10

It held, in that regard, the following: ‘36 ... the case-law relating to the principle of effective judicial protection in the light of Article 47 of the Charter (judgment in Otis and Others, C‑199/11, EU:C:2012:684, paragraphs 54 to 63, and judgment in Koninklijke Grolsch v Commission, T‑234/07, EU:T:2011:476, paragraphs 39 and 40) has developed in a way which warrants a reassessment by the Tribunal as to whether it is appropriate to apply the rule of correspondence when a plea of illegality has been raised for the first time in the action (judgment of 12 March 2014 in CR v Parliament, F‑128/12, ECR-SC, EU:F:2014:38, paragraph 29). 37 In particular, in paragraphs 37, 39 and 40 of the judgment in Koninklijke Grolsch v Commission (EU:T:2011:476) the General Court, having found that no provision of EU law requires the addressee of a statement of objections relating to an infringement of the competition rules to contest the individual matters of fact or of law set out therein during the administrative procedure, failing which it will not be able to do so during the subsequent judicial proceedings, rejected the European Commission’s argument contesting the admissibility of a plea on the ground that it had not been raised clearly and precisely during the administrative phase. The General Court held that, in the circumstances described, such an argument effectively limited the applicant’s access to justice and, more particularly, her right for her case to be heard before a court or tribunal. As the General Court pointed out, the right to an effective remedy and the right of access to an impartial tribunal are guaranteed by Article 47 of the Charter. 38 Although it is true that the case-law mentioned above was developed in a different field from that of disputes between EU institutions and their staff, the judgment in Koninklijke Grolsch v Commission (EU:T:2011:476) concerns the issue of whether a restriction on access to justice which was not expressly provided for by the legislature is compatible with Article 47 of the Charter. In the field of civil service disputes, the rule of correspondence between the pleas raised during the pre-litigation procedure and those raised in the application, although having a legislative basis in Article 91(1) of the Staff Regulations and, as regards ECB staff, in paragraph 41 of the Conditions of Employment and Article 8.1 of the Staff Rules, is a rule which originated in case-law. 39 The [Civil Service Tribunal] is of the view that there are three arguments against the idea that a plea of illegality raised for the first time in an action should be declared inadmissible solely on the ground that it has not been raised in the complaint preceding that action. Those arguments are connected with (i) the purpose of the pre-litigation procedure, (ii) the nature of a plea of illegality, and (iii) the principle of effective judicial protection. 40 First, regarding the purpose of the pre-litigation procedure, which is the same in the context of Article 91 of the Staff Regulations as in the context of ECB staff disputes, it is settled case-law that the pre-litigation procedure serves no purpose if complaints are made against a decision which cannot be altered by the administration. Thus, in the context of Article 91 of the Staff Regulations, case-law has ruled out the need to submit complaints against decisions made by selection boards or against staff reports (judgment in CR v Parliament, EU:F:2014:38, paragraph 33 and the case-law cited). 41 By the same token, the obligation to raise a plea of illegality in the complaint, failing which the action will be inadmissible, does not fulfil the purpose of the pre-litigation procedure ... 42 Indeed, taking account of the principle of the presumption of legality regarding acts of the institutions of the European Union, according to which EU legislation remains fully effective as long as it has not been found to be unlawful by a competent court, an administration cannot leave unenforced an act of general application in force which, in its opinion, conflicts with a higher-ranking rule of law, with the sole aim of allowing for an out-of-court settlement of the dispute (judgment in CR v Parliament, EU:F:2014:38, paragraph 35 and the case-law cited). 43 Such a course of action must a fortiori be excluded if the administration concerned is acting in a situation of circumscribed powers, since, in a situation of that kind, it is not in a position to withdraw or to amend the decision contested by the member of staff concerned, however well-founded it might consider a plea of illegality against the provision on the basis of which that decision was adopted (judgment in CR v Parliament, EU:F:2014:38, paragraph 36). 44 Furthermore, the fact that a plea of illegality is being raised for the first time in the action cannot affect the principle of legal certainty since, even if the person concerned had raised a plea of that kind at the complaint stage, the administration could not have taken advantage of that fact to resolve the dispute with that person through an amicable settlement. 45 Secondly, regarding the nature of a plea of illegality, according to settled case-law, Article 277 TFEU gives expression to a general principle conferring upon any party to proceedings the right to challenge incidentally, for the purpose of obtaining the annulment of an act against which it is capable of bringing proceedings, the validity of an act of general application adopted by an institution of the European Union which constitutes the legal basis of the contested act, if that party was not entitled to bring a direct action challenging the act which thus affected him without his having been in a position to seek its annulment (judgment in Simmenthal v Commission, 92/78, EU:C:1979:53, paragraph 39; judgment in Andersen and Others v Parliament, 262/80, EU:C:1984:18, paragraph 6; and judgment in Sina Bank v Council, T‑15/11, EU:T:2012:661, paragraph 43). Article 277 TFEU thus aims to protect the litigant against the application of an unlawful legislative act, on the basis that the effects of a judgment containing a declaration of inapplicability are limited to the parties to the dispute alone, and that that judgment does not affect the act itself, which has become unchallengeable (judgment in Carius v Commission, T‑173/04, EU:T:2006:333, paragraph 45 and the case-law cited, and judgment in CR v Parliament, EU:F:2014:38, paragraph 38). 46 Even assuming that the obligation to raise a plea of illegality in the complaint, failing which the action will be inadmissible, can fulfil the purpose of the pre-litigation procedure, the [Civil Service Tribunal] considers that it is in the nature of such a plea to reconcile the principle of legality with the principle of legal certainty (judgment in CR v Parliament, EU:F:2014:38, paragraph 39). 47 Moreover, it can be seen from the wording of Article 277 TFEU that the possibility of challenging an act of general application after the expiry of the period for bringing proceedings is not open to a party except in proceedings before one of the Courts of the European Union. A plea of that kind cannot therefore be fully effective in the context of an administrative appeal procedure (judgment in CR v Parliament, EU:F:2014:38, paragraph 40). 48 Thirdly and lastly, the [Civil Service Tribunal] points out that the principle of effective judicial protection is a general principle of EU law to which expression is now given by the second paragraph of Article 47 of the Charter, pursuant to which “[e]veryone is entitled to a ... hearing ... by an independent and impartial tribunal ... established by law ...”. That paragraph corresponds to Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (“the ECHR”) (review judgment in Arango Jaramillo and Others v EIB, C‑334/12 RX-II, EU:C:2013:134, paragraphs 40 and 42). 49 According to the case-law of the European Court of Human Rights on the interpretation of Article 6(1) of the ECHR, to which reference must be made in accordance with Article 52(3) of the Charter, the exercise of the right to a tribunal may be subject to limitations, inter alia as to the conditions for the admissibility of an action. While the persons concerned should expect the rules establishing those limitations to be applied, the application of such rules should nevertheless not prevent litigants from taking advantage of an available legal remedy (see, to that effect, the judgment of the European Court of Human Rights in Anastasakis v. Greece, no. 41959/08, § 24, 6 December 2011; the review judgment in Arango Jaramillo and Others v EIB, EU:C:2013:134, paragraph 43; the order in Internationale Fruchtimport Gesellschaft Weichert v Commission, C‑73/10 P, EU:C:2010:684, paragraph 53; and the judgment in CR v Parliament, EU:F:2014:38, paragraph 42). 50 In particular, the European Court of Human Rights has stated that the limitations on the right to a tribunal relating to the conditions of admissibility of an action must not restrict or reduce a litigant’s access in such a way or to such an extent that the very essence of that right is impaired. Such limitations are not compatible with Article 6(1) ECHR unless they pursue a legitimate aim and there is a reasonable relationship of proportionality between the means employed and the aim pursued (see the judgments of the European Court of Human Rights in Liakopoulou v. Greece, no. 20627/04, § 17, 24 May 2006; Kemp and Others v. Luxembourg, no. 17140/05, § 47, 24 April 2008; and Viard v. France, no. 71658/10, § 29, 9 January 2014). The right of access to a tribunal is impaired when its rules cease to pursue the aims of legal certainty and the proper administration of justice and instead become a sort of barrier preventing a litigant from having his dispute settled on the merits by the competent court (view of Advocate General Mengozzi in the review judgment in Arango Jaramillo and Others v EIB, EU:C:2013:134, paragraphs 58 to 60; judgment of the European Court of Human Rights in L’Erablière A.S.B.L. v. Belgium, no. 49230/07, § 35, ECHR 2009 (extracts); judgment in CR v Parliament, EU:F:2014:38, paragraph 43). 51 Penalising the act of raising a plea of illegality for the first time in the application by declaring that plea inadmissible constitutes a restriction on the right to effective judicial protection which is not proportionate to the aim pursued by the rule of correspondence, which is to permit an amicable settlement of the dispute between the official concerned and the administration and to comply with the principle of legal certainty (judgment in CR v Parliament, EU:F:2014:38, paragraph 44 and the case-law cited). 52 In that regard, the [Civil Service Tribunal] recalls that, according to the case-law, any official exercising ordinary care is deemed to be familiar with the Staff Rules (concerning the rules governing the remuneration of ECB staff, see the judgment in BM v ECB, F‑106/11, EU:F:2013:91, paragraph 45, concerning the Staff Regulations, see the judgment in CR v Parliament, EU:F:2014:38, paragraph 45 and the case-law cited). However, a plea of illegality is likely to lead the [Civil Service Tribunal] to examine the legality of those rules in the light of general principles or higher-ranking rules of law which may go beyond the framework of the rules which directly apply to staff. Owing to the nature of a plea of illegality and to the reasoning which leads the person concerned to search for and invoke such illegality, a member of staff of the ECB who submits a complaint and does not necessarily have the appropriate legal expertise cannot be required to raise such a plea at the pre-litigation stage, failing which a plea of that kind raised at a later stage will be declared inadmissible. Accordingly, a declaration of inadmissibility in those circumstances is a disproportionate penalty for the member of staff concerned and is unjustified. 53 Moreover, making the possibility of raising a plea of illegality at the application stage conditional upon applying a rule of correspondence with the complaint may unduly favour a single category of officials and members of staff — namely, those who have legal expertise — over all other categories of officials and members of staff. 54 In the light of all of the foregoing, the plea of illegality which has been raised for the first time in the application must be declared admissible.’