JUDGMENT OF 29. 9. 1976 —CASE 9/76 MORELLO v COMMISSION
In Case 9/76
THE COURT (Second Chamber) composed of: H. Kutscher, President of Chamber, P. Pescatore and M. Sørensen, Judges, Advocate-General: H. Mayras Registrar: A. Van Houtte
gives the following
JUDGMENT
Facts
I — Facts and written procedure
II — Conclusions of the parties
III — Submissions and arguments of the parties put forward in the course of the written procedure
1. First submission: Infringement of Article 25 of the Staff Regulations of Officials and of Article 5 of Annex III in that the letter of 3 November 1975 does not state the reason for which the jury decided not to accept the application of the applicant
A — Admissibility
B — The substance of the case
2. Second submission: Infringement of Article 25 of the Staff Regulations of Officials and of Article 5 of Annex III thereto in that the contested decision is based on incorrect factual considerations
IV — Oral procedure
Law
Costs
I —. Facts and written procedure
1. On 13 August 1975, the applicant, an Italian national and an official in Grade A6 in a post in the Directorate-General for Competition submitted his application for Internal Competitions based on qualifications and oral tests Nos COM/668/74 and COM/669/74 which concerned two vacant posts in career bracket A 5/A 4 in the Security Office of the Commission in Brussels. According to the notices of competition:
2. Upon hearing the report of the Judge-Rapporteur and the views of the Advocate-General, the Court (Second Chamber) decided to open the oral proceedings without any preparatory inquiry.
II —. Conclusions of the parties
1. Annul the decision of the Selection Board for Internal Competitions Nos COM/668/74 and COM/669/74 not to admit the applicant to the said competitions;
2. Annul Competitions Nos COM/ 668/74 and COM/669/74 and the appointments made as a result of those competitions;
3. Order the defendant to pay the costs.
III —. Submissions and arguments of the parties put forward in the course of the written procedure
1. First submission: Infringement of Article 25 of the Staff Regulations of Officials and of Article 5 of Annex III in that the letter of 3 November 1975 does not state the reason for which the jury decided not to accept the application of the applicant
A —. Admissibility
B —. The substance of the case
2. Second submission: Infringement of Article 25 of the Staff Regulations of Officials and of Article 5 of Annex III thereto in that the contested decision is based on incorrect factual considerations
IV —. Oral procedure
1. The application is for the annulment of the decision of the Selection Board for Internal Competitions Nos COM/668/74 and COM/669/74 of the Commission not to admit the applicant to these competitions and, consequently, for the annulment of the competitions themselves and the appointments made as a result of those competitions.
2. For this purpose the applicant relies on two arguments, namely first the absence or at least the inadequacy of the reasons on which the decision was based and secondly the fact that the contested decision is based on incorrect assessments.
3. As the two arguments are closely linked, they may best be examined together.
4. According to the notices of the competitions in question the competitions concerned two vacant posts in career bracket A 5/A 4 in the Security Office of the Commission in Brussels which entailed, in particular, duties relating to the enforcement of the security rules and the drawing up of the necessary proposals and measures in this connexion; the candidates therefore had to possess, inter alia,extensive experience relevant to those posts.
5. By letter of 3 November 1975, the Administration informed the applicant that the Selection Board had decided not to admit him to the competitions.
6. The Commission informed the applicant that the contested decision of the Selection Board was based in particular on the consideration that the applicant did not fulfil this requirement only by a letter of 12 February 1976, in other words, after the application had been lodged. The applicant contests this statement by arguing that, as he set out in his application, from 1966 to 1973 he had performed the duties of clerk to the commune in certain Italian communes, which he does not deny were very small, and since then, while working for the Commission, those of administrator responsible for inspection of undertakings in the Member States for the purpose of the application of Articles 85 and 86 of the EEC Treaty.
7. The applicant argues that the tasks of clerks to the commune under Italian law include police duties and responsibility for keeping the documents of the commune while the work which he performs at the Commission entails access to all the books and documents of undertakings and the duty to protect these documents so that no disclosure is possible.
8. The competition notices laid down very specific criteria in relation to qualifications resulting both from the description of the duties entailed by the posts put up for competition and the requirement of extensive experience in this particular field.
9. Owing to these requirements it appears evident that, in view of the duties which the applicant had previously performed in the national administration and those which he performs at present in the service of the Commission, he is not qualified to carry out the duties involved in the posts in question.
10. Consequently by excluding the applicant from the competitions the Selection Board did not exceed the discretion conferred on it by the competition notices.
11. In these circumstances the applicant can have no legitimate interest in obtaining the annulment, on the ground of the absence or inadequacy of the reasons on which it is based of a decision which could certainly be confirmed in substance, in the absence of a mistake of law or of fact, by a new Selection Board if it were to be appointed as a result of such an annulment.
12. The application must be rejected as unfounded.
13. The applicant has failed in his submissions.
14. Under Article 69 (2) of the Rules of Procedure the unsuccessful party is to be ordered to pay the costs if they have been asked for in the successful party's pleading.
15. However, under Article 70 of the Rules of Procedure, in proceedings by servants of the Communities, the institutions are to bear their own costs.
On those grounds, THE COURT (Second Chamber) hereby:
1 Rejects the application as unfounded;
2 Orders each party to bear its own costs.