OPINION OF MR ROEMER — JOINED CASES 94 AND 96/63 BERNUSSET v COMMISSION
Mr President,
Members of the Court,
As in the recently decided proceedings 27/63 (Raponi v Commission of the European Economic Community), the present cases relate to the consideration of decisions on promotion by the Commission. They were taken in one case on 3 July 1963 in order to fill a post in the Personnel Administration Division (Grade A4) and in the other on 8 July 1963, following the completion of the written procedure, in order to fill the post of Assistant to the Director-General of Administration (also Grade A4). In both cases the applicants, already officials of the Commission classified in Grade A5, submitted applications, but in both cases the Commission selected other candidates. Hence the applicant's decision to contest the aforementioned decisions on promotion by applications for annulment.
The legal consideration of the present cases is made very much easier by the fact that the arguments advanced are largely covered by arguments we have heard in the Raponi case. This applies especially to the complaint of infringement of Articles 5, 25, 45 and 110 of the Staff Regulations. As the parties have decided not to argue their cases in oral procedure and as the Court has not to consider any fresh views of its own motion I can content myself with a reference to my opinion and to the judgment of the Court in the Raponi case.
Accordingly:
On the other hand some special problems of fact and law must be treated in depth because so far no solution of them has been indicated in other cases.
1. To these belongs the argument raised in the written procedure that the decision on promotion in Case 94/63 was illegal because it was not posted in the premises of the institution immediately after its adoption and published in the Monthly Staff Bulletin as provided by Article 25 of the Regulations.
3. A third argument relates to Case 96/63 alone. It rests upon the fact that the contested decision was adopted on 3 July 1963 but was to take effect from 1 November 1963 because not until then could the promoted candidate have completed two years' service in his former grade.
4. In Case 96/63 the complaint was also made that the promotion was made on account of the nationality of the candidate; that from the outset the post filled was kept for an official of a particular nationality.
5. For the above reasons it seems to me that there is no need to investigate the applicant's further arguments which although put forward in the written procedure were not taken up at the hearing. I will not therefore go further into the complaint of misuse of powers made in Case 96/63 on the grounds that the candidate promoted was a specialist in customs law whilst the applicant possessed a thorough knowledge of Community public service law as required in the vacancy notice and for the same reasons I shall not investigate the complaints in Case 94/63 in relation to the provisions for giving effect to the written procedure (admissibility of the written procedure in the adoption of decisions on promotion; failure to publish the provisions for the application of Article 11 of the internal regulations of the Commission; absence of any grounds showing that the written procedure is necessary; setting in motion of the written procedure on the proposal of the executive secretary and not on that of the President of the Commission).
6. To sum up, I conclude that in both cases on promotion submitted to the Court serious deficiencies in the promotion procedure are to be found. On these grounds the contested decisions must be annulled and under Article 69 of the Rules of Procedure the Commission must be ordered to bear the costs.
1 Translated from the German.