Opinion of Mr Advocate General Lenz delivered on 23 October 1986. - Vassiliki Stroghili v Court of Auditors of the European Communities. - Annulment of a decision establishing an official. - Case 204/85.



European Court reports 1987 Page 00389



Opinion of the Advocate-General

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Mr President,

Members of the Court,

A . At the hearing of this action against the Court of Auditors on 8 October only the issue of admissibility was argued . I shall accordingly confine my Opinion today to that issue .

The following facts are necessary for an understanding of the case .

The Court of Auditors conducted Competition No CC/LA/14/83 to fill a vacancy for an LA*7/6 post . As a result the intervener, whose name was included in the list of suitable candidates, was appointed a probationary official in Grade LA*6, Step 3, ( evidently on account of her experience ) by order of the President of the Court of Auditors of 29 February 1984, with effect from 1 March 1984 .

As laid down in Article 34 of the Staff Regulations, a report on her probationary period was prepared . Contrary to the normal procedure, it was not made by the intervener' s immediate superior, who is the applicant' s husband, but by the head of the Language Department of the Court of Auditors, who consulted other officials and made use of external assessors to judge the intervener' s work . That procedure was adopted because the intervener had brought an action ( Case 143/84 ( 1 )) in respect of the applicant' s husband' s participation in Competition No CC/LA/20/82 and succeeded in having his appointment to Grade LA*5 annulled .

According to the applicant, who also works in the Language Service of the Court of Auditors and is classified in Grade LA*7, the preparatory report was unfavourable and recommended the intervener' s dismissal, but that is denied by the Court of Auditors . In any event, by a decision of the Secretary of the Court of Auditors of 26 November 1984 the intervener was established in her post as an official with effect from 1 December 1984 .

When the applicant learnt thereof ( the appointment was posted up at the Court of Auditors from 1 to 20 December 1984 ) she lodged a complaint against it on 26 February 1985 . She claimed that, in view of the findings in her probationary report and the observations of her superior and of the Court of Auditors in Case 143/84, the intervener should not have been established as an official but have been dismissed under Articles 27 and 34 of the Staff Regulations . The failure to dismiss her prejudiced the applicant' s chances of promotion since the number of posts to which the applicant might aspire for promotion was thereby reduced .

Her complaint was unsuccesssful . It was rejected as inadmissible in a memorandum dated 21 June 1985 on the ground that the contested decision was not capable of directly affecting the applicant' s legal position; appointment decisions could only directly affect third parties if - and this did not apply to the applicant - they were candidates for the appointment . Moreover, the provisions of the Staff Regulations cited by the applicant were not intended to protect individual interests but mainly to serve the general interest .

Thereupon by an application registered at the Court of Justice on 3 July 1985, the applicant brought an action in which she claims that the Court should annul :

( a ) the decision of 26 November 1984 of the Secretary of the Court of Auditors by which the intervener was established in her post as an official;

( b ) in so far as necessary, the decision expressly rejecting the applicant' s complaint .

By an order of 31 January 1986 Mrs Vlachou was allowed to intervene in the proceedings . Before I turn to the issues I should also like to mention that the applicant entered the service of the Court of Auditors as a probationary official on 1 January 1983, that according to an official list of 11 September 1985 she was eligible for promotion in 1985 and that by a decision of 21 November 1985 she was promoted to Grade LA*6, Step 2, that is to say the same grade as the intervener, with effect from 1 December 1985 .

B . With regard to the admissibility of the action the only argument put forward in the application was the argument already advanced in the complaint, namely that the establishment of the intervener reduced the number of posts to which the applicant might aspire for promotion to LA*6 and thus the applicant' s chances of promotion were limited or delayed .

1 . It is clear from the preliminary administrative procedure that the Court of Auditors did not consider that to be sufficient . Referring to the Court' s case-law on the term "act adversely affecting (( an official ))" and the requisite legal interest, it stated that it was significant that the applicant had not taken part in the procedure for filling the post to which the intervener was appointed . Since the applicant had no prospect of obtaining the post, she had no personal interest in criticizing that procedure .

With regard to the alleged reduction of the applicant' s prospects of promotion, the Court of Auditors points out that, apart from the fact that there is no right to promotion, even on conclusion of the procedure for filling the vacancy the applicant was still not eligible for promotion; moreover, when the action was brought there were still two LA*6 posts at the Court of Auditors available for purposes of promotion . The intervener' s establishment thus represented no obstacle to the promotion of the applicant, and she was in fact promoted in November 1985 so that at least from that time onwards she no longer had any interest in putting forward that argument .

Finally, the Court of Auditors considered that at most the intervener' s appointment as a probationary official in February 1984 might be viewed as an act adversely affecting the applicant . However, the applicant did not lodge a complaint against it within the prescribed period and hence the application to the Court must also be regarded as out of time .

Against that the applicant, in her reply, observes that she has been eligible for promotion since January 1985 but at that time there were only three LA*6 posts available for six candidates ( whereas, had the intervener not been established, there would have been four ).

She also considers that she has an interest in bringing proceedings as a result of the intervener' s wrongful conduct, whereby cooperation in the small administrative unit of the Greek Translation Department was made more difficult . She claims inter alia that the intervener' s observations in Case 143/84 infringed obligations under Article 12 of the Staff Regulations .

In addition, in her view, account must be taken of the fact that the Court of Auditors will soon have to organize internal or interinstitutional competitions to fill two LA*5/4 posts and the applicant will encounter competition from the intervener for the posts unless the decision establishing her is annulled .

She argues that there can be no question that her complaint was lodged out of time, because she could not be a candidate in the competition which led to the appointment of the intervener and hence had no interest in having the first decision to appoint the intervener ( February 1984 ) annulled .

2 . The main question which arises from those issues is whether the contested decision establishing the intervener can be regarded as an act adversely affecting the applicant within the meaning of Article 91 of the Staff Regulations .

Previous decisions of the Court ( referred to by the Court of Auditors ) provide authority for the view that it cannot . In Case 252/81 ( 2 ) it was held not to be possible to challenge the appointment of another official if the applicant has "voluntarily decided not to apply for the post, and thus refused to take part in the appointment procedure ". Similarly, in the judgment in Case 111/83 ( 3 ) it was held that, if an official cannot himself validly claim a vacant post, he has no legitimate interest in the annulment of the appointment of another candidate to that post .

Strict conditions therefore apply to actions by competitors against appointment decisions . The intention is clearly to exclude actions "in the interest of the law or of the institutions" ( to use the terms employed in the judgment in Case 85/82 ( 4 )), that is to say, actions brought in the general interest . As is stated in another case, ( 5 ) the admissibility of staff actions basically depends on whether the legal position of the person concerned is immediately and directly affected and whether there is a legitimate, present, vested and sufficiently clear interest in having a particular question decided by the Court .

However, the applicant in this case did not take part in the competition which led to the appointment of the intervener ( it concerned an LA*7/6 post ) and indeed could not take part with a view to securing appointment to an LA*6 post ( at the relevant time she was already an LA*7 official and on conclusion of the procedure in question was not yet eligible for promotion to LA*6 ); consequently, according to the aforesaid case-law her action is clearly inadmissible .

3 . Moving on none the less to consider whether, even in other cases not specified in the Court' s case-law, appointment decisions should be viewed as acts "capable of directly affecting a given legal situation" ( 6 ) I would make the following observations regarding the specific arguments advanced by the applicant in the present case in support of that view :

( a ) With regard to the claim that the applicant' s chances of promotion were reduced by the appointment of the intervener to an LA*6 post, it may be objected that in Community staff law there is no right to promotion and hence no "legal situation" which may be affected by the appointment decision .

Moreover, when the contested decision was adopted the applicant was not yet eligible for promotion; consequently, her legal situation was in any case not directly affected and therefore she had no present interest in taking proceedings .

If promotion prospects are considered at all, it may be objected in the present case that the applicant' s prospects were reduced when the procedure to fill the LA*6 post was commenced . It would logically follow that the applicant ought to have taken action at that stage, if indeed that was not impossible owing to the fact that the measure was adopted in the exercise of organizational powers with which individuals may not interfere .

Finally, it is open to question whether the fact that one LA*6 post was no longer available may be regarded as a material reduction of the applicant' s promotion prospects when there were two other LA*6 posts still available in 1985, and in any event grounds for such a complaint ( loss of promotion prospects ) were removed with the promotion of the applicant in November 1985 .

( b ) A similar view must be taken of the applicant' s claim that if the decision establishing the intervener is upheld she may be expected to compete in future competitions for LA*5 posts and thus the applicant' s position is affected .

Since the applicant claims that according to the report on the intervener' s probationary period she is not suitable for an LA*6 post, it is difficult to understand why she should fear competition and look upon it as a threat to or as adversely affecting her own chances in such a competition . More importantly, her interest is not a present interest, as the case-law requires, but at most a future and possibly hypothetical interest, since it depends on at least two conditions, namely that both the applicant and intervener should take part in any such competition .

The present action cannot therefore be brought on that basis; otherwise the conditions for bringing an action would be unreasonably deprived of their restrictive effects .

( c ) Finally, I do not think that the admissibility of the action can be based on the ground that the appointment of an insufficiently qualified colleague whose conduct in other court proceedings led to criticism from the Court of Auditors makes the working conditions of the applicant, who is employed in the same small administrative unit, intolerable . An official is entitled only to have appropriate duties entrusted to him; he has no right to work solely with colleagues who have the professional and personal qualities which he deems necessary .

If that were sufficient to found an action against an appointment decision, there would be unreasonable interference in organizational matters which fall outside the competence of individuals and must be reserved to the employer .

The Court has held that only such claims may be put forward as relate to the applicant personally ( the aforesaid Case 85/82 at paragraph 14 on p.*2123 ). That requirement is not met, however, by the applicant' s claims concerning Articles 27 and 34 of the Staff Regulations ( based on the intervener' s alleged professional and personal shortcomings ). Those provisions are primarily concerned with the interests of the service; an individual official cannot base an action on the infringement thereof .

( d ) It must therefore be held that the applicant' s action is inadmissible because there is no act adversely affecting her and she has no legal interest in bringing the action . It is not therefore necessary to inquire further into the Court of Auditors' additional objection that she ought to have challenged the first measure appointing the intervener as a probationary official and that accordingly her complaint and action were out of time .

4 . In conclusion it is appropriate to mention the matter of costs . In the defendant' s view the Court should depart from the normal rule in Article 70 of the Rules of Procedure and order the applicant to pay the whole of the costs . It bases that contention on the ground that the application was obviously inadmissible, as was pointed out several times to the applicant in the preliminary administrative procedure ( in which she was already legally represented ).

I am of the opinion that the contention is valid . According to the case-law cited, to which the applicant was referred by the Court of Auditors at an early stage, it is quite right to say that the present action is obviously inadmissible and vexatious ( as was the action in Case 252/81, where the second paragraph of Article 69 ( 3 ) of the Rules of Procedure was applied ).

It is also quite clear that under the general provisions the unsuccessful applicant should be ordered to pay the costs of the party who intervened in support of the Court of Auditors, since Article 70 relates only to the costs of the institutions .

C . In brief :

In my opinion the application must be dismissed as inadmissible . Further, the applicant should be ordered to pay the whole of the costs of the proceedings ( including the costs of the intervener ).

(*) Translated from the German .

( 1 ) Judgment of 6 February 1986 in Case 143/84 Androniki Vlachou v Court of Auditors of the European Communities (( 1986 )) ECR 459 .

( 2 ) Judgment of 17 March 1983 Hebrant, née Macevicius v European Parliament (( 1983 )) ECR 867, paragraph 10 at p.*878 .

( 3 ) Judgment of 30 May 1984 Case 111/83 Santo Picciolo v European Parliament (( 1984 )) ECR 2323, paragraph 29 at p.*2340 .

( 4 ) Judgment of 30 June 1983 in Case 85/82 Bernhard Schloh v Council of the European Communities (( 1983 )) ECR 2105, paragraph 14 at p.*2123 .

( 5 ) Judgment of 1 February 1979 in Case 17/78 Fausa Deshormes, née La Valle v Commission of the European Communities (( 1979 )) ECR 189, paragraphs 10 to 12 at p.*197 .

( 6 ) Judgment of 1 July 1964 in Case 26/63 Piergiovanni Pistoj v Commission (( 1964 )) ECR 341, at p.*351 .