ORDER OF THE COURT OF FIRST INSTANCE (Fourth Chamber)

11 October 1995

Case T-302/94

Dimitrios Coussios

v

Commission of the European Communities

‛Inadmissibility’

Full text in French II-723

Application for:

annulment of the appointment of P. to the post of Head of Unit VII.C.3 with effect from 1 December 1993.

Decision:

Application dismissed.

Abstract of the Order

On 5 May 1991 the applicant, a Commission official within the Directorate-General for Transport (DG VII), applied for the post of Head of the new Unit ‘Air Safety — Air Traffic Control — Industrial Policy’ (VII.C.3) (Vacancy Notice COM/64/91 of 2 May 1991), which had been created on 10 April 1991. On 16 June 1991, the applicant was assigned to this Unit as Joint Head of Unit.

On 5 July 1991, the Commission requested the other institutions to draw Vacancy Notice COM/64/91 to the attention of their staff. This vacancy notice was republished in Summary No 24 of Vacancy Notices for Executive Posts, but with an amended text. The applicant reapplied for this post. On 8 October 1991, he lodged a complaint against this ‘republication’, which was rejected on 28 January 1992. The applicant thereupon brought an action on 6 March 1992, which was registered as Case T-18/92. This was dismissed by judgment of the Court of First Instance of 23 February 1994 in Joined Cases T-18/92 and T-68/92 Coussios v Commission [1994] ECRSC II-171, upheld on appeal by the Court of Justice in its judgment of 1 June 1995 in Case C-119/94 P Coussios v Commission [1995] ECR I-1439.

On 13 December 1991, the Consultative Committee on Appointments, after taking the view that the post ought to be filled at Grade A 3, reached the conclusion that no application need be considered and notified the applicant accordingly on 10 January 1992.

On 13 February 1992, the Commission decided not to fill the vacant post, not to organize an internal competition and to hold an external competition instead. On 22 April 1992, the applicant lodged a complaint against those decisions, which was implicitly rejected. He then brought a second action on 18 September 1992, which was registered as Case T-68/92. In its judgment of 23 February 1994, cited above, the Court of First Instance ordered the Commission to pay to the applicant ECU 2000 as compensation for a service-related fault and dismissed the remainder of the actions. By its judgment of 1 June 1995, cited above, the Court of Justice dismissed the appeal brought by Mr Coussios.

In the interim period, the applicant lodged a complaint on 28 February 1994 against the appointment, as Head of Unit VII.C.3 with effect from 1 December 1993, of P., the successful candidate in the external competition, on the ground that the notice of the open competition (COM/A/748, OJ 1992 C 193 A, p. 12) was unlawful. That complaint was implicitly rejected. The rejection was confirmed by Commission decision of 27 July 1994.

Admissibility

The Court first of all notes that, of the pleas put forward in support of the present action, only that based on breach of the principle of proper administration is directly relied on against the contested decision. All of the remaining pleas are directed against decisions the legality of which was examined in Cases T-18/92 and T-68/92, in which the Court of First Instance delivered judgment on 23 February 1994, upheld on appeal by judgment of the Court of Justice of 1 June 1995.

The Court goes on to point out that, in its judgment of 23 February 1994, it refused to annul the decisions preparatory to the appointment of P., including the decision not to organize an internal competition and instead to hold an external competition. Since that judgment was upheld on appeal, the refusal to annul the decisions preparatory to the appointment of P. has acquired the authority of res judicata and can for that reason no longer be contested by the applicant.

Finally, the Court notes that the applicant himself took part in the external competition organized by the Commission to fill the post in question but was not included among the successful candidates from whom the appointment was to be made.

The applicant therefore has no interest in having the Court rule on the plea based on breach of the principle of proper administration, since an annulment of the appointment of P. could not result in the annulment of the preparatory decisions and could not entitle the applicant to be included among the potential candidates for a fresh appointment, since only those candidates who have been successful in the external competition would, in such an eventuality, be entitled to be appointed to the post m question.

Operative part:

The application is dismissed as inadmissible.