62012CP0334_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
I – Introduction
1. By its decision of 12 July 2012, (2) the Court of Justice decided that there should be a review of the judgment of the General Court of the European Union (Appeal Chamber) of 19 June 2012 in Case T-234/11 P Arango Jaramillo and Others
v EIB . (3) This is the second time that the Court has decided, following a proposal made by its First Advocate General, to implement the review procedure. (4)
2. In the decision of 12 July 2012, the Court identified two specific matters to be examined.
3. The first question is to ascertain whether the General Court, as appeal court, correctly interpreted the concept of a reasonable period, in the context of an action brought by staff members of the European Investment Bank (EIB) for annulment of a measure adopted by that bank adversely affecting them, as a period which, if exceeded, has the effect of making the action out of time and, therefore, inadmissible, without the Courts of the European Union being required to take account of the particular circumstances of the individual case.
4. Secondly, it is necessary to examine whether the interpretation adopted by the General Court of the concept of ‘reasonable period’ is not such as to impair the right to an effective judicial remedy enshrined in Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
5. If the findings made by the General Court are vitiated by an error of law, the decision of 12 July 2012 requires an examination of whether the judgment of 19 June 2012 affects the unity or consistency of European Union law, within the meaning of Article 256(2) TFEU and Article 62 of the Statute of the Court of Justice of the European Union, and, if so, to what extent.
6. Before examining these questions, it is important to recall briefly that the decision to re-examine the judgment of 19 June 2012 was adopted in the context of the dismissal, initially at first instance by the Civil Service Tribunal of the European Union (5) (‘the Tribunal’), subsequently confirmed on appeal by that judgment, of the action brought by a group of EIB staff members for the annulment of their respective salary statements, on the ground that the action was out of time, since that action had been brought within a period of three months, plus the ten-day extension on account of distance, and a few seconds.
7. In the absence of any provision laying down time limits for bringing proceedings applicable to disputes between the EIB and its staff, the General Court, as the Tribunal had previously done in the order which was the subject of appeal, recalled, first of all, in its reasoning, the case-law which makes the bringing of such an action conditional on observance of a reasonable period, which must be assessed according to the circumstances of each case. (6)
8. Taking the view, however, in paragraph 26 of its judgment of 19 June 2012, that the period of three months laid down in Article 91(3) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) provides ‘a relevant point of comparison’ for actions for annulment of EIB measures brought by EIB staff, the Court held, in paragraph 27 of that judgment, on the basis of some of its earlier decisions, (7) that observance of such a time limit must, as a general rule, be regarded as reasonable.
9. Also in paragraph 27 of its judgment of 19 June 2012, referred to in paragraph 9 of the decision of 9 July 2012, the General Court deduced, ‘by argument a contrario
… that any action brought by an EIB staff member after the expiry of a three-month time limit, extended on account of distance by a period of ten days, must, as a general rule, be considered not to have been brought within a reasonable period’. The General Court goes on to state that such an interpretation a contrario is justified ‘because only the strict application of procedural rules laying down time limits serves the requirements of legal certainty and the need to avoid any discrimination or arbitrary treatment in the administration of justice’.
10. The General Court then rejected one by one the grounds raised by the appellants.
11. Thus, in paragraph 30 of its judgment of 19 June 2012, the General Court held that the appellants’ criticism to the effect that the Tribunal had replaced the reasonable period, which is flexible and allows the weighing up of the specific interests at stake, with strict and general compliance with a precise time limit of three months, was unfounded, on the ground that the Tribunal simply applied ‘a rule of law ... which stems clearly and precisely from an interpretation a contrario of the case-law [cited in paragraph 27 of the judgment]’. That rule, according to the General Court, specifically applies observance of a reasonable period to disputes between the EIB and its staff members, which are broadly similar to proceedings concerning the officials and staff of the European Communities and ‘[f]urthermore, is based on a general presumption that the three-month time limit is, as a general rule, sufficient to enable EIB staff to assess the legality of EIB measures adversely affecting them and, if appropriate, to prepare their case’, without ‘requiring … the court of the European Union responsible for applying it to take account of the particular circumstances of each individual case and, in particular, to weigh up the specific interests at stake’.
12. The General Court expounded similar reasons in paragraphs 34 and 35 of the judgment of 19 June 2012 under review in order to reject the need to take into account certain circumstances in the present case relied on by the appellants, on the ground that the application of the rule of law set out in paragraph 27 of its judgment is based ‘on the implementation of a general presumption’ which ‘does not require the Courts of the European Union to take account of the particular circumstances of each individual case’.
13. As is also pointed out in paragraph 11 of the decision of 12 July 2012, the General Court reiterated, in paragraph 39 of its judgment of 19 June 2012, that ‘the strict application of procedural rules laying down time limits’ satisfies, in particular, the requirements of legal certainty, in order to reject the appellants’ plea alleging infringement of the principle of proportionality and of the right to an effective judicial remedy, since the appellants were inter alia fully aware of the existence of the rule (which stems clearly and specifically from an interpretation a contrario
of the case-law) and of its effects on the admissibility of their action.
14. In the course of the review procedure, the parties concerned, as referred to in Article 23 of the Statute of the Court of Justice, were invited to lodge written observations on the questions identified in the decision of 12 July 2012. Written observations were lodged by the appellants before the General Court, the EIB, the Portuguese Government and the European Commission.
15. Following the entry into force of the new Rules of Procedure of the Court of Justice on 1 November 2012, (8) the case was allocated to the reviewing chamber designated pursuant to Article 191 of those Rules of Procedure.
II – The errors of law vitiating the judgment of 19 June 2012
A – Interpretation of the concept of ‘reasonable period’ unconnected with any consideration of the particular circumstances of each individual case
16. Whereas the appellants consider that the General Court infringed the principle that a reasonable period must take into consideration the particular circumstances of each case, the EIB, the Portuguese Government and the Commission maintain the contrary.
17. Of those three interested parties, it may be pointed out, not without interest, that it is the Commission which seems to put forward the most inflexible arguments in that it seeks in fact to call into question the very premiss of the subject matter of the first ground for review indicated in the decision of 12 July 2012. Maintaining that the time limit for EIB staff members to bring an action for the annulment of an EIB measure must, essentially for reasons of legal certainty, be peremptory, (9) or, in other words, must constitute a ‘strict time limit’, (10) as the General Court held not without a degree of ambiguity, the Commission considers that it is not necessary to adjudicate on whether the concept of ‘reasonable period’ may be interpreted, as the General Court held in the judgment of 19 June 2012, without taking into account the particular circumstances of each case, since that court did not examine such a situation. (11)
18. In that regard, the Commission states, in essence, that the case-law referred to in paragraph 15 of the decision of 12 July 2012 relates to the reasonable duration of administrative procedures and is not therefore a point of reference for examining the consistency of the approach taken in the judgment of 19 June 2012 in respect of the time limits for bringing legal actions.
19. Although it adopts a more qualified position, the EIB basically shares that opinion. It adds that the case-law has recognised that the legal situation of the EIB staff members is the same as that of the staff of the institutions of the European Union, which fully justifies the application by analogy to the actions brought by EIB staff members of the three-month period governing actions brought by the latter staff for the annulment of measures of those institutions which adversely affect them. Moreover, the EIB points out that the Court of Justice has already filled lacunae in the EEC Treaty concerning the European Parliament’s capacity to bring proceedings, by using the process of analogy, but did however make that capacity subject to a more flexible time limit for bringing proceedings than that applicable to the other institutions. In short, by laying down a time limit of three months, the judgment of 19 June 2012 followed, according to the EIB, a line of precedents which is based on the equal treatment of the EIB staff members and the staff of the European institutions, on the protection of legal certainty and on the principle that time limits for bringing actions are not subject to the will of either the courts or the parties.
20. For my part, I consider that the following observations should be made in respect of the first ground of review.
21. First of all, the basis for the review, of course, is the EIB’s failure, which, it may be added, is very regrettable because it was prolonged and unexplained, to lay down in its staff regulations a period within which disputes between the EIB and its staff members must be brought before the Courts of the European Union.
22. Since the regulations are silent on the matter, the General Court has already, in the past, tried to fill that procedural lacuna by using, as pointed out in the judgment of 19 June 2012, the concept of ‘reasonable period’. In my view, there are two reasons why that lacuna should be filled by means of a reasonable period.
23. The first is based on respect for the division of powers. Whatever the EIB and the Commission say, it is not, in principle, the task of the Courts of the European Union to replace the enactor, the legislature or the regulatory power by introducing of its own motion, by judicial decision, a fixed time limit at the end of which individuals, in this case the EIB staff members, find themselves time-barred. Such an approach on the part of the Courts of the European Union reflects respect for the division of powers between the EU institutions and bodies, and the silence of the enactor, legislature or regulatory power, moreover, necessarily entails uncertainty as to the interpretation of their presumed intention and, specifically, the reasons which have caused their silence on the setting of a fixed time limit for bringing proceedings. In that context, it is reasonable to hold that a time-bar, in so far as it restricts the right of the party concerned to adduce all the evidence necessary for his claims to succeed, can be accepted only if it is the subject of express, unambiguous legislation. (12)
24. That first explanation, namely the rejection of the possibility that a fixed time limit for bringing proceedings can be set by the court, does not entirely explain the court’s recourse to the concept of a reasonable period. The second reason lies in the rejection of the possibility that individuals should enjoy a right of action which is unlimited in time, since legal relationships cannot be called into question indefinitely.
25. As the General Court pointed out in paragraph 22 of the judgment of 19 June 2012, which is not the subject matter of the review as defined by the decision of 12 July 2012, the recourse by the Courts of the European Union to the concept of ‘reasonable period’ ensures that it is possible to reconcile, on the one hand, the right of the individual to effective judicial protection, which means that he may have adequate time to assess the legality of the measure which adversely affects him and, if necessary, to prepare his application, and, on the other hand, the requirement of legal certainty which dictates that, after a certain period has elapsed, the measures adopted by EU institutions and bodies become final. (13)
26. It follows that, contrary to what the EIB suggests, the application of a reasonable period does not mean that the legality of the acts which it adopts may be challenged indefinitely, since such an application is designed specifically to preclude the Courts of the European Union examining the substance of an action not brought within a reasonable period.
27. The fact remains that the assessment of the reasonableness of a period depends on the circumstances of each individual case.
28. That finding is not only valid, as the EIB and the Commission maintain, with regard to the duration of administrative proceedings. It also applies, where legislation is silent, to the bringing of legal proceedings.
29. Accordingly, by its decision of 27 October 2010 in Marcuccio
v Commission, (14) the Court of Justice rejected the proposal for a review of the order of the General Court of 15 September 2010 in Case T-157/09 P Marcuccio
v Commission, (15) in which the General Court applied the doctrine of a reasonable period, determined in the light of the circumstances of the case, confirming, on appeal, the inadmissibility of the action for damages arising out of the employment relationship between a former official and his institution within a period shorter that the five-year limitation period laid down in Article 46 of the Statute of the Court of Justice, and holding that that period, since the legislation applicable to disputes between officials and the institutions for which they work are silent on the matter, was a relevant point of comparison for assessing the admissibility of the appellant’s action without, however, constituting a strict and inviolable limit. (16)
30. Similarly, the Court of Justice makes the admissibility of claims for recovery of costs incurred before the Courts of the European Union conditional, if entitlement is not to lapse, on observance of a reasonable period between the delivery of the judgment and the claim for reimbursement from the other party to the proceedings (17) and, also, since the Rules of Procedure of the Court of Justice are silent on the matter, on the other party disputing the costs claimed. (18)
31. The assessment made in point 28 of this view is unaffected by the judgment in Parliament
v Council, (19) on which the EIB relies.
32. It is true that, in spite of the silence, at the time, of Article 173 of the EEC Treaty, the Court of Justice, in that judgment, recognised the Parliament’s capacity to bring proceedings for the purpose of enabling it to safeguard its prerogatives, without however granting it a more flexible time limit than that laid down by that provision in respect of actions for annulment brought, inter alia, by the other institutions.
33. However, that situation is not the same as that of the EIB staff members.
34. In the judgment in Parliament v Council, the claim of the European Parliament, which the Court of Justice upheld, was that it should be afforded an appropriate legal remedy, in that case the action for annulment governed by Article 173 of the EEC Treaty, in order to control and, if necessary, to penalise the infringement of its prerogatives by a measure of the Council of the European Communities or of the Commission, prerogatives which contributed, according to the Court of Justice, to maintaining the institutional balance defined by the Treaties. (20) Once the legal remedy provided by Article 173 of the EEC Treaty was extended to the Parliament, it was understandable, particularly in the light of the requirement of institutional balance, that the conditions governing the bringing of actions referred to in that provision, including the condition relating to the two-month time limit for bringing them, should be imposed on the Parliament with the same rigour as on the other institutions.
35. On the other hand, and regardless of the requirements of institutional balance highlighted by the Court of Justice in Parliament
v Council, it is important to point out that the provision of the EIB staff regulations relating to legal remedies merely establishes the jurisdiction of the Courts of the European Union but does not set a time limit for bringing proceedings, which explains the reference to observance of a reasonable period.
36. That being so – and consequently –, purporting to apply the doctrine of a reasonable period, the General Court, in fact, in the judgment of 19 June 2012, exceeded the limits of its powers and fundamentally altered the essential feature of observance of such a period, namely its flexibility.
37. To be convinced of this, it is sufficient to mention, first, paragraph 34 of the judgment of 19 June 2012, in which the General Court holds that the EIB’s failure to meet its legal responsibility concerning the setting of a time limit for bringing actions is irrelevant, ‘... since it is manifestly and specifically apparent from an interpretation a contrario
of the case-law established before the action was brought that the Courts of the European Union filled that legislative lacuna by interpreting European Union law ... as meaning that any action brought by a EIB staff member after the expiry of a three-month time limit, extended on account of distance by a period of ten days, must, as a general rule, be considered not to have been brought within a reasonable period ’, and, therefore, to be out of time. (21)
38. Secondly, paragraphs 27, 30, 35 and 39 of the judgment of 19 June 2012 establish, in essence, as a ‘rule of law’ a general presumption that observance of a three-month period is reasonable and, a contrario, that an action brought after such a period has elapsed is not reasonable, and that the Courts of the European Union do not have to take into account the circumstances of each individual case, justifying that assessment in particular in the light of the case-law relating to ‘[the strict application of] procedural rules laying down time limits’.
39. It is true – and it does not surprise me in the least – that, in the precedents referred to by the General Court, the Courts of the European Union held, in view of the silence of the Treaties and of the EIB staff regulations, that the time limit for bringing proceedings laid down in Article 91(3) of the Staff Regulations offered a ‘relevant point of comparison’ and that, therefore, a three-month period ought, as a general rule, to be considered reasonable for an EIB staff member to bring an action for annulment of an EIB measure which adversely affects him.
40. However, owing to the EIB’s failure, the three-month period laid down by the Staff Regulations is necessarily an indicative period in the case of disputes between the EIB and its members of staff.
41. In that context, contrary to what the General Court held, an action brought after the expiry of that period cannot be regarded as being out of time because it has not been brought within a reasonable period, on the ground that it is important to apply the procedural rules laying down time limits strictly, since such rules quite simply are not applicable.
42. There must be either one or the other: either a specific time limit for bringing an action for annulment has been set unequivocally by a provision of European Union primary or secondary legislation, in which case it is in fact possible to disregard the circumstances of each individual case, apart from the exceptions based on the existence of force majeure or unforeseen circumstances, and to apply the procedural rules laying down time limits strictly; or, if not, it must be found that there is a legislative lacuna, in which case the court cannot entirely compensate for it, at the risk of encroaching upon the powers of the legislature, while being obliged to take into account the circumstances of each individual case. To disregard those differences, as the General Court did in the judgment of 19 June 2012, amounts purely and simply to establishing a fixed three-month time limit for bringing an action by judicial decision.
43. Finally, the justification offered by the General Court, authorising it to use an interpretation a contrario of its own case-law relating to the reasonableness of observance of a three-month period such as that laid down by the Staff Regulations, is not convincing.
44. In that regard, I would point out that, according to the General Court, the interpretation a contrario of that case-law is admissible in the present case ‘since any other interpretation of it would be neither appropriate nor compatible with the applicable general principles of European Union law [the Court refers to paragraph 22 of its judgment], the context and their purpose (see, by analogy, Case 9/56 Meroni
v High Authority
[1957 and 1958] ECR 133, 140), because only the strict application of procedural rules laying down time limits serves the requirements of legal certainty and the need to avoid any discrimination or arbitrary treatment in the administration of justice (see, to that effect and by analogy, Case C-426/10 P Bell & Ross v OHIM [2011] ECR I-8849, paragraphs 43, 54 and 55)’. (22)
45. The General Court distorted the specifically subsidiary nature of recourse to the interpretation a contrario used by the Court of Justice in Meroni
v High Authority, cited above. It is permissible to use such an interpretation only ‘when no other interpretation is appropriate and compatible with the text, the context and [the] purpose’ (23) of the rule which is the subject of that interpretation. Since observance of a reasonable period is precisely the consequence of the reconciliation of the right to effective judicial protection and the requirement for legal certainty, as was pointed out by the General Court in its judgment of 19 June 2012, the interpretation a contrario which consists in converting the indicative three-month period, applicable to disputes between the EIB and its staff members, into a fixed time limit for bringing actions certainly does not correspond to the single (and ultimate) interpretation which properly reconciles those two principles.
46. That is not the case with regard to the right to effective judicial protection, since the application of the reasonable period may permit, for the purposes of determining the admissibility of an action, the taking into account of circumstances, other than those arising from force majeure and/or unforeseen circumstances, which the application of a fixed time limit for bringing proceedings would not allow.
47. Nor is that the case as regards the principle of legal certainty since, contrary to what the EIB suggests, the application of the doctrine of a reasonable period, including the taking into consideration of the circumstances of each particular case, does not amount to calling into question indefinitely the legality of the measures adopted by that organisation. As I have already pointed out, the reasonable period also plays the role, in certain cases such as that being examined here, of a time limit for bringing proceedings, admittedly a flexible one, but a time limit for bringing proceedings all the same.
48. It is true that, from another point of view, that is to say, that of the EIB staff members, to make the admissibility of their action depend on observance of a reasonable period, which is inherently flexible, may have the effect of diminishing the foreseeability of their legal action.
49. However, I think the risk of that is clearly small. In the case of actions brought within the indicative period of three months, the case-law rightly establishes a strong presumption in favour of the applicants that the bringing of their action is reasonable. In the case of actions brought after the expiry of that indicative period, the applicants must be able to rely on the circumstances of each individual case being taken into account, not only by virtue of the application of the doctrine of a reasonable period but also of the fact that the uncertainty generated by the absence of a fixed time limit for bringing proceedings cannot be attributed to them, and the procedural risks linked to such uncertainty must, on the contrary, be borne by the organisation which caused it, in accordance with the principle of estoppel (24) or of the saying nemo auditur propriam turpitudinem allegans . (25)
50. Moreover, the interpretation a contrario used by the General Court is likewise not essential in order to avoid discrimination against the EIB staff members. Irrespective of the rather tenuous reference, made ‘to that effect and by analogy’ by the General Court to the judgment in Bell & Ross
v OHIM, in the context of an action for annulment brought pursuant to Article 230 EC, the comparability of the situation of the EIB staff members and that of the officials governed by the Staff Regulations is limited by the nature of the time limit which may be used to challenge actions brought by those two categories of persons. In the former case, a flexible period has to be applied, owing to the EIB’s omission; in the latter, it is a fixed period laid down unequivocally by the provisions of the Staff Regulations.
51. Furthermore, if we merely compare the procedural rules, that is not the only difference between those two categories of persons. Accordingly, whereas Articles 90 and 91 of the Staff Regulations provide for recourse to a preliminary administrative procedure, the proper and complete conduct of which constitutes a condition of admissibility of actions brought by officials against the institution for which they work, Article 41 of the EIB staff regulations lays down, on the contrary, an optional internal conciliation procedure, which cannot be converted into a mandatory procedure, such as that to which Articles 90 and 91 of the Staff Regulations refer, a conciliation procedure which has no effect on the time limit for bringing an action before the Courts of the European Union. (26) Moreover, if a member of the EIB staff requests the application of that procedure, the Courts of the European Union consider that the limitation period for bringing an action before them does not start to run until the conciliation procedure has been concluded, provided that the member of staff has made his request for conciliation within a reasonable time of having been notified of the act adversely affecting him and that the duration of the conciliation procedure itself is reasonable. (27)
52. It is clear, therefore, that the Courts of the European Union are fully aware of the procedural limits of the comparability there may be between the contractual regime applicable to the EIB staff members and the legislative regime of the officials of the institutions. What is more, in the case which is the subject matter of these proceedings, allowing the EIB staff members a flexible time limit for bringing proceedings, owing to the EIB’s omission, has no adverse effect on the officials of the institutions whose actions are governed by the provisions of the Staff Regulations.
53. Consequently, I consider that, by using an interpretation of the concept of reasonable period unconnected with any consideration of the specific circumstances of each case and, therefore, inconsistent with the nature of such a period, as it emerges from the case-law, the General Court erred in law in its judgment of 19 June 2012.
B – Infringement of the right to effective judicial protection affirmed by Article 47 of the Charter
54. By the second ground for review, the decision of 12 July 2012 asks the Court of Justice to ascertain whether, by finding that, where a reasonable period has been exceeded, the action is time-barred, the interpretation of the General Court might not interfere with the right to an effective judicial remedy, (28) which, it is not disputed, constitutes a general principle of European Union law, which is furthermore affirmed in Article 47 of the Charter. (29)
55. It should be pointed out, first of all, that, under Article 52 of the Charter, any limitation on the exercise of the rights and freedoms recognised by the Charter must be ‘provided for by law and respect the essence of those rights and freedoms’, and those limitations must, in particular, genuinely meet objectives of general interest and observe the principle of proportionality.
56. According to the same article, in so far as the Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’), the meaning and scope of those rights shall be the same as those laid down by the said Convention but they do not, however, prevent European Union law providing more extensive protection.
57. As rightly maintained by the appellants, the EIB and the Commission in their respective written observations, Article 6(1) ECHR, which enshrines the right of access to an independent and impartial tribunal – and to which, moreover, the Court of Justice has referred, in association with Article 13 of that Convention, when interpreting Community law before the Charter was adopted or was binding (30) – is relevant. (31)
58. According to the case-law of the European Court of Human Rights relating to the interpretation of Article 6(1) ECHR, the ‘right to a court’, of which the right of access is one aspect, is not absolute; it is subject to limitations permitted by implication, in particular where the conditions of admissibility of an appeal are concerned, since by its very nature it calls for regulation by the State, which enjoys a certain margin of appreciation in this regard. (32)
59. According to that same case-law, however, these limitations must not restrict or reduce a litigant’s access in such a way or to such an extent that the very essence of the right is impaired, and such limitations will not be compatible with Article 6(1) if they do not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved. (33)
60. In that context, although the European Court of Human Rights points out that the rules on time limits for actions are designed to ensure the proper administration of justice and compliance with, in particular, the principle of legal certainty, and that those concerned must expect those rules to be applied, (34) the Court nevertheless determines whether the effectiveness of access to the courts sought by Article 6(1) ECHR might not be obstructed, for example, by a ‘particularly strict’ (35) or ‘excessively restrictive’ (36) interpretation or application of those procedural rules which precludes an examination of the substance of an action or constitutes ‘a kind of barrier which prevents the individual having his dispute settled on the merits by the competent court’. (37)
61. Therefore, the fact of having been able to employ a legal remedy prior to the action being declared inadmissible does not always satisfy the requirements of Article 6(1) ECHR, and it is also necessary for the degree of access to be sufficient to guarantee the individual the ‘right to a court’ in the light of the principle of the supremacy of law in a democratic society’. (38)
62. Thus, the European Court of Human Rights examines, for example, whether a time limit for bringing an appeal on a point of law is sufficient in the light of the appellant’s domicile, (39) whether the refusal of a national court to extend a time limit previously fixed by law for bringing an appeal might not be unreasonable, (40) whether the rules for calculating the time limits for bringing actions are sufficiently clear and consistent (41) or whether errors committed by the national courts in the calculation of those time limits might not adversely affect the effectiveness of access to a court, provided for in Article 6(1) ECHR. (42)
63. Since Article 47 of the Charter implements in European Union law the protection afforded by Article 6(1) of the ECHR, (43) it is without any doubt for the Court of Justice to ensure a degree of control over the interpretation and application by the General Court of the procedural requirements laid down by European Union law, including those relating to the time limits for bringing proceedings, which is at least equivalent to that exercised in that area by the European Court of Human Rights under Article 6(1) ECHR with regard to the courts of the parties to that Convention. (44)
64. In general, and even if none of the interested parties which have lodged observations in the present case have expressed it in those terms, the fact that the European Court of Human Rights has been able to find an infringement of Article 6(1) ECHR in cases relating to the interpretation and/or application of usually short time limits for bringing proceedings cannot mean a contrario that the Court of Justice is denied the opportunity to establish the infringement of Article 47 of the Charter by the Courts of the European Union, in the light of the time limits, usually longer, afforded to individuals for challenging before the Courts of the European Union the legality of an act of an institution or body of the European Union which adversely affects them.
65. In that context, whereas the cases previously mentioned which have been brought before the European Court of Human Rights concerned the interpretation or application of procedural time limits previously fixed by law, it is not in dispute in the present case that the appellants, owing to the EIB’s procedural omission, could expect the General Court – and before it the Tribunal – not to apply a fixed time limit for bringing proceedings to their action, but merely, on the contrary, to apply the doctrine of a ‘reasonable period’ in order to adjudicate on the admissibility of their action.
66. Although it is conceivable that the appellants could in fact have brought their action within a period of three months, they could not, however, expect, owing to the necessarily indicative nature of that period in relation to disputes between the EIB and its staff members, that the exceeding of that period by a few seconds would be regarded by the General Court, by reference to case-law concerning the strict interpretation of the procedural rules regarding time limits for bringing proceedings fixed by European Union law, as unreasonable, furthermore without the taking into consideration of all the circumstances of the case beyond situations of force majeure and unforeseen circumstances.
67. As for the allegation that the appellants were negligent in that they waited until a few minutes before the expiry of the three-month period before bringing their action, that is wholly unfounded since, as I have already stated, that time limit is only an indicative time limit and does not exempt the Courts of the European Union from examining, including of its own motion, whether that action has not been brought within a reasonable period, in the light of all the circumstances of the individual case, beyond situations of force majeure and unforeseen circumstances.
68. Consequently, by ruling as it did and by confirming the order of the Tribunal in Arango Jaramillo and Others v EIB, which declared that the action brought by the appellants was inadmissible on the ground that it was out of time, the General Court, in my view, interpreted and applied the concept of a reasonable period too strictly and therefore infringed the right to an effective judicial remedy, as guaranteed by Article 47 of the Charter, thus depriving the appellants of the right to have their action examined on the merits.
III – Whether the unity or consistency of European Union law is affected
69. One or more errors of law on the part of the General Court, even glaring errors, do not necessarily affect the unity or
the consistency of European Union law, within the meaning of Article 62b of the Statute of the Court of Justice.
70. Conversely, the four considerations on which the Court of Justice based its finding that the infringement of the two procedural rules at issue in M
v EMEA, (45) had ‘affect[ed] the unity and
consistency of [European Union] law’ (46) are neither minimal nor exhaustive since, considered as a whole, (47) they led the Court to find a combined infringement of the two normally alternative conditions for a review of a decision of the General Court.
71. The fact remains that considerations essentially the same as those highlighted by the Court of Justice in its judgment in M
v EMEA, are, in my view, also present in this case.
72. Thus, first, the judgment of 19 June 2012 is the first decision by which the Court of Justice has confirmed that non-observance of an indicative time limit for bringing an action for annulment entails, on the basis of an interpretation a contrario of the case-law and of a strict interpretation of the procedural rules relating to time limits, the inadmissibility of that action of the ground that it is out of time. That judgment could therefore constitute a precedent for future cases. (48)
73. Secondly, in considering that the Courts of the European Union were under no obligation to take into consideration all the circumstances of the individual case in order to examine whether the exceeding of a reasonable period was unreasonable, the General Court, in my view, departed from the very essence of the concept of a reasonable period, enshrined in European Union law, and its judgment was inconsistent.
74. Third, the two principles (reasonable period and right to an effective judicial remedy) which, in my view, the General Court infringed, do not pertain solely to the law relating to the civil service but are applicable regardless of the matter at issue. (49)
75. Finally, fourth, those two principles occupy an important position in the European Union legal order. (50) In particular, the right guaranteed by Article 47 of the Charter has, in accordance with Article 6 TEU, the same legal status as the Treaties. Furthermore, that right forms an integral part of every legal order based on the principle of the rule of law, such as that of the European Union, (51) and therefore, within that order, is at the very least ‘constitutional’ in nature. (52)
76. For all these reasons, I consider that, by its judgment of 19 June 2012, the General Court at the very least affected the consistency of European Union law.
IV – The extent of the annulment
77. According to the first paragraph of Article 62b of the Statute of the Court of Justice, if the Court of Justice finds that the decision of the General Court affects the unity or consistency of European Union law, it is to refer the case back to the General Court, which is to be bound by the points of law decided by the Court of Justice. In referring the case back, the Court of Justice may also state which of the effects of the decision of the General Court are to be considered definitive in respect of the parties to the litigation. In exceptional cases, the Court of Justice can itself give final judgment if, having regard to the result of the review, the outcome of the proceedings flows from the findings of fact on which the decision of the General Court was based.
78. It follows that the Court cannot confine itself to finding that the unity or consistency of Community law is affected without stating the implications of that finding as regards the dispute in question.(53)
79. In the present case, I consider that the judgment of 19 June 2012 should be annulled in that it confirmed, on appeal, the inadmissibility of the action brought before the Tribunal and ordered the appellants to pay the costs of the proceedings before it.
80. On the other hand, since the effect on the consistency of European Union law stems from the infringement of the two principles which has just been declared, it is clear that the Court of Justice cannot itself give final judgment on the case brought, at first instance, before the Tribunal by the appellants.
81. In the context of a review, no provision of the Statute of the Court of Justice or of its Rules of Procedure requires the Court to refer the case back to the General Court rather than directly to the Tribunal in order to allow the parties to express their views on the substance of the dispute.
82. As is apparent from paragraph 30 of the judgement in M
v EMEA, the appeal court may, under certain conditions, give a ruling on the substance of an action, even though the proceedings at first instance were confined to a plea of inadmissibility which that court upheld. That may be so where, first, the setting aside of the judgment or order under appeal necessarily brings about a definitive resolution in respect of the substance of the action in question or, second, the examination of the substance of the action for annulment is based on arguments exchanged by the parties in the appeal proceedings following reasoning adopted by the court at first instance.
83. It is clear that that is not the situation in the present case and that the General Court will only be able to find, in line with the position it adopted after the Court of Justice referred back to it, following review, the case of M
v EMEA, (54) that it, in its turn, can only refer the case back to the Tribunal in order for the Tribunal to rule on the claims for annulment made by the appellants.
84. However, and in order to respect the hierarchy intended by the Treaties within the judicial institution of the European Union, it is for the General Court alone to adopt that decision after having heard the parties, in accordance with its Rules of Procedure. (55) I therefore suggest that the Court of Justice refer the case back to the General Court.
V – Costs
85. Under Article 195(6) of the Rules of Procedure of the Court of Justice, where the decision of the General Court which is subject to review was given under Article 256(2) TFEU, the Court of Justice is to make a decision as to costs.
86. Since there are no specific rules governing the sharing of costs in the case of a review, and in accordance with what the Court held in M
v EMEA, cited above, (56) I propose that parties who lodged pleadings or written observations in these proceedings bear their own costs relating to the review procedure.
VI – Conclusion
87. In the light of the foregoing, I propose that the Court should:
(1) Declare that the judgment of the General Court of the European Union (Appeal Chamber) of 19 June 2012 in Case T-234/11 P Arango Jaramillo and Others
v EIB affects the consistency of European Union law in so far as that court, as a court of appeal, interpreted the term ‘reasonable period’ – applicable in the context of an action brought by staff members of the European Investment Bank (EIB) for annulment of a measure adopted by that bank adversely affecting them – as a period which, if exceeded, has the effect of making the action out of time and, therefore, inadmissible, without the Courts of the European Union being required to take account of the particular circumstances of the individual case, an interpretation which is also excessively strict and consequently infringes the right to an effective judicial remedy, as guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union.
(2) Set aside the judgment of the General Court of the European Union.
(3) Refer the case back to the General Court of the European Union.
(4) Order the appellants, the European Investment Bank, the Portuguese Government and the European Commission to bear their own costs in relation to the review procedure.
(1) .
(2)  –	Case C-334/12 RX Arango Jaramillo and Others
v EIB, ECR (‘the decision of 12 July 2012’).
(3)  – T-234/11 P, ECR (‘the judgment of 19 June 2012’).
(4)  –	The first occasion gave rise to the judgment of 17 December 2009 in Case C-197/09 RX-II M
v EMEA
[2009] ECR I-12033.
(5)  –	Order of 4 February 2011 in Case F-34/10 Arango Jaramillo and Others
v EIB .
(6) – See paragraphs 22 and 25 of the judgment and the case-law cited.
(7)  –	The General Court mentions, in that regard, its judgment in Joined Cases T-7/98, T-208/98 and T-109/99 De Nicolo
v EIB
[2001] ECR-SC I-A-49 and II-185, paragraph 107; the order of the President of the Court in Case T-275/02 D
v EIB
[2002] ECR-SC I-A-259 and II-1295, paragraph 33, and also, by analogy, the order in Case T-33/99 Méndez Pinedo
v ECB
[2000] ECR-SC I-A-63 and II-273, paragraphs 33 and 34.
(8) – OJ 2012 L 265, p. 1.
(9) – Commission observations, paragraph 13.
(10) – Ibid., paragraph 18.
(11) – Idem.
(12)  –	See, as regards the absence of any indication of a time limit for raising a new plea before the Court, Case T-32/91 Solvay v Commission
[1995] ECR II-1825, paragraph 40. The Commission’s appeal against that judgment, including paragraphs 40 and 41 of its statement of reasons, was dismissed by the Court as unfounded; see Joined Cases C-287/95 P and C-288/95 P Commission
v Solvay [2000] ECR I-2391, paragraphs 31, 73 and 74.
(13)  –	See also, to that effect, the judgment in Case T-192/99 Dunnett and Others
v EIB
[2001] ECR II-813, paragraphs 52 and 53, and the order in Case T-20/01 Cerafogli and Others
v ECB
[2001] ECR-SC I-A-235 and II-1075, paragraph 61.
(14)  –	Case C-478/10 RX.
(15) – Case T-157/09 P Marcuccio
v Commission .
(16) – Ibid., paragraphs 42 to 47.
(17) – Order in Case 126/76 DEP Dietz
v Commission
[1979] ECR 2131, paragraph 1.
(18)  –	Order in Joined Cases 9/65 and 58/65 Acciaierie San Michele
v High Authority
[1968] ECR 383, paragraph 11.
(19) – Case C-70/88 Parliament
v Council [1990] ECR I-2041.
(20) – Ibid., paragraphs 21 to 26.
(21)  –	Emphasis added.
(22) – Paragraph 27 of the judgment of 19 June 2012.
(23) – Fourth paragraph, p. 140 (emphasis added).
(24)  –	A principle also recognised in European Union law: see, inter alia, Case 44/84 Hurd
[1986] ECR 29, paragraph 57; Joined Cases C-189/02 P, C-202/02 P, C-205/02 P to C-208/02 P and C-213/02 P Dansk Rørindustri and Others
v Commission
[2005] ECR I-5425, paragraphs 82 to 88, and Case T-223/ 00 Kyowa Hakko Kogyo and Kyowa Hakko Europe v Commission
[2003] ECR II-2553, paragraphs 34 and 53.
(25)  –	Considered as a ‘rule of law’ by the General Court in its judgment in Case T-177/95 Barraux and Others v Commission
[1996] ECR-SC I-A-541 and II-1451, paragraph 55.
(26)  –	Case T-37/10 P De Nicola
v EIB
[2012] ECR, paragraphs 75 to 77 and the case-law cited.
(27)  –	Dunnett and Others
v EIB, paragraph 56.
(28)  –	See point 2 of the operative part and paragraph 16 of the decision.
(29)  –	See, inter alia, Case C-385/07 P Der Grüne Punkt – Duales System Deutschland v Commission [2009] ECR I-6155, paragraphs 177 and 178 and the case-law cited, and the order in Case C-314/10 Pagnoul
[2011] ECR, paragraph 24.
(30)  –	See, inter alia, the judgments in Case 222/84 Johnston
[1986] ECR 1651, paragraph 18, and Case C-506/04 Wilson
[2006] ECR I-8613, paragraphs 46 and 47 and case-law cited.
(31) – See, in that regard, inter alia, Case C-279/09 DEB
[2010] ECR I-13849, paragraph 32. That Article 47 of the Charter has its origin in both Articles 6 and 13 of the ECHR is noted inter alia in the Explanations relating to the Charter (OJ 2007 C 303, p. 17, especially pp. 29 and 30).
(32)  –	See, inter alia, judgments of the European Court of Human Rights: Edificaciones March Gallego S.A. v. Spain, 19 February 1998, § 34, Reports of Judgments and Decisions
1998-I; L’Erablière A.S.B.L. v. Belgium, no. 49230/07, § 35, ECHR 2009 (extracts); and Anastasakis v. Greece, no. 41959/08, § 24, 6 December 2011).
(33) – Idem.
(34)  –	See, inter alia, judgments of the European Court of Human Rights: Pérez de Rada Cavanilles v . Spain, 28 October 1998, § 45, Reports
1998-VIII; Díaz Ochoa v . Spain, no. 423/03, § 44, 22 June 2006; Assunção Chaves v . Portugal, no. 61226/08, § 77, 31 January 2012; and Radeva v . Bulgaria, no. 13577/05, § 26, 3 July 2012.
(35)  –	Judgment of the European Court of Human Rights: UTE Saur Vallnet v . Andorra, no. 16047/10, § 43 and the case-law cited, 29 May 2012.
(36) – See, for example, judgment of the European Court of Human Rights: Díaz Ochoa, cited above, § 50.
(37)  –	Judgment of the European Court of Human Rights: L’Erablière A.S.B.L., cited above, § 35.
(38)  –	See, to that effect, inter alia, judgments of the European Court of Human Rights: Golder v. the United Kingdom, 21 February 1975, §§ 34 and 35, Series A no. 18, and Geouffre de la Pradelle v. France, 16 December 1992, § 34, Series A no. 253-B. See also, Radeva, cited above, § 27.
(39)  –	Judgment of the European Court of Human Rights: Tricard v. France, no. 40472/98, § 31, 10 July 2001.
(40)  –	Judgment of the European Court of Human Rights: Kaufmann v. Italy, no. 14021/02, §§ 34 to 39, 19 May 2005.
(41)  –	Judgment of the European Court of Human Rights: Geouffre de la Pradelle, cited above, §§ 29 to 35.
(42)  –	Judgments of the European Court of Human Rights: Radeva, cited above, §§ 27 to 29; see also, to that effect, UTE Saur Vallnet, cited above, §§ 41 to 43.
(43) – Case C-386/10 P Chalkor v Commission
[2011] ECR I-, paragraph 51, and Case C-199/11 Otis and Others
[2012] ECR, paragraph 47. See also, to that effect, DEB, paragraph 32.
(44)  –	Of course, unlike the cases examined by the European Court of Human Rights, it is a question here of interpreting not the internal procedural legislation of the Member States but European Union law, a task which lies first and foremost with the Court of Justice.
(45)  –	So far as this point is relevant, I would point out that, in that case, the Court held, on the one hand, that the General Court had misinterpreted the expression ‘where the state of the proceedings permits’, within the meaning inter alia of Article 61 of the Statute of the Court of Justice, and infringed, in that regard, Article 13 of the annex to that Statute, by ruling as to the substance of a claim for compensation for non-material damage, although the proceedings at first instance were limited to a plea of inadmissibility, (paragraph 37 of that judgment), and, on the other hand, regardless of the ‘error of law’ previously indicated, that, by ruling on the substance of the case without giving the European Medicines Agency the opportunity effectively to make known its point of view on the applicant’s claim for damages, the General Court had ‘infringed the rule that the parties should be heard, which derives from the requirements associated with the right to a fair hearing’ (see paragraphs 38 and 59 of the same judgment).
(46)  –	Ibidem, point 1 of the operative part and paragraphs 66 and 67 of the judgment. Emphasis added.
(47) – Ibid., paragraph 66.
(48)  –	See the review judgment in M
v EMEA, paragraph 62. Although limited, the precedent established by that judgment may concern not only disputes between the EIB and its staff, but also those concerning the European Central Bank (ECB). Moreover, it is conceivable that similar reasoning may be used by the General Court in the context of the admissibility of actions for compensation brought by officials against their institution.
(49) – Review judgment in M
v EMEA, paragraph 64.
(50)  –	Ibid., paragraph 65.
(51) – Article 2 TEU.
(52)  –	See, inter alia, to that effect, points 176 and 177 of my Opinion in Case C-354/04 P Gestoras Pro Amnistía and Others
v Council
[2007] ECR I-1579.
(53) – Review judgment in M
v EMEA, paragraph 69.
(54)  –	Case T-12/08 P-RENV-RX M
v EMEA
[2010] ECR II-3735, paragraph 38.
(55) – Article 121c(1) of the Rules of Procedure of the General Court.
(56)  –	Review judgment in M
v EMEA, paragraph 73.