Opinion of Mr advocate-general Gand
Mr President,
Members of the Court,
Applications 12 and 29/64 which have been brought before you by Mr Ley, a Principal Administrator with the Commission of the EEC, not only pose delicate problems of admissibility and procedure, but also require you to resolve the interpretation and application of various articles of the Staff Regulations of the EEC with regard to the detailed rules on recruitment and promotion.
Under the terms of Article 4 of these Regulations, vacant posts in an institution shall be notified to the Staff of that institution once the appointing authority decides that the vacancy is to be filled. To this end, Article 29 provides chat that authority shall consider whether to promote or to transfer staff, and whether to hold an internal competition, and also to consider requests for transfer by officials of other institutions. That Article also provides for open competitions which may take different forms, and even for recourse to be had to a recruitment procedure other than competition for the selection of officials in Grades A1 and A2 and in exceptional cases for posts requiring special qualifications.
All this emphasizes the fact that filling a vacant post is a complex operation which commences with the decision to fill the vacant post and ends with the decision appointing its new occupant. Within the bounds of this procedure are interposed the different steps which I have indicated, the various procedures employed to select the holder of the post. What position should be given to each of these procedures? Should the different steps take place in a fixed sequence? Is the administration bound to exhaust one possibility before passing to the next? Such are the questions more or less directly put by the applications. But before we examine them, let us first examine the facts which form the basis of the dispute.
On 29 October 1962 Vacancy Notice No 403 with regard to a post of Head of Division (A3) in the Cartels, Monopolies, Dumping and Private Discrimination Directorate of the Directorate-General of Competition was published in EEC Commission Staff Information Bulletin No 16. This post was open by way of promotion to Principal Administrators in the grade immediately below.
The Bulletin contained many other vacancy notices preceded by a general notification inviting officials who, without fulfilling the conditions laid down for promotion, were interested in the vacant posts to inform the administration with a view to arranging a possible internal competition. The notification ended thus: If no-one expresses an interest, a competition will not be held; if the reverse is the case, the procedure for competitions will be followed for this post, for which there will be a new vacancy notice.
Mr Ley, who had for some months temporarily occupied the post declared vacant, lodged his application as did twelve of his colleagues. But, in its meeting of 26 February 1964 and after much deliberation, the Commission finally decided not to fill the vacancy by promotion (the procedure provided for in Article 29 (1) (a) of the Staff Regulations), not to hold an internal competition (Article 29 (1) (b)) and to consider requests for transfer from officials in other institutions of the Communities (Article 29 (1) (c)). It may be stated from the outset that on 28 July 1964, that is to say, after the applications were lodged, the Commission decided not to fill the post within the framework of the procedure of Article 29 (1) (c) and arranged an open competition on the basis of qualifications and written tests.
On 9 March 1964, Mr Ley, taking advantage of Article 90 of the Staff Regulations, submitted a complaint to the Commission whereby he asked for the reasons why his application had not been accepted, disputed the right of the administration, when a post is not filled by promotion, to pass to the transfer procedure without holding an internal competition and finally referred to the rumour that the vacant post had from the very beginning been reserved for a person of Italian nationality, which is against the letter and spirit of the Staff Regulations.
Without waiting for a reply to his complaint, Mr Ley brought Application 12/64 before you on 6 April 1964. He asks you to declare null and void Vacancy Notice No 403, the notification of vacant posts which accompanied it and also, so far as necessary, the decisions of the Commission which form the basis of those publications; further to declare null and void the deliberations of 26 February 1964 whereby the Commission decided not to fill the post in question by promotion or transfer, not to hold an internal competition and to solicit applications for transfer.
Then, in Case 29/64, Mr Ley, on 9 July, brought before you a new application as an extension of the previous one containing exactly the same conclusions. It differs only to the extent that it contains a fresh issue which was not clearly raised in the reply in Application 12/64.
Finally, in an application for the adoption of an interim measure the applicant requested the suspension of the recruitment set in motion under Article 29 (1) (c). On this point, an order of the President of the Court of 4 May 1964 dismissed his claim and ordered him to bear his own costs. He now requests a fresh ruling on this latter point and that the Commission should bear all the costs including those of the said application.
In order not to complicate further an already complicated file, I shall examine the case which has been brought before you in the following order. Application 12/64, Application 29/64 and the costs of the application for the adoption of an interim measure.
Application 12/64
I —. There is no discussion on the admissibility of the conclusions directed against the decisions of the Commission of 26 February 1964 in connexion with the procedures referred to in Article 29 (1) (a), (b) and (c). On the other hand, the Commission maintains that the conclusions directed against the vacancy notice and the notification appended thereto are inadmissible as being out of time, since they were presented seventeen months after the publication of the measures to which they refer. Moreover, the applicant has not interest to justify contesting these measures. Although a vacancy notice can sometimes be of adverse effect by reason of the conditions which it contains (see your judgment of 4 March 1964 in the Lassalle case), it has not happened in this case. With regard to the notification, it is not a decisive factor and does not bind the appointing authority in the exercise of its functions: the fact that no applications were made would not have prevented that authority from holding an internal competition if it had reason to believe that it would produce useful results.
II —. Having made these observations, I shall successively consider the various submissions put forward in Application 12/64.
1. The first is derived from the infringement of Article 110 of the Staff Regulations in that, contrary to the provisions of that Article, the vacancy notice procedure and the recruitment procedure referred to in Articles 4 and 29 respectively were not first the subject of general provisions for giving effect to them, adopted after consultation with the Staff and the Staff Regulations Committee, and that, assuming that these general provisions were adopted, they were not in any event brought to the attention of the staff.
2. and 3. Mr Ley maintains in the second place, and with no more justification, that the notification attached to the vacancy notice also infringes Article 110. In a third submission raising still finer distinctions he adds that that notification is vitiated on the ground of misuse of powers, since the Commission thus prevented officials who might have been promoted, and in particular himself, from lodging their applications for an internal competition, when nothing in the Staff Regulations precludes that category of officials from participating in such a competition.
4. The fourth submission is directed against the decisions of 26 February 1964 and Mr Ley's claims for their annulment are admissible. They consist in failing to select the applicant for the vacant post (Article 29 (1) (a)), not holding an internal competition (Article 29 (1) (b)) and carrying out the transfer procedure (Article 29 (1) (c)).
5. One final submission remains, based on the fact that the decisions of 26 February 1964 are, according to the application null and void for infringement of Article 25 of the Staff Regulations on the ground of an insufficient or inexact statement of reasons.
Application 29/64
This application, lodged on 10 July 1964, is directed against the same decisions as those which gave rise to the preceding application; it puts forward the same conclusions and is based on the same submissions as those put forward in Application 12/64, merely adding to them a submission in the reply based on the infringement of the law in not holding an internal competition, by which the decision is said to be vitiated. As I have already suggested to you, the sole reason why it appears is in case this submission should be considered to be out of time in Application 12/64.
The admissibility of the application is disputed by the defendant who, not without reason, points to certain fluctuations and variations in the grounds which Mr Ley wishes to put forward. After first basing his application on the implied rejection on 9 May 1964 of the complaint submitted pursuant to Article 90 of the Staff Regulations, the applicant then presents it as though it were introduced independently of that complaint and in fact the conclusions are not directed against the rejection of the complaint, but against the decisions contested in Application 12/64.
Be that as it may, the Commission considers the application to be inadmissible, whether or not it depends on the com plaint submitted pursuant to Article 90. In the first instance, certain of the contested measures were not referred to in that complaint and its implied rejection, to the extent that the rejection was concerned with the other measures, merely confirmed the former decisions and did not commence a fresh time-limit for an appeal. If, on the other hand, Application 29/64 is regarded as falling outside the scope of Article 90 of the Staff Regulations, it is then inadmissible for having been filed outside the period of three months provided for in Article 91.
I think that the application is in fact unconnected with the complaint, since it is still the former decisions which are contested, but the consequences which the Commission draws from them from the point of view of admissibility are not clear, unless with regard to the decision of 26 February 1964 which were neither published nor notified. They had certainly come to Mr Ley's knowledge at the latest on 9 March 1964, when he drew up his complaint, but can the knowledge acquired in this connexion serve as a starting point for the period of the appeal? This is the doubtful point. Counsel for the applicant pointed out very clearly in the oral procedure that the matter is expressly provided for in Article 173 of the Treaty of Rome, which deals generally with actions brought before you. With regard to disputes between the Community and its servants, Article 179 limits itself to stating that the Court of Justice shall have jurisdiction within the limits and under the conditions laid down in the Staff Regulations. Article 91 of the Regulations, whilst at the same time fixing a period of three months — consequently different from the period of time under ordinary law — provides that this period shall begin on the day of the publication of the measure by the competent authority or of the notification of the decision to the person concerned, according to whether a general or specific measure is at issue, without mentioning at all the date on which the knowledge came to the notice of the person concerned as causing the period to start to run. It may then be maintained that prescription cannot possibly have occurred, since three months did not elapse from the notification or publication, whichever was the case.
Two objections may be made against this argument. The first is that an appeal is premature as long as the formality causing the period to begin to run has not taken place. But what would happen then in an instance where the measure has already been implemented? One cannot stultify an appeal by failing to carry out a formality. The other objection is that the argument which in the present case allows two successive appeals to be brought against the same measure scarcely conforms to the spirit of the Rules of Procedure; it is an easy means of evading the prohibition against raising fresh issues in the course of proceedings. The disadvantages might be serious in certain cases, but I doubt whether they should cause a rule not contained in Article 91 of the Staff Regulations to be added to it. Not without hesitation, and at any rate without enthusiasm. I am thus led to agree to the admissibility of Application 29/64 to the extent that it is directed against the decisions of 26 February 1964.
At all events this will allow me to return to the submission dismissed above as out of time to the effect that, in failing to hold an internal competition before passing on to the transfer stage, the Commission infringed Article 29 of the Staff Regulations. This Article has been analysed at the Bar in its several translations which only vary from one another by the slightest nuances and although the applicant admits that the appointing authority may in principle at its discretion appraise the possibility of promotion and transfer, he denies that it has this same power for the following stage of recruitment, namely the internal competition. This stage, he says, is obligatory as it provides for a selection board, which must include in particular a representative of the staff, and is more advantageous for officials than the promotion procedure. Other institutions, moreover, consider the stage of internal competition as obligatory and regularly employ this means of recruitment; finally, speaking generally, the spirit of the Staff Regulations is that of internal preference.
The principle is indeed accepted, but unfortunately it seems to me that it has only been reproduced in the wording of Article 29 in a very attentuated form. Let us re-read the beginning of this Article in its French version:
It seems to me difficult to imagine that the same term possibilities (whether) employed in two successive lines of the same Article can have a different meaning in the two cases, and that it does not give the appointing authority as wide powers in the one case as in the other. Moreover, the obligation imposed on that authority is not an obligation to act but only to consider. Just as it is bound in the first place to consider whether to promote, it must then, before passing on to the transfer procedure, consider whether to hold an internal competition, but the fact that there are candidates who wish to present themselves is insufficient to compel the administration to hold one. Indeed I concur in the view that this system results in conferring upon the competent authority a certain discretionary power whether to hold a competition, but this does not seem to me in any way opposed to the wording of Article 29. This submission should therefore be rejected and Application 29/64 dismissed.
Lastly came the conclusion attached to Application 12/64 claiming that the part of the costs of the application for the adoption of an interim measure, which the applicant was ordered to bear by the order of the President of the Court of 4 May 1964, should be borne by the Commission. I should like to say from die outset that the dismissal of die two applications, if you agree with me, is a sufficient ground for upholding the contested decision.
The initial question, however, is on the admissibility of those conclusions. But whatever the implications of the line of argument based by the applicant on the provisional nature of orders in applications for the adoption of an interim measure which would require the question of the costs to be reserved until settlement of the case, it is sufficient in order to set such argument aside to refer to Article 86 of the Rules of Procedure which states that no appeal shall lie from an order in such an application. Since the imposition of costs was settled by the order, to request a modification in the allocation of these costs is to request a revision of the order. Such conclusions are not admissible.
I am therefore of the opinion that:
1 Translated from the French.