C-91/76
ECLI:EU:C:1977:20
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JUDGMENT OF THE COURT (FIRST CHAMBER) 3 FEBRUARY 1977 1
Joëlle de Lacroix v Court of Justice of the European Communities
Case 91/76
Officials — Other servants — Application under Article 179 of the EEC Treaty — Prior complaint — Absence thereof — Inadmissibility (Staff Regulations of Officials, Article 91; Conditions of Employment of Other Servants, Article 46)
An application under Article 179 of the provided for in Article 91 of the Staff Treaty cannot be declared admissible in Regulations of Officials. the absence of a prior complaint as
In Case 91/76,
JOËLLE DE LACROIX, represented by Nicola Catalano, Advocate, of Rome, with an address for service in Luxembourg at the Chambers of Ernest Arendt, Centre Louvigny,
applicant,
v
The Court of Justice of the European Communities, represented by its Agent, Albert Van Houtte, assisted by Adrien Van Kauvenbergh, Bâtonnier Honoraire de l'Ordre des Avocats de Luxembourg,
defendant,
Application for the annulment of the refusal to accept the applicant's application for a post of lawyer/linguist.
1 — Language of the Case: French.
JUDGMENT OF 3. 2. 1977 —CASE 91/76
THE COURT (First Chamber)
composed of: A. M. Dormer, President of Chamber, J. Mertens de Wilmars and G. Bosco, Judges,
Advocate-General: J.-P. Warner Registrar: H.J. Eversen, Deputy Registrar
gives the following
JUDGMENT
Facts
The facts and the arguments developed dismissed by Order of 15 October 1976 by the parties during the written of the President of the First Chamber.
procedure may be summarized as follows: 2. By a document entered at the Court Registry on 26 October 1976 the defendant, the administration of the I — Facts and procedure Court of Justice, contested the admissibility of the application and 1. On 11 May 1976 the administration requested that the Court should, pursuant of the Court of Justice published an to Article 91 of the Rules of Procedure, advertisement in various newspapers rule as to the admissibility without going stating that it required a 'lawyer/linguist into the substance of the case. In a of French mother tongue for the statement of 25 November 1976, entered translation into French of legal texts at the Court Registry on 29 November from at least two other official languages 1976, the applicant presented her of the European Communities'. On 28 submissions and conclusions concerning May 1976 the applicant submitted an the objection. application but the Director of Administration at the Court informed 3. On 11 October 1976 the applicant her by letter of 27 July 1976 that the submitted a complaint under Article 90 Selection Committee had been unable to of the Staff Regulations of Officials accept her application. On 27 September against the contested decision refusing 1976 the applicant lodged the present her application and the complaint was application for the annulment of that registered on 14 October 1976. communication and it was entered at the Court Registry on the same day. She lodged a simultaneous application for an II — Conclusions of the parties order suspending continuation of the recruitment procedure from which she In her application, the applicant claims had been excluded. This application was that the Court should:
DE LACROIX v COURT OF JUSTICE
— annul the contested decision and prescribed period, a complaint within the order the defendant to pay the costs meaning of Article 90 of the Staff of the action. Regulations on which the defendant may take a decision within four months; this In its objection of inadmissibility, the cannot however make the present defendant contends that the Court application admissible. should:
— declare the application inadmissible, (b) The engagement procedure applied — order each party to bear its own costs in this case was not a procedure for both in connexion with the recruitment of officials by external interlocutory proceedings and with competition but for the engagement of the main action. staff on temporary contract. Those involved would therefore have been
In respect of the objection the applicant engaged, if at all, under the Conditions claims that the Court should: of Employment of Other Servants of the — stay the proceedings pending a new European Communities and not under application contesting the reply (or the Staff Regulations of Officials of the the absence of a reply) to the European Communities. The words used applicant's complaint and, in in the advertisement make it clear that it
consequence, annul the contested concerns the 'engagement' of temporary decision and, accordingly, all staff and not the 'recruitment' of officials. measures taken under the This being so, there was no question of a recruitment procedure in which the competition which would have had to applicant was prevented from taking take place in accordance with the part, the defendant being ordered to conditions laid down in the Staff
pay the costs. Regulations of Officials. The Conditions of Employment of Other Servants do not provide for the procedure of compulsory competition which may give rise to legal Ill — Submissions and argu rights which candidates may require the ments of the parties Court to protect. The Institution has discretion to engage on contract the 1. The defendant raises two objections servant who best meets the immediate of inadmissibility, the first and principal requirements of the service. Even if, in one arising from non-compliance with the interests of the service and to exclude Article 91 of the Staff Regulations of any arbitrary decision, the Institution Officials in that, prior to lodging her applies internal procedures, it does not application, the applicant did not submit have to give the reasons for or justify its to the appointing authority a complaint choice. against the act adversely affecting her and the second and alternative one being 2. (a) In reply to the first submission of that the applicant is not a person to inadmissibility, the applicant states that whom the Staff Regulations apply within although she submitted an application to the meaning of Article 91 of the Staff the Court without prior complaint she Regulations. did so on grounds of urgency and circumspection. As the contested (a) As regards the first submission, the measure was notified during the holiday defendant states that no prior complaint period and the engagement procedure was made to the appointing authority. adopted was not clear and, moreover, so Subsequent to the submission of the as to be able to make an application for application, the applicant lodged, on 11 suspension of its operation, it was October 1976, that is to say, within the thought best to initiate proceedings
JUDGMENT OF 3. 2. 1977 —CASE 91/76
within the period of two months laid Regulations apply. Conversely, if the down in Article 173 of the Treaty. applicant is not such a person she cannot be prevented from initiating proceedings (b) The combined effect of the for annulment pursuant to Article 173 of defendant's contention that the applicant the EEC Treaty, since such proceedings is not 'a person to whom the Staff are not subject to prior submission of a Regulations of Officials apply and on complaint. Apart from recommendations whom Article 91 confers a right of and opinions, the review of the validity appeal' and the first submission of of all acts of the Community institutions inadmissibility is to deprive the applicant is one of the basic aspects of the task of of all redress through the courts. It is the Court. impossible to make the right of appeal subject to prior submission of a After hearing the views of the complaint in accordance with Article 91 Advocate-General the Court (First of the Staff Regulations and at the same Chamber), by decision of 14 December time to deny that the applicant is, as she 1976, resolved, pursuant to Article 91 (3) is required to be in order to bring an and (4) of the Rules of Procedure, to action under Article 91 of the Staff decide on the application without Regulations, a person to whom the Staff opening the oral procedure.
Law
1 The application, dated 27 September 1976 and entered at the Court Registry on the same day, is brought against the administration of the Court of Justice and seeks the annulment, in its own words, 'of the refusal to accept the applicant's application for the competition for the post of lawyer/linguist of French mother tongue'.
2 After the application was lodged, the applicant submitted a complaint pursuant to Article 90 (2) of the Staff Regulations of Officials.
3 The defendant has raised an objection of inadmissibility based, principally, on non-compliance with Article 91 of the Staff Regulations of Officials in that the applicant did not, before lodging her application, submit to the appointing authority a complaint against the act adversely affecting her, and, alternatively, on the ground that the applicant is not a person to whom the Staff Regulations apply within the meaning of Article 91 of the Staff Regulations.
4 The defendant has requested that the Court (First Chamber) should give a ruling on this objection, under Article 91 of the Rules of Procedure, without going into the substance of the case.
DE LACROIX v COURT OF JUSTICE
5 This request must be granted.
6 While the applicant leaves it to the discretion of the Court as regards the principal objection raised, she states that the defendant cannot deny that she is a 'person to whom these Staff Regulations apply' and at the same time consider her as bound to comply with the administrative procedures prescribed by Article 91 of the Staff Regulations.
7 If she is not a person to whom the Staff Regulations apply, her application is based on Article 173 of the Treaty, which provision does not make the admissibility of an application subject to the prior submission of an appeal through official channels.
8 However, in so far as it is based on Article 173 of the Treaty, the application is inadmissible since that provision confers no right to institute proceedings for annulment of the acts of institutions other than the Council or the Commission.
9 In consequence, the application is admissible only in so far as it is based on Article 179 of the Treaty, under which the Court of Justice has jurisdiction in any dispute between the Community and its servants within the limits and under the conditions laid down in the Staff Regulations or the Conditions of Employment.
10 In these circumstances, and without the need for a decision on the submission of inadmissibility based on the fact the applicant is not a 'person to whom these Staff Regulations apply' within the meaning of Articles 90 and 91 of the Staff Regulations, which, by virtue of Article 46 of the Conditions of Employment of Other Servants, have been made applicable by analogy to the said 'other servants', an application under Article 179 of the Treaty cannot be declared admissible in the absence of a prior complaint as provided for in the said Article 91.
11 Since this essential procedural requirement has not been satisfied, the application must be declared inadmissible.
JUDGMENT OF 3. 2. 1977 —CASE 91/76
Costs
12 The applicant has failed in her submissions.
13 Under Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs.
14 Nevertheless under Article 70 of the Rules of Procedure, in proceedings commenced by servants of the Communities the institutions shall bear their own costs.
15 Since the application has been declared inadmissible under the Conditions of Employment of Other Servants, Articles 69 and 70 of the Rules of Procedure must be applied by analogy.
On those grounds,
THE COURT (First Chamber)
hereby:
1. Dismisses the application as inadmissible;
2. Orders each party to bear its own costs.
Donner Mertens de Wilmars Bosco
Delivered in open court in Luxembourg on 3 February 1977.
H. J. Eversen A. M. Donner
Deputy Registrar President