C-9/76
ECLI:EU:C:1976:129
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JUDGMENT OF THE COURT (SECOND CHAMBER) 29 SEPTEMBER 1976 1
Carmelo Morello
v Commission of the European Communities
Case 9/76
Summary
Officials — Appeals — Measure contested on the ground of absence of a statement of reasons upon which it is based — May be confirmed in the absence of a mistake of law or of fact — Inadmissibility (Staff Regulations of Officials, Article 91)
An applicant can have no legitimate which could certainly be confirmed in interest in the annulment on the ground substance in the absence of a mistake of of the absence or inadequacy of the law or of fact. reasons on which it is based of a decision
In Case 9/76
Carmelo Morello, an official of the Commission of the European Communities, residing in Brussels, represented by Marcel Grégoire and Edmond Lebrun, Advocates at the Brussels Bar, with an address for service in Luxembourg at the Chambers of Tony Biever, 83, boulevard Grande-Duchesse Charlotte,
applicant, v
COMMISSION OF THE EUROPEAN COMMUNITIES, represented by its Legal Adviser, Thomas F. Cusack, acting as Agent, assisted by Alain van Solinge, Member of the Legal Service of the Commission, with an address for service in Luxembourg at the offices of its Legal Adviser, Mario Cervino, Bâtiment CFL, place de la Gare, defendant,
Application for the annulment of the decision of the Selection Board for certain internal competitions not to admit the applicant to the list of
1 — Language of the Case: French.
JUDGMENT OF 29.9.1976 - CASE 9/76
candidates and, consequently, for the annulment of those competitions and the appointments made as a result of them,
THE COURT (Second Chamber)
composed of: H. Kutscher, President of Chamber, P. Pescatore and M. Sørensen, Judges,
Advocate-General: H. Mayras Registrar: A. Van Houtte
gives the following
JUDGMENT
Facts
The facts of the case, the procedure and 'Carrying out, within general the submissions and arguments of the guidelines, advisory duties relating in parties may be summarized as follows: particular to: the enforcement of the security rules and the drawing up of the proposals and measures necessary to provide I — Facts and written procedure the security standards indispensable for the proper functioning of the 1. On 13 August 1975, the applicant, Commission, its services and an Italian national and an official in installations and for the protection of Grade A6 in a post in the its staff, property and documents and Directorate-General for Competition information; submitted his application for Internal — candidates must show, inter alia, Competitions based on qualifications and 'extensive experience relevant to the oral tests Nos COM/668/74 and post, preferably acquired in a COM/669/74 which concerned two government or international service.' vacant posts in career bracket A 5/A 4 in the Security Office of the Commission in The form used by the applicant for his Brussels. According to the notices of application contained a section entitled competition: 'Previous Posts including those with the — the duties entailed in these posts European Communities in which the were defined as follows: applicant set out the following details:
MORELLO v COMMISSION
Name of post and employer from to Nature of work
Administrator in an agri1.1.1962 31.10.1965 Administration, finance, cultural undertaking and in supervision with the post agricultural cooperatives of of director Mr Morello Orazio
The ministry of the Interior 11.7.1966 31.1.1973 Administration, legal review, — Clerk to the commune notarial duties, legal adviser to the administration of the commune. Financial control. Head of Personnel.
Administrator with the EEC 1.2.1973 Inspection of undertakings with inspection duties Dicarried out in application rectorate-General for Comof Articles 85 and 86 of the petition. Directorate of inTreaty spection. Inspection Div ision.
By a letter of 3 November 1975, the 1. Annul the decision of the Selection Head of the Recruitment, Nominations Board for Internal Competitions Nos and Promotions Division informed the COM/668/74 and COM/669/74 not to applicant that after deliberation the admit the applicant to the said Selection Board for the competitions had competitions; decided that he could not be admitted to 2. Annul Competitions Nos COM/ the competitions. 668/74 and COM/669/74 and the appointments made as a result of On 29 January 1976 the applicant those competitions; lodged the present application. 3. Order the defendant to pay the costs.
By letter of 12 February 1976 the same The Commission contends in its defence Head of Division informed the applicant that the Court should:
that 'having regard (to the present — as regards the first conclusion: rule application)', in the terms of the report of that it is inadmissible and in any case the Selection Board the contested unfounded; decision is based 'in particular (on the) — as regards the second conclusion: rule lack of extensive experience relevant to that it is unfounded; the post preferably acquired in a — order the applicant to pay the costs. government or international service'. In its rejoinder it states that it withdraws 2. Upon hearing the report of the its conclusions concerning admissibility. Judge-Rapporteur and the views of the Advocate-General, the Court (Second Chamber) decided to open the oral III — Submissions and argu proceedings without any preparatory ments of the parties put inquiry. forward in the course of the written procedure
II — Conclusions of the parties 1. First submission: Infringement of Article 25 of the Staff Regulations of The applicant claims that the Court Officials and of Article 5 of Annex III should: in that the letter of 3 November 1975
JUDGMENT OF 29.9.1976 — CASE 9/76
does not state the reason for which The Commission states that it is evident the jury decided not to accept the from the letter of 12 February 1976 that application of the applicant the Selection Board has stated the reasons on which the contested decision A — Admissibility was based and that the submission is therefore unfounded. In its defence, the Commission raises two objections of inadmissibility in respect of The applicant replies that it is evident this submission based respectively: that the submission is well founded alone — on the tact that the applicant, from the fact that 'the contents of a contrary to the requirement set out in decision are legally, in respect of the Article 91 (2) of the Staff Regulations person to whom it is addressed, those of Officials has not submitted a which appear from the notification' with complaint to the appointing authority the result that, in the present case, the before lodging this application before contested decision is deemed not to state the Court of Justice; the reasons on which it is based. — on the tact that the applicant no longer has any interest in pressing If the Court were not to accept this view the submission as the reasons on the reasons which were subsequently which the Selection Board relied were communicated to the applicant communicated to him in the letter of nevertheless do not satisfy the 12 February 1976. requirements laid down by law.
The Selection Board merely repeated the text The parties discuss these objections at of the competition notice without length in the defence and the reply. In making any reference to the individual its rejoinder, the Commission states situation of the applicant. Its report, however that it withdraws the objections. which the applicant annexes to his reply, contains no comparative analysis at all of B — The substance of the case the candidates' files of the applicant and the other officials excluded from the tests The applicant states that Article 25 of on the one hand and on the other, those the Staff Regulations of Officials provides of the applicants who were admitted to that 'Any decision adversely affecting an the competition. official shall state the reasons on which it
is based'. Furthermore the Court of The Commission replies that the first Justice has ruled that the first stage of argument raised by the applicant would the tasks of a Selection Board entails deny the administration the possibility of 'particularly where the competition is correcting any administrative, drafting or based on formal qualifications, . . . the typing error. The fact that the reasons for matching of the qualifications offered by a decision are communicated after the the candidates against the qualifications communication of the substance of the required by the competition notice'; the decision does not adversely affect the qualifications 'must be matched on the official provided that the reasons were in basis of objective facts which are fact formulated by the author of the moreover known to each candidate in his decision at the time of making the own case' and the results must 'be decision. In the present case the supported by sufficiently clear reasons' applicant's demands are satisfied by the (Judgment of the Court of 15 March communication contained in the letter of 1973, Case 37/72, Marcato v 12 February 1976; in these circumstances Commission [1973] ECR 361 at page 369 it is evident from the case-law of the and Judgment of the Court of 4 Court of Justice that the submission is December 1975, Case 31/75, Costacurta unfounded (Judgment of the Court of 12 v Commission [1975] ECR 1571). December 1967, Case 15/67, Bauer v
MORELLO v COMMISSION
Commission [1967] ECR 397; Judgment — is responsible for carrying out of the Court of 30 October 1969, Case police duties assigned to the 33/68, Rittweger v Commission [1969] communes including the ECR 393). maintenance of public order and public security within the If it becomes evident from the territory covered by the application that the person concerned commune; has not acquired the necessary — as such, manages the members of professional experience it is sufficient, for the municipal police force who the purposes of a statement of reasons, are also responsible for criminal for the Selection Board to repeat the investigation; wording of the competition notice. — has to work with the mayor in Finally it is clear from the passages from preparing the drafting on the one the judgment in the Costacurta case hand, of police measures referred to by the applicant that the necessary for the maintenance of Selection Board was not obliged to public order, the safety of the undertake a comparative analysis of the inhabitants and the safeguard of candidates' files. their property and, on the other, in emergencies, of orders for the 2. Second submission: Infringement of protection of public safety and Article 25 of the Staff Regulations of public health; Officials and of Article 5 of Annex III — is responsible tor the keeping of thereto in that the contested decision all the documents of the is based on incorrect factual commune. considerations This list of tasks contains the
The applicant states that, contrary to the components of the duties described opinion of the Selection Board, he in the competition notice in possesses the necessary professional question. experience. In support of this statement — The same applies to the duties at he repeats the information given in his present performed by the applicant in the Commission which entail in application and set out above, adding that the staff which he had managed as particular access to all books and clerk to the commune included the documents of undertakings (Article municipal police force. 14 of Regulation No 17 of the Council) and the duty to protect The Commission states that comparison these documents so that no disclosure of the description of the duties in is possible. question with the qualifications stated in the application clearly shows that the The Commission replies that the applicant had not acquired 'extensive applicant has stated nowhere in his experience relevant to the post'. application that he has carried out police duties. It is difficult to regard this The applicant replies that this laconic omission as the result of an oversight. In statement is not sufficient to refute the fact the applicant was well aware of the submission. Moreover it is incorrect: importance of such activity in relation to — by virtue of certain provisions of the conditions set out in the competition Italian law which are specified by the notice.
applicant and which he states that he is ready to produce if the Court so The experience acquired in the wishes, the clerk to the commune, an Directorate-General for Competition is official who, is responsible through in no way comparable to the drawing up his office through the hierarchy to and application of rules relating to the the Ministry for the Interior: security of persons and property. All
JUDGMENT OF 29.9.1976 — CASE 9/76
officials of the Communities are under a police and security duties involved in his duty of professional secrecy. work. The applicant offers to give evidence of this by calling the Director of the Security Office as a witness. IV — Oral procedure Furthermore one of the members of the
The parties presented oral argument at Selection Board was of Italian nationality and must have known of the nature of the hearing on 1 July 1976. At this hearing they stated the following in the duties in question. particular: Finally according to the very wording of the competition notice the Selection The applicant claims that the reasons on Board was empowered to undertake, by which the decision of the Selection means of an interview with the Board for the competition were based, as candidates, an examination of the communicated to the applicant in the diplomas and other documents relating letter of 12 February 1976, do not enable to qualifications and the statements of the Court to review the legality of the the candidates concerning the decision. Indeed it is not known whether qualifications which they claimed. the Selection Board considered that the duties of clerk to the commune in Italy The Commission describes in detail the do not include security duties or whether qualifications of the three candidates it was of the opinion that although they who were admitted to the competition include such duties they do not and emphasizes that they were clearly constitute the required experience. superior to those of the applicant. The Selection Board was aware of the It states that the Italian communes in fact that the post included such tasks, as which the applicant had performed the in August 1975 the applicant had an duties in question were very small, the interview with the Chairman of the number of their inhabitants ranging from Selection Board who was also Director of 824 to 5 371. the Security Office of the Commission, in the course of which the applicant The Advocate-General delivered his stated in detail the duties which he had opinion at the hearing on 16 September carried out in Italy, in particular the 1976.
Law
1 The application is for the annulment of the decision of the Selection Board for Internal Competitions Nos COM/668/74 and COM/669/74 of the Commission not to admit the applicant to these competitions and, consequently, for the annulment of the competitions themselves and the appointments made as a result of those competitions.
2 For this purpose the applicant relies on two arguments, namely first the absence or at least the inadequacy of the reasons on which the decision was
MORELLO v COMMISSION
based and secondly the fact that the contested decision is based on incorrect assessments.
3 As the two arguments are closely linked, they may best be examined together.
4 According to the notices of the competitions in question the competitions concerned two vacant posts in career bracket A 5/A 4 in the Security Office of the Commission in Brussels which entailed, in particular, duties relating to the enforcement of the security rules and the drawing up of the necessary proposals and measures in this connexion; the candidates therefore had to possess, inter alia, 'extensive experience relevant' to those posts.
5 By letter of 3 November 1975, the Administration informed the applicant that the Selection Board had decided not to admit him to the competitions.
6 The Commission informed the applicant that the contested decision of the Selection Board was based 'in particular' on the consideration that the applicant did not fulfil this requirement only by a letter of 12 February 1976, in other words, after the application had been lodged. The applicant contests this statement by arguing that, as he set out in his application, from 1966 to 1973 he had performed the duties of clerk to the commune in certain Italian communes, which he does not deny were very small, and since then, while working for the Commission, those of administrator responsible for inspection of undertakings in the Member States for the purpose of the application of Articles 85 and 86 of the EEC Treaty.
7 The applicant argues that the tasks of clerks to the commune under Italian law include police duties and responsibility for keeping the documents of the commune while the work which he performs at the Commission entails access to all the books and documents of undertakings and the duty to protect these documents so that no disclosure is possible.
8 The competition notices laid down very specific criteria in relation to qualifications resulting both from the description of the duties entailed by the posts put up for competition and the requirement of 'extensive experience' in this particular field.
JUDGMENT OF 29.9.1976 — CASE 9/76
9 Owing to these requirements it appears evident that, in view of the duties which the applicant had previously performed in the national administration and those which he performs at present in the service of the Commission, he is not qualified to carry out the duties involved in the posts in question.
10 Consequently by excluding the applicant from the competitions the Selection Board did not exceed the discretion conferred on it by the competition notices.
11 In these circumstances the applicant can have no legitimate interest in obtaining the annulment, on the ground of the absence or inadequacy of the reasons on which it is based of a decision which could certainly be confirmed in substance, in the absence of a mistake of law or of fact, by a new Selection Board if it were to be appointed as a result of such an annulment.
12 The application must be rejected as unfounded.
Costs
13 The applicant has failed in his submissions.
14 Under Article 69 (2) of the Rules of Procedure the unsuccessful party is to be ordered to pay the costs if they have been asked for in the successful party's pleading.
15 However, under Article 70 of the Rules of Procedure, in proceedings by servants of the Communities, the institutions are to bear their own costs.
On those grounds,
THE COURT (Second Chamber)
hereby:
1. Rejects the application as unfounded;
MORELLO v COMMISSION
2. Orders each party to bear its own costs.
Kutscher Pescatore Sørensen
Delivered in open court in Luxembourg on 29 September 1976.
A. Van Houtte H. Kutscher
Registrar President of the Second Chamber
OPINION OF MR ADVOCATE-GENERAL MAYRAS DELIVERED ON 16 SEPTEMBER 1976 1
Mr President, The applicant submitted his application Members of the Court, for these two posts on 13 August 1975 and, curiously, the details relating to the Mr Carmelo Morello entered the service application are contained in a form dated of the Commission of the European 15 March 1973 thus prior to the date on Communities on 1 February 1973 as an which the applicant officially made his administrator in career bracket A 7/A 6 application. in the Directorate-General for Com petition with particular responsibility for By a letter of 3 November 1975 he was inquiries within undertakings. informed that the Selection Board had He was placed in Grade A6, Step 2 been unable to allow him to take part in in view of the studies which he had these competitions. On 29 January 1976 completed and of his professional the applicant lodged the present experience. application for the annulment of this refusal to admit him to the competition Following a vacancy notice for two posts and, consequently, for the annulment of in the Security Office in Brussels the competition procedures and the two advertised in the Staff Courier of 21 appointments made as a result of them. January 1974, a notice of a competition based on qualifications and oral tests for In support of his application he first these two posts was, more than 18 relies on the argument that the contested months later, published in the Staff decision did not state the reasons on Courier on 4 August 1975 and displayed which it is based. In the alternative he in the usual places. It was stated that argues that if the Selection Board applications submitted following the thought that his qualifications were vacancy notice did not need to be insufficient and inadequate with regard renewed. to the requirements stated in the notice
I — Translated from the French.