Opinion of Mr Advocate General Léger delivered on 2 April 1998. - European Parliament v Enrique Gutiérrez de Quijano y Lloréns. - Appeals - Proceedings before the Court of First Instance - Prohibition of new pleas - Applicability to the Court of First Instance - Officials - Interinstitutional transfer. - Case C-252/96 P.



European Court reports 1998 Page I-07421



Opinion of the Advocate-General

1. In this appeal, the European Parliament (hereinafter `the Parliament') is seeking the annulment of the judgment of the Court of First Instance granting the application of Mr Gutiérrez de Quijano y Lloréns for annulment of the decision of the Parliament of 10 January 1994 rejecting his complaint against the rejection of his candidature for a vacant post as an interpreter (hereinafter `the judgment' or `the judgment under appeal'). (1)

2. The Parliament appeals essentially on the basis of a plea of breach of Article 48(2) of the Rules of Procedure of the Court of First Instance, which prohibits the introduction of new pleas in the course of proceedings, claiming that the Court of First Instance annulled the decision of the Parliament on the basis of a plea which had not been put forward by the applicant either at the complaint stage or during the course of the written procedure.

Facts

3. It is clear from the judgment under appeal that Mr Gutiérrez de Quijano y Lloréns, who entered the service of the Parliament on 6 January 1986 as a Spanish-language interpreter, was transferred to the Court of Justice on 1 January 1990.

4. As early as 4 July 1991, he made plain his wish to be reappointed to the post he occupied at the Parliament before his transfer, by sending various letters to that effect to the relevant departments of the Parliament. Despite his insistence, he did not receive a written reply to his request until 30 July 1992, in the form of a letter from the Directorate-General for Administration of the Parliament informing him that the posts for interpreters in that institution were filled according to the `combination of languages offered' and that there were no plans to recruit staff possessing a `range of languages' such as his.

5. On 26 November 1992 the Parliament published Notice of Competition No PE/161/LA (2) for the recruitment of Spanish-language interpreters (hereinafter `the Notice of Competition'). Believing the post advertised in that notice to be identical to the one he had held for seven years and that he had even better linguistic qualifications than those required by it, Mr Gutiérrez de Quijano y Lloréns, by letter of 11 January 1993, pointed out to the Head of the Personnel Division of the Parliament that, under Article 29 of the Staff Regulations of Officials of the European Communities (hereinafter the `Staff Regulations'), transfer procedures take precedence over competition procedures, and formally repeated his request to be reinstated in that institution.

6. On 15 March 1993, the Parliament published Notice of Vacancy No 7281 concerning post No VI/LA/2759 for one Spanish-language interpreter, to be filled by way of transfer within the institution, pursuant to Article 29(1)(a) of the Staff Regulations (hereinafter `the Notice of Vacancy'). On the same date, the Parliament also published Notice of Vacancy No PE/LA/91 concerning the same post No VI/LA/2759, to be filled by way of transfer from other Community institutions, pursuant to Article 29(1)(c) of the Staff Regulations (hereinafter `the Notice of Transfer').

7. The two notices were identical as regards the duties and the qualifications and knowledge required of the candidates.

8. These included the `ability to take charge of certain coordination duties' and `specific knowledge of problems relating to the powers of the Communities', conditions which were not laid down in the Notice of Competition, although it was intended for the recruitment of officials to perform the same duties as those set out in the other two notices.

9. On 22 March 1993, Mr Gutiérrez de Quijano y Lloréns applied for the post advertised in the Notice of Transfer. That application was refused, by letter from the Parliament of 16 August 1993, on the grounds that Mr Gutiérrez de Quijano y Lloréns's former superiors were unable to approve his transfer both because, during the period when he was employed by the Parliament, his relations with his immediate superiors and with several of his colleagues were difficult, and because, during the same period, he had frequently been called to account on disciplinary matters.

10. In his complaint lodged under Article 90(2) of the Staff Regulations against that decision rejecting his request for a transfer, Mr Gutiérrez de Quijano y Lloréns, alleging that the grounds given were unfounded, inconsistent and invalid under the Staff Regulations, argued that the Notice of Transfer constituted the legal framework which the Parliament had set for itself, such that his application for transfer could be refused only on grounds of lack of the requisite qualifications.

11. That complaint was also rejected, on 10 January 1994, on two grounds, namely that the appointing authority has a wide discretion which cannot be called in question except in the case of a manifest error or misuse of powers and that, according to the judgment in Fux v Commission, (3) the appointing authority is not obliged to fill a vacant post, least of all where the fact that there is only one candidate, as in the present case, leaves the appointing authority unable to make comparisons or effect a genuine choice.

12. It is against this last decision that Mr Gutiérrez de Quijano y Lloréns brought an application for annulment before the Court of First Instance.

The judgment of the Court of First Instance

13. I will consider only those aspects of the judgment of the Court of First Instance which are of relevance to this appeal.

14. In support of his application to the Court of First Instance, Mr Gutiérrez de Quijano y Lloréns pleaded breach of Article 29(1) of the Staff Regulations, which provides as follows:

`Before filling a vacant post in an institution, the appointing authority shall first consider:

(a) whether the post can be filled by promotion or transfer within the institution;

(b) whether to hold competitions internal to the institution;

(c) what applications for transfer have been made by officials of other institutions of the three European Communities;

and then follow the procedure for competitions on the basis either of qualifications or of tests, or of both qualifications and tests. Annex III lays down the competition procedure.

The procedure may likewise be followed for the purpose of constituting a reserve for future recruitment.'

15. Mr Gutiérrez de Quijano y Lloréns argued that, by publishing the Notice of Competition before the Notice of Transfer, the Parliament had breached the order of priority established by that provision which requires the appointing authority to consider first applications for transfer from officials of other institutions before opening the procedure for an open competition. The Parliament argued that, on the contrary, the fact that the Notice of Competition was published before the Notice of Transfer did not constitute a breach of Article 29 of the Staff Regulations in this case.

16. The Court of First Instance held, first, in paragraph 42 of the judgment, that the fact that the publication of the Notice of Competition preceded the publication of the Notice of Transfer `... does not automatically constitute a breach of Article 29(1) of the Staff Regulations since, as the Parliament asserts, applications for the competition were not considered until examination of the candidatures submitted under the notice of transfer procedure had been completed ...'.

17. However, in paragraph 43 of the judgment, it pointed out that, in any event, it was clear from the case-law of the Court of Justice and the Court of First Instance that where the appointing authority decides, as in this case, to pass from one stage of the recruitment procedure to another, which follows it according to the order of priority set out in Article 29(1) of the Staff Regulations, it must do so within the legal framework which it laid down for itself by means of the vacancy notice `and ensure that the conditions set out in the aforementioned notice correspond to those set out in the notices relating to subsequent stages and, in particular, as in the present case, in the Notice of Competition ...'. (4)

18. In the present case, the Court of First Instance pointed out, in paragraphs 44 and 45 of the judgment under appeal that comparison of the notices in question revealed that they were not strictly equivalent as the case-law required. (5) It dismissed the arguments which the Parliament had put forward in response to a written question from the Court of First Instance, referred to in paragraph 39 of the judgment, to explain why it had included in the Notice of Transfer two conditions which did not appear in the Notice of Competition.

19. Having analysed the contested additional conditions, it concluded, in paragraph 46 of the judgment, that the Notice of Transfer placed stricter conditions on participation in the recruitment procedure for the post concerned than those set out in the Notice of Competition.

20. The Court of First Instance concluded, in paragraph 46, that `the appointing authority could no longer observe either the framework which it had initially decided to adopt by publishing, despite the order provided for in Article 29(1) of the Staff Regulations, Notice of Competition ... before publishing Notice of Vacancy ... and Notice of Transfer ..., or the framework it subsequently chose by publishing the two latter notices. The appointing authority made it impossible for those notices, in so far as they referred to the same post, to play their essential part, pursuant to Article 29(1) of the Staff Regulations, in the recruitment procedure, namely that of informing the persons concerned, as accurately as possible, of the conditions to be fulfilled in order to be recruited to the post in issue.'

21. In those circumstances, the Court of First Instance rejected, in paragraph 48 of the judgment, the Parliament's argument that, despite the fact that the Notice of Competition was published before the Notice of Transfer, it had in fact respected the order of priority laid down by Article 29(1) of the Staff Regulations in not considering the candidatures submitted in response to the Notice of Competition until examination of the candidatures submitted in response to the Notice of Transfer had been completed, `... since the conditions of the Notice of Competition were less strict than those of the Notice of Transfer and, therefore, the applicant's candidature was considered on the basis of a Notice of Transfer laying down stricter conditions than the Notice of Competition'.

22. The Court of First Instance concluded, in paragraph 49 of the judgment, `... that the rejection of the applicant's candidature was irregular and in breach of the provisions of Article 29(1) of the Staff Regulations which require that the conditions laid down by the notices corresponding to the various phases of the recruitment procedure remain the same'.

23. It therefore granted the application of Mr Gutiérrez de Quijano y Lloréns, holding in paragraph 51 of the judgment that: `in those circumstances, the decision of the Parliament of 10 January 1994 rejecting the applicant's complaint against the rejection of his candidature for the vacant post advertised in the notice [of transfer], must be annulled, without it being necessary to consider the other pleas relied on by the applicant or to undertake the measures of inquiry requested by him.'

The appeal

The right of the Court of First Instance to raise a `plea'

24. In support of its appeal the Parliament claims that the Court of First Instance ruled in breach of Article 48(2) of its Rules of Procedure (hereinafter `Article 48(2)'), which provides:

`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.' (6)

25. The appellant argues that, in annulling the Parliament's decision on the ground that the wording of the Notice of Transfer and that of the Notice of Competition were not the same, when that plea was never raised by Mr Gutiérrez de Quijano y Lloréns, the Court of First Instance had, of its own motion, after putting a number of questions to the Parliament, introduced a new plea in the course of proceedings.

26. That argument, alleging breach of Article 48(2) by the Court of First Instance, cannot be accepted.

27. That provision, which falls within Chapter 1 of Title 2 of the Rules of Procedure of the Court of First Instance, is one of the rules of written procedure applicable before that Court. The prohibition on the introduction of new pleas which it contains can only be read as being intended for the parties and cannot apply to the Court of First Instance itself.

28. It is sufficient to point out that pleas may, by definition, only be put forward by the parties in a case. They represent the legal expression of their claims in a form which can be put before a court. For instance, documents relating to the procedure before the Court of Justice or the Court of First Instance refer of necessity, where they concern pleas, to the fact that they are relied on by the parties. The application initiating proceedings must contain in particular `a brief statement of the grounds/a summary of the pleas in law on which the application is based'. (7)

29. Similarly, new pleas, which may not be introduced in the course of proceedings except under certain circumstances, can only be put forward by the parties, as both the wording and the rationale of the prohibition confirm.

30. Article 48 as a whole refers to the parties. Paragraph 1 provides: `In reply or rejoinder a party may offer further evidence. The party must, however, give reasons for the delay in offering it.' (8) The second subparagraph of paragraph 2 is even more illuminating, providing, as it does: `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 ... allow the other party time to answer on that plea.' (9)

31. As for the rationale underlying the prohibition, it is a generally accepted means of obliging the parties to remain within the confines established in the application initiating proceedings. This defines the subject-matter of the dispute, which cannot, without frustrating the rights of the defence, be altered by the introduction of new pleas in the course of proceedings. Moreover, where, by way of exception, it does authorise the introduction of new pleas in the course of proceedings, Article 48(2) concerns new pleas in fact or in law in support of the claims formulated in the originating application. Thus the Court of Justice has held, in connection with Article 42(2) of its Rules of Procedure, which is identical to the article in question here, that `that provision ... allows an applicant, in exceptional circumstances, to raise fresh issues in order to support conclusions set out in the document instituting the proceedings. It does not in any way provide for the possibility of an applicant's introducing fresh conclusions ...' (10)

32. The function of adjudication entrusted to it automatically makes the court a third party in relation to the dispute brought before it.

The grounds of a judgment clearly cannot be described as a new plea within the meaning of Article 48(2).

33. I conclude that the appellant cannot rely on a breach by the Court of First Instance of Article 48(2) of its Rules of Procedure, claiming that it introduced a new plea in the course of proceedings.

34. However, it is possible to construe the subject of the appeal differently, despite the way it has been formulated. In criticising the Court of First Instance for basing its judgment on the fact that the contested notices of transfer and competition were not the same, when that fact was not relied on by the applicant, it is possible that the Parliament intended to point out that the Court of First Instance has to remain within the strict confines established by the parties. (11)

35. Clearly the court must only rule on the application of the parties. As I have pointed out, it is for them to define the framework of their dispute, and the court cannot, as a matter of principle, rule on matters other than the claims made, nor, of course, rule in complete disregard of the dispute as defined in the application initiating proceedings.

36. Nevertheless, the role of the court is not a passive one and it cannot be expected to be merely `the mouthpiece of the parties'. Its task of juris dictio requires it to be able to apply to the facts put before it by the parties the relevant rules of law for the solution of the dispute. It cannot confine itself to the arguments put forward by the parties in support of their claims or it may be forced to base its decision on erroneous legal considerations.

37. This is why the rules of procedure offer the court the possibility of seeking the best possible solution in various ways while remaining within the framework of the dispute submitted to it.

38. Thus the court may, under certain circumstances, raise of its own motion a plea which has not been put forward by a party.

There is for example no question but that the Court of Justice (or the Court of First Instance), even in the absence of a challenge, would have to plead of its own motion that it had no jurisdiction if the application brought before it fell within the jurisdiction of the Court of First Instance (or the Court of Justice). (12) The Court of Justice also considers that it has to ascertain of its own motion whether the conditions for the admissibility of an application have been fulfilled, even if the defendant has not raised a plea of inadmissibility. (13)

39. However, it does not seem to me that the approach of the Court of First Instance in this case should be construed in the light of this possibility of raising a plea of its own motion, contrary to what the Parliament appears to claim. (14) The finding that the conditions of the contested notices were not the same cannot be deemed to be equivalent to a plea. As is clear from the judgment under appeal, it is, rather, a case of the development of an argument in support of a plea raised by the applicant: that of breach of Article 29(1) of the Staff Regulations. (15)

It was, in fact, only in the course of its consideration of the plea of breach of that article that the Court of First Instance came to consider whether the conditions set out in the notices in question were the same.

It thus in no way raised a `plea' of its own motion to the effect that the notices at issue were not the same.

40. Similarly, courts can order certain measures of inquiry. (16) However, that option is not at issue here.

41. Finally, the Court of First Instance cannot be criticised for putting questions to the parties as this is one of the measures of organisation of procedure available to it under Article 64 of its Rules of Procedure. The purpose of such measures, according to Article 64(1) is `to ensure that cases are prepared for hearing, procedures carried out and disputes resolved under the best possible conditions.' Similarly, pursuant to Article 29 of the EC Statute of the Court of Justice, applicable to the Court of First Instance by virtue of Article 46(1) of that Statute: (17) `During the hearings the Court may examine ... the parties themselves ...'.

42. The Court of First Instance might have been open to criticism, however, if it had considered the question whether the notices at issue were the same in the course of considering the plea of breach of Article 29 of the Staff Regulations, without the parties having expressed any view on this point. Through its questions the Court of First Instance elicited an opinion from the Parliament and thus ensured respect for the principle of audi alterem partem which it might otherwise have been criticised for breaching.

43. I must therefore conclude that the Court of First Instance is not open to the criticism of having ruled in breach of Article 48(2) nor of having contravened the applicable Rules of Procedure in basing its reasoning on the answers given to the questions which it had put to the parties in the course of its examination of the plea raised in support of annulment.

The absence of any act adversely affecting the official and the lack of any interest in bringing proceedings

44. In its appeal, (18) the Parliament also claims that if the plea alleging breach of Article 48(2) must be declared inadmissible, the argument that the notices were not the same raised by the Court of First Instance ought to be declared inadmissible because there is no act adversely affecting the official concerned and he has no interest in bringing proceedings. It takes the view that, since Mr Gutiérrez de Quijano y Lloréns did not apply for Competition No PE/161/LA, the wording of the Notice of Competition cannot be considered to have affected him adversely. Moreover, the fact that he did not apply for the competition also demonstrates that he has no interest in bringing proceedings.

45. It should be borne in mind, first, as regards the lack of any act adversely affecting the official concerned, that the act complained of before the Court of First Instance by Mr Gutiérrez de Quijano y Lloréns was not the Notice of Competition but the decision rejecting his candidature in respect of the Notice of Transfer. It is thus only in connection with that notice that the requirement for an act adversely affecting an official should be assessed.

46. It should also be borne in mind that, as the Court of First Instance found: `... [since] the applicant's candidature was considered on the basis of a Notice of Transfer laying down stricter conditions than the Notice of Competition,' (19) `... the rejection of the applicant's candidature was irregular, being in breach of the provisions of Article 29(1) of the Staff Regulations which require, in accordance with the case-law on the subject ... that the conditions laid down by the notices corresponding to the different stages of the recruitment procedure remain the same.' (20) Thus it cannot reasonably be argued that the wording of the Notice of Competition did not adversely affect Mr Gutiérrez de Quijano y Lloréns when it is precisely because its wording was not the same as that of the Notice of Transfer that the rejection of his candidature was held to be irregular.

47. Nor can the Parliament's argument pointing to Mr Gutiérrez de Quijano y Lloréns's failure to apply for the competition to prove his lack of interest in bringing proceedings be accepted. As the Court of First Instance points out at paragraph 41 of the judgment: `Article 29(1)(a) of the Staff Regulations requires the appointing authority to consider as a priority the possibilities of promotion and transfer within the institution before proceeding to one of the subsequent stages laid down by that article, that is to say, in order, consideration of the possibility of organising an internal competition, reviewing requests for inter-institutional transfer and, if necessary, organising an open competition ...' It follows that the Parliament cannot require a candidate for a transfer to sit a competition, the results of which are not supposed to be taken into consideration until examination of the candidatures received in response to the Notice of Transfer has been completed, when, at the time of the deadline for the submission of applications for that competition (in this case 25 January 1993), which predates the publication of the Notice of Transfer (in this case 15 March 1993), the existence of that Notice of Transfer was not yet known.

The differences between the Notice of Transfer and the Notice of Competition

48. Finally, in the event that the Court of Justice should none the less consider `the plea raised in support of annulment made by the Court of First Instance to be admissible' and that there is no problem of admissibility because of the absence of an act adversely affecting the official concerned or of an interest in bringing proceedings, the Parliament reiterates, (21) by reference to an annex to the appeal, the arguments put before the Court of First Instance, according to which the differences between the notices, which are purely differences of wording, played no role when the candidature of Mr Gutiérrez de Quijano y Lloréns was examined.

49. As the Court has consistently held, such a line of argument, which consists in simply repeating or reproducing verbatim the pleas in law and arguments already submitted to the Court of First Instance, cannot be upheld, since it merely seeks, in reality, reconsideration of the application submitted before the Court of First Instance, which, under Article 49 of the EC Statute of the Court of Justice does not fall within the jurisdiction of the Court. (22)

50. In the light of the foregoing, I take the view that the appeal should be dismissed.

51. Under Article 69(2) of the Rules of Procedure of the Court of Justice, applicable to the appeal procedure by virtue of Article 118 of those rules, the unsuccessful party is to be ordered to pay the costs. Since the Parliament has been unsuccessful in its appeal it must be ordered to pay the costs.

Conclusion

52. In the light of the foregoing considerations, I propose that the Court should:

(1) dismiss the appeal;

(2) order the European Parliament to pay the costs.

(1) - Case T-140/94 Gutiérrez de Quijano y Llorens v Parliament [1996] ECR-SC II-689.

(2) - OJ 1992 C 308 A, p. 8.

(3) - Case 26/68 [1969] ECR 145.

(4) - The Court of First Instance referred, in that connection to the judgment in Joined Cases 341/85, 251/86, 258/86, 259/86, 262/86, 266/86, 222/87 and 232/87 Van der Stijl and Cullington v Commission [1989] ECR 511, paragraph 52, according to which `Any other interpretation would deprive Article 29 of the Staff Regulations of its effect, that provision requiring the institutions to consider whether a post can be filled internally before they organise an open competition. If it were open to the institutions to change the conditions of participation from one stage of the procedure to the next, in particular by making them less strict, they would be at liberty to organise external recruitment procedures without having to consider internal candidates.'

(5) - See point 8 of this Opinion on the differences between the notices.

(6) - This wording is identical to that of Article 42(2) of the Rules of Procedure of the Court of Justice.

(7) - Article 19 of the EC Statute of the Court of Justice and Article 44(1)(c) of the Rules of Procedure of the Court of First Instance.

(8) - Emphasis added.

(9) - Emphasis added.

(10) - Case 125/78 Gema v Commission [1979] ECR 3173, paragraph 26, emphasis added.

(11) - The very different approach taken by the Parliament in its reply as compared to that taken in the appeal could be understood in this way.

(12) - Pursuant to Article 47(2) of the EC Statute of the Court of Justice.

(13) - See, for example, Case 294/83 Les Verts v Parliament [1986] ECR 1339, paragraph 19.

(14) - In paragraphs 16 to 18 of its reply, in particular.

(15) - See, amongst the more recent judgments, Case C-153/96 P De Rijk v Commission [1997] ECR I-2901, paragraph 19, in which the Court makes a clear distinction between the concept of a plea and that of an argument, expressing the view, for example, that reliance on an argument in support of a plea which has already been considered by the Court of First Instance, does not constitute a new plea.

(16) - In the case of the Court of First Instance, this possibility is provided for by Article 65 et seq. of its Rules of Procedure.

(17) - According to which: `The procedure before the Court of First Instance shall be governed by Title III of this Statute, with the exception of Article 20.'

(18) - Paragraph 19 et seq. of the appeal.

(19) - Paragraph 48 of the judgment.

(20) - Paragraph 49 of the judgment.

(21) - Paragraph 28 of the appeal.

(22) - See to that effect the order in Case C-403/95 P Obst v Commission [1998] ECR I-27, paragraph 18.