C-133/88

3. The simplicity of this case cannot conceal the importance of the principles which the 1. Mr Casto Del Amo Martinez, an official Court is asked to affirm, concerning the of the European Parliament, lodged an relationship between a complaint through official complaint on 17 December 1987 official channels under Article 90(2) of the against the decision whereby the selection Staff Regulations and an application to the board for Internal Competition No LA/104, Court, and hence ultimately the whole held to constitute a reserve of Principal conception of the system for safeguarding Translators of Spanish and Portuguese, had the rights of Community officials. There is not included him in the list of suitable no doubt that the case-law of the Court on candidates. this matter discloses, besides certain clear and consolidated principles, some uncer­ tainties and contradictions which need to be resolved. In his complaint Mr Del Amo Martinez sought the annulment of the decision for infringement of the provisions of the Staff 4. One point has been clarified on several Regulations governing the procedure for occasions, and I do not consider that it competitions, arguing in particular that the should be called in question. Ever since the duty of secrecy incumbent on the members Sergy judgment of 1 July 1976 in Case of the selection board had been infringed, 58/75 [1976] ECR 1139, the Court has that those members were not sufficiently affirmed that the procedure commenced by qualified and that the principle of equality a complaint through administrative channels of treatment had been breached. is intended 'to enable and encourage an amicable settlement of difference [sic] which has arisen between officials or servants and the administration'. Similarly, in the Herpels In his application to the Court, lodged on judgment of 9 March 1978 in Case 54/77 10 May 1988 after the Secretary-General of [1978] ECR 585, the Court stated that the the Parliament had expressly rejected the administrative stage anticipates an complaint, Mr Del Amo Martinez seeks the 'exchange' ('débat', 'debattito') between the annulment of that decision, claiming solely official and the administration and that the that his particular experience has been official acts for himself, that is to say, incorrectly assessed. without the technical assistance of a lawyer, but added the logical and significant rider that during that phase the administration is under an obligation to interpret and 2. By memorandum of 16 August 1988 the evaluate the substance of the complaint with European Parliament pleaded the inadmissi­ all the care that a large and well-equipped bility of the application, contending that the organization owes to those having dealings single ground set out in the application itself with it, including members of its staff.

'Although the applicant does not expressly 5. A further point confirmed by the Court ask in his complaint to be reinstated in his on several occasions, and fundamentally former post, such a request is implicit in the consistent with the non-litigious nature and general request for his administrative conciliatory purpose of the procedure, is situation to be regularized. As no formal that the official must set out his criticisms administrative measure provided for by the and wishes in the complaint to the adminis­ Staff Regulations has been adopted to tration so that there is a real attempt to transfer the applicant in accordance with reach a settlement and must, as far as the prescribed procedure to another possible, ensure that whatever is sought in department, and in the light of his previous any subsequent action before the Court will representations, the Commission could not already have been the subject of the have been unaware that, by asking for his previous 'exchange' with the administration. "administrative situation to be regularized", the applicant meant that a post should be found corresponding to his category and grade, in the first instance in the adminis­ In this respect, however, the case-law of the trative unit to which officially he has always Court, apart from making that general been assigned.' point, reveals some hesitation and several contradictions regarding the approach laid down in the judgments cited on the nature of an official complaint, particularly in respect of the relationship between the content of the complaint and that of the In the Rihoux judgment of 7 May 1986 in application to the Court. Case 52/85 [1986] ECR 1555 and the Geist judgment of 20 May 1987 in Case 242/85 [1987] ECR 2181, on the other hand, the 6. In the Razzouk judgment of 20 March Court, although citing the Sergy, Razzouk 1984 in Joined Cases 75 and 117/82 [1984] and Rasmussen judgments, declared inad­ ECR 1509, for example, the Court held an missible those submissions in the application alternative claim not included in the that had no connection with the criticisms complaint to be admissible, regarding it as a contained in the complaint, even though the consequence of the Commission's refusal to claims before the Court did not differ from accede to the main claim. In the Rasmussen those which had been the subject-matter of judgment of 23 January 1986 in Case the complaint. In the Schwiering judgment 173/84 [1986] ECR 197, the Court declared of 23 October 1986 in Case 142/85 [1986] a claim admissible which had not appeared ECR 3177, the (main) conclusions either in the official complaint or even the previously contained in the complaint were earlier requests, the rejection of which had held to be admissible, whereas an alternative been challenged in the complaint. claim included for the first time in the application to the Court was declared inad­ missible. Substantially the same approach In particular, the Court, after citing the was adopted in the Aldinger judgment of 14 passage from the Sergy judgment quoted July 1988 in Case 23/87 [1988] ECR 4395.

(c) the petitum must be the same, except that the application may contain new 7. In the face of such discrepant judgments, claims related to those set out in the I consider it first necessary finally to draw a complaint, with a considerable degree of clear distinction between petitum and causa freedom existing as regards the causa petendi, in other words, between the claim petendi {Rasmussen, Koutcboumoff and (for example, the annulment of an act or Bossi judgments). competition procedure, the cancellation of a transfer, a promotion or the award of an allowance) and the factual and legal basis for the claim (infringement of a provision, misuse of powers, infringement of essential procedural requirements, such as the unlawful composition of a selection board, 9. I believe that the first hypothesis should errors in awarding marks, and so on). The be ruled out altogether, inasmuch as it principle is valid whatever terminology may manifestly runs counter to the conciliatory be used ('subject matter — grounds', aims and informal nature of the adminis­ 'conclusions — moyens', 'Streitgegenstand trative procedure. In particular, the — Klagegründe'), although the traditional requirement that the legal basis for the distinction in Latin seems to me the most claim be set out in full in the complaint, on correct and comprehensible. pain of loss of rights, strikes me as being unreasonable — if only because at this stage there is no technical assistance from a lawyer such as is expressly required for the 8. Having said that, I think that the application to the Court (Article 37(1) of following solutions are possible: the Rules of Procedure). Moreover, such a solution would conflict with Article 90(2) of the Staff Regulations, which requires reasons to be stated only for the reply given (a) both the petitum and the causa petendi by the institution concerned, not for the must be the same in the official official's complaint as well, whereas Article complaint and the application to the 38(1)(c) of the Rules of Procedure requires Court, which implies the total inadmissi­ the application to the Court to state 'the bility before the Court of any new claim subject-matter of the dispute and the or any submission which has not been grounds on which [it] is based'. A further explicitly set out in the complaint difference of treatment would result, to the (Rihoux and Geist judgments); detriment of the official, since the institution is in no way bound to provide any expla­ nations at all during the administrative procedure but may ultimately reveal its legal (b) the petitum and the causa petendi must position only in the judicial proceedings. be the same, except that the application Lastly, it should be borne in mind that the may contain new claims and new process commenced by the complaint is not

13. I therefore propose that the application should be declared admissible and that the Court should proceed to consider the substantive issues.

1 — Incidentally, as regards the moment at which the subject- matter of the dispute is definitively fixed, I consider it necessary to exclude any parallel between the adminis- trative procedure envisaged by Anicie 90 of the Staff Regulations and the pre-litigation procedure under Anicie 169 of the EEC Treaty relating to the failure of a Member State to fulfil its obligations. The duty to define ine petition and the catita pelenai at the pre-litigation stage of such actions against a Member State flows from the very wording of Article 169, which expressly requires the Commission to 'deliver a reasoned opinion' (emphasis added). This is reflected in successive judgments of the Court, according to which the scope of the dispute, in actions brought against Member States for failure to fulfil an obligation, is definitively fixed by the reasoned opinion — that is, during the pre-litigation procedure (see for example the judgment of 23 February 1988 in Case 353/85 Commimon v United Kingdom [1988] ECR 817). None of the above is to be found in Article 90 of the Staff Regulations concerning the conditions governing a complaint lodged by an official.