CELEX: C2001/289/30
Language: en
Date: 2001-10-13 00:00:00
Title: Case C-309/01 P: Appeal brought on 3 August 2001 by Council of the European Union against the judgment delivered on 14 June 2001 by the Fourth Chamber of the Court of First Instance of the European Communities in Case T-230/99 between Hans Mc Auley and Council of the European Union

C 289/16              EN                    Official Journal of the European Communities                                    13.10.2001
Appeal brought on 3 August 2001 by Council of the                           did not take account of the interest of the service, contrary
European Union against the judgment delivered on                            to Article 45 of the Staff Regulations.
14 June 2001 by the Fourth Chamber of the Court of First
Instance of the European Communities in Case T-230/99
between Hans Mc Auley and Council of the European
                              Union                                    (1) OJ 2000 C 6, p. 29.
                       (Case C-309/01 P)
                        (2001/C 289/30)
                                                                       Reference for a preliminary ruling by the Consiglio di
An appeal against the judgment delivered on 14 June 2001 by
                                                                       Stato in sede giurisdizionale, Quinta Sezione by order of
the Fourth Chamber of the Court of First Instance of the
                                                                       that court of 29 May 2001 in the case of Comune di
European Communities in Case T-230/99 (1) between Hans
                                                                       Udine against Diddi Dino Figli s.r.l. and A.G.E.S.I. —
Mc Auley and Council of the European Union was brought
                                                                       Associazione Nazionale Imprese Gestione and AMGA —
before the Court of Justice of the European Communities on
                                                                       Azienda Multiservizi s.p.a. against Diddi Dino Figh s.r.l
3 August 2001 by the Council of the European Union,
                                                                                                 and A.G.E.S.I.
represented by Frederic Anton and Alain Pilette, acting as
Agents, with an address for service in Luxembourg.
                                                                                                (Case C-310/01)
The appellant claims that the Court should:                                                     (2001/C 289/31)
—     set aside the judgment in so far as it annuls Ms K’s             Reference has been made to the Court of Justice of the
      appointment;                                                     European Communities by order of the Consiglio di Stato in
                                                                       sede giurisdizionale, Quinta Sezione (Fifth Chamber of the
                                                                       Council of State, Judicial Division) of 29 May 2001, which was
—     at the same time dismiss the application at first instance;      received at the Court Registry on 7 August 2001, for a
                                                                       preliminary ruling in the case of Comune di Udine against
                                                                       Diddi Dino Figli s.r.l. and A.G.E.S.I. — Associazione Nazionale
—     make an appropriate order as to costs.                           Imprese Gestione and AMGA — Azienda Multiservizi s.p.a.
                                                                       against Diddi Dino Figh s.r.l and A.G.E.S.I. on the following
                                                                       questions:
Pleas in law and main arguments                                        a)   whether, under Article 2 of Council Directive
                                                                            92/50/EEC (1) of 18 June 1992, the rules laid down in
                                                                            that directive apply to the subject-matter of the present
—     Distortion of the contents of the vacancy notice: to claim            case (concerning a contract for the supply of heat energy
      knowledge of languages and management skills to be the                and the provision of a range of services relating to the
      two decisive and practically only criteria contained in a             running of the heating installations), since the contract
      vacancy notice advertising a post which includes middle-              appears to concern the supply of goods rather than the
      management duties amounts to distortion of the terms of               provision of services, and what construction is to be
      the vacancy notice taken as a whole.                                  placed on that article in order to determine whether the
                                                                            contested measures are compatible with Community law;
—     Error in law inasmuch as the Court of First Instance
      independently carried out its own comparison of the              b)   whether, under Articles 6 and 1(b) of Council Directive
      merits of the candidates and it substituted its assessment            92/50/EEC of 18 June 1992, the rules laid down in that
      for that of the appointing authority, thus going beyond               directive are to be held to apply to the subject-matter of
      verifying whether there was a manifest error of assess-               the present case, and what is the construction to be
      ment. By taking the view that Ms K’s experience was                   placed on that article in order to determine whether the
      ‘limited’, whereas that of the applicant was ‘very great’,            contested measures are compatible with Community law.
      the Court of First Instance encroached directly into ‘value
      judgment’ comparison, which is however the exclusive
      domain of the appointing authority.
                                                                       (1) OJ L 209, 24.7.1992, p. 1.
—     Error in law when the Court of First Instance examined
      the comparative merits of the candidates, inasmuch as it