ORDER OF THE PRESIDENT OF THE COURT

31 January 1991 ( *1 )

In Case C-345/90 P-R,

European Parliament, represented by J. Campinos, Jurisconsult, and M. Peter, Head of Division, acting as Agents, assisted by A. Bonn of the Luxembourg Bar, with an address for service in Luxembourg at the Parliament's General Secretariat, office of the Jurisconsult, BAK Building, Kirchberg,

applicant,

APPLICATION for the suspension of the implementation of the judgment delivered on 20 September 1990 by the Court of First Instance in Case T-37/89 between Jack Hanning and the European Parliament,

the other party to the proceedings being

Jack Hanning, an official of the Council of Europe, represented by G. Vandersanden of the Brussels Bar, with an address for service in Luxembourg at the Chambers of A. Schmitt, 62 Avenue Guillaume,

THE PRESIDENT OF THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES

makes the following

Order

1 By an application lodged at the Court Registry on 23 November 1990 the Parliament appealed under Article 49 of the EEC Statute and the corresponding provisions of the ECSC and Euratom Statutes against the judgment delivered on 20 September 1990 whereby the Court of First Instance annulled the Parliament's decision to ignore the results of Competition No PE/41/A and initiate open Competition No PE/41a/A.

2 By a separate document, lodged at the Court Registry on the same day, the Parliament also applied under Article 53 of the EEC Statute and the corresponding provisions of the ECSC and Euratom Statutes, together with Article 83 of the Rules of Procedure, for the adoption of interim measures to suspend the implementation of the contested judgment.

3 The applicant in the proceedings before the Court of First Instance lodged written observations on the application for the adoption of interim measures on 19 December 1990 and the Court of Justice heard oral argument from both parties on 14 January 1991.

4 It is appropriate to recall first, briefly, the circumstances which led the Court of First Instance to annul the Parliament's decision, as set out in the contested judgment.

5 In 1986 the Parliament organized Open Competition No PE/41/A, based on qualifications and tests, in order to fill a post of Head of Division in Grade A 3 to manage the Parliament's London information office.

6 Mr Hanning participated in the competition and his name was included on the list of suitable candidates drawn up by the selection board. He was placed first of the four candidates so listed, the notice of competition having stipulated that the list should contain a maximum of four names.

7 On 6 April 1988, however, Mr Hanning was informed by the Parliament that its President had noted certain irregularities in the procedure followed in the competition and therefore considered it necessary to abandon the appointment procedure and initiate a new open competition based on qualifications and tests.

8 On 29 June 1988 Mr Hanning brought an action challenging that decision. At the same time, he applied for the adoption of interim measures suspending the operation of the decision, in so far as it required that a new recruitment procedure should be commenced in place of the procedure in Competition PE/41/A.

9 By an order of 11 July 1988(Hanning v Parliament, Case C-176/88 R, [1988] ECR 3915), made before the case was referred to the Court of First Instance, the President of the Third Chamber of the Court of Justice dismissed the application for interim measures on the ground that the operation of the contested decision could not cause the applicant irreparable damage because if his action succeeded the appointment of another candidate as a result of the new recruitment procedure would be nullified and the original procedure would be resumed as if the contested decision had never been taken.

10 Mr Hanning took part in the new open competition organized by the Parliament (No PE/41a/A) and was again entered on the list of suitable candidates drawn up by the selection board. However, he was placed second of the four candidates on the list, after a candidate who had not taken part in the first competition.

11 As a result of that competition, the candidate whose name appeared first was appointed Head of the Parliament's information office in London.

12 In its judgment the Court of First Instance states that the contested decision, as communicated to the applicant before that Court, did not contain an adequate statement of the reasons on which it was based, since there was no indication of the character or nature of the irregularities which occurred during the procedure for the first competition.

13 However, the Court of First Instance points out that according to the case-law of the Court of Justice such a lack of statement of reasons does not automatically entail the annulment of the act in question, if additional explanation provided during the proceedings by the defendant institution enables the Court to ascertain that the reasons given are sufficient to justify the decision in law.

14 According to the explanations given by the Parliament before the Court of First Instance, the decision was taken on the basis of an opinion drawn up by the Parliament's Legal Department.

15 In that opinion, the Parliament's Legal Department pointed out that two candidates who appeared on the list of suitable candidates in third and fourth place should not have been allowed to participate in the competition. Both officials of the Parliament, they had not attached to their applications the supporting evidence required in the notice of competition and the selection board, after having first excluded them, decided to allow them to participate, on the false assumption that the documents contained in their personal files, controlled by the Parliament's administration, were sufficient to meet the requirements of the notice of competition.

16 The opinion then goes on to examine three complaints which were made concerning the procedure followed in the competition. The Legal Department considered that one of them, made by a candidate excluded from the competition for having failed to provide supporting evidence and who challenged the admission of the two other candidates in the same situation, was admissible and that it was for the appointing authority to consider the lawfulness of the procedure which had been adopted.

17 The Parliament's Legal Department also cited the case-law of the Court of Justice (including the judgment of 23 October 1986 in Schwiering v Court of Auditors, Case C-321/85 [1986] ECR 3199) according to which the appointing authority cannot be bound by decisions of a selection board where the illegality of those decisions is liable to vitiate its own decisions, and cannot make an appointment if it considers that the selection board unlawfully refused to admit candidates to a competition, thereby invalidating the whole competition procedure.

18 In the light of that case-law the Parliament's Legal Department observed that in Mr Hanning's case, apan from the four candidates whose names appeared on the list of suitable candidates, a fifth candidate had obtained the minimum number of points necessary to pass the competition, but the appointing authority could not appoint that candidate, who had been excluded from the list as a result of the inclusion of the two candidates who ought not to have been placed on it. In view of that, the Parliament's Legal Department concluded that the appointing authority was entitled to ignore the results of the competition and to initiate a new competition.

19 The Court of First Instance upheld that view in its judgment as far as the unlawful admission of the two candidates who omitted to supply supporting evidence was concerned and found that the competition procedure was in fact vitiated by certain irregularities.

20 However, as far as the complaint judged by the Parliament's Legal Department to be justified was concerned, the Court of First Instance points out that the Department ought to have seen that it was ill-founded. The candidate in question who had been rightly refused permission to participate because he failed to provide supporting evidence could not validly claim to be entitled to be admitted on the ground that other candidates had been illegally admitted by the selection board. The Court of First Instance concluded that the complaint in question was not sufficient to justify the contested decision in law.

21 Lastly, as regards the cases cited by the Parliament's Legal Department, the Court of First Instance states that they are not relevant to the case in hand. They concern cases where the irregularity was the result of the wrongful refusal to admit candidates to a competition and where the entire competition procedure was therefore necessarily vitiated. In Mr Hanning's case, the irregularity was the result of the wrongful admission of two candidates, which meant that the competition procedure was only partially vitiated. The portions of the procedure and of the list of suitable candidates vitiated by irregularities could be separated from those which were not so, in so far as the participation and order of merit of the candidates who were properly admitted were not influenced by the unlawful participation of the two candidates who ought not to have been admitted.

22 The Court of First Instance concludes that in those circumstances the Parliament ought to have considered the possibility of appointing one of the two candidates properly included in the list of suitable candidates. The Court of First Instance points out that the Parliament ought also to have compared the merits of those two candidates with those of the fifth candidate whose name had wrongly been excluded from the list of suitable candidates as a result of the irregularities in the procedure. It states in its judgment that only if the Parliament had validly decided that reasons connected with the interest of the service justified the appointment of that fifth candidate, who could not be appointed because he was excluded from the list of suitable candidates, could the Parliament have decided to ignore the results of the competition. The Court of First Instance considers that as the Parliament did not make such a comparative examination it failed to exercise its discretion lawfully so that the contested decision was vitiated by an error of law.

23 The Court of First Instance concludes that the reasons relied on by the Parliament during the proceedings before it were not sufficient to found the contested decision in law, which must therefore be annulled.

24 It should be remembered that Article 53 of the EEC Statute and the corresponding provisions of the ECSC and Euratom Statutes provide that an appeal against a judgment of the Court of First Instance does not have suspensory effect, without prejudice, however, to the application of Articles 185 and 186 of the EEC Treaty and the corresponding provisions in the ECSC and EAEC Treaties.

25 According to those provisions, the Court of Justice may, if it considers that circumstances so require, order implementation of the contested judgment to be suspended.

26 According to Article 83(2) of the Rules of Procedure an order suspending the operation of measures may only be made where there are circumstances giving rise to urgency and pleas of fact and law establishing a prima facie case for the measures applied for. The Court of Justice has consistently held that the urgency of an application to suspend the operation of measures must be assessed in relation to the necessity for an order granting interim relief in order to prevent serious and irreparable damage to the party requesting the suspension.

27 It must be ascertained whether those conditions are met in this case.

28 As regards, first, the condition requiring a prima facie case for the adoption of the measures, the Parliament submits that the judgment delivered by the Court of Firs' Instance does not adequately recognize the nature and role of the list of suitable candidates in the competition procedure and is incompatible with the principle: which must govern the attitude of the appointing authority when recruiting b) means of a competition, in particular its duty to ensure proper procedure. The judgment would compel the Parliament to use a list of suitable candidates which was not correctly drawn up and which was truncated, thereby restricting the appointing authority's due discretion.

29 At this stage in the proceedings, it is sufficient to point out that the reasoning relied on by the Court of First Instance, as set out in paragraphs 21 and 22 above, raises questions of principle concerning the limits to which judicial review of the appointing authority's decision is subject, questions which the Court of Justice has not yet had occasion to determine.

30 It must therefore be held that inasmuch as they challenge that reasoning the pleas relied on in support of the appeal are, prima facie, not without proper foundation, so that the condition relating to establishment of a prima facie case has been satisfied.

31 As far as the condition regarding urgency is concerned, the Parliament submits that in order to implement the judgment of the Court of First Instance the appointment made as a result of Competition No PE/41a/A of the candidate who, since 16 January 1989, has held the post of Head of the European Parliament's information office in London must be annulled. The post would thus remain unoccupied for a lengthy period. The Parliament emphasizes the fact that the activities of its offices in the capitals of the European Community are extremely important and the prolonged absence of a head of that information office would be particularly damaging to the interests of the service.

32 It is correct that in order to implement the judgment of the Court of First Instance the Parliament must annul the appointment made as a result of Competition No PE/41a/A and that it is possible that the resulting vacancy would give rise, as the Parliament claims, to serious and, by its very nature, irreparable damage to the functioning of its services.

33 Even if the resumption of the procedure in the first competition would enable that vacancy to be filled quickly by appointing one of the two first successful candidates in that competition, it must be admitted that the risk of having to change the appointment once again as a result of the appeal would also cause the Parliament serious and irreparable damage. The Parliament's interest in not running such a risk and the interest of the present incumbent of that post, who was appointed as a result of a competition whose procedure has not been challenged in any way, must take precedence in this case over the interest of the party which was successful before the Court of First Instance in obtaining, perhaps, an appointment which would be speedy but might prove to be only temporary.

34 The condition relating to urgency is therefore likewise satisfied.

35 It is therefore appropriate to order that implementation of the contested judgment be suspended.

On those grounds, THE PRESIDENT hereby orders as follows:

(1) Implementation of the judgment of the Court of First Instance of the European Communities of 20 September 1990 in Case T-37/89, Jack Harming v European Parliament, is hereby suspended.

(2) Costs are reserved.

Luxembourg, 31 January 1991. J.-G. Giraud Registrar O. Due President

( *1 ) Language of the case: French.