CELEX: 62017CO0714
Language: en
Date: 2018-06-19 00:00:00
Title: Order of the Court (Ninth Chamber) of 19 June 2018.#Kevin Karp v European Parliament.#Appeal — Article 181 of the Rules of Procedure of the Court of Justice — Civil service — Act having an adverse effect — Accredited parliamentary assistant — Member of the contract staff — Recruitment — Classification in grade.#Case C-714/17 P.

ORDER OF THE COURT (Ninth Chamber)
19 June 2018 (*)
(Appeal — Article 181 of the Rules of Procedure of the Court of Justice — Civil service — Act having an adverse effect — Accredited parliamentary assistant — Member of the contract staff — Recruitment — Classification in grade)
In Case C‑714/17 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 20 December 2017,

Kevin Karp, residing in Brussels (Belgium), represented by N. Lambers and R. Ben Ammar, lawyers,
appellant,
the other party to the proceedings being:

European Parliament,

defendant at first instance.
THE COURT (Ninth Chamber),
composed of C. Vajda (Rapporteur), President of the Chamber, E. Juhász and K. Jürimäe, Judges,
Advocate General: M. Wathelet,
Registrar: A. Calot Escobar,
having decided, after hearing the Advocate General, to give a decision by reasoned order, in accordance with Article 181 of the Rules of Procedure of the Court,
makes the following

Order

1        By his appeal, Mr Kevin Karp seeks to have set aside the order of the General Court of the European Union of 23 October 2017, Karp v Parliament (T‑833/16, not published, EU:T:2017:766) (‘the order under appeal’) by which that Court rejected his action seeking, first, annulment of the European Parliament’s decisions classifying him in function group I, grade 1, under the contract as an accredited parliamentary assistant concluded on 25 February 2015, and in function group II, grade 4, step 1, under the contract of employment as a contract agent concluded on 12 May 2016 and, secondly, compensation for the damages he had allegedly suffered as a result of those classifications.
 The appeal

2        Pursuant to Article 181 of the Rules of Procedure of the Court of Justice, where the appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the Court may at any time, acting on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide by reasoned order to dismiss that appeal in whole or in part.

3        That provision must be applied in the present case.

4        On 18 April 2018, the Advocate General adopted the following position:
‘1.      The appellant puts forward five grounds in support of his appeal, which seek to challenge the order under appeal in so far as it rejects his claim for annulment of the Parliament’s decision classifying him in function group II, grade 4, step 1, under the contract of employment as a contract agent concluded on 12 May 2016. 
2.      It is appropriate to examine the first and second grounds of appeal together.

The first and second grounds of appeal, alleging, respectively, an error of law in the interpretation of the ratio legis of the time limit provided for in Article 90(2) of the Staff Regulations of Officials of the European Union (“the Staff Regulations”) and an error of law in the interpretation of the words “act affecting him adversely” in that provision.

3.      By the first ground of appeal, the appellant is seeking to challenge the interpretation of Articles 90 and 91 of the Staff Regulations made in paragraph 26 of the order under appeal, according to which the admissibility of an action brought by a member of staff against the institution to which he belongs is conditional on the proper observance of the preliminary administrative procedure.
4.      At the outset, I observe that the first ground of appeal is drafted very ambiguously and does not identify either the alleged complaint on which the appellant relies or the decision of the Parliament which allegedly affects him adversely. Moreover, it consists of mere claims which are not substantiated by any legal points.
5.      Therefore, it need only be stated that, in accordance with the Court’s settled case-law, the first ground must be rejected as manifestly inadmissible since it does not indicate precisely the contested elements of the order under appeal and the legal arguments supporting the claim for annulment are not clear (judgment of 29 September 2011, Arkema v Commission, C‑520/09 P, EU:C:2011:619, paragraphs 59 to 61).
6.      In any event, the first ground of appeal is manifestly ill-founded.
7.      Even if the Court were to find that the line of argument developed by the appellant in his appeal appears overall to be sufficiently clear for the purposes of identifying with the necessary precision the contested elements of the order under appeal, and the legal arguments relied on in support of that challenge, and that, despite certain portions of that line of argument lacking rigour, it thus enables the Court to carry out its review of the lawfulness thereof (judgment of 14 October 2010, Nuova Agricast and Cofra v Commission, C‑67/09 P, EU:C:2010:607, paragraphs 48 and 49), I would make the following observations.
8.      In my opinion, the General Court was correct to conclude that Articles 90 and 91 of the Staff Regulations render the admissibility of an appeal brought by an official or other member of staff against the institution to which he belongs conditional on the requirements both that such an official or member of staff must refer a complaint against an act affecting him adversely to the appointing authority or the authority empowered to conclude contracts of employment, respectively, and that the complaint concerned must be lodged within a period of three months from the date on which the decision was notified to its addressee.
9.      First, the appellant seems to take the view that the email of 28 April 2016, by which he responded to the Parliament’s offer of employment as a member of the contract staff indicating that he was not satisfied with the classification proposed, constitutes a complaint within the meaning of Article 90(2) of the Staff Regulations. According to the Court’s settled case-law, first, an application is admissible only if the appointing authority has previously had such a complaint submitted to it and, secondly, the time limits provided for by Articles 90 and 91 of the Staff Regulations are mandatory and are not subject to the discretion of the court (judgment of 20 March 1984, Razzouk and Beydoun v Commission, 75/82 and 117/82, EU:C:1984:116, paragraphs 12 and 13). 
10.      Secondly, for an application for annulment to be admissible, the complaint must have been lodged within the period of three months provided for in Article 90(2) of the Staff Regulations following the act having an adverse effect.
11.      It follows that, even if (as the appellant claims) the email of 28 April 2016 could be characterised as a complaint (quod non), that complaint would in any event be premature since the act adversely affecting the appellant, namely the contract signed following the offer of employment, became effective only as of 12 May 2016, as is apparent from paragraph 7 of the order under appeal. The appellant has not expressly challenged the characterisation of that contract as the act having an adverse effect (paragraphs 27, 30 and 33 of the order under appeal), and seems merely to be claiming that the offer of employment constituted an act adversely affecting him, which is the subject matter of the second ground of appeal.
12.      I am therefore of the opinion that, without prejudice to the analysis of the second ground of appeal, the first ground is manifestly inadmissible and in any event manifestly unfounded.
13.      By the second ground of appeal, the appellant claims that the General Court erred in law in paragraph 31 of the order under appeal in characterising the offer of employment as a preparatory act. The appellant takes the view that the particular circumstances of the case should be taken into consideration, in particular, the fact that he was already employed by the Parliament at the time the offer of employment was made and that he did not have the option to refuse that offer without suffering the negative consequences of that refusal on his situation.
14.      First, although the appellant is seeking to establish that the offer of employment of 27 April 2016 is not a preparatory act, it is clear that it is not that act which adversely affects him, but rather the contract which took effect on 12 May 2016, by classifying him in function group II, at grade 4, step 1. Secondly, in any event, that offer of employment is a preparatory act inasmuch as it predates the contract to which it gave rise and which took effect on 12 May 2016.
15.      According to the case-law, acts which are merely preparatory cannot be the subject of an action for annulment in so far as they do not produce binding legal effects such as to affect directly and immediately the legal situation of the persons concerned by significantly altering that situation (order of 18 November 1980, Macevicius v Parliament, 141/80, EU:C:1980:262). It follows that a preparatory act may not start the time limit for making the complaint running.
16.      The appellant relies upon the order of 27 February 1991, Bocos Viciano v Commission (C‑126/90 P, EU:C:1991:83) in order to claim that, in the circumstances of the present case, the offer of employment was an act adversely affecting him. The Court in that order found that, in proceedings concerning the refusal to appoint the person concerned to a post despite his inclusion on the reserve list drawn up following a competition, Articles 90 and 91 of the Staff Regulations applied not only to officials, but also to candidates for a post (paragraph 13) and dismissed the action as inadmissible on the grounds the pre-litigation procedure laid down in those provisions had not been observed (paragraph 14).
17.      That approach concerning the non-appointment of a successful candidate in a competition to a post cannot be transposed to the present case, concerning an offer of employment to a member of staff which pre-dates an employment contract.
18.      The factual arguments put forward by the appellant, which seek to show the specific effects on his situation of the offer of employment, are not such as to cast doubt on the General Court’s finding that the act adversely affecting the appellant is the decision to classify him in a grade lower than that which, in his opinion, corresponded to the duties he had to perform during the period covered by the contract following the offer of employment (paragraph 29 of the order under appeal). It is clear that the appellant’s classification did not result from the offer of employment. As the General Court correctly concluded, in paragraph 30 of the order under appeal, the appellant’s classification became effective only on 12 May 2016, when that contract itself took effect.
19.      Moreover, according to the judgment of 13 October 2015, Commission v Verile and Gjergji (T‑104/14 P, EU:T:2015:776, paragraphs 62, 73 and 74), delivered by the appeal chamber of the General Court, a proposal (concerning additional pensionable years) does not produce legal effects until it has been accepted and it is the act which, as the case may be, follows that acceptance which might adversely affect the person concerned.
20.      It follows that the second ground of appeal is manifestly unfounded and that, consequently, the first ground of appeal is manifestly inadmissible and, in any event, manifestly unfounded.

The third ground of appeal, concerning an error of law and inadequate reasoning so far as concerns the finding that there was no infringement of the principle of the protection of legitimate expectations

21.      By the third plea, the appellant claims that the General Court erred in law and that its reasoning was inadequate in the order under appeal in connection with its finding that there had been no infringement of the principle of the protection of legitimate expectations (paragraphs 36 and 37 of the order under appeal).
22.      As regards, first of all, the allegedly inadequate reasoning, where the General Court has examined the arguments put forward by the applicant in such a way that its reasoning is sufficient to enable the latter to ascertain the reasons on which the General Court has relied in giving judgment, the fact that there is only a brief explanation as to why certain of those arguments have been rejected cannot be regarded as an infringement of the obligation to state the reasons on which the judgment is based (judgment of 22 May 2014, Armando Álvarez v Commission, C‑36/12 P, EU:C:2014:349, paragraphs 31 and 32). On that basis, it is clear that, in paragraph 37 of the order under appeal, the General Court’s reasoning for its finding that there had been no infringement of the principle of the protection of legitimate expectations was adequate inasmuch as it explains why the assurances that could give rise to justified expectations were deemed to be lacking in the present case. That reasoning enables the appellant to ascertain the reasons for which the General Court did not uphold his arguments. The third ground of appeal must therefore, in so far as it alleges inadequate reasoning, be dismissed as manifestly unfounded.
23.      Secondly, concerning the alleged error of law referred to in the context of the present ground of appeal, the appellant seeks to call into question the factual analysis made in paragraph 37 of the order under appeal, according to which, since “none of the emails which the applicant received from the Parliament following the email of 28 April 2016 indicates that that institution considered itself to have received a complaint and even less that the offer of employment was an act adversely affecting the applicant”, the appellant cannot claim that the fact that his appeal against that offer of employment was held inadmissible infringes his legitimate expectations.
24.      Since the appellant restricts himself to putting forward arguments of a purely factual nature seeking the re-examination of the exchanges of correspondence with the Parliament, already examined by the General Court, those arguments are as such excluded from the scope of the review by the Court of Justice on appeal, the appellant not claiming any distortion of the facts (judgment of 29 March 2011, ThyssenKrupp Nirosta v Commission, C‑352/09 P, EU:C:2011:191, paragraphs 179 and 180). Consequently, the third ground of appeal, in so far as it alleges an error of law, is manifestly inadmissible.
25.      It follows that the third ground of appeal is in part manifestly inadmissible and in part manifestly unfounded.
 The fourth ground of appeal, concerning an error of law and inadequate reasoning so far as concerns the alleged infringement of the right to effective judicial protection

26.      By the fourth ground of appeal, the appellant challenges paragraph 38 of the order under appeal. As regards the alleged inadequacy of the reasoning, the considerations set out in the context of the third ground of appeal seem to me to be applicable by analogy inasmuch as the reasoning is clearly apparent from that paragraph of the order under appeal.
27.      In this connection, the issue of observance of the obligation to state reasons must be distinguished from the issue of the merits of such reasons, that latter issue falling within the scope of the substantive legality of the order under appeal. First, the reasoning of a decision consists in a formal statement of the grounds on which that decision is based. If those grounds are vitiated by errors, the latter will vitiate the substantive legality of the decision, but not the statement of reasons in it, which may be adequate even though it sets out reasons which are incorrect. Secondly, the fact that the General Court arrived at a different conclusion from the appellant on the merits cannot in itself vitiate the order under appeal for failure to state reasons (judgment of 20 May 2010, Gogos v Commission, C‑583/08 P, EU:C:2010:287, paragraph 35).
28.      As regards the merits, the appellant puts forward arguments of a factual nature which repeat, to a large extent, those already submitted in the context of the second ground of appeal.
29.      The appellant merely claims that the interpretation of Article 90(2) of the Staff Regulations upheld in the order under appeal infringes his right to an effective remedy. Those claims are not such as to call into question the legality of the requirements laid down in the Staff Regulations and the present ground of appeal may therefore be discounted as manifestly unfounded.
 The fifth ground of appeal, alleging inadequate reasoning so far as concerns the finding that there was no infringement of the principle of good administration

30.      By the fifth ground of appeal, the appellant alleges infringement of Article 41(1) to (3) of the Charter of Fundamental Rights of the European Union. In paragraph 39 of the order under appeal, the General Court concluded, with regard to the alleged infringement of the principle of good administration, that the appellant merely cited extracts from that provision and invoked the same arguments as those already rejected in the order under appeal in connection with the other pleas in law. I note that the present ground of appeal is not substantiated by any facts or points of law.
31.      In any event, the obligation to state reasons does not require the General Court to provide an account which follows exhaustively and one by one all the arguments put forward by the parties to the case and its reasoning may therefore be implicit on condition that it enables the persons concerned to know why the General Court has not upheld their arguments and provides the Court of Justice with sufficient material for it to exercise its power of review on appeal (judgment of 20 May 2010, Gogos v Commission, C‑583/08 P, EU:C:2010:287, paragraph 30). 
32.      That is the case here. Even if the reasoning in paragraph 39 of the order under appeal is rather succinct, the fact remains that it enables the parties concerned and the Court of Justice to know the reasons for the General Court’s finding.
33.      The fifth ground of appeal is therefore manifestly unfounded.
 Conclusion

34.      It follows from all of the foregoing that the appeal must be dismissed in its entirety.’

5        For the same reasons as those given by the Advocate General, the appeal must be dismissed as being in part manifestly inadmissible and in part manifestly unfounded.
 Costs

6        Under Article 137 of the Rules of Procedure, applicable to the procedure on appeal pursuant to Article 184(1) of those rules, a decision as to costs is to be given in the order which closes the proceedings. Here, since the present order was adopted before the appeal was served on the defendant at first instance and therefore before the latter could have incurred costs, it must be held that the appellant is to bear his own costs.
On those grounds, the Court (Ninth Chamber) hereby orders:
1.      The appeal is dismissed as in part manifestly inadmissible and in part manifestly unfounded.

2.      Mr Kevin Karp is to bear his own costs.

Luxembourg, 19 June 2018.

A. Calot Escobar
 
C. Vajda

Registrar      President of the Ninth Chamber

*      Language of the case: English.