Opinion of Mr advocate general Capotorti

Mr President,

Members of the Court,

1. I shall first recall in brief the essential facts. In 1975 the applicant, Mrs Caro-Fernandez (nee Gilbeau), an official of the Commission in Grade B 4, took part in Internal Competition No COM/LA/11, held for the purpose of constituting a reserve to fill vacant posts in career bracket L/A 8-L/A 7 (assistant translator). She obtained a total of 61 marks in the compulsory and optional tests and was thus placed first amongst the successful French language candidates, ex aequo with another candidate, Miss F. There was also a third successful candidate, Mr L., who had fewer marks.

2. The Commission contended that the application was inadmissible in that the complaint lodged by Mrs Caro-Fernandez was not in conformity with Article 90 (2) of the Staff Regulations and that therefore the first condition laid down by Article 91 (2) for the admissibility of the subsequent appeal to the Court was not satisfied. In fact, according to the Commission, the complaint does not refer to any specific act adversely affecting the applicant but merely asks the appointing authority to remedy a situation which the applicant considers unjust. Furthermore, even if it is held that the complaint in question is directed against a measure required by the Staff Regulations but which has not been adopted by the Commission, the fact none the less remains that the complaint should have been preceded by a request by the person concerned within the meaning of Article 90 (1); in the absence of such a request the complaint is therefore in any event irregular.

3. In her application the applicant alleges that the implied decision of the Commission rejecting the complaint was null and void for lack of a statement of the reasons on which it was based; subsequently, however, no mention was made of that objection either in the reply or in the course of the oral argument.

4. In support of the argument that the Commission acted unlawfully by failing to appoint Mrs Caro-Fernandez to the post of assistant translator and by refusing subsequently to prolong the period of validity of the list of suitable candidates the applicant alleges that the Community's obligation to ensure that officials' careers develop normally and, in more general terms, the obligations set out in Article 24 of the Staff Regulations have been breached and also that there has been a misuse of powers which has been made evident by the discriminatory treatment of her.

5. Quite apart from that, and even if the argument that the last paragraph of Article 24 is applicable to promotion to another category on the basis of a competition is accepted, the applicant's complaints do not appear to be well-founded in fact.

6. With regard next to the failure to extend the period of validity of the list of suitable candidates (a criticism raised by the applicant in her application but which she did not subsequently elaborate in her arguments) I shall merely observe that the conduct of the Commission was logical and in accordance with the interests of the administration. Having first extended the period of the validity of the list for two months the Commission allowed it to lapse because it intended to hold another competition, which was subsequently in fact announced (cf. Official Journal of 22 March 1977); on the other hand, I do not believe that it can be held to be good practice to extend the duration of validity of such lists of suitable candidates overmuch. It is further clear that at the time (in February 1977) no vacancies were foreseen for French language translators who did not also have a good knowledge of German, which was the case with Mrs Caro-Fernandez, who obtained marks of 4.5 out of 20 in the optional German test in the competition in question.

7. The final objection raised by the applicant against the failure to appoint her and against the failure to extend the period of validity of the list is that both those steps were void for misuse of powers in that the administration's conduct was based on factors which were extraneous to the interests of the institution and were in conflict with them.

8. In conclusion, and on the basis of the facts outlined above, I propose that the Court should reject the appeal lodged by Mrs Caro-Fernandez by application of 23 December 1977. As regards the costs, I suggest that those incurred by the Commission should be borne by it in accordance with Article 70 of the Rules of Procedure.

1 Translated front the-Italian.