Judgment of the Court (Fifth Chamber) of 22 December 1993. - Franz Eppe v Commission of the European Communities. - Official - Transfer - Redeployment procedure - Interests of the service. - Case C-354/92 P.



European Court reports 1993 Page I-07027



Summary

Parties

Grounds

Decision on costs

Operative part



Keywords

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1. Appeals ° Pleas in law ° Mere repetition of pleas and arguments relied on before the Court of First Instance ° Inadmissible ° Dismissed

(Rules of Procedure of the Court of Justice, Art. 112(1)(c))

2. Appeals ° Pleas in law ° Not possible to rely on pleas withdrawn at first instance or declared inadmissible when that finding is not itself contested

3. Appeals ° Pleas in law ° Incorrect assessment of the facts ° Inadmissible ° Dismissed

(EEC Treaty, Art. 168a; EEC Statute of the Court of Justice, Art. 51)

Summary

1. It follows from Article 112(1)(c) of the Rules of Procedure of the Court that an appeal which merely reiterates the pleas in law and arguments put forward at first instance in fact constitutes a request for re-examination of the application bought before the Court of First Instance, a matter which falls outside the jurisdiction of the Court of Justice, thus rendering those pleas and arguments inadmissible.

2. An appeal may not be based on pleas in law which the appellant expressly withdrew in the proceedings before the Court of First Instance or pleas declared inadmissible by that Court, where the finding that they are inadmissible is not itself contested.

3. Under Article 168a of the Treaty and the first paragraph of Article 51 of the Statute of the Court of Justice, an appeal may be based only on pleas as to the infringement by the Court of First Instance of rules of law, to the exclusion of any appraisal of the facts. A fresh assessment of the facts thus falls outside the jurisdiction of the Court of Justice. A plea which merely challenges the assessment of the facts made by the Court of First Instance is therefore inadmissible.

Parties

In Case C-354/92 P,

Franz Eppe, an official of the Commission of the European Communities, represented by G. Vandersanden, of the Brussels Bar, with an address for service in Luxembourg at the Chambers of A. Schmitt, 62 Avenue Guillaume,

appellant,

APPEAL against the judgment of the Court of First Instance of the European Communities (Fifth Chamber) of 10 July 1992 in Joined Cases T-59/91 and T-79/91 Eppe v Commission [1992] ECR II-2061, seeking to have that judgment set aside,

the other party to the proceedings being:

Commission of the European Communities, represented by G. Valsesia, of its Legal Service, acting as Agent, assisted by D. Waelbroeck, of the Brussels Bar, with an address for service in Luxembourg at the office of N. Annecchino, of its Legal Service, Wagner Centre, Kirchberg,

THE COURT (Fifth Chamber),

composed of: J.C. Moitinho de Almeida, President of the Chamber, D.A.O. Edward, R. Joliet, G.C. Rodríguez Iglesias and F. Grévisse, Judges,

Advocate General: M. Darmon,

Registrar: L. Hewlett, Administrator,

having regard to the report of the Judge-Rapporteur,

after hearing the Opinion of the Advocate General at the sitting on 29 September 1993,

gives the following

Judgment

Grounds

1 By application lodged at the Court Registry on 11 September 1992, Franz Eppe brought an appeal against the judgment delivered by the Court of First Instance on 10 July 1992 in Joined Cases T-59/91 and T-79/91 Eppe v Commission [1992] ECR II-2061 on the ground that that judgment was vitiated by a breach of procedure adversely affecting his interests and was in breach of Community law.

2 The Court of First Instance found in its judgment (paragraphs 3 to 21) that:

° On 9 January 1990 Mr Eppe, an official in Grade A 4, a Head of Unit in the Commission' s Directorate-General for Agriculture ( DG VI ), had a meeting with his Director-General at which he expressed his general dissatisfaction in the unit of which he was in charge and asked to be assigned to other duties more appropriate to his experience and knowledge. On 12 February 1990, he confirmed the views put forward at that meeting by a memorandum to his Director-General.

° Following that memorandum, Mr Eppe had a meeting with his Director-General on 14 March 1990 during which he stated that, in principle, he was agreeable to being transferred. Three months later, on 21 June 1990, the applicant sent to his Director-General, through official channels, a memorandum indicating that he withdrew his agreement in principle to a transfer unless it entailed his promotion to Grade A 3.

° In a memorandum of 25 June 1990, the Director-General of DG VI set out the reasons for, and the objectives of, a reorganization of the Directorate General. Paragraph 4 of Annex I to that memorandum proposed the creation of a post of Adviser to Directorate VI.G (EAGGF). On 6 August 1990, Mr Eppe protested to his Director-General about the proposal submitted by the latter to the Director-General for Personnel and Administration for changes to be made to the organization chart of DG VI, in so far as that proposal involved a change of assignment for him. Accordingly, on 18 September 1990, he asked the Secretary-General of the Commission not to make any immediate change to the organization chart as far as he was concerned, so as to avoid any comparison with the transfer of another Head of Unit "concerning the disciplinary nature of which the public was in no doubt". On 15 October 1990 the Secretary-General replied that he had suggested to the Director-General of DG VI that he should differentiate between the two cases.

° On 17 October 1990 the Commission approved the new organization chart of DG VI. By memorandum of 6 November 1990, the Director-General of DG VI confirmed to Mr Eppe that he had been appointed Adviser to DG VI.G, EAGGF. The memorandum stated that the appointment implied no judgment concerning the manner in which he had discharged the duties of Head of Unit VI-BI-4. On 9 November 1990, the Director-General for Personnel and Administration gave him confirmation of the Commission decision of 17 October 1990.

° On 17 November 1990, Mr Eppe submitted a complaint against the Commission decision of 17 October 1990. In it he claimed in particular that the Commission had not observed, with respect to him, the principle, referred to in the memorandum from the Director-General of 25 June 1990 concerning the redeployment procedure, that officials would be asked to volunteer.

° Taking the view that he had been transferred against his will and seeking to "uphold his honour", on 14 January 1991 the applicant applied for his former post. By memorandum of 14 February 1991, the secretary of the Advisory Committee on Appointments informed the applicant that his application was not to be taken into consideration on that occasion. On 25 February 1991, Mr Eppe lodged a further complaint concerning: first, the Commission' s decision to publish the vacancy notice for his former post; secondly, the appointment of Mr V. to that post; and, thirdly, the rejection of his candidature for that post.

3 Mr Eppe' s complaints were rejected, whereupon he brought two actions before the Court of First Instance, the first seeking annulment of the Commission decision of 17 October 1990 changing the organization chart of DG VI and the second the annulment of the Commission' s decisions to issue Vacancy Notice No COM/164/90, to appoint Mr V. to that post and to reject his own candidature.

4 Both actions were dismissed by the judgment under appeal.

5 Reference is made to the Report of the Judge-Rapporteur for a fuller account of the procedure, the pleas in law and the arguments of the parties, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.

6 The appeal is based on five pleas in law, the first alleging a breach of procedure and the other four alleging errors of law.

7 In his reply, the appellant states that he also maintains all the pleas in law and arguments put forward in his actions before the Court of First Instance.

8 Article 112(1)(c) of the Rules of Procedure of the Court provides that an appeal is to contain the pleas in law and arguments relied on. In Case C-244/92 P Kupka-Floridi v Economic and Social Committee [1993] ECR 2041 the Court held that an appeal which merely reiterates the pleas in law and arguments put forward at first instance in fact constitutes a request for re-examination of the application bought before the Court of First Instance, a matter which falls outside the jurisdiction of the Court of Justice. That also applies where the pleas in law and arguments put forward at first instance are repeated purely by reference.

Breach of procedure

9 Mr Eppe claims that, both at the pre-litigation stage and before the Court of First Instance, he contended that the procedure provided for in Article 29 of the Staff Regulations and that laid down by the decision of 19 July 1988 on the procedure for filling middle-management posts (COM (88) PV 928) had not been observed.

10 He therefore claims, in the first part of his first plea in law, that the Court of First Instance should have taken those arguments into consideration.

11 In paragraph 40 of the contested judgment, the Court of First Instance noted that the applicant had stated "that his action was based, as regards the procedure, solely on the failure to observe the redeployment procedure and that he did not intend alleging infringement of any other procedure, such as that provided for in Article 29 of the Staff Regulations ...".

12 In paragraph 96 of the contested judgment, the Court of First Instance found "that the reference in the applicant' s reply, in relation to the plea in law concerning infringement of Article 25, to the injury suffered by him through non-application to him of the procedure laid down in the Commission decision of 19 July 1988 constitutes a new plea in law, which is inadmissible by virtue of Article 48(2) of the Rules of Procedure (see also paragraph 40 above)."

13 In an appeal, the appellant may not rely on pleas in law which he expressly withdrew in the proceedings before the Court of First Instance or on pleas declared inadmissible by that court, where the finding that they are inadmissible is not contested.

14 Consequently, the first part of the first plea in law must be rejected as inadmissible.

15 In the second part of his first plea in law, Mr Eppe criticizes the reasoning of the Court of First Instance in paragraphs 113 to 115 of its judgment, in particular paragraph 114, regarding the comparative examination of his merits and those of the other candidates.

16 That argument, which criticizes the reasoning of the Court of First Instance, cannot be relied on in an allegation of breach of procedure.

17 It will therefore be appropriate to examine the second part of the first plea in law at the same time as the plea alleging that the refusal to appoint the appellant to his former post was unlawful.

Breach of the obligation to state reasons for the decision

18 In the first part of his second plea in law, Mr Eppe claims that the Court of First Instance erred by failing to consider the legality of the decision of 17 October 1990 concerning his transfer in relation to the procedure laid down by the abovementioned decision of 19 July 1988.

19 It need merely be pointed out here that, for the reasons set out above (paragraphs 11 to 13), the arguments relating to that decision are inadmissible.

20 In the second part of his second plea, the appellant criticizes the manner in which, in paragraph 93 of the contested judgment, the Court of First Instance described the legal basis of the decision to transfer him.

21 In paragraphs 92 to 95 of the contested judgment, the Court of First Instance analysed the appellant' s allegation that there was an inconsistency, as regards the reasons stated, between the letters of 6 and 9 November 1990, in order to establish whether or not any such inconsistency meant that the contested decision did not contain a sufficient statement of the reasons on which it was based.

22 It is made clear in paragraph 93 that "the redeployment procedure was not applicable to the applicant, contrary to the impression that might have been given by the letter of 6 November 1990", but that "any imprecision in that regard was remedied by the Commission first by its letter of 9 November 1990 and secondly by its reply to the applicant' s complaint, in which it clearly indicated that 'that procedure was intended only for the mobility of staff not holding the rank of Head of Unit' ". The Court of First Instance thus concluded in paragraph 95 that "since any imprecision in the letter of 6 November 1990 was remedied in the course of the administrative procedure, there can be no question of any infringement of the second paragraph of Article 25 of the Staff Regulations."

23 Since that reasoning clearly indicates the grounds on which the Court of First Instance rejected the arguments put forward by the appellant, the complaints concerning breach of the obligation to state the reasons for the decision must be rejected.

24 It follows that the second part of the second plea must be rejected as unfounded.

Breach of the principle of non-discrimination

25 The appellant maintains that he was the victim of discrimination, in so far as the procedure adopted to fill the post allocated to him did not follow the course laid down for that purpose in the abovementioned decision of 19 July 1988. That procedure was, however, followed in filling another management post created when the organization chart of DG VI was changed.

26 It need merely be pointed out here that, for the reasons set out above (paragraphs 11 to 13), the third plea in law must be dismissed as inadmissible.

Illegality of the refusal to appoint the appellant to his former post

27 The appellant maintains that the rejection of his candidature for his own post was illegal on the ground that, in the absence of his most recent staff report, there was no valid comparative examination between his merits and those of the other candidates.

28 In paragraphs 113 to 115 of the contested judgment, the Court of First Instance found that the absence of the appellant' s latest staff report was not prejudicial to him since the Advisory Committee on Appointments and the appointing authority had sufficient information ° referred to in detail in paragraph 114 ° to enable them reasonably to reject the appellant' s candidature for his previous post.

29 Under Articles 168a of the EEC Treaty and the first paragraph of Article 51 of the Statute of the Court of Justice of the EEC, an appeal may be based only on pleas as to the infringement by the Court of First Instance of rules of law, to the exclusion of any appraisal of the facts. However, in this plea the appellant does not allege any infringement of any legal provision and merely contests the assessment of the facts by the Court of First Instance.

30 The fourth plea must therefore be rejected as inadmissible.

Breach of the duty to have regard to the interests of officials

31 The appellant considers that the Court of First Instance erred in law by stating, in paragraph 67 of the contested judgment, that the Commission had discharged its duty to have regard to the interests of its officials.

32 In paragraph 67 of its judgment, the Court of First Instance held that, by sending its letters of 15 October and 6 November 1990, the Commission had satisfied the requirements imposed by its duty to have regard to the interests of officials, in particular by informing the appellant that the contested decision implied no judgment as to the manner in which he had discharged his previous duties.

33 Here, the appellant is merely challenging the assessment of the facts made by the Court of First Instance in paragraph 67 of the contested judgment. However, for the reasons set out in paragraph 29 above, such an assessment falls outside the jurisdiction of the Court of Justice.

34 Accordingly, the fifth plea in law is likewise inadmissible.

35 It follows from all the foregoing considerations that the appeal must be dismissed.

Decision on costs

Costs

36 The appellant states that in both actions before the Court of First Instance, he applied for an order that the Commission pay all the costs. He considers that the Court of First Instance could have made such an order in view of the Commission' s vexatious attitude towards him and asks that those circumstances be taken into account by the Court of Justice.

37 However, the appellant has not established in what way the Commission unreasonably or vexatiously caused him to incur costs. His request cannot therefore be granted.

38 Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs. Since the appellant has been unsuccessful, he must be ordered to pay the costs.

Operative part

On those grounds,

THE COURT (Fifth Chamber)

hereby:

1. Dismisses the appeal;

2. Orders the appellant to pay the costs.