Appeal brought on 27 August 2004 by the Commission of the European Communities against the judgment delivered on 10 June 2004 by the Fifth Chamber of the Court of First Instance of the European Communities in Joined Cases T-153/01 and T-323/01 between Ms M. Alvarez Moreno and Commission of the European Communities

(Case C-373/04 P)

(2004/C 251/19)

An appeal against the judgment delivered on 27 August 2004 by the Fifth Chamber of the Court of First Instance of the European Communities in Joined Cases T/153/01 and T-323/01 between M. Alvarez Moreno and the Commission of the European Communities was brought before the Court of Justice of the European Communities on 27 August 2004 by the Commission of the European Communities, represented by F. Clotuche-Duvieusart and D. Martin, Agents.

The appellant claims that the Court should:

Pleas in law and main arguments:

The action brought by Ms Alvarez Moreno in Case T-323/01 should be declared inadmissible. The Court of First Instance erred in law in classifying the letter of 23 February 2001 as a ‘decision’ and, consequently, in conferring on it the status of an act adversely affecting the applicant. First, the applicant's letter to the Commission does not contain a request for a decision within the meaning of Article 90 of the Staff Regulations, but only a request for information concerning the legal basis on which the Commission relied when deciding that it would no longer recruit interpreters aged more than 65 years. Accordingly, the answer to that letter could not constitute an act adversely affecting the applicant within the meaning of that provision. Next, the letter of 23 February does not in any event contain any decision of the Commission producing binding legal effects, of such a kind as to affect the applicant's interests, by significantly altering her legal position.

As regards the substance, the Court of First Instance erred in law, first, by holding that Article 74 of the Conditions of Employment of Other Servants is not applicable to auxiliary staff recruited pursuant to the third paragraph of Article 78 of the Conditions of Employment and, second, by holding that the rules applicable to auxiliary session interpreters (hereinafter ‘the RIAS’), adopted by the Bureau of the European Parliament on 13 July 1999, cover the question of the end of the appointment. The third paragraph of Article 78 of the Conditions of Employment, under which the contracts of employment of conference interpreters as members of the auxiliary staff may be subject to a regime which derogates from the standard arrangements, deals exclusively with conditions of recruitment and remuneration and does not concern the end of the appointment, which is therefore governed by Article 74 of the Conditions of Employment, which lays down the age limit. It is incorrect to take the view, as the Court of First Instance did in the judgment under appeal, that in the case of contracts limited to specific days, the end of the appointment constitutes a condition of recruitment and thus to introduce a distinction not provided for in the Conditions of Employment between contracts of a few days' duration and those for longer periods. Furthermore, in accepting that it is the RIAS that must govern the question of the end of the appointment of conference interpreters who are members of the auxiliary staff, those rules contain no expression provision establishing an age limit. Where the RIAS are silent, it is the Conditions of Employment, and therefore Article 74 of those Conditions, that apply.