C-119/94

1. In this case Mr Dimitrios Coussios publication of the vacancy notice of 2 May appeals from a judgment given by the Court 1991 and the republication of 8 July of First Instance in Joined Cases T-18/92 and 1991 and decided that none of the candidates T-68/92 Dimitrios Coussios v Commission. ' could be considered for the post. On 10 Jan- The facts can be restated briefly as follows. uary 1992, the Commission informed On 10 April 1991 the Commission decided Mr Coussios that his application could n o t to create a new unit in Directorate General be considered. The Commission decided, o n VII dealing with air safety, air traffic control 13 February 1992, not to fill the vacant post and industrial policy, a unit which would by way of promotion or transfer and not t o carry the denomination 'C.3'. The Commis- organize an internal competition but to hold sion published vacancy notice COM/64/91 an open competition. By note dated 14 April on 2 May 1991 concerning the post of head 1992 the Chairman of the Advisory Com- of this new unit and Mr Coussios applied for mittee on Appointments notified M r Cous- it on 5 May 1991, as did four other candi- sios of the Commission's decision of 13 Feb- dates. N o one was appointed to the pub- ruary. Mr Coussios lodged a complaint o n lished post. O n 16 June 1991 Mr Coussios 22 April 1992 against the decision of 13 Feb- was appointed deputy head of that unit. O n ruary 1992. Since the Commission failed t o 5 July 1991 the Commission invited the reply to the complaint within four months, other institutions to inform their personnel the complaint was deemed to have been of the vacancy notice COM/64/91. N o can- rejected implicitly on 22 August 1992, in didate from another institution came for- accordance with the second subparagraph of ward. O n 8 July 1991, the vacancy notice Article 90(2) of the Staff Regulations. O n was republished and the qualifications 28 September 1992 Mr Coussios received an required were different from those required express rejection of his complaint. according to the first publication of the notice. Mr Coussios reapplied for the pub- lished vacancy and three new candidates applied. On 8 October 1991 Mr Coussios lodged a complaint against the republication of the vacancy, which the Commission rejected on 28 January 1992. O n 13 Decem- ber 1991 the Advisory Committee on Appointments examined the eight applica- tions received as a result of both the original

the second, in Case T-68/92, he sought the complaints but held that Mr Coussios was annulment of the decision of 13 February entitled to be given reasons for the rejection 1992 not to fill the vacant post by way of of his complaint against the decision not to promotion or transfer and not to organize an promote him to the vacant post. He had internal competition but to hold an open been given no such reasons by the date his competition. In the second application, he application to the Court was lodged (i. e. also requested an award of E C U 100 000 in 18 September 1992, 10 days before the damages for the failure of the Commission Commission's express decision to reject his to produce his staff report for 1987/89 in a complaint). 2 The Court went on to hold that timely fashion. the decision not to organize an internal com- petition but to organize an open one was illegal because it was tainted by the illegality of the decision rejecting the application of Mr Coussios: the Court stated at paragraphs 102 and 103 of its judgment, relying on para- graph 10 of the judgment in Küster v Parlia- ment, 3 that the rejection of applications for promotion or transfer under Article 29(l)(a) 3. In its judgment, the Court of First of the Staff Regulations is a necessary pre- Instance dismissed the first application in its condition for passing on to the subsequent entirety. In particular, the Court held that stages of the procedure laid down in Arti- the decision to republish the post contained cle 29(1) since that provision establishes an a sufficient statement of reasons. It stated order of priority as between the different that the context of the decision to republish stages for which it provides. However, the vacancy was such as to enable Mr Cous- instead of annulling the decision not to orga- sios to comprehend why the vacancy had nize an internal competition but to hold an been republished with a change in the quali- open competition, the Court of First fications required for the post in question. It Instance ordered the Commission to pay the also held that in seeking to challenge the way applicant damages in the amount of in which the Commission examined the E C U 2 000. The remainder of the application applications both of the candidates who had in Case T-68/92 was dismissed. In particular, applied for the post the first time and of the submission according to which the those who had applied after the republica- decision to reject the application of tion Mr Coussios in reality sought to chal- Mr Coussios was illegal because his staff lenge the decision of the Commission to reports were not prepared punctually reject his application, which decision was enough for them to be considered by the subsequent to the one whose annulment he Selection Board was rejected because the was seeking. Court of First Instance found that their absence did not have a decisive effect on the outcome of the selection process. In conse-

6. As already mentioned, although the Court of First Instance reached the conclu- sion that the illegality of the rejection of the applicant's candidature entailed, by way of consequence, the illegality of the decision not to organize an internal competition and 8. Before examining that submission, I the decision to hold an open competition, it should mention that I am not convinced that, refrained from annulling those decisions. It as a matter of law, the illegality of the rejec- held that, by virtue of the principle of pro- tion of the candidature of Mr Coussios did portionality, it was necessary to reconcile the entail the illegality of the subsequent deci- interests of the applicant, who had been the sions. If a person is unlawfully denied a rea- victim of an unlawful act, and the interests of soned decision, that can in some instances be third parties (including those of the candi- remedied by giving him a reasoned decision. date who was appointed to the post) and, for It does not necessarily entail invalidating all that reason, to take into account not only the the procedures consequent upon the initial need to restore the rights of the applicant but illegality. But it is unnecessary to pursue the also the legitimate expectations of third par- ties. Accordingly, instead of annulling the decisions in question, it awarded Mr Cous- 4 — Case 24/79 OberthUr v Commission [1980] ECR 1743. sios E C U 2 000 by way of 'compensation for 5 — Case C-242/90 P Commission v Albani [1993] E C R 1-3839.

I -1443

OPINION OF MR JACOBS — CASE C-119/94 P

9. The submission of Mr Coussios that the balancing of interests carried out by the Court of First Instance was manifestly erro- neous must, in my view, be rejected. The rea- sons can be stated very shortly. First, the Court of First Instance was plainly entitled to take the view that, in all the circum- stances, it should not invalidate the entire appointment procedure because of the for- 10. Mr Coussios has also made certain com- mal irregularity affecting Mr Coussios. That plaints about the timing of the proceedings could well have been an excessive and dis- before the Court of First Instance. In proportionate remedy. Secondly, the sugges- essence, he claims that judgment was delayed tion that Mr Coussios, if he could not be as a consequence of the reopening of the oral appointed to the post in question, had a right procedure and that that delay allowed the to be appointed to an equivalent post is man- Commission to begin disciplinary proceed- ifestly unsupportable. As this Court held in ings against him and to appoint another per- the Küster case, already cited, the provisions son to the post in question on the day that of the Staff Regulations in question do not the disciplinary measure taken against him give officials, even if they fulfil the condi- took effect. He also states that the second tions for promotion, a personal right to pro- hearing before the Court of First Instance motion; moreover, as the Court also empha- was set down for a date after the expiry of sized, the appointing authority has a wide the time for him to lodge a complaint against discretion in the matter. 6 Thirdly, in so far as the disciplinary proceedings. I cannot see Mr Coussios can be taken to contest the how the reopening of the oral phase of the amount of damages awarded to him, it must procedure before the Court of First Instance in the present case has any bearing on disci- plinary proceedings which may have been 6 — See paragraphs 10 to 12 of the judgment. commenced against Mr Coussios for other

14. I do not agree that the appellant's second submission is inadmissible. The tenor of his 11. By his second submission, Mr Coussios submission on this point is not that his invokes a principle according to which he counsel failed to follow his instructions and could not legally waive or renounce his that therefore the Court of First Instance rights under the Staff Regulations. Conse- could not make such an award but that that quently the Court of First Instance acted Court erred in seeking an agreement unlawfully in awarding him damages rather between the parties on such an award. What than annulling the contested decisions. He he submits in effect is that the Court of First states that, although his counsel agreed, at Instance could not ask the parties to agree to the second hearing, to the principle of an a remedy which resulted in him waiving his award of damages, he himself did not, and statutory rights. protested verbally to that effect at the hear- ing.

15. It is clear from the judgment of the Court of First Instance 7 that the parties had in fact agreed that an award of damages was 12. Mr Coussios considers that it was wrong the most appropriate remedy. Whether the for the Court of First Instance to 'instigate' agreement was entered into by Mr Coussios an agreement between the parties according to which he waived his statutory rights, in particular those he held by virtue of Arti- cles 7, 25, 26, 29, 43, 45 and Annex I of the 7 — Paragraph 107.

I - 1445

OPINION OF MR JACOBS — CASE C-119/94 P

8 — See Oberthiir, cited above, note, paragraph 14 of the judg- ment.

I - 1446