Report for the first workshop Julian CURRALL - Cour de justice

I. INTRODUCTION
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Julian CURRALL
Director/Principal Legal Adviser, European Commission (*)
Report for the first workshop
"Handling cases in the Civil Service Tribunal – procedural
particularities"
1. The Civil Service Tribunal (CST) is the first specialist Union jurisdiction. Its creation was attended by a series
of innovations 1 , not least the fact that the members are appointed not by the governments of the
Member States, but by the Council, after an opinion from a panel of experts. As we know, the latter technique,
which was innovative in 2005 2 , has now become the general rule for all Union courts - Article 255
TFEU. The CST itself was well aware of its "difference" 3 . Being a specialist jurisdiction, the CST could identify
its "user groups" and thus quickly took the initiative of having separate informal meetings with each
of these groups (institutions and their agents; staff organisations and their lawyers), to announce and discuss
its proposed working methods.
2. The procedural innovations are as significant as the changes the CST has made in the substantive caselaw,
with the slight difference that some at least of the procedural innovations were announced in advance,
in the proposal for its Rules of Procedure (RP) 4 and in the result 5 . Other procedural innovations are
in the case-law.
II. SCOPE FOR PROCEDURAL INNOVATION IN THE CST
3. The Council Decision setting up the CST identifies a number of concerns, in particular procedural economy
and equity 6 . Recital 7 underlines the parallel between procedural rules and the function of the CST,
which “(…) should try cases by a procedure matching the specific features of the disputes that are to be referred
to it, examining the possibilities for amicable settlement of disputes at all stages of the procedure.” There
thus can/should be differences between the CST procedure and the procedure in other Union courts, if
they are genuinely functional. However, they should not go beyond what is indispensable since it is selfevidently
undesirable that there should be differences between the procedural rules of the Union jurisdic-
(*) any opinions expressed are purely personal and may on no account be attributed to the European Commission or its
Legal Service. Several Legal Service colleagues have read this paper in draft and have made suggestions: I am grateful to
Messrs. Gérard Berscheid, Vincent Joris, Hannes Kraemer and Denis Martin. Responsibility for the final result is mine alone.

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tions on the same subject. This has nevertheless happened in some cases: see the example of the special CST
procedure on admissibility discussed below.
III. RULE-BASED PROCEDURAL DIFFERENCES
4. The first group of differences to consider is those set out in the relevant legislation (Council decision, RP) or
in administrative decisions of the CST (decisions on internal organisation, Practice Directions to the parties).
Four particular areas deserve comment.
A. Special procedure for inadmissibility
5. In the RP of the Court and the General Court, there is provision for a separate objection to admissibility, but
no distinction is made between an objection and a defence, concerning the time-limit. In the CST's RP, the
time-limit for the Defence is still two months 7 , but a separate objection to admissibility has to be presented
within one month 8 . There is no obvious justification for this rule in the special functions of the CST. The difference
appears rather to reflect the legislative history: the CST's proposal for the RP did not provide for a separate
objection at all. It seems that the CST may have believed that institutions were prone to abusing the possibility
9 . This was questioned in the Council and the special procedure was reinstated. However, no doubt as
a compromise, it was made subject to a shorter time-limit. While the sort of issue which really does justify a
separate procedural act can often be detected fairly quickly (lateness; absence of prior complaint), this is not
always so (absence of attackable act? confirmatory act?). However, the problem is not so much whether a
month may or may not be enough: it is the simple fact that the rule is not the same as the one in the other
two Courts. Since there is no obvious explanation linked to the CST's different function, the rule is little more
than a potential procedural trap 10 .
B. Simplified written procedure
6. This is another case of a legislative difference: the Council Decision itself provides that there is normally to be
only one exchange of written pleadings. This naturally sounds like a good idea and in many cases it actually
is, but possibly less often than one might think. It is difficult not to agree with those writers12 who have
pointed out that the result may be that the CST has to ask complex written questions of fact or law or both,
when the points missing from the case would probably have been dealt with in a second round of pleadings
had it been allowed. Likewise, the shortened written procedure may lead to more questions being asked at
the hearing, or to the questions being more general than they might have been. A second round of written
pleadings can often narrow down the dispute, allowing more targeted questions13 .
7. The single round of pleadings can also lead to cases taking an unexpected turn at the hearing. It may be necessary,
for example, to keep the oral procedure open, and allow one of the parties time to comment in writing
on matters raised at the hearing, which might however have been in the reply/rejoinder had there been
one. It may then be necessary to allow the other party to comment on those observations14 , so that in the
end, there is a second round of pleadings after all – but at the wrong time.
8. It might be better either (i) to maintain the rule of the single pleading, but with a much higher limit on the
number of pages, given that some cases are objectively complex 15 or (ii) for the CST to be more open to requests
for a second round – or indeed to proposing it. That does not prevent it from indicating the matters to
be covered and possibly imposing a limit on the number of pages for the second pleadings. Furthermore,
even if the number of pages is exceeded, whether in the first or second round, that should not normally be a
reason for asking for a shorter version. That not only delays the proceedings but may in fact complicate
them, if the result is that matters which later turn out to be important are not properly dealt with in writing.
On the contrary, even if there is a limit on the number of pages, it is better to treat it as indicative only. By all

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means penalise parties who unnecessarily complicate the case, but the sanction should be ex post, not a priori.
It should be done by an appropriate award of costs, for example by ordering even a successful party to
bear part of the costs if, in the light of the final result, it turns out that some of its arguments were unnecessary
or were developed at unreasonable length etc.. The limit on the number of pages on the other hand is a
very blunt instrument, which may also turn out to have been applied at the wrong time.
C. Settlements
9. This is again a legislative difference – the rules in the RP are much more detailed than those in the RP of the
General Court, which merely contain a passing reference to possible settlements in the provisions on measures
of organisation of procedure (MOP) 16 . Some authors have explained the difference as a reflection of the
special context of staff disputes (because the parties need to pursue their long-term employment relationship
after the proceedings, so anything which can promote an informal solution appears desirable), which
may imply that the content of a settlement can go beyond the disputed issues and may be to some extent
extra-legal 17 . Others have suggested that the difference is only apparent, and that these provisions are
merely intended to ensure greater visibility of this matter, given that it is expressly mentioned in the Council
Decision 18 .
10. This part of the RP contains one important new provision, in Article 70: "No opinion expressed, suggestion
made, proposal put forward, concession made or document drawn up for the purposes of the amicable settlement
may be relied on as evidence by the Tribunal or the parties in the contentious proceedings." What is new is the
fact that the rule is written down19 : it is of course the codification of a traditional practice, namely the concept
of "without prejudice" correspondence and negotiations. This provision nevertheless adds a welcome
element of transparency by laying down beyond all doubt a principle without which parties might have difficulty
in considering a discussion. The Commission's agents are not aware at present of any difficulties to
which this provision may have given rise.
11. Turning to the practical experience of settlements in the CFI, some writers have suggested the need for more
detailed provisions in the RP, for example concerning the status of the minutes of the informal meeting20 . On
that point, the experience of the Commission's agents is essentially positive. The administration is not normally
present at meetings, mainly because an administration normally needs time to consider any proposed
solution, given the number of people involved; instead, the agent may agree ad referendum on the day and
then a short time is allowed to the administration after the meeting to indicate agreement or disagreement.
In this situation, it is valuable both for the agent and the administration to have an official document from
the Tribunal, indicating what happened and what is proposed. This has more weight than a debriefing by
someone who was also a participant, which is always to some extent perceived as a personal account, however
objective it may actually be. The minutes thus help the administration to take its decision. Having official
minutes also simplifies the meeting, at least on the administration's side: the administration knows that it
will get the Tribunal's account of the meeting and the proposal (if any), so that it can readily leave the meeting
to the agent alone. Reducing the number of interlocutors normally simplifies the discussion.
12. There is a link between the minutes of the meeting and the next question, namely the perception which
some parties seem to have, that a judge who tries to promote a settlement is compromised if the attempt
fails and the case continues 21 . On the one hand, the risk of such a perception increases, the more the judge
says during the settlement about the respective strong and weak points in each party's case. On the other
hand, the more the judge says about that, the more likely the parties are to agree to a settlement. That goes
particularly for the administration, which is more likely to be impressed by a statement of the judge's views
about the institution's case and the risks it may be running, if that is clearly written down in an official Tribu-

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nal document – even if, as always, the view is expressed to be provisional, without prejudice to the views of
the other members of the chamber etc.. The reporting judge thus has to strike a difficult balance between
saying enough about the case to influence the parties, and saying so much about it that one or other will feel
that the judge has compromised him/herself. The balance is all the harder to find, given that some parties are
more suspicious than others and will thus interpret even the most guarded statement by the judge as prejudice
against their case.
13. Under the existing RP, the judge who finds his/her objectivity impugned can of course simply withdraw on
an ad hoc basis 22 or the case can be reassigned to another chamber, again ad hoc. However, in the CST, there
is a practical limit to this since the Tribunal is small: if a further settlement is attempted by the new formation
and fails, the same thing will happen again, and very soon one runs out of judges. There may therefore be
room for an explicit rule.
14. One possibility would be to provide for objections on this ground to be automatically disregarded. Such a
rule is not unfamiliar, since it already exists where a party attempts to object to a judge on grounds of nationality
23 . A variant would be to consider that the objection is presumed to be unfounded unless the party
shows good reason to think otherwise, for example in a submission to the President of the Tribunal for this
purpose. The other possibility is to do the opposite: in the event of such an objection, the case is automatically
transferred to another chamber of the Tribunal. One could then perhaps add a provision that no further
reassignment of the case is possible.
D. Costs 24
15. The legislative innovation here is to remove a difference between staff cases and others. The Council Decision
provides that the normal rule (i.e. the loser pays) is to apply unless the RP provide otherwise - and Articles 87
ff. RP do not, although they do contain an "equity clause" in Article 87(2), which seems to have been used to
some extent for transitional purposes. The wording of the "equity clause" is wide. It is not limited to the conduct
of the case by the party concerned25 , but refers to general considerations of fairness. According to the
CST, that can include: the fact that the matter in issue was of real importance to the official; the fact that even
if the case failed in the end, it was sufficiently serious to be put to the Tribunal, or even the fact that the institution's
costs were higher than usual, since it was represented by an outside lawyer not by its own staff26 . The
latter point seems so far only to have been mentioned on this one occasion, moreover only as one consideration
among several. On the other hand there are many more recent cases where the CST has had no hesitation
in ordering the unsuccessful applicant to pay the institution's costs when it has been assisted by outside
counsel27 .
16. The CST has made another innovation, in its practice on costs. Article 94(a) RP contains a rule which can also
be found in the other Union Courts' RP, that while the court procedure is free, a party who has caused the
court to incur costs may be ordered to pay them28 . The intention is clearly to punish litigation which is vexatious
per se, or vexatious conduct of an otherwise normal case, over and above what can be done under Articles
87(2) and 88. There is no limit in the Court of Justice or the GC, but in the CST, there is a maximum of
2000 euros. The CST is the first Union court to have applied this rule29 . There is thus still a penalty for vexatious
litigants, but adapted to the new context.
17. The CST's practice on costs is still developing. One may perhaps suggest some further innovations. Some
staff cases are objectively complex, others are "complexified" by one or both of the parties. For the latter
situation, consideration could be given to following the General Court's lead in penalising parties who use
arguments which turn out, once the case is decided, to have been pointless – particularly if they have also
generated numerous annexes etc. A party can thus be ordered to pay all or some of the costs deemed to be

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related to those matters. On the other hand, one would not wish to see the CST follow the General Court's
occasional practice of dividing the costs, not by ordering each to bear its own, but by ordering each to bear a
proportion of the other side's costs 30 . Of course, the problem of applicants who are liable to have huge costs
is less acute in the CST than in the General Court, since the CST has no heavy commercial cases (competition,
state aids). Nevertheless, certain collective staff actions may be very expensive 31 . The Microsoft division of
costs can have perverse effects where the institution is represented by its own agents, given the case-law 32
which limits recoverable costs in such a case to the cost of one agent's mission to attend the hearing, to the
exclusion of costs of employing the person. The institution's recoverable costs are thus likely to be about 250
euros – which bears little relation to the likely amount represented by 20% of Microsoft's costs for its team of
lawyers, to take just that example.
IV. PROCEDURAL DIFFERENCES RESULTING FROM JUDICIAL INTERPRETATION
18. The case-law occasionally suggests a certain evolution in the CST concerning the rules on evidence and the
burden of proof. The matter will be considered here in connection with two particular issues: (1) the status of
measures of organisation of procedure (MOP) and measures of inquiry (MI) in the CST – is there any appreciable
difference between the CST and the General Court? (2) the oft-repeated argument that the administration
should disclose its "administrative file" to the CST.
1. Measures of organisation of procedure and measures of inquiry
19. On the face of it, there is a difference between the RP and the RP of the General Court: Article 57 RP CST, on
MI, refers only to third parties, whereas Article 65 RP GC clearly also allows MI to be addressed to the parties
themselves.
20. It only became apparent during the proceedings in Meierhofer33 that the Commission and the CST disagreed
about the scope of these rules. The issue was whether the Commission should disclose certain material
which in its view was covered by the obligation of secrecy attaching to the work of a selection board under
Annex III to the Staff Regulations (SR). The CST had invited it to do so, by sending it an MOP. The Commission
considered that for it to be bound to disclose material covered by a statutory obligation of secrecy, it had to
receive an MI, so it said that it would produce the information, but only if it received such a measure. This
view was based on the assumption that there was no substantive difference between the RP and the RP GC
on this point. The distinction between MOP and MI therefore concerned the nature of the measure: an MOP
was consensual, but an MI was binding. The Commission had therefore assumed that the GC's case-law still
applied, according to which an MI (but not an MOP) required the party requesting it to provide at least some
indication that the matter to be investigated did exist34 . According to the Commission, Mr Meierhofer had
not satisfied this burden of proof. The CST however considered that Article 57 RP did not allow it to address
an MI to the parties, who could only receive an MOP. Article 57, it thought, only concerned third parties. It
thus concluded that the Commission, by refusing (in its view) to produce the information, had failed to show
that the contested decision was correctly motivated, and annulled it.
21. The General Court upheld the Commission's appeal, but for slightly different reasons. It recognised that there
was no explicit legal basis in the RP CST for MI addressed to the parties. It held however, that an order to a
party could be made under Article 44(2) RP instead, since Article 56 RP, concerning MOP, states that it is without
prejudice to that provision. The effect is that there is no significant difference between the GC and the
CST when an institution claims confidentiality for certain documents. It follows that an order apparently
equivalent to an MI can be addressed to the defendant institution. Given the nature of the dispute in Meierhofer,
the necessary deduction from this is that, like an MI, such an order is binding on the party addressed
and thus also requires the person asking for it to discharge a burden of proof of the kind indicated in Fiata-

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gri35 . This cannot be seen as an improper restriction on officials' recourse to justice: it is simply the ordinary
rule of evidence in administrative law. .
22. Practical experience in other cases shows that the existing rules on burden of proof do not prevent effective
judicial scrutiny of confidential information. A useful example is Matos Martins36 , which concerned a selection
procedure for contract agents (to which Annex III SR does not apply). The candidates could sit the test at a
time of their choice during a period of several weeks. To protect the objectivity of the test and ensure equal
treatment of candidates, the questions therefore could not be the same for all candidates. Instead, candidates
had to answer the same number of questions, but the individual questions were taken at random from
a database in which they had been quality-graded to ensure that all questions in a given "difficulty group"
were of comparable difficulty. The difficulty group varied according to the contract agent function group for
which the candidate was applying. The applicant questioned the appropriateness of the questions put to
him in his test. The CST thus had to check that the questions were not manifestly inappropriate37 and that the
principle of equal treatment had not been infringed. It therefore had to see the questions actually put to the
candidate. However, this gave rise to an issue of confidentiality, because the database (which comprised
thousands of questions) was to be recycled in future procedures too, including the questions put to the applicant.
They could thus not be disclosed to him without compromising the individual questions – and if
there were more applications of the same kind, with other candidates also asking for disclosure of "their"
questions, in the end, the entire database would be compromised. The CST however accepted the Commission's
proposal for a special procedure, under which the questions were be given to the Tribunal and the applicant's
lawyer (but not the applicant himself) was invited to inspect them at the Registry, without taking
copies38 , and then to make written submissions on them. Having obtained the CST's agreement for these
precautions, the Commission disclosed the material on the basis of an MOP and there was no need to consider
whether a MI was needed.
2. Production of the "administrative file"?
23. It has sometimes been suggested that officials are in a weak evidential position in staff cases, as compared to
the administration and that this should be redressed by requiring the defendant to produce the
"administrative file" automatically to the Court, whenever a case is brought 39 . It has been suggested that Article
55 RP, concerning MOP 40 , already allows the CST to obtain this "file" by means of an ad hoc request.
24. This argument is an implicit recognition that there is no express requirement of this kind in the RP, in particular
not a requirement for automatic production of "the file". There is certainly no such requirement in Article
39 (which lays down the minimum content of the defence). Indeed, further doubt is cast on the argument
when one remembers that the RP CST have not reproduced the requirement on the defendant under Article
46(2) RP GC to produce the complaint and the decision rejecting it and indicate the dates when the complaint
was submitted and the decision notified. Moreover, one could deduce from the fact that that was all
the RP GC required, that there was no requirement to produce a complete "file". In a situation where the RP
CST actually require even less than the RP GC, it is difficult to see how it can be suggested that they in fact
require more.
25. The same deduction may be made from the often-overlooked fact that there used to be a provision requiring
production of the file, but that it was confined to one Treaty and was not reproduced for cases concerning
the other Treaties. This was Article 23 of the ECSC Statute of the Court: "Lorsqu’un recours est formé contre une
décision prise par une des institutions de la Communauté, cette institution est tenue de transmettre à la Cour
toutes les pièces relatives à l’affaire qui est portée devant elle." However, that provision was not carried over into
the EC and Euratom Statutes. This cannot have been a mistake. And now, of course, the ECSC Statute has dis-

appeared.
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26. There is perhaps an even more cogent indication, namely that nothing in the Council Decision setting up the
CST indicates that the Council had the least intention of changing the existing rule on burden of proof, which
was simply the ordinary rule of administrative law, that in the absence of an express exception, the applicant
has the burden of proof in any challenge to an administrative decision. The fact that the CST is a specialist
court is certainly not a reason for assuming the legislature intended any change in this respect 41 .
27. It follows that there can be no question of producing "the file" systematically under the current rules. A
change in the RP would be needed. The question is then whether there is any merit in such a change. There
are in fact strong reasons for thinking that there is none.
28. The first reason is existential: what is "the file"? That is by no means obvious. For example, what is "the file" in
relation to a complainant in a case of alleged harassment? The inquiry, if there is one, does not concern the
complainant at all, but the supposed harasser – and many third parties will have given evidence. The file is
not built up in relation to the complainant. If it "concerns" anyone, it is probably the person complained of.
There may indeed be many physical "files" in such a case: the file of the request and the complaint, but also a
separate inquiry file and possibly even a disciplinary file, if the matter goes to that stage. Which one are we
talking about? And if it is all of them, the fact is that they are not – or at any rate were never conceived as –
"the file" relating to the applicant. That cannot be so, since one does not know in advance who is going to
bring an action, or what the action will be: so how can there be a predetermined "file" about it? Moreover,
the person who wants to see "the file" may in fact have no recognised legal interest in the case at all42 . If that
is so, still less can that person have a claim to see "the file", even assuming one can identify it.
29. Second, the argument seems to be based on a reductionist view of staff litigation, as a vertical issue between
a single official and an all-powerful bureaucracy. While that may often be the case, the reality is frequently
very different: many situations are not vertical at all, they are horizontal, triangular, multilateral etc. A request
for assistance under Article 24 SR for protection against alleged harassment (cf article 12a SR) puts the administration
in a position which is much more that of an arbitrator, who has to deal with a conflict between
two third parties. Such a case raises obvious issues of evidence and of staff policy: if there is a proven problem,
who should be moved, and where? Cases may involve many actors. There are not only the complainant
and the alleged harasser, but all the witnesses, who may want anonymity. All this material might be said to
form part of "the file", but there are excellent reasons for not disclosing all of it – at least not to the applicant.
30. Third, who is the file for? Those who argue for producing it recognise that there is a difference between giving
it to the judge and disclosing it to the applicant. That is certainly so and there is authority to that effect in
one of the only cases decided in a context where the administration was obliged to produce the file, namely
an ECSC competition case falling under Article 23 ECSC Statute of the Court (see above). The CFI's Order confirms
that the purpose of this provision was to inform the judge and that what the applicant sees is an entirely
different matter 43 . The CFI refused access to most of the internal documents, other than those which
might have some bearing on the arguments already put forward in the case 44 . One may wonder whether
from the applicants' point of view this result was in any way different to what would have happened in an EC
competition case, on the basis of an MOP or an MI. We have already seen what was done in Matos Martins,
without anyone ever automatically producing "the file". In reality, the issue is not getting "the file", even if
one can identify it: it is getting the right information, and that can be done within the existing rules, as that
case shows.

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V. A NEW PROCEDURAL ISSUE – EX OFFICIO PLEAS RAISED BY THE CST 45
31. The CST has shown an interest in this matter which seems to go beyond the previous precedents in the other
Union courts. The normal rule is that the applicant bears the burden of (a) identifying the plea he relies on;
(b) adducing the arguments to support it and (c) proving with appropriate evidence that those arguments
are factually correct. However, if the judge can raise a plea of his own motion and uphold it, the result is in
effect to overturn the normal rule. The applicant does not even have to raise the plea, still less substantiate it
– the judge does it for him. Thus, if we regard the burden of proof as a procedural rule, a fortiori ex officio
pleas are a procedural issue too.
32. Making the connection between burden of proof and ex officio pleas raises the following question: since the
Council did not intend to alter the burden of proof in staff cases when it set up the CST, is there really room
for ex officio pleas of "internal legality", whose effect is far more radical than changing the burden of proof?
33. It is well-established that certain pleas can be raised ex officio: inadmissibility is in a category of its own, since
it goes to the Court's jurisdiction. The other generally-recognised cases are lack of reasoning and lack of jurisdiction
in the deciding authority ("incompétence") 46 , which are often identified as matters of "external legality"
(i.e. what is detectable merely by looking at the decision). The current dispute which has been highlighted
by certain CST judgments47 , is about whether ex officio pleas can also concern "internal legality". The
most controversial question is probably whether Union law recognises the plea of "méconnaissance du
champ d'application de la loi" 48 , which can mean, for example, that the judge raises of his own motion the
possibility that a given decision infringes this or that provision of the SR, even if the applicant has never mentioned
it.
34. Up to 2004, there seems to be only one example of this latter type of ex officio plea in the Community/Union
courts 49 . However, the background to the case suggests what the true explanation is. It was a trade union
case with implications for huge numbers of officials and which arose out of a serious and long-running collective
employment conflict – the applicants were contesting the Commission's decision to withhold pay
following a strike in the early 1990s. The applicants claimed that the Commission had infringed the collective
agreement which it had concluded with the trade unions. The Commission claimed that the applicants' argument
was devoid of purpose, since such agreements could not create individual rights. The CFI did not just
examine this point, but also considered ex officio the question whether there could in fact have been a
breach of the collective agreement. The interesting point in Browet is that the CFI raised the plea of
"méconnaissance du champ d'application de la loi" of its own motion, and rejected it 50 . The most likely explanation
of the case is therefore that the CFI wanted to dispose of the litigation arising out of the strikes once and
for all. Not raising the plea would have left both sides (i.e. the institution and all its staff) in a state of uncertainty
on a matter of general importance (whether strike action necessarily leads to withholding of pay, irrespective
of any collective agreement) and would have left open the possibility of future litigation to resolve
the issue raised ex officio. This is a very different situation from those which have arisen more recently, in
which a plea has been raised ex officio, and upheld.
35. The most recent judgment, in Putterie-De Beukelaar (above), leaves the matter open 51 . The case concerned a
staff report and the question whether the applicant had shown potential to move to a higher function group.
The CST upheld the applicant's case, after raising of its own motion the plea of "méconnaissance du champ
d'application de la loi", on which it invited the parties to submit observations. The plea concerned the question
whether the matter was governed by Article 43 SR or Article 10(3) of Annex XIII. The GC upheld the Commission's
appeal, but on grounds related to the implementing provisions for Article 43. The Commission's
primary ground of appeal, concerning ex officio pleas, was rejected. It is however interesting to note that the

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GC does not say that the CST was right to raise a plea of "méconnaissance du champ d'application de la loi".
Instead, it says that it was entitled to raise an ex officio plea, which could be considered in this case to be a
plea of lack of jurisdiction ("incompétence") and of infringement of an essential procedural requirement –
which are known categories of ex officio pleas.
36. Recently, the Court of Justice has again expressly rejected the idea of ex officio pleas concerning "internal
legality" 53 . This need not necessarily be regarded as an absolute bar to other Union courts attempting to apply
the concept, particularly if they exercise a specialised jurisdiction. However, if the idea is one which the
Court will not entertain, in relation to Member States, institutions and Community citizens in general, it
might be thought surprising to allow it in the CST, in relation to Community officials and agents alone. This
category of litigants would thus have a privilege enjoyed by no other Community citizens – and this at a time
when the legislature has just removed such a privilege, namely the old rule on costs.
37. Ex officio pleas undoubtedly have a part to play in a system of administrative justice where no legal representation
at all is required – e.g. staff cases in French administrative courts (unless the claim is financial) 54 . There
is much to be said for the idea that a party who is defending himself and has a good case should not suffer
because he is not a lawyer and has not identified the right argument: if the judge can see the right argument,
why should he not raise it himself and get the right result?
38. The problem is that the Union legal system, including the CST, has always required parties to be represented
by a lawyer; no exception was made for staff cases when the CST was established. Article 19, third paragraph,
of the Court's Statute, still applies. This is a deliberate choice by the Council: there was once a proposal to set
up a staff tribunal which would have been more like a labour court (bipartisan membership with a judicial
chairman) 55 . In a system of that kind, one might well have considered dropping the requirement for legal
representation, because that is how labour courts operate in many Member States. However, in 2004, the
Council expressly chose to create a judicial tribunal. In that context, it is hardly surprising that it maintained
the requirement for applicants to have legal representation. This has to be understood as limiting the scope
for the judge to step in to help a party who has not identified the right argument. It is up to the party's lawyer
to find the right arguments – that is one of the reasons why the Statute requires his/her presence.
VI. A MODEST PROPOSAL – DEALING WITH VEXATIOUS LITIGANTS
39. The CST is the third stage in a series of transfers of jurisdiction for staff cases. Twice, this jurisdiction has been
transferred, essentially to lessen the burden on the higher court which had previously exercised it. There is of
course little point in lightening the burden on the higher court, if the resulting delays do not change, for example
because the new court is deluged with a series of pointless cases. Vexatious cases cause delay to more
deserving cases brought by others. The effects of vexatious litigation in the Union courts are compounded
by the fact that over and above the necessary minimum of work needed to deal with the case, everything in
the vexatious proceedings usually has to be translated too.
40. The CST in fact turns cases around fairly quickly, as its published statistics show. It is not unusual for judgment
to be given in the year of which the case bears the number 56 . Nevertheless, this positive result will be
put at risk if some individuals are allowed a free hand. This risk is not entirely fanciful: to take just one example,
a single individual accounts for the following proportion of the CST's work:
- 7 cases brought in 2006 / 148 (4.7 %)
- 9 cases brought in 2007 / 147 (6.1 %)
- 5 cases brought in 2008 / 104 (4.8 %)
- 6 cases brought in 2009 / 106 (5.7 %)

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- 5 cases brought in 2010 to date / 68 (7.4 %)
Most of these cases have been dismissed by an order declaring them manifestly inadmissible or unfounded;
others have been rejected by a final judgment. In a very few, the applicant has succeeded. The cases he has
lost in the CST he has systematically appealed – with similar results, so far, in the General Court. There are
one or two other serial litigants but they are currently well behind in the number of cases brought.
41. The CST is well aware of the problem, as it is in the front line. It has gone further than any other Union jurisdiction
in dealing with vexatious cases: as stated above, it has already applied the provision in its RP allowing
it to order a party to pay part of the Tribunal's own costs. Even before then, at least one member of the
Tribunal had mentioned vexatious litigants in a published article, which referred to "l'objectif du législateur de
limiter les excès de quérulence de certains fonctionnaires" 57 . That comment was in relation to the change in the
costs rules for staff cases. However, the new rule came into effect in November 2007 and has not discouraged
some people – and it seems that perhaps even the new practice of making them pay Court costs may
not be enough.
42. Articles 87(2) and 88 RP are not the answer – those provisions concern successful parties who cause unjustified
costs to the other party. The present problem concerns unsuccessful parties, whose actions are dismissed,
yet go on bringing cases on more or less the same subject, and are not deterred by losing or being
ordered to pay the costs.
43. So, what more can be done? There is certainly nothing wrong in principle with measures to limit abuse of
the process, so long as they are decided by the judge. For example, the EHCR can declare an application inadmissible
if it appears to be an abuse of the process– a much wider-ranging provision than anything in the
Union courts' repertoire 58 . The EHCR has recently made use of this provision, in a case where a person with
an adequate income complained about non-reimbursement of a trifling sum of medical expenses 59 . It emphasised
that vexatious cases were one of the main reasons for the delays in national courts which had led
to many cases of unreasonable delay being brought to Strasbourg.
44. One further possibility would be to amend the RP to introduce a procedure which has existed for centuries
in common-law jurisdictions: the possibility of declaring a person a vexatious litigant, if they have brought a
number of hopeless cases. After a procedure in which the person has the opportunity to be heard, his or her
name is put on a sort of black-list and so long as it stays there, he or she cannot bring a case without special
leave of the Court 60 , which scrutinises any proposed action to see if it has some appearance of being admissible
and justified. The listing could be for a fixed or an indefinite period. Provision could be made for automatic
periodic review, if that were thought appropriate. This procedure is compatible with the right of access
to justice: it is decided and applied by the courts, with full exercise of the rights of defence. Access to
justice is like other rights: it cannot be exercised in such a way as to interfere with others' exercise of the
same right – the ECHR's point in Bock, supra.
45. In the meantime, the CST could consider making more use of the possibility of dismissing manifestly inadmissible
or manifestly unfounded cases by ex parte order, without notifying them to the proposed defendant.
This saves costs, and the unilateral form of the order is itself a very clear message to the applicant.

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1 for more details see Kraemer, The European Union Civil Service Tribunal: a new Community Court examined after
four years of operation [2009] CMLR 1873
2 it appears to have resulted, initially, from controversy in the Council as to how one should deal with the fact
that, for the first time, there were fewer members than Member States: see Cameron, Establishment of the European
Union Civil Service Tribunal, in [2006] The Law and Practice of International Courts and Tribunals, 273, at 276;
Kanninen, Le Tribunal de la fonction publique de l'UE – la première juridiction spécialisée dans le système juridictionnel
de l'Union européenne, in Liber Amicorum in Honour of Sven Norberg, Bruylant, Brussels, 2006, 287, and Kraemer,
op. cit., at 1884-1886
3 see e.g. Mahoney, The European Union Civil Service Tribunal: a specialised tribunal or a special tribunal? in Mélanges
en hommage à Georges Vandersanden, Bruylant, Brussels, 2008, 955
4 Council document 17010/03 of 3.1.2007
5 OJ 225/1, 29.8.2007; codified version in OJ C 177 2.7.2010
6 Kraemer, op. cit., 1891-92; Levi, Bernard-Glanz and Rodrigues, Le contentieux de la fonction publique européenne –
une matière à (re)découvrir, [2010] JDE 97, 103
7 Article 39(1) RP
8 Article 78(1) RP
9 see e.g. Mahoney, op. cit., 965-966 ("aggressive attitude … sometimes adopted by the representatives of the defendant
institutions, taking up every formalistic procedural objection possible …")
10 the argument that the difference is nevertheless justified in order to speed up CST proceedings would have
some weight if it led to significant numbers of cases being decided on admissibility alone: however, there
seems to be a tendency for the CST to join admissibility to the substance, with the result that there will be at
least two written exchanges (application; one act per party on admissibility; defence)
11 Art 7(3) of Annex I – see also Art 41 RP; Kraemer, op. cit., 1892; van Raepenbusch, L'apport jurisprudentiel du Tribunal
de la fonction publique de l'Union européenne, in La function publique communautaire - nouvelles règles et développements
contentieux, Govaere and Vandersanden (eds.), Bruylant, Brussels, 2008, 141, 143
12 Levi, Bernard-Glanz and Rodrigues, op. cit.
13 a second round may avoid a situation which arose in an early CST case, where a party complains that he was
allegedly not able to deal with a point: see Case T-253/06 P, Chassagne v Commission, judgment of 19 September
2008, not yet reported, grounds 29 and 35
14 for an example, see Case F-134/07, Bordini v Commission, judgment of 8 April 2008, not yet reported; (it must be
admitted that the defendant contributed to the situation; however, an additional round of pleadings would
probably have avoided the need for observations after hearing)
15 e.g. cases of alleged harassment, cases under Article 24 of the Staff Regulations, disciplinary cases and certain
claims for damages: see the length of the judgments in F-52/05, Q v Commission, judgment of 9 December 2008,
not yet published, or F-30/08, Nanopoulos/Commission, judgment of 11 May 2010, not yet published
16 RP, Articles 68-70; RP GC, Article 64(2)(d)
17 Mahoney, op. cit., 967, 970
18 Kraemer, op. cit., 1896-97 – see Decision, recital 7 and Article 7(4)
19 this provision may owe something to Article 62(2) of the Rules of Court of the European Court of Human Rights:
"… the friendly-settlement negotiations shall be confidential and without prejudice to the parties’ arguments in the
contentious proceedings. No written or oral communication and no offer or concession made in the framework of the
attempt to secure a friendly settlement may be referred to or relied on in the contentious proceedings"

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20 Levi, Bernard-Glanz and Rodrigues, op. cit., 103; Article 69(1) RP is explicit that the minutes are "an official record"
("acte authentique")
21 this has already happened in at least one pending case. Others have seen the problem too, e.g. Gervasoni, Le procès
devant le juge communautaire de la fonction publique : quelles réminiscences françaises? in Mélanges Vandersanden,
supra, 903, 925
22 for an example in the CFI, see Case T-462/93, Lenz v Commission (although the Order of 14 June 1995 is not reported,
the Court of Justice's Order dismissing the applicant's appeal against it is reported: Case C-277/95 P [1996]
ECR I-6109 - see on this point grounds 21-22)
24 see generally Tagaras, Le Tribunal de la fonction publique et la question des dépens, in Mélanges Vandersanden,
25 that matter can instead be relevant under RP Article 88, which allows the CST to order the successful party to pay
some or all of the other party's costs if that is justified by the successful party's conduct
26 Case F-6/08, Blais v ECB, judgment of 4 December 2008, not yet reported, grounds 111-117
27 see e.g. Case F-91/09, Marcuccio v Commission, Order of 9 July 2010, not yet reported, grounds 54-55; Case F-11/09,
Marcuccio v Commission, Order of 25 November 2009, not yet reported, grounds 73-74; Case F-102/08, Marcuccio v
Commission, Order of 25 March 2010, not yet reported, grounds 42-43; Case F-55/08, De Nicola v EIB, Judgment of
30 November 2009, not yet reported, grounds 273-276
28 cf. RP CJ, Article 72(a); RP GC, Article 90(a)
29 Case F-3/08, Marcuccio v Commission, Order of 7 October 2009, not yet reported, ground 44 (1000 euros) – appeal
pending, Case T-515/09 P; Case F-102/08, fn. 27 above, grounds 44-45 (1500 euros)
30 see e.g. Case T-201/04, Microsoft v Commission [2007] ECR II-3601, grounds 1368-1373 (Commission to bear 20% of
its own costs and 20% of Microsoft's; Microsoft to bear 80% of its costs and 80% of the Commission's)
31 see e.g. Case T-45/01 DEP, Sanders and 94 ors. v Commission, Order of 9 November 2009, not yet reported (£ 450,000
claimed, £ 300,000 ordered)
32 Case 126/76 DEP, Dietz v Commission [1979] ECR 2131, confirmed in Case C-409/96 DEP, Sveriges Betodlares Centralförening
and anor. v Commission [1999] ECR I-4939
33 Case F-74/07, Meierhofer v Commission, judgment of 14 October 2008, not yet reported; reversed, Case T-560/08 P,
Commission v Meierhofer, judgment of 12 May 2010, not yet reported
34 Case T-34/92, Fiatagri v Commission [1994] ECR II-905, ground 27
35 this conclusion is not contradicted by ground 62 of the GC judgment, which refers to Fiatagri. That passage concerns
the discretion of the Court to choose between an MOP and an MI, not the question of the burden of proof
needed before an MI (or equivalent measure) can be adopted
36 Case F-2/07, Matos Martins v Commission, judgment of 15 April 2010, not yet reported, see esp. grounds 33-41
37 see e.g. Case T-173/99, Elkaïm and Mazuel v Commission [2000] ECR II-433
38 a method already followed by the CFI: see e.g. Cases T-95/98, Gogos/Commission [2000] ECR II-219, ground 15 and
T-95/98 DEP, Gogos/Commission [2001] ECR II-571, grounds 12 and 25 (information about decisions by a selection
board in a recruitment competition under Annex III SR); it was also done for a medical file (though the judgment is
less explicit as to the procedure) in Case T-376/94, Otten v Commission [1995] ECR II-401, cf. grounds 22-23
39 Levi, La procédure devant le juge du contentieux de la fonction publique : quelques réflexions pour un 'point d'équilibre'
entre les parties dans l'administration de la preuve, in Mélanges Vandersanden, supra, 939; Levi, Bernard-Glanz and
Rodrigues, op. cit.
40 "Measures of organisation of procedure shall have as their purpose: (a) to ensure efficient conduct of the written and oral
procedure and to facilitate the taking of evidence (…)"

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41 Mahoney, op. cit., 961 and 964: "the specialisation of the Tribunal and of its judges should not … of itself bring any
change to the distribution of powers between the judiciary, on the one hand, and the legislative and executive authorities
within the EU legal order, on the other, as far as staff matters are concerned"; "the legal margin of manoeuvre of the Civil
Service Tribunal has not been made more extensive than the legal margin hitherto available to the Court of First Instance
in staff cases prior to November 2005, merely because the Tribunal's judges are specialists. "
42 Case T-4/05, Strack v Commission [2006] ECR IIA-2-361 (OLAF decision to close inquiry into a third party not attackable
by the person who made the complaint)
43 Order of 10 December 1997, Cases T-134 etc./94, NMH Stahlwerke and ors. v Commission [1997] ECR II-2295, ground
32, 37, 39
44 ibid., grounds 40, 44-45, 47-48, 51-52
45 see generally Castillo de la Torre, Le relevé d'office par la juridiction communautaire [2003] CDE 395 and Vesterdorf, Le
relevé d'office devant le juge communautaire, in Une Communauté de droit, Festschrift für Gil Carlos Rodriguez Iglesias,
Colneric et. al. (eds.) BWV, Berlin, 2003, 551
46 the latter point being confirmed by the GC in Case T-160/08 P, Commission v Putterie-De Beukelaar, judgment of 8
July 2010, not yet reported, ground 61; the GC considers at ground 63 that infringement of an essential procedural
requirement can also belong to this category
47 see esp. Case F-31/07, Putterie-De Beukelaar v Commission, judgment of 21 February 2008, grounds 50-61; reversed
on appeal, but not for this particular reason, in Case T-160/08 P, above
48 those whose own legal background has accustomed them to the notion of "moyens d'office" themselves recognise
that its place in Union law is limited, especially in relation to this particular plea: see e.g. Gervasoni, op. cit., 918, 922
49 Cases T-576 etc./93, Browet and ors. v Commission [1994] ECR II-619, see esp. ground 35
50 Kraemer, op. cit., notes at 1909 that "the plea regarding the scope of the law had been raised by CFI of its own motion as
a mere plea of defence, directed against the applicability of a provision the breach of which the applicant actually had
explicitly claimed. It is however trivial that the Community Courts always have to assess of their own motion whether a
plea raised by the applicant is well founded in law, which assessment also includes the questionof whether the provision
relied on by the applicant actually applies to the subject matter of the case"
51 in Case T-58/08 P, Commission v Roodhuijzen, judgment of 5 October 2009, not yet reported, the GC considers the
question of judgments which are ultra petita (which are not possible) or which raise ex officio pleas "other than
those where the public interest requires [the Court's] intervention" (unofficial translation). On the other hand, the
maxim jura novit curia allows it to give the relevant law a meaning possibly not envisaged by the parties and not
disclosed to them by the Court during the proceedings (grounds 34-36). This passage implies a restrictive view of ex
officio pleas
52 grounds 50 ff. of the CST judgment in Putterie-De Beukelaar and grounds 24 ff. of the appeal judgment
53 Case C-89/08 P, Commission v Ireland, judgment of 2 December 2009, not yet reported, ground 40 (with further references)
54 Gervasoni, op. cit., 910
55 proposal at OJ 1978 C 225/6; see Kanninen, op. cit., 292; Kraemer, op. cit, 1875; Vandersanden, Considérations sur la
proposition de créer un tribunal du contentieux du personnel, in Gedächtnisschrift für Léontin-Jean Constanesco, Heymans,
Cologne 1985, 841
56 some examples appear in fn. 26-27 above
57 Gervasoni, op. cit., 911
58 it is true that the related concept of "abuse of rights" (or "measure contrary to natural justice") has very occasionally
been used in Union law, to justify not recognising, in the particular circumstances, a right to which the person was
theoretically entitled by the letter of the relevant provision: for an example in staff law, see Case 140/77, Verhaaf v

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Commission [1978] ECR 2117, esp. the Opinion of Sir Gordon Slynn
59 Case 22051/07, Bock v Germany, 19 January 2010, see press communiqué of ECHR, 16 February 2010
http://cmiskp.echr.coe.int/tkp197/view.asp?item=3&portal=hbkm&action=html&highlight=&sessionid=58950031&
skin=hudoc-pr-en
60 e.g. Senior Courts Act 1981, s. 42(1A) (for England and Wales); see also Vexations Actions (Scotland) Act, 1898; in
France, Article 1072bis of the Code judiciaire provides for a different deterrent: French law has the concept of "fol
appel", meaning that an appeal court may impose a fine on an appellant who lodges a wholly unjustified appeal –
this is on top of possible damages to the respondent who has incurred costs by having to defend the case. The purpose
is to punish the waste of the court's time.