Judgment of the Court (First Chamber) of 16 March 1978. - Bernhard Diether Ritter von Wüllerstorff und Urbair v Commission of the European Communities. - Case 7/77.



European Court reports 1978 Page 00769

Greek special edition Page 00275

Portuguese special edition Page 00289



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

1 . OFFICIALS - APPLICATION - INITIAL COMPLAINT - REQUIRED CONDITION ONLY FOR MEASURES WHICH THE ADMINISTRATION CAN REVIEW - DECISION OF A SELECTION BOARD

( STAFF REGULATIONS , ARTS . 90 AND 91 )

2 . OFFICIALS - APPLICATION - ASSIGNMENT TO A POST - ABSENCE OF FINANCIAL BENEFITS OR ENHANCED OFFICIAL STATUS - LEGAL INTEREST IN TAKING PROCEEDINGS

( STAFF REGULATIONS , ART . 91 )

Summary

1 . BY PROVIDING THAT AN APPEAL TO THE COURT OF JUSTICE SHALL LIE ONLY IF THE PERSON CONCERNED HAS PREVIOUSLY BROUGHT AN OFFICIAL COMPLAINT , ARTICLE 91 ( 2 ) OF THE STAFF REGULATIONS REFERS ONLY TO MEASURES WHICH THE APPOINTING AUTHORITY CAN REVIEW AND DOES NOT THEREFORE COVER THE DECISIONS OF A SELECTION BOARD .

2 . EVEN IN THE ABSENCE OF FINANCIAL BENEFITS OR ENHANCED OFFICIAL STATUS , AN OFFICIAL OR SERVANT MAY HAVE AN INTEREST IN PREFERRING SOME ODUTIES TO OTHERS .

Parties

IN CASE 7/77

BERNHARD-DIETHER RITTER VON WULLERSTORFF UND URBAIR , AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY MARCEL GREGOIRE AND EDMOND LEBRUN , OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF TONY BIEVER , 83 BOULEVARD GRANDE- DUCHESSE CHARLOTTE ,

APPLICANT ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , RAYMOND BAEYENS , ACTING AS AGENT , ASSISTED BY DENISE SORASIO- ALLO , A MEMBER OF ITS LEGAL SERVICE , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ITS LEGAL ADVISER , MARIO CERVINO , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

Subject of the case

APPLICATION FOR THE ANNULMENT OF THE DECISION , NOTIFIED ON 16 NOVEMBER 1976 , WHEREBY THE SELECTION BOARD FOR INTERNAL COMPETITION COM/1149/75 REFUSED TO ADMIT THE APPLICANT TO THE COMPETITION , AND CONSEQUENTLY , FOR THE ANNULMENT OF THE SAID COMPETITION AND OF THE APPOINTMENT WHICH WAS MADE ON THE BASIS THEREOF .

Grounds

1THE APPLICANT , BY AN APPLICATION WHICH WAS REGISTERED ON 12 JANUARY 1977 , REQUESTED THE ANNULMENT OF THE DECISION OF THE SELECTION BOARD IN INTERNAL COMPETITION COM/1149/75 NOT TO ADMIT HIM TO THAT COMPETITION TOGETHER WITH THE ANNULMENT OF THE COMPETITION ITSELF AND OF THE SUBSEQUENT APPOINTMENT OF ANOTHER CANDIDATE .

2THE COMPETITION IN QUESTION WAS FOR A POST OF PRINCIPAL ADMINISTRATOR IN THE TOBACCO , HOPS , POTATOES AND OTHER SPECIALIZED CROPS DIVISION OF THE ORGANIZATION OF MARKETS IN SPECIALIZED CROPS , FISHERIES DIRECTORATE OF THE DIRECTORATE GENERAL FOR AGRICULTURE .

3THE NOTICE OF COMPETITION LISTED UNDER ELIGIBILITY , IN PARTICULAR AT 1 ( B ): ' ' THOROUGH KNOWLEDGE* OF ECONOMIC AND TECHNICAL PROBLEMS IN THE SECTORS INVOLVED , PARTICULARLY THE POTATO MARKET ( PRODUCTION , TRADE , PRICES ) IN COMMUNITY AND NON-COMMUNITY COUNTRIES ' ' AND AT 1 ( D ): ' ' THOROUGH EXPERIENCE RELEVANT TO THE POST ' ' ; THE ASTERISK AT 1 ( B ) REFERS TO A FOOTNOTE STATING : ' ' IF THIS IS NOT CLEAR FROM THEIR APPLICATION PAPERS , CANDIDATES MUST MAKE A WRITTEN STATEMENT TO THE EFFECT THAT THEY DO POSSESS SUCH KNOWLEDGE ' ' .

4BY A NOTE OF 16 NOVEMBER 1976 THE SELECTION BOARD FOR THE COMPETITION NOTIFIED THE APPLICANT OF ITS DECISION NOT TO ADMIT HIM TO THE COMPETITION ON THE GROUNDS THAT HE DID NOT FULFIL THE ABOVE-MENTIONED CONDITIONS .

ADMISSIBILITY

5THE COMMISSION , THE DEFENDANT , CONSIDERS THAT THE APPLICATION IS INADMISSIBLE FIRST BECAUSE THE APPLICANT HAS FAILED TO COMPLY WITH ARTICLE 90 OF THE STAFF REGULATIONS OF OFFICIALS IN THAT HE COMMENCED PROCEEDINGS WITHOUT FIRST SUBMITTING A COMPLAINT AND FURTHER BECAUSE HE HAS NO LONGER A LEGAL INTEREST IN THE ANNULMENT OF THE CONTESTED MEASURES SINCE , AFTER 1 JANUARY 1977 , HE TOO WAS PROMOTED TO GRADE A 5 , THE SAME GRADE AS THAT OF THE POST WHICH HE SOUGHT .

6WITH REGARD TO THE FIRST POINT ARTICLE 91 ( 2 ) OF THE STAFF REGULATIONS IN FACT PROVIDES THAT AN APPEAL TO THE COURT OF JUSTICE SHALL LIE ONLY IF THE PERSON CONCERNED HAS FIRST AVAILED HIMSELF OF THE ADMINISTRATIVE PROCEDURE LAID DOWN IN ARTICLE 90 .

7NEVERTHELESS THIS PROCEDURE IS DEVOID OF PURPOSE WHERE A COMPLAINT IS DIRECTED AGAINST THE DECISIONS OF A SELECTION BOARD IN A COMPETITION SINCE THE APPOINTING AUTHORITY IS NOT EMPOWERED TO REVIEW SUCH DECISIONS .

8ACCORDINGLY THE GENERAL PLAN BOTH OF THE ADMINISTRATIVE PROCEDURE AND OF THE COURT PROCEDURE MILITATES AGAINST AN INTERPRETATION OF ARTICLE 91 ( 2 ), WHICH IF TAKEN LITERALLY , WOULD MERELY RESULT IN A FUTILE PROLONGATION OF THE PROCEDURE .

9THE APPLICANT THUS CORRECTLY INTERPRETED THE STAFF REGULATIONS WHEN HE TOOK THE VIEW THAT THE CONDITION IN ARTICLE 91 REFERS ONLY TO MEASURES WHICH THE APPOINTING AUTHORITY CAN REVIEW .

10WITH REGARD TO THE SECOND POINT , NAMELY THE CIRCUMSTANCE THAT IN HIS NEW POSITION THE APPLICANT COULD ONLY BE ASSIGNED TO THE POST IN QUESTION BY TRANSFER DOES NOT IMPLY THAT HE HAS NO INTEREST IN THE ANNULMENT OF THE CONTESTED COMPETITION AND IN THE APPOINTMENT MADE ON THE BASIS THEREOF .

11IN FACT THE ARGUMENT THAT IF THERE ARE NO FINANCIAL BENEFITS OR ENHANCED OFFICIAL STATUS IT IS IMPOSSIBLE TO RECOGNIZE A SUBSTANTIAL INTEREST IN PERFORMING A CERTAIN DUTY , DISREGARDS THE INTEREST WHICH AN OFFICIAL OR SERVANT MAY HAVE IN PREFERRING SOME DUTIES TO OTHERS .

12THE OBJECTION OF INADMISSIBILITY THUS CANNOT BE UPHELD .

SUBSTANCE

13THE APPLICANT MAKES THREE SUBMISSIONS .

14THE DECISION OF THE SELECTION BOARD FAILED TO COMPLY WITH THE LEGAL REQUIREMENTS IN THAT IT DID NOT CONTAIN AN ADEQUATE STATEMENT OF REASONS .

15THE DECISION IS UNFOUNDED IN FACT AND ACCORDINGLY IS VITIATED BY ERRORS OF LAW OR OF FACT AND IS THEREFORE ULTRA VIRES .

16FINALLY , IN THE ALTERNATIVE , THE DECISION IS VITIATED BY MISUSE OF POWERS SINCE EVERYTHING POINTS TO THE FACT THAT THE PROCEDURE FOLLOWED BY THE SELECTION BOARD WAS INTENDED TO RESERVE THE POST IN QUESTION FOR A PERSON OF A SPECIFIC NATIONALITY WHOSE PREVIOUS APPOINTMENT TO THAT POST HAD , MOREOVER , BEEN ANNULLED BY THE COURT ON A PREVIOUS OCCASION .

17IN THE CIRCUMSTANCES OF THE PRESENT CASE THESE SUBMISSIONS SHOULD BE CONSIDERED AS A WHOLE .

18THE APPLICANT RELIES ON THE FACT THAT THE CONDITIONS ON THE BASIS OF WHICH HIS APPLICATION WAS REJECTED WERE EXTREMELY DETAILED AND AT ANY RATE MORE DETAILED THAN THOSE SET OUT IN VACANCY NOTICE COM/646/72 FOR THE SAME POST , AND MAINTAINS THAT THOSE CONDITIONS HAD BEEN ' ' MADE TO MEASURE ' ' IN ORDER TO ADMIT ONLY A SINGLE CANDIDATE TO THE COMPETITION , WHO IN FACT WAS DECLARED ELIGIBLE AND SUBSEQUENTLY APPOINTED .

19NEVERTHELESS THE COMMISSION HAS BEEN ABLE TO ESTABLISH , BY PRODUCING A NUMBER OF RECENT VACANCY NOTICES , THAT SOME TIME AGO IT INTRODUCED THE PRACTICE OF SETTING OUT AS CLEARLY AS POSSIBLE THE KIND OF CANDIDATE WHICH IT IS SEEKING .

20IN COMPARISON WITH THE CONDITIONS STATED IN SIMILAR DOCUMENTS THE CONDITIONS OF ELIGIBILITY FOR THE COMPETITION ARE NOT EXCESSIVELY DETAILED .

21SUBSEQUENTLY THE SELECTION BOARD CONSIDERED THAT THE APPLICANT DID NOT FULFIL THE CONDITION : ' ' THOROUGH KNOWLEDGE OF ECONOMIC AND TECHNICAL PROBLEMS IN THE SECTORS INVOLVED , PARTICULARLY THE POTATO MARKET . . . ' ' .

22IN FACT THE DOCUMENTS SUBMITTED BY THE APPLICANT IN SUPPORT OF HIS APPLICATION AND IN ORDER TO OBTAIN ADMISSION TO THE COMPETITION FAILED TO ESTABLISH A THOROUGH KNOWLEDGE IN THE RELEVANT SPHERES .

23SINCE THE ABOVE-MENTIONED FOOTNOTE , TO WHICH REFERENCE WAS MADE IN THE NOTICE OF COMPETITION , PLACED SPECIAL EMPHASIS ON THE NEED TO PRODUCE EVIDENCE OR A STATEMENT FROM CANDIDATES THAT THEY POSSESSED THOROUGH KNOWLEDGE IN THESE SPHERES , THE SELECTION BOARD WAS ENTITLED TO CONSIDER THAT FAILURE TO PROVIDE INFORMATION INDICATED A SERIOUS LACK OF SUCH KNOWLEDGE .

24LIKEWISE THE APPLICANT ' S CAREER DOES NOT SHOW THAT HE POSSESSES ' ' THOROUGH EXPERIENCE RELEVANT TO THE POST ' ' .

25IT MUST IN ANY CASE BE FOUND THAT WITH REGARD TO BOTH CONDITIONS THE DOCUMENTS SUBMITTED WITH THE APPLICATION OF THE CANDIDATE WHO WAS ACCEPTED INDICATE THAT BE WAS MORE SUITABLE .

26ACCORDINGLY , ALTHOUGH THE BACKGROUND TO THE APPLICATION IN QUESTION MAY GIVE RISE TO SOME DOUBTS , CONSIDERATION OF THE CIRCUMSTANCES HAS NOT REVEALED EITHER AN ERROR OF FACT OR OF LAW OR MISUSE OF POWERS .

27IN THAT SITUATION , THE SELECTION BOARD HAS PROVIDED A SUFFICIENT STATEMENT OF REASONS FOR ITS DECISION BY INDICATING THE CONDITIONS OF ELIGIBILITY WHICH IT CONSIDERED WERE NOT MET BY THE APPLICANT ' S APPLICATION .

28THE COMPLAINTS ACCORDINGLY CANNOT BE UPHELD AND THE APPLICATION MUST BE DISMISSED .

Decision on costs

COSTS

29UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE , THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .

30THE APPLICANT HAS FAILED IN HIS SUBMISSIONS .

31NEVERTHELESS , UNDER ARTICLE 70 OF THE RULES OF PROCEDURE IN PROCEEDINGS BROUGHT AGAINST THEM BY SERVANTS OF THE COMMUNITIES INSTITUTIONS SHALL BEAR THEIR OWN COSTS .

Operative part

ON THOSE GROUNDS ,

THE COURT ( FIRST CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION ;

2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .