Opinion of Advocate General Van Gerven delivered on 23 March 1993

1 Original language: Dutch.

2 [1990] ECR II-395

3 In che contested judgment itself and in the Report for the Hearing in these appeal proceedings.

4 The competition notice was published on 12 February 1987, OJ 1987 C 34, p. 15.

5 See the orders of the Court of Justice in Case 242/90-P in which Allen and Others, Ancbia and Others, André and Others, Buggenhout and Others, Fédération de L Fonction Publique Européenne (FPPE) and Zubizarreta and Others were granted leave to intervene.

6 Order of the President of the Court of Justice in Case C-242/90 PR [1990] ECR I-4329, paragraph 24.

7 Order of the President of the Court of Justice of 6 February 1991.

8 According to the Court of First Instance, the applicants had not adequately demonstrated that they had been unable to intervene at the commencement of the proceedings at first instance. Order of the Court of First Instance in Case T-35/89 TOI Zubizarreta and Others v Albani [1992] ECR II-1599. Order of the Court of First Instance in Case T-35/89 T02 Buggenhout and Others v Albani [1992] ECR I-1600.

9 See Case 31/75 Costacurta v Commission [1975] ECR 1563, parigraph 17; Joined Cases 4/78, 19/78 and 28/78 Salerno and Others v Commission [1978] ECR 2403, paragraph 35; Case 117/78 Orlandi v Commission [1979] ECR 1613, paragraph 25; Case 255/78 Heirwegh v Commission [1979] ECR 2323, paragraph 15; Case 67/81 Ruske v Commission [1982] ECR 661, paragraph 13; Case 16/81 Alaimo v Commission [1982] ECR 1559, paragraph 15. See also the Opinion of Advocate General Rozes in Case 225/82 Verzyck v Commission [1983] ECR 1991, 2010.

10 Case 144/82 Detli v Court of Justice [1983] ECR 2421, paragraph 33.

11 Joined Cases T-32/89 and T-39/89 Marcopoulos v Court ofJustice [1990] ECR II-281, paragraph 44.

12 Case T-82/89 Marcato v Commission [1990] ECR II-735, paragraph 51.

13 Other interests may also deserve protection, such as the interest of a service (and of its users) or the need to ensure continuity of a public service. Sec the judgment in Case 24/78 Martin v Commission [1979] ECR 603, paragraph 10. For another example in which it was necessary to achieve a balance between various interests in a staff case, sec Case 130/75 Prais v Council [1976] ECR 1589, paragraph 15.

14 The Court refers to a principle of legal certainty by which the confidence of persons concerned deserves protection — Case 1/73 Westzucker v Einfuhr-und Vorratsstelle Zucker [1973] ECR 723, paragraph 13. Regarding the application of those principles in proceedings for annulment brought by officiais see Case 289/81 Mavridis v Parliament [1983] ECR 1731, paragraph 21; Case 124/87 Critzmann-Marlignoni v Commission [1988] ECR 3491, paragraph 18; Joined Cases T-18/89 and T-24/89 Talaras v Court of Justice [1991] ECR II-53, paragraph 40; Case T-45/91 McAvoy v Parliament [1993] ECR II-83, paragraph 56.

15 Case 24/79 Oberthiir v Commission [1980] ECR 1743. That judgment was followed by the Court of First Instance in Marcato, paragraph 51.

16 See also the Opinion of Advocate General Warner in Case 86/77 Ditterkh v Commission [1978] ECR 1855, at 1875: Assuming that the validity of the list was an essential ingredient of the validity of those promotions, its annulment could cause to officials whose names were on it hardship disproportionate in the aggregate to the wrong suffered by the applicant.

17 See footnote 12.

18 The case-law in question was not even mentioned in the contested judgment, which makes no reference whatsoever to the case-law of the Court of Justice or the Court of First Instance.

19 The Commission appears to adhere to that view even after the order of the President of the Court of Justice in the proceedings for interim relief. See paragraph 4 of its observations on the statements in intervention.

20 Joined Cases 45/70 and 49/70 Bode v Commission [1971] ECR 465. paragraph 12.

21 Written observations, paragraph 20.

22 See the written observations of the interveners André and Others and Allen and Others, paragraphs 11 and 12. The observations lodged by Anchia and Others arc less explicit.

23 See Case 257/83 Williams v Court of Auditors [1984] ECR 3547, paragraph 10: the decision appointing ... concluded the competition procedure.

24 Commission Notice 91/C 197/08 reopening competition COM/A/482, OJ 1991 C 197, p. 14.

25 Written observations of the interveners Anchia and Others, paragraphs 9 and 10.

26 Written observations of the interveners Anchia and Others, paragraph 11. According to the Fédération de la Fonction Publique Européenne (FFPE), those principles are embodied in Article 1 of the Staff Regulations: written observations of the FFPE, p. 4.

27 See the written observations of the interveners Zubizarreta and Others and Buggcnhout and Others (paragraphs 27, 63 and 64).

28 See footnote 5.

29 In the opposite case, the Court of First Instance's judgment would have given more relief than was asked for since the action before it did not relate to the appointments.

30 Verzyzk v Commission, cited above, paragraph 19.

31 Case 18/83 Morina v Parliament [1983] ECR 4051, paragraph 11. See also, much earlier, Case 62/65 Seno v Commission of the EAEC [1966] ECR 813, 826.