Opinion of the Advocate General — ECLI:EU:C:1998:157
Date: 1998-04-02
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Procedure: Appeal - unfounded;Appeal - inadmissible;Staff cases

summary of the pleas in law 
on which the application is based'. 7 
29. Similarly, new pleas, which may not be 
introduced in the course of proceedings except 
under certain circumstances, can only be put 
forward by the parties, as both the wording 
and the rationale of the prohibition confirm. 
30. Article 48 as a whole refers to the parties. 
Paragraph 1 provides: 'In reply or rejoinder 
a party may offer further evidence. The party 
must, however, give reasons for the delay in 
offering it.' 8 The second subparagraph of 
paragraph 2 is even more illuminating, pro­
viding, as it does: 'If in the course of the pro­
cedure one of the parties puts forward a new 
plea in law which is so based, the President 
may, even after the expiry of the normal pro­
cedural time-limits ... allow the other party 
time to answer on that plea.' 9 
31. As for the rationale underlying the pro­
hibition, it is a generally accepted means of 
obliging the parties to remain within the con­
fines established in the application initiating 
proceedings. This defines the subject-matter 
7 — Article 19 of the EC Statute of the Court of Justice and 
Article 44(1)(c) of the Rules of Procedure of the Court of 
First Instance. 
8 — Emphasis added. 
9 — Emphasis added. 
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OPINION OF MR LÉGER — CASE C-252/96 P 
of the dispute, which cannot, without frus­
trating the rights of the defence, be altered by 
the introduction of new pleas in the course of 
proceedings. Moreover, where, by 'way of 
exception, it does authorise the introduction 
of new pleas in the course of proceedings, 
Article 48(2) concerns new pleas in fact or in 
law in support of the claims formulated in the 
originating application. Thus the Court of 
Justice has held, in connection with Article 
42(2) of its Rules of Procedure, which is 
identical to the article in question here, that 
'that provision... allows an applicant, in excep­
tional circumstances, to raise fresh issues in 
order to support conclusions set out in the 
document instituting the proceedings. It does 
not in any way provide for the possibility of 
an applicant's introducing fresh conclusions 
..." 10 
32. The function of adjudication entrusted to 
it automatically makes the court a third party 
in relation to the dispute brought before it. 
The grounds of a judgment clearly cannot be 
described as a new plea within the meaning of 
Article 48(2). 
33. I conclude that the appellant cannot rely 
on a breach by the Court of First Instance of 
Article 48(2) of its Rules of Procedure, 
claiming that it introduced a new plea in the 
course of proceedings. 
34. However, it is possible to construe the 
subject of the appeal differently, despite the 
way it has been formulated. In criticising the 
Court of First Instance for basing its judg­
ment on the fact that the contested notices of 
transfer and competition were not the same, 
when that fact was not relied on by the appli­
cant, it is possible that the Parliament intended 
to point out that the Court of First Instance 
has to remain within the strict confines estab­
lished by the parties. 11 
35. Clearly the court must only rule on the 
application of the parties. As I have pointed 
out, it is for them to define the framework of 
their dispute, and the court cannot, as a matter 
of principle, rule on matters other than the 
claims made, nor, of course, rule in complete 
disregard of the dispute as defined in the 
application initiating proceedings. 
36. Nevertheless, the role of the court is not 
a passive one and it cannot be expected to be 
merely 'the mouthpiece of the parties'. Its 
10 — Case 125/78 Gema v Commission [1979] ECR 3173, para­
graph 26, emphasis added. 
11 — The very different approach taken by the Parliament in its 
reply as compared to that taken in the appeal could be 
understood in this way. 
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PARLIAMENT v GUTIÉRREZ Y LLORÉNS 
task of juris dictio requires it to be able to 
apply to the facts put before it by the parties 
the relevant rules of law for the solution of 
the dispute. It cannot confine itself to the 
arguments put forward by the parties in sup­
port of their claims or it may be forced to 
base its decision on erroneous legal consider­
ations. 
37. This is why the rules of procedure offer 
the court the possibility of seeking the best 
possible solution in various ways while 
remaining within the framework of the dis­
pute submitted to it. 
38. Thus the court may, under certain cir­
cumstances, raise of its own motion a plea 
which has not been put forward by a party. 
There is for example no question but that the 
Court of Justice (or the Court of First 
Instance), even in the absence of a challenge, 
would have to plead of its own motion that 
it had no jurisdiction if the application brought 
before it fell within the jurisdiction of the 
Court of First Instance (or the Court of Jus­
tice). 12 The Court of Justice also considers 
that it has to ascertain of its own motion 
whether the conditions for the admissibility 
of an application have been fulfilled, even if 
the defendant has not raised a plea of inad­
missibility. 13 
39. However, it does not seem to me that the 
approach of the Court of First Instance in 
this case should be construed in the light of 
this possibility of raising a plea of its own 
motion, contrary to what the Parliament 
appears to claim. 14 The finding that the con­
ditions of the contested notices were not the 
same cannot be deemed to be equivalent to a 
plea. As is clear from the judgment under 
appeal, it is, rather, a case of the development 
of an argument in support of a plea raised by 
the applicant: that of breach of Article 29(1) 
of the Staff Regulations. 15 
It was, in fact, only in the course of its con­
sideration of the plea of breach of that article 
that the Court of First Instance came to con­
sider whether the conditions set out in the 
notices in question were the same. 
It thus in no way raised a 'plea' of its own 
motion to the effect that the notices at issue 
were not the same. 
40. Similarly, courts can order certain mea­
sures of inquiry. 16 However, that option is 
not at issue here. 
12 — Pursuant to Article 47(2) of the EC Statute of the Court of 
Justice. 
13 — See, for example. Case 294/83 Les Verts v Parliament [1986] 
ECR 1339, paragraph 19. 
14 — In paragraphs 16 to 18 of its reply, in particular. 
15 — See, amongst the more recent judgments, Case C-153/96 P 
De Rijk v Commission [1997] ECR I-2901, paragraph 19, in 
which the Court nukes a clear distinction between the con­
cept of a plea and that of an argument, expressing the view, 
for example, that reliance on an argument in support of a 
plea which has already been considered by the Court of 
First Instance, does not constitute a new plea. 
16 — In the case of the Court of First Instance, this possibility is 
provided for by Article 65 et seq. of its Rules of Procedure. 
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OPINION OF MR LÉGER — CASE C-252/96 P 
41. Finally, the Court of First Instance cannot 
be criticised for putting questions to the par­
ties as this is one of the measures of organisa­
tion of procedure available to it under Article 
64 of its Rules of Procedure. The purpose of 
such measures, according to Article 64(1) is 
'to ensure that cases are prepared for hearing, 
procedures carried out and disputes resolved 
under the best possible conditions.' Similarly, 
pursuant to Article 29 of the EC Statute of 
the Court of Justice, applicable to the Court 
of First Instance by virtue of Article 46(1) of 
that Statute: 17 'During the hearings the Court 
may examine ... the parties themselves ...'. 
42. The Court of First Instance might have 
been open to criticism, however, if it had 
considered the question whether the notices 
at issue were the same in the course of con­
sidering the plea of breach of Article 29 of 
the Staff Regulations, without the parties 
having expressed any view on this point. 
Through its questions the Court of First 
Instance elicited an opinion from the Parlia­
ment and thus ensured respect for the prin­
ciple of audi alterem partem which it might 
otherwise have been criticised for breaching. 
43. I must therefore conclude that the Court 
of First Instance is not open to the criticism 
of having ruled in breach of Article 48(2) nor 
of having contravened the applicable Rules of 
Procedure in basing its reasoning on the 
answers given to the questions which it had 
put to the parties in the course of its exami­
nation of the plea raised in support of annul­
ment. 
The absence of any act adversely affecting the 
official and the lack of any interest in bringing 
proceedings 
44. In its appeal, 18 the Parliament also claims 
that if the plea alleging breach of Article 48(2) 
must be declared inadmissible, the argument 
that the notices were not the same raised by 
the Court of First Instance ought to be 
declared inadmissible because there is no act 
adversely affecting the official concerned and 
he has no interest in bringing proceedings. It 
takes the view that, since Mr Gutiérrez de 
Quijano y LIoréns did not apply for Com­
petition N o PE/161/LA, the wording of the 
Notice of Competition cannot be considered 
to have affected him adversely. Moreover, the 
fact that he did not apply for the competition 
also demonstrates that he has no interest in 
bringing proceedings. 
45. It should be borne in mind, first, as 
regards the lack of any act adversely affecting 
the official concerned, that the act complained 
of before the Court of First Instance by 
Mr Gutiérrez de Quijano y LIoréns was not 
the Notice of Competition but the decision 
rejecting his candidature in respect of the 
Notice of Transfer. It is thus only in connec­
tion with that notice that the requirement for 
an act adversely affecting an official should be 
assessed. 
46. It should also be borne in mind that, as 
the Court of First Instance found: '... [since] 
the applicant's candidature was considered on 
the basis of a Notice of Transfer laying down 
stricter conditions than the Notice of Com­
petition,' 19 '... the rejection of the applicant's 
17 — According to which: The procedure before the Court of 
First Instance shall be governed by Title III of this Statute, 
with the exception of Article 20.' 
18 — Paragraph 19 et seq. of the appeal. 
19 — Paragraph 48 of the judgment. 
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PARLIAMENT v GUTIÉRREZ Y IXORÉNS 
candidature was irregular, being in breach of 
the provisions of Article 29(1) of the Staff 
Regulations which require, in accordance with 
the case-law on the subject... that the condi­
tions laid down by the notices corresponding 
to the different stages of the recruitment pro­
cedure remain the same.' 20 Thus it cannot 
reasonably be argued that the wording of the 
Notice of Competition did not adversely 
affect Mr Gutiérrez de Quijano y Lloréns 
when it is precisely because its wording was 
not the same as that of the Notice of Transfer 
that the rejection of his candidature was held 
to be irregular. 
47. Nor can the Parliament's argument 
pointing to Mr Gutiérrez de Quijano y 
Lloréns's failure to apply for the competition 
to prove his lack of interest in bringing pro­
ceedings be accepted. As the Court of First 
Instance points out at paragraph 41 of the 
judgment: 'Article 29(1)(a) of the Staff Regu­
lations requires the appointing authority to 
consider as a priority the possibilities of pro­
motion and transfer within the institution 
before proceeding to one of the subsequent 
stages laid down by that article, that is to say, 
in order, consideration of the possibility of 
organising an internal competition, reviewing 
requests for inter-institutional transfer and, if 
necessary, organising an open competition ...' 
It follows that the Parliament cannot require 
a candidate for a transfer to sit a competition, 
the results of which are not supposed to be 
taken into consideration until examination of 
the candidatures received in response to the 
Notice of Transfer has been completed, when, 
at the time of the deadline for the submission 
of applications for that competition (in this 
case 25 January 1993), which predates the 
publication of the Notice of Transfer (in this 
case 15 March 1993), the existence of that 
Notice of Transfer was not yet known. 
The differences between the Notice of Transfer 
and the Notice of Competition 
48. Finally, in the event that the Court of 
Justice should none the less consider 'the plea 
raised in support of annulment made by the 
Court of First Instance to be admissible' and 
that there is no problem of admissibility 
because of the absence of an act adversely 
affecting the official concerned or of an interest 
in bringing proceedings, the Parliament reit­
erates, 21 by reference to an annex to the 
appeal, the arguments put before the Court 
of First Instance, according to which the dif­
ferences between the notices, which are purely 
differences of wording, played no role when 
the candidature of Mr Gutiérrez de Quijano 
y Lloréns was examined. 
49. As the Court has consistently held, such 
a line of argument, which consists in simply 
repeating or reproducing verbatim the pleas 
in law and arguments already submitted to 
the Court of First Instance, cannot be upheld, 
since it merely seeks, in reality, reconsidera­
tion of the application submitted before the 
Court of First Instance, which, under Article 
49 of the E C Statute of the Court of Justice 
does not fall within the jurisdiction of the 
Court. 22 
20 — Paragraph 49 of the judgment. 
21 — Paragraph 28 of the appeal. 
22 — Sec to that effect the order in Case C-403/95 P Obst v Com­
mission [1998] ECR I-27, paragraph 18. 
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OPINION OF MR LÉGER — CASE C-252/96 P 
50. In the light of the foregoing, I take the 
view that the appeal should be dismissed. 
51. Under Article 69(2) of the Rules of Pro­
cedure of the Court of Justice, applicable to 
the appeal procedure by virtue of Article 118 
of those rules, the unsuccessful party is to be 
ordered to pay the costs. Since the Parliament 
has been unsuccessful in its appeal it must be 
ordered to pay the costs. 
Conclus ion 
52. In the light of the foregoing considerat ions , I p r o p o s e tha t the C o u r t should : 
(1) dismiss the appeal; 
(2) o rde r the E u r o p e a n Par l iament t o p a y the costs . 
I - 7432