C-12/64

THE COURT (Second Chamber)

composed of: A. M. Donner, President of Chamber, W. Strauß and R. Monaco (Rapporteur), Judges,

Advocate-General: J. Gand Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

'Servants who are not already estab it had decided not to fill the vacant lished in a grade equal to or immedi post by promotion; ately below the grade corresponding to — he stated that he was informed that the post to be filled, together with this post must be reserved for a auxiliary staff interested in the vacant person of Italian nationality. post, are invited to apply in writing to The transfer procedure was carried out the Directorate-General of Administra by Note No 3089/IX/64-1 of 13 March tion, without an application form or 1964. other documents, in a sealed envelope On 6 April 1964 the applicant made without identifying the sender. On the Application 12/64.

his own costs. pate in a competition internal to the On 9 July 1964 the applicant lodged, institution (Staff Regulations, Article 29 in addition, Application 29/64 against (1) (b)) if the post cannot be filled by the same decisions as were the subject promotion or transfer. If no-one expres ses an interest, a competition will not of Application 12/64. be held; if the reverse is the case, the Considering that it could not accept procedure for competitions will be fol any of the applications put forward for transfers, the Commission on 28 July lowed for this post, for which there will be a new vacancy notice.' 1964 decided not to fill the vacant post in the service by that procedure and to The applicant was 'established in the organize a general competition on the grade immediately below the corres basis of qualifications and written tests, ponding grade for the post to be under Article 29 (1) of the Staff Regu

parties sion wherein: In the applications, the applicant claims — he demanded an explanation of the that the Court should: reasons for the Commission's decis ion not to promote him, despite his '1. Declare null and void Vacancy Notice No 403, the 'notification of qualifications and merits; posts vacant with the Commission of — he stated that he considered that the the EEC appearing at page 3 of Commission was not entitled to pro EEC Commission Staff Information ceed with an internal competition if Bulletin No 16 of 29 October 1962

and, if necessary, the decisions of the (a) the complete minutes of the 249th Commission which gave rise to those meeting of the Commission of publications; the EEC; 2. Declare null and void the delibera­ (b) the complete minutes of the tions of the Commission of 26 252nd meeting of the Commis­ February 1964 whereby it was de­ sion; cided not to fill the post in question (c) that part of the minutes of the by promotion or transfer, and not to 263rd meeting of the Commis­ hold internal competitions but to sion relating to the appointment solicit applications from officials in of Mr Schlieder as Head of the other institutions of the three Division; Communities; (d) the special minutes of the 263rd 3. Rule that the Commission should be meeting of the Commission; ordered to pay all the costs of the (e) the directives relating to the ap­ proceedings.' pointment of the Selection Board In the replies he adds the following: for the competition (Executive 'Take official note that the applicant Secretariat S/01965/63); declares that he maintains the conclus­ (f) the invitations addressed to Mr ions of his application, with the excep­ Ricciardi and Mr Rossignolo for the interviews of 12 and 13 tion of (3) which should be supplemen­ ted to read as follows: August 1963; and all the docu­ Order the Commission to pay the en­ ments relating to the financial tire costs of Application 12/64R for conditions of their stay in Brussels: the adoption of an interim order. Alternatively: (g) the letters addressed on 24 March 1. In accordance with the second para­ 1964 to professors in six Italian graph of Article 21 of the Protocol universities and to the Italian on the Statute of the Court of Justice Treasury Minister soliciting can­ of the EEC require the institutions didates for the post in question.' not being parties to the case to state The defendant contends, in both cases, what interpretation they have until that the Court should: now given in practice to Article 29 — dismiss as inadmissible the applica­ (1) (a) and (b) and in particular tion made by Mr Ley in so far as whether: it is directed against Vacancy Notice (a) when there are applicants for No 403 and against the notification transfer or promotion, they con­ of posts vacant with the Commission sider that ipso facto the latter of the EEC published in EEC Com­ should be taken into account for mission Staff Information Bulletin No 16 and to the extent that it con­ the internal competition; (b) if, when they consider that they tests the order of the Court in Ap­ should not fill a post by transfer plication 12/64R for the adoption of an interim measure; or promotion, they organize an internal competition, that is: — dismiss Application 29/64 as inad­ — if candidates have put them­ missible; selves forward for the pro­ — declare that both applications are cedure under Article 29 (1) unfounded under all heads of claim; (a); — order the applicant to bear his own — in any circumstances. costs in accordance with the relevant 2. Order the defendant to produce all provisions and in any even his costs the following documents: in Case 29/64.

III — Submissions and argu­ Having stated the above, the applicant ments of the parties affirms that he has a legal interest in taking proceedings in the present case. The submissions and arguments of the With regard to the contested vacancy parties may be summarized as follows: notice, it forms part of a series of measures ending in his dismissal, so With regard to Case 12/64 that he has an interest in requesting the annulment of the initial measure. More­ On admissibility over, under the very terms of Articles 90 and 91 of the Staff Regulations, the 1. The defendant states that the appli­ staff are entitled to have legality re­ cation is inadmissible in so far as it is spected in the application of those directed against Vacancy Notice No 403 Regulations. and the 'notification' accompanying that Moreover, the disputed 'notification' notice. Since the appeal was introduced was such as to mislead officials so clas­ more than 17 months after the publica­ sified as to be eligible for promotion to tion of the said notice and 'notification', the vacant post, since it induced them it is not within the period laid down not to put forward their application for by Article 91 (2) of the Staff Regula­ the internal competition. And it was tions. precisely on the basis of the erroneous Moreover, the applicant has no direct belief that there were no candidates for and personal interest in contesting these such a competition that the defendant measures, since they do not adversely decided not to proceed with one. affect him in this case. First, he has no In the rejoinder, the defendant objects right to have the post to be filled and that, even if the vacancy notice and the is not unjustly excluded by the descrip­ disputed 'notification' must be con­ tion of the functions and of the quali­ sidered as preliminary measures in a fications required as they appear in the complex administrative operation, the disputed vacancy notice. Secondly, the final act of that operation would in this contested 'notification' is not a decisive case be not the decision to commence factor but merely contains instructions the transfer procedure (Article 29 (1) with regard to the conditions for lodg­ (c) of the Staff Regulations), but the ing the application forms. appointment of an official or the de­ The applicant replies that, even accept­ cision not to fill the disputed post. ing the argument, admitted by impli­ With regard to the right of officials to cation by the Court, that the vacancy have legality respected, it must be ob­ notice in fact constitutes a decision, the served that this does not of itself con­ question remains whether that measure stitute a condition of admissibility for must necessarily be contested immedi­ introducing an appeal within the mean­ ately, or whether the party claiming to ing of Article 91 of the Staff Regula­ be injured by it may wait until the final tions. The exercise of the right to stage of the recruitment procedure has legality is in fact limited by the con­ arrived. The first solution exposes the dition imposed upon the applicant of institutions—in the case of administra­ having a direct and personal interest in tive requests or complaints—and the disputing the legality of the contested Court—in the case of formal appeals— measures.

The applicant objects that what is here procedural requirement and infringe at issue is not a submission, but a new ment of the Treaty or of a rule of law argument or the development of sub relating to its application (for example, missions already invoked in the applica the Staff Regulations). tion. This ground of complaint is really The defendant replies that the wording based on facts unknown to the appli of the said provisions is sufficiently cant before lodging the statement of clear for them to be applied in the defence and its schedules and the pro absence of the general provisions pro duction in the course of the proceed vided for in Article 110 of the Staff ings of certain documents on the part Regulations. of the Commission, since the informa tion furnished by it initially was in

It is moreover tial procedural requirement (Article 25 vitiated on the ground of misuse of of the Staff Regulations) invoked in the powers, since it prevented the officials application and that it should be dis concerned, such as the applicant, from missed as inadmissible in so far as it putting forward their applications for was explicitly mentioned for the first the internal competition (and led the time in the reply. Commission to conclude that in this On the substance of the case case there were no grounds for organiz ing this competition) since the Staff First submission Regulations in no way preclude officials eligible for transfer or promotion from This submission relates to Vacancy participating in such a competition. Notice No 403 (and the 'notification' The defendant replies that the contested appended thereto). notification does not adversely affect the The applicant maintains that the pro right of officials eligible for promotion cedure of the vacancy notice and the to participate in the internal competi recruitment procedure referred to in tion. The sole aim of this notification

LEY v COMMISSION

1. The applicant claims that these de of the rules laid down by the Court cisions are null and void because of on promotion, and provided that the misuse of powers on the ground that decisions taken are not based on in their aim is to confer the vacant post correct findings of fact, are not vitiated on a person of Italian nationality who by misuse of powers and are guided is not even in the Community institu solely by the interest of the service. But tions. Such an aim is contrary to he disputes that the appointing author Articles 7, 27 and 45 of the Staff Regu ity can avail itself of the same power lations and the view propounded by the with regard to the following stage of Court in Lassalle v European Parlia recruitment, proceeding to an internal mentary Assembly. competition (Article 29 (1) (b)).

system of the Court to several facts which laid down by the Staff Regulations is seem to him clearly established (reply, one of internal preference which pp. 33 to 35). would be meaningless if the appoint 2. In his reply, moreover, the applicant ing authority could at its discretion analyses the content of Article 29 (1) decide to disregard not only the of the Staff Regulations, concluding first stage of recruitment (transfer therefrom that the contested decisions or promotion), but also the second of 26 February 1964 are not only (internal competition);

— the interpretation given to the Staff 2. With regard to the ground of com Regulations by other institutions, the plaint of infringement of the Staff Regu stage of internal competition having lations, the system of internal prefer always been respected by the Com ence established by Article 29 (1) of mission of the EAEC and by the the Staff Regulations renders it obliga High Authority of the ECSC. tory for the appointing authority, in considering the various means of recruit — the interpretation given to Article 29 by the defendant itself, which ment, to have regard to the order of precedence established therefor, but it emerges by implication from the last sentence of the disputed 'notification' is not automatically bound by it.

Article 29 (1) (a). terest of the service and makes it poss Finally the defendant states its attitude ible to achieve the aim contained in to the claim for measures of inquiry Article 27 of the Staff Regulations. It put forward by the applicant. It explains becomes illegal when it renders the that the documents have already been role of nationality the principal—or produced, pointing out that the note on only—criterion of selection (cf. also the the appointment of the Selection Board judgment of the Court in Lassalle v is appended as a schedule to the state European Parliamentary Assembly). ment of defence in Case 19/64 and The course of action followed by a states the reasons for which it considers Member of the Commission (Mr von itself unable to produce the minutes of der Groeben) and by Directorate-Gen the 263rd meeting of the Commission eral IV in order to recruit an Italian (cf. rejoinder, p. 22 in connexion with official was strictly related to the original the alternative conclusions of the appli proposal put forward to the Commis cation enumerated under 2). sion, to recruit by means of the pro cedure in Article 29 (2).

The de-

cision not to fill the vacant post by rather than an infringement of Article means of promotion is a general decis­ 25 of the Staff Regulations. It is more­ ion affecting all the officials who lodged over without foundation. applications: in the circumstances it is With regard to the decision not to fill irrelevant to invoke the case law of the the vacant post by means of promotion, Court in Raponi v Commission of the the consideration of comparative merits EEC. It is clear that the decision not referred to in Article 45 is obligatory to proceed with the internal competi­ in the case of a positive decision to tion adversely effects those officials who, promote, but it has no purpose when, like the applicant, would have lodged following an individual consideration of their applications for the competition, the applications, the administration de­ if it had not been for the limitation cides not to proceed with promotion. imposed by the 'notification' annexed The said decision was adopted, more­ to the vacancy notice. over, on the basis of a scrupulous con­ But the statements of reasons for the sideration of the applications made and disputed decisions are insufficient and on the basis of the numerous factors inaccurate even apart from the provis­ of which the Commission was informed ions of Article 25 of the Staff Regula­ or was already aware. Finally, reference tions. The first of these two decisions to the personal files of the candidates does not make clear that all the con­ does not constitute an indispensable ditions provided for by Article 45 have procedural formality in the promotion in this case been fulfilled (thus, it is procedure which must be complied with not clear that the Commission consulted even when, as in the present case, it the personal files of the candidates in is shown to be pointless, since the order to consider their comparative Commission was already in possession merits). The second decision is based of other information of established ob­ on factual inaccuracies since, inter alia, jectivity. it proceeds from the assumption that With regard to the decision not to hold no candidate wished to participate in the internal competition, no official, the internal competition, whilst the other than those who lodged their ap­ officials who, like the applicant, wished plications for promotion, showed any to do so, were not permitted to lodge interest in the post in question. The their applications. Commission therefore considered it The defendant objects that, since the pointless to hold this competition, as it contested decisions are general decisions, had grounds for believing that, within they are not obliged to give the formal the framework of the internal competi­ statement of reasons prescribed by tion, the appointing authority would Article 25 of the Staff Regulations. only be faced with candidates on whom That is obligatory only in the case of it had already expressed an opinion with individual decisions adversely affecting regard to possible promotion. the person to whom they are directed, With regard to the order in Application whilst the impugned decisions relate 12/64 R for the adoption of an interim solely to the organization of the re­ measure.

86 (4) of the Rules of Procedure, the an interim measure with regard to order of the President of the Court in whether the order is well founded, it an application for the adoption of an states that the jurisdiction of .the Presi interim measure shall have only interim dent of the Court to give a decision as effect. Moreover, since, in the appli to costs in an application for suspension cant's view, those Rules do not deal is derived from the provisions of Article with the question of the costs relating 69 (1) of the Rules of Procedure, since to such applications, the said order these provisions also cover instances ought to have reserved the costs. The where the Rules confer on the President Court is thus entitled to give a fresh of the Court the power of decision by ruling on this problem and to consider means of an order. whether, in this case, the application for suspension made by the applicant was With regard to Case 29/64 at this point plainly without foundation so that the costs could not go the same On admissibility way as those in the original case.

On a procedure could lead the adminis the expiration of this period, the legal tration to create vested rights for action brought in Application 12/64 third parties and consequently a situ must be considered as definitively in ation which could only with difficulty stituted and the defendant can only be reversed; avail himself of rights acknowledged as his in that case. In other words, — this last principle has been admitted one of two things: by the President of the Court in his order in the application for the adop — either Application 29/64 only re tion of an interim measure in Lassalle peats, in its submissions, the sub v European Parliamentary Assembly. missions and arguments admissible within the framework of Application The defendant replies that, pursuant to 12/64, and, in this case, it seems Article 86 (1) of the Rules of Pro that they are pointless and irrele cedure, no appeal shall lie from an

LEY v COMMISSION

the implied rejection of the com (a) with regard to the disputed 'noti plaint of 9 March 1964 does not fication', it is not required that an constitute a new decision in relation official who applies for promotion to those already contested in Appli should necessarily apply for an in cation 12/64, but only confirms those ternal competition, as the official is decisions. in any event taken into consideration for this competition; On the other hand, in the same disputed question, it is not possible to aggregate (b) with regard to the decisions of 26 the period of .three months with that February 1964, the appointing of four months provided for in Article authority is required to hold an 91 of the Staff Regulations by taking internal competition and thus re advantage of a complaint submitted in spect the successive stages of the the meantime. recruitment and appointment pro The applicant begins by stating that he cedure provided for by Article 29 has filed the present appeal 'as a pre

As soon as the question of the by the Court as fresh issues, invoked application of Article 29 of the Staff for the first time in the reply, and for Regulations was put, the Commission this reason inadmissible. was obliged to consider the legality of Application 29/64 is admissible for the the entire recruitment procedure fol same reasons which justify the admiss lowed in the case. ibility of Application 12/64. Moreover, an appeal to the Court in The distinction between preparatory no way precludes the administration measures and measures having the from giving a favourable reply to an nature of a decision as well as between administrative application relating to the measures having the nature of a de same subject as that appeal.

JUDGMENT OF 31. 3. 1965 — JOINED CASES 12 AND 29/64

him was shown not only to be vitiated IV—Procedure on the ground of misuse of powers, but also as being contrary to the Staff The procedure followed the normal Regulations and the principles laid course.

down by the Court in Rapponi v EEC, By order of 21 July 1964, the Second Bernusset v EEC and De Pascale v Chamber of the Court decided to join EEC. the two cases for the purposes of pro­ The defendant disputes—as a subsidiary cedure and judgment. matter in relation to the questions of Upon hearing the report of the Judge- admissibility—that the said submissions Rapporteur and the opinion of the are well founded, and in this connexion Advocate-General, the Second Chamber invokes the arguments summarized of the Court decided not to make any above in relation to Case 12/64. preparatory inquiry.

Grounds of judgment

With regard to Case 12/64

On admissibility

Under the terms of Article 38 (1) (c) of the Rules of Procedure, the applica­ tion shall contain a brief statement of the grounds on which the application is based; Article 42 (2) of the same Rules forbids the raising of a fresh issue 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 written procedure.

In this case the defendant in its statement of defence put forward the argu­ ment that the appointing authority is, pursuant to Article 29 (1) (b) of the Staff Regulations, bound to consider whether to hold competitions internal to the institution, and in this connexion has a discretionary power of appraisal.

In support of his submission, the applicant puts forward the opposite argu­ ment, namely that the appointing authority is always bound to organize such a competition when the vacant posts cannot be filled through the recruitment procedure by means of promotion or transfer. It must therefore be concluded that the issue in question is based on matters of law which came to light in the course of the written procedure, and that it is admissible under Article 42 (2) of the Rules of Procedure.

On the substance of the case

With regard to the submission of misuse of powers

The applicant accuses the Commission of misuse of powers against him, in that in this case the recruitment procedure followed is only to be accounted for by the intention to engage an official of a given nationality for the vacant post.

With regard to the submission of infringement of Articles 25 and 45 of the Staff Regulations

The applicant claims that the decisions of 26 February 1964 were based on incorrect grounds and infringe Article 25 of the Staff Regulations.

He also alleges that Article 45 of the Staff Regulations was infringed in that, prior to adopting the decision not to promote him to the vacant post, the Commission did not undertake a consideration of the comparative merits of each candidate, in accordance with the said Article, in particular by consulting their personal files.

In this case it is established that, having considered filling the vacant post by means of promotion, the Commission decided that there was no need for it to employ that means of recruitment.

Since any possibility of promotion was thus removed from the outset, Article 45 did not apply.

The applicant is wrong in considering that the decision not to fill the vacant post by means of promotion required a statement of reasons.

LEY v COMMISSION

In support of this ground of complaint he alleges that, although the said Article allows the appointing authority to consider whether the vacant posts should be filled by means of promotion or transfer, it renders obligatory, however, the holding of a competition internal to the institution, if no pro­ motion or transfer can be decided upon.

This interpretation meets with the difficulty that Article 29 (1) (b), just like Article 29 (1) (a), only requires the said authority to consider 'whether' to adopt the measures in question.

The use of the term 'whether' clearly indicates that the appointing authority is not bound absolutely to adopt these said measures, but merely to consider in each case whether they are capable of resulting in the appointment of an official of the highest standard of ability, efficiency and integrity. In so con­ sidering, the appointing authority must take into account both the particular requirements of the post to be filled, viewed within the general framework of the departments, and the available officials.

The Commission was therefore not bound to hold an internal competition.

For these reasons, it must be concluded that the Commission has not in this case infringed Article 29 (1) of the Staff Regulations and that the present submission is therefore unfounded.

JUDGMENT OF 31. 3. 1965 — JOINED CASES 12 AND 29/64

With regard to Case 29/64

The applicant made the present application with the sole aim of raising an issue which, in Case 12/64, was raised for the first time in the reply and might thereby be considered inadmissible.

The two applications relate to the same decisions and contain the same conclusions.

The applicant himself describes his application as having been made 'as a precaution' or by way of amendment to the earlier application.

As the alleged issue was considered to be admissible within the context of Application 12/64, the present application has become pointless.

Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties; Upon hearing the opinion of the Advocate-General; Having regard to Article 179 of the Treaty establishing the European Economic Community; Having regard to Articles 4, 25, 29, 45, 90 and 91 of the Staff Regulations; Having regard to the Protocol on the Statute of the Court of Justice of the European Economic Community; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, especially Articles 69, 70 and 86 (1);

LEY v COMMISSION

THE COURT (Second Chamber)

hereby:

I. Dismisses Application 12/64 as being unfounded;

2. Dismisses Application 29/64 as being inadmissible;

DELIVERED ON 4 FEBRUARY 19651

Mr President, whether to promote or to transfer staff, Members of the Court, and whether to hold an internal com­ petition, and also to consider requests Applications 12 and 29/64 which have for transfer by officials of other in­ been brought before you by Mr Ley, stitutions. That Article also provides a Principal Administrator with the for open competitions which may take Commission of the EEC, not only pose different forms, and even for recourse delicate problems of admissibility and to be had to a recruitment procedure procedure, but also require you to other than competition for the selection resolve the interpretation and applica­ of officials in Grades A1 and A2 and tion of various articles of the Staff in exceptional cases for posts requiring Regulations of the EEC with regard special qualifications. to the detailed rules on recruitment and All this emphasizes the fact that filling promotion. a vacant post is a complex operation Under the terms of Article 4 of these which commences with the decision to Regulations, vacant posts in an institu­ fill the vacant post and ends with the tion shall be notified to the Staff of decision appointing its new occupant. that institution once the appointing Within the bounds of this procedure authority decides that the vacancy is to are interposed the different steps which be filled. To this end, Article 29 pro­ I have indicated, the various procedures vides chat that authority shall consider employed to select the holder of the 1 -Translated from the French.