61985CC0341_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
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My Lords,
1 . All these joined cases are staff cases and they form a sequel to a previous case, 128/84 van der Stijl v Commission (( 1985 )) ECR 3281 . The history is simple ( although the various steps in it, giving rise to the large number of cases, are complex ) and I shall start with an overview, in order to put matters in context .
Summary of the history
2 . By a decision of the President of the Commission of 3 November 1983, Mr Bernard Math was appointed Head of Division F 1 ( Inspection ) in the Euratom safeguards directorate within the Commission' s Directorate-General for Energy . The appointment purported to take effect from 28 September 1983 . Mr Math came from the French Atomic Energy Commission and had not previously worked as an official of the Communities . Mr van der Stijl, the head of one of the two sections within the Division, was aggrieved at the appointment and brought an action before this Court . He had acted as Head of the Division ad interim and had applied for the post on a permanent basis . In its judgment of 7 October 1985 ( cited above ), the Court annulled the appointment of Mr Math and the decision rejecting Mr van der Stijl' s application . The Court held that there were no exceptional circumstances justifying the use of the special recruitment procedure provided for in Article 29(2 ) of the Staff Regulations . The Court did not find it necessary to rule on Mr van der Stijl' s other complaints, the thrust of which was that the procedure was a sham and that the post was "reserved" for someone of French nationality, contrary to Articles 7(1 ) and 27(3 ) of the Staff Regulations . For a fuller survey of the background I refer to the Opinion of Advocate General Sir Gordon Slynn in that case, which makes it clear that that allegation was not entirely without substance .
3 . Much of the argument in that case was on the question whether Mr Math had the necessary qualifications for the post as described in the original Notice of Vacancy . In this connection, I quote from the Opinion of Advocate General Sir Gordon Slynn ( at p . 3285 ):
"It is argued that Mr Math' s experience and linguistic ability did not satisfy the conditions laid down in the Notice of Vacancy . It seems likely that he did not have at the relevant stage the necessary knowledge of a second language . On the written pleadings there also seemed force in the applicant' s contention that Mr Math' s experience and qualifications, though at a high level, did not satisfy the particular requirements laid down in the Notice of Vacancy . However, having had the benefit of Mr Audland' s explanation of what the post required and of Mr Math' s experience, I would not accept the contention that Mr Math did not have the special qualifications required ".
Mr Audland was at the time the Commission' s Director-General for Energy who answered various questions put to him by the Court at the hearing .
4 . In response to the judgment annulling Mr Math' s appointment which was pronounced on 7 October 1985, the Commission acted swiftly . On 16 October, it engaged Mr Math as a member of the temporary staff to the same post . Moreover, the new decision purported to take effect from the date when he first took up the post, i.e . 28 September 1983, and to be made for a period of two years, a period which had already expired by the date of the decision but which was extended, by the terms of the same decision, to 31 December 1985 . On 18 December 1985 the Commission decided to organize an open competition for the post, and also extended Mr Math' s appointment for a further six months . The competition took place during the middle of 1986 . Mr Math among others was placed on the list of suitable candidates for the post and was then appointed to it; Mr van der Stijl was not placed on the list; Mr Cullington, the other applicant in these proceedings, was placed on the list, but was not appointed .
5 . The situation is therefore that Mr Math has been occupying the post in question in one form or another since 28 September 1983 . After the outcome of his case before the Court in October 1985, Mr van der Stijl was aggrieved to see Mr Math continue in the post and eventually be reappointed to it . He made a series of seven complaints to the Commission, one for every step taken along the road to reappointment of Mr Math, and as each in turn failed, began a series of six appeals to this Court . The other two cases now before the Court, Cases 259/86 and 222/87, were brought by Mr Cullington who was the head of the second of the two sections within the Division, and who, like Mr van der Stijl, seeks the annulment of the appointment of Mr Math and of the decision of the selection board placing Mr Math on the list of suitable candidates for appointment .
The cases
6 . Each of the cases relates to a specific step taken by the Commission and they follow for the most part in chronological order . The Report for the Hearing contains full details of the pleas and arguments of the parties and in this Opinion I will consider only those which appear to me to be decisive .
Case 341/85
7 . Case 341/85 relates to the decision of 16 October 1985 engaging Mr Math as a member of the temporary staff . The Commission argues that this application is inadmissible since the decision only produced legal effect until 31 December 1985 and to attack it after it expired is pointless . I do not accept that submission . This was just the first in a number of steps leading to the reappointment of Mr Math . If it had never been taken, the applicant might have had - as he alleges - the opportunity to be appointed, even if only temporarily, to the post . Whether that is indeed the case is a question of substance, not admissibility since the applicant does not have to show that he will succeed on the substance for the case to be admissible . Further, at the time this case was commenced, the applicant had sufficient interest to bring the proceedings as a person to whom a judgment of the Court was addressed ( see Case 30/76 Kuester v Parliament (( 1976 )) ECR 1719 ). The mere fact that a particular decision subsequently expires by effluxion of time does not mean that it cannot still be attacked .
8 . On the substance of the case, the applicant puts forward various arguments . First, he contends that the Commission has not complied with the Court' s previous judgment in Case 128/84 in that reappointment of Mr Math to the post in question as a member of the temporary staff is tantamount to disregarding the Court' s judgment . I do not accept that submission . In its judgment in Case 128/84 the Court annulled the appointment of Mr Math because there had been an incorrect use of Article 29(2 ) of the Staff Regulations . The Court did not consider the question whether Mr Math was the appropriate person to be appointed to the post . As a result of Case 128/84 Mr Math lost his status as an official, but the Commission was not in breach of the judgment in engaging Mr Math as a member of the temporary staff .
9 . The applicant' s second argument alleges a breach of procedure or misuse of powers by the Commission in re-establishing by administrative means the situation declared illegal by the Court . He argues that the real purpose of backdating Mr Math' s contract as a member of the temporary staff was improperly to entitle Mr Math to claim additional experience of work in nuclear safety which he would otherwise, by virtue of the judgment in Case 128/84, be unable to do . The Commission in its Defence suggests - as it did at the hearing for interim measures - that the backdating simply "regularized" the position of Mr Math who had in fact performed his duties for two years . The notion of "regularization" is I think an unfortunate one for the Commission to use, suggesting as it does that the Commission was indeed seeking to validate retrospectively what the Court had annulled . What the Commission did was undesirable because it was likely to create the impression that the Commission was infringing Article 176 of the Treaty, and also because it was likely to provoke, as it has, further litigation . But, if it was unwise of the Commission to make the appointment retroactive, the question remains whether it was unlawful . Retrospection is generally regarded in all legal systems as unlawful unless there are urgent and compelling reasons for it . Leaving aside the point that the judgment in Case 128/84 was to the effect that Mr Math was improperly appointed for those two years, I can see no reason why it was necessary to backdate the appointment . Mr Math would not have had to pay back any salary and it must be the case, if only by virtue of the principle of legal certainty, that the decisions he took while occupying the post prior to the judgment in Case 128/84 would not have become invalid by reason of that judgment . On 16 October 1985 there may have been urgent and compelling reasons to backdate the appointment to 7 October 1985 - the date of the judgment in Case 128/84 - ( assuming that in the interests of the service the Commission wished to keep Mr Math in post while a solution was found ) in order to ensure the continuity of its services ( and payment of salary to Mr Math ) following the judgment . But there does not appear to be any valid reason for backdating the contract before 7 October 1985, and certainly not for a full two years and more before that date . In the absence of any valid reason I conclude that the decision purporting to engage Mr Math as a member of the temporary staff from 28 September 1983 should be annulled in respect of the period between that date and 7 October 1985 . The period subsequent to the latter date can more conveniently be considered in Case 251/86 to which I shall turn shortly .
10 . I therefore need consider only briefly the other arguments put forward by the applicant . He claims that the decision of 16 October 1985 purported to establish contractual relations between the Commission and Mr Math in respect of a period which had already expired ( two years starting from 28 September 1983 ). This, argues the applicant, is legally impossible and it follows that any purported extension must be impossible also . While this submission has a logical attraction, nevertheless I think it must fail, since otherwise parties to contracts which a supervening event has rendered nugatory could not re-establish their contractual arrangements as regards the past, while, as regards the period subsequent to the decision, there is no reason to regard the validity of future arrangements as dependent on the validity of past arrangements . In any event, I shall as I have mentioned return to the subsequent period in Case 251/86 .
11 . The other submissions claim breaches of Article 29(1 ) of the Staff Regulations, which prescribes the measures to be followed by an institution before filling a vacancy, and Article 12 of the Conditions of Employment of Other Servants which prescribes the qualifications of temporary staff . As regards the alleged breach of Article 29(1 ), I consider that, as an interim measure, the appointing authority has a wide measure of discretion in engaging staff to fill temporarily a permanent post although, as I have said above, I fail to see why the appointment should have been backdated and to backdate it for such a long period seems to go beyond the limits of that discretion . As regards the qualifications of Mr Math, these must fall to be considered, for the purposes of this application, on the date of the purported appointment, i.e . 28 September 1983 . By the very attempt to backdate the appointment the Commission itself created the difficulty that it is on that date that the qualifications are to be considered . I refer again to the remarks of Advocate General Sir Gordon Slynn in Case 128/84 concerning Mr Math' s experience, qualifications and linguistic abilities which I quoted earlier . If for example Mr Math' s knowledge of a second language was not satisfactory at the date of the purported appointment then there has been a breach of Article 12(2)(e ) of the Conditions of Employment of Other Servants and the decision should be annulled . But despite the uncertainty over his qualifications, I would not accept on the balance of the evidence that the decision should be annulled on that ground, although it must in any event be annulled in respect of the period before 7 October 1985 for the reasons I have given above .
12 . In Case 341/85, I therefore conclude that the Court should annul the Commission' s decision of 16 October 1985 purporting to engage Mr Math as a member of the temporary staff of the Communities from 28 September 1983 in respect of the period between that date and 7 October 1985 . I consider the questions of damages and costs later .
Case 251/86
13 . In Case 251/86, the applicant contests the legality of the actions of the Commission in retaining Mr Math in post after 7 October 1985 ( the date of judgment in Case 128/84 ) and in "renewing" his contract as a member of the temporary staff on 18 December 1985 for a further period of six months expiring on 30 June 1986 . The applicant claims that the Commission was in breach of Article 176 of the EEC Treaty in re-creating in fact what the Court had ruled illegal in Case 128/84 . I do not accept that argument . The Court ruled that Mr Math was improperly appointed as an official . The Commission, after that ruling, was obliged to respect the terms of the judgment and within the limits imposed by the judgment to seek to ensure the continuity of its services . In so ensuring continuity it enjoys a large measure of discretion . Although I am not wholly convinced that the Commission considered ( as it should have done ) all the alternatives open to it, such as appointment of a deputy or an ad interim appointment, pending organization of an open competition, nevertheless the temporary appointment of Mr Math - for a short period - was not unreasonable, given that he had de facto occupied the post for the previous two years . I conclude that the Commission was therefore entitled to keep Mr Math in post for the short period while the Commission attempted to make a long-term appointment to the post .
14 . As for the second limb of this case, that is, the extension of the contract by decision of 18 December 1985, I consider that that extension was unlawful . Mr Math was engaged under the Conditions of Employment of Other Servants, which govern the appointment of temporary staff; he was engaged under Article 2(b ) of those Conditions, that is, to fill temporarily a permanent established post . Article 8 of those Conditions provides that temporary staff engaged under Article 2(b ) may not be engaged for more than two years and their contracts may be renewed not more than once for a maximum of one year . In the original appointment, the Commission extended, by a period of just over three months, the period of two years of engagement . A simple reading of Article 8 shows that it was not entitled to extend it again . The Commission argues that such an interpretation of Article 8 is too narrow, and that the situation must be looked at in the round, the purpose of Article 8 being merely to secure that temporary staff engaged under Article 2(b ) are not to occupy a post for more than three years in all . While I have some sympathy with such a broad approach it cannot override the plain and simple wording of Article 8 . Moreover the Commission created its own difficulties here . Having decided, quite unnecessarily, to backdate Mr Math' s appointment by more than two years, it was confronted by the two-year limit in Article 8 which induced it to extend the appointment beyond two years in the very same decision, a measure of questionable legality in itself . By making that extension to 31 December 1985 only, it left itself with too little room for manoeuvre . No further extension was possible . Accordingly, I conclude that the Commission' s decision extending the contract until 30 June 1986 should be annulled .
Case 266/86
15 . I turn next to Case 266/86, the subject-matter of which follows next in chronological order, although the case is not the next numerically . The applicant seeks, first, annulment of Notice of Competition COM/A/477 and, secondly, annulment of the implied decision rejecting his request for a decision in respect of his first candidature . I will consider the latter point first . He says that, since the decision rejecting his application for the post in 1983 had been annulled by the Court in Case 128/84, that application still stood and should have been considered in accordance with Article 29(1 ) before an open competition was organized . He claims that if his application was not considered then the Commission was in breach of the judgment in that case; if on the other hand his application was considered, then there was a breach of Article 25 of the Staff Regulations since he was not informed in writing within a reasonable time of the result and the reasons for it . The Commission submits that it did follow the appropriate procedures as is evidenced by the extract from the Minutes of the Commission' s meeting of 18 December 1985 . Those Minutes show - in highly abbreviated form - that the Commission appears to have gone through the steps required by Article 29(1 ) in the correct way . First, it decided that the post could not be filled under subparagraph ( a ) ( internal promotion or transfer ); secondly it decided not to organize an internal competition under subparagraph ( b ) and so it decided to organize an open competition .
16 . I consider on the balance of the evidence before the Court that the Commission observed the correct procedures . There is, it is true, considerable force in the applicant' s point that, in its letter of 25 July 1986 to the applicant, the Commission states that at its meeting of 18 December 1985 the Commission considered the candidatures ( in the plural ) put forward under Article 29(1)(a ) - including the applicant' s - whereas in fact, in the absence of any new Notice of Vacancy, only one candidature - the applicant' s - existed . However, that point is in my view outweighed, as a matter of evidence, by the statement in the Commission' s Minutes .
17 . However, I can see no valid reason why, even when the applicant specifically requested it, no decision was forthcoming from the Commission on his reinstated candidature, together with a statement of reasons for its rejection . It was not until he received the rejection of his internal complaints on 25 July 1986 that he definitively learnt of his rejection . In Case 225/82 Verzyck v Commission (( 1983 )) ECR 1991, the Court held that each rejection of a candidature must contain reasons but they may be only in summary form unless the candidate specifically requests reasons . In his request of 21 October 1985 ( annex VIII to the application ) the applicant specifically requested a decision on his reinstated candidature, but he obtained neither a decision nor the reasons for the implied rejection . The judgment of 8 March 1988 in Joined Cases 64, 71 to 73 and 78/86 Sergio and Others v Commission shows that the main purpose of the requirement to give reasons is to enable the candidate to know why a particular decision was taken and to allow proper judicial review, but that provided the Court is satisfied that all procedures were correctly followed and all matters that should have been taken into account were taken into account, then a lack of reasoning accompanying a decision does not always serve to annul that decision . I have stated above that I have doubts about the procedures followed by the Commission and I am not persuaded, on the evidence before me, that everything was done that should have been done . The failure to provide reasons therefore leads me to conclude that the implied decision rejecting the applicant' s reinstated candidature was unlawful, but in the light of the view I take on the applicant' s other claims, it seems to me unnecessary that that decision should be formally annulled .
18 . The applicant also contends that the Notice of Competition COM/A/477 should be annulled since the qualifications prescribed for the post in that Notice differed from those prescribed in the original Notice of Vacancy .
19 . The relevant part of the Notice of Vacancy required, inter alia :
"...
( 2)thorough knowledge of the nuclear production cycle and the management of nuclear material,
( 3 ) knowledge in the field of nuclear safeguards,
...
( 5 ) thorough knowledge relevant to the nature of the post ".
The relevant part of the Notice of Competition required candidates to have
"at least 15 years' experience since leaving university, at least several years of which must be relevant to the duties ( of the post ); they must also have a thorough knowledge of the nuclear cycle and of the management of nuclear materials, a knowledge of safeguards ...".
20 . The applicant argues that the Notice of Competition is less strict in the extent of knowledge required and he points out that a much debated issue in Case 128/84 was whether Mr Math had the qualifications and experience necessary for the post . To the applicant, therefore, the changes were deliberately made in order to avoid future challenge on that point .
21 . The applicant also suggests that the changes were made because Mr Math did not have 15 years' experience specifically dealing with the nuclear cycle and the management of nuclear material : it was only on 1 March 1977 that he took up a post with the French Atomic Energy Commission dealing with safety; until then he had been in posts on the administrative side . Mr Math, in his intervention, argues that he did in fact have all the necessary experience . What is in my view significant, however, is that the changes made to the notice, which I discuss below, certainly served to bring Mr Math' s experience within the requirements of the competition .
22 . There are two significant differences in the wording of the notices . The expression used in the Notice of Vacancy, "thorough knowledge relevant to the nature of the post" implies particular knowledge of the particular duties of the post . The expression used in the Notice of Competition, "... experience ... at least several years of which must be relevant to the duties of the post", is less onerous since it does not require "thorough knowledge" of all the particular duties of the post . I note the argument that the Notice of Competition required thorough knowledge of the nuclear cycle and a knowledge of safeguards ( as did the Notice of Vacancy ), but that knowledge, although central to the post, was not the only knowledge and experience required .
23 . The second difference is in the way the knowledge or experience required has been obtained . The Notice of Vacancy required, in French, "expérience approfondie appropriée à la fonction" where the Notice of Competition required, in French, "plusieurs années au moins ... en rapport avec la nature des fonctions ". The difference between "appropriée" and "en rapport avec" is not perhaps great but the former implies a greater degree of specificity . In its English translation, the same word "relevant" is used in both places, but I consider that the English text should be read in the light of the French .
24 . In Case 188/73 Grassi v Council (( 1974 )) ECR 1099, the Court held that if the appointing authority finds that the conditions of eligibility required in the Notice of Vacancy are more exacting than the needs of the service demand, it is entitled to reopen the procedure after withdrawing the original Notice of Vacancy and putting an amended one in its place . It follows that the appointing authority is not entitled to relax the conditions of eligibility during the course of the procedure for filling a post . Issuing a Notice of Competition is one step in the procedure which commences with the Notice of Vacancy .
25 . In its written submissions, the Commission suggested that the changes were only of a drafting nature and were made simply in order to make the Notice of Competition more easily understandable to the outside candidates it hoped to attract . I have already said that I consider the changes to be more than drafting . But even if they were not, I do not consider the changes made are likely to make the Notice more easily readable to a graduate professional in the nuclear field with at least 15 years' experience .
26 . Further, in the course of the oral hearing, counsel for the Commission replied, in response to a question, that the wording had been changed because the Commission wanted a wider choice of candidates and had therefore relaxed the requirements of eligibility . As I have just said, if the requirements are to be relaxed, the procedure must be recommenced and a new Notice of Vacancy issued . That was not done here and I therefore conclude that the Notice of Competition should be annulled .
27 . If that is right, then it follows that all further steps, up to and including the appointment of Mr Math, must be regarded as of no effect also . But I must also consider whether there were any further steps which were unlawful in themselves, especially since, as I have mentioned, this matter is one where it is important to see the situation in its entirety .
Cases 258 and 259/86
28 . I come now to Cases 258/86 brought by Mr van der Stijl and 259/86 brought by Mr Cullington . Mr Cullington was head of the second of the two sections within the Division . Both applicants challenge the decisions of the selection board in the open competition to admit Mr Math to enter the competition and go forward to take the tests and to place him on the list of suitable candidates . The Commission contests the admissibility of Mr Cullington' s application, arguing that since Mr Cullington was also placed on the list, no harm was suffered by him . Mr Cullington points out that those decisions did cause him harm, since the selection board thereby had a wider choice available to it .
29 . Several recent decisions of the Court have dealt with challenges to the decisions of a selection board : see for example Case 143/84 Vlachou v Court of Auditors (( 1986 )) ECR 459; Case 293/84 Sorani and Others v Commission (( 1986 )) ECR 967; Case 294/84 Adams and Others v Commission (( 1986 )) ECR 977; Case 255/85 Pressler-Hoeft v Court of Auditors (( 1986 )) ECR 2459; Case 321/85 Schwiering v Court of Auditors (( 1986 )) ECR 3199; and Joined Cases 322 and 323/85 Hoyer and Neumann v Court of Auditors (( 1986 )) ECR 3215 . Those cases establish that while decisions of the selection board are in a sense preparatory acts nevertheless a person can challenge a decision of a selection board excluding him from taking further part in a competition . The principles underlying those cases seem to be as follows . Where an applicant who is a candidate for a post alleges that another candidate has been improperly admitted to enter a competition or has been improperly put on the list of suitable candidates, the applicant cannot challenge such a decision if the applicant himself has not been excluded . He has at that stage suffered no act "adversely affecting him" within the meaning of Article 90(2 ) of the Staff Regulations since he may himself be subsequently appointed to the post . If he is not appointed then he may at that stage challenge the appointment and one of the grounds may then be that the person appointed should not have been admitted to enter the competition because he did not have the prescribed qualifications or that he should not have been placed on the list of suitable candidates . Where on the other hand a candidate is excluded from taking part in a competition, that is the end of the procedure so far as he is concerned and he is then entitled to take proceedings against the decision to exclude him . Accordingly the Commission' s objection to the admissibility of Mr Cullington' s application is well founded . Although the Commission has not taken the point against Mr van der Stijl I consider that Mr van der Stijl' s application may be inadmissible also since what he is challenging here is not the decision to exclude him - a decision which he challenges in Case 262/86 - but the decision to admit Mr Math . Strictly therefore the allegations concerning Mr Math' s qualifications cannot be considered in these cases; however they nevertheless fall to be considered in the subsequent cases in which Mr Math' s appointment to the post is challenged and I propose to deal with them in that context .
Case 262/86
30 . In Case 262/86, Mr van der Stijl attacks the decision of the selection board not to place him on the list of suitable candidates . His principal argument is that the reasons given for his rejection were insufficient and that effectively the only reason given was that he was not suited to the "profil très particulier du poste ". It is worth noting that Mr van der Stijl obtained nine points out of 20 - one less than the pass mark for being placed on the list of suitable candidates . I would mention also that Mr Cullington received 12 points, the same number as Mr Math, while another candidate received 10 points . The Commission argues that the reason given for Mr van der Stijl' s rejection was sufficient and that the fact of a "profil très particulier" was implicit in the Notice of Competition which required specialization in certain areas, even if it did not appear specifically in the Notice of Competition . It must be said that the Minutes of the meeting of the selection board are far from informative about what occurred . And although in some circumstances it may be sufficient to give very short reasons for lack of success ( see Case 225/82 Verzyck v Commission, already cited ) I consider that Mr van der Stijl is entitled to a fuller explanation ( see Case 316/82 Kohler v Court of Auditors (( 1984 )) ECR 641 . This question is discussed more fully in my Opinion in Joined Cases 100, 146 and 153/87 Basch and Others v Commission, given on 20 January 1989, and to avoid repetition I refer to the discussion there ( paragraphs 6 to 11 ). It is no answer in my view for the Commission to say that, since he was at the time still an official of the Commission, further reasoning might have harmed his future career . The same argument can equally be turned the other way : a fuller explanation might have helped his future career since he would know exactly in what areas his knowledge or experience or both was considered deficient and so he would have an opportunity of improving his knowledge in those areas . In any event, the Commission' s argument cannot succeed where a candidate specifically asks for reasons; the candidate must then be presumed to have accepted any risk to his career . I therefore conclude that the decision not to place the applicant on the list of suitable candidates should be annulled for lack of sufficient reasoning .
Cases 222 and 232/87
31 . I now come to the two central cases, 222 and 232/87, in which Messrs Cullington and van der Stijl respectively attack the appointment of Mr Math to the post .
32 . First I will consider the grounds relied upon by the applicants in the earlier cases, which they invoke again here . The first point is that the selection board should not have taken into account the experience gained by Mr Math during his tenancy of the post in question, since he should not have been holding the post . From a strictly juridical point of view this is a logical proposition . But it is not a practical proposition nor is it a proposition which commends itself to me as likely to assist the selection board or the appointing authority in their tasks of finding the best person to fill the post . It is an undeniable fact that Mr Math occupied the post in question - whether properly appointed or not - and I consider that the selection board was entitled to take into account the experience he gained therein . It therefore becomes unnecessary to consider whether or not Mr Math had the requisite professional experience in 1983 .
33 . The applicants also point out that Mr Math on the face of it was outside the age-limit provided for in the Notice of Competition . Mr Math was born on 30 November 1935 and the competition was limited to candidates born after 22 March 1936 . As usual, certain exceptions were provided, including exemption from that age-limit for candidates who had one year' s service with the Communities and an increase in the age-limit to allow for compulsory military service .
34 . The applicants argue that the only way the selection board could have considered Mr Math as not excluded by the age-limit was by taking into account the time spent by him as a member of the temporary staff . They argue that since that appointment was in itself improper, it could not exempt him from the age-limit . The Commission replies that it is not for it to say exactly on what grounds the selection board considered Mr Math fell within the age-limit but adds that in any event Mr Math had performed 18 months' military service in France and that that sufficed to bring him within the age-limit . The applicants respond that no certificate to that effect - as was expressly required - appears to have been before the selection board and therefore the selection board could not properly have taken the military service into account .
35 . It may well be that the selection board accepted Mr Math' s eligibility to enter the competition on a dubious ground, that is to say on the basis of his previous service with the Commission; if so, that might, taken alone, lead to the conclusion that the decision of the selection board should be quashed . However, the fact remains that Mr Math had performed 18 months' military service and that that brings him within the age-limit; and since the relevant certificate has been produced to the Court, that formal irregularity can be regarded as having been cured in the course of the Court proceedings . I therefore conclude that the selection board' s action in accepting the candidature of Mr Math and placing him on the list of suitable candidates was not unlawful and so the applications cannot succeed on that ground . However the question remains whether the appointment should be annulled for more fundamental reasons .
36 . I will recapitulate my conclusions in the cases thus far . I have concluded that the decision of the Commission to backdate the appointment of Mr Math as a member of the temporary staff before 7 October 1985 was wrong, as was the purported extension of the contract beyond 31 December 1985 . I have concluded that the Notice of Competition should be annulled . Although I have concluded that the selection board' s action in placing Mr Math on the list of suitable candidates was not unlawful, I have concluded that its decision not to place Mr van der Stijl on the list should be annulled on the grounds of insufficient reasoning .
37 . As I have already pointed out, if the Notice of Competition is to be annulled, then it follows that all further steps in the competition, including the eventual appointment of Mr Math, are of no effect . Indeed, the applicants' arguments in these two cases ( with the exception of Mr Cullington' s complaint about the late publication of the result of the competition ) rely almost entirely on their complaints about the steps taken by the Commission which are the subject of the other cases . Once again, however, each step must be seen in context, since it might otherwise seem that each of the defects so far established is in itself not sufficiently serious to warrant annulling the appointment .
38 . Referring back to my summary of the history, and taking account also of the antecedents of this case as set out in the Opinion of Advocate General Sir Gordon Slynn in Case 128/84, one cannot fail but be struck by the fact that Mr Math occupied and is still occupying a post to which the Court has once ruled that he was improperly appointed; that the path leading to this result seems in certain respects to have been designed to that end; that that path has been marked by a sequence of unlawful steps, including in particular the retroactive engagement of Mr Math after the earlier judgment of the Court, the extension of his contract in breach of the clear terms of the legislation, and the apparent tailoring of the conditions prescribed in the Notice of Competition to suit the situation of Mr Math; and that all these steps were taken in a case where there were incontestably other internal candidates with sufficient qualifications for the post . While the applications fail on a number of points, they succeed on points which are in my view decisive . Taking all these points together, I am led to the inescapable conclusion that the appointing authority, for whatever reason, was determined that Mr Math should be appointed, and it sought to organize the procedure to that end . In my view that is a clear misuse of procedure . I therefore conclude that the decision appointing Mr Math to the post should be annulled . I add, lest any of my remarks should be interpreted as being derogatory to Mr Math himself, that I consider that these unfortunate circumstances are no reflection on him personally . As was said on his behalf at the hearing, he did not actively intervene with the Commission in support of his own cause, and the responsibility for the outcome must lie with the Commission .
Damages
39 . In Case 341/85 Mr van der Stijl claims damages of ECU 2 000 in respect of the harm he has suffered . He claims further payments in Cases 251 and 266/86 and 232/87 . He argues that, on this occasion, mere annulment of the various decisions is not sufficient to repair the damage to his standing or personal feelings as it was held to be sufficient in Case 128/84 . However, Mr van der Stijl has now retired . The very fact that he has continued with these actions after retirement ( as he is quite entitled to do ) may suggest that his overriding concern is to see the appointment of Mr Math annulled . In any event, I do not consider that it is necessary or desirable to award the applicant a sum of money, of whatever amount, in addition . The annulment of the decisions is enough, as it was in Case 128/84 and in Joined Cases 59 and 129/80 Turner v Commission (( 1981 )) ECR 1883 . Similarly Mr Cullington' s claim in respect of "dommage moral" or non-material harm in Case 222/87 should also be rejected .
Costs
40 . Under Article 69(2 ) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs . Although on the view I take the defendant Commission was successful in some of its submissions, the applicants have undoubtedly succeeded in the cases taken as a whole . Even in those cases where the applicants have failed, it can reasonably be said that they were induced to bring those cases by the way in which the Commission handled the affair . I therefore take the view that the Commission should be ordered to pay the applicants' costs in all the cases, including the costs in the unsuccessful application for interim measures in Case 341/85 and, in any event, the costs of the Commission' s unsuccessful preliminary objections to admissibility in Cases 251, 258, 262 and 266/86 .
Further, although the intervener, Mr Math, was unsuccessful in his submissions, I take the view, as stated above, that he was not the author of his own misfortune and that the Commission bears the responsibility for his situation . In those circumstances, I consider that the Commission should also bear the costs of Mr Math .
Conclusion
41 . I am accordingly of the opinion that :
( i)in Case 341/85 the decision appointing Mr Math as a member of the temporary staff should be annulled in respect of the period between 28 September 1983 and 7 October 1985;
( ii ) in Case 251/86 the decision to extend Mr Math' s contract as a member of the temporary staff after 31 December 1985 should be annulled;
( iii ) in Cases 258 and 259/86 the applications should be dismissed;
( iv ) in Case 262/86 the decision of the selection board not to include the applicant on the list of suitable candidates should be annulled;
( v ) in Case 266/86 the Notice of Competition should be annulled;
( vi ) in Cases 222 and 232/87 the decision appointing Mr Math and ( in Case 222/87 ) the decision rejecting Mr Cullington' s candidature should be annulled .
The applicants' claims for damages should be dismissed . The Commission should be ordered to pay the applicants' costs in all the cases, including the costs relating to the application for interim measures in Case 341/85, and also the costs of the intervener .
(*) Original language : English .