C-204/85

Mr President, intervener's work. That procedure was Members of the Court, adopted because the intervener had brought an action (Case 143/84 ') in respect of the applicant's husband's participation in Competition No CC/LA/20/82 and succeeded in having his appointment to A — 1. At the hearing of this action Grade LA 5 annulled. against the Court of Auditors on 8 October only the issue of admissibility was argued. I shall accordingly confine my Opinion today to that issue. 4. According to the applicant, who also works in the Language Service of the Court of Auditors and is classified in Grade LA 7, the preparatory report was unfavourable The following facts are necessary for an and recommended the intervener's dismissal, understanding of the case. but that is denied by the Court of Auditors. In any event, by a decision of the Secretary of the Court of Auditors of 26 November 1984 the intervener was established in her post as an official with effect from 1 2. The Court of Auditors conducted December 1984. Competition No CC/LA/14/83 to fill a vacancy for an LA 7/6 post. As a result the intervener, whose name was included in the list of suitable candidates, was appointed a probationary official in Grade LA 6, Step 3, (evidently on account of her experience) by 5. When the applicant learnt thereof (the order of the President of the Court of appointment was posted up at the Court of Auditors of 29 February 1984, with effect Auditors from 1 to 20 December 1984) she from 1 March 1984. lodged a complaint against it on 26 February 1985. She claimed that, in view of the findings in her probationary report and the observations of her superior and of the Court of Auditors in Case 143/84, the 3. As laid down in Article 34 of the Staff intervener should not have been established Regulations, a report on her probationary as an official but have been dismissed under period was prepared. Contrary to the Articles 27 and 34 of the Staff Regulations. normal procedure, it was not made by the The failure to dismiss her prejudiced the intervener's immediate superior, who is the applicant's chances of promotion since the applicant's husband, but by the head of the number of posts to which the applicant Language Department of the Court of might aspire for promotion was thereby Auditors, who consulted other officials and reduced. made use of external assessors to judge the I — Judgment of 6 February 1986 in Case 143/84 Androniki Vlachou v Court of Auditors of the European Communities * Translated from the German. [1986] ECR 459.

6. Her complaint was unsuccesssful. It was B — 9. With regard to the admissibility of rejected as inadmissible in a memorandum the action the only argument put forward in dated 21 June 1985 on the ground that the the application was the argument already contested decision was not capable of advanced in the complaint, namely that the directly affecting the applicant's legal establishment of the intervener reduced the position; appointment decisions could only number of posts to which the applicant directly affect third parties if — and this did might aspire for promotion to LA 6 and not apply to the applicant — they were thus the applicant's chances of promotion candidates for the appointment. Moreover, were limited or delayed. the provisions of the Staff Regulations cited by the applicant were not intended to protect individual interests but mainly to serve the general interest. 10. 1. It is clear from the preliminary administrative procedure that the Court of Auditors did not consider that to be sufficient. Referring to the Court's case-law 7. Thereupon by an application registered on the term 'act adversely affecting [an at the Court of Justice on 3 July 1985, the official]' and the requisite legal interest, it applicant brought an action in which she stated that it was significant that the claims that the Court should annul: applicant had not taken part in the procedure for filling the post to which the intervener was appointed. Since the applicant had no prospect of obtaining the post, she had no personal interest in criti- (a) the decision of 26 November 1984 of cizing that procedure. the Secretary of the Court of Auditors by which the intervener was established in her post as an official; 11. With regard to the alleged reduction of the applicant's prospects of promotion, the Court of Auditors points out that, apart (b) in so far as necessary, the decision from the fact that there is no right to expressly rejecting the applicant's promotion, even on conclusion of the complaint. procedure for filling the vacancy the applicant was still not eligible for promotion; moreover, when the action was brought there were still two LA 6 posts at the Court of Auditors available for purposes 8. By an order of 31 January 1986 Mrs of promotion. The intervener's estab- Vlachou was allowed to intervene in the lishment thus represented no obstacle to the proceedings. Before I turn to the issues I promotion of the applicant, and she was in should also like to mention that the fact promoted in November 1985 so that at applicant entered the service of the Court of least from that time onwards she no longer Auditors as a probationary official on 1 had any interest in putting forward that January 1983, that according to an official argument. list of 11 September 1985 she was eligible for promotion in 1985 and that by a decision of 21 November 1985 she was promoted to Grade LA 6, Step 2, that is to 12. Finally, the Court of Auditors con- say the same grade as the intervener, with sidered that at most the intervener's effect from 1 December 1985. appointment as a probationary official in

13. Against that the applicant, in her reply, observes that she has been eligible for 18. Previous decisions of the Court promotion since January 1985 but at that (referred to by the Court of Auditors) time there were only three LA 6 posts provide authority for the view that it available for six candidates (whereas, had cannot. In Case 2 5 2 / 8 1 2 it was held not to the intervener not been established, there be possible to challenge the appointment of would have been four). another official if the applicant has 'volun­ tarily decided not to apply for the post, and thus refused to take part in the appointment procedure'. Similarly, in the judgment in 14. She also considers that she has an Case 111/83 3 it was held that, if an official interest in bringing proceedings as a result cannot himself validly claim a vacant post, of the intervener's wrongful conduct, he has no legitimate interest in the whereby cooperation in the small adminis­ annulment of the appointment of another trative unit of the Greek Translation candidate to that post. Department was made more difficult. She claims inter alia that the intervener's obser­ vations in Case 143/84 infringed obligations under Article 12 of the Staff Regulations. 19. Strict conditions therefore apply to actions by competitors against appointment decisions. The intention is clearly to exclude 15. In addition, in her view, account must actions 'in the interest of the law or of the be taken of the fact that the Court of institutions' (to use the terms employed in Auditors will soon have to organize internal the judgment in Case 85/82 4 ), that is to or interinstitutional competitions to fill two say, actions brought in the general interest. LA 5/4 posts and the applicant will 5 As is stated in another case, the admissi­ encounter competition from the intervener bility of staff actions basically depends on for the posts unless the decision establishing whether the legal position of the person her is annulled. concerned is immediately and directly affected and whether there is a legitimate,

21. 3. Moving on none the less to consider 25. Finally, it is open to question whether whether, even in other cases not specified in the fact that one LA 6 post was no longer the Court's case-law, appointment decisions available may be regarded as a material should be viewed as acts 'capable of directly reduction of the applicant's promotion affecting a given legal situation' 6 I would prospects when there were two other 'LA 6 make the following observations regarding posts still available in 1985, and in any event the specific arguments advanced by the grounds for such a complaint (loss of applicant in the present case in support of promotion prospects) were removed with that view: the promotion of the applicant in November 1985.

22. (a) With regard to the claim that the applicant's chances of promotion were reduced by the appointment of the "26. (b) A similar view must be taken of the intervener to an LA 6 post, it may be applicant's claim that if the decision estab- objected that in Community staff law there lishing the intervener is upheld she may be is no right to promotion and hence no 'legal expected to compete in future competitions situation' which may be affected by the for LA 5 posts and thus the applicant's appointment decision. position is affected.

23. Moreover, when the contested decision was adopted the applicant was not yet 27. Since the applicant claims that eligible for promotion; consequently, her according to the report on the intervener's legal situation was in any case not directly probationary period she is not suitable for an LA 6 post, it is difficult to understand 6 — Judgment of I July 1964 ¡n Case 26/63 Pitrgiovanni Pistoj why she should fear competition and look v Commission [1964J ECR 341, » p. 351. upon it as a threat to or as adversely

28. The present action cannot therefore be brought on that basis; otherwise the conditions for bringing an action would be unreasonably deprived of their restrictive 32. (d) It must therefore be held that the effects. applicant's action is inadmissible because there is no act adversely affecting her and she has no legal interest in bringing the action. It is not therefore necessary to inquire further into the Court of Auditors' 29. (c) Finally, I do not think that the additional objection that she ought to have admissibility of the action can be based on challenged the first measure appointing the the ground that the appointment of an intervener as a probationary official and insufficiently qualified colleague whose that accordingly her complaint and action conduct in other court proceedings led to were out of time. criticism from the Court of Auditors makes the working conditions of the applicant, who is employed in the same small adminis- trative unit, intolerable. An official is entitled only to have appropriate duties entrusted to him; he has no right to work 33. 4. In conclusion it is appropriate to solely with colleagues who have the mention the matter of costs. In the professional and personal qualities which he defendant's view the Court should depart deems necessary. from the normal rule in Article 70 of the Rules of Procedure and order the applicant to pay the whole of the costs. It bases that contention on the ground that the application was obviously inadmissible, as 30. If that were sufficient to found an was pointed out several times to the action against an appointment decision, applicant in the preliminary administrative there would be unreasonable interference in procedure (in which she was already legally organizational matters which fall outside the represented). competence of individuals and must be reserved to the employer.