ORDER OF THE COURT OF FIRST INSTANCE (Appeal Chamber)

22 June 2009

Case T-371/08 P

Bart Nijs

v

Court of Auditors of the European Communities

(Appeal – Civil service – Officials – Decision to appoint the appellant’s superior – Internal competition – Staff Committee elections – Decision not to promote the appellant in 2006 – Appeal manifestly inadmissible in part and manifestly unfounded in part)

Appeal: brought against the order of the Civil Service Tribunal of the European Union (Second Chamber) of 26 June 2008 in Case F‑5/07 Nijs v Court of Auditors [2008] ECR-SC I‑A-1-0000 and II‑A-1-0000 seeking that that order be set aside.

Held: The appeal is dismissed. Mr Bart Nijs is ordered to bear his own costs and to pay those incurred by the Court of Auditors of the European Communities in the present proceedings.

Summary

1.      Procedure – Admissibility of actions – Assessment in the light of the rules in force when the application was submitted

(Rules of Procedure of the Court of First Instance, Art. 111; Rules of Procedure of the Civil Service Tribunal, Art. 76)

2.      Procedure – Action before the Civil Service Tribunal – Possibility of a second exchange of pleadings – Civil Service Tribunal’s discretion

(Statute of the Court of Justice, Annex I, Art. 7(3))

1.      Although the rule laid down in Article 76 of the Rules of Procedure of the Civil Service Tribunal that the Tribunal may, by way of an order, dismiss an action which is manifestly bound to fail is a procedural rule which, as such, applies to all proceedings pending at the time when it enters into force, the same is not true of rules on the basis of which the Tribunal may, under that article, regard an action as manifestly inadmissible, and which may only be those applicable on the date when the action is brought.

In applying, simultaneously, Article 111 of the Rules of Procedure of the Court of First Instance and Article 76 of the Rules of Procedure of the Civil Service Tribunal, which lay down identical rules, to a case brought before the latter Rules came into force, the Civil Service Tribunal is merely making use of that possibility. Since the text of the Rules of Procedure of the Court of First Instance were published on a date well before the case was brought, an applicant cannot reasonably claim that he was not in a position to know, at the time when he brought his action, the rules on the basis of which his action was dismissed.

Furthermore, since the Rules of Procedure were published in the Official Journal, everyone is deemed to be aware of them.

(see paras 20, 28)

See: 161/88 Binder [1989] ECR 2415, para. 19

2.      It is clear from Article 7(3) of Annex I to the Statute of the Court of Justice that the Civil Service Tribunal is not under any obligation to ask the parties to conduct a second exchange of pleadings. The decision to request such an exchange falls within the discretion of the Tribunal, which it exercises according to its own need for information. Consequently, the wording of that provision cannot create a legitimate expectation for the applicant that he will be able to submit a second pleading after the application.

(see para. 27)