OPINION OF MR ADVOCATE-GENERAL GAND

DELIVERED ON 4 FEBRUARY 1965 (*1)

Mr President,

Members of the Court,

Applications 12 and 29/64 which have been brought before you by Mr Ley, a Principal Administrator with the Commission of the EEC, not only pose delicate problems of admissibility and procedure, but also require you to resolve the interpretation and application of various articles of the Staff Regulations of the EEC with regard to the detailed rules on recruitment and promotion.

Under the terms of Article 4 of these Regulations, vacant posts in an institution shall be notified to the Staff of that institution once the appointing authority decides that the vacancy is to be filled. To this end, Article 29 provides that authority shall consider whether to promote or to transfer staff, and whether to hold an internal competition, and also to consider requests for transfer by officials of other institutions. That Article also provides for open competitions which may take different forms, and even for recourse to be had to a recruitment procedure other than competition for the selection of officials in Grades A1 and A2 and in exceptional cases for posts requiring special qualifications.

All this emphasizes the fact that filling a vacant post is a complex operation which commences with the decision to fill the vacant post and ends with the decision appointing its new occupant. Within the bounds of this procedure are interposed the different steps which I have indicated, the various procedures employed to select the holder of the post. What position should be given to each of these procedures? Should the different steps take place in a fixed sequence? Is the administration bound to exhaust one possibility before passing to the next? Such are the questions more or less directly put by the applications. But before we examine them, let us first examine the facts which form the basis of the dispute.

On 29 October 1962 Vacancy Notice No 403 with regard to a post of Head of Division (A3) in the Cartels, Monopolies, Dumping and Private Discrimination Directorate of the Directorate-General of Competition was published in EEC Commission Staff Information Bulletin No 16. This post was open by way of promotion to Principal Administrators in the grade immediately below.

The Bulletin contained many other vacancy notices preceded by a general notification inviting officials who, without fulfilling the conditions laid down for promotion, were interested in the vacant posts to inform the administration with a view to arranging a possible internal competition. The notification ended thus: ‘If no-one expresses an interest, a competition will not be held; if the reverse is the case, the procedure for competitions will be followed for this post, for which there will be a new vacancy notice’.

Mr Ley, who had for some months temporarily occupied the post declared vacant, lodged his application as did twelve of his colleagues. But, in its meeting of 26 February 1964 and after much deliberation, the Commission finally decided not to fill the vacancy by promotion (the procedure provided for in Article 29 (1) (a) of the Staff Regulations), not to hold an internal competition (Article 29 (1) (b)) and to consider requests for transfer from officials in other institutions of the Communities (Article 29 (1) (c)). It may be stated from the outset that on 28 July 1964, that is to say, after the applications were lodged, the Commission decided not to fill the post within the framework of the procedure of Article 29 (1) (c) and arranged an open competition on the basis of qualifications and written tests.

On 9 March 1964, Mr Ley, taking advantage of Article 90 of the Staff Regulations, submitted a complaint to the Commission whereby he asked for the reasons why his application had not been accepted, disputed the right of the administration, when a post is not filled by promotion, to pass to the transfer procedure without holding an internal competition and finally referred to the rumour that the vacant post had from the very beginning been reserved for a person of Italian nationality, which is against the letter and spirit of the Staff Regulations.

Without waiting for a reply to his complaint, Mr Ley brought Application 12/64 before you on 6 April 1964. He asks you to declare null and void Vacancy Notice No 403, the notification of vacant posts which accompanied it and also, so far as necessary, the decisions of the Commission which form the basis of those publications; further to declare null and void the deliberations of 26 February 1964 whereby the Commission decided not to fill the post in question by promotion or transfer, not to hold an internal competition and to solicit applications for transfer.

Then, in Case 29/64, Mr Ley, on 9 July, brought before you a new application as an extension of the previous one containing exactly the same conclusions. It differs only to the extent that it contains a fresh issue which was not clearly raised in the reply in Application 12/64.

Finally, in an application for the adoption of an interim measure the applicant requested the suspension of the recruitment set in motion under Article 29 (1) (c). On this point, an order of the President of the Court of 4 May 1964 dismissed his claim and ordered him to bear his own costs. He now requests a fresh ruling on this latter point and that the Commission should bear all the costs including those of the said application.

In order not to complicate further an already complicated file, I shall examine the case which has been brought before you in the following order. Application 12/64, Application 29/64 and the costs of the application for the adoption of an interim measure.

Application 12/64

I —There is no discussion on the admissibility of the conclusions directed against the decisions of the Commission of 26 February 1964 in connexion with the procedures referred to in Article 29 (1) (a), (b) and (c). On the other hand, the Commission maintains that the conclusions directed against the vacancy notice and the notification appended thereto are inadmissible as being out of time, since they were presented seventeen months after the publication of the measures to which they refer. Moreover, the applicant has not interest to justify contesting these measures. Although a vacancy notice can sometimes be of adverse effect by reason of the conditions which it contains (see your judgment of 4 March 1964 in the Lassalle case), it has not happened in this case. With regard to the notification, it is not a decisive factor and does not bind the appointing authority in the exercise of its functions: the fact that no applications were made would not have prevented that authority from holding an internal competition if it had reason to believe that it would produce useful results.

The complex nature of the recruitment operation, which I have stressed, and the interest in not allowing a procedure vitiated at the outset from running its full course justifies applicants in directly attacking the initial measure, for example the decision declaring the post vacant, within the period of three months provided for in Article 91, but only within that period. The Commission admits that the legality of that measure might later be disputed as a preliminary objection in support of an application made against the final measure in the procedure, that is to say, the appointment of an official or the decision not to fill the vacant post in question which alone could definitively eliminate the applicant's chances. The Commission does not, on the other hand, admit this right when intermediate measures, the decision not to hold an internal competition or to solicit requests for transfer, are disputed.

Such a solution seems to me too rigid, lacking in logic and expediency. Why wait until the end of so long and arduous a procedure (two years have now elapsed without the post's having been filled) to check its legality? If one admits, as does the Commission, that the conclusions against these intermediate measures are admissible, why not allow the defects vitiating the earlier measures to be invoked at that stage? And since both parties have referred to French administrative law, I should like to state that in the case of complex operations the latter allows criticism of the legality of prior measures in an appeal against subsequent measures without the necessity of waiting for the final measure in the procedure.

In this case, whatever the nature of the EEC Commission Staff Information Bulletin, publication in this review — the tide shows its addresses — of the vacancy notice and the annexed notification was sufficient to allow for the period for appeal against these two measures to expire. The conclusions relating to them are therefore out of time; but I think that the applicant nonetheless retains his right to contest the decisions of 26 February 1964, especially on the basis of the defects by which these measures of 1962 are said to be vitiated, by putting forward the submissions claiming to obtain their annulment out of time.

On the other hand, if Mr Ley has an interest in claiming the annulment of the decisions of 1964 — which the Commission does not contest — he may do so by all the submissions properly set forth in his application in conformity with Article 38 of the Rules of Procedure, without the necessity of considering whether he had a further interest in obtaining the annulment of certain of the prior measures which, according to the submissions put forward, are irregular.

Having made these observations, I shall successively consider the various submissions put forward in Application 12/64.

The first is derived from the infringement of Article 110 of the Staff Regulations in that, contrary to the provisions of that Article, the vacancy notice procedure and the recruitment procedure referred to in Articles 4 and 29 respectively were not first the subject of general provisions for giving effect to them, adopted after consultation with the Staff and the Staff Regulations Committee, and that, assuming that these general provisions were adopted, they were not in any event brought to the attention of the staff.

I —This is a submission with which we are well acquainted since you have often encountered it. By your judgments (in particular those in the Pistoj and Huber cases) it is established that these general provisions are obligatory only if their absence makes impossible the application of a rule of the Staff Regulations or means that it is not implemented in the proper form. This does not seem to be the case here, either with regard to Article 4 which provides for the publication of the vacancy notice, or with regard to Article 29 which deals with recruitment, if this Article is taken in the context of Annex HI on competitions. The existence of the present application is not a sufficient argument for affirming the need for general provisions within the meaning of Article 110. No matter how precise and detailed legal rules may be, they will never prevail against the eagerness of applicants and the ingenuity of their counsel. It is true that the Commission has laid down the practice for its departments by directives, particularly with regard to competitions. But they are internal measures, not having the status of a regulation; the misinterpretation of them would not constitute an irregularity and would not come within the scope of Article 110. It therefore seems to me that the first submission should be rejected.

Mr Ley maintains in the second place, and with no more justification, that the ‘notification’ attached to the vacancy notice also infringes Article 110. In a third submission raising still finer distinctions he adds that that notification is vitiated on the ground of misuse of powers, since the Commission thus prevented officials who might have been promoted, and in particular himself, from lodging their applications for an internal competition, when nothing in the Staff Regulations precludes that category of officials from participating in such a competition.

The Commission gave a twofold reply to this submission: in the first place the applicant misunderstands the real scope of the disputed measure, the sole object of which was to assist the administration in considering whether to hold an internal competition; if, following that consideration, it had been decided to hold such a competition, that competition would have been the subject of a new notice and nothing would have precluded the applicant from applying. But it is rather difficult to reconcile that reply with the terms of the notification addressed, as it will be remembered, only to the officials who could not claim promotion, and which ends with the statement that if no official concerned put himself forward the competition would not be held. It may be wondered whether in this case the decision in fact taken not to hold a competition did not rest, in part at least, on the notion that officials eligible for promotion are not admitted to internal competitions, which would constitute, if not a misuse of powers, at least an error of law vitiating that decision. Support can be found for this theory in certain passages of the proposals presented to the Commission by the Commissioner in charge. It is stated therein that, after the Directorate-General concerned rejected at this stage the idea of promoting a principal administrator, it considered, while rejecting it, whether to hold an internal competition finding that no official had displayed interest in participating in such a competition. And it appears that only officials in lower grades were concerned. The Commissioner in charge declares that he shares the point of view of the Directorate-General. It does not however emerge from the numerous minutes of the Commission, which took the final decision on this point, that it was guided by a false appraisal in law or in fact of the situation of officials who could claim promotion, which appraisal was the consequence of the unfortunate wording (to say the least) of the ‘notification’. It therefore seems to me that the submission should not be upheld.

The Commission adds that, since the officials who might be promoted are not entitled to have an internal competition held, they have no grounds for contesting the measure which made the holding of the competition dependent on the application of officials not entitled to promotion. But I shall come back to this topic which relates to the extent of the appointing authority's power of appraisal.

The fourth submission is directed against the decisions of 26 February 1964 and Mr Ley's claims for their annulment are admissible. They consist in failing to select the applicant for the vacant post (Article 29 (1) (a)), not holding an internal competition (Article 29 (1) (b)) and carrying out the transfer procedure (Article 29 (1) (c)).

In this connexion let us read the application: ‘In any event, the decisions taken by the Commission … (those I have just quoted) should be annulled on the ground of misuse of powers, since the sole aim of the Commission was to confer this post on a person of Italian nationality who is not even within the Community institutions’.

In the reply the applicant adds that these same decisions are vitiated owing to infringement of the Staff Regulations which, contrary to what the Commission maintains, require that once the stage of promotion had been passed the Commission was obliged to hold an internal competition before passing to the stage of transfer.

In its second form is the submission admissible in support of Application 12/64? I think not. According to Article 38 of the Rules of Procedure, the application shall contain a brief statement of the grounds on which it is based, and Article 42 (2) precludes the raising of a fresh issue in the course of proceedings ‘unless it is based on matters of law or of fact which come to light in the course of the written procedure’. And, to avoid any argument by analogy which Mr Ley tries to invoke, I should like to state here that the wording of the Rules is much more restrictive than that laid down by French Administrative law.

As has been seen, the application does not refer at all to any infringement of law or of the Staff Regulations. No doubt such infringement was mentioned in the administrative complaint submitted under Article 90, but that complaint does not form an integral part of the application and the latter was not submitted against an implied decision of rejection which had not yet been made; it directly contests the Commission's decisions.

In the second place, the infringement of the Staff Regulations cannot be regarded as a new line of argument intended to support the earlier submission based on misuse of powers. The two submissions, dealing with the different defects of the decision under criticism, are distinct. Misuse of powers consists in using those powers for ends other than those for which they were conferred; the measure would be legal if it were not affected by the motive. Infringement of the law, on the other hand, necessarily implies an illegal object and does not depend on the intentions, good or bad, of the perpetrator.

Finally, if it is a fresh issue, the issue relating to the infringement of the Staff Regulations cannot benefit from the derogation appearing in Article 42 (2) of the Rules of Procedure. It is of little importance that the Commission, in its observations in defence, affirmed that it has a power of appreciation with regard to the holding of an internal competition; it has never been disputed that the Commission ‘skipped’ the stage of internal competition in order to pass directly to that of transfer. This necessarily implies that, as opposed to Mr Ley's interpretation of Article 29, it does not consider itself obliged to hold this competition. An alleged infringement of the Staff Regulations could, and therefore should, have been invoked when the application was lodged. It is not connected with any element of law or of fact which has come to light in the course of the written procedure.

Nor does it seem to me to be a matter which the Court should raise of its own motion, so that the submission is inadmissible and I shall leave it now but will return to it in Application 29/64.

There is on the other hand no doubt that misuse of powers may be invoked on the ground that the contested decisions had as their aim to confer the vacant post on a person of Italian nationality who was not even in one of the Community institutions. Although Article 27 of the Staff Regulations provides that recruitment shall be on the broadest possible geographical basis, that only concerns basic recruitment, on entry into the service; Article 7, on the other hand, provides that appointment and transfer shall be affected without regard to nationality, which cannot be taken into account where promotion is concerned. And Mr Ley refers to the doctrine which you propounded in your judgment in <i>Lassalle</i> v <i>European Parliament.</i> In support of his claim, the applicant quotes a certain number of facts or allegations of extremely varied validity.

Nothing proves in the first place — this is the basic thesis — that the Commission had, in the Directorate-General for competition, a fixed policy of ‘geographical allocation’ such that, taking account of the nationality of the officials in that Directorate-General at the time of the contested decisions, it would necessarily have involved the choice of a person of Italian nationality. On the other hand, the defendant has produced extracts from the minutes of the numerous meetings in the course of which the Commission discussed the decisions to be taken for filling the post declared vacant. They indicate certain doubts on a legal plane, and a perhaps excessive desire to find a first-rate man for the post, a desire which was not satisfied by the material ‘at hand’; I have not found anything very conclusive, for I cannot consider as such the fact that the Commissioner in charge gave the Commission, at its request, information relating to the allocation of posts within the Directorate-General, the use made of the vacant posts, the geographical balance, etc… And Mr Ley's argument is rather weakened by the fact that two candidates for promotion of Italian nationality were rejected on the same ground as himself, as it does not seem to me certain, contrary to what is claimed by the applicant, that these candidates did not fulfil the conditions required by the vacancy notice.

In reality the sole factor which lends support to his argument is the overtures conducted by the Commissioner in charge to the professors and authorities in Italy soliciting applicants from that country. The fact seems indisputable, although it is unpleasant to establish it by reference, as the applicant does, to the archives of the Directorate-General, to which officials have access for the requirements of the service and not for their appeals. It does not however seem to be sufficient by itself to establish (that the decisions of the Commission were vitiated by misuse of powers; the proof of this may indeed be by any means, but proof is nevertheless necessary. Here there is none. It is impossible to content yourselves with vague assumptions and you should reject the submission.

One final submission remains, based on the fact that the decisions of 26 February 1964 are, according to the application ‘null and void for infringement of Article 25 of the Staff Regulations on the ground of an insufficient or inexact statement of reasons’.

In fact, as the Commission shows in its defence, this submission presents two very different aspects.

Article 25 provides that any decision relating to a specific individual which is taken under these Staff Regulations shall at once be communicated in writing to the official concerned. Any decision adversely affecting an official shall state the reasons on which it is based. We are concerned here with a formal requirement. But the contested decisions relate to the choice of the means of recruitment which the authority intends to employ; because of this, they do not seem to me to fall within the framework of Article 25 which in reality deals with decisions relating to specific individuals and adversely affecting them. This is the case even if the disputed decision consists in refusing to make an appointment under Article 29 (1) (a). I think that your judgment in the Raponi case that a decision of appointment need not contain a statement of reasons, with regard either to the official appointed or to the other candidates, can be transposed into the present situation: there is no longer any cause to give a statement of reasons when the authority decides not to appoint anyone.

But Mr Ley also disputes the accuracy of the reasons on which the Commission based its decisions and which, although not express, nevertheless exist. We are therefore concerned here with a submission relating both to procedure and to internal legality which was scarcely outlined in the application.

The minutes reveal in the first place the decision not to fill the vacant post within the framework of the promotion procedure, and show that it was taken after consideration of the comparative merits of the candidates and of the reports on them, which are the terms employed by Article 45 on promotion. Mr Ley considers that it does not appear that this comparative examination was thorough or that it was effected with full knowledge of the case. In particular, it does not seem that the Commission examined the personal files of the persons concerned, or took account of the fact that the applicant had temporarily occupied the post.

But the fact that, in failing to appoint anyone, the Commission was not required to produce an order of merit did not necessarily preclude it from holding the comparative examination referred to in Article 45. And nothing leads one to believe that this examination was not genuine and thorough. A consultation of the personal files is not obligatory on pain of nullity, and the applicant himself summarized his services in a note on the official application form.

The decision not to hold an internal competition remains. The Commission knew that no official in a grade lower than that of those eligible for promotion had contemplated lodging an application. It could easily appraise whether, in these circumstances, a competition should be held in which only those eligible for promotion would appear. I do not see that this decision can be criticized on the grounds of insufficient or inexact reasons.

It thus appears that none of the submissions put forward in support of Application 12/64 can be admitted and I shall now pass to Application 29/64 which will not detain me so long.

Application 29/64

This application, lodged on 10 July 1964, is directed against the same decisions as those which gave rise to the preceding application; it puts forward the same conclusions and is based on the same submissions as those put forward in Application 12/64, merely adding to them a submission in the reply based on the infringement of the law in not holding an internal competition, by which the decision is said to be vitiated. As I have already suggested to you, the sole reason why it appears is in case this submission should be considered to be out of time in Application 12/64.

The admissibility of the application is disputed by the defendant who, not without reason, points to certain fluctuations and variations in the grounds which Mr Ley wishes to put forward. After first basing his application on the implied rejection on 9 May 1964 of the complaint submitted pursuant to Article 90 of the Staff Regulations, the applicant then presents it as though it were introduced independently of that complaint and in fact the conclusions are not directed against the rejection of the complaint, but against the decisions contested in Application 12/64.

Be that as it may, the Commission considers the application to be inadmissible, whether or not it depends on the complaint submitted pursuant to Article 90. In the first instance, certain of the contested measures were not referred to in that complaint and its implied rejection, to the extent that the rejection was concerned with the other measures, merely confirmed the former decisions and did not commence a fresh time-limit for an appeal. If, on the other hand, Application 29/64 is regarded as falling outside the scope of Article 90 of the Staff Regulations, it is then inadmissible for having been filed outside the period of three months provided for in Article 91.

I think that the application is in fact unconnected with the complaint, since it is still the former decisions which are contested, but the consequences which the Commission draws from them from the point of view of admissibility are not clear, unless with regard to the decision of 26 February 1964 which were neither published nor notified. They had certainly come to Mr Ley's knowledge at the latest on 9 March 1964, when he drew up his complaint, but can the knowledge acquired in this connexion serve as a starting point for the period of the appeal? This is the doubtful point. Counsel for the applicant pointed out very clearly in the oral procedure that the matter is expressly provided for in Article 173 of the Treaty of Rome, which deals generally with actions brought before you. With regard to disputes between the Community and its servants, Article 179 limits itself to stating that the Court of Justice shall have jurisdiction ‘within the limits and under the conditions laid down in the Staff Regulations’. Article 91 of the Regulations, whilst at the same time fixing a period of three months — consequently different from the period of time under ordinary law — provides that this period shall begin on the day of the publication of the measure by the competent authority or of the notification of the decision to the person concerned, according to whether a general or specific measure is at issue, without mentioning at all the date on which the knowledge came to the notice of the person concerned as causing the period to start to run. It may then be maintained that prescription cannot possibly have occurred, since three months did not elapse from the notification or publication, whichever was the case.

Two objections may be made against this argument. The first is that an appeal is premature as long as the formality causing the period to begin to run has not taken place. But what would happen then in an instance where the measure has already been implemented? One cannot stultify an appeal by failing to carry out a formality. The other objection is that the argument which in the present case allows two successive appeals to be brought against the same measure scarcely conforms to the spirit of the Rules of Procedure; it is an easy means of evading the prohibition against raising fresh issues in the course of proceedings. The disadvantages might be serious in certain cases, but I doubt whether they should cause a rule not contained in Article 91 of the Staff Regulations to be added to it. Not without hesitation, and at any rate without enthusiasm. I am thus led to agree to the admissibility of Application 29/64 to the extent that it is directed against the decisions of 26 February 1964.

At all events this will allow me to return to the submission dismissed above as out of time to the effect that, in failing to hold an internal competition before passing on to the transfer stage, the Commission infringed Article 29 of the Staff Regulations. This Article has been analysed at the Bar in its several translations which only vary from one another by the slightest nuances and although the applicant admits that the appointing authority may in principle at its discretion appraise the possibility of promotion and transfer, he denies that it has this same power for the following stage of recruitment, namely the internal competition. This stage, he says, is obligatory as it provides for a selection board, which must include in particular a representative of the staff, and is more advantageous for officials than the promotion procedure. Other institutions, moreover, consider the stage of internal competition as obligatory and regularly employ this means of recruitment; finally, speaking generally, the spirit of the Staff Regulations is that of internal preference.

The principle is indeed accepted, but unfortunately it seems to me that it has only been reproduced in the wording of Article 29 in a very attenuated form. Let us re-read the beginning of this Article in its French version:

‘En vue de pourvoir aux vacances d'emploi dans une institution, l'autorité investie du pouvoir de nomination, après avoir <i>examine:</i>

(a) <i>les possibilités</i> de promotion et de mutation au sein de l'institution;

(b) <i>les possibilités</i> d'organisation de concours internes a l'institution ….’

(‘Before filling a vacant post in an institution, the appointing authority shall first consider:

(a) <i>whether</i> the post can be filled by promotion or transfer within the institutions;

(b) <i>whether</i> to hold competitions internal to the institution;’).

It seems to me difficult to imagine that the same term ‘possibilities’ (‘whether’) employed in two successive lines of the same Article can have a different meaning in the two cases, and that it does not give the appointing authority as wide powers in the one case as in the other. Moreover, the obligation imposed on that authority is not an obligation to <i>act</i> but only to <i>consider.</i> Just as it is bound in the first place to consider whether to promote, it must then, before passing on to the transfer procedure, consider whether to hold an internal competition, but the fact that there are candidates who wish to present themselves is insufficient to compel the administration to hold one. Indeed I concur in the view that this system results in conferring upon the competent authority a certain discretionary power whether to hold a competition, but this does not seem to me in any way opposed to the wording of Article 29. This submission should therefore be rejected and Application 29/64 dismissed.

Lastly came the conclusion attached to Application 12/64 claiming that the part of the costs of the application for the adoption of an interim measure, which the applicant was ordered to bear by the order of the President of the Court of 4 May 1964, should be borne by the Commission. I should like to say from die outset that the dismissal of die two applications, if you agree with me, is a sufficient ground for upholding the contested decision.

The initial question, however, is on the admissibility of those conclusions. But whatever the implications of the line of argument based by the applicant on the provisional nature of orders in applications for the adoption of an interim measure which would require the question of the costs to be reserved until settlement of the case, it is sufficient in order to set such argument aside to refer to Article 86 of the Rules of Procedure which states that no appeal shall lie from an order in such an application. Since the imposition of costs was settled by the order, to request a modification in the allocation of these costs is to request a revision of the order. Such conclusions are not admissible.

I am therefore of the opinion that:

1.The conclusions of Applications 12/64 and 29/64 directed against Vacancy Notice No 403, the notification of posts vacant at the Commission of the EEC and against the provision of the order by the President of the Court of 4 May 1964 settling the costs of the application for the adoption of an interim measure should be dismissed as inadmissible;

2.The other conclusions of those applications should be dismissed as being without foundation;

3.Both parties should bear their own costs in accordance with Article 70 of the Rules of Procedure.

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(*1) Translated from the French.