Important legal notice

61994C0119

European Court reports 1995 Page I-01439

Opinion of the Advocate-General

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First submission: breach of the principle of proportionality

6. As already mentioned, although the Court of First Instance reached the conclusion that the illegality of the rejection of the applicant' s candidature entailed, by way of consequence, the illegality of the decision not to organize an internal competition and the decision to hold an open competition, it refrained from annulling those decisions. It held that, by virtue of the principle of proportionality, it was necessary to reconcile the interests of the applicant, who had been the victim of an unlawful act, and the interests of third parties (including those of the candidate who was appointed to the post) and, for that reason, to take into account not only the need to restore the rights of the applicant but also the legitimate expectations of third parties. Accordingly, instead of annulling the decisions in question, it awarded Mr Coussios ECU 2 000 by way of "compensation for the non-material damage caused to the applicant by the service-related fault [faute de service] of the Commission". It referred in support of that result to the principles established by the case-law of this Court, in particular Oberthuer (4) and Albani. (5)

7. Mr Coussios submits that the balancing of the respective interests carried out in that way by the Court of First Instance was manifestly erroneous. It gave full satisfaction to third parties in respect of their rights and legitimate expectations, while he received inadequate compensation for the illegality of which he was the victim. Full reparation, in his submission, would have consisted at the least in appointment to an equivalent post.

8. Before examining that submission, I should mention that I am not convinced that, as a matter of law, the illegality of the rejection of the candidature of Mr Coussios did entail the illegality of the subsequent decisions. If a person is unlawfully denied a reasoned decision, that can in some instances be remedied by giving him a reasoned decision. It does not necessarily entail invalidating all the procedures consequent upon the initial illegality. But it is unnecessary to pursue the point in the present case, since the Court of First Instance did not in fact annul the consequent decisions.

10. Mr Coussios has also made certain complaints about the timing of the proceedings before the Court of First Instance. In essence, he claims that judgment was delayed as a consequence of the reopening of the oral procedure and that that delay allowed the Commission to begin disciplinary proceedings against him and to appoint another person to the post in question on the day that the disciplinary measure taken against him took effect. He also states that the second hearing before the Court of First Instance was set down for a date after the expiry of the time for him to lodge a complaint against the disciplinary proceedings. I cannot see how the reopening of the oral phase of the procedure before the Court of First Instance in the present case has any bearing on disciplinary proceedings which may have been commenced against Mr Coussios for other matters or vice versa. The two procedures are quite separate. Nor are the disciplinary measures connected or related to the appointment of another person to the post for which Mr Coussios was a candidate: such an appointment could have been made whatever had been the outcome of the disciplinary proceedings.

Second submission: breach of the principle of non-waiver of statutory rights

12. Mr Coussios considers that it was wrong for the Court of First Instance to "instigate" an agreement between the parties according to which he waived his statutory rights, in particular those he held by virtue of Articles 7, 25, 26, 29, 43, 45 and Annex I of the Staff Regulations as well as his rights to full compensation.

13. The Commission has raised doubts as to the admissibility of this submission. The Commission submits that this is a matter for Mr Coussios to settle with his counsel.

14. I do not agree that the appellant' s second submission is inadmissible. The tenor of his submission on this point is not that his counsel failed to follow his instructions and that therefore the Court of First Instance could not make such an award but that that Court erred in seeking an agreement between the parties on such an award. What he submits in effect is that the Court of First Instance could not ask the parties to agree to a remedy which resulted in him waiving his statutory rights.

15. It is clear from the judgment of the Court of First Instance (7) that the parties had in fact agreed that an award of damages was the most appropriate remedy. Whether the agreement was entered into by Mr Coussios himself or his counsel is, in my opinion, irrelevant. If his counsel did not follow his instructions, then that is a matter which Mr Coussios should raise with him: it is in any case a matter of fact which this Court cannot review on appeal.

16. In any event, I do not think that the course followed by the Court of First Instance can be criticized. What it did was to invite the views of the parties on the solution to be found for the illegality; and it recorded the agreement of the parties that an award of damages was the appropriate remedy. Mr Coussios contends that his rights were of so fundamental a character that they could not be waived and that financial compensation could not be an appropriate remedy. But no argument has been advanced to support the view that Mr Coussios' rights (of which the only one truly in issue, in my view, was the right to receive a reasoned decision for the rejection of his candidature) could not be waived and that compensation could not be an appropriate remedy. Indeed it is clear that the Court of First Instance could have proceeded to make an award of damages of its own motion, without inviting the parties' comments. Since the Court has unlimited jurisdiction in staff cases, (8) it can award damages in lieu of annulment even if the applicant has not sought damages in respect of the illegality in issue.

17. In my view therefore the second submission must also be rejected.

Conclusion

18. I am accordingly of the opinion that the Court should:

(1) dismiss the appeal;

(2) order the appellant to pay the costs.

(*) Original language: English.

(1) ° [1994] ECR-SC I-A - 47; reported in full at [1994] ECR-SC II-171.

(2) ° See paragraphs 69 to 77 of the judgment appealed against, II-187 to II-190.

(3) ° Case 123/75 [1976] ECR 1701.

(4) ° Case 24/79 Oberthuer v Commission [1980] ECR 1743.

(5) ° Case C-242/90 P Commission v Albani [1993] ECR I-3839.

(6) ° See paragraphs 10 to 12 of the judgment.

(7) ° Paragraph 107.

(8) ° See Oberthuer, cited above, note , paragraph 14 of the judgment.