C-30/76

JUDGMENT OF 25. 11. 1976 — CASE 30/76

In Case 30/76

Berthold Küster, an official at the European Parliament, residing in Luxembourg, represented by Victor Biel, Advocate of the Luxembourg Bar, with an address for service in Luxembourg at the Chambers of the said Victor Biel at 18 A, rue des Glacis, applicant, v

European Parliament, represented by its Secretary-General, Hans Robert Nord, acting as Agent, assisted by Alex Bonn, Advocate of the Luxembourg Bar, with an address for service in Luxembourg at the Chambers of the said Alex Bonn, 22 Côte d'Eich, defendant,

Application for the annulment of the appointment made by the European Parliament on 15 September 1975 to till the vacancy which was the subject-matter of Internal Competition A/45.

THE COURT (First Chamber)

The facts, procedure, submissions and Berthold Küster against the European arguments of the parties may be Parliament the Court annulled the summarized as follows: decision of the European Parliament appointing Mr Gerard Kieffer to the Grade A 3 post which was the subject of I — Facts and written procedure Internal Competition A/45. The Court found that Mr Kieffer, as a temporary 1. By judgment of 10 July 1975 in Case servant not subject to a periodic report 77/74 [1975] ECR 949) brought by Mr had received fictitious marks under this

KÜSTER v PARLIAMENT

heading. The Court therefore held that The defendant contends that the Court such marking was irregular and that it should: was of such a kind as adversely to affect '— Rule that the application is the applicant. inadmissible; — Alternatively rule it to be unfounded; — Make an order as to costs in Following this judgment the Parliament made a new choice in the context of the accordance with the applicable same Internal Competition A/45 and by provisions.' decision dated 15 September 1975 appointed Mr Roger Wurth to the vacancy. III — Submissions and argu­ ments of the parties

(c) Rule that the post offered by — The marks awarded to the applicant Vacancy Notice No 892 and Internal which do not take account of the fact Competition A/45 may only be filled that he had for eight and a half by means of a fresh procedure for months filled the post of First this purpose, Secretary to a Committee. (d) Order the Parliament to bear the — The constitution of the Selection entire costs of the proceedings.' Board, which was appointed by an

JUDGMENT OF 25. 11. 1976 — CASE 30/76

authority with no powers in the procedure should be put in motion to fill matter, namely the Secretary-General. the post in question must be found to be The fact that the Bureau by decision inadmissible.

In doing person may not benefit from a judgment which does not relate to him since the this the Court gave judgment in accordance with the statement of claim candidate appointed has not contested as formulated by the applicant in his the appointment of Mr Kieffer which he conclusions and reproduced by the Court did not regard as adversely affecting him. at the commencement of the gounds of judgment. In these circumstances it is With regard more particularly to the irrelevant that the judgment was headed appointment of Mr Würth it is moreover as including the annulment of irregular by reason of the fact that it Competition A/45 as being part of the mentions in its grounds Article 45 of the

was the only temporary servant light of those referred to in his previous participating in the competition. applications, constitute an accumulation of evidence of the existence of a misuse Fourthly, it cannot be admitted that the annulment of the appointment of Mr of powers with regard to him. Kieffer could not benefit Mr Würth since the latter did not ask for it. The effect of The defendant raises first of all the an annulment by the Court of an inadmissibility of the action, for the appointment is erga omnes. Further, in appointment in question is not of such a refusing to consider all the issues in Case kind as to adversely affect the applicant. 77/74 the Court followed an established Since Mr Küster was not included in the practice with the result that it is not list of suitable candidates drawn up by possible to infer from this fact the the Selection Board in Competition slightest support for submissions which A/45, he could not in any event have have not been considered. been appointed to the vacancy with the result that he cannot in the present case have any dispute with the candidate With regard more particularly to the appointed. substance of the action the defendant makes, inter alia, the following Assuming, however, that the action is observations: admissible nevertheless the claim that — The complaints with regard to the Court should declare that a fresh Competition A/45 made in Case

77/74 were likewise made against The applicant in reply on the subject of Competition A/43 in Case 23/74 and admissibility says that since the action the Selection Board and the criteria brought against the appointment of Mr of selection which it adopted were Kieffer was judged admissible (Case the same in both competitions. The 77/74), it is difficult to see why the judgment in Case 23/74 decided that present action should by contrast be such criteria did not constitute a inadmissible. The appointment of Mr misuse of powers or an infringement Würth adversely affects the applicant in of the rights under the Staff the same way as did that of Mr Kieffer.

So long the temporary posting, both of the as the said submissions have not been facts and the law relating thereto at dealt with by the Court the the time. competition cannot be regarded as a — The complaint alleging no power on sufficient legal basis to justify the the part of the Secretary General to appointments especially as the appoint the Selection Board was appointment of Mr Kieffer is firmly made in the previous cases and connected with Competition A/45. dismissed by the Advocate-General in — It is not possible to regard the title of the context of those cases.

It is, to say the least, on 16 September 1975 of the surprising that the decision to ap proposal to appoint Mr Roger Würth point Mr Würth contains no refer (cf., Annex 1 to the defence). ence to an opinion of the Bureau. — The wording adopted by the decision — With regard to the temporary posting in question referring to Article 45 of held by the applicant which the the Staff Regulations is in accordance Selection Board did not take into with a wide-spread practice which account either in Competition A/43 until now has not given rise either to or in Competition A/45, it should not misunderstanding or argument. In be forgotten that although the brief it is not contrary to the true Selection Board was not aware of this position since a candidate who enters fact at the time of Competition A/43, a higher grade of his category is for the fact that the applicant had held practical purposes promoted. In any the temporary posting was well event the contested decision shows known at the time of Competition clearly that the appointment of Mr A/45.

JUDGMENT OF 25. 11. 1976 — CASE 30/76

The applicant concludes by insisting that question should have mentioned the there is a misuse of powers with regard to opinion expressed by the Bureau on the him as is shown by all the facts adduced information received from the President by him during the various actions he has of the European Parliament. brought against the European Parliament. Finally, it cannot be accepted that The defandant insists in its rejoinder submissions which have not been made that the appointment in question was in the context of the present action but made by the European Parliament with which have been evoked by way of strict regard for the judgment of the reference to previous cases can constitute Court, on the basis of the results of the a valid legal basis for the claims in the competition and in accordance with the present action. Such submissions cannot interests of the service. be regarded as admissible. The applicant's repeated criticisms on The defendant concludes that there is this subject involve malicious and unjustified insinuations and are not very nothing casting doubt on the legality of consistent inter se. the contested measure. The working of the Selection Board and the factual After protesting against the manner in objectives underlying this judgment rule which the applicant in his reply distorts out not only any infringement of the the meaning and scope of the statements Staff Regulations but also any misuse of by the defendant, the latter refers to its powers. defence and observes that the reply does not adduce any new factors requiring to be examined or rebutted. With regard in IV — Oral procedure particular to the title of the judgment it suffices to refer to Article 63 of the Rules Oral observations were made by the of Procedure where the matters which parties at the hearing on 14 October must be included in all judgments are set 1976.

4 Since the appointing authority has confined itself to substituting the appointment of Mr Roger Würth for that of Mr Gérard Kieffer it has, according to the applicant, disregarded its obligations under the first paragraph of Article 176 of the EEC Treaty and the first paragraph of Article 149 of the EAEC Treaty.

5 Further the applicant maintains that there are several irregularities in the appointment of Mr Roger Würth.

Admissibility

6 The defendant objects that the action is inadmissible in so far as the applicant claims that the decision in question has been taken by the European Parliament in disregard of the judgment of the Court of 10 July 1975 in Case 77/74.

7 In its opinion that judgment does not involve the annulment of Internal Competition A/45 but only of the appointment of Mr Gérard Kieffer of 14 February 1974, so that the claims in the present action are in this respect incompatible with the scope of the said judgment.

8 It cannot be contested that those to whom a judgment of the Court annulling an act of an institution is addressed are directly concerned with the way in which the institution executes the judgment.

13 According to the aforesaid judgment the applicant claimed that the Court should 'rule that the promotion which took place on the basis of Competition A/45 is irregular and illegal and accordingly annul the same'.

14 The part of the judgment headed 'Law' begins with the statement that the applicant is asking the Court 'to annul the implied rejection … and consequently to annul the appointment of Mr Gérard Kieffer …'.

15 The operative part of the judgment 'annuls the appointment of Mr Gérard Kieffer resulting from Competition A/45'.

16 It thus clearly appears that the judgment regarded the main objective of the action as the annulment of the appointment of Mr Kieffer and as concerning the competition procedure only in so far as this had led to the appointment and judgment was given accordingly.

17 Therefore the submission is unfounded and must be rejected.

18 (2) The applicant claims further that Competition A/45, which led to the contested appointment, was conducted irregularly in several respects such as to involve the annulment of that appointment.

23 The delegation of power in question involves a generally accepted division of powers within the institution.

24 In any event it is established that it was notified not only to the Directors General of the institution, the Chairman of Groups, the Secretariat and the Control Office, but also to the Staff Committee established under Article 9 of the Staff Regulations which provides that the Committee shall, inter alia, represent the interests of the staff vis-à-vis their institution and 'maintain continuous contact between the institution and the staff.

25 In view of this the contested delegation of power is legally valid without its being necessary to consider whether such delegation constitutes a measure referred to by the second paragraph of Article 110 of the Staff Regulations.

26 The applicant further maintains that the marks awarded to him by the Selection Board for the competition do not take account of the fact that he held the post of First Secretary of a Committee on a temporary basis from 1 September 1973 to 20 May 1974.

JUDGMENT OF 25. 11. 1976 — CASE 30/76

27 The competition in question was initiated by notice dated 23 November 1973 and closed on 14 February 1974.

31 The applicant further point out that the contested decision in referring to the 'result of the competition' mentions Article 45 of the Staff Regulations relating to promotion and expressly states in the operative part that the successful candidate has been 'promoted' to the vacant post.

32 For this reason he says that the said decision is irregular because imprecise or contradictory reasons are given for it.

33 The applicant moreover states that insufficient reasons are given for the contested decision in that it contains no reference to the opinion of the Bureau obtained by the President of the European Parliament on the proposal to appoint Mr Roger Würth.

34 The recruitment procedure followed in the present case clearly shows that the appointment in question was made as a result of an internal competition and thus leaves no doubt as to the legal basis of the act.

KÜSTER v PARLIAMENT

35 Therefore the lack of precision pointed out in the statement of reasons is not of a decisive nature and cannot affect the validity of the contested decision.

On those grounds,

THE COURT (First Chamber)

hereby:

1. Dismisses the action as unfounded;

2. Orders each party to bear its own costs.

Donner O'Keeffe Bosco