JUDGMENT OF 14. 12. 1965 — CASE 21/65 MORINA v PARLIAMENT

In Case 21/65

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

gives the following

JUDGMENT

Issues of fact and of law

I — Facts

II — Conclusions of the parties

III — Submissions and arguments of the parties

1. Facts

2. Law

A — Admissibility of the application

B — The substance of the case

IV — Procedure

Grounds of judgment

I — Admissibility

II — The substance of the case

III — Costs

I —. Facts

1. The applicant was engaged by the defendant on 17 November 1958 under a so-called Brussels contract at a salary corresponding, by assimilation to the Staff Regulations of the ECSC, to Grade C12 (now C3).

2. By notice of 19 January 1965 Internal Competition No B 12 was announced to fill a vacant post of administrative assistant (career bracket B5-B4) in the Directorate-General of Administration, Personnel Division, Accounts Department. The notice contained in particular the following passages:

3. On 16 April 1965 the applicant made the present application, directed against this decision and against the assessment of the candidates made prior to it by the Selection Board for the competition.

II —. Conclusions of the parties

III —. Submissions and arguments of the parties

1. Facts

2. Law

A —. Admissibility of the application

(a). That in so far as the applicant seeks the annulment of the competition his application is inadmissible. It follows from Article 91 of the Staff Regulations that officials may challenge only individual acts adversely affecting them and not a collection of measures such as a competition.

(b). In so far as the application objects to the assessment made by the Selection Board, it is inadmissible on two grounds:

(c). As regards the conclusions requesting the annulment of Mr Piraino's appointment, the applicant's arguments reveal that no valid ground for annulment has been raised against this decision. In fact the applicant himself concedes that the alleged illegality of the decision is merely a consequence of the alleged illegality of the competition.

1. The argument that the selection Board has unfettered discretion is an attempt to remove an essential matter from the Court's power of review, depriving the unsuccessful candidate of any possibility of appeal, even where the Selection Board has been guilty of a flagrant injustice. Furthermore Article 91 of the Staff Regulations confers on the Court unlimited jurisdiction.

2. It is true that the assessment made by the Selection Board does not bind the appointing authority; however it is precisely the appointment made by the latter which forms in particular the subject matter of the application.

B —. The substance of the case

(a). Failure to consider the applicant's qualifications

(b). Infringement of the third and sixth paragraphs of Article 5 of Annex III to the Staff Regulations

IV —. Procedure

I —. Admissibility

1. The defendant contends that the application is inadmissible, first, because it challenges the assessment made by the Selection Board and, secondly, because it seeks the annulment of the appointment of Mr Piraino. It considers that the assessment cannot be questioned in court, in particular on the ground that the Selection Board's opinion is not binding on the appointing authority and that the applicant has brought no valid arguments against the appointment, contenting himself with concluding its illegality from that of the procedure followed by the Selection Board.

2. The defendant contends that inasmuch as the stated object of the application is the annulment of the competition, the application is inadmissible, as under Article 91 of the Staff Regulations, officials may challenge only specific acts adversely affecting them, not a collection of measures. This objection need not be examined, the Court's view of the application having been explained above.

3. The applicant claims that the Court should order Internal Competition No B 12 to be reheld on the conditions previously laid down and between the same persons who appeared in the list of suitable candidates.

4. The applicant only made his allegation that the procedure followed by the Selection Board infringed the provisions of Article 5 of Annex III to the Staff Regulations at the hearing. The defendant has said that it submits to the wisdom of the Court the question whether the allegation is admissible.

II —. The substance of the case

III —. Costs

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 Staff Regulations of Officials of the EEC and of the EAEC, especially Article 91 and Article 5 of Annex III; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, especially Articles 42 and 69; THE COURT (Second Chamber) hereby:

1 Annuls the decision of the Secretary-General of the European Parliament dated 10 March 1965 appointing Mr Piraino to the post of administrative assistant (B5-B4);

2 Orders the defendant to pay the costs of the action.