European Parliament v Roland Bieber.
Date: 2000-03-16
30 On this point, it must be noted that under Article 168a of the EC Treaty (now Article 225 EC) and Article 51 of the EC Statute of the Court of Justice an appeal is limited to points of law and must be based on the 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 the Court of First Instance (see, inter alia, Case C-136/92 P Commission v Brazzelli Lualdi and Others [1994] ECR I-1981, paragraph 47, and Case C-7/95 P Deere v Commission [1998] ECR I-3111, paragraph 18).
31 It also follows from the above provisions that an appeal may be based only on grounds relating to the infringement of rules of law, to the exclusion of any appraisal of the facts. The Court of First Instance has exclusive jurisdiction, first, to establish the facts except where the substantive inaccuracy of its findings is apparent from the documents submitted to it and, second, to assess those facts. When the Court of First Instance has established or assessed the facts, the Court of Justice has jurisdiction under Article 168a of the Treaty to review the legal characterisation of those facts by the Court of First Instance and the legal conclusions it has drawn from them (see, inter alia, Brazzelli Lualdi, paragraphs 48 and 49, and Deere, paragraph 21).
34 As to the Court of First Instance's interpretation of Article 40(4)(d) of the Staff Regulations in paragraphs 36 and 37 of its judgment, it must be recalled, first, that it appears from the case-law of the Court of Justice that, while an institution has a discretion as regards the assessment of whether an official is qualified to fill a post which is vacant, the failure of an institution to reinstate an official where a post capable of being filled by him has fallen vacant shortly after the expiry of his leave on personal grounds nevertheless constitutes a breach of Article 40(4)(d) of the Staff Regulations (Sergy v Commission, paragraphs 13 to 15). The fact that an official has failed to draw the institution's attention to the fact that he was not being reinstated within the normal time is of no relevance for determining the date on which the institution had to comply with Article 40(4)(d) of the Staff Regulations (see Sergy, paragraphs 20 and 21).
36 It should be pointed out, next, that the Court held in paragraphs 6 to 10 of Giry v Commission that in view of the facts of that case, namely the official's persistence with a written request for termination of his service which he had made before the expiry of his leave, the refusal of which he had contested by administrative complaint and application to the Court, an institution could have doubts as to the genuineness of the official's intention to make himself available to the institution, and the obligation to reinstate the official at the first opportunity became certain only once those doubts had been definitively dispelled.
57 To make the end of the period used to calculate the damage suffered correspond to the date of acceptance of the offer of a post would be to accept that an official may, by his failure to act, increase the damage he suffers, even though the institution which is at fault has taken all necessary steps to limit the damage flowing from its breach of Article 40(4)(d) of the Staff Regulations. The failure of the Court of First Instance to take this into account is manifestly contrary to the general principle recognised in the Court's case-law that, in the context of non-contractual liability, the injured party must show reasonable diligence in limiting the extent of the damage (see, inter alia, Sergy v Commission, paragraph 41, Giry v Commission, paragraph 19, and Joined Cases C-46/93 and C-48/93 Brasserie du Pêcheur and Factortame [1996] ECR I-1029, paragraph 85).