4.

As the Court is aware, Article 179 of the EEC Treaty gives the Court jurisdiction in disputes between the Community and its employees ‘within the limits and under the conditions laid down in the Staff Regulation’. Article 91 of the Staff Regulations provides that the Court has jurisdiction to hear an application only if the official has previously submitted a complaint and that complaint has been rejected. In the absence of an express derogation it must be concluded that that provision applies to all disputes, including those concerning the decision of a selection board. I admit that where the appointing authority cannot modify such a decision, to submit a complaint and wait for a decision on it (without which no action will lie) may be superfluous and simply delay the resolution of the case. That is not always the case, however, and it is not always true that the complaint is pointless. I should observe first of all that with regard to the decisions which may be made by a selection board a distinction must be drawn between those which are purely administrative in nature and those which concern the merits of the candidates. Only the latter are by their nature exempt from the control of the appointing authority and, in the light of the cases cited above, may be directly challenged before the Court. The others remain subject to the rule laid down in Article 91. Let us suppose, for example, that the board decides to set a test not mentioned in the notice of competition: clearly, in order to challenge such a decision a complaint must first be submitted, and an application may be brought to the Court only if that complaint is rejected. Clear though it may be in theory, however, that distinction is not always easy to make in practice: many candidates therefore adhere to the rules laid down in the Staff Regulations and submit a complaint. It should be added that even when it concerns a decision which cannot be impugned by administrative means a complaint may be useful. As a rule the appointing authority will notify the selection board of the contents of the complaint; the board may decide that the complaint is justified and therfore revoke its own decision, thus avoiding Court proceedings. Conversely, if the complaint is rejcted, the person concerned (who will often be unfamiliar with the peculiarities of Community competitions) may find the reasons advanced by the appointing authority convincing and therefore decide not to bring the matter before the Court. In both cases, it seems to me, the complaint will have benefited the person making it and will in any event have achieved its purpose. Having said that, I accept, as I did in my opinion in the Detti case, that when challenging a decision of a selection board a person may choose between the submission of a complaint and an immediate application to the Court. That possibility, let me now add, does not mean that he can make free with the procedural rules. A candidate who does make a complaint submits to the rules governing complaints laid down in the Staff Regulations; he is thus bound to comply with them and in particular to wait for the decision of the appointing authority. The same is true of the Court, whose jurisdiction, under Article 179 of the Treaty, is subject to the limits laid down by the same provisions. In cases of this nature, where a persons submits a complaint to the appointing authority he thereby exercises a right guaranteed by the Staff Regulations; it cannot therefore be said, as it was in Salerno, that his conduct ‘lies outside the scope of the provisions of the Staff Regulations’. Far from being ineffective, moreover, such conduct is, as we have just seen, consistent with the criteria of usefulness and certainty which apply to any pre-contentious procedure. Finally, the submission of a complaint does not have the effect of ‘extending’ the time-limit for bringing an appliction to the Court: an application may certainly still be brought, but subject to the conditions laid down in Article 91 (see the judgment in Detti, paragraph 17). That that interpretation of Article 91 is correct may also be inferred from the recent and perhaps groundbreaking decison of the Court in Case 259/84 Strack v Parliament. In October 1984 Mr Strack brought proceedings challenging a decision of the Selection Board in Competition No PE/27/A refusing to set a new date for tests which he had not been able to attend. Some time later he also submitted a complaint. Without considering whether that decision was subject to administrative review the Court held in an order made on 31 January 1985 [1985] ECR 453) that since there had been no decision on the complaint before the application was brought the Court was manifestly without jurisdiction to hear the matter. May it be said that that decision indicates a new departure by the Court? I hope so. My view is in any event settled. When challenging a decision of a selection board a person who elects to submit a complaint through administrative channels is bound by the procedural rules laid down in the Staff Regulations.