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Judgment of the Court of 31 March 1965. - Ernest Ley v Commission of the EEC. - Joined cases 12-64 and 29-64. European Court reports French edition Page 00143 Dutch edition Page 00142 German edition Page 00148 Italian edition Page 00140 English special edition Page 00107 Danish special edition Page 00037 Greek special edition Page 00041 Portuguese special edition Page 00043

Summary Parties Subject of the case Grounds Decision on costs Operative part

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1 . OFFICIALS - RECRUITMENT - PROCEDURE - PLURALITY OF STEPS - APPEAL AGAINST LATER STEPS - POSSIBILITY OF CONTESTING THE LEGALITY OF EARLIER STEPS

( STAFF REGULATIONS OF OFFICIALS OF THE EEC, TITLE III, CHAPTER I, ARTICLE 91 )

2 . OFFICIALS - RECRUITMENT - POWERS AND DUTIES OF THE ADMINISTRATION

( STAFF REGULATIONS OF OFFICIALS OF THE EEC, ARTICLE 29 )

3 . OFFICIALS - RECRUITMENT - PROCEDURE - PROMOTION - DECISION NOT TO FILL A VACANT POST BY MEANS OF PROMOTION - NO DUTY TO STATE REASONS

4 . OFFICIALS - RECRUITMENT - PROCEDURE - INTERNAL COMPETITION - DECISION NOT TO HOLD AN INTERNAL COMPETITION - TRANSFER - DECISION TO PROCEED TO TRANSFER - NO DUTY TO STATE REASONS FOR SUCH DECISIONS .

1 . SINCE THE VARIOUS STEPS COMPRISING THE RECRUITMENT PROCEDURE FORM A SINGLE ENTITY, IT MUST BE ACCEPTED THAT IN AN ACTION CONTESTING LATER STEPS IN SUCH A PROCEDURE THE APPLICANT MAY CONTEST THE LEGALITY OF EARLIER STEPS WHICH ARE CLOSELY LINKED TO THEM . A SUBMISSION OF INADMISSIBILITY ON THE GROUND THAT AN APPEAL AGAINST THESE STEPS WAS OUT OF TIME IS THEREFORE INADMISSIBLE .

2 . THE USE OF THE TERM ' WHETHER ' AS IT APPEARS IN ARTICLE 29(1 ) OF THE STAFF REGULATIONS OF OFFICIALS OF THE EEC CLEARLY INDICATES THAT THE APPOINTING AUTHORITY, WHERE A VACANT POST IS TO BE FILLED, IS NOT BOUND TO PROCEED TO PROMOTION OR TRANSFER OR HOLD AN INTERNAL COMPETITION, BUT MERELY TO CONSIDER IN EACH CASE WHETHER THESE MEASURES ARE CAPABLE OF RESULTING IN THE APPOINTMENT OF A PERSON OF THE HIGHEST STANDARD OF ABILITY, EFFICIENCY AND INTEGRITY .

IN SO CONSIDERING THE APPOINTING AUTHORITY MUST TAKE INTO ACCOUNT BOTH THE PARTICULAR REQUIREMENTS OF THE POST TO BE FILLED, VIEWED WITHIN THE GENERAL FRAMEWORK OF THE DEPARTMENTS AND THE AVAILABLE OFFICIALS .

3 . THE DECISION NOT TO FILL A VACANT POST BY MEANS OF PROMOTION DOES NOT REQUIRE A STATEMENT OF REASONS . SUCH STATEMENTS OF REASONS, WHICH ARE NOT REQUIRED FOR DECISIONS OF PROMOTION, ARE ALL THE LESS IMPERATIVE FOR THE OUTCOME OF THE QUESTION WHETHER TO ADOPT PROMOTION .

4 . THE DECISION NOT TO HOLD A COMPETITION AND TO PROCEED TO TRANSFER HAVE THE AIM OF FOLLOWING THE RECRUITMENT PROCEDURE PROVIDED FOR IN ARTICLE 29 OF THE STAFF REGULATIONS AND ARE ONLY OF AN INTERNAL NATURE . IT IS THEREFORE UNNECESSARY FOR THEM TO BE PROVIDED WITH A STATEMENT OF REASONS .

IN JOINED CASES 12 AND 29/64

ERNEST LEY, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN ECONOMIC COMMUNITY, REPRESENTED AND ASSISTED BY MARCEL SLUSNY, ADVOCATE OF THE COUR D' APPEL, BRUSSELS, LECTURER AT THE UNIVERSITY OF BRUSSELS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG C/O MRS LEY-HEINEN, 27 AVENUE DE LA GARE,

APPLICANT,

V

COMMISSION OF THE EUROPEAN ECONOMIC COMMUNITY, REPRESENTED BY ITS LEGAL ADVISER, LOUIS DE LA FONTAINE, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICES OF HENRI MANZANARES, SECRETARY OF THE LEGAL DEPARTMENT OF THE EUROPEAN EXECUTIVES, 2 PLACE DE METZ,

DEFENDANT,

APPLICATION CONCERNING THE PROCEDURE FOR RECRUITMENT FOLLOWED BY THE COMMISSION IN ORDER TO FILL THE POST WHICH WAS THE SUBJECT OF VACANCY NOTICE NO 403,

P.118

WITH REGARD TO CASE 12/64

ON ADMISSIBILITY

( 1 ) THE PRESENT APPLICATION IS DIRECTED INTER ALIA AGAINST VACANCY NOTICE NO 403 AND THE NOTIFICATION OF POSTS VACANT AT THE COMMISSION PUBLISHED IN THE EEC COMMISSION STAFF INFORMATION BULLETIN OF 29 OCTOBER 1962 .

THE DEFENDANT MAINTAINS THAT THE APPLICATION IS OUT OF TIME AND MUST THEREFORE BE DISMISSED AS INADMISSIBLE SO FAR AS IT IS DIRECTED AGAINST THESE MEASURES .

SINCE THE RECRUITMENT PROCEDURE COMPRISES SEVERAL INTERDEPENDENT MEASURES, THIS OBJECTION WOULD BE TANTAMOUNT TO REQUIRING PERSONS CONCERNED TO BRING AS MANY ACTIONS AS THE NUMBER OF ACTS ADVERSELY AFFECTING THEM CONTAINED IN THE SAID PROCEDURE . HAVING REGARD TO THE CLOSE CONNEXION BETWEEN THE DIFFERENT MEASURES COMPRISING THE RECRUITMENT PROCEDURE, IT MUST BE ACCEPTED THAT IN AN ACTION CONTESTING LATER STEPS IN SUCH A PROCEDURE, THE APPLICANT MAY CONTEST THE LEGALITY OF EARLIER STEPS WHICH ARE CLOSELY LINKED TO THEM .

THE GROUNDS OF COMPLAINT INVOKED BY THE APPLICANT AGAINST THE DISPUTED NOTICE AND NOTIFICATION MAY THEREFORE BE TAKEN INTO CONSIDERATION BY THE COURT IN ITS APPRAISAL OF THE LEGALITY OF THE DECISIONS OF 26 FEBRUARY 1964 WHICH CONSTITUTE THE MAIN SUBJECT-MATTER OF THE APPLICATION .

( 2 ) IN THE REPLY, THE APPLICANT RAISES FOR THE FIRST TIME THE SUBMISSION OF INFRINGEMENT OF ARTICLE 29(1 ) OF THE STAFF REGULATIONS IN CONNEXION WITH THE DECISIONS OF 26 FEBRUARY 1964 .

P.119

UNDER THE TERMS OF ARTICLE 38(1)(C ) OF THE RULES OF PROCEDURE, THE APPLICATION SHALL CONTAIN A BRIEF STATEMENT OF THE GROUNDS ON WHICH THE APPLICATION IS BASED; ARTICLE 42(2 ) OF THE SAME RULES FORBIDS THE RAISING OF A FRESH ISSUE IN THE COURSE OF PROCEEDINGS UNLESS IT IS BASED ON MATTERS OF LAW OR OF FACT WHICH COME TO LIGHT IN THE COURSE OF THE WRITTEN PROCEDURE .

IN THIS CASE THE DEFENDANT IN ITS STATEMENT OF DEFENCE PUT FORWARD THE ARGUMENT THAT THE APPOINTING AUTHORITY IS, PURSUANT TO ARTICLE 29(1)(B ) OF THE STAFF REGULATIONS, BOUND TO CONSIDER WHETHER TO HOLD COMPETITIONS INTERNAL TO THE INSTITUTION, AND IN THIS CONNEXION HAS A DISCRETIONARY POWER OF APPRAISAL .

IN SUPPORT OF HIS SUBMISSION, THE APPLICANT PUTS FORWARD THE OPPOSITE ARGUMENT, NAMELY THAT THE APPOINTING AUTHORITY IS ALWAYS BOUND TO ORGANIZE SUCH A COMPETITION WHEN THE VACANT POSTS CANNOT BE FILLED THROUGH THE RECRUITMENT PROCEDURE BY MEANS OF PROMOTION OR TRANSFER . IT MUST THEREFORE BE CONCLUDED THAT THE ISSUE IN QUESTION IS BASED ON MATTERS OF LAW WHICH CAME TO LIGHT IN THE COURSE OF THE WRITTEN PROCEDURE, AND THAT IT IS ADMISSIBLE UNDER ARTICLE 42(2 ) OF THE RULES OF PROCEDURE .

ON THE SUBSTANCE OF THE CASE

WITH REGARD TO THE SUBMISSION OF MISUSE OF POWERS

THE APPLICANT ACCUSES THE COMMISSION OF MISUSE OF POWERS AGAINST HIM, IN THAT IN THIS CASE THE RECRUITMENT PROCEDURE FOLLOWED IS ONLY TO BE ACCOUNTED FOR BY THE INTENTION TO ENGAGE AN OFFICIAL OF A GIVEN NATIONALITY FOR THE VACANT POST .

IN SUPPORT OF THIS GROUND OF COMPLAINT HE MAKES CERTAIN ALLEGATIONS AND PUTS FORWARD OFFERS OF PROOF .

THE FACTORS WHICH HE INVOKES ARE NOT SUCH AS TO PROVE THAT THE APPOINTING AUTHORITY HAD THE AIM ALLEGED .

IN FACT IT CANNOT BE DETERMINED WHETHER THESE ALLEGATIONS ARE WELL FOUNDED UNTIL THE RECRUITMENT PROCEDURE IS CLOSED AND THE CANDIDATE CHOSEN BY THE COMMISSION IS FINALLY APPOINTED .

THE OFFERS OF PROOF SUBMITTED IN THIS CONNEXION ARE NOT CAPABLE OF SUBSTANTIATING THESE ALLEGATIONS .

THE PRESENT SUBMISSION SHOULD THEREFORE BE REJECTED .

P.120

WITH REGARD TO THE SUBMISSION OF INFRINGEMENT OF ARTICLES 25 AND 45 OF THE STAFF REGULATIONS

THE APPLICANT CLAIMS THAT THE DECISIONS OF 26 FEBRUARY 1964 WERE BASED ON INCORRECT GROUNDS AND INFRINGE ARTICLE 25 OF THE STAFF REGULATIONS .

HE ALSO ALLEGES THAT ARTICLE 45 OF THE STAFF REGULATIONS WAS INFRINGED IN THAT, PRIOR TO ADOPTING THE DECISION NOT TO PROMOTE HIM TO THE VACANT POST, THE COMMISSION DID NOT UNDERTAKE A CONSIDERATION OF THE COMPARATIVE MERITS OF EACH CANDIDATE, IN ACCORDANCE WITH THE SAID ARTICLE, IN PARTICULAR BY CONSULTING THEIR PERSONAL FILES .

IN THIS CASE IT IS ESTABLISHED THAT, HAVING CONSIDERED FILLING THE VACANT POST BY MEANS OF PROMOTION, THE COMMISSION DECIDED THAT THERE WAS NO NEED FOR IT TO EMPLOY THAT MEANS OF RECRUITMENT .

SINCE ANY POSSIBILITY OF PROMOTION WAS THUS REMOVED FROM THE OUTSET, ARTICLE 45 DID NOT APPLY .

THE APPLICANT IS WRONG IN CONSIDERING THAT THE DECISION NOT TO FILL THE VACANT POST BY MEANS OF PROMOTION REQUIED A STATEMENT OF REASONS .

IN FACT, SINCE SUCH A STATEMENT OF REASONS IS NOT REQUIRED FOR DECISIONS OF PROMOTION, IT IS ALL THE LESS IMPERATIVE FOR THE OUTCOME OF A CONSIDERATION OF THE QUESTION WHETHER TO ADOPT PROMOTION .

THE OTHER DECISIONS CONCERNED HAVE THE AIM MOREOVER OF FOLLOWING THE RECRUITMENT PROCEDURE PROVIDED FOR IN ARTICLE 29 OF THE STAFF REGULATIONS, AND ARE ONLY OF AN INTERNAL NATURE .

THE PROVISIONS OF THE SAID ARTICLE 25 OF THE STAFF REGULATIONS ARE THEREFORE NOT APPLICABLE IN THIS CASE .

SINCE A STATEMENT OF REASONS FOR THE CONTESTED DECISIONS IS NOT NECESSARY IN THIS CASE, THE SUBMISSION PUT FORWARD MUST CONSEQUENTLY BE REJECTED .

WITH REGARD TO THE SUBMISSION OF INFRINGEMENT OF ARTICLE 29(1 ) OF THE STAFF REGULATIONS

THE APPLICANT MAINTAINS IN ADDITION THAT IN DECIDING NOT TO ORGANIZE AN INTERNAL COMPETITION THE COMMISSION INFRINGED ARTICLE 29(1 ) OF THE STAFF REGULATIONS .

P.121

IN SUPPORT OF THIS GROUND OF COMPLAINT HE ALLEGES THAT, ALTHOUGH THE SAID ARTICLE ALLOWS THE APPOINTING AUTHORITY TO CONSIDER WHETHER THE VACANT POSTS SHOULD BE FILLED BY MEANS OF PROMOTION OR TRANSFER, IT RENDERS OBLIGATORY, HOWEVER, THE HOLDING OF A COMPETITION INTERNAL TO THE INSTITUTION, IF NO PROMOTION OR TRANSFER CAN BE DECIDED UPON .

THIS INTERPRETATION MEETS WITH THE DIFFICULTY THAT ARTICLE 29(1)(B ), JUST LIKE ARTICLE 29(1)(A ), ONLY REQUIRES THE SAID AUTHORITY TO CONSIDER ' WHETHER ' TO ADOPT THE MEASURES IN QUESTION .

THE USE OF THE TERM ' WHETHER ' CLEARLY INDICATES THAT THE APPOINTING AUTHORITY IS NOT BOUND ABSOLUTELY TO ADOPT THESE SAID MEASURES, BUT MERELY TO CONSIDER IN EACH CASE WHETHER THEY ARE CAPABLE OF RESULTING IN THE APPOINTMENT OF AN OFFICIAL OF THE HIGHEST STANDARD OF ABILITY, EFFICIENCY AND INTEGRITY . IN SO CONSIDERING, THE APPOINTING AUTHORITY MUST TAKE INTO ACCOUNT BOTH THE PARTICULAR REQUIREMENTS OF THE POST TO BE FILLED, VIEWED WITHIN THE GENERAL FRAMEWORK OF THE DEPARTMENTS, AND THE AVAILABLE OFFICIALS .

THE COMMISSION WAS THEREFORE NOT BOUND TO HOLD AN INTERNAL COMPETITION .

FOR THESE REASONS, IT MUST BE CONCLUDED THAT THE COMMISSION HAS NOT IN THIS CASE INFRINGED ARTICLE 29(1 ) OF THE STAFF REGULATIONS AND THAT THE PRESENT SUBMISSION IS THEREFORE UNFOUNDED .

WITH REGARD TO THE CONCLUSIONS AGAINST THE ORDER IN APPLICATION 12/64 R FOR THE ADOPTION OF AN INTERIM MEASURE

IN HIS ORDER OF 4 MAY 1964 THE PRESIDENT OF THE COURT ORDERED THE APPLICANT TO BEAR THE COSTS INCURRED BY HIM IN THE APPLICATION FOR THE ADOPTION OF AN INTERIM MEASURE .

THE APPLICANT REQUESTS THE COURT TO GIVE A NEW RULING ON THE QUESTION OF COSTS . IN THIS CONNEXION HE PLEADS THAT, UNDER THE TERMS OF ARTICLE 86(4 ) OF THE RULES OF PROCEDURE, AN ORDER IN SUCH AN APPLICATION SHALL ONLY HAVE AN INTERIM EFFECT AND THAT THE COSTS SHOULD THEREFORE BE RESERVED .

THIS REQUEST IS CONTRARY TO ARTICLE 86(1 ) OF THE RULES OF PROCEDURE UNDER THE TERMS OF WHICH NO APPEAL SHALL LIE FROM AN ORDER IN SUCH AN APPLICATION .

THESE CONCLUSIONS MUST THEREFORE BE DISMISSED AS INADMISSIBLE .

WITH REGARD TO CASE 29/64

THE APPLICANT MADE THE PRESENT APPLICATION WITH THE SOLE AIM OF RAISING AN ISSUE WHICH, IN CASE 12/64, WAS RAISED FOR THE FIRST TIME IN THE REPLY AND MIGHT THEREBY BE CONSIDERED INADMISSIBLE .

THE TWO APPLICATIONS RELATE TO THE SAME DECISIONS AND CONTAIN THE SAME CONCLUSIONS .

THE APPLICANT HIMSELF DESCRIBES HIS APPLICATION AS HAVING BEEN MADE ' AS A PRECAUTION ' OR BY WAY OF AMENDMENT TO THE EARLIER APPLICATION .

AS THE ALLEGED ISSUE WAS CONSIDERED TO BE ADMISSIBLE WITHIN THE CONTEXT OF APPLICATION 12/64, THE PRESENT APPLICATION HAS BECOME POINTLESS .

IT MUST THEREFORE BE DISMISSED AS INADMISSIBLE .

UNDER THE TERMS OF ARTICLE 69(2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .

HOWEVER, UNDER THE TERMS OF ARTICLE 70 OF THE SAME RULES, IN PROCEEDINGS BY SERVANTS OF THE COMMUNITIES, INSTITUTIONS SHALL BEAR THEIR OWN COSTS .

THE APPLICANT HAS FAILED IN ALL HIS CONCLUSIONS .

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . DISMISSES APPLICATION 12/64 AS BEING UNFOUNDED;

2 . DISMISSES APPLICATION 29/64 AS BEING INADMISSIBLE;

3 . DISMISSES THE REQUEST FOR REVISION OF THE ORDER MADE IN APPLICATION 12/64 R FOR THE ADOPTION OF AN INTERIM MEASURE AS INADMISSIBLE;

4 . ORDERS THE APPLICANT TO PAY THE COSTS OF THE ACTIONS, WITH THE EXCEPTION OF THE COSTS INCURRED BY THE DEFENDANT .