Report of the Judge-Rapporteur in Case C-354/92 P
I — Facts and procedure before the Court of First Instance
1. It is apparent from the judgment of the Court of First Instance of 10 July 1992 in Joined Cases T-59/91 and T-79/91 Eppe v Commission [1992] ECR II-2061 that: On 9 January 1990 Franz Eppe, an official in Grade A 4, a Head of Unit in the Commission's Directorate General for Agriculture (‘DG VF’), had a meeting with his Director General at which he expressed his general dissatisfaction in the unit of which he was in charge and asked to be assigned to other duties more appropriate to his experience and knowledge. On 12 February 1990, he confirmed the views put forward at that meeting by a memorandum to his Director General. Following that memorandum, Mr Eppe had a meeting with his Director General on 14 March 1990 during which he stated that, in principle, he was agreeable to being transferred. Three months later, on 21 June 1990, he sent to his Director General, through official channels, a memorandum indicating that he withdrew his agreement in principle to a transfer unless it entailed his promotion to Grade A 3. In a memorandum of 25 June 1990, the Director General of DG VI set out the reasons for, and the objectives of, a reorganization of the Directorate General. Paragraph 4 of Annex I to that memorandum proposed the creation of a post of ‘Adviser’ to Directorate VI. G (EAGGF). On 6 August 1990, Mr Eppe protested to his Director General about the proposal submitted by the latter to the Director General for Personnel and Administration for changes to be made to the organization chart of DG VI, in so far as that proposal involved a change of assignment for him. Accordingly, on 18 September 1990, he asked the Secretary General of the Commission not to make any immediate change to the organization chart as far as he was concerned, so as to avoid any comparison with the transfer of another Head of Unit ‘concerning the disciplinary nature of which the public was in no doubt’. On 15 October 1990 the Secretary General replied that he had suggested to the Director General of DG VI that he should differentiate between the two cases. On 17 October 1990 the Commission approved the new organization chart of DG VI. By memorandum of 6 November 1990, the Director General of DG VI confirmed to Mr Eppe that he had been appointed Adviser to DGVIG, EAGGF. The memorandum stated that the appointment implied no judgment concerning the manner in which he had discharged the duties of Head of Unit VI-BI-4. On 9 November 1990, the Director General for Personnel and Administration notified him that the Commission decision of 17 October 1990 had been confirmed. On 17 November 1990, Mr Eppe submitted a complaint against the Commission decision of 17 October 1990. In it the applicant claimed in particular that the Commission had not observed, with respect to him, the principle, referred to in the memorandum from the Director General of 25 June 1990 concerning the redeployment procedure, that officials would be asked to volunteer. Taking the view that he had been transferred against his will and seeking to ‘uphold his honour’, on 14 January 1991 the applicant applied for his former post. By memorandum of 14 February 1991, the secretary of the Advisory Committee on Appointments informed the applicant that his application would not be taken into consideration on that occasion. On 25 February 1991, Mr Eppe lodged a further complaint concerning: first, the Commission's decision to publish the vacancy notice for his post; secondly, the appointment of Mr V. to that post; and, thirdly, the rejection of his candidature for that post.
2. The Commission rejected both complaints and Mr Eppe brought two actions, on 5 August 1991 and 7 November 1991, which were registered in the Court of First Instance as Cases T-59/91 and T-79/91 respectively. By order of the President of the Fifth Chamber the Court of First Instance of 15 May 1992, the cases were joined for the purposes of the oral procedure and judgment.
3. The applicant claimed that the Court of First Instance should: In Case T-79/91, the applicant claimed that the Court should: The Commission contended that in both cases the Court should:
‘— declare the present action admissible and well founded;
— consequently, annul the Commission's decision of 17 October 1990 in so far as it changes the organization chart of DG VI and at the same time assigns the applicant, by compulsory transfer, to the new post of EAGGF Adviser, as notified to the applicant by letters of 6 and 9 November 1990;
— order the defendant to pay the costs in their entirety’.
‘— declare the present action admissible and well founded;
— consequently, annul the Commission decision to publish, on 20 December 1990, Vacancy Notice No COM/164/90 for the post of Head of Unit VI-BI-4;
— annul the decision of 7 March 1991 appointing Mr F. V. to that post;
— annul the rejection of the applicant's candidature for that post;
— order the defendant to pay the costs’.
‘— dismiss the application as unfounded;
— order the applicant to bear his own costs’.
4. In support of his application in Case T-59/91 the applicant had put forward seven pleas in law: 1 Noncompliance with the redeployment procedure, as defined by the memorandum from the Director General of 25 June 1990; 2 Infringement of Article 7(1) of the Staff Regulations; 3 — Misuse of powers; 4 Infringement of the duty to have regard to the interests of officials, in that the Commission wholly failed to take account of the personal interests of the applicant; 5 — Breach of the principle of the protection of legitimate expectations; 6 Breach of the principle of nondiscrimination, in that another newly created executive post was, by contrast with that of the applicant, filled on a voluntary basis; 7 Infringement of Article 25 of the Staff Regulations, in that the contested decision did not contain a sufficient or correct statement of reasons. In support of his application in Case T-79/91 the applicant referred to the consequences of the illegality of his transfer alleged in his first action and claimed that a manifest error of assessment was made concerning the rejection of his application for his old post and, secondly, Article 25(2) of the Staff Regulations was infringed as regards the statement of the reasons on which that rejection was based.
II — The contested judgment
5. The Court of First Instance dismissed the actions, in particular on the following grounds: ‘The first action ... Breach of the duty to have regard to the interests of officials ... 67 In the present case, the Commission satisfied the requirements imposed on it by the duty to have regard to the interests of officials by clearly indicating to the applicant, by the letter from the Secretary General of 15 October 1990 and the letter of 6 November 1990 from the Director General, that the decision concerning him involved no judgment as to the manner in which he had discharged the duties of Head of Unit VI-BI-4 and that, on the contrary, it was simply a response to the legitimate concern to ensure that an experienced qualified lawyer undertook a first analysis and legal coordination of all the very numerous measures governing the EAGGK ... Breach of the prindple of non-discrimination 80 This Court finds that, since the procedure followed with regard to the applicant was not in any way vitiated, the applicant cannot claim that the fact that another official was the subject of the same measure under a different procedure constitutes discrimination. ... Failure to state the reasons on which a measure is based ... 90 This Court observes that it is settled law that the grounds of a decision arc sufficiently disclosed if the contested measure was adopted in circumstances with which the person concerned is familiar, thus enabling him to apprehend the scope of the measure taken in relation to him (Case 125/80 Arning, Joined Cases 36, 37 and 218/81 Seton, and Joined Cases C-116 and C-149/88 Hecą, cited above). 91 It is apparent from the various memoranda exchanged by the parties in 1990 that the applicant perfectly understood the scope of the measure adopted in relation to him. 92 However, it is necessary to consider, first, whether the letters of 6 and 9 November 1990 are inconsistent as far as the basis of that measure is concerned, since the first indicated that the measure formed an integral part of the general redeployment exercise described in the memorandum of 25 June 1990 whilst the second placed that measure in the context of the modification of the organization chart; secondly, it should be examined whether that contradiction was capable of misleading the applicant as to the procedure to be followed in relation to him. 93 In order to answer those questions it must be borne in mind that the redeployment procedure was not applicable to the applicant, contrary to the impression that might have been given by the letter of 6 November 1990. Any imprecision in that regard was remedied by the Commission first by its letter of 9 November 1990 and secondly by its reply to the applicant's complaint, in which it clearly indicated that ‘that procedure was intended only for the mobility of staff not holding the rank of Head of Unit’. ... The second action... The illegality of the rejection of the applicant's candidature for his former post ... 113 In the present case, the Court finds that when the Advisory Committee on Appointments undertook the comparative examination of the merits of the various candidates for the post to be filled it did not have the applicant's last staff report before it. It is therefore necessary to ask whether the absence of that report could have been prejudicial to the applicant and whether, in those circumstances and having regard to the other documents in the applicant's file, the appointing authority had reasonable grounds for rejecting his candidature for his former post. 114 In that regard it must be emphasized that the Advisory Committee on Appointments and the appointing authority had various sources of information before them on the basis of which to appraise the applicant's candidature and to undertake an examination of his merits in comparison with those of the other candidates: in the first place, the excellence of the applicant's previous reports, to which his latest report could add little; secondly, the fact that the applicant had on numerous occasions expressed his desire, whilst in that post, to leave it, on the one hand by applying in several instances for other posts that had been declared vacant and, on the other, by asking his Director General, on 9 January 1990, for a reassignment; thirdly, the fact that in his curriculum vitae accompanying his application, the applicant had stated: ‘I hereby apply for post COM/164/90 with a view to securing my promotion to Grade A 3 when the appointment is made’, a statement which, in itself, could justify the rejection of the applicant's candidature by the Advisory Committee on Appointments and the appointing authority, since the Advisory Committee on Appointments had decided, at an earlier stage, that the post to which the applicant's candidature related was to be filled at Grade A 5/A 4; and fourthly, the fact that the applicant was the previous holder of the post to be filled and that the appointing authority had transferred him, against his will, to another department in a manner which the Court of First Instance has found to be in conformity with the interests of the service. ...’
6. It should also be borne in mind that the Court of First Instance declared inadmissible under Article 48(2) of the Rules of Procedure the plea in law concerning the ‘the injury suffered by him through non-application to him of the procedure laid down in the Commission decision of 19 July 1988 ...’ as being a new plea put forward at the stage of the reply in relation to the alleged infringement of Article 25 (paragraph 96 of the judgment).
7. The Court of First Instance gave judgment, for the above reasons and other reasons not relevant to this appeal, in the following terms:
‘1) The actions are dismissed;
2) The parties are ordered to bear their own costs’.
III — Object of the appeal and forms of order sought
8. By application lodged at the Registry of the Court of Justice on 11 September 1992, Mr Eppc appealed against the abovementioncd judgment of the Court of First Instance on the ground that it was vitiated by a breach of procedure adversely affecting his interests and had been given in breach of Community law. Mr Eppe claims that the Court of Justice should:
‘— uphold this appeal;
— consequently, declare it to be admissible and well founded and set aside the judgment of the Court of First Instance of the European Communities of 10 July 1992 in Joined Cases T-59/91 and T-79/91 Eppe v Commission [1992] ECR II-2061, drawing the legal consequences as regards the appellant's situation;
— order the defendant to pay all the costs and, in the event of the appeal being dismissed, take account of the circumstances in which the dispute developed and the defendant's attitude towards the appellant in that it unreasonably and vexatiously caused him to incur costs’.
9. The Commission contends that the Court of Justice should:
‘— dismiss the appeal as unfounded;
— order the appellant to pay the costs, including those of the defendant’.
10. In his reply, Mr Eppe set out his claims in detail in the following terms, to the effect that the Court should: Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court assigned the case to the Fifth Chamber and decided, pursuant to Article 120 of the Rules of Procedure, to dispense with the oral phase of the procedure.
‘— grant the forms of order sought by him, as set out in his appeal, subject to the clarifications given below regarding costs;
— as regards the costs, order the Commission to pay the costs in their entirety pursuant to the second subparagraph of Article 69 of the Rules of Procedure, since it acted unreasonably and vexatiously;
— otherwise, order that the costs be shared, with the defendant paying the major share for the reasons set out in the notice of appeal and in this reply;
— reject the defendant's contention that the appellant, having acted unreasonably and vexatiously, should be ordered to pay the costs in their entirety;
— make the appropriate order as to costs’.
Summary of the pleas in law and arguments of the parties
In support of his appeal, the appellant claims that the contested judgment is vitiated by a breach of procedure which adversely affects his interests (A below). He also advances four pleas in law alleging that the contested judgment is incorrect in law (B below).
A — The breach of procedure
11. First, the Court of First Instance should have taken account of the arguments supporting the plea as to breach of the obligation to state the reasons on which a decision is based (Article 25 of the Staff Regulations) and breach of the principle of nondiscrimination, namely failure to observe the Commission decision of 19 July 1988 concerning the filling of intermediate executive posts and failure to observe Article 29(1) of the Staff Regulations. Even though counsel for the applicant made it clear at the hearing before the Court of First Instance that those arguments were not to be regarded as ‘pleas in law’, that did not mean that they should not be taken into account in support of the pleas put forward. Secondly, the appellant contests the reasoning of the Court of First Instance in paragraphs 113 to 115 of its judgment (in particular paragraph 114) regarding the comparative examination of the applicant's merits and those of the other candidates. The Commission contends, first, that, however subtle the distinction which the appellant purports to draw between the concepts of ‘plea in law’ and ‘argument’, the Court of First Instance established, in its sole discretion, that the applicant had waived the right to allege any breach of the procedures laid down in Article 29 of the Staff Regulations or the Commission decision of 19 July 1988. It matters little in that regard whether the waiver concerned a plea in law or an argument. Moreover, that assessment of fact by the Court of First Instance — not an assessment of law — cannot be examined by the Court of Justice. In any event, Article 29 of the Staff Regulations is not intended to govern a procedure for reassignment of an official with his post such as is at issue in this case. Secondly, the Court of First Instance's statement that the ‘Advisory Committee on Appointments and the appointing authority had sufficient information to enable them reasonably to reject the applicant's candidature for his previous post’ is also an irrefutable rinding of fact and cannot be reviewed by the Court of Justice. In his reply, the appellant objects to the Commission's classification of the contested decision of 17 October 1990. He considers that a measure reassigning him with his post was impossible because the organization chart changed on that occasion indicated that his previous post was vacant and, moreover, he was transferred to the newly created post of EAGGF adviser, and therefore without his post.
B — Errors of law
(1) Breach of the obligation to state reasons (Article 25 of the Staff Regulations)
12. The appellant states, first, that the reasons given for his transfer, based on the need for redeployment, as indicated by the memorandum from the Director general of DG VI of 25 June 1990, were incorrect. The legal basis of the measure adversely affecting him was to be found in the Commission decision of 19 July 1988. The Court of First Instance therefore erred in law by not examining the legality of the contested decision as regards observance of the procedure laid down by the decision of 19 July 1988. Secondly, the appellant refers to the Court of First Instance's conclusion that any ‘imprecision’ in the letter of 6 November 1990 from the Director General of DG VI had been ‘remedied’ by the letter of 9 November 1990 from the Director General of Personnel and Administration (paragraph 93 of the contested judgment). The appellant asks how the second letter could have been regarded as ‘remedying’ the first when both of them reached him at about the same time. He also wonders why, in a redeployment procedure intended only for the ‘mobility of staff not holding the rank of Head of Unit’, an official in Grade A 4 who had discharged his duties for a period of two years in an entirely satisfactory manner should enjoy less protection against a compulsory transfer than another official who was ‘merely in Grade A 4’. The Commission observes, first, that the appellant does not claim in this plea in law that the Court of First Instance erred in law by declaring inadmissible the plea alleging a breach of the procedure laid down in the Commission decision of 19 July 1988, since he had waived the right to put forward any such plea. Secondly, the finding of the Court of First Instance regarding any imprecision in the letter of 6 November 1990, rectified by the letter of 9 November 1990 and the reply to the complaint, falls within the exclusive purview of the Court of First Instance and cannot be therefore reviewed by the Court of Justice. In his reply, the appellant insists that the Court of First Instance should have treated as admissible his argument as to noncompliance with the decision of 19 July 1988 since examination of the reasons given for the contested decision involves determining its legal basis, which itself indicates the appropriate procedure. Secondly, in the appellant's view, the conclusion reached by the Court of First Instance in paragraph 93 of the contested judgment is a matter of law, because, in particular, of the legal basis, which determines what procedure should have been followed.
(2) Breach of the principle of non-discrimination
13. The appellant refers to the Court of First Instance's conclusion that ‘the procedure followed with regard to the applicant was not in any way vitiated’ (paragraph 80 of the judgment). However, he considers that he has demonstrated that the procedure provided for by the decision of 19 July 1988 was not observed. The Commission insists that the plea alleging breach of that procedure is inadmissible. Moreover, the situations referred to differ from each other. In his reply, the appellant observes that both cases concerned an intermediate executive post in relation to the decision of 19 July 1988, both newly created at the same time and filled by appointing officials in Grade A4.
(3) The illegality of the rejection of the appellant's candidature for his own post
14. The appellant observes that he should not be placed at a disadvantage as a result of his staff report for 1987 to 1989 not having been prepared until 22 January 1991. Moreover, the Advisory Committee on Appointments and the appointing authority took no account of his staff report for 1989 to 1991. The Commission states that, contrary to the appellant's assertion, the findings of the Court of First Instance (in paragraphs 114 and 115 of its judgment) fall within its exclusive jurisdiction to appraise the facts.
(4) Breach of the duty to have regard to the welfare of officials
15. The appellant considers that it is incorrect to say that the Commission observed its duty to have regard to the welfare of officials (paragraph 67 of the contested judgment). By deciding that the appellant should be compulsorily transferred, without the possibility of promotion being examined, the Commission reinforced the impression that his superiors were prompted to arrange for his transfer on disciplinary grounds. He expresses doubts as to whether the letters of 6 November 1990 and 15 October 1990 properly made clear that that was not the case and whether the Commission did in fact do everything in its power to protect the appellant's reputation and honour. The Commission again considers that what is involved is a finding of fact, which the Court of Justice cannot examine.
16. The appellant also stated in his reply that he ‘therefore expressly maintains all the pleas in law and arguments contained in his original applications’, observing in paragraph 30 of his notice of appeal that he contested the judgment in particular because it ‘... failed correctly to apply Community law — in this case the law governing the Community civil service — in his regard’.
17. With regard to costs, the appellant states that account must be taken of the uncertainties as to the real reasons for and legal basis of his transfer. He also insists that, when he considered that his honour was at stake, the Commission did nothing to defend him but, on the contrary, allowed doubt to persist. He therefore regards the Commission's attitude as vexatious. The Commission's contention that he never pursued any aim other than that of securing promotion to Grade A 3 is particularly injurious. The Commission states that the notice of appeal contains no plea as to a ‘vexatious’ attitude on the part of the Commission and must therefore be dismissed. Moreover, since the appeal is manifestly inadmissible and unfounded, the Commission's costs in the appeal proceedings have been incurred as a result of unreasonable behaviour and, pursuant to Article 122 of the Rules of Procedure, the appellant should be ordered to pay them in their entirety. In his reply, the appellant considers that, under the second subparagraph of Article 69(3) of the Rules of Procedure, he is entitled to ask for reimbursement of the costs which he has unreasonably or vexatiously been caused to incur even if his action is unsuccessful. In the alternative, he seeks application of the second indent of the second paragraph of Article 122, namely an order that the parties be ordered to share the costs, with the Commission paying the major share thereof to ensure equity. Furthermore, as a matter of principle, the requirement in Article 122 of the Rules of Procedure that an appellant pay the Commission's costs applies where the appeal has failed and therefore the claim that he should pay them because of unreasonable or vexatious behaviour is inappropriate and irrelevant. The Commission, in its rejoinder, states that it did not challenge the correctness of the appellant's observations as to the proper interpretation of the second subparagraph of Article 69(3) of the Rules of Procedure of the Court of Justice, nor at any time did it adopt a ‘vexatious’ attitude towards the appellant.
G. C. Rodriguez Iglesias
Judge-Rapporteur
1 Language of the case: French.