Judgment of the Court (Second Chamber) of 29 September 1976. - Carmelo Morello v Commission of the European Communities. - Case 9-76.



European Court reports 1976 Page 01415

Greek special edition Page 00527

Portuguese special edition Page 00575



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

OFFICIALS - APPEALS - MEASURE CONTESTED ON THE GROUND OF ABSENCE OF A STATEMENT OF REASONS UPON WHICH IT IS BASED - MAY BE CONFIRMED IN THE ABSENCE OF A MISTAKE OF LAW OR OF FACT - INADMISSIBILITY

( STAFF REGULATIONS OF OFFICIALS , ARTICLE 91 )

Summary

AN APPLICANT CAN HAVE NO LEGITIMATE INTEREST IN THE ANNULMENT ON THE GROUND OF THE ABSENCE OR INADEQUACY OF THE REASONS ON WHICH IT IS BASED OF A DECISION WHICH COULD CERTAINLY BE CONFIRMED IN SUBSTANCE IN THE ABSENCE OF A MISTAKE OF LAW OR OF FACT .

Parties

IN CASE 9/76

CARMELO MORELLO , AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , RESIDING IN BRUSSELS , REPRESENTED BY MARCEL GREGOIRE AND EDMOND LEBRUN , ADVOCATES AT THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF TONY BIEVER , 83 , BOULEVARD GRANDE-DUCHESSE CHARLOTTE ,

APPLICANT ,

V COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , THOMAS F . CUSACK , ACTING AS AGENT , ASSISTED BY ALAIN VAN SOLINGE , MEMBER OF THE LEGAL SERVICE OF THE COMMISSION , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICES OF ITS LEGAL ADVISER , MARIO CERVINO , BATIMENT CFL , PLACE DE LA GARE ,

DEFENDANT ,

Subject of the case

APPLICATION FOR THE ANNULMENT OF THE DECISION OF THE SELECTION BOARD FOR CERTAIN INTERNAL COMPETITIONS NOT TO ADMIT THE APPLICANT TO THE LIST OF CANDIDATES AND , CONSEQUENTLY , FOR THE ANNULMENT OF THOSE COMPETITIONS AND THE APPOINTMENTS MADE AS A RESULT OF THEM ,

Grounds

1 THE APPLICATION IS FOR THE ANNULMENT OF THE DECISION OF THE SELECTION BOARD FOR INTERNAL COMPETITIONS NOS COM/668/74 AND COM/669/74 OF THE COMMISSION NOT TO ADMIT THE APPLICANT TO THESE COMPETITIONS AND , CONSEQUENTLY , FOR THE ANNULMENT OF THE COMPETITIONS THEMSELVES AND THE APPOINTMENTS MADE AS A RESULT OF THOSE COMPETITIONS .

2 FOR THIS PURPOSE THE APPLICANT RELIES ON TWO ARGUMENTS , NAMELY FIRST THE ABSENCE OR AT LEAST THE INADEQUACY OF THE REASONS ON WHICH THE DECISION WAS BASED AND SECONDLY THE FACT THAT THE CONTESTED DECISION IS BASED ON INCORRECT ASSESSMENTS .

3 AS THE TWO ARGUMENTS ARE CLOSELY LINKED , THEY MAY BEST BE EXAMINED TOGETHER .

4 ACCORDING TO THE NOTICES OF THE COMPETITIONS IN QUESTION THE COMPETITIONS CONCERNED TWO VACANT POSTS IN CAREER BRACKET A 5/A 4 IN THE SECURITY OFFICE OF THE COMMISSION IN BRUSSELS WHICH ENTAILED , IN PARTICULAR , DUTIES RELATING TO THE ENFORCEMENT OF THE SECURITY RULES AND THE DRAWING UP OF THE NECESSARY PROPOSALS AND MEASURES IN THIS CONNEXION ; THE CANDIDATES THEREFORE HAD TO POSSESS , INTER ALIA , ' EXTENSIVE EXPERIENCE RELEVANT ' TO THOSE POSTS .

5 BY LETTER OF 3 NOVEMBER 1975 , THE ADMINISTRATION INFORMED THE APPLICANT THAT THE SELECTION BOARD HAD DECIDED NOT TO ADMIT HIM TO THE COMPETITIONS .

6 THE COMMISSION INFORMED THE APPLICANT THAT THE CONTESTED DECISION OF THE SELECTION BOARD WAS BASED ' IN PARTICULAR ' ON THE CONSIDERATION THAT THE APPLICANT DID NOT FULFIL THIS REQUIREMENT ONLY BY A LETTER OF 12 FEBRUARY 1976 , IN OTHER WORDS , AFTER THE APPLICATION HAD BEEN LODGED . THE APPLICANT CONTESTS THIS STATEMENT BY ARGUING THAT , AS HE SET OUT IN HIS APPLICATION , FROM 1966 TO 1973 HE HAD PERFORMED THE DUTIES OF CLERK TO THE COMMUNE IN CERTAIN ITALIAN COMMUNES , WHICH HE DOES NOT DENY WERE VERY SMALL , AND SINCE THEN , WHILE WORKING FOR THE COMMISSION , THOSE OF ADMINISTRATOR RESPONSIBLE FOR INSPECTION OF UNDERTAKINGS IN THE MEMBER STATES FOR THE PURPOSE OF THE APPLICATION OF ARTICLES 85 AND 86 OF THE EEC TREATY .

7 THE APPLICANT ARGUES THAT THE TASKS OF CLERKS TO THE COMMUNE UNDER ITALIAN LAW INCLUDE POLICE DUTIES AND RESPONSIBILITY FOR KEEPING THE DOCUMENTS OF THE COMMUNE WHILE THE WORK WHICH HE PERFORMS AT THE COMMISSION ENTAILS ACCESS TO ALL THE BOOKS AND DOCUMENTS OF UNDERTAKINGS AND THE DUTY TO PROTECT THESE DOCUMENTS SO THAT NO DISCLOSURE IS POSSIBLE .

8 THE COMPETITION NOTICES LAID DOWN VERY SPECIFIC CRITERIA IN RELATION TO QUALIFICATIONS RESULTING BOTH FROM THE DESCRIPTION OF THE DUTIES ENTAILED BY THE POSTS PUT UP FOR COMPETITION AND THE REQUIREMENT OF ' EXTENSIVE EXPERIENCE ' IN THIS PARTICULAR FIELD .

9 OWING TO THESE REQUIREMENTS IT APPEARS EVIDENT THAT , IN VIEW OF THE DUTIES WHICH THE APPLICANT HAD PREVIOUSLY PERFORMED IN THE NATIONAL ADMINISTRATION AND THOSE WHICH HE PERFORMS AT PRESENT IN THE SERVICE OF THE COMMISSION , HE IS NOT QUALIFIED TO CARRY OUT THE DUTIES INVOLVED IN THE POSTS IN QUESTION .

10 CONSEQUENTLY BY EXCLUDING THE APPLICANT FROM THE COMPETITIONS THE SELECTION BOARD DID NOT EXCEED THE DISCRETION CONFERRED ON IT BY THE COMPETITION NOTICES .

11 IN THESE CIRCUMSTANCES THE APPLICANT CAN HAVE NO LEGITIMATE INTEREST IN OBTAINING THE ANNULMENT , ON THE GROUND OF THE ABSENCE OR INADEQUACY OF THE REASONS ON WHICH IT IS BASED OF A DECISION WHICH COULD CERTAINLY BE CONFIRMED IN SUBSTANCE , IN THE ABSENCE OF A MISTAKE OF LAW OR OF FACT , BY A NEW SELECTION BOARD IF IT WERE TO BE APPOINTED AS A RESULT OF SUCH AN ANNULMENT .

12 THE APPLICATION MUST BE REJECTED AS UNFOUNDED .

Decision on costs

COSTS

13 THE APPLICANT HAS FAILED IN HIS SUBMISSIONS .

14 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS IF THEY HAVE BEEN ASKED FOR IN THE SUCCESSFUL PARTY ' S PLEADING .

15 HOWEVER , UNDER ARTICLE 70 OF THE RULES OF PROCEDURE , IN PROCEEDINGS BY SERVANTS OF THE COMMUNITIES , THE INSTITUTIONS ARE TO BEAR THEIR OWN COSTS .

Operative part

ON THOSE GROUNDS ,

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . REJECTS THE APPLICATION AS UNFOUNDED ;

2 . ORDERS EACH PARTY TO BEAR ITS OWN COSTS .