61985C0255
OPINION OF MR ADVOCATE GENERAL LENZ
delivered on 12 June 1986 (
*1
)
Mr President,
Members of the Court,
1.
This case, whose admissibility has just been discussed, is, in all evidence, so plain and straightforward that I can give my views forthwith.
2.
As the Court will recall, the question is whether the legal proceedings against the Selection Board's decision of 7 January 1985 not to admit the applicant to the tests in Competition CC/A/1/84 were brought in due time.
3.
The answer would plainly have to be in the negative if regard were to be had to only the decisions of the Court, according to which a complaint against a decision of a Selection Board is pointless and the only legal remedy in such a case lies in a direct application to the Court (see judgments in Cases 44/71, (
1
) 144/82 (
2
) and 52/85 (
3
)). The reason is that, under Article 91 of the Staff Regulations, an appeal to the Court must be filed within three months and in this case the application was not lodged until 16 August 1985, that is to say more than seven months after the contested decision was taken.
4.
However, on the one hand, the principle underlying those decisions, namely that the appointing authority has no possible influence over a Selection Board, is open to criticism as being certainly unjustified in absolute terms. Situations readily come to mind in which there is definitely some point in first requesting the appointing authority to take action on account of irregular conduct on the part of a selection board (for instance, in the event of manifest procedural errors, failure to observe the requirements set out in the vacancy notice where no assessment of the merits of the candidates is involved or failure to state reasons for an adverse decision which, the Court has held, must be given).
5.
On the other hand it is also significant that it has been repeatedly emphasized in judgments of the Court that where a complaint is nevertheless submitted, this must be taken into account in the applicant's favour; in particular, in the judgment in Detti's case the Court made it clear that in such circumstances the prescribed period begins to run on the day on which the decision on the complaint was notified to the applicant.
6.
Consequently this case hinges on how the letter of 28 February 1985 to the applicant must be assessed. If, as the Court of Auditors contends, the letter really is to be regarded as the decision on a complaint, there can be no doubt that, calculated from that date, the prescribed period expired in May and not in August 1985 and the application to the Court of Justice was therefore lodged out of time.
7.
The point might be argued that no account could be taken of the letter in question on the ground that, although it might at the most be attributable to the Selection Board, it did not emanate from the appointing authority, to which the applicant actually addressed his complaint. It is true that that could not help to establish that the action was brought within the prescribed time-limit, since the letter of February 1985 from the President of the Court of Auditors (stating that the complaint had been forwarded to the Chairman of the Selection Board, who had been asked to reply) would then have to be construed as a decision completely precluding any further action or consideration of the complaint by the appointing authority. However, as a result the prescribed period would have already started to run in February 1985.
8.
In fact, the applicant did not deploy that argument against the view put forward by the Court of Auditors. He argues that no account can be taken of the decision of 28 February 1985 because it was signed merely by the Secretary of the Selection Board. He implies therefore that there are doubts whether the Selection Board as a whole considered his complaint. In any case, he raises the objection that it is not apparent from the letter that the Secretary acted on the instructions of the Chairman of the Selection Board or as his representative and that there is no evidence in writing that she had authority to that effect (this, at any rate, was the view he expressed in the written procedure).
9.
However, I can scarcely concur with this assessment and the associated conclusion that it must therefore be assumed that the applicant's complaint was rejected by implication after a period of four months had elapsed (which would mean that the application was lodged within the prescribed period, calculated from that date).
10.
Since then, the Court of Auditors has provided the Court of Justice with sufficient evidence — in the form of an extract from Minutes — that the Selection Board did consider the applicant's complaint and subsequently adhered to its view that it was unable to admit the applicant to the tests. As a result, it is clear that the aforementioned doubts raised by the applicant are without foundation.
11.
One possible view, which I myself am inclined to favour, is that, by her appointment as Secretary of the Selection Board, which no one has contested, authority was vested in Mrs Thill-De Kant, not only to record the Board's decisions, but also to notify them to the persons concerned.
12.
However, in this case we do not have to rely on this argument, since the Minutes of the Selection Board expressly state that its Secretary was authorized to notify the complainants, including therefore the applicant, of its decision.
13.
Consequently, since we know that a decision was actually taken by the Selection Board in response to the complaint, it is clear that any reference to the judgments in the cases involving the question whether or not there was a decision of the High Authority is out of place here. It will be recalled that according to those decided cases a statement can have the force of a decision only if it is apparent from its very form that it was a measure taken by the High Authority, acting as a body, and that is only the case where it bears the signature of a Member of the High Authority and not where a letter was signed by an official in his own name and hence not in the name and on behalf of the High Authority (see the judgments in Cases 23, 24 and 52/63 ; (
4
) Case 54/65; (
5
) Case 42/59; (
6
) and Case 35/62 (
7
)).
14.
In this case, it is clear from the wording of the letter that it was the ‘view of the Selection Board’ that was being notified and that the Board could ‘only confirm its decision’.
15.
Accordingly, it is much more appropriate to refer to Joined Cases 15 and 29/59. (
8
) Those cases concerned a letter signed by an official of the High Authority in response to an application for exemption under the ferrous scrap price equalization scheme informing the applicant that the High Authority had found that no exemption could be granted, and, according to the judgment, that letter therefore constituted ‘notification of a decision ... taken by the High Authority’. Reference may also be made to Case 48/69 (
9
) concerning competition law in which a complaint that a notice of objections had been signed by a Commission official was not upheld. The decisive factor there was that the notice of objections had in fact previously been approved by the Member of the Commission responsible for questions relating to competition and hence the official had merely signed as proxy, which was a matter relating to the internal organization of the departments of the Commission and was therefore not open to criticism.
16.
Since the case concerns the filing of an application at the Court in time, it should also be noted that under the system laid down in the Staff Regulations it has no bearing on the prescribed time-limits whether the person concerned actually receives a correct copy of an act adversely affecting him; reliable notification of a decision actually in existence may suffice (see Article 90 (2)).
17.
However, since there can be no doubt that the applicant received reliable notification of the Selection Board's decision on his complaint by means of the letter of 28 February 1985 and there can also be no doubt as to the correctness of the delegation to the Selection Board's Secretary of authority to sign the notifications of a number of measures, it necessarily follows that the prescribed period began to run as of the notification of the decision of 28 February 1985 and that as a result the application relating to the decision of 7 January 1985 was out of time when it was received at the Court.
18.
That automatically signifies that the whole application is inadmissible, since all three claims made by the applicant are manifestly directed against the refusal to admit him to the tests. It is therefore unnecessary to consider whether applications for declarations of the type sought in the first claim are permitted by the Court's procedural rules or whether the Court has jurisdiction to make an order of the type applied for in the third claim or whether that is precluded by the discretion to which the Selection Board is entitled.
19.
Consequently, I can only propose that the application should be dismissed as inadmissible. As far as the costs are concerned, however, the application made by the Court of Auditors should not be accepted: Article 70 of the Rules of Procedure should be applied in the normal way since the situation (which finally became clear when the Court of Auditors produced the excerpt from the Minutes) was not such as to involve an improper appeal to the Court.
(
*1
)	Translated from the German.
(
1
)	Judgment of 14 June 1972 in Case 44/71 Marcato v Commission [1972] ECR 427.
(
2
)	Judgment of 14 July 1983 in Case 144/82 Delti v Court of Justice [1983] ECR 2421.
(
3
)	Judgment of 7 May 1986 in Case 52/85 Rihoux and Others v Commission [1986] ECR 1555.
(
4
)	Judgment of 5 December 1963 in Joined Cases 23, 24 and 52/63 Usines Emile Henricot and Others v High Authority [1963] ECR 217, at p. 224.
(
5
)	Judgment of 16 June 1966 in Case 54/65 Compagnie des Forges de Chãtillon, Commentry et Neuves-Maisons v High Authority of the ECSC [1966] ECR 185, at p. 195.
(
6
)	Judgment of 22 March 1961 in Joined Cases 42 and 49/59 Société Nouvelle des Usines de Pontlieue — Aciéries du Temple (SNUPAT) v High Authority of the ECSC [1961] ECR 53, at p. 72.
(
7
)	Judgment of 5 December 1963 in Joined Cases 35/62 and 16/63 André Leroy v High Authority of the ECSC [19631 ECR 197, at p 204.
(
8
)	Judgment of 12 February 1960 in Joined Cases 15 and 29/59 Société Métallurgique de Knutange v High Authority of the ECSC [1960] ECR 1, at p. 7.
(
9
)	Judgment of 14 July 1972 in Case 48/69 Imperial Chemical Industries Ltd v Commission [1972] ECR 619, at p. 649.