61986O0130

1 . OFFICIALS - ACTION - PRIOR COMPLAINT THROUGH OFFICIAL CHANNELS - OBLIGATORY - PERSONS SEEKING A POST IN THE COMMUNITY CIVIL SERVICE

( STAFF REGULATIONS OF OFFICIALS , ARTS 90 AND 91 )

2 . OFFICIALS - ACTION - PRIOR COMPLAINT THROUGH OFFICIAL CHANNELS - COMPLAINT NOT YET REJECTED - ACTION INADMISSIBLE

( STAFF REGULATIONS OF OFFICIALS , ART . 91 ( 2 ))

3 . PROCEDURE - COSTS - ARTICLE 70 OF THE RULES OF PROCEDURE - SCOPE RATIONE PERSONAE

( RULES OF PROCEDURE , ART . 70 )

IN CASE 130/86

EMMANUEL DU BESSET , REPRESENTED AND ASSISTED BY D . DELAFON OF THE GRENOBLE BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF MRS KOLLER , 3 RUE DES ARQUEBUSIERS ,

APPLICANT ,

V

COUNCIL OF THE EUROPEAN COMMUNITIES , REPRESENTED AND ASSISTED BY D . LAGASSE OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF MR KASER , DIRECTOR OF THE LEGAL DEPARTMENT OF THE EUROPEAN INVESTMENT BANK , 100 BOULEVARD KONRAD-ADENAUER ,

DEFENDANT ,

APPLICATION FOR THE ANNULMENT OF

( I ) THE IMPLIED DECISION CONTAINED IN A LETTER OF 7 MAY 1986 WHEREBY THE APPOINTING AUTHORITY REFUSED TO OFFER A POST TO THE APPLICANT ;

( II ) THE EXPRESS DECISION CONTAINED IN THE LETTER OF 7 MAY 1986 REJECTING THE APPLICANT ' S REQUEST THAT THE PERIOD OF VALIDITY OF THE LIST OF SUITABLE CANDIDATES IN COUNCIL COMPETITION NO A/184 SHOULD BE EXTENDED ;

( III ) ALL THE DECISIONS APPOINTING ADMINISTRATORS FOLLOWING COUNCIL COMPETITION NO A/184 ,

1 BY APPLICATION RECEIVED AT THE COURT REGISTRY ON 19 MAY 1986 EMMANUEL DU BESSET BROUGHT AN ACTION FOR THE ANNULMENT OF SEVERAL COUNCIL DECISIONS .

2 SINCE THE APPLICANT WAS SUCCESSFUL IN COUNCIL COMPETITION NO A/184 , HIS NAME WAS PLACED ON THE LIST OF SUITABLE CANDIDATES DRAWN UP IN 1980 AT THE CONCLUSION OF THE COMPETITION . THE PERIOD OF VALIDITY OF THAT LIST WAS EXTENDED UNTIL 1 APRIL 1986 . ON SEVERAL OCCASIONS , AND MOST RECENTLY ON 20 MARCH 1986 , THE APPLICANT POINTED OUT TO THE COUNCIL THAT HE WAS STILL WAITING FOR A POST .

3 BY LETTER DATED 7 MAY 1986 THE APPOINTING AUTHORITY INFORMED THE APPLICANT THAT IT HAD DECIDED NOT TO EXTEND THE PERIOD OF VALIDITY OF THE LIST OF SUITABLE CANDIDATES ANY MORE . THE ACTION IS PRIMARILY DIRECTED AGAINST THE REFUSAL TO OFFER HIM A POST , AND ALTERNATIVELY THE REFUSAL TO EXTEND THE PERIOD OF VALIDITY OF THE LIST OF SUITABLE CANDIDATES , CONTAINED IN THE LETTER OF 7 MAY 1986 .

4 ON 16 JULY 1986 THE APPLICANT SUBMITTED TO THE APPOINTING AUTHORITY A COMPLAINT PRIOR TO INITIATING AN ACTION PURSUANT TO ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS OF OFFICIALS OF THE EUROPEAN COMMUNITIES .

5 BY APPLICATION ON A PROCEDURAL ISSUE PURSUANT TO ARTICLE 91 OF THE RULES OF PROCEDURE THE COUNCIL RAISED A PRELIMINARY OBJECTION AS TO ADMISSIBILITY AND REQUESTED THE COURT TO GIVE A DECISION THEREON WITHOUT GOING INTO THE SUBSTANCE OF THE CASE . IN THAT RESPECT IT SUBMITS THAT THE ACTION WAS NOT PRECEDED BY A COMPLAINT WHICH WAS REJECTED BY AN EXPRESS OR IMPLIED DECISION .

6 THE APPLICANT SUBMITS THAT ARTICLES 90 AND 91 OF THE STAFF REGULATIONS OUGHT NOT TO APPLY IN THE PRESENT CASE BECAUSE HE IS NEITHER AN OFFICIAL NOR AT PRESENT A CANDIDATE IN A COMPETITION .

7 THE APPLICANT ' S ARGUMENT CANNOT BE ACCEPTED . IT IS CLEAR FROM THE ESTABLISHED CASE-LAW OF THE COURT THAT ARTICLES 90 AND 91 OF THE STAFF REGULATIONS APPLY NOT ONLY TO THOSE WHO ARE OFFICIALS BUT ALSO TO CANDIDATES FOR A POST ( SEE THE JUDGMENT OF 23 OCTOBER 1975 IN JOINED CASES 81 TO 88/74 , MARENCO AND OTHERS V COMMISSION , ( 1975 ) ECR 1247 ). THE APPLICANT HAS NOT CEASED TO BE A CANDIDATE BECAUSE THE PERIOD OF VALIDITY OF THE LIST OF SUITABLE CANDIDATES WAS NOT EXTENDED . SINCE THE MEASURE ADVERSELY AFFECTING THE APPLICANT ORIGINATES FROM THE APPOINTING AUTHORITY THE ACTION CHALLENGING THE MEASURE MUST NECESSARILY BE PRECEDED BY A COMPLAINT WHICH HAS BEEN REJECTED BY EXPRESS OR IMPLIED DECISION . THE OBJECT OF THAT PROCEDURE IS TO ALLOW THE ADMINISTRATION TO RECONSIDER THE CONTESTED MEASURE . BY VIRTUE OF ARTICLE 91 ( 2 ) OF THE STAFF REGULATIONS AN ACTION BROUGHT BEFORE THAT PRELIMINARY PROCEDURE HAS BEEN COMPLETED IS PREMATURE AND THEREFORE INADMISSIBLE .

8 SINCE THE DOCUMENTS BEFORE THE COURT CONTAIN ALL THE FACTS NECESSARY FOR A DECISION IT IS NOT NECESSARY TO HEAR THE PARTIES .

COSTS

9 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE , THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . HOWEVER , ARTICLE 70 OF THE RULES OF PROCEDURE PROVIDES THAT THE INSTITUTIONS ARE TO BEAR THEIR OWN COSTS IN PROCEEDINGS BROUGHT BY SERVANTS OF THE COMMUNITIES . THAT PROVISION MUST APPLY TO ALL PERSONS TO WHOM ARTICLE 90 OF THE STAFF REGULATIONS APPLIES .

ON THOSE GROUNDS ,

THE COURT ( SECOND CHAMBER ),

PURSUANT TO ARTICLE 91 OF THE RULES OF PROCEDURE AND

AFTER HEARING THE ADVOCATE GENERAL ,

MAKES THE FOLLOWING

ORDER

( 1 ) THE ACTION IS DISMISSED AS INADMISSIBLE .

( 2 ) THE PARTIES SHALL BEAR THEIR OWN COSTS .