C-44/85
ECLI:EU:C:1987:26
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OPINION OF MR MANCINI — JOINED CASES 44, 77, 294 AND 295/85
OPINION OF MR ADVOCATE GENERAL MANCINI delivered on 22 January 1987*
Mr President, interests of the service and in any event Members of the Court, without account being taken of the relevant experience and merits of the other candidates.
1. By four applications lodged between February and October 1985, Ingfried Hochbaum (Cases 44 and 294/85) and On 30 August 1984 Mr Rawes also lodged a Edward Rawes (Cases 77 and 295/85), complaint against the appointment of Mr officials in Grade A 4 in the Commission Waterschoot, relying upon the arguments Directorate-General for Competition (DG already put forward by his colleague and IV) seek annulment by the Court of the complaining in addition that the conditions measure appointing the Head of the State laid down in the vacancy notice had not Monopolies and Public Enterprises Division. been complied with.
By notes of 20 December 1984 and 21 The facts of the case are as follows. On 30 January 1985 addressed to Mr Hochbaum May 1984, after considering the applications and Mr Rawes respectively, the Director of submitted under Article 29 (1) (a) of the Personnel acknowledged that when the Staff Regulations, the Commission decided contested decision was adopted the files of a to fill the post in question by promoting number of candidates were incomplete and Paul Waterschoot, an official in Grade A 4 he added that the administration had in the Directorate-General for the Internal already invited the Directors concerned to Market and Industrial Affairs (DG III). Mr compile the required reports 'afin que la Hochbaum lodged a complaint against that Commission puisse procéder à un nouvel measure on 17 July, maintaining that, in examen comparatif des mérites de assessing promotion possibilities, the l'ensemble des candidats'. After receiving appointing authority did not carry out a the relevant documents, the Members of the proper examination of the merits of the Commission re-examined the applications officials eligible for promotion as required and on 30 January 1985 confirmed the by Article 45 of the Staff Regulations, in so promotion and appointment of Mr Water- far as the staff reports for a number of schoot. candidates (including the applicant and Mr Waterschoot) for the years 1979 to 1983 had not yet been compiled. Moreover, Mr Waterschoot's name appeared in an Mr Hochbaum and Mr Rawes did not 'unofficial table of posts' for Directorate- concede defeat and each submitted a further General IV which was circulating in the complaint. However, the four internal Commission building in Brussels three procedures to which the complaints gave months before the post was declared vacant. rise did not produce favourable results. That The decision was therefore adopted on the is why the actions to which I referred at the basis of considerations other than the outset have been brought. * Translated from the Italian.
HOCHBAUM AND RAWES v COMMISSION
2. By order of 12 June 1986, the Second measure must however be rectified before it Chamber of the Court joined the four cases becomes final and thus before the period for the purposes of the oral procedure and within which it can be challenged has judgment. During the procedure the expired or, if an action has already been defendant claimed that the actions against brought, before the Court has given the first decision (Cases 44 and 77/85) judgment. should be regarded as being devoid of
purpose. That decision, which was unlawful in view of the absence of the necessary documentation, had been superseded by a In the present case, there is no doubt that new appointment, in making which the the decision of 30 January 1985, which was Commission complied fully with the Staff expressly adopted by the appointing Regulations. Accordingly, an action could authority to rectify a defect in the previous be brought only against the second decision decision, was adopted long before an action because the candidates for the post of Head was brought against the latter. The confir- of the Monopolies Division could have been mation of Mr Waterschoot's appointment is adversely affected only by that decision. therefore in a technical sense a 'legali- zation', that is to say a new measure making an appointment which entails withdrawal of the first measure; and since, in those However, the applicants contend that the circumstances, the applicants have no decision of 30 January 1985 has no inde- interest in obtaining the annulment of a pendent legal status, being a measure measure which has been withdrawn, the intended to 'confirm' (that word was used applications in Cases 44 and 77/85 must be by the appointing authority itself) a previous declared inadmissible. decision which was invalid.
They could not therefore challenge it in isolation, and brought actions 294 and 295/85 merely by way of precaution; the confirmatory 3. In support of their claims in Cases 294 measure would automatically become void and 295/85, Mr Hochbaum and Mr Rawes upon annulment of the measure to which it rely in particular on three submissions: related and which it confirmed. (a) infringement of Articles 45, 25 and the third paragraph of Article 27 of the Staff Regulations; (b) failure to comply with the requirements laid down in the vacancy That view cannot be upheld. By virtue of a notice; and (c) misuse of powers.
I shall principle of good management and a rule deal only with the first submission, which is, which is common to the laws of the without any doubt, well founded. Member States, an authority which has adopted a measure which is vitiated and is therefore voidable is entitled to revoke it or — which is better — to rectify it retroac- Let us consider why. Dismissing the tively, thus ensuring that any prejudicial complaints submitted against the decision of effects arising from the irregularity are not 30 January 1985, Mr Christophersen, the protracted (judgments of 12 July 1957 in Member of the Commission concerned, Joined Cases 7/56 and 3 to 7/57 Algera and stated that, in confirming the first measure, Others v Common Assembly of the ECSC the appointing authority did not consider [1957] ECR 39 and of 22 March 1961 in it necessary to 'saisir une deuxième fois' Joined Cases 42 and 49/59 Simpat v High the Committee for Promotions and Authority [1961] ECR 53). The unlawful Appointments to Grades A 2 and A 3 since
OPINION OF MR MANCIN! — JOINED CASES 44, 77, 294 AND 295/85
that body 'dont le rôle est consultatif [avait 1984 but also for the purposes of the confir- déjà] . . . émis son avis le 25 mai 1984'. matory decision. Before adopting the latter But — and this is the crux of the decision, the appointing authority should matter — was that course of action proper? have initiated a new procedure by sending all the documentation — which was then complete — back to the committee.
I would point out that the committee to which Mr Christophersen refers was provided for in the Commission decision of 23 July 1980. Known as the 'Groupe Noël' The objection will be raised that, as stated and comprising four members (the in the judgment of 18 December 1980 in Secretary-General of the Commission, the Joined Cases 156/79 and 51/80 Gratreau v Director-General for Personnel, a Director Commission [1980] ECR 3943, paragraph nominated by the President and a represen- 24, the lack of a staff report 'is not tative of the Member of the Commission sufficient to render the promotions granted responsible for personnel matters), the void unless it is established that that fact committee examines the applications and the [had] a decisive effect on the promotion files of the applicants and, having assessed procedure'. In the present case, however, the candidates' abilities and their suitability what was missing was not just the report of for the tasks involved in the post concerned, a single candidate but those of several issues a non-binding opinion indicating candidates, including that of the official which official or officials best fulfil the who was promoted. Moreover, it is apparent prescribed requirements. That opinion, from the files in question that during the together with the applications and files, is five years which should have been covered then forwarded to the Members of the by those reports, a number of officials Commission for the final decision (as — and in particular Mr Hochbaum — regards the procedure involved here, see had acquired experience and qualifications judgment of 23 October 1986 in Case 26/85 which were particularly relevant to the Vayssev Commission [1986] ECR 3131). duties of Head of the Monopolies Division. The committee's verdict as to the capa- bilities and skills of the candidates was, in short, so inadequate that a complete review by it was unquestionably essential.
In the committee's opinion of 25 May 1984 it is stated that 'parmi les [16] candidats qui se sont présentés, MM. Argyris, Hochbaum, Van Ginderachter et Waterschoot, cités dans l'ordre alphabétique, devraient être pris Nor may it be said that the examination was particulièrement en considération'. As we correctly carried out by the appointing know, however, when that proposal was authority and that, therefore, the failure to submitted there had been no consideration consult the 'Groupe Noël' did not amount of the relevant experience and qualifications to an irregularity so grave as to justify acquired by a number of candidates during cancellation of the second decision. In that the the previous five years' service; and that connection, the Court has held that 'when, fact invalidates the opinion not only with by a decision of an internal nature, the respect to the appointment made on 30 May appointing authority voluntarily institutes a
HOCHBAUM AND RAWES v COMMISSION
compulsory consultative procedure which is Since the 'Groupe Noël' was set up speci- not prescribed by the Staff Regulations, it is fically to ensure that Article 45 of the Staff obliged to abide by such a procedure, which Regulations was correctly applied, it is clear cannot be regarded as lacking any legal that a promotion awarded without valid validity' (judgment of 21 April 1983 in Case consultation of that body infringes that 282/81 Salvatore Ragusa v Commission provision. The decision of 30 January 1985 [1983] ECR 1245, paragraph 18). is therefore unlawful.
4. In the light of the foregoing considerations, I propose that the Court should:
(a) declare the actions brought by Mr Ingfried Hochbaum and Mr Edward Rawes against the Commission of the European Communities in Cases 44 and 77/85 inadmissible; and
(b) uphold the applications submitted by the same officials in Cases 294 and 295/85 and annul the decision of 30 January 1985.
The defendant should be ordered to pay the costs of the proceedings in accordance with Article 69 (2) of the Rules of Procedure.