Opinion of Mr Advocate General Tesauro

Mr President,

Members of the Court,

1. By judgment of 9 July 1987, upholding an application by Mr Hochbaum, this Court annulled the appointment of Mr Waterschoot as Head of Division in DG IV by reason of the fan that the Advisory Committee for appointments to grades A2 and A3 had not been consulted on the basis of complete candidates' files. Following that judgment, the Commission decided to annul vacancy notice COM/902/84, on the basis of which Mr Waterschoot had been appointed; it therefore initiated a new procedure (by notice COM/83/87), at the end of which the appointing authority reappointed Mr Waterschoot. It should be noted that both vacancy notices were drafted in identical terms.

2. Mr Hochbaum's appeal relates only to the part of the judgment in which the Court of First Instance dismissed his third plea in law (paragraphs 21 to 26), based on misuse of powers. In that plea, the then applicant had essentially contended that the Commission annulled ab initio the procedure declared partly invalid by the Court of Justice and decided to publish a fresh vacancy notice (COM/83/87) not in the general interest but purely in order to legitimize the already certain appointment of Mr Waterschoot. And in fact the latter, who at the time of the first procedure did not — according to the appellant — fulfil the requirements as to relevant experience laid down by the vacancy notice, only fulfilled those requirements subsequently, specifically because of the work done by him following the appointment which was later held to be unlawful. In support of his allegation of misuse of powers, Mr Hochbaum referred to the failure to fulfil the requirements laid down for the original procedure.

3. In his first plea, which comprises two specific allegations, the appellant contests, first, the Court of First Instance's statement that The appointing authority has a discretionary power of appraisal in matters of promotion and the Community judicature must limit its review to the question whether the appointing authority has used its power which is manifestly wrong (first sentence of paragraph 24).

4. The appellant's second criticism, set out in his first plea in law, is that the Court of First Instance stated hardly any reasons, in the light of Article 45 of the Staff Regulations and having regard to the pleas in law put forward by him in the proceedings, for its conclusion that Mr Waterschoot fulfilled the requirements laid down in the first vacancy notice. The Court of Krst Instance merely stated in the judgment appealed against that there is no objective indication in the documents before the Court of First Instance that, prior to performing the tasks of Head of the State Monopolies and Public Enterprises Division, Mr Waterschoot did not satisfy the conditions required for submitting his application for the post in question (second sentence of paragraph 24). The appellant infers from this that the Court of First Instance failed to examine the grounds of his specific complaint regarding Mr Waterschoot's qualifications.

5. In that plea, the appellant maintains that the Court of First Instance itself misused its powers in so far as it failed to examine the true purpose of the annulment of the first vacancy notice and the consequent opening of a new competition procedure. In particular, in the appellant's view, the Commission opened a new procedure solely in order to be able to take account of the experience acquired by Mr Waterschoot as a result of the first appointment, which was subsequently declared unlawful by the Court of Justice.

6. In view of the foregoing considerations, I suggest that the Court of Justice dismiss the appeal.

1 Origini) language: Italian.

2 Joined Cases 44/85, 77/85, 294/85 and 295/85 Hochblum iná Rives v Commission [1987] ECR 3259.

3 Case T-38/89 Hochblum v Commission [1990] ECR II-43.

4 The applicant's other two pleas in law before the Court of Fim Instance, alleging infringement of Article 176 of the Treaty and infringement of Article 25 of the Staff Regulations, are not repeated m the present appeal.

5 Judgment in Case 52/86 Banner v Parliament [1987] ECR 979, paragraph 9. See also, among others, the judgment in Case 26/85 Waysse v Commission [1986] ECR 3131, paragraph 26; judgment in Case 306/85 Huybrechts v Commission [1987] ECR 629, paragraph 9; and judgment in Case 111/86 Delauche v Commission [1987] ECR 5345, paragraph 18.

6 Judgment Ín Cue 188/73 Crani v CouacB [1974] ECR 1099, paragraph 26.

7 Judgment in Cate 343/87 culin v Commission f1990] ECR 225, paragraph 19.

8 Ibid., paragraph 22.

9 See for example the judgment in Caie 282/81 Kagun v Commission [1983] ECR 1245, paragraph 13; judgment in Case 52/86, cited above, paragraph 9; and the pidgment in Case C-343/87 CuKn, in mich the Court upheld the application since h was apparent from the documents betöre the Court that the appointing authority had relied on a requirement not laid dovn in the vacancy notice as a decisive criterion for promotion (paragraph 21).

10 Judgment in Case 282/82, cited above, paragraph 13.

11 Judgment in Gut 52/86, cited abose, paragraph 6; tee ako the judgment in Caie 135/87 VUchou v Court of Auditors [1988] ECR 2091, paragraph 27.