ORDER OF THE COURT OF FIRST INSTANCE (Fifth Chamber)

15 December 1995

Case T-131/95

Nicolaos Progoulis

v

Commission of the European Communities

‛Confirmatory act — New and material fact — Inadmissibility — Costs — Costs unreasonably caused’

Full text in French II-907

Application for:

annulment of a decision of the Commission rejecting a request submitted by the applicant for review of his classification.

Decision:

Application dismissed.

Abstract of the Order

Following his establishment, the applicant was appointed to Grade B 3, Step 3, by decision of 2 March 1984.

In 1991 the applicant requested a review of that classification and submitted a complaint against the appointing authority's decision rejecting his request. The complaint was rejected and the applicant did not bring proceedings in that regard.

In 1994 the applicant submitted a fresh request for a review of his classification, referring in particular to the judgment of the Court of First Instance of 28 September 1993 in Joined Cases T-103/92, T-104/92 and T-105/92 Baiwir and Others v Commission [1993] ECR II-987. The appointing authority rejected both that request and the complaint subsequently submitted by the applicant.

Admissibility

The Court points out that the contested decision confirms the classification decision of 2 March 1984. An official cannot be permitted to challenge the conditions of his initial recruitment once the decision establishing those conditions has become definitive. Only the existence of new and material facts may justify the submission of a request for a review of such a decision (paragraphs 33 to 39).

See: 190/82 Blomefield v Commission [1983] ECR 3981, para. 10; 127/84 Esly v Commission [1985] ECR 1437, para. 10

As regards the question whether a judgment annulling an act can constitute a new and material fact, the Court notes that the only persons concerned by the legal effects of such a judgment, apart from the parties, are persons to whom the annulled act itself is of direct concern, and that a judgment can constitute a new fact only in relation to those persons (paragraphs 41 to 45).

See: 43/64 Müller v EEC, EAEC and ECSC Councils [1965] ECR 385, 397; 34/65 Mosthafv EAEC Commission [1966] ECR 521. 531: 125/87 Brouw v Court of Justice [1988] ECR 1619, para. 13

Since the applicant was not directly concerned by the act annulled by the judgment in Baiwir and Others v Commission on which he relies and since, moreover, that judgment bears no relation to the nature of the present dispute, the fact relied on cannot be regarded as a new and material fact in the light of which the procedure for review may be reopened.

The applicant alleges that an official of the Commission was granted a reclassification of his career bracket which, he maintains, constitutes another new and material fact. Since the applicant had already relied on that reclassification during the pie-litigation procedure which he initiated in 1991, it cannot be regarded as a new fact. Consequently, it cannot cause time to run afresh for the purposes of submitting a complaint or bringing proceedings (paragraphs 46 to 49).

Operative part:

The application is dismissed as inadmissible.