CELEX: 61992CC0035
Language: en
Date: 1993-01-13 00:00:00
Title: Opinion of Mr Advocate General Van Gerven delivered on 13 January 1993. # European Parliament v Erik Dan Frederiksen. # Officials - Annulment of a promotion decision - Appeal. # Case C-35/92 P.

OPINION OF ADVOCATE GENERAL
      VAN GERVEN
      delivered on 13 January 1993 (
            *1
         )
      
         Mr President,
      
      
         Members of the Court,
      
      
               1. 
            
            
               The present case is an appeal by the Parliament against the judgment delivered on 11 December 1991 by the Court of First Instance. In that judgment, on an application by Erik Dan Frederiksen, the Court annulled the decision of the President of the European Parliament of 3 July 1989 promoting Mrs X to the post of Language Adviser in the Danish Translation Division.
               A complete account of the facts and procedure before the Court of First Instance, details of the appeal and the observations of the parties can be found in the Report for the Hearing.
            
         
               2. 
            
            
               In support of its appeal, the Parliament puts forward two pleas in law. Both allege infringement of Community law, more particularly of principles expounded in the case-law of the Court of Justice.
               Before those pleas are examined, it is appropriate to bear in mind that, pursuant to Article 168a of the EEC Treaty, the corresponding provisions of the other Treaties and Article 51 of the Statute of the Court (EEC), an appeal against judgments of the Court of First Instance can raise only points of law. That means that not only are pleas concerned with matters of fact inadmissible but also that this Court cannot take cognizance of factual arguments concerning the merits of the case, put forward by the parties in order to support or refute pleas in law. In an appeal, the review undertaken by the Court of Justice is limited to the contested judgment and the procedure before the Court of First Instance. As regards the facts, this Court is bound by the findings in the contested judgment.
            
         The first plea in law
      
               3.
            
            
               The first plea advanced by the Parliament relies on the principle that the Community judicature is not entitled to review the assessment of the appointing authority in matters of promotion except where there is a manifest error of assessment. The Parliament considers that the Court of First Instance contravened that principle, and it puts forward two arguments in support of that allegation.
               The first argument concerns paragraphs 66 to 68 and 71 to 75 of the contested judgment. In them, the Court of First Instance considered the question whether Mrs X satisfied one of the conditions laid down in the vacancy notice, namely whether she had‘knowledge of data-processing methods in management applications’. It found that she had not.
               The second argument concerns paragraph 76 of the contested judgment. In that paragraph, the Court of First Instance found that, in any event, the Parliament had not produced evidence that the appointing authority actually assessed, with the requisite objectivity and exactitude, the extent to which Mrs X's knowledge met the requirements of the vacancy notice. The Court found that the appointing authority did not have sufficient information to enable it to make such an assessment and that the assessments made by the authorities at a lower level were based on an erroneous assumption. And, according to the Court, the Parliament's Legal Service also relied on that incorrect assumption in its assessment of the applicant's complaint.
               In my opinion, the second argument cannot be examined by this Court since it is based on the findings of fact made by the Court of First Instance, which are binding on the Court of Justice. On the other hand, the first argument calls for further examination: as will be seen, the issue is whether the Court of First Instance remained within the limits of its powers.
            
         
               4.
            
            
               By its first argument, the Parliament alleges that, in its assessment as to whether Mrs X met the requirements set out in the vacancy notice, the Court should have confined its review to the question whether the appointing authority had committed a manifest error, rather than verifying whether in fact Mrs X's knowledge of data processing corresponded objectively to that required by the vacancy notice. The Parliament takes exception in particular to the fact that the Court relied on an expert's report in reaching the conclusion that it did not.
            
         
               5.
            
            
               In paragraph 66 of the contested judgment, the Court of First Instance commences its assessment by drawing a distinction, regarding the nature of judicial review, between the conditions laid down by the vacancy notice and the comparative examination of merits provided for by Article 45 of the Staff Regulations. That distinction is in line with settled case-law. Since the judgment in Grassi v Counal, it is settled law that:
               ‘In fact, though the appointing authority has wide discretion in comparing the candidates' merits and reports, especially with a view to the post to be filled, it must exercise it within the self-imposed limits contained in the notice of vacancy.’ (
                     1
                  )
               It follows that, for the purpose of comparing the merits of those of the candidates who satisfy the minimum objective requirements, the appointing authority enjoys considerable latitude. In paragraph 69 of the contested judgment, the Court of First Instance thus concedes that, in that sphere, review by the Community judicature is limited to the question whether, having regard to the various considerations which have influenced the administration in making its assessment, it has remained within reasonable bounds and has not used its authority in a manifestly incorrect manner. The Court of First Instance refers in that connection to the judgment in Vaysse v Commission. (
                     2
                  )
               On the other hand, as is apparent from the passage cited above, the appointing authority is legally bound, as far as the requirements of the vacancy notice are concerned, by the framework which it has itself imposed. The vacancy notice fulfils a ‘basic function in the recruitment procedure, which is to give those interested the most accurate information possible about the conditions of eligibility for the post to enable them to judge whether they should apply for it.’ (
                     3
                  )
            
         
               6.
            
            
               It is clear from the foregoing that the Court of First Instance was right to consider that it had a duty to verify whether the appointing authority meticulously observed the requirements of the vacancy notice.
               When, in its observations, the Parliament alleges that such review must be limited to manifest errors, it is, in my opinion, misreading the case-law of the Court of Justice. There is no suggestion in the judgments in Hoe v Commission (
                     4
                  ) and Hochbaum v Commission (
                     5
                  ) that the persons concerned might not have satisfied the requirements of the vacancy notice. And the passage from Vaysse (
                     6
                  ) cited by the Parliament concerns verification of the comparative examination of the merits of the candidates required by Article 45 of the Staff Regulations.
            
         
               7.
            
            
               For the purpose of verifying whether a given candidate was properly selected by the appointing authority, having regard to the conditions laid down in the vacancy notice, the Court must of course establish what those conditions are and how they must be interpreted objectively, that is to say their meaning for a third party who must decide whether or not he should submit an application. It may happen that the Court considers that it has insufficient information at its disposal in order to carry out that verification. Such a case may arise in particular where the notice contains criteria which are so technical or specific that, although they may be objectively clear to the candidates concerned, they are not clear to the Court. Where that happens, it may, depending on the circumstances, be appropriate for the Court to obtain information from an expert. Pursuant to Article 49 of its Rules of Procedure, it is for the Court of First Instance to take a decision in that regard in the light of the specific circumstances of the case. Accordingly, it cannot be inferred that, merely because an expert is appointed, there has been a breach of Community law.
            
         
               8.
            
            
               It is apparent from paragraphs 71 to 75 of the judgment that the Court of First Instance confined itself, in the first place, to determining the precise requirements of the vacancy notice at issue and then, with the help of the expert, establishing the objective meaning of those requirements; finally, in the light of that objective interpretation, it considered whether Mrs X could reasonably be regarded as satisfying those requirements. I consider that, in following that course, the Court remained within its jurisdiction, and therefore that the Parliament's first plea in law — in so far as it is not based on factual arguments, which it is not for this Court to examine — fails in law.
            
         The second plea in law
      
               9.
            
            
               The second plea put forward by the Parliament concerns the alleged infringement by the Court of First Instance of the principle that measures vitiated by procedural errors are not to be annulled unless the irregularities had a decisive impact on the appointment procedure. (
                     7
                  ) That is not the case, in particular, where it appears that the irregularities were rectified subsequently, which, it is claimed, occurred in the present case, since a fresh comparative examination of merits was later carried out and information was added or supplemented thereafter.
            
         
               10.
            
            
               This plea concerns paragraphs 77 to 79 of the contested judgment. In those paragraphs, the Court of First Instance examined the manner in which, on the basis of Article 45 of the Staff Regulations, the appointing authority carried out its comparative examination of the merits of the candidates. As already observed earlier (paragraph 5 hereof), the Court of First Instance took the view that the power of the Community Court to review the exercise of the — in that respect largely discretionary — powers of the appointing authority is limited to the question whether those powers were used in a manifestly incorrect manner.
               In the paragraphs of that judgment just referred to, the Court of First Instance concluded that the appointing authority in fact committed a manifest error in carrying out that comparative examination. In that connection, the Court referred, first, to its findings (mentioned earlier) regarding the assessment of the extent to which Mrs X's knowledge conformed with the requirements of the vacancy notice. The Court of First Instance concluded that those findings were in themselves sufficient to establish that the comparative examination of merits lacked the necessary objectivity and exactitude (paragraph 77).
               The Court added: ‘the only comparative assessment brought to the attention of the President of the Parliament as appointing authority for the purposes of the appointment decision required of him, namely the assessment made by Mrs De Enterria in her memorandum of 10 March 1989, was incomplete and vitiated by manifest errors of fact and law’ (paragraph 77). The incompleteness of that examination affected, above all, the candidates' knowledge and experience in the field of data processing, whereas the manifest errors related to ‘a serious error in its evaluation of the staff reports: Mrs X and the applicant — contrary to what is stated in the memorandum — both had the same number of assessments of “excellent”’ (paragraph 78).
            
         
               11.
            
            
               In evaluating the Parliament's argument, the Court of Justice cannot examine matters of fact; it may merely check whether the Court of First Instance actually failed to take account of the legal principle whereby procedural irregularities may be cured by subsequent action. I do not think that it did. Let us consider, first, the reference in paragraph 77 of the judgment to the earlier finding of the Court of First Instance to the effect that Mrs X's knowledge did not meet the conditions for appointment laid down in the vacancy notice (the finding against which the first plea in law, already disposed of above, was directed). I do not see how that defect could have been rectified in the subsequent stages of the procedure. Moreover, it was on the basis of that lack of the ‘requisite objectivity and exactitude’ that the Court of First Instance concluded that the appointing authority had no alternative but to reject Mrs X's candidature (paragraph 75). It seems to me necessarily to follow from that finding that the comparative examination of the candidates' merits could no longer be carried out correctly.
               For good measure, in paragraph 79 the Court of First Instance added:
               ‘The Court considers that such a lack of objectivity and exactitude cannot be compensated for, as contended by the Parliament, either by the fact that the file sent to the President contained a table on which the Secretary General of the Parliament had jotted a correct evaluation of the staff reports — but without correcting the one from Mrs De Enterria — or by the fact that the opinion prepared by the Parliament's Legal Department for the purpose of dealing with the applicant's complaint noted, parenthetically on page 13, the error made by Mrs De Enterria in that respect’.
               That shows with sufficient clarity that the Court of First Instance actually considered whether the irregularities found by it had been rectified at later stages of the procedure, to the extent to which such rectification was still possible. It therefore seems to me that the second ground of appeal also fails in law.
            
         The counterclaim
      
               12.
            
            
               Having determined that the two grounds of appeal put forward by the Parliament have failed, I shall now consider the counterclaim made by Erik Dan Frederiksen. In his response and rejoinder, he contends that the Parliament should be ordered to pay him token damages of one franc to redress the nonmaterial damage caused him by the dilatory and vexatious nature of the appeal.
               It seems to me that the appeal procedure does not envisage the possibility of such a counterclaim. Article 116(1) of the Rules of Procedure provides:
               ‘A response may seek:
               
                        —
                     
                     
                        to dismiss, in whole or part, the appeal or to set aside, in whole or in part, the decision of the Court of First Instance;
                     
                  
                        —
                     
                     
                        the same form of order, in whole or in part, as that sought at first instance and shall not seek a different form of order.’
                     
                  Article 116(2) adds that ‘the subject-matter of the proceedings before the Court of First Instance may not be changed in the response’. There is thus no possibility of including in a response a claim for damages for improper lodgment of an appeal.
               Moreover, the Court of Justice is properly equipped to deal with an improper appeal. Article 119 of the Rules of Procedure empowers the Court of Justice at any time to dismiss, by an order, an appeal which is clearly inadmissible or clearly unfounded. Since the lodgment of an appeal does not have automatic suspensory effect, there is little reason to fear abusive appeals.
            
         Conclusion
      
               13.
            
            
               I propose that the Court dismiss the appeal as unfounded, dismiss the counterclaim for token damages in respect of the allegedly improper lodgment of the appeal and order the Parliament to pay the costs pursuant to Article 69(2) of the Rules of Procedure.
            
         (
            *1
         )	Original language: Dutch.
      (
            1
         )	Judgment in Case 188/73 Grassi v Council [1974] ECR 1099, paragraph 38, confirmed by, inter alia, Case C-343/87 Culm v Commission [1990] ECR I-225.
      (
            2
         )	Case 26/85 Vaysse v Commission [1986] ECR 3131, paragraph 26.
      (
            3
         )	Grassi v Council, paragraph 40.
      (
            4
         )	Case 151/80 Hoe v Commission [1981] ECR 3161.
      (
            5
         )	Case C-107/90 Hochbaum v Commission [1992] ECR I-157, paragraph 9.
      (
            6
         )	Paragraphs 26 and 27.
      (
            7
         )	The Parliament refers to, among others, the judgments in Case 24/79 Oberthür v Commission [1980] ECR 1743, paragraph 11, Joined Cases 156/79 and 51/80 Gratreau v Commission [1980] ECR 3943, paragraph 24, and Case 263/81 List v Commission [1983] ECR 103, paragraph 26 et seq.