Opinion of the Advocate General — ECLI:EU:C:2004:817
Date: 2004-12-16
Language of the case: Spanish
Based on: Treaty establishing the European Economic Community (1957);Treaty on European Union (1992)
Subject matter: Provisions governing the Institutions;Justice and home affairs;Principles, objectives and tasks of the Treaties
Procedure: Action for annulment - inadmissible
Origin: Spain

Summary of the Judgment 1. Procedure – Legal basis of an action – Choice for the applicant and not the Community judicature – Admissibility assessed in the light of the applicant’s choice 2. Actions for annulment – Challengeable acts – Action brought by a Member State against a call for applications, issued by Eurojust, for positions as members of the temporary staff – Excluded – Requirement for judicial review – Rules (Article 230 EC; Article 35 EU, 41 EU, 46(b) EU; Statute of the Court, Arts 40 and 56; Staff Regulations of Officials, Art. 91; Council Decision 2002/187, Art. 30) 1. In judicial proceedings, it is for the applicant to choose the legal basis of its action and not for the Community judicature itself to choose the most appropriate legal basis. It follows that, where the applicant brings its action under a particular provision, while leaving to the discretion of the Court the choice of the most appropriate legal basis to examine that action, the admissibility of that action must be examined in the light of that provision. (see para. 35) 2. A call for applications, issued by Eurojust, for positions as members of the temporary staff is not capable of being the subject of an action for annulment under Article 230 EC. Such a call is not included in the list of acts the legality of which the Court may review under that article. Moreover, Article 41 EU does not provide that Article 230 EC is to apply to the provisions on police and judicial cooperation in criminal matters in Title VI of the EU Treaty, the jurisdiction of the Court in such matters being defined in Article 35 EU, to which Article 46(b) EU refers. Such a call for applications is not, however, exempt from judicial review, for, as is clear from Article 30 of Decision 2002/187, setting up Eurojust with a view to reinforcing the fight against serious crime, Eurojust staff are to be subject to the rules and regulations applicable to officials and other servants of the European Communities. It follows that the main parties concerned, namely the candidates for the various positions in the contested calls for applications, have access to the Community Courts under the conditions laid down in Article 91 of the Staff Regulations of Officials. In the event of such an action, Member States would be entitled to intervene in the proceedings in accordance with Article 40 of the Statute of the Court of Justice and could, where appropriate, as is clear from the second and third paragraphs of Article 56 of that Statute, appeal against the judgment of the Court of First Instance. (see paras 36-38, 40-43)