Avis juridique important

61998J0155

European Court reports 1999 Page I-04069

Summary

1 Under Article 111 of the Rules of Procedure of the Court of First Instance, where an action is manifestly inadmissible or manifestly lacking any foundation in law, the Court may, by reasoned order, give a decision on the action without taking further steps in the proceedings. Where the arguments put forward by the applicant are manifestly inconsistent with established case-law, the Court may properly conclude that the action is manifestly unfounded within the meaning of Article 111 of its Rules of Procedure.

2 As regards the appointment of an official in a particular grade, the appointing authority enjoys a broad discretion, particularly for the purpose of assessing the professional or practical experience of a person recruited as an official. That being so, the fact that a person has a certain level of professional or practical experience does not entail a right to be appointed to a higher grade in any given career bracket.

3 The option available to the administration of appointing a newly-recruited official to a grade higher than the starting grade in a basic or intermediate career bracket must be construed as an exception to the general rules governing classification, given the appointing authority's obligation to reconcile use of its power under Article 31(2) with the requirements arising from the concept of a career bracket for the purposes of Article 5 of the Staff Regulations and Annex I thereto.

Parties

In Case C-155/98 P,

Spyridoula Celia Alexopoulou, an official of the Commission of the European Communities, residing in Brussels (Belgium), represented by Olivier Slusny, of the Brussels Bar, with an address for service in Luxembourg at the Chambers of Louis Schiltz, 2 Rue du Fort Rheinsheim,

appellant,

APPEAL against the order of the Court of First Instance of the European Communities (First Chamber) of 13 February 1998 in Case T-195/96 Alexopoulou v Commission [1998] ECR-SC I-A-51 and II-117, seeking to have that order set aside, the other party to the proceedings being: Commission of the European Communities, represented by Gianluigi Valsesia, Principal Legal Adviser, and Julian Currall, Legal Adviser, acting as Agents, with an address for service in Luxembourg at the office of Carlos Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg, defendant at first instance,

(Fifth Chamber),

composed of: J.-P. Puissochet, President of the Chamber, J.C. Moitinho de Almeida, C. Gulmann, L. Sevón (Rapporteur) and M. Wathelet, Judges,

Advocate General: P. Léger,

Registrar: H. von Holstein, Deputy Registrar,

having regard to the Report for the Hearing,

after hearing oral argument from the parties at the hearing on 21 January 1999,

after hearing the Opinion of the Advocate General at the sitting on 25 March 1999,

gives the following

1 This request for a preliminary ruling concerns the interpretation of Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (OJ 2012 L 26, p. 1), as amended by Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 (OJ 2014 L 124, p. 1) (‘Directive 2011/92’).

2 The request has been made in proceedings between, on the one hand, Waltham Abbey Residents Association and, on the other hand, An Bord Pleanála (Planning Board, Ireland; ‘the Board’), Ireland and the Attorney General (Ireland), concerning authorisation granted by the Board for a strategic residential housing development.

Legal context

European Union law

Directive 2011/92

Recitals 7 to 9 of Directive 2011/92 state:

‘(7) Development consent for public and private projects which are likely to have significant effects on the environment should be granted only after an assessment of the likely significant environmental effects of those projects has been carried out. …

(8) Projects belonging to certain types have significant effects on the environment and those projects should, as a rule, be subject to a systematic assessment.

(9) Projects of other types may not have significant effects on the environment in every case and those projects should be assessed where the Member States consider that they are likely to have significant effects on the environment.’

Article 2(1) of that directive provides:

‘Member States shall adopt all measures necessary to ensure that, before development consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects on the environment. Those projects are defined in Article 4.’

Under Article 3(1) of that directive:

‘The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual case, the direct and indirect significant effects of a project on the following factors:

…

(b) biodiversity, with particular attention to species and habitats protected under [Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7), as amended by Council Directive 2013/17/EU of 13 May 2013 (OJ 2013 L 158, p. 193) (“Directive 92/43”)] and Directive 2009/147/EC [of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ 2010 L 20, p. 7)];

…’

Article 4 of Directive 2011/92 provides:

‘1. Subject to Article 2(4), projects listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10.

2. Subject to Article 2(4), for projects listed in Annex II, Member States shall determine whether the project shall be made subject to an assessment in accordance with Articles 5 to 10. Member States shall make that determination through:

(a) a case-by-case examination;

(b) thresholds or criteria set by the Member State.

Member States may decide to apply both procedures referred to in points (a) and (b).

Where a case-by-case examination is carried out or thresholds or criteria are set for the purpose of paragraph 2, the relevant selection criteria set out in Annex III shall be taken into account. Member States may set thresholds or criteria to determine when projects need not undergo either the determination under paragraphs 4 and 5 or an environmental impact assessment, and/or thresholds or criteria to determine when projects shall in any case be made subject to an environmental impact assessment without undergoing a determination set out under paragraphs 4 and 5.

Where Member States decide to require a determination for projects listed in Annex II, the developer shall provide information on the characteristics of the project and its likely significant effects on the environment. The detailed list of information to be provided is specified in Annex IIA. The developer shall take into account, where relevant, the available results of other relevant assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The developer may also provide a description of any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

The competent authority shall make its determination, on the basis of the information provided by the developer in accordance with paragraph 4 taking into account, where relevant, the results of preliminary verifications or assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The determination shall made available to the public and:

(a) where it is decided that an environmental impact assessment is required, state the main reasons for requiring such assessment with reference to the relevant criteria listed in Annex III; or

(b) where it is decided that an environmental impact assessment is not required, state the main reasons for not requiring such assessment with reference to the relevant criteria listed in Annex III, and, where proposed by the developer, state any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

Member States shall ensure that the competent authority makes its determination as soon as possible and within a period of time not exceeding 90 days from the date on which the developer has submitted all the information required pursuant to paragraph 4. In exceptional cases, for instance relating to the nature, complexity, location or size of the project, the competent authority may extend that deadline to make its determination; in that event, the competent authority shall inform the developer in writing of the reasons justifying the extension and of the date when its determination is expected.’

Annex II.A of that directive contains the list of ‘information to be provided by the developer on the projects listed in Annex II’. That list reads as follows:

‘1. A description of the project, including in particular:

(a) a description of the physical characteristics of the whole project and, where relevant, of demolition works;

(b) a description of the location of the project, with particular regard to the environmental sensitivity of geographical areas likely to be affected.

2. A description of the aspects of the environment likely to be significantly affected by the project.

3. A description of any likely significant effects, to the extent of the information available on such effects, of the project on the environment resulting from:

(a) the expected residues and emissions and the production of waste, where relevant;

(b) the use of natural resources, in particular soil, land, water and biodiversity.

4. The criteria of Annex III shall be taken into account, where relevant, when compiling the information in accordance with points 1 to 3.’

Annex III to that directive sets out the ‘criteria to determine whether the projects listed in Annex II should be subject to an environmental impact assessment’.

Directive 2014/52

Recitals 11 and 29 of Directive 2014/52 state:

‘(11) The measures taken to avoid, prevent, reduce and, if possible, offset significant adverse effects on the environment, in particular on species and habitats protected under [Directive 92/43] and Directive 2009/147 …, should contribute to avoiding any deterioration in the quality of the environment and any net loss of biodiversity, in accordance with the [European] Union’s commitments in the context of the [United Nations Convention on Biological Diversity, signed in Rio de Janeiro on 5 June 1992,] and the objectives and actions of the Union Biodiversity Strategy up to 2020 laid down in the [Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions] of 3 May 2011 entitled ‘Our life insurance, our natural capital: an EU biodiversity strategy to 2020’ [(COM(2011) 244 final)]

…

(29) When determining whether significant effects on the environment are likely to be caused by a project, the competent authorities should identify the most relevant criteria to be considered and should take into account information that could be available following other assessments required by Union legislation in order to apply the screening procedure effectively and transparently. In this regard, it is appropriate to specify the content of the screening determination, in particular where no environmental impact assessment is required. Moreover, taking into account unsolicited comments that might have been received from other sources, such as members of the public or public authorities, even though no formal consultation is required at the screening stage, constitutes good administrative practice.’

Directive 92/43

Article 6(3) of Directive 92/43 provides:

‘Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.’

Article 12(1) of that directive provides:

‘Member States shall take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV(a) in their natural range, prohibiting:

(a) all forms of deliberate capture or killing of specimens of these species in the wild;

(b) deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration;

(c) deliberate destruction or taking of eggs from the wild;

(d) deterioration or destruction of breeding sites or resting places.’

Point (a) of Annex IV to that directive mentions ‘all species’ of bats belonging to the suborder of ‘microchiroptera’.

Irish law

must be interpreted as meaning that where, in the context of a screening procedure carried out under that provision, a third party has provided the competent authority with objective evidence as regards the potential significant effects of that project on the environment, in particular on a species protected under Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, as amended by Council Directive 2013/17/EU of 13 May 2013, that authority must ask the developer to provide it with additional information and take that information into account before deciding whether or not an environmental impact assessment is necessary for that project. However, where, despite the observations submitted to that authority by a third party, the competent authority is able to rule out, on the basis of objective evidence, the possibility that the project in question is likely to have significant effects on the environment, that authority may decide that an environmental impact assessment is not necessary, without being required to ask the developer to provide it with additional information.

Gratsias

Passer

Smulders

Delivered in open court in Luxembourg on 6 March 2025.

Registrar

President of the Chamber

ECLI:EU:C:2025:140

33 The reason for that exceptional nature is the competent authority's obligation to reconcile the use of its power under Article 31(2) with the observance of the requirements arising from the concept of a career bracket within the meaning of Article 5 of, and Annex I to, the Staff Regulations (De Santis, paragraph 9; and Alexopoulou I, paragraph 20).

34 As to the supposed condition relating to the exceptional nature of the candidate, it is deduced, by the appellant, from an incomplete reading of paragraph 37 of the contested order, in which the Court of First Instance notes in limine that the purpose of Article 31(2) of the Staff Regulations is, in particular, to enable the institution concerned, in its capacity as employer, to acquire the services of a person who is likely, in the context of the labour market, to be made numerous offers by other potential employers and thus to elude it.

35 Such a suggestion, which describes only one of the purposes of Article 31(2) of the Staff Regulations, does not add any additional condition to the application of that provision.

36 It follows that, by stating, in paragraph 37 of the contested order, that the Commission had the option to resort to Article 31(2) of the Staff Regulations, in exceptional cases and for an exceptional candidate, after first recalling that the purpose of that provision was, in particular, to enable the institution concerned in its capacity as employer to acquire the services of a person who is likely, in the context of the labour market, to be made numerous offers by other potential employers and thus to elude it, the Court of First Instance applied Article 31(2) of the Staff Regulations correctly.

37 The second ground of the appeal must therefore also be dismissed.

The third ground of appeal

38 By her third ground of appeal, the appellant complains that the Court of First Instance infringed its obligation to exercise its powers of judicial review over the appointing authority and did not check whether that authority had based its decision on incorrect or incomplete findings of fact, by not making any finding that DG IX, which was empowered to adopt a decision on classification, had consulted DG V, that is the Directorate-General to which the appellant was assigned.

39 The Commission challenges the admissibility of that plea in law, on the ground that it is put forward for the first time before the Court of Justice. It points out that the appellant fails to state how the error resulting from the failure to consult its recruiting service could have influenced the decision which she has challenged.

40 In that regard, it is clear from the case-file transmitted by the Court of First Instance that the appellant did not raise that objection, either in the application or in the reply lodged with the Court of First Instance, in support of her plea based on manifest error of assessment on the part of the appointing authority.

41 To allow a party to put forward for the first time before the Court of Justice a plea in law which it has not raised before the Court of First Instance would be to allow it to bring before the Court of Justice, whose jurisdiction in appeals is limited, a case of wider ambit than that which came before the Court of First Instance.

42 It follows that this ground of appeal is inadmissible.

The fourth ground of appeal

43 By her fourth ground of appeal, the appellant complains that the Court of First Instance infringed the principle of the protection of legitimate expectations (first part) and Article 48 of the Rules of Procedure of the Court of First Instance (second and third parts).

44 By the first part of this ground of appeal, the appellant complains that the Court of First Instance infringed the principle of the protection of legitimate expectations by asking her to submit to it her observations on a text which it had sent to her without however taking account of those observations.

45 It should be noted in that regard that, by letter of 11 November 1997, the Registrar of the Court of First Instance sent the appellant a copy of the judgment in Barnett, inviting her to submit her observations `on the steps to be taken in the proceedings in the light of that judgment'.

46 It is clear from the wording of that letter that the appellant was thus invited to make observations not on the content of the judgment which had been sent to her, but on the approach she proposed to adopt with respect to the further course of the proceedings that she had herself initiated before the Court of First Instance.

47 It follows that that act of the Registrar of the Court of First Instance can in no way have harmed the appellant's legitimate expectation as to the possibility of submitting observations which were not provided for in the Rules of Procedure.

48 The second part of the ground of appeal is based on infringement of Article 48(1) and (2), first and second subparagraphs, of the Rules of Procedure of the Court of First Instance. The appellant submits that, by failing to take cognisance of her observations containing new pleas in law based on matters of fact and of law which came to light in the course of the procedure (namely the Barnett judgment), the Court of First Instance wrongly omitted to apply those provisions.

49 The Commission states that a judgment cannot be considered as a new fact and that it cannot justify the application of the derogating rule allowing new pleas in law to be introduced in the course of proceedings.

50 Article 48(1) and (2), first and second subparagraphs, of the Rules of Procedure of the Court of First Instance provides:

2. No new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure. If in the course of the procedure one of the parties puts forward a new plea in law which is so based, the President may, even after the expiry of the normal procedural time-limits, acting on a report of the Judge-Rapporteur and after hearing the Advocate-General, allow the other party time to answer on that plea.'

51 In that regard, it should be noted that the observations lodged by the appellant on Barnett have never been described by her as a new plea in law within the meaning of Article 48(2) of the Rules of Procedure of the Court of First Instance and she has never relied on that provision to justify lodging observations not provided for in the Rules of Procedure. On the other hand, the `preliminary observations' of the document lodged begin as follows: `Ms Barnett did not put forward the same pleas in law as Ms Alexopoulou ... Ms Alexopoulou's observations will therefore consist only of comparisons on the facts'. The beginning of the `conclusions' of those observations is worded as follows: `The comparative analysis carried out above shows sufficiently that the appellant in fact fulfils the criteria of the Alexopoulou I judgment of 5 October 1995 ... which the Commission itself recognises as being "the most likely to apply" ... but she also satisfies the other conditions in the Commission's proposal to Trade-Union Organisations about the consequences of Alexopoulou I ... as "sets of criteria", and cumulatively'.

52 It follows from even a superficial analysis of those observations that they do not contain any new plea in law within the meaning of Article 48(2) of the Rules of Procedure of the Court of First Instance, but merely seek to prove a certain number of circumstances of fact, as a supplement to the pleadings already lodged.

53 It follows that the Registrar was correct in considering those observations as a document not provided for by the Rules of Procedure and stating that the Court of First Instance would not take account of it.

54 The third part of the ground of appeal is based on infringement of the third subparagraph of Article 48(2) of the Rules of Procedure of the Court of First Instance.

55 The appellant submits that, in the contested order, the Court of First Instance failed to give a ruling under the third subparagraph of Article 48(2) of its Rules of Procedure, according to which `[C]onsideration of the admissibility of the plea shall be reserved for the final judgment.'

56 In that regard, since, as was explained in connection with the second part of this ground of appeal, the observations lodged by the appellant did not amount to a plea in law within the meaning of Article 48(2) of the Rules of Procedure of the Court of First Instance, but an offer of evidence based on circumstances of fact, the Court was right not to take account of them and not to rule on that point in the contested order.

57 Since none of the parts of the fourth ground of appeal is well founded, it follows that it must be dismissed.

58 Accordingly, the appeal must be dismissed in its entirety.

Decision on costs

59 Under Article 69(2) of the Rules of Procedure, which is applicable to appeal proceedings pursuant to Article 118 thereof, 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 those Rules, in proceedings between the Communities and their servants, institutions are to bear their own costs. However, by virtue of the second paragraph of Article 122 of the Rules of Procedure, Article 70 does not apply to appeals brought by officials or other servants of an institution against the latter. Since the appellant has been unsuccessful in her appeal, she must be ordered to pay the costs.

On those grounds,

hereby:

2. Orders Spyridoula Celia Alexopoulou to pay the costs.