Important legal notice

61985C0307

European Court reports 1987 Page 02435

Opinion of the Advocate-General

++++

Mr President,

Members of the Court,

A - Facts

2 . The LA*3 post of Head of the Greek Translation Division was advertised by Vacancy Notice No 84/81 issued by the Chairman of the Economic and Social Committee on 28 September 1981 . Under the heading "Qualifications required" the notice called for "ability in the direction of an administrative unit and ability to carry out the duties in accordance with the working methods appropriate to a consultative organ of the Communities ".

3 . A first open competition, with a minimum age-limit of 40, took place in 1982 . The applicant in these proceedings took part in that competition; neither he nor any other candidate was placed on the list of suitable candidates .

4 . A second open competition was published by the Secretary-General of the Economic and Social Committee in May 1983 and carried out in 1984 . For this competition the minimum age was 35 . At the end of the procedure the selection board drew up a list of five suitable candidates, of which Mr Ts . was the first and the applicant in these proceedings was ranked second .

5 . On the basis of that list of suitable candidates the Bureau of the Economic and Social Committee decided on 17 October 1984 to propose to the Council that Mr Ts . should be appointed to the post; Mr Ts . was called on to carry out the duties of Head of Division on an interim basis from 1 November 1984 onwards . Under Article 57 of the internal rules of the Economic and Social Committee the powers of the appointing authority in respect inter alia of officials in Grade LA*3 and with regard inter alia to Articles 29, 30, 31 and 32 of the Staff Regulations are exercised by the Council, with the agreement of the Commission, on a proposal from the Bureau of the Economic and Social Committee . The Commission agreed to the proposal on 3 December 1984 and by a Council decision of 29 January 1985 Mr Ts . was appointed Head of the Greek Translation Division with effect from 1 February 1985 and classified in Grade LA*3, Step 1 .

6 . The applicant in these proceedings does not wish to accept that decision . As early as September 1984 he considered himself justified in addressing a protest to the Secretary-General of the Economic and Social Committee in which he complained that the Director-General for Administration had already told Mr Ts . on 20 July 1984 that he was to become Head of the Greek Division, and Mr Ts . had already moved into the office of the Head of Division . In a memorandum dated 10 October 1984 the Secretary-General assured him that the Director-General had given no information which might prejudice the selection of the future Head of the Greek Division .

7 . After the appointment of Mr Ts . was made public, on 31 March 1985 the applicant submitted a formal complaint to the appointing authority of the Economic and Social Committee . In his complaint he raised a number of issues regarding the conduct of the competition and related proceedings . He requested that the decision appointing Mr Ts . should be quashed, the competition annulled and a new competition organized . On 4 July 1985 the chairman of the selection board expressed the view that the conduct of the competition was in no way irregular . The board had carried out its task in an objective manner . There was no ground, therefore, for the annulment of the competition . The same view was expressed in the reply addressed to the applicant by the Chairman of the Economic and Social Committee on 26 July 1985 .

8 . He also assured the applicant that the appointment procedure was correctly conducted . In particular, the Bureau of the Economic and Social Committee had arrived at its proposal for the appointment after a detailed comparison of the merits of the candidates and the results of the competition . Finally, it was pointed out that the Economic and Social Committee had no power to quash a decision of the Council, and it was suggested that in so far as the complaint concerned the appointment decision it should be addressed to the Council, if the applicant so wished; the applicant, however, did not pursue the matter further .

9 . On 11 October 1985 the applicant brought proceedings against the Council and the Economic and Social Committee of the European Communities in which he asked the Court to :

2.2 . Declare that "the appointment of Mr Ts . was without foundation";

3.3 . In the alternative, declare that the selection criteria were illegal and discriminatory .

10 . The Council' s main submission in defence to that claim is that the application is inadmissible in so far as it is directed against the Council . The Economic and Social Committee also submitted, as its primary argument, that the application was inadmissible; it argues that in any event it is unfounded . For the arguments of the parties reference may be made to the Report for the Hearing .

B - Opinion

I - Admissibility

11 . ( a ) The main argument raised in this respect was that the Council should not have been involved in the proceedings, that the claim should have been brought only against the institution to which the disputed appointment is to be attributed . That institution, it is argued, is clearly the Economic and Social Committee, and it is irrelevant that under the Rules of Procedure of the Committee, adopted pursuant to Article 196 of the EEC Treaty, the functions of the appointing authority are exercised in part ( in respect of the higher grades ) by the Council, since the appointing authority, determined by each institution under Article 2 of the Staff Regulations, acts only in the name of the institution concerned .

12 . The Staff Regulations ( which according to Article 179 of the EEC Treaty lay down the conditions under which the Court deals with disputes between the Community and its servants ) provide no simple solution to this problem . We are faced with a "dispute between the Communities and any person to whom the Staff Regulations apply" ( Article 91 ); before the matter can be brought before the Court a complaint must be submitted to the appointing authority ( Article 91*(2 )*), which could lead to the conclusion that the appointing authority should also be a defendant to the proceedings, and Article 1 of the Staff Regulations makes it clear that appointments are made to posts in "one of the institutions of the Communities ".

13 . The Court, however, has already held that actions are not to be brought simply against the Communities or against the appointing authority, and that the essential criterion, as appears from Article 1 of the Staff Regulations, is the institution by which the person concerned is employed ( see the judgments in Cases 18/63*(1 ) and 28/64.*(2 Reference may also be made to the judgment in Case 50/74,*(3 ) which speaks of the difficulty of determining the institution to which the applicants should have applied ). On that basis it would seem reasonable to regard the objection raised in these proceedings as reasonable and since the matter concerns an appointment made by the Economic and Social Committee hold that the action should lie against that institution as sole defendant . That would mean that in a case such as this, concerning an appointment decision in which the Council played a substantial role, it could be involved in the proceedings only under the second paragraph of Article 18 of the Statute of the Court of Justice ( on the communication of statements of case to the institutions of the Community whose decisions are in dispute ) and subsequently by way of intervention .

14 . It must be admitted, however, that such a course of action seems anything but appropriate and satisfactory . Reference may also be made to the judgment in Joined Cases 783 and 786/79,*(4 ) in which it was stated that an application should be directed against the appointing authority which adopted the act having an adverse effect . Consequently, and since in circumstances such as these under the third indent of Article 57 ( 1 ) of the Rules of Procedure of the Economic and Social Committee appointment decisions are in the final analysis taken by the Council, the only proper conclusion can be that in the event of dispute over such appointment decisions the Council must also be a party to the proceedings . I would therefore take the view that the Council was properly joined as a defendant .

15 . There is no need, on the other hand, to go into a further question which was touched on in that regard, whether it might be appropriate to involve the Commission in the proceedings, since it takes part in decisions under Article 57 of the Rules of Procedure . That question is irrelevant to the problem with which we are now concerned, whether the Council is a proper defendant . It may however be pointed out that the same reasoning does not necessarily apply to an institution which is merely called upon to agree to a decision; it may be borne in mind, for example, that proceedings against decisions under Article 58 of the ECSC Treaty ( steel production quotas, adopted with the assent of the Council ) are brought against the Commission alone .

16 . ( b ) With regard to the admissibility of the claim against the Council it was also objected that no complaint was submitted to the Council as required by Article 91 of the Staff Regulations .

17 . It is true that the applicant' s complaint did not reach the Council, as may be gathered from the decision of 19 July 1985 . However, it was clearly ( also ) directed to the Council . That follows from the fact that it was addressed to the "autorité investie du pouvoir de nomination du CES ". It also follows from its content, since it speaks inter alia of the acceptance of the proposal for an appointment made by the Bureau of the Economic and Social Committee, and the appointing authority is requested to revoke its decision of 29 January 1985 ( thus referring to an act of the Council ). In my view that settles the matter; that is to say, the applicant did everything that was necessary on his part to allow the responsible appointing authority ( which the Economic and Social Committee, to which the complaint was submitted through administrative channels, could easily identify ) to review the contested decision . If the complaint duly lodged through administrative channels ( in accordance with Article 90*(3 ) of the Staff Regulations ) was not properly dealt with, with the result that the appointing authority was not able to fulfil its duty to review the matter, the person making the complaint clearly should not suffer as a consequence . On the contrary, after the expiry of the four-month period referred to in Article 90*(2 ) of the Staff Regulations he was entitled to conclude that his complaint had been implicitly rejected; nor was he obliged to take up the suggestion made in the decision of 19 July 1985 that he should submit his complaint to the Council, since his intentions in that regard had been entirely clear from the outset and since the period for making a complaint against the appointment decision of 29 January 1985 had already expired .

18 . ( c ) There are therefore no serious grounds for holding that the claim against the Council is inadmissible .

2 . The claim against the Economic and Social Committee

19 . ( a ) This claim is directed mainly against the conduct of the competition . It is objected first of all that the applicant cannot be regarded as having an interest in the annulment of the competition, since he has not sought the annulment of the resulting appointment but only a declaration that that appointment was "without foundation ".

20 . I do not agree with that objection . It is true that the wording of the claim does not seem entirely felicitous . It is clear from the general content of the application, however, that the applicant seeks the annulment of the appointment . Reference may be made in particular to paragraph 26 of the statement of claim, in which it is expressly stated that the object of the application is to obtain "the annulment of Competition LA/57/83 and consequently the annulment of the appointment of Mr Ts .". It cannot therefore be argued that the claim for the annulment of the competition simply hangs in the air .

22 . I do not think we should give effect to that objection either .

23 . First of all, it is not in fact correct to say that there is no purpose in submitting a complaint against a decision of a selection board ( I made that clear in my Opinion in Case 255/85*(5 )). Furthermore, the Court has long held that in such a case the period for bringing an action begins to run only upon the notification to the person concerned of the decision taken in reply to the complaint ( see the judgment in Case 144/82*(6 )). The submission of a complaint thus does not have the result that the subsequent application to the Court is out of time .

24 . Secondly, it is important that in this case an action against the appointment was brought before the Court within the prescribed period . In the course of that action objection may also be made to acts of the selection board . That question has also been settled by the Court, and I may refer in that regard to the judgments in Cases 11/65,*(7 21/65,*(8 ) 257/83*(9 ) and 143/84.*(10 )

25 . ( c ) In so far as the proceedings concern the organization of the competition and its result, it is objected that the applicant took no steps at the proper time and has therefore, by his "acquiescence", lost his right to challenge them .

26 . In so far as the result of the competition is concerned ( that is to say the drawing up of the list of suitable candidates by the selection board ) I have already shown, referring to the relevant case-law of the Court, that that is not so .

27 . A different conclusion might be drawn with regard to the organization of the competition, in the light of the judgment in Case 294/84,*(11 ) since in that case, which concerned the non-admission of certain candidates to the tests in a competition and in which it was also argued that the notice of competition was irregular, it was held that the latter submissions could no longer be raised; the notice of competition should have been challenged in good time .

28 . I do not find that an appropriate way of resolving the matter, and I also have the impression that the weight of the case-law takes a different approach in circumstances such as these; that is to say, where an appointment is challenged in good time, it also permits preliminary acts ( vacancy notices, acts incidental to the competition ) to be included in the proceedings and challenged as preparatory acts . I refer in that regard to the judgments in Cases 11/65, 21/65, 37/72*(12 and 101/77,*(13 ) and I propose that in this case the submissions in question should not be rejected on the basis that they should have been made the object of a separate proceeding at the appropriate time .

29 . ( d ) Doubts with regard to the admissibility of the submission concerning the decision to organize a competition ( that is to say, that under Article 57 of the Rules of Procedure of the Economic and Social Committee only the Council, and not the Secretary-General of the Economic and Social Committee, was competent to make such a decision ) may however arise from two other points of view .

30 . ( i ) The complaint procedure must be followed before any application is made to the Court . As the Court has held, the subject-matter and legal basis of an application to the Court may not differ from those of the complaint ( see the judgments in Joined Cases 75 and 117/82,*(14 ) Case 173/84*(15 ) and Case 270/84*(16 )); although in the proceedings before the Court submissions and arguments may be put forward which were not raised in the complaint procedure, no heads of claim may be raised whose legal basis is unrelated to that of the claims put forward in the complaint ( see judgment in Case 52/85,*(17 ) at paragraph 15 ).

31 . In this case the applicant, as we have seen, submitted a complaint concerning the appointment of Mr Ts . and in that complaint also made submissions concerning the conduct of the competition . However, the complaint makes no mention of the issue whether the decision to hold the competition could be made by the Secretary-General of the Economic and Social Committee ( as in fact it was ) or whether, since Article 57 of the Rules of Procedure of the Economic and Social Committee refers to Article 29 of the Staff Regulations and thus implicitly to Annex III, such a decision in relation to LA*3 posts must be made by the Council on a proposal from the Bureau of the Economic and Social Committee and with the agreement of the Commission . It can therefore be said that the decision to hold the competition was not the subject-matter of the complaint, even implicitly or by logical extension, and was challenged only in the application to the Court . Since it is not possible to discern any close connection with other heads of claim raised in the complaint ( for the purposes of the judgment in Case 52/85 ), the conclusion can only be that that issue cannot be raised for the first time in the proceedings before the Court .

32 . ( ii ) Secondly, it must be recalled that the Court has held that an applicant must show that he has an interest in raising a specific head of claim; in particular with regard to allegations of procedural irregularity it must be shown that in the absence of such irregularity the contested decision might have been substantively different ( see judgment in Case 150/84*(18 )).

33 . It can certainly not be said that those conditions are met in this case . In the course of argument we were told that since a literal application of Article 57 of the Rules of Procedure of the Economic and Social Committee to decisions ordering the holding of a competition ( that is to say, that the Bureau makes a proposal, the Commission gives its agreement and the Council - and not merely its Secretary-General - makes the decision ) would clearly be unreasonable and impractical, the agreed practice has long been that such decisions are made by the Economic and Social Committee itself . It may therefore be assumed that had the Economic and Social Committee made such a proposal, as the applicant says it should have, the proposal would have met with the agreement of the Commission and the Council and the content of the decision to order the holding of a competition would not have differed from that made independently by the Economic and Social Committee .

34 . Coupled with the fact that in connection with the adoption of the appointment decision the Council and the Commission made no objections whatsoever to the preparatory stages of the procedure, that means that the applicant cannot be deemed to have an interest in asserting that the Economic and Social Committee failed to comply with Article 57 of its Rules of Procedure with regard to the decision to hold a competition .

35 . ( e ) It must therefore be concluded that there are no obstacles to the admissibility of the claim against the Economic and Social Committee . It must however be accepted that a material basis of claim ( that just discussed ) may not be put forward .

II - Substance

36 . ( a ) The applicant complains first of all that the fact that it was the Secretary-General of the Economic and Social Committee who ordered the holding of a competition for the post of Head of the Greek Translation Division was not in accordance with Article 57 of the Rules of Procedure of the Committee, since under that article the powers which the Staff Regulations confer on the appointing authority, in the case of officials in Grade LA*3 and as regards inter alia Article 30, are to be exercised by the Council, acting on a proposal from the Bureau and with the agreement of the Commission . If the delegation of such power were to be held possible, it was added during the oral procedure, it could be delegated only to the Bureau of the Economic and Social Committee and not to its Secretary-General, who is not even mentioned in that regard .

37 . The Economic and Social Committee, on the other hand, took the view that Article 57 of its Rules of Procedure should not be interpreted in an unrealistic and impractical manner but should be allowed to have a useful function . In the light of the fact that the number of persons employed by the Economic and Social Committee has considerably increased and that at the Council itself the appointing authority for all officials other than those in Grade A*1 is its Secretary-General, that can only mean that the participation of the Council and the Commission in decisions concerning the holding of competitions at the Economic and Social Committee and in the conduct of such competitions is unnecessary . It may also be pointed out that the procedure followed in this case has been followed as a matter of practice for several years in a series of cases . That might be thought to give rise to a rule of customary law, or as it was put less strongly in the oral procedure it might be thought necessary to interpret that provision reasonably in accordance with consistent practice ( as the Court considered appropriate in Case 30/70*(19 ) with regard to the adoption by the Council of secondary legislation under Article 43 of the EEC Treaty ).

38 . In view of what I have already said with regard to the question of admissibility I do not need to go further into this dispute . In the interests of completeness I shall discuss it in a summary manner, setting out a few fundamental points .

39 . Let me say right away that I think there is a lot to be said for the view expressed by the Economic and Social Committee . Certainly it seems clear that since Article 57 refers without distinction to Article 39 of the Staff Regulations as a whole a literal interpretation of Article 57 would mean that the decision to hold a competition is one which in respect of LA*3 posts requires the combined action of the Bureau of the Economic and Social Committee, the Commission and the Council . It may easily be recognized, however, that the sole purpose of Article 57 is to give the Commission and the Council a say in the staff policy of the Economic and Social Committee with regard to posts in superior grades . For that purpose it is sufficient that those institutions should participate in the final decisions filling posts. It can hardly have been intended that in the case of posts filled by competition those institutions should participate in the introductory and preparatory stages and that it should be the Council itself that should participate ( which is not as a rule required in respect even of its own staff ). On the basis of the judgment referred to above it might also be said that a consistent practice over a period of years which has not been disputed ( and indeed has in part been confirmed, in so far as promotions are concerned ) has given rise to a sort of authentic interpretation of a measure adopted by the Economic and Social Committee with the agreement of the Council . Finally, it must not be forgotten ( and it thus becomes unnecessary to delve further into the conditions under which a rule of customary law contrary to the wording of a measure may be held to have come into existence ) that all the institutions referred to in Article 57 participated without reserve in the final decision filling the post and that any defect in the introductory procedure was thus cured ( with regard also to the actions of the Secretary-General, in respect of which the discussion of the proposal for an appointment in the Bureau of the Economic and Social Committee was not without relevance ).

40 . On the basis of Article 57 of the Rules of Procedure of the Economic and Social Committee, together with Article 29 of the Staff Regulations, it cannot therefore be concluded that the initiation of the competition procedure by the Secretary-General was unlawful .

41 . ( b ) The applicant has criticized the conduct of the competition in a number of respects .

42 . ( i ) First of all, he argues that the candidates were treated in a discriminatory manner, inasmuch as during the first competition in January 1982 he was prohibited from exercising the duties of Head of the Greek Translation Division, while during the second competition Mr Ts . was subject to no such prohibition .

43 . It must be stated in that regard that there is no basis for the suggested principle to the effect that during the procedure for the filling of a post none of the candidates may be called upon to exercise the duties of the post to be filled . That clearly cannot be the case, since otherwise the interim exercise of the duties of a post to be filled would frequently be impossible, which would give rise to considerable organizational problems or hamper the functioning of the administration .

44 . Furthermore, it is not clear how the circumstance referred to by the applicant could have influenced the result of the competition, and in particular how it could have had a negative effect on his performance in the competition, as he suggests .

45 . In reply to the applicant' s submissions it may also be pointed out that discrimination arises only where differing conditions are applied to the candidates in a single competition, and not where the conditions governing a previous competition are departed from . There is no suggestion of any such discrimination in this case since, if I have understood the matter correctly, during the second competition the practice was continued under which the applicant and Mr Ts . carried out the duties of Head of the Greek Division on an alternating basis . Both of them thus had the opportunity to show their merits, and there is no reason to conclude that Mr Ts . could have derived any advantage .

46 . ( ii ) With regard to the composition of the selection board the applicant complains in general that it did not ensure objectivity and in particular that there was no Greek member of the board; in his reply he further asserted that no member of the board had a command of the Greek language .

47 . With regard to that submission it must be pointed out ( and this shows that it does not constitute a material criticism ) that it has not been proved that the members of the board ( who in any event did not know the names of the candidates during the written tests ) failed in any way in their duty to conduct the tests impartially . The mere fact that the board was composed in part of superiors of the applicant is not sufficient in that respect . If it were to be held otherwise, it would frequently be impossible to appoint an appropriate and competent selection board .

48 . On the more specific point it should be noted that the Economic and Social Committee stated, without being contradicted, that one of the members of the selection board understood Greek quite well and furthermore that the board was assisted by two Greek examiners, as is provided for by the second paragraph of Article 3 of Annex III to the Staff Regulations . There can be no doubt, therefore, that the selection board had sufficient resources and that a proper assessment of the candidate' s capabilities was ensured .

49 . ( iii ) Finally, with regard to the conduct of the tests, the applicant argues that the selection board exceeded its powers inasmuch as it also considered the personality and character of the candidates . In his reply he also submitted that candidates were given a legal text to revise and not, as prescribed in the notice of competition, a text of a general nature .

50 . Nor do these submissions show any material defects in the procedure .

51 . What the applicant has described as a "personality test" was in fact nothing more than the assessment of the capacities and character traits necessary for the direction of an administrative unit . Since Vacancy Notice No 84/81 states that the post involves the organization and supervision of the work of the Greek Translation Division and expressly requires the ability to direct an administrative unit the selection board cannot be said to have gone beyond its mandate by considering the matter .

52 . With regard to the second point, on the other hand, it is clear from the explanations of the Economic and Social Committee that the applicant has made a mistake . Paragraph 7*(a ) of the notice of competition calls for an essay in Greek on a subject of a general nature; the nature of the translated text to be revised is not specified, on the other hand, and in the light of the kind of work done at the Economic and Social Committee it does not seem inappropriate to set a legal text .

53 . ( iv ) It must therefore be concluded that no objection can be made to the conduct of the competition procedure on any of the grounds put forward by the applicant .

2 . The preparation of the appointment decision

54 . As I have already mentioned, under Article 57 of the Rules of Procedure of the Economic and Social Committee LA*3 posts are filled by the Council with the agreement of the Commission, upon a proposal from the Bureau of the Economic and Social Committee . In the applicant' s view - and this constitutes a further ground of claim - such a proposal was not properly made in this case . That is to say, at the meeting of the Bureau on 17 October 1984 a proposal for the appointment of Mr Ts . was submitted by the Secretary-General and was immediately accepted . That shows first of all that in the selection from the list of suitable candidates the Secretary-General exercised a power of decision which was not properly his . Since the members of the Bureau were given only the list of suitable candidates ( and not, as in another case to be decided on the same day, application documents and career descriptions ) and since no oral comments were made on the proposal, it is also clear that there was no critical examination of other candidates, and thus no comparative assessment of the merits of all the candidates . Had there been such an assessment the chances of the applicant would have been better, since the marks obtained by him and by Mr Ts . in the competition were practically identical and the applicant is older ( which generally plays a role in such matters ), has more experience and has a better knowledge of languages .

55 . This submission does not in my view constitute a basis for the annulment of the decision .

56 . To start with, it is not correct to say that in the light of the results of the competition and all relevant factors the applicant ought to have had the better chance of being appointed . It is not true that he received a more favourable or at least an equivalent assessment to that of Mr Ts . In the written test he did have a slight advantage, of two points; in the oral test, however, Mr Ts . received a much more favourable assessment and therefore obtained a higher total mark . That is due to the fact that the applicant' s linguistic knowledge was found to be less good ( in the absence of any evidence we are not in a position to judge whether, as the applicant asserts, his command of English was incorrectly assessed ), his general knowledge and his knowledge of the functioning of the Community were also considered to be less good, and his ability to direct an administrative unit was not assessed favourably . In such circumstances there was certainly no reason to give overriding weight to the applicant' s greater age and longer experience .

57 . With regard to the forming of a view by the Bureau of the Economic and Social Committee, on the other hand, it is true that there was no discussion of the proposal for an appointment submitted by the Secretary-General and that at the meeting itself there was no comparative assessment of the merits of the candidates . That does not mean, however, that there was a defect in the procedure .

58 . The applicant' s starting point is wrong, inasmuch as he relies on the wording of Article 45 of the Staff Regulations concerning promotion procedures (" consideration of the comparative merits" of officials ). In the case of competitions it is necessary merely to select an individual from the list of suitable candidates drawn up by the selection board . As a rule the candidate at the head of the list is taken, and only in the event of a departure from the order of merit determined by the selection board is it necessary to state specific grounds ( see judgment in Case 62/65*(20 )); under Article 30 of the Staff Regulations a comparative assessment of the merits of all persons on the list of suitable candidates is not necessary .

59 . The applicant' s assumption ( put forward during the oral procedure, and therefore probably too late ) that the Secretary-General of the Economic and Social Committee took too great a part in the making of the appointment proposal is also incorrect . According to all we have been told he merely made a certain recommendation ( which surely falls within his duty to advise the Bureau as set out in Article 56 of the Rules of Procedure ) and there is no indication that he took part in the vote on the proposal for an appointment .

60 . Finally, with regard to the selection itself to be made in accordance with Article 30 of the Staff Regulations, there is nothing to suggest that it was not correctly made, since all the members of the Bureau were able to prepare for it on the basis of the list of suitable candidates provided to them and at the meeting ( during which, we are told, the Secretary-General held all the necessary documents at the disposal of the members ) members had the possibility of clearing up or dealing more extensively with any matters of uncertainty . Reference may be made to the analogous procedure which was followed in the circumstances leading up to Case 26/85*(21 ) ( in connection with the adoption of a decision appointing an official it was considered sufficient that the Members of the Commission and their personal staff had the opportunity to become familiar with the personal files of the candidates before the meeting and that the Secretary-General held those personal files at their disposal during the meeting ). In such circumstances it was entirely correct, in the minutes of the meeting of 17 October 1984, to speak of careful consideration of all candidates . Had that not been in accordance with reality it is unlikely that the minutes of that meeting would have been approved in the minutes of the following meeting on 20 November 1984 .

61 . It does not seem necessary to go into the fact that in respect of another point on the agenda of the meeting of 17 October 1984 ( which had not previously been examined by a selection board ) application documents and career descriptions were distributed, and it may therefore be concluded, without hearing the evidence put forward by the applicant regarding the conduct of that meeting, that the proposal for the appointment of Mr Ts . was correctly made by the Bureau of the Economic and Social Committee and that the decision appointing him cannot be annulled on the basis of a substantial defect .

3 . Abuse of discretion

62 . Finally, the decision appointing Mr Ts . is attacked on the basis that "les jeux étaient faits d' avance"; that is to say, the appointment of Mr Ts . was decided on from the beginning, and the competition procedure was followed only for the sake of appearances .

63 . The applicant advances a number of indications to justify this serious allegation . He points to the fact that the minimum age was lowered for the second competition ( so as to permit Mr Ts . to take part ), the fact, discussed above, that the proposal for his appointment was passed by the Bureau of the Economic and Social Committee without discussion and a number of events which are said to show that as far as the Director-General for Administration ( also chairman of the selection board ) was concerned the appointment of Mr Ts . was an established fact ( on 19 July 1984, even before the formal submission of the report of the selection board, the chairman of the board called Mr Ts . to his office and informed him that he would be appointed; on the same day Mr Ts . held a party to celebrate his appointment; a few days later he moved into the office of the Head of the Greek Division and started to carry out the duties of that post, while in 1984 the applicant was no longer consulted by his superiors on problems concerning the Greek Division ).

64 . In my view that is not sufficient to substantiate the applicant' s claim .

65 . It must be recalled that in the final analysis appointment decisions such as the one now at issue are made by the Council with the agreement of the Commission . I cannot see, therefore, how it could be influenced by anything done within the Economic and Social Committee in which at most its Director-General for Administration was involved, that is to say a person who could not even influence the proposal to be made by the Bureau .

66 . Furthermore, the following remarks may be made on the "indications" put forward by the applicant ( in so far as they are worthy of serious consideration ).

67 . The Economic and Social Committee was able to show that the lowering of the minimum age for the second competition was an appropriate measure since it allowed a larger number of people to take part ( the first competition was unsuccessful because there were too few participants ) and it also appears, as was stated without contradiction, that that is now the usual practice .

68 . The Economic and Social Committee also denies that the Director-General for Administration told Mr Ts . in July 1984 that he would be appointed, and that also seems plausible since the Director-General is naturally aware of the prescribed appointment procedure . Reference may also be made to the notice in writing dated 22 August 1984 received by the applicant, who was absent on 19 July 1984, according to which the Bureau was to draw up a proposal for appointment, and to the answer given on 10 October 1984 to the applicant' s note of protest, according to which the Director-General for Administration had given no information that might prejudge the selection of the future Head of the Greek Division, such selection being a matter for the Council .

69 . The Economic and Social Committee also disputes the assertion that from April 1984 onwards the applicant was no longer consulted in matters concerning the Greek Division and emphasizes that he continued to be consulted until November 1984 . Reference might be made in particular to a note dated 26 September 1984 from the Director-General for Administration to the Head of the Translation Directorate according to which the work of the Greek Division was to be organized as before, in cooperation with the applicant and Mr Ts .

70 . Finally, we have also been given a plausible explanation of the fact that the official subsequently appointed took over the office of the Head of the Greek Division ( it was apparently necessary for Mr Ts . to give up his office to a colleague transferred from the Parliament ). It was also correctly pointed out that such an internal arrangement within the Greek Division, in which the administration was involved, could naturally have no influence on the decision to be taken by the Bureau and by the appointing authority .

71 . It does not appear necessary to hear the witnesses proposed by the applicant, and it may therefore be concluded that there are no serious indications of any abuse of discretion which would justify more detailed consideration of this allegation .

72 . 4 . It must therefore be concluded that none of the applicant' s submissions substantiate his claim .

C - Conclusion

73 . In conclusion, therefore, I can only propose that the Court dismiss the action and rule on costs in accordance with Article 70 of the Rules of Procedure .

(*) Translated from the German .

( 1 ) Judgment of 19 March 1964 in Case 18/63 Wollast v EEC (( 1964 )) ECR 85 .

( 2 ) Judgment of 7 April 1965 in Case 28/64 Mueller v Council of the EEC and Council of the EAEC (( 1965 )) ECR 237 .

( 3 ) Judgment of 30 September 1975 in Case 50/74 Asmussen v Commission and Council (( 1975 )) ECR 1003 at p . 1013 .

( 4 ) Judgment of 27 October 1981 in Joined Cases 783 and 786/79 Venus and Obert v Commission and Council (( 1981 )) ECR 2445 at p . 2461, paragraph 22 .

( 5 ) Opinion of 12 June 1986 in Case 255/85 Pressler-Hoeft v Court of Auditors (( 1986 )) ECR 2459 at paragraph 4 et seq .

( 6 ) Judgment of 14 July 1983 in Case 144/82 Detti v Court of Justice (( 1983 )) ECR 2421 .

( 7 ) Judgment of 14 December 1965 in Case 11/65 Morina v Parliament (( 1965 )) ECR 1017 .

( 8 ) Judgment of 14 December 1965 in Case 21/65 Morina v Parliament (( 1965 )) ECR 1033 .

( 9 ) Judgment of 16 October 1984 in Case 257/83 Williams v Court of Auditors (( 1984 )) ECR 3547 .

( 10 ) Judgment of 6 February 1986 in Case 143/84 Vlachou v Court of Auditors (( 1986 )) ECR 473 .

( 11 ) Judgment of 11 March 1986 in Case 294/84 Adams v Commission (( 1986 )) ECR 984 .

( 12 ) Judgment of 15 March 1973 in Case 37/72 Marcato v Commission (( 1973 )) ECR 361 .

( 13 ) Judgment of 13 April 1978 in Case 101/77 Ganzini v Commission (( 1978 )) ECR 915 .

( 14 ) Judgment of 20 March 1984 in Joined Cases 75 and 117/82 Razzouk and Beydoun v Commission (( 1984 )) ECR 1509 .

( 15 ) Judgment of 23 January 1986 in Case 173/84 Rasmussen v Commission (( 1986 )) ECR 204 .

( 16 ) Judgment of 10 July 1986 in Case 270/84 Licata v Economic and Social Committee (( 1986 )) ECR 2312 .

( 17 ) Judgment of 7 May 1986 in Case 52/85 Rihoux v Commission (( 1986 )) ECR 1564 .

( 18 ) Judgment of 23 April 1986 in Case 150/84 Bernardi v European Parliament (( 1986 )) ECR 1387 .

( 19 ) Judgment of 17 December 1970 in Case 30/70 Scheer v Einfuhr - und Vorratsstelle fuer Getreide und Futtermittel (( 1970 )) ECR 1197 .

( 20 ) Judgment of 15 December 1966 in Case 62/65 Serio v Commission (( 1966 )) ECR 561 at p . 570 .

( 21 ) Judgment of 23 October 1986 in Case 26/85 Vaysse v Commission (( 1986 )) ECR 3131 .