61962O0035

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IN CASES 35/62 AND 16/63 R

ANDRE LEROY, FORMER MEMBER OF THE AUXILIARY STAFF AND OF THE TEMPORARY STAFF IN THE SERVICE OF THE EUROPEAN COAL AND STEEL COMMUNITY, RESIDING AT 20 RUE ASTRID, LUXEMBOURG, REPRESENTED BY PAUL-FRANCOIS RYZIGER, ADVOCATE OF THE CONSEIL D'ETAT AND THE COUR DE CASSATION, 64 RUE DE LONGCHAMP, PARIS 16, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF MR ARENDT, ADVOCATE OF THE LUXEMBOURG COUR D'APPEL, 6 RUE WILLY-GOERGEN, APPLICANT,

V

HIGH AUTHORITY OF THE EUROPEAN COAL AND STEEL COMMUNITY, REPRESENTED BY ITS LEGAL ADVISER, GUY SAUTTER, APPOINTED TO THIS INTENT AS AGENT BY THE HIGH AUTHORITY UNDER ARTICLE 20 OF THE PROTOCOL ON THE STATUTE OF THE COURT OF JUSTICE, ASSISTED BY JEAN COUTARD, ADVOCATE OF THE FRENCH CONSEIL D'ETAT AND COUR DE CASSATION, 58 RUE DE LISBONNE, PARIS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT ITS OFFICES, 2 PLACE DE METZ, DEFENDANT,

THE PRESIDENT OF THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES

WHEREAS UNDER THE TERMS OF ARTICLE 83 ( 1 ) OF THE RULES OF PROCEDURE AN APPLICATION TO SUSPEND THE OPERATION OF ANY MEASURE SHALL BE ADMISSIBLE ONLY IF THE APPLICANT IS CHALLENGING THAT MEASURE IN PROCEEDINGS BEFORE THE COURT;

WHEREAS THE APPLICANT, CONSIDERING THAT THE ANNOUNCEMENT OF THE COMPETITION FOR THE POST FORMERLY HELD BY HIM AND THE EXPIRY OF HIS CONTRACT AS AN AUXILIARY ARE THE DIRECT RESULTS OF THE REFUSAL TO INTEGRATE HIM WHICH HE IS CHALLENGING IN THE MAIN ACTION, MAINTAINS THAT HIS REQUEST IS ADMISSIBLE;

WHEREAS THE VIEW OF THE APPLICANT ON THIS POINT CANNOT BE UPHELD;

WHEREAS HAD THE APPLICANT BEEN INTEGRATED HE WOULD HAVE HAD THE RIGHT TO ESTABLISHMENT ( UNDER ARTICLE 93 OF THE STAFF REGULATIONS OF OFFICIALS OF THE ECSC ) IN A GRADE AND STEP OF THE SCALE OF REMUNERATION FIXED BY THE STAFF REGULATIONS, BUT HE HAD NO RIGHT TO A SPECIFIC POST;

WHEREAS, MOREOVER, IT HAS NOT BEEN SHOWN THAT, HAD THE APPLICANT BEEN INTEGRATED, HE WOULD HAVE HELD THE POST WHICH THE COMPETITION IN QUESTION IS DESIGNED TO FILL;

WHEREAS IN THESE CIRCUMSTANCES THERE IS NO REASON TO BELIEVE THAT THE ANNOUNCEMENT OF A COMPETITION FOR THIS POST IS THE DIRECT RESULT OF THE DECISION CONTESTED IN THE MAIN ACTION;

WHEREAS THEREFORE THE FIRST HEAD OF THIS APPLICATION FOR SUSPENSION OF THE DECISION IS INADMISSIBLE;

WHEREAS SECONDLY THE APPLICANT REQUESTS THAT A PROVISION OF THE STAFF REGULATIONS BE DECLARED INAPPLICABLE;

WHEREAS ARTICLE 83 ( 1 ) OF THE RULES OF PROCEDURE ONLY REFERS TO SUSPENSION OF THE OPERATION OF MEASURES;

WHEREAS THERE IS NO REASON TO TREAT THE EFFECT OF A PROVISION OF THE STAFF REGULATIONS AS A MEASURE WITHIN THE MEANING OF ARTICLE 83 ( 1 ) OF THE RULES OF PROCEDURE; AND WHEREAS THIS EFFECT COULD BE FORESEEN FROM THE MOMENT WHEN THE APPLICANT WAS APPOINTED AS A MEMBER OF THE AUXILIARY STAFF;

WHEREAS, MOREOVER, EVEN THE ANNULMENT OF THE MEASURE CONTESTED IN THE MAIN ACTION COULD NOT RESULT IN THE APPLICANT'S MAINTAINING HIS POSITION AS A MEMBER OF THE AUXILIARY STAFF;

WHEREAS THE SECOND HEAD OF THIS APPLICATION FOR SUSPENSION OF THE MEASURE IS THEREFORE INADMISSIBLE;

HEREBY ORDERS :

1 . THAT THE APPLICATION BE DISMISSED AS INADMISSIBLE;

2 . THAT COSTS BE RESERVED .