OPINION OF MR ADVOCATE GENERAL MISCHO

delivered on 8 October 1986 ( *1 )

Mr President,

Members of the Court,

A — The facts

The facts of the present case are fairly straightforward :

By a letter dated 2 July 1984 Mr Strack, an official of the United Nations, was admitted to the written tests in Competition No PE/27/A organized by the European Parliament. However, he was unable to take them since the notice inviting him to attend reached his residence on 5 July 1984 when he was on holiday, and so he only became aware of the date of the tests after they had taken place, which was on 19 and 20 July 1984.

Consequently, Mr Strack asked the Selection Board to give him a new date on which to take the written tests. That request was refused by a letter dated 4 October 1984 from the Chairman of the Selection Board. An initial action (Cases 259/84 and 259/84 R) was rejected as inadmissible by an Order of the Court of 31 January 1985 and a complaint made on 2 November 1984 to the President of the European Parliament against the Selection Board's decision was rejected by implication. Mr Strack then applied to the Court again, claiming that it should:

(1) Annul the decision of the Selection Board in Competition No PE/27/A;

(2) Having regard to the Court's view of the law, ( 1 ) require the European Parliament to allow him to take the written tests in that competition after they were held; and

(3) In the alternative, award the applicant damages in an amount to be fixed by the Court but covering at least the costs and lawyer's fees incurred by him.

B — Preliminary considerations concerning admissibility

Before considering the submissions and arguments raised by the applicant in support of his action I shall state my views on three objections of admissibility which the Parliament has raised as a procedural issue.

1. The Parliament refers to the Court's judgment of 8 July 1965 in Joined Cases 19 and 65/63 ( 2 ) and claims that it is not permissible simply to refer in the application to the facts set out in Case 259/84. In that judgment in Joined Cases 19 and 65/63 the Court stated that ‘only the submissions and arguments which do not contain such references may be taken into consideration’. However, I consider that that judgment is not relevant to the present case. First of all, in Joined Cases 19 and 65/63 the reference was to another case in which the parties were not the same. Furthermore, the reference made by the applicant only concerns the facts and then only matters of detail. Lastly and above all, despite that reference, the application is sufficiently complete and precise to satisfy the requirements of Article 38 of the Rules of Procedure and the Court is certainly in a position to settle the present dispute without having to rely on the procedural documents of the previous case.

2. The Parliament considers that the second claim in the application must be dismissed as inadmissible, since the Court has no jurisdiction to substitute itself for the Selection Board and order Mr Strack to be admitted to the written tests after they have been held. Indeed, the Court has held that ‘assessment of the expediency or necessity of organizing a competition lies within the exclusive domain of the appointing authority’ and that ‘in these circumstances, the Court cannot order a competition to be held or reheld without encroaching upon the prerogatives of the administrative authority’. ( 3 ) The applicant's claims to that effect are not therefore admissible in the form in which they have been submitted. Nevertheless, I consider that it is not necessary for the Court to rule explicitly on the admissibility of the second claim. There are two possibilities open to the Court: either the Court decides not to annul the contested decision, in which case the second claim automatically becomes devoid of purpose, or it annuls the decision of the Selection Board, in which case the logical consequence will be that the Selection Board will have to permit the applicant to take part, after the event, in the tests which he was unable to take when they were held. That approach appears to me to be consonant with the position adopted by the Court, in particular in its judgment of 30 November 1978 in Joined Cases 4, 19 and 28/78, ( 4 ) in which the Court did not formally dismiss as inadmissible claims that it should ‘declare that so far as necessary the competition shall be recommenced as far as the applicants are concerned’ ([1978] ECR2403, at p. 2407). It simply held that ‘as this was an open competition to constitute a reserve for future recruitment, the rights of the applicants will be sufficiently protected if the Selection Board reconsiders its decision, without its being necessary to question the whole of the results of the competition or to annul appointments made in consequence thereof’ (paragraph 35). Consequently, the judgment did not give specific instructions to the Selection Board in question or to the Commission but, as in a similar case, ( 5 ) the judgment ‘entailed the need for a further ad hoc meeting of the Board’, as Mr Advocate General Capotorti pointed out ([1978] ECR 2403, at p. 2428).

3. The Parliament contends that the alternative claim for damages is also inadmissible, on the ground that any other claim is precluded if an application for annulment under Article 91 of the Staff Regulations is dismissed as unfounded. ( 6 ) That view, which is presented in excessively general terms, ought to have been qualified. In point of fact, in its judgment in Meyer-Burckhardt, ( 7 ) the Court held that Articles 90 and 91 of the Staff Regulations make no distinction between the action for annulment and the action for damages as regards both the administrative and contentious procedures to which they give rise, although they are distinct and independent types of action, and applicants may choose either one or the other, or both together, in order to assert their claims. Recently, the Court has referred to that judgment in a series of interlocutory judgments ( 8 ) and concluded from it that ‘the applicants have locus standi to submit both a claim for annulment and a claim for damages provided that they satisfy the conditions laid down in the Staff Regulations, which are the same for both means of redress’. The Court has also held on several occasions that a party may not, by means of a claim for compensation, circumvent the inadmissibility of an application which concerns the same illegality and which has the same financial end in view. ( 9 ) Accordingly, the Court has held that ‘where an official brings proceedings under Article 179 of the Treaty for the annulment of an act of an institution and for the award of compensation for the damage he has suffered as a result of that act, the claims are so closely connected that the inadmissibility of the application for annulment must entail the inadmissibility of the claim for compensation’ ( 10 ) But, in the opposite case, where the claim for damages is not based on the alleged unlawfulness of the contested decision, that is to say it is based on circumstances of fact unrelated to the decision or on complaints which do not necessarily coincide with the complaints concerning the unlawfulness of the decision, the Court has, quite logically in view of the independent character of the action, dealt with it separately, ( 11 ) logically in view of the independent character of the action, even if the two actions could lead to the same financial result for the applicant. ( 12 ) I therefore conclude that the fact that an application for annulment is dismissed as unfounded is not enough to make an alternative claim for damages inadmissible. There are two possibilities: either the claim for damages is independent of the claim for annulment, in which case it must be assessed on its own merits; or the two claims are closely connected in the sense that the claim for damages is based solely on the unlawfulness of the decision which is contested in the action for annulment; the outcome of the action for damages then depends on the outcome of the action for annulment. ( 13 ) (The converse is not necessarily true: the annulment of a decision held to be illegal does not automatically result in the award of damages — see Case 263/81 List v Commission [1963] ECR 103, paragraph 20 at p. 116). Since, in this case, the admissibility of the application for annulment cannot be challenged, it will not be possible to form a decision with regard to the application for damages until the substance of the case has been considered.

C — The substance of the Case

1. The claim for the annulment of the decision of the Selection Board and for authorization to sit the written tests after the date set for them.

The applicant argues in support of his action that the two weeks' notice of the tests was totally inadequate, especially in the summer-holiday period, and was also contrary to the practice followed in the Community institutions. He maintains therefore that the Selection Board's refusal to set him a new date for the written tests was unlawful, especially since he had declared on his honour, and was willing to swear this on oath before the Court, that he had no knowledge and still has no knowledge of the subjects tested.

In reply, the Parliament argues in essence that Mr Strack has only himself to blame in view of his negligence in not notifying his holiday address or having his mail forwarded and that for him to be examined afterwards on new subjects or identical subjects to those set for the other candidates would be contrary, on the one hand, to the principle of equality and, on the other, to the principle of legal certainty.

What view must be taken of that argument?

The Staff Regulations themselves do not stipulate any particular period of notice for tests. Article 1 (2) of Annex III to the Staff Regulations merely stipulates a period for the publication of the notice of competition which must be published ‘not less than one month before the closing date for applications and, where applicable, not less than two months before the date of the tests’. ( 14 )

If the responsible authorities wished to adhere strictly to the minimum periods laid down in that provision, they would therefore have only one month to:

draw up the list of candidates fulfilling the conditions laid down in Article 28 (a), (b) and (c) of the Staff Regulations;

establish the list of candidates fulfilling the conditions laid down in the notice of competition; and

invite the candidates admitted to the tests.

Since the first two steps need a considerable amount of time, especially in the case of an open competition, it may be concluded that the Staff Regulations do not preclude the possibility that considerably less than one month's notice might be given.

But it is obviously good administration for the date of the tests to be fixed so as to enable the responsible authorities to scrutinize the applications carefully and properly, the time for which is liable to vary and difficult to estimate in advance, and to give the applicants the time to arrange free days and to get to the place where the competition is to be held.

Therefore, in practice the date for the tests is not fixed until the preliminary stages have been completed. The scheduled or probable date of the tests is, moreover, not one of the particulars which Article 1 (1) of Annex III to the Staff Regulations requires to be given in the notice of competition.

Consequently, the Parliament did not disregard any legal provision in giving only 15 days' notice of the tests.

Neither the fact that the notice was given in the holiday period nor the reference to an alleged practice of the other institutions can shake that conclusion.

First, as the applicant himself points out (admittedly, for other reasons; see the reply, paragraph 2, p. 3), holidays vary from one country to another, and even from one person to another. It would therefore scarcely be conceivable to take everybody's holidays into account.

Secondly, the practice followed by the Council and the Commission of notifying candidates ‘in general approximately ’ four weeks before the date of the tests does not seem so definite as to bind them legally and to allow of no exception. In the absence of any indication in the Staff Regulations, that practice can in no event bind the European Parliament.

Lastly, the real and principal reason why the period of notice in question was ineffective as far as the applicant was concerned was not because it was in actual fact too short but because it did not reach him in time for reasons peculiar to the applicant himself for which the Parliament cannot be held responsible.

The Parliament rightly points out that in the event of a lengthy absence from the place of residence stated on the application form candidates must either notify the appointing authority or make sure that their mail is forwarded. Furthermore, the application form has a special space where an address can be inserted in the event that the applicant's postal address is not the same as his permanent address.

In this case, there was all the more need for the care which candidates must therefore take, inasmuch as the applicant knew that the tests were imminent, which is why he attempted to find out the date of the tests by telephone before he left on holiday. The fact that he did not receive any precise information should have induced him to take the necessary measures so that he could be notified in time. In those circumstances, there can therefore be no infringement of the principle of legitimate expectation, since nothing in the Parliament's attitude towards the applicant could have led him to believe that he was entitled to expect a particular period of notice. Furthermore, such legitimate expectation obviously could not have been created in the applicant by a practice which was followed more or less consistently by other institutions.

Finally, in its judgment of 27 October 1976 in Case 130/75 ( 15 ) the Court held that the interest of participants not to have a date fixed for the tests which is unsuitable for them must be balanced against the necessity for the tests to be the same for all candidates and to take place on the same date (paragraphs 13, 14 and 15). The Court held that if the candidate does not inform the appointing authority in good time of his difficulties (in that case, of a religious nature) in attending the tests on certain dates, the appointing authority would be justified in refusing to afford an alternative date, particularly if there are other candidates who have been convoked for the tests.

In the present case, the applicant's inability to participate on the scheduled dates in the written tests in Competition No PE/27/A, which was due essentially to his own negligence, is likewise incapable, having regard to the principle of equality, of constituting a sufficient reason for annulling the Selection Board's decision refusing to offer him another date, especially since the tests had already taken place by the time of his initial complaint, unlike in Case 130/75.

Consequently, the Selection Board committed no unlawful act in adopting the contested decision.

I would add that the fact that the applicant has declared on his honour that he is unaware of the subjects of the tests does not alter that conclusion in any way, whatever the value to be attributed to such a declaration. In my view, such a declaration is pointless and cannot influence the Court's decision one way or another or the action needed to comply with it, for there are only two possibilities.

Either the Selection Board's decision was lawful and the application will be dismissed, in which case the question of equal opportunities with regard to the subjects and the dates of the tests will not arise, or the Selection Board's decision was unlawful and will be annulled, in which case the defendant will have to take the necessary action and the Selection Board will have to ‘reconsider its decision’, as occurred in the Solerno and Costacurta cases, cited above, which will necessarily involve a derogation from the principle that the dates and — let us be realistic—also the subject-matter of the tests must be identical.

It follows from the foregoing that the claim for the annulment of the decision at issue must be dismissed as unfounded and likewise, irrespective of the question of admissibility, the claim for an order requiring the Parliament to allow the applicant to take the tests in Competition No PE/27/A after they have been held.

2. The application for damages

It must be observed forthwith that the applicant has not given specific reasons for his alternative claim for damages, which, at first sight, makes it more difficult to establish whether it may or may not be regarded as independent of the claim for annulment.

Admittedly, in his application (page 6) he states that ‘the complications were created in the first place by serious fault on the part of the Selection Board’. But he goes on to say that that fault ‘can only be rectified in a manner useful to the applicant by the setting of a new date for the tests, as requested’. I think it is possible to infer from this and from the applicant's submissions and arguments in general that the fault in question consists in the Selection Board's having set too short a period of notice for the tests or having wrongfully turned down the applicant's request to take the written tests after the event, or both. Since those complaints are identical to those invoked in support of the claim for annulment based on the alleged unlawfulness of the contested decision, the claim for damages must also be dismissed as unfounded.

That having been said, it is nevertheless true that it would have been in the interests of the proper conduct of the tests if the candidates who were finally permitted to take the competition had been informed of and invited to the tests within a reasonable period of time in order to enable them actually to attend them.

Indeed, for my part I am not convinced that a period of 15 full days constitutes satisfactory notice, even if it is sufficient in law. That would seem to be borne out by the fact that in this case 92, that is to say, one-fifth, of the 362 candidates invited to take the written tests did not turn up.

Furthermore, other aspects of the conduct of the departments of the European Parliament also lend themselves to criticism. I am thinking more specifically of the fact that the Selection Board, after having reached agreement only on 18 June 1984 on the dates of 19 and 20 July 1984, waited for two weeks before notifying the candidates by letters dated 2 July 1984. That delay is especially deplorable in so far as the candidates were not informed that the Selection Board initially considered holding the tests on 28 and 29 June 1984.

In that context, I would further observe that the Commission informed candidates in Competition No COM/A/403 as early as 27 April 1984 that that competition was scheduled to take place during the last week of June 1984. In the event it took place on 28 and 29 June. Better coordination between the institutions would surely have enabled the Parliament to avoid having to postpone the date planned internally for its own competition, since the Parliament itself regarded that postponement as having been responsible for the special circumstances which made it necessary to shorten the period of notice for the holding of the competition (defence, paragraph 27, p. 10). Consequently, the Parliament is in my view ill-advised to seek to make the applicant responsible for that unfortunate circumstance by contending that he cannot invoke ‘irregularities’, for which he was himself responsible by entering two competitions at the same time (defence, paragraph 25, pp. 9 and 10).

Finally, it seems that the applicant's last telephone conversation with the Parliament took place just before the beginning of his three-week holiday, that is to say between 28 and 30 June and therefore after 18 June, the date on which the Selection Board decided that the tests would take place on 19 and 20 July. It can therefore be said that the staff of the European Parliament were at least careless in simply informing the applicant that the date had not yet been fixed and that he would be informed in good time.

Even though the Parliament's conduct was certainly not such as to release the applicant from his duty of care and does not constitute sufficient reason for concluding that the Selection Board's refusal to set a new date for the applicant was illegal, it is understandable that that conduct could have caused the applicant to believe that he was the victim of an injustice or at least of administrative negligence which might be condemned by the Court, and led him to bring this action.

I therefore propose that that fact be taken into account when costs are awarded and, consequently, that the second subparagraph of Article 69 (3) of the Rules of Procedure be applied, according to which the Court may order even a successful party to pay costs which the Court considers that party to have unreasonably or vexatiously caused the opposite party to incur. ( 16 )

Conclusion

On the basis of all the foregoing considerations, I propose that the Court should dismiss the application as unfounded but order the defendant to pay all of the costs.

( *1 ) Translated from the French.

( 1 ) Although the applicant clarified his claims in this way only in the reply (paragraph 14, p. 6), I, unlike the defendant, consider that it does not constitute an amendment of the application such as to render it inadmissible.

( 2 ) Joined Cases 19 and 65/63 Salya Prakaih v Commission of the EAEC [1965] ECR 533.

( 3 ) See in particular the judgments of 14 December 1965 in Cases 11/65 and 21/65 Morina v European Parliament [1965] ECR 1017, at pp. 1024 and 1025, and [1965] ECR 1033, at p. 1039.

( 4 ) Joined Cases 4, 19 and 28/78 Salerno, Autbié and Massangioliv Commission [1978] ECR 2403.

( 5 ) Judgment of 4 December 1975 in Case 31/75 Costacurta v Commission [1975] ECR 1563.

( 6 ) In its defence (paragraph 30 on page 12) the Parliament talks of ‘an action brought on the grounds of illegality within the meaning of Article 90 (2)’. However, Article 90 governs the complaint procedure which precedes the lodging of a possible application under Article 91.

( 7 ) See judgment of 22 October 1975 in Case 99/75 Meyer-Burckhardt v Commission [1975] ECR 1171, in particular paragraphs 10 and 11.

( 8 ) Judgments of 4 July 1985 in Cases 174/83, 175/83, 176/83, 233/83, 247/83 and 264/83 [1985] ECR 2133, 2149,2155,2163,2171 and 2179

( 9 ) See judgment of 15 December 1966 in Case 59/65 Schreikenberg v Commission [1966] ECR 543; judgment of 10 November 1981 in Joined Cases 532, 534, 657, 600, 618 and 660/79 Ameiz and Others v Commission and Council [1981] ECR 2569; judgments of 12 November 1981 in Case 543/79 Birke v Comminon and Council [1981] ECR 2669, and in Case 799/79 Bruckner v Commission and Council [l98l] ECR 2697.

( 10 ) Judgment of 16 July 1981 in Case 33/80 Albini v Council anil Commission [1981] ECR 2141, in particular paragraph 18. Sec also judgment of 12 December 1967 in Case 4/67 Muller v Commission [1967] ECR 365, sec in particular pp. 373 and 374.

( 11 ) Sec judgment of 19 November 1981 in Case 106/80 Foamier v Commission [1981] ECR 2759, in particular paragraphs 18 and 19; see also judgment of 11 July 1985 in Joined Cases 255 and 256/83 R. v Commission [1985] ECR 2473, in particular paragraphs 56, 57 and 58, in which the application for damages was made only in the event that the action for annulment was dismissed.

( 12 ) Judgment of 13 July 1972 in Case 79/71 Heinemann v Commission [1972] ECR 579, in particular paragraph 7,

( 13 ) Judgment of 17 March 1983 in Case 280/81 Hoffmann v Commission [1983] ECR 889, in particular paragraph 11; likewise, see the judgment of 27 January 1983 in Case 263/81 List v Commission [1983] ECR 103, in particular paragraph 29, and the judgment of 5 April 1984 in Case 347/82 Alvarez v European Parliament [1984] ECR 1847, in particular paragraph 17. (In other judgments, however, the Court, having dismissed the application for annulment, expressly held that there was no fault or liability on the part of the institution and also dismissed the application for damages — see judgment of 22 October 1981 in Case 218/80 Krusev Commission [1981] ECR 2417, in particular paragraph 10; judgment of 11 July 1980 in Case 137/79 Kohll v Commission [1980] ECR 2601, in particular paragraph 15; judgment of 28 May 1980 in Joined Cases 33 and 75/79 Kuhner y Commission [1980] ECR 1677, in particular paragraph 27. In its judgment of 9 December 1982 in Case 191/91 Plug v Commission [1982] ECR 4229, in particular paragraph 29, the Court simply held that there was no need to consider the claim for damages on the ground that it was based on the alleged unlawfulness of decisions which the Court had held, in the same judgment, to be lawful.)

( 14 ) Those conditions were observed in the present case.

( 15 ) Prais Council [1976] ECR 1589.

( 16 ) As precedents, see the judgment of 22 October 1981 in Case 218/80 Kruse v Commission [1981] ECR 2417, in particular paragraphs 11 and 12; judgment of 29 October 1981 in Case 125/80 Arning v Commission [1981] ECR 2539, in particular paragraphs 20 and 21; judgment of 27 January 1983 in Case 263/81 List v Commission [19831 ECR 103, in particular paragraphs 30 and 31; and judgment of 21 April 1983 in Case 282/81 Ragusa v Commission [1983] ECR 1245, in particular paragraphs 28 and 29.