JUDGMENT OF 31. 3. 1965 — JOINED CASES 12 AND 29/64 LEY v COMMISSION

In Joined Cases 12 and 29/64

THE COURT (Second Chamber) composed of: A. M. Donner, President of Chamber, W. Strauß and R. Monaco (Rapporteur), Judges, Advocate-General: J. Gand Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Summary of the facts

II — Conclusions of the parties

III — Submissions and arguments of the parties

With regard to Case 12/64

On admissibility

On the substance of the case

First submission

Second and third submissions

Fourth submission

Fifth submission

With regard to Case 29/64

On admissibility

As to the substance of the case

IV — Procedure

Grounds of judgment

With regard to Case 12/64

On admissibility

On the substance of the case

With regard to the submission of misuse of powers

With regard to the submission of infringement of Articles 25 and 45 of the Staff Regulations

With regard to the submission of infringement of Article 29 (1) of the Staff Regulations

With regard to the conclusions against the order in Application 12/64 R for the adoption of an interim measure

With regard to Case 29/64

Costs

I —. Summary of the facts

II —. Conclusions of the parties

1. Declare null and void Vacancy Notice No 403, the notification of posts vacant with the Commission of the EEC appearing at page 3 of EEC Commission Staff Information Bulletin No 16 of 29 October 1962 and, if necessary, the decisions of the Commission which gave rise to those publications;

2. Declare null and void the deliberations of the Commission of 26 February 1964 whereby it was decided not to fill the post in question by promotion or transfer, and not to hold internal competitions but to solicit applications from officials in the other institutions of the three Communities;

3. Rule that the Commission should be ordered to pay all the costs of the proceedings.

1. In accordance with the second paragraph of Article 21 of the Protocol on the Statute of the Court of Justice of the EEC require the institutions not being parties to the case to state what interpretation they have until now given in practice to Article 29 (1) (a) and (b) and in particular whether:

2. Order the defendant to produce all the following documents:

III —. Submissions and arguments of the parties

1. The defendant states that the application is inadmissible in so far as it is directed against Vacancy Notice No 403 and the notification accompanying that notice. Since the appeal was introduced more than 17 months after the publication of the said notice and notification, it is not within the period laid down by Article 91 (2) of the Staff Regulations.

2. The defendant maintains moreover that the submission of infringement of the Staff Regulations raised in the rejoinder is inadmissible because it has been raised out of time.

3. Finally the defendant states that the submission relating to the inaccuracy of the reasons on which the decisions of 26 February 1964 were based relates to an infringement of the law rather than to the infringement of an essential procedural requirement (Article 25 of the Staff Regulations) invoked in the application and that it should be dismissed as inadmissible in so far as it was explicitly mentioned for the first time in the reply.

1. The applicant claims that these decisions are null and void because of misuse of powers on the ground that their aim is to confer the vacant post on a person of Italian nationality who is not even in the Community institutions. Such an aim is contrary to Articles 7, 27 and 45 of the Staff Regulations and the view propounded by the Court in Lassalle v European Parliamentary Assembly.

2. In his reply, moreover, the applicant analyses the content of Article 29 (1) of the Staff Regulations, concluding therefrom that the contested decisions of 26 February 1964 are not only vitiated by misuse of powers, but also involve an infringement of the Staff Regulations.

1. With regard to the ground of complaint of misuse of powers, the applicant's argument is without foundation, since the contested decisions are justified by reasons solely derived from the interest of the service. Attention to maintaining a geographical balance in the recruitment of staff is entirely legitimate when it coincides with the interest of the service and makes it possible to achieve the aim contained in Article 27 of the Staff Regulations. It becomes illegal when it renders the role of nationality the principal — or only — criterion of selection (cf. also the judgment of the Court in Lassalle v European Parliamentary Assembly).

2. With regard to the ground of complaint of infringement of the Staff Regulations, the system of internal preference established by Article 29 (1) of the Staff Regulations renders it obligatory for the appointing authority, in considering the various means of recruitment, to have regard to the order of precedence established therefor, but it is not automatically bound by it. The administration thus maintains a discretion to appraise whether each of these means is, in a particular case, liable to result in the recruitment of an official of the highest standard of ability, efficiency and integrity (first paragraph of Article 27 of the Staff Regulations).

(a). with regard to the disputed notification, it is not required that an official who applies for promotion should necessarily apply for an internal competition, as the official is in any event taken into consideration for this competition;

(b). with regard to the decisions of 26 February 1964, the appointing authority is required to hold an internal competition and thus respect the successive stages of the recruitment and appointment procedure provided for by Article 29 of the Staff Regulations.

IV —. Procedure

(1). The present application is directed inter alia against Vacancy Notice No 403 and the notification of posts vacant at the Commission published in the EEC Commission Staff Information Bulletin of 29 October 1962.

(2). In the reply, the applicant raises for the first time the submission of infringement of Article 29 (1) of the Staff Regulations in connexion with the decisions of 26 February 1964.

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 Article 179 of the Treaty establishing the European Economic Community; Having regard to Articles 4, 25, 29, 45, 90 and 91 of the Staff Regulations; Having regard to the Protocol on the Statute of the Court of Justice of the European Economic Community; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, especially Articles 69, 70 and 86 (1); THE COURT (Second Chamber) hereby:

I Dismisses Application 12/64 as being unfounded;

2 Dismisses Application 29/64 as being inadmissible;

3 Dismisses the request for revision of the order made in Application 12/64 R for the adoption of an interim measure as inadmissible;

4 Orders the applicant to pay the costs of the actions, with the exception of the costs incurred by the defendant.