2.

The Commission contended that the application was inadmissible in that the complaint lodged by Mrs Caro-Fernandez was not in conformity with Article 90 (2) of the Staff Regulations and that therefore the first condition laid down by Article 91 (2) for the admissibility of the subsequent appeal to the Court was not satisfied. In fact, according to the Commission, the complaint does not refer to any specific act adversely affecting the applicant but merely asks the appointing authority to remedy a situation which the applicant considers unjust. Furthermore, even if it is held that the complaint in question is directed against a measure required by the Staff Regulations but which has not been adopted by the Commission, the fact none the less remains that the complaint should have been preceded by a request by the person concerned within the meaning of Article 90 (1); in the absence of such a request the complaint is therefore in any event irregular. In my opinion the arguments put forward by the Commission are not sufficient to show that the appeal is inadmissible. It should first be stated that the compulsory complaint introduced with the amendments made to the Staff Regulations in 1972 is intended to reduce the volume of litigation, constituting a first filtering of disputes at the administrative level and thus providing the possibility of their amicable settlement. For that reason it is necessary to interpret the provisions concerning it without having too great a regard to formalities and thus to avoid the risk that excessive procedural complications may prejudice the possibility of judicial protection if it is not possible to achieve a settlement of the dispute at the administrative level. This approach which is flexible and which takes account of the various interests involved is confirmed in the recent decided cases of the Court: see the judgment of 12 March 1975 in Case 23/74 Küster v European Parliament [1975] 1 ECR 353, in which it was stated that ‘whilst the request or the complaint . .. must, set out … the purpose of the complaint and all the grounds underlying it, it is not necessary that they should already … set out the grounds of possible illegality’; see also the judgment of 30 October 1974 in Case 188/73 Grassi v Council [1974] 2 ECR 1099 and the judgment of 1 July 1976 in Case 58/75 Sergy v Commission [1976] 2 ECR 1139, in which, with regard to the question whether the subject-matter of the complaint corresponds to that of the appeal to the Court, it was stated that it is not the purpose of Article 90 of the Staff Regulations to bind strictly and absolutely the contentious stage of the proceedings. In the present instance the applicant took the view that the failure to appoint her as assistant translator in Brussels before the expiry of the period of validity of the reserve list from the competition in which she was successful constitutes a measure which not only adversely affects her but which is illegal and discriminatory in view of the appointment of the other candidate who was placed first ex aequo in the same competition. Against that measure she lodged a complaint ‘within the meaning of Article 90 of the Staff Regulations’ in which she claimed that she should be appointed to a post of assistant translator; she did so within three months from the day on which the validity of the reserve list expired. It would seem therefore that she acted on the assumption that the administration, in view of the results of the competition (the applicant was placed first on the reserve list) and of the existing vacancies, was under an obligation to appoint her to a post for which she had been found suitable during the period of validity of the reserve list. As the Court is aware, for the purposes of Article 90 (2) the act adversely affecting an official which is the subject-matter of a complaint may also take the form of inaction on the part of the appointing authority if it ‘failed to adopt a measure prescribed by the Staff Regulations’. The applicant's appointment — which did not take place — therefore constitutes in the present case the measure which the administration unlawfully failed to adopt. It appears to me therefore that taking that into account the condition laid down by Article 91 (2) may be held to be satisfied. Nor is it possible to state to the contrary that the applicant should first have requested the administration to adopt a measure within the meaning of the third indent of Article 90 (2) and that only after that condition had been satisfied could she lodge a complaint; in the present case it must in fan be held that the request or serving of notice was not necessary in so far as the notice of competition laid down the period of validity of the reserve list, on the expiry of which the absence of action on the part of the administration became definitive. Of course, as regards the substance, it is still necessary to ascertain whether in this instance the administration's obligation to act, which the applicant alleged was breached, is in fact laid down by the Staff Regulations and thus whether the administration's conduct is to be described as unlawful or not. However, that subsequent examination concerns the substance of the case; as to the preliminary examination of the objection that the application is inadmissible, the way in which the applicant has formulated her appeal appears to me to be such as to enable us to pass on to an examination of the substance.