Judgment of the Court of First Instance (Fifth Chamber) of 27 June 1991. - Íñigo Valverde Mordt v Court of Justice of the European Communities. - Officials - Conditions for promotion - Period in a grade - Competition - Regularity of all the steps taken in an internal competition - Action for annulment and for compensation for damage. - Case T-156/89.



European Court reports 1991 Page II-00407



Summary

Parties

Grounds

Decision on costs

Operative part



Keywords

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1. Officials - Actions - Request pursuant to Article 90(1) of the Staff Regulations - Concept - Application for a vacant post - Included

(Staff Regulations of Officials, Art. 90(1))

2. Officials - Actions - Interest in bringing an action - Action against the rejection of an application for a vacant post - Transfer of the person concerned to another institution - Admissibility

(Staff Regulations of Officials, Art. 91)

3. Officials - Promotion - Minimum period required in a grade - Calculation - Starting point - Establishment

(Staff Regulations of Officials, Art. 45(1))

4. Officials - Temporary posting - Designation of the official called on to occupy a post temporarily - Recourse to a selection procedure - Consequences with regard to the acquisition of the status of an official who is eligible for promotion - None

5. Officials - Recruitment - Competition - Appointment of a successful candidate to a post which does not correspond to the competition notice - Not permissible

(Staff Regulations of Officials, first para. of Art. 27 and Art. 29(1))

6. Officials - Promotion - Promises - Infringement of the provisions of the Staff Regulations - Legitimate expectations - None

(Staff Regulations of Officials, Art. 45)

7. Measures adopted by the Community institutions - Presumption of validity - Non-existent act - Concept

8. Officials - Recruitment - Competitions - Selection board - Composition - Discretion of the appointing authority and the Staff Committee with regard to the choice of members - Judicial review - Limits

(Staff Regulation of Officials, Annex III, Art. 3)

9. Officials - Recruitment - Competitions - Competition based on qualifications and tests - Possibility of a member of the selection board penetrating the anonymity of the tests - Consequences

(Staff Regulations of Officials, Annex III)

10. Officials - Recruitment - Competitions - Competition based on qualifications and tests - Content of the tests - Discretion of the selection board - Judicial review - Limits

11. Officials - Recruitment - Competitions - Competition based on qualifications and tests - Decision not to include a candidate on the list of suitable candidates - Obligation to state reasons - Scope with regard to the requirement that the proceedings of the selection board should be secret - Inadequate statement of reasons - Regularization during the procedure before the Court

(Staff Regulations of Officials, Annex III, Art. 6)

12. Officials - Actions - Action for damages - Application for a declaration that a service-related fault was committed - Admissibility - Fault committed at the request of the applicant - Irrelevant

(Staff Regulations of Officials, Arts 90 and 91)

13. Officials - Actions - Action for compensation for damage - Pleas in law - Unlawfulness of a decision of the appointing authority which was not contested within the prescribed time-limit - Inadmissibility

(Staff Regulations of Officials, Arts 90 and 91)

14. Officials - Actions - Object - Directions to the administration - Inadmissibility

(Staff Regulations of Officials, Arts 90 and 91)

Summary

1. An official' s application for a vacant post amounts to a request within the meaning of Article 90(1) of the Staff Regulations since it requests the appointing authority to adopt a decision in his regard.

2. An action for the annulment of a decision rejecting an official' s application to be appointed to a vacant post by way of promotion is not inadmissible, on the ground that the official has no interest in bringing an action, solely because he has been transferred in the mean time to another institution, since such a transfer does not make it impossible to comply with any judgment declaring void an act of the institution.

3. The minimum period in a grade required under Article 45(1) of the Staff Regulations in order for an official to be eligible for promotion is calculated, in the case of the first promotion after recruitment, from the establishment of the official.

4. The Staff Regulations do not prescribe how the appointing authority is to choose the officials called upon to occupy temporarily posts in a higher career bracket. Nor, on the other hand, do they contain any provision according to which a selection procedure held for that purpose is capable of producing legal effects in relation to the promotion of the officials in question. Consequently, the effects of such a procedure cannot be deemed to be the same as those of a competition with regard to the possibility of promoting officials who have not completed the minimum period in their grade required under Article 45(1) of the Staff Regulations.

5. It is true that when the appointing authority adopts a decision concerning the filling of posts for which a competition has been held, it is required to take into account the results of that competition. However, those results do not permit the appointing authority to go on to appoint one of the successful candidates in that competition to a post which the competition was not held to fill.

Such an appointment, which would give no-one else an opportunity of proving in a new competition that he had the qualifications necessary to fill one of the posts in question, would be manifestly contrary to the purpose of the first paragraph of Article 27 and Article 29(1) of the Staff Regulations, namely the recruitment of officials of the highest standards of ability.

6. With regard to the promotion of officials, the appointing authority must comply with Article 45 of the Staff Regulations. Promises which do not take account of the provisions of the Staff Regulations cannot give rise to a legitimate expectation on the part of the person to whom they are made.

7. In exceptional circumstances, a measure may be deemed to be non-existent if it exhibits particularly serious and manifest defects.

For an act to be thus deprived of the presumption of validity which the Treaties attach, for obvious reasons of legal certainty, even to irregular acts of the institutions, the irregularity must be so gross and so obvious that it goes far beyond a "normal" irregularity resulting from an erroneous assessment of the facts or from a breach of the law.

8. In order to be constituted in accordance with the provisions of the Staff Regulations and Article 3 of Annex III thereto, the selection board in a competition on the basis of qualifications and tests must be composed in such a way as to guarantee an objective assessment by the selection board of the candidates' professional qualities in their performance in the tests. The appointing authority and the Staff Committee have a wide discretion in assessing the abilities of the persons whom they are called on to appoint as members of the selection board and it is not for the Court to criticize their choice unless the limits of that discretion have not been observed.

The fact that one of the members of the selection board is a member of the temporary staff is not such as to render the composition of the selection board irregular since Article 3 of Annex III to the Staff Regulations does not require that the members of a selection board must necessarily be officials.

9. The anonymity of the candidates does not appear among the detailed rules of procedure for competitions laid down in Annex III to the Staff Regulation. Consequently, the mere possibility that a member of the selection board might have been in a position to identify the candidates from their handwriting and their language combinations is not sufficient to lead the Court to find that the composition of the Selection Board was unlawful or that it was not such as to guarantee an objective assessment of the professional abilities of the candidates in the competition.

10. The selection board in a competition has a wide discretion with regard to the content of the tests and it is not for the Community court to criticize the selection board' s choice of tests unless that choice is not confined within the limits laid down in the competition notice or is not consonant with the purposes of the test or of the competition. The Court cannot substitute its own judgment for that of the selection board as regards the degree of difficulty of the tests. Nevertheless, it is for the Selection Board, in exercising its discretion, to ensure that the tests display substantially the same degree of difficulty for all the candidates.

11. The selection board' s obligation to provide a statement of reasons for the decision not to include a candidate on the list of suitable candidates is not incompatible with the requirement, laid down in Article 6 of Annex III to the Staff Regulations, that the proceedings of the selection board should be secret. That requirement precludes disclosure of the views of the individual members of selection boards and revelation of the factors relating to individual or comparative assessments of candidates. It does not preclude, however, each candidate from being notified of the marks which he personally was awarded in the appraisal of his qualifications or after his participation in the tests. A general reference to the results of the tests in the decision communicated to the applicant does not on its own constitute an adequate statement of reasons.

However, that irregularity may be covered by the notification to the applicant, in the course of the proceedings before the Court, of the marks obtained in the various tests, since an annulment based solely on that procedural defect could only result in the adoption of a fresh decision which would be identical in substance to the annulled decision.

12. In the context of a claim for damages, an official' s application for a declaration that the defendant institution committed a service-related fault cannot be declared inadmissible solely because a request of the official concerned was the origin of the alleged fault.

13. An official who does not contest, within the time-limits laid down in Articles 90 and 91 of the Staff Regulations, a decision of the appointing authority which adversely affects him, cannot rely on the alleged unlawfulness of that decision in an action for damages.

14. The Community court may not give directions to a Community institution without encroaching upon the powers of the administration. That principle not only renders inadmissible, in an action for annulment, heads of claim seeking an order requiring a Community institution to adopt the measures necessary for the enforcement of a judgment by which a decision is annulled, but it is also applicable, in principle, in proceedings in which the Court has unlimited jurisdiction. It follows that an applicant may not, in an action for damages, ask the Court to order the defendant institution to adopt specific measures to make good the alleged damage.

Parties

In Case T-156/89,

Iñigo Valverde Mordt, a former official of the Court of Justice of the European Communities, now an official of the European Parliament, represented by María Luisa González García-Pando, of the Madrid Bar, with an address for service in Luxembourg at the applicant' s address, 75 Avenue Pasteur,

applicant,

v

Court of Justice of the European Communities, represented by Francis Hubeau, Head of Division, acting as Agent, assisted by Santiago Muñoz Machado, of the Madrid Bar, with an address for service in Luxembourg at the Court of Justice, Kirchberg,

defendant,

APPLICATION for the annulment of the implied decision refusing to promote the applicant to a post of reviser, for an order that the Court of Justice promote him to such a post, for the annulment of Competition No CJ 32/88 and of a number of decisions taken in connection therewith, and for compensation for the material and non-material damage which the applicant claims to have suffered,

THE COURT OF FIRST INSTANCE (Fifth Chamber),

composed of: C.P. Briët, President of the Chamber, H. Kirschner and J. Biancarelli, Judges,

Registrar: H. Jung,

having regard to the written procedure and further to the hearing on 5 December 1990,

gives the following

Judgment

Grounds

A - Facts

1 In order to establish a Spanish translation division at the time of Spain' s accession to the European Communities, the Court of Justice of the European Communities organized two open competitions on the basis of qualifications and tests. Competition No CJ 12/85 was for the recruitment of lawyer-linguists in Grade LA 6 and Competition No CJ 11/85 was held for the purpose of constituting a reserve list of revisers in career bracket LA 5/4.

2 The applicant took part in both competitions. He passed the tests in Competition No CJ 12/85 but failed the written tests in Competition No CJ 11/85. During the oral test in Competition No CJ 12/85, which was held in May 1986, the Chairman of the Selection Board, Mr Koegler, who at that time was the Director of the Translation Directorate, told the applicant that it would be possible for him to be promoted rapidly to the next higher carrier bracket (LA 5) if he was engaged without delay. On 16 September 1986, the applicant entered into service as a probationer lawyer-linguist. The decision by which he was appointed classified him in Step 3 in Grade LA 6 and fixed 1 September 1988 as the date of his next advancement to a higher step. The applicant received a particularly favourable report at the end of his probationary period and was established as from 16 June 1987.

3 Competition No CJ 11/85 did not produce enough successful candidates to fill all the vacant posts for revisers in the Spanish Translation Division. A selection procedure was therefore commenced with the aim of drawing up a list of names to be submitted to the appointing authority and used to call upon three lawyer-linguists to occupy revisers posts temporarily, pursuant to Article 7(2) of the Staff Regulations. That informal procedure was initiated, on the instructions of the Director of Translation, by Mr Elizalde, the Head of the Spanish Translation Division.

4 Firstly, the merits of the candidates were assessed by applying a number of criteria based both on the qualifications and previous experience of the candidates and on an assessment of their work by the established revisers and the acting Head of Division. Those criteria were notified to the persons concerned in a document dated 11 November 1986, which the acting Head of Division sent to the Division' s lawyer-linguists in order to solicit their applications to become temporary revisers. According to that note, the temporary appointment procedure would "result in a promotion at the end of the two-year period provided for by the Staff Regulations". On 29 January 1987, the acting Head of Division sent to the Director of Translation a memorandum in which he submitted the names of the persons selected on the basis of the abovementioned criteria, the applicant' s name being first on the list. However, no further action was taken on that memorandum.

5 Secondly, however, a subsequent stage was instituted in which some working time was devoted to revision by the candidates chosen by the acting Head of Division for that purpose. For a period of approximately four months their work as revisers was monitored and assessed by the established revisers and the acting Head of Division. At the end of that process, the name of the applicant was again placed first on the list of the candidates whom the acting Head of Division proposed as temporary revisers. By decision of the appointing authority of 7 August 1987, the applicant was called on to occupy a post of reviser temporarily with effect from 1 July 1987.

6 In the meantime the Court of Justice had published a third notice of competition on 27 May 1987, which related to Internal Competition No CJ 24/86, based on qualifications, for the recruitment of a Head of Division for the Spanish Translation Division. In September 1987, the applicant was included on the reserve list drawn up following that competition. According to the notice of competition, that list was to be valid for one year from the date on which it was drawn up and could be extended.

7 Also published during that same period was Vacancy Notice No CJ 66/87 announcing three vacant posts for Spanish-language revisers. On 2 September 1987, the applicant applied for one of those posts.

8 On the 18 March 1988, the applicant had an interview with the new Head of the Spanish Translation Division, Mr Cervera, in the course of which the applicant stressed that it was necessary to adopt a decision on those vacant posts before the end of the duration of the revisers' temporary postings, which, pursuant to Article 7(2) of the Staff Regulations, was 1 July 1988. Some days later the applicant was told that a competition would be held to fill the vacant posts; however, no mention was made of whether the competition was to be on the basis of qualifications or of qualifications and tests. No notice of competition was published before the end of the duration of the temporary postings. Nevertheless, the applicant continued to perform the duties of a reviser and accordingly to receive the differential allowance provided for in Article 7 of the Staff Regulations

9 On 17 June 1988, the applicant sent a note to the new Director of Translation, Mr Fell, asking him to intercede with the appointing authority to secure a successful outcome for his application. On 4 July 1988, the Director of Translation replied that he was unable to propose the applicant' s appointment as a reviser firstly because the applicant had not completed the period in his grade necessary, under Article 45(1) of the Staff Regulations, for promotion and, secondly, because his success in the competition held for the purpose of recruiting a Head of Division in Grade LA 3 did not exempt him from taking part in a competition before he could be promoted to reviser.

10 On 1 September 1988, the applicant advanced to Step 4 in Grade LA 6. Shortly afterwards, Vacancy Notice No CJ 41/88 was published concerning a fourth post for a Spanish-language reviser. Point IV of that notice invited officials who were eligible for transfer or promotion and who were interested in the post in question to submit their applications. According to point V of the notice, other officials and members of staff of the Court could register their interest in the post. On 28 October 1988, the applicant sent a note to the Head of the Personnel Division of the Court, which was received by the Personnel Division on 3 November 1988 and which stated:

"In accordance with the abovementioned vacancy notice, I am pleased to inform you that I hereby apply for the post of Spanish-language reviser".

11 Before commencing a competition for the recruitment of Spanish-language revisers, the Court consulted the Joint Committee, pursuant to Article 1(1) of Annex III to the Staff Regulations. In its opinion of 3 August 1988, the Joint Committee expressed its opposition to the holding of a competition based on qualifications and tests and asked the appointing authority to look into the possibility of filling the revisers' posts by promotions. However, on 25 October 1988 the Court published Notice of Internal Competition No CJ 32/88 on the basis of qualifications and tests. The notice of competition provided that "legal texts" were to be translated in the written tests.

12 The members of the Selection Board in the competition were: Mr Fell, the Director of the Translation Directorate, of German mother tongue; Mr Cervera, Head of the Spanish Translation Division, and Mr Dastis, a legal secretary in the Chambers of a member of the Court, of Spanish mother tongue, who was designated by the Staff Committee.

13 The applicant submitted his application for the competition on 24 November 1988. By a note of 29 November 1988, the Personnel Division of the Court sent the list of candidates in the Competition to the Chairman of the Selection Board. On 7 December 1988 the Selection Board admitted all the candidates to the written tests, which were held on 14 December 1988. The compulsory tests included the translation into Spanish of a text in French concerning a particular form of lien and its effects.

14 On 16 December 1988, the administration sent the candidates' papers to the Chairman of the Selection Board. The papers did not bear the names of the candidates, who were identified only by a number. The Selection Board awarded the applicant, whose number was 50, a mark of 12 out of 20 for the translation from French and, by applying the weightings provided for in the notice of competition, a overall mark of 95 for all the written tests. Thus the applicant obtained the pass mark and was admitted to the oral test, following which the marks awarded to him for all the compulsory tests came to 124, or 62%. According to the notice of competition, only those candidates who had obtained at least 65% of the marks in all the compulsory tests were to be included on the reserve list. By a note of the Personnel Division of the defendant institution dated 2 February 1989, the applicant was informed "that, having regard to the marks you obtained in all the tests, the Selection Board is unable to include you on the reserve list". Three successful candidates were on that list.

15 On 28 February 1989, the applicant lodged a complaint against, inter alia, the decision of the Selection Board not to include him on the list of suitable candidates. He first of all emphasized the merits of the procedure for the selection of temporary revisers and observed that the appointing authority had on a number of occasions approved his work as a reviser, in particular by continuing to pay him the temporary posting allowance even after the expiry the one-year period laid down in the Staff Regulations for the duration of a temporary posting. Relying on the principle non bis in idem and the argument that in eo quod plus sit, semper inest et minus, the applicant maintained that he had a right to be appointed reviser without having to pass a new competition because he had been included on the reserve list drawn up following Competition No CJ 24/86 (Head of Spanish Translation Division). He also claimed that no express reasons had been given for the appraisal made of the abilities that he had proved in other ways.

16 In addition, he criticized the very principle of holding a competition based on qualifications and tests on the ground that the use of such a procedure meant that his suitability for the duties of a reviser had been judged on the basis of an assessment not of all the work he had done over approximately two years but of about ten pages of work at most. He pointed out that in the present case the Joint Committee had been in favour of holding a competition based on qualifications. The applicant also claimed that the principle of the protection of legitimate expectations had been infringed in his regard. Moreover, he criticized the composition of the Selection Board in Competition No CJ 32/88 and the choice of the texts set in the written tests in that competition. Finally, the applicant maintained that the decision of the Selection Board was vitiated by a misuse of powers.

17 The applicant asked the appointing authority both to admit that it was inappropriate to make him participate in Competition No CJ 32/88 and to appoint him as a reviser. He asked it, alternatively, to annul the abovementioned competition and hold a new competition based on qualifications alone, with the same objective, or to annul the abovementioned competition and hold a new competition based on qualifications and tests, but with a Selection Board composed of officials from the language services of other institutions who would be neutral and objective and give an authoritative assessment of the "perfect knowledge of the Spanish language" required of the candidates.

18 On 16 March 1989, the applicant was informed that the appointing authority had decided to appoint the three successful candidates, who were officials in the Spanish Translation Division, to three of the four vacant posts for revisers and to bring to an end his temporary posting as a reviser with effect from 28 February 1989. On 17 March 1989, the applicant submitted a second complaint, which was against those three appointments. He claimed that they were based on a list of suitable candidates which was drawn up following an irregular competition so that they were vitiated by nullity just as the competition itself was. He then claimed that he was himself a candidate for promotion with a longer period of service than two of the appointees and objective merits at least equal to those of all of them. He requested principally that he should be appointed as a reviser under the same conditions and in accordance with the same procedures as the three successful candidates or, alternatively, that their appointments should be annulled.

19 By a letter of 18 August 1989, the President of the Court of Justice informed the applicant that the Administrative Committee of the Court had decided at its meeting of 16 June 1989 to reject his complaints. According to that letter, while the Committee understood the applicant' s disappointment, it had rejected the claim that his legitimate expectations had not been protected. It had done so on the ground that, since the duration of the temporary posting was in principle limited to one year, it was only by holding a competition that the appointing authority could, in good time, structure the Spanish Translation Division, in which the appointing authority had decided, in the interests of the service, to declare a certain number of reviser posts vacant. With regard to the other objections, the letter stated that they too had been rejected by the Administrative Committee, which considered that the Selection Board in the competition had been properly composed and had not exceeded the limits of its discretion in choosing the texts set in the tests.

20 With effect from 1 January 1990, the applicant was transferred to the European Parliament. His personal file shows that he retained his classification in grade and step.

B - Procedure

21 Mr Valverde' s application was received at the Registry of the Court of First Instance on 17 November 1989. The written procedure followed the normal course.

22 Upon hearing the Report of the Judge-Rapporteur, the Court decided to open the oral procedure without any preparatory inquiry. At the request of the Court, the defendant lodged the file on Competition No CJ 32/88, except for the candidates' papers, the text of Notice of Competition No CJ 41/88 and a copy of the note of 2 February 1989 informing the applicant that he had not been included on the list of suitable candidates. The applicant' s representative in the oral procedure, Figueroa Cuenca, of the Madrid Bar, consulted those documents at the Registry.

23 The parties presented oral argument at the hearing on 5 December 1990. During the hearing the Court acquainted itself with the marks obtained by the applicant in the tests in Competition No CJ 32/88, as given above, and the applicant' s representative submitted his observations on that matter. In reply to a question put by the Court, the parties stated their views regarding the reasoning of the Selection Board' s decision not to include the applicant in the list of suitable candidates in Competition No CJ 32/88, as communicated to him by the abovementioned note of 2 February 1989. At the end of the hearing the President declared the oral procedure closed.

24 The applicant claims that the Court of First Instance should:

- declare the application admissible;

- annul the decision of the appointing authority of the Court of Justice dated 19 July 1989, notified to the applicant on 18 August 1989, rejecting his complaint of 28 February 1989, supplemented by the complaint of 17 March 1989, and consequently;

- order the appointing authority to admit that it was inappropriate to make the applicant take part in an internal competition based on qualifications and tests, Competition No CJ 32/88 ("Revisers"), and accordingly order it to appoint him as a reviser, with retroactive effect from 1 September 1988;

- annul all the steps taken in Competition No CJ 32/88, and also the appointments of officials made pursuant thereto;

- order the Court of Justice of the European Communities to pay the difference in salary withheld from the applicant since the time when he was deprived of the status of interim reviser until his definitive appointment as permanent reviser takes effect;

- order the Court of Justice of the European Communities to pay the token sum of ECU 1 as compensation for the non-material damage suffered by the applicant;

- order the Court of Justice to pay the costs.

25 The Court of Justice contends that the Court of First Instance should:

- dismiss the application as inadmissible, with the exception of the heads of claim seeking orders requiring the payment of compensation for damage;

- in any event, reject as inadmissible:

- the request that the appointing authority be ordered to admit that it was inappropriate to make the applicant take part in an internal competition based on qualifications and tests, Competition No CJ 32/88 ("Revisers");

- the request that the appointing authority be ordered to appoint the applicant as a reviser with retroactive effect from 1 September 1988;

- and the request for the annulment of all the steps taken in Competition No CJ/88, based on qualifications and tests, and also the appointments of officials made pursuant thereto;

- dismiss the remainder of the application as unfounded;

- award costs as provided for by the applicable provisions.

C - The applicant' s claims for annulment

26 Two of the applicant' s seven heads of claim, namely the second and the fourth, comprise claims for annulment. With regard to the claim for the annulment of the decision rejecting the applicant' s complaints of 28 February and 17 March 1989, it is established case-law of the Court of Justice that the action before the Court, even if formally directed against the rejection of the official' s complaint, has the effect of bringing before the Court the act adversely affecting the applicant against which the complaint was submitted (see, for example, the judgment of the Court of Justice in Joined Cases C-41/88 and C-178/88 Becker and Starquit v Parliament [1989] ECR 3807). By asking, in his two complaints, to be appointed as a reviser, the applicant contested the rejection of his application for the post declared vacant by Vacancy Notice No CJ 41/88. The present action therefore concerns primarily that decision. The fourth head of claim comprises two claims for annulment, which also appear in the applicant' s complaints and which concern, respectively, the steps taken in Competition No CJ 32/88 and the appointments made pursuant thereto.

27 The applicant bases those three claims for annulment on eight pleas in law: firstly, breach of the principle of proper administration and infringement of Articles 7 and 29 of the Staff Regulations; secondly, breach of the principle of the protection of legitimate expectations; thirdly and fourthly, infringement of Article 45(1) and (2) of the Staff Regulations; fifthly, infringement of Council Regulation (EAEC, EEC, Euratom) No 3517/85 of 12 December 1985; sixthly, infringement of the third paragraph of Article 3 of Annex III to the Staff Regulations; seventhly, misuse of powers, and eighthly and finally, a "serious error" on the part of the Selection Board regarding the texts chosen for two of the written tests. In addition, it falls to the Court of First Instance to consider of its own motion the statement of the reasons for the Selection Board' s decision to refuse to include the applicant on the list of suitable candidates drawn up following Competition No CJ 32/88.

1. The claim for the annulment of the implied decision rejecting the applicant' s application for the post referred to by Vacancy Notice No CJ 41/88

(a) The admissibility of the claim

(aa) The course of the pre-litigation procedure

28 It should be pointed out that, by applying for the post referred to by Vacancy Notice No CJ 41/88, the applicant requested the appointing authority to adopt a decision in his regard. The note by which the applicant submitted his application therefore amounts to a request within the meaning of Article 90(1) of the Staff Regulations without its being necessary for the note to refer expressly to that provision (see the judgment of the Court of Justice in Case 178/80 Bellardi-Ricci v Commission [1981] ECR 3187, paragraph 9).

29 The abovementioned request by the applicant, which was received by the Personnel Division of the Court on 3 November 1988, was not rejected by the decision to hold Competition No CJ 32/88 since that decision made no mention of any applications for promotion. Consequently, the rejection was only implied and came into effect on expiry of the period of four months provided for under Article 90(1) of the Staff Regulations, that is to say on 3 March 1989. It follows that the complaint submitted by the applicant on 28 February 1989 against, inter alia, the implied decision rejecting his request for promotion, was premature.

30 However, on 17 March 1989 the applicant submitted a second complaint in which he claimed that he was a "candidate for promotion" and by which he requested, in substance, that the appointing authority reverse its implied decision not to promote him. Although that second complaint was principally against the appointments of other officials following Competition No CJ 32/88, it expressly referred to the first complaint and therefore also concerned the implied decision rejecting the applicant' s application for the post of reviser. The second complaint was expressly rejected by the decision of the Administrative Committee of the Court of Justice which was communicated to the applicant on 18 August 1988.

31 It follows that the present claim for annulment was in fact preceded by a pre-litigation procedure in compliance with Article 90 of the Staff Regulations.

(bb) The interest of the applicant in bringing an action

32 The defendant institution is of the opinion that the applicant' s interest in bringing an action was "considerably weakened" by his transfer to the Parliament. It admits that, according to the case-law of the Court of Justice (judgment in Case 155/78 Miss M. v Commission [1980] ECR 1797), being appointed as an official in another institution after bringing an action does not in itself preclude the existence of such an interest. It contends, however, that the situation of the applicant can be distinguished from that of the applicant in Case 155/78 by reason of the fact that in his case the moral element present in that case, namely the interest in the removal of all trace of a declaration of psychological unfitness, is absent. The defendant also contends that if the applicant' s application is granted, it is difficult to see how he could be appointed, in his present situation outside the Court of Justice, to a post within the Court of Justice to which he wished to gain access by means of an internal competition. According to the defendant institution, the applicant therefore has an interest only in claiming compensation for the damage which he considers he has suffered.

33 The applicant replies that it is not possible to speak of a greater or lesser legitimate interest of an individual in relation to the bringing of an action. According to the applicant, such an interest either exists or it does not, and he points out that the defendant institution, for its part, acknowledges the existence of such an interest. The applicant adds that he was not seeking to obtain a promotion by means of an internal competition which, according to him, was unlawful, but to be promoted "in the same way as the vast majority of earlier generations of revisers ..., that is to say by means of an impartial promotion on the basis of impartial observation and an assessment of their daily work".

34 It must be pointed out that it is not possible to infer from the judgment in Case 155/78, cited above, that a moral element must be present in order for the applicant to retain, after his transfer to the European Parliament, an interest in requesting the annulment of the decision of the appointing authority of the Court of Justice rejecting his application. In the abovementioned case, the Court of Justice was also called upon to rule on the argument that if a candidate rejected by the defendant institution was appointed to a post in another institution, he would be deprived of his interest in bringing an action because the appointment would open up the possibility of a transfer and thus permit him to obtain the same position that he would have had if his candidature had been successful. The Court of Justice considered that the hypothetical nature of that prospect was not sufficient to preclude an interest in bringing an action. That reasoning is all the more applicable in the present case as the applicant' s transfer to the Parliament with maintenance of his classification in Grade LA 6 cannot be considered to have placed him in a position equivalent to the one in which he would have been if he had been appointed as a reviser in Grade LA 5 at the Court of Justice. Moreover, that would also be the case if he had been promoted in the meantime to LA 5 at the Parliament (see the judgment of the Court of Justice in Case 293/87 Vainker v Parliament [1989] ECR 23, paragraph 12).

35 With regard to the argument that the applicant has no interest in bringing an action because after he had been transferred to the Parliament it was no longer possible for the necessary measures to be taken to comply with any judgment declaring void an act of the institution, pursuant to Article 176 of the EEC Treaty, it has been consistently held that an official may contest a decision of the appointing authority under Articles 90 and 91 of the Staff Regulations only if he has a personal interest in the annulment of the contested measure (see, for example, the judgment of the Court of Justice in Joined Cases 81 to 88/74 Marenco v Commission [1975] ECR 1247, paragraph 6). In particular, it has been held that an official has no such interest when the proceedings are brought against a decision to appoint another candidate to a post to which the applicant himself cannot be appointed (see, for example, the judgments of the Court of Justice in Case 126/87 Del Plato v Commission [1989] ECR 643, paragraph 20 and Case 111/83 Picciolo v Parliament [1984] ECR 2323, paragraph 29).

36 In the present case, however, account must taken of the fact that the applicant, who remains an official of the Communities, could still be appointed to a post in the Court of Justice by means of a transfer pursuant to Article 29(1)(c) of the Staff Regulations. Accordingly, the Court considers that to hold that the applicant' s transfer to the Parliament has now made it impossible to take the necessary measures to comply with any judgment declaring void an act of the institution would be to interpret Article 176 of the EEC Treaty too restrictively. Consequently, the applicant' s interest in bringing an action was not affected by his transfer to the Parliament. The Court therefore finds that, at this stage of the argument, no objection precludes the admissibility of this claim.

(b) The pleas in law put forward in support of the claim

37 Four of the eight pleas in law adduced by the applicant concern only the regularity of the procedure in Competition No CJ 32/88 and therefore have no bearing on the question whether the present claim for the annulment of the decision refusing to promote the applicant to a post of reviser without his having to pass a competition organized for that purpose, is well founded. The four pleas relating to this claim must be considered in the following logical order: firstly, the plea based on infringement of Article 45(1) of the Staff Regulations and on breach of the principle of equal treatment; secondly, the plea based on infringement of Article 45(2) of the Staff Regulations; thirdly, the plea based on infringement of the principle of proper administration and of Articles 7 and 29 of the Staff Regulations; fourthly, the plea based on breach of the principle of the protection of legitimate expectations.

(aa) The plea based on infringement of Article 45(1) of the Staff Regulations and on breach of the principle of equal treatment

38 The applicant considers that he should have been promoted, pursuant to the abovementioned provision, two years after his appointment as a probationary official, in other words with effect from 1 September 1988. The applicant expresses his disagreement with the case-law of the Court of Justice (judgment in Joined Cases 20 and 21/83 Vlachos v Court of Justice [1984] ECR 4149, paragraph 18 and the order in Case 248/86 Brueggemann v ESC [1987] ECR 3963, paragraph 7), according to which the period of two years provided for in Article 45(1) of the Staff Regulations starts to run from the establishment of an official. The applicant seeks to show that his argument is well founded, first of all, by means of a grammatical and linguistic analysis of the five language versions of Article 45(1). He deduces from the position of the phrase "a partir de su nombramiento definitivo" (from the date of their establishment), in the Spanish version, and from its equivalent in the Italian text, that that clause concerns only officials appointed to the starting grade in their category or service. He considers that that meaning emerges especially clearly from the German and English versions of Article 45(1).

39 On the basis, secondly, of a teleological analysis of Article 45(1) the applicant argues that the aforementioned provision is designed to bestow a privilege on an official who enters a Community institution at the starting grade in the category to which he belongs by giving him an exceptional advantage of several months. He observes that an official recruited at Grades A 7 or LA 7 must wait only six months after the end of his nine-month probationary period before he is eligible for promotion, which represents a period of service of 15 months in total. In contrast, according to the interpretation that the Court of Justice gave to that provision in its judgment in Vlachos, cited above, an official recruited at a higher grade must wait 33 months, in other words 18 months longer. That imbalance does not appear logical to the applicant, who also claims that an appointment at Grade 6 or LA 6 is made only if there is genuine evidence that the official in question possesses special experience or knowledge. Consequently, his arguments cannot be refuted by the assertion that by starting his career in Grade LA 6 he had already received a sufficient advantage.

40 The applicant then claims that in the system established by Chapter 3 of Title III to the Staff Regulations, Article 45 immediately follows Article 44, according to which every two years an official' s career progresses automatically, that is to say he advances to the next step in his grade. The applicant infers from the foregoing that that two-year period is the standard period for advancement. In his view, there is no justification for delaying by an additional nine months the promotion of an official who, because he is older and more experienced, was recruited at a higher grade than the starting grade while another official who is younger and less experienced is accorded an advantage of nine months in relation to the abovementioned standard period for advancement.

41 Finally, the applicant claims that the interpretation of Article 45(1) of the Staff Regulations which was relied on as against him constitutes a breach of the principle of equal treatment in relation to the officials of certain institutions since the Commission and the Parliament consider that the period of two years provided for by Article 45(1) starts to run from the start of the official' s probationary period. He asked the Court to request the administrations of those two institutions to provide information on their practices as regards the implementation of Article 45(1) of the Staff Regulations. In the same context, he asked the Court to order the Personnel Division of the Court of Justice to produce the original version of the minutes of a meeting of the Heads of Administration on that matter, an extract from which appears, in the form of a copy, in an annex to his application.

42 The defendant institution relies on the case-law of the Court of Justice in support of its contention that, in order to be promoted, an official must have spent a minimum period of two years in his grade after establishment.

43 In its rejoinder the defendant institution also contends that the plea was submitted out of time. The applicant, by making that plea, is accusing the appointing authority of not having promoted him in response to the request to be promoted that he made on 28 October 1988 by submitting his application for the post declared vacant by Notice No CJ 41/88. A simple comparison of the dates shows, according to the defendant institution, that the plea was made out of time.

44 With regard to the admissibility of that plea, the Court found above (paragraph 30) that the applicant submitted, within the time allowed, a complaint against the refusal to promote him to the post declared vacant by Notice No CJ 41/88. It is true that in the aforementioned complaint of 17 March 1989 the applicant did not expressly claim that Article 45(1) of the Staff Regulations had been infringed. However, it is established case-law that, in staff cases, the forms of order sought cannot have a subject-matter other than that of the claims raised in the complaint or put forward heads of claim based on matters other than those relied on in the complaint. Those heads of claim may be developed however by the submission of pleas in law and arguments which need not necessarily appear in the complaint but which are closely linked to it (see, for example, the judgment of the Court of Justice in Case 242/85 Geist v Commission [1987] ECR 2181, paragraph 9). The applicant claimed in his complaint that he was a "candidate for promotion" and in that regard emphasizes the time that he has spent in his grade. Thus he relies in his complaint on an interpretation of Article 45(1) of the Staff Regulation which is identical to the one which he subsequently advanced in the application. Consequently, the present plea is admissible.

45 On the question whether that plea is well founded, the Court has closely analysed the wording of Article 45(1) of the Staff Regulations. That analysis, however, has revealed no factor of such a kind as to suggest that the interpretation given to that provision by the Court of Justice in its case-law is inconsistent with the wording of the provision. That interpretation, according to which the minimum period in a grade required under the Staff Regulations in order to be eligible for promotion is calculated from the establishment of the official, whether recruited at the starting grade in the service to which he belongs or at another grade (see the judgment of the Court of Justice in Joined Cases 20 and 21/83, cited above, and the order in Case 248/85, cited above), corresponds in fact more closely to the text of Article 45(1) of the Staff Regulations than the contrary interpretation of the applicant. The juxtaposition in the same sentence of a six-month and a twelve-month period in a grade which must have been completed by officials appointed to the starting grade and other officials, respectively, proves that the two periods start to run from the same event, namely from the establishment of the official. That conclusion is in no way contradicted by a comparative analysis of the provision at issue in the different language versions relied on by the applicant.

46 With regard to the purpose of Article 45(1) of the Staff Regulations, the aforementioned juxtaposition also shows that the provision in question seeks to grant to officials appointed to the starting grade in their service or category an advantage of 18 months over other officials with regard to eligibility for a first promotion. It should be added that Article 44 concerns only the period in a grade required for advancement to the next step in a grade. Contrary to the assertions of the applicant, that provision does not contain a standard period for promotion which could change the rules of Article 45 on the minimum period which an official must complete in a grade in order to be eligible for promotion. It does not preclude the Staff Regulations from requiring an official appointed to a higher grade than the starting grade to complete two years in that grade after establishment before he becomes eligible for promotion.

47 It follows that the applicant, who was appointed as a probationary official with effect from 16 September 1986 and as an established official with effect from 16 June 1987, did not become eligible for promotion either on 1 September 1988 - the date to which he refers and on which he advanced to the next step in his grade - or on 16 September 1988, but on 16 June 1989 when the two-year period from the date of his establishment expired.

48 The applicant cannot rely on the principle of equal treatment to challenge that method of applying Article 45(1) of the Staff Regulations in his case. Even if other institutions interpreted that provision in such a way that they regarded as eligible for promotion officials who have completed only two years in their grade from the date of their appointments as probationary officials, it follows from the foregoing considerations that such a practice is contrary to the Staff Regulations. Moreover, the applicant cannot rely, in support of his claim, on an unlawful act committed in favour of another (see the judgment of the Court of Justice in Case 134/84 Williams v Court of Auditors [1985] ECR 2225, paragraph 14).

49 Consequently, and without there being any need to order the measures of inquiry requested by the applicant with regard to the practices adopted by the other institutions, the Court finds that the plea in law based on an infringement of Article 45(1) of the Staff Regulations is unfounded.

(bb) The plea based on infringement of Article 45(2) of the Staff Regulations

50 The applicant claims that the Court of Justice should have appointed him as a reviser pursuant to Article 45(2) of the Staff Regulations by reason of his inclusion on the reserve list drawn up following Competition No CJ 24/86 (Head of Division of Spanish Translation). He considers that it follows from a teleological interpretation of Article 45(2) of the Staff Regulations - the purpose of which is clearly, in his view, to ensure that candidates are qualified to fill vacant posts - that it is illogical to argue that a person who, in the context of a competition, has been declared qualified to fill an LA 3 post, is not qualified to fill an LA 5 post, which involves the same duties, less those of management. In support of that argument the applicant relies on the principles in eo quod plus sit, semper inest et minus and non bis in idem. He claims that by adopting an implied decision to reject his application for one of the posts declared vacant by Notice No CJ 66/87, the appointing authority infringed Article 45(2) of the Staff Regulations.

51 In his reply the applicant also argues that it is nowhere written that the effects of a competition are limited to the posts which the competition was organized to fill. He considers that an explanation is called for, in the light of the opinion advanced by the defendant institution in this regard, as to why there was a reserve list in Competition No CJ 24/86 when the competition was organized to fill a single post for which a list of suitable candidates would have more than sufficed. The applicant maintains, moreover, that the fact that Competition No CJ 24/86, in which he was a successful candidate, was a competition based on qualifications, whereas Competition No CJ 32/88 was a competition based on qualifications and tests, is irrelevant since there is no legal provision or case-law on which it is possible to base a claim that a competition based on qualifications and tests is superior to a competition based on qualifications. Finally, he points out that the judgment of the Court of Justice in Case 143/82 (Lipman v Commission [1983] ECR 1301, paragraph 10) - according to which a candidate in a competition cannot usefully rely, in order to contest the decision of the Selection Board not to admit him to the tests, upon conditions of admission to another Commission competition which was organized by the same institution for the purpose of filling posts in the same career bracket, but according to different procedures - has nothing at all in common with the present case. According to the applicant, the only link between the competitions referred to in the judgment in Case 143/82 was that they concerned Category A posts, but in different specialist areas, each requiring different qualifications. He points out that the competitions at issue in the present case are, in contrast, very closely linked.

52 The defendant institution contends that the effects of a competition are limited to the posts which they have been organized to fill. It considers that that is a general principle which is fundamental to the functioning of the entire system of competitions for filling posts of officials and it contends that such a system would become chaotic if the results of one competition continued to produce effects indefinitely, thereby affecting and predetermining the results of subsequent, distinct competitions.

53 The defendant institution also points out that Competition No CJ 32/88 was a competition based on qualifications and tests and the applicant failed the tests part, whereas Competition No CJ 24/86 was a "mere competition on the basis of qualifications". It considers that that difference between the two competitions explains why the applicant passed one of them but not the other. In its rejoinder, it states that it did not intend to maintain that a competition based on qualifications and tests is superior to a competition based on qualifications, but simply that they are two different selection procedures and that accordingly it is impossible to transpose the results in Competition No CJ 24/86 into the context of Competition No CJ 32/88, a competition based on qualifications and tests. It added that the inclusion of the applicant on the reserve list in Competition No CJ 24/86 could be "seen in its proper perspective if it is borne in mind that all the candidates who took part in the competition were included on the list, a decision which was easy to adopt since it displeased no-one and had no effect on the functioning of the service". Finally, it contended that that plea was submitted out of time since the failure to comply with Article 45(2) of the Staff Regulation relied on by the applicant was due, according to him, to the implied rejection of his application for one of the posts declared vacant by Notice No CJ 66/87.

54 With regard to the question whether the plea is out of time, it should be pointed out that, although the applicant refers to Vacancy Notice No CJ 66/87 when submitting the plea, the present proceedings were brought against the decision not to promote him to the post referred to in Vacancy Notice No CJ 41/88. However, the fact that the applicant did not challenge the decision to reject his application for one of the posts declared vacant by the earlier notice - a decision which, according to the applicant, was vitiated by the same irregularity as the acts contested by the present proceedings - does not prevent him, in the context of those proceedings, from relying on that plea.

55 With regard to the question of whether the plea is well founded, it must be stated that Article 45(2) of the Staff Regulations merely makes transfer from one service to another or promotion from one category to another conditional on passing a competition. However, Article 45(2) does not mention the problem of promotion from one grade to another within the same category where the official has not been in the grade long enough to be eligible for promotion, which is the matter at issue in the present case. Article 45(2) therefore has no bearing on that matter.

56 The Court considers that by the present plea the applicant claims in substance that the appointing authority ignored the possibility of appointing him to the vacant post of reviser, pursuant to Article 29(1)(b) of the Staff Regulations, on the basis of his having passed Competition No CJ 24/86 for the post of Head of Division. That plea must be considered together with the next plea by which the applicant alleges, inter alia, that Article 29 of the Staff Regulation was infringed.

(cc) The plea based on breach of the principle of proper administration and on infringement of Articles 7 and 29 of the Staff Regulations

57 In support of this plea, the applicant claims that, rather than filling vacant reviser posts permanently, pursuant to Article 29 of the Staff Regulations, the defendant institution settled for a procedure for the selection of temporary revisers, which, while it possessed the substantive characteristics of a competition, was not a competition from a procedural point of view. Moreover, he accuses the appointing authority of having maintained the temporary postings for more than a year, in breach of the second paragraph of Article 7(2) of the Staff Regulations, on the false pretext that the officials who were capable of filling the revisers posts were not eligible for promotion since they had not been in their posts the necessary two years since establishment. The applicant considers that the fact that he himself benefited from this extension does not prevent him from challenging it in view of the fact that an official cannot depart from the organization of work decided on by the appointing authority. In addition, he also claims that he asked the Director of Spanish Translation on a number of occasions to resolve the matter in accordance with the rules laid down in the Staff Regulation but that not the slightest attention was paid to his requests. The applicant points out that the appointing authority could have held a regular competition from the beginning of 1987, after having published three vacancy notices for revisers posts. In his reply, the applicant added that, while it was true that the appointing authority did hold Competition No CJ 11/85 for revisers, it was not until three years later that it held Competition CJ 32/88. He asked the Court to order the administration of the defendant institution to produce the originals of all the documents in its files relating to the procedure for the selection of temporary revisers held during 1987 in the Spanish Translation Division.

58 In response, the defendant institution makes the preliminary observation that the applicant greatly exaggerates the virtues of the procedure for the selection of temporary revisers and asks the Court to examine Mr Cervera, Head of the Court' s Spanish Translation Division, as to the nature of that procedure. At the hearing it added that it could not give preference to such a procedure over a procedure which was held according to the rules laid down in the Staff Regulations, even if the selection made was genuine and rigorous. The defendant institution also points out that it held Competition No CJ 11/85 for the purpose of drawing up a reserve list of revisers. In reply to the applicant' s criticism that it was not until three years after that competition that a second competition was held, the Court of Justice states that the decision concerning the date on which it is appropriate to commence a competition lies within its discretion in matters relating to the organization of its services. It adds that, in view of the fact that an insufficient number of suitable candidates emerged from Competition No CJ 11/85 it was reasonable to wait for a relatively long time so that candidates who were capable of filling posts of reviser could be trained and be in a position to submit applications.

59 The defendant considers that the extension of the duration of the temporary postings beyond the limits laid down by Article 7(2) of the Staff Regulations has no bearing on the outcome of the present proceedings and that the applicant, who profited from the extension, cannot now criticize it. The defendant observes that the fact that it was impossible for the applicant and his colleagues to be promoted to a higher grade because they had not been in their grades long enough to be eligible for promotion cannot be described as a fallacious pretext for maintaining the temporary postings.

60 It must be considered whether the evidence adduced by the applicant is such as to establish the existence of a defect in the decision not to promote him to the post of reviser which was the subject-matter of Vacancy Notice No CJ 41/88.

61 First of all, it should be pointed out that the procedure for choosing temporary revisers in which the applicant successfully participated was not held in accordance with the procedures on competitions laid down in the Staff Regulations. The Staff Regulations do not prescribe how the appointing authority is to choose the officials called upon to occupy temporarily posts in a higher career bracket. Nor, on the other hand, do they contain any provision according to which a selection procedure held for that purpose is capable of producing legal effects in relation to the promotion of the officials in question. Consequently, the effects of such a procedure cannot be deemed to be the same as those of a competition with regard to the possibility of promoting officials who have not completed the minimum period in their grade required under Article 45(1) of the Staff Regulations. That finding is not affected in any way by the fact that the temporary postings were maintained beyond the limits laid down in the Staff Regulations. Such an extension, which is incompatible with the provisions of Article 7(2) of the Staff Regulations, cannot produce legal effects which exceed those of a regular temporary posting. Since Article 7 of the Staff Regulations did not make it possible for the appointing authority to promote the applicant, it follows that the Court need not examine the merits of the procedure for selecting revisers or order the measures of inquiry requested by the parties in that regard. GROUNDS CONTINUED UNDER DOC.NUM : 689A0156.1

62 With regard to the infringement of Article 29 of the Staff Regulations and of the principle of proper administration, the applicant does not appreciate the legal consequences flowing from his inclusion on the reserve list drawn up following Competition No CJ 24/86. It is true that when the appointing authority adopts a decision concerning the filling of posts for which a competition has been held, it is required to take into account the results of that competition (see, for example, the judgment of the Court of First Instance in Case T-37/89 Hanning v Parliament [1990] ECR II-463, paragraph 48). However, those results do not permit the appointing authority to appoint an official on the reserve list to a post which the competition was not held to fill (see, for example, the judgment of the Court of Justice in Joined Cases 112, 144 and 145/73 Campogrande and Others v Commission [1974] ECR 957, at p. 977). If there were no officials eligible for promotion and the appointing authority consequently appointed the successful candidates in an internal competition held to fill a specific post, to other posts, no-one else would have an opportunity of proving in a new competition that he had the qualifications necessary to fill one of those posts. The appointing authority would thus exclude from the field of candidates the officials who did not participate in the first competition, either because they had not yet been recruited or because they expressed no interest in the post then vacant. Such considerations have absolutely no bearing on whether or not those persons are qualified to fill a different post whose specific nature could not have been taken into account in the earlier competition procedure. The exclusion of potentially competent candidates in that way, on the basis of a criterion which is essentially contingent and extraneous to the merits of those candidates, might exclude persons whose qualifications for the post to be filled are equal or even superior to those of the successful candidates of an earlier competition. Such a result would be manifestly contrary to the purpose of the first paragraph of Article 27 and Article 29(1) of the Staff Regulations, namely the recruitment of officials of the highest standards of ability (see the judgment of the Court of First Instance in Case T-56/89 Bataille and Others v Parliament [1990] ECR II-597, paragraph 48).

63 Consistent with that purpose, moreover, is the common practice of limiting the duration of the validity of reserve lists drawn up following competitions in order to give new candidates the opportunity of making an attempt after a certain period of time has elapsed. It should be added that the duration of the validity of the reserve list on which the applicant was included and which was drawn up in September 1987 following Competition No CJ 24/86 was thus limited to one year, subject, however, to the possibility of extension. So if a reserve list cannot be used, after the duration of its validity has expired, even in order to appoint a successful candidate to the particular post which the competition was held to fill, the foregoing considerations preclude a fortiori the use of such a list for the purpose of filling other posts, regardless of the duration of its validity.

64 The fact that, as the applicant claims, the duties attaching to the post of Head of Division, for which he passed a competition, are similar to those attaching to the post of reviser, is irrelevant in that regard since the posts are different and call for qualifications which are at least partly different. Consequently, regardless of the merits of the procedure in Competition No CJ 24/86, neither the alleged principle of non bis in idem nor the argument according to which in eo quod plus sit, semper inest et minus can be relied on to as grounds for the applicant' s promotion on the basis of the aforementioned competition to a post of reviser.

65 That being so, the defendant institution was right to consider that the applicant could not be appointed as a reviser without his having taken part in a new competition held for that purpose.

66 With regard to the other criticism made by the applicant in the context of that plea, the appointing authority cannot be criticized in the circumstances of the present case for having waited a relatively long time before holding a competition for the purpose of appointing revisers so as to increase the number of sufficiently experienced candidates. The appointing authority has a wide discretion for the purpose of finding the candidate with the highest standard of abilities (see the judgment of the Court of Justice in Case 135/87 Vlachou v Court of Auditors [1988] ECR 2901, paragraph 23). For the same reason, the fact that, before it held the competition, the appointing authority called upon certain officials to perform the duties of reviser temporarily and thereby gave them the opportunity of acquiring some experience in that field, does not justify the conclusion that Article 29 of the Staff Regulations or the principle of proper administration were infringed.

67 It follows that the plea in law based on breach of the principle of proper administration and on infringement of Articles 7 and 29 of the Staff Regulations must be rejected.

(dd) The plea based on breach of the principle of the protection of legitimate expectations

68 In support of this plea the applicant claims that during the oral tests in Competition No CJ 12/85 Mr Koegler, the Director of the Translation Directorate at that time, had promised him that he would be rapidly promoted and that that promise was confirmed in writing in the abovementioned memorandum of 11 November 1986 in which Mr Elizalde, the acting Head of Division, stated that the temporary reviser posting would "result in a promotion at the end of the two years provided for by the Staff Regulations". The applicant claims that it has long been customary practice at the Court of Justice to promote lawyer-linguists to the next highest career bracket using the method promised by Mr Koegler, without using a selection procedure as elaborate as the one applied in the present case. The applicant admits that Mr Elizalde' s memorandum was a circular that was not addressed to him personally, but he points out that he was one of the addressees and that he took part in the selection procedure in question, fulfilling all the conditions for participation laid down in the memorandum.

69 The applicant relies, in addition, on five acts of various institutions of the administration which he claims attest to his abilities as a reviser. The five acts in question are: firstly and secondly, two memoranda from the acting Head of Division proposing him as a temporary reviser; thirdly, the resulting decision of the appointing authority; fourthly, his inclusion, by the Selection Board in the competition held for the purpose of filling the post of Head of the Spanish Translation Division, on the reserve list in that competition; fifthly and finally, the appointing authority' s implied decision to extend his temporary posting, regardless of whether it was illegal, on the expiry of the time-limit prescribed in the Staff Regulations. He considers that those acts indicated that the appointing authority had accepted that he should perform the duties of reviser and that they were sufficient to create a legitimate expectation on his part. At the hearing, he also claimed that the opinion in which, on 3 August 1988, the Joint Committee expressed its opposition to the holding of a competition based on qualifications and tests confirms that there was, on his part, a justified expectation of promotion.

70 The applicant charges the defendant with not having kept the promises which it made to him and which were confirmed by the abovementioned subsequent acts and, instead, of having held Competition No CJ 32/88 "at the end of which the Selection Board took great care to exclude the applicant by placing him in a worthless fourth position and accepting only three candidates", thus attributing more importance to "an alleged objectivity concerning no more than 12 or so pages of translation/revision" than to the work carried out by the applicant over three years, work which concerned several thousand pages and which had been expressly approved by his superiors at all levels.

71 The applicant offered to adduce proof of his allegations concerning the promises which were made to him by evidence, as witnesses, from Mr Koegler, a former Director of Translation, Mr Keeling, an official of the Court of Justice and a member of the Selection Board in Competition No CJ 12/85, and Mr Elizalde, a Commission official and former Head of the Court' s Spanish Translation Division.

72 In reply to those arguments, the defendant institution contends, firstly, that the statements that the applicant characterizes as promises were merely a description, for information purposes, of the possibilities opened up by the career of lawyer-linguist to which the applicant had acceded following Competition No CJ 12/85. That interpretation is borne out, according to the institution, inter alia, by the use of the conditional mood in the note of Mr Elizalde relied on by the applicant and by the fact that that note was not addressed to the applicant personally and was merely a circular in which he could not have found special guarantees concerning his subsequent promotion. The defendant institution states that the other circumstances listed by the applicant only constitute normal variations in the work he performs in the Spanish Translation Division and that he knew, or should have known, that his promotion was dependent on a selection procedure governed by the Staff Regulations in which neither the duties which he performed previously as an official nor anything said by anyone could ensure his success. At the hearing, the defendant institution added that the applicant could not rely on the (irregular) extension of his temporary posting in order to take advantage of the principle of the protection of legitimate expectations.

73 The defendant institution cites the case-law relating to the application of the abovementioned principle in staff cases, according to which promises which do not take account of the provisions of the Staff Regulations under which a competition is necessary for appointment to any post cannot give rise to a legitimate expectation on the part of the persons concerned (judgments of the Court of Justice in Case 162/84 Vlachou v Court of Auditors [1986] ECR 481, paragraph 6, and Case 228/84 Pauvert v Court of Auditors [1985] ECR 1969, paragraph 12). It considers that that is all the more applicable in the present case as it was not an actual promise that was given but mere information, which, what is more, did not emanate from the appointing authority, as it did, in contrast, in Pauvert, cited above.

74 In its rejoinder, the defendant institution also contends that the plea in law was made out of time since the applicant does not claim that the breach of the principle of the protection of legitimate expectations was the result of the decision adopted in his regard by the Selection Board in Competition No CJ 32/88 but that it was the result of the failure to appoint him as an established reviser in September 1988.

75 With regard to the admissibility of that plea, it should be pointed out that that plea was raised by the applicant against the implied decision to reject his application for the post referred to by Vacancy Notice No CJ 41/88 and that he contested that notice within the prescribed time-limit. Consequently, the mere fact that in his statement of the plea the applicant charges the defendant institution with not having promoted him in September 1988 cannot mean that the plea as a whole was submitted out of time.

76 As regards the question whether the plea in law is well founded, it is clear from the examination of the three preceding pleas that the applicant was not eligible for promotion to a post in Grade LA 5 at the date on which the implied decision to reject his application was adopted. Consequently, any promise to appoint him, even though he was not eligible, to a post of reviser would have been contrary to Article 45 of the Staff Regulations. The Court of Justice has consistently held that promises which do not take account of the provisions of the Staff Regulations cannot give rise to a legitimate expectation on the part of an official (see the judgments of the Court of Justice in Vlachou and Pauvert, cited above, and the judgment of the Court of First Instance in Case T-123/89 Chomel v Commission [1990] ECR II-131).

77 Moreover, it also follows from the allegations made by the applicant himself that none of the statements on which he relies contemplated the possibility of a promotion without completion of the minimum period in a grade necessary for promotion under Article 45(1) of the Staff Regulations. Mr Elizalde' s circular, on which the applicant bases his arguments, even stated expressly that the "consolidation" of the temporary postings into promotions was contingent on the expiry of the period laid down in the Staff Regulations.

78 It follows that neither the statements of the former Director of Translation nor the circular of the acting Head of Division nor the various acts of the administration relied on by the applicant were such as to give rise on his part to a legitimate expectation that he would be promoted without his having fulfilled the relevant conditions laid down in the Staff Regulations.

79 Consequently, and without its being necessary to examine witnesses as to the content of the statements allegedly made to the applicant, it must be held that the defendant institution did not infringe the principle of the protection of legitimate expectations in adopting an implied decision rejecting the applicant' s application for the post of reviser.

80 It follows from the foregoing considerations that the applicant' s claim for the annulment of the implied decision rejecting his application for the post referred to in Vacancy Notice No CJ 41/88, is unfounded.

2. The claim for the annulment of all the steps in Competition No CJ 32/88

(a) The admissibility of the claim

81 The defendant institution is of the opinion that the claim that the Court should "annul all the steps taken in Competition No CJ 32/88 based on qualifications and tests" is inadmissible. It considers that the purpose of the present proceedings is confined to determine whether or not the decision adopted vis-à-vis the applicant in the context of that competition is valid. According to the defendant institution, the applicant has no legitimate interest in seeking anything other than the annulment of the decision concerning him. It contends that the applicant may no longer contest the holding of the competition in question. According to the case-law of the Court of Justice (judgments in Cases 294/84 Adams v Commission [1986] ECR 977, paragraph 17 and Joined Cases 64, 71 to 73 and 78/86 Sergio v Commission [1988] ECR 1399, paragraph 15), he ought to have made any challenge within three months of publication of the competition notice by submitting a complaint under Article 90(2) of the Staff Regulations.

82 The applicant claims that the competition at issue is automatically void because it was held in breach of Council Regulation (ECSC, EEC, Euratom) No 3517/85 of 12 December 1985 introducing special and temporary measures applicable to the recruitment of officials of the European Communities as a result of the accession of Spain and Portugal (Official Journal 1985 L 335, p. 55). He considers, moreover, that the judgments cited by the defendant institution in relation to the lateness of his application are not pertinent since, when he was taking part in the competition, he could not have known whether or not it would be held in a regular manner.

83 The applicant maintains that the annulment of the decision adopted in his regard by the Selection Board is not the only objective of his application; since the competition is void because it is intrinsically unlawful owing to the composition of the Selection Board and the misuse of powers committed by the only member of the Selection Board qualified to serve on it, all the acts based on the competition, including the list of suitable candidates, must be annulled.

84 It is necessary to examine, firstly, the applicant' s argument that Competition No CJ 32/88 is automatically void. That argument corresponds in substance to the rule, recognized in the case-law of the Court of Justice, according to which, in exceptional circumstances, a measure may be deemed to be non-existent if it exhibits particularly serious and manifest defects (see, for example, the judgments of the Court of Justice in Case 15/85 Consorzio Cooperative d' Abruzzo v Commission [1987] ECR 1005, paragraph 10 et seq. and Joined Cases 1 and 14/57 Usines à Tubes de la Sarre v High Authority [1957] ECR 105, at p. 113). For an act to be thus deprived of the presumption of validity which the Treaties attach, for obvious reasons of legal certainty, even to irregular acts of the institutions, the irregularity must be so gross and so obvious that it goes far beyond a "normal" irregularity resulting from an erroneous assessment of the facts or from a breach of the law (see the judgment of the Court of Justice in Consorzio Cooperative d' Abruzzo, cited above, and the Opinion of Mr Advocate General Mischo in the same case, p. 1014, at p. 1019).

85 The alleged unlawfulness of Competition No CJ 32/88 flows, according to the applicant, from the breach of a rule contained in secondary legislation, namely Regulation No 3517/85. In response to the special situation brought about by the accession of Spain and Portugal to the Communities, that regulation introduced a temporary recruitment system derogating from certain mandatory provisions of the Staff Regulations, for example, those which provide that account must not be taken of the nationality of candidates and that internal recruitment procedures must be given priority. An infringement of a such regulation, whose scope is limited both with regard to time and to subject-matter and which establishes exceptions to certain fundamental principles of the Staff Regulations, is not one of the exceptional cases which permit an irregularity to be described as so serious and so flagrant that it renders the act affected by it non-existent. Moreover, any irregularities concerning the composition of the Selection Board or the manner in which it performed its tasks are also not such as to render all the steps in a competition non-existent.

86 Furthermore, if the applicant had wished to contest the decision to commence the competition or the content of the competition notice, he should have submitted a complaint within three months of the publication of the competition notice (see the judgments of the Court of Justice in Case 294/84, cited above, paragraph 17 and Joined Cases 64, 71 to 73 and 78/86, cited above, paragraph 11 et seq.). He was not prevented from doing so by the fact that he submitted an application for the competition in question and that he was admitted to it. It is true that an applicant who has passed the first stages in a competition, which he does not contest in principle, cannot be adversely affected by all the steps in the competition (see the judgement of the Court of Justice in Case 164/87 Simonella v Commission [1988] ECR 3807, paragraph 12). However, the particular situation of the applicant, who claims that the competition at issue should not have been held before he was promoted, is different. In those particular circumstances, the applicant had a legitimate interest in challenging the notice of competition while at the same time taking part in the steps in the competition in order to protect his rights in the event that his complaint was rejected. He was therefore entitled to submit a complaint against Notice of Competition No CJ 32/88.

87 The competition notice in question was published on 25 October 1988 and the applicant submitted his application on 24 November 1988. The complaint that the applicant submitted on 28 February 1989 in which be requested the annulment of the competition procedure is therefore out of time.

88 The argument that it was impossible for the applicant to have known in good time whether or not the competition would take place in a regular manner cannot justify the delay, since it refers to the possible occurrence of irregularities in the subsequent steps in the competition. Such irregularities would not, in any event, have had any bearing on the question whether or not the very decision to hold a competition and the content of the notice of competition complied with the Staff Regulations. The information needed to answer that two-part question was known at the time when the notice was published and the applicant could have made use of it within the time-limit. It would be contrary to the principles of legal certainty, the protection of legitimate expectations and proper administration to accept that the applicant was entitled to wait for all the steps in the contested competition to have been completed and for the results to be known before he challenged the acts entailed in the holding of the competition.

89 Consequently, the present claim is inadmissible inasmuch as it seeks the annulment of the decision to hold Competition No CJ 32/88 and the annulment of the notice of competition relating thereto.

90 On the other hand, in so far as the present claim is directed against the list of suitable candidates adopted following the competition, it must be stated that a pre-litigation procedure was unnecessary (see, for example, the judgment of the Court of Justice in Case 44/71 Marcato v Commission [1972] ECR 427, p. 433 et seq.). However, as the applicant did nevertheless submit a complaint, the time-limit for bringing an action started to run, in accordance with Article 91 of the Staff Regulations, from the day on which the decision taken in response to the complaint was notified to the applicant (judgment in Case 144/82 Detti v Court of Justice [1983] ECR 2421, paragraph 17). It follows that the applicant contested the list of suitable candidates within the time-limit prescribed in the Staff Regulations.

91 However, it must be considered to what extent that list is an act capable of adversely affecting the applicant. A list of suitable candidates is the result of two distinct types of decisions adopted by the Selection Board. Firstly, the Selection Board decides to include certain candidates on the list; secondly, it refuses to include on it the other candidates who took part in the competition.

92 With regard to the candidates included on the list, the list is a measure preparatory to an appointment decision (see the judgment of the Court of Justice in Case 143/84 Vlachou v Court of Auditors [1986] ECR 459, paragraph 11). As regards the candidates not included on the list, the mere inclusion of the other candidates does not change their legal position, which is affected only by the actual appointment of another person to the post which the competition was held to fill. On the other hand, the decision not to include a candidate on the list of suitable candidates is an act adversely affecting the person in question (see the judgment of the Court of Justice in Case 144/82, cited above).

93 Consequently, the claim for the annulment of all the steps in Competition No CJ 32/88 is admissible only in so far as it concerns the refusal of the Selection Board to include the applicant on the list of suitable candidates.

(b) The pleas put forward in support of the claim

(aa) The inoperative pleas in law

94 Since the applicant failed to contest the decision to hold Competition No CJ 32/88 within the prescribed time-limit, he cannot rely on pleas in law based on the alleged irregularity of the abovementioned decision in order to seek the annulment of the decision refusing to include him on the list of suitable candidates (see the judgments of the Court of Justice in Case 294/84, cited above, and in Joined Cases 64, 71 to 73 and 78/86, cited above). Consequently, it is not necessary to consider in the present context the pleas based on breach both of the principle of proper administration and Articles 7 and 29 of the Staff Regulations and of the principle of the protection of legitimate expectations, pleas which call into question only the decision to hold the competition and which do not concern the manner in which the subsequent steps in the competition were taken.

95 With regard to the plea based on infringement of Regulation No 3517/85, the applicant claims that Article 1(2) of the regulation, according to which

"Appointments to grades A/3, A/4, A/5, LA/3, LA/4, LA/5, B/1, B/2, B/3 and C/1 shall be made after a competition on the basis of qualifications, organized in accordance with Annex III to the Staff Regulations",

is mandatory and precludes the possibility of recourse to a competition based on qualifications and tests for appointments in the higher career brackets of each category, give preference instead to competitions based on qualifications. He considers that, even though that regulation was applicable only until 31 December 1988 and the appointment decisions adopted on the basis of the contested competition were made in 1989, the defendant institution was bound by it because the posts in question had been vacant since September 1987 and the temporary appointments made to fill them ought to have ceased to produce all effects in June 1988.

96 The defendant institution contests that plea on the ground that the system of special appointments introduced by Regulation No 3517/85 is not mandatory but optional. In its rejoinder, it adds that the regulation refers only to the filling of posts of officials by means of open competitions open to candidates from outside the Community institutions. In its opinion, the authorization to derogate from the provisions of the Staff Regulations provided for in Regulation No 3517/85 could not apply to Competition No CJ 32/88, which was based on qualifications and tests, since that competition was an internal competition. Moreover, the defendant institution draws attention to the fact that no provision of Chapter 3 ("staff reports, increments and promotion") was mentioned among those from which the appointing authority may derogate by virtue of Regulation No 3517/85.

97 The plea based on the infringement of Regulation No 3517/85 concerns only the decision to hold Competition No CJ 32/88. Consequently, that plea is inoperative with regard to the decision of the Selection Board to refuse to include the applicant on the list of suitable candidates. Since the Selection Board was bound by the provisions of the notice of competition for Competition No CJ 32/88, a competition based on qualifications and tests, it is inconceivable that it should have been required to include the applicant on the list of suitable candidates in application of a regulation concerning the holding of competitions based on qualifications.

98 In addition, it must be added that Regulation No 3517/85 does not in any event impose any obligation on the institutions to hold internal competitions for the nationals of the new Member States. According to Article 1 of the regulation, provision "may" be made for vacant posts in higher grades, for example in Grade LA 5, to be filled after a competition on the basis of qualifications. The appointing authorities of the institutions were therefore not obliged to hold such a competition automatically. Moreover, Regulation No 3517/85 refers only to "appointments" to posts in Grade LA 5 and makes no mention either of promotion or of Article 45 of the Staff Regulations. Consequently, the applicant, who was already an official of the Court of Justice, had no right whatever to require a competition based on qualifications to be held on the basis of the regulation in question.

(bb) The plea relating to the composition of the Selection Board in Competition No CJ 32/88

99 The applicant claims that the candidates did not officially know the composition of the Selection Board until the start of the written test. According to the applicant, the way in which the Selection Board was composed was contrary to the letter and spirit of the third paragraph of Article 3 of Annex III to the Staff Regulations, according to which "members of the Selection Board shall be chosen from officials whose grade is at least equal to that of the post to be filled". He considers that the purpose of that provision is to ensure that all the members of the Selection Board are capable of assessing the ability of the candidates to carry out the duties relating to the post to be filled. The applicant points out that the notice of competition required candidates to have "a perfect knowledge of the Spanish language". He maintains that the Chairman of the Selection Board, Mr Fell, who is of German mother tongue, did not have a perfect knowledge of Spanish. Even if his duties as Chairman of the Selection Board consisted mainly in ensuring the harmonization of the criteria applied, it was difficult, according to the applicant, for him to perform that task with regard to a language "of which he does not have a mastery".

100 The applicant also challenges the appointment, as a member of the Selection Board, of Mr Dastis, a member of the temporary staff in Grade A 5, assigned as a legal secretary to the Chambers of a Member of the Court of Justice. Relying on the fact that Article 45(2) of the Staff Regulations in conjunction with Annex I to those regulations draws a distinction between Grade A officials and those in the language service in so far as it requires a competition for a transfer from one category to the other, the applicant alleges that an A 5 official and an LA 5 official cannot be considered to be in the same grade. He adds that candidates for category A posts are never required to have a knowledge of more than two Community languages whereas revisers must always have a knowledge of at least three languages. Finally, he claims that Article 3(3) of Annex III to the Staff Regulations does not permit members of the temporary staff to be members of selection boards in competitions.

101 The applicant deduces from the foregoing that the Selection Board was in fact composed of only one person who was validly appointed, namely the Head of the Spanish Translation Division. The applicant maintains that that person could not demonstrate the necessary objectivity by reason of the fact that he knew the language combinations and the handwriting of the candidates. At the hearing, the applicant also pointed out in that regard that he had been working as a reviser for more than a year when the tests in the competition were held and that the nature of that work prevented him from using a dictaphone or a typewriter. He points out that, since no examiner was appointed in order to resolve those problems, the objectivity which Article 3 of Annex III to the Staff Regulations seeks to guarantee was lacking in the present case, and he concludes from that that the contested competition is automatically void.

102 The defendant institution replies, firstly, that the Chairman of the Selection Board, Mr Fell, wrote his doctoral thesis on Spanish family law and that he worked for a certain period as a legal assistant at the German Chamber of Commerce in Madrid so that he has a good knowledge of the Spanish language in general and of Spanish legal terminology. It adds that his role as Chairman of the Selection Board in Competition No CJ 32/88 was to ensure that the criteria used to assess the candidates were consistent with those used in all competitions. It considers that all selection boards must include a person who is acquainted with and represents the values and traditions of the institution and its working methods and that Mr Fell was particularly suited to perform those functions owing to his long experience of legal translation.

103 The Court of Justice points out, secondly, that Mr Dastis, as a career diplomat, was required to demonstrate, in a difficult competition, at least an excellent knowledge of French and English and a good legal training. It contends that the applicant was aware of those facts and that he himself had said to his Head of Division that Mr Dastis was one of the persons most suited to be on the Selection Board in the contested competition. It asks the Court of First Instance to examine as a witness the Head of Division, Mr Cervera, as to those statements. As regards Mr Dastis' s status as a member of the temporary staff, the defendant institution refers to the case-law of the Court of Justice according to which neither the Chairman of the Selection Board nor the other members need necessarily be officials (judgments in Case 90/74 Deboeck v Commission [1975] ECR 1123, paragraph 35 and in Joined Cases 64, 71 to 73 and 78/86, cited above).

104 The defendant institution considers that the applicant' s assertion that the Selection Board included only one person who was validly appointed is a reformulation of the argument which he has advanced a number of times on the subject of Mr Cervera, according to which "he could not demonstrate the objectivity which constitutes the essential purpose of competitions based on qualifications and tests", since, inter alia, he was able to recognize the handwriting of the candidates. According to the defendant institution, the Court need not be detained unduly by that allegation, with regard to which it contends that the majority of the candidates dictate or use a typewriter. It prefers to emphasize the judgment of the Court of Justice in Case 34/80 (Authié v Commission [1981] ECR 665, paragraph 26) in which it refused to accept criticisms which concentrated, in the same way, on one of the members of the Selection Board and emphasized that such criticisms "fail to appreciate ... the nature of selection boards, which are collegial bodies operating in complete independence ... ".

105 It should be pointed out that, in order to be constituted in accordance with the provisions of the Staff Regulations and Article 3 of Annex III thereto, the selection board in a competition on the basis of qualifications and tests must be composed in such a way as to guarantee an objective assessment by the selection board of the candidates' professional qualities in their performance in the tests (see the judgment of the Court of First Instance in Joined Cases T-32/89 and T-39/89 Marcopoulos v Court of Justice [1990] ECR II-281).

106 The Court considers that the requirements which the abilities of the members of a selection board called on to assess the professional qualities of candidates for revisers' posts must satisfy are similar, but not identical, to those laid down in the Court' s judgment in Joined Cases T-32/89 and T-39/89, cited above. Firstly, the members of the selection board must have a good understanding of the language in which the candidate will be required to revise, which does not mean, however, that each member must necessarily have a perfect knowledge of that language. Secondly, they must have some legal knowledge. Thirdly, there must be some experience within the selection board of the revision of legal texts.

107 Moreover, the appointing authority and the Staff Committee have a wide discretion in assessing the abilities of the persons whom they are called on to appoint, pursuant to Article 3 of Annex III to the Staff Regulations, as members of the selection board and it is not for the Court to criticize their choice unless the limits of that discretion have not been observed.

108 In the present case, two members of the Selection Board were of Spanish mother tongue and the third had a good knowledge of that language. Two members had experience of legal translation and revision, the third was a lawyer of Spanish mother tongue and, as a legal secretary in the Chambers of a Member of the Court of Justice, had experience of working in a multi-lingual environment involving frequent use of translations. The Court finds that a selection board so composed fulfils the requirements set out above in paragraph 106 and is such as to ensure an objective assessment of the candidates' pe