Judgment of the Court (Sixth Chamber) of 27 June 2002. - Odette Simon v Commission of the European Communities. - Appeal - Officials - Person claiming the status of a member of the temporary staff - Application brought out of time - Inadmissibility of application - Appeal in part manifestly inadmissible and in part manifestly unfounded. - Case C-274/00 P.



European Court reports 2002 Page I-05999



Summary

Parties

Grounds

Decision on costs

Operative part



Keywords

1. Appeals - Pleas in law - Plea put forward for the first time at the stage of the appeal - Inadmissible

(Rules of Procedure of the Court, Art. 42(2), first para.)

2. Appeals - Pleas in law - Incorrect assessment of the facts - Inadmissible

(Art. 225 EC; EC Statute of the Court of Justice, Art. 51)

Summary

$$1. In an appeal the Court's jurisdiction is confined to review of the findings of law on the pleas argued before the Court of First Instance. To allow a party to put forward for the first time before the Court of Justice a plea in law which it has not raised before the Court of First Instance would be to allow it to bring before the Court, whose jurisdiction in appeals is limited, a case of wider ambit than that which came before the Court of First Instance.

( see para. 39 )

2. According to Article 225 EC and Article 51 of the Statute of the Court of Justice, an appeal is to be limited to points of law. By contrast, the Court of First Instance has exclusive jurisdiction to find the facts, save where a substantive inaccuracy in its findings is attributable to the documents submitted to it, and to appraise those facts. That appraisal thus does not, save where the clear sense of the evidence has been distorted, constitute a point of law which is subject, as such, to review by the Court of Justice in appeal proceedings.

Examination of the plausibility of the explanations provided by the Commission in the course of the proceedings forms part of the appraisal of the facts and is consequently not subject to review by the Court of Justice in appeal proceedings.

( see paras 44, 46-47 )

Parties

In Case C-274/00 P,

Odette Simon, resident in Luxembourg, represented initially by J.-N. Louis, and, subsequently, by L. Misson, avocats, with an address for service in Luxembourg,

appellant,

APPEAL against the judgment of the Court of First Instance of the European Communities (single judge) of 10 May 2000 in Case T-177/97 Simon v Commission [2000] ECR-SC I-A-75 and II-319, seeking to have that judgment set aside,

the other party to the proceedings being:

Commission of the European Communities, represented by J. Currall, acting as Agent, and by D. Waelbroeck, avocat, with an address for service in Luxembourg,

defendant at first instance,

THE COURT (Sixth Chamber),

composed of: F. Macken, President of the Chamber, N. Colneric (Rapporteur), C. Gulmann, J.-P. Puissochet and J.N. Cunha Rodrigues, Judges,

Advocate General: F.G. Jacobs,

Registrar: L. Hewlett, Administrator,

having regard to the Report for the Hearing,

after hearing oral argument from the parties at the hearing on 27 June 2001, at which Ms Simon was represented by P. Mbaya, avocat, and the Commission by J. Currall and D. Waelbroeck,

after hearing the Opinion of the Advocate General at the sitting on 25 September 2001,

gives the following

Judgment

Grounds

1 By application lodged at the Registry of the Court of Justice on 10 July 2000, Ms Simon brought an appeal under Article 49 of the EC Statute and the corresponding provisions of the ECSC and EAEC Statutes of the Court of Justice against the judgment of the Court of First Instance of 10 May 2000 in Case T-177/97 Simon v Commission [2000] ECR-SC I-A-75 and II-319 (hereinafter the judgment under appeal), which dismissed as unfounded her application for, first, annulment of the Commission's decision rejecting her request for regularisation of her administrative situation, in which she asked that her employment since 1996 in the service of various organisations under contract to the Commission be regarded as employment as a member of the temporary staff of the Communities (hereinafter the contested decision) and, second, an order that the Commission pay symbolic damages of one euro as compensation for the non-material damage that she allegedly suffered.

Background to the dispute

2 The facts underlying this appeal are set out in the judgment under appeal as follows:

1. Within the framework of quinquennial ergonomics research programmes for the coal and steel industries, carried out by the Commission pursuant to Article 55 of the ECSC Treaty, the Commission had recourse, up to 1995, to external companies or organisations which it retained by contract to coordinate and distribute to the relevant national industries the results of studies carried out by various scientific experts in the context of those programmes. Under those contracts, the company or organisation retained by the Commission became, for the duration of the programme, the supervisory agency for the "Bureau d'information et de coordination des programmes de l'action communautaire ergonomique de la CECA" (Information and Coordination Bureau for ECSC Community Action Programmes in the field of Ergonomics) ..., established in Luxembourg.

2. The applicant, who had been a Community official in category C from 1957 to 1960, when she resigned, was successively employed from 1966 to 1993 in the Information and Coordination Bureau by several supervisory agencies, namely the Société des sciences médicales, the Ligue luxembourgeoise contre la tuberculose, the Société d'ergonomie de langue française, the Gesellschaft für Arbeitswissenschaft and then, from 1980, the Gesellschaft für Sicherheitswissenschaft ("the GFS").

3. Between 1 March 1993 and 14 January 1994, and then between 1 July and 30 November 1994, the applicant was directly employed by the Commission under fixed term employment contracts governed by Luxembourg law for the purpose of assisting the Commission in the preparation of reports concerning the Community ergonomics programmes.

4. Following a fresh agreement between the Commission and the GFS for the period from 1 December 1994 to 31 August 1995, the GFS undertook to coordinate and distribute the results of the studies carried out under the Sixth Ergonomics Programme. The applicant was again employed by the GFS as head of the Information and Coordination Bureau, for the same period as that of the agreement between the Commission and GFS, which, along with the applicant's contract, was then extended until 25 October 1995. Since the Commission did not subsequently renew the agreement with the GFS, the applicant's contract terminated on that date.

5. On 16 January 1996, the applicant instituted unfair dismissal proceedings against the GFS and its director before the Tribunal du travail de Luxembourg (Luxembourg Labour Court), requesting that the defendants be ordered to pay damages.

6. In parallel with those proceedings, by letter of 28 June 1996 the applicant submitted a request to the Commission, pursuant to Article 90(1) of the Staff Regulations, asking that her employment since 1966 in the service of various organisations under contract to the Commission be regarded as employment as a member of the temporary staff of the Communities. In support of her request, she claimed that the contracts of employment between her and those organisations had as their sole object the avoidance of the Staff Regulations and the Conditions of Employment of other servants of the European Communities ("the CoE"). She also sought symbolic damages of one euro for breach of the Commission's duty to have regards to her interests and to provide assistance.

7. In the absence of a response from the Commission, on 2 December 1996 the applicant submitted a complaint, pursuant to Article 90(2) of the Staff Regulations, against the implied decision rejecting her request.

8. By decision of 2 April 1997, notified to the applicant on 8 April 1997, the Member of the Commission responsible for personnel matters, as the Authority empowered to conclude contracts of employment, rejected the complaint.

9 On 12 March 1997, the Tribunal du travail de Luxembourg declared the applicant's claim inadmissible on the ground that she had not proved that she was employed by the GFS or its director.

3 On 11 June 1997 Ms Simon brought an action before the Court of First Instance seeking, first, annulment of the contested decision and, second, an order that the Commission pay symbolic damages of one euro as compensation for the non-material damage she had suffered as a result of the breach of the Commission's duty to have regard to her interests and to provide assistance.

4 In support of the single plea in law put forward by Ms Simon, alleging misuse of powers, Ms Simon submitted that the employment contracts which she had entered into since 15 May 1966 with the various companies and organisations which acted as supervisory agencies must be regarded as contracts of employment as a member of the temporary staff for the purposes of Article 1 of the CoE and, consequently, her administrative situation should be regularised from that date. She based her reasoning, in particular, on Case C-249/87 Mulfinger and Others v Commission [1989] ECR 4127 and Case 17/78 Deshormes v Commission [1979] ECR 189 in which it was held that a contract of employment or a contract for the provision of services governed by the law of a Member State was unlawful if the Community chose that contractual route not in the light of the needs of the service, but with a view to avoiding the application of the Staff Regulations or the CoE.

5 In order to show that the duties assigned to her were permanent duties which came within the definition of Community public-service duties, Ms Simon made the following points: first, she continually exercised her functions under the direct authority of the Commission officials from the Directorate General Social Affairs responsible for the ergonomics programmes; second, her employment contributed to the attainment of one of the goals entrusted to the Commission by the ECSC Treaty, namely safety at work in the coal and steel industries and the organisation for that purpose of cooperation between research bodies; third, the cost of the information and coordination work carried out by the bureau was charged to the budget of the ECSC and fourth, her remuneration showed that her work corresponded to that of a Commission official at Grade A5.

The judgment under appeal

6 In the judgment under appeal, the Court of First Instance dismissed the application as unfounded.

7 In paragraphs 37 and 38 of the judgment under appeal, the Court of First Instance held that it follows from Articles 1 and 6 of the CoE that a person whose employer is not the Commission or another Community institution but a legal person governed by the law of a Member State, which cannot be treated as an administrative agency of the institution in question, cannot be regarded as a servant of the Communities.

8 The Court of First Instance found, in paragraph 40, that Ms Simon's work in the Information and Coordination Bureau was performed on the basis of contracts of employment or contracts for services between her and the agencies and companies which successively managed that bureau, and that those contracts were governed by Luxembourg law and the provisions contained therein.

9 In paragraph 42, the Court of First Instance came to the conclusion that during the periods between 1966 and 1993, and between 1 December 1994 and 25 October 1995, Ms Simon's successive employers had been the agencies and companies referred to in the previous paragraph and not the Commission.

10 After rejecting, in paragraph 43 of its judgment, the argument that the Commission had required Ms Simon to be employed, the Court of First Instance likewise rejected as irrelevant, in paragraph 44, the various factual arguments put forward by Ms Simon which were based on her alleged accountability to the Commission and the fact that her employment situation was the same as that of a member of the temporary staff.

11 In paragraphs 46 to 49 of its judgment, the Court of First Instance found that the cases of Mulfinger and Deshormes were not relevant to the present case. Those judgments concerned cases challenging the classification of contracts between the applicants and the Commission itself and not between the applicants and third parties.

12 In the present case, since the Commission was not a party to the contracts with Ms Simon, there could not have been any misuse of powers in that context.

13 The Court of First Instance therefore held, in paragraph 50, that it followed from all those factors that Ms Simon was not entitled to retrospective recategorisation as a member of the temporary staff of the Communities and it thus rejected the claim for annulment of the contested decision.

14 In paragraphs 56 to 60, the Court of First Instance also rejected the claim for damages.

The appeal

15 On 10 July 2000, Ms Simon lodged an appeal against the judgment in question, which had been notified to her on 12 May 2000. That appeal was subsequently amended on the ground that the first document lodged with the Court contained a number of mistakes of fact and form. The second document, lodged at the Court Registry on 12 July 2000 by the appellant's legal counsel was, at the Registry's request, followed by an explanatory letter which was faxed to Registry on 13 July 2000.

16 The first document, which was entered in the Court Register on 11 July 2000 was notified to the Commission on the same day, and a copy of the amended version of the appeal, accompanied by the explanatory letter, was sent to it on 17 July 2000.

17 The amended version of the application did not contain any reference to the date on which it was lodged with the Court. The explanatory letter referred only to 17 July 2000 as the date of registration, together with the words (fax 13.7).

18 In her appeal Ms Simon claims that the Court should:

- annul the judgment under appeal and the contested decision;

- declare that the services provided by her between 15 May 1966 and 25 October 1995 are to be regarded as having been performed under a contract between the Commission and a member of the temporary staff.

19 In support of her appeal, Ms Simon claims that the Court of First Instance erred in law in dismissing her plea alleging a misuse of powers.

20 By her first plea in law, Ms Simon submits that the Court of First Instance erred in law by failing to examine the lawfulness of the contracts between the Commission and the successive supervisory agencies for a unit (the Bureau) initially called the Secrétariat de la recherche communautaire sur la sécurité (Community Safety Research Secretariat), then the Secrétariat de la recherche communautaire ergonomique (Community Ergonomics Research Secretariat) and finally, since 1980, the Bureau d'information et de coordination des programmes de l'action communautaire ergonomique de la CECA (Information and Coordination Bureau for ECSC Community Action Programmes in the field of Ergonomics). She claims that the Court of First Instance should have examined the real aim of the Commission, having regard to the subject-matter of those contracts, namely that of delegating the official supervision and management of the Bureau to those agencies. She claims that the sole purpose of those contracts was to provide for the financing of the Bureau, thereby enabling the Commission to fulfil its obligations in respect of provision of information and coordination of research undertaken pursuant to Article 55 of the ECSC Treaty.

21 According to Ms Simon, the Court of First Instance should have examined the plausibility of the explanations proffered by the Commission to justify its right to interfere in the performance of contracts concluded with the supervisory agencies, in particular the right to require that the Bureau continue to employ certain staff, and to determine both the level of their remuneration with respect to their length of service and their conditions of employment.

22 Moreover the Court of First Instance should have made an assessment of the duties which the supervisory agencies actually carried out for the benefit of the Commission, namely, in essence, the financial responsibility for managing the Bureau within the limits of the funds made available by the Commission and the obligation to appoint a director of the Bureau with a maximum of two assistants.

23 By her second plea in law, Ms Simon submits that the Court of First Instance incorrectly failed to examine the true nature of the relationship of accountability between herself and, first, the supervisory agencies and, second, the Commission and the Community officials responsible for the implementation of programmes adopted pursuant to Article 55 of the ECSC Treaty. She adds that the Court of First Instance should have considered whether her work for the Bureau fell within the definition of permanent duties of the Community public service which the Treaties assign to the institutions.

24 Finally, Ms Simon invokes the fact that in the final reply given by the Commission's Agent at the hearing before the Court of First Instance, that Agent observed that the Commission ought perhaps to have employed Ms Simon directly without going through the supervisory agencies.

25 In its reply to the appeal, the Commission claims that the amended version of the appeal is inadmissible on the ground that it was lodged out of time. The Commission considers the version of the appeal lodged on 10 July 2000 to be inadmissible in so far as that appeal disputes findings by the Court of First Instance which are not subject to review, and in so far as it requests that the services provided by Ms Simon between 15 May 1966 and 25 October 1995 be regarded as having been provided under a contract between the Commission and a member of the temporary staff. In the alternative, the Commission considers that the appeal must be dismissed as unfounded.

26 Having been informed, by letter from the Court Registry of 12 January 2001, of the date on which the amended version of the appeal was lodged, the Commission now questions the legitimacy of lodging an appeal and, several days later, submitting an amended version of that appeal without providing any explanation whatsoever regarding the scope of the changes made to it.

27 For the rest, after a close examination of the amended version of the application, the Commission considers that that version is not fundamentally different from the first appeal, and it therefore retains its original position in full.

Findings of the Court

Admissibility of the appeal

Admissibility of the amended version of the appeal

28 While the Commission does not claim that the appeal itself, which it considers to have been lodged within the prescribed period, is inadmissible, it disputes the admissibility of the amended version of the appeal. The Commission appears to continue to take that view even after having been informed, by letter of 12 January 2001, of the date on which the amended version of the appeal was lodged. In particular, the Commission observes that the document containing the amended version of the appeal does not in any way identify the corrections of the factual and formal errors made to the application lodged on 10 July 2000. In its reply to the abovementioned letter, the Commission points out, inter alia, that according to Article 111 of the Rules of Procedure of the Court of Justice an appeal is brought by lodging an application at the Registry of the Court of Justice or of the Court of First Instance.

29 It should be observed at the outset that, as prescribed by the first paragraph of Article 49 of the ECSC Statute of the Court of Justice and Article 80(1) of the Court Rules of Procedure, the amended version of the appeal was lodged within two months from the date of notification of the judgment under appeal, which took place on 12 May 2000.

30 Ms Simon's right to lodge a document instituting legal proceedings at any time up to the last working day of the period set by the ECSC Statute of the Court of Justice implies that, prior to the expiry of that period, she must be allowed to withdraw a first document instituting legal proceedings in order to replace it, within the same period, by a new version of that document.

31 By lodging a full, amended version of the original application, followed, at the Registry's request, by an explanatory letter, Ms Simon clearly showed that she intended, by implication, to withdraw the original application in order to replace it by the new version of the appeal which was, itself, lodged within the time-limit for bringing an appeal laid down in the first paragraph of Article 49 of the ECSC Statute of the Court of Justice.

32 The amended version of the appeal is therefore admissible and the application must be regarded as having been lodged in that version. The plea of inadmissibility raised by the Commission must therefore be rejected.

Partial inadmissibility of the forms of order sought in appeal

33 In so far as Ms Simon requests that the Court declare that the services provided by her must be regarded as having been performed under a contract between the Commission and a member of the temporary staff, it should be recalled that, according to Article 113(1) of the Rules of Procedure of the Court of Justice, an appeal may seek the same form of order, in whole or in part, as that sought at first instance and must not seek a different form of order.

34 Ms Simon did not at any time during the proceedings before the Court of First Instance request that that Court grant the form of order applied for here.

35 To allow Ms Simon to seek an order recategorising the services provided by her would be to allow her to introduce new pleas in law in contravention of the second indent of Article 113(1) of the Rules of Procedure.

36 The application for the abovementioned form of order must therefore be rejected as manifestly inadmissible

Substance

37 By her first plea in law, Ms Simon calls into question the lawfulness of the contracts between the Commission and the various supervisory agencies. In that context, she claims, in the first part of that plea, that the Court of First Instance did not examine the Commission's real aim.

38 It should be borne in mind in that respect that, pursuant to the first paragraph of Article 42(2) of the Rules of Procedure of the Court of Justice, no new plea in law may be introduced in the course of the proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure.

39 To allow a party to put forward for the first time before the Court of Justice a plea in law which it has not raised before the Court of First Instance would be to allow it to bring before the Court, whose jurisdiction in appeals is limited, a case of wider ambit than that which came before the Court of First Instance. In an appeal the Court's jurisdiction is confined to review of the findings of law on the pleas argued before the Court of First Instance (see Case C-136/92 P Commission v Brazzelli Lualdi and Others [1994] ECR I-1981, paragraph 59, and the order in Case C-422/97 P Sateba v Commission [1998] ECR I-4913, paragraph 30).

40 Although Ms Simon claimed that the Commission's conduct amounted to misuse of powers in her case such as to oblige it to accord to her, with retrospective effect, the status of a temporary servant, in the case before the Court of First Instance she did not challenge the lawfulness of the contracts between the Commission and the supervisory agencies on the ground that the Commission's aim in entering into those contracts was to provide for the financing of that Bureau, and to be in a position to fulfil its duties of information and coordination of research.

41 Before the Court of First Instance, she merely submitted that the costs of the information and coordination activities carried out by the Bureau had been charged to the ECSC budget, as evidence that she had carried out permanent duties which came within the definition of Community public service.

42 In the light of the foregoing, the first part of the first plea must be rejected as inadmissible.

43 By the second part of her first plea, Ms Simon claims that the Court of First Instance failed to examine the plausibility of the explanations proffered by the Commission to justify its right to interfere in the performance of contracts concluded with the supervisory agencies.

44 According to Article 225 EC and Article 51 of the EC Statute of the Court of Justice, an appeal is to be limited to points of law. The latter provision states that such an appeal must be based on grounds of lack of competence of the Court of First Instance, breach of procedure before it which adversely affects the interests of the appellant or infringement of Community law by that Court.

45 The Court of Justice thus has no jurisdiction to establish the facts or, in principle, to examine the evidence which the Court of First Instance accepted in support of those facts.

46 By contrast, the Court of First Instance has exclusive jurisdiction to find the facts, save where a substantive inaccuracy in its findings is attributable to the documents submitted to it, and to appraise those facts. That appraisal thus does not, save where the clear sense of the evidence has been distorted, constitute a point of law which is subject, as such, to review by the Court of Justice in appeal proceedings (see, in particular, Case C-390/95 P Antillean Rice Mills and Others v Commission [1999] ECR I-769, paragraph 29, and Joined Cases C-486/01 P-R and C-488/01 P-R Front national and Martinez v Parliament [2002] ECR I-0000, paragraphs 83 to 85).

47 Examination of the plausibility of the Commission's explanations forms part of the appraisal of the facts and is consequently not subject to review by the Court of Justice in appeal proceedings.

48 The second part of the first plea in law must therefore also be rejected as inadmissible.

49 By her second plea in law, Ms Simon claims that the Court of First Instance did not assess the true nature of the relationship between herself and, first, the successive supervisory agencies and, second, the Commission and Community officials, or the nature of the work carried out by her.

50 That complaint, taken in its entirety, seeks to challenge the legal appraisal made by the Court of First Instance of the true nature of those relationships.

51 The Court of First Instance considered that matter, however, in paragraphs 43 and 44 of the judgment under appeal and correctly held that the appellant's argument is rebutted by the rule in Salerno (Joined Cases 87/77, 130/77, 22/83, 9/84 and 10/84 Salerno and Others v Commission and Council [1985] ECR 2523).

52 Finally, as to the submission, referred to in paragraph 24 of this judgment, regarding the comment made by the Commission's Agent at the hearing that the Commission ought perhaps to have employed Ms Simon directly without using the supervisory agencies as intermediaries, that comment can only be interpreted as an expression of doubt as to the prudence of Ms Simon's employment through the supervisory agencies.

53 That argument must therefore be objected as unfounded.

54 It follows from all the foregoing observations that the appeal must be dismissed as in part inadmissible and in part unfounded.

Decision on costs

Costs

55 Under Article 69(2) of the Rules of Procedure, which applies to the appeal procedure by virtue of Article 118, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the Commission has requested that Ms Simon be ordered to pay the costs and the latter has been unsuccessful in her appeal, she must be ordered to pay the costs.

Operative part

On those grounds,

THE COURT (Sixth Chamber),

hereby:

1. Dismisses the appeal;

2. Orders Ms Simon to pay the costs.