Opinion of Advocate General Van Gerven delivered on 10 November 1992

1 Original language: Dutch.

2 Judgment in Case T-20/89 Moritz v Commission [1990] ECR II-769.

3 Sec section 7 of the appeal.

4 See, for example, the judgments in Case 280/80 Bakke-D'Aloya v Council [1981] ECR 2887, paragraph 10, in Case 298/81 Colassi v Parliament [1983] ECU 1131, paragraph 20, in Case 282/81 Ragusa v Commission [1983] ECR 1245, paragraph 9, in Case 9/82 Obrgaard and Delvaux v Commission [1983] ECR 2379, paragraph 14, in Case 26/85 Vaysse v Commission [1986] ECR 3131, paragraph 26, in Case 324/85 Bouteiller v Commission [1987] ECR 529, paragraph 6, in Case 306/85 Huybrechts v Commission [1987] ECR 629, paragraph 9, in Case 52/86 Banner v Parliament [1987] ECR 979, paragraph 9, in Case 111/86 Delauche v Commission [1987] ECK. 5345, paragraph 18, in Case T-169/89 Frederiksen v Parliament [1991] ECR II-1403, paragraph 69, in Case C-107/90 P Hochbaum v Commission [1992] ECR I-157, paragraph 8, and in Case T-25/90 Schönherr v ESC [1992] ECR II-63, paragraph 20.

5 According to paragraph 30 of the judgment: Under the procedure provided for in Article 29(1)(a) of the Staff Regulations, the Consultative Committee ... examined the applications and individual files of the candidates(my emphasis).

6 See section 16 of the appeal, from which it also appears that, unlike the appellant maintains (in section 15 of the appeal), the Court of First Instance correctly stated in paragraph 31 of the contested judgment that the applicant has not brought forward any factor to support his assertion that the Director-General may have expressed unfavourable views about him which may have influenced the Consultative Committee.

7 See Article 21 et seq. of the Statute of the Court of Justice, which, according to Article 46 of that statute, is also applicable to the Court of First Instance. See also Article 66 et seq. of the Rules of Procedure of the Court of First Instance of the European Communities of 2 May 1991 (OJ 1991 L 136, p. 13 et seq.).

8 Judgment in Case C-283/90 P Vadränyi v Commission [1991] ECR I-4339.

9 Judgment in Case C-283/90 P Vittimavi v Commission [1991] ECR I-1339, paragraph 31.

10 Sec section 21 of the appeal.

11 Sec section 22 of the appea!.

12 Sec paragraphs 27 and 28 of the appeal.

13 Judgment in Joined Cases 33/79 and 75/79 Kuhner v Com-mission [1980] ECR 1677, paragraph 25.

14 Contrary to that which the appellant seems to think (see section 3 of the reply), compliance with the right to be heard does not mean that there has to be an oral interview. This appears from the judgments cited in the next three footnotes. On the other hand, the official concerned must be enabled to defend his interests properly before any decision is taken and must also be given reasonable notice for him to prepare his defence.

15 See the judgments in Case 228/83 F. v Commission [1985] ECR 275, paragraph 23, and in Case 319/85 Misset v Colincil [1988] ECR 1861.

16 Judgment in Case 19/70 Almini v Commission [1971] ECR 623, paragraph 11.

17 Judgment in Case 34/77 Oslizlok v Commission [1978] ECR 1099, paragraph 30.

18 The appellant denies that the appointing authority is not bound by Annex III where it organizes a procedure on the basis of Article 29(2), on the ground that [I] n a democratic community, the State derives its authority from the people, and the people are unquestionably the subjects of the State and not foreign nationals who may happen to be on its territory (see section 42 of the appeal). Ī do not find that argument at all convincing.

19 Judgments in Kuhner v Commission, cited above, paragraph 22, in Case 191/81 Plug v Commission [1982] ECR 4229, paragraph 21, in Case 321/85 S chwiering v C ourt of Auditors [1986] ECR 3199, paragraph 18, in Case 417/85 Maurissen v Court of Auditors [1987] ECR 551, paragraph 12, in Case T-133/89 Burban v Parliament [1990] ECR II-245, paragraph 2 of the summary, and in Case C-255/90 P Bur-ban v Parliament [1992] ECR I-2253, paragraph 7; order of the Court of First Instance in Case T-14/91 Weyrich v Commission [1991] ECR II-235, paragraph 8 of the summary; judgment in Case T-26/91 Kupka-Floridi v ESC [1992] ECR II-1615, paragraph 44.

20 Judgment in Case 123/75 Küster v Parliament [1976] ECR 1701, paragraph 10.

21 Judgments in Case 125/80 Anting v Commission [1981] ECU 2539, paragraphs 18 and 19, and in Delauche v C ommission, cited above, paragraph 26.

22 See, in particular, section 61 of the appeal.

23 See the judgment in Delauche v Commission, paragraph 30.

24 Judgment in Case T-63/89 Latham v Commission [1991] ECR II-19, paragraphs 32 and 33. See also the judgments in Case 207/81 Diilerid) v Commission [1983] ECR 1359, paragraph 28, and in Case T-27/90 Latham v Commission [1991] ECR II-35, paragraphs 43 and 44. As regards non-material damage, sec the judgment in Bossi v Commission, paragraph 38.

25 See Article 168a of the EEC Treaty and Article 51 of the Protocol on the Statute of the Court of Justice of the EEC.

26 Judgments in Case 61/76 Geist v Commission [1977] ECR 1419, paragraph 44, in Case 24/79 Oherthiir v Commission [1980] ECR 1743, paragraph 8, in Joined Cases 156/79 and 51/80 Gratrean v Commission [1980] ECR 3943, paragraph 22, in Case 263/81 List v Commission [1983] ECR 103, paragraph 25, in Ditterich v Commission, cited above, paragraph 24, and in Case 7/86 Vincent v Parliament [1987] ECR 2473, paragraph 16.

27 Judgment in Ditterich v Commission, paragraph 25. In exceptional circumstances, the absence or periodic reports may be compensated for by the existence of other information on the official's merits (judgment in Gratrean v Commission, paragraph 22).

28 Judgments in T-63/89 Latham v Commission, cited above, paragraph 37, and in T-27/90 Latham v Commission, cited above, paragraph 49.

29 Judgment in Case T-29/89 Moritz v Commission [1990] ECR II-787.

30 See sections 58 and 59 of the appeal and section B of the reply.

31 See footnote 25.

32 See, for example, the judgments in Obertbitr v Commission, cited above, paragraph 11, in Joined Cases 173/82, 157/83 and 186/84 Castille v Commission [1986] ECR 497, paragraph 34, in Case T-73/89 Barbi v Commission [1990] ECR II-619, paragraph 35, and in Case T-68/91 Barbi v Commission [1992] ECR II-2127, paragraph 45.

33 Judgment in Case 1/87 Picciolo v Commission [1988] ECR 711, paragraph 44.

34 Judgments in Castille v Commission, paragraph 34, and in Case T-73/89 Barbi v Commission, paragraph 35.

35 Section 72 of the appeal.

36 Under the third paragraph of Article 11 of the Council Decision of 24 October 1988 establishing a Court of First Instance of the European Communities. In the meantime, the second subparagraph of Article 87(3) of the Rules of Procedure of the Court of First Instance, which is applicable in this case, has entered into force.