Judgment of the Court (Second Chamber) of 26 May 1971. - Fritz-August Bode v Commission of the European Communities. - Joined cases 45 and 49-70.



European Court reports 1971 Page 00465

Danish special edition Page 00123

Greek special edition Page 00835

Portuguese special edition Page 00179



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

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1 . OFFICIALS - DISPUTES WITH THE ADMINISTRATION - APPEAL THROUGH OFFICIAL CHANNELS MADE WITHIN THE PERIOD PRESCRIBED FOR APPEAL TO THE COURT - PRESERVATION OF THE PERIOD PRESCRIBED FOR APPEAL TO THE COURT - CONDITIONS

( STAFF REGULATIONS OF OFFICIALS, ARTICLES 90, 91 )

2 . PROCEDURE - ADMISSIBILITY - OBJECTION THAT THE CASE IS LIS PENDENS - EXAMINATION BY THE COURT OF ITS OWN MOTION

( RULES OF PROCEDURE, ARTICLE 92 )

3 . PROCEDURE - JUDGMENT GRANTING ANNULMENT - SUBSEQUENT MEASURE CONFIRMING THE MEASURE ANNULLED - INAPPLICABILITY

( ECSC TREATY, ARTICLE 34; EEC TREATY, ARTICLE 176; EAEC TREATY, ARTICLE 149 )

4 . OFFICIALS - RECRUITMENT - SPECIAL PROCEDURE WITHIN THE MEANING OF ARTICLE 29 ( 2 ) OF THE STAFF REGULATIONS OF OFFICIALS - STRICT APPLICATION - REASONS - REVIEW BY THE COURT

( STAFF REGULATIONS OF OFFICIALS, ARTICLE 29 ( 2 ))

Summary

1 . TO PRESERVE THE RIGHT OF APPEAL, A COMPLAINT MADE UNDER ARTICLE 90 OF THE STAFF REGULATIONS OF OFFICIALS MUST AND NEED ONLY HAVE SUBSTANTIALLY THE SAME SUBJECT-MATTER AS THE SUBSEQUENT APPEAL TO THE COURT AND NEED NOT FULFIL ALL THE CONDITIONS AS TO FORM TO WHICH THE LATTER IS SUBJECT .

2 . THE COURT MUST RAISE OF ITS OWN MOTION THE OBJECTION THAT THE CASE IS LIS PENDENS .

3 . WHEN THE COURT ANNULS A DECISION THE AUTHOR OF THAT DECISION IS UNDER AN OBLIGATION TO REVOKE OR AT LEAST NOT TO APPLY A SUBSEQUENT DECISION WHICH SIMPLY CONFIRMS THE FIRST ONE .

4 . THE APPLICATION OF ARTICLE 29 ( 2 ) OF THE STAFF REGULATIONS OF OFFICIALS IS SUBJECT TO VERY STRICT CONDITIONS AS TO FORM AND SUBSTANCE . THEREFORE THE INSTITUTIONS MAY ONLY HAVE RECOURSE TO THE SPECIAL PROCEDURE REFERRED TO IN THIS PROVISION WHEN THEY HAVE EXAMINED WITH THE GREATEST CARE WHETHER THE CONDITIONS FOR THE APPLICATION OF THAT PROVISION ARE FULFILLED .

MOREOVER, THE DECISION TO HAVE RECOURSE TO THAT PROCEDURE MUST STATE THE REASONS ON WHICH IT IS BASED SO THAT THE COURT MAY, IF NECESSARY, REVIEW THE LEGALITY OF THAT DECISION .

Parties

IN JOINED CASES 45 AND 49/70

FRITZ-AUGUST BODE, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, RESIDING AT 21 RUE FORT-ELISABETH, LUXEMBOURG, REPRESENTED BY ALEX BONN, ADVOCATE OF THE LUXEMBOURG BAR, RESIDING AT 22 COTE-D' EICH, LUXEMBOURG, WITH AN ADDRESS FOR SERVICE AT THE CHAMBERS OF THE SAID ALEX BONN, APPLICANT,

V

COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, JUERGEN UTERMANN, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE AT THE OFFICES OF EMILE REUTER, LEGAL ADVISER OF THE COMMISSION, 4 BOULEVARD ROYAL, LUXEMBOURG, DEFENDANT,

Subject of the case

APPLICATION FOR THE ANNULMENT OF :

- VACANCY NOTICE NO COM/603,

- THE DECISION REJECTING THE APPLICANT' S APPLICATION FOR THE POST WHICH WAS DECLARED VACANT,

- THE REJECTION OF THE COMPLAINT SUBMITTED BY THE APPLICANT AGAINST THAT DECISION,

- THE DECISION APPOINTING MR HEINRICH TO THE POST IN QUESTION,

Grounds

1 THE APPLICATIONS ARE FOR THE ANNULMENT :

- OF THE COMMUNICATION OF 19 FEBRUARY 1970 WHEREBY THE DEFENDANT INFORMED THE APPLICANT THAT HIS APPLICATION FOR THE POST WHICH WAS THE SUBJECT OF VACANCY NOTICE COM/603 HAD BEEN REJECTED;

- OF THE APPOINTMENT OF MR HEINRICH TO THE SAID POST;

- OF THE ABOVEMENTIONED VACANCY NOTICE .

2 MOREOVER, THE APPLICANT REQUESTS THE COURT TO ANNUL THE DECISIONS REJECTING BY IMPLICATION ( APPLICATION 45/70 ) AND AFTERWARDS EXPRESSLY ( APPLICATION 49/70 ), HIS COMPLAINT OF 15 APRIL 1975 AGAINST THE COMMUNICATION OF 19 FEBRUARY 1970 .

I - ADMISSIBILITY

1 . APPLICATION 45/70

3 A - THE DEFENDANT CLAIMS THAT THE CONCLUSIONS CONCERNING THE REJECTION OF THE APPLICANT' S APPLICATION AND THE APPOINTMENT OF MR HEINRICH ARE INADMISSIBLE BECAUSE THEY ARE OUT OF TIME . IN FACT, BECAUSE THE COMPLAINT OF 15 APRIL 1970 HAD NOT CONTAINED THE SAME REQUESTS, IT HAD NOT PRESERVED THE PERIOD OF THREE MONTHS PRESCRIBED FOR APPEALS TO THE COURT BY ARTICLE 91 OF THE STAFF REGULATION OF OFFICIALS, A PERIOD WHICH IN THE PRESENT CASE HAD EXPIRED ON 5 AUGUST 1970, THE DATE WHEN THE APPLICATION WAS MADE .

4 TO PRESERVE THE RIGHT OF APPEAL, A COMPLAINT MADE UNDER ARTICLE 90 OF THE STAFF REGULATIONS MUST AND NEED ONLY HAVE SUBSTANTIALLY THE SAME SUBJECT-MATTER AS THE SUBSEQUENT APPEAL TO THE COURT AND NEED NOT FULFIL ALL THE CONDITIONS AS TO FORM TO WHICH THE LATTER IS SUBJECT .

5 IN THE PRESENT CASE, ACCORDING TO ITS HEADING, THE COMPLAINT OF 15 APRIL 1970 WAS DIRECTED " AGAINST THE COMMUNICATION ... OF 19 FEBRUARY 1970 ... AND AGAINST THE REJECTION OF MY APPLICATION ". ALTHOUGH THIS COMPLAINT DOES NOT EXPRESSLY REQUEST THAT THE APPOINTMENT OF MR HEINRICH BE REVOKED IT OBJECTS, HOWEVER, TO THE DEFENDANT' S USING THE RECRUITMENT PROCEDURE LAID DOWN IN ARTICLE 29 ( 2 ) OF THE STAFF REGULATIONS OF OFFICIALS AND EXPRESSES " THE HOPE THAT MY COMPLAINT WILL ENABLE A SOLUTION TO BE FOUND WHEREBY THE COMMISSION WILL PROVIDE OVERWHELMING PROOF THAT IT IS POSSIBLE TO HAVE A STAFF POLICY WHICH IS JUST BECAUSE IT IS INDEPENDENT ". THE APPLICANT' S ACTION MUST THEREFORE BE UNDERSTOOD AS CONTESTING BOTH THE REFUSAL TO ACCEPT HIS APPLICATION AND CONSEQUENTLY, THE APPOINTMENT OF HIS FELLOW APPLICANT .

6 THEREFORE THE CONCLUSIONS IN THE PRESENT CASE MUST BE DEEMED TO HAVE BEEN LODGED WITHIN THE PRESCRIBED PERIOD .

7 B - AS FOR THE CONCLUSIONS FOR THE ANNULMENT OF THE REJECTION BY IMPLICATION OF THE ABOVEMENTIONED COMPLAINT, THE DEFENDANT RAISES THE OBJECTION THAT THEY ARE INADMISSIBLE ON THE GROUND THAT THIS COMPLAINT WAS ITSELF INADMISSIBLE . IT CLAIMS THAT IN FACT A DECISION REJECTING AN APPLICATION SUBMITTED IN THE PROMOTION/TRANSFER STAGE ( ARTICLE 29 ( 1 ) ( A ) OF THE STAFF REGULATIONS OF OFFICIALS ) MAY NOT BE CONTESTED SEPARATELY BUT ONLY BY MEANS OF A COMPLAINT OR AN APPLICATION DIRECTED AGAINST THE FINAL DECISION OF APPOINTMENT . A FORTIORI, THE APPLICANT WAS NOT ENTITLED TO SUBMIT A COMPLAINT TO THE APPOINTING AUTHORITY IN WHICH HE ONLY OBJECTED TO THE FACT THAT THERE HAD BEEN SOME DELAY IN SENDING THE COMMUNICATION OF 19 FEBRUARY 1970 AND THAT IT DID NOT STATE THE REASONS ON WHICH IT WAS BASED .

8 THIS OBJECTION FAILS TO RECOGNIZE IN FACT THAT THE COMPLAINT IN QUESTION WAS DIRECTED BOTH AGAINST THE REJECTION OF THE APPLICANT' S APPLICATION AND AGAINST THE APPOINTMENT OF MR HEINRICH . THE OBJECTION MUST THEREFORE BE DISMISSED .

9 C - AS REGARDS THE REQUEST FOR THE ANNULMENT OF THE VACANCY NOTICE, THE DEFENDANT QUESTIONS THAT THE APPLICANT CAN HAVE A LEGITIMATE INTEREST IN THE COURT' S DECIDING TO THIS EFFECT .

10 THIS REQUEST IS LINKED TO THE SUBMISSION IN THE APPLICATION THAT, ASSUMING THAT THE CONDITIONS FOR THE APPLICATION OF ARTICLE 29 ( 2 ) OF THE STAFF REGULATIONS OF OFFICIALS WERE ACTUALLY SATISFIED IN THE PRESENT CASE, THE DEFENDANT WAS OBLIGED TO MENTION THEM EXPRESSLY IN THAT NOTICE . THE APPLICANT' S INTEREST IN PUTTING FORWARD SUCH AN ARGUMENT BELONGS TO THE EXAMINATION OF THE SUBSTANCE OF THE CASE .

2 . APPLICATION 49/70

11 TO THE EXTENT TO WHICH THIS APPLICATION REITERATES THE CONCLUSIONS SUBMITTED IN APPLICATION 45/70, IT RUNS INTO THE OBJECTION THAT IT IS INADMISSIBLE BECAUSE THE CASE IS LIS PENDENS, WHICH OBJECTION THE COURT MUST RAISE OF ITS OWN MOTION .

12 AS REGARDS THE REQUEST FOR THE ANNULMENT OF THE DECISION CONTAINED IN THE DEFENDANT' S LETTER OF 22 JULY 1970, THIS DECISION CONFIRMS THE DECISION REJECTING BY IMPLICATION THE APPLICANT' S COMPLAINT OF 15 APRIL 1970, WHICH DECISION WAS THE SUBJECT-MATTER OF APPLICATION 45/70 . AS NO NEW ELEMENT OF LAW OR OF FACT HAD ARISEN BETWEEN THE REJECTION BY IMPLICATION AND THE EXPRESS REJECTION, THE APPLICANT CANNOT ESTABLISH ANY LEGAL INTEREST IN REQUESTING THE ANNULMENT OF THIS DECISION WHICH WAS BY WAY OF CONFIRMATION AND COULD NOT AFFECT HIM ADVERSELY . IN FACT, UNDER THE PROVISIONS OF THE SECOND SENTENCE OF THE FIRST PARAGRAPH OF ARTICLE 34 OF THE ECSC TREATY, THE FIRST PARAGRAPH OF ARTICLE 176 OF THE EEC TREATY AND THE FIRST PARAGRAPH OF ARTICLE 149 OF THE EAEC TREATY, WHERE A MEASURE OF AN INSTITUTION HAS BEEN DECLARED VOID BY THE COURT THAT INSTITUTION " SHALL BE REQUIRED TO TAKE THE NECESSARY MEASURES TO COMPLY WITH " THE JUDGMENT DECLARING THAT THE MEASURE IS VOID . IT FOLLOWS THAT, WHEN THE COURT ANNULS A DECISION, THE AUTHOR OF THAT DECISION IS UNDER AN OBLIGATION TO REVOKE OR AT LEAST NOT TO APPLY A SUBSEQUENT DECISION WHICH SIMPLY CONFIRMS THE FIRST ONE .

13 FOR ALL THESE REASONS, APPLICATION 49/70 IS INADMISSIBLE .

II - THE SUBSTANCE OF APPLICATION 45/70

14 1 . THE APPLICANT REQUESTS THE ANNULMENT OF THE DECISIONS REJECTING HIS APPLICATION AND APPOINTING MR HEINRICH, ON THE GROUND IN PARTICULAR THAT THE DEFENDANT INFRINGED ARTICLE 29 OF THE STAFF REGULATIONS OF OFFICIALS BY MAKING AN APPOINTMENT ACCORDING TO THE PROCEDURE LAID DOWN IN THE SECOND PARAGRAPH OF THAT ARTICLE WHEN THE CONDITIONS FOR THE APPLICATION OF THAT PARAGRAPH WERE NOT SATISFIED .

15 UNDER THE PROVISIONS OF ARTICLE 29 ( 2 ) " A PROCEDURE OTHER THAN THE COMPETITION PROCEDURE MAY BE ADOPTED BY THE APPOINTING AUTHORITY ... IN EXCEPTIONAL CASES, ALSO FOR RECRUITMENT TO POSTS WHICH REQUIRE SPECIAL QUALIFICATIONS ". THE USE OF THE EXPRESSION " EXCEPTIONAL CASES " SHOWS THAT THE APPLICATION OF THIS PROVISION IS SUBJECT TO VERY STRICT CONDITIONS AS TO FORM AND SUBSTANCE, WHICH MOREOVER IS IN ACCORDANCE WITH BOTH THE REQUIREMENTS OF THE SERVICE AND THE LEGITIMATE INTEREST OF OFFICIALS . THEREFORE THE INSTITUTIONS MAY ONLY HAVE RECOURSE TO THE SPECIAL PROCEDURE LAID DOWN IN ARTICLE 29 ( 2 ) WHEN THEY HAVE EXAMINED WITH THE GREATEST CARE WHETHER THE CONDITIONS FOR THE APPLICATION OF THAT PROVISION ARE FULFILLED . MOREOVER, THE DECISION TO HAVE RECOURSE TO THAT PROCEDURE MUST STATE THE REASONS ON WHICH IT IS BASED SO THAT THE COURT MAY, IF NECESSARY, REVIEW THE LEGALITY OF THAT DECISION .

16 IT EMERGES FROM THE FILE IN THE PRESENT CASE THAT ON 22 OCTOBER 1969 THE DEFENDANT DECIDED IN THE WRITTEN PROCEDURE IN PARTICULAR :

- NOT TO ACCEPT THE APPLICATIONS OF THE APPLICANT AND FIVE OTHER OFFICIALS;

- TO FIND " THAT THE QUALIFICATIONS REQUIRED TO PERFORM THE DUTIES RELATING TO THE POST TO BE FILLED ARE SPECIAL QUALIFICATIONS WITHIN THE MEANING OF ARTICLE 29 ( 2 ) OF THE STAFF REGULATIONS " AND " AS REGARDS THE RECRUITMENT OF AN OFFICIAL QUALIFIED TO PERFORM THE DUTIES RELATING TO THE ABOVEMENTIONED POST, THIS IS AN EXCEPTIONAL CASE WITHIN THE MEANING OF THE SAME PROVISION "

- " UNDER THESE CIRCUMSTANCES, ... TO FILL THE POST BY USING A PROCEDURE OTHER THAN OPEN COMPETITION AND TO APPOINT MR EGON HEINRICH ... TO THE ABOVEMENTIONED POST ".

17 ALTHOUGH THE DECISION NOT TO ACCEPT THE APPLICANT' S APPLICATION IS SEPARATE IN LAW FROM THOSE WHICH RELATE TO THE RECOURSE TO THE PROCEDURE LAID DOWN IN ARTICLE 29 ( 2 ) OF THE STAFF REGULATIONS AND THE APPOINTMENT OF MR HEINRICH, IT CANNOT BE CONSIDERED SEPARATELY, SINCE IT IS POSSIBLE THAT THE LATTER DECISIONS MAY HAVE HAD AN EFFECT ON THE FIRST BECAUSE OF THE CONNEXION CREATED BY THE COMMISSION ITSELF BETWEEN ALL THESE MEASURES .

18 IT ALSO EMERGES FROM THE FILE THAT THESE DECISIONS WERE MADE ON THE BASIS OF PROPOSALS WHICH SET OUT THE REASONS WHY IT WAS NOT POSSIBLE TO FILL THE POST IN QUESTION BY FOLLOWING ONE OF THE PROCEDURES REFERRED TO IN ARTICLE 29 ( 1 ) ( A ), ( B ) OR ( C ) BUT WHICH OMITTED TO POINT OUT THE REASONS WHY THIS WAS AN " EXCEPTIONAL CASE " AND A POST " WHICH REQUIRE(S ) QUALIFICATIONS " SO THAT A DECISION HAD TO BE TAKEN NOT TO HOLD THE COMPETITION PRESCRIBED AT THE END OF THE FIRST SENTENCE OF ARTICLE 29 ( 1 ).

19 THE ABOVEMENTIONED DOCUMENTS THEREFORE SHOW THAT THE DECISION TO FILL THE POST IN QUESTION BY A METHOD OTHER THAN COMPETITION FAILS TO GIVE THE REASONS FOR THIS, SO THAT IT DOES NOT EMERGE FROM THE DECISION OF THE APPOINTING AUTHORITY WHETHER THE LATTER CONSIDERED AS CAREFULLY AS IT WAS OBLIGED TO DO WHETHER THE CONDITIONS FOR THE APPLICATION OF ARTICLE 29 ( 2 ) WERE IN FACT FULFILLED . THEREFORE, SINCE THE PROCEDURE WHICH LED TO THE APPOINTMENT OF MR HEINRICH WAS ILLEGAL, THIS DECISION AND CONSEQUENTLY THE DECISIONS REJECTING THE APPLICANT' S APPLICATION AND HIS COMPLAINT OF 15 APRIL 1970 MUST BE ANNULLED WITHOUT ANY NEED TO CONSIDER THE OTHER COMPLAINTS RAISED BY THE APPLICANT IN RESPECT OF THESE MEASURES .

20 2 . THE APPLICANT REQUESTS MOREOVER THE ANNULMENT OF VACANCY NOTICE COM/603 RELATING TO THE POST IN QUESTION .

21 THIS REQUEST IS LINKED TO THE COMPLAINT THAT THE DEFENDANT, IF IT CONSIDERED THAT THE POST IN QUESTION COULD AND SHOULD BE FILLED ACCORDING TO THE PROCEDURE LAID DOWN IN ARTICLE 29 ( 2 ), SHOULD HAVE INDICATED THAT FACT IN THE SAID NOTICE . IN VIEW OF THE FOREGOING, THIS REQUEST IS NO LONGER OF INTEREST TO THE APPLICANT .

Decision on costs

22 UNDER THE PROVISIONS OF ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS . SINCE THE DEFENDANT HAS ESSENTIALLY FAILED IN ITS SUBMISSIONS, IT MUST BE ORDERED TO BEAR ALL THE COSTS .

Operative part

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . ANNULS THE DECISIONS REJECTING THE APPLICANT' S APPLICATION FOR THE POST WHICH WAS THE SUBJECT OF VACANCY NOTICE COM/603, APPOINTING MR HEINRICH TO THAT POST AND REJECTING THE APPLICANT' S COMPLAINT OF 15 APRIL 1970;

2 . DISMISSES APPLICATION 49/70 AS INADMISSIBLE;

3 . ORDERS THE DEFENDANT TO BEAR ALL THE COSTS OF THE ACTION .