61995J0246

Officials - Actions - Time-limits - Mandatory - Caused to run afresh by a judgment given by a court of a Member State - Not possible

(EC Treaty, Art. 179; Staff Regulations, Arts 90 and 91)

The time-limits prescribed in Articles 90 and 91 of the Staff Regulations for lodging complaints and bringing proceedings are a matter of public policy and are not subject to the discretion of the parties or the Court, since they were established in order to ensure that legal positions are clear and certain.

Consequently, Article 179 of the Treaty and Articles 90 and 91 of the Staff Regulations are to be interpreted as meaning that the periods which those provisions prescribe for challenging a decision of the appointing authority of one of the Community institutions cannot be caused to run afresh by a judgment given by a court of a Member State finding an act of that State unlawful, where the act in question may have influenced the institution's decision which is to be challenged.

In Case C-246/95,

REFERENCE to the Court under Article 177 of the EC Treaty by the Conseil d'État of the Kingdom of Belgium for a preliminary ruling in the proceedings pending before that court between

Myrianne Coen

and

Belgian State

on the interpretation of Article 179 of the EC Treaty and of the Staff Regulations of Officials of the European Communities,

THE COURT

(Second Chamber),

composed of: G.F. Mancini, President of the Chamber, G. Hirsch and R. Schintgen (Rapporteur), Judges,

Advocate General: N. Fennelly,

Registrar: H. von Holstein, Assistant Registrar,

after considering the written observations submitted on behalf of:

- Myrianne Coen, by H. Mackelbert and J.-N. Louis, of the Brussels Bar,

- the Belgian State, by J. Devadder, Director of Administration in the Ministry of Foreign Affairs, Trade and Development Cooperation, acting as Agent,

- the Commission of the European Communities, by G. Valsesia, Principal Legal Adviser, and J. Currall, of its Legal Service, acting as Agents,

having regard to the Report for the Hearing,

after hearing the oral observations of Myrianne Coen, represented by J.-N. Louis; of the Belgian State, represented by R. Foucart, Director General of the Legal Service of the Ministry of Foreign Affairs, Trade and Development Cooperation, acting as Agent; and of the Commission, represented by J. Currall, at the hearing on 15 February 1996,

after hearing the Opinion of the Advocate General at the sitting on 28 March 1996,

having regard to the order of 2 October 1996 re-opening the oral procedure,

after hearing the Opinion of the Advocate General at the sitting on 5 December 1996,

gives the following

Judgment

1 By judgment of 14 June 1995, received at the Court Registry on 17 July 1995, the Conseil d'État (Council of State) of the Kingdom of Belgium referred to the Court for a preliminary ruling under Article 177 of the EC Treaty two questions on the interpretation of Article 173 of that Treaty and on the interpretation of the Staff Regulations of Officials of the European Communities (`the Staff Regulations') and of the Conditions of Employment of Other Servants of the European Communities.

2 Those questions have been raised in proceedings between Myrianne Coen (`the applicant'), an official at the Belgian Ministry of Foreign Affairs (`the Ministry'), and the Belgian State concerning the lawfulness of certain acts of that State in the context of a procedure initiated by the Commission for the engagement of temporary staff.

3 According to the order for reference, in September 1993 the Commission invited applications with a view to establishing by selection a reserve list for the appointment of temporary staff in Category A, inter alia in the field of external relations. Notices were published in the Belgian press, one of which appeared on 18 September 1993 in the newspaper `Le Soir'.

4 At the same time, in October 1993 the Commission asked the Member States, through their Permanent Representations to the European Communities, to propose suitable candidates for appointment as temporary staff in the new Directorate-General I-A, responsible for the common foreign and security policy. The Commission explained that preference would be given to those holding the rank of Embassy First Secretary or recently appointed as Counsellors and that successful candidates would be treated as members of the temporary staff.

5 On 11 November 1993, the applicant, who is a Foreign Service Officer in Administrative Grade 5 at the Ministry, submitted her candidature in response to the Commission's notice calling for applications.

6 On 18 November 1993, following the Commission's request addressed to the Permanent Representations of the Member States, the Administrative Board of the Ministry selected three members of the Ministry's Dutch-speaking staff, whose names were forwarded to the Commission.

7 On 15 December 1993 the applicant put her candidature before the competent ministerial authorities. The Administrative Board of the Ministry refused to forward her candidature to the Commission on the grounds that it was out of time and that she did not possess the desired grade.

8 On 30 December 1993 the applicant brought an action before the Belgian Conseil d'État for annulment of the Ministry's decision, probably taken between 15 November 1993 and 1 December 1993, to put forward the names of three diplomats, Foreign Service Officers at that Ministry, for engagement as members of the temporary staff in Category A in Directorate-General I-A of the Commission, and the decision, probably adopted on 16 December 1993, of the Administrative Board of the Ministry's Foreign Service Division not to put forward the applicant's candidature for the posts in question.

9 The contested decisions were suspended by judgment of the Conseil d'État of 9 February 1994; following further inquiries into the facts, the suspension was lifted on 28 March 1994.

10 On 16 September 1994, Mr T, one of the three candidates whose names the Ministry had put forward to the Commission, entered the service of the Commission as a member of the temporary staff in Directorate-General I-A.

11 On 26 October 1994, counsel for the Belgian State apprised the Conseil d'État of the administrative status of the three persons proposed by the Ministry to the Commission and, in particular, of Mr T's appointment as a member of the temporary staff.

12 The applicant did not submit a complaint to the Commission concerning Mr T's appointment; nor did she bring annulment proceedings before the Court of First Instance of the European Communities.

13 The Conseil d'État considers that if, following the expiry of the two-month period laid down in the fifth paragraph of Article 173 of the Treaty, Mr T's appointment were no longer open to challenge, the applicant would have no legal interest in having that court annul the two contested decisions. If it were possible for the applicant to have Mr T's appointment annulled by the Court of First Instance, the Conseil d'État would have to examine of its own motion whether the Belgian Government is competent to propose candidates. The question would then arise as to whether the appointment procedure initiated by the Commission was lawful.

14 In those circumstances, the Conseil d'État stayed proceedings and submitted the following two questions to the Court for a preliminary ruling:

`(1) 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?

(2) 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 of the European Communities, 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?'

15 It should be noted at the outset that the Court's jurisdiction in disputes between the Community and its servants is based on Article 179 of the Treaty and not on Article 173, to which the first question refers.

16 The means of redress available and, in particular, the relevant time-limits and procedural rules are laid down in Articles 90 and 91 of the Staff Regulations. Article 73 of the Conditions of Employment of Other Servants of the European Communities expressly refers to those provisions.

17 Articles 90 and 91 of the Staff Regulations do not apply only to persons who have the status of officials or employees other than local staff; they also apply to persons claiming that status, including candidates in a recruitment procedure organized by a Community institution (see to that effect Case 286/83 Alexis and Others v Commission [1989] ECR 2445, paragraph 9).

18 It follows that the first question submitted by the Belgian Conseil d'État must be read as concerning the interpretation of Article 179 of the Treaty and Articles 90 and 91 of the Staff Regulations.

19 Pursuant to Article 3 of Council Decision 88/591/ECSC, EEC, Euratom of 24 October 1988 establishing a Court of First Instance of the European Communities (OJ 1988 L 319, p. 1; corrigendum published in OJ 1989 L 241, p. 4), the Court of First Instance exercises at first instance the jurisdiction conferred on the Court of Justice in the types of dispute referred to in Article 179 of the EEC Treaty.

20 Article 90(2) of the Staff Regulations provides that a person to whom those Regulations apply must submit to the appointing authority a complaint against an act adversely affecting him within three months of the date on which he learned of it. Under Article 91(3), judicial proceedings must be brought within three months of an express or implied decision rejecting the complaint.

21 It is settled case-law that the time-limits prescribed in the Staff Regulations for lodging complaints and bringing proceedings and those for bringing actions under Article 173 of the Treaty are a matter of public policy and are not subject to the discretion of the parties or the Court, since they were established in order to ensure that legal positions are clear and certain (see Case 227/83 Moussis v Commission [1984] ECR 3133, paragraph 12, and Case 191/84 Barcella and Others v Commission [1986] ECR 1541, paragraph 12).

22 Although, in circumstances such as those at issue in the main proceedings, the lawfulness of a recruitment procedure initiated by a Community institution may depend on whether certain acts of the national authorities, to which that institution has turned, are themselves lawful, it is for the person aggrieved to exercise, within the time-limits laid down by the Staff Regulations, the remedies made available, even if only as a precautionary measure.

23 Any other interpretation would leave the mandatory time-limits laid down by the Treaty and the Staff Regulations open to circumvention through the bringing of legal proceedings at the national level.

24 Consequently, the answer to the first question, as it must be understood in the light of the foregoing considerations, must be that Article 179 of the Treaty and Articles 90 and 91 of the Staff Regulations are to be interpreted as meaning that the periods which those provisions prescribe for challenging a decision of the Commission cannot be caused to run afresh by a judgment given by a court of a Member State finding an act of that State unlawful, where the act in question may have influenced the Commission decision which is to be challenged.

25 As the order for reference makes clear, the Belgian Conseil d'État asked the second question only in the event that the first question were to be answered in the affirmative.

26 In view of the reply to the first question, there is no need to answer the second question.

Costs

27 The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT

(Second Chamber),

in answer to the questions referred to it by the Conseil d'État of the Kingdom of Belgium, by judgment of 14 June 1995, hereby rules:

Article 179 of the Treaty and Articles 90 and 91 of the Staff Regulations are to be interpreted as meaning that the periods which those provisions prescribe for challenging a decision of the Commission cannot be caused to run afresh by a judgment given by a court of a Member State finding an act of that State unlawful, where the act in question may have influenced the Commission decision which is to be challenged.