Opinion of Mr Advocate General Darmon

Mr President,

Members of the Court,

1. This case follows on from the proceedings in which the Court gave judgment on 16 October 1984 in Case 257/83 Williams v Court of Auditors [1984] ECR 3547 in which the Court, upon the application of Mr Williams, annulled the decision of 24 March 1983 appointing Hartmut Schwiering a probationary official in Grade A 5 following an internal competition. Mr Schwiering, who did not intervene in those proceedings, is now the applicant in this case.From 1 December 1977 Mr Schwiering was attached to the Cabinet of Mr Leicht, the German Member of the Court of Auditors. In 1982 he applied to take part in the internal competition. He was placed first on the list of suitable candidates drawn up by the Selection Board and on 1 April 1983 he was appointed a probationary official in Grade A 5 and assigned to a post of principal administrator. He was established with effect

2. By an action brought on 14 May 1985, Mr Schwiering claims that the Court should:

3. That application, which substantially reiterates the terms of the letter of 19 December 1984 sent to the Court of Auditors by the applicant's lawyer, is founded essentially, as regards the primary claim, on the following considerations.

4. The Court of Auditors contests the admissibility of the application and contends, in the alternative, that it should be dismissed.

5. On the question of admissibility it is necessary to refer to a principle which has been consistently upheld by the Court and was confirmed recently in its judgment of 7 May 1986 in Case 52/85 Rihoux and Others v Commission [1986] ECR 1555. The Court held that:... Article 91 of the Staff Regulations is designed to permit and encourage the amicable settlement of differences which have arisen between officials and the administration. In order to comply with that requirement it is essential that the administration should be in a position to know with sufficient certainty the complaints or wishes of the person concerned. On the other hand, it is not the purpose of that provision to bind strictly and absolutely the contentious stage of the proceedings, if any, provided that the claims submitted at this stage change neither the legal basis nor the subject-matter of the complaint (judgment of 1 July 1976 in Case 58/75 Sergy v Commission [1976] ECR 1139, at p. 1139; judgment of 20 March 1984 in Joined Cases 75 and 117/82 Razzouk and Bedoum vCommission [1984] ECR 1509; judgment of 23 January 1986 in Case 173/84 Rasmussen v Commission [1986] ECR 197) (paragraph 12 of the decision).

6. Within the limits described I consider that the application is not well founded. This case in fact concerns the situation resulting from the annulment by the Court of a decision appointing a member of the temporary staff as an official.

7. It remains to consider the claim in the further alternative for damages. As I stated in my Opinion in the Williams case, the appointing authority had a duty to ascertain whether Mr Schwiering, once included in the list of suitable candidates by the Selection Board, actually meets the requirements laid down by the appointing authority itself with regard to diplomas or experience. In failing to do so, it committed an error prejudicial to Mr Schwiering, since in the circumstances described above he had to terminate his temporary contract.

1 Translated from the French.