61976CJ0030_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 30/76
BERTHOLD KUSTER, AN OFFICIAL AT THE EUROPEAN PARLIAMENT, RESIDING IN LUXEMBOURG, REPRESENTED BY VICTOR BIEL, ADVOCATE OF THE LUXEMBOURG BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF THE SAID VICTOR BIEL AT 18 A, RUE DES GLACIS,
APPLICANT,
V EUROPEAN PARLIAMENT, REPRESENTED BY ITS SECRETARY-GENERAL, HANS ROBERT NORD, ACTING AS AGENT, ASSISTED BY ALEX BONN, ADVOCATE OF THE LUXEMBOURG BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF THE SAID ALEX BONN, 22 COTE D ' EICH,
DEFENDANT,
Subject of the case
APPLICATION FOR THE ANNULMENT OF THE APPOINTMENT MADE BY THE EUROPEAN PARLIAMENT ON 15 SEPTEMBER 1975 TO TILL THE VACANCY WHICH WAS THE SUBJECT-MATTER OF INTERNAL COMPETITION A/45 .
Grounds
1 BY AN APPLICATION LODGED ON 18 MARCH 1976 THE APPLICANT CLAIMED THE ANNULMENT OF THE DECISION APPOINTING MR ROGER WURTH TAKEN BY THE EUROPEAN PARLIAMENT ON 15 SEPTEMBER 1975 AS A RESULT OF INTERNAL COMPETITION A/45 .
2 THIS DECISION WAS TAKEN BY THE EUROPEAN PARLIAMENT IN PLACE OF THE DECISION APPOINTING MR GERARD KIEFFER TAKEN ON 14 FEBRUARY 1974 AS A RESULT OF THE SAME INTERNAL COMPETITION AND ANNULLED BY THE COURT IN ITS JUDGMENT OF 10 JULY 1975 IN CASE 77/74, BERTHOLD KUSTER V EUROPEAN PARLIAMENT ( 1975 ) ECR 949 .
3 THE APPLICANT ALLEGES THAT TO COMPLY WITH THIS JUDGMENT THE APPOINTING AUTHORITY OUGHT TO HAVE WITHDRAWN NOT ONLY THE DECISION APPOINTING MR GERARD KIEFFER BUT ALSO THE WHOLE COMPETITION ON WHICH IT WAS BASED AND ACCORDINGLY TO HAVE ORGANIZED A NEW RECRUITMENT PROCEDURE TO FILL THE VACANCY .
4 SINCE THE APPOINTING AUTHORITY HAS CONFINED ITSELF TO SUBSTITUTING THE APPOINTMENT OF MR ROGER WURTH FOR THAT OF MR GERARD KIEFFER IT HAS, ACCORDING TO THE APPLICANT, DISREGARDED ITS OBLIGATIONS UNDER THE FIRST PARAGRAPH OF ARTICLE 176 OF THE EEC TREATY AND THE FIRST PARAGRAPH OF ARTICLE 149 OF THE EAEC TREATY .
5 FURTHER THE APPLICANT MAINTAINS THAT THERE ARE SEVERAL IRREGULARITIES IN THE APPOINTMENT OF MR ROGER WURTH .
ADMISSIBILITY
6 THE DEFENDANT OBJECTS THAT THE ACTION IS INADMISSIBLE IN SO FAR AS THE APPLICANT CLAIMS THAT THE DECISION IN QUESTION HAS BEEN TAKEN BY THE EUROPEAN PARLIAMENT IN DISREGARD OF THE JUDGMENT OF THE COURT OF 10 JULY 1975 IN CASE 77/74 .
7 IN ITS OPINION THAT JUDGMENT DOES NOT INVOLVE THE ANNULMENT OF INTERNAL COMPETITION A/45 BUT ONLY OF THE APPOINTMENT OF MR GERARD KIEFFER OF 14 FEBRUARY 1974, SO THAT THE CLAIMS IN THE PRESENT ACTION ARE IN THIS RESPECT INCOMPATIBLE WITH THE SCOPE OF THE SAID JUDGMENT .
8 IT CANNOT BE CONTESTED THAT THOSE TO WHOM A JUDGMENT OF THE COURT ANNULLING AN ACT OF AN INSTITUTION IS ADDRESSED ARE DIRECTLY CONCERNED WITH THE WAY IN WHICH THE INSTITUTION EXECUTES THE JUDGMENT .
9 THEY ARE THEREFORE ENTITLED TO REQUEST THE COURT TO RULE ON ANY FAILURE BY THE INSTITUTION TO PERFORM ITS OBLIGATIONS UNDER THE PROVISIONS APPLICABLE .
10 FOR THESE REASONS THE ACTION MUST BE DECLARED ADMISSIBLE .
SUBSTANCE
11 ( 1 ) THE APPLICANT MAINTAINS THAT TO CONFORM WITH THE JUDGMENT OF THE COURT OF 10 JULY 1975 IN CASE 77/74 THE EUROPEAN PARLIAMENT OUGHT TO HAVE INITIATED A NEW RECRUITMENT PROCEDURE TO FILL THE VACANCY .
12 IT IS ALLEGED THAT IT IS ALL THE MORE NECESSARY TO INITIATE SUCH PROCEDURE SINCE THE JUDGMENT OF 10 JULY 1975 GAVE A RULING ON ONLY ONE CLAIM IN THE ACTION AND THUS DID NOT SETTLE THE WHOLE QUESTION CONCERNING THE REGULARITY OF COMPETITION A/45 .
13 ACCORDING TO THE AFORESAID JUDGMENT THE APPLICANT CLAIMED THAT THE COURT SHOULD ' RULE THAT THE PROMOTION WHICH TOOK PLACE ON THE BASIS OF COMPETITION A/45 IS IRREGULAR AND ILLEGAL AND ACCORDINGLY ANNUL THE SAME ' .
14 THE PART OF THE JUDGMENT HEADED ' LAW '
BEGINS WITH THE STATEMENT THAT THE APPLICANT IS ASKING THE COURT ' TO ANNUL THE IMPLIED REJECTION . . . AND CONSEQUENTLY TO ANNUL THE APPOINTMENT OF MR GERARD KIEFFER . . . ' .
15 THE OPERATIVE PART OF THE JUDGMENT ' ANNULS THE APPOINTMENT OF MR GERARD KIEFFER RESULTING FROM COMPETITION A/45 ' .
16 IT THUS CLEARLY APPEARS THAT THE JUDGMENT REGARDED THE MAIN OBJECTIVE OF THE ACTION AS THE ANNULMENT OF THE APPOINTMENT OF MR KIEFFER AND AS CONCERNING THE COMPETITION PROCEDURE ONLY IN SO FAR AS THIS HAD LED TO THE APPOINTMENT AND JUDGMENT WAS GIVEN ACCORDINGLY .
17 THEREFORE THE SUBMISSION IS UNFOUNDED AND MUST BE REJECTED .
18 ( 2 ) THE APPLICANT CLAIMS FURTHER THAT COMPETITION A/45, WHICH LED TO THE CONTESTED APPOINTMENT, WAS CONDUCTED IRREGULARLY IN SEVERAL RESPECTS SUCH AS TO INVOLVE THE ANNULMENT OF THAT APPOINTMENT .
19 IN SUPPORT OF THE ACTION THE APPLICANT MAINTAINS THAT THE SELECTION BOARD FOR THIS COMPETITION WAS ILLEGALLY CONSTITUTED SINCE THE SECRETARY-GENERAL OF THE EUROPEAN PARLIAMENT HAD APPOINTED THE MEMBERS OF THE SELECTION BOARD UNDER A POWER DELEGATED FOR THIS PURPOSE BY THE BUREAU OF THE PARLIAMENT AND THAT THE DELEGATION WAS INVALID SINCE IT WAS NOT BROUGHT TO THE ATTENTION OF THE STAFF IN THE MANNER LAID DOWN BY THE PROVISIONS OF THE STAFF REGULATIONS .
20 THE APPLICANT MAINTAINS THAT SUCH A DELEGATION WOULD HAVE BEEN VALID ONLY IF IT HAD BEEN POSTED UP OR PUBLISHED IN ACCORDANCE WITH ARTICLE 25 OF THE STAFF REGULATIONS .
21 THE SECOND PARAGRAPH OF ARTICLE 110 OF THE STAFF REGULATIONS PROVIDES : ' ALL SUCH GENERAL PROVISIONS . . . SHALL BE BROUGHT TO THE ATTENTION OF THE STAFF ', BUT DOES NOT SPECIFY THE MANNER IN WHICH THIS MUST BE DONE .
22 ALTHOUGH ARTICLE 25 OF THE STAFF REGULATIONS LAYS DOWN THE MANNER IN WHICH DECISIONS RELATING TO SPECIFIC INDIVIDUALS ARE TO BE PUBLISHED, IT DOES NOT SPECIFY THE MANNER OF PUBLICATION OF ACTS WHICH HAVE A GENERAL SCOPE OR MEASURES WHICH RELATE TO A DIVISION OF POWERS WITHIN THE INSTITUTION .
23 THE DELEGATION OF POWER IN QUESTION INVOLVES A GENERALLY ACCEPTED DIVISION OF POWERS WITHIN THE INSTITUTION .
24 IN ANY EVENT IT IS ESTABLISHED THAT IT WAS NOTIFIED NOT ONLY TO THE DIRECTORS GENERAL OF THE INSTITUTION, THE CHAIRMAN OF GROUPS, THE SECRETARIAT AND THE CONTROL OFFICE, BUT ALSO TO THE STAFF COMMITTEE ESTABLISHED UNDER ARTICLE 9 OF THE STAFF REGULATIONS WHICH PROVIDES THAT THE COMMITTEE SHALL, INTER ALIA, REPRESENT THE INTERESTS OF THE STAFF VIS-A-VIS THEIR INSTITUTION AND ' MAINTAIN CONTINUOUS CONTACT BETWEEN THE INSTITUTION AND THE STAFF ' .
25 IN VIEW OF THIS THE CONTESTED DELEGATION OF POWER IS LEGALLY VALID WITHOUT ITS BEING NECESSARY TO CONSIDER WHETHER SUCH DELEGATION CONSTITUTES A MEASURE REFERRED TO BY THE SECOND PARAGRAPH OF ARTICLE 110 OF THE STAFF REGULATIONS .
26 THE APPLICANT FURTHER MAINTAINS THAT THE MARKS AWARDED TO HIM BY THE SELECTION BOARD FOR THE COMPETITION DO NOT TAKE ACCOUNT OF THE FACT THAT HE HELD THE POST OF FIRST SECRETARY OF A COMMITTEE ON A TEMPORARY BASIS FROM 1 SEPTEMBER 1973 TO 20 MAY 1974 .
27 THE COMPETITION IN QUESTION WAS INITIATED BY NOTICE DATED 23 NOVEMBER 1973 AND CLOSED ON 14 FEBRUARY 1974 .
28 THUS AT THE TIME WHEN THE LIST OF SUITABLE CANDIDATES ON WHICH THE CONTESTED MEASURE IS BASED WAS DRAWN UP BY THE SELECTION BOARD FOR THE COMPETITION, THE APPLICANT WAS FILLING THE TEMPORARY POST WHICH HAD NOT YET BEEN THE SUBJECT OF A DECISION BY THE APPOINTING AUTHORITY REGARDING ' DETERMINATION OF ADMINISTRATIVE STATUS '
OF THE APPLICANT WITHIN THE MEANING OF THE THIRD PARAGRAPH OF ARTICLE 25 OF THE STAFF REGULATIONS .
29 IN THESE CIRCUMSTANCES IT CANNOT BE MAINTAINED THAT THE SELECTION BOARD WAS BOUND, WHEN IT DREW UP THE LIST OF SUITABLE CANDIDATES, TO TAKE ACCOUNT OF SUCH A TEMPORARY POST WHICH AT THAT TIME WAS A DE FACTO SITUATION AND NOT YET SANCTIONED BY A FORMAL DECISION OF THE APPOINTING AUTHORITY RECORDED IN THE PERSONAL FILE OF THE APPLICANT .
30 MOREOVER IT APPEARS FROM STATEMENT SUPPLIED BY THE DEFENDANT WHICH THE APPLICANT HAS NOT BEEN ABLE TO REBUT THAT THE SELECTION BOARD WHEN IT DREW UP THE SAID LIST OF SUITABLE CANDIDATES DID IN FACT TAKE ACCOUNT OF ALL THE FEATURES OF FACT AND OF LAW RELATING TO THE ADMINISTRATIVE POSITION OF THE APPLICANT AT THE TIME .
31 THE APPLICANT FURTHER POINT OUT THAT THE CONTESTED DECISION IN REFERRING TO THE ' RESULT OF THE COMPETITION '
MENTIONS ARTICLE 45 OF THE STAFF REGULATIONS RELATING TO PROMOTION AND EXPRESSLY STATES IN THE OPERATIVE PART THAT THE SUCCESSFUL CANDIDATE HAS BEEN ' PROMOTED '
TO THE VACANT POST .
32 FOR THIS REASON HE SAYS THAT THE SAID DECISION IS IRREGULAR BECAUSE IMPRECISE OR CONTRADICTORY REASONS ARE GIVEN FOR IT .
33 THE APPLICANT MOREOVER STATES THAT INSUFFICIENT REASONS ARE GIVEN FOR THE CONTESTED DECISION IN THAT IT CONTAINS NO REFERENCE TO THE OPINION OF THE BUREAU OBTAINED BY THE PRESIDENT OF THE EUROPEAN PARLIAMENT ON THE PROPOSAL TO APPOINT MR ROGER WURTH .
34 THE RECRUITMENT PROCEDURE FOLLOWED IN THE PRESENT CASE CLEARLY SHOWS THAT THE APPOINTMENT IN QUESTION WAS MADE AS A RESULT OF AN INTERNAL COMPETITION AND THUS LEAVES NO DOUBT AS TO THE LEGAL BASIS OF THE ACT .
35 THEREFORE THE LACK OF PRECISION POINTED OUT IN THE STATEMENT OF REASONS IS NOT OF A DECISIVE NATURE AND CANNOT AFFECT THE VALIDITY OF THE CONTESTED DECISION .
36 FURTHER WITH REGARD TO THE ABSENCE FROM THE STATEMENT OF REASONS FOR THE DECISION IN QUESTION OF A REFERENCE TO THE OPINION OF THE BUREAU, HAVING REGARD TO THE PROVISIONS OF THE STAFF REGULATIONS IT DOES NOT APPEAR THAT THE VALIDITY OF THE DECISION DEPENDS ON MENTION OF SUCH AN OPINION .
37 FOR THESE REASONS THE PRESENT APPLICATION MUST BE DISMISSED AS UNFOUNDED .
Decision on costs
COSTS
38 UNDER THE TERMS OF ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .
39 THE APPLICANT HAS FAILED IN HIS SUBMISSIONS .
40 HOWEVER, UNDER THE TERMS OF ARTICLE 70 OF THE RULES OF PROCEDURE, THE COSTS INCURRED BY INSTITUTIONS IN ACTIONS BROUGHT BY SERVANTS OF THE COMMUNITIES ARE TO BE BORNE BY SUCH INSTITUTIONS .
Operative part
ON THOSE GROUNDS,
THE COURT ( FIRST CHAMBER )
HEREBY :
1 . DISMISSES THE ACTION AS UNFOUNDED ;
2 . ORDERS EACH PARTY TO BEAR ITS OWN COSTS .