C-126/87

DEL PLATO v COMMISSION

OPINION OF MR ADVOCATE GENERAL DARMON delivered on 28 February 1989 *

Mr President, the same day by an official in the Members of the Court, Applications Office. On 30 April 1986, therefore, the applicant submitted his candidature by registered letter with acknowledgment of receipt. 1. The action brought before the Court by Mr Del Plato concerns, essentially, the circumstances in which the appointing authority may disregard the possibility of (ii) On 9 September 1986, in the absence internal promotion and have recourse to of any reply from the Commission, Mr outside recruitment to the scientific and Del Plato submitted a complaint, which technical services. was registered at the General Secre­ tariat of the Commission on 11 September 1986. Meanwhile, a new 2. The applicant, who holds a degree in organizational chart showed that Mr architecture, is an official of the Timm had been appointed to the Commission of the European Communities vacant post. employed at the Joint Research Centre at Ispra. He has worked there since 1967, and is at present in Grade B 3 of the scientific (iii) The Commission replied to that and technical services. complaint by a letter of rejection on 9 April 1987.

3. The Court has already had occasion to consider his unsuccessful attempts to move to Category A when he and his colleagues 5. On 10 April 1987, Mr Del Plato brought brought actions contesting the refusal to an action before the Court, seeking: include their names on a list of persons capable of performing Category A duties. '

(i) the annulment of the refusal to accept his candidature, 4. The facts relating to the present application may be summarized as follows:

7. However, an examination of the objections of inadmissibility reveals that, while the first objection does relate to the (iii) absence of a decision adversely time-limits for the lodging of appeals, affecting the applicant, 5 inasmuch as it seeks a declaration that the application for annulment of the refusal to accept the applicant's candidature is inad­ missible for being out of time, the three (iv) res judicata, 6 other objections are based on the absence of an interest in bringing proceedings, on the fact that no appeal can lie against the (v) existence of an act not of direct and contested act, and on the absence of a prior 7 individual concern to the applicant, complaint. Article 42(2) of the Rules of Procedure prohibits the raising of any fresh 3 — Order of 7 October 1987 in Case 108/86 Di Muro v issues in the course of the proceedings Council and Economic and Social Committee [1987] ECR 3933, paragraph 10; order of 24 September 1987 in Case unless they are based on matters of law or 134/87 Vlachou v Court of Auditors [1987] ECR 3633, of fact which come to light in the course of paragraphs 6 to 10; order of 28 November 1985 in Case 19/85 Grégoire-Foulon v Parliament [1985] ECR 3771, the written procedure. Article 92(2) of those paragraphs 7 to 9. rules, however, provides that the Court may 4 — Order of 18 March 1987 in Case 13/86 von Bonkewitz-Lindner v Parliament [1987] ECR 1417, para­ at any time of its own motion consider graphs 5 to 7; order of 4 June 1987 in Case 16/86 Pertoldi whether there exists any absolute bar to v Economic and Social Committee [1987] ECR 2409, para­ graphs 5 to 8. proceeding with a case. 5 — Order of 7 October 1987 in Case 248/86 Brüggemann v Economic and Social Committee [1987] ECR 3963, paragraph 6. 2 — Judgment of 12 July 1984 in Case 227/83 Moussis v Commission [1984] ECR 3133, paragraph 12. See also the 6 — Order of 1 April 1987 in Joined Cases 159 and 267/84, 12 judgment of 5 June 1980 in Case 108/79 Belfiore v and 264/85 Ainsworth and Others v Commission [1987] Commission [1980] ECR 1769, paragraph 3 ; judgment of ECR 1579, paragraphs 3 and 4. 19 February 1981 in Joined Cases 122 and 123/79 Schiavo 7 — Order of 26 September 1984 in Case 297/83 Les Verts v v Council [1981] ECR 473, paragraph 27; judgment of 13 Council [1984] ECR 3339, paragraph 7; order of 26 November 1986 in Case 232/85 Becker v Commission September 1984 in Case 216/83 Les Verts v Commission [1986] ECR 3401, paragraph 8. and Council[1984] ECR 3325, paragraph 7.

(vi) finally, for the record, expiry of the claims, first, that the issue has not been period within which proceedings may properly defined inasmuch as the applicant be brought. 8 applied for promotion and not to take part in an internal competition and, secondly, that because his candidature of 29 April 10. Such an approach in those decisions 1986 was refused on the same day by the could in my opinion lead to the drawing of competent department his prior complaint a distinction between bars to proceeding of 11 September 1986 was submitted after which are not absolute as a matter of public the expiry of the four-month period, that policy, and which can therefore be raised the implied decision rejecting that complaint only in limine litis, and those which, as a was merely a confirmation of the first matter of public policy, are absolute and rejection, and that no appeal, therefore, which, being of such a nature that they can could lie against that decision. be raised at any time by the Court of its own motion pursuant to Article 92(2) of the Rules of Procedure, may also be raised by the parties at any stage of the proceedings.

In fact, the rights of the defence. Commission never held an internal compe tition. What the applicant is objecting to is the defendant's refusal to offer him a 11. In the present case, in any event, the promotion-transfer, despite the fact that his objections raised by the Commission are name does not appear on the list of the clearly admissible. As I have stated, the persons capable of performing Category A Court has in previous decisions duties, because he considers that the acknowledged the absolute nature of bars to Commission need not adhere to that list. proceeding on the grounds of the absence The apparent reason for the dispute which of an interest in bringing proceedings, the seems to have arisen in relation to a refusal non-appealable nature of the contested act of admission to a competition is that the and the absence of a prior complaint. I shall applicant claims that under Article 29 of the now turn, therefore, to consider the Staff Regulations, taken as a whole, the relevance of those objections. Commission was under an obligation first to consider whether the post could be filled by promotion or transfer within the institution

OPINION OF MR DARMON — CASE 126/87

and on the fact that Article 29 of the Staff again, rejected by an implied decision on 11 Regulations does not apply to the January 1987 and then by an express confir­ recruitment of members of the temporary matory decision on 9 April 1987 contained staff. The issue would therefore appear to in a letter sent to the applicant through be perfectly adequately defined. administrative channels. The appeal was filed on 10 April 1987, before the expiry of the prescribed period.

16. The candidature submitted on 30 April 1986 must therefore be considered to have 20. However, in its judgment of 19 January been rejected by an implied decision on the 1984 in Andersen v Council, the Court expiry of the four-month period provided declared that for in Article 90(1) of the Staff Regulations, that is to say on 30 August 1986. The applicant submitted his prior complaint on 'in staff cases where it is a rule that a 11 September 1986, within the three-month complaint must necessarily be made before period prescribed in Article 90(2) of the 9 — Judgment of 9 December 1982 in Case 191/81 Plug v Staff Regulations. That prior complaint was, Commission [1982] ECR 4229, paragraph 13.

DEL PLATO v COMMISSION

5 26. In my opinion in the Bossi case, 1 I had 'under the system established by the Staff occasion to express my views with regard to Regulations, the official must submit a the interpretation of the concept of identical complaint against the decision which he is subject-matter. At that time the Court's contesting and appeal to the Court against case-law did not appear to be definitively the decision rejecting his complaint. When settled with regard to claims for damages those conditions are met, the action is tacked on to applications for annulment admissible whether it is directed against the brought before the Court when only the initial decision alone, the decision rejecting latter had been sought in a prior complaint. 12 the complaint, or both'. 13 — Judgment of 14 February 1989 in Case 346/87 Bossi v Commission [1989] ECR 303, paragraphs 9 and 10 10 — Judgment of 19 January 1984 in Case 260/80 Andersen v 14 — Judgment of 20 May 1987 in Case 242/85 Geist v Council [1984] ECR 177, paragraph 4 Commission[1987] ECR 2181, paragraph 9 See also the 11 — Judgment of 17 January 1989 in Case 293/87 Vainker v judgment of 10 December 1987 in Case 277/84 Jansch v Parliament[1989]ECR 23, paragraph 8 Commission [1987] ECR 4923, paragraph 10 12 — Judgment of 26 January 1989 in Case 224/87 Koutchoumoff 15 — Opinion delivered on 1 December 1988 in Case 346/87, v Commission [1989] ECR 99, paragraph 7 cited above

OPINION OF MR DARMON — CASE 126/87

32. I shall therefore first devote my Inasmuch as I am proposing that the Court consideration to the claim for the should declare the application for annulment of the rejection of the candi­ annulment inadmissible, I am naturally dature. In this regard, it is necessary to bear bound to put forward an opinion in favour in mind the points of law decided by the of the admissibility of the claim for Court in its previous judgment of 10 damages.

18 — Judgment of 30 May 1984 in Case 111/83 Picciolo v 16 — Cited above, paragraph 28. Parliament [1984] ECR 2323, paragraph 29; judgment of 17 — judgment of 12 December 1967 in Case 4/67 Muller v 29 October 1975 in joined Cases 81 to 88/74 Marenco v Commission [1967] ECR 365, especially pp. 373 and 374. Commission [1975] ECR 1287, paragraphs 6 and 7.

DEL PLATO v COMMISSION

December 1987 which form the back­ 35. The applicant has learned from that ground out of which the present case arose. decision. He claims, in substance, that:

19 - Joined Cases 181 to 184/86 Del Plato and Others v Commission, cited above, paragraphs 13 and 14 37. With regard to the first submission, it is 20 — Administrative Notices No 409 of 24 June 1983 true that the Commission could have

OPINION OF MR DARMON — CASE 126/87

appointed Mr Del Plato to the post in 'the appointing authority must be allowed a question, even though he was not on the list discretionary power covering all aspects of of candidates considered capable of potential importance for the recognition of performing Category A duties, if it had previous experience, both as regards the considered that there were objective reasons nature and duration of such experience and for considering that he had the appropriate as regards the extent to which it matches the 22 background for the vacant post. requirements of the post to be filled'.

40. The applicant claims that he had the required background and experience for the post in question since, he claims, he had 38. The Commission is not strictly bound already filled the post on a temporary basis. by the 'Procedures' it has established. It was perfectly entitled to choose an official whose name did not appear on the list if there were objective reasons for so doing. The Court has, in that connection, held 41. In that connection, the Court has made that: it clear that:

'although ... an official cannot be compelled to perform duties corresponding to a grade higher than his own, except on a 'although an internal directive has not the temporary posting, the fact that he agrees to character of a rule of law which the admin­ perform them may be a factor to be borne istration is always bound to observe, it in mind in connection with promotion, but nevertheless sets forth a rule of conduct does not give him the right to be indicating the practice to be followed, from reclassified'. 23

44. In its defence, the Commission states that members of the scientific and technical services are recruited essentially as Both those cases involved appointment as an temporary staff and that Article 29 of the official. Staff Regulations, which appears in Title III, 'Careers of Officials', is therefore not applicable to the case in issue. It is true that Article 1 of the Staff Regulations defines an official as a person appointed to an estab- lished post on the staff of one of the 46. It should also be noted that, even institutions of the Communities. Part II of should the Court decide that Article 29 is the Staff Regulations, moreover, includes applicable by analogy, it has in any event provisions (Articles 1 to 50a) relating speci­ recognized that the appointing authority has fically to temporary staff, which make a wide discretion, from the outset of the applicable by analogy certain articles of the recruitment procedure, to consider the Staff Regulations of Officials. Article 29 of possibilities of both internal and external 26 the Staff Regulations is not one of those recruitment. articles. It would therefore appear not to be applicable to the recruitment of a member of the temporary staff.

47. The four submissions made in support of the application for the annulment of the rejection of the applicant's candidature are therefore not, in my opinion, well founded. 45. The previous decisions cited by the applicant with reference to Article 29, moreover, do not appear to be relevant.

48. As I stated earlier, the dismissal of the first claim for annulment means that the claim for the annulment of Mr Timm's 24 appointment is inadmissible, and that the (i) The Van Belle judgment states that claim for the annulment of the implied candidates who are already officials of decision rejecting the prior complaint and the Communities may not be excluded the claim for damages must be dismissed on from a recruitment procedure other their merits. than a competition to fill an official's post. 25 — Judgment of 7 October 1985 in Case 128/84 van der Stijl v Commniwn [1985) ECR 3281 24 — Judgment of 5 December 1974 in Case 176/73 Van Belle v 26 — Judgment of 14 July 1983 in Case 10/82 Mogemen v Council [1974] ECR 1361 Commission [1983] ECR 2397.