CELEX: 62009CJ0197
Language: en
Date: 2009-12-17
Title: Judgment of the Court (Third Chamber) of 17 December 2009.#M v European Agency for the Evaluation of Medicinal Products.#Case C-197/09 RX-II.

JUDGMENT OF THE COURT (Third Chamber) 
      17 December 2009
      Case C-197/09 RX-II
      M
      v
      European Medicines Agency (EMEA)
      (Review of the judgment in Case T-12/08 P – Whether the state of the proceedings permits final judgment to be given – Fair hearing – Rule that the parties should be heard – Whether the unity or consistency of Community law is affected)
      Review: of the judgment of the Court of First Instance of the European Communities (Appeal Chamber) of 6 May 2009 in Case T-12/08
         P  M v EMEA by which that court, first, set aside the order of the European Union Civil Service Tribunal (First Chamber) of 19 October
         2007 in Case F-23/07 M v EMEA [2007] ECR-SC I-A-1-0000 and II-A-1-0000 and the decision of the EMEA of 25 October 2006 in so far as it rejected the request
         by Mr M of 8 August 2006 that his case be referred to the Invalidity Committee and, second, ordered the EMEA to pay compensation
         of EUR 3 000 to the applicant.  
      
      Held: the judgment of the Court of First Instance of the European Communities (Appeal Chamber) of 6 May 2009 in Case T-12/08 P M v EMEA affects the unity and consistency of Community law in that that court, as the appeal court, interpreted the expression ‘where
         the state of the proceedings … permits’ in Article 61 of the Statute of the Court of Justice and Article 13(1) of the Annex
         to the Statute as allowing it to dispose of the case in question, rule as to the substance on the claim for compensation for
         the non-material damage alleged and order the EMEA to pay damages of EUR 3 000, despite the fact that the appeal before it
         concerned the examination of the treatment given at first instance to a plea of inadmissibility and that, as regards the aspect
         of the case which was disposed of, there had been no exchange of arguments before it or before the European Union Civil Service
         Tribunal as the court seised at first instance. Points 3 and 5 of the operative part of the judgment of the Court of First
         Instance of the European Communities (Appeal Chamber) of 6 May 2009 in Case T-12/08 P M v EMEA are set aside. The case is referred back to the General Court of the European Union. Mr M, the European Medicines Agency,
         the Italian Republic, the Republic of Poland, the European Parliament, the Council of the European Union and the European
         Commission are ordered to bear their own costs relating to the review procedure.
      
      Summary
      1.        Appeals – Appeal held to be well founded – Judgment to be given on the substance by the appeal court – Condition – Whether
            the state of the proceedings permits final judgment to be given – Meaning
      (Statute of the Court of Justice, Art. 61, first para., and Annex, Art. 13(1))
      2.        Community law – Principles – Rights of the defence – Audi alteram partem rule – Scope
      3.        Procedure – Plea of inadmissibility – Purpose – No obligation on the party who raises the plea to put forward in his pleadings
            his arguments on the substance of the dispute
      (Rules of Procedure of the Court, Art. 91; Rules of Procedure of the Court of First Instance, Art. 114)
      4.        Officials – Actions – Unlimited jurisdiction – Scope
      (Staff Regulations of Officials, Art. 91(1)) 
      5.        Review – Finding that the unity or consistency of Community law is affected – Criteria for assessment – Inferences to be drawn
      (Statute of the Court of Justice, Art. 62b, first para.) 
      1.        As a rule, the state of the proceedings does not permit final judgment to be given by the appeal court within the meaning
         of the first paragraph of Article 61 of the Statute of the Court of Justice and Article 13(1) of the Annex to that Statute
         where the court at first instance dismissed the action as inadmissible by upholding a plea of inadmissibility and did not
         reserve a decision on that plea for the final judgment. However, in appeal proceedings it is possible, in certain circumstances,
         for a ruling to be given on the substance of such an action. That may be so where, first, the setting aside of the judgment
         or order under appeal necessarily brings about a definitive resolution of the substance of the action in question, or second,
         the examination of the substance of the application for annulment is based on arguments exchanged by the parties in the appeal
         proceedings in response to the reasoning of the court at first instance.
      
      It is true that Article 13(1) of the Annex to the Statute of the Court of Justice, which governs the decision of the General
         Court if the appeal is well founded, is not worded in exactly the same way as the first paragraph of Article 61 of the Statute,
         which is the relevant provision for the Court of Justice. However, in a situation in which it transpires that the court at
         first instance incorrectly dismissed the action as inadmissible by upholding a plea of inadmissibility, not reserving a decision
         on that plea for the final judgment, the expression ‘where the state of the proceedings … permits’ must be interpreted in
         the same manner in applying those provisions, regardless of the fact that Article 61 of the Statute, unlike Article 13(1)
         of the Annex thereto, confers on the Court of Justice a discretion, where the state of the proceedings so permits, authorising
         it to refer the case back to the General Court for final judgment. In those particular circumstances, the Court must find
         that the state of the proceedings does not permit judgment to be given on the substance of the case and refer it back to the
         court seised at first instance and cannot exercise any discretion in that regard. 
      
      2.        The rights of the defence include the right to a fair hearing. That principle applies to any procedure which may result in
         a decision by a Community institution perceptibly affecting a person’s interests. It means, as a rule, that the parties to
         proceedings have a right to be given the opportunity to comment on the facts and documents on which a judicial decision will
         be based and to discuss the evidence produced and the observations made to the court as well as the pleas in law raised by
         the court of its own motion on which it intends to base its decision. In order to satisfy the requirements associated with
         the right to a fair hearing, it is important for the parties to be able to debate and be heard on the matters of fact and
         of law which will determine the outcome of the proceedings. The Community Courts must ensure that the rule that the parties
         should be heard is observed in proceedings before them and that they themselves observe that rule. That rule must benefit
         all parties to proceedings before the Community judicature, irrespective of their legal status. The Community institutions
         may also, therefore, avail themselves of that principle when they are parties to such proceedings.
      
      3.        A defendant cannot be criticised for having freely decided not to present at first instance its arguments on the substance,
         by purposely limiting its defence to a plea of inadmissibility. The plea of inadmissibility provided for in both Article 91
         of the Rules of Procedure of the Court of Justice and Article 114 of the Rules of Procedure of the General Court as a preliminary
         issue makes it possible, for reasons of economy of procedure, to confine the debate and examination, at an early stage in
         the proceedings, to the question whether the action at issue is admissible. Thus, it is possible, as a result of the preliminary
         issue, to avoid a situation in which the parties’ pleadings and the court’s examination go into the substance of the case,
         even though the action is inadmissible. On the other hand, where the action is declared admissible because the plea of inadmissibility
         is rejected or where a decision on that plea is reserved for the final judgment, there must be an exchange of arguments on
         the substance of the application at a subsequent stage. 
      
      It would therefore be inconsistent with the logic of the rules on pleas of inadmissibility to oblige a defendant who raises
         such a plea to put forward, as a precaution, at the same time or, where he has been successful at first instance, in the response
         to the appeal, his arguments on the substance of the dispute.
      
      4.        The unlimited jurisdiction conferred on the Community judicature by Article 91(1) of the Staff Regulations of Officials entrusts
         it with the task of providing a complete solution to the disputes brought before it. It enables it, even in the absence of
         any formal claim for such relief, not only to annul the measure in point but also, where appropriate, to order of its own
         motion that compensation be paid by the defendant for the non‑material damage caused by maladministration on its part. However,
         the Community judicative cannot, as a general rule, base its decisions on a plea raised of its own motion – even one involving
         a matter of public policy – without first having invited the parties to submit their observations on that plea. 
      
      As a consequence, the unlimited jurisdiction enjoyed by the Community Courts in disputes involving claims for damages between
         Community institutions and their employees cannot be regarded as conferring on those courts the power to absolve such disputes
         from observance of procedural rules governing the principle that the parties have the right to be heard. 
      
      5.        A judgment in which the General Court departed from the established case‑law of the Court concerning two rules of procedure
         which do not pertain solely to the law relating to the matter at issue and which occupy an important position in the Community
         legal order constitutes a decision affecting the unity or consistency of Community law within the meaning of the first paragraph
         of Article 62b of the Statute of the Court of Justice, where that judgment deals with a certain question for the first time
         and could therefore constitute a precedent for future cases.
      
      Moreover, having regard to the terms of the first paragraph of Article 62b of the Statute of the Court of Justice, that court
         cannot confine itself to finding that the unity or consistency of Community law is affected without drawing the necessary
         inferences from that finding as regards the dispute in question. Such a judgment must therefore be set aside and the case
         referred back to the court seised at first instance.
      
      6.