JUDGMENT OF THE COURT OF FIRST INSTANCE (Fifth Chamber)
21 July 1998 (1)
(Officials Admissibility Establishment Legitimate expectations Equal
treatment)
In Joined Cases T-66/96 and T-221/97,
John Mellett, a member of the temporary staff at the Court of Justice of the
European Communities, residing at 61 Rue des Maraîchers, Plateau du Kirchberg,
Luxembourg, represented by Brendan O'Donovan, Solicitor, and Conor Quigley,
Barrister, with an address for service in Luxembourg at the aforementioned
address,
v
Court of Justice of the European Communities, represented by Timothy Millett,
Legal Adviser, acting as Agent, with an address for service in Luxembourg at the
office of Mr Millett, Court of Justice, Kirchberg,
APPLICATION, in Case T-66/96, for annulment of the decision of the Court of
Justice of the European Communities of 14 June 1995 and, in Case T-221/97, for
annulment of the decisions of the President of the Court of Justice of 17 October
1996 and 4 December 1996 not to commence the procedure leading to the
establishment of the applicant as a permanent official,
THE COURT OF FIRST INSTANCE
OF THE EUROPEAN COMMUNITIES (Fifth Chamber),
composed of: J. Azizi, President, R. García-Valdecasas and M. Jaeger, Judges,
Registrar: A. Mair, Administrator,
having regard to the written procedures and further to the hearings on 17 February
1998 and 16 June 1998,
gives the following
Judgment
I Legal background
- 1.
- Point 1 of the decision concerning the recruitment and establishment of drivers of
the Members of the Court, adopted by the Court on 30 June 1976 (hereinafter 'the
1976 Decision), provides that drivers are to be engaged as temporary staff on the
basis of Article 2(c) of the Conditions of Employment of Other Servants
(hereinafter 'the Conditions of Employment). Point 2 of the 1976 Decision
provides that: 'La procédure de titularisation pourra être entamée après trois
années de service sur proposition du Membre auprès duquel le chauffeur est
affecté. Après un concours interne, les chauffeurs sont nommés fonctionnaires
stagiaires dans la carrière D 3 - D 2. [The establishment procedure may be
commenced after three years' service on a proposal from the Member to whom the
driver is assigned. After an internal competition, drivers shall be appointed
probationary officials in career bracket D 3 D 2.]
- 2.
- In 1995, the exercise of the powers of the appointing authority within the defendant
institution was regulated by the Decision of the Court of 25 January 1995 on the
exercise of the power of appointment (hereinafter 'the Decision on the appointing
authority) and by the Decision of the Court of 25 January 1995 on the
Administrative Committee of the Court (hereinafter 'the Decision on the
Administrative Committee). Under those decisions, the President of the Court is
given the power to appoint drivers in the Chambers of a Member of the Court
(hereinafter 'drivers) as temporary staff (Article 7(3) of the Decision on the
appointing authority) and to appoint them as officials (Article 5(3) of the Decision
on the appointing authority). However, the Administrative Committee is
competent to take any decision of an administrative nature in the name of the
Court, particularly as regards the organisation and functioning of the institution
(second paragraph of Article 2 of the Decision on the Administrative Committee),
save that the full Court retains the competence to approve the preliminary draft
budget before it is transmitted to the budgetary authority (third paragraph of
Article 2 of the Decision on the Administrative Committee).
- 3.
- On 9 June 1994 the Head of the Personnel Division, Mr Pommiès, sent a
memorandum to the Registrar of the Court, Mr Grass, entitled 'Avant-projet de
budget 1995 présentation du tableau des effectifs emplois affectés aux cabinets
des Membres (catégories B, C et D). [Preliminary draft budget 1995
presentation of the list of posts posts attached to the Chambers of the Members
of the Court (Categories B, C and D).] He explained that 'préparation de l'avant-projet de budget destiné à couvrir les besoins de l'institution à la suite des
prochaines adhésions pourrait être l'occasion de procéder à une refonte du tableau
des effectifs consistant à regrouper dans les emplois temporaires, avec les emplois
de référendaires, les emplois affectés aux cabinets des membres de la Cour, c'est-à-dire les emplois B et C du personnel de secrétariat et les emplois D des
chauffeurs. [Preparation of the preliminary draft budget intended to cover the
institution's needs as a result of the forthcoming accessions might be an appropriate
occasion for a reorganisation of the Court's list of posts consisting of regrouping in
the temporary posts, along with the legal secretaries' posts, the posts attached to
the Chambers of the Members of the Court, that is to say the secretarial posts in
Categories B and C and the drivers' posts in Category D.] According to the author
of the memorandum, that modification of the Court's list of posts had the dual
advantage of, on the one hand, translating into budgetary terms the administrative
practice of filling posts within the Chambers no longer by the appointment of
officials but by the recruitment of members of temporary staff, thus preserving the
freedom for Members to choose their close collaborators and, on the other, it
would make it easier to offer career prospects to staff in the Chambers.
- 4.
- On 14 June 1994 the Registrar sent a memorandum to the Members of the Court
entitled 'Budget lettre rectificative élargissement à l'état prévisionnel 1995
[Budget amendment to the estimate for 1995 (enlargement)] in which he
proposed that, in addition to the legal secretaries' posts, the other posts attached
to the Chambers of the Members of the Court and of the Court of First Instance
be included under the heading 'temporary posts, that is to say the secretarial
posts in Categories B and C and the drivers' posts in Category D.
- 5.
- At its administrative meeting of 11 July 1994, the Court approved that proposal.
Point 8 of the minutes of the administrative meeting of the Court of 11 July 1994
reads as follows: '... La Cour approuve également la proposition de demander à
l'autorité budgétaire une modification du tableau des effectifs consistant à
regrouper, dans les emplois temporaires, l'ensemble des emplois affectés aux
cabinets des membres, c'est-à-dire les emplois B et C du personnel de secrétariat
et les emplois D des chauffeurs (sauf ceux qui sont actuellement occupés par des
fonctionnaires affectés aux cabinets). ... [... The Court also approves the proposal
to ask the budgetary authority for a modification of the Court's list of posts
consisting of regrouping, in the temporary posts, all of the posts attached to the
Chambers of the Members, that is to say the secretarial posts in Categories B and
C and the drivers' posts in Category D (except those which are currently held by
officials assigned to the Chambers of the Members). ...] (hereinafter 'the Court's
decision of 11 July 1994).
- 6.
- The Court's request was accepted by the budgetary authority when the 1998 budget
was adopted.
II Facts and procedure
- 7.
- In 1970, the applicant, Mr Mellett, joined the Irish Defence Forces. His duties
mainly entailed work as a driver, bodyguard and courier.
- 8.
- Soon after his appointment as a Judge of the Court in October 1991, Judge Murray
asked Mr Mellett to become his personal driver. The applicant claims, and the
Court does not dispute this, that he told Judge Murray that he would be willing to
accept this new career on condition that he had some prospect of becoming a
permanent member of staff at the Court. On the basis of information received
from officials at the Court, Judge Murray informed him that he would be a
member of the temporary staff for his first three years of service, on the
completion of which he would become a permanent member of staff, provided that
Judge Murray made a proposal to that effect. Mr Mellett claims that he accepted
the position as driver on that basis. He states that a Category C official of the
Personnel Division, acting in the course of her duties, explained to him that, as a
matter of practice, drivers on temporary contracts were established as permanent
officials after completing three years' satisfactory service. He adds that the Deputy
Registrar, Mr Cranfield, confirmed that information and stated that any change in
that practice would only apply to those drivers who entered into service after the
date of any such change.
- 9.
- In order to assist Mr Mellett in obtaining leave of absence from the Irish Army, the
Deputy Registrar, Mr Cranfield, wrote to the Secretary of the Department of
Defence on 22 April 1992. In that letter he confirmed that Mr Mellett would be
engaged as a member of the temporary staff and, after pointing out that the Staff
Regulations limited the duration of such contracts to a maximum of three years, he
added: 'In the normal course of events, we would expect Mr Mellett to participate
in an internal competition to become a permanent member of staff in the third
year of his appointment if all works out correctly. On the basis of that request,
Mr Mellett was granted leave of absence for a period of three years; that leave was
subsequently extended.
- 10.
- By letter dated 14 April 1992, Mr Mellett was offered a contract as a member of
the temporary staff for an indefinite period from 16 May 1992. By letter dated 23
April 1992 Mr Mellett indicated that he accepted that offer. On 14 May 1992, Mr
Mellett and the Head of the Personnel Division signed a contract by which Mr
Mellett was engaged as a member of the temporary staff on the basis of Article
2(c) of the Conditions of Employment.
- 11.
- Mr Mellett claims that he was informed by the Deputy Registrar, Mr Cranfield, in
February 1993 that he would be the last driver to be established as a permanent
official under the 1976 Decision. He also claims that Mr Cranfield told him, in
April 1994, that the procedure leading to his establishment would commence in the
autumn. Again according to the applicant, Judge Murray told him in July 1994 that
the Registrar of the Court had assured him that his establishment as a permanent
official would proceed in due course.
- 12.
- On 13 December 1994, Judge Murray sent a memorandum to the Registrar asking
him to examine the question of the establishment of his driver.
- 13.
- By a memorandum dated 7 March 1995 the Registrar replied that, at its
administrative meeting on 11 July 1994, the Court had ended the practice of
establishing the Members' drivers and had decided that, in future, drivers would
only be members of the temporary staff or seconded officials.
- 14.
- By a memorandum dated 7 April 1995 Judge Murray told the Registrar that Mr
Mellett had left his previous job to come to the Court as a driver on the footing
that he could be established on the basis of the practice then in force, which had
been expressly confirmed to Mr Mellett and to Judge Murray by the administration
at the time of Mr Mellett's engagement. Judge Murray therefore asked the
Registrar 'bien vouloir procéder à sa titularisation conformément à la pratique
bien établie [kindly to proceed to his establishment in accordance with the well-established practice].
- 15.
- By a memorandum in reply dated 19 May 1995, the Registrar stated that, by its
decision of 11 July 1994, the Court intended to put an end to the possibility for
Members' drivers to become established officials. As to whether that decision
applied to the members of the temporary staff employed at the Court as at 11 July
1994, Mr Mellett and six other drivers referred to by name, the memorandum
stated that 'M. le Président considère qu'à compter de la décision du 11 juillet
1994, la décision du 30 juin 1976 n'est plus applicable, et que, en conséquence, les
chauffeurs se trouvant dans la situation d'agent temporaire à cette date n'ont plus
vocation à être titularisés. Il ne lui paraît pas possible à cet égard de faire une
distinction entre ces agents selon qu'ils ont ou non reçu une information de
l'administration de la Cour sur une éventuelle abrogation de la décision du 30 juin
1976. [The President considers that as from the decision of 11 July 1994, the
decision of 30 June 1976 is no longer applicable and that, therefore, the drivers in
the position of members of the temporary staff at that date are no longer eligible
to be established. In this connection he does not consider it possible to draw a
distinction between those members of the temporary staff according to whether or
not they were notified by the administration of the Court about the possible repeal
of the decision of 30 June 1976.] Finally, the Registrar added that, if Judge Murray
wished, the question could be discussed in the Administrative Committee.
- 16.
- At the request of Judge Murray, the question was put to the Administrative
Committee on 14 June 1995 together with an explanatory memorandum, dated 6
June 1995, from the Head of the Personnel Division, Mr Pommiès, entitled
'Situation des chauffeurs de membres cas de M. John Mellett [Situation of the
drivers of Members of the Court Case of Mr John Mellett]. That memorandum,
which was prepared at the request of the Registrar, states, in particular, at point
5, that 'M. Murray a demandé que M. Mellett soit titularisé en application de la
décision du 30 juin 1976 [Mr Murray requested that Mr Mellet be established as
a permanent official pursuant to the Decision of 30 June 1976]. Annexed to thatmemorandum was, inter alia, a copy of a proposal for a new system of recruitment
and appointment of drivers of Members of the Court, dated 1 February 1993. That
proposal, which was prepared by the Head of the Personnel Division, provided as
follows: 'le nouveau régime devrait s'appliquer à tous les chauffeurs de membres
recrutés à compter de la date de sa mise en vigueur. ... A titre transitoire le
chauffeur de membre de la Cour engagé comme agent temporaire le 16 mai 1992,
sous l'empire de la décision de 1976, pourrait continuer à bénéficier de ces
dispositions et donc faire l'objet d'une procédure de titularisation après trois années
de service, sur proposition du membre concerné. En revanche, le nouveau régime
serait appliqué aux trois agents temporaires engagés en janvier 1993. Les
intéressés ont d'ailleurs été informés par écrit lors de la notification de leur
engagement que la possibilité d'abroger la décision de 1976 était en cours de
discussion et qu'ils ne pourraient pas s'attendre à une titularisation dans l'emploi
qu'ils étaient appelés à occuper. [The new scheme should apply to all Members'
drivers recruited with effect from the date on which it enters into force. ... As a
transitional measure, the driver of the Member of the Court who was recruited as
a member of the temporary staff on 16 May 1992, under the 1976 Decision, could
remain subject to the provisions of that decision and thus the procedure for his
establishment could be commenced after three years of service, on a proposal from
the Member concerned. However, the new scheme would be applied to the three
members of the temporary staff recruited in January 1993. Indeed, the persons
concerned were informed in writing at the time they were notified of their
recruitment that the possible repeal of the 1976 Decision was under discussion and
that they could not expect to become established in the posts they were called upon
to fill.] By agreement with the President of the Court of Justice, that proposal,
which had been approved by the Registrar, was submitted to the Administrative
Committee on 15 February 1993 and should subsequently have been submitted to
the administrative meeting. However, that proposal, which the administrative
committee had deferred to a subsequent meeting, was not re-entered on the
agenda of any administrative meeting.
- 17.
- With the exception of the applicant, all the drivers recruited between 1992 and 11
July 1994 were warned in writing, at the time when they were recruited, that
discussions concerning the amendment of the 1976 Decision were taking place and
that, in particular, they could not expect the system to be applied to them.
- 18.
- Point 4 of the minutes of the Administrative Committee's meeting on 14 June 1995,
is entitled 'Situation des chauffeurs de membres au regard de la décision de la
Cour du 11/07/1994 [Situation of the drivers of Members of the Court in the light
of the Court's decision of 11 July 1994] and reads as follows: 'Il est d'abord
rappelé que la Cour, par sa décision du 11/07/94 visant à demander à l'autorité
budgétaire la modification du tableau des effectifs, a mis fin à la possibilité de
titularisation des chauffeurs de membres prévue par la décision du 30 juin 1976.
Aprés discussion, le Comité administratif estime que la décision du 11/07/94 doit
être appliquée, sans exception, à l'égard de tous les chauffeurs se trouvant dans la
situation d'agent temporaire à cette date. [It is first recalled that the Court, by
its decision of 11 July 1994 to ask the budgetary authority for the modification of
the list of posts, has put an end to the possibility of establishing the Members'
drivers provided for by the decision of 30 June 1976. After discussion, the
Administrative Committee takes the view that the decision of 11 July 1994 must be
applied without any exceptions to all the drivers who were members of the
temporary staff at that date] (hereinafter 'the Decision of 14 June 1995 or 'the
contested decision). Judge Murray informed Mr Mellett of the Administrative
Committee's decision later that day.
- 19.
- On 21 June 1995, Mr Mellett addressed a memorandum to Judge Murray asking
him for a copy of the Administrative Committee's decision of 14 June 1995
rejecting the proposal to set in train the procedure for establishing him as a
permanent official, together with a statement of the reasons for its adoption.
- 20.
- By memorandum of 21 June 1995, Judge Murray asked the Registrar to furnish him
with a copy of the Administrative Committee's decision of 14 June 1995. No reply
has been received to that request.
- 21.
- On 13 September 1995, Mr Mellett made a complaint under Article 90(2) of the
Staff Regulations against the decision of the Administrative Committee of the
Court of 14 June 1995 not to commence the procedure leading to his establishment
as an official.
- 22.
- By a decision of 22 January 1996, notified to the applicant on 13 February 1996,
the Complaints Committee of the Court dismissed the complaint as inadmissible.
- 23.
- By application lodged at the Registry of the Court of First Instance on 13 May
1996, the applicant brought the action, registered under Number T-66/96, against
the decision of the Administrative Committee of the Court of Justice of 14 June
1995 not to commence the procedure leading to his establishment as a permanent
official.
- 24.
- In its pleadings in Case T-66/96, the Court of Justice submitted that the action was
inadmissible on the ground that the contested measure did not adversely affect the
applicant and that the latter had not submitted an individual request within the
meaning of Article 90(1) of the Staff Regulations of Officials of the European
Communities (hereinafter 'the Staff Regulations).
- 25.
- In view of that argument, Mr Mellett commenced two new preliminary procedures.
- 26.
- First, following a request from Mr Mellett, Judge Murray sent a memorandum to
the President of the Court, dated 11 July 1996, stating that he was prepared to
make a formal request for Mr Mellett's establishment as a permanent official. By
a memorandum of 22 July 1996, the President of the Court replied to Judge
Murray that he could only give a negative reply to such a request. On 1 October
1996, Judge Murray sent a further memorandum to the President of the Court
requesting that Mr Mellett be established as a permanent official. By a
memorandum dated 17 October 1996, the President of the Court informed Judge
Murray of his decision to refuse that request. By letter dated 14 November 1996,
Judge Murray sent Mr Mellett a copy of the memorandum of the President of the
Court of 17 October 1996. On 9 January 1997, Mr Mellett submitted a complaint,
registered under No 1/97-R, against the decision of the President of the Court of
17 October 1996 refusing to establish him as a permanent official.
- 27.
- Second, by a letter dated 9 September 1996, Mr Mellett submitted a request, within
the meaning of Article 90(1) of the Staff Regulations, to the President of the Court
in his capacity as appointing authority, to be appointed as a permanent official of
the Court assigned to the Chambers of Judge Murray. By memorandum of 4
December 1996, the President of the Court notified his decision to refuse that
request. On 9 January 1997, Mr Mellett submitted a complaint, registered under
No 2/97-R, against the decision of the President of the Court of 4 December 1996
refusing his request for establishment.
- 28.
- By a single decision dated 28 April 1997, received by Mr Mellett on 2 May 1997,
the Complaints Committee of the Court dismissed Complaint No 2/97-R, directed
against the decision of the President of the Court of 4 December 1996, as
unfounded and held that it was not necessary to rule on Complaint No 1/97-R,
directed against the memorandum of 17 October 1996.
- 29.
- In those circumstances, by application lodged at the Registry of the Court of First
Instance on 29 July 1997, the applicant brought the action, registered under number
T-221/97, for annulment of the decisions of the President of the Court of 17
October 1996 and 4 December 1996.
- 30.
- Upon hearing the report of the Judge-Rapporteur, the Court of First Instance
(Fifth Chamber) decided to open the oral procedures without any preparatory
measures of inquiry.
- 31.
- The parties presented oral argument and gave their replies to the Court's questions
at the hearings on 17 February 1998 and 16 June 1998. At the end of the hearing
on 17 February 1998, the Court did not close the oral procedure and accepted that
the defendant should reply, in writing, before 25 March 1998, to four questions
raised during the hearing on 17 February 1998 and repeated in writing on 5 March
1998. The defendant complied with that request by letter lodged at the Registry
of the Court of First Instance on 26 March 1998.
- 32.
- Having heard the views of the parties on joinder of the cases at the hearing on 16
June 1998, the Court considers that Cases T-66/96 and T-221/97 should be joined
for the purposes of the judgment.
III Forms of order sought
- 33.
- In Case T-66/96,
The applicant claims that the Court of First Instance should:
annul the decision of the Administrative Committee of the Court of Justice
of 14 June 1995 not to commence the procedure leading to his
establishment as a permanent official;
order the Court to pay the costs.
The defendant claims that the Court of First Instance should:
dismiss the application as inadmissible;
in the alternative, dismiss the application as unfounded;
order the applicant to bear his own costs.
- 34.
- In Case T-221/97,
The applicant claims that the Court of First Instance should:
annul the decision of the President of the Court of Justice of 17 October
1996 refusing to open a competition for the recruitment of a driver as a
permanent official assigned to the Chambers of Judge Murray and/or;
annul the decision of the President of the Court of Justice of 4 December
1996 refusing to appoint the applicant as a permanent official assigned to
the Chambers of Judge Murray;
order the Court to pay the costs.
The defendant contends that the Court of First Instance should:
dismiss the application as inadmissible or, in the alternative, as unfounded,
in so far as it seeks the annulment of the decision allegedly contained in the
memorandum of 17 October 1996 from the President of the Court of Justice
to Judge Murray;
dismiss the application as unfounded, in so far as it seeks the annulment of
the decision of the President of the Court of Justice of 4 December 1996
refusing the applicant's request for appointment as an established official;
order the applicant to bear his own costs.
Admissibility
A. Admissibility in Case T-66/96
Arguments of the parties
- 35.
- Without having requested, by separate document, that the Court rule under Article
114 of the Rules of Procedure, the defendant claims that the action is inadmissible.
- 36.
- The defendant, after pointing out that complaints and applications to the Court
may be directed only against an act of the appointing authority adversely affecting
the complainant or applicant (Case 33/80 Albini v Council and Commission [1981]
ECR 2141), claims that, in the present case, the measure for which annulment is
sought does not constitute an act adversely affecting the applicant.
- 37.
- It maintains that the only acts which may be considered as adversely affecting the
person concerned are those which produce binding legal consequences such as to
affect, directly and immediately, the applicant's interests by significantly changing
his legal situation (Case T-562/93 Obst v Commission [1995] ECR-SC I-A-247, p.
II-737, paragraph 23). A mere statement of a future intention on the part of the
appointing authority is not, however, capable of creating rights and obligations on
the part of officials (Joined Cases 269/84 and 292/84 Fabbro v Commission [1986]
ECR 2983). Similarly, general measures for the organisation of the departments,
for which the administration alone is responsible cannot constitute measures
adversely affecting the applicant within the meaning of the Staff Regulations
(Joined Cases 109/63 and 13/64 Muller v Commission [1964] ECR 663).
- 38.
- The defendant claims that the position adopted by the Administrative Committee
on 14 June 1995 is not an individual decision relating to the applicant but concerns
a category of temporary servants which, in addition to the applicant, comprises six
other drivers referred to by name in the Registrar's memorandum of 19 May 1995.
Furthermore, it maintains that it is clear from the minutes of the meeting of 14
June 1995, according to which 'le comité administratif estime que la décision du
11 juillet 1994 doit être appliquée, sans exception à l'égard de tous les chauffeurs
se trouvant dans la situation d'agent temporaire à cette date [the Administrative
Committee considers that the decision of 11 July 1994 must be applied without any
exceptions to all the drivers who were members of the temporary staff at that date]
that the position adopted by the Administrative Committee does no more than
confirm the general decision of the Court of 11 July 1994. The position adopted
by the Administrative Committee on 14 June 1995 thus constitutes a general line
of conduct applicable to all the drivers of the Members of the Court who were
members of the temporary staff as at 11 July 1994. That general line of conducthas not been translated into a decision directly and immediately affecting the
applicant's interests.
- 39.
- The applicant claims that the defendant's argument that the Administrative
Committee's decision of 14 June 1995 does not constitute an act adversely affecting
him should be rejected on three grounds and that the Administrative Committee's
decision of 14 June 1995 directly changed his legal position.
- 40.
- First, the applicant submits that the issue before the Administrative Committee of
the Court was at all times that of his establishment as a permanent official.
Moreover, it is clear from the correspondence between Judge Murray, the Registrar
and Mr Pommiès that this was the case. According to the applicant, the fact that
the issue was raised at a meeting of the Administrative Committee, which has
normally no role in the establishment of drivers, indicates that Judge Murray raised
that issue before that body. The applicant points out that the Administrative
Committee of the Court is competent to take any decision of an administrative
nature in the name of the Court and that, since the President of the Court had
decided to refuse Judge Murray's request of 7 April 1995 that he be established as
a permanent official (as is apparent from the Registrar's memorandum of 19 May
1995), Judge Murray was obliged to bring the matter before the Administrative
Committee. The matter of the establishment of the applicant was thus properly
put to that body at its meeting of 14 June 1995. He points out further that the
Registrar's memorandum of 19 May 1995 expressly suggested that Judge Murray
refer the question of the establishment of the applicant as a permanent official to
the Administrative Committee, if he so wished. Finally, in view of the disagreement
as to the true nature of the Administrative Committee's decision of 14 June 1995,
the applicant requests the Court to summons those Members of the Court who
were present at that meeting to appear in order to give oral evidence, under Article
64(4) of the Rules of Procedure of the Court of First Instance.
- 41.
- Second, the applicant points out that since 11 July 1994 he was the only person
coming within the scope of the decision of 30 June 1976 and concludes that the
issue was not whether an exception was to be made to the decision of 11 July 1994,
but whether he was to obtain the benefit of the regime in place from 1976. The
applicant notes that, as admitted in Mr Pommiès' memorandum of 6 June 1995, all
drivers recruited by the Court after him were informed by the administration that
the possible repeal of the 1976 decision was being considered and that they could
therefore not expect that decision to be applied to them.
- 42.
- Third, the applicant claims that it would have been futile for Judge Murray to have
asked the President of the Court to commence the procedure leading to his
establishment since the latter must comply with any decisions taken by the
Administrative Committee.
- 43.
- The applicant goes on to claim that his legal situation was immediately and directly
changed from the moment the Administrative Committee took its decision of 14
June 1995.
- 44.
- The Administrative Committee's decision of 14 June 1995 is no mere statement of
future intent, but an unequivocal ruling on the effect of the decision of 11 July 1994
upon the application of the 1976 Decision.
- 45.
- The applicant also points out that, in accordance with the decision of 30 June 1976,
which provides that the procedure for the establishment of a driver is to commence
on the basis of a proposal by the Member of the Court to whom the driver is
assigned, Judge Murray addressed a memorandum to the Registrar to that effect
on 13 December 1994.
- 46.
- Finally referring to the Opinion of Advocate General Mischo in Fabbro v
Commission (cited at paragraph 37 above, point 8), the applicant claims that, in
order for an action to be admissible, there is no need for an individual decision to
have been taken, but it is sufficient that the applicant can show that the contested
decision directly affected him and that he has a present and vested personal
interest in bringing the action. First, the Administrative Committee's decision of
14 June 1995 directly affected the applicant since it prevents the 1976 Decision
from being applied to him, and second, since he is the only person who can still
rely on the 1976 Decision, the applicant has a vested and present interest in
bringing this action.
- 47.
- The defendant rejects the three arguments put forward by the applicant to refute
the view that the Administrative Committee's decision of 14 June 1995 does not
constitute an act adversely affecting him.
- 48.
- First, contrary to what the applicant claims, the issue before the Administrative
Committee on 14 June 1995 was not the establishment of the applicant as a
permanent official but, rather, a confirmation of the general measure of
organisation of the Court's services adopted on 11 July 1994 in relation to an entire
category of drivers addressed in their generality. The defendant notes that the
memorandum from the Head of the Personnel Division, Mr Pommiès, of 6 June
1995 is entitled: 'Situation des chauffeurs cas de M. John Mellett and was
intended 'de vous adresser des éléments d'informations relatifs à la situation des
chauffeurs de membres [to provide you with information concerning the situation
of Members' drivers]. The memorandum does not therefore deal exclusively with
Mr Mellett's situation. In any event, that preparatory document could not in any
way prejudge the position adopted by the Administrative Committee on 14 June
1995.
- 49.
- Second, it is clear from the heading of point 4 of the minutes that the issue put
before the Administrative Committee on 14 June 1995 was not whether the
applicant's case should be dealt with under the 1976 Decision but, rather, whether
or not an exception could be envisaged to the Court's decision of 11 July 1994 for
one or other of the drivers who were members of the temporary staff at that date.
- 50.
- Third, the defendant stresses that the applicant himself never at any time submitted
a request to the appointing authority concerning his establishment but that all the
steps taken at the time were taken by Judge Murray and not by the applicant. The
defendant stresses that no request was submitted by the applicant under Article
90(1) of the Staff Regulations. In consequence, no decision concerning the
establishment of the applicant was ever taken or addressed to him. The defendant
adds that the applicant seems to acknowledge that this analysis is correct in so far
as he submitted a request to the appointing authority, on 11 September 1996, under
Article 90(1) of the Staff Regulations to be appointed as a permanent official
assigned to the Chambers of Judge Murray.
Findings of the Court
- 51.
- The defendant maintains that the Administrative Committee's decision of 14 June
1995 does not constitute a measure adversely affecting the applicant in so far as it
is not an individual decision relating to him but concerns a category of members
of the temporary staff including six other drivers in addition to the applicant. The
defendant adds that the decision of 14 June 1995 does no more than confirm the
general decision of 11 July 1994. It stresses that the applicant himself never at any
time submitted a request within the meaning of Article 90(1) of the Staff
Regulations and concludes that there is no decision directly affecting the applicant's
interests.
- 52.
- That argument cannot be accepted. On the one hand, the Administrative
Committee's decision of 14 June 1995 must be regarded as constituting the reply
to the request for the establishment of the applicant. On the other, in any event
in the light of the settled case-law, the Administrative Committee's decision of 14
June 1995 must be regarded as an adverse act since it affects the applicant.
- 53.
- First, as regards the subject-matter of the Administrative Committee's decision of
14 June 1995, it is apparent from an examination of the sequence of memoranda
preceding the decision of 14 June 1995 that, contrary to the defendant's assertion,
the question put to the Administrative Committee on 14 June 1995 was, indeed,
that of the establishment of the applicant.
- 54.
- The whole administrative procedure, the discussions and exchanges of memoranda
concerning the establishment of drivers commenced with Judge Murray's
memorandum of 13 December 1994, headed 'Titularisation de M. Mellett
[Establishment of Mr Mellett], in which he asked the Registrar 'be so kind as to
examine the question of the possible establishment of (my) driver, Mr John Mellett
.... Likewise, all subsequent memoranda leading up to the decision adopted at the
Administrative Committee's meeting on 14 June 1995 concerned the question of
the establishment of the applicant. Thus, the memorandum in reply sent by the
Registrar to Judge Murray on 7 March 1995 bears the heading 'Titularisation de
M. Mellett [Establishment of Mr Mellett]. Judge Murray's memorandum of 7
April 1995 also concerns only the question of Mr Mellett's establishment. The
Registrar's memorandum dated 19 May 1995 is again headed 'Titularisation de M.
Mellett Votre memorandum du 7 avril 1995 [Establishment of Mr Mellett your
memorandum of 7 April 1995]. It is true that, in that memorandum, the Registrar
refers to the situation of six other drivers employed as members of the temporary
staff at the Court as at 11 July 1994. It is, however, clear that that reference was
made only in order to focus on the specific circumstances of the applicant, as is
demonstrated by the statement of the President of the Court, contained in the
following paragraph of the memorandum, to the effect that there is no need to
draw a distinction between those members of the temporary staff according to
whether or not they were notified by the administration about the possible repeal
of the 1976 Decision. The memorandum ends, furthermore, with the sentence 'Si
vous le souhaitiez, la question pourrait être discutée au sein du comité
administratif. [If you wish, the question could be discussed in the Administrative
Committee]. Finally, Mr Pommiès' memorandum of 6 June 1995 to the Registrar,
in preparation for the Administrative Committee's meeting on 14 June 1995, is
headed 'situation des chauffeurs des membres cas de M. John Mellett.
[Situation of Members' drivers case of Mr John Mellett].
- 55.
- It thus follows from both the headings and content of those memoranda and from
their sequence that the position adopted by the Administrative Committee on 14
June 1995 concerned the case of Mr Mellett, which was at the centre of the
discussions even if, indirectly, it could, in some circumstances, also have concerned
the six other drivers who were members of the temporary staff as at 11 July 1994.
- 56.
- Furthermore, not only did the discussions actually concern Mr Mellett's situation
but, as is apparent from the Registrar's memorandum of 19 May 1995, the position
adopted by the Administrative Committee on 14 June 1995 must be regarded as
being the reply to the request for the establishment of the applicant submitted by
Judge Murray. It must be observed here that, at paragraph 5 of his memorandum
to the Registrar of 6 June 1995, preparatory to the Administrative Committee's
meeting on 14 June 1995, Mr Pommiès expressly mentions, with reference to the
previous memoranda, that 'Mr Murray has requested that Mr Mellett be
established pursuant to the decision of 30 June 1976.
- 57.
- Finally, it must be pointed out that the point made by the President of the Court,
which is reproduced in the Registrar's memorandum of 19 May 1995, according to
which it is not possible to draw a distinction between the members of staff
according to whether or not they were notified about the repeal of the 1976
Decision, referred only to the case of the applicant since all the other drivers
recruited after the applicant were expressly warned in writing that the amendment
of the 1976 Decision was being considered and that they could therefore not expect
it to be applied to them.
- 58.
- It follows from the foregoing that the question actually put to the Administrative
Committee on 14 June 1995 was in point of fact that of the establishment of the
applicant. Furthermore, no other request for establishment, except for that of the
applicant, was put to the Administrative Committee, which therefore had no reason
to consider the situation of the drivers in general.
- 59.
- The defendant's argument according to which the contested decision merely
confirmed the general decision of 11 July 1994 is also unfounded. The point in
question was that of the establishment of the applicant and this means that it was
necessary to examine whether the decision of 11 July 1994 applied to the applicant
or if he could remain subject to the previous system provided for by the 1976
Decision. Notwithstanding the fact that the decision of 14 June 1995 is couched in
very general terms, there is scarcely any doubt that the true object of the
discussions was the establishment of the applicant.
- 60.
- Second, even supposing that the contested decision does not constitute an
individual decision concerning the applicant, but a general measure concerning all
the Members' drivers who were members of the temporary staff at that time, that
is to say the applicant and six other drivers, it none the less constitutes, in any
event, an act adversely affecting the applicant within the meaning of Article 90(2)
of the Staff Regulations.
- 61.
- It is apparent from Articles 90 and 91 of the Staff Regulations that an act adversely
affecting an official may consist either of a measure of a general nature or of an
individual decision addressed to the applicant or to a third party. It is also settled
in case-law that officials have the right to submit a complaint and then to bring
proceedings against a general measure of the appointing authority which adversely
affects them without having to be individually concerned by that measure for the
purposes of Article 173 of the Treaty (Case 54/75 de Dapper v Parliament [1976]
ECR 1381; Joined Cases 146/85 and 431/85 Diezler and Others v ESC [1987] ECR
4283). Thus, in Case 125/87 Brown v Court of Justice [1988] ECR 1619, the Court
of Justice held that an action challenging the legality of the general decision of the
President of the Court concerning the grading and remuneration of officials who
change to a higher category following a competition was admissible.
- 62.
- It has also been held that, although mere internal measures of organisation of the
service, which do not adversely affect the position under the Staff Regulations of
the official concerned, do not, in principle, constitute acts having an adverse effect,
certain measures may, however, be regarded as having an adverse effect even if
they do not affect the material interests or rank of an official, if they affect his
personal interests or future prospects (Case T-36/93 Ojha v Commission [1995]
ECR-SC II-497, paragraphs 41 and 42).
- 63.
- There is scarcely any doubt that the Administrative Committee's decision of 14
June 1995 affects the applicant. Even if the contested decision is regarded as also
concerning the six other drivers, in addition to the applicant, as the defendant
maintains that it should be, it has, in any event, the effect of denying the applicant
the benefit of the establishment procedure laid down in the 1976 Decision. Once
the Administrative Committee had decided that the new arrangements of 11 July
1994 were to be applied without any exceptions to all the drivers who were
members of the temporary staff on that date, the President of the Court, who
constitutes the appointing authority, could no longer decide to commence the
procedure for the establishment of the applicant. It is therefore clear that the
Administrative Committee's decision of 14 June 1995 changed the applicant's legal
situation since it had the effect of refusing, or denying, him the possibility of
obtaining the benefit of the establishment procedure laid down in the 1976
Decision. In so far as the contested decision provides that the 1994 decision is to
apply without any exceptions to all the drivers who were members of the temporary
staff at that date, even if the driver had not been informed when taking up his post
that he could not rely on the 1976 Decision, it must be regarded as affecting the
legal situation of the applicant in particular, since he was the only driver who was
a member of the temporary staff not to have been so informed. It follows that the
contested decision constitutes a decision which may be the subject of an action for
annulment in so far as it produces binding legal consequences liable to affect the
applicant's interests by significantly changing his legal situation (Case T-293/94 Vela
Palacios v ESC [1996] ECR-SC II-893, paragraph 22).
- 64.
- Contrary to the defendant's assertion, that conclusion cannot be affected by the fact
that the applicant himself never at any time submitted a request under Article
90(1) of the Staff Regulations. It is only in the absence of an act having an adverse
effect that the person concerned must submit a prior request to the appointing
authority. As stated above, the contested measure must be regarded as adversely
affecting the applicant. Furthermore, the applicant cannot be criticised for not
having submitted any request himself since, according to the 1976 Decision on the
establishment of drivers, it is for the Member to whom the driver is assigned, and
not for the driver himself, to request that the establishment procedure be
commenced. Judge Murray submitted such a request.
- 65.
- It follows that the application in Case T-66/96 is admissible.
B. Admissibility of Case T-221/97
- 66.
- The defendant does not contest the admissibility of the action in so far as it is
directed against the decision of the President of the Court of 4 December 1996
rejecting Mr Mellett's request for establishment.
- 67.
- On the other hand, it claims that the action is inadmissible in so far as it seeks the
annulment of the decision allegedly contained in the memorandum of the President
of the Court of 17 October 1996 to Judge Murray.
- 68.
- The defendant argues that the request which led to the President of the Court's
reply of 17 October 1996 was not made by Mr Mellett, but by a third person,
namely Judge Murray, and that the memorandum of 17 October 1996 was
addressed to Judge Murray and not to Mr Mellett. It contends that that exchange
of memoranda is not within the scheme of Article 90(1) of the Staff Regulations
but is internal to the institution. Moreover, the memorandum of the President of
the Court of 17 October 1996 constitutes at most an act preparatory to a final
decision and does not adversely affect the applicant.
- 69.
- The defendant considers that the judgment in Case T-46/90 Devillez and Others v
Parliament [1993] ECR II-699, which is relied on by the applicant, is not relevant
because in the present case the appointing authority has taken and notified a
decision in due form, namely the decision of the President of the Court of 4
December 1996, whereas in the Devillez case the appointing authority had not
formally addressed a decision to the applicant.
- 70.
- Finally, the defendant considers that it would be entirely superfluous to give
judgment on the alleged decision of the President of the Court of 17 October 1996
when precisely the same point of substance is to be found in the decision of 4
December 1996.
- 71.
- The applicant states that both in this action and in Case T-66/96 he was seeking to
have a procedure commenced for his benefit on the basis of the 1976 Decision and
that, under that decision, the procedure for establishment is commenced by a
proposal from the Member of the Court to whom the driver is assigned.
- 72.
- Just as Case T-66/96 is the sequel to Judge Murray's request of 13 December 1994,
Case T-221/97 is the sequel to the new request submitted by Judge Murray on 1
October 1996 and challenges the legality of the decision of the President of the
Court of 17 October 1996.
- 73.
- The applicant accepts that Judge Murray's request of 1 October 1996 and the
decision of the President of the Court of 17 October 1996 do not fall within the
scheme of Article 90(1) of the Staff Regulations, but points out that the request
made by him to the President of the Court under Article 90(1) was made expressly
without prejudice to the requests for his establishment made in due form by Judge
Murray. He submits that the present proceedings are not based exclusively on
Article 90(1) of the Staff Regulations, but seek the annulment of two separate
decisions taken by the appointing authority on 17 October and 4 December 1996
under two different procedures.
- 74.
- The applicant also recalls that it is not necessary for an act to be communicated
directly to the persons affected thereby for it to be capable of directly affecting a
specific legal situation (Devillez and Others v Parliament, cited at point 69 above,
paragraphs 12 to 15).
- 75.
- The applicant submits that the decision of 17 October 1996 manifestly constitutes
an act adversely affecting him within the meaning of Article 90(2) of the Staff
Regulations, since it excludes him from the benefit of the 1976 Decision.
- 76.
- In the applicant's view, the decision of 4 December 1996 has no bearing on the
legality of the decision of 17 October 1996. Each of those procedures was taken
under different provisions of the Staff Regulations and have a different purpose,
since the first challenges a decision not to commence a procedure leading to the
holding of a competition under the 1976 Decision, whilst the other is a request for
establishment addressed directly to the President of the Court by the applicant and
submitted à titre conservatoire.
- 77.
- The applicant considers that if it were to be superfluous to consider the question
of the legality of the decision of 17 October 1996, the Court of First Instance
should rule that there is no need to give a decision on that part of the application,
but should not hold it inadmissible.
Findings of the Court
- 78.
- The admissibility of the application in Case T-221/97, in so far as it is directed
against the decision of the President of the Court of 4 December 1996, is not
disputed, in so far as that decision constitutes an individual decision in response to
the request submitted by the applicant within the meaning of Article 90(1) of the
Staff Regulations.
- 79.
- It follows that it is necessary only to consider the admissibility of the application in
so far as it is directed against the decision of the President of the Court of 17
October 1996.
- 80.
- The defendant disputes the admissibility of the application against the decision of
the President of the Court of 17 October 1996 essentially on two grounds: the
decision of the President of the Court of 17 October 1996 was not addressed to the
applicant and constituted a reply to a request submitted, not by the applicant, but
by Judge Murray; and, secondly, it was only a preparatory act.
- 81.
- Those objections cannot be accepted, since the admissibility of this application is
apparent a fortiori from the reasoning set out above in relation to the examination
of the admissibility of the application in Case T-66/96.
- 82.
- As regards, first, the fact that the decision of the President of the Court of 17
October 1996 is the reply to the request submitted by Judge Murray and not to an
individual request submitted by the applicant, the Court finds, as is apparent from
Judge Murray's letter of 11 July 1996, that it was at the express request of the
applicant that Judge Murray formally asked the President of the Court to
commence the procedure for his establishment. That request was quite
unambiguous in so far as it was clearly seeking to obtain the commencement of the
establishment procedure. It follows that, notwithstanding the fact that it was
formally submitted by the applicant's immediate superior and not by the applicant
himself, it must be construed as a request within the meaning of Article 90(1) of
the Staff Regulations (see, to that effect, the judgment in Devillez and Others v
Parliament, cited at paragraph 69 above). Furthermore, in the present case, the
request was submitted in accordance with the formal requirements and conditions
laid down in the 1976 Decision, which expressly provides that the procedure for the
establishment of drivers is commenced on a written proposal from the Member of
the Court to whom the driver is assigned.
- 83.
- In any event, even supposing that Judge Murray's memorandum cannot be
construed as a request within the meaning of Article 90(1) of the Staff Regulations,
it is sufficient to recall that it is only in the absence of an act having adverse effect
within the meaning of Article 90(2) of the Staff Regulations that an official must
submit a prior request to the appointing authority. In the present case, there is no
doubt that the decision of 17 October 1996 constitutes an act adversely affecting
the applicant by directly affecting his legal situation. It was issued by the
competent authority and embodies the administration's definitive view concerning
the individual situation of the applicant.
- 84.
- The fact that the decision of the President of the Court of 17 October 1996 was not
addressed to the applicant cannot invalidate that conclusion. It has been held that
the fact that an official was informed only orally of the refusal of a request,
formally addressed to his immediate superior, cannot prevent such a refusal from
constituting a decision adversely affecting that official (Devillez and Others v
Parliament, cited at paragraph 69 above, paragraphs 13 and 14). Likewise,
according to the case-law of the Court of Justice, oral decisions can constitute acts
adversely affecting the persons concerned (Case 316/82 Kohler v Court of Auditors
[1984] ECR 641, paragraphs 8 to 13).
- 85.
- Finally, the fact that the appointing authority subsequently adopted and informed
the applicant of the decision of the President of the Court of 4 December 1996
cannot alter the fact that the decision of 17 October 1996 is an act having adverse
effect. The communication of the decision of 4 December 1996 is an act
subsequent to the decision of the President of the Court of 17 October 1996
already adopted and having prior existence (Case T-113/95 Mancini v Commission
[1996] ECR-SC I-A-185 and II-543).
- 86.
- As regards, second, the claim that the decision of 17 October 1996 constituted only
a preparatory act, it is sufficient to note that it states the clear, unconditional and
definitive refusal by the competent authority to grant the request for
commencement of the procedure for establishment of the applicant, which was
submitted by Judge Murray in accordance with the procedure laid down in the 1976
Decision. It follows that the negative response of the President of the Court of 17
October 1996 to Judge Murray's request cannot in any case be regarded as a purely
internal measure in an exchange of correspondence within the institution but is
indeed in the nature of a decision.
- 87.
- It follows from the foregoing that the application in Case T-221/97 is admissible in
so far as it concerns the application for annulment of both the decision of the
President of the Court of 17 October 1996 and the decision of the President of the
Court of 4 December 1996.
Substance
- 88.
- Since the two actions are admissible and, as the parties agree, concern decisions
concerning the same substantive issue, the Court will first consider the legality of
the very first decision, namely that of the Administrative Committee of 14 June
1995.
- 89.
- The applicant puts forward five pleas in support of his application against that
decision. The first alleges breach of Article 25 of the Staff Regulations; the second
alleges breach of the principle of equal treatment; the third alleges breach of the
principle of the protection of legitimate expectations; the fourth alleges breach of
the prohibition of retroactive withdrawal of a legal measure which has conferred
individual rights; and the fifth alleges that the applicant's legitimate rights and
interests were not taken into account.
- 90.
- The Court considers that, in the present case, it is appropriate to start by
considering the plea of breach of the principle of the protection of legitimate
expectations.
Breach of the principle of the protection of legitimate expectations
- 91.
- The applicant, referring to the settled case-law on the principle of the protection
of legitimate expectations, submits that unequivocal representations were made to
him by a Member of the Court and by members of staff acting in the course of
their duties as to his prospects of becoming a permanent official and it was on the
basis of those representations that he accepted the post and disrupted his personal
life and changed his professional career.
- 92.
- Whilst taking note, in the reply, that the content of those representations is not
disputed by the defendant, the applicant claims that both the source and the nature
of those representations had led him to expect that the procedure leading to his
establishment as a permanent official would be applied. Contrary to the situation
in Vlachou v Court of Auditors (Case 162/84 [1986] ECR 481, paragraphs 5 and 6),
where the Court held that the promises of establishment made to the applicant
could not create any legitimate expectation since they did not take account of the
competition procedure, which is the only means of acceding to an official's post in
the institutions, the representations made in the present case were in conformity
with Article 29(1) of the Staff Regulations, since according to them an internal
competition procedure would be commenced which would lead to the applicant's
establishment as a permanent official. Second, those representations were based
upon a correct interpretation of the practice applied by the Court in relation to the
recruitment and establishment of drivers.
- 93.
- The applicant considers that, since he satisfied the conditions for recruitment and
establishment as provided for by the Court's practice, he is not relying upon
unlawful acts committed by the Court in favour of others and that the
Administrative Committee's decision of 14 June 1995 should be annulled on the
ground that it breaches the principle of the protection of legitimate expectations.
- 94.
- As far as the question of legality of the 1976 Decision is concerned and the bearing
which that question has on the question whether the decision of 14 June 1995 was
well founded, the applicant puts forward five arguments.
- 95.
- First, the applicant reminds the Court that it is established case-law that, in
principle, acts of the institutions are presumed to be lawful and accordingly produce
legal effects, even if they are tainted by irregularities, until such time as they are
annulled or withdrawn (Joined Cases 7/56, 3/57 to 7/57 Algera v Common Assembly
[1957-1958] ECR 39, more specifically, p. 61; Case C-137/92 P Commission v BASF
and Others [1994] ECR I-2555, paragraph 48). The defendant has not proved that
the 1976 Decision amounted to a misuse of powers, that is to say that it was taken
with the exclusive purpose, or at any rate main purpose, of achieving an end other
than that stated or evading a procedure specifically prescribed by the Treaty for
dealing with the circumstances of the case (Case C-331/88 The Queen v Ministry of
Agriculture, ex parte Fedesa and Others [1990] ECR I-4023, paragraph 24).
- 96.
- Second, even if the holding of internal competitions on the basis of the 1976
Decision was contrary to the Staff Regulations, there is nothing to prevent the
defendant from organising any future competition under the 1976 Decision in
compliance with the Staff Regulations.
- 97.
- Third, the applicant claims that, if the 1976 Decision was illegal, the defendant can
revoke an illegal decision retroactively only where proper consideration is given to
the principle of legal certainty (Case 111/63 Lemmerz Werke v High Authority [1965]
ECR 677). The Administrative Committee did not take account of the applicant's
circumstances when it adopted the contested decision of 14 June 1995.
- 98.
- Fourth, the defendant cannot invoke in these proceedings irregularities which are
the consequence of its own conduct (Case 90/71 Bernardi v Parliament [1972] ECR
603, paragraph 10). Since the defendant never questioned the validity of the 1976
Decision prior to submission of its defence, the applicant is not seeking the benefit
of an illegal act but merely the application to his particular circumstances of a
decision upon which he was legally entitled to rely.
- 99.
- Fifth, if the invalidity of the 1976 Decision was, as the defendant asserts, so plain,
that decision was void ab initio, or even non-existent, and all the appointments
establishing drivers assigned to Chambers of Members of the Court made under
the authority of that decision are null and void (Commission v BASF and Others,
cited at paragraph 95 above, paragraph 49; Case T-156/89 Valverde Mordt v Court
of Justice [1991] ECR II-407, paragraph 84).
- 100.
- The defendant claims, first, that the letter from the Deputy Registrar, Mr Cranfield,
dated 22 April 1992 cannot be regarded as comprising a 'precise assurance within
the meaning of the case-law (Case T-123/89 Chomel v Commission [1990] ECR II-131, paragraph 25) because, on the one hand, the letter was not addressed to the
applicant but to a third party, the Secretary of the Department of Defense and, on
the other, because it was hedged about with important restrictions.
- 101.
- Second, the defendant does not dispute that Judge Murray, Ms Mixture and the
Deputy Registrar gave the applicant oral assurances such as to lead him to believe
that the procedure for the establishment of drivers under the 1976 Decision would
be applied to him, but contends that such oral assurances cannot give rise to
legitimate expectations. It reminds the Court that promises which do not take
account of the provisions of the Staff Regulations cannot give rise to legitimate
expectations on the part of the person concerned (Chomel v Commission, cited at
paragraph 100 above; Case T-20/91 Holtbecker v Commission [1992] ECR II-2599;
Case T-534/93 Grynberg and Hall v Commission [1994] ECR-SC I-A-183 and
II-595).
- 102.
- Third, the defendant argues that the procedure for the establishment of drivers
provided for by the 1976 Decision constituted a misuse of powers since the
successful candidate in the internal competition was designated in advance. The
defendant points out that, according to the case-law of the Court (Case 105/75
Giuffrida v Council [1976] ECR 1395; Case 142/85 Schweiring v Court of Auditors
[1986] ECR 3177), a competition organised by the appointing authority for the sole
purpose of remedying the anomalous administrative status of a specific official and
of appointing that official to the post declared vacant is contrary to the aims of any
recruitment procedure and thus constitutes a misuse of powers. The defendant
points out that the applicant is demanding that it organise a competition in which
he is guaranteed in advance of being the successful candidate. It is not bound by
any rule of law to perform such an unlawful act.
- 103.
- Finally, the defendant contends that the case-law concerning the withdrawal of
illegal administrative acts relied on by the applicant and, in particular, the judgment
in Case C-90/95 P De Compte v Parliament [1997] ECR I-1999, paragraph 35)
relates only to acts addressed to the person concerned, whilst the 1976 Decision is
a general measure for the organisation of the Court's services and not an individual
act conferring rights on the applicant and, moreover, was never addressed to the
applicant.
Findings of the Court
- 104.
- The principle that legitimate expectations should be respected is one of the
fundamental principles of the Community (Case 112/80 Dürbeck [1981] ECR 1095,
paragraph 48). According to settled case-law, the right to rely on this principle
extends to any individual who is in a situation in which it is clear that the
Community administration has, by giving him precise assurances, led him to
entertain reasonable expectations (Case T-3/92 Latham v Commission [1994]
ECR-SC II-83, paragraph 58; Grynberg and Hall v Commission, cited at paragraph
101 above, paragraph 51; Case T-235/94 Galtieri v Parliament [1996] ECR-SC
I-A-43 and II-129, paragraph 63; Case T-207/95 Maria de los Angeles Ibarra Gil v
Commission [1997] ECR-SC I-A-13 and II-31, paragraph 25; Case T-211/95 Petit-Laurent v Commission [1997] ECR-SC I-A-21 and II-57, paragraph 72; Chomel v
Commission, cited at paragraph 100 above, paragraph 26; Case T-498/93
Dornonville de la Cour v Commission [1994] ECR-SC II-813, paragraph 46; Case
T-35/96 Lars Bo Rasmussen v Commission [1997] ECR-SC I-A-61 and II-87,
paragraph 63).
- 105.
- It is therefore necessary to consider whether the administration gave the applicant
precise assurances and, if so, whether they led him to entertain reasonable
expectations.
- 106.
- As to the question whether the applicant did receive precise assurances, it is
sufficient to observe, without there being any need to consider whether the
Registrar's letter of 22 April 1992 is capable of providing proof of such assurances,
that the defendant expressly stated that it does not dispute the applicant's
contentions concerning the information given to him, before his entry into service,
with a view to his entry into service. In particular, Judge Murray informed him that
he would become an established official after three years' service provided that he
himself proposed it and Mr Cranfield, the Deputy Registrar, confirmed to him that
any change in the practice laid down in the 1976 Decision would apply only to
those drivers who entered into service after that time and that the procedure
leading to his establishment would commence in the autumn of 1994. Similarly, the
defendant has not disputed the applicant's assertion that Judge Murray told him
in July 1994 that the Registrar had assured him that his establishment as a
permanent official would proceed in due course.
- 107.
- Since that information was precise, unconditional and consistent and came from
authorised and reliable sources, it follows that the administration gave the applicant
precise assurances. The fact that the information was given orally, rather than in
writing, cannot alter this finding.
- 108.
- Next, it is necessary to consider whether those assurances could have given rise to
reasonable expectations within the meaning of the aforementioned case-law.
- 109.
- According to settled case-law, even if an official receives incorrect confirmation
from the administration of the entitlement he is claiming, such an undertaking
cannot create a legitimate expectation, since no official of a Community institution
can give a valid undertaking not to apply Community law (Chomel v Commission,
cited at paragraph 100 above, paragraph 28). It is also clear from that case-law
that promises which do not take account of provisions of the Staff Regulations
cannot give rise to a legitimate expectation on the part of the person concerned
(Vlachou v Court of Auditors, cited at paragraph 92 above, Chomel v Commission,
cited at paragraph 100 above, paragraph 30).
- 110.
- In the present case, the expectation which the applicant is asking to be respected
is not based on an undertaking by the administration not to apply Community law
but arises from the precise assurances which were given to him that the
establishment procedure laid down in the 1976 Decision would be applied to him
provided that the Member of the Court proposed that it be done.
- 111.
- The defendant submits, however, that those assurances could not give rise to
reasonable expectations on the ground that the decision of 30 June 1976 is clearly
unlawful in so far as it provides for the holding of an internal competition in which
the successful candidate is designated in advance.
- 112.
- It maintains that choosing the successful candidate in a competition in advance
constitutes a misuse of power. The holding of such a competition is contrary to the
Staff Regulations and to the principle of equal treatment.
- 113.
- It is therefore necessary to consider whether the 1976 Decision is clearly unlawful
in so far as it constitutes a misuse of power.
- 114.
- Point 2 of the 1976 Decision provides: '(a) The establishment procedure may be
commenced after three years' service on a proposal from the Member to whom the
driver is assigned. (b) After an internal competition, drivers shall be appointed
probationary officials in career bracket D 3 D 2 ...
- 115.
- Contrary to the defendant's assertion, the 1976 Decision does not therefore provide
for the holding of a sham competition in which the successful candidate is
designated in advance, but lays down a condition for participation in an internal
competition for drivers, namely completion of three years' service to the satisfaction
of the Member concerned and a proposal by the latter that the establishment
procedure be commenced. The 1976 Decision does not provide that the driver, amember of the temporary staff, taking part in such an internal competition will
necessarily be established. Likewise, the 1976 Decision does not provide that only
one candidate may be permitted to participate in the internal competition in which
there will automatically be a successful candidate. Furthermore, the decision does
not prevent the Court from periodically holding an internal competition for drivers
in which drivers having already completed three years' service to the satisfaction
of the Member to whom they are assigned may participate and in which the
number of successful candidates need not necessarily be the same as the number
of candidates. The 1976 Decision merely lays down certain conditions for
participation in an internal competition for drivers, but does not prevent the Court
from organising that competition in accordance with the Staff Regulations and the
general principles relating to the Community civil service.
- 116.
- It follows that the establishment procedure provided for in the 1976 Decision is not
clearly contrary to the Staff Regulations. The precise assurances given to the
applicant could therefore have led the applicant to entertain reasonable
expectations as regards the possibility of participating in an internal competition.
- 117.
- In any event, even if the 1976 Decision were unlawful, the assurances given to the
applicant were by nature such as to lead him to entertain reasonable expectations.
- 118.
- First, it is to be remembered in this regard that, according to settled case-law, acts
of the Community institutions are, in principle, presumed to be lawful and
accordingly produce legal effects, even if they are tainted by irregularities, until
such time as they are annulled or withdrawn (Commission v BASF and Others, cited
at paragraph 95 above, paragraph 48).
- 119.
- In the present case, it is not disputed that on the day when the contested decision
was adopted the 1976 Decision had not been annulled nor been the subject of any
proceedings for a declaration that it was unlawful. As the applicant points out, it
was in fact only in its defence that the defendant submitted for the first time that
the 1976 Decision was clearly unlawful. Moreover, it is apparent from the
documents before the Court, in particular point 3 of Mr Pommiès' memorandum
of 9 June 1994 to the Registrar of the Court and page 2 of the Registrar's
memorandum to Judge Murray of 7 March 1995, that it was in order to preserve
the freedom of Members to choose their close collaborators, and not in order to
abolish rules purported to be clearly unlawful, that the defendant accepted the
proposal to ask the budgetary authority to regroup, in the temporary posts, the
drivers' posts in Category D.
- 120.
- Second, it follows from settled case-law that 'while it must be acknowledged that
any Community institution which finds that a measure which it has just adopted is
tainted by illegality has the right to withdraw it within a reasonable period, with
retroactive effect, that right may be restricted by the need to fulfil the legitimate
expectations of a beneficiary of the measure, who has been led to rely on the
lawfulness thereof (de Compte v Parliament, cited at paragraph 103 above,
paragraph 35; Case 14/81 Alpha Steel v Commission [1982] ECR 749, paragraphs
10 to 12; Case 15/85 Consorzio Cooperative d'Abruzzo v Commission [1987] ECR
1005, paragraphs 12 to 17).
- 121.
- Contrary to the defendant's assertion, it follows from the case-law that that
principle may not only be relied upon by a person to whom an individual
administrative measure is addressed, but may also apply in respect of a general
measure (see, in particular, Case C-248/89 Cargill v Commission [1991] ECR I-2987,
paragraph 20; Case C-365/89 Cargill [1991] ECR I-3045, paragraph 18; Case 120/86
Mulder v Ministre de l'Agriculture et de la Pêche [1988] ECR 2321; Case 84/78
Tomadini v Administrazione delle finanze dello Stato [1979] ECR 1801; Case 224/82
Meiko-Konservenfabrik v Germany [1983] ECR 2539).
- 122.
- In the present case, it is not disputed that precise assurances were given to the
applicant by reliable sources within the institution, namely a Member of the Court
and the Deputy Registrar, and that those assurances were not based on a clear
misreading of the rules of law applicable but were, on the contrary, based on the
rules in force, namely the 1976 Decision which, on the one hand, had been adopted
and consistently applied for almost 20 years by the members of the highest
Community court and, on the other, provided for the possibility of establishment
after an internal competition, in accordance with Article 29(1) of the Staff
Regulations. In those circumstances, it cannot be argued that the 1976 Decision
was so tainted with illegality that the applicant, a member of the temporary staff
in Category D, should have known that he could not rely upon it.
- 123.
- It follows from the foregoing that the precise assurances given to the applicant
could have led him to entertain reasonable expectations as to the possibility of his
participating in an internal competition in accordance with the establishment
procedure provided for by the 1976 Decision. It must also be observed that the
proposal for the repeal of the 1976 rules, dated February 1993, expressly provided
that, as a transitional measure, the driver who was recruited on 16 May 1992 under
the 1976 Decision, namely the applicant, could remain subject to the provisions of
that decision and go through an establishment procedure after three years' service,
on a proposal from the Member concerned.
- 124.
- It follows that the plea of failure to protect legitimate expectations is well founded
and that the Administrative Committee's decision of 14 June 1995 must be
annulled.
- 125.
- In the present case, however, the Court considers it appropriate to examine also
the plea of breach of the principle of equal treatment.
The plea of breach of the principle of equal treatment
Arguments of the parties
- 126.
- The applicant submits that, since 16 May 1995, he has satisfied the conditions for
recruitment and establishment as a Member's driver. He claims that the
Administrative Committee's decision of 14 June 1995 therefore contravenes the
principle of equal treatment since it amounts to a refusal to apply an established
procedure for his benefit in circumstances where that procedure had been
systematically applied to other persons in identical circumstances, without any
justification being given for that difference in treatment.
- 127.
- The defendant maintains that the procedure for the establishment of drivers laid
down by the 1976 Decision constituted a misuse of power, since the successful
candidate in the internal competition was designated in advance. Referring to the
case-law according to which no one may plead in his own cause an unlawful act
committed in favour of another (Case 134/84 Williams v Court of Auditors [1985]
ECR 2225; Case T-30/90 Zoder v Parliament [1991] ECR II-207), the defendant
contends that the applicant may not, in the name of the principle of equality of
treatment, rely on the fact that other drivers benefited from competitions vitiated
by a misuse of power. In its view, the plea of breach of the principle of equal
treatment is therefore unfounded.
- 128.
- The applicant submits that the defendant's argument that no one may plead in his
own cause an unlawful act committed in favour of another is not relevant since the
1976 Decision is lawful.
Findings of the Court
- 129.
- According to settled case-law, the principle of equal treatment is breached where
two categories of person whose legal and factual circumstances disclose no essential
difference are treated differently (Case T-211/95 Petit-Laurent v Commission [1997]
ECR-SC II-57, paragraph 56).
- 130.
- As was found in the examination of the previous plea, the defendant has not put
forward any arguments or evidence enabling the Court to conclude that the 1976
Decision was unlawful. In relying on the fact that all the drivers who were
members of the temporary staff have been established in accordance with the 1976
Decision, the applicant is not therefore basing his case on an unlawful act
committed in favour of another.
- 131.
- In order to determine whether the refusal to commence the procedure for the
establishment of the applicant constitutes a breach of the principle of non-discrimination, it is necessary to consider whether the factual and legal
circumstances of the applicant were actually the same as those of the drivers who
had been established previously.
- 132.
- It is apparent from the documents before the Court that all the drivers who were
established before the applicant on the basis of the 1976 Decision were established
before 11 July 1994. In so far as the defendant purportedly repealed the 1976
Decision on 11 July 1994 in order to replace it with new rules, it is necessary to
determine whether the applicant's circumstances are comparable to those of the
drivers who had the possibility of taking part in a competition under the 1976
Decision.
- 133.
- It is therefore necessary to consider whether the Court validly adopted on 11 July
1994 a decision repealing the 1976 Decision.
- 134.
- The decision of 11 July 1994, which appears at point 8 of the minutes of the
Court's administrative meeting of 11 July 1994, states, under the heading '8. Budget
lettre rectificative l'élargissement à l'état prévisionnel 1995 [Budget
amendment to the estimate for 1995 (enlargement)] : 'La Cour adopte l'état
prévisionnel 1995 amendé incorporant les demandes budgétaires liées à
l'élargissement ... [The Court adopts the amended estimate for 1995 incorporating
the budgetary requests relating to enlargement ...] 'La Cour approuve également
la proposition de demander à l'autorité budgétaire une modification du tableau des
effectifs consistant à regrouper dans les emplois temporaires, avec les emplois de
référendaires, l'ensemble des emplois affectés aux cabinets des membres, c'est-à-dire les emplois B et C du personnel de secrétariat et les emplois D des chauffeurs
... [The Court also approves the proposal to ask the budgetary authority for a
modification of the Court's list of posts consisting of regrouping in the temporary
posts, along with the legal secretaries' posts all of the posts assigned to the
Chambers of the Members of the Court, that is to say the secretarial posts in
Categories B and C and the drivers' posts in Category D ...].
- 135.
- Without it being necessary to consider whether, as the defendant submits, the
repeal of the establishment procedure laid down in the 1976 Decision is merely a
general measure of the services of the Court which does not require approval by
the budgetary authority, it is sufficient to point out that, in the present case, the
Court has not adopted any such decision. As is apparent from the very wording
of the decision of 11 July 1994, the defendant did not decide to repeal the 1976
Decision and thenceforth modify the system of recruitment and establishment of
drivers, but merely asked the budgetary authority for a modification of its list of
posts. Furthermore, as the defendant has pointed out, that request had still not
been approved by the budgetary authority when the contested decision was adopted
but was only approved when the 1998 budget was adopted. The Court observes
that the documents annexed by the defendant to its defence also corroborate that
view. Mr Pommiès states expressly in his memorandum of 6 June 1995 that the
matter of the proposal for repealing the 1976 Decision, which was put to the
meeting of the Administrative Committee on 15 February 1993, had been deferred
to a subsequent meeting but that it had not been re-entered on the agenda and
that 'les modalités de recrutement et de nomination des chauffeurs de membres
sont actuellement régies par une décision prise par la Cour lors de sa réunion
administrative du 30 juin 1976 [The detailed rules for the recruitment and
appointment of drivers of Members of the Court are currently governed by a
decision adopted by the Court at its administrative meeting of 30 June 1976]. In
view of all the foregoing, it follows that, on the day on which the contested decision
was adopted, the 1976 decision had not been validly repealed.
- 136.
- Furthermore, in order validly to repeal the 1976 Decision, the Court should have
observed the administrative law principle of following the same procedures. The
1976 Decision had been adopted after consultation of the Staff Committee, in
accordance with Article 2 of the decision of 31 October 1974 on the establishment
of a Staff Committee, but the latter was not consulted before the adoption of the
decision of 11 July 1994.
- 137.
- It follows from the foregoing that, at least on the day on which the contested
decision was adopted, the decision of 11 July 1994 had not had the effect, or even
the implicit effect, of validly repealing the 1976 Decision.
- 138.
- It follows that, at the time when the contested decision was adopted, the applicant
was in a situation comparable to the situation of drivers previously admitted to a
competition held under the 1976 Decision. Accordingly, it must be held that Mr
Mellett suffered discrimination.
- 139.
- The plea of breach of the principle of equal treatment is therefore well founded,
too.
- 140.
- It follows from all the foregoing that the decision of the Administrative Committee
of the Court of 14 June 1995 must be annulled. It is therefore not necessary to
consider the other pleas raised by the applicant.
- 141.
- Finally, the Court notes that in Case T-221/97 the applicant has raised the samepleas in relation to the two decisions of the President of the Court of 17 October
1996 and 4 December 1996 and that those decisions are affected by the same flaws
as the decision of 14 June 1995. It follows that, on the same grounds, the two
decisions of the President of the Court of 17 October 1996 and 4 December 1996
must also be annulled in so far as they refuse to allow the establishment procedure
provided for in the 1976 Decision to be commenced for the applicant.
Costs
- 142.
- Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be
ordered to pay the costs, if they have been asked for in the successful party's
pleadings. Since the Court of Justice has been unsuccessful and since the applicant
has asked for costs to be awarded against it, the Court of Justice must be ordered
to pay the costs.
On those grounds,
THE COURT OF FIRST INSTANCE (Fifth Chamber)
hereby:
1. Joins Cases T-66/96 and T-221/97 for the purposes of the judgment;
2. Annuls the decision of 14 June 1995 of the Administrative Committee of
the Court of Justice, as it is apparent from point 4 of the minutes, and the
decisions of the President of the Court of Justice of 17 October 1996 and
4 December 1996 not to commence the procedure which could have led to
the establishment of the applicant as a permanent official;
3. Orders the Court of Justice to pay the costs in Case T-66/96 and in Case
T-221/97.
Azizi García-Valdecasas
Jaeger
|
Delivered in open court in Luxembourg on 21 July 1998.
H. Jung
J. Azizi
Registrar
President