JUDGMENT OF 9.6.1964 — JOINED CASES 94 AND 96/63 BERNUSSET v COMMISSION
In Joined Cases 94 and 96/63
THE COURT (Second Chamber) composed of: Ch. L. Hammes (Rapporteur), President, R. Rossi and R. Lecourt, Judges, Advocate-General: K. Roemer Registrar: A. Van Houtte
gives the following
JUDGMENT
Issues of fact and of law
I — Facts
Case 94/63
Case 96/63
II — Conclusions of the parties
III — Submissions and arguments of the parties
A — As to the admissibility of the applications and the naming of the defendants as parties
B — As to the substance
Submissions common to both applications
1. Infringement of Article 110: Absence of general measures for giving effect to Article 45
2. Infringement of Article 5(4): Absence of any description of the duties and powers attaching to the posts
3. Infringement of Article 45 (1): Absence of criteria for promotion laid down in advance
4. Infringement of the first paragraph of Article 25: Absence of a statement of reasons
5. Infringement of Article 45 (1) : Absence of inadequacy of consideration of comparative merits of candidates
Submissions relating to the individual applications
Case 94/63
1. Infringement of the second paragraph of Article 25: Failure to publish the contested decision
2. Infringement of the rules on the written procedure
Case 96/63
1. Misuse of powers by infringement of Article 45 in conjunction with Article 108
2. Misuse of powers by infringement of Article 45
IV — Procedure
Grounds of judgment
A — As to naming the defendants as parties and as to the admissibility of the applications
B — As to the substance
As to the submissions common to both applications
1. As to the first submission
2. As to the second submission
3. As to the third submission
4. As to the fourth submission
5. On the fifth submission
Costs
I —. Facts
II —. Conclusions of the parties
1. the proposal of the Executive Secretary.
2. the opinions given by the administration.
3. the personal files of the candidates.
III —. Submissions and arguments of the parties
A —. As to the admissibility of the applications and the naming of the defendants as parties
B —. As to the substance
1. Infringement of Article 110:
2. Infringement of Article 5(4):
3. Infringement of Article 45 (1):
4. Infringement of the first paragraph of Article 25:
5. Infringement of Article 45 (1) :
1. Infringement of the second paragraph of Article 25:
2. Infringement of the rules on the written procedure
(a). The Commission, which claims that it adopted the written procedure, should have decided on the procedure for the application of Article 11 of its internal regulations and if that was not done there is at least an infringement of an essential procedural requirement or of a rule of law relating to the application of the Treaty.
(b). The Commission should have stated its reasons for making an exception to Article 2 of its internal regulations which provide that in general it must meet to make its decisions.
(c). The agreement of the Commission was arrived at as the result of the initiative of the Executive Secretary whereas the first paragraph of Article 11 of the internal regulations provides that where the written procedure is used agreement shall be reached on a proposal by one of the members of the Commission.
(a). The first part does not accord with the facts, since the Commission, after adopting its internal regulations, maintained its own procedure, laid down on 8 December 1960, for applying the written procedure and applied it in the present case.
(b). The joint effect of Articles 2 and 11 of the internal regulations is that these leave it to the Commission to decide, in the exercise of its discretion, from one case to another, whether the decision shall be made when it meets or under the written procedure, save that, as a general rule, it shall not reach a decision by means of the written procedure. When the Commission in the exercise of its discretion adopts the written procedure, it is not obliged to state its reasons for so doing.
(c). The proposal adopted in the present case is indeed a proposal of the President of the Commission. The Executive Secretary acting on instructions merely set the machinery of the written procedure in motion.
1. Misuse of powers by infringement of Article 45 in conjunction with Article 108
2. Misuse of powers by infringement of Article 45
IV —. Procedure
A —. As to naming the defendants as parties and as to the admissibility of the applications
B —. As to the substance
1. As to the first submission
2. As to the second submission
3. As to the third submission
4. As to the fourth submission
5. On the fifth submission
On those grounds, Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties; Upon hearing the opinion of the Advocate-General; Having regard to the Treaty establishing the European Economic Community, especially Articles 173 and 179; Having regard to the Protocol on the Statute of the Court of Justice of the European Economic Community; Having regard to the Staff Regulations of officials of the European Economic Community, especially Articles 5, 25, 27, 43, 45, 90, 91 and 110; Having regard to the Rules of Procedure of the Court of Justice of the European Communities; THE COURT (Second Chamber) hereby:
1 Annuls the decision of 8 July 1963 whereby the Commission of the European Economic Community appointed Mr Edoardo Volpi to the post of Assistant in the Directorate-General of Administration) declared vacant by Vacancy Notice No 546;
2 Annuls the decision of 3 July 1963 whereby the Commission of the European Economic Community appointed Mr Dieter Rogalla to the post of Principal Administrator in the Directorate-General of Administration declared vacant by Vacancy Notice No 515;
3 Orders the Commission of the European Economic Community to bear the costs.