Opinion of Mr Advocate General Léger delivered on 25 March 1999. - Spyridoula Celia Alexopoulou v Commission of the European Communities. - Appeal - Action declared manifestly unfounded or manifestly inadmissible - Officials - Classification in grade. - Case C-155/98 P.



European Court reports 1999 Page I-04069



Opinion of the Advocate-General

1 This appeal is brought against an order (1) by which the Court of First Instance dismissed, on the basis of Article 111 of its Rules of Procedure, as manifestly inadmissible or lacking any foundation in law (2) the action brought by the appellant, a Commission official.

2 The action brought before the Court of First Instance on the substance of the case related to the application of Article 31(2) of the Staff Regulations of Officials of the European Communities (`the Staff Regulations'), which concerns the classification in grade of officials.

3 According to that provision the appointing authority may make exceptions to the principle laid down in Article 31(1) of the Staff Regulations whereby officials in Category A or the Language Service are to be recruited to the starting grade of their category or service. Those exceptions are provided for within the limits of a proportion of the posts to be filled, without any other specific condition being laid down in the text.

Facts and procedure

4 The facts of the case, as established in its absolute discretion by the Court of First Instance, (3) are as follows: the appellant, who had initially been recruited by the Commission on 16 March 1989 as a member of temporary staff in Grade A 7, Step 1, was, after passing an internal competition, appointed as a probationary official in Grade A 7, Step 5, with effect from 1 December 1993.

5 Since the appellant received no reply when she challenged that decision of classification in grade, she sought to have the decision annulled by the Court of First Instance, which, by judgment of 5 October 1995 (`Alexopoulou I'), (4) granted her application.

Alexopoulou I

6 Although the Court of First Instance noted that, in accordance with settled case-law, the decision to classify an official in a particular grade on the basis of Article 31(2) of the Staff Regulations comes within the scope of a `wide discretionary power' of the administration, (5) it none the less took the view that the appointing authority is required in special circumstances, such as where a candidate has exceptional qualifications, to make a specific assessment of the possible application of that provision.

It added that such an obligation arises in particular `where the specific needs of the department require the recruitment of a specially qualified official and therefore justify resort to Article 31(2) of the Staff Regulations (see, to that effect, De Santis v Court of Auditors (6)) or where the person recruited possesses exceptional qualifications and requests the application of those provisions'. (7)

7 The Court of First Instance subsequently dismissed the Commission's argument that, by decision of 1 September 1983 on the criteria applicable to appointment in grade and classification in step upon recruitment (`the decision of 1 September 1983'), it had waived the discretion conferred upon it by Article 31(2) of the Staff Regulations, on the ground that that decision was contrary to the Staff Regulations in that it did not allow the appointing authority to appoint an official to a grade higher than the starting grade. (8)

8 It therefore annulled the contested decision of appointment as being vitiated by an error of law, since the Commission had refused that appointment to the higher grade solely on the ground that the decision of 1 September 1983 precludes it, without making a specific assessment of the appellant's qualifications pursuant to Article 31(2) of the Staff Regulations.

9 It should be noted that that judgment, which was interpreted by many officials as a modification of the case-law on the application of Article 31(2) of the Staff Regulations, has led to a very large number of requests for reclassification. (9) Following the decisions taken on the complaints filed within the time-limits, some 80 actions were brought before the Court of First Instance.

The `pilot' judgment in Barnett v Commission (10)

10 This is the first judgment in which the Court of First Instance ruled on one of those actions brought as a result of Alexopoulou I.

11 It applies the case-law cited above. After noting the very wide discretion vested in the appointing authority and the limited powers of judicial review in this matter, the Court pointed out that, in the circumstances of the particular case, `in the exercise and within the limits of its very wide power of assessment, the appointing authority found ... that the applicant did not have exceptional qualifications'. (11)

12 That judgment adds, I believe, only one element to the analysis of Alexopoulou I: any exceptional qualifications that a candidate may possess must be assessed `not by comparison with the population as a whole, but in relation to the average level of qualification of successful candidates in competitions, who represent a group of people who are already very rigorously selected ...'. (12)

The contested order

13 In order to take account of Alexopoulou I, the Commission amended its decision of 1 September 1983 by decision of 7 February 1996 (13) (`the decision of 7 February 1996'), Article 2(1) of which confers on the appointing authority the right to use the discretionary power laid down in Article 31(2) of the Staff Regulations `where the specific needs of the service are such that the official to be recruited has to be particularly well-qualified or where the person recruited has exceptional qualifications'.

14 It is also in the light of that judgment and following a fresh application from the appellant to be reclassified that the appointing authority reconsidered her position under the Staff Regulations and adopted a fresh decision on 8 January 1996 (`the classification decision'), classifying her in Grade A 7, Step 5, with effect from 1 December 1993.

15 The contested order stems from the action brought by the appellant against the Commission decision rejecting her complaint against that classification decision, since she sought to take further steps in the proceedings despite the fact that the Registrar of the Court of First Instance had communicated to her a copy of the judgment in Barnett, delivered during those second Alexopoulou proceedings.

16 The Court of First Instance dismissed the application on the basis of Article 111 of its Rules of Procedure.

17 In rejecting the first part of the plea for annulment - alleging breach of Article 31(2) of the Staff Regulations - as being manifestly lacking any foundation in law, the Court of First Instance first of all pointed out that both the wording and the purpose of that provision indicated that the possibility of using it is only an option available to the appointing authority, which is not in any way obliged to use it. (14)

18 It went on to state that while certain situations, such as those envisaged in Alexopoulou I, require the appointing authority nevertheless to undertake a specific assessment of the qualifications and practical experience of the person concerned in the light of the criteria set down in Article 31(2) of the Staff Regulations, that obligation to make a specific assessment cannot necessarily extend so far as a decision to classify the person in the higher grade, since the appointing authority remains in any event free to take such a decision or not, without judicial review being able to take the place of its assessment, in accordance with Klinke and Barnett. (15)

19 Examining the application of those criteria to the present situation, the Court of First Instance noted that `the Commission has in fact made an assessment of the possible application to the applicant of Article 31(2) of the Staff Regulations', (16) and it cannot be accused of a manifest error of assessment in its final decision not to classify the appellant in Grade A 6. (17)

20 The second part of the plea - alleging infringement by the Commission of its decision of 1 September 1983 - was dismissed as also manifestly lacking any foundation in law, as the Court noted that, by that decision, as amended as a result of Alexopoulou I, `the Commission simply pointed out that, under Article 31(2) of the Staff Regulations, it merely has an option to appoint an official possessing exceptional qualifications to the higher grade of the career bracket in question ... It was not under any obligation to classify an official possessing such qualifications in the higher grade.' (18)

21 The appellant's claim for annulment of the decision of 28 August 1996 rejecting the complaint of 3 April 1996 was rejected as manifestly inadmissible, on the basis of `consistent case-law', (19) according to which an action may be brought only in respect of a decision which constitutes a measure which is open to challenge. Since a decision which does no more than confirm the act or failure to act to which the complainant takes exception, such as the contested decision, does not constitute such a measure, it is not actionable.

22 Lastly, the appellant's claim for compensation for material damage was dismissed as manifestly without any foundation in law, in particular since `the applicant's application is wrongly based on the assumption that she was entitled to be classified in a higher grade when she was recruited'. (20)

The appeal

23 Two applications for leave to intervene submitted by officials who had brought actions before the Court of First Instance after delivery of the judgment in Alexopoulou I - where proceedings are stayed pending the final decision of the Court of Justice in the present proceedings - were dismissed by the President (21) because the applicants had failed to establish a direct, present interest in the result of the case.

24 The appellant's appeal against the contested order is based on four grounds, which we shall examine in turn.

First ground of appeal: defects in the statement of reasons and infringement of Article 111 of the Rules of Procedure of the Court of First Instance

25 The first part of this ground of appeal alleges that the Court of First Instance failed to state the reasons, in paragraph 57 of the contested order, for which the appellant's action was `manifestly' unfounded in law or inadmissible.

26 The Commission, however, contends that the Court of First Instance explained very clearly, by comparing the two, that the appellant's position was clearly contradicted by existing case-law, which was sufficient to establish that her argument was `manifestly' lacking any foundation in law. It adds that that method of proceeding is consistent with that already followed by the Court of First Instance in an order of 10 December 1997, (22) which became final when no appeal was lodged within the time-limits. (23)

27 After reading the contested order, I do not consider that the appellant's argument can properly prevail. The Court of First Instance did take care meticulously to state the reasons for each of its clear rejections of the appellant's pleas.

28 Thus the first plea was rejected on the basis of the case-law of the Court of Justice and the Court of First Instance which, suffice it to say, had already been referred to at length in Alexopoulou I, delivered as a result of the appellant's first action.

The Court of First Instance was therefore correct in taking the view that the appellant was already perfectly aware of the interpretation it would give to Article 31(2) of the Staff Regulations (first part of the plea), since it was already clear from, inter alia, Alexopoulou I. In those circumstances, the Court of First Instance does not seem to have been unjustified in ruling that the first part of that plea was `manifestly' lacking any foundation in law.

The second part of the plea, alleging infringement of the Commission decision of 1 September 1983, was rejected for the same reasons, since the Court of First Instance stated, in essence, that the amendment of the contested decision amounted, in fact, to merely taking into account the rule in Alexopoulou I. The appellant, who was perfectly aware of that case-law since she had initiated it, could not be unaware of the justification for that amendment. Here again, the Court of First Instance does not appear to have been wrong to reject that part of the plea as `manifestly' lacking any foundation in law.

29 While the appellant's claim for annulment of the decision of 28 August 1996 rejecting the complaint of 3 April 1996 was subsequently rejected as `manifestly inadmissible', (24) that was not without the reasons for doing so being stated. The Court of First Instance was in fact careful to refer to the terms of the case-law on which it based its assessment. (25)

30 Finally, the application for compensation for material damage was rightly dismissed as manifestly lacking any foundation, in particular as being `founded, wrongly, on the assumption that [the appellant] was entitled to be classified in a higher grade when she was recruited', (26) given that the Court of First Instance had previously demonstrated, in the contested order, that the appellant was not entitled to be so classified. (27)

31 These observations show that the Court of First Instance cannot be accused of not having stated the reasons for which the appellant's application was `manifestly' unfounded in law or inadmissible.

32 The first part of the first ground of appeal must therefore be dismissed.

33 The second part seeks to have the Court of Justice recognise that the Court of First Instance failed to make it clear, in paragraph 57 of the contested order, whether it dismissed the application as unfounded or as inadmissible.

34 After questioning the point of that ground of appeal - inasmuch as the application was ultimately dismissed in any case, whether as inadmissible or as unfounded - the Commission points out that the alternative wording of paragraph 57 is intended solely to take account of the fact that the two reasons for dismissing the application were given in turn by the Court of First Instance, according to the pleas put forward. Thus the Court of First Instance dismissed as manifestly lacking any foundation in law the first part of the plea for annulment (paragraph 44), the second part of the plea for annulment (paragraphs 46 and 47) and the claim for compensation (paragraph 56); on the other hand it dismissed as inadmissible the alternative claim for annulment examined in paragraph 50.

35 We can only endorse the Commission's interpretation of the order of the Court of First Instance: paragraph 57 of the order simply summarises all the reasons previously given by the Court of First Instance for dismissing the application and characterised in turn as manifestly inadmissible or unfounded.

36 The second part of the first ground of appeal cannot therefore be upheld.

37 The third part seeks a declaration that, contrary to Article 111 of the Rules of Procedure, the contested order does not mention the fact that the Advocate General was heard. The appellant claims that `the penalty for this breach must be the nullity of the order appealed against'. (28)

38 It should be sufficient to note in this connection, as the Commission did, (29) that the Court of First Instance is free, in accordance with Articles 17 to 19 of its Rules of Procedure, to decide that a judge be designated to perform the function of Advocate General in a particular case. The wording of Article 111 cannot be interpreted as meaning that there is an obligation to designate an Advocate General, but merely that his opinion should be taken into account where, in an appropriate case, he has been designated by the Court of First Instance, in accordance with its discretionary power. The second subparagraph of Article 2(2) of the Rules of Procedure expressly confirms, moreover, that: `References to the Advocate General in these Rules shall apply only where a Judge has been designated as Advocate General'.

39 In any event, counsel for the appellant stated, at the hearing before this court, that his client had decided not to rely on this part of the first ground of appeal.

40 In the fourth part of this ground of appeal the appellant accuses the Court of First Instance of dealing jointly, in paragraph 43, with the matter of classification of officials and that of their promotion, without stating the reasons for so doing. The appellant claims that while promotion is not in any way a personal right for officials, since it is determined on the basis of merit, their classification is, on the other hand, subject to far less flexible criteria. Thus by failing to explain in what respect the classification rules are applicable to the promotion rules, although they are based on different provisions, the order contains a defective statement of grounds.

41 By alleging that the Court of First Instance has confused the separate concepts used in the Staff Regulations of classification and promotion and has thus erroneously cited in support of a conclusion regarding classification the case-law concerning promotion, the Commission considers that the appellant is distorting the meaning of the order. (30)

42 The Commission's view is one which we can only endorse.

43 In order to reject the appellant's argument that the appointing authority committed a manifest error of assessment in refusing to appoint her at Grade A 6 and that it could essentially exercise its discretion only by appointing her at the higher grade of the career bracket, the Court of First Instance refers, in paragraph 43 of the contested order, to consistent case-law according to which `even where newly-recruited officials fulfil the conditions for classification in the higher grade, they do not thereby have a personal right to such classification'. (31)

44 That assessment by the Court of First Instance is the culmination of its reasoning concerning interpretation of Article 31(2) of the Staff Regulations. In taking the view that the appointing authority is not in any way required, on the basis of that provision, to accede to the request of officials who invoke it in order to classify them in a higher grade, the Court of First Instance cannot be accused of confusing the areas of recruitment and promotion. While it is in fact true that classification is normally of an automatic nature and precludes any subjective assessment by the appointing authority (Article 31(1) of the Staff Regulations), if that authority is obliged, in the light of special circumstances, to make an assessment of whether Article 31(2) of the Staff Regulations applies, the final decision which it will take in this connection is a matter for its absolute discretion, as the Court of First Instance pointed out in its order. In the context of that absolute discretion, the appointing authority obviously has far greater latitude than with regard to `traditional' recruitment, which is similar to the latitude it enjoys with regard to promotion. The Court of First Instance was therefore quite correct in considering it appropriate to refer by analogy to the matter of promotion.

45 The fourth part of the first ground of appeal must therefore be dismissed.

Second ground of appeal: breach of Article 31 of the Staff Regulations

46 The appellant claims that the Court of First Instance, in particular in paragraph 37, added to Article 31 of the Staff Regulations a twofold condition which it does not contain: the option of resorting to Article 31(2) of the Staff Regulations in an exceptional case and for an exceptional candidate.

47 As the Commission points out, (32) this ground of appeal in fact seeks not to make a legal criticism of the contested order but to call into question existing case-law, which the Court of First Instance has been content to apply without attaching, contrary to what the appellant alleges, any additional condition to the application of the article in question.

48 It should be sufficient, for example, to point out that it emerges from Alexopoulou I that Article 31(2) of the Staff Regulations must be interpreted as meaning that `the appointing authority is required in special circumstances, such as where a candidate has exceptional qualifications, to make a specific assessment of the possible application of that provision. Such an obligation arises in particular where the specific needs of the department require the recruitment of a specially qualified official and therefore justify resort to Article 31(2) of the Staff Regulations (see, to that effect, De Santis v Court of Auditors, cited above) or where the person recruited possesses exceptional qualifications and requests the application of those provisions'. (33)

49 The same consideration is set out in Barnett, where paragraph 49 of the judgment states that `the appointing authority is required in special circumstances, such as where a candidate has exceptional qualifications, specifically to assess the possible application of that provision'.

50 Therefore, while acknowledging that the Commission has the option to resort to Article 31(2) of the Staff Regulations `in exceptional cases, [for] an exceptional candidate', in paragraph 37 of the contested order, the Court of First Instance merely applied the existing case-law of the Court of Justice and the Court of First Instance and cannot be accused of having attached conditions to the application of that provision.

51 The second ground of appeal cannot therefore be upheld.

Third ground of appeal: failure by the Court of First Instance to make a finding on the consultations between DG IX and DG V

52 By this ground of appeal, it is argued that DG IX alone is competent to take a decision on classification but that, in order to do so, it should take account of the needs of the service within DG V, to which the appellant was assigned. The contested order fails to make a finding that DG IX consulted DG V. It therefore cannot be established with certainty, according to the appellant, that the appointing authority did not base its decision on incorrect or incomplete findings of fact.

53 In my view, without its being necessary to undertake a particularly detailed examination of this ground of appeal, the way in which it is worded shows why it should be dismissed. According to Article 51 of the EC Statute of the Court of Justice: `An appeal to the Court of Justice shall be limited to points of law'. It is therefore irrelevant, in the context of an appeal, to raise the question of the consultation asserted, since it seeks, in the appellant's own words, to ascertain the accuracy of the facts on the basis of which the contested decision was taken. These are matters within the absolute discretion of the Court of First Instance.

54 The third ground of appeal cannot therefore prevail.

Fourth ground of appeal: procedural irregularities arising from the fact that the Court of First Instance called upon the appellant to submit her observations on the judgment in Barnett

55 This ground of appeal is based on the fact that, after calling upon the appellant to submit her observations by 15 December 1997 on `the steps to be taken in the proceedings in the light of [the] judgment [in Barnett]', (34) the Court of First Instance rejected those observations which, according to the appellant, `contained new pleas in law'. (35) That rejection took the form of a letter from the Registrar of 27 January 1998 advising the appellant that `in view of the fact that the lodging of a written pleading after the lodging of the application and of the reply is not provided for in the Rules of Procedure, such observations are inadmissible. The Court of First Instance will therefore not take them into account'. (36)

56 The ground of appeal can be broken down into three parts.

57 By the first part, the Court of First Instance is accused of having harmed the legitimate expectations of the appellant. This complaint is particularly well founded, the appellant adds, because, in order to avoid exposing itself to this ground of appeal, the Court of First Instance could have delivered a reasoned order. She considers that `the judicial value of a decision taken by the Registrar is particularly open to this kind of criticism'. (37)

58 The second part seeks a declaration that there has been an infringement of Article 48(1) and (2), first and second subparagraphs, of the Rules of Procedure of the Court of First Instance, which state that:

`1. In reply or rejoinder a party may offer further evidence. The party must, however, give reasons for the delay in offering it.

2. No new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure.

If in the course of the procedure one of the parties puts forward a new plea in law which is so based, the President may, even after the expiry of the normal procedural time-limits, acting on a report of the Judge-Rapporteur and after hearing the Advocate General, allow the other party time to answer on that plea.'

59 Finally, the Court of First Instance is accused, in the third part, of infringing the third subparagraph of Article 48(2) of its Rules of Procedure by failing to give a ruling on that point. The text in question states that: `Consideration of the admissibility of the plea shall be reserved for the final judgment'.

60 I propose that the Court dismiss each of these parts of this ground of appeal.

61 Once again the appellant has so worded her ground of appeal that it contains the reasons for dismissing it. By acknowledging that the document lodged, at the invitation of the Registrar of the Court of First Instance to submit her observations `on the steps to be taken in the proceedings in the light of [the] judgment [in Barnett]', contained new pleas in law, the appellant implicitly admits that she infringed the applicable rules of procedure. The content of the observations thus lodged went well beyond the purpose of the invitation she had received and constituted, as the Commission points out, (38) a `supplementary pleading'.

62 The invitation from the Registrar of the Court of First Instance to lodge observations in fact related only to `the steps to be taken in the proceedings in the light of [the] judgment [in Barnett]' and was not a request for supplementary observations seeking to present new pleas in law. In essence, the step taken by the Registrar of the Court of First Instance was aimed at sounding out the appellant in order to determine whether she intended to continue with her action, after taking cognisance of the Barnett judgment, which had been delivered in a case that was similar to hers, or whether she intended, for example, to request that it be suspended if an appeal were brought against that judgment. The Court of First Instance cannot therefore be accused of betraying her legitimate expectations by inviting her to submit observations and subsequently rejecting them, given that, as the Registrar informed the appellant, whilst she was asked to give her views on the `steps to be taken in the proceedings', she submitted observations `on the substance of the case'.

63 In addition, the fact that that letter was drafted by the Registrar of the Court of First Instance and did not take the form of a decision of the Court of First Instance is hardly relevant in this connection. To be convinced of this, it is sufficient to refer to the wording of Article 6 of the Instructions to the Registrar of the Court of First Instance, (39) which deals specifically with `Non-acceptance of documents and regularisation' and, in paragraph 2, expressly provides for the Registrar's power in such situations: `The Registrar shall refuse to register pleadings or procedural documents which are not provided for by the Rules of Procedure. If in doubt the Registrar shall refer the matter to the President in order for a decision to be taken'.

64 The first part of this last ground of appeal cannot therefore reasonably succeed.

65 With regard to the second part, we take this to mean that the Court of First Instance misinterpreted Article 48(2) of the Rules of Procedure by refusing to take account of the new pleas in law put forward by the appellant, despite the fact that those pleas were prompted by the delivery of the judgment in Barnett, a matter of law or of fact which came to light in the course of the procedure and was such as to justify, in accordance with the aforementioned provision, that those new pleas in law be taken into account.

66 I believe that the Court of First Instance was right to refuse to admit on that basis the production of documents applied for.

67 First of all, both the Court of First Instance and the Court of Justice have consistently held that the delivery of a judgment in the course of the procedure is not to be regarded as a matter of fact (40) which came to light in the course of proceedings.

68 Nor can the Barnett judgment be regarded as the emergence of a matter of law within the meaning of the provision of the Rules of Procedure relied on.

69 The Court of Justice does not, it is true, rule out the possibility that certain judgments may exhibit the character of matters coming to light in the course of the procedure, such as to justify the presentation of new pleas in law.

70 However, in the case-law of the Court, such a possibility concerns a priori only judgments of annulment and their effects with regard to persons directly concerned: `the Court has consistently held ... that a judgment annulling an administrative measure can constitute a new factor only as regards the persons directly affected by the measure which is annulled'. (41)

71 Conversely, it was held that `a judgment of the Court of Justice confirming the validity of an act of the Community institutions cannot be regarded as a factor allowing a new legal ground to be introduced, since such acts are presumed to be valid and the judgments [relied on] ... merely confirmed the law as known to the applicants at the time when they brought their action ...'. (42)

72 In the case with which we are dealing, the disputed judgment in Barnett, which was delivered in an action for annulment, is indeed to be seen as one of those judgments `confirming the validity of an act of the Community institutions'. As I have pointed out, (43) the Court of First Instance, applying Alexopoulou I, concluded that, in the circumstances of the case, the appellant's application for annulment of the appointing authority's classification decision could not be granted.

73 Without even giving any further consideration to whether the appellant can, in any event, rely on the effects of a judgment delivered on the subject of a decision that does not directly concern her, suffice it therefore to say that, in accordance with the consistent case-law of the Court of Justice and the Court of First Instance, a judgment such as that in Barnett, confirming the validity of an act of a Community institution, cannot be considered as a new matter such as to justify new pleas in law being introduced in the course of proceedings.

74 Since the appellant cannot rely on the delivery of the judgment in Barnett as constituting a new matter within the meaning of Article 48(2) of the Rules of Procedure of the Court of First Instance, the second part of this final ground of appeal must be dismissed.

75 With regard to the last part of the final ground of appeal, I consider that there is no need to reply to it given the response which I suggest that the Court should give to the arguments put forward in support of the first and second parts of the final ground of appeal examined above.

Application for the appointing authority to be ordered to pay damages

76 Finally, the appellant is requesting that the appointing authority be ordered to pay her damages under a number of heads: BEF 250 000 by way of provisional compensation for the damage suffered by her following the loss of her chances of promotion to Grade A 5; the remuneration she would have received if she had been promoted to Grade A 5 on 1 December 1995; that sum increased by default interest since 1 December 1995, after deduction of the BEF 250 000 claimed by way of provisional compensation.

77 Since I have proposed that the Court reject the grounds of appeal put forward by the appellant, there is no need to adjudicate on the application for damages made by the appellant.

78 Under Article 70 of the Rules of Procedure of the Court of Justice, the normal rule in proceedings between Community institutions and their servants is that the institutions are to bear their own costs. However, according to the second paragraph of Article 122 of those Rules of Procedure, that rule is not to apply to appeals unless they are brought by institutions. The general rule laid down in Article 69(2) of the Rules of Procedure should therefore be applied and the appellant should be ordered to pay the costs of the appeal.

Conclusion

79 For the foregoing reasons I suggest that the Court of Justice:

(1) dismiss the appeal; and

(2) order the appellant to pay the costs.

(1) - Order of 13 February 1998 in Case T-195/96 Alexopoulou v Commission [1998] ECR-SC II-117.

(2) - Article 111 of the Rules of Procedure reads as follows: `Where it is clear that the Court of First Instance has no jurisdiction to take cognisance of an action or where the action is manifestly inadmissible or manifestly lacking any foundation in law, the Court of First Instance may, by reasoned order, after hearing the Advocate General and without taking further steps in the proceedings, give a decision on the action'.

(3) - Paragraphs 1 to 13 of the contested order.

(4) - Case T-17/95 Alexopoulou v Commission [1995] ECR-SC II-683.

(5) - Case C-298/93 P Klinke v Court of Justice [1994] ECR I-3009.

(6) - Case 146/84 [1985] ECR 1723.

(7) - Paragraph 21 of the judgment in Alexopoulou I.

(8) - Ibid., paragraph 24.

(9) - Approximately 950, according to a Commission document appended to Ms Alexopoulou's application in Case T-195/96.

(10) - Case T-12/97 [1997] ECR-SC II-863.

(11) - Ibid., paragraph 60.

(12) - Ibid., paragraph 50, which refers to Klinke v Court of Justice and Alexopoulou I, cited above, pointing out that: `In any event, a given level of practical experience cannot confer on the person possessing it a right to be appointed at the higher grade of the career bracket concerned ...'.

(13) - Decision published in Administrative Notices of 27 March 1996.

(14) - Paragraphs 36 and 37 of the contested order.

(15) - Ibid., paragraphs 38 and 39.

(16) - Ibid., paragraph 40.

(17) - Ibid., paragraphs 41 to 43.

(18) - Ibid., paragraph 45.

(19) - Ibid., paragraph 48.

(20) - Ibid., paragraph 55.

(21) - Orders of the President of the Court of Justice of 23 July 1998 in Alexopoulou v Commission (Case C-155/98 P [1998] ECR I-4935 and I-4943).

(22) - Case T-134/96 Smets v Commission [1997] ECR-SC II-999.

(23) - Points 6 to 8 of the response.

(24) - Paragraph 50 of the contested order.

(25) - Ibid., paragraphs 48 to 50. Refer also to point 21 of this Opinion.

(26) - Ibid., paragraph 55.

(27) - Ibid., paragraphs 35 to 44.

(28) - Page 13 of the appeal.

(29) - Point 11 of its response.

(30) - Ibid., point 12.

(31) - Here reference is made, with regard to promotion, to the judgments in Case 123/75 Küster v Parliament [1976] ECR 1701, paragraph 10; Case C-119/94 P Coussios v Commission [1995] ECR I-1439, paragraph 19; and Case T-142/95 Delvaux v Commission [1997] ECR-SC II-1247, paragraph 39.

(32) - Point 13 of the response.

(33) - Paragraph 21 of the judgment in Alexopoulou I.

(34) - Letter from the Registrar of the Court of First Instance to the appellant dated 11 November 1997 (Annex 3 to the appeal).

(35) - Page 18 of the appeal.

(36) - Annex 6 to the appeal.

(37) - Ibid., p. 19.

(38) - Point 16 of the response.

(39) - OJ 1994 L 78, p. 32. These instructions were adopted on the basis of the Rules of Procedure of the Court of First Instance (Article 23).

(40) - See the order in Case T-16/97 Chauvin v Commission [1997] ECR-SC II-681, paragraphs 39, 43 and 45, which refers in particular to the judgment in Case C-403/85 rev. Ferrandi v Commission [1991] ECR I-1215, paragraph 13.

(41) - Case 125/87 Brown v Court of Justice [1988] ECR 1619, paragraph 13. See also the order in Chauvin, which refers to settled case-law of the Court of Justice: Case 43/64 Müller v Councils of the EEC, EAEC and ECSC [1965] ECR 385, 397; Case 34/65 Mosthaf v Commission of the EAEC [1966] ECR 521, 531; and the order in Case T-131/95 Progoulis v Commission [1995] ECR-SC II-907, paragraph 36.

(42) - Judgment in Case T-521/93 Atlanta and Others v EC [1996] ECR II-1707, paragraph 39, which refers to the judgment in Case 11/81 Dürbeck v Commission [1982] ECR 1251, paragraph 17.

(43) - Point 11 of this Opinion.