C-45/70

JUDGMENT OF 26. 5. 1971 — JOINED CASES 45 AND 49/70

In Joined Cases 45 and 49/70

FRITZ-AUGUST BODE, an official of the Commission of the European Communities, residing at 21 rue Fort-Elisabeth, Luxembourg, represented by Alex Bonn, Advocate of the Luxembourg Bar, residing at 22 Côte-d'Eich, Luxembourg, with an address for service at the Chambers of the said Alex Bonn, applicant, v

COMMISSION OF THE EUROPEAN COMMUNITIES, represented by its Legal Adviser, Jürgen Utermann, acting as Agent, with an address for service at the offices of Émile Reuter, Legal Adviser of the Commission, 4 boulevard Royal, Luxembourg, defendant,

Application for the annulment of:

— Vacancy Notice No COM/603, — the decision rejecting the applicant's application for the post which was declared vacant, — the rejection of the complaint submitted by the applicant against that decision, — the decision appointing Mr Heinrich to the post in question,

I — Summary of facts and 1. The applicant, who was born in 1909, procedure entered the service of the High Author­ ity in 1956. He was assigned to the The facts which form the basis of the Press and Information Department of action and the course of the procedure that institution and performed his duties may be summarized as follows: at the Communities' Information Office

DEFRENNE v BELGIUM

. . in excep to the Safety in the Coal and Steel tional cases, for recruitment to posts Industry Division in the Directorate- which require special qualifications'. General for Social Affairs. He was classi Accordingly, it appointed Mr Egon fied in Grade A4. Heinrich who was at that time attaché 2. The Commission published Vacancy for European political questions to a Notice No COM/603 in the Staff group in the German Bundestag. By Courier of 16 January 1969 relating to letter of 19 February 1970, it informed a post in Career Bracket A5-A4 in the the applicant that it had been unable Directorate-General for Press and to consider his application. Information at the Information Office of 3. On 15 April 1970 the applicant sub the Communities in Bonn. The 'descrip mitted a complaint to the President of tion of duties' read as follows: the Commission 'against the communica 'Principal administrator tion .

This letter experience of information work; stated in particular that the Commission experience of drafting reports and had decided on 15 October 1969 not to press releases.' take into consideration the applicant's The applicant and five other officials application which was submitted during applied for this post within the context the stage laid down in Article 29(1)(a) of the procedure laid down in Article of the Staff Regulations of Officials 29(1)(a) of the Staff Regulations of because he did not possess the necessary Officials. qualifications for the duties attaching But the Commission, which considered to the post to be filled since, for more that none of the candidates fulfilled the than five years, he had not performed required conditions, decided not to hold any duties in the field of information.

Moreover, it stated that the procedure 4. 'declare illegal or at least incom­ laid down in Article 29(1)(c) of the Staff plete and annul Vacancy Notice Regulations of Officials had produced COM/603 as it was published in no results. the Staff Courier of 16 January 4. The applications now before the 1969'; Court were lodged on 5 August 1970 in 5. order the defendant to bear the Case 45/70 and on 7 August 1970 in costs. Case 49/70. In Case 49/70 the applicant puts for­ On 15 October 1970, the Second ward the same conclusions but requests Chamber of the Court ordered the two under head 1 the annulment of the cases to be joined for the purposes of decision of 22 July 1970 which express­ the oral procedure and the judgment. ly rejected his complaint. After hearing the report of the Judge- In both cases the defendant contends Rapporteur and the views of the Ad­ that the applications should be dis­ vocate-General, the Second Chamber missed as inadmissible and that the decided to open the oral procedure applicant should be ordered to bear the without a preparatory inquiry. However costs. it called on the parties to 'develop in the oral proceedings, in their observa­ tions on the substance of the case their III — Submissions and argu­ respective arguments according to which ments of the parties the applicant performed or did not per­ form duties in the field of information The submissions and arguments of the from 1964 to 1968' and 'where appro­ parties may be summarized as follows: priate, to produce any relevant docu­ ments in this connexion'. The parties 1. Admissibility complied with this request; the appli­ A — Conclusions formulated under cant in particular submitted documents heads 1 to 3 in Case 45/70 relating to his work during that period. The parties presented oral argument at The Commission states that the request the hearing on 11 March 1971. formulated under head 1 is inadmissible The Advocate-General delivered his because the applicant's complaint was opinion at the hearing on 28 April already inadmissible. The rejection of a 1971. candidate's application during the pro­ motion/transfer stage (Article 29(1)(a) of the Staff Regulations of Officials) II — Conclusions of the par­ may not be contested separately but ties only when an application is lodged within the prescribed period against the In Case 45/70 the applicant claims appointment of another candidate. essentially that the Court should: Therefore the applicant could not a —'declare void or in any case illegal... fortiori contest the communication of and annul the following measures' : 19 February 1970 on the grounds that 1. the decision rejecting the appli­ there was delay in sending it and that cant's complaint of 15 April 1970 no reasons for it were given. The appli­ which follows from the Com­ cant may not rely upon the case-law mission's failure to reply within of the Court whereby the Court may two months; also review the legality of the various 2. the communication of 19 February measures which preceded the appoint­ 1970; ment which is being contested. This 3. the appointment of Mr Heinrich; case-law relates to individual measures — moreover: involved in competition procedure

whilst the question which is at issue is legally protected in the annulment of here had not yet been settled by the the vacancy notice. He maintains that Court. The requests formulated under the Commission was under an obliga head 2 and 3 are out of time. The tion to hold the open competition pro complaint of 15 April 1970 could not vided for at the end of the first sub preserve the period for instituting pro paragraph of Article 29(1) since the ceedings because, in contrast to the conditions laid down in Article 29(2) of application, it did not request either the Staff Regulations of Officials were the annulment of the rejection of the not fulfilled.

The con C — Case 49/70 tents of the complaint show plainly that it also contests Mr Heinrich's appoint The Commission considers that this ment, though with the necessary application is completely inadmissible. reservation. Finally, it emerges from the The Court of Justice has decided that letter of the Commission of 22 July an express rejection which follows a 1970 that it fully understood the con rejection by implication may not give tents of the complaint at that time and rise to a new right of action when, as that it did not consider the complaint in this case, the legal and factual situa inadmissible. tion has not altered in the meantime. A complaint preserves the period for The applicant replies that it was neces instituting proceedings when in sub sary to make two applications since stance it has the same contents as any the Commission only gave a decision application which may be made subse on his complaint after the period laid quently. No objection can be raised if down in Article 91 of the Staff Regula it differs from the application in its tions of Officials had expired.

munication of 19 February 1970 is in B — Request formulated under head 4 breach of Article 25 of the Staff in Case 45/70 Regulations of Officials because it was The Commission considers it doubtful not sent 'at once'. It follows from the that the applicant has an interest which letter of the President of the Com-

mission of 22 July 1970 that it had for nearly twenty years as a press already been decided on 15 October attaché, a free-lance journalist, editor 1969 to reject the applicant's applica and, finally, as an official employed tion. Moreover, the communication is in the Press and Information Depart out of time even if the period had only ment of the Communities; started to run from the appointment of —that he acquired special qualifications Mr Heinrich. The communication is in the fields of activity mentioned also in breach of; Article 25 because no in Vacancy Notice COM/603 as an reasons for it were given, although it official in the Information Office in contained a decision adversely affecting Bonn from 1956 to 1963; the applicant. — that as a member of the Documenta The Commission replies that any delay tion Division in the Directorate- which there may have been cannot affect General for Labour Questions of the the legality of the rejection or of the High Authority from 1964 to 1968,

These duties are Staff Regulations of Officials were satis absolutely identical to those of an fied. The post in question did not information office. Even if the Com require 'special qualifications' within mission's statement were correct, .the the meaning of that provision; a fortiori applicant's qualifications are, moreover, the appointment to that post did not proved by his previous work. constitute an 'exceptional case'. The But, contrary to the wish of the Head post had not been newly created; it had of the Directorate-General for Press and previously been occupied by members Information, the Commission decided of the staff of the Communities. to appoint to the post in question a If this had really been an 'exceptional candidate from outside the Communities case', the Commission would have been under pressure from national bodies.

BODE v COMMISSION

The apointment procedure was proper­ ed by the duties relating to the post ly applied. In the promotion/transfer which had been declared vacant. In so stage, the applications of six candidates doing, it particularly took into con­ including the applicant were examined sideration, and rightly so, that the and rejected because they did not fulfil duties which the applicant had perform­ all the required conditions. Besides, ed from 1964 to 1968 were limited to after examining them it decided not to social questions in the field covered by hold an internal competition because the ECSC and therefore to a tightly there were no applications which could restricted sector. Moreover, the rejection be accepted; according to the case-law of the applicant's application was in of the Court, the Commission was not addition caused by other considerations even obliged to carry out that pro­ which cannot be put in writing, such cedure. Finally, the procedure laid down as the age of the applicant and at the in Article 29(1)(c), which was properly same time the desire to appoint to the applied, produced no results since no post which had been declared vacant candidate came forward. This is ap­ a candidate who might be expected to parent from several documents which it occupy the post for a relatively long produces and which recount in detail time.

JUDGMENT OF 26. 5. 1971 — JOINED CASES 45 AND 49/70

tion. As the Commission did not pro within the institution. The official perly apply the appointment procedure who was approached for this pur which is laid down in the first place, pose refused the offer which was it could not hold an open competition made to him and the applicant (end of first paragraph of Article 29(1) learnt from officials who were friends of the Staff Regulations of Officials). of his that the Commission was con Accordingly, it could not have recourse sidering appointing to this post a to the procedure laid down in Article certain outsider. 29(2) either.

tions'. The decision that such knowledge Trade Union for European Officials, is required must be taken on the basis including Mr Ludovici, put forward of the conditions laid down in the their objections in this connexion vacancy notice. Vacancy Notice to a member of the European Parlia COM/603 did not mention special ment during an interview by the knowledge which could not be found newspaper 'Welt der Arbeit', a among the officials of the Communities, photocopy of which the applicant since it would be difficult for an external has submitted. Subsequently, Mr candidate to fulfil one of the required Salconi, a member of the Executive conditions which was 'thorough know Committee made approaches to the

BODE v COMMISSION

Grounds of judgment

1 The applications are for the annulment:

— of the communication of 19 February 1970 whereby the defendant informed the applicant that his application for the post which was the subject of Vacancy Notice COM/603 had been rejected;

— of the appointment of Mr Heinrich to the said post;

— of the abovementioned vacancy notice.

2 Moreover, the applicant requests the Court to annul the decisions rejecting by implication (Application 45/70) and afterwards expressly (Application

5 In the present case, according to its heading, the complaint of 15 April 1970 was directed 'against the communication ... of 19 February 1970 ... and against the rejection of my application'. Although this complaint does not expressly request that the appointment of Mr Heinrich be revoked it objects, however, to the defendant's using the recruitment procedure laid down in Article 29(2) of the Staff Regulations of Officials and expresses 'the hope that my complaint will enable a solution to be found whereby the Commission will provide overwhelming proof that it is possible to have a staff policy which is just because it is independent'. The applicant's action must therefore be understood as contesting both the refusal to accept his application and consequently, the appointment of his fellow applicant. 6 Therefore the conclusions in the present case must be deemed to have been lodged within the prescribed period. 7 B — As for the conclusions for the annulment of the rejection by implication of the abovementioned complaint, the defendant raises the objection that they are inadmissible on the ground that this complaint was itself inadmissible. It claims that in fact a decision rejecting an application submitted in the promotion/transfer stage (Article 29(1)(a) of the Staff Regulations of Officials) may not be contested separately but only by means of a complaint or an application directed against the final decision of appointment. A fortiori, the applicant was not entitled to submit a complaint to the appointing authority in which he only objected to the fact that there had been some delay in send­ ing the communication of 19 February 1970 and that it did not state the reasons on which it was based.

12 As regards the request for the annulment of the decision contained in the defendant's letter of 22 July 1970, this decision confirms the decision reject­ ing by implication the applicant's complaint of 15 April 1970, which decision was the subject-matter of Application 45/70. As no new element of law or of fact had arisen between the rejection by implication and the express rejection, the applicant cannot establish any legal interest in requesting the annulment of this decision which was by way of confirmation and could not affect him adversely. In fact, under the provisions of the second sentence of the first paragraph of Article 34 of the ECSC Treaty, the first paragraph of Article 176 of the EEC Treaty and the first paragraph of Article 149 of the EAEC Treaty, where a measure of an institution has been declared void by the Court that institution 'shall be required to take the necessary measures to comply with' the judgment declaring that the measure is void. It follows that, when the Court annuls a decision, the author of that decision is under an obligation to revoke or at least not to apply a subsequent decision which simply confirms the first one.

13 For all these reasons, Application 49/70 is inadmissible.

II — The substance of Application 45/70

14 1. The applicant requests the annulment of the decisions rejecting his application and appointing Mr Heinrich, on the ground in particular that the

JUDGMENT OF 26. 5. 1971 — JOINED CASES 45 AND 49/70

defendant infringed Article 29 of the Staff Regulations of Officials by making an appointment according to the procedure laid down in the second paragraph of that article when the conditions for the application of that paragraph were not satisfied.

17 Although the decision not to accept the applicant's application is separate in law from those which relate to the recourse to the procedure laid down in Article 29(2) of the Staff Regulations and the appointment of Mr Heinrich, it cannot be considered separately, since it is possible that the latter decisions may have had an effect on the first because of the connexion created by the Commission itself between all these measures.

18 It also emerges from the file that these decisions were made on the basis of proposals which set out the reasons why it was not possible to fill the post in question by following one of the procedures referred to in Article 29(1) (a), (b) or (c) but which omitted to point out the reasons why this was an 'exceptional case' and a post 'which require(s) qualifications' so that a

BODE v COMMISSION

decision had to be taken not to hold the competition prescribed at the end of the first sentence of Article 29(1).

19 The abovementioned documents therefore show that the decision to fill the post in question by a method other than competition fails to give the reasons for this, so that it does not emerge from the decision of the appoint­ ing authority whether the latter considered as carefully as it was obliged to do whether the conditions for the application of Article 29(2) were in fact fulfilled. Therefore, since the procedure which led to the appointment of Mr Heinrich was illegal, this decision and consequently the decisions reject­ ing the applicant's application and his complaint of 15 April 1970 must be annulled without any need to consider the other complaints raised by the applicant in respect of these measures.

OPINION OF MR DUTHEILLET DE LAMOTHE — JOINED CASES 45 AND 49/70

THE COURT (Second Chamber)

hereby:

I. Annuls the decisions rejecting the applicant's application for the post which was the subject of Vacancy Notice COM/603, appoint­ ing Mr Heinrich to that post and rejecting the applicant's complaint of 15 April 1970;

2. Dismisses application 49/70 as inadmissible;

3. Orders the defendant to bear all the costs of the action.

Mr. President, bourg, then, having spent several months Members of the Court, without any clearly defined post, he was assigned, again in Luxembourg, Mr Bode is an official of German first to the Documentation Department nationality who entered the service of of the Directorate-General for Labour, the High Authority of the ECSC in Reorganization and Redeployment Prob­ 1956. lems, then from 11 June 1969 to the From 1956 to 1963 he was assigned Safety Problems in the Coal and Steel to the Press and Information Depart­ Industry Division in the Directorate- ment of the High Authority, then to General for Social Affairs. He is an a body called the Communities' Infor­ official classified in Grade A 4. mation Office in Bonn which is in fact In 1969 a vacancy notice relating to a a branch of the Press and Information post in Grade A 4 or A 5 at the Department intended primarily on the Communities' Information Office in one hand to supply to the German Bonn appeared, a description of which press any information for which it might I shall give presently, which seemed to ask about the policy followed by the the applicant quite similar to the post Community authorities and on the other which he had formerly held. to inform the latter about the chief As he wished to return to Bonn, he features of political, economic and social submitted his application for this post life in the Federal Republic of Ger­ at the same time as five other officials. many. The Commission considered that none In 1963 he was transferred to Luxem- of these applicants fulfilled the required 1 — Translated from the French.