61981J0252

OFFICIALS - APPLICATIONS TO THE COURT - INTEREST - APPLICATION FOR THE ANNULMENT OF AN APPOINTMENT BROUGHT BY AN OFFICIAL AFTER REFUSING TO TAKE PART IN THE PROCEDURE LEADING TO THE APPOINTMENT - APPLICATION INADMISSIBLE - CONDITIONS

( STAFF REGULATIONS OF OFFICIALS , ARTS . 90 AND 91 )

WHERE AN OFFICIAL HAS VOLUNTARILY DECIDED NOT TO APPLY FOR A POST ADVERTISED IN A NOTICE OF VACANCY AND HAS THUS REFUSED TO TAKE PART IN THE APPOINTMENT PROCEDURE , IT IS NOT OPEN TO HIM TO CHALLENGE THE APPOINTMENT , MADE FOLLOWING THE NORMAL PROCEDURE , OF AN OFFICIAL WHO FULFILS THE REQUIREMENTS LAID DOWN IN THE NOTICE OF VACANCY .

IN CASE 252/81

MARGHERITA HEBRANT , NEE MACEVICIUS , RESIDENT AT FOULENG IN BELGIUM , REPRESENTED BY J . SAELS OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT 6 RUE LEANDRE-LACROIX ,

APPLICANT ,

V

EUROPEAN PARLIAMENT , REPRESENTED BY MR SCHMIDT , DIRECTOR OF PERSONNEL AND SOCIAL AFFAIRS , ACTING AS AGENT , ASSISTED BY A . BONN OF THE LUXEMBOURG BAR , WITH AN ADDRESS FOR SERVICE AT THE CHAMBERS OF THE LATTER , 22 COTE D ' EICH ,

DEFENDANT ,

APPLICATION FOR THE ANNULMENT OF THE DECISION OF THE EUROPEAN PARLIAMENT OF 24 OCTOBER 1980 , PUBLISHED ON 25 NOVEMBER 1980 , IN SO FAR AS IT RELATES TO THE APPOINTMENT OF A . REID TO THE ONLY A 3 POST VACANT , AND IN THE ALTERNATIVE THE APPOINTMENT OF THE APPLICANT TO THAT POST ,

1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 16 SEPTEMBER 1981 MRS MARGHERITA HEBRANT , NEE MACEVICIUS , AN OFFICIAL IN GRADE A 4 OF THE EUROPEAN PARLIAMENT , BROUGHT AN ACTION FOR THE ANNULMENT OF THE DECISION OF THE PARLIAMENT OF 24 OCTOBER 1980 BY WHICH MR REID WAS APPOINTED TO THE VACANT A 3 POST IN THE LIBRARY AND , IN THE ALTERNATIVE , FOR THE APPOINTMENT OF THE APPLICANT TO THAT POST .

2 THE APPLICANT IS IN CHARGE OF THE CATALOGUING AND LIBRARY ADMINISTRATION DIVISION OF THE LIBRARY OF THE EUROPEAN PARLIAMENT WHICH ALSO INCLUDES THE REFERENCE , INFORMATION AND DOCUMENTATION DIVISION UNDER THE CHARGE OF MR REID . WHEN ALTERATIONS TO THE STRUCTURE OF THOSE TWO DEPARTMENTS WERE BEING PLANNED FOR 1978 AND 1979 , THE SECRETARY-GENERAL OF THE EUROPEAN PARLIAMENT REQUESTED CONVERSION OF POSTS FROM GRADE A 5/4 TO GRADE A 3 FOR THE TWO HEADS OF DIVISION MENTIONED ABOVE , IN PREPARATORY DOCUMENTS RELATING TO THE BUDGET AND ORGANIZATION OF THE PARLIAMENT .

3 HOWEVER , REFERRING TO THE BUDGETARY LIMITS FIXED BY THE EUROPEAN PARLIAMENT IN A RESOLUTION OF 10 MAY 1979 , THE DIRECTOR-GENERAL FOR RESEARCH AND DOCUMENTATION , WHO IS RESPONSIBLE FOR THE LIBRARY , FINALLY PROPOSED THAT ONLY THE POST OF HEAD OF THE REFERENCE , INFORMATION AND DOCUMENTATION DIVISION BE CONVERTED INTO A GRADE A 3 POST .

4 THE APPLICANT SUBMITTED A COMPLAINT AGAINST THAT PROPOSAL AND BROUGHT AN ACTION WHICH LED TO AN ORDER OF THE COURT , MADE ON 18 NOVEMBER 1980 , DISMISSING HER ACTION AS INADMISSIBLE ( CASE 141/80 ( 1980 ) ECR 3509 ).

5 IN THE MEANTIME , VACANCY NOTICE NO 2677 ADVERTISING THE ABOVE-MENTIONED POST WAS PUBLISHED ON 14 JULY 1980 . THE APPLICANT DID NOT APPLY FOR THE POST . HAVING EXAMINED THE FIVE APPLICATIONS WHICH IT RECEIVED , THE APPOINTING AUTHORITY BY DECISION OF 24 OCTOBER 1980 APPOINTED MR REID HEAD OF DIVISION IN GRADE A 3 . THE PRESENT ACTION IS DIRECTED AGAINST THAT DECISION . IN ITS DEFENCE , THE PARLIAMENT RAISED AN OBJECTION OF INADMISSIBILITY DIRECTED AGAINST BOTH THE MAIN CLAIM AND THE ALTERNATIVE CLAIM SEEKING THE APPOINTMENT OF THE APPLICANT TO THE POST IN DISPUTE .

ON THE ADMISSIBILITY OF THE APPLICATION FOR ANNULMENT

6 IN ESSENCE , THE PARLIAMENT SUBMITS THAT , NOT HAVING APPLIED FOR THE VACANT POST , THE APPLICANT COULD NO LONGER CHALLENGE THE APPOINTMENT OF MR REID . SINCE SHE DID NOT APPLY FOR THE POST , IT MAINTAINS , THE APPOINTMENT DOES NOT CONSTITUTE A MEASURE ADVERSELY AFFECTING THE APPLICANT AND SHE HAS NO INTEREST AT STAKE IN OPPOSING THE APPOINTMENT OF A THIRD PARTY .

7 THE APPLICANT OBJECTS THAT SINCE THE CONTESTED DECISION ALLOWS A THIRD PARTY TO OBTAIN ADVANTAGES WHICH SHE DOES NOT ENJOY SHE HAS AN INTEREST AT STAKE AND THE DISPUTED MEASURE DOES AFFECT HER ADVERSELY . THE MEASURE IS ALL THE MORE DETRIMENTAL TO HER BECAUSE IT WAS TAINTED BY PROCEDURAL IRREGULARITIES . IN ESSENCE THESE WERE THAT MR REID WAS THE ONLY CANDIDATE FOR THE A 3 POST IN DISPUTE , AND THAT THE VACANCY NOTICE CONTAINED REQUIREMENTS BASED ON MR REID ' S CURRICULUM VITAE TO SUCH AN EXTENT THAT SHE DID NOT HAVE THE REQUIRED QUALIFICATIONS , A FACT WHICH , MOREOVER , JUSTIFIED HER FAILURE TO SUBMIT AN APPLICATION . SHE FURTHER MAINTAINS THAT EVEN HAD SHE BROUGHT AN ACTION AFTER HAVING SUBMITTED AN APPLICATION , THE PARLIAMENT WOULD HAVE RETREATED BEHIND THE NOTION OF THE INTERESTS OF THE SERVICE IN ORDER TO REJECT IT .

8 IT IS APPROPRIATE TO RECALL IN THE FIRST PLACE THAT IN THE ORDER OF 18 NOVEMBER 1980 THE PRESIDENT OF THE THIRD CHAMBER DECLARED THAT VACANCY NOTICE NO 2677 COULD NOT NOW BE THE SUBJECT OF AN ACTION BECAUSE IT HAD NOT BEEN THE SUBJECT OF A PREVIOUS COMPLAINT ON THE PART OF THE APPLICANT . CONSEQUENTLY , THE APPLICANT ' S MAIN ARGUMENT , BY WHICH SHE MAINTAINS THAT THE REQUIREMENTS IMPOSED BY THAT NOTICE DEPRIVED HER OF THE APPOINTMENT TO THE DISPUTED GRADE A 3 POST , IS NO LONGER OPEN TO HER .

9 IN ADDITION IT IS ESTABLISHED THAT FROM THE DATE OF THE PUBLICATION OF THE VACANCY NOTICE THE APPOINTMENT PROCEDURE FOLLOWED ITS NORMAL COURSE , THAT FIVE CANDIDATES APPLIED AND THAT MR REID FULFILLED THE CONDITIONS REQUIRED BY THE VACANCY NOTICE .

10 SINCE THE APPLICANT VOLUNTARILY DECIDED NOT TO APPLY FOR THE POST , AND THUS REFUSED TO TAKE PART IN THE APPOINTMENT PROCEDURE , SHE CANNOT NOW CHALLENGE THE APPOINTMENT OF A THIRD PARTY , AND CONSEQUENTLY HER APPLICATION FOR THE ANNULMENT OF MR REID ' S APPOINTMENT IS INADMISSIBLE .

ON THE ADMISSIBILITY OF THE ALTERNATIVE CLAIM

11 SINCE THE PRINCIPAL CLAIM IS INADMISSIBLE , THE ALTERNATIVE CLAIM SEEKING THE APPOINTMENT OF THE APPLICANT TO THE DISPUTED A 3 POST MUST LIKEWISE BE INADMISSIBLE BECAUSE IT IS APPARENT THAT THAT POST IS PROPERLY OCCUPIED BY MR REID AND THAT HIS APPOINTMENT CAN NO LONGER BE CHALLENGED BY THE APPLICANT .

12 CONSEQUENTLY , THE ACTION MUST BE DISMISSED AS INADMISSIBLE .

COSTS

13 PURSUANT TO ARTICLE 70 OF THE RULES OF PROCEDURE COSTS INCURRED BY THE INSTITUTIONS IN ACTIONS BROUGHT BY SERVANTS OF THE COMMUNITIES ARE TO BE BORNE BY THE INSTITUTIONS , WITHOUT PREJUDICE TO THE PROVISIONS OF THE SECOND PARAGRAPH OF ARTICLE 69 ( 3 ) RELATING TO COSTS WHICH THE COURT CONSIDERS THAT A PARTY HAS UNREASONABLY OR VEXATIOUSLY CAUSED THE OPPOSITE PARTY TO INCUR . GIVEN THE PATENTLY INADMISSIBLE NATURE OF THE ACTION , IT IS APPROPRIATE TO APPLY THE SECOND PARAGRAPH OF ARTICLE 69 ( 3 ) OF THE RULES OF PROCEDURE AND TO ORDER THE APPLICANT TO PAY THE COSTS .

ON THOSE GROUNDS ,

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION AS INADMISSIBLE .

2 . ORDERS THE APPLICANT TO PAY THE COSTS IN THEIR ENTIRETY .