Opinion of Mr Advocate General Lenz delivered on 4 May 1988. - Androniki Vlachou v Court of Auditors of the European Communities. - Competition procedure - Compliance with ajudgment of the Court. - Case 135/87.



European Court reports 1988 Page 02901



Opinion of the Advocate-General

++++

Mr President,

Members of the Court,

A - Facts

1 . In the action which forms the subject-matter of this Opinion, the applicant, Mrs Androniki Vlachou, a translator at the Court of Auditors of the European Communities, asks the Court of Justice to declare that the Court of Auditors, the defendant, wrongly refused to appoint her to a post of reviser/principal translator, and to annul the interinstitutional competition to fill two posts of revisers/principal translators .

2 . The procedure to fill the aforesaid post has already formed the subject-matter of the Court' s judgment of 6 February 1986 in Case 143/84 . ( 1 ) As a result of Internal Competition No CC/LA/20/82, the defendant had appointed to the post Mr K ., the intervener in Case 143/84 and in this case . The Court annulled that appointment in the aforesaid judgment on the ground that the list of suitable candidates had been drawn up in an unlawful manner by the Selection Board for the aforesaid competition . In particular the Selection Board had laid down the criteria for the award of marks for documentary attestation of the candidates' experience only after taking cognizance of the relevant documents, instead of laying down the criteria in question beforehand . ( 2 )

3 . The applicant now takes the view that after the annulment of Mr . K .' s appointment, she should have been appointed to the post in question as the only other person on the list of suitable candidates . The Court of Justice, she maintains, annulled only the appointment of Mr K ., the intervener, but not the entire list of suitable candidates drawn up in Competition No CC/LA/20/82 .

4 . Furthermore, the applicant alleges an infringement of Article 29 of the Staff Regulations, inasmuch as the defendant was obliged, in the event of the annulment of the competition in question, to organize a competition of the same kind, instead of holding an interinstitutional competition .

5 . After lodging a complaint, the applicant instituted proceedings in which she claims that the Court should :

declare that the decisions rejecting her request of 21 March 1986 and her complaint of 14 October 1986 are unlawful and therefore annul them;

declare that she is entitled to the LA 5/LA 4 post in question in the Greek translation section of the Court of Auditors;

declare void Competition No CC/LA/10/86 published by the Court of Auditors;

order the Court of Auditors to pay the costs .

6 . The defendant contends that the Court should :

dismiss the action as inadmissible or, at the very least, as unfounded;

order the applicant to pay the whole of the costs .

7 . The intervener supports the defendant' s conclusions .

8 . The defendant regards the action as inadmissible inasmuch as it concerns essentially the interpretation of the Court' s judgment of 6 February 1986 in Case 143/84 . In its view, instead of bringing an action for annulment, the applicant should have applied to the Court of Justice on the basis of Article 40 of the Protocol on the Statute of the Court of Justice of the EEC for the interpretation of that judgment . The action is also inadmissible, according to the defendant, in so far as it seeks the annulment of the decision rejecting the request submitted by the applicant on 21 March 1986 .

9 . With regard to the substance, the defendant contends that the procedure followed in Competition No CC/LA/20/82 was vitiated by a defect, namely the illegality of the Selection Board' s decision laying down the criteria for the award of marks for documentary attestation of practical experience of candidates . As a result of the illegality of that decision, the defendant maintains, the list of suitable candidates drawn up by that Selection Board on the basis of the contested criteria was invalid . In those circumstances, it was not possible for the defendant to appoint the applicant on the basis of a list of suitable candidates which had been declared unlawful by the Court of Justice .

10 . As for the alleged infringement of Article 29 of the Staff Regulations, the defendant maintains, the Court has consistently held that it is for the appointing authority to determine, in accordance with the order of preference set out in Article 29, the appropriate method of filling vacant posts in the institution concerned .

11 . Finally, the Court of Auditors asks that the applicant be ordered to pay the whole of the costs on account of the vexatious nature of her action .

12 . The intervener is essentially in agreement with the defendant' s arguments .

B - Analysis

13 . I do not share the defendant' s objections to the admissibility of the action . Even though one of the legal points raised, namely what consequences are to be drawn from the Court' s judgment of 6 February 1986 in Case 143/84, 2 could have been clarified by means of an interpreting judgment pursuant to Article 40 of the Protocol on the Statute of the Court of Justice of the EEC or Article 102 of the Court' s Rules of Procedure, it does not follow from the fact that another particular type of procedure was available in this case that the normal legal remedies can no longer be relied upon by the applicant .

14 . Nor can the action be declared inadmissible as a result of the manner in which the applicant' s conclusions are formulated . When the applicant seeks the annulment of "the decisions rejecting her request of 21 March 1986 and her complaint of 14 October 1986", it is quite clear, if that claim is properly interpreted, that it relates to the measure adopted by the defendant in its decision of 29 January 1987 in response to the complaint of 14 October 1986 . In my view, the fact that the rejection of the applicant' s request of 21 March 1986 was mentioned separately does not adversely affect the admissibility of the action .

15 . I shall be brief, so far as the substance is concerned .

16 . The first question which arises is whether the applicant can claim to be entitled to be appointed as a reviser/principal translator on the basis of Internal Competition No CC/LA/20/82 .

17 . Although the applicant is right in stating that, in its aforesaid judgment of 6 February 1986, the Court of Justice expressly adjudicated only on the appointment of the intervener and that the operative part of the judgment is silent with regard to the validity of the list of suitable candidates drawn up in that competition, the fact remains that the intervener' s appointment was annulled owing to an irregularity in the manner in which the Selection Board drew up the list of suitable candidates . Accordingly, Competition No CC/LA/20/82 did not give rise to the establishment of a valid list of suitable candidates on the basis of which the applicant could be appointed to the post in question . Since the defendant was obliged to abide by that ancillary finding made in the grounds of the Court' s judgment, it could not properly appoint the applicant to the post of reviser/principal translator .

18 . That brings me to the second question, namely whether the defendant was obliged to rerun Internal Competition No CC/LA/20/82 in order to enable a valid list of suitable candidates to be drawn up, or whether it was entitled to organize a new competition, as it did by holding an interinstitutional competition ( CC/LA/10/86 ).

19 . In that connection, the Court has held that, having initiated a recruitment procedure, the appointing authority is not invariably obliged to pursue it by filling the vacant post, ( 3 ) at least where there are serious reasons which justify such an attitude being taken by the appointing authority .

20 . That applies a fortiori where a competition has not yet come to an end but should - if only because it is vitiated in certain fundamental respects - be organized afresh virtually from the outset . In a situation of that kind, the appointing authority must once again be in a position to determine which type of competition it considers appropriate to guarantee it a sufficiently wide choice to ensure recruitment in accordance as far as possible with the requirements of the post to be filled . ( 4 )

21 . If, moreover, it is borne in mind that, according to the case-law of the Court, the conditions set out in a vacancy notice can also be annulled for sound reasons and replaced by an amended vacancy notice, ( 5 ) and that the appointing authority is not therefore bound by the notice which it has published, the appointing authority must also be entitled to alter the nature of the competition as provided for in Article 1 ( 1 ) ( a ) of Annex III to the Staff Regulations and to select a competition internal to the institutions in preference to a competition internal to the institution, provided it is justified in doing so .

22 . In view of the tension which, as the Court is aware, exists within the Greek translation section of the Language Service of the Court of Auditors, it cannot be seriously disputed that the defendant might have had sound reasons, in the interests of the service, for widening its range of choices in order to fill the post in question and organizing an interinstitutional competition to that end .

23 . On those grounds, therefore, I consider that the action should be dismissed .

24 . So far as the costs are concerned, the defendant and the intervener seek the application of Article 69 ( 3 ) of the Rules of Procedure, with the result that the applicant would be ordered, by derogation from the general provisions of Article 70 of those rules, to pay the whole of the costs inasmuch as she unreasonably or vexatiously caused the other parties to incur them .

25 . Even though it may have been apparent from the outset that there was little prospect of the action being successful as regards the implementation of the Court' s judgment of 6 February 1986 in Case 143/84, there can be no doubt that the applicant has an interest in asking the Court to review the legality of the transition from a competition internal to the institution to a competition internal to the institutions . I therefore consider that the action, at least so far as the applicant' s second contention is concerned, cannot be regarded as unreasonable or vexatious .

26 . I therefore suggest that the applicant should be ordered to bear her own costs and those of the intervener . The defendant should be ordered, in accordance with Article 70 of the Rules of Procedure, to bear its own costs .

C - Conclusion

I therefore suggest that the Court of Justice :

27 . "( 1 ) dismiss the action;

( 2 ) order the applicant to bear her own costs and those of the intervener;

( 3 ) order the defendant to bear its own costs ."

(*) Translated from the German .

( 1 ) Judgment of 6 February 1986 in Case 143/84 Adroniki Vlachou v Court of Auditors (( 1986 )) ECR 473 .

( 2 ) See paragraphs 19 to 21 of the aforesaid judgment ( also set out at the beginning of the Report for the Hearing ).

( 3 ) Judgment of 24 June 1969 in Case 26/68 Jeannette Fux v Commission (( 1969 )) ECR 145, and judgment of 9 February 1984 in Joined Cases 316/82 and 40/83 Nelly Kohler v Court of Auditors (( 1984 )) ECR 641 .

( 4 ) Judgment of 25 November 1976 in Case 123/75 Bertold Kuester v European Parliament (( 1976 )) ECR 1701 .

( 5 ) Judgment of 30 October 1974 in Case 188/73 Daniele Grassi v Council (( 1974 )) ECR 1099 .