C-307/85

Mr President, 4. A second open competition was Members of the Court, published by the Secretary-General of the Economic and Social Committee in May 1983 and carried out in 1984. For this A — Facts competition the minimum age was 35. At the end of the procedure the selection board drew up a list of five suitable candidates, of 1. The proceedings before us today concern which Mr Ts. was the first and the applicant the post of Head of the Greek Translation in these proceedings was ranked second. Division at the Economic and Social Committee. As that post was vacant for some time, in accordance with a decision of the administration the Head of the Language Service organized and supervised 5. On the basis of that list of suitable the activities of the Greek Division in candidates the Bureau of the Economic and conjunction with the applicant, who has Social Committee decided on 17 October been a reviser/principal translator in Grade 1984 to propose to the Council that Mr Ts. LA 5 in that division since 1 February 1982, should be appointed to the post; Mr Ts. was and Mr Ts., whose duties were the same as called on to carry out the duties of Head the applicant's. In practice that appears to of Division on an interim basis from 1 have meant that the applicant and Mr Ts. November 1984 onwards. Under Article 57 acted as Head of the Greek Division for of the internal rules of the Economic and alternate periods of three months. Social Committee the powers of the appointing authority in respect inter alia of officials in Grade LA 3 and with regard 2. The LA 3 post of Head of the Greek inter alia to Articles 29, 30, 31 and 32 of Translation Division was advertised by the Staff Regulations are exercised by Vacancy Notice No 84/81 issued by the the Council, with the agreement of the Chairman of the Economic and Social Commission, on a proposal from the Bureau Committee on 28 September 1981. Under of the Economic and Social Committee. the heading 'Qualifications required' the The Commission agreed to the proposal on notice called for 'ability in the direction of 3 December 1984 and by a Council decision an administrative unit and ability to carry of 29 January 1985 Mr Ts. was appointed out the duties in accordance with the Head of the Greek Translation Division working methods appropriate to a consul­ with effect from 1 February 1985 and tative organ of the Communities'. classified in Grade LA 3, Step 1.

Secretary-General of the Economic and applicant, however, did not pursue the Social Committee in which he complained matter further. that the Director-General for Adminis­ tration had already told Mr Ts. on 20 July 1984 that he was to become Head of the 9. On 11 October 1985 the applicant Greek Division, and Mr Ts. had already brought proceedings against the Council moved into the office of the Head of and the Economic and Social Committee of Division. In a memorandum dated 10 the European Communities in which he October 1984 the Secretary-General assured asked the Court to: him that the Director-General had given no information which might prejudice the selection of the future Head of the Greek (1) Annul the abovementioned competition; Division. (2) Declare that 'the appointment of Mr Ts. was without foundation'; 7. After the appointment of Mr Ts. was made public, on 31 March 1985 the applicant submitted a formal complaint to (3) In the alternative, declare that the the appointing authority of the Economic selection criteria were illegal and and Social Committee. In his complaint he discriminatory. raised a number of issues regarding the conduct of the competition and related proceedings. He requested that the decision 10. The Council's main submission in appointing Mr Ts. should be quashed, the defence to that claim is that the application competition annulled and a new competition is inadmissible in so far as it is directed organized. On 4 July 1985 the chairman of against the Council. The Economic and the selection board expressed the view that Social Committee also submitted, as its the conduct of the competition was in no primary argument, that the application was way irregular. The board had carried out its inadmissible; it argues that in any event it is task in an objective manner. There was no unfounded. For the arguments of the parties ground, therefore, for the annulment of the reference may be made to the Report for competition. The same view was expressed in the Hearing. the reply addressed to the applicant by the Chairman of the Economic and Social Committee on 26 July 1985. B — Opinion

of the Committee, adopted pursuant to reasonable to regard the objection raised in Article 196 of the EEC Treaty, the these proceedings as reasonable and since functions of the appointing authority are the matter concerns an appointment made exercised in part (in respect of the higher by the Economic and Social Committee grades) by the Council, since the appointing hold that the action should lie against that authority, determined by each institution institution as sole defendant. That would under Article 2 of the Staff Regulations, mean that in a case such as this, concerning acts only in the name of the institution an appointment decision in which the concerned. Council played a substantial role, it could be involved in the proceedings only under the second paragraph of Article 18 of the Statute of the Court of Justice (on the

Reference may submitted to the appointing authority also be made to the judgment in Joined (Article 91 (2)), which could lead to the 4 Cases 783 and 786/79, in which it was conclusion that the appointing authority stated that an application should be directed should also be a defendant to the against the appointing authority which proceedings, and Article 1 of the Staff adopted the act having an adverse effect. Regulations makes it clear that Consequently, and since in circumstances appointments are made to posts in 'one of such as these under the third indent of the institutions of the Communities'. Article 57 (1) of the Rules of Procedure of the Economic and Social Committee

2 judgments in Gases 18/63 1 and 28/64. Reference may also be made to the judgment in Case 50/74, 3which speaks of the difficulty of determining the institution 15. There is no need, on the other hand, to to which the applicants should have go into a further question which was applied). On that basis it would seem touched on in that regard, whether it might be appropriate to involve the Commission in 1 — Judgment of 19 March 1964 in Case 18/63 Wolkst v EEC the proceedings, since it takes part in [1964] ECR 85. 2 — Judgment of 7 April 1965 in Case 28/64 Müller v Council ofthe EEC and Council of lhe EAEC [1965] ECR 237. 4 — Judgment of 27 October 1981 in Joined Cases 783 and 3 — Judgment of 30 September 1975 in Case 50/74 Asmussen v 786/79 Venus and Ohertv Commission and Council1981] ECR 2445 at p. 2461, paragraph 22. Commission and Cornici/[1975] ECR 1003 at p. 1013.

17. It is true that the applicant's complaint did not reach the Council, as may be gathered from the decision of 19 July 1985. 2. The claim against the Economic and Social However, it was clearly (also) directed to the Committee Council. That follows from the fact that it was addressed to the 'autorité investie du pouvoir de nomination du CES'. It also follows from its content, since it speaks inter 19. (a) This claim is directed mainly against alia of the acceptance of the proposal for an the conduct of the competition. It is appointment made by the Bureau of the objected first of all that the applicant cannot Economic and Social Committee, and the be regarded as having an interest in the appointing authority is requested 'to revoke annulment of the competition, since he has its decision of 29 January 1985' (thus not sought the annulment of the resulting referring to an act of the Council). In my appointment but only a declaration that that view that settles the matter; that is to say, appointment was 'without foundation'. the applicant did everything that was necessary on his part to allow the responsible appointing authority (which the Economic and Social Committee, to which 20. I do not agree with that objection. It is the complaint was submitted through true that the wording of the claim does not administrative channels, could easily identify) to review the contested decision. If seem entirely felicitous. It is clear from the the complaint duly lodged 'through admin­ general content of the application, however, istrative channels' (in accordance with that the applicant seeks the annulment of the Article 90 (3) of the Staff Regulations) was appointment. Reference may be made in not properly dealt with, with the result that particular to paragraph 26 of the statement the appointing authority was not able to of claim, in which it is expressly stated that fulfil its duty to review the matter, the the object of the application is to obtain 'the annulment of Competition LA/57/83 and

27. A different conclusion might be drawn 23. First of all, it is not in fact correct to with regard to the organization of the say that there is no purpose in submitting a competition, in the light of the judgment in complaint against a decision of a selection Case 294/84, 11 since in that case, which board (I made that clear in my Opinion in concerned the non-admission of certain 5 Case 255/85 ). Furthermore, the Court candidates to the tests in a competition and has long held that in such a case the period in which it was also argued that the notice for bringing an action begins to run only of competition was irregular, it was held upon the notification to the person that the latter submissions could no longer concerned of the decision taken in reply to be raised; the notice of competition should the complaint (see the judgment in Case have been challenged in good time. 6 144/82 ). The submission of a complaint thus does not have the result that the subsequent application to the Court is out 28. I do not find that an appropriate way of of time. resolving the matter, and I also have the impression that the weight of the case-law takes a different approach in circumstances such as these; that is to say, where an 24. Secondly, it is important that in this appointment is challenged in good time, it case an action against the appointment was also permits preliminary acts (vacancy brought before the Court within the prescribed period. In the course of that 7 — Judgment of 14 December 1965 in Case 11/65 Morina v action objection may also be made to acts of Parliament [Í965] ECR 1017. the selection board. That question has also 8 — Judgment of 14 December 1965 in Case 21/65 Morina v Parliament [1965] ECR 1033. been settled by the Court, and I may refer 9 — Judgment of 16 October 1984 in Case 257/83 Williams v Court of Auditors [1984] ECR 3547. 5 — Opinion of 12 June 1986 in Case 255/85 Pressler-Hoefi v 10 — Judgment of 6 February 1986 in Case 143/84 Vlachou v Court of Auditors [1986] ECR 2459 at paragraph 4 et seq. Court of Auditors [1986] ECR 473. 6 — Judgment of 14 July 1983 in Case 144/82 Detti v Court of 11 —Judgment of 11 March 1986 in Case 294/84 Adams v Justice [1983] ECR 2421. Commission [1986] ECR 984.

notices, acts incidental to the competition) complaint (see judgment in Case 52/85, at to be included in the proceedings and chal paragraph 15). lenged as preparatory acts. I refer in that regard to the judgments in Cases 11/65, 21/65, 37/72 12 and 101/77, 13 and I propose that in this case the submissions in 31. In this case the applicant, as we have question should not be rejected on the basis seen, submitted a complaint concerning the that they should have been made the object appointment of Mr Ts. and in that of a separate proceeding at the appropriate complaint also made submissions concerning time. the conduct of the competition.

It can therefore be said that the decision to hold the competition was not the subject-matter of the complaint, even implicitly or by logical extension, and , was challenged only in the application to 30. (i) The complaint procedure must be the Court. Since it is not possible to discern followed before any application is made to any close connection with other heads of the Court. As the Court has held, the claim raised in the complaint (for the subject-matter and legal basis of an purposes of the judgment in Case 52/85), application to the Court may not differ the conclusion can only be that that issue from those of the complaint (see the cannot be raised for the first time in the

18 14 — Judgment of 20 March 1984 in Joined Cases 75 and judgment in Case 150/84 ). 117/82 Razzola and Beydoun v Comminion [1984] ECR 1509. 15 — Judgment of 23 January 1986 in Case 173/84 Rammun v 17 — Judgment of 7 May 1986 in Case 52/85 Rilioux v Commiuion [1986] ECR 197. Commiuion [1986] ECR 1555. 16 — Judgment of 10 July 1986 in Case 270/84 Lkala v 18 — Judgment of 23 April 1986 in Case 150/84 Bernardi v Economic and Social Committee [1986] ECR 2305. European Parliament [1986] ECR 1375.

34. Coupled with the fact that in connection with the adoption of the appointment decision the Council and the Commission made no objections whatsoever 37. The Economic and Social Committee, to the preparatory stages of the procedure, on the other hand, took the view that that means that the applicant cannot be Article 57 of its Rules of Procedure should deemed to have an interest in asserting that not be interpreted in an unrealistic and the Economic and Social Committee failed impractical manner but should be allowed to to comply with Article 57 of its Rules of have a useful function. In the light of the Procedure with regard to the decision to fact that the number of persons employed hold a competition. by the Economic and Social Committee has considerably increased and that at the Council itself the appointing authority for all officials other than those in Grade A 1 is its Secretary-General, that can only mean 35. (e) It must therefore be concluded that that the participation of the Council and the there are no obstacles to the admissibility of Commission in decisions concerning the the claim against the Economic and Social holding of competitions at the Economic Committee. It must however be accepted and Social Committee and in the conduct of that a material basis of claim (that just such competitions is unnecessary. It may discussed) may not be put forward. also be pointed out that the procedure

GAVANAS v ESC AND COUNCIL

19 appropriate in Case 30/70 with regard to has in part been confirmed, in so far as the adoption by the Council of secondary promotions are concerned) has given rise to legislation under Article 43 of the EEC a sort of authentic interpretation of a Treaty). measure adopted by the Economic and Social Committee with the agreement of the Council. Finally, it must not be forgotten (and it thus becomes unnecessary to delve further into the conditions under which a 38. In view of what I have already said with rule of customary law contrary to the regard to the question of admissibility I do wording of a measure may be held to have not need to go further into this dispute. In come into existence) that all the institutions the interests of completeness I shall discuss referred to in Article 57 participated without it in a summary manner, setting out a few reserve in the final decision filling the post fundamental points. and that any defect in the introductory procedure was thus cured (with regard also to the actions of the Secretary-General, in respect of which the discussion of the proposal for an appointment in the Bureau

For that purpose it is sufficient that conduct of the competition in a number of those institutions should participate in the respects. final decisions filling posts. It can hardly have been intended that in the case of posts filled by competition those institutions 42. (aa) First of all, he argues that the 19 — Judgment of 17 December 1970 in Case 30/70 Scheer v Einfahr- und Vormliitelk fir Getreide und Futtermittel candidates were treated in a discriminatory [1970] ECR 1197. manner, inasmuch as during the first compe-

43. It must be stated in that regard that there is no basis for the suggested principle to the effect that during the procedure for 47. With regard to that submission it must the filling of a post none of the candidates be pointed out (and this shows that it does may be called upon to exercise the duties of not constitute a material criticism) that it the post to be filled. That clearly cannot be has not been proved that the members of the case, since otherwise the interim exercise the board (who in any event did not know of the duties of a post to be filled would the names of the candidates during the frequently be impossible, which would give written tests) failed in any way in their duty rise to considerable organizational problems to conduct the tests impartially. The mere or hamper the functioning of the adminis­ fact that the board was composed in part of tration. superiors of the applicant is not sufficient in that respect. If it were to be held otherwise, it would frequently be impossible to appoint an appropriate and competent selection 44. Furthermore, it is not clear how the board. circumstance referred to by the applicant could have influenced the result of the competition, and in particular how it could have had a negative effect on his performance in the competition, as he 48. On the more specific point it should be suggests. noted that the Economic and Social Committee stated, without being contra­ dicted, that one of the members of the selection board understood Greek quite well 45. In reply to the applicant's submissions it and furthermore that the board was assisted may also be pointed out that discrimination by two Greek examiners, as is provided for arises only where differing conditions are by the second paragraph of Article 3 of applied to the candidates in a single compe­ Annex III to the Staff Regulations. There tition, and not where the conditions can be no doubt, therefore, that the governing a previous competition are selection board had sufficient resources and departed from. There is no suggestion of that a proper assessment of the candidate's any such discrimination in this case since, if capabilities was ensured. I have understood the matter correctly, during the second competition the practice was continued under which the applicant and Mr Ts. carried out the duties of Head of the Greek Division on an alternating 49. (cc) Finally, with regard to the conduct basis. Both of them thus had the oppor­ of the tests, the applicant argues that the tunity to show their merits, and there is no selection board exceeded its powers reason to conclude that Mr Ts. could have inasmuch as it also considered the derived any advantage. personality and character of the candidates.

54. As I have already mentioned, under Article 57 of the Rules of Procedure of the Economic and Social Committee LA 3 posts 50. Nor do these submissions show any are filled by the Council with the agreement material defects in the procedure. of the Commission, upon a proposal from the Bureau of the Economic and Social Committee. In the applicant's view — and this constitutes a further ground of claim — such a proposal was not properly made in this case. That is to say, at the 51. What the applicant has described as a meeting of the Bureau on 17 October 1984 'personality test' was in fact nothing more a proposal for the appointment of Mr Ts. than the assessment of the capacities and was submitted by the Secretary-General and character traits necessary for the direction was immediately accepted. That shows first of an administrative unit. Since Vacancy of all that in the selection from the list of Notice No 84/81 states that the post suitable candidates the Secretary-General involves the organization and supervision of exercised a power of decision which was not the work of the Greek Translation Division properly his. Since the members of the and expressly requires the ability to direct Bureau were given only the list of suitable an administrative unit the selection board candidates (and not, as in another case to be cannot be said to have gone beyond its decided on the same day, application mandate by considering the matter. documents and career descriptions) and since no oral comments were made on the proposal, it is also clear that there was no critical examination of other candidates, and thus no comparative assessment of the 52. With regard to the second point, on the merits of all the candidates. Had there been other hand, it is clear from the explanations such an assessment the chances of the of the Economic and Social Committee that applicant would have been better, since the the applicant has made a mistake. Paragraph marks obtained by him and by Mr Ts. in the 7 (a) of the notice of competition calls for competition were practically identical and an essay in Greek on a subject of a general the applicant is older (which generally plays nature; the nature of the translated text to a role in such matters), has more experience be revised is not specified, on the other and has a better knowledge of languages. hand, and in the light of the kind of work done at the Economic and Social Committee it does not seem inappropriate to set a legal text. 55. This submission does not in my view constitute a basis for the annulment of the decision.

57. With regard to the forming of a view by the Bureau of the Economic and Social Committee, on the other hand, it is true that 60. Finally, with regard to the selection there was no discussion of the proposal itself to be made in accordance with Article for an appointment submitted by the 30 of the Staff Regulations, there is nothing Secretary-General and that at the meeting to suggest that it was not correctly made, itself there was no comparative assessment since all the members of the Bureau were of the merits of the candidates. That does able to prepare for it on the basis of the list not mean, however, that there was a defect of suitable candidates provided to them and in the procedure. at the meeting (during which, we are told, the Secretary-General held all the necessary documents at the disposal of the members) members had the possibility of clearing up or dealing more extensively with any 58. The applicant's starting point is wrong, matters of uncertainty. Reference may be inasmuch as he relies on the wording of made to the analogous procedure which was Article 45 of the Staff Regulations followed in the circumstances leading up to 21 concerning promotion procedures ('con­ Case 26/85 (in connection with the sideration of the comparative merits' of adoption of a decision appointing an official officials). In the case of competitions it is necessary merely to select an individual 20 — Judgment of 15 December 1966 in Case 62/65 Serio v Commission [1966] ECR 561 at p. 570. from the list of suitable candidates drawn up 21 — Judgment of 23 October 1986 in Case 26/85 Vaysse v by the selection board. As a rule the Commission [1986] ECR 3131.

it was considered sufficient that the He points to the fact that the minimum age Members of the Commission and their was lowered for the second competition (so personal staff had the opportunity to as to permit Mr Ts. to take part), the fact, become familiar with the personal files of discussed above, that the proposal for his the candidates before the meeting and that appointment was passed by the Bureau of the Secretary-General held those personal the Economic and Social Committee files at their disposal during the meeting). In without discussion and a number of events such circumstances it was entirely correct, in which are said to show that as far as the the minutes of the meeting of 17 October Director-General for Administration (also 1984, to speak of careful consideration of chairman of the selection board) was all candidates. Had that not been in concerned the appointment of Mr Ts. was accordance with reality it is unlikely that the an established fact (on 19 July 1984, even minutes of that meeting would have been before the formal submission of the report approved in the minutes of the following of the selection board, the chairman of the meeting on 20 November 1984. board called Mr Ts. to his office and informed him that he would be appointed; on the same day Mr Ts. held a party to celebrate his appointment; a few days later 61. It does not seem necessary to go into he moved into the office of the Head of the the fact that in respect of another point on Greek Division and started to carry out the the agenda of the meeting of 17 October duties of that post, while in 1984 the 1984 (which had not previously been applicant was no longer consulted by his examined by a selection board) application superiors on problems concerning the Greek documents and career descriptions were Division). distributed, and it may therefore be concluded, without hearing the evidence put forward by the applicant regarding the conduct of that meeting, that the proposal for the appointment of Mr Ts. was correctly 64. In my view that is not sufficient to made by the Bureau of the Economic and substantiate the applicant's claim. Social Committee and that the decision appointing him cannot be annulled on the basis of a substantial defect. 65. It must be recalled that in the final analysis appointment decisions such as the one now at issue are made by the Council 3. Abuse of discretion with the agreement of the Commission. I cannot see, therefore, how it could be influenced by anything done within the Economic and Social Committee in which at 62. Finally, the decision appointing Mr Ts. most its Director-General for Adminis­ is attacked on the basis that 'les jeux étaient tration was involved, that is to say a person faits d'avance'; that is to say, the who could not even influence the proposal appointment of Mr Ts. was decided on from to be made by the Bureau. the beginning, and the competition procedure was followed only for the sake of appearances.

68. The Economic and Social Committee 70. Finally, we have also been given a also denies that the Director-General for plausible explanation of the fact that the Administration told Mr Ts. in July 1984 that official subsequently appointed took over he would be appointed, and that also seems the office of the Head of the Greek plausible since the Director-General is Division (it was apparently necessary for Mr naturally aware of the prescribed Ts. to give up his office to a colleague appointment procedure. Reference may also transferred from the Parliament). It was also be made to the notice in writing dated 22 correctly pointed out that such an internal August 1984 received by the applicant, who arrangement within the Greek Division, in was absent on 19 July 1984, according to which the administration was involved, which the Bureau was to draw up a proposal could naturally have no influence on the for appointment, and to the answer given decision to be taken by the Bureau and by on 10 October 1984 to the applicant's note the appointing authority. of protest, according to which the Director-General for Administration had 71. It does not appear necessary to hear the given no information that might prejudge witnesses proposed by the applicant, and it the selection of the future Head of the may therefore be concluded that there are Greek Division, such selection being a no serious indications of any abuse of matter for the Council. discretion which would justify more detailed consideration of this allegation. 69. The Economic and Social Committee also disputes the assertion that from April 72. 4. It must therefore be concluded that 1984 onwards the applicant was no longer none of the applicant's submissions consulted in matters concerning the Greek substantiate his claim.