61964J0035

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1 . OFFICIALS - RECRUITMENT - APPEAL AGAINST LATER STEPS IN THE RECRUITMENT PROCEDURE - POSSIBILITY OF CONTESTING THE LEGALITY OF EARLIER STEPS

( STAFF REGULATIONS OF OFFICIALS OF THE EUROPEAN COMMUNITIES, ARTICLE 91 )

2 . OFFICIALS - RECRUITMENT - COMPETITION - PUBLICATIONS OF NOTICE OF COMPETITION - PURPOSE

( STAFF REGULATIONS OF OFFICIALS OF THE EUROPEAN COMMUNITIES, ANNEX III, ARTICLE 2 )

1 . CF . PARA . 1, SUMMARY IN JOINED CASES 12 AND 29/64 ( 1965 ) ECR 107 .

SINCE THE VARIOUS STEPS COMPRISING THE RECRUITMENT PROCEDURE FORM A SINGLE ENTITY, IT MUST BE ACCEPTED THAT IN AN ACTION CONTESTING LATER STEPS IN SUCH A PROCEDURE THE APPLICANT MAY CONTEST THE LEGALITY OF EARLIER STEPS WHICH ARE CLOSELY LINKED TO THEM . A SUBMISSION OF INADMISSIBILITY ON THE GROUND THAT AN APPEAL AGAINST THESE STEPS WAS OUT OF TIME IS THEREFORE INADMISSIBLE .

*/ 664J0012 /*.

2 . THE PUBLICATION OF A NOTICE OF COMPETITION IS NOT INTENDED TO PROVE THAT ALL THE RULES CONCERNING THE COMPETITION PROCEDURE HAVE BEEN OBSERVED, BUT SIMPLY TO ENSURE THAT THE COMPETITION IS SUFFICIENTLY ADVERTISED TO INDUCE OFFICIALS INTERESTED TO APPLY .

IN CASE 35/64

CESARE ALFIERI, A SERVANT OF THE EUROPEAN PARLIAMENT, REPRESENTED AND ASSISTED BY ANDRE ELVINGER, ADVOCATE OF THE COUR SUPERIEURE DE JUSTICE OF THE GRAND DUCHY OF LUXEMBOURG, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF THE SAID ANDRE ELVINGER, 84 GRAND RUE,

APPLICANT,

V

EUROPEAN PARLIAMENT, REPRESENTED BY ITS SECRETARY - GENERAL, HANS ROBERT NORD, AS AGENT APPOINTED FOR THAT PURPOSE BY THE PRESIDENT OF THE EUROPEAN PARLIAMENT, AND ASSISTED BY ALEX BONN OF THE LUXEMBOURG BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF THE SAID ALEX BONN, 22 COTE D' EICH,

DEFENDANT,

APPLICATION FOR THE ANNULMENT OF A DECISION, FOLLOWING A COMPETITION IN WHICH THE APPLICANT HAD TAKEN PART, APPOINTING A SERVANT OTHER THAN THE APPLICANT, NAMELY MR DUCCI, TO THE POSITION OF HEAD OF DIVISION IN THE DIRECTORATE-GENERAL FOR GENERAL AFFAIRS,

P.266

ADMISSIBILITY

THE DEFENDANT DISTINGUISHES BETWEEN THE CONTESTED DECISION OF APPOINTMENT AND THE VARIOUS MEASURES TAKEN DURING THE COURSE OF THE RECRUITMENT PROCEDURE . IT RAISES THE OBJECTION THAT THE APPLICANT IS ESTOPPED IN SO FAR AS HIS APPLICATION IS DIRECTED AGAINST THESE LATTER MEASURES, AND CONTENDS THAT THAT PART OF THE APPLICATION DIRECTED AGAINST THE APPOINTMENT IS ALSO INADMISSIBLE BECAUSE NO SUBMISSIONS ARE DIRECTED AGAINST IT AS SUCH .

SINCE THE RECRUITMENT PROCEDURE CONSISTS OF SEVERAL INTERDEPENDENT MEASURES, THIS OBJECTION WOULD BE TANTAMOUNT TO REQUIRING THE PERSONS CONCERNED TO BRING AS MANY ACTIONS AS THE NUMBER OF ACTS CAPABLE OF ADVERSELY AFFECTING THEM CONTAINED IN THE SAID PROCEDURE . HAVING REGARD TO THE CLOSE CONNEXION BETWEEN THE DIFFERENT MEASURES COMPRISING THE RECRUITMENT PROCEDURE, IT MUST BE ACCEPTED THAT IN AN ACTION CONTESTING THE LATER STEPS IN SUCH A PROCEDURE THE APPLICANT MAY CONTEST THE LEGALITY OF EARLIER STEPS WHICH ARE CLOSELY LINKED TO THEM .

IT FOLLOWS THAT THE COMPLAINTS MADE BY THE APPLICANT AND IN PARTICULAR THOSE AGAINST THE DISPUTED NOTICE MAY BE TAKEN INTO CONSIDERATION BY THE COURT IN DECIDING WHETHER THE APPOINTMENT OF MR DUCCI WAS VALID, THIS BEING THE MAIN ISSUE INVOLVED IN THE APPLICATION .

ON THE OTHER HAND, IT IS NOT ADMISSIBLE TO ARGUE AGAINST THE DUE FORM OF A COMPETITION ON ACCOUNT OF THE FACT THAT A CANDIDATE WAS ALLOWED TO TAKE PART WHO DID NOT, IN THE APPLICANT'S OPINION, FULFIL THE CONDITIONS LAID DOWN BY THE NOTICE OF COMPETITION, AS THE CANDIDATE'S PARTICIPATION DID NOT INFLUENCE THE RESULT OF THE COMPETITION .

P.267

APART FROM THIS RESERVATION, THE OBJECTION OF INADMISSIBILITY MUST THEREFORE BE DISMISSED .

THE SUBSTANCE OF THE CASE

THE APPLICANT ASSERTS THAT THE PUBLICATION OF THE DISPUTED NOTICE OF COMPETITION NEVER TOOK PLACE BECAUSE IT WAS NOT AUTHENTICATED BY THE SIGNATURE OR SEALS OF THE COMPETENT OFFICIALS OR AUTHORITIES .

HOWEVER NO SUCH AUTHENTICATION IS REQUIRED BY THE STAFF REGULATIONS OF OFFICIALS NOR IS ONE USUALLY MADE . THE APPLICANT FAILS TO DISTINGUISH BETWEEN THE DECISION ADOPTING THE WORDING OF THE NOTICE AND THE NOTICE ITSELF, AND FAILS TO APPRECIATE THAT THE PUBLICATION OF THE NOTICE IS ONLY REQUIRED AS A MEANS OF INDUCING OFFICIALS INTERESTED TO APPLY . SO FAR AS THE APPLICANT IS CONCERNED THE ADVERTISING WHICH DID TAKE PLACE SEEMS TO HAVE FULFILLED THIS PURPOSE SINCE HE DID IN FACT APPLY TO BE A CANDIDATE AT THE COMPETITION .

THIS SUBMISSION MUST THEREFORE BE REJECTED .

THE APPLICANT ARGUES THAT THE DECISION TO HOLD THE COMPETITION AND THE DISPUTED NOTICE ARE BOTH VOID BECAUSE THE NOTICE FAILS TO STATE WHETHER CONSIDERATION WAS GIVEN TO FILLING THE POST BY PROMOTION OR TRANSFER WITHIN THE INSTITUTION AND THAT THE ABSENCE OF ANY SUCH STATEMENT IS TANTAMOUNT TO THE ABSENCE OF THE ACT ITSELF .

THIS SUBMISSION CANNOT SUCCEED EITHER . ARTICLE 1 OF ANNEX III, WHICH SETS OUT THE MATTERS WHICH THE NOTICE OF COMPETITION MUST SPECIFY, DOES NOT MENTION THAT CONSIDERATION HAS BEEN GIVEN TO THE FILLING OF THE POST BY PROMOTION OR TRANSFER . HERE AGAIN THE APPLICANT FAILS TO APPRECIATE THAT THE PUBLICATION OF A NOTICE OF COMPETITION IS NOT INTENDED TO PROVE THAT ALL THE RULES CONCERNING THE COMPETITION PROCEDURE HAVE BEEN OBSERVED, BUT SIMPLY TO ENSURE THAT THE COMPETITION IS SUFFICIENTLY ADVERTISED .

THE APPLICANT ARGUES THAT THE DISPUTED NOTICE OF COMPETITION IS VOID ON THE GROUND THAT IT DID NOT INCLUDE A STATEMENT CONCERNING THE APPOINTMENT AND COMPOSITION OF THE SELECTION BOARD . AS ANNEX III TO THE STAFF REGULATIONS OF OFFICIALS CLEARLY DISTINGUISHES BETWEEN THE APPOINTMENT OF THE SELECTION BOARD AND THE DRAWING UP OF THE NOTICE, THIS SUBMISSION MUST BE REJECTED FOR THE SAME REASONS AS THE PRECEDING SUBMISSION .

THE APPLICANT ALSO CLAIMS THAT IN REQUIRING NO MORE THAN ' UNIVERSITY EDUCATION SUPPORTED BY A DEGREE OR CLEARLY EQUIVALENT EXPERIENCE ' THE SAID NOTICE DID NOT COMPLY WITH THE REQUIREMENT OF ARTICLE 1(1)(D ) OF ANNEX III TO THE STAFF REGULATIONS, AND IS THEREFORE VOID . HOWEVER, THE WORDING USED MUST BE CONSIDERED IN CONJUNCTION WITH THE CLARIFYING STATEMENT, WHICH ALSO APPEARS IN THE NOTICE, THAT ' THE HOLDER OF THIS POST MUST HAVE A VERY SOLID BACKGROUND IN ADMINISTRATIVE AND LEGAL MATTERS TOGETHER WITH A THOROUGH KNOWLEDGE OF POLITICS AND A GOOD GRASP OF PARLIAMENTARY PROCEDURE '. ONCE THIS REQUIREMENT IS LOOKED AT, THE WORDING USED, WHICH IS NOT IN ITSELF INCOMPATIBLE WITH THE PROVISION OF ANNEX III TO WHICH REFERENCE HAS BEEN MADE, APPEARS TO BE JUSTIFIED .

ALL THE APPLICANT'S SUBMISSIONS HAVE FAILED AND THEREFORE HIS APPLICATION AGAINST THE IMPUGNED DECISION MUST BE DISMISSED .

FURTHERMORE HIS CONCLUSIONS IN RESPECT OF COMPENSATION FOR THE INJURY WHICH HE CLAIMS TO HAVE SUFFERED CANNOT BE ACCEPTED BECAUSE HE HAS NOT SUCCEEDED IN PROVING THE EXISTENCE OF ANY WRONGFUL ACT AFFECTING HIM .

THE APPLICANT HAS FAILED IN HIS APPLICATION . UNDER THE TERMS OF ARTICLE 69(2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS . HOWEVER, ARTICLE 70 OF THE SAID RULES PROVIDES THAT COSTS INCURRED BY INSTITUTIONS IN ACTIONS BROUGHT BY SERVANTS OF THE COMMUNITIES MUST BE BORNE BY THE INSTITUTIONS .

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . DISMISSES APPLICATION 35/64 AS UNFOUNDED;

2 . ORDERS THE APPLICANT TO PAY THE COSTS EXCEPT THOSE INCURRED BY THE DEFENDANT .