Opinion of the Advocate General — ECLI:EU:C:1998:92
Date: 1998-03-05
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Procedure: Appeal - unfounded;Appeal - inadmissible;Staff cases

summary
form below when I examine the pleas which
the appellant has put forward in support of
her appeal.
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OPINION OF MR ALBER — CASE C-291/97 P
22. Mrs H claims that the Court should:
1. declare the appeal admissible and well
founded;
2. set aside the judgment of the Court of
First Instance; and
3. declare that her previous action was
admissible and well founded.
C — Analysis
1. Admissibility of the appeal
23. Since only the Commission deals with
the issue of the admissibility of the appeal, I
shall begin by examining the arguments
which it puts forward.
24. The Commission maintains, principally,
that Mrs H's appeal is limited to complain­
ing that the Court of First Instance assessed
the facts incorrectly. An appeal is only
admissible, however, where it is based on
grounds which relate to the breach of rules
of law, to the exclusion of any assessment of
the facts. Since the appellant merely submits
that the Court of First Instance committed
an error in assessing the facts put forward by
the parties and the evidential force thereof,
the Court must dismiss the appeal as inad­
missible.
25. The Court of Justice has consistently
held that if an appeal is to be admissible
under Article 168a of the EC Treaty and
meet the requirements of Article 51 of the
EC Statute of the Court of Justice and
Article 112(l)(c) of the Rules of Procedure it
must clearly state which aspects of the judg­
ment which the Court is requested to set
aside are criticised and the legal arguments
which specifically support the request, and
cannot be limited to repeating or reproduc­
ing verbatim the pleas in law and arguments
already submitted to the Court of First
Instance, including those based on factual
allegations expressly dismissed by that
Court. 4 Such an appeal merely seeks, in real­
ity, reconsideration of the application sub­
mitted to the Court of First Instance, which
4 — Judgments in Case C-153/96 P de Rijk v Commission [1997]
ECR I-2901 and Case C-18/91 P V v Parliament [1992]
ECR I-3997; Orders in Case C-338/93 P De Hoe vCommis­
sion [1994] ECR I-819 and Case C-26/94 P X v Commission
[1994] ECR I-4379.
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H v COMMISSION
is precluded under Articles 49 and 51 of the
EC Statute of the Court of Justice. 5
26. By the first plea in support of her appeal
Mrs H complains of a breach of her rights
under the second and third paragraphs of
Article 26 of the Staff Regulations in con­
junction with Article 7 of Annex II thereto.
27. The second paragraph of Article 25 of
the Staff Regulations provides:
'Any decision relating to a specific individual
which is taken under these Staff Regulations
shall at once be communicated in writing to
the official concerned. Any decision
adversely affecting an official shall state the
grounds on which it is based'.
28. Article 26 of the Staff Regulations
concerns the content of the personal file.
Subparagraph (a) of the first paragraph pro­
vides that the personal file [of an official] is
to contain all documents concerning his
administrative status and all reports relating
to his ability, efficiency and conduct.
29. The second and third paragraphs are
worded as follows:
'Documents shall be registered, numbered
and filed in serial order; the documents
referred to in subparagraph (a) may not be
used or cited by the institution against an
official unless they were communicated to
him before they were filed.
The communication of any document to an
official shall be evidenced by his signing it or,
failing that, shall be effected by registered
letter.'
30. As regards the Invalidity Committee, the
second paragraph of Article 7 of Annex II to
the Staff Regulations provides:
'Should the official fail to appoint a doctor,
the President of the Court of Justice of the
European Communities shall appoint one.'
5 — Order in Case C-244/92 P Kupka-Floridi v Economic and
Social Committee [1993] ECK. 1-2041.
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OPINION OF MR ALBER — CASE C-291/97 P
31. Mrs H alleges a number of formal and
procedural irregularities on the occasion of
the establishment and composition of the
Invalidity Committee. According to the Staff
Regulations, the Invalidity Committee is to
give both parties the opportunity to express
their views. Even if the decision of the Presi­
dent of the Court of Justice appointing a
doctor to represent the appellant on the
Invalidity Committee is an administrative
measure, the procedure prior to and subse­
quent to that decision must be inter partes.
Accordingly, the Commission was under an
obligation to communicate both its request
to the President and the President's decision
to the appellant in the manner provided for
in the third paragraph of Article 26 of the
Staff Regulations. Similarly, the communi­
cation of the letter of 20 June 1994 informing
her of the establishment and composition of
the Invalidity Committee should have been
evidenced by the appellant's signing it or,
failing that, have been effected by registered
letter. The Court of First Instance committed
an error of law by failing to find that the
Commission acted in breach of what the
appellant considers to be the procedural
requirements.
32. By her second plea in law, Mrs H com­
plains that there has been a breach of her
rights under Article 9 of Annex II to the
Staff Regulations. The second paragraph of
that article provides that the Invalidity Com­
mittee's conclusions are to be communicated
to the appointing authority and to the official
concerned.
33. Mrs H denies that the Invalidity Com­
mittee's conclusions were communicated to
her in accordance with the applicable provi­
sions. The Court of First Instance committed
an error of law by accepting the facts
put forward by the Commission as having
evidential value without considering the
requirements relating to communication.
34. It is for the Court of First Instance alone
to assess the value which should be attached
to the evidence adduced before it. 6 How­
ever, an appeal is admissible in so far as the
decision of the Court of First Instance is
claimed to be incompatible with rules of law
the observance of which it had to ensure. 7
Similarly, it is possible to raise in support of
an appeal pleas relating to the legal assess­
ment of facts and seeking to establish that
the Court of First Instance committed an
error in law. 8
35. Under Article 26 of the Staff Regula­
tions, the communication of any documents
concerning an official's administrative status
is to be evidenced by his signing it or, failing
that, is to be effected by registered letter.
Since the appellant complains that the Court
of First Instance disregarded that provision
6 — Case C-362/95 P Blackspur DIY and Others v Council and
Commission [1997] ECR I-4775 and Case C-136/92 P Com­
mission v Brazelli Lualdi and Others [1994] ECR I-1981.
7 — Orders in Case C-293/95 P Odigitria v Council and Com­
mission [1996] ECR I-6129 and Case C-325/94 P An Taisce
and WWF UK v Commission [1996] ECR I-3727.
8 — Order in Case C-89/97 P(R) Moccia Irme v Commission
[1997] ECR I-2327 and judgment in Case C-143/95 P Com­
mission v Socurte and Others [1997] ECR I-1.
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H v COMMISSION
and further alleges that it inferred from the
facts submitted by the Commission infor­
mation not contained therein, the Court of
First Instance is alleged to have reached its
decision without observing certain rules of
law and to have erred in assessing the evi­
dence. Both pleas in support of the appeal
must therefore be regarded as admissible.
36. In paragraphs 39 and 40 of its judgment
the Court of First Instance rightly held that
the application was inadmissible in so far as
the Commission's decision of 27 June 1995
was concerned. Every decision purely and
simply rejecting a complaint, whether it be
express or implied, only confirms the act or
failure to act to which the complainant takes
exception and is not, by itself, a decision
which may be challenged. It is only where
this decision upholds all or part of the com­
plaint of the person concerned that it will, in
appropriate circumstances, constitute by
itself a decision against which an action can
be brought. 9 An action which is brought
against a mere rejection is therefore to be
regarded as an action against the contested
measure, in the present case the appointing
authority's decision.
37. Furthermore, the Invalidity Committee's
opinion is merely a preparatory act in the
context of the procedure for compulsory
retirement under Article 53 of the Staff
Regulations and cannot be the subject of an
action. An action can only be brought
against the decision taken at the conclusion
of this procedure and, on that occasion, con­
test the legality of earlier steps which are
closely linked to it. 10
2. Substance
(a) First plea in support of the appeal
38. By her first plea, Mrs H complains of a
number of formal irregularities in respect of
the communication of letters concerning the
establishment and composition of the Inval­
idity Committee. She claims that since nei­
ther the Commission's decision to request
the President of the Court of Justice to
appoint a doctor to represent her nor the
final decision of the President of the Court
of Justice concerning the doctor in question
should have been sent by ordinary post she
was not properly notified of those decisions.
Nor was she properly informed of the final
composition and the meeting of the Invalid­
ity Committee. It follows from the principle
that the procedure before the Invalidity
Committee is inter partes and the importance
of its conclusions that the communication of
those documents should have been evidenced
by the appellant's signature or effected by
registered letter.
9 — Joined Cases 33/79 and 75/79 Kuhner v Commission [1980]
ECR 1677 and Order in Case 371/87 Progoulis v Commis­
sion [1988] ECR 3081.
10 — Order in Joined Cases 78/87 and 220/87 Santarelli v Com­
mission [1988] ECR 2699 and judgment in Case T-586/93
Kotzonis v ESC [1995] ECR 11-665.
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OPINION OF MR ALBER — CASE C-291/97 P
39. The Court of First Instance points out in
paragraph 77 of its judgment that it is appar­
ent beyond doubt from the case-file that the
appellant was aware that the Invalidity Com­
mittee was to meet and of its composition. In
that regard, however, the Court relies princi­
pally on the Commission's submissions.
Thus paragraph 81 of the judgment states
that the appellant was informed by, inter
alia, the letter of 20 June 1994 from the doc­
tor appointed by the Commission of the
final composition of the Invalidity Commit­
tee, although Mrs H denies having received
that letter.
40. As regards the establishment of the
Invalidity Committee, the Court of First
Instance held that the appointment by the
President of the Court of Justice of a doctor
to represent an official on an Invalidity
Committee pursuant to the second para­
graph of Article 7 of Annex II to the Staff
Regulations, where the official concerned has
failed to appoint such a doctor, is not a judi­
cial procedure but more in the nature of an
administrative measure. Accordingly, the
procedure does not need to be inter partes. 11
41. The Court of Justice has consistently
held that the provisions relating to the Inval­
idity Committee are designed so as to confer
upon medical experts the task of definitively
appraising all medical questions. It may be
inferred from this that judicial review may
not extend to medical appraisals properly
so-called, which must be considered defini­
tive, provided that the conditions in which
they are made are not irregular. On the other
hand, judicial review may extend to ques­
tions concerning the proper constitution and
functioning of those committees, and also
the formal propriety of the opinions which
they issue.12 To that extent the Court of
First Instance is able to review the opinion.
Where such defects (defects relating to form
or to the manner of communication) exist
the opinion may, even where the medical
part is correct, be invalid in its entirety and
hence inoperative.
42. The proper establishment of the Invalid­
ity Committee also requires that the essential
provisions as to form and procedure be
observed. Having regard to the (adverse)
consequences which the conclusions of the
Invalidity Committee may have for the offi­
cials concerned, and since the appointing
authority is not authorised to amend or
replace those conclusions according to its
own opinion, both the establishment and the
composition of the Invalidity Committee
should have been communicated to the
appellant in accordance with the third para­
graph of Article 26 of the Staff Regulations,
since those measures may have consequences
which adversely affect officials.
43. It is, admittedly, not apparent from the
provisions of the second paragraph of
11 — Judgment in Case T-196/95 (cited in footnote 1), paragraph
80.
12 — Case C-185/90 P Gill v Commisńon [1991] ECR I-4779,
Case 2/87 Biedermann v Court of Auditors [1988] ECR 143
and Case T-165/89 Plug v Commission [1992] ECR II-367,
paragraph 75.
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H v COMMISSION
Article 25 and the third paragraph of Article
26 of the Staff Regulations precisely which
documents in fact require special communi­
cation. However, the decision to order a
meeting of an invalidity committee, the opin­
ion of that committee and, finally, the
decision of the appointing authority to retire
the official are of such weighty significance
that it appears necessary — also from the
aspect of the employer's duty of care
towards its employees — to apply the
stricter provisions as to form and procedure.
It is not clear from the wording of Articles
25 and 26 of the Staff Regulations which
decisions or documents are covered by the
requirement laid down in the third para­
graph of Article 26. Nor, in particular, is it
apparent from the first paragraph of Article
26 which documents must be in the personal
file. It would be desirable if the Staff Regula­
tions contained more precise rules in that
regard, in order to ensure that the procedure
is contested properly. Even though from a
formal point of view the decisions of the
appointing authority merely constitute an
administrative measure, the serious conse­
quences they may entail cannot be over­
looked. Decisions which lead to compulsory
retirement concern an official's administra­
tive status and, simply because of their seri­
ous consequences, require to be communi­
cated in the form provided for in the third
paragraph of Article 26 of the Staff Regula­
tions. That applies a fortiori in the present
case, where initially there were two separate
procedures between the appellant and the
Commission at the same time. It cannot be
excluded that the appellant considered that
letters sent in the context of the procedure
relating to the establishment and composi­
tion of the Invalidity Committee concerned
the procedure relating to sick leave. That
might have been avoided if the letters had
been properly communicated as provided for
in the third paragraph of Article 26 of the
Staff Regulations.
44. Irrespective of the form of communi­
cation, the Court of First Instance concluded
that all the necessary information was made
available to the appellant and that she was
thus in a position to participate in the pro­
cedure in point. However, the Court did not
examine the question whether the communi­
cation of the documents in question was
effected in accordance with the formal
requirements. It cannot be concluded merely
from the fact that the Commission sent the
letters by ordinary post or had them deliv­
ered by an official of the security office that
by and large they were properly communi­
cated.
45. In that regard the Court of First Instance
failed to have sufficient regard to the rights
which the appellant enjoyed under the third
paragraph of Article 26 and drew the wrong
conclusion from the information made avail­
able to it or ascribed to it an evidential value
which does not correspond to the provisions
of the third paragraph of Article 26 of the
Staff Regulations.
46. To that extent, the appeal is well
founded.
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OPINION OF MR ALBER — CASE C-291/97 P
(b) Second plea in support of the appeal
47. By her second plea in support of her
appeal the appellant alleges that there has
been a breach of her rights under the first
paragraph of Article 9 of Annex II to the
Staff Regulations.
48. In essence, this plea is based on argu­
ments similar to those put forward in sup­
port of the first plea. According to the appel­
lant, the Court of First Instance committed
an error of law in finding that the Commis­
sion properly communicated to her the
decision relating to the establishment and
composition of the Invalidity Committee.
49. Under the first paragraph of Article 9 of
Annex II to the Staff Regulations an official
is entitled to submit to the Invalidity Com­
mittee any reports or certificates from his
regular doctor or from any medical practitio­
ners whom he may have consulted. In order
to ensure that the official concerned is able to
exercise that right, however, and having
regard to the serious consequences which the
conclusions of the Invalidity Committee
may have for him, it is essential in this situ­
ation, too, that the relevant documents be
either communicated by registered letter or
evidenced by the official's signing them.
50. In regard to that problem, the Court of
First Instance considered that it was proven
that the appellant was sufficiently informed
of the establishment and composition of the
Invalidity Committee. "In the Court's view
that followed from the statements of the
doctors appointed to the committee and
from the letter of 20 June 1994 in which the
doctor appointed by the Commission
informed the applicant of the establishment
and composition of the Invalidity Commit­
tee, although the appellant denies this.
51. On this point too, however, the Court of
First Instance failed to examine the question
whether the Commission acted lawfully. The
question arises, in particular, whether com­
munication might have been effected other
than by ordinary post.
52. The first paragraph of Article 9 of Annex
II to the Staff Regulations provides that the
official may submit to the Invalidity Com­
mittee any reports or certificates from his
regular doctor. This means the official con­
cerned must also be in a position to be able
to exercise his rights. That applies a fortiori
where the Invalidity Committee's opinion, as
regards its medical content, is binding on the
appointing authority, which, in turn, adopts
its decision on the basis of that opinion. It
should also be pointed out here — as I have
observed in point 43 — that two procedures
were in progress at the same time. The Court
of First Instance should therefore have
examined whether communication was
effected in accordance with the applicable
provisions relating to form and procedure in
force. Since the Court failed to undertake
such an examination in the present case,
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H v COMMISSION
however, it assumed that the Commission's
submissions had a probative value.
Although, from a practical viewpoint, there
is much that points in favour of the Com­
mission's view and of the interpretation of
the Court of First Instance to the effect that
the appellant was aware of the letters, the
procedural irregularities in the communi­
cation of the letters none the less constitute a
breach of her rights.
53. In that regard, too, the appeal is well
founded.
54. Since the complaints raised in the appeal
are successful, the contested judgment must
be set aside and the Commission's decision
of 27 September 1994 (retiring the official)
must be declared void.
Costs
55. Under Article 122 of the Rules of Pro­
cedure, where the appeal is well founded and
the Court itself gives final judgment in the
case, the Court is to make a decision as to
costs. Under Article 69(2), which, pursuant
to Article 118, applies to the procedure on
appeal, the unsuccessful party is to be
ordered to pay the costs, if they have been
applied for in the successful party's plead­
ings. Since the Commission has been unsuc­
cessful, it must be ordered to pay, in addition
to its own costs, the costs which the appel­
lant has incurred in the proceedings before
the Court of First Instance and before the
Court of Justice.
D — Conclusion
56. For all these reasons, I propose that this Court should give judgment as fol­
lows:
(1) The contested judgment of 3 June 1997 in Case T-196/95 is set aside.
(2) The Commission's decision of 27 September 1994 retiring the appellant is
declared void.
(3) The Commission is to pay all the costs in both sets of proceedings.
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