ORDER OF THE COURT OF FIRST INSTANCE (Appeal Chamber)
9 September 2009
Case T-375/08 P
Bart Nijs
v
Court of Auditors of the European Communities
(Appeal – Civil service – Officials – Decision of the Court of Auditors to renew the mandate of its Secretary General – Decision not to promote the appellant in the 2004 promotion year – Appeal partly inadmissible and partly manifestly unfounded)
Appeal: against the order of the Civil Service Tribunal of the European Union (Second Chamber) in Case F-108/07 Nijs v Court of Auditors [2008] ECR-SC I-A-1-0000 and II-A-1-0000 seeking the annulment of that order.
Held: The appeal is dismissed. Mr Bart Nijs is to bear his own costs and to pay those incurred by the Court of Auditors of the European
Communities in the present proceedings.
Summary
1.      Procedure – Action before the Civil Service Tribunal – Article of the Rules of Procedure of the Court of First Instance having
the same normative content as an article of the Civil Service Tribunal – Applicability of that article of the Rules of Procedure
of the Civil Service Tribunal to a case brought prior to the entry in force of its Rules of Procedure
(Rules of Procedure of the Court of First Instance, Art. 111; Rules of Procedure of the Civil Service Tribunal, Art. 76; Council
Decision 2004/752, Art. 3(4))
2.      Procedure – Decision taken by way of reasoned order – Conditions – Hearing of the Advocate General – Not a formal requirement
in proceedings before the Civil Service Tribunal
(Rules of Procedure of the Court of First Instance, Art. 111; Council Decision 2004/752, Art. 3(4))
3.      Procedure – Action before the Civil Service Tribunal – Possibility of a second exchange of written pleadings – Discretion
of the Civil Service Tribunal
(Statute of the Court of Justice, Annex I, Art. 7(3))
4.      Procedure – Application initiating proceedings – Formal requirements – Brief summary of the pleas in law on which the application
is based
(Rules of Procedure of the Court of First Instance, Art. 44(1)(c))
5.      Appeal – Statement of pleas in law and legal arguments in the application – Plea not sufficiently detailed – Reference to
the annexes as a whole – Inadmissibility
(Rules of Procedure of the Court of First Instance, Art. 138(1)(c))
6.      Appeal – Pleas in law – Plea against the Civil Service Tribunal’s decision as to costs – Inadmissible where all other pleas
are rejected
(Statute of the Court of Justice, Annex I, Art. 11(2))
1.      In a situation where the Civil Service Tribunal, while following the requirements laid down by the case-law, has simultaneously
applied Article 111 of the Rules of Procedure of the Court of First Instance and Article 76 of the Rules of Procedure of the
Civil Service Tribunal in a case brought prior to the entry in force of the latter Rules, the applicant party cannot reasonably
claim that it was not in a position to know, at the time when it brought its action, the rules on the basis of which its action
was dismissed. As far as their application to proceedings before the Civil Service Tribunal is concerned, the normative content
of Articles 111 and 76 is strictly identical. Since the text of the Rules of Procedure of the Court of First Instance was
published in the Official Journal of the European Union on 30 May 1991, everyone is deemed to be aware of it.
(see paras 21, 23-24, 28)
See: 161/88 Binder [1989] ECR I‑2415, para. 19
2.      Since the application mutatis mutandis of Article 111 of the Rules of Procedure of the Court of First Instance to proceedings before the Civil Service Tribunal
until the entry in force of its own Rules of Procedure necessarily involves taking into account the internal organisation
of the Court of First Instance, that provision cannot require the intervention of an Advocate General in proceedings before
the Civil Service Tribunal. Neither the EC Treaty nor Decision 2004/752 establishing the European Union Civil Service Tribunal
nor the Statute of the Court of Justice provides for the Civil Service Tribunal to be assisted by advocates general. Furthermore,
there is also no provision for a member of the Civil Service Tribunal to be appointed by that Tribunal to perform the duties
of an advocate general in certain particular cases.
(see para. 22)
See: T-222/07 P Kerstens v Commission [2008] ECR-SC I-B-1-0000 and II-B-1-0000, paras 49 and 50
3.      It is clear from Article 7(3) of Annex I to the Statute of the Court of Justice that the Civil Service Tribunal is under no
obligation to ask the parties to conduct a second exchange of written pleadings. The decision to request such an exchange
falls within the discretion of the Tribunal, which it exercises according to its own need for information. Consequently, the
wording of that provision is not capable of creating a legitimate expectation on the part of the applicant that he will be
able to submit a second written pleading after the application.
(see para. 27)
4.      An application satisfies the requirements laid down in Article 44(1)(c) of the Rules of Procedure of the Court of First Instance
only if the subject-matter of the dispute and the summary description of the pleas in law relied on are sufficiently clear
and precise to enable the defendant to prepare its defence and the Court to rule on the action, both conditions being cumulative.
Consequently, where the application does not allow the Court to understand the arguments put forward and thus to assess their
merits, the claim that it is comprehensible for the other party because of facts known to that party is irrelevant.
(see paras 35-37)
5.      In an appeal before the Court of First Instance against a decision of the Civil Service Tribunal, an argument alleging that
the Civil Service Tribunal committed an error of law in not ruling on a plea does not satisfy the requirements of clarity
and precision laid down in Article 138(1)(c) of the Rules of Procedure of the Court of First Instance where the appellant
does not explain clearly and precisely what the alleged error involves. In that respect, a general reference to documents
other than the appeal cannot compensate for the lack of the essential elements of the legal arguments required by that provision.
Furthermore, it is not for the Court of First Instance to seek and identify in the annexes the pleas and arguments on which
it may consider the action to be based, since the annexes have a purely evidential and instrumental function.
(see paras 41, 57)
See: T‑154/98 Asia Motor France and Others v Commission [1999] ECR II‑1703, para. 49; T‑209/01 Honeywell v Commission [2005] ECR II‑5527, para. 57 and the case-law cited therein
6.      It is clear from Article 11(2) of Annex I to the Statute of the Court of Justice that no appeal shall lie regarding only the
amount of the costs or the party ordered to pay them. It follows that, in a situation where all the other pleas in an appeal
against a decision of the Civil Service Tribunal have been rejected, claims concerning the alleged unlawfulness of the Tribunal’s
decision concerning the party ordered to pay the costs must be declared manifestly inadmissible.
(see paras 71-72)
See: C‑301/02 P Tralli v ECB [2005] ECR I‑4071, para. 88 and the case-law cited therein