OBSERVATIONS OF MR ADVOCATE GENERAL

VERLOREN VAN THEMAAT

SUBMITTED ON 22 SEPTEMBER 1983 ( 1 )

1. Procedural aspects of Article 102 of the Rules of Procedure

Applications for the interpretation of judgments, and in one case of an order, as provided for in Article 102 of the Rules of Procedure, have been made in only nine other cases (Case 5/55 Assider v High Authority [1954 to 1956] ECR 135; Case 70/63 A High Authority v Collotti [1965] ECR 275; Case 110/63 A Willame v Commission [1966] ECR 287; Case 13/67 Becher v Hauptzollamt München [1968] ECR 196; Case 17/68 Reinarz v Commission [1970] ECR 1 ; Case 24/66 A Getreidehandel v Commission [1973] ECR 1599; Joined Cases 41, 43 and 44/73 SA Generale Sucrière v Commission [1977] ECR 445; Case 40/70 Sirena v Eda [1971] ECR 69, and Case 9/81 Williams [1983] ECR 3301). In five cases judgments were delivered, after the oral procedure, on the applications for interpretation and in three cases an order was given. In six cases the Advocate General gave an opinion together with a statement of reasons and in two cases he communicated his views to the Court in some other way. Article 102 of the Rules of Procedure does not in fact contain any binding provisions regarding the way in which the parties are to be given an “opportunity” to submit their observations or as to the way in which the Advocate General is to be heard. It is also impossible to infer any compulsory rules on the matter indirectly from the other provisions of Title III to the Rules of Procedure. However, it seems logical in view of the scheme of the Rules of Procedure to answer those two procedural questions jointly. Article 59 of the Rules of Procedure is based on the idea that a presentation of a formal opinion by the Advocate General forms part of the oral procedure. If, as in this case, the parties are given an opportunity to submit their observations otherwise than at an oral hearing, it seems obvious that the Advocate General's views should not be delivered in the form of an opinion in open court but should be presented to the Court in some other, not necessarily written, form. In this case I consider it appropriate, on account of the procedural and substantive complexity of the case, to set out my views in writing.

2. The judgment to be interpreted

In Case 206/81 Mr Alvarez sought the annulment of his probation report and, in conjunction with that, of the European Parliament's decision to dismiss him, and also compensation for the damage which he allegedly suffered as a result of being dismissed.

In its judgment of 6 October 1982, the Court (Third Chamber) annulled the decision of 26 June 1981 to dismiss Mr Alvarez and ordered the European Parliament to pay the costs. There is no decision in the operative part in relation to the claims for the annulment of the probation report and for damages. In paragraph 5 of the decision it was held that not all the documents underlying the dismissal decision had been communicated to Mr Alvarez arid that that amounted to a failure to observe the adversary procedure laid down in Article 34 (2) of the Staff Regulations; from paragraph 6 of the judgment it is clear that the decision to dismiss Mr Alvarez was annulled because he “was precluded from giving his comments on all the complaints made about him, which led to the dismissal decision ... because the grounds upon which it is based were established by a procedure which was not of an adversary nature. A further reason which makes annulment of the decision necessary is that, in this particular case, it was especially important to communicate the supplementary memoranda to the applicant since the probation report itself was incomplete as regards his qualifications and the appraisal of his performance and moreover was unusually laconic”.

According to Article 7, the claim for damages was rejected “since the applicant has been unable to demonstrate the existence of any damage which would not be remedied merely by annulment of the dismissal decision”.

3. The factual developments arising out of the judgment

After the judgment, the European Parliament submitted to Mr Alvarez all the documents in question for his comments, in order to rectify the procedural omissions established by the Court. However, Mr Alvarez refused to accept those documents, since in his view the judgment had decided that they could not be used against him. He referred to the judgment of the Court in Joined Cases 45 and 49/70 (Bode v Commission [1971] ECR 465) and took the view that a procedural defect could not later be remedied. Moreover, he considered that after the annulment of the decision dismissing him, he should not reenter the service as a probationary official but that he should be assigned different duties.

The European Parliament rejected the applicant's submissions and allowed him an additional period in which to submit his comments on the documents communicated to him; on 6 December 1982, it then dismissed Mr Alvarez for the second time. On 27 December 1982, Mr Alvarez once again brought an action before the Court (Case 347/82) challenging that second dismissal, and at the same time seeking to have its operation suspended. On 17 January 1983, that application for suspension of the operation of the decision was dismissed in an interim order of the President of this Chamber on the basis, in particular, of the finding (in paragraphs 23 and 24) that, by communicating all the relevant documents to the applicant for his comments, the Parliament had complied with the judgment of 6 October 1982.

Following that interim order, on 3 March 1983 Mr Alvarez lodged the present application for the interpretation of the judgment of 6 October 1982. Upon receiving the written observations of the European Parliament on that application, the Second Chamber arranged a further hearing, confined solely to the question of the admissibility of the application for interpretation. The written submissions of the parties had not given sufficient consideration to that point, in particular in the light of the previous decisions of the Court.

4. The questions for interpretation

The three questions that the applicant has submitted to the Court for interpretation may be summarized as follows :

(a) Following the annulment of the dismissal decision, is the applicant entitled to the whole of his salary and other allowances or may deductions be made in respect of his income from other work?

(b) Did the annulment of the dismissal oblige the Parliament to assign the applicant to a post in his category corresponding to his grade or was it sufficient for the Parliament to pay his salary and other allowances for the period following that annulment?

(c) Following the annulment of his dismissal as a probationary official, has Mr Alvarez once again become a probationary official or is he to be regarded as an established official?

5. Admissibility

5.1. The European Parliament cast doubt on the admissibility of the application for interpretation on the ground that the same arguments and submissions were used as in the proceedings pending in Case 347/82. A:; the object of this application, namely the interpretation of the judgment concerning the first dismissal decision, is clearly different from that in Case 347/82, it does not seem to me that doubts as to admissibility are justified on that ground. What is more, the legal consequences of an interpretation of the Court's judgment, as requested by the applicant, would not necessarily be the same as those of a favourable decision on his application contesting the second dismissal decision, and he would be given satisfaction more quickly if he obtains a favourable interpretation of the judgment of the Court in Case 206/81. Consequently, it cannot be maintained that the applicant has no legal interest in an interpretative judgment of the Court.

5.2. In order to determine whether this application is admissible, I therefore attach greater importance to the previous judgments of the Court on the question. In particular, I consider relevant to this case the abovementioned judgments of the Court in Cases 5/55 and 110/63 and the opinion of Mr Advocate General Lagrange in Case 5/55, based inter alia on an extensive comparative legal study. On the basis inter alia of the text of the present Article 40 of the Statute of the Court, I agree with Mr Advocate General Lagrange that, in order to be admissible, an application for interpretation must at least fulfil the following requirements : (a) The meaning or scope of a judgment must be in doubt (it is explained in the judgment in Case 5/55 that this requirement is satisfied if the parties give different meanings to the wording of the judgment to be interpreted, which is the position here). (b) The doubt must relate to an issue decided by the judgment, without the rights arising out of the judgment (which in principle means the operative part, but account must also be taken of those paragraphs of the judgment which explain and thus determine the operative part) being restricted, extended or amended by the requested interpretation. (c) There must be a real obscurity or ambiguity in the judgment. On the basis of the wording of the present Article 102 of the Rules of Procedure, the following requirement may also be added: (d) The application must specify the passages (of the judgment in question) of which interpretation is sought. In its abovementioned judgments in Cases 5/55, 70/63 A, 110/63 A, 24/66 A and 13/67, the Court has itself laid down several other general conditions for the admissibility of an application for interpretation. One that is of particular importance in this case is the explanation in Case 110/63 A that: (e) The application must concern the interpretation of the judgment and not its application to a given set of fact, such as the question of the “defendant's right to deduct certain sums from the amount to be paid to the applicant”. On the other hand, the Court stated in that case that “the question whether the judgment to be interpreted is or is not ambiguous or obscure appertains to the examination of the substance of the application”. After carrying out that examination, however, the Court reached the conclusion that the relevant part of the judgment was “neither ambiguous nor obscure” and that therefore “it cannot give rise to an interpretative judgment”. From that statement it is evident that the dividing line between inadmissibility and dismissal of the substantive application is ultimately not entirely clear in every respect in the previous judgments of the Court.

6. Examination of the questions for interpretation in the light of the requirements set out in the abovementioned judgments

Comparison of the questions of interpretation raised by the applicant with the requirements developed in the judgments cited above, yields the following result:

(a) The question whether the applicant is entitled to the whole of his salary and other allowances following the annulment of the decision dismissing him or whether deductions may be made in respect of his income from other work was not raised in the judgment in Case 206/81, so that requirement (b) was not complied with. That question also concerns the application of the judgment to a given set of facts and therefore also fails to meet requirement (e). That part of the application must therefore be rejected.

(b) The question whether, following the annulment of the dismissal, the Parliament was obliged to assign the applicant to a post corresponding to his category and grade or whether it was enough for it to pay his salary and other allowances for the period following the annulment should be dismissed, because the judgment was not really obscure or ambiguous in that regard. In Case 110/63 A, which is comparable in this respect, the Court stated: “as a result of the annulment of the contested decision the applicant is deemed to be still in the service of the defendant and subject to the conditions governing his contract of employment”. Whilstno such statement appears in the judgment in respect of which an interpretation is requested, the fact remains that that legal consequence automatically ensues in Mr Alvarez's case too so that the judgment in Case 206/81 itself cannot be considered obscure in that regard. By its nature, the annulment of a dismissal decision results in the restoration of the status quo ante. That means that since the applicant was serving as a probationary official, after the annulment of his dismissal he was once again a probationary official in the defendant's service, subject to the conditions governing the contract whereby he was appointed a probationary official.

(c) The third question raised by the applicant, namely whether following the annulment of his dismissal as a probationary official he was once again a probationary official or whether he is to be regarded as an established official, should be dismissed on the same grounds as those put forward in relation to his second question.

For the sake of completeness I would also observe that the application for interpretation could also simply be dismissed in its entirety because it does not specify the passages of the judgment in question of which interpretation is sought, as required by Article 102 of the Rules of Procedure. The' second and third questions, as well as the first question, could also be dismissed because they relate to matters which were not expressly covered by the judgment in Case 206/81. However, in the interests of rationalizing procedure, I consider it more suitable to dismiss the application on the grounds stated above. If that does not lead to the withdrawal of the application in Case 347/82, it will at any rate simplify the procedure in that case.

7. Final remarks

From this analysis I conclude that this application for interpretation should be dismissed. Because of the abovementioned unclear dividing line between dismissal on the ground of inadmissibility and dismissal of the application following an examination of the substance of the judgment, I propose that in the grounds for the decision the Court should follow the wording used in the judgment in Case 110/63 A stating that the application “cannot give rise to an interpretative judgment”. Only the first question submitted to the Court is in fact clearly inadmissible on the grounds set out above, and even that conclusion can be drawn only on the basis of a substantive analysis of the judgment in question.

So far as costs are concerned, there may be some doubt as to whether Chapter 5 of Title II of the Rules of Procedure is in fact applicable in this case, since that chapter is part of a different title from that concerned here. In accordance with the case-law of the Court (for example, the comparable Case 110/63 A) and having regard to the nature of proceedings such as these (which are a continuation of the previous action, to which the application for interpretation relates), I nevertheless take the view that that chapter is in fact applicable and that, in view of Articles 69 and 70, the applicant can therefore be ordered to pay only his own costs. Such a solution to the question of costs also seems to me to be reasonable inasmuch as the application for interpretation was based on an action in which judgment was given against the Parliament and where the Parliament was therefore ordered to pay the costs. The fact that the application for interpretation must itself be dismissed does not alter that fact to such an extent that it would be unreasonable to order the Parliament to pay its own costs. That is certainly the case if, as I have suggested, in the grounds for the decision, clarification of the scope of the previous judgment is given in relation to two of the applicant's questions.

( 1 ) Translated from the Dutch.