61996B0030

Officials ° Actions ° Right to bring proceedings ° Persons claiming the status of official or of servant other than local servant ° Candidate for a post of chairman or member of the boards of appeal of the Office for Harmonization in the Internal Market

(EC Treaty, Art. 179; Staff Regulations, Arts 90 and 91)

Article 179 of the Treaty, which confers on the Community judicature jurisdiction in any dispute between the Community and its servants within the limits and under the conditions laid down in the Staff Regulations or the Conditions of Employment of Other Servants, must be construed as applying not only to persons who have the status of official or of servant other than local servant but also to persons claiming that status. Articles 90 and 91 of the Staff Regulations, concerning appeals, apply not only to those who are officials but also to candidates for a post.

Where a candidate for a post of chairman or member of the boards of appeal of the Office for Harmonization in the Internal Market brings proceedings, his action must therefore be based on Article 91 of the Staff Regulations in so far as the dispute concerns his participation in the selection procedure, and not on Article 173 of the Treaty, which does not apply in such a case.

In Case T-30/96,

José Gomes de Sá Pereira, residing at São João de Vêr, Santa Maria da Feira (Portugal), represented by Augusto Cardoso, of the Oporto Bar, 16 Rua Jornal Correio da Feira, 1 Dt , Santa Maria da Feira,

applicant,

v

Council of the European Union, represented by Thérèse Blanchet and Isabel Lopes Cardoso, of its Legal Service, acting as Agents, with an address for service in Luxembourg at the office of Bruno Eynard, Director General of the Legal Affairs Directorate of the European Investment Bank, 100 Boulevard Konrad Adenauer,

defendant,

APPLICATION, first, for annulment of the decisions of the Council of 23 October 1995 appointing the chairmen and members of the boards of appeal of the Office for Harmonization in the Internal Market (trade marks and designs) (OJ C 314, pp. 3, 4 and 5) and, second, for an order requiring the Council to pay compensation for the damage allegedly suffered by the applicant as a result of those decisions,

THE COURT OF FIRST INSTANCE

OF THE EUROPEAN COMMUNITIES (Third Chamber),

composed of: C.P. Briët, President, B. Vesterdorf and A. Potocki, Judges,

Registrar: H. Jung,

makes the following

Order

Legal background and facts of the case

1 The Office for Harmonization in the Internal Market (trade marks and designs) ("the Office") was set up by Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1, hereinafter "Regulation No 40/94"). The composition and organization of the Office are governed in particular by Title XII (Articles 111 to 139) of that regulation.

2 The Office has various boards of appeal, which are competent to rule on appeals from certain decisions of the Office. Each board of appeal is composed of a chairman and two members. Initially, there are to be three boards of appeal.

3 The chairmen and members of the boards of appeal are appointed by the Council of the European Union ("the Council") on the basis of a list drawn up by the Administrative Board of the Office ("the Administrative Board") comprising a maximum of three candidates for each post to be filled.

4 On 29 March 1995 the Administrative Board published two vacancy notices, one concerning the appointment of chairmen of the boards of appeal and the other the appointment of members of those boards (OJ C 77 A, pp. 1 to 3).

5 The applicant submitted his application for appointment as a chairman or member within the time-limits laid down by those notices.

6 Following an initial examination of the applications received, the Administrative Board considered that 43 candidates, including the applicant, fulfilled the minimum conditions stipulated. Those 43 candidates then went through the selection procedure conducted by the Administrative Board.

7 At the end of that procedure, the Administrative Board drew up six restricted lists ° three lists relating to the three posts of chairmen of boards of appeal and three relating to the six members' posts. Those lists respectively proposed a single candidate for each of the chairmen' s posts to be filled and, in respect of each of the three boards of appeal, three candidates for the two members' posts to be filled.

8 The applicant' s name did not appear on any of those lists, since his candidature was rejected during the selection procedure.

9 The restricted lists of candidates were sent to the Council by the Administrative Board. At its meeting on 23 October 1995 the Council adopted three appointment decisions, one for each board of appeal. In particular, the Council appointed Mr F to the First Board of Appeal. The three decisions were published on 25 November 1995 (OJ C 314, pp. 3, 4 and 5).

10 By fax of 19 December 1995 the applicant, referring to his candidature, requested the Office to inform him of any decision adopted or of the stage reached in the recruitment procedure. On 17 January 1996 the Office communicated to him by fax the three appointment decisions of the Council, as published.

11 At the same time, the chairman of the Administrative Board wrote a letter to the applicant on 10 January 1996, received by the latter on 18 January 1996, informing him that his candidature had been rejected and that the Council had appointed other candidates on 23 October 1995.

12 By fax of 26 January 1996 the applicant requested the chairman of the Administrative Board to send him copies of the curricula vitae of the nine candidates appointed by the Council to the posts of chairmen and members of the boards of appeal, with a view to a possible action for annulment under Article 173 of the EC Treaty.

13 By letter of 26 February 1996 the chairman of the Administrative Board replied to the applicant, stating that he was unable to send him copies of the curricula vitae, since they were contained in the personal files of the persons in question and were therefore covered by the obligation of confidentiality laid down by Article 26 of the Staff Regulations of Officials of the European Communities ("the Staff Regulations"). Nevertheless, in the interests of transparency, he provided in the same letter a description of the various stages in the procedure for selecting and appointing candidates, as followed by the Administrative Board and the Council respectively.

14 At the same time, by fax of 2 February 1996, the applicant requested the Secretary-General of the Council to have the "preparatory information" concerning the appointment decisions of the Council of 23 October 1995 sent to him. The Council maintains that the competent department of the General Secretariat did not receive that fax, and that it was therefore unable to reply to it.

Procedure and forms of order sought

15 By application lodged at the Registry of the Court of First Instance on 11 March 1996, the applicant brought the present action, which is based on Article 173 of the Treaty.

16 The applicant claims that the Court should:

° annul the three decisions adopted by the Council on 23 October 1995 concerning the appointment of the chairmen and members of the boards of appeal of the Office for Harmonization in the Internal Market (trade marks and designs);

° failing that, and in the alternative, annul in its entirety the decision appointing the chairman and members of the First Board of Appeal or, in the further alternative, annul that decision in so far as it concerns Mr F;

° order the Council to pay compensation for the damage suffered by the applicant as a result of the contested decisions, the sum to be calculated in compliance with the judgment;

° order the Council to pay the costs.

17 The Council contends that the Court should:

° dismiss the action as inadmissible;

° alternatively, dismiss the action as unfounded;

° order the applicant to pay the costs.

18 By a separate letter, lodged at the Registry of the Court of First Instance on 15 March 1996, the applicant applied for legal aid pursuant to Article 94(1) of the Rules of Procedure.

19 At the request of the Registrar of the Court of First Instance, the applicant submitted, by letter of 15 April 1996, an estimate of the fees and disbursements for which he is seeking legal aid.

20 By letter of 10 May 1996 the Council stated that it did not object to that application.

Admissibility

21 Article 111 of the Rules of Procedure provides that, where an action is manifestly inadmissible, the Court of First Instance may, by reasoned order and without taking further steps in the proceedings, give a decision on the action. In the present case, the Court regards it as appropriate to apply that article.

Admissibility of the application for annulment

22 Under Article 112 of Regulation No 40/94, the Staff Regulations, the Conditions of Employment of Other Servants of the European Communities ("the Conditions of Employment") and the rules adopted by agreement between the institutions of the European Communities for giving effect thereto are to apply to the staff of the Office.

23 The chairmen and members of the boards of appeal form part of the staff of the Office in the same way as other senior officials of the Office (see Articles 120 and 131 of Regulation No 40/94). According to the statements contained in the vacancy notices referred to in paragraph 4 above, their status is that of members of the temporary staff subject to the Conditions of Employment.

24 Article 179 of the Treaty, which confers on the Community judicature jurisdiction in any dispute between the Community and its servants within the limits and under the conditions laid down in the Staff Regulations or the Conditions of Employment, must be construed as applying exclusively not only to persons who have the status of official or of servant other than local staff but also to persons claiming that status (order of the Court of First Instance in Case T-177/94 Altmann and Others v Commission [1994] ECR-SC II-969, paragraphs 34 and 35). Articles 90 and 91 of the Staff Regulations, concerning appeals, apply not only to those who are officials but also to candidates for a post (judgment of the Court of Justice in Case 23/64 Vandevyvere v Parliament [1965] ECR 157, at 164; order of the Court of Justice in Case C-126/90 P Bocos Viciano v Commission [1991] ECR I-781, paragraph 13).

25 Since, under Article 46 of the Conditions of Employment, Title VII of the Staff Regulations, concerning appeals, is applicable by analogy, candidates applying for a post governed by the Conditions of Employment are subject to Articles 90 and 91 of the Staff Regulations.

26 Consequently, the applicant should have brought the present action under Article 91 of the Staff Regulations, in so far as the dispute concerns his participation in the procedure for selecting candidates for the posts of chairmen and members of the boards of appeal. By referring in his application (pp. 1 and 7) to Article 173 of the Treaty, the applicant based his action on a provision which does not apply in the present case.

27 In the particular circumstances of the present case, arising from the novelty of Regulation No 40/94, the Court regards it as fair to examine the action, and more particularly its admissibility, from the standpoint of Article 91 of the Staff Regulations.

28 Under Article 91(2) of the Staff Regulations, an appeal to the Community judicature is admissible only if a complaint against the act adversely affecting the person concerned has previously been submitted to the appointing authority pursuant to Article 90(2) of the Staff Regulations. The relevant case-law provides that, save where the appeal is brought against an act which does not emanate from the appointing authority itself, such as a decision taken by a competition selection board (judgment of the Court of First Instance in Case T-133/89 Burban v Parliament [1990] ECR II-245, paragraph 17) or a staff report (judgment of the Court of First Instance in Case T-1/91 Della Pietra v Commission [1992] ECR II-2145, paragraph 23), a failure to lodge a prior complaint within the time-limit prescribed renders the appeal manifestly inadmissible (order of the Court of Justice in Case 317/85 Pomar v Commission [1987] ECR 2467, paragraphs 11 and 13).

29 The application for annulment made in the present case, which is not directed against a decision of a competition selection board, was not preceded by a complaint within the meaning of Article 90(2) of the Staff Regulations. In particular, the faxes of 19 December 1995, 26 January 1996 and 2 February 1996, in which the applicant requested the Office and the Council to communicate to him certain information or documents, cannot be regarded as constituting such a complaint. Those faxes do not challenge the legality of the contested decisions; nor do they request the appointing authority ° in this instance, the Council ° to alter those decisions.

30 In those circumstances, the application for annulment must be regarded as manifestly inadmissible.

Admissibility of the claim for compensation

31 According to settled case-law relating to the public service, where an applicant brings an action seeking at the same time annulment of an act of an institution and an award of compensation for damage allegedly caused by that act, the claims are so closely linked that the inadmissibility of the claim for annulment entails the inadmissibility of the claim for compensation (order of the Court of First Instance in Case T-11/90 H. S. v Council [1992] ECR II-1869, paragraph 25; judgment of the Court of First Instance in Case T-82/91 Latham v Commission [1994] ECR-SC II-61, paragraph 34).

32 In the present case, the claim for compensation is closely linked to the application for annulment. Like the latter, it is therefore manifestly inadmissible.

The application for legal aid

33 According to the third paragraph of Article 94(2) of the Rules of Procedure, where a Chamber is called upon to decide whether legal aid should be granted or refused, it must consider whether there is manifestly no cause of action. Nevertheless, it must first examine whether or not the action is manifestly inadmissible.

34 In the present case, having regard to the manifest inadmissibility of the action, the application for legal aid must be dismissed.

Costs

35 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party' s pleadings. However, Article 88 of those Rules, which is applicable by analogy to the present action, provides that in proceedings brought by servants of the Communities, the institutions are to bear their own costs.

On those grounds,

THE COURT OF FIRST INSTANCE (Third Chamber)

hereby orders:

1. The application for legal aid is dismissed.

2. The action is dismissed as manifestly inadmissible.

3. The parties are to bear their own costs.

Luxembourg, 11 July 1996.