Opinion of Mr Advocate General Lenz

Mr President,

Members of the Court,

The proceedings with which I am to deal today concern the filling of a post of principal administrator (Career Bracket A5/A4) in the Treasury-Accounts Division of the Directorate General for Administration, Personnel and Finance of the European Parliament.

A — The procedure for filling the post was opened by the issuing of Notice No 3599 on 10 May 1982, pursuant to Article 29 (1) (a) of the Staff Regulations. In that notice the duties associated with the post were defined as follows:

As regards qualifications and experience, the notice required,

inter alia:

The closing date for applications for transfer or promotion was 25 May 1982.

That action brought no result. Only one official from the Parliament, in Grade B 1, made application, relying on the possibility alluded to in the notice that an internal competition might be organized.

During the validity of that notice a further vacancy notice, No PE/A/75, was addressed to the other Community institutions pursuant to Article 29 (1) (c) of the Staff Regulations. According to that notice officials of other institutions might, before 3 June 1982, apply for transfer if they were either classified in Grade A 5 or A 4 or had been classified in Grade A 6 for at least two years on the closing date for applications.

Pursuant to that notice, on 27 May 1982 the applicant in these proceedings applied for the post in question. He is an official in Grade A 6 at the Office for Official Publications of the European Communities. He had the required seniority in his grade of two years.

His application was however unsuccessful. He was so informed, in reply to his inquiry of 5 July 1982, by a letter of 20 August 1982 from the Director for Personnel and Social Affairs of the European Parliament. The letter stated that the department concerned had decided that the education and experience of the applicant did not meet the requirements laid down, in particular as regards experience in the field of computerized accounting, and that another applicant had therefore been selected.

As appears from a letter of 28 May 1982 from the Secretary General of the Parliament to the Chairman of the Joint Committee, the Parliament had in fact altered the procedure for filling the post in May 1982 and had decided to apply Article 29 (2) of the Staff Regulations, which provides as follows :

According to Recruitment Notice No PE/5/S, the qualification requirements referred to above applied also to the new procedure. The applications received, including the applicant's, were reviewed by an ad hoc selection committee. By decision of 6 August 1982 an employee of a private undertaking was appointed as a probationary official; he had apparently been offered the post as early as 5 July 1982.

The applicant was not satisfied with this outcome, and on 16 November 1982 he submitted a formal complaint to the Parliament. In the complaint he argued that the rejection of his application was unjustified, since he possessed the required qualifications. He contended that the information he had given in his application had not been examined, and objected to the application of the procedure laid down in Article 29 (2) of the Staff Regulations.

Since he received no answer to his complaint, he brought the matter before the Court on 15 June 1983, claiming that the Court should:

The Parliament considers these claims to be unfounded, and in so far as the second claim is concerned, inadmissible.

B — My opinion on the matter is as follows.

1. First and second claims

In his application the applicant made several submissions, which may be summarized as follows:

The finding that he did not meet the requirements laid down in the vacancy notice was unfounded and incorrect;

His application was not considered, or at least was not sufficiently seriously and carefully considered;

The decision rejecting his application did not adequately state the grounds on which it was based, as required by Article 25 of the Staff Regulations.

In his reply he additionally submits that he was first informed of the rejection of his candidature by a letter from the Parliament of 20 August 1982, later than should have been the case. A notification in that respect should properly have been sent to him at the beginning of July 1982, that is, immediately after the selection for the filling of the post at which his application had been found not to meet the requirements.

2. Third claim

The central point in this respect is the. Parliament's objection that the claim is simply inadmissible. That is, according to the Parliament, the applicant has no interest in claims regarding the appointment of another candidate to the post in question since he himself has no possibility of obtaining it should the decision of 6 August 1982 be annulled, as he does not fulfil the prerequisites for the post.

In view of what I have already said to the first claim and of what may be deduced from the case-law in such matters, that objection is clearly sound.

For example, it was stressed in the judgment in Joined Cases 81 to 88/74 that an applicant must have a personal interest in the annulment of a disputed measure, and in the judgment in Case 85/82, it was made equally clear that the existence of a personal grievance is decisive; claims in the interests of the law or of the institutions of the Communities are not admissible.

As has already been established, the Parliament was correct in acting on the basis that the applicant did not fulfil all the requirements of the vacancy notice and in particular did not have the necessary experience in computerized accounting. If that is the case, the applicant has no interest worthy of protection in attacking the appointment of another candidate to the post in question. A different conclusion would allow the applicant to obtain a review of the correct observance of provisions of the Staff Regulations without himself being able to derive any benefit from the result of that review.

The third claim must therefore in any event be dismissed. In those circumstances I can refrain from considering the submissions made by the applicant in that regard, namely:

That the conditions for the application of Article 29 (2) of the Staff Regulations (existence of an exceptional case and the filling of post which requires special qualifications) were not in fact met;

That no adequate reasons were stated for the decision to apply that provision; and

That the Parliament was wrong to disregard the fact that the Joint Committee had given its approval of the application of the procedure under Article 29 (2) only on condition that sufficient publicity be given.

C — I therefore propose that Mr Picciolo's application be dismissed and that the Parliament be ordered to pay the costs.

1 Translated from the German.

2 Judgment of 15 March 1973 in Case 37/72, Marcato v Commission, [1973] ECR 361, 369, paragraphs 21 and 22.

3 Judgment of 28 February 1980 in Case 89/79, Bonu v Council, [1980] ECR 553, 563, paragraph 5.

4 Judgment of 29 October 1975 in Joined Cases 81 to 88/74, Marenco and Others v Commission, [1975] ECR 1247, 1255, paragraphs 5 to 7.

5 Judgment of 30 June 1983 in Case 85/82, Schloh v Council, [1983) ECR 2105, paragraph 14.