61975J0102

1 . OFFICIALS - APPOINTMENT - METHOD

( STAFF REGULATIONS OF OFFICIALS , ARTICLE 1 )

2 . OFFICIALS - RECRUITMENT - PROCEDURE - CRITERIA - LAID DOWN BY THE ADMINISTRATION - GRADING COMMITTEE - SETTING UP THEREOF - NATURE OF INTERNAL MEASURES - RIGHTS OF THOSE CONCERNED - ABSENCE THEREOF - NOTIFICATION OF THE LATTER - DUTY ON THE PART OF THE ADMINISTRATION - NONE

3 . OFFICIALS - APPEALS - RECRUITMENT - PROCEDURE - CRITERIA LAID DOWN BY THE ADMINISTRATION - DISCOVERY BY A CANDIDATE - NEW FACT SUCH AS TO START THE PERIOD FOR LODGING AN APPEAL TO RUN AFRESH - ABSENCE THEREOF

1 . THE APPOINTMENT OF AN OFFICIAL CANNOT BE THE OUTCOME OF AN AGREEMENT BUT IS BASED ON A UNILATERAL DECISION OF THE APPOINTING AUTHORITY .

2 . CRITERIA FOR RECRUITMENT INTENDED TO FACILITATE THE SELECTION OF CANDIDATES BY THE APPOINTING AUTHORITY ON THE RECOMMENDATION OF A GRADING COMMITTEE AND THE SETTING UP OF SUCH A COMMITTEE CONSTITUTE PURELY INTERNAL MEASURES WHICH DO NOT CONFER RIGHTS OR EXPECTATIONS OF ANY KIND WHATSOEVER ON THOSE CONCERNED . THEY LEAVE THE APPOINTING AUTHORITY FREE TO TAKE DECISIONS REGARDING THE GRADES TO BE OFFERED FOR THE RECRUITMENT OF CANDIDATES . THE FACT THAT THE CANDIDATES WERE NOT INFORMED OF THE CRITERIA FOR RECRUITMENT DOES NOT , THEREFORE , CONSTITUTE AN OMISSION SINCE THESE CANDIDATES CANNOT CALL THEM IN AID NOR A FORTIORI CHALLENGE IN PROCEEDINGS BEFORE THIS COURT THE CORRECTNESS OF THE ASSESSMENTS MADE IN THEIR CASE WHEN THOSE CRITERIA WERE APPLIED .

3 . THE DISCOVERY BY THE PERSON CONCERNED OF THE EXISTENCE OF CRITERIA FOR RECRUITMENT LAID DOWN BY THE ADMINISTRATION CANNOT CONSTITUTE A NEW FACT SUCH AS TO START THE PERIOD FOR LODGING APPEALS TO RUN AFRESH .

IN CASE 102/75

ASGER PETERSEN , AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , RESIDING AT 43 , AVENUE PRINCE BAUDOUIN , BRUSSELS , REPRESENTED BY OSCAR LASSEN , OSTERGRADE 18 , COPENHAGEN , DENMARK , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF JACQUES LOESCH , 2 RUE GOETHE ,

APPLICANT ,

V COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , TREVOR TOWNSEND , ASSISTED BY PETER BAUMANN , LEGAL ADVISER TO THE COMMISSION , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF MARIO CERVINO , LEGAL ADVISER TO THE COMMISSION , BATIMENT CFL , PLACE DE LA GARE ,

DEFENDANT ,

APPLICATION FOR ANNULMENT OF THE IMPLIED DECISION OF THE DEFENDANT REJECTING A COMPLAINT LODGED BY THE APPLICANT ON 19 FEBRUARY 1975 ( APPOINTMENT IN GRADE A 4 ),

1 BY APPLICATION OF 22 SEPTEMBER 1975 THE APPLICANT , WHO ENTERED THE SERVICE OF THE COMMISSION ON 1 JANUARY 1974 AND WAS ESTABLISHED AS AN OFFICIAL IN GRADE A 5 ON 1 OCTOBER 1974 , HAS REQUESTED THE ANNULMENT OF THE DECISION , IMPLIED BY THE ABSENCE OF A REPLY BY THE APPOINTING AUTHORITY , REJECTING THE COMPLAINT WHICH HE HAD LODGED ON 19 FEBRUARY 1975 UNDER ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS OF OFFICIALS .

2 IN THAT COMPLAINT HE REQUESTED THAT HE BE PLACED IN GRADE A 4 WITH RETROACTIVE EFFECT FROM THE DATE ON WHICH HE ENTERED THE SERVICE ON THE GROUND THAT AS FROM THAT DATE HE SATISFIED THE CONDITIONS THEN REQUIRED FOR APPOINTMENT IN THAT GRADE .

3 THE APPLICATION SEEKS , IN ADDITION , A DECLARATION THAT THE REFUSAL OF THE COMMISSION TO PLACE THE APPLICANT IN GRADE A 4 IS ILLEGAL , THAT HIS ACCEPTANCE OF GRADE A 5 IS NOT BINDING UPON HIM AND THAT , IN CONSEQUENCE , THE COMMISSION MUST AMEND HIS ORIGINAL CLASSIFICATION AND PLACE HIM IN GRADE A 4/1 .

4 THE DEFENDANT STATES THAT THE IMPLIED REJECTION OF THE COMPLAINT IS MERELY CONFIRMATION OF THE REFUSAL , CONTAINED IN A LETTER OF 9 OCTOBER 1973 , TO APPOINT THE APPLICANT IN GRADE A 4 , AND OF HIS APPOINTMENT IN GRADE A 5 BY DECISION OF 28 NOVEMBER 1973 .

5 THE CONTESTED DECISION , WHICH MERELY CONFIRMS PREVIOUS DECISIONS , DOES NOT HAVE THE EFFECT OF STARTING A FRESH PERIOD FOR LODGING AN APPEAL AGAINST THE 1973 DECISIONS WHICH WERE NOT CONTESTED WITHIN THE PRESCRIBED PERIOD TO RUN .

6 THE APPLICANT ' S REJOINDER IS THAT IT WAS ONLY AT THE END OF 1974 THAT HE LEARNED THAT , WITH REGARD TO THE RECRUITMENT OF OFFICIALS AT THE TIME OF THE ACCESSION OF NEW MEMBER STATES , CRITERIA FOR GRADING HAD BEEN LAID DOWN FOR THE PURPOSES OF THE APPLICATION OF ARTICLE 31 ( 2 ) OF THE STAFF REGULATIONS OF OFFICIALS BY THE COMPETENT MEMBER OF THE COMMISSION FOR USE BY A GRADING COMMITTEE RESPONSIBLE FOR MAKING RECOMMENDATIONS TO HIM .

7 SO LONG AS HE REMAINED IN IGNORANCE OF THE ADOPTION OF THE SAID CRITERIA , THE CORRECT APPLICATION OF WHICH SHOULD , IN HIS VIEW , HAVE RESULTED IN HIS BEING CLASSIFIED IN GRADE A 4 , BUT TO WHICH NO PUBLICITY HAD BEEN GIVEN , IT WAS IMPOSSIBLE FOR HIM , IN AN APPLICATION FOR ANNULMENT , TO CLAIM THAT HIS CLASSIFICATION IN GRADE A 5 WAS VITIATED BY ILLEGALITY RESULTING FROM FAILURE TO COMPLY WITH THE SAID CRITERIA .

8 THIS IS PARTICULARLY SO SINCE THE APPOINTING AUTHORITY WAS , FROM THE BEGINNING , AWARE OF HIS DESIRE TO OBTAIN AN A 4 POST AND ONE OF THE OFFICIALS WHO HAD BEEN MADE RESPONSIBLE FOR THE RECRUITMENT OF STAFF FROM THE NEW MEMBER STATES HAD UNDERTAKEN TO MEET HIS WISHES IF THE REGULATIONS IN FORCE MADE THIS POSSIBLE .

9 THE PARTIES WERE NOT , IN CONSEQUENCE , AD IDEM AND THE RULES OF NATURAL JUSTICE REQUIRE THAT THE PERIOD WITHIN WHICH THIS DEFICIENCY , WHICH VITIATES THE ACT OF APPOINTMENT AND ACCEPTENCE , CAN BE RELIED UPON MUST BEGIN TO RUN ONLY FROM THE TIME WHEN HE WAS IN A POSITION TO DISCOVER HIS MISTAKE .

10 IN ANY EVENT , THE APPLICANT ' S ARGUMENT AMOUNTS TO CLAIMING THAT THE DISCOVERY BY HIM OF THE EXISTENCE AND IMPLEMENTATION OF THE AFOREMENTIONED CRITERIA FOR GRADING CONSTITUTES A NEW FACT SUCH AS TO START RUNNING IN HIS FAVOUR A FRESH PERIOD FOR LODGING AN APPEAL .

11 ACCORDING TO THIS ARGUMENT , THESE CRITERIA CONSTITUTED ELEMENTS OF THE LEGAL SYSTEM WHICH WERE APPLICABLE AT THE TIME OF HIS APPOINTMENT AND OF WHICH , AS SUCH , HE OUGHT TO HAVE BEEN NOTIFIED .

12 HOWEVER , CONSIDERATION , OF THE LEGAL NATURE OF THESE CRITERIA , WHICH IS NECESSARY FOR A DECISION ON THE ADMISSIBILITY OF THE APPLICATION , ALSO ARISES IN CONNEXION WITH THE EXAMINATION AS TO WHETHER THE APPLICATION IS WELL FOUNDED .

13 THE EXAMINATION AS TO ADMISSIBILITY MUST , THEREFORE , BE JOINED TO THAT OF THE SUBSTANCE OF THE CASE .

14 IT IS CLEAR FROM THE PREPARATORY INQUIRIES IN THIS CASE THAT THE APPLICANT RELIED ON THE STATEMENTS MADE TO HIM BY MR JUNGER , AN OFFICIAL IN GRADE B 1 WHO IS RESPONSIBLE FOR LOOKING AFTER THE CANDIDATES AND FOR HELPING THEM TO CONTACT THE HEADS OF THE DEPARTMENTS TO WHICH THEIR APPOINTMENT MIGHT BE CONSIDERED .

15 THIS OFFICIAL WAS IN NO WAY AUTHORIZED TO GIVE UNDERTAKINGS OF THE KIND ALLEGED AND , MOREOVER , HE DENIES HAVING DONE SO .

16 IN ANY CASE THE APPOINTMENT OF THE APPLICANT CANNOT BE THE OUTCOME OF AN AGREEMENT BUT IS BASED ON A UNILATERAL DECISION OF THE APPOINTING AUTHORITY .

17 IT FOLLOWS FROM THIS THAT THE APPLICANT ' S CLAIMS , IN SO FAR AS THEY ARE BASED ON THE ABSENCE OF AN AGREEMENT CONCERNING THE TERMS OF HIS ENGAGEMENT , MUST BE DISMISSED FROM THE OUTSET AND CAN HAVE NO BEARING ON THE ADMISSIBILITY OF THE APPLICATION .

18 AT THE TIME WHEN OFFICIALS WERE BEING RECRUITED , CONSEQUENT UPON THE ACCESSION OF THE NEW MEMBER STATES , THE APPOINTING AUTHORITY WAS , UNDER ARTICLE 1 OF REGULATION NO 2530/72 OF THE COUNCIL OF 4 DECEMBER 1972 , AUTHORIZED TO MAKE LIBERAL USE OF ARTICLE 31 ( 2 ) AND OF ARTICLE 32 ( 2 ) OF THE STAFF REGULATIONS OF OFFICIALS , UNDER BOTH OF WHICH IT IS PERMISSIBLE TO MAKE EXCEPTIONS FROM THE USUAL RULES GOVERNING APPOINTMENT INTO GRADES IN CATEGORY A .

19 ON 6 JUNE 1973 , THE MEMBER OF THE COMMISSION REPRESENTING THE APPOINTING AUTHORITY FOR , INTER ALIA , GRADES A 4 AND A 5 , SET UP A GRADING COMMITTEE TO MAKE RECOMMENDATIONS TO HIM REGARDING THE GRADING OF CANDIDATES WHO WERE NATIONALS OF THE NEW MEMBER STATES .

20 AT THE SAME TIME HE INSTRUCTED THIS COMMITTEE THAT , IN ITS WORK , IT MUST ABIDE BY CERTAIN CRITERIA IN ORDER TO ENSURE THE NECESSARY CONSISTENCY BETWEEN THE RECOMMENDATIONS TO BE MADE .

21 THESE CRITERIA WERE PARTICULARLY CONCERNED WITH THE WAY IN WHICH EXPERIENCE PRIOR TO ENGAGEMENT WAS TO BE ASSESSED , TAKING ACCOUNT OF UNIVERSITY DEGREES AND THE COMPLETION OF ANY PERIOD SPENT IN MILITARY SERVICE .

22 THERE WAS HOWEVER NO QUESTION OF THE AUTOMATIC APPLICATION OF THESE CRITERIA SINCE THEY WERE EXCLUSIVELY INTENDED TO HELP THE APPOINTING AUTHORITY IN MAKING THE SELECTIONS WHICH IT WAS CALLED UPON TO MAKE ON THE RECOMMENDATION OF THE COMMITTEE .

23 MOREOVER , THESE CRITERIA AND THE SETTING UP OF THE GRADING COMMITTEE CONSTITUTED PURELY INTERNAL MEASURES THE PURPOSE OF WHICH WAS TO FACILITATE THE MANY SELECTIONS AND DECISIONS WHICH HAD TO BE MADE DURING A COMPARATIVELY SHORT PERIOD BUT WHICH WERE NOT INTENDED TO CONFER RIGHTS OR EXPECTATIONS OF ANY KIND WHATSOEVER ON THOSE CONCERNED .

24 THEY LEFT THE APPOINTING AUTHORITY FREE TO TAKE DECISIONS REGARDING THE GRADES TO BE OFFERED FOR THE RECRUITMENT OF THE CANDIDATES .

25 THE FACT THAT NEITHER THE APPLICANT NOR , MOREOVER , THE OTHER CANDIDATES WERE INFORMED OF THE SAID CRITERIA DID NOT , THEREFORE , CONSTITUTE AN OMISSION SINCE THOSE CANDIDATES COULD NOT CALL THEM IN AID NOR A FORTIORI CHALLENGE IN PROCEEDINGS BEFORE THIS COURT THE CORRECTNESS OF THE ASSESSMENTS MADE IN THEIR CASE WHEN THOSE CRITERIA WERE APPLIED .

25 IN CONSEQUENCE , THE DISCOVERY BY THE APPLICANT OF THE EXISTENCE OF THESE CRITERIA CANNOT CONSTITUTE A NEW FACT SUCH AS TO START THE PERIOD FOR LODGING APPEALS TO RUN AFRESH .

27 IT HAS , MOREOVER , BECOME CLEAR IN THE COURSE OF THE PROCEEDINGS THAT , IN THE CASE OF THE APPLICANT , THE VARIOUS CRITERIA WERE APPLIED FAIRLY AND WITHOUT DISCRIMINATION .

28 THE APPLICATION MUST THEREFORE , IN ANY CASE , BE DISMISSED .

COSTS ,

29 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .

30 THE APPLICANT HAS FAILED IN HIS SUBMISSION .

31 NEVERTHELESS UNDER ARTICLE 70 OF THE RULES OF PROCEDURE THE COSTS INCURRED BY THE INSTITUTIONS IN APPLICATIONS BY SERVANTS OF THE COMMUNITIES SHALL BE BORNE BY THE INSTITUTIONS .

ON THOSE GROUNDS ,

THE COURT ( FIRST CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION ;

2 . ORDERS EACH PARTY TO BEAR ITS OWN COSTS .