Important legal notice

61998C0459

European Court reports 2001 Page I-00135

Opinion of the Advocate-General

1 This appeal relates to one of the series of Community staff actions brought in response to the judgment of the Court of First Instance of 5 October 1995 in the case of Alexopoulou v Commission. (1)

Mrs Martínez del Peral Cagigal (otherwise referred to as `the appellant' or `the applicant'), an official of the Commission, is asking the Court to set aside the order of the Court of First Instance of 14 October 1998 (2) in so far as it declared inadmissible the action she had brought against the Commission's decision rejecting her request for reconsideration of her classification in grade.

I - Legal background and facts (3)

2 Article 31 of the Staff Regulations of Officials of the European Communities (`the Staff Regulations') governs the classification of staff on recruitment.

Article 31(1) provides that the candidates selected by the institutions are to be appointed to the starting grade of their category or service. Article 31(2) allows the appointing authority to make exceptions to that provision for up to a certain proportion of the posts to be filled.

3 Articles 90 and 91 of the Staff Regulations concern the remedies available to staff.

Article 90(1) provides that `[a]ny person to whom these Staff Regulations apply may submit to the appointing authority a request that it take a decision relating to him'.

Article 90(2) states that `[a]ny person to whom these Staff Regulations apply may submit to the appointing authority a complaint against an act adversely affecting him, either where the said authority has taken a decision or where it has failed to adopt a measure prescribed by the Staff Regulations. The complaint must be lodged within three months'.

Finally, Article 91(2) provides that `[a]n appeal [to the Court of First Instance] ... shall lie only if the appointing authority has previously had a complaint submitted to it pursuant to Article 90(2) within the period prescribed therein ...'.

4 On 1 September 1983, the Commission adopted a decision on the criteria applicable to grading and classification in step on recruitment (`the decision of 1 September 1983'). According to Article 2, first subparagraph, of that decision:

`The appointing authority shall appoint the probationary official to the starting grade of the career bracket to which he has been recruited.'

5 In the judgment in Alexopoulou v Commission, the Court of First Instance held that that decision was incompatible with Article 31(2) of the Staff Regulations in so far as it did not allow the appointing authority to appoint an official to a grade higher than the starting grade. (4)

6 With a view to complying with the judgment in Alexopoulou v Commission, the Commission amended its decision of 1 September 1983 by a second decision adopted on 7 February 1996 (`the decision of 7 February 1996') and published in Administrative Notices of 27 March 1996. Article 2 of the original decision now reads as follows:

`The appointing authority shall appoint a probationary official in the starting grade of the career bracket to which he is recruited.

By way of exception to this principle, the appointing authority may decide to appoint a probationary official to the higher grade of the career bracket where the specific needs of the service require the recruitment of a person with particular qualifications or where the person recruited has exceptional qualifications.

This provision will have effect from 5 October 1995 (date of the Court judgment)'.

II - Facts and procedure

7 It follows from the contested order (5) that the applicant was appointed on 9 November 1993 as a probationary official at the Commission and classified in grade A 7, step 1. By decision of 26 November 1993, the appointing authority established her classification as grade A 7, step 3.

8 On 21 June 1996, i.e. shortly after publication of the decision of 7 February 1996, the applicant submitted a request pursuant to Article 90(1) of the Staff Regulations for reconsideration of her classification in grade with effect from the date on which she took up her post.

9 On 24 October 1996, the Commission rejected that request on the ground that it had been submitted more than three months after the decision on initial classification taken in respect of the applicant.

10 On 23 January 1997, Mrs Martínez del Peral Cagigal lodged a complaint under Article 90(2) of the Staff Regulations; her complaint was rejected by the Commission by decision of 29 April 1997.

11 The applicant brought her action before the Court of First Instance on 29 July 1997. She claimed that the Court should annul the Commission's decision of 24 October 1996 rejecting her request for reconsideration of her classification in grade. In support of her action, the applicant put forward five pleas in law, alleging respectively failure to have regard to the case-law relating to the existence of new facts, infringement of Article 176 of the EC Treaty (now Article 233 EC), breach of the principle of equal treatment, breach of the principle of care and failure to state the reasons on which the contested decision was based.

12 By a document lodged on 24 October 1997, the Commission raised an objection of inadmissibility pursuant to Article 114(1) of the Rules of Procedure of the Court of First Instance.

The Commission claimed that the action was inadmissible on the ground that the applicant had failed to submit within the three-month period prescribed in Article 90(2) of the Staff Regulations a complaint against the act adversely affecting her, namely the appointing authority's decision of 26 November 1993 determining her definitive classification. It further claimed that neither the judgment in Alexopoulou v Commission nor the decision of 7 February 1996 constituted a material new fact which would permit the re-opening of the period for submitting a complaint.

13 On 14 November 1997, the Court of First Instance invited the parties to the proceedings, and also the parties to a number of other `reclassification' cases, (7) to take part in an informal meeting with the Judge-Rapporteur. Following that meeting, most of the applicants designated Gevaert v Commission (8) as a test case. However, the applicant stated that she did not wish to take part in that agreement and that she intended to pursue her own action.

III - The contested order

14 Before the Court of First Instance, the applicant made clear that her request for reclassification was not intended to call into question the appointing authority's decision on her initial classification. On the contrary, it was designed to secure the assessment of her qualifications, following the decision of 7 February 1996, with a view to a review of her classification in grade. (9)

On the basis of the judgments in Blomefield v Commission (10) and Williams v Court of Auditors, (11) the applicant also maintained that the decision of 7 February 1996 constituted a material new fact which would permit the re-opening of the periods laid down by Articles 90 and 91 of the Staff Regulations for submitting a complaint and bringing an action. She stated that in Valentini v Commission (12) and Mogensen v Commission (13) the Court of Justice had described the Commission's decisions of 6 June 1973 and 1 September 1983 on staff classification criteria as `substantial new facts'. In those circumstances, the applicant was unable to understand why the decision of 7 February 1996 could not constitute a new fact. (14)

15 In the contested order, the Court of First Instance found as follows:

`26 It is common ground that the applicant failed, within the three-month period provided for by Article 90(2) of the Staff Regulations, to lodge a complaint against the appointing authority's decision of 26 November 1993 determining her classification. Consequently, the applicant's classification in grade became definitive with effect from the expiry of the time-limit for lodging a complaint against that decision.

27 The Court reiterates that, as the Community judicature has already held, an official cannot be permitted to challenge the conditions of his initial recruitment once that recruitment has become definitive ... Only the existence of material new facts can justify the submission of a request for reconsideration of a decision which has not been contested within the periods laid down by Articles 90 and 91 of the Staff Regulations ...

28 The specific purpose of the applicant's request of 21 June 1996 was to challenge the conditions of her initial recruitment, in particular her classification, since it seeks to secure a reconsideration of her classification in grade on the date on which she took up her post.

29 It is therefore necessary to examine whether the decision of 7 February 1996 can constitute a material new fact which would allow a request for reclassification to be submitted after expiry of the time-limit for lodging a complaint.

30 The Court considers that, by its very nature and legal scope, the decision of 7 February 1996 cannot constitute a new fact. It is neither the purpose nor the effect of this decision to challenge administrative decisions which had become definitive before it entered into force ...

31 The principle established in Williams v Court of Auditors cannot be applied in this case. On that point, it is sufficient to observe that, unlike the provision examined in that case, Article 31(2) of the Staff Regulations does not contain a rule intended to apply to all staff ...

32 Article 31(2) of the Staff Regulations, which confers a discretion on the appointing authority to appoint a newly recruited official, by way of exception, to the higher grade in his career bracket, is an exception to the general rules on classification ... The decision of 7 February 1996 merely expresses a reservation which is consistent with that provision. Thus it may be distinguished from the general decisions of 6 June 1973 and 1 September 1983 ... which established internal directives applicable to all officials ... Accordingly, the case-law established in the judgments in Blomefield v Commission and Valentini v Commission and in the order in Mogensen v Commission is not capable of being applied to the present case.

35 As regards the applicant's argument that the Commission had failed to comply with its obligations under its duty of care with regard to its officials, it is sufficient to point out that this duty cannot lead the administration to construe a provision of Community law in a manner contrary to its actual wording ... In the present case, Article 31(2) of the Staff Regulations must be interpreted as meaning that it applies only exceptionally at the time of recruitment of an official. Consequently, the Court considers that the Commission did not fail to fulfil its obligations by refusing to reconsider the applicant's classification in grade ...'.

16 The Court of First Instance also rejected the applicant's argument alleging infringement of the principle of equal treatment. (17)

17 It therefore declared the action inadmissible.

IV - The appeal

18 By this appeal, Mrs Martínez del Peral Cagigal is asking the Court to set aside the contested order and to adjudicate on the substance of the case. She is requesting the Court to annul the Commission's decision of 24 October 1996 rejecting her request for reconsideration of her classification in grade and to find that she is entitled to a review of her classification with effect from 5 October 1995. The appellant further claims that the Court should order the Commission to pay the costs of both sets of proceedings.

19 The Commission contends that the Court should dismiss the appeal and order the applicant to pay the costs of these proceedings.

20 In support of her appeal the applicant puts forward five pleas in law:

failure to follow the case-law relating to the existence of new facts;

infringement of Article 176 of the EC Treaty;

infringement of the principle of equal treatment enshrined in Article 5(3) of the Staff Regulations;

breach of the principle of care;

failure to state the grounds of the contested order.

Preliminary observations

21 It should be observed at the outset that the application lodged by Mrs Martínez del Peral Cagigal is somewhat confused as regards the classification of the arguments put forward in support of the appeal.

22 Thus, in the pleas alleging failure to follow the case-law relating to the existence of new facts (18) and infringement of Article 176 of the EC Treaty, (19) the appellant develops a number of arguments which in reality criticise the grounds of the contested order. Conversely, in the plea alleging failure to state the grounds, (20) the appellant sets out certain considerations which may be analysed as supplementing her plea alleging infringement of the principle of equal treatment.

In those circumstances, I propose that the Court should reclassify the arguments put forward by the appellant without prejudice to the rules on the admissibility of appeals and the pleas in law therein.

More specifically, I consider that the applicant puts forward four pleas in law in support of the present appeal:

failure to follow the case-law relating to the existence of material new facts; (21)

infringement of the principle of equal treatment enshrined in Article 5(3) of the Staff Regulations; (22)

breach of the principle of care; (23)

failure to state the grounds of the contested order.

In addition, the last plea can to my mind be broken down into three separate parts, alleging respectively failure to state reasons, (24) insufficient reasons (25) and contradictory reasons. (26)

23 I shall now examine the various pleas in turn in the order in which I have presented them.

First plea, alleging failure to follow the case-law relating to the existence of material new facts

24 The appellant maintains that the Court of First Instance erred in law when it held that the decision of 7 February 1996 did not constitute a material new fact which would allow the re-opening of the periods for lodging a complaint and bringing an action laid down by Articles 90 and 91 of the Staff Regulations.

She states that in Blomefield v Commission, Valentini v Commission and Mogensen v Commission (27) the Court of Justice held that the Commission's decisions of 6 June 1973 and 1 September 1983 on staff classification criteria constituted material new facts of such a nature. Consequently, she is unable to understand why the Court of First Instance refused to classify the decision of 7 February 1996 as a new fact.

25 It must be borne in mind that, under Article 51 of the EC Statute of the Court of Justice, an appeal is to be limited to points of law. Furthermore, Article 112(1)(c) of the Rules of Procedure of the Court of Justice states that an appeal is to contain the pleas in law and legal arguments which support the form of order which the appellant is asking the Court to make. According to settled case-law, the Court of Justice takes the view that:

`It follows from those provisions that an appeal must indicate precisely the contested elements of judgment which the appellant seeks to have set aside and the legal arguments specifically advanced in support of the appeal'. (28)

Thus, the Court of Justice has consistently declared inadmissible `... an appeal [or plea] which simply repeats or reproduces verbatim the pleas in law and arguments already submitted to the Court of First Instance, including those based on factual allegations expressly dismissed by that Court'. (29) The Court of Justice considers that `... in reality, such an appeal amounts to no more than a request for a re-examination of the application submitted to the Court of First Instance which, under Article 49 of the EC Statute of the Court of Justice, falls outside the jurisdiction [of the Court of Justice] ...'. (30)

More specifically, the Court of Justice rejects as manifestly inadmissible appeals by which `the appellant ... merely repeats his criticism of the arguments which were submitted by the Commission to the Court of First Instance and were held to be irrelevant'. (31)

26 In the present case, the applicant is indeed merely reiterating the arguments which she put forward before the Court of First Instance, without specifying the elements of law which specifically support her request for the setting aside of the order.

In her appeal, she stated:

`The applicant confirms here the point of view which she put forward both in her application to the Court of First Instance and in her observations on the objection of inadmissibility raised by the Commission: the appointing authority committed a manifest error of assessment in not concluding that a new period for the lodging of complaints had been opened, after a new fact had come to light'. (32)

Furthermore, examination of the pleadings confirms that, in support of the view that `the decision of 7 February 1996 has been misconstrued', (33) the applicant in effect merely reproduced the arguments she had put forward at first instance. (34)

Consequently, I propose that the Court should reject the first plea in the appeal as manifestly inadmissible.

Second plea, alleging infringement of the principle of equal treatment enshrined in Article 5(3) of the Staff Regulations

By her second plea, the appellant claims that the Court of First Instance infringed the principle of equal treatment enshrined in Article 5(3) of the Staff Regulations.

In the three pages of the appeal devoted to this plea, the applicant merely copied verbatim the arguments which she had put forward before the Court of First Instance, (35) without specifying the elements of law which specifically supported her application for annulment.

For the reasons stated in point 25 of the present Opinion, I therefore propose that the Court reject this second plea as manifestly inadmissible.

Third plea, alleging breach of the principle of care

In her third plea, the applicant claims that the Court of First Instance misunderstood the precise scope of the principle of care. (36)

In point 35 of the contested order, the Court of First Instance held that, in refusing to review the applicant's classification in grade, the Commission had not failed to fulfil its obligations under its duty of care with regard to its officials. In support of its finding, the Court of First Instance stated that this duty `[could] not lead the administration to construe a provision of Community law in a manner contrary to its actual wording ...'. (37)

The appellant is of the opinion that to give officials the opportunity to submit a request for examination of their qualifications with a view to appointment in a higher grade would `not lead the administration to construe' Article 31(2) of the Staff Regulations `in a manner contrary to its actual wording'. On the contrary, in the judgment in Alexopoulou v Commission, the Court of First Instance held that, in order to comply with the `actual wording' of Article 31(2) of the Staff Regulations, the Commission was required in special circumstances, such as where a candidate had exceptional qualifications, specifically to assess the possible application of that provision. (38)

It must be borne in mind that, in connection with the first plea, the appellant did not adduce any evidence from which it might be concluded that the Court of First Instance had erred in law in considering that the decision of 7 February 1996 did not constitute a material new fact which would allow the re-opening of the time periods laid down in the Staff Regulations. As I now see it, I must conclude that there is no new fact permitting the applicant to contest the appointing authority's decision of 26 November 1993 on her initial classification.

As the Court of Justice pointed out recently:

`It is settled case-law that only the existence of material new facts may justify the submission of a request for review of a decision following the expiry of the time-limits prescribed by Articles 90 and 91 of the Staff Regulations'. (39)

Therefore, even on the assumption that the Court of First Instance did misunderstand the precise scope of the principle of care, to set aside the contested order on that point still could not justify the applicant's request for reclassification in grade. Since she has not adduced any evidence of an error in law relating to the only factor susceptible of allowing her to submit a request for a review of the definitive decision on her classification in grade following the expiry of the period prescribed by Article 90(2) of the Staff Regulations, it would not avail the appellant if the contested order were to be set aside on the point criticised in the present plea. In particular, the principle of care could not permit or require the administration to examine a request for reconsideration submitted following the expiry of the time-limits laid down in the Staff Regulations where no material new facts had come to light.

In those circumstances, I consider that the third plea of the appeal is inoperative. I therefore propose that the Court reject it as such. (40)

Fourth plea, based on a defective statement of grounds for the contested order

By her fourth plea, the appellant maintains that the contested order is vitiated by a number of defects in the grounds.

This last plea may be broken down into three parts.

In the first part, (41) the appellant alleges that the Court of First Instance did not adopt a position on her plea alleging infringement of Article 176 of the EC Treaty.

The applicant had maintained that the decision of 7 February 1996 was not sufficient to ensure proper compliance with the judgment in Alexopoulou v Commission. She submitted that, in order to comply fully with this judgment, the Commission should have started a new time period running for the filing of a complaint, so as to enable staff recruited between 1 September 1983 and 5 October 1995 to request the reconsideration of their classification in grade. The Court of First Instance simply failed to adjudicate on this plea.

By the second part, (42) the applicant seeks to `... emphasise the different reasoning in the contested order by comparison with the order made, on the basis of the same reasoning, in the Gevaert case (test case) ...', (43) and states that in Gevaert the Court of First Instance declared Mr Gevaert's action inadmissible after stating its reasons in greater detail than it did in the contested order. Consequently, the applicant ` ... considers that the Court of First Instance should have had to set out more clearly the reasons which led it to hold that the internal decision of 7 February 1996 did not constitute a new fact'. (44)

Finally, in the third part (45) of the plea, the applicant submits that the statement of grounds for the contested order is vitiated by a contradiction.

In paragraph 30 of the order, the Court of First Instance held that `the decision of 7 February 1996 ... could not constitute a new fact [on the ground that it] has neither the purpose nor the effect of calling in question administrative decisions which had become final before it entered into force'. Furthermore, the Court recognised that the decision of 7 February 1996 might apply to officials recruited on or after 5 October 1995. The applicant points out that, on the date on which the decision of 7 February 1996 was adopted, the decisions on classification in grade of officials recruited in October 1995 had themselves become definitive since more than three months separate the two dates.

The applicant thus claims that the Court of First Instance:

(a) denied officials recruited before 5 October 1995 the opportunity to challenge the decisions on their classification in grade on the ground that they had become definitive, but

(b) allowed officials recruited in October 1995 to challenge the decisions on their classification in grade even though those decisions had also become definitive.

I propose that the Court reject each of these parts.

For the reasons stated in points 31 and 32 of this Opinion, I believe that the first part of the plea is inoperative. In the absence of material new facts, Article 176 of the EC Treaty neither authorises nor requires the Commission to examine requests for reconsideration of classification in grade submitted following the expiry of the time-limit for lodging complaints laid down in Article 90(2) of the Staff Regulations. (46) Therefore, even on the assumption that the Court of First Instance did make an error of law by failing to adjudicate on the plea alleging infringement of Article 176 of the EC Treaty, to set aside the contested order on that point would still not mean that the appellant was entitled to submit a request for reclassification in grade.

As regards the second part, the appellant has failed to indicate what rule of law has been infringed in the present case. She has not identified the provisions of Community law which required the Court of First Instance to adjudicate on her action on the basis of reasoning that was identical or comparable to the reasoning in the order in Gevaert v Commission.

Finally, the third part contains a criticism which is clearly directed against the order of the Court of First Instance in Gevaert v Commission.

Contrary to the applicant's contention, the Court of First Instance, in the contested order, did not `... recognise that the Commission's decision of 7 February 1996 ... applies to officials recruited on or after 5 October 1995 ...'. (47) Nor did the Court of First Instance, in the contested order, `... accept that officials recruited in October 1995 were entitled to lodge a complaint ...'. (48) In reality, only in the grounds of the order in Gevaert v Commission is it stated `... the fact that 5 October 1995 (the date of the judgment in Alexopoulou v Commission) was taken as the date on which the decision of 7 February 1996 was to take effect means that it applies only to officials recruited on or after 5 October 1995'. (49)

Since it is directed against a decision on which the Court of Justice has not been called upon to adjudicate in the present appeal, the third part of the plea is manifestly devoid of purpose.

Costs

Under Articles 69(2) and 118 of the Rules of Procedure of the Court of Justice, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Under Article 70 of the Rules of Procedure, in staff appeals the institutions are to bear their own costs. However, under the second paragraph of Article 122 of the Rules of Procedure, Article 70 is not to apply to appeals brought by officials or any other servants of an institution against the institution. Since the appellant has been unsuccessful, she must be ordered to pay the costs in accordance with the form of order sought by the Commission.

Conclusion

In the light of the foregoing considerations, I therefore propose that the Court should:

(1) Dismiss the appeal;

(2) Order the appellant to pay the costs of these proceedings.

(1) - Case T-17/95 [1995] ECR-SC I-A-227 and II-683 (`the judgment in Alexopoulou v Commission').

(2) - Case T-224/97 Martínez del Peral Cagigal v Commission [1998] ECR-SC I-A-581 and II-1741 (`the contested order').

(3) - For a fuller account of the legal background and facts of the case, reference should be made to my Opinion of 28 March 2000 in Case C-389/98 P Gevaert v Commission [2000] ECR I-65, at p. I-67.

(4) - Paragraph 24.

(5) - Paragraphs 1 to 13.

(6) - Paragraphs 17 and 18 of the contested order.

(7) - See, in this respect, point 7 of my Opinion in Gevaert v Commission.

(8) - The Court of First Instance disposed of this case by means of an order of 19 August 1998 in Case T-160/97 [1998] ECR-SC I-A-465 and II-1363. The appeal lodged by Mr Gevaert is examined in my Opinion in that case.

(9) - Paragraph 19 of the contested order.

(10) - Judgment in Case 190/82 [1983] ECR 3981.

(11) - Judgment in Case 9/81 [1982] ECR 3301.

(12) - Judgment in Case 231/84 [1985] ECR 3027.

(13) - Order of 19 February 1987 in Case 101/86 [1987] ECR 825.

(14) - Paragraphs 20 to 22 of the contested order.

(15) - Paragraph 25 of the contested order.

(16) - Paragraphs 23 and 24 of the contested order.

(17) - Paragraphs 33 and 34 of the contested order.

(18) - See points 24 to 27 of the appeal.

(19) - See points 30 to 39 of the appeal.

(20) - See points 57 to 59 of the appeal.

(21) - Points 11 to 23 of the appeal.

(22) - Points 40 to 46 of the appeal.

(23) - Points 47 to 52 of the appeal.

(24) - Points 30 to 39 of the appeal.

(25) - Points 54 to 56 of the appeal.

(26) - Points 24 to 27 of the appeal.

(27) - Cited above.

(28) - Order of 26 April 1993 in Case C-244/92 P Kupka-Floridi v ESC [1993] ECR I-2041, paragraph 9, emphasis added. See also orders of 26 September 1994 in Case C-26/94 P X v Commission [1994] ECR I-4379, paragraph 12; and of 17 September 1996 in Case C-19/95 P San Marco v Commission [1996] ECR I-4435, paragraph 37.

(29) - Order in Kupka-Floridi v ESC, cited above, paragraph 10. See, in addition to the judgments and orders cited in the previous footnote, orders of 17 October 1995 in Case C-62/94 P Turner v Commission [1995] ECR I-3177, paragraph 17; of 24 April 1996 in Case C-87/95 P CNPAAP v Council [1996] ECR I-2003, paragraph 30; of 11 July 1996 in Case C-148/96 P(R) Goldstein v Commission [1996] ECR I-3883, paragraph 24; of 12 December 1996 in Case C-49/96 P Progoulis v Commission [1996] ECR I-6803, paragraph 25 and of 27 January 2000 in Case C-341/98 P Proderec v Commission (not published in the European Court Reports), paragraph 31.

(30) - Order in Proderec v Commission, cited above, paragraph 31.

(31) - Order of 14 March 1996 in Case C-31/95 P Del Plato v Commission [1996] ECR I-1443, paragraph 22.

(32) - Point 11 of the appeal.

(33) - Point 21 of the appeal.

(34) - There is indeed obvious correspondence between:

point 11 of the appeal and points 5 and 32 of the applicant's observations on the objection of inadmissibility in Case T-224/97;

point 13 of the appeal and point 40 of the application lodged by Mrs Martínez del Peral Cagigal in Case T-224/97;

point 14 of the appeal and point 41 of the application;

point 15 of the appeal and point 47 of the application;

point 16 of the appeal and points 5 and 39 of the observations on the objection of inadmissibility;

point 17 of the appeal and point 40 of the observations on the objection of inadmissibility;

point 18 of the appeal and point 41 of the observations on the objection of inadmissibility;

points 19 and 20 of the appeal and the argument developed by the Commission in points 27 and 28 of its objection of inadmissibility in Case T-224/97, and

points 22 and 23 of the appeal and points 67 to 69 and 72 of the observations on the objection of inadmissibility.

(35) - Examination of the relevant pleadings does indeed show perfect correspondence between:

point 40 of the appeal and points 59 and 62 (first sentence) of the application lodged by Mrs Martínez del Peral Cagigal in Case T-224/97;

point 41 of the appeal and point 60 of the application;

point 42 (first sentence) of the appeal and point 62 of the application;

point 43 of the appeal and point 69 of the application;

point 44 of the appeal and point 72 of the application (see also point 81 of the applicant's observations on the objection of inadmissibility in Case T-224/97), and

point 45 of the appeal and points 73 and 74 of the application (see also point 82 of the observations on the objection of inadmissibility).

(36) - A particular consequence of the administration's duty of care with regard to its officials is that when the official authority takes a decision concerning the situation of an official, it should take into consideration all the factors which may affect its decision and that when doing so it should take into account not only the interests of the service but also those of the official concerned (see, for example, the judgment in Case 321/85 Schwiering v Court of Auditors [1986] ECR 3199, paragraph 18).

(37) - Paragraph 35 of the contested order.

(38) - Paragraph 21.

(39) - Order of 18 November 1999 in Case C-431/98 P Progoulis v Commission [1999] ECR I-8319, paragraph 36, emphasis added.

(40) - See, for example, the judgment in Case C-35/92 P Parliament v Frederiksen [1993] ECR I-991, paragraph 31.

(41) - Points 30 to 39 of the appeal.

(42) - Points 54 to 56 of the appeal.

(43) - Point 54 of the appeal (the appellant is referring to the order of the Court of First Instance in Gevaert v Commission).

(44) - Point 56 of the appeal.

(45) - Points 24 to 27 of the appeal.

(46) - See also, to that effect, Case C-310/97 P Commission v AssiDomän Kraft Products and Others [1999] ECR I-5363.

(47) - Point 25 of the appeal.

(48) - Point 27 of the appeal.

(49) - Paragraph 40.