Opinion of Advocate General Lenz delivered on 1 April 1993
1 Origina! language German
2 [1992] ECR II 121
3 Paragraphs 24 to 3C of the contested judgment
4 Paragraphs 36 to 43 of the contested judgment.
5 Paragraph 15 et seq. of the appeal.
6 Paragraph 29 of the contested judgment.
7 Paragraph 22 et seq. of the appeal.
8 Paragraph 28 et seq. of the appeal.
9 Paragraph 29 of the contested judgment.
10 Paragraph 24 of the contested judgment.
11 Paragraph 25 of the contested judgment.
12 Paragraph 26 of the contested judgment.
13 [1991] ECR I-5469.
14 Paragraphs 27 and 28 of the contested judgment.
15 Sec paragraph 28 of the contested judgment.
16 Paragraph 25 of the contested judgment
17 Paragraph 26 of the contested judgment.
18 Possible exceptions to this principle, which the Parliament itself recognizes, arc of different Kinds and must therefore be considered in the context appropriate to each of them. In this respect it may be noted that in paragraph 18 of the appeal the Parliament refers to the judgment in Case 75/77 Mollet [1978] LCR 897. I shall refer later in this section of my Opinion to the point on which that judgment turns. In so far as the Parliament on the other hand refers to the fact that there is no instruction by any of its responsible bodies providing for an interview with applicants in the context of staff matters referred to above (paragraph 20 of the appeal) and that the vacancy notice itself dia not envisage an interview (paragraph 21 of the appeal), I shall refer to this again in the following section (paragraph 38 et seq. below).
19 Sec paragraph 25 in conjunction with paragraph 26 of the contested judgment.
20 Regulation (EEC) No 1798/75 of the Council of 10 July 1975 on the importation free of common customs tariff duties of educational, scientific and cultural materials (OJ 1975 L 184, p. 1).
21 Commission Regulation of 12 December 1979 laying down provisions for the implementation of Council Regulation (EEC) No 1798/75 (OJ 1979 L 318, p. 32).
22 Paragraph 23 of the judgment in Case C-269/90.
23 Paragraph 13 of the judgment in Case C-269/90.
24 Paragraph 24 of the judgment in Case C-269/90.
25 Cf., with regard to the law relating to the Community civil service, judgment in Case C-283/90 P Vidrányi v Commission [1991] ECR I-4339, paragraph 20.
26 Sec paragraph 25 of the judgment in Case C-269/90.
27 Cf. the judgment in Case C-30/91 P Lestelle v Commission [1991] ECR I-3755, paragraph 27; and the order of 3 December 1992 in Case C-32/92 P Macrae Moat v Commission [1992] ECR I-6379, paragraph 11.
28 Cf. judgment in Case C-283/90 P Vidrányi v Commission [1991] ECR I-4339, paragraph 20.
29 Cf. for example the judgment of the Court of First Instance in Case T-82/89 Marcato v Commission [1990] ECR II-735, paragraph 73 et scq. with references in paragraph 78 to the case-law of the Court of Justice.
30 Case 293/84 Sorani v Commission [1986] ECR 967 and in Case 294/84 Adams v Commission [1986] ECR 977.
31 Case 121/76 Moli v Commission [1977] ECR 1971 and in Case 75/77 Mollet v Commission [1978] ECR 897.
32 Cf. paragraph 22 of the contested judgment.
33 That is to say, the Adams judgment, see footnote 29.
34 Paragraph 23 of the contested judgment.
35 Case 19/70 Almim v Commission [1971] ECR 623.
36 Case 34/77 Oslizlok v Commission [1978] ECR 1099.
37 Case 19/70 Almini, paragraphs 12 to 16, and Case 34/77 Oslizlok, paragraphs 27 to 37.
38 Only the refusal of the application could be considered as such in this case, but to regard that as the subject of the interview would be manifestly absurd.
39 Sec paragraph 8 above.
40 Sec paragraph 36(f) below.
41 Sec paragraphs 38 et seq. and 53 et seq. below.
42 Paragraph 24 of the contested judgment.
43 Cf. judgment in Case 233/85 Bonino v Commission [1987] ECR 739, paragraph 5; judgment of the Court of First Instance in Case T-25/92 Vela Palacios v Commission [1993] ECR II-201, paragraph 40.
44 Case 52/86 Banner v Parliament [1987] ECR 979.
45 Cf. judgment in Case 48/70 Bernardi v Parliament [1971] ECR 175 at paragraph 27.
46 I shall consider in the next section (paragraph 54 et scq.) the difference of treatment between the applicant and the other candidates which must also be taken into account as a feature of such an infringement.
47 Paragraphs 27 and 29 of the contested judgment.
48 Paragraph 27 of the contested judgment.
49 Cf. paragraph 33 and paragraphs 20 and 21 of the appeal.
50 Paragraph 34 of the appeal.
51 Paragraphs 34 and 35 of the appeal.
52 Paragraph 10 of the appeal.
53 Paragraph 9 of the appeal.
54 Paragraph 11 of the appeal.
55 Cf. the second subparagraph of paragraph 28 of the contested judgment.
56 Second subparagraph of paragraph 28 of lhe contested judgment
57 Sec the wording of paragraphs 27 and 29 of the contested judgment and the reference in paragraph 29 to the judgment in Joined Cases 44/85, 77/85, 294/85 and 295/85 Hochbaum and Rawes [1987] ECR 3259 (paragraph 19).
58 Case C-35/92 P Parliament v Frederiksen [1993] ECR I-991, paragraph 13.
59 Frederiksen — see previous footnote — paragraph 14.
60 [1983] ECR 1245, paragraph 18.
61 The judgment of lhe Court of First Instance in Case T-128/89 Brumter v Council [1990] ECR II-545 (summary publication) was to the same effect; sec paragraph 23 of the full text.
62 See paragraph 24 above in conjunction with the judgments cited in footnote 26.
63 Paragraph 22 of the contested judgment.
64 Case 97/63 De Pascale v Commission [1964] ECR 515 and particularly 528.
65 See previous footnote.
66 Sec as regards promotions, for example, the judgment in Case 52/86 Banner v Parliament [1987] ECR 979, paragraph 9; for transfers, see the judgment in the Bonino case. Toc. cit., paragraph 5.
67 Consistent case-law; see for example the judgment in Case C-68/91 P Moritz v Commission [1992] ECR I-6849, paragraph 16.
68 Case 61/76 Geist v Commission [1977] ECR 1419, paragraph 46.
69 Cf. the second paragraph of Article 43 of the Staff Regulations.
70 Cf. judgment in Joined Cases 6/79 and 97/79 Grassi v Council [1980] 2141, paragraph 20.
71 Case 111/83 Picciolo v Parliament [1984] ECR 2323, paragraph 13.
72 Paragraph 28 of the contested judgment.
73 See paragraph 42 above.
74 Sec paragraph 55 above.
75 Paragraph 38 of the contested judgment and the Parliament's statements during the oral procedure before the Court of Justice: p. 10 of the minutes of the hearing.
76 Sec paragraph 5 of the appeal.
77 Cf. paragraphs 36 to 43 of the contested judgment.
78 Cf. paragraphs 39 to 51 of the appeal.
79 [1992] ECR II-203.
80 See paragraph 72 of lhe Schloh judgment.
81 See footnote 30 above.
82 Case 195/80 Michel v Parliament [1981] ECR 2861, paragraph 22.
83 See paragraph 73 above.
84 Sec footnote 30.
85 Paragraph 12 of the judgment.
86 Case 188/73 Crassi v Council [1974] ECR 1099, paragraph 12, in cases of promotion; also, in cases of assignment to another post: the judgment in Case 233/85 Bonino (footnote 42), paragraph 4.
87 Case 188/73 Grassi, previous footnote, paragraph 13; judgment in Case C-343/87 Culin v Commission [1990] ECR I-225, paragraph 13; sec also the judgment of the Court of First Instance in Case T-ll/91 Schloh (footnote 78), paragraph 73.
88 Paragraph 34 of the contested decision.
89 Footnote 86.
90 Loc. cit., paragraphs 13 and 14.
91 Case 58/75 Sergy v Commission [1976] ECR 1139, paragraph 32.
92 Cf. the wording of Article 91 in the version of Regulation No 31 (EEC), 11 (EAEC), Journal Officiel 1962 p. 1385; the amendment leading to the version at present in force is based on Regulation No 1473/72 of 30 June 1972 (OJ, English Special Edition 1972 (III), p. 703).
93 Sec the judgments in Case 195/80 Michel (footnote 81 above) and in Case C-343/87 Culin (footnote 86 above).
94 Judgment in Joined Cases 64/86, 71/86 to 73/86 and 78/86 Sergio v Commission [1988] ECR 1399, paragraph 52.
95 Sec below paragraphs 93 to 97 for one group and paragraphs 98 and 99 for the other.
96 Sec in addition to the Sergio judgment, the judgment in Case 111/83 Picciolo [1984] ECR 2323.
97 Case T-37/89 Hanninz v Parliament [1990] ECR II-463, in the case of Schloh (footnote 78) and Case T-25/92 Vela Palacios [1993] ECR II-201.
98 Joined Cases T-160/89 and T-161/89 Kalamos v Court of Justice [1990] ECR II-871.
99 Paragraph 70 of the Kalavros judgment.
100 The Grassi judgment (footnote 85 above), paragraph 14; sec also the judgment of the Court of First Instance in the Schlob case (footnote 78 above), paragraph 73.
101 See paragraphs 16 to 18 of the Grassi judgment and paragraph 10 in conjunction with paragraphs 73 to 76 of the Schloh judgment.
102 Sec in particular, in addition to the Kalavros and Schloh judgments, the judgment of the Court of First Instance in Case T-25/90 Schönherr v Economic and Social Committee [1992] ECR II-63, paragraph 30.
103 [1985] ECR 1005.
104 Other examples taken from the case-law arc based on similar considerations: judgments of the Court of First Instance in Case T-37/89 Hanning (sec footnote 96 above), which concerned irregularities in a competition procedure, in Case T-1/90 Pérez Minguez [1991] ECR II-143, paragraph 86, and in Case T-156/89 Valverde Mordt [1991] ECR II-407, in particular paragraph 133.