Judgment of the Court (Third Chamber) of 23 October 1986. - Hartmut Schwiering v Court of Auditors of the European Communities. - Effects of a judgment of the Court annulling a decision to appoint a person who was previously a member of the temporary staff as an official. - Case 142/85.



European Court reports 1986 Page 03177



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

1 . OFFICIALS - ACTION - PRELIMINARY ADMINISTRATIVE COMPLAINT - SAME SUBJECT-MATTER AND LEGAL BASIS

( STAFF REGULATIONS , ARTS 90 AND 91 )

2 . OFFICIALS - RECRUITMENT - COMPETITIONS - COMPETITION INTENDED TO REGULARIZE THE ADMINISTRATIVE POSITION OF A PARTICULAR OFFICIAL - MISUSE OF POWERS

3 . OFFICIALS - RECRUITMENT - COMPETITIONS - SELECTION BOARD - INDEPENDENCE - LIMITS - ADOPTION OF UNLAWFUL DECISIONS - DUTIES OF THE APPOINTING AUTHORITY

Summary

1 . IN REQUIRING A PRIOR ADMINISTRATIVE COMPLAINT ARTICLE 91 OF THE STAFF REGULATIONS IS INTENDED TO PERMIT AND ENCOURAGE THE AMICABLE SETTLEMENT OF DIFFERENCES WHICH HAVE ARISEN BETWEEN OFFICIALS AND THE ADMINISTRATION . IN ORDER TO COMPLY WITH THAT REQUIREMENT IT IS ESSENTIAL THAT THE ADMINISTRATION SHOULD BE IN A POSITION TO KNOW WITH SUFFICIENT CERTAINTY THE COMPLAINTS OR REQUESTS OF THE PERSON CONCERNED . ON THE OTHER HAND , IT IS NOT THE PURPOSE OF THAT PROVISION TO BIND STRICTLY AND ABSOLUTELY THE CONTENTIOUS STAGE OF THE PROCEEDINGS , IF ANY , PROVIDED THAT THE CLAIMS SUBMITTED AT THAT STAGE CHANGE NEITHER THE LEGAL BASIS NOR THE SUBJECT-MATTER OF THE COMPLAINT . CONSEQUENTLY , IT IS SUFFICIENT THAT THE OFFICIAL OR MEMBER OF THE STAFF CONCERNED SHOULD SUBMIT TO THE COURT CLAIMS WHICH HAVE THE SAME SUBJECT-MATTER AS THOSE SET OUT IN THE COMPLAINT AND SECONDLY THAT THE HEADS OF CLAIM SHOULD BE BASED ON THE SAME MATTERS AS THOSE RELIED ON IN THE COMPLAINT .

2 . A COMPETITION ORGANIZED BY THE APPOINTING AUTHORITY FOR THE SOLE PURPOSE OF REMEDYING THE ANOMALOUS ADMINISTRATIVE STATUS OF A SPECIFIC OFFICIAL AND OF APPOINTING THAT OFFICIAL TO THE POST DECLARED VACANT IS CONTRARY TO THE AIMS OF ANY RECRUITMENT PROCEDURE AND THUS CONSTITUTES A MISUSE OF POWERS .

3 . IN VIEW OF THE INDEPENDENCE OF SELECTION BOARDS , THE INSTITUTION IN QUESTION HAS NO POWER TO ANNUL OR AMEND THE SELECTION BOARD ' S DECISION . NEVERTHELESS , IN THE EXERCISE OF ITS OWN POWERS , THE APPOINTING AUTHORITY CANNOT BE BOUND BY A DECISION OF THE SELECTION BOARD THE UNLAWFULNESS OF WHICH WOULD BE LIABLE AS A CONSEQUENCE TO VITIATE ITS OWN DECISIONS . IT THEREFORE HAS TO VERIFY THE LEGALITY OF DECISIONS TAKEN BY THE SELECTION BOARD AS REGARDS IN PARTICULAR ALLOWING CANDIDATES TO TAKE PART IN COMPETITIONS . WHERE THE SELECTION BOARD HAS WRONGLY ALLOWED A CANDIDATE TO TAKE PART IN A COMPETITION AND PUT HIS NAME ON THE LIST OF SUITABLE CANDIDATES , THE APPOINTING AUTHORITY MUST EXPRESS ITS REFUSAL TO APPOINT THE CANDIDATE BY WAY OF A REASONED DECISION FROM WHICH THE COURT CAN , IF NECESSARY , JUDGE WHETHER THE REFUSAL IS WELL FOUNDED .

Parties

IN CASE 142/85

HARTMUT SCHWIERING , A MEMBER OF THE TEMPORARY STAFF OF THE COURT OF AUDITORS , RESIDING AT KONZ ( FEDERAL REPUBLIC OF GERMANY ), REPRESENTED BY DIETER ROGALLA , RECHTSANWALT , 9 GILDESTRASSE , D-4418 NORDWALDE , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT , 34 B RUE PHILIPPE-II ,

APPLICANT , V

COURT OF AUDITORS OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS SECRETARY JEAN-AIME STOLL , AND MICHAEL BECKER , ADMINISTRATOR , ACTING AS AGENTS , 29 RUE ALDRINGEN , LUXEMBOURG , ASSISTED BY LUCETTE DEFALQUE , OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF JEAN-AIME STOLL , SECRETARY OF THE COURT OF AUDITORS , 29 RUE ALDRINGEN ,

DEFENDANT , AND

CALVIN WILLIAMS , AN OFFICIAL OF THE COURT OF AUDITORS , REPRESENTED BY VICTOR BIEL , OF THE LUXEMBOURG BAR ,

Subject of the case

INTERVENER , APPLICATION FOR THE ANNULMENT OF THE DECISION OF THE PRESIDENT OF THE COURT OF AUDITORS REJECTING THE APPLICANT ' S CLAIMS RELATING TO HIS ADMINISTRATIVE STATUS FOLLOWING THE ANNULMENT OF HIS APPOINTMENT , AND , IN THE ALTERNATIVE FOR THE ANNULMENT OF COMPETITION NO CC/A/17/82 AND THE AWARD OF A COMPENSATORY ALLOWANCE OR APPROPRIATE COMPENSATION ,

Grounds

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 14 MAY 1985 HARTMUT SCHWIERING , A MEMBER OF THE TEMPORARY STAFF OF THE COURT OF AUDITORS , BROUGHT AN ACTION FOR THE ANNULMENT OF THE DECISION OF THE PRESIDENT OF THE COURT OF AUDITORS REJECTING HIS CLAIMS RELATING TO HIS ADMINISTRATIVE STATUS FOLLOWING THE ANNULMENT OF HIS APPOINTMENT , IN THE ALTERNATIVE FOR THE ANNULMENT OF THE PROCEEDINGS IN COMPETITION NO CC/A/17/82 AND FOR THE AWARD OF A COMPENSATORY ALLOWANCE OR APPROPRIATE COMPENSATION .

2 MR SCHWIERING ENTERED THE EMPLOYMENT OF THE COURT OF AUDITORS ON 1 DECEMBER 1977 . HE WAS EMPLOYED AS ATTACHE IN THE CABINET OF MR LEICHT , THE GERMAN MEMBER OF THE COURT OF AUDITORS , AND HAD A CONTRACT AS A MEMBER OF THE TEMPORARY STAFF IN GRADE A 4 . AT THE END OF 1982 HE PASSED THE TESTS IN INTERNAL COMPETITION NO CC/A/17/82 , HELD TO FILL A VACANT POST FOR A PRINCIPAL ADMINISTRATOR IN CAREER BRACKET A 5 - A 4 . HE WAS APPOINTED A PROBATIONARY OFFICIAL IN GRADE A 5 BY A DECISION OF THE COURT OF AUDITORS OF 24 MARCH 1983 WITH EFFECT FROM 1 APRIL 1983 . ON THAT DATE HE THEREFORE LEFT THE CABINET TO WHICH HE HAD BEEN ASSIGNED AND TOOK UP HIS DUTIES IN THE GENERAL ADMINISTRATION OF THE COURT OF AUDITORS . ON 1 JANUARY 1984 HE WAS ESTABLISHED IN HIS POST .

3 BY A JUDGMENT OF 16 OCTOBER 1984 IN CASE 257/83 CALVIN WILLIAMS V COURT OF AUDITORS ( 1984 ) ECR 3547 , THE COURT ANNULLED THE APPOINTMENT OF MR SCHWIERING ON THE GROUND THAT HE HAD BEEN WRONGLY ADMITTED TO THE TESTS IN THE INTERNAL COMPETITION AT THE END OF WHICH HE HAD BEEN APPOINTED . MR SCHWIERING HAD NEITHER A RECOGNIZED UNIVERSITY DEGREE OR DIPLOMA NOR THE PROFESSIONAL EXPERIENCE REQUIRED BY THE NOTICE OF COMPETITION . THE JUDGMENT STATES THAT AS A CONSEQUENCE OF ITS ANNULMENT THE DECISION APPOINTING MR SCHWIERING MUST BE TREATED AS IF IT HAD NEVER BEEN TAKEN .

4 THE COURT OF AUDITORS TOOK TWO STEPS TO GIVE EFFECT TO THE JUDGMENT . IN THE FIRST PLACE , BY DECISION OF 18 OCTOBER 1984 , MR WILLIAMS , WHO HAD BEEN PLACED SECOND IN THE LIST OF SUITABLE CANDIDATES FOLLOWING THE INTERNAL COMPETITION WAS APPOINTED TO THE PRINCIPAL ADMINISTRATOR ' S POST IN QUESTION . IN THE SECOND PLACE THE COURT OF AUDITORS SENT MR SCHWIERING TWO LETTERS DATED 24 OCTOBER 1984 INFORMING HIM THAT HIS APPOINTMENT HAD BEEN ANNULLED WITH EFFECT FROM 16 OCTOBER 1984 AND OFFERING HIM A POST AS A MEMBER OF THE TEMPORARY STAFF IN GRADE A 7 , STEP 3 . ON 25 OCTOBER 1984 MR SCHWIERING ACCEPTED THE OFFER OF A TEMPORARY CONTRACT ' SUBJECT TO THE EXPRESS RESERVATION THAT IT COULD IF NECESSARY BE EXTENDED . . . ' . SINCE THEN THE CONTRACT OF EMPLOYMENT HAS BEEN REPEATEDLY RENEWED .

5 ON 19 DECEMBER 1984 MR SCHWIERING ' S LAWYER PROPOSED A ' COMPROMISE ' TO THE COURT OF AUDITORS , THE ESSENCE OF WHICH WAS AS FOLLOWS : IN THE FIRST PLACE , FROM 1 APRIL 1983 UNTIL A DATE TO BE AGREED , MR SCHWIERING ' S ADMINISTRATIVE POSITION AS A RESULT OF THE JUDGMENT OF THE COURT WOULD BE GOVERNED BY HIS FORMER CONTRACT OF EMPLOYMENT AS A MEMBER OF THE TEMPORARY STAFF IN GRADE A 4 MADE ON 15 DECEMBER 1977 , WHICH WOULD THUS APPLY ONCE AGAIN . IN THE SECOND PLACE , AT THE AGREED DATE , THE TEMPORARY CONTRACT WOULD BE REPLACED BY A TEMPORARY CONTRACT FOR A PERMANENT POST IN GRADE A 5 OR , IF NECESSARY , IN CAREER BRACKET A 6 - A 7 BUT WITH PAYMENT OF A COMPENSATORY ALLOWANCE . FINALLY , THE COURT OF AUDITORS WOULD THEN GIVE MR SCHWIERING AN OPPORTUNITY TO TAKE PART IN AN INTERNAL COMPETITION TO BE HELD TO FILL A PERMANENTLY THE POST WHICH HAD BEEN ASSIGNED TO HIM AND WHICH SHOULD CORRESPOND TO HIS QUALIFICATIONS .

6 ON 16 JANUARY 1985 MR SCHWIERING REQUESTED THE APPOINTING AUTHORITY TO TREAT THE AFORESAID LETTER FROM HIS LAWYER AS A COMPLAINT WITHIN THE MEANING OF ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS . BY LETTER DATED 15 FEBRUARY 1985 ADDRESSED TO THE APPLICANT , THE PRESIDENT OF THE COURT OF AUDITORS ' TOOK NOTE ' OF THE FACT THAT THE LETTER OF 19 DECEMBER 1984 SHOULD BE TREATED AS A COMPLAINT WITHIN THE MEANING OF ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS AND REJECTED THE VARIOUS CLAIMS CONTAINED IN THE LETTER WHICH HE HIMSELF DESCRIBED AS THE APPLICANT ' S ' COMPLAINT ' . THE MAIN CLAIMS CONTAINED IN THE APPLICATION ARE DIRECTED AGAINST THAT DECISION TO REJECT THE COMPLAINT .

7 BY ORDER OF 26 SEPTEMBER 1985 THE COURT ( THIRD CHAMBER ) ALLOWED MR WILLIAMS TO INTERVENE BUT ONLY TO SUPPORT THE CONTENTIONS OF THE COURT OF AUDITORS THAT THE ALTERNATIVE CLAIM SHOULD BE DISMISSED .

THE MAIN CLAIMS FOR AN ORDER REQUIRING THE COURT OF AUDITORS TO MAINTAIN THE APPLICANT IN THE CAREER BRACKET IN WHICH HE WAS BEFORE THE JUDGMENT OF THE COURT OF 16 OCTOBER 1984

ADMISSIBILITY

8 THE COURT OF AUDITORS ' MAIN CONTENTION IS THAT THERE HAS NEVER BEEN A PROPER COMPLAINT WITHIN THE MEANING OF THE STAFF REGULATIONS IN VIEW , ON THE ONE HAND , OF THE VERY WORDING OF THE LETTER FROM THE APPLICANT ' S LAWYER WHICH PROPOSED A ' COMPROMISE ' AND DID NOT CHALLENGE ANY SPECIFIC DECISION OF THE COURT OF AUDITORS AND , ON THE OTHER HAND , OF THE AMBIGUITY OF THE TERMS OF THE LETTER THE IMPORT OF WHICH WAS NOT ALTERED BY THE APPLICANT ' S LETTER OF 16 JANUARY 1985 . CONSEQUENTLY THE REPLY FROM THE PRESIDENT OF THE COURT OF AUDITORS OF 15 FEBRUARY 1985 CANNOT BE TREATED AS A DECISION TO REJECT A COMPLAINT AND IS IN FACT ONLY AN INFORMATORY ' LETTER ' . IN THOSE CIRCUMSTANCES , THE CLAIMS ARE INADMISSIBLE .

9 THE COURT OF AUDITORS CONTENDS IN THE ALTERNATIVE THAT , EVEN ON THE ASSUMPTION THAT THERE WAS A COMPLAINT , ONLY THE MATTERS RAISED THEREIN CAN BE THE SUBJECT OF THE ACTION . ACCORDINGLY , THE ABOVEMENTIONED CLAIMS SHOULD BE REJECTED AS INADMISSIBLE SINCE THE SUBMISSIONS MADE TO SUPPORT THEM WERE NEVER PUT FORWARD IN THE COMPLAINT .

10 IT SHOULD BE POINTED OUT IN THE FIRST PLACE THAT , AS THE APPLICANT MAINTAINS , THE LETTER FROM HIS LAWYER OF 19 DECEMBER 1984 WAS INDEED A COMPLAINT SINCE IT MADE CLEAR THAT THE APPLICANT WAS OBJECTING TO AN INFRINGEMENT OF HIS RIGHTS AND HIS LETTER OF 16 JANUARY 1985 CLARIFYING ITS PRECISE SCOPE WAS SENT WITHIN THE PERIOD LAID DOWN BY THE STAFF REGULATIONS . FURTHERMORE , THE PRESIDENT OF THE COURT OF AUDITORS HIMSELF ADMITTED UNEQUIVOCALLY THAT THE LETTER WAS A COMPLAINT AND GAVE A DECISION EXPRESSLY REJECTING THE COMPLAINT . THE COURT OF AUDITORS ' FIRST OBJECTION OF INADMISSIBILITY MUST THEREFORE BE REJECTED .

11 SECONDLY , IT MUST BE STRESSED THAT , ACCORDING TO THE ESTABLISHED CASE-LAW OF THE COURT , ARTICLE 90 OF THE STAFF REGULATIONS IS INTENDED TO PERMIT AND ENCOURAGE THE AMICABLE SETTLEMENT OF DIFFERENCES WHICH HAVE ARISEN BETWEEN OFFICIALS AND THE ADMINISTRATION . IN ORDER TO COMPLY WITH THAT REQUIREMENT IT IS ESSENTIAL THE ADMINISTRATION SHOULD BE IN A POSITION TO KNOW WITH SUFFICIENT CERTAINTY THE COMPLAINTS OR REQUESTS OF THE PERSON CONCERNED . ON THE OTHER HAND , IT IS NOT THE PURPOSE OF THAT PROVISION TO BIND STRICTLY AND ABSOLUTELY THE CONTENTIOUS STAGE OF THE PROCEEDINGS , IF ANY , PROVIDED THAT THE CLAIMS SUBMITTED AT THAT STAGE CHANGE NEITHER THE LEGAL BASIS NOR THE SUBJECT-MATTER OF THE COMPLAINT . CONSEQUENTLY , IT IS SUFFICIENT THAT THE OFFICIAL OR MEMBER OF STAFF SHOULD SUBMIT TO THE COURT CLAIMS WHICH HAVE THE SAME SUBJECT-MATTER AS THOSE SET OUT IN THE COMPLAINT AND SECONDLY THAT THE HEADS OF CLAIM SHOULD BE BASED ON THE SAME MATTERS AS THOSE RELIED ON IN THE COMPLAINT ( JUDGMENT OF 7 MAY 1986 IN CASE 52/85 RIHOUX AND OTHERS V COMMISSION ( 1986 ) ECR 1555 ).

12 IN THE PRESENT CASE , IT IS CLEAR FROM A COMPARISON OF THE APPLICANT ' S COMPLAINT AND HIS PLEADINGS BEFORE THE COURT THAT THE MAIN CLAIMS IN THE APPLICATION FOR THE ANNULMENT OF THE DECISION REFUSING TO REVIEW HIS ADMINISTRATIVE POSITION ARE BASED ON THE SAME MATTERS AS THOSE RELIED ON IN THE COMPLAINT AND ARE THEREFORE ADMISSIBLE .

SUBSTANCE

13 THE APPLICANT MAINTAINS THAT THE MEASURES ADOPTED TO GIVE EFFECT TO THEJUDGMENT OF THE COURT SHOULD NOT ADVERSELY AFFECT HIS ADMINISTRATIVE POSITION IN ANY WAY . HE REFERS IN THIS REGARD TO THE REQUIREMENT OF LEGAL LOGIC , THE PRINCIPLES OF LEGAL CERTAINTY AND LEGITIMATE EXPECTATION , THE PRINCIPLE OF ' ACQUIRED FINANCIAL RIGHTS AND ADVANTAGES ' , THE DUTY TO HAVE REGARD TO THE INTERESTS OF STAFF , THE FACT THAT AN OFFICIAL IS IN NO WAY RESPONSIBLE FOR IRREGULARITIES COMMITTED BY THE ADMINISTRATION OF AN INSTITUTION IN ORGANIZING A COMPETITION , THE PRACTICE OF OTHER INSTITUTIONS AND FINALLY TO THE POSITION UNDER THE LAW OF A NUMBER OF MEMBER STATES .

14 HE SUGGESTS THAT HIS ADMINISTRATIVE POSITION SHOULD BE MAINTAINED IN ONE OF THREE WAYS :

( I ) HIS CONTRACT AS A MEMBER OF THE TEMPORARY STAFF GRADE A 4 , WHICH HAS NEVER BEEN EXPRESSLY TERMINATED AND OUGHT AUTOMATICALLY TO HAVE APPLIED ONCE AGAIN AFTER THE JUDGMENT OF THE COURT , SHOULD BE REVIVED ;

( II)HE SHOULD CONTINUE AS AN ESTABLISHED OFFICIAL ;

( III)HE SHOULD BE GIVEN A NEW CONTRACT AS A MEMBER OF THE TEMPORARY STAFF IN A PERMANENT POST AT A LOWER GRADE TOGETHER WITH A COMPENSATORY ALLOWANCE MAKING HIS REMUNERATION EQUAL TO THAT WHICH HE WAS RECEIVING BEFORE THE JUDGMENT OF THE COURT AND THE OPPORTUNITY TO TAKE PART IN AN INTERNAL COMPETITION ENABLING HIM TO OCCUPY PERMANENTLY A POST CORRESPONDING TO HIS QUALIFICATIONS .

15 IT MUST BE POINTED OUT THAT THE COURT OF AUDITORS COULD NOT , WITHOUT INFRINGING THE STAFF REGULATIONS , ADOPT ANY OF THOSE PROPOSALS :

IN THE FIRST PLACE , THE CONTRACT AS A MEMBER OF THE TEMPORARY STAFF GRADE A 4 WHICH THE APPLICANT HAD BEFORE HIS ANNULLED APPOINTMENT COULD NOT BE REVIVED IN ANY EVENT SINCE THE SERVICE OF THE MEMBER OF THE COURT OF AUDITORS TO WHOSE CABINET MR SCHWIERING WAS ATTACHED HAD TERMINATED .

IN THE SECOND PLACE , IT WAS NOT POSSIBLE FOR THE APPLICANT TO CONTINUE AS AN ESTABLISHED OFFICIAL IN THE POST TO WHICH HE HAD BEEN APPOINTED FOLLOWING COMPETITION NO CC/A/17/82 SINCE IT WOULD BE CONTRARY TO THE AFORESAID JUDGMENT OF THE COURT .

FINALLY , NO PROVISION IN THE STAFF REGULATIONS ALLOWED THE COURT OF AUDITORS TO PAY THE APPLICANT A ' COMPENSATORY ALLOWANCE ' . MOREOVER , ACCORDING TO THE ESTABLISHED CASE-LAW , A COMPETITION ' ORGANIZED BY THE APPOINTING AUTHORITY FOR THE SOLE PURPOSE OF REMEDYING THE ANOMALOUS ADMINISTRATIVE STATUS OF A SPECIFIC OFFICIAL AND OF APPOINTING THAT OFFICIAL TO THE POST DECLARED VACANT ' IS CONTRARY TO ' THE AIMS OF ANY RECRUITMENT PROCEDURE . . . AND THUS CONSTITUTES A MISUSE OF POWERS ' ( CASE 105/75 GIUFFRIDA V COUNCIL ( 1976 ) ECR 1395 ).

16 IN THOSE CIRCUMSTANCES , IT MUST BE CONSIDERED THAT THE COURT OF AUDITORS HAS DEALT APPROPRIATELY WITH THE PARTICULAR POSITION OF THE APPLICANT WHILST OBSERVING THE STAFF REGULATIONS AND ITS OWN INTERNAL RULES . CONSEQUENTLY , NO CHARGE OF CONTRAVENING THE PRINCIPLES OF LEGAL CERTAINTY AND LEGITIMATE EXPECTATION OR OF DISREGARDING THE DUTY TO HAVE REGARD FOR THE WELL-BEING OF ITS STAFF CAN BE MADE AGAINST THE COURT OF AUDITORS . THE MAIN CLAIMS IN THE APPLICATION MUST THEREFORE BE DISMISSED .

THE ALTERNATIVE CLAIM FOR DAMAGES

17 THE APPLICANT STATES THAT HE IS IN NO WAY RESPONSIBLE FOR THE IRREGULARITY FOUND BY THE COURT AND MAINTAINS THAT HE HAS SUFFERED FINANCIAL LOSS AND ' ANXIETY ' . HE THEREFORE SUBMITS A CLAIM FOR A DECLARATION OF LIABILITY TO PAY COMPENSATION AND RESERVES THE RIGHT TO QUANTIFY THE ALLEGED DAMAGE AT A LATER DATE .

18 THE COURT OF AUDITORS CONSIDERS THAT THAT CLAIM IS INADMISSIBLE SINCE IT IS SUBMITTED TO THE COURT FOR THE FIRST TIME AND THAT IT IS UNFOUNDED SINCE IT CANNOT BE CONSIDERED TO HAVE ACTED WRONGLY EITHER IN THE CONDUCT OF COMPETITION NO CC/A/17/82 OR IN TAKING THE DECISIONS ADOPTED AT THE END OF THAT COMPETITION .

19 IN ORDER TO RULE ON THAT CLAIM THE COURT CONSIDERS IT NECESSARY TO DEFINE THE DISCRETION WHICH THE APPOINTING AUTHORITY HAS WHEN CONFRONTED WITH AN UNLAWFUL DECISION OF A SELECTION BOARD . ACCORDING TO ESTABLISHED CASE-LAW BASED ON THE PRINCIPLE OF THE INDEPENDENCE OF SELECTION BOARDS , THE INSTITUTION IN QUESTION HAS NO POWER TO ANNUL OR AMEND SUCH A DECISION ( CASE 44/71 MARCATO V COMMISSION ( 1972 ) ECR 427 ; CASE 34/80 AUTHIE V COMMISSION ( 1981 ) ECR 665 ; CASE 144/82 DETTI V COURT OF JUSTICE ( 1983 ) ECR 2421 , 2346 ). NEVERTHELESS , IN THE EXERCISE OF ITS OWN POWERS THE APPOINTING AUTHORITY IS REQUIRED TO TAKE DECISIONS UNTAINTED BY ERRORS OF LAW . IT CANNOT THEREFORE BE BOUND BY DECISIONS OF SELECTION BOARDS THE UNLAWFULNESS OF WHICH WOULD BE LIABLE AS A CONSEQUENCE TO VITIATE ITS OWN DECISIONS .

20 THAT IS THE REASON WHY THE APPOINTING AUTHORITY IS REQUIRED TO VERIFY THE LEGALITY OF DECISIONS TAKEN BY THE SELECTION BOARD AS REGARDS IN PARTICULAR ALLOWING CANDIDATES TO TAKE PART IN COMPETITIONS . WHERE , AS IN THE PRESENT CASE , THE SELECTION BOARD HAS WRONGLY ALLOWED A CANDIDATE TO TAKE PART IN A COMPETITION AND PUT HIS NAME ON THE LIST OF SUITABLE CANDIDATES , THE APPOINTING AUTHORITY MUST EXPRESS ITS REFUSAL TO APPOINT THE CANDIDATE BY WAY OF A REASONED DECISION FROM WHICH THE COURT CAN , IF NECESSARY , JUDGE WHETHER THE REFUSAL IS WELL FOUNDED .

21 IN THE PRESENT CASE THE COURT OF AUDITORS WAS AT FAULT IN NOT NOTING THE SELECTION BOARD ' S ERROR AND IN APPOINTING A CANDIDATE WHO DID NOT SATISFY THE CONDITIONS OF ADMISSION LAID DOWN IN THE NOTICE OF COMPETITION .

22 HOWEVER , IT MUST BE POINTED OUT IN ANY EVENT THAT IN THE CIRCUMSTANCES OF THIS CASE THAT FAULT WAS NOT SUCH AS TO BE PREJUDICIAL TO THE APPLICANT . IT DID NOT CAUSE HIM TO LOSE HIS STATUS AS AN ESTABLISHED OFFICIAL . AS WAS STATED ABOVE , HE OUGHT NOT TO HAVE BEEN ALLOWED TO TAKE PART IN THE COMPETITION AND OUGHT NOT IN ANY EVENT TO HAVE BEEN ESTABLISHED AS AN OFFICIAL IN THE CAREER BRACKET A 5 - A 4 .

23 NOR DID THE ABOVEMENTIONED FAULT CAUSE THE APPLICANT TO SUFFER ANY LOSS GIVING RISE TO LIABILITY FOR DAMAGES CAUSING HIM TO GIVE UP HIS PREVIOUS CONTRACT AS A MEMBER OF THE TEMPORARY STAFF IN GRADE A 4 . THAT CONTRACT WOULD NORMALLY HAVE EXPIRED ON 17 OCTOBER 1983 WHEN MR LEICHT ' S TERM OF OFFICE ENDED . ALTHOUGH THE APPLICANT LOST THE BENEFIT OF THAT CONTRACT AT AN EARLIER DATE , FROM 1 APRIL 1983 , BY REASON OF HIS UNLAWFUL APPOINTMENT AS AN OFFICIAL IN GRADE A 5 , IT MUST BE POINTED OUT THAT THE COURT OF AUDITORS PAID HIM HIS SALARY RELATING TO THAT GRADE UNTIL 16 OCTOBER 1984 AND THAT THAT ADVANTAGE AMPLY COMPENSATES FOR THE LOSS OF THE BENEFIT OF GRADE A 4 BETWEEN 1 APRIL AND 17 OCTOBER 1983 . IN THOSE CIRCUMSTANCES THE ALTERNATIVE CLAIM MUST ALSO BE REJECTED , WITHOUT ITS BEING NECESSARY TO RULE ON ITS ADMISSIBILITY .

THE ALTERNATIVE CLAIM FOR THE ANNULMENT OF COMPETITION NO CC/A/17/82

24 THIS ALTERNATIVE CLAIM WAS FORMULATED FOR THE FIRST TIME BEFORE THE COURT AND IS BASED ON GROUNDS WHICH ARE UNRELATED TO THE CLAIMS MADE IN THE COMPLAINT . ACCORDINGLY , THIS CLAIM IS INADMISSIBLE IN ANY EVENT .

25 IT FOLLOWS FROM THE FOREGOING THAT THE APPLICATION MUST BE DISMISSED .

Decision on costs

COSTS

26 THE COURT OF AUDITORS CONTENDS THAT THE ACTION IS VEXATIOUS AND THAT THE APPLICANT SHOULD BE ORDERED TO PAY THE WHOLE OF THE COSTS WITHOUT APPLICATION OF ARTICLE 70 OF THE RULES OF PROCEDURE .

27 THE APPLICANT ON THE OTHER HAND CONSIDERS THAT IN VIEW OF THE DUTY TO HAVE REGARD FOR THE INTERESTS OF STAFF , THE PRINCIPLE OF THE PROTECTION OF LEGITIMATE EXPECTATION AND THE FACT THAT THE COURT OF AUDITORS ITSELF CAUSED THE ACTION TO BE BROUGHT , THE COURT OF AUDITORS SHOULD BE ORDERED TO PAY THE ENTIRE COSTS .

28 THE INTERVENER SUBMITS THAT THE COSTS SHOULD BE BORNE ENTIRELY BY THE APPLICANT .

29 PURSUANT TO ARTICLE 69 ( 2 ) AND ( 3 ) AND ARTICLE 70 OF THE RULES OF PROCEDURE THE COURT CONSIDERS THAT JUSTICE WOULD BE DONE IN THE CIRCUMSTANCES OF THE PRESENT CASE BY ORDERING THE ORIGINAL PARTIES TO BEAR THEIR OWN COSTS AND BY ORDERING THE APPLICANT , WHO HAS FAILED IN HIS SUBMISSIONS , TO PAY THE COSTS OF THE INTERVENER .

Operative part

ON THOSE GROUNDS ,

THE COURT ( THIRD CHAMBER )

HEREBY :

( 1 ) DISMISSES THE APPLICATION .

( 2 ) ORDERS THE ORIGINAL PARTIES TO BEAR THEIR OWN COSTS AND THE APPLICANT TO PAY THE INTERVENER ' S COSTS .