Opinion of the Advocate-General

Opinion of the Advocate-General

1. By its decision of 24 June 2009 (2) (‘the decision of 24 June 2009’), the Court decided that there should be a review of the judgment of the Court of First Instance of the European Communities (‘the CFI’) of 6 May 2009 in M v EMEA (3) (‘the judgment of the CFI of 6 May 2009’). That decision provides that the review should cover the question whether the judgment of the CFI of 6 May 2009 affects the unity or consistency of Community law in that the CFI, as the appeal court, interpreted the expression ‘where the state of the proceedings … permits’ in Article 61 of the Statute of the Court of Justice and Article 13(1) of the Annex to the Statute as permitting it to dispose of a case and rule on the substance, despite the fact that the appeal before it concerned the examination of the treatment given at first instance to a plea of inadmissibility and that, as regards the aspect of the case which was disposed of, there had been no exchange of arguments before it or before the European Union Civil Service Tribunal (‘the CST’) as the court seised at first instance.

2. In view of the fact that this is the first time the Court has had occasion to review a decision given by the CFI as court of second instance, (4) I believe that it is necessary to set out briefly some of the essential features of that procedure.

3. The first paragraph of Article 220 EC provides that the Court of Justice, within its own jurisdiction, is to ensure that in the interpretation and application of the Treaty the law is observed. In my opinion, the possibility of reviewing a decision delivered by the CFI on appeal constitutes one of the remedies available to the Court enabling it to fulfil that function.

4. However, it should be pointed out that it is an extraordinary remedy and indeed the final remedy. That is apparent from, first, the overall conception of the organisation of the Community courts system, second, the conditions under which review is admissible, which must be considered by the special Chamber provided for in Article 123b of the Rules of Procedure of the Court before the review procedure is initiated, and, finally, the outcome of the review, which, following the decision on admissibility, consists in a finding as to whether or not the decision of the CFI affects the unity or consistency of Community law.

5. The sole objective of the review procedure is to protect the unity and consistency of Community law, which could be undermined by an incorrect decision delivered by the CFI on appeal.  (5) It follows that the purpose of that procedure is to safeguard not the interests of the parties to those particular proceedings but the interests of Community law.

6. Accordingly, the review procedure is intended to correct, not incorrect decisions delivered by the CFI on appeal in general, but only those incorrect decisions delivered by the CFI on appeal which affect the unity or consistency of Community law. To my mind, an incorrect decision can have such an effect only if it is inconsistent with one of the general principles of Community law, which, according to the Court’s recent case‑law, have constitutional status,  (6) and observance of which guarantees the unity and consistency of Community law.

7. In accordance with what has been previously stated, I shall begin by summarising the background to the review procedure. I shall then consider whether the judgment of the CFI of 6 May 2009 is vitiated by an error and, if so, I shall focus, lastly, on the question whether the judgment of the CFI of 6 May 2009 affects the unity or consistency of Community law.

Background to the review procedure

8. Mr M asked the CST to annul the decision of 25 October 2006 by which the European Medicines Agency (‘the EMEA’) rejected his request that an Invalidity Committee be convened and the decision of 31 January 2007 by which the EMEA rejected his request for compensation and an order that the EMEA pay to him the sum of EUR 100 000 by way of damages for wrongful acts in the performance of public duties.

9. By order of 19 October 2007 (7) (‘the order of the CST of 19 October 2007’), the CST dismissed the action as inadmissible, pursuant to a plea of inadmissibility under Article 114(1) of the Rules of Procedure of the CFI, (8) without going into the substance of the case.

10. Mr M appealed against that order, requesting the CFI to set it aside and to annul the decision of the EMEA of 25 October 2006, in so far as it rejected the request of 8 August 2006 that the Invalidity Committee be convened, and the EMEA’s decision rejecting the applicant’s request for compensation for the damage suffered.

11. The CFI granted Mr M’s application under Article 146 of the Rules of Procedure of the CFI setting out the reasons for which he wished to be heard and opened the oral procedure.

12. By its judgment of 6 May 2009, the CFI set aside the order of the CST of 19 October 2007 and, at the same time, referring to Article 13(1) of the Annex to the Statute of the Court of Justice, itself gave judgment in the matter, that is to say, it annulled the EMEA’s decision of 25 October 2006 in so far as it rejected the request of 8 August 2006 for the referral of the case to the Invalidity Committee and ordered the EMEA to pay the applicant damages of EUR 3 000.

13. Following the proposal of the First Advocate General that the judgment of the CFI of 6 May 2009 should be reviewed, the Court, by decision of 24 June 2009, decided that there should be a review of that judgment covering the question whether the CFI judgment affects the unity or consistency of Community law in that that court, as the appeal court, interpreted the expression ‘where the state of the proceedings … permits’ in Article 61 of the Statute of the Court of Justice and Article 13(1) of the Annex to the Statute as permitting it to dispose of a case and rule on the substance, despite the fact that the appeal before it concerned the examination of the treatment given at first instance to a plea of inadmissibility and that, as regards the aspect of the case which was disposed of, there had been no exchange of arguments before it or before the European Union Civil Service Tribunal as the court seised at first instance. The Court invited the interested parties referred to in Article 23 of the Statute of the Court and the parties to the proceedings before the CFI to lodge their written observations on that question.

14. Written observations were lodged by Mr M, the EMEA, the Italian and Polish Governments, the European Parliament, the Council of the European Union and the Commission of the European Communities.

Whether the judgment of the CFI of 6 May 2009 is flawed

15. It follows from the decision of the Court of 24 June 2009 that it is necessary to examine the judgment of the CFI of 6 May 2009 not from the point of view of substantive law, but from the point of view of the misapplication of the rules of procedure, namely Article 13(1) of the Annex to the Statute of the Court of Justice, under which the CFI is obliged, as an appeal court, if the appeal is well founded, to refer the case back to the CST where the state of the proceedings does not permit a decision by the CFI. (9)

16. I am of the view that the expression ‘where the state of the proceedings … permits’ must be interpreted in the light of the overall system of the Community judicature and by reference to the functions pertaining to a court of first instance and a court of second instance ruling on an appeal.

17. In the present case, the court with jurisdiction ratione materiae to decide the dispute between Mr M and the EMEA was the CST. That jurisdiction was triggered by the lodging of the application and its substance determined by the obligation to examine, first, whether the application was admissible and then, if found to be admissible, whether it was well founded on the basis of the matters of fact and law established in accordance with the rule that the parties should be heard.

18. It hardly needs to be pointed out that it would be unthinkable for a judicial decision to be given as to the substance without a finding as to the facts. In the present case, the CST is the only court which has jurisdiction ratione materiae to make a finding as to the facts.

19. Indeed, in its order of 19 October 2007, the CST merely held that the action was inadmissible, without going into the substance of the case. The power to do so is provided in Article 114 of the Rules of Procedure of the CFI, (10) which pursues an objective of economy in judicial procedure. It follows that the factual and legal basis of any decision as to the substance was not established by the CST.

20. The CFI became involved in the dispute between Mr M and the EMEA as a result of the appeal, which, under Article 11(1) of the Annex to the Statute of the Court, is limited to points of law and must therefore lie on the grounds of lack of jurisdiction of the CST, a breach of procedure before it which adversely affects the interests of the appellant, as well as the infringement of Community law by the CST.

21. It follows from that definition of an appeal that an appeal court is bound by the factual basis established by the court at first instance, that is to say, by the CST.

22. Since the CST decided the case by order dismissing the action as inadmissible, the sole purpose of the appeal proceedings was, in my view, to answer the question whether the action was admissible. Given that no finding was made as to the facts and, as a consequence, the factual basis was not established by the CST, it was not possible for the CFI to rule on the substance of the dispute.

23. I consider that it is possible to conclude, on the whole, that where the CST has dismissed an action as inadmissible by order without going into the substance of the case, the state of the proceedings does not permit the CFI to give final judgment on appeal.

24. In my view, such conduct on the part of the CFI, as exemplified in the present case, indicates a failure in the functioning of the system of the Community judicature.

25. That failure lies essentially in the confusion as to which court has jurisdiction ratione materiae . The CFI, as court of second instance, encroached upon the jurisdiction ratione materiae of the CST, as regards its essential characteristics, in particular as regards the findings of fact, essential for the purpose of ruling on the substance.

26. As a result, the CFI became the de facto court of first instance. In the appeal proceedings, which are limited to points of law, it was not possible to apply the procedural rule that the parties should be heard, which typically applies only to proceedings at first instance. In appeal proceedings, it is possible to examine only whether, at first instance, the rule that the parties should be heard was infringed.

27. It follows that, by proceeding as it did in the present case, the CFI infringed the principle of the court specified by law, according to which no one may be deprived of access to the proper court laid down by law. (11) For the purposes of the findings of fact and ensuring that those findings are subject to a rule of law, the CST is the court which fulfils those functions. That conclusion is closely linked with the question concerning the composition of a court, which, according to the Court’ case‑law, is the cornerstone of the right to a fair hearing. (12)

28. Moreover, as a consequence of the judgment on the substance delivered by the CFI on appeal, the unsuccessful party was deprived of the opportunity of taking advantage of the right to judicial protection by lodging an appeal.  (13) According to the well established case‑law of the Court, (14) the principle of effective judicial protection is a general principle of Community law stemming from the constitutional traditions common to the Member States, which has been enshrined in Articles 6 and 13 of the ECHR and which has also been reaffirmed by Article 47 of the Charter of Fundamental Rights of the European Union, proclaimed on 7 December 2000 in Nice. (15)

29. In conclusion, as a result of the misinterpretation of Article 13(1) of the Annex to the Statute of the Court, the judgment of the CFI of 6 May 2009 is vitiated by an error.

Whether the judgment of the CFI of 6 May 2009 affects the unity or consistency of Community law

30. To my mind, the consequences of the misinterpretation of Article 13(1) of the Annex to the Statute of the Court go beyond the ambit of the dispute between Mr M and the EMEA and, accordingly, the judgment of the CFI of 6 May 2009, delivered as a result of that misinterpretation, affects the unity and consistency of Community law.

31. As I have already mentioned at point 6 above, an incorrect decision can jeopardise the unity or consistency of Community law only if it is inconsistent with one of the general principles of Community law. I am of the view that, in the present case, that condition has been met.

32. In my opinion, the misinterpretation of Article 13(1) of the Annex to the Statute of the Court led to the infringement of the right to be heard before the CST, which, in the present case, was the only court which had jurisdiction ratione materiae to m ake findings of fact, in accordance with the rule that the parties should be heard, for the purpose of ruling on the substance of the dispute. The right to a fair hearing, which, according to the Court’s case law, (16) constitutes a fundamental right which the European Union respects as a general principle under Article 6(2) EU, was also infringed, since the right to be heard is one of its constituent features.

33. Moreover, as I have already pointed out at point 27 above, by its judgment on the substance, the CFI also infringed the principle of the court specified by law and the right to judicial protection by lodging an appeal, which are also an embodiment of the right to a fair hearing.

34. In the light of the above analysis, it must be concluded that the judgment of the CFI of 6 May 2009 affects the unity and consistency of Community law.

Scope of the annulment of the judgment of the CFI of 6 May 2009

35. Whilst I am aware of the scope of the review of the judgment of the CFI of 6 May 2009, which was determined by the decision of the Court of 24 June 2009, it is clear from the outcome of the review of that judgment that several aspects of the right to a fair hearing were infringed in the procedure before the CFI which preceded it. The consequences of the infringement of that fundamental right impact upon the judgment of the CFI of 6 May 2009 in its entirety. (17) For that reason, I propose that the Court set aside that judgment in its entirety and refer the case back to the CFI.

36. I do not believe that it is possible to state which of the effects of the decision of the CFI are to be considered as definitive in respect of the parties to the litigation, for the purpose of the first paragraph of Article 62b of the Statute of the Court. Similarly, since the factual basis was established in a manner that is inconsistent with the right to a fair hearing, the Court cannot give final judgment in the matter for the purpose of the first paragraph of Article 62b of the Statute of the Court.

Conclusion

37. In the light of the foregoing, I propose that the Court should rule as follows:

1. Declare that the judgment of the Court of First Instance of the European Communities (Appeal Chamber) of 6 May 2009 in Case T‑12/08 P M v EMEA affects the unity and consistency of Community law in that that court, as the appeal court, interpreted the expression ‘where the state of the proceedings … permits’ in Article 61 of the Statute of the Court of Justice and Article 13(1) of the Annex to the Statute as allowing it to dispose of a case and rule as to the substance, despite the fact that the appeal before it concerned the examination of the treatment given at first instance to a plea of inadmissibility.

2. Set aside the judgment of the Court of First Instance of the European Communities of 6 May 2009 in Case T‑12/08 P M v EMEA.

3. Refer the case back to the Court of First Instance of the European Communities.

(1) .

(2) – Case C‑197/09 RX [2009] ECR-SC I-B-2-000.

(3) – Case T-12/08 [2009] ECR-SC I-B-1-000.

(4) – That possibility is provided for in the second paragraph of Article 225(2) EC and Articles 62, 62a and 62b of the Statute of the Court of Justice.

(5) – An ‘incorrect decision’ is a decision which is incorrect from the point of view of substantive law or a decision which is correct from the point of view of substantive law but which is the consequence of the misapplication of the rules of procedure.

(6) – See Case C‑101/08 Audiolux and Others [2009] ECR I‑0000, paragraph 63.

(7) – Case F‑23/07 [2007] ECR-SC I-A-1-000.

(8)  – The Rules of Procedure of the Civil Service Tribunal entered into force only on 1 November 2007 – until, that time, the Rules of Procedure of the Court of First Instance were applied to the Civil Service Tribunal in accordance with Article 3(4) of Council Decision 2004/752/EC, Euratom, of 2 November 2004 establishing the European Union Civil Service Tribunal.

(9) – The Court of Justice is under the same obligation, under Article 61 of the Statue of the Court, when ruling on an appeal, even though the wording of that provision is slightly different.

(10)  – Article 114 of the Rules of Procedure of the CFI was applicable at the time, mutatis mutandis , to the CST under Article 3(4) of Council Decision 2004/752/EC, Euratom, of 2 November 2004 establishing the European Union Civil Service Tribunal.

(11) – In the present case, the law is to be found in the EC Treaty and the Statute of the Court of Justice.

(12) – See, to that effect, Case C‑308/07 P Gorostiaga Atxalandabaso v Parliament [2009] ECR I‑0000, paragraph 42.

(13) – Provided that such an appeal is expressly permitted under procedural law.

(14) – See, to that effect, Case C‑12/08 Mono Car Styling [2009] ECR I‑0000, paragraph 47 and the case‑law cited.

(15) – OJ 2000 C 364, p. 1.

(16) – See, to that effect, Gorostiaga Atxalandabaso v Parliament , cited at footnote 12, paragraph 41 and the case‑law cited.

(17) – Clearly, that conclusion also applies to the paragraph of the operative part relating to costs.