Opinion of Mrs Advocate General Rozès

Mr President,

Members of the Court,

The Court has received an application lodged by Franco Colussi for the annulment of a decision of the President of the European Parliament whereby another person was promoted to the post of Linguistic Adviser in the Italian division.

I — The facts are as follows:

On 14 July 1980 the European Parliament published Vacancy Notice No 2690 with a view to filling seven posts of Linguistic Adviser in Grade L/A 3, one post for each official language with the exception of Greek, the seventh post having been allotted to the Terminology Division.

In March 1978 the seven posts concerned were added by the Parliament to the detailed list of posts in the Directorate General of Sessional and General Services. They were, however, held in reserve in order to enable the directlyelected Parliament to develop its activities and to provide for the normal discharge of its duties in its normal meeting places immediately on its election by direct universal suffrage. The new Parliament would be free to dispose of these posts according to its needs.

In accordance with Article 29 (1) (a) of the Staff Regulations, it was intended to fill these posts by transfer or promotion.

Three Grade L/A 4 revisers including Mr Colussi submitted applications before the closing date.

On 3 September 1980, Mr Colussi submitted his application and addressed a letter to the Directorate General of Personnel in which he supplemented his references and, in particular, drew attention to the fact since 1978 he had been the holder of a degree in law.

On 1 October 1980 he submitted a request to the President of the European Parliament, within the meaning of Article 90 (1) of the Staff Regulations, to the effect that the vacancy notice be amended so as to exclude any discrimination or uncertainty and that the selection be made on the basis of a genuine comparison of qualifications and merits and not principally by reference to the age of the candidates.

On 1 December 1980, the President of the European Parliament appointed another candidate.

Franco Colussi acknowledges that he learned of that appointment on 21 January 1981; at any event, it was posted up from 23 January to 5 February 1981 and he received confirmation that he had been unsuccessful in the form of a statement to that effect on his application form on 28 January 1981.

By letter of 15 April 1981, registered on 21 April 1981, Franco Colussi submitted a complaint within the meaning of Article 90 (2) of the Staff Regulations against the rejection of his request of 1 October 1980; the complaint was also directed against the fact that he had not been successful. That complaint was rejected by the President of the European Parliament on 4 September 1981.

On 27 November 1981, Franco Colussi introduced the present application, by which he asks the Court essentially to annul the rejection of his complaint and the appointment of the successful candidate.

II — Admissibility

The action was brought within the prescribed period. The European Parliament does not question its admissibility. It acknowledges that the applicant's complaint was directed against the implied rejection of his request concerning the vacancy notice, against the promotion of the other candidate and against the fact that he was not himself appointed.

Nevertheless, it considers that the argument concerning the invalidity of the vacancy notice is inadmissible inasmuch as it had not been raised in the conclusions presented in the application.

III — Discussion

I have changed the order of the various arguments concerning the form and the substance of the case which the applicant has advanced in support of his action.

A — Submissions regarding the form

Franco Colussi disputes the authority of the various bodies which took a hand in the promotion procedure. He maintains that it is not established that Parliament delegated the exercise of its power of promotion to its Bureau and that, in addition, it is not proved that the Bureau sub-delegated its powers to the President.

He adds that even assuming that the President had the necessary authority, it is not established that the President conducted both the required comparative examination of the merits and the periodic reports himself. Moreover, it is not proved that the Bureau was informed in advance of the decision regarding promotion taken by the President. Finally, he notes that the authority which considered the complaint was the same as that which was responsible for the act adversely affecting him, which is contrary to one of the rules of fair treatment.

I do not think that any of those allegations may be accepted.

B — Substance

The nature of the duties attached to the vacant post was described in the vancancy notice as being those of:

A linguistic adviser with special responsibility for specialized work of revision and translation and for the vocational training of officials and trainees in the division;

To replace the head of the division in his absence.

I propose:

1 Translated from the French.

2 [1972] ECR 603 at p. 609, paragraph 19 of the decision:Since the provision invoked distinguishes first of all between officials in Category A and those in the Language Service it follows that the proviso in fine relating to decisions concerning posts in Category A must be interpreted as not referring to posts in the Language Service.

3 Most recently the judgment of 28 October 1982 in Case 265/81, Giannini, paragraph 3.

4 Judgment of 22 March 1972, Case 78/71, [1972] ECR 163 at p. 168, paragraph 9 of the decision.