C-11/65

JUDGMENT OF THE COURT (SECOND CHAMBER) <ap note>1</ap note> 14 DECEMBER 1965­

Domenico Morina

v European Parliament

Case 11­/65

Summary

/. Officials — Recruitment — Competition — Appeal against a decision of appoint­ ment — Admissibility of conclusions seeking the annulment of a competition (Staff Regulations of officials of the European Communities, Articles 29 and 91)

In Case 11/65

DOMENICO MORINA , Doctor of Law, an official of the European Parliament, residing at 4 rue Théodore-Eberhard, Luxembourg, represented and assisted

by Camille Linden of the Luxembourg Bar, with an address for service in Luxembourg at the Chambers of his said counsel, 1 rue Schiller,

applicant,

v

EUROPEAN PARLIAMENT , represented by its Secretary-General, Hans Robert Nord, acting as Agent, assisted by Alex Bonn of the Luxembourg Bar, with for in Côte­ an address service Luxembourg at the latter's Chambers, 22 d'Ei­ ch

European Parliament appointing Mrs Marie-Thérèse Louwage to Grades B5 and B4 respectively.

THE COURT (Second Chamber)

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

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

gives the following

JUDGMENT

On l June 1959 he was promoted to Grade 5. Grade C11 and in March 1962 to I — Nature of duties Grade C10 (Grades C2 and CI respec­

Staff to the Keeping up to date files applicants'

tively, according present —

Regulations of officials). and correspondence relating thereto; inte­ On 13 December 1962 he was recruitment procedures preparing —

grated under the new Staff Regulations (vacancy notices, transfers, competi­

in Grade C3, Step 2, with effect from 1 tions, examinations and tests); January 1962. By a decision of the —

of Mrs Louwage; Good, general, secondary education —

rule mat the application is well founded or experience in employment of an classifica­ and, consequently, annul the equivalent level; tion arising from Internal Competition draft­ —

methodical character and good No B 10 and the decision of die ing abilities. Secretary-General of the European Parliament resulting therefrom promot­ IV — Knowledge of languages ing Mrs Marie-Thérèse Louwage to the post of administrative assistant (career A very extensive knowledge of one of bracket B5-B4) in Grade B5, with effect the official languages of the European from 1 December 1964 and also her Communities and a good knowledge of promotion to Grade B4, with retro­

another official language. For admini­

active effect to 1 December 1964; strative reasons, a good knowledge, at order internal (competition No B 10 on least, of French is required.'

the basis of qualifications be reheld, to The he applicant submitted his application under the conditions previously laid and was informed on 2 December 1964 down and between the same candidates

sible; The defendant contends that the Court

declare it has jurisdiction enter­ should: that to

tain it; 'declare is inadimis­ that the application

in so far as is necessary, order the sible under all its different heads; lodging, by the departments of the alternatively, rule that it is unfounded; Assembly concerned, of the proof, in administra­ reject the applicant's offer of

tive documents relating to this case particular with regard to the production

which may be important in settling the of documents concerning Mrs Louwage; application, in particular those relating dismiss the application;

its that the offer of proof and 'their institutions must concern the rejoinder, made by the applicant in his reply legality of an act adversely affecting should be rejected. them, that is to say, a decision of the ap­ appointing authority prejudicing the plicant. A competition procedure can­

III — Submissions and not foe regarded as all the more such, arguments of the so as the Count has on occasions many parties dir­ asserted that only acts capable of

a specific situation can ectly affecting The application is directed against: be considered as having an adverse

(a; internal (competition No B 10; effect.

(b) The decision of 19 November 1964, 2. The defendant observes that the ap­

inas- by virtue of which Mrs Marie- plication is in principle admissible

December 1964. tions are superior to those of Mrs The submissions and arguments or the Louwage and that the illegal nature of

parties may be summarized as follows: the measure stems from the irregularity Admissibility of the competition, are not supported

1. The defendant claims first of all that by any specific submission. the application is inadmissible in so In the applicant s opinion, on the other far as it seeks the annulment of In­ hand, the fact that Mrs Louwage was

ternal Competition No B 10, as the appointed to the vacant post while pos­

applicant cannot impugn a collection sessing qualifications inferior to 'his own of but may only request measures the and that that appointment is based on

annulment of an individual measure the 'the result of a competition which is legality of which is called into ques­ criticized as being irregular clearly tion. brings out the submissions forming the The applicant points out that this ob­ basis of the application in so far as it jection is based on no criterion enabling is directed against the said appoint­

inadmissible. In any event, the present discuss the value of the applicant's

application seeks the annulment of speci­ qualifications and his offer of proof

fic inadmiss­ measures by which the vacant post should be rejected as being was awarded to Mrs Louwage, despite ible.

MORINA v PARLIAMENT

The applicant objects to this claiming appointment of Mrs Louwage to

that it cannot foe admitted that the Grade B4 was made with retroactive

officials and which applies necessarily to in fact, supposing that the Court were

the provisions of the Staff Regulations to rule in favour of the applicant, he (Article 30) instituting the Selection would not find himself classified in Board. Category B simply for that reason. The Finally the request for the applicant's Parliament would be obliged to rehold

qualifications to be examined and his the internal competition, in which event, offer of proof are in complete conform­ even if the applicant appeared better

ity with the case-law of the Court placed than Mrs Louwage in the new

(Cases 10/55, 1/56 and 27/63). list of suitable candidates drawn up by The defendant replies, on the one hand, the Selection Board, his appointment in that Article 91 of the Staff Regulations Category B would only be ensured by provides for applications for annulment a discretionary decision of the appoint­

and not applications in respect of un­ ing authority. limited jurisdiction and, on the other

The applicant maintains, on the other petition and Mrs Louwage's appoint­

hand, that his legal interest is well ment which followed are irregular. founded in this case. In fact: In support of this conclusion the ap­

—

either that appointment was made by plicant gives a detailed enumeration of

way of promotion, in which case, if his qualifications, abilities, conduct in it is ruled that the application is the service and the assessments made

well founded, the applicant would be of him in carrying out the duties with classified in Category B within which which he was entrusted, at the same category he would be eligible for time comparing them with the wording promotion, of the notice of 'the disputed competi­

his bet­ documents claims that qualifications were requested by the applicant

ter than those of Mrs Louwage and that in his application and reply.

in order to be convinced of this it is 2. The irregularity of the appointment enough to compare them with hers; but of Mrs Louwage to Grade B4 Mrs Louwage's personal file must be produced. The defendant's refusal to The applicant states that he learnt on

produce this file, even though the appli­ 5 February 1965 of Mrs Louwage's pro­

cant has voluntarily produced his own, motion to Grade B4 with retroactive

is contrary to the principle that there is effect to 1 December 1964, the date of a to the production of docu­ her to Grade B5. If right any appointment .that

reasons he was promoted in 1962'. vacant post, Mrs Louwage was classi­

As for the production of Mrs Louwage'­ s fied in Grade C1 which, at each step, personal file, the applicant's request is provides for a salary equal to 'that of

unfounded. On the one hand, the assess­ Grade B4. In order to avoid her 'finan­ ment of qualifications is within the ex­ cial demotion', it was necessary, after

clusive domain of the Selection Board appointing her to Category B, to place and, on .the other hand, the official's her in Grade 4. The Official Journal of personal file referred to in the last para­ the European Communities published

graph of Article 26 the Staff Regu­ detailed list for 1964 only of the of posts

lations is in this case quite clearly the on 1 December 1964 and it was at that applicant's file. date in fact that a post in Grade B4, Finally, with regard to the applicant's which was not then available at the

The applicant contests this, stating that, entirely at the Court's disposal as re­

if it was a question of avoiding the gards the execution of its orders. demotion' 'financial of Mrs Louwage, the Parliament could and should have IV — Procedure had recourse to a perfectly legal method, conforming to the administrative practice The procedure followed the normal

of the institutions and consisting of course.

After Judge- granting Mrs Louwage a compensatory hearing the report of the

the Ad­ personam' allowance 'ad for the six Rapporteur and the opinion of

months for which she should have vocate-General the Second Chamber of

Grade B4, the applicant maintains that the hearing on 13 October 1965. the documents so produced are incom­ The Advocate-General delivered his plete and that the decisive documents opinion at the hearing on 10 November are not before the Court. 1965.

Grounds of judgment

Admissibility

1. The defendant raises the objection of admissibility against the con­

clusions concerning Internal Competition No B 10, on the ground that the applicant cannot request the annulment of a competition, that is to say, of a collection of measures, but only of an individual act adversely affecting him.

The applicant has directed his application principally against the decision of appointment following upon the competition in dispute.

lodged.

By reason of that fact, it must be concluded that the application is without purpose in so far as it is directed against the said decision.

The decision in­ conclusions seeking the annulment of that are therefore

admissible.

3. Further, the applicant requests the annulment of the decision of the

Secretary-General of 5 February 1965 which 'rescinds and replaces'

adopted following the competition.

For all these reasons, the disputed decision or 5 February 1965 in reality constitutes the measure which, as opposed to the decision of appointment to Grade B5, put an end to the recruitment procedure set in motion by the disputed competition.

As the applicant participated in that competition, his request for the annul­

ment of that decision is therefore admissible.

4. The applicant claims finally that the Court should order Internal Com­ petition No B 10 to be the conditions previously laid down and reheld on

between the same persons who appeared in the list of suitable candidates.

The substance of the case

For the reasons set out above, the decision of 5 February 1965 constitutes

the measure by which the administrative authority put an end to the

disputed competition procedure and filled the vacant post.

That decision appointed Mrs Marie-Thérèse Louwage to Grade B4, in the career bracket of administrative assistant, in the Directorate-General of

Administration, whereas the notice of the disputed competition expressly stated that the vacant post, within the framework of that career bracket, was classified at Grade B5.

Under the terms of the first subparagraph of Article 69(2) of the Rules of

Procedure, the unsuccessful party shall be ordered to pay the costs.

As the defendant has failed in its defence, it must be ordered to pay the costs.

On those grounds,

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 the Protocol on the Statute of the Court of Justice of the European Economic Community and the Protocol on the Statute of the Court of Justice of the European Atomic Energy Community;

hereby:

Marie- 1. Annuls the decision of 5 February 1965 appointing Mrs Thérèse Louwage to Grade B4;

2. Orders the defendant to pay the costs of the action.

Strauß Dormer Monaco

Delivered in open court in Luxembourg on 14 December 1965.

A. Van Houtte W. Strauß Registrar President of the Second Chamber

of the present Grade C3, and was sub­ level in employment. In addition, candi­

sequently integrated by a decision of dates were required to have a very ex­

13 December 1962 and promoted to tensive knowledge of one of the official

Grade C1, Step 1, with effect from 1 languages of the Communities and a

March 1962. good knowledge of another official

He applied to participate in Internal language and, for administrative reasons, Competition No B 10, notice of which a good knowledge at least of French was given on 1 October 1962, to fill was required.