ORDER OF THE CIVIL SERVICE TRIBUNAL (Second Chamber)

26 June 2008

Case F-5/07

Bart Nijs

v

Court of Auditors of the European Communities

(Civil service – Officials – Article 44(1)(c) of the Rules of Procedure of the Court of First Instance – Summary of the pleas in law in the action – Time-limit for complaints – New fact – Manifest inadmissibility)

Application: brought under Articles 236 EC and 152 EA, in which Mr Nijs seeks annulment of the appointing authority’s decision to appoint the applicant’s superior to his current post, annulment of the result, in so far as it concerns the applicant, of competition CC/LA/1/99 and all connected and/or subsequent decisions, annulment of the decision of the polling office of the Court of Auditors of 17 May 2006 to reject the applicant’s challenge to the ballot of 2, 3 and 4 May 2006, annulment of the result of the Court of Auditors’ Staff Committee elections of 2, 3 and 4 May 2006 and all connected and subsequent decisions, annulment of the decisions not to promote the applicant, and to promote Mr G in 2006, and compensation for the material and non-material loss he claims to have suffered.

Held: The action is dismissed as partly manifestly inadmissible and partly manifestly unfounded. The applicant is ordered to pay all the costs.

Summary

1. Procedure – Admissibility of actions – Assessment by reference to the rules in force when the application was lodged

(Rules of Procedure of the Civil Service Tribunal, Art. 76)

2. Procedure – Application initiating proceedings – Formal requirements

(Statute of the Court of Justice, Art. 19, third para., and Annex I, Art. 7(1) and (3); Rules of Procedure of the Court of First Instance, Art. 44(1)(c))

3. Officials – Actions – Act adversely affecting an official – Definition – Decisions taken before the applicant took up his duties – Negative influence on the applicant’s interests not proven – Not included

(Staff Regulations, Arts 90(2) and 91(1))

4. Officials – Actions – Disputes concerning elections to the Staff Committee

(Staff Regulations, Arts 90 and 91)

5. Officials – Promotion – Consideration of comparative merits

(Staff Regulations, Art. 45)

1. Although the rule laid down in Article 76 of the Rules of Procedure of the Civil Service Tribunal that the Tribunal may, by way of an order, dismiss an action which appears manifestly bound to fail is a procedural rule which, as such, applies to all proceedings pending before the Tribunal at the time when it enters into force, the same is not true of rules on the basis of which the Tribunal may, under that article, regard an action as manifestly inadmissible, and which may only be those applicable on the date when the action is brought.

(see para. 22)

See:

F-60/07 Martin Bermejo v Commission [2007] ECR-SC I-A-1-0000 and II-A-1-0000, para. 25

2. Under Article 44(1)(c) of the Rules of Procedure of the Court of First Instance, the application initiating proceedings must, in particular, state the subject-matter of the dispute and contain a summary of the pleas in law on which it is based. Those particulars must be sufficiently clear and precise to enable the defendant to prepare his defence and to enable the Civil Service Tribunal to give judgment in the action, if appropriate without having to seek further information. In order to guarantee legal certainty and the sound administration of justice, it is necessary, for an action to be admissible, that the basic legal and factual particulars relied on are indicated, at least in summary form but coherently and intelligibly, in the text of the application itself.

That is a fortiori the case since, under Article 7(3) of Annex I to the Statute of the Court of Justice, the written stage of the procedure before the Tribunal comprises, in principle, only one exchange of written pleadings, unless the Tribunal decides otherwise. Furthermore, under the third paragraph of Article 19 of the Statute, which applies to the procedure before the Tribunal in accordance with Article 7(1) of Annex I to the Statute, the official must be represented by a lawyer. The main role of the latter, as a legal representative, is to ensure that the heads of claim of the application are based on sufficiently intelligible and coherent arguments, specifically in view of the fact that the written stage of the procedure before the Tribunal comprises, in principle, only one exchange of written pleadings.

An application in which the facts are expressed in a confused and disorganised manner, preventing the reader from properly associating them with a head of claim in the application or with one of the pleas raised in support of it, does not satisfy the requirement for clarity and precision.

Similarly, an action by an official which does not precisely identify the decisions being challenged and thus does not satisfy the requirements laid down in Article 44(1)(c) of the Rules of Procedure of the Court of First Instance is manifestly inadmissible.

(see paras 25-28, 40, 45, 50)

See:

T-72/92 Benzler v Commission [1993] ECR II‑347, paras 16, 18 and 19; T-85/92 De Hoe v Commission [1993] ECR II‑523, para. 20; T‑154/98 Asia Motor France and Others v Commission [1999] ECR II‑1703, para. 42; T-277/97 Ismeri Europa v Court of Auditors [1999] ECR II-1825, para. 29

3. Only measures producing binding legal effects of such a kind as to affect the applicant’s interests by bringing about a distinct change in his legal position constitute acts adversely affecting him pursuant to Articles 90(2) and 91(1) of the Staff Regulations, and such measures are those which definitively establish the position of the institution.

That does not apply to the appointment, within the same institution, of another official, where that appointment has been made prior to the applicant taking up his duties, or to a decision on the composition of appeal committees for an assessment period, or to a decision to promote a third official, if the applicant cannot prove that that resulted in the decision not to promote him or that, at the very least, it was such as to harm his career prospects in some way.

(see paras 35-36, 44, 47)

See:

T-43/04 Fardoom and Reinard v Commission [2005] ECR-SC I‑A‑329 and II‑1465, para. 26; T-171/05 Nijs v Court of Auditors [2006] ECR-SC I‑A‑2‑195 and II‑A‑2‑999, paras 86 and 96

F-78/07 Boudova and Others v Commission [2008] ECR-SC I‑A‑000, para. 31; F-123/06 Timmer v Court of Auditors [2008] ECR-SC I-A-1-0000 and II-A-1-0000, para. 42

4. It is not for the appointing authority to decide the composition of the Staff Committee. However, even if every person entitled to vote has an interest in ensuring that the representatives of his organisation are elected in conditions and according to voting arrangements which comply with the provisions of the Staff Regulations governing voting procedure in this context, an action brought against an alleged decision of that authority deciding the composition of the Staff Committee must be dismissed as manifestly inadmissible since it has no subject-matter.

(see para. 43)

See:

F‑71/05 Milella and Campanella v Commission [2007] ECR-SC I‑A‑1-0000 and II-A-1-0000, para. 47 and the case-law cited therein

5. The appointing authority has a wide discretion in assessing the merits to be taken into consideration in a decision on promotion under Article 45 of the Staff Regulations, and review by the Community judicature is confined to determining whether, having regard to the various considerations which might have influenced the administration in making its assessment, it has remained within reasonable bounds and has not used its power in a manifestly incorrect way. A court cannot therefore substitute its assessment of the qualifications and merits of the candidates for that of the appointing authority.

However, the discretion thereby conferred on the administration is circumscribed by the need to undertake a comparative consideration of the candidatures with care and impartiality, in the interest of the service and in accordance with the principle of equal treatment. In practice, consideration of the comparative merits of candidatures must be undertaken on a basis of equality, using comparable sources of information.

To that end the appointing authority has the power under the Staff Regulations to consider the merits of the candidates for promotion, as provided for in Article 45 of the Staff Regulations, according to the procedure or method it deems most appropriate.

(see paras 52-54)

See:

62/75 De Wind v Commission [1976] ECR 1167, para. 17; 282/81 Ragusa v Commission [1983] ECR 1245, paras 9 and 13

T-76/92 Tsirimokos v Parliament [1993] ECR II‑1281, para. 21; T‑557/93 Rasmussen v Commission [1995] ECR-SC I‑A‑195 and II‑603, para. 20; T-157/98 Oliveira v Parliament [1999] ECR‑SC I‑A‑163 and II‑851, para. 35; T-187/98 Cubero Vermurie v Commission [2000] ECR-SC I‑A‑195 and II‑885, para. 59; T-188/01 to T-190/01 Tsarnavas v Commission [2003] ECR-SC I‑A‑95 and II‑495, para. 97; T-241/02 Callebaut v Commission [2003] ECR-SC I‑A‑215 and II‑1061, para. 22; T-330/03 Liakoura v Council [2004] ECR-SC I‑A‑191 and II‑859, para. 45; T-216/03 Tenreiro v Commission [2004] ECR-SC I‑A‑245 and II‑1087, para. 50