JUDGMENT OF THE COURT OF FIRST INSTANCE (Second Chamber)

23 March 2004

Case T-310/02

Athanassios Theodorakis

v

Council of the European Union

(Officials – Recruitment – Article 29 of the Staff Regulations – Vacancy notice – Rejection of application – Out of time)

Full text in French II - 0000

Application: for annulment, first, of the Council decision of 11 April 2002 rejecting the applicant’s candidature for the post of Director General in the External Economic Relations, Common Foreign and Security Policy (CFSP) Directorate General in the Secretariat General of that institution and of the decision of 10 July 2002 expressly rejecting his complaint, and, second, of the decision appointing the Director General of the External Economic Relations, Common Foreign and Security Policy (CFSP) Directorate General in the Secretariat General of the Council.

Held: The application is dismissed. The parties are ordered to bear their own costs.

Summary

1. Officials – Appeals – Action against the decision rejecting a complaint – Admissibility

(Staff Regulations, Arts 90 and 91)

2. Procedure – Application originating proceedings – Formal requirements – Summary of the pleas relied on – None – Inadmissible

(Rules of Procedure of the Court of First Instance, Art. 44(1)(c))

3. Officials – Vacancy notice – Institution not able to change the time-limit for submitting transfer applications laid down in a vacancy notice from another institution

(Staff Regulations, Art. 2, first para.)

4. Officials – Actions – Objection of illegality – Need for a close connection between the contested act and the previous allegedly unlawful act – Challenge to the legality of a vacancy notice during an appeal against a rejection of candidature limited to the provisions on which the rejection was based

(Art. 241 EC; Staff Regulations, Art. 91)

5. Community law – Principles – Equal treatment – Discrimination

6. Officials – Recruitment – Procedures – Application of Article 29(2) of the Staff Regulations – Purpose – Widening of the appointing authority’s field of choice – Consequence – Possibility of applying reserved for persons unable to apply through the parallel procedure provided for in Article 29(1) of the Staff Regulations

(Staff Regulations, Art. 29)

7. Officials – Actions – Pleas in law – Misuse of powers – Definition

1. An application for annulment of a decision rejecting a complaint merely has the effect of bringing before the Community judicature the act adversely affecting the official against which the complaint was submitted.

(see para. 19)

See: 293/87 Vainker v Parliament [1989] ECR 23, para. 8; T-302/01 Birkhoff v Commission [2003] ECR-SC I-A-245 and II-1185, para. 24

2. Where the applicant does not submit any plea in law in support of a head of claim, the requirement laid down in Article 44(1)(c) of the Rules of Procedure of the Court of First Instance that there must be a summary of the pleas in law relied on is not satisfied. Since that requirement is mandatory, the issue of compliance with it may be raised by the Court of First Instance of its own motion.

(see para. 21)

See: T-231/99 Joynson v Commission [2002] ECR II-2085, para. 154, and the case-law cited

3. An institution does not have the power to modify a vacancy notice issued by the appointing authority of another institution. It is clear from the first paragraph of Article 2 of the Staff Regulations that the powers conferred by those Staff Regulations on the appointing authority, and in particular the power to draw up a vacancy notice, may, as a rule, be exercised only by those determined by each institution within itself.

An institution cannot, therefore, extend or change the time-limit for the submission of transfer applications laid down in a vacancy notice from another institution.

(see para. 32)

4. The scope of an objection of illegality as provided for in Article 241 EC must be limited to what is necessary for determination of the dispute. Thus, given that there must be a close connection between the contested act and the previous act that is the subject of the objection of illegality, in an appeal against the rejection of a candidature, the applicant can rely on irregularities which allegedly affected the vacancy notice only if they affect the legality of the rejection.

(see paras 48-49)

See: T-6/92 and T-52/92 Reinarz v Commission [1993] ECR II-1047, paras 56 and 57; T-60/99 Townsend v Commission [2000] ECR-SC I-A-11 and II-45, para. 53; T-208/00 Barleycorn Mongolue and Boixader Rivas v Council and Parliament [2001] ECR-SC I-A-103 and II-479, para. 34, and the case-law cited

5. The principle of non-discrimination requires that comparable situations should not be treated in a different manner unless the difference in treatment is objectively justified.

(see para. 50)

See: T-112/96 and T-115/96 Séché v Commission [1999] ECR-SC I-A-115 and II-623, para. 127; T-249/01 Boixader Rivas v Parliament [2003] ECR-SC I-A-153 and II-749, para. 30

6. The procedure provided for in Article 29(2) of the Staff Regulations is designed to offer the appointing authority a wider field of choice than that offered by Article 29(1).

Consequently, only persons who cannot submit an application under the procedure provided for in Article 29(1) of the Staff regulations may apply under the procedure provided for in Article 29(2).

(see para. 60)

See: T-97/99 and T-99/99 Chamier and O’Hannrachain v Parliament [2001] ECR-SC I-A-1 and II-1, para. 34

7. The concept of misuse of powers has a precise scope which refers to the use of its powers by an administrative authority for a purpose other than that for which they were conferred upon it. A decision is vitiated by misuse of powers only if it appears on the basis of objective, relevant and consistent evidence to have been taken with the purpose of achieving an end other than that stated.

(see para. 66)

See: T-118/95 Anacoreta Correia v Commission [1996] ECR-SC I-A-283 and II‑835, para. 25, and the case-law cited