OPINION OF MR ADVOCATE-GENERAL ROEMER

DELIVERED ON 21 NOVEMBER 1967 (*1)

Mr President,

Members of the Court,

In the case on which I am giving my opinion today we are concerned with the appeal of an official of the former High Authority which contests the appointment of another official. In the oral proceedings of 15 November 1967 the Chamber heard the parties solely on the subject of the admissibility of this appeal. Accordingly my opinion today will be confined to the question of admissibility.

We must begin with the following facts.

On 25 February 1966 the High Authority instituted an internal competition for the purpose of filling the post of administrator in Category A7 in the office of the adviser attached to the Directorate-General for Administration and Finance. The applicant was among those who participated in this competition. She succeeded in passing through the various stages of the procedure including the written and oral tests. Finally, the Selection Board put her name first in the list of suitable candidates. Accordingly the Directorate-General for Administration and Finance submitted to the Administrative Committee of the High Authority that the applicant should be appointed to the advertised post. A preparatory working party of the Administrative Committee had also unanimously recommended this appointment. The Administrative Committee itself expressed no reservations and the Directorate of Personnel therefore finally submitted to the President of the High Authority the list of suitable candidates drawn up by the Selection Board with the proposal that the applicant should be appointed.

The President of the High Authority, however, did not follow this proposal but decided to appoint the applicant placed second in the list of suitable candidates. The applicant was informed of the unfavourable result, so far as she was concerned, of the competition by a note from the Directorate-General for Administration and Finance dated 14 July 1966. About the same time (13 July 1966) a notice was posted up declaring that the post hitherto occupied by the candidate appointed was vacant. Since the applicant was not prepared to accept this state of affairs she lodged with the President of the High Authority a ‘requete gracieuse’ of 2 September 1966 in which she gave a detailed description of all the circumstances of the competition, spoke of certain accusations which had been made against her on account of her alleged prior knowledge of the subject-matter of the written test and of the harm to her career as a result of the President's decision and asked the President to examine in what manner she could obtain satisfaction. She repeated this action by formal complaint under Article 90 of the Staff Regulations made on 13 October 1966 in which she referred to the arguments which she had advanced on 2 September 1966. Finally she received a letter from the President of the High Authority dated 17 October 1966 which, referring to the request of 2 September 1966, emphasized that the matters set out in that request had had no influence on the result of the competition and that the decision was issued solely on the basis of the report of the Selection Board, and taking account of the personal files of the applicants and of the requirements of the service.

It is not exactly clear at the present time what were the negotiations which subsequently took place. The only thing which is certain is chat (the applicant only brought proceedings before the Court of Justice on 3 February 1967 and submitted the following claims:

1.for the annulment of the appointment on the basis of competition HA/INT/15/A;

2.for a declaration that the High Authority is under an obligation to appoint the application to the post advertised with retroactive effect;

3.for an order against the High Authority for the payment of damages for loss of income.

The High Authority responded with a request for the application to be dismissed in its entirety as inadmissible and as unfounded but expressly declared that it left the decision as to admissibility to be determined by the Court of Justice.

Legal consideration

In these circumstances, when we attempt to arrive at a decision on the admissibility of the application (and this is indispensable since the question is one which the Court must examine of its own motion and which cannot be allowed to remain in abeyance), the following considerations arise from the argument in the oral proceedings relating to the application for annulment which is the principal matter.

The admissibility of this request depends essentially on whether the periods described in Article 91 of the Staff Regulations were observed. The essential point of departure is the date of the formal decision of appointment (29 July) together with the fact that the applicant had already learnt of the result of the competition on 15 July 1966. Accordingly, the period of three months under Article 91 of the Staff Regulations ran from 30 July 1966 and within this period an appeal could have been made with the object of having the appointment of the other candidate annulled. In fact the appeal was not brought within this period, but this is of no importance since according to our case-law, which is consistent on this point, it is enough for the matter to be submitted in good time to the administrative authority in order to interrupt the limitation period. In this connexion two complaints by the applicant require consideration in the circumstances of this case: the first, dated 2 September 1966 and described as a ‘requête gracieuse’, and the second dated 13 October 1966 which refers expressly to Article 90 of the Staff Regulations. However, in accordance with the applicant's wishes only the second complaint should be taken into consideration, since the first does not satisfy the requirements of Article 90 of the Staff Regulations (observance of the requirement that a request be submitted through an official's immediate superior). It is possible to accept this point of view although it is contradicted by the applicant's conduct with regard to the bringing of her appeal, and although it must be observed that she only complied with the duty laid down in Article 38 (4) of the Rules of Procedure by submitting her ‘requête gracieuse’ of 2 September 1966. In fact our problem is not even solved if we start with the complaint of 13 October 1966 and are prepared to accept moreover that it sets forth with sufficient clarity the request contained in her later appeal. The President of the High Authority in fact gave an express and negative reply on 17 October 1966 so that the question arises whether at least from this date the three months' period under Article 91 did not begin to run. In principle I am inclined to answer this question in the affirmative. It is true that the President's answer refers solely to the request of 2 September 1966; however, so does the formal complaint of the applicant of 13 October 1966, that is to say, it contains no new arguments and can therefore quite properly be regarded as covered by the decision of 17 October 1966. Moreover, one would not arrive at a different conclusion even if one were to accept that the decision of 17 October had already been signed even before the formal complaint was lodged, since the applicant, in the absence of any new factors in her complaint of 13 October, had to proceed on the basis that the President of the High Authority would not go back on his confirmation of the earlier decision of appointment which is apparent in his decision of 17 October 1966, but on the contrary would treat that confirmation as final. In these circumstances the application would have to be regarded as out of time and would have to be dismissed as inadmissible since it was only lodged at the Court of Justice after 17 January 1967.

In the oral proceedings other considerations were urged, however, with a view to producing a different assessment. You will remember that counsel for the applicant argued that as late as December 1966 and January 1967 oral and written negotiations had taken place with the Cabinet of the President of the High Authority in the course of which die High Authority had advised against the institution of proceedings before the Court and the prospect was held out that an examination of the applicant's case would take place upon the return of the President, who was then absent, and that the matter would be settled once and for all.

If this were true — and of course this supposes that certain formal requirements were observed — then the conclu sion would certainly be justified that the decision of the President of 17 October was not to be regarded as final any more than — leaving aside the said decision — the implied decision of rejection which came into existence with the expiry of the two months' period following the submission of the complaint of 13 October 1966. On the contrary, grounds for an appeal would only have arisen after the endeavours to obtain a settlement in January 1967 had finally been proved to be abortive.

The question thus arises as to the manner in which the Chamber must reach its decision in this unusual situation. Is it entitled simply to proceed on the basis that the applicant's allegations appear to be well founded because the High Authority at first did not contest the admissibility of the application in the proceedings or should the Chamber disregard the allegations since the applicant has brought no proof of them? Neither of these solutions appears to me to be acceptable. The first because questions of admissibility are not to be left to the discretion of the parties and because the Commission's representative stated that the events recounted by the applicant were not known to the administration. The second solution, based on the absence of proof, must be rejected because in view of the Commission's conduct with regard to the questions of admissibility in the proceedings it could not be expected of the applicant that she should tender evidence on the subject of admissibility without being called upon to do so by the Court, such evidence involving inter alia the production of documents which she regards as confidential.

In order to obtain the necessary clarification of the facts it seems to me to be appropriate now to direct the applicant to produce proof in support of the validity of her allegations. Should she refuse to do so for any reason, for example in view of the confidentiality of the documents in question, then she must be prepared to accept that we shall disregard her argument on this point.

To summarize:

In view of the present state of the case it does not seem to me to be possible to reach a final decision on the admissibility of the application and this applies not only to the application for annulment but to the other requests since these two are affected by the problems in question. Accordingly I propose that an order be made directing the applicant to produce appropriate proof of the truth of her allegations and only thereafter to proceed to decide on the admissibility of the application or to proceed to an examination of the substance of the case.

(*1) Translated from the German.