Avis juridique important

61965J0021

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Summary

1 . THE PROCEEDINGS OF THE SELECTION BOARD ARE NOT CHALLENGEABLE AS SUCH; THEIR LEGALITY MAY ONLY BE QUESTIONED IN AN APPLICATION DIRECTED AGAINST THE DECISION OF APPOINTMENT .

2 . CF . PARAGRAPH 2, SUMMARY, CASE 11/65 ( 1965 ) ECR 1017 .

ASSESSMENT OF THE EXPEDIENCY OR NECESSITY OF ORGANIZING A COMPETITION LIES WITHIN THE EXCLUSIVE DOMAIN OF THE APPOINTING AUTHORITY . IN THESE CIRCUMSTANCES, THE COURT CANNOT ORDER A COMPETITION TO BE HELD OR REHELD WITHOUT ENCROACHING UPON THE PREROGATIVES OF THE ADMINISTRATIVE AUTHORITY .

3 . THE REQUIREMENT LAID DOWN BY THE SIXTH PARAGRAPH OF ARTICLE 5 OF ANNEX III TO THE STAFF REGULATIONS OF OFFICIALS, WHICH STATES THAT THE REPORT SENT TO THE APPOINTING AUTHORITY BY THE SELECTION BOARD FOR THE COMPETITION MUST BE REASONED, IS A REQUIREMENT OF SUBSTANCE . THE STATEMENT OF REASONS MUST BE SUCH AS TO ENABLE THE AUTHORITY TO EXERCISE ITS DISCRETION WITH JUDGMENT, WHICH MEANS THAT IT NEEDS TO BE INFORMED OF BOTH THE GENERAL CRITERIA EMPLOYED BY THE SELECTION BOARD AND THE MANNER IN WHICH THESE WERE APPLIED BY THE BOARD TO THE PERSONS APPEARING ON THE LIST OF SUITABLE CANDIDATES . INFRINGEMENT OF THIS PRINCIPLE ADVERSELY AFFECTS THE UNSUCCESSFUL CANDIDATES WITHIN THE MEANING OF ARTICLE 91 .

Parties

IN CASE 21/65 DOMENICO MORINA, DOCTOR OF LAW, AN OFFICIAL OF THE EUROPEAN PARLIAMENT, RESIDING AT 4 RUE THEODORE-EBERHARD, LUXEMBOURG, ASSISTED BY CAMILLE LINDEN OF THE LUXEMBOURG BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF HIS SAID COUNSEL, 1 RUE SCHILLER, APPLICANT, V EUROPEAN PARLIAMENT, REPRESENTED BY ITS SECRETARY-GENERAL, HANS ROBERT NORD, ACTING AS AGENT, ASSISTED BY ALEX BONN OF THE LUXEMBOURG BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ITS SAID COUNSEL, 22 COTE-D' EICH, DEFENDANT,

Subject of the case

APPLICATION FOR THE ANNULMENT OF THE ASSESSMENT MADE BY THE SELECTION BOARD OF THE CANDIDATES FOR INTERNAL COMPETITION NO B12 AND CHALLENGING THE APPOINTMENT OF MR PIRAINO AS A RESULT OF THE SAID COMPETITION,

Grounds

I - ADMISSIBILITY 1 . THE DEFENDANT CONTENDS THAT THE APPLICATION IS INADMISSIBLE, FIRST, BECAUSE IT CHALLENGES THE ASSESSMENT MADE BY THE SELECTION BOARD AND, SECONDLY, BECAUSE IT SEEKS THE ANNULMENT OF THE APPOINTMENT OF MR PIRAINO . IT CONSIDERS THAT THE ASSESSMENT CANNOT BE QUESTIONED IN COURT, IN PARTICULAR ON THE GROUND THAT THE SELECTION BOARD'S OPINION IS NOT BINDING ON THE APPOINTING AUTHORITY AND THAT THE APPLICANT HAS BROUGHT NO VALID ARGUMENTS AGAINST THE APPOINTMENT, CONTENTING HIMSELF WITH CONCLUDING ITS ILLEGALITY FROM THAT OF THE PROCEDURE FOLLOWED BY THE SELECTION BOARD .

THE PROCEEDINGS OF THE SELECTION BOARD CANNOT, IN PRINCIPLE, BE CHALLENGED AS SUCH SINCE THE BOARD IS NOT A BODY EMPOWERED TO TAKE DECISIONS BINDING ON OFFICIALS; THE PROCEEDINGS ARE MERELY PREPARATORY ACTS, SO THAT THEIR ILLEGALITY MAY ONLY BE QUESTIONED IN AN APPLICATION DIRECTED AGAINST THE DECISION TO WHICH THEY WERE A PRELIMINARY .

THE APPLICANT HIMSELF, HOWEVER, HAS ACKNOWLEDGED THIS IN HIS APPLICATION, SINCE HE DECLARES THAT IT IS DIRECTED ' IN PARTICULAR ' AGAINST THE APPOINTMENT OF MR PIRAINO . THE APPLICATION DIRECTED AGAINST THE APPOINTMENT IS THEREFORE ADMISSIBLE AND THE CONCLUSIONS SEEKING THE ANNULMENT OF THE ASSESSMENT NEED ONLY BE CONSIDERED AS ARGUMENTS AGAINST THE DECISION MAKING THE APPOINTMENT .

2 . THE DEFENDANT CONTENDS THAT ' INASMUCH AS THE STATED OBJECT OF THE APPLICATION IS THE ANNULMENT OF THE COMPETITION ', THE APPLICATION IS INADMISSIBLE, AS UNDER ARTICLE 91 OF THE STAFF REGULATIONS, OFFICIALS MAY CHALLENGE ONLY SPECIFIC ACTS ADVERSELY AFFECTING THEM, NOT A COLLECTION OF MEASURES . THIS OBJECTION NEED NOT BE EXAMINED, THE COURT'S VIEW OF THE APPLICATION HAVING BEEN EXPLAINED ABOVE .

3 . THE APPLICANT CLAIMS THAT THE COURT SHOULD ORDER INTERNAL COMPETITION NO B12 TO BE REHELD ON THE CONDITIONS PREVIOUSLY LAID DOWN AND BETWEEN THE SAME PERSONS WHO APPEARED IN THE LIST OF SUITABLE CANDIDATES .

ASSESSMENT OF THE EXPEDIENCY OR NECESSITY OF ORGANIZING A COMPETITION LIES WITHIN THE EXCLUSIVE DOMAIN OF THE APPOINTING AUTHORITY .

IN THESE CIRCUMSTANCES, THE COURT CANNOT ORDER A COMPETITION TO BE HELD OR REHELD WITHOUT ENCROACHING UPON THE PREROGATIVES OF THE ADMINISTRATIVE AUTHORITY .

FOR THIS REASON, THESE CONCLUSIONS ARE NOT ADMISSIBLE .

THE ARGUMENT IS BASED ON THE SELECTION BOARD'S REPORT, WHICH WAS ONLY PLACED ON THE FILE BY THE DEFENDANT AFTER THE APPLICANT'S REPLY .

IN VIEW OF THIS ARGUMENT, BEING BASED ON MATTERS OF LAW AND FACT WHICH CAME TO LIGHT IN THE COURSE OF THE WRITTEN PROCEDURE, IS ADMISSIBLE ACCORDING TO ARTICLE 42(2 ) OF THE RULES OF PROCEDURE .

AS A RESULT OF THE ABOVE CONSIDERATION THE APPLICATION IS ADMISSIBLE .

II - THE SUBSTANCE OF THE CASE THE APPLICANT CLAIMS THAT, CONTRARY TO THE PROVISIONS OF THE THIRD AND SIXTH PARAGRAPHS OF ARTICLE 5 OF ANNEX III TO THE STAFF REGULATIONS, THE SELECTION BOARD NEGLECTED BOTH TO DETERMINE THE BASIC CRITERIA ACCORDING TO WHICH IT WAS TO ASSESS CANDIDATES' QUALIFICATIONS, AND TO STATE THE REASONS FOR THE REPORT SUBMITTED BY IT TO THE APPOINTING AUTHORITY .

IN RESPECT OF THE LIST OF SUITABLE CANDIDATES INCLUDED IN THIS REPORT, THE SELECTION BOARD MERELY STATED THAT IT HAD BEEN COMPILED ' AFTER CONSIDERATION OF THE QUALIFICATIONS OF THE CANDIDATES RELATIVE TO THE REQUIREMENTS FOR THE POST SET OUT IN THE COMPETITION NOTICE ... IN THE COURSE OF ITS MEETING ON 3 MARCH 1965 '.

IN THE CIRCUMSTANCES IT MUST BE CONSIDERED THAT THE SELECTION AND ASSESSMENT OF THE APPLICANTS ON THE LIST OF SUITABLE CANDIDATES WAS NOT SUPPORTED BY ANY STATEMENT OF REASONS . MORE PARTICULARLY, BY FAILING TO SET OUT THE CRITERIA ACCORDING TO WHICH IT MADE ITS ASSESSMENT OF THE QUALIFICATIONS, THE SELECTION BOARD OMITTED FROM ITS REPORT A FACTOR WHICH WAS ESSENTIAL TO SUPPORT THE STATEMENTS CONTAINED THEREIN; IT THEREBY INFRINGED THE PROVISIONS IN THE SIXTH PARAGRAPH OF ARTICLE 5 OF ANNEX III TO THE STAFF REGULATIONS, WHICH MUST BE CONSIDERED REQUIREMENTS OF SUBSTANCE . THE CRITERIA OF ASSESSMENT SHOULD BE FIXED IN ORDER TO ENSURE THAT THE QUALIFICATIONS ARE ASSESSED OBJECTIVELY AND WITHOUT ANY POSSIBILITY OF ARBITRARINESS .

IN ADDITION, THE REQUIREMENT THAT THE REPORT BE ' REASONED ' ENABLES THE APPOINTING AUTHORITY TO EXERCISE ITS DISCRETION WITH JUDGMENT, WHICH MEANS THAT IT NEEDS TO BE INFORMED OF BOTH THE GENERAL CRITERIA EMPLOYED BY THE SELECTION BOARD AND THE MANNER IN WHICH THESE WERE APPLIED BY THE BOARD TO THE PERSONS APPEARING ON THE LIST OF SUITABLE CANDIDATES . THESE REQUIREMENTS WERE ALSO IMPOSED IN THE INTERESTS OF CANDIDATES, SO THAT INFRINGEMENT OF THEM ADVERSELY AFFECTS THE UNSUCCESSFUL CANDIDATES WITHIN THE MEANING OF ARTICLE 91 OF THE STAFF REGULATIONS .

FOR THE ABOVE REASONS THE APPLICANT'S CLAIM SHOULD BE ADMITTED, WITHOUT ITS BEING NECESSARY TO EXAMINE THE REMAINDER OF HIS ARGUMENTS .

Decision on costs

UNDER THE TERMS OF ARTICLE 69(2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS . AS THE DEFENDANT HAS FAILED IN ITS DEFENCE, IT MUST BE ORDERED TO PAY THE COSTS .

Operative part

THE COURT ( SECOND CHAMBER ) HEREBY : 1 . ANNULS THE DECISION OF THE SECRETARY-GENERAL OF THE EUROPEAN PARLIAMENT DATED 10 MARCH 1965 APPOINTING MR PIRAINO TO THE POST OF ADMINISTRATIVE ASSISTANT ( B5-B4 ); 2 . ORDERS THE DEFENDANT TO PAY THE COSTS OF THE ACTION .