61984T0292

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1 . PROCEDURE - THIRD-PARTY PROCEEDINGS - CONDITIONS OF ADMISSIBILITY - PREJUDICE TO THE RIGHTS OF THE THIRD PARTY

( STATUTE OF THE COURT OF JUSTICE OF THE EEC, ART . 39; RULES OF PROCEDURE, ART . 97 ( 1 )*)

2 . OFFICIALS - STAFF REGULATIONS - INTERPRETATION - GROUNDS OF A JUDGMENT ANNULLING A PROMOTION - EFFECT OF RES JUDICATA ONLY AS REGARDS THE PARTIES .

IN CASE 292/84*TP

F . BOLOGNESE AND OTHERS, OFFICIALS OF THE COUNCIL AND OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY F . HERBERT, OF THE BRUSSELS BAR, 116 AVENUE DE BROQUEVILLE, 1200 BRUSSELS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF NICOLAS DECKER, AVOCAT, 16 AVENUE MARIE-THERESE, BP 335,

APPLICANTS

V

H . SCHARF, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY J . N . LOUIS, OF THE BRUSSELS BAR, 51 RUE LANGEVELD, BP 16, 1180 BRUSSELS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF YVETTE HAMILIUS, AVOCAT, 11 BOULEVARD ROYAL,

AND

COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS PRINCIPAL LEGAL ADVISER H . ETIENNE, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF G . KREMLIS, A MEMBER OF THE COMMISSION' S LEGAL DEPARTMENT, JEAN MONNET BUILDING, KIRCHBERG,

DEFENDANTS,

APPLICATION TO SET ASIDE THE JUDGMENT DELIVERED BY THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES ( SIXTH CHAMBER ) ON 21 OCTOBER 1986 IN JOINED CASES 269 AND 292/84,

THE COURT ( SIXTH CHAMBER )

COMPOSED OF : C . KAKOURIS, PRESIDENT OF CHAMBER, T . F . O' HIGGINS, T . KOOPMANS, O . DUE AND K . BAHLMANN, JUDGES,

ADVOCATE GENERAL : J . MISCHO

REGISTRAR : H . A . RUEHL, PRINCIPAL ADMINISTRATOR

AFTER HEARING THE VIEWS OF THE ADVOCATE GENERAL,

MAKES THE FOLLOWING

ORDER

1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 20 JANUARY 1987, F.*BOLOGNESE AND 16 OTHER OFFICIALS IN THE LANGUAGE SERVICE OF THE COUNCIL AND THE COMMISSION OF THE EUROPEAN COMMUNITIES APPLIED IN THIRD PARTY PROCEEDINGS PURSUANT TO ARTICLE 39 OF THE PROTOCOL ON THE STATUTE OF THE COURT OF JUSTICE OF THE EEC AND ARTICLE 97 ( 1 ) OF THE RULES OF PROCEDURE OF THE COURT TO SET ASIDE THE JUDGMENT DELIVERED ON 21 OCTOBER 1986 IN JOINED CASES 269 AND 292/84 C.*FABBRO, F . GIUFFRIDA, C . HERBIN AND H . SCHARF V COMMISSION OF THE EUROPEAN COMMUNITIES, IN SO FAR AS CASE 292/84 IS CONCERNED . THE CONTESTED JUDGMENT ANNULLED TWO DECISIONS OF THE COMMISSION OF 30 NOVEMBER 1984 BY WHICH ( A ) PURSUANT TO THE COMMISSION DECISION OF 11 JULY 1984, ACCORDING TO WHICH "APPLICATIONS FROM OFFICIALS IN THE LANGUAGE SERVICE MAY BE CONSIDERED FOR THE FILLING OF ADMINISTRATIVE POSTS AT THE INITIAL STAGE WHEN VACANCY NOTICES ARE ISSUED", MR TEERLINK, AN OFFICIAL IN THE LANGUAGE SERVICE OF THE COMMISSION, WAS APPOINTED TO A POST IN CATEGORY A DECLARED VACANT BY VACANCY NOTICE NO COM/1207/84, AND ( B ) THE APPLICATION FOR THAT POST SUBMITTED BY H . SCHARF, AN OFFICIAL OF THE COMMISSION IN CATEGORY A, WAS REJECTED . THE THIRD PARTIES CHALLENGE THE CONTESTED JUDGMENT IN SO FAR AS THOSE TWO DECISIONS WERE ANNULLED ON THE GROUND OF BREACH OF ARTICLE 45 ( 2 ) OF THE STAFF REGULATIONS OF OFFICIALS WHICH PROVIDES THAT "AN OFFICIAL MAY BE TRANSFERRED FROM ONE SERVICE TO ANOTHER OR PROMOTED FROM CATEGORY TO ANOTHER ONLY ON THE BASIS OF A COMPETITION ".

2 THE THIRD PARTIES SUBMIT IN ESSENCE THAT THE JUDGMENT CAUSED THEM HARM INASMUCH AS IT PLACED THEM IN A LESS FAVOURABLE POSITION THAN OTHER OFFICIALS IN CATEGORY A, IN SO FAR AS THE INTERPRETATION OF ARTICLE 45 ( 2 ) OF THE STAFF REGULATIONS GIVEN IN THAT JUDGMENT IMPLIES THAT THEY CANNOT APPLY FOR OR BE APPOINTED TO A POST IN CATEGORY A OUTSIDE THE LANGUAGE SERVICE WITHOUT A COMPETITION . CONSEQUENTLY, THAT JUDGMENT IS PREJUDICIAL TO THEM WITHIN THE MEANING OF ARTICLE 39 OF THE STATUTE OF THE COURT OF JUSTICE OF THE EEC, IN SO FAR AS THE RIGHT INFRINGED NEED NOT BE A VESTED RIGHT BUT MAY CONSIST SIMPLY IN THE POSSIBILITY OF ACHIEVING A PARTICULAR LEGAL POSITION AND THE HARM SUFFERED BY THE THIRD PARTY MAY RESULT NOT ONLY FROM THE OPERATIVE PART OF THE JUDGMENT BUT ALSO FROM THE REASONS FOR JUDGMENT - IN THIS CASE PARAGRAPH 16 AND IN PARTICULAR PARAGRAPHS 23 TO 25 OF THE JUDGMENT DELIVERED IN CASE 292/84 .

3 WITH REGARD TO THE REASONS FOR WHICH THEY WERE UNABLE TO TAKE PART IN THE ORIGINAL PROCEEDINGS, THE THIRD PARTIES STATE THAT THOSE AMONG THEM WHO HAD NOT YET ENTERED THE SERVICE ON THE DATE ON WHICH THEY COULD HAVE INTERVENED IN THE ORIGINAL PROCEEDINGS WOULD HAVE HAD NO STANDING TO DO SO . AS FOR THE OTHERS, THEY STATE THAT THEY DID NOT INTERVENE BECAUSE ON 25 APRIL 1985, THE LAST DATE ON WHICH THEY COULD PROPERLY DO SO, THE ADMINISTRATIVE PROCEDURE INITIATED BY THE APPLICANT IN CASE 279/85 MISSET V COUNCIL, IN WHICH THEY DID INTERVENE IN SUPPORT OF THE APPLICANT' S CONCLUSIONS ON 28 JANUARY 1986, WAS STILL PENDING, SINCE HIS COMPLAINT CHALLENGING THE COUNCIL' S REJECTION OF HIS APPLICATION FOR A POST IN CATEGORY A HAD BEEN SUBMITTED ON 8 MARCH 1985 . THEY THEREFORE CONSIDERED THAT IF THE COMPLAINT OF THEIR COLLEAGUE AT THE COUNCIL WAS UPHELD, THE COUNCIL WOULD ADOPT THE SAME POSITION AS THAT HELD BY THE COMMISSION; IF, ON THE OTHER HAND, THE COUNCIL REJECTED THE COMPLAINT, AS IN FACT HAPPENED, THEY WOULD BE ABLE TO INTERVENE IN THE PROCEEDINGS BEFORE THE COURT IN SUPPORT OF THE CONCLUSIONS OF THEIR COLLEAGUE AT THE COUNCIL . FURTHERMORE, IN VIEW OF THE CLEAR LINKS BETWEEN THE CASES THEY WERE ENTITLED TO EXPECT THAT CASES 279/85 AND 292/84 MIGHT BE JOINED, AND THE APPLICANT IN CASE 279/85 APPLIED FOR SUCH JOINDER IN HIS SUBMISSION OF 3 FEBRUARY 1986 .

4 THE APPLICANT IN THE ORIGINAL PROCEEDINGS SUBMITS THAT NEITHER THE OPERATIVE PART OF THE CONTESTED JUDGMENT NOR THE GROUNDS OF THE JUDGMENT ARE PREJUDICIAL TO THE RIGHTS OF THE THIRD PARTIES . FURTHERMORE, THE APPLICANT IN THE ORIGINAL PROCEEDINGS CONSIDERS THAT THE THIRD PARTIES HAVE NOT PUT FORWARD ADEQUATE JUSTIFICATION FOR THEIR FAILURE TO INTERVENE IN CASE 292/84; IN A WRITTEN SUBMISSION OF 2 APRIL 1987 HE RAISED AN OBJECTION OF INADMISSIBILITY AGAINST THE THIRD-PARTY PROCEEDINGS AND REQUESTED PURSUANT TO ARTICLE 91 OF THE RULES OF PROCEDURE THAT THE COURT RULE ON THE OBJECTION WITHOUT CONSIDERING THE SUBSTANCE OF THE CASE .

5 THE COMMISSION, THE DEFENDANT IN THE ORIGINAL PROCEEDINGS, SUBMITS THAT THE THIRD-PARTY PROCEEDINGS SHOULD BE DISMISSED AS INADMISSIBLE ON THE GROUND THAT THE RIGHTS OF THE THIRD PARTIES HAVE NOT BEEN PREJUDICED, SINCE THE ORIGINAL PROCEEDINGS CONCERNED THE INTERPRETATION OF A GENERAL PROVISION OF THE STAFF REGULATIONS OF A PROCEDURAL NATURE WHICH THE APPLICANTS HAD NOT AND COULD NOT HAVE MADE USE OF, SO THAT THE ANNULMENT OF THE APPOINTMENT OF THE OFFICIAL AT THE COMMISSION, MR TEERLINK, COULD NOT BE PREJUDICIAL TO THEIR RIGHTS . AS FOR THE REASONS WHICH THE THIRD PARTIES HAVE PUT FORWARD TO EXPLAIN THEIR FAILURE TO INTERVENE IN THE ORIGINAL PROCEEDINGS, THE COMMISSION EMPHASIZES THAT THEY STAKED THE SUCCESS OF THEIR POSITION ON THE OUTCOME OF THE PROCEEDINGS INITIATED BY THE APPLICANT IN CASE 279/85 AND DELIBERATELY CHOSE NOT TO INTERVENE IN THE ORIGINAL PROCEEDINGS; WITH REGARD TO THOSE PERSONS WHO HAD NOT YET ENTERED THE SERVICE AND WERE THUS UNABLE TO INTERVENE, THE CONTESTED JUDGMENT CANNOT IN ANY EVENT BE PREJUDICIAL TO THEIR RIGHTS .

6 WITH REGARD TO THE OBJECTION OF INADMISSIBILITY, ARTICLE 39 OF THE STATUTE OF THE COURT OF JUSTICE OF THE EEC PROVIDES THAT "MEMBER STATES, INSTITUTIONS OF THE COMMUNITY AND ANY OTHER NATURAL OR LEGAL PERSONS MAY, IN CASES AND UNDER CONDITIONS TO BE DETERMINED BY THE RULES OF PROCEDURE, INSTITUTE THIRD-PARTY PROCEEDINGS TO CONTEST A JUDGMENT RENDERED WITHOUT THEIR BEING HEARD, WHERE THE JUDGMENT IS PREJUDICIAL TO THEIR RIGHTS ". ARTICLE 97 ( 1 ) OF THE RULES OF PROCEDURE OF THE COURT PROVIDES, AS CONDITIONS OF ADMISSIBILITY, THAT "AN APPLICATION ORIGINATING THIRD-PARTY PROCEEDINGS ... SHALL ...; ( B ) STATE HOW (( THE CONTESTED )) JUDGMENT IS PREJUDICIAL TO THE RIGHTS OF THE THIRD PARTY; ( C ) INDICATE THE REASONS WHY THE THIRD PARTY WAS UNABLE TO TAKE PART IN THE ORIGINAL CASE .

7 AS IS APPARENT FROM THOSE PROVISIONS, IN ORDER FOR AN APPLICATION IN THIRD-PARTY PROCEEDINGS TO SET ASIDE A JUDGMENT TO BE ADMISSIBLE THE THIRD PARTY MUST DEMONSTRATE THAT THE CONTESTED JUDGMENT IS PREJUDICIAL TO A RIGHT AND NOT MERELY THAT HE HAS A LEGITIMATE INTEREST TO PROTECT .

8 THE JUDGMENT CONTESTED IN THIS CASE ANNULLED THE DECISION APPOINTING AN OFFICIAL OF THE COMMISSION TO A POST FOR WHICH THE THIRD PARTIES WERE NOT CANDIDATES; NOTHING IN THE OPERATIVE PART, THEREFORE, WAS PREJUDICIAL TO ANY OF THEIR RIGHTS UNDER THE STAFF REGULATIONS .

9 THE INTERPRETATION OF ARTICLE 45 ( 2 ) OF THE STAFF REGULATIONS OF OFFICIALS WHICH APPEARS IN THE GROUNDS OF THE CONTESTED JUDGMENT CAN HAVE THE EFFECT OF RES JUDICATA ONLY AS REGARDS THE PARTIES TO THE ORIGINAL PROCEEDINGS, WHO ARE BOUND BY THE OPERATIVE PART OF THE JUDGMENT ANNULLING THE DECISIONS CHALLENGED IN THOSE PROCEEDINGS .

10 CONSEQUENTLY, THE APPLICATION ORIGINATING THIRD-PARTY PROCEEDINGS MUST BE DISMISSED AS INADMISSIBLE, AND IT IS NOT NECESSARY TO CONSIDER WHETHER THE THIRD PARTIES MEET THE SECOND CONDITION OF ADMISSIBILITY, CONCERNING THE REASONS WHICH PREVENTED THEM FROM INTERVENING IN THE ORIGINAL PROCEEDINGS .

COSTS

11 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . HOWEVER, UNDER ARTICLE 70 OF THOSE RULES, INSTITUTIONS ARE TO BEAR THEIR OWN COSTS IN PROCEEDINGS BROUGHT BY OFFICIALS .

On those grounds,

THE COURT ( Sixth Chamber ),

acting pursuant to Article 91 of the Rules of Procedure, after hearing the views of the Advocate General, hereby orders :

( 1 ) The application originating third-party proceedings is dismissed as inadmissible;

( 2 ) The third parties are ordered to bear their own costs and the costs of the applicant in the original proceedings . The Commission is ordered to bear its own costs .

Luxembourg, 22 September 1987 .