61965J0011

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1 . OFFICIALS - RECRUITMENT - COMPETITION - APPEAL AGAINST A DECISION OF APPOINTMENT - ADMISSIBILITY OF CONCLUSIONS SEEKING THE ANNULMENT OF A COMPETITION

( STAFF REGULATIONS OF OFFICIALS OF THE EUROPEAN COMMUNITIES, ARTICLES 29 AND 91 )

2 . OFFICIALS - RECRUITMENT - COMPETITION - HOLDING OR REHOLDING OF A COMPETITION - EXCLUSIVE POWERS OF THE ADMINISTRATION - LIMIT OF THE JURISDICTION OF THE COURT

( STAFF REGULATIONS OF OFFICIALS OF THE EUROPEAN COMMUNITIES, ARTICLES 29 AND 91 )

1 . CONCLUSIONS SEEKING THE ANNULMENT OF A COMPETITION ARE ADMISSIBLE ONLY IN SO FAR AS THEY SUPPORT THE APPLICATION WHICH IS DIRECTED AGAINST THE DECISION OF APPOINTMENT FOLLOWING UPON THE COMPETITION .

2 . ASSESSMENT OF THE EXPEDIENCY OR NECESSITY OF ORGANIZING A COMPETITION LIES WITHIN THE EXCLUSIVE DOMAIN OF THE APPOINTING AUTHORITY . IN THESE CIRCUMSTANCES, THE COURT CANNOT ORDER A COMPETITION TO BE HELD OR REHELD WITHOUT ENCROACHING UPON THE PREROGATIVES OF THE ADMINISTRATIVE AUTHORITY .

IN CASE 11/65

DOMENICO MORINA, DOCTOR OF LAW, AN OFFICIAL OF THE EUROPEAN PARLIAMENT, RESIDING AT 4 RUE THEODORE-EBERHARD, LUXEMBOURG, REPRESENTED AND ASSISTED BY CAMILLE LINDEN OF THE LUXEMBOURG BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF HIS SAID COUNSEL, 1 RUE SCHILLER,

APPLICANT,

V

EUROPEAN PARLIAMENT, REPRESENTED BY ITS SECRETARY - GENERAL, HANS ROBERT NORD, ACTING AS AGENT, ASSISTED BY ALEX BONN OF THE LUXEMBOURG BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE LATTER'S CHAMBERS, 22 COTE-D' EICH,

DEFENDANT,

APPLICATION :

- FOR THE ANNULMENT OF INTERNAL COMPETITION NO B10 FOR THE POST OF ADMINISTRATIVE ASSISTANT IN THE DIRECTORATE-GENERAL OF ADMINISTRATION;

- FOR THE ANNULMENT OF THE TWO DECISIONS OF THE SECRETARY-GENERAL OF THE EUROPEAN PARLIAMENT APPOINTING MRS MARIE-THERESE LOUWAGE TO GRADES B5 AND B4 RESPECTIVELY,

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ADMISSIBILITY

1 . THE DEFENDANT RAISES THE OBJECTION OF INADMISSIBILITY AGAINST THE CONCLUSIONS CONCERNING INTERNAL COMPETITION NO B10, ON THE GROUND THAT THE APPLICANT CANNOT REQUEST THE ANNULMENT OF A COMPETITION, THAT IS TO SAY, OF A COLLECTION OF MEASURES, BUT ONLY OF AN INDIVIDUAL ACT ADVERSELY AFFECTING HIM .

THE APPLICANT HAS DIRECTED HIS APPLICATION PRINCIPALLY AGAINST THE DECISION OF APPOINTMENT FOLLOWING UPON THE COMPETITION IN DISPUTE .

THE CONCLUSIONS CONCERNING THE COMPETITION ARE ADMISSIBLE ONLY IN SO FAR AS THEY SUPPORT THE APPLICATION DIRECTED AGAINST THE ABOVEMENTIONED DECISION .

2 . THE APPLICANT CHALLENGES THE DECISION OF THE SECRETARY-GENERAL OF 19 NOVEMBER 1964 BY VIRTUE OF WHICH MRS MARIE-THERESE LOUWAGE WAS APPOINTED TO THE VACANT POST AND WAS CLASSIFIED IN GRADE B5 WITH EFFECT FROM 1 DECEMBER 1964 .

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THAT DECISION WAS RESCINDED WITH RETROACTIVE EFFECT BY THE SECRETARY-GENERAL AND REPLACED BY A SUBSEQUENT DECISION TAKEN BEFORE THE APPLICATION WAS LODGED .

BY REASON OF THAT FACT, IT MUST BE CONCLUDED THAT THE APPLICATION IS WITHOUT PURPOSE IN SO FAR AS IT IS DIRECTED AGAINST THE SAID DECISION .

THE CONCLUSIONS SEEKING THE ANNULMENT OF THAT DECISION ARE THEREFORE INADMISSIBLE .

3 . FURTHER, THE APPLICANT REQUESTS THE ANNULMENT OF THE DECISION OF THE SECRETARY-GENERAL OF 5 FEBRUARY 1965 WHICH ' RESCINDS AND REPLACES ' THE PRIOR DECISION OF 19 NOVEMBER 1964 BY APPOINTING MRS MARIE-THERESE LOUWAGE TO GRADE B4 .

THAT DECISION TOOK EFFECT RETROACTIVELY FROM THE DATE ON WHICH THE PRIOR APPOINTING TO GRADE B5 HAD TAKEN EFFECT, NAMELY 1 DECEMBER 1964 .

ARTICLE 2 OF THE DECISION PROVIDES FOR THE TRANSFER OF MRS MARIE-THERESE LOUWAGE FROM THE DIRECTORATE-GENERAL OF GENERAL AFFAIRS TO THE DIRECTORATE-GENERAL OF ADMINISTRATION AND THUS BRINGS ABOUT THE CHANGE FROM THE ORIGINAL DEPARTMENT OF THE PERSON CONCERNED TO THAT OF THE POST WHICH WAS THE SUBJECT OF THE COMPETITION .

THIS TRANSFER IS ONE OF THE BASIC EFFECTS OF THE DECISION OF APPOINTMENT ADOPTED FOLLOWING THE COMPETITION .

FOR ALL THESE REASONS, THE DISPUTED DECISION OF 5 FEBRUARY 1965 IN REALITY CONSTITUTES THE MEASURE WHICH, AS OPPOSED TO THE DECISION OF APPOINTMENT TO GRADE B5, PUT AN END TO THE RECRUITMENT PROCEDURE SET IN MOTION BY THE DISPUTED COMPETITION .

AS THE APPLICANT PARTICIPATED IN THAT COMPETITION, HIS REQUEST FOR THE ANNULMENT OF THAT DECISION IS THEREFORE ADMISSIBLE .

4 . THE APPLICANT CLAIMS FINALLY THAT THE COURT SHOULD ORDER INTERNAL COMPETITION NO B10 TO BE REHELD ON THE CONDITIONS PREVIOUSLY LAID DOWN AND BETWEEN THE SAME PERSONS WHO APPEARED IN THE LIST OF SUITABLE CANDIDATES .

ASSESSMENT OF THE EXPEDIENCY OR NECESSITY OF ORGANIZING A COMPETITION LIES WITHIN THE EXCLUSIVE DOMAIN OF THE APPOINTING AUTHORITY .

IN THESE CIRCUMSTANCES, THE COURT CANNOT ORDER A COMPETITION TO BE HELD OR REHELD WITHOUT ENCROACHING UPON THE PREROGATIVES OF THE ADMINISTRATIVE AUTHORITY .

FOR THIS REASON, THESE CONCLUSIONS ARE NOT ADMISSIBLE .

THE SUBSTANCE OF THE CASE

FOR THE REASONS SET OUT ABOVE, THE DECISION OF 5 FEBRUARY 1965 CONSTITUTES THE MEASURE BY WHICH THE ADMINISTRATIVE AUTHORITY PUT AN END TO THE DISPUTED COMPETITION PROCEDURE AND FILLED THE VACANT POST .

THAT DECISION APPOINTED MRS MARIE-THERESE LOUWAGE TO GRADE B4, IN THE CAREER BRACKET OF ADMINISTRATIVE ASSISTANT, IN THE DIRECTORATE-GENERAL OF ADMINISTRATION, WHEREAS THE NOTICE OF THE DISPUTED COMPETITION EXPRESSLY STATED THAT THE VACANT POST, WITHIN THE FRAMEWORK OF THAT CAREER BRACKET, WAS CLASSIFIED AT GRADE B5 .

FURTHER, THE SELECTION BOARD RESPONSIBLE FOR ASSESSING THE QUALIFICATIONS OF EACH CANDIDATE DREW UP ITS LIST OF SUITABLE CANDIDATES WITH A VIEW TO FILLING THAT POST .

IN THESE CIRCUMSTACES, IT MUST BE CONCLUDED THAT THE DECISION IMPUNGED, BY APPOINTING MRS LOUWAGE TO GRADE B4, DOES NOT CONFORM TO CERTAIN ESSENTIAL CONDITIONS OF THE COMPETITION .

IT MUST THEREFORE BE CONSIDERED AS BEING IRREGULAR .

UNDER THE TERMS OF THE FIRST SUBPARAGRAPH OF ARTICLE 69(2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .

AS THE DEFENDANT HAS FAILED IN ITS DEFENCE, IT MUST BE ORDERED TO PAY THE COSTS .

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . ANNULS THE DECISION OF 5 FEBRUARY 1965 APPOINTING MRS MARIE-THERESE LOUWAGE TO GRADE B4;

2 . ORDERS THE DEFENDANT TO PAY THE COSTS OF THE ACTION .