61985CJ0255_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 255/85
HORST PRESSLER-HOEFT, A MEMBER OF THE TEMPORARY STAFF OF THE COURT OF AUDITORS OF THE EUROPEAN COMMUNITIES, REPRESENTED BY VICTOR BIEL, OF THE LUXEMBOURG BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE LATTER ' S CHAMBERS, 18 A RUE DES GLACIS,
APPLICANT,
V
COURT OF AUDITORS OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS SECRETARY, JEAN-AIME STOLL, AND BY MICHAEL BECKER, AN ADMINISTRATOR IN THE OFFICE OF THE PRESIDENT OF THE COURT OF AUDITORS, ACTING AS AGENTS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE SEAT OF THE COURT OF AUDITORS, RUE ALDRINGEN,
DEFENDANT,
Subject of the case
APPLICATION FOR A DECLARATION THAT CERTAIN LETTERS FROM A SELECTION BOARD DO NOT CONSTITUTE DECISIONS OR, FAILING THAT, A DECLARATION THAT THEY ARE VOID,
Grounds
1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 16 AUGUST 1985, HORST PRESSLER-HOEFT, A MEMBER OF THE TEMPORARY STAFF OF THE COURT OF AUDITORS OF THE EUROPEAN COMMUNITIES, BROUGHT AN ACTION AGAINST THAT INSTITUTION FOR A DECLARATION THAT A LETTER ENAMATING FROM A SELECTION BOARD AND SIGNED BY ITS SECRETARY IN REPLY TO A COMPLAINT MADE AGAINST THE SELECTION BOARD ' S DECISION NOT TO ADMIT HIM TO THE TESTS OF A COMPETITION COULD NOT BE REGARDED AS A DECISION OR, FAILING THAT, FOR A DECLARATION THAT THE LETTER WAS VOID AND THAT HE WAS TO BE ADMITTED TO THE COMPETITION .
2 IT APPEARS FROM THE DOCUMENTS BEFORE THE COURT AND THE ORAL ARGUMENT AT THE SITTING THAT IN 1984 MR PRESSLER-HOEFT, WHO HAD BEEN A MEMBER OF THE TEMPORARY STAFF SINCE 6 JANUARY 1982, APPLIED TO BE ADMITTED TO A GENERAL COMPETITION HELD ON THE BASIS OF QUALIFICATIONS AND TESTS FOR A POST OF ADMINISTRATOR ( AUDITOR ) AT THE COURT OF AUDITORS IN CAREER BRACKET A7/A6 ( NOTICE OF OPEN COMPETITION CC / A/1/84, OFFICIAL JOURNAL 1984, C 106, P . 10 ).
3 BY LETTER OF 7 JANUARY 1985, THE SECRETARY OF THE SELECTION BOARD INFORMED MR PRESSLER-HOEFT THAT HE COULD NOT BE ADMITTED TO THE TESTS ON THE GROUND THAT THE NUMBER AND/OR THE NATURE OF THE CERTIFICATES SUBMITTED BY HIM WERE INADEQUATE .
4 ON 15 JANUARY 1985, MR PRESSLER-HOEFT SUBMITTED A COMPLAINT TO THE PRESIDENT OF THE COURT OF AUDITORS, PURSUANT TO ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS, IN WHICH HE ASKED FOR THE LEGALITY OF THE SELECTION BOARD ' S DECISION TO BE REVIEWED .
5 ON 7 JANUARY 1985 THE PRESIDENT OF THE COURT OF AUDITORS NOTIFIED MR PRESSLER-HOEFT THAT HIS COMPLAINT HAD BEEN FORWARDED TO THE CHAIRMAN OF THE SELECTION BOARD, WHO HAD BEEN ASKED TO REPLY .
6 IT APPEARS FROM THE MINUTES OF THE MEETINGS OF THE SELECTION BOARD HELD ON 23, 29 AND 30 JANUARY 1985, WHICH WERE DRAWN UP ON 30 JANUARY 1985 AND WHICH THE COURT OF AUDITORS PRODUCED AT THE SITTING, THAT IN THE LIGHT OF THE COMPLAINTS IT HAD RECEIVED THE SELECTION BOARD RECONSIDERED THE APPLICATIONS OF THE CANDIDATES WHO HAD NOT BEEN ADMITTED TO THE COMPETITION, INCLUDING THAT OF MR PRESSLER-HOEFT, BEFORE DECIDING TO ADHERE TO ITS ORIGINAL DECISION . ACCORDING TO THE MINUTES THE WORDING OF THE REPLIES WAS DETERMINED BY THE SELECTION BOARD AND THE REPLIES THEMSELVES WERE TO BE SIGNED BY THE CHAIRMAN OF THE SELECTION BOARD OR BY ITS SECRETARY .
7 BY LETTER OF 28 FEBRUARY 1985, WHICH WAS SIGNED BY THE SECRETARY OF THE SELECTION BOARD, MR PRESSLER-HOEFT WAS INFORMED THAT THE SELECTION BOARD CONFIRMED ITS PREVIOUS DECISION AND THAT, ON THE BASIS OF A COMPARATIVE EXAMINATION OF HIS QUALIFICATIONS, HIS CANDIDATURE COULD NOT BE ACCEPTED .
8 BY A DOCUMENT RECEIVED AT THE REGISTRY OF THE COURT OF JUSTICE ON 6 SEPTEMBER 1985, THE COURT OF AUDITORS LODGED AN OBJECTION OF INADMISSIBILITY UNDER ARTICLE 91 OF THE RULES OF PROCEDURE AGAINST THE ACTION BROUGHT BY MR PRESSLER-HOEFT . IN SUPPORT OF THE OBJECTION THE COURT OF AUDITORS ARGUED THAT THE APPLICATION WAS OUT OF TIME IN SO FAR AS IT HAD BEEN FILED MORE THAN THREE MONTHS AFTER THE DATE OF NOTIFICATION OF THE DECISION ON MR PRESSLER-HOEFT ' S COMPLAINT ; IT ASKED THE COURT OF JUSTICE TO DECIDE ON THAT OBJECTION BEFORE CONSIDERING THE SUBSTANCE .
9 MR PRESSLER-HOEFT CONTESTS THAT OBJECTION OF INADMISSIBILITY ON THE GROUND THAT THE LETTER OF 28 FEBRUARY 1985 COULD NOT CONSTITUTE A DECISION, SINCE IT WAS SIGNED BY A PERSON WHO LACKED AUTHORITY AND THEREFORE WAS NOT COMPETENT TO ACT ON BEHALF OF THE COURT OF AUDITORS . IN HIS VIEW NO FORMAL DECISION WAS TAKEN ON HIS COMPLAINT OF 15 JANUARY 1985 . THE COMPLAINT WAS IN FACT REJECTED BY AN IMPLIED DECISION AFTER FOUR MONTHS, THAT IS TO SAY ON 16 MAY 1985 . THE PERIOD FOR BRINGING AN ACTION BEGAN TO RUN ON THAT DATE AND EXPIRED ON 17 AUGUST 1985 . CONSEQUENTLY, HIS ACTION, WHICH WAS BROUGHT ON 16 AUGUST 1985, WAS NOT OUT OF TIME .
10 ACCORDING TO THE MINUTES OF 30 JANUARY 1985 THE SELECTION BOARD RECONSIDERED MR PRESSLER-HOEFT ' S CANDIDATURE IN THE LIGHT OF HIS COMPLAINT AND ADHERED TO ITS DECISION NOT TO ADMIT HIM TO THE COMPETITION . THE SELECTION BOARD EXPRESSLY DECIDED THAT THE WRITTEN REPLIES, WHICH IT DRAFTED, WOULD BE SIGNED BY ITS CHAIRMAN OR BY ITS SECRETARY .
11 IT MUST THEREFORE BE HELD THAT THE MEASURE ADVERSELY AFFECTING THE APPLICANT WAS THE SELECTION BOARD ' S EXPRESS DECISION REJECTING HIS COMPLAINT WHICH IT RECORDED IN THE MINUTES OF 30 JANUARY 1985 . ACCORDING TO ITS ACTUAL WORDING, THE LETTER OF 28 FEBRUARY 1985 SIGNED BY THE SECRETARY OF THE SELECTION BOARD SIMPLY REPRODUCED THAT DECISION, WHICH IT MERELY NOTIFIED TO THE APPLICANT ( SEE THE JUDGMENT OF 5 DECEMBER 1963 IN JOINED CASES 35/62 AND 16/63 LEROY V HIGH AUTHORITY ( 1963 ) ECR 197 ) PURSUANT TO A DECISION TAKEN BY THE SELECTION BOARD, THE SOLE AUTHORITY COMPETENT TO DECIDE ON THE COMPLAINT ( SEE THE JUDGMENT OF 14 JULY 1983 IN CASE 144/82 DETTI V COURT OF JUSTICE ( 1983 ) ECR 2421 ).
12 PURSUANT TO ARTICLE 91 ( 3 ) OF THE STAFF REGULATIONS, AN APPEAL TO THE COURT OF JUSTICE MUST BE FILED WITHIN THREE MONTHS AS FROM THE DATE OF NOTIFICATION OF THE DECISION TAKEN IN RESPONSE TO THE COMPLAINT .
13 SINCE MR PRESSLER-HOEFT DID NOT LODGE HIS APPLICATION UNTIL 16 AUGUST 1985, IT MUST BE DECLARED TO BE OUT OF TIME AND THEREFORE INADMISSIBLE .
Decision on costs
COSTS
14 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 SERVANTS OF THE COMMUNITIES .
15 AT THE SITTING, MR PRESSLER-HOEFT STATED THAT IN ANY EVENT HE MAINTAINED HIS APPLICATION FOR COSTS AGAINST THE COURT OF AUDITORS ON THE GROUND THAT THE LATTER WAS AT FAULT BY NOT FORWARDING TO HIM, FOLLOWING HIS COMPLAINT, THE ACTUAL DECISION OF THE SELECTION BOARD . HOWEVER, IT APPEARS FROM THE LETTER SIGNED BY THE SECRETARY OF THE SELECTION BOARD THAT THE SECRETARY WAS SIMPLY NOTIFYING A DECISION WHICH HAD BEEN TAKEN BY THE SELECTION BOARD . AS A RESULT, MR PRESSLER-HOEFT COULD NOT HAVE BEEN MISLED INTO BELIEVING THAT THERE HAD BEEN NO DECISION . IN THOSE CIRCUMSTANCES, THE FACT THAT THE COURT OF AUDITORS DID NOT PRODUCE THE MINUTES OF THE SELECTION BOARD ' S DISCUSSIONS UNTIL THE HEARING CANNOT BE REGARDED AS UNREASONABLE OR VEXATIOUS WITHIN THE MEANING OF ARTICLE 69 ( 3 ) OF THE RULES OF PROCEDURE .
16 CONSEQUENTLY, THE COURT OF AUDITORS SHOULD NOT BE ORDERED TO PAY THE APPLICANT ' S COSTS .
Operative part
ON THOSE GROUNDS,
THE COURT ( FIRST CHAMBER )
HEREBY :
( 1 ) DISMISSES THE APPLICATION AS INADMISSIBLE .
( 2 ) ORDERS EACH OF THE PARTIES TO PAY ITS OWN COSTS .