Opinion of Mr advocate-general Roemer

Mr President,

Members of the Court,

The applicant in the proceedings with which my opinion is concerned today has been in the service of the Commission of the European Economic Community since 1 June 1959. He tells us that he was in charge of two of the five Internal Affairs Departments in succession, and at the time of commencing this action he was classified under Grade A/3 as Head of Department for Translation, Copying and Distribution of Documents.

In response to a notice of vacancy posted on 30 August 1962 he applied, together with four other Community officials, for the vacant post of Director of Internal Affairs within the Directorate-General for Administration (Grade A/2). However the Commission, by Decision of 13 February 1963, filled the advertised post by promoting another candidate. On various grounds, the applicant considers this Decision to be illegal and seeks to have it annulled by the Court.

He bases his application on the argument that the Commission neglected to supplement the rules governing promotion contained in the Staff Regulations with implementing provisions; more over, the statement of reasons for the decision making the promotion was defective and the decision was based on a false appreciation of the facts.

I. Before we examine these submissions in detail, two points should be made relating: to procedure.

1. The first concerns the right of action and can be stated briefly. We are faced with the question whether an action is admissible when brought by a competitor of the person promoted to contest a decision of promotion.

2. Secondly, a few words should be said about the party named as defendant.

II. Let us now turn our attention directly to the individual submissions, considering first those which concern the failure to supplement the Staff Regulations by implementing provisions.

1. In the applicant's opinion the Commission should have taken three steps before issuing the Decision on promotion :

2. This leaves only the submissions relating to the defects inherent in the Decision on promotion, that is to say, the complaint that there was no statement of reasons and the evaluation of the facts was made in the wrong way.

III. I am therefore of the opinion that the Court should allow the application, annul the contested Decision, order the Commission to bear the costs and refer the matter back to the Commission for fresh consideration.

1 Translated from the German.

2 Cf. Laws of 19.10.1946 and 28.4.1952, Ordonnances of 4.2.1959 and 4.6.1959; Plantey, Traité Pratique de la Fonction Publique, 1963, Vol. II, pp. 422, 434 et seq.

3 Statute of 2.10.1937, Arrêté Royal of 7.8.1939 in conjunction with Arrêté Royal of 2.10.1937; Vauthier, Précis du Droit Administratif de la Belgique, 1950, Vol. I, pp. 110 et seq.

4 Zanobini, Corso di Diritto Amministrativo, 1955, Vol. III, pp. 332 et seq., Vitta, Diritto Amministrativo, 1955, Vol. II, p. 324.

5 Bundesbeamtengesetz Ed. 1 October 1961, BGBl. i, 1801, § § 8 and 23; Reichsgrundsätze on installation, appointment and promotion, BGBl. 1951, i, p. 88; Bundeslaulbahnverordnung Ed. 2 August 1961, BGBl. I, 1173, § § 9, 27, 33.

6 Kommentar zum Bundesbeamtengesetz by Plog-Wiedow, note 4 to § 25, note 11 to § 8.

7 Article 13 (a) of the Algemeen Rijksambtenarenreglement of 12.6.1931 Ed. 26.7.1963, pub. Jeukens-van der Horst-Roelofs, Arnbtenarenrecht, Vol. II.