C-341/85

2. By a decision of the President of the 3. Much of the argument in that case was Commission of 3 November 1983, Mr on the question whether Mr Math had the Bernard Math was appointed Head of necessary qualifications for the post as Division F 1 (Inspection) in the Euratom described in the original Notice of Vacancy. safeguards directorate within the In this connection, I quote from the Commission's Directorate-General for Opinion of Advocate General Sir Gordon Energy. The appointment purported to take Slynn (at p. 3285): effect from 28 September 1983. Mr Math came from the French Atomic Energy Commission and had not previously worked as an official of the Communities. Mr van der Stijl, the head of one of the two sections within the Division, was aggrieved at the appointment and brought an action before this Court. He had acted as Head of the 'It is argued that Mr Math's experience and Division ad interim and had applied for the linguistic ability did not satisfy the post on a permanent basis. In its judgment conditions laid down in the Notice of of 7 October 1985 (cited above), the Court Vacancy. It seems likely that he did not annulled the appointment of Mr Math and have at the relevant stage the necessary the decision rejecting Mr van der Stijl's knowledge of a second language. On the application. The Court held that there were written pleadings there also seemed force in

* Original language: English.

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4. In response to the judgment annulling Mr Math's appointment which was pronounced on 7 October 1985, the The cases Commission acted swiftly. On 16 October, it engaged Mr Math as a member of the temporary staff to the same post. Moreover, the new decision purported to take effect 6. Each of the cases relates to a specific step from the date when he first took up the taken by the Commission and they follow post, i. e. 28 September 1983, and to be for the most part in chronological order. made for a period of two years, a period The Report for the Hearing contains full which had already expired by the date of details of the pleas and arguments of the the decision but which was extended, by the parties and in this Opinion I will consider terms of the same decision, to 31 December only those which appear to me to be 1985. On 18 December 1985 the decisive. Commission decided to organize an open competition for the post, and also extended Mr Math's appointment for a further six months. The competition took place during the middle of 1986. Mr Math among others Case 341/85 was placed on the list of suitable candidates for the post and was then appointed to it; Mr van der Stijl was not placed on the list; Mr Cullington, the other applicant in these 7. Case 341/85 relates to the decision of 16 proceedings, was placed on the list, but was October 1985 engaging Mr Math as a not appointed. member of the temporary staff. The Commission argues that this application is inadmissible since the decision only produced legal effect until 31 December 5. The situation is therefore that Mr Math 1985 and to attack it after it expired is has been occupying the post in question in pointless. I do not accept that submission.

This was just the first in a number of steps breach of the judgment in engaging Mr leading to the reappointment of Mr Math. Math as a member of the temporary staff. If it had never been taken, the applicant might have had — as he alleges — the opportunity to be appointed, even if only temporarily, to the post. Whether that is indeed the case is a question of substance, 9. The applicant's second argument alleges not admissibility since the applicant does not a breach of procedure or misuse of powers have to show that he will succeed on the by the Commission in re-establishing by substance for the case to be admissible. administrative means the situation declared Further, at the time this case was illegal by the Court. He argues that the real commenced, the applicant had sufficient purpose of backdating Mr Math's contract interest to bring the proceedings as a person as a member of the temporary staff was to whom a judgment of the Court was improperly to entitle Mr Math to claim addressed (see Case 30/76 Küster v additional experience of work in nuclear

for two years. The notion of 'regularization' is I think an unfortunate one for the Commission to use, suggesting as it does that the Commission was indeed seeking to validate retrospectively what the Court had annulled. What the Commission did was undesirable because it was likely to create the impression that the Commission was infringing Article 176 of the Treaty, and also because it was likely to provoke, as it 8. On the substance of the case, the has, further litigation. But, if it was unwise applicant puts forward various arguments. of the Commission to make the appointment First, he contends that the Commission has retroactive, the question remains whether it not complied with the Court's previous was unlawful. Retrospection is generally judgment in Case 128/84 in that reap regarded in all legal systems as unlawful pointment of Mr Math to the post in unless there are urgent and compelling question as a member of the temporary staff reasons for it. Leaving aside the point that is tantamount to disregarding the Court's the judgment in Case 128/84 was to the

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But there does not appear to be any valid reason for backdating the contract before 7 October 1985, and certainly not for a full two years and more before that date. In the absence of 11. The other submissions claim breaches of any valid reason I conclude that the Article 29 (1) of the Staff Regulations, decision purporting to engage Mr Math as a which prescribes the measures to be member of the temporary staff from 28 followed by an institution before filling a September 1983 should be annulled in vacancy, and Article 12 of the Conditions respect of the period between that date and of Employment of Other Servants which 7 October 1985.

10. I therefore need consider only briefly considered, for the purposes of this the other arguments put forward by the application, on the date of the purported applicant. He claims that the decision of appointment, i.e. 28 September 1983. By 16 October 1985 purported to establish the very attempt to backdate the contractual relations between the appointment the Commission itself created Commission and Mr Math in respect of a the difficulty that it is on that date that the period which had already expired (two qualifications are to be considered.

But despite the decision, there is no reason to regard the uncertainty over his qualifications, I would validity of future arrangements as not accept on the balance of the evidence

that the decision should be annulled on that (as it should have done) all the alternatives ground, although it must in any event be open to it, such as appointment of a deputy annulled in respect of the period before or an ad interim appointment, pending 7 October 1985 for the reasons I have given organization of an open competition, never­ above. theless the temporary appointment of Mr Math — for a short period — was not unreasonable, given that he had de facto occupied the post for the previous two years. I conclude that the Commission was 12. In Case 341/85, I therefore conclude therefore entitled to keep Mr Math in post that the Court should annul the for the short period while the Commission Commission's decision of 16 October 1985 attempted to make a long-term appointment purporting to engage Mr Math as a member to the post. of the temporary staff of the Communities from 28 September 1983 in respect of the period between that date and 7 October 1985. I consider the questions of damages and costs later. 14. As for the second limb of this case, that is, the extension of the contract by decision of 18 December 1985, I consider that that extension was unlawful. Mr Math was engaged under the Conditions of Employment of Other Servants, which Case 251/86 govern the appointment of temporary staff; he was engaged under Article 2 (b) of those Conditions, that is, to fill temporarily a permanent established post. Article 8 of those Conditions provides that temporary 13. In Case 251/86, the applicant contests staff engaged under Article 2 (b) may not be the legality of the actions of the engaged for more than two years and their Commission in retaining Mr Math in post contracts may be renewed not more than after 7 October 1985 (the date of judgment once for a maximum of one year. In the in Case 128/84) and in 'renewing' his original appointment, the Commission contract as a member of the temporary staff extended, by a period of just over three on 18 December 1985 for a further period months, the period of two years of of six months expiring on 30 June 1986. engagement. A simple reading of Article 8 The applicant claims that the Commission shows that it was not entitled to extend it was in breach of Article 176 of the EEC again. The Commission argues that such an Treaty in re-creating in fact what the Court interpretation of Article 8 is too narrow, had ruled illegal in Case 128/84. I do not and that the situation must be looked at in accept that argument. The Court ruled that the round, the purpose of Article 8 being Mr Math was improperly appointed as an merely to secure that temporary staff official. The Commission, after that ruling, engaged under Article 2 (b) are not to was obliged to respect the terms of the occupy a post for more than three years in judgment and within the limits imposed by all. While I have some sympathy with such a the judgment to seek to ensure the broad approach it cannot override the plain continuity of its services. In so ensuring and simple wording of Article 8. Moreover continuity it enjoys a large measure of the Commission created its own difficulties discretion. Although I am not wholly here. Having decided, quite unnecessarily, convinced that the Commission considered to backdate Mr Math's appointment by

16. I consider on the balance of the evidence before the Court that the Commission observed the correct Case 266/86 procedures. There is, it is true, considerable force in the applicant's point that, in its letter of 25 July 1986 to the applicant, the Commission states that at its meeting of 18 December 1985 the Commission 15. I turn next to Case 266/86, the subject- considered the candidatures (in the plural) matter of which follows next in chrono­ put forward under Article 29 (1) (a) logical order, although the case is not the — including the applicant's — whereas next numerically. The applicant seeks, first, in fact, in the absence of any new Notice annulment of Notice of Competition of Vacancy, only one candidature — the COM / A / 477 and, secondly, annulment of applicant's — existed. However, that the implied decision rejecting his request for point is in my view outweighed, as a a decision in respect of his first candidature. matter of evidence, by the statement in the I will consider the latter point first. He says Commission's Minutes. that, since the decision rejecting his application for the post in 1983 had been annulled by the Court in Case 128/84, that application still stood and should have been considered in accordance with Article 29 (1) before an open competition was organized. 17. However, I can see no valid reason He claims that if his application was not why, even when the applicant specifically considered then the Commission was in requested it, no decision was forthcoming breach of the judgment in that case; if on from the Commission on his reinstated the other hand his application was candidature, together with a statement of considered, then there was a breach of reasons for its rejection. It was not until he Article 25 of the Staff Regulations since he received the rejection of his internal was not informed in writing within a complaints on 25 July 1986 that he defini­ reasonable time of the result and the reasons tively learnt of his rejection. In for it. The Commission submits that it did Case 225/82 Verzyck v Commission [1983] follow the appropriate procedures as is ECR 1991, the Court held that each evidenced by the extract from the Minutes rejection of a candidature must contain of the Commission's meeting of 18 reasons but they may be only in summary December 1985. Those Minutes show — in form unless the candidate specifically

requests reasons. In his request of 21 (2) thorough knowledge of the nuclear October 1985 (annex VIII to the production cycle and the management application) the applicant specifically of nuclear material, requested a decision on his reinstated candi­ dature, but he obtained neither a decision nor the reasons for the implied rejection. The judgment of 8 March 1988 in Joined Cases 64, 71 to 73 and 78/86 Sergio and (3) knowledge in the field of nuclear safe­ Others v Commission [1988] ECR 1399 guards, shows that the main purpose of the requirement to give reasons is to enable the candidate to know why a particular decision was taken and to allow proper judicial review, but that provided the Court is satisfied that all procedures were correctly followed and all matters that should have been taken into account were taken into account, then a lack of reasoning accom­ panying a decision does not always serve to (5) thorough knowledge relevant to the annul that decision. I have stated above that nature of the post'. I have doubts about the procedures followed by the Commission and I am not persuaded, on the evidence before me, that everything was done that should have been done. The failure to provide reasons therefore leads me to conclude that the The relevant part of the Notice of Compe­ implied decision rejecting the applicant's tition required candidates to have reinstated candidature was unlawful, but in the light of the view I take on the applicant's other claims, it seems to me unnecessary that that decision should be formally annulled. 'at least 15 years' experience since leaving university, at least several years of which must be relevant to the duties (of the post); they must also have a thorough knowledge of the nuclear cycle and of the management 18. The applicant also contends that the of nuclear materials, a knowledge of safe­ Notice of Competition COM / A / 477 should guards ... '. be annulled since the qualifications prescribed for the post in that Notice differed from those prescribed in the original Notice of Vacancy. 20. The applicant argues that the Notice of Competition is less strict in the extent of knowledge required and he points out that a 19. The relevant part of the Notice of much debated issue in Case 128/84 was Vacancy required, inter alia: whether Mr Math had the qualifications and experience necessary for the post. To the applicant, therefore, the changes were deliberately made in order to avoid future '... challenge on that point.

24. In Case 188/73 Grassi v Council [1974] ECR 1099, the Court held that if the appointing authority finds that the conditions of eligibility required in the Notice of Vacancy are more exacting than 22. There are two significant differences in the needs of the service demand, it is the wording of the notices. The expression entitled to reopen the procedure after with­ used in the Notice of Vacancy, 'thorough drawing the original Notice of Vacancy and knowledge relevant to the nature of the putting an amended one in its place. It post' implies particular knowledge of the follows that the appointing authority is not particular duties of the post. The expression entitled to relax the conditions of eligibility used in the Notice of Competition, during the course of the procedure for ' ... experience ... at least several years of filling a post. Issuing a Notice of Compe­ which must be relevant to the duties of the tition is one step in the procedure which post', is less onerous since it does not commences with the Notice of Vacancy. require 'thorough knowledge' of all the particular duties of the post. I note the argument that the Notice of Competition required thorough knowledge of the nuclear cycle and a knowledge of safeguards (as did the Notice of Vacancy), but that knowledge, although central to the post, 25. In its written submissions, the was not the only knowledge and experience Commission suggested that the changes required. were only of a drafting nature and were made simply in order to make the Notice of Competition more easily understandable to the outside candidates it hoped to attract. I have already said that I consider the changes to be more than drafting. But even if they were not, I do not consider the 23. The second difference is in the way the changes made are likely to make the Notice knowledge or experience required has been more easily readable to a graduate obtained. The Notice of Vacancy required, professional in the nuclear field with at least in French, 'expérience approfondie 15 years' experience.

26. Further, in the course of the oral selection board thereby had a wider choice hearing, counsel for the Commission available to it. replied, in response to a question, that the wording had been changed because the Commission wanted a wider choice of candidates and had therefore relaxed the 29. Several recent decisions of the Court requirements of eligibility. As I have just have dealt with challenges to the decisions said, if the requirements are to be relaxed, of a selection board: see for example Case the procedure must be recommenced and a 143/84 Vlachou v Court of Auditors [1986] new Notice of Vacancy issued. That was ECR 459; Case 293/84 Sorani and Others not done here and I therefore conclude that v Commission [1986] ECR 967; Case the Notice of Competition should be 294/84 Adams and Others v Commission annulled. [1986] ECR 977; Case 255/85 Pressler-Hoefi v Court of Auditors [1986] ECR 2459; Case 321/85 Schwiering v Court of Auditors [1986] ECR 3199; and Joined Cases 322 and 323/85 Hoyer and Neumann v Court of Auditors [1986] ECR 3215.

since he may himself be subsequently appointed to the post. If he is not appointed 28. I come now to Cases 258/86 brought then he may at that stage challenge the by Mr van der Stijl and 259/86 brought by appointment and one of the grounds may Mr Cullington. Mr Cullington was head of then be that the person appointed should the second of the two sections within the not have been admitted to enter the compe Division. Both applicants challenge the tition because he did not have the prescribed decisions of the selection board in the open qualifications or that he should not have competition to admit Mr Math to enter the been placed on the list of suitable competition and go forward to take the tests candidates. Where on the other hand a and to place him on the list of suitable candidate is excluded from taking part in a

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OPINION OF MR JACOBS —JOINED CASES 341/85, 251, 258, 259, 262 AND 266/86, 222 AND 232/87

34. The applicants argue that the only way the selection board could have considered Mr Math as not excluded by the age-limit 36. I will recapitulate my conclusions in the was by taking into account the time spent cases thus far. I have concluded that the by him as a member of the temporary staff. decision of the Commission to backdate the They argue that since that appointment was appointment of Mr Math as a member of

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Damages

38. Referring back to my summary of the history, and taking account also of the antecedents of this case as set out in the Opinion of Advocate General Sir Gordon 39. In Case 341/85 Mr van der Stijl claims Slynn in Case 128/84, one cannot fail but damages of ECU 2 000 in respect of the be struck by the fact that Mr Math occupied harm he has suffered. He claims further and is still occupying a post to which the payments in Cases 251 and 266/86 and Court has once ruled that he was 232/87. He argues that, on this occasion, improperly appointed; that the path leading mere annulment of the various decisions is to this result seems in certain respects to not sufficient to repair the damage to his have been designed to that end; that that standing or personal feelings as it was held path has been marked by a sequence of to be sufficient in Case 128/84. However, unlawful steps, including in particular the Mr van der Stijl has now retired. The very

OPINION OF MR JACOBS — JOINED CASES 341/85, 251, 258, 259, 262 AND 266/86, 222 AND 232/87

Conclusion

41 . I am accordingly of the opinion that :

(i) in Case 341 / 85 the decision appointing Mr Math as a member of the temporary staff should be annulled in respect of the period between 28 September 1983 and 7 October 1985;

(ii) in Case 251 / 86 the decision to extend Mr Math's contract as a member of the temporary staff after 31 December 1985 should be annulled ;

(iii) in Cases 258 and 259 / 86 the applications should be dismissed;

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