Court of Justice 28-03-1996 ECLI:EU:C:1996:154

Introduction

May a judgment of a national court constitute a new fact so as to cause time to start running again to enable a complainant to contest a decision of the Commission under the Staff Regulations which was not challenged within the original time-limits? May a Member State submit to the Commission a list of names of possible candidates for recruitment as temporary officials? These are the questions referred to the Court by the Belgian Council of State in the present proceedings. The first question poses something of a procedural conundrum, in so far as the Court is being asked for a preliminary ruling on how the Court of First Instance would decide that question in the context of a possible future action.

Facts and procedure

In September 1993, Madame Myrianne Coen (hereinafter ‘the applicant’), an official at the Belgian Ministry of Foreign Affairs, answered an advertisement placed by the Commission in a number of national newspapers inviting applications for appointment to posts as A Grade temporary staff in a variety of disciplines. The applicant submitted an application on 11 November 1993. Though included amongst the 42 interviewed from among 826 candidates, the applicant was not included in the reserve list drawn up in June 1994.

As part of the same recruitment procedure, in October 1993 the Commission invited the Permanent Representations of each of the Member States to submit a list of three candidates, preferably Embassy First Secretaries or recently appointed Counsellors, for appointment as temporary officials to Directorate-General I A (hereinafter ‘DGI A’), which was being established to prepare the work of the Commission in the field of the Community's external political relations. The Belgian Foreign Minister transmitted a list of three names — including that of a MrTanghe — to the Permanent Representation, for communication to the Commission, on 24 November 1993.

On 15 December 1993, the applicant applied to the relevant authorities at the Ministry of Foreign Affairs for inclusion on the list of recommended candidates. Her application was not forwarded to the Commission, as it was out of time, and because the applicant was of a lower grade than the minimum fixed by the Ministry for recommended candidates.

On 14 January 1994, the applicant initiated proceedings before the Belgian Council of State, Administrative Division, for the annulment of both the decision of the Minister for Foreign Affairs proposing three candidates for appointment to posts as temporary officials in DG I A of the Commission and the decision not to put her name forward for the posts in question (hereinafter the ‘contested decisions’).

The contested decisions were suspended by order of the Council of State on 9 February 1994. The suspension was lifted on 28 March 1994; in its judgment, the Council of State intimated that the application appeared to be inadmissible as the contested decisions were preparatory acts which could be subject to judicial review only if they were binding on the Commission, which was not the case.

The subsequent debate before the Council of State was primarily concerned with the issue of jurisdiction. The Belgian State argued that the contested decisions formed part of a Community decision-making procedure; as these were preparatory measures which were not binding on the Commission, they had no legal effect and the application should be deemed inadmissible. The applicant contended that the submission to the Commission of a list, from which her name was omitted, adversely and definitively affected her interests by excluding her from this recruitment procedure. She relied on the Court's judgment in Oleificio Borelli^(*) to argue that the requirement that national decisions forming part of a Community decision-making procedure be subject to judicial review is a general principle of Community law, which would be infringed if the Council of State decided that it had no jurisdiction to review the contested decisions, as this would deprive her of any possibility of submitting these to judicial review.

It was in this context that the applicant proposed that the Council of State refer to the Court a question on whether the presentation by the Belgian State of the list of three candidates was a decision ‘the validity of which could be examined by the Court of First Instance and the Court of Justice in annulment proceedings challenging the appointment of one of the candidates so that the jurisdiction of the Court of First Instance and the Court would preclude the Belgian Council of State from exercising jurisdiction to examine the legality of this choice and this presentation’.

On 26 October 1994, the Council of State and the applicant were informed that Mr Tanghe had been appointed a temporary official of the Commission with effect from 16 September 1994.

In her report to the Council of State of 16 November 1994, the auditeur, Madame Debusschere, expressed the opinion that the Council of State would, in accordance with Oleificio Borelli, be obliged to exercise jurisdiction to review the contested decisions if the Commission were bound by these. As the Commission was not so bound, she concluded that the application was inadmissible in that it sought to challenge preparatory acts only. However, in view of the fact that no judicial remedy lies against decisions of the Council of State, she also concluded that the question proposed by the applicant should be referred to the Court in accordance with Article 177 of the Treaty.

At the oral hearing on 31 May 1995, the applicant indicated that the future judgment of the Council of State on her application might, possibly, constitute a new fact which would cause time to start running again for the purposes of bringing an action before the Court of First Instance against the appointment of Mr Tange.

By judgment of 14 June 1995, the Sixth Chamber of the Belgian Council of State referred the following questions to the Court:

‘On a proper construction of the fifth paragraph of Article 173 of the Treaty of Rome, with respect to the period of two months prescribed therein for contesting a decision of the Commission, may a decision of a court of a Member State, finding an act of the State concerned unlawful, cause time to start running again where the act in question may have influenced the decision of the Commission which it is sought to contest?

[If that question is answered in the affirmative ]

In the case of a request that candidates be proposed for posts in the administration of the Commission of the European Communities, made during a meeting between the Permanent Representatives and the Secretary-General of the Commission and directly addressed to the Member States with no other form of publicity, or outside the framework of a recruitment procedure published in the Official Journal, is such a request valid, particularly having regard to the rules governing the recruitment of members of the temporary staff and officials of the Commission?’

Observations of the parties

Observations have been submitted by the applicant, the Belgian Government and the Commission. These may be summarized as follows.

According to the applicant, the main proceedings seek to challenge the right of a Member State to present and support candidates for appointment as officials of the Commission; were the Council of State to annul the contested decisions, the applicant could seek damages in a separate action before the Belgian civil courts. The reference to Article 173 of the Treaty should be read as referring to Article 179 of the Treaty and Articles 90 and 91 of the Staff Regulations, which govern the Court's jurisdiction to resolve disputes between the institutions and persons to whom the Staff Regulations apply, including candidates for posts in the institutions. In her view, the answer to the first question should be that a substantial new fact may cause the time-limits laid down by Articles 90 and 91 of the Staff Regulations to be reopened, and justify the examination of a challenge to a decision which had not been contested within the relevant time-limits.

As to the second question, the applicant argues that the independence of the European public service, an essential general principle of law, and the autonomy of Community law seek to guard against the interference of any Member State or other third party in the action of the Community institutions; she relies upon Articles 11 and 27 of the Staff Regulations, and Costa ν ENEL.^(*) She concludes that the appointing authority was not entitled to reserve any post for a national of a particular Member State and that the Commission took the candidates presented by the Belgian Foreign Ministry into consideration (and appointed one of them), thereby undermining the necessarily objective character of the decision appointing officials to DG I A. The Commission decisions were thus, in her view, adopted in breach of the principles of autonomy and independence and of the Staff Regulations.

The Belgian Government notes that the applicant has not presented a complaint in accordance with the Staff Regulations (though this would not in any case affect the proceedings before the Council of State), that respect for the time-limits fixed by the Treaty is a matter of public policy, and that there is no justification for reopening these time-limits.

The Commission also observes that the applicant did not present either a complaint under the Staff Regulations or an application by way of appeal to the Court of First Instance to contest either the appointment of Mr Tanghe or the Commission's decision not to appoint her to a post. Respect for the time-limits set by Articles 90 and 91 of the Staff Regulations is a matter of public policy, intended to ensure that administrative decisions may be considered definitive vis-à-vis the persons concerned once the deadline for contesting them has expired. The Commission adds that a judgment of a court of law, whether of a national court or the Court of Justice, may not be considered a ‘new fact’ and that nothing in the file would justify the reopening of the applicable time-limits. It therefore proposes a negative answer to the first question.

While remarking that its proposed answer to the first question would render an answer to the second question superfluous, the Commission goes on to explain the circumstances of its invitation to the Member States. It was clear that the diplomatic services of the Member States would have a large number of candidates with the relevant experience for appointment to temporary posts in DG I A. Furthermore, in a letter to the applicant of 22 March 1994, the Director-General of Personnel and Administration of the Commission declared that the submission of national lists of candidates which the applicant was contesting before the Council of State would not influence either the examination of the very numerous applications it had received, or the appointments to be made. The lists of candidates put forward by the Member States were added to the applications received following the press announcements, making a total of 826 candidates, of whom 16 were successful. The Commission concludes that an unsuccessful candidate who omits to employ the specific means of recourse provided by the Staff Regulations and the Treaty should not be permitted to correct this omission by means of a reference for a preliminary ruling under Article 177 of the Treaty.

Examination of the questions of the national court

Though the first question refers to the interpretation of the fifth paragraph of Article 173 of the Treaty, it is clear that the Court's jurisdiction to rule on any (possible future) dispute between the applicant and the Commission would be founded on Article 179 of the Treaty, and that Article 173 is not relevant to these proceedings. The conditions under which this jurisdiction is exercised are defined by Articles 90 to 91 a of the Staff Regulations, which are applied by analogy to temporary staff in accordance with Article 73 of the Conditions of Employment of Other Servants. The Court has long held that ‘it is not only persons who have the status of officials or of employees other than local staff who may bring an action before the Court to contest a decision adversely affecting them but also persons claiming that status’.^(*) In accordance with Article 3(1 )(a) of Council Decision 88/591/ECSC, EEC, Euratom of 24 October 1988 establishing a Court of First Instance of the European Communities,^(*) this jurisdiction is exercised at first instance by that Court.

The first question referred by the national court is predicated on the explicit premiss that ‘the applicant would have no interest in obtaining from the Council of State the annulment of the contested decisions in proposing certain candidates, since she could not derive from that any chance of obtaining the appointment’, if the time-limits could not be reopened.^(*) This finding is confirmed by the express terms of the order for reference, which states that the second question only arises if the first question is answered in the affirmative. Thus the sole object of the first question referred is to ascertain whether the applicant may request the Commission to reconsider its decision to appoint Mr Tanghe, notwithstanding the expiry of the time-limits set by the Staff Regulations.

It is not contested in the present proceedings that the applicant learned of the appointment of Mr Tanghe on 26 October 1994. No complaint against this decision was lodged within three months of such notification, in accordance with Article 90(2) of the Staff Regulations, nor, indeed, has any other action been taken by the applicant against the Commission since.

The applicant relies on a number of judgments of the Court and of the Court of First Instance to the effect that the emergence of substantial new facts may justify the submission by a complainant of a request, pursuant to Article 90(1) of the Staff Regulations, that the institution reconsider a decision which had not been challenged within the applicable time-limit.^(*) The first question therefore seeks a ruling on whether a judgment of a national court can constitute such a ‘substantial new fact’, where the decisions contested before the national court with a view to their annulment may have influenced the Commission's appointment decision.

In the present case, the Court is being asked to provide an interpretation of a set of procedural rules which would have no discernible bearing on the proceedings before the national court. In these circumstances, the Court should, in my view, consider as a preliminary issue whether it has jurisdiction to answer this question.

It is true, as the Court found in Dzodzi, that ‘in accordance with the division of judicial tasks between the national courts and the Court of Justice pursuant to Article 177, the Court gives its preliminary ruling without, in principle, having to look into the circumstances in which the national courts were prompted to submit the questions and envisage applying the provision of Community law which they have asked the Court to interpret’.^(*) The Court went on to hold, however, that ‘[the] matter would be different only if it were apparent either that the procedure provided for in Article 177 had been diverted from its true purpose and sought in fact to lead the Court to give a ruling by means of a contrived dispute, or that the provision of Community law referred to the Court for interpretation was manifestly incapable of applying’.^(*) The Court has also consistently held that it has no jurisdiction to provide a preliminary ruling where ‘it is quite obvious that the interpretation of Community law ... sought by [the national] court bears no relation to the actual nature of the case or to the subject-matter of the main action’.^(*)

Clearly, the question of whether a judgment of a national court could constitute a new fact such as to affect the institution's duty to examine a request that it reconsider an earlier decision affecting a complainant is a matter of Community law. In the rather special circumstances of the present case, however, I do not consider that fact alone is sufficient to establish the Court's jurisdiction.

Firstly, the sole stated object of the first question referred is to ascertain whether the applicant may defeat the time-limit to contest a Commission appointment decision which she admittedly failed to contest in time. This does not appear to me to correspond with the true purpose of Article 177, which is to provide national courts with rulings on the interpretation (and, in the case of legislation, the validity) of provisions of Community law which the national courts must then apply to the facts of the case before them. While the Court is generally requested to interpret provisions of Community law which can be applied to the legal relationship between the parties to the main proceedings, it may also be asked under Article 177 of the Treaty to provide interpretations of both procedural^(*) and substantive^(*) provisions of Community law which may affect the issue of the national court's jurisdiction to decide the case before it; in such circumstances, the national court may be said to apply the interpretation provided, rather than the provisions themselves. In the present case, the provisions of Community law which are the subject of the question, however these are interpreted, are not capable of affecting the national court's jurisdiction, and the national court is therefore not in a position to apply the Court's interpretation.

The Court's lack of jurisdiction as regards the first question is demonstrated by the fact that no answer the Court could provide could have any bearing on the validity of the contested decisions. The substantive matter pending before the Belgian court is whether participation by the Belgian State in the appointment of certain temporary officials to the Commission was incompatible with Community law; on this the Council of State has held that ‘the Belgian Government's competence to propose candidates ... depends on the legality of the appointment procedure initiated by the Commission’. On the question of jurisdiction, the Council of State has held that it would only examine the validity of the contested decisions ‘[if] it is possible for the applicant to obtain the annulment of Mr Tanghe's appointment by the Court of First Instance’.

It is clear that, as a matter of Community law, the jurisdiction of the Council of State to rule on the validity of the contested decisions is in no way related to the admissibility of any proceedings the applicant may wish to commence against the Commission. Prompted by the applicant, the Council of State appears to have been motivated in referring the questions in the present case by the necessity to avoid infringing what Advocate General Darmon described in Oleificio Borelli as ‘the right to an effective judicial remedy’. He defined the content of this principle as follows: ‘[an] individual who considers himself wronged by a measure which deprives him of a right or advantage under Community rules must be able to have access to a remedy against that measure and obtain complete judicial protection’.^(*) In his view, a national measure which definitively has an adverse effect on the legal situation of the applicant must be capable of judicial review at the national level.

In its judgment in that case, the Court held that where a national measure ‘forms part of a Community decision-making procedure ... it is for the national courts, where appropriate after obtaining a preliminary ruling from the Court, to rule on the lawfulness of the national measure at issue on the same terms on which they review any definitive measure adopted by the same national authority which is capable of adversely affecting third parties and, consequently, to regard an action brought for that purpose as admissible even if the domestic rules of procedure do not provide for this in such a case.’^(*)

It would have been open to the referring court in the present case to examine the conformity of the contested decisions with Community law, in particular with the provisions of the Staff Regulations which apply to the situation of the applicant, and to request a preliminary ruling from the Court on any issue of Community law which was necessary for it to reach judgment; this appears, indeed, to be the object of the second question. While the parties disagree as to whether the Council of State is obliged, in accordance with Oleificio Borelli, to exercise jurisdiction in the main proceedings, there is, on the other hand, no genuine dispute as to whether the effect of the judgment of the Council of State would be to reopen the time-limits established by the Staff Regulations; the matter appears to have been raised by the Council of State of its own motion in the order for reference. In these circumstances, any ruling the Court would give on this question could not therefore be said to ‘correspond to an objective requirement inherent in the resolution of a dispute’ before the referring court.^(*)

The basis for posing the first question seems to me to be doubly hypothetical and the underlying reasoning circular. Firstly, the question referred assumes that, at some future date, the applicant will commence an action before the Court of First Instance for the annulment of the Commission's decision to appoint Mr Tanghe. This assumption, incidentally, further implies that she will, by then, have complained unsuccessfully to the Commission in accordance with Article 90(2) of the Staff Regulations. Secondly, it must be assumed that, at the time of that action, she will have succeeded in her action before the Belgian Council of State. However, the latter hypothesis is, in turn, dependent on answers favourable to her in respect of both of the questions referred.

The Council of State has thus made the result of the case in the main proceedings depend on the effects of its as yet undelivered judgment on the application of provisions of Community law which can only be invoked if that judgment is favourable to the applicant. It is clearly established in the case-law of the Court that it may not provide consultative opinions on general or hypothetical questions, or on questions which would not assist the national court in resolving the issue before it;^(*) this case-law is in my view applicable to the present case.

The entirely hypothetical and even contrived nature of this question is further apparent from the fact that, if the Court were to answer it in the framework of the present request for a preliminary ruling, it would in effect be encroaching on the jurisdiction of the Court of First Instance to decide the same issue at first instance in any possible future dispute between the Commission and the applicant. The Court of First Instance in such a case would be able to examine any ground properly submitted to it on which the validity of the Commission's appointment decision is challenged. This could include any allegation that the participation of the Member States in the procedure for selecting the candidates was contrary to the Staff Regulations or to any general principle of Community law, and that the validity of the Commission's decision was thereby affected; the question of Member State participation in the appointment procedure, which is not expressly foreseen in the Staff Regulations, is obviously very different from that of the substantive validity of Member State measures which are required as part of a particular Community decision-making procedure, as in Oleificio Borelli. The validity of staff appointments made by the Community institutions, and a fortiori the question of whether any such appointment may be contested in possible future proceedings, are matters assigned to the jurisdiction of the Court of First Instance, as the court designated to perform this function of the Court of Justice under the Treaties. It would not, in my view, be appropriate for the Court of Justice to predict how the Court of First Instance would exercise that jurisdiction in a possible future action.

It is true that the referring court has determined, as a matter of national law, that the Court's answer to this question bears on the interest of the applicant in having the contested decisions annulled, and that the determination of the interest an applicant may have in the annulment of such a decision is a matter for national law. In this regard, the following passage from the judgment of the Court in the second Foglia ν Novello case is relevant:

‘... whilst the Court of Justice must be able to place as much reliance as possible upon the assessment by the national court of the extent to which the questions submitted are essential, it must be in a position to make any assessment inherent in the performance of its own duties in particular [in] order to check ... whether it has jurisdiction. Thus the Court ... cannot ... remain indifferent to the assessments made by the courts of the Member States in the exceptional cases in which such assessments may affect the proper working of the procedure laid down by Article 177’.^(*)

This appears to me to be just such an exceptional case where the referring court's assessment of the relevance of the question submitted to the Court is incompatible with the role of the Court under Article 177, for the reasons set out above. I should add that, as the Court also noted in Foglia ν Novello,‘[a] declaration by the Court that it has no jurisdiction in such circumstances does not in any way trespass upon the prerogatives of the national court but makes it possible to prevent the application of the procedure under Article 177 for purposes other than those [for which it was intended]’.^(*)

In the light of the foregoing, I am of the opinion that the Court has no jurisdiction to answer the first question.

Should the Court choose not to follow this analysis of the question of its jurisdiction in the present proceedings, then I am of the view that the answer to the first question of the Council of State must be in the negative. The applicant is here contesting two decisions taken by national authorities, which are said to be preparatory to, and to have rendered invalid, the Commission's appointment of Mr Tanghe, exclusively with a view to contesting that appointment. If the decision of a national court were to be considered to constitute such a new fact, the applicant would be enabled to evade the time-limits established by the Staff Regulations, the application of which, according to the settled case-law of the Court, is a matter of public policy.^(*) Furthermore, as the Commission has argued, the relevant facts in the, as yet hypothetical, dispute between the applicant and the Commission were known to the applicant at least since 26 October 1994, and have not been changed or added to since. While the Court has recognized that ‘a judgment annulling an administrative measure can constitute a new factor ... as regards the persons directly affected by the measure which is annulled’,^(*) it is clear that national courts have no jurisdiction to annul measures adopted by Community institutions.

The issues of principle which arise in the present case are similar in a number of material respects to those which arose in TWD Textilwerke Deggendorf.^(*) There the applicant was challenging in the national court the conformity with the Treaty of national measures implementing a Commission decision that certain aid granted to the applicant by the German authorities was incompatible with the common market and should be recovered. It had failed to challenge that decision under Article 173 of the Treaty. The Court held that:

‘To accept that in such circumstances the person concerned could challenge the implementation of the decision in proceedings before the national court on the ground that the decision was unlawful would in effect enable the person concerned to overcome the definitive nature which the decision assumes as against that person once the time-limit for bringing the action has expired.’^(*)

In the proceedings before the national court in the present case, the applicant is challenging, not the implementation of a Commission decision, but acts of the national authorities prior to its adoption, which are said to have affected the content of the decision and hence its validity. Like the applicant in TWD Textilwerke Deggendorf, the applicant in these proceedings is attempting to use national proceedings to avoid the consequences of a failure to respect the time-limit for the commencement of a direct action, where the admissibility in principle of such proceedings was not in doubt. In such circumstances, I do not consider that the applicant should be permitted to challenge indirectly the conformity with Community law of decisions which she failed to challenge directly.

The referring court has explicitly stated that the second question only falls to be considered if the first question is answered in the affirmative. In view of my proposed answer to the first question, and in line with the express indication of the referring court, I recommend that the Court not answer the second question.

In the event that the Court considers that it should none the less answer the second question, I am of the opinion that the supplementary request made by the Commission to the Member States to provide the names of candidates for consideration as part of the general recruitment procedure did not contravene the applicable provisions of Community law. In particular, the applicant has not demonstrated any breach of Article 11 of the Staff Regulations, which applies by analogy to temporary staff by virtue of Article 11 of the Conditions of Employment of Other Servants. She has equally failed to show how Article 27 of the Staff Regulations, on which she placed particular emphasis, should be interpreted as applying to temporary staff, or how the equivalent provisions of the Conditions of Employment of Other Staff, in particular Article 12(1), have been infringed.

Conclusion

In the light of the foregoing, I recommend that the Court answer the questions submitted by the Belgian Council of State as follows:

The Court has no jurisdiction in the procedure provided for in Article 177 to rule on whether a decision of a court of a Member State may cause time to start running again in any possible future proceedings to contest the validity of a Commission decision appointing a temporary official, where the outcome of the decision of the national court has been made to depend on an interpretation of provisions of Community law which are not capable of affecting the national court's jurisdiction, and where the national court is therefore not in a position to apply that interpretation.