C-135/87
ECLI:EU:C:1988:231
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OPINION OF MR LENZ — CASE 135/87
OPINION OF MR ADVOCATE GENERAL LENZ delivered on 4 May 1988 *
Mr President, instead of laying down the criteria in Members of the Court, question beforehand. 2
3. The applicant now takes the view that A — Facts after the annulment of Mr. K.'s appointment, she should have been appointed to the post in question as the only other person on the list of suitable candidates. The Court of Justice, she 1. In the action which forms the subject- maintains, annulled only the appointment of matter of this Opinion, the applicant, Mrs Mr K., the intervener, but not the entire list Androniki Vlachou, a translator at the of suitable candidates drawn up in Compe Court of Auditors of the European tition No CC / LA / 20 / 82 . Communities, asks the Court of Justice to declare that the Court of Auditors, the defendant, wrongly refused to appoint her to a post of reviser/principal translator, and 4. Furthermore, the applicant alleges an to annul the interinstitutional competition to infringement of Article 29 of the Staff fill two posts of revisers/principal trans Regulations, inasmuch as the defendant was lators. obliged, in the event of the annulment of the competition in question, to organize a competition of the same kind, instead of holding an interinstitutional competition. 2. The procedure to fill the aforesaid post has already formed the subject-matter of the Court's judgment of 6 February 1986 in 5. After lodging a complaint, the applicant Case 143/84. 1 As a result of Internal instituted proceedings in which she claims Competition No CC / LA / 20 / 82 , the that the Court should: defendant had appointed to the post Mr K., the intervener in Case 143/84 and in this case. The Court annulled that appointment in the aforesaid judgment on the ground declare that the decisions rejecting her that the list of suitable candidates had been request of 21 March 1986 and her drawn up in an unlawful manner by the complaint of 14 October 1986 are unlawful Selection Board for the aforesaid compe and therefore annul them; tition. In particular the Selection Board had laid down the criteria for the award of marks for documentary attestation of the candidates' experience only after taking declare that she is entitled to the cognizance of the relevant documents, LA 5/LA 4 post in question in the Greek translation section of the Court of Auditors; * Translated from the German. 1 — Judgment of 6 February 1986 in Case 143/84 Androniki 2 — See paragraphs 19 to 21 of the aforesaid judgment (also set Vlachou v Court of Auditors [1986] ECR 473. out at the beginning of the Report for the Hearing).
VLACHOU v COURT OF AUDITORS
declare void Competition No result of the illegality of that decision, the CC / LA / 10 / 86 published by the Court of defendant maintains, the list of suitable Auditors; candidates drawn up by that Selection Board on the basis of the contested criteria was invalid. In those circumstances, it was order the Court of Auditors to pay the not possible for the defendant to appoint costs. the applicant on the basis of a list of suitable candidates which had been declared unlawful by the Court of Justice. 6. The defendant contends that the Court should: 10. As for the alleged infringement of Article 29 of the Staff Regulations, the defendant maintains, the Court has consis dismiss the action as inadmissible or, at the tently held that it is for the appointing very least, as unfounded; authority to determine, in accordance with the order of preference set out in Article 29, the appropriate method of filling vacant order the applicant to pay the whole of the posts in the institution concerned. costs.
11. Finally, the Court of Auditors asks that 7. The intervener supports the defendant's the applicant be ordered to pay the whole of conclusions. the costs on account of the vexatious nature of her action.
8. The defendant regards the action as inadmissible inasmuch as it concerns essen 12. The intervener is essentially in tially the interpretation of the Court's agreement with the defendant's arguments. judgment of 6 February 1986 in Case 143/84. In its view, instead of bringing an action for annulment, the applicant should B — Analysis have applied to the Court of Justice on the basis of Article 40 of the Protocol on the 13. I do not share the defendant's Statute of the Court of Justice of the EEC objections to the admissibility of the action. for the interpretation of that judgment. The Even though one of the legal points raised, action is also inadmissible, according to the namely what consequences are to be drawn defendant, in so far as it seeks the from the Court's judgment of 6 February annulment of the decision rejecting the 1986 in Case 143/84, 2 could have been request submitted by the applicant on 21 clarified by means of an interpreting March 1986. judgment pursuant to Article 40 of the Protocol on the Statute of the Court of Justice of the EEC or Article 102 of the 9. With regard to the substance, the Court's Rules of Procedure, it does not defendant contends that the procedure follow from the fact that another particular followed in Competition No CC / LA / 20 / 82 type of procedure was available in this case was vitiated by a defect, namely the that the normal legal remedies can no illegality of the Selection Board's decision longer be relied upon by the applicant. laying down the criteria for the award of marks for documentary attestation of 2 — See paragraphs 19 lo 21 of the aforesaid judgment (also set practical experience of candidates. As a out at the beginning of the Report for the Hearing).
OPINION OF MR LENZ — CASE 135/87
14. Nor can the action be declared inad not properly appoint the applicant to the missible as a result of the manner in which post of reviser/principal translator. the applicant's conclusions are formulated. When the applicant seeks the annulment of 'the decisions rejecting her request of 21 March 1986 and her complaint of 14 18. That brings me to the second question, October 1986', it is quite clear, if that claim namely whether the defendant was obliged is properly interpreted, that it relates to the to rerun Internal Competition No measure adopted by the defendant in its CC / LA / 20 / 82 in order to enable a valid list decision of 29 January 1987 in response to of suitable candidates to be drawn up, or the complaint of 14 October 1986. In my whether it was entitled to organize a new view, the fact that the rejection of the competition, as it did by holding an interin- applicant's request of 21 March 1986 was stitutional competition ( CC / LA / 10 / 86 ). mentioned separately does not adversely affect the admissibility of the action.
19. In that connection, the Court has held that, having initiated a recruitment procedure, the appointing authority is not 15. I shall be brief, so far as the substance is invariably obliged to pursue it by filling the concerned. 3 vacant post, at least where there are serious reasons which justify such an attitude being taken by the appointing authority. 16. The first question which arises is whether the applicant can claim to be entitled to be appointed as a reviser/ principal translator on the basis of Internal 20. That applies a fortiori where a compe Competition No CC / LA / 20 / 82 . tition has not yet come to an end but should — if only because it is vitiated in certain fundamental respects — be or ganized afresh virtually from the outset. 17. Although the applicant is right in stating In a situation of that kind, the appointing that, in its aforesaid judgment of 6 February authority must once again be in a position 1986, the Court of Justice expressly to determine which type of competition it adjudicated only on the appointment of the considers appropriate to guarantee it a suffi intervener and that the operative part of the ciently wide choice to ensure recruitment in judgment is silent with regard to the validity accordance as far as possible with the 4 of the list of suitable candidates drawn up in requirements of the post to be filled. that competition, the fact remains that the intervener's appointment was annulled owing to an irregularity in the manner in which the Selection Board drew up the list 21. If, moreover, it is borne in mind that, of suitable candidates. Accordingly, Compe according to the case-law of the Court, the tition No CC / LA / 20 / 82 did not give rise to conditions set out in a vacancy notice can the establishment of a valid list of suitable also be annulled for sound reasons and candidates on the basis of which the applicant could be appointed to the post in 3 — Judgment of 24 June 1969 in Case 26/68 Jeannette Fux v Commission [1969] ECR 145, and judgment of 9 February question. Since the defendant was obliged to 1984 in Joined Cases 316/82 and 40/83 Nelly Kohler v abide by that ancillary finding made in the Court of Auditors [WM] ECR 641. 4 — Judgment of 25 November 1976 in Case 123/75 Bertold grounds of the Court's judgment, it could Küster v European Parliament [1976] ECR 1701.
VLACHOU v COURT OF AUDITORS
replaced by an amended vacancy notice, Procedure, with the result that the applicant and that the appointing authority is not would be ordered, by derogation from the therefore bound by the notice which it has general provisions of Article 70 of those published, the appointing authority must rules, to pay the whole of the costs also be entitled to alter the nature of the inasmuch as she unreasonably or vexatiously competition as provided for in Article caused the other parties to incur them. 1 (1) (a) of Annex III to the Staff Regu lations and to select a competition internal 25. Even though it may have been apparent to the institutions in preference to a compe from the outset that there was little prospect tition internal to the institution, provided it of the action being successful as regards the is justified in doing so. implementation of the Court's judgment of 6 February 1986 in Case 143/84, there can 22. In view of the tension which, as the be no doubt that the applicant has an Court is aware, exists within the Greek interest in asking the Court to review the translation section of the Language Service legality of the transition from a competition of the Court of Auditors, it cannot be internal to the institution to a competition seriously disputed that the defendant might internal to the institutions. I therefore have had sound reasons, in the interests of consider that the action, at least so far as the service, for widening its range of choices the applicant's second contention is in order to fill the post in question and concerned, cannot be regarded as unrea organizing an interinstitutional competition sonable or vexatious. to that end. 26. I therefore suggest that the applicant 23. On those grounds, therefore, I consider should be ordered to bear her own costs that the action should be dismissed. and those of the intervener. The defendant 24. So far as the costs are concerned, the should be ordered, in accordance with defendant and the intervener seek the Article 70 of the Rules of Procedure, to application of Article 69 (3) of the Rules of bear its own costs.
C — Conclusion
I therefore suggest that the Court of Justice:
27. '(1) dismiss the action;
(2) order the applicant to bear her own costs and those of the intervener;
(3) order the defendant to bear its own costs.'
5 — Judgment of 30 October 1974 in Case 188/73 Daniele Gmssi vCouncil [1974] ECR 1099.