Report of the Judge-Rapporteur in Case C-354/92 P

I — Facts and procedure before the Court of First Instance

1. It is apparent from the judgment of the Court of First Instance of 10 July 1992 in Joined Cases T-59/91 and T-79/91 Eppe v Commission [1992] ECR II-2061 that:

2. The Commission rejected both complaints and Mr Eppe brought two actions, on 5 August 1991 and 7 November 1991, which were registered in the Court of First Instance as Cases T-59/91 and T-79/91 respectively. By order of the President of the Fifth Chamber the Court of First Instance of 15 May 1992, the cases were joined for the purposes of the oral procedure and judgment.

3. The applicant claimed that the Court of First Instance should:

4. In support of his application in Case T-59/91 the applicant had put forward seven pleas in law:

II — The contested judgment

5. The Court of First Instance dismissed the actions, in particular on the following grounds:

6. It should also be borne in mind that the Court of First Instance declared inadmissible under Article 48(2) of the Rules of Procedure the plea in law concerning the the injury suffered by him through non-application to him of the procedure laid down in the Commission decision of 19 July 1988 ... as being a new plea put forward at the stage of the reply in relation to the alleged infringement of Article 25 (paragraph 96 of the judgment).

7. The Court of First Instance gave judgment, for the above reasons and other reasons not relevant to this appeal, in the following terms:

III — Object of the appeal and forms of order sought

8. By application lodged at the Registry of the Court of Justice on 11 September 1992, Mr Eppc appealed against the abovementioncd judgment of the Court of First Instance on the ground that it was vitiated by a breach of procedure adversely affecting his interests and had been given in breach of Community law.

9. The Commission contends that the Court of Justice should:

10. In his reply, Mr Eppe set out his claims in detail in the following terms, to the effect that the Court should:

Summary of the pleas in law and arguments of the parties

In support of his appeal, the appellant claims that the contested judgment is vitiated by a breach of procedure which adversely affects his interests (A below). He also advances four pleas in law alleging that the contested judgment is incorrect in law (B below).

A — The breach of procedure

11. First, the Court of First Instance should have taken account of the arguments supporting the plea as to breach of the obligation to state the reasons on which a decision is based (Article 25 of the Staff Regulations) and breach of the principle of nondiscrimination, namely failure to observe the Commission decision of 19 July 1988 concerning the filling of intermediate executive posts and failure to observe Article 29(1) of the Staff Regulations. Even though counsel for the applicant made it clear at the hearing before the Court of First Instance that those arguments were not to be regarded as pleas in law, that did not mean that they should not be taken into account in support of the pleas put forward. Secondly, the appellant contests the reasoning of the Court of First Instance in paragraphs 113 to 115 of its judgment (in particular paragraph 114) regarding the comparative examination of the applicant's merits and those of the other candidates.

B — Errors of law

(1) Breach of the obligation to state reasons (Article 25 of the Staff Regulations)

12. The appellant states, first, that the reasons given for his transfer, based on the need for redeployment, as indicated by the memorandum from the Director general of DG VI of 25 June 1990, were incorrect. The legal basis of the measure adversely affecting him was to be found in the Commission decision of 19 July 1988. The Court of First Instance therefore erred in law by not examining the legality of the contested decision as regards observance of the procedure laid down by the decision of 19 July 1988.

(2) Breach of the principle of non-discrimination

13. The appellant refers to the Court of First Instance's conclusion that the procedure followed with regard to the applicant was not in any way vitiated (paragraph 80 of the judgment). However, he considers that he has demonstrated that the procedure provided for by the decision of 19 July 1988 was not observed.

(3) The illegality of the rejection of the appellant's candidature for his own post

14. The appellant observes that he should not be placed at a disadvantage as a result of his staff report for 1987 to 1989 not having been prepared until 22 January 1991. Moreover, the Advisory Committee on Appointments and the appointing authority took no account of his staff report for 1989 to 1991.

(4) Breach of the duty to have regard to the welfare of officials

15. The appellant considers that it is incorrect to say that the Commission observed its duty to have regard to the welfare of officials (paragraph 67 of the contested judgment). By deciding that the appellant should be compulsorily transferred, without the possibility of promotion being examined, the Commission reinforced the impression that his superiors were prompted to arrange for his transfer on disciplinary grounds. He expresses doubts as to whether the letters of 6 November 1990 and 15 October 1990 properly made clear that that was not the case and whether the Commission did in fact do everything in its power to protect the appellant's reputation and honour.

16. The appellant also stated in his reply that he therefore expressly maintains all the pleas in law and arguments contained in his original applications, observing in paragraph 30 of his notice of appeal that he contested the judgment in particular because it ... failed correctly to apply Community law — in this case the law governing the Community civil service — in his regard.

17. With regard to costs, the appellant states that account must be taken of the uncertainties as to the real reasons for and legal basis of his transfer. He also insists that, when he considered that his honour was at stake, the Commission did nothing to defend him but, on the contrary, allowed doubt to persist. He therefore regards the Commission's attitude as vexatious. The Commission's contention that he never pursued any aim other than that of securing promotion to Grade A 3 is particularly injurious.

1 Language of the case: French.