2) of the Staff Regulations, an action brought before that preliminary procedure has been completed is premature and therefore inadmissible (order in Case 130/86 Du Besset v Council [1986] ECR 2619, paragraph 7; judgment in Joined Cases T‑47/89 and T‑82/89 Marcato v Commission [1990] ECR II‑231, paragraph 32; and order in Case T‑78/91 Moat and TAO/AFI v Commission [1991] ECR II‑1387, paragraph 3). 106 Since, as is clear from the case-law set out in paragraph 86 above, the plea raises a matter of public policy, it is for the Community judicature to examine it of its own motion. 107 In the present case, even if it is supposed that the action is also directed against the rejection of the request for assistance under Article 24 of the Staff Regulations brought by Mr Genette in his complaint of 22 April 2005, it was not, to that extent, preceded by the prior administrative complaint required by Article 91(2) of the Staff Regulations. 108 Accordingly, the action must in any event be dismissed as inadmissible. Costs 109 Pursuant to the first paragraph of Article 148 of the Rules of Procedure, where the appeal is well founded and the Court itself gives judgment in the case, the Court is to make a decision as to costs. 110 Under the first subparagraph of Article 87(2) of the same rules, which apply to the procedure on appeal pursuant to Article 144 thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. 111 Nevertheless, Article 88 of the Rules of Procedure, applicable to appeals brought by the institutions, under Article 144 and the second paragraph of Article 148 thereof, provides that in proceedings between the Communities and their servants the institutions, as a rule, are to bear their own costs. 112 Pursuant to the first subparagraph of Article 87(4) of the Rules of Procedure, which apply to the present case, the Member States which have intervened in the proceedings are to bear their own costs. 113 Accordingly, Mr Genette must bear his own costs both in the proceedings before the Civil Service Tribunal and in the present instance. The Commission must bear its own costs both in the proceedings before the Civil Service Tribunal and in the present instance. The Kingdom of Belgium, which intervened in the proceedings before the Civil Service Tribunal and has not applied for costs to be awarded against Mr Genette in the present proceedings, must bear its own costs both in the proceedings before the Civil Service Tribunal and in the present proceedings. On those grounds, THE COURT OF FIRST INSTANCE (Appeal Chamber) hereby: 1. Sets aside the judgment of the European Union Civil Service Tribunal of 16 January 2007 in Case F‑92/05 Genette v Commission; 2. Dismisses as inadmissible the action brought by Mr Genette before the Civil Service Tribunal in Case F‑92/05; 3. Orders Mr Genette to bear his own costs both in the proceedings before the Civil Service Tribunal and in the present proceedings; 4. Orders the Commission to bear its own costs both in the proceedings before the Civil Service Tribunal and in the present proceedings; 5. Orders the Kingdom of Belgium to bear its own costs both in the proceedings before the Civil Service Tribunal and in the present proceedings. Jaeger Tiili Martins Ribeiro Czúcz Pelikánová Delivered in open court in Luxembourg on 18 December 2008. [Signatures] Table of contents Legal context The facts Procedure at first instance and the judgment under appeal The appeals Procedure Forms of order sought Admissibility Arguments of the parties Findings of the Court Substance The first plea in law put forward by the Kingdom of Belgium in Case T‑90/07 P alleging, principally, that the Civil Service Tribunal did not have jurisdiction to assess the admissibility under Belgian law of the request of 31 October 2004 and, in the alternative, that the interpretation of Belgian law adopted in the judgment under appeal is vitiated by an error of law – Arguments of the parties – Findings of the Court The first plea in law put forward by the Commission in Case T‑99/07 P alleging that the Civil Service Tribunal ruled ultra petita by changing the subject-matter of the dispute – Arguments of the parties – Findings of the Court The action at first instance Arguments of the parties Findings of the Court Costs * Language of the case: French.