C-174/99

PARLIAMENT V RICHARD

OPINION OF ADVOCATE GENERAL MISCHO delivered on 16 March 2000 *

1. On 10 May 1999, the European Parlia- European Parliament) appoint Mr Richard ment brought an appeal against the judg- to the post. ment of the Court of First Instance of 9 March 1999 1 in an action brought against the Parliament by Mr Richard, an official of that institution. 4. However, the appointing authority deci- ded to extend the range of potential candidates and consulted the reserve lists established following the open competi- tions for Grade A 3 posts reserved for 2. The facts of the case were established by nationals of the new Member States pur- the Court of First Instance as follows. suant to Council Regulation (EC) No 626/95 of 20 March 1995 introducing special and temporary measures applicable to the recruitment of officials of the Eur- opean Communities as a result of the accession of Austria, Finland and Sweden. 2 3. Following publication of a vacancy notice for a Grade A 3 post as Head of Division 'Equipment and internal service' in Directorate A 'Infrastructures and inter- nal service' of the Directorate-General 'Administration' ('DG VI') published in 5. The Head of the Personnel Division, on 1996 by the Parliament in accordance with learning of the decision of the Director- the recruitment procedure provided for in General of DG VI, sent the latter a Article 29(1) of the Staff Regulations of memorandum on 23 September 1996, in Officials of the European Communities the following terms: ('the Staff Regulations'), the Director-Gen- eral of DG VI considered that, of the twelve candidates eligible for promotion or trans- fer, two had the necessary qualifications and satisfied the requirements for the post. 'Following publication of the abovemen- The Director-General proposed that the tioned vacancy notice, you concluded, by appointing authority (the Bureau of the memorandum of 25 July 1996, that of the twelve applications eligible for appoint- * Original language: French. 1 — T-273/97 Richard v' Parliament [1999] ECR-SC II-235 ('the contested judgment ). 2 —OJ 1995 L 66, p. 1.

9. On 6 May 1997, Mr Richard lodged a complaint, seeking annulment of the 6. By memorandum of 26 September 1996, appointing authority's decision. That com- the Director-General of DG VI replied to plaint was rejected and the President of the the memorandum of the Head of the Parliament wrote to Mr Richard stating, Personnel Division, stating that it was for inter alia: the appointing authority to take a decision on the proposal that Mr Richard be appointed and that, as things stood, he was not required to consult the other reserve lists. 'The Bureau, in its capacity as [appointing authority], has considered your complaint and has asked me to inform you of its decision and of the reasons on which it is based. 7. In a further memorandum of 11 October 1996, the Director-General of DG VI set out the operational criteria which had led him to propose that Mr Richard be appointed, and continued: I should first point out that, where a vacant post is to be filled, the appointing authority is not bound absolutely to fill it by promotion or transfer, even if suitable candidates for promotion or transfer are 'Should [the appointing authority] consider available, but that it must simply consider that those practical qualifications were less in turn whether each of the procedures laid important than more geographical criteria, down in Article 29(1) of the Staff Regula- I have formed the view after examining the tions can result in the appointment of a

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person of the highest standard of ability, Staff Regulations of maintaining or restor- efficiency and integrity. ing geographical balance in its staff'.

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15. This first plea of inadmissibility cannot alleged that, within the internal structure of be upheld. Under Article 2(1) of the Staff the Parliament, the Parliament's right to Regulations, each institution is to deter- bring an appeal was dependent on a mine who within it is to exercise the powers decision of the appointing authority. conferred by the Staff Regulations on the appointing authority.

19. At the hearing on 27 January 2000, Mr Richard raised a second objection of inadmissibility, alleging that the Parliament had no interest in lodging the appeal. 16. The appointing authority is therefore a manifestation of the institution which established it and is required only to exercise the powers conferred on it.

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22. That is indeed the case: the Parliament's an institution whose act has been appeal was lodged on 10 May 1999, the declared void is required to take the response was lodged on 15 July 1999 and necessary measures to comply with the the vacancy notice was withdrawn on judgment. Those measures do not con- 4 October 1999. Mr Richard was therefore cern the elimination of the act as such entitled to introduce this new plea at the from the Community legal order, since hearing. that is the very essence of its annulment by the Court. They involve, rather, the removal of the effects of the illegalities found in the judgment annulling the act. The annulment of an act which has 23. The Parliament, however, contended already been implemented or which that it still had an interest in lodging the has in the meantime been repealed appeal. In that regard, it referred, without from a certain date is thus still capable more, to the judgment of the Court of First of having legal consequences. Such Instance in Antillean Rice Mills and Others annulment places a duty on the institu- v Commission. 4 tion concerned to take the necessary measures to comply with the judgment. The institution may thus be required to take adequate steps to restore the applicant to its original situation or to avoid the adoption of an identical 24. The relevant paragraphs of the judg- measure 5(see Case 92/78 Simmenthal ment read as follows: v Commission [1979] ECR 777, para- graph 32; AKZO Chemie, cited above, p a r a g r a p h 2 1 ; and Case 207/86 Apesco v Commission [1988] ECR 2151, paragraph 16).' '59 It is settled law that a claim for annulment is not admissible unless the applicant has an interest in seeing the contested measure annulled... Such an interest can be present only if the annulment of the measure is of itself capable of having legal consequences (see Case 53/85 AKZO Chemie v Commission [1986] ECR 1965, para- graph 21).

'It must be emphasised that the action was brought within the time-limit prescribed in In Simmenthal v Commission: the third paragraph of Article 173 of the Treaty. Moreover, Apesco has an interest in challenging the list for July 1986, even though it is no longer applicable, in order to prevent a repetition of the alleged illegality in future lists' (paragraph 16). 'Even though the contested decision has already been fully implemented for the benefit of the other tenderers participating in the same invitation to tender the appli- cant retains an interest in the annulment of 26. In the present case, however, the situa- this decision; such interest consists either in tion is somewhat different. On the one its being restored sufficiently by the Com- hand, the Parliament is seeking not to have mission to its original position or in a measure annulled but to have a judgment inducing the Commission to make suitable side aside. Should the judgment be set amendments in the future to the system of aside, the consequence would be not the invitations to tender if the latter is found to annulment but the confirmation of a deci- be incompatible with certain legal require- sion adopted by the Parliament itself (the ments' (paragraph 32). decision to appoint Mrs S.), which it has withdrawn in the meantime.

application, the Parliament states that the regards the appellant, and declare the contested judgment and the reasoning appeal inadmissible or devoid of purpose therein are inconsistent with previous deci- for that reason. For an applicant to have an sions of both the Court of Justice and the interest in bringing proceedings the appeal Court of First Instance on the procedure for must be likely, if successful, to procure an filling vacant posts laid down in Article 29 advantage 7 to the party bringing it.' of the Staff Regulations. The Parliament maintains that this raises serious doubts from the legal point of view and leads to pernicious uncertainty in relation to the proper administration of the posts in the 31. The present case does not concern an organisation plans of the institutions. event subsequent to the judgment of the Therefore, the interpretation of Article 29 Court of First Instance that removes the of the Staff Regulations is clearly of interest prejudicial effect thereof as regards the not only to the Parliament, but also to all appellant. Furthermore, it is the appellant the other institutions. itself that was responsible for the event in question.

29. Thus the Parliament's appeal takes on the aspect of an appeal 'in the interest of 32. Could it be said, in fact, that a judg- the law'. Such a right of appeal, however, ment of the Court of Justice setting aside has not been conferred on the Parliament, the judgment of the Court of First Instance either by the Treaty or by the Staff Regula- would be likely to procure an advantage to tions. the Parliament?

(c) what applications for transfer have been made by officials of other institu- tions of the three European Commu- nities; 35. That, to my mind, is sufficient reason not to dismiss the appeal as inadmissible.

and then follow the procedure for competi- tions on the basis either of qualifications or of tests, or of both qualifications and tests. Annex III lays down the competition pro- Substance cedure.

36. The Parliament's appeal concerns the The procedure may likewise be followed interpretation of Article 29(1) of the Staff for the purpose of constituting a reserve for Regulations. That provision is worded as future recruitment.' follows:

37. In paragraph 3 of its application, the 'Before filling a vacant post in an institu- Parliament submits that the contested judg- tion, the appointing authority shall first ment is consistent with earlier case-law: consider:

'— on the scope of the appointing author- ity's discretion and the fact that it is (a) whether the post can be filled by unable to extend its range of choices if promotion or transfer within the insti- a worthy candidate has applied in the tutions; previous stage;

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40. In paragraph 6 of its pleadings, the Parliament expressly accepts that Mr Ri- chard's argument before the Court of First Instance that the appointing authority was 43. But what is the position where, on the not entitled, after considering the applica- other hand, the appointing authority con- tions for transfer and promotion, to pro- cludes that one or more of the candidates ceed directly to a consideration of the have the necessary qualifications to fill the reserve lists established following open vacant post?

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if it considers that it has insufficient choice for the appointing authority to determine, to ensure that an appointment is made in in the exercise of its discretion, whether or accordance with the vacancy notice, to not it has found a 'worthy' candidate. If a extend its choice in order to find the best satisfactory candidature has been submit­ candidate for the vacant post, as was held ted, the appointing authority is required to in Anacoreta Correia v Commission and choose that candidature and cannot con­ Kotsonis v Council. 9 sider candidatures submitted in the subse­ quent stages. If there is no worthy candi­ date, the appointing authority may only 8 — Case 23/74 [1975] ECR 353 ('Küster ľ) and Case 123/75 proceed to the subsequent stages after [1976] ECR 1701 ('Küster II'). rejecting all the candidatures received in 9 —Case T-118/95 [1996] ECR-SC I-A-283 and 11-835 and the current stage. Case 246/84 [1986] ECR 3989.

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50. It cannot be disputed, therefore, that the appointing authority must first care- fully examine the applications for promo- tion or transfer. 54. In Küster II, the Court confirmed that the fact of satisfying the necessary condi- tions for a vacant post does not confer a right to be appointed to that post. The 51. The order of preference established by Court held as follows: Article 29(1) of the Staff Regulations must be understood to be 'the expression of the principle that all officials are entitled to reasonable career prospects within their institution'. 12 'Although Article 29(1)(a) of the Staff Reg- ulations provides that before filling a 10 — Case 176/73 [1974] ECR 1361. vacant post in an institution, the appointing 11 —Case C-304/97 P Carbajo Ferrero v Parliament [1999] authority shall first consider whether the ECR I-1749; Case T-140/94 Gutiérrez de Quijano y post can be filled by promotion or transfer Llorens v Parliament [1996] ECR-SC I-A-241 and II-689; Case T-52/90 Volger v Parliament [1992] ECR II-121; and Case T-3/97 Campogrande v Commission [1998] ECR-SC I-A-89 and II-215. 12 — Campogrande v Commission, cited above. 13 — Paragraphs 25 and 26.

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within the institutions, it does not give candidate suitable for promotion (para- officials who fulfil the conditions for pro- graph 17 of Küster II) as where several motion a personal right to promotion, since candidates are available. the filling of each post must in accordance with the first paragraph of Article 27 of the Staff Regulations be based in the first place on the interests of the service. 56. In fact, 'the presence of several persons having the qualifications for promotion or transfer within the institution may lead the appointing authority to conclude that the interests of the service and the impartiality Moreover, Article 45(1) of the Staff Reg- of recruitment render an internal competi- ulations provides that "Promotion shall be tion desirable'. 15 exclusively by selection ... after considera- tion of the comparative merits of the officials eligible for promotion ...".

does not prevent the authority, in the professional experience was closest to (or course of such an examination, from also least removed from) that required for the taking account of the possibility of obtain- post in question. In the final analysis, as the ing better candidates by using the other reply to the complaint acknowledges, procedures mentioned in that paragraph. Mrs S. was recruited 'in order to ensure Consequently the appointing authority is at sufficient representation of nationals of the liberty to consider the subsequent options.' new Member States'. I shall return to that point when I deal with the third plea.

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graph 29 of the contested judgment, that 66. The judgment in Coussios v Commis- '[t]he rejection of candidatures for promo- sion 17 cited by Mr Richard should not be tion or transfer under Article 29(1)(a) of followed, since it was wrongly held in that the Staff Regulations is a necessary pre- judgment that the appointing authority condition for passing on to the subsequent must reject candidatures received in one stages of the procedure provided for in stage of the procedure provided for in [that] article ... since that provision estab- Article 29(1) of the Staff Regulations lishes an order of priority as between the before passing to the subsequent stage. different stages for which it provides'. The Parliament maintains, therefore, that the Court of First Instance erred in law in holding, in paragraph 45 of the contested judgment, that, '[i]t follows from the fore- going that, by not formally rejecting the applicant's candidature and by proceeding to compare the candidatures of the appli- cant and Mrs S., the appointing authority infringed Article 29(1) of the Staff Regula- tions'.

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Assessment 71. That criticism is justified.

Conditions of recruitment on the basis of 68. If follows from what I said in connec- the reserve list tion with the first plea that the appointing authority is not required to reject candida- tures considered for promotion or transfer before organising an internal competition 72. The Parliament submits that 'the con- or proceeding to one of the subsequent ditions laid down in paragraph 42 of the stages. contested judgment concerning the possibi- lity of consulting, and recruiting on the basis of, the reserve lists established follow- ing open competitions also raise significant doubts as to their compliance with the applicable regulations.' 69. In the present case, the appointing authority did not find that the candidates for promotion or transfer were unsuitable for the post: it wished to extend its choice in order to ascertain whether there was any 73. In paragraph 42 of the contested judg- candidate whose appointment would better ment, the Court of First Instance held that serve the interests of the service. the fact that the appointing authority 'consulted the reserve list of nationals of the new Member States required that the procedure initiated be annulled and that new conditions for filling the post be established'.

75. The Parliament submits that, if the first procedure, since the framework of legality of those hypotheses is correct, the Court of by which the appointing authority under- First Instance infringed Regulation takes to be bound and with which it must No 626/95, which, although it provides comply throughout the recruitment proce- that vacancy notices may be published dure depends on the terms of the vacancy exclusively for nationals of the new Mem- notice. ber States, does not prevent successful candidates in competitions organised in that context from being appointed follow- ing a recruitment pursuant to Article 29 of the Staff Regulations. Were that not so, all 78. Mr Richard contends that the Court of lists of suitable candidates drawn up under First Instance was correct to hold that the derogating regulations would lapse consultation of the reserve list of nationals upon the expiry of the period of validity of the new Member States was subordinate of that regulation. to annulment of the procedure initiated and to the establishment of new conditions for filling the post. He argues that the post should be assigned in the context of a recruitment procedure laid down in the Staff Regulations and that it is therefore 76. It must be borne in mind, according to necessary to refer to the rules governing the Parliament, that 'open competitions are that procedure in order to determine whe- not designed to fill a specific post but are ther it is possible to take account of a held for the purpose of establishing recruit- reserve list established following a derogat- ment reserves in order to fill posts in the ing procedure. Mr Richard states that, same category and corresponding to a under the Staff Regulations, the appointing particular career bracket. The successful authority must ensure that, the conditions applicants in these open competitions are set out in the relevant vacancy notices then placed on a list of suitable candidates correspond. That cannot be so in the case and may be recruited if they possess the of a vacancy notice published in the context necessary qualifications to fill a particular of a recruitment procedure laid down in the post'. Staff Regulations and a notice of an open competition organised under Regulation No 626/95, since the latter necessarily stipulates a condition as to nationality.

80. The Staff Regulations contain a series of rules which are intended to strike a balance between the need to ensure that deserving officials have career prospects and the need for the efficient organisation of a civil service made up of the nationals of ' 1 . Notwithstanding the second and third all Member States. To that end, the Staff paragraphs of Article 4, Article 5(3), Arti- Regulations lay down a number of manda- cle 7(1), the third paragraph of Article 27, tory rules, such as the requirement that the Article 29(1)(a), (b) and (c) and Article 31 appointing authority, acting solely in the of the Staff Regulations of Officials of the interest of the service and without regard to European Communities, provision may be nationality, assign each official to a post in made until 31 December 1999 for vacant his category or service which corresponds posts to be filled by Austrian, Finnish and to his grade (Article 7(1)); the prohibition Swedish nationals up to the limits set in the on reserving posts for nationals of any context of budgetary discussions within the specific Member State (the third paragraph institutions responsible. of Article 27); or the requirement that the appointing authority consider whether a post can be filled by internal recruitment before going on to consider external candi- datures (Article 29(1)).

2. Appointments to grades A 3 ... shall be made after a competition based on qualifi- cations and tests, organised in accordance with Annex III to the Staff Regulations.

81. On a number of occasions, the Council has introduced temporary derogations from this regulation: first in 1982, on the accession of the Hellenic Republic, then in 3. Vacant posts shall be adequately adver- 1985, on the accession of the Kingdom of tised both inside and outside the Commu- Spain and the Portuguese Republic, and, nity institutions.'

— representing the Secretariat General at 'Highly qualified official to manage and interinstitutional meetings; administer the work of the Division,

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with responsibility in p a r t i c u l a r for 87. It may be seen from a comparison of services: the two notices that one was addressed to nationals of a specific country and included a very general description of the nature of the duties, which would apply to any post as Head of Division, while the other did not include any condition as to nationality and (a) Human resources: drivers, furniture defined the duties in question much more removers, Travel Office and manage- specifically. ment of related external contracts;

88. Furthermore, in the contested judg- ment, the Court of First Instance observed (b) Equipment: that 'the Parliament has accepted that it did — Purchase Office: furniture, office not apply ... Regulation [No 629/95] in the machinery, technical equipment, appointment procedure in question'. That photocopiers, work clothing; assertion has not been challenged in the — Insurance and customs formalities; proceedings before the Court of Justice. — Shops and warehouses;

89. As regards the application of the pro- (c) Conferences: cedure provided for in Article 29 of the — General running of meetings; Staff Regulations, it is settled case-law that — Conference technicians; the vacancy notice, which is drawn up — Management of meetings reques- before the first stage of the procedure ted by external organisations; provided for in Article 29(1) is opened, establishes the framework of that proce- dure, in particular by defining the nature of the post to be filled and by stating the qualifications and knowledge required of candidates in the interests of the service. 18 (d) Inventory, Finances, Postal service: — Budgetary operations for all posts connected with the services of the Division; — Office messengers. 90. On a number of occasions, the Com- munity judicature has been required to adjudicate on the essential 'correspon- dence' between the notices initiating the

95. To my mind, in doing so the Commis- sion followed the only permissible proce- 92. The Court of First Instance was there- dure when, at the time of enlargement, fore correct to hold, in point 45 of the posts must be allocated to nationals of the contested judgment, that 'in comparing the new Member States by virtue of their candidatures of the applicant and of nationality. 21 Mrs S., the appointing authority infringed Article 29(1) of the Staff Regulations'.

96. I do not agree with the Parliament's 93. The Court of First Instance was also argument that the derogating regulation correct to state in paragraph 42 of the does not require that the successful candi- contested judgment that 'consulting the reserve list of nationals of new Member States required that the procedure initiated 20 — Case T-35/96 [1997] ECR-SC I-A-61 and 11-187, para- graph 62. 21 — Apart from these cases, the institutions still have the option of reserving a post for a particular nationality or stipulat- ing a condition of perfect knowledge of a particular 19—Joined Cases 341/85, 251/86, 258/86, 259/86, 262/86, language where that is justified by reasons connected with 266/86, 222/87 and 232/87 Van der Stijl v Commission the proper functioning of their departments (see [1989] ECR 511. Case 15/63 Lassalle v Parliament [1964] ECR 31).

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101. Under Article 69(2) of the Rules of Procedure of the Court, which applies to the appeal procedure pursuant to Arti- cle 118, the unsuccessful party is to be 98. Consequently, the reserve lists estab- ordered to pay the costs where they have lished in the derogating recruitment proce- been applied for in the successful party's dure must lapse when the quota of posts to pleadings. If, as I propose, the Parliament's be filled by that method is exhausted, and appeal is dismissed, the form of order no later than the date of expiry of the sought by Mr Richard should be granted derogating regulation under which the lists and the Parliament should be ordered to were drawn up. pay the costs of these proceedings.

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Conclusion

102. I propose that the Court should

— dismiss the appeal;