OPINION OF MR GAND — CASE 11/65 MORINA v PARLIAMENT

Mr President,

Members of the Court,

Mr Domenico Morina was engaged by the European Parliament on 17 November 1958 under a so-called Brussels contract, at a salary corresponding to that of the present Grade C3, and was subsequently integrated by a decision of 13 December 1962 and promoted to Grade C1, Step 1, with effect from 1 March 1962.

He applied to participate in Internal Competition No B 10, notice of which was given on 1 October 1962, to fill a vacant post of administrative assistant (career bracket B5-B4) in the Directorate-General of Administration. The notice specified that the post was to be filled at Grade 5 and that the competition was to be on the basis of qualifications; it mentioned as qualifications required a good, general, secondary education or experience of an equivalent level in employment. In addition, candidates were required to have a very extensive knowledge of one of the official languages of the Communities and a good knowledge of another official language and, for administrative reasons, a good knowledge at least of French was required.

Mr Morina was informed that his name was included in the list of suitable candidates drawn up at the end of the Selection Board's work, but it was another candidate appearing in this list, Mrs Louwage, who, by decision of 19 November 1964, was appointed to the vacant post with effect from 1 December 1964 and was classified in Grade 5. Subsequently, she was promoted by a decision of 5 February 1965 to Grade 4, again with effect from 1 December 1964.

It was in these circumstances that on 17 February 1965 Mr Morina made an application to the Court for the annulment of Internal Competition No B 10 and, consequently, of the decision of 19 November 1964 promoting Mrs Louwage to the career bracket of administrative assistant in Grade B5. In his conclusions he also seeks the annulment of this servant's promotion with retroactive effect to Grade B4. He asks you to order that the competition on the basis of qualifications be reheld under the conditions previously laid down and between the same candidates validly admitted to the competition. Finally, he wishes you to order the production of certain documents by the defendant, in particular those relating to the qualifications and appointments of Mrs Louwage, and seeks to be allowed to prove by any means that his own qualifications are better than those of the candidate who was preferred to him.

I

The Parliament raises various pleas of inadmissibility to the conclusions thus presented. It claims first of all that Mr Morina's request for the annulment of a competition, that is, of a collection of measures, is inadmissible and that only a request for the annulment of an individual measure whose legality he challenges would be admissible. Of course, he could argue for the annulment of the decision of 19 November 1964 appointing Mrs Louwage to the vacant post but, in order to do that, he merely challenges the list of suitable candidates drawn up by the Selection Board. As this Board enjoys an unfettered power of discretion, a discussion of the value of his qualifications is irrelevant, it is claimed, and his offer of proof is inadmissible. Finally, the Parliament alleges that criticism of the subsequent decision classifying Mrs Louwage in Grade 4 is not admissible either because, as the applicant himself is an official in Category C, he is not eligible for promotion within Category B and therefore has no legal interest in requesting the annulment of the decision in question.

None of these pleas of inadmissibility seem to me capable of being accepted.

In the first place, it is clear that the applicant requests the annulment of the work of the Selection Board, which he considers to be irregular and which has consequendy invalidated Mrs Louwage's appointment. Although the Selection Board enjoys a power of discretion—as does the authority which appoints—that power is not unfettered and must be exercised within the framework of both the Staff Regulations and Annex III thereto and the conditions laid down by the notice of competition. Thus in your judgment of 14 July 1965 in the case of Alvino and Others you noted that, as the Selection Board for a competition on the basis of qualifications acted ultra vires and thus invalidated the drawing up of the list of candidates admitted to the competition, the competition was illegal and could not constitute the legal basis for decisions of appointment or promotion. You consequently annulled the competition itself and the appointments made on the basis of the results thereof. It is therefore admissible for Mr Morina to criticize the work of the Selection Board for Competition No B 10 and to rely on the irregularity with which he declares it is tainted in order to seek the annulment of the decision of 19 November 1964 appointing Mrs Louwage to Grade B5.

There remains the decision of 5 February 1965. Its form differs from that of the previous decision only by a reference to the allocation of a new B4 post in the detailed list of posts then recently published in the Official Journal. It is not limited to promoting Mrs Louwage to Grade B4 with effect from 1 December 1964, that is to say, with retroactive effect to the same date on which the decision embodying the results of the competition was taken; it specifies in Article 3 that it rescinds and replaces the decision as to promotion of 19 November 1964. According to its wording, it constitutes the actual, definitive decision of appointment following upon the competition; as Mr Morina participated in the competition, it is admissible for him to challenge the measure which brought it to a close without exposing himself to the objection that the fact of his belonging to Category C prevents him from criticizing a promotion within Category B for which he is not eligible. There is even less possibility of doing so by the fact that during the oral procedure the European Parliament, in seeking to justify the grant of this grade by considerations based on the second paragraph of Article 46 of the Staff Regulations, maintained that if Mr Morina had been placed first and appointed he would also have benefited by retroactive promotion to that grade, once the B4 post was available.

Perhaps one might with pure logic rather contest the admissibility of the conclusions directed against the first decision, since at the date when the application was lodged it had already been rescinded and therefore had no further legal existence. But this would be taking logic and paradox to extremes and would fail to appreciate the fictitious element to be found in any rescission with retroactive effect of an administrative measure. To the extent that the new decision is challenged before the Court and has not therefore acquired a definitive character, it is difficult henceforth to refuse to accept the existence of the decision which it allegedly replaces.

II

I shall therefore examine in turn whether the various criticisms made by Mr Morina of the decisions which he challenges are well founded.

1. In order to dispute the regularity of the steps taken and, consequendy, the appointment of Mrs Louwage, he bases his argument essentially on the fact that it was a competition on the basis of qualifications and that the Selection Board incorrectly assessed the value of his qualifications compared to those of the candidate who was placed first. During the written procedure he listed his qualifications and the assessments made of him by his superiors and insisted on the production of Mrs Louwage's personal file, which you did not consider it necessary to order. Subsequendy, the European Parliament voluntarily produced the report of the Selection Board and it was upon this document that the arguments at the hearing centred.

2. Mr Morina also challenges the due form of the decision of 5 February 1965 which, in rescinding the previous decision with retroactive effect, appoints Mrs Louwage to Grade B4 with effect from 1 December 1964. I have already said that I consider his conclusions to be admissible, but are they well founded?

I am of the opinion, in addition, that the European Parliament should bear one half of the costs incurred by Mr Morina.

1 Translated from the French.