OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 15 February 2007 ¹(1)

Case C-362/05 P

Jacques Wunenburger

v

Commission of the European Communities

(Appeals – Community officials – Staff Regulations – Promotion –Action for annulment – Need to adjudicate – Interest in bringing proceedings)

I –  Introduction

1.     The present appeal proceedings give cause to consider a problem connected with the interest in bringing proceedings and the need to adjudicate in actions brought against legal acts emanating from Community organs.

2.     The proceedings relate to a dispute in a staff case between a Community official, Jacques Wunenburger (‘the applicant’), and the Commission of the European Communities (‘the Commission’), as the appointing authority, concerning an appointment to the post of director at the ‘EuropeAid’ Cooperation Office, (2) which forms part of the Commission.

3.     By a judgment of 5 July 2005 (‘the contested judgment’), (3) the Court of First Instance dismissed as unfounded the action by which the applicant had applied for the annulment of a total of three Commission decisions: the rejection of the applicant’s candidature for the abovementioned post of director, the appointment of his competitor Mr Naqvi to that post, and the rejection of the applicant’s complaint.

4.     In his appeal, received at the Court of Justice on 23 September 2005, the applicant therefore continues to seek the annulment of those three decisions. The Commission lodged a cross-appeal in which it claims that the Court of First Instance should have ruled that there was no need to adjudicate because the post of director at issue had already been re-advertised before the contested judgment was delivered.

5.     In the light of that cross-appeal it is necessary to ascertain the circumstances under which a continuing interest in bringing proceedings can be taken to exist in cases like the present one where actions are brought by officials. This question is of fundamental importance for the practice of the Community courts not only in staff cases, but also in other contexts.

II –  Legal framework

6.     The provisions which are substantively relevant in the present case are the Staff Regulations of officials of the European Communities (4) (‘the Staff Regulations’) in the version applicable before 1 May 2004, in particular Articles 7, 25, 29, 90 and 91. The wording of those provisions will not be reproduced here.

III –  Facts and proceedings before the Court of First Instance

7.     The parties are in dispute over an appointment to the post of director in the former A2 grade at EuropeAid (Directorate C ‘Africa, Caribbean, Pacific’). In the relevant period a total of two selection procedures for that post took place, which may be summarised as follows, in so far as they are relevant to the present case.

First selection procedure

8.     The first of the two selection procedures commenced with an internal Commission notice published on 19 September 2002. (5) At the time, the applicant, an official in the A3 grade, worked as head of the Commission’s delegation in Croatia which comes under the Directorate-General for External Relations. He applied for the advertised post by a letter of 27 September 2002.

9.     After the Director-General of EuropeAid had conducted interviews with each of the total of ten candidates – in some cases by telephone – on 18 November 2002 he sent a note to the Directorate-General for Personnel and Administration in which he divided the candidates into two groups. The first group listed the six candidates who the Director-General considered to be suitable for the role in question. The second group contained the other four candidates who were not, in his view, able to demonstrate all the aptitudes and competences required for the post to be filled, including the applicant.

10.   The Consultative Committee on Appointments (‘the Consultative Committee’) then produced a list of six candidates to be invited for further interview, which corresponded to the first group of candidates recommended by the Director-General of EuropeAid. The applicant was not therefore invited.

11.   On 8 January 2003 Mr Naqvi, a competitor of the applicant, was appointed to the post in question. By letter of 11 March 2003 the applicant was notified that his candidature had been unsuccessful. On 2 April 2003 the applicant lodged a complaint against Mr Naqvi’s appointment pursuant to Article 90(2) of the Staff Regulations. After his complaint had been rejected by the Commission on 14 July 2003, on 5 November 2003 he brought an action for annulment before the Court of First Instance.

Second selection procedure

12.   The second selection procedure for the post of director in question at EuropeAid was launched after the Commission had decided on 11 March 2004 to retire Mr Naqvi pursuant to Article 50 of the Staff Regulations with effect from 1 April 2004 and to readvertise the post. (6)

13.   By a separate document of 15 March 2004, received at the Court of First Instance on 16 March 2004, the Commission then claimed that the Court should rule that there was no need to adjudicate in the pending dispute regarding the first selection procedure.

14.   In May 2004 the applicant applied for the post which was now being advertised for the second time. However, by letter of 2 September 2004 he was notified that his candidature had not made the shortlist. The applicant did not take any legal steps against that decision.

15.   In March 2005 the Commission decided to reorganise EuropeAid. The number of director’s posts was reduced from eight to seven. The still vacant post of director in Directorate C was filled by transferring another director, and the second selection procedure was then suspended.

IV –  The contested judgment

16.   In the contested judgment the Court of First Instance stated, first of all, that, contrary to the view taken by the Commission, it was necessary to give a ruling on the subject-matter of the proceedings and that the applicant still had an interest in bringing proceedings. (7) As to the merits, the Court dismissed the action for annulment brought by the applicant because it was unfounded.

17.   The first plea in law, which essentially claimed a breach of the duty to state grounds under the second sentence of the second paragraph of Article 25 of the Staff Regulations, had to be rejected since sufficient grounds were stated in the Commission’s decision on the complaint. (8)

18.   With the second plea in law, the applicant claimed in particular the infringement of Articles 7, 29(1)(a) and 45(1) of the Staff Regulations (9) and argued that the appointment of his competitor Mr Naqvi was based on an error in law. The Court also rejected that plea because the appointing authority enjoyed broad discretion in filling vacant posts and Mr Naqvi had in fact fulfilled all the criteria set out in the notice of vacancy. (10)

V –  The appeal

19.   The appeal lodged by the applicant is based on two pleas in law.

–       With his first plea in law, the applicant essentially complains about the rejection of his first plea in law at first instance. In doing so the Court of First Instance committed an error in law and distorted facts. In addition, the grounds stated in the judgment are contradictory and insufficient.

–       With its second plea in law, the applicant complains that the Court of First Instance rejected his second plea in law at first instance. This too relates to a distortion of facts and an error in law.

20.   The Commission lodged a cross-appeal in which it complains that the Court of First Instance failed to grant its application made by a separate document of 15 March 2004 for a ruling that there is no need to adjudicate.

21.   In detail the applicant claims that the Court should

(1)      declare its appeal admissible and well founded and annul the contested judgment;

(2)      decide the legal proceedings on the merits and annul the following Commission decisions:

–       the decision made by the appointing authority on 11 March 2003 to reject the applicant’s candidature;

–       the decision made by the appointing authority on 8 January 2003 on Mr Naqvi’s appointment;

–       the decision made by the appointing authority on 14 July 2003 rejecting the applicant’s complaint No R/147/03;

(3)      dismiss the Commission’s cross-appeal as inadmissible, or at least as unfounded;

(4)      order the Commission to pay the costs.

22.   The Commission claims,

(1)      as its principal claim, that the Court should

–       declare its cross-appeal admissible and well founded and annul the contested judgment in so far as it rejects the Commission’s application for a ruling that there is no need to adjudicate, and

–       decide on costs in accordance with the law;

(2)      and, in the alternative

–       reject the appeal lodged by the applicant as inadmissible, or at least as unfounded, and

–       order the applicant to pay the costs of the appeal.

VI –  Assessment

23.   In the present case it is necessary, first of all, to examine the cross-appeal lodged by the Commission. It raises the question whether there is now no need to give a ruling on the legal dispute as a result of an event occurring after the action was brought. If that is the case, the findings of the Court of First Instance which are contested by the applicant in his appeal, which concern the substance of his action at first instance, are no longer relevant at all.

A –    The cross-appeal lodged by the Commission

24.   By its cross-appeal the Commission essentially claims that the Court of First Instance should not have taken a decision on the merits in the dispute, but should have ruled that there was no need to adjudicate.

1.      Admissibility of the cross-appeal

25.   The applicant argues that the appeal lodged by the Commission is inadmissible since the Commission is not adversely affected by the contested judgment. The Court of First Instance effectively took a decision which was favourable to the Commission by dismissing the applicant’s action for annulment as unfounded.

26.   Under the first sentence of the second paragraph of Article 56 of the Statute of the Court of Justice, however, an appeal may be brought by any party which has been unsuccessful, in whole or in part, in its submissions. A party is also adversely affected in this way where it has been successful on the merits, but is unsuccessful on a procedural issue concerning a plea of inadmissibility. Thus, it is recognised in case-law that a party is adversely affected and has a right of appeal where an objection of inadmissibility was raised by a separate document under Article 114 of the Rules of Procedure of the Court of First Instance, but the Court declared the action admissible and then dismissed it as unfounded. (11) On the other hand, the Court of Justice does not consider the appellant to be adversely affected where the Court of First Instance simply did not rule on the admissibility of the action and dismissed it as unfounded. (12) The same applies where no separate plea of inadmissibility was raised at first instance and the defendant merely relied on legal objections to the action as part of a general document in which he also submitted observations on the substance of the action. (13)

27.   In the present case the Commission had expressly applied, by a separate document of 15 March 2004, for a ruling that there was no need to adjudicate. In doing so it had not relied expressly on Article 114 of the Rules of Procedure of the Court of First Instance. However, that does not alter the fact that by its letter the Commission submitted a separate application concerning the admissibility of the action. The grounds stated for that application were that Mr Naqvi was retired with effect from 1 April 2004 and the applicant no longer had an interest in bringing proceedings.

28.   However, the Court of First Instance considered that the applicant retained an interest in bringing proceedings and expressly rejected the Commission’s application. (14) Thus, the Commission was unsuccessful on a procedural issue at first instance and was therefore entitled to lodge an appeal.

29.   The question whether the applicant lost his interest in bringing proceedings at first instance and consequently there is now no need to adjudicate is certainly one that can be dealt with by the Court of Justice in appeal proceedings. Appeals under Article 225(1) EC and Article 58(1) of the Statute of the Court of Justice are limited to points of law (15) with the result that the Court of First Instance has exclusive jurisdiction to find and assess the relevant facts. However, the interest in bringing proceedings and the need to adjudicate are questions of legal characterisation of the facts found by the Court of First Instance. The Court of Justice has the power to review those facts in appeal proceedings as a matter of course. (16)

30.   The cross-appeal is therefore admissible.

2.      Substance of the cross-appeal

31.   As to the merits it must therefore be examined whether the Court of First Instance committed an error in law by failing to declare that there was no need to adjudicate, as the Commission had claimed in the proceedings at first instance. This depends on whether the applicant’s initial interest in bringing proceedings had ceased to exist even before the contested judgment was delivered.

a)      Main arguments of the parties

32.   The Commission takes the view that as a result of the retirement of Mr Naqvi and the holding of the second selection procedure the applicant lost his interest in bringing proceedings and there is no need to adjudicate since by his action the applicant could have at most achieved a repetition of the first procedure. In the meantime, however, a second procedure was held in which the applicant once again submitted a candidature.

33.   According to the Commission the decision in the case cannot procure the applicant any advantage for the future either. It is purely hypothetical whether the applicant would apply again for similar posts in the future. If necessary he has legal redress against future appointment decisions. Staff appointment procedures cannot be compared to one another because the candidates are different in each case with the result that a judgment in this case cannot have any effects on future appointments.

34.   The applicant contends that he retains an interest in the decision in the case. First of all, unlawful decisions by the Commission must be prevented for the future. Secondly, the decision rejecting the applicant’s candidature could have detrimental effects on his prospects of success in future candidatures for similar posts. Lastly, a judgment in this case is important having regard to any claim for damages which the applicant may be entitled to make.

b)      Assessment

35.   The requirement of an interest in bringing proceedings provides a procedural guarantee that the Courts do not have to give an opinion to clarify purely hypothetical points of law. The interest in bringing proceedings is therefore a mandatory requirement for admissibility which may be relevant at different stages of the proceedings. It must therefore undoubtedly exist when the relevant action is brought. However, it must also continue to exist after the action has been brought until the Court’s decision on the merits. (17)

36.   If the interest in bringing proceedings ceases to exist only during pending legal proceedings, a decision on the merits by the Court of First Instance is no longer justified. However, the applicant equally could not be expected to tolerate his action, which was originally admissible, being dismissed out of hand and having to bear the costs. (18) Rather it is only appropriate in such a case to declare that there is no need to adjudicate, (19) which indicates that the basis for the action ceased to exist only after it had been brought and that a cost decision to the detriment of the applicant can be avoided.

37.   The issue of the interest in bringing proceedings has relevance before the Community Courts as a rule where legal acts which formally still exist but whose original object has now ceased to apply are being contested. It is recognised in case-law that there can also be an interest in the legal review of such legal acts. However, this presupposes that the annulment of the contested action still has legal consequences (20) or the applicant can otherwise procure an advantage. (21)

38.   In the present case the applicant undoubtedly still retained an interest in bringing proceedings when the action was brought before the Court of First Instance. In particular the mere implementation of the contested decisions could not result in his interest in bringing proceedings ceasing to exist. (22) The Court of First Instance therefore rightly states in paragraph 19 of the contested judgment that the contested decisions continued to be effective even after the date when Mr Naqvi took up his post.

39.   Moreover, the contested decisions have never been formally annulled at any time by the appointing authority. The applicant rightly points out in this respect that the retirement of Mr Naqvi, which took place after his action had been brought, certainly cannot be treated in the same way as a cancellation of the original decision on his appointment, which is at issue in the present case. (23)

40.   However, a distinctive feature of the present case is that following the retirement of Mr Naqvi a second selection procedure was launched to fill the post at issue. As a result of that new procedure, the decisions taken in the first procedure, whose lawfulness was being challenged at the time by the applicant in his action before the Court of First Instance, have become obsolete.

41.   The Court of First Instance ignores this aspect, of which it was aware, (24) in paragraph 19 of the contested judgment where it states that the decision rejecting the applicant’s candidature in the first selection procedure continued to be effective. In my opinion the decision appointing the applicant’s competitor and the decision rejecting the applicant’s own candidature are two sides of the same coin. Both decisions stand and fall together. Neither is any longer effective because following the retirement of Mr Naqvi a new selection procedure was launched to fill the post in question. The decision on the complaint, which is also contested, must therefore also have become obsolete; its legal effects could not extend further than the effects of the two initial decisions by the appointing authority which it confirmed.

42.   However, the cessation of the effects of the contested decisions, which occurred after the action had been brought, does not in itself entail any obligation on the Court of First Instance to rule that there is no need to adjudicate. Rather, it should be examined whether the applicant retains an interest in bringing proceedings even though the contested decisions are obsolete. If the interest is preserved, it would be inconsistent with the requirement of judicial review of the action of the Community organs, (25) which is fundamental to a Community of law, to refuse the applicant a decision on the merits.

43.   Under case-law, an applicant may retain his interest in bringing proceedings, first of all, because of the risk of a repetition of an (allegedly) unlawful act emanating from a Community organ, (26) specifically with regard to the further referral of the matter to the competent Community organ under Article 233(1) EC. (27) Secondly, the interest in bringing proceedings may be retained where a decision on an action for annulment is important for any claims for damages (28) made by the applicant. Thirdly, in certain cases, staff cases in particular, the applicant may have an interest in the withdrawal of derogatory statements about his person so that he is rehabilitated for the future. (29)

44.   The contested judgment deals solely with the first of these three cases, i.e. the risk of a repetition of an (allegedly) unlawful act by the appointing authority. In this respect in paragraph 20 of its judgment the Court of First Instance bases its view on the applicant’s claim that the manner in which the Director-General (30) of EuropeAid participated in the selection procedure constituted a procedural error. In the view of the Court of First Instance, it could not be ruled out that in a subsequent procedure the Director-General would play a similar role to that played in the first selection procedure to fill the contested post of director. The Court of First Instance infers from that risk of repetition that the applicant retains an interest in bringing proceedings.

45.   It could at first sight be argued against the assumption of such a risk of repetition that, despite their frequency, resulting purely from the numbers involved, decisions on staff appointments are never repeated mechanically. (31) Although such procedures take place regularly within the Community organs, the appointing authority’s decision on selection is always unique. First of all, a general assessment must be made of the qualities offered by all the candidates in the light of the job specification for the post to be filled. Secondly, the identity and quality of the candidates and the criteria laid down in each instance may differ markedly from one case to the next. This was rightly pointed out by the Commission, and the applicant himself conceded that in the present case the second selection procedure was not comparable to the first since different candidates had to be compared with one another in each one.

46.   However, a distinctive feature of the present case is that by his action for annulment the applicant is challenging the selection decision not only substantively, but is also complaining of the procedure which led to that decision. The applicant claims that the procedure was discriminatory per se because not all candidatures were examined equally thoroughly and, as a result, not all candidates were in equal competition with one another. (32) Thus, the Director-General of EuropeAid, where the contested post of director was based, made a pre-selection by which both the Consultative Committee and the appointing authority were then essentially guided, without carrying out themselves a further detailed assessment of the aptitude and competence of all candidates, including the candidates not recommended by the Director-General.

47.   In contrast to the substantive assessment of different candidatures, there is nothing unique about a selection procedure where the competent Director-General makes a pre-selection by which the Consultative Committee and the appointing authority are then essentially guided. This process can in fact also be repeated at any time in respect of appointments to other director’s posts. The applicant is therefore complaining not only of a problem in this individual case, but also of a structural problem. Objectively, clarifying whether the abovementioned organisation of a selection procedure is lawful could certainly be extremely important to the applicant with regard to any future candidatures for director’s posts.

48.   Unlike the Commission, I do not consider it purely hypothetical either that the applicant could apply for other director’s posts. It is clear from the file in the case that the applicant had already applied for such a post prior to the selection procedure at issue. Moreover, he applied twice for the post at issue in the present case.

49.   Accordingly in the present case there were sufficient grounds for the Court of First Instance to take the view that the applicant retained an interest in bringing proceedings when the contested judgment was delivered.

50.   Against this background, I conclude that the Court of First Instance did not commit an error in law when in paragraph 21 of the contested judgment it rejected the Commission’s application for a declaration that there was no need to adjudicate. In fact, because the applicant retained an interest in bringing proceedings, the Court was required to give a ruling on the merits.

51.   The cross-appeal lodged by the Commission must therefore be dismissed as unfounded.

B –    The appeal lodged by the applicant

52.   In the light of the above findings on the cross-appeal lodged by the Commission, it is now necessary to examine the appeal lodged by the applicant.

53.   It should first be pointed out that in appeal proceedings the Court of Justice may of its own motion examine whether the applicant has an interest in bringing or in maintaining its appeal. (33)

54.   However, in the present case there is nothing to suggest that the applicant’s interest in bringing proceedings, (34) which he retained up to the delivery of the contested judgment, had ceased to exist in the period after that judgment had been delivered. The risk of the procedural error alleged by the applicant being repeated in selection procedures still exists. In the proceedings before the Court of Justice no new facts have emerged which would give grounds to re-assess the issue of the interest in bringing proceedings. The Court of Justice must therefore give a ruling on the appeal lodged by the applicant.

1.      The first plea in law

55.   By his first plea in law, the applicant claims that in paragraphs 32 and 33 of the contested judgment the Court of First Instance distorted facts, committed an error in law and stated contradictory and insufficient grounds for its judgment. In particular, the applicant appears to take the view that in the light of the note from the Director-General of EuropeAid dated 18 November 2002 (35) the Court should have objected to the contested decisions by the appointing authority in so far as they asserted that the successful candidate Mr Naqvi was ‘the candidate who best satisfied all the requirements referred to in the notice of vacancy. (36)

a)      The first part of the first plea in law: distortion of facts

56.   The first part of the first plea in law claims a distortion of facts.

57.   The applicant argues that the Court of First Instance proceeded on the basis of inaccurate facts. It failed to appreciate that sound experience in personnel management and proven abilities in managing, motivating and supervising large teams (37) were required for the director’s post at issue. This is apparent from the note from the Director-General of EuropeAid. It can also be seen from that note that the abilities of the successful candidate, Mr Naqvi, in this area were rated with one out of a possible three points, whereas three other candidates had been awarded a full score in that area. In addition, the note stated that Mr Naqvi’s strengths lay more in ‘conception, reflection and analysis’ than in ‘reorganising and managing a large operational team’.

58.   In accordance with consistent case-law an alleged distortion of facts must be obvious from the documents on the Court’s file, without there being any need to carry out a new assessment of the facts and the evidence. (38) After inspecting the note from the Director-General of EuropeAid, I do not see anything to suggest that the Court of First Instance distorted facts.

59.   In that note it was expressly acknowledged that the candidate Mr Naqvi satisfied the criteria set out in the notice of vacancy. (39) Furthermore, in the note Mr Naqvi was classified in the group of candidates who, in the view of the Director-General of EuropeAid, were suitable for the role of director in connection with the relevant duties. That note does not therefore provide any grounds to assume that the Director-General of EuropeAid regarded Mr Naqvi’s suitability for the director’s post at issue as inadequate.

60.   It is true that in that note the Director-General of EuropeAid conducted an evaluation in such a way that he rated individual candidates as better than others in the light of the job specification. This is particularly clear from the table annexed to his note where the Director-General rated the abilities of each individual candidate, including in personnel management, with between one and three points and carried out further grading of the candidates in his general assessment. The Director-General made such distinctions not only between the two groups of candidates, but also within the group of candidates which he finally proposed as suitable to the Consultative Committee and the appointing authority. It cannot be disputed that Mr Naqvi, who was ultimately successful, was rated less highly than other candidates by the Director-General of EuropeAid.

61.   It should be borne in mind, however, that the note from the Director-General of EuropeAid was not the sole basis for the decision taken by the Consultative Committee and the appointing authority. This can be seen from the fact that the six candidates proposed in the note, including Mr Naqvi, were invited for further interview with the Consultative Committee. Only on the basis of those interviews did the Consultative Committee and the appointing authority form a final picture and select Mr Naqvi for the post of director.

62.   Consequently, the Court of First Instance was not required either to base its judgment essentially or even exclusively on the assessment of the different candidates by the Director-General of EuropeAid. The weighting given to that note alongside other evidence – in particular the evidence referred to in paragraph 65 of the contested judgment (40) – was a matter of the assessment of the facts and evidence, for which the Court of First Instance has exclusive jurisdiction and which cannot be replaced by the Court of Justice’s own assessment in appeal proceedings. (41)

63.   The first part of the first plea in law does not therefore have any prospects of success.

b)      The second part of the first plea in law: failure to state sufficient grounds

64.   With the second part of the first plea in law, the applicant claims that the Court of First Instance stated contradictory and insufficient grounds for its judgment. He alleges that in paragraphs 28 to 35 of the contested judgment the first plea in law was wrongly rejected.

65.   Under the first sentence of Article 36 and the first paragraph of Article 53 of the Statute of the Court of Justice, reasons must be stated for the Court of First Instance’s judgments. The aim of this duty to state reasons is to enable the persons concerned to know why the measures in question were taken and to provide the Court of Justice with sufficient material for it to exercise its power of judicial review. (42)

66.   In the present case, in paragraphs 28 to 35 of the contested judgment the Court of First Instance conducted a thorough examination of the Commission’s decision on the complaint and explained in detail why it considered that the Commission had complied with its duty to state grounds. No internal contradictions can therefore be seen in the grounds of the judgment. In particular, as has already been stated, (43) it was not at all illogical or contradictory to assess different facts and evidence in examining the contested decisions, rather than basing the examination solely or at least essentially on the assessment of the candidates by the Director-General of EuropeAid, as the applicant seems to have in mind.

67.   The fact that the Court of First Instance reaches a substantively different conclusion from the applicant’s with regard to Mr Naqvi’s suitability for the contested director’s post does not in itself mean that there was a failure to state sufficient grounds in the contested judgment.

68.   Therefore, this second part of the first plea in law does not have any prospects of success either.

2.      The second plea in law

69.   By his second plea in law the applicant claims that the Court of First Instance distorted facts and evidence and committed an error in law by failing to annul the contested Commission decision on grounds of infringement of Articles 7, 29(1)(a) and 45(1) of the Staff Regulations.

a)      The first part of the second plea in law

70.   In the first part of the second plea in law, the applicant alleges that in choosing between the candidates for the contested director’s post consideration should not have been given to the ‘challenges’ (44) connected with that post or to ‘reform-mindedness’. (45) Those criteria had not been mentioned in the notice of vacancy. However, they had in fact played a crucial role in the selection procedure and in particular in the note from the Director-General of EuropeAid. The Court of First Instance did not have sufficient regard to this factor in the contested judgment and in this way distorted the facts and evidence.

71.   Unlike the applicant, I cannot see any grounds to suggest that the Court of First Instance distorted facts or evidence. In paragraphs 55 and 58 of the contested judgment, it is made clear that the Court of First Instance properly addressed the problem of the ‘challenges’ faced by the director to be selected and the ‘reform-mindedness’ required of him. Consequently, the Court of First Instance certainly did not ignore the applicant’s arguments or pass over points of fact in its judgment.

72.   As to the merits, the Court of First Instance admittedly states that the importance of ‘challenges’ should not be overestimated and should be seen in connection with a personal statement of opinion by the Director-General of EuropeAid. (46). As regards ‘reform-mindedness’, the Court further explains that that criterion corresponds to the information contained in the notice of vacancy. (47)

73.   In this appraisal of the case, the Court of First Instance is clearly within the bounds of a reasonable assessment of the facts and evidence. The fact that that assessment by the Court does not tally with that of the applicant does not in itself mean that it is a distortion of facts.

74.   In reality, with this part of his appeal, the applicant is seeking not so much to have a distortion of facts or evidence by the Court of First Instance sanctioned than to have the Court of Justice replace the assessment of facts and evidence conducted by the Court of First Instance with its own. However, that is not permissible in the context of appeal proceedings. (48)

75.   The first part of the second plea in law does not therefore have any prospects of success.

b)      The second part of the second plea in law: legal error regarding the participation of the competent Director-General in the selection procedure

76.   By the second part of its second plea in law, the applicant claims that in paragraph 54 of the contested judgment the Court of First Instance fails to recognise the influence of the pre-selection by the competent Director-General on the rest of the selection procedure before the Consultative Committee. The Consultative Committee was bound de facto by the pre-selection made. This can be seen particularly clearly in the present case from the fact that the Consultative Committee merely invited the candidates pre-selected by the Director-General of EuropeAid for further interview.

77.   The points of law examined at first instance may be discussed again in the course of an appeal, (49) for example, in the present case, the lawfulness of the selection procedure and in particular the lawfulness of the manner in which the competent Director-General participated. (50) However, in such a case the legal arguments advanced in support of the appeal must be indicated precisely; that requirement is not satisfied by an appeal which, without even including an argument specifically identifying the error of law allegedly vitiating the judgment under appeal, merely repeats or reproduces verbatim the pleas in law and arguments previously submitted to the Court of First Instance. (51)

78.   That is the case here: in his appeal the applicant does not indicate precisely the criticisms that he wishes to make about the contested judgment in relation to the role played by the Director-General of EuropeAid in the selection procedure. He merely repeats in general terms the arguments put forward at first instance regarding the de facto binding effect of the pre-selection made by the Director-General for the rest of the selection procedure. (52)

79.   This part of the second plea in law is therefore inadmissible and likewise does not have any prospects of success.

3.      Interim conclusion

80.   The appeal lodged by the applicant is therefore partially inadmissible, partially unfounded and, as a result, must be dismissed in its entirety.

VII –  Costs

81.   Under Article 122 in conjunction with Article 118 and Article 69(2) of the Rules of Procedure of the Court of Justice, the unsuccessful party shall be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

82.   Under the second paragraph of Article 122 of the Rules of Procedure of the Court of Justice, for the appeal lodged by the applicant, by way of derogation from Article 69(2), the Court may order the parties to share the costs where equity so requires. However, no such considerations of equity are apparent in the present case, nor have they been asserted by the applicant. I therefore take the view that the applicant, who has been unsuccessful with his appeal, should be ordered to pay the costs of the appeal lodged by him in accordance with the application in the Commission’s pleadings.

83.   As regards the cross-appeal lodged by the Commission, it follows from the second paragraph of Article 122 in conjunction with Article 70 of the Rules of Procedure of the Court of Justice that the Commission must bear its own costs. Because the cross-appeal lodged by the Commission was unsuccessful, moreover, it should be ordered to pay the costs applied for by the applicant in relation to the cross-appeal. The Commission should therefore be ordered to pay the entire costs of the cross-appeal.

VIII –  Conclusion

84.   I therefore propose that the Court should:

(1)      dismiss the appeal;

(2)      order each party to bear the costs of its own appeal.

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1 – Original language: German.

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2 – EuropeAid was set up on 1 January 2001 by a Commission decision as part of its efforts to reform the management of external aid. The Office’s mission is to implement the external aid (development aid) instruments of the Commission which are funded by the European Community budget and the European Development Fund.

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3 – Case T-370/03 Wunenburger v Commission [2005] ECR-SC I-A-000 and II-0000.

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4 – Staff Regulations of officials and the Conditions of Employment of other servants of the European Communities, applicable with effect from 5 March 1968, laid down by Articles 2 and 3 of Council Regulation (EEC, Euratom, ECSC) No 259/68 of 29 February 1968 (OJ, English Special Edition 1968(I), p. 30), as amended by Regulation (Euratom, ECSC, EEC) No 1473/72 of the Council of 30 June 1972 (OJ, English Special Edition 1952-1972, p. 100).

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5 – Notice of vacancy COM/138/02.

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6 – Notice of vacancy COM/142/04 of 28 May 2004.

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7 – Paragraphs 19 to 21 of the contested judgment.

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8 – Paragraphs 28 to 35 of contested judgment.

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9 – Complaints were also made regarding breaches of the principles of protection of legitimate expectations, equal treatment and entitlement to reasonable career prospects.

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10 – Paragraphs 51 to 83 of contested judgment.

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11 – Case C-23/00 P Council v Boehringer [2002] ECR I-1873, paragraph 50, and Case C-141/02 P Commission v max.mobil [2005] ECR I-1283, paragraphs 50 and 51. See also, implicitly, Case C‑73/97 P France v Comafrica and Others [1999] ECR I‑185; see in particular the Opinion of Advocate General Mischo in that case ([1999] ECR I-185, paragraph 11 et seq.).

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12 – Council v Boehringer (cited in footnote 11, paragraph 52).

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13 – For example, in proceedings for interim measures, the order in Case C‑363/98 P(R) Emesa Sugar v Council [1998] ECR I-8787, paragraph 43 et seq.

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14 – Paragraphs 19 to 21 of the contested judgment.

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15 – See Joined Cases C-204/00 P, C-205/00 P, C-211/00 P, C-213/00 P, C-217/00 P and C-219/00 P Aalborg Portland and Others v Commission [2004] ECR I-123, paragraphs 47 to 49; Case C‑105/04 P FEG v Commission [2006] ECR I-0000, paragraphs 69 and 70; and Case C‑113/04 P TU v Commission [2006] ECR I-0000, paragraphs 82 and 83, each with further references.

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16 – Case C-551/03 P General Motors v Commission [2006] ECR I-3173, paragraph 51; FEG v Commission (cited in footnote 15, paragraph 69); and TU v Commission (cited in footnote 15, paragraph 82), each with further references.

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17 – Case T-159/98 Torre and Others v Commission [2001] ECR-SC I-A-83 and II-395, paragraph 30; Case T-131/99 Shaw and Falla v Commission [2002] ECR II‑2023, paragraph 29; and order in Case T-28/02 First Data v Commission [2005] ECR II-4119, paragraphs 35 to 37.

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18 – In this respect the judgment delivered in appeal proceedings in Case C-19/93 P Rendo and Others v Commission [1995] ECR I-3319, paragraph 13, is misleading; the Court stated that where there is no interest in bringing or in maintaining an appeal it may ‘declare the appeal inadmissible or devoid of purpose for that reason’. In my opinion this really means that the appeal should be declared inadmissible where there was no interest in bringing proceedings when the appeal was lodged, whilst there is no need to adjudicate on the appeal where the interest in bringing proceedings ceases to exist only at a later date.

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19 – Joined Cases T-112/96 and T-115/96 Séché v Commission [1999] ECR-SC I-A-115, II-623, paragraph 37; Torre and Others v Commission (cited in footnote 17, paragraph 31); and order in First Data v Commission (cited in footnote 17, paragraph 53).

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20 – Case 53/85 Akzo Chemie and Others v Commission [1986] ECR 1965, paragraph 21; Joined Cases T-480/93 and T-483/93 Antillean Rice Mills v Commission [1995] ECR II-2305, paragraph 59; and Joined Cases T-213/01 and T‑214/01 Österreichische Postsparkasse and Others v Commission [2006] ECR II‑1601, paragraph 53.

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21 – Rendo and Others v Commission (cited in footnote 18, paragraph 13) and Case C-174/99 P Parliament v Richard [2000] ECR I-6189, paragraph 33; also Joined Cases C‑138/03, C-324/03 and C-431/03 Italy v Commission [2005] ECR I-10043, paragraphs 23 to 25.

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22 – Case 92/78 Simmenthal v Commission [1979] ECR 777, paragraph 32, and Akzo Chemie and Others v Commission (cited in footnote 20, paragraph 21).

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23 – The ‘retrait de l’emploi’ of an official within the meaning of Article 50 of the Staff Regulations is not synonymous with the ‘retrait de la décision’ by which that official had been appointed.

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24 – See, for example, paragraph 2 of the Commission’s rejoinder of 30 June 2004 in the proceedings before the Court of First Instance (Case T-370/03).

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25 – See Case T-310/00 MCI v Commission [2004] ECR II-3253, paragraphs 46 and 61. A similar consideration ultimately underlies the judgment in Joined Cases T-191/96 and T-106/97 CAS Succhi di Frutta v Commission [1999] ECR II-3181, paragraph 63.

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See also Case 22/70 Commission v Council (‘AETR’) [1971] ECR 263, paragraph 40, according to which ‘the objective of this review [under Article 230 EC] is to ensure, as required by [Article 220(1) EC)], observance of the law in the interpretation and application of the Treaty’ and Case 294/83 Les Verts v Parliament [1986] ECR 1339, paragraph 23, according to which ‘neither its Member States nor its institutions can avoid a review of the question whether the measures adopted by them are in conformity with the basic constitutional charter, the Treaty’. With regard to the requirement of judicial review in a Community based on the rule of law see also the recent judgment in Case C-50/00 P Unión de Pequeños Agricultores [2002] ECR I‑6677, paragraph 38.

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26 – For example, in a recent case concerning merger control, MCI v Commission (cited in footnote 25, paragraphs 55 and 63). See also Simmenthal v Commission (cited in footnote 22, paragraph 32); Akzo Chemie and Others v Commission (cited in footnote 20, paragraph 21); Case 207/86 Apesco v Commission [1988] ECR 2151, paragraph 16; Case T-182/94 Marx Esser and Others v Parliament [1996] ECR-SC I-A-411 and II-1197, paragraph 41; CAS Succhi di Frutta v Commission (cited in footnote 25, paragraph 63); and Österreichische Postsparkasse and Others v Commission (cited in footnote 20, paragraph 54).

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27 – Simmenthal v Commission (cited in footnote 22, paragraph 32); Case 76/79 Koenecke v Commission [1980] ECR 665, paragraph 9; Antillean Rice Mills v Commission (cited in footnote 20, paragraph 60); CAS Succhi di Frutta v Commission (cited in footnote 25, paragraph 63); MCI v Commission (cited in footnote 25, paragraph 46); and Österreichische Postsparkasse and Others v Commission (cited in footnote 20, paragraph 54).

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28 – Koenecke v Commission (cited in footnote 27, paragraph 9); Joined Cases C-68/94 and C-30/95 France and Others v Commission [1998] ECR I-1375, paragraph 74; Parliament v Richard (cited in footnote 21, paragraphs 33 and 34); and Shaw and Falla v Commission (cited in footnote 17, paragraph 29).

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29 – See, for example, Case 155/78 Miss M. v Commission [1980] ECR 1797, paragraph 6.

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30 – ‘la manière dont le directeur général a présélectionné les candidats’.

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31 – In this respect the present case undoubtedly differs from the situation in Apesco v Commission (cited in footnote 26), for example.

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32 – See, for example, the summary of the applicant’s arguments in paragraphs 37 and 38 of the contested judgment.

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33 – Rendo and Others v Commission (cited in footnote 18, paragraph 13).

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34 – See in this regard the arguments on the cross-appeal, in particular points 38 to 51 of this Opinion.

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35 – See point 9 of this Opinion.

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36 – French: ‘le candidat qui répondait le mieux à l’ensemble des exigences mentionnées dans l’avis de vacance’ (see paragraph 32 of the contested judgment).

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37 – French: ‘solide expérience de management de personnel [et] capacité de gestion, mobilisation et supervision de grandes équipes’.

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38 – Case C-551/03 P General Motors v Commission [2006] ECR I-3173, paragraph 54, and Case C‑167/04 P JCB v Commission [2006] ECR I-0000, paragraph 108; see also Case C-229/05 P PKK and KNK v Council [2007] ECR I-0000, paragraph 37.

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39 – The ‘commentaires’ column of the table annexed to the note of 18 November 2002 contains the following general observation regarding Mr Naqvi: ‘La candidature satisfait aux critères énoncés dans la description du poste’.

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40 – In that paragraph the Court states that the appointing authority did not commit a manifest error of assessment in taking the view that Mr Naqvi satisfied the criteria for personnel management. The Court refers in particular to an evaluation sheet which shows that Mr Naqvi had proven experience in management which he had acquired both as a head of unit and as a head of delegation and that he seemed capable of motivating a team. It also refers to the two official staff reports on Mr Naqvi preceding the selection procedure.

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41 – See point 29 of this Opinion and the case-law cited in footnote 15.

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42 – Case C-397/03 P Archer Daniels Midland and Others v Commission [2006] ECR I‑4429, paragraph 60, and the judgments cited in footnote 15 in Aalborg Portland and Others v Commission (paragraph 372), FEG v Commission (paragraph 72) and TU v Commission (paragraph 85).

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43 – See above, points 58 to 62 of this Opinion.

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44 – French: ‘enjeux du poste’.

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45 – French: ‘sensibilité pour la réforme’.

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46 – Paragraph 55 of the contested judgment.

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47 – Paragraphs 56 to 58 of the contested judgment.

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48 – See point 29 of this Opinion and the case-law cited in footnote 15.

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49 – Case C-68/05 P Koninklijke Coöperatie Cosun v Commission [2006] ECR I-0000, paragraph 54, with further references.

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50 – As has already been stated in connection with the cross-appeal lodged by the Commission, the applicant claimed before the Court of First Instance that a selection procedure was based on an error in law where the competent Director-General made a pre-selection by which the Consultative Committee and the appointing authority were then essentially guided (see above, points 46 and 47 of this Opinion).

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51 – Koninklijke Coöperatie Cosun v Commission (cited in footnote 49, paragraph 55).

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52 – See the summary of his arguments in paragraph 39 of the contested judgment.