JUDGMENT OF 15. 12. 1966 — CASE 62/65 SERIO v COMMISSION

In Case 62/65

THE COURT (First Chamber) composed of: A. Trabucchi, President of Chamber, L. Delvaux (Rapporteur) and R. Lecourt, Judges, Advocate-General: K. Roemer Registrar: H. J. Eversen, Assistant Registrar

gives the following

JUDGMENT

Issues of fact and of law

I — Facts

The facts may be summarized as follows:

On 16 January 1965 the applicant took part in a competition (Notice of Competition EURATOM/AD/A/47/64 published in the Official Journal of 22 June 1964) held for the purpose of establishing a reserve list of administrators in Grades A 7 and A 6. The Selection Board placed him first in this competition.

The Directorate-General of Administration and Personnel advised the applicant by letter of 14 April 1965 that his name appeared on the list of suitable candicates and that he would be called upon to fill a post of administrator if the requirements of the administration necessitated this and if the limit of validity of the reserve list, which expired on 31 December 1965 but which could be extended, allowed it.

On 12 May 1965 the applicant was summoned to Brussels by Mr Tinelli, the Director of the abovementioned Directorate-General. The applicant was informed that there was a vacant post on Mr Tinelli's staff, which was to be filled at the level of Grade A 6. He was also invited to undergo the medical examination prior to appointment.

It appears from the statements of the defendant that following this interview Mr Tinelli proposed that the applicant be appointed, having regard to the result of the competition and the favourable personal impression made by him. The appointing authority did not accept this proposal and appointed a Belgian to the vacant post. It based its decision on the necessity for the broadest possible geographical distribution of vacant posts, as referred to in Article 27 of the Staff Regulations of Officials of the EAEC. It appears from the defendant's explanations, in fact, that if Mr Tinelli's new assistant had been of Italian nationality the service of the Directorate of Personnel would have comprised four Italian officials out of a total of six.

The applicant was then summoned on 24 September 1965 to the Karlsruhe establishment of the Joint Research Centre, where a post in the Personnel Department was vacant. According to the applicant, he was passed over for this post as he was considered to be too highly qualified for it. According to the defendant, on the other hand, it appeared that his vocational experience and abilities equipped him for duties less practical than the management of the staff of the Research Centre.

By application lodged on 31 December 1965, the applicant requests the Court to annul the appointments of the candidates appearing with him on the list of suitable candidates and to rule that the appointing authority shall be obliged to appoint him to one of the posts for which he applied.

II — Conclusions of the parties

A —. In his application the applicant claims that the Court should:

‘1. Procedure

rule that the present application is admissible ;

declare that it has jurisdiction to entertain it;

take note that the applicant reserves the right to put forward during the course of the proceedings all details of fact and law which at the lodging of this application it was not possible for him to do;

take note that he reserves the right to put forward evidence with regard to the points described above;

in any event order the relevant departments of the defendant to lodge all administrative documents the contents of which are unknown to the applicant, in particular:

the Selection Board's report with the result of Competition EURATOM/AD/A/47/64;

the documents with regard to the appointments made at Brussels and Karlsruhe to the detriment of the applicant;

the statements of reasons given for rejecting the applicant;

the memoranda and correspondence relating to the applicant's candidatures, particularly the report made by Mr Welisch giving reasons for the refusal to appoint the applicant;

all other documents of the administration relating to this matter;

2. The substance of the case

rule that this application is well founded and consequently annul the appointments made by the defendant as a result of Competition EURATOM/AD/A/47/64 to the detriment of the applicant since there was no valid reason for passing over him as he was placed first in the competition;

annul any other appointment made by an appointing authority of the Commission of Euratom, to the extent to which such appointments were made to the detriment of the applicant who was placed first in the said competition;

rule that the appointing authorities of the defendant shall with retroactive effect appoint the applicant to one of the vacant posts, under the conditions discussed and agreed on with Mr Tinelli and approved by the administration (appointment in Grade A 6) and, in so far as in necessary, extend the validity of the list of suitable candidates;

order the defendant to pay to the applicant, by way of damages for the loss of income suffered by reason of his rejection, the sum of 26000 Belgian francs per month, subject to the possible addition of allowances, or any other higher sum to be fixed ex aequo et bono by the Court in accordance with the scale of salaries and allowances laid down by the Staff Regulations, the whole to compensate for the loss suffered by him during the period in which he did not benefit from appointment;

reserve to the applicant generally all other rights whatsoever;

order the defendant to pay the entire costs and expenses of the proceedings and in any event allow the applicant the benefit of Articles 69, 70, 71, 72 and 73 of the Rules of Procedure.’

B —. In its statement of defence the defendant contends that the Court should:

‘— principally, dismiss the application as being inadmissible;

— alternatively, dismiss it as being unfounded under all its heads of claim;

— order the applicant to pay the costs in accordance with the terms of Article 70 of the Rules of Procedure.’

C —. In his reply the applicant claims that the Court should:

‘declare the application to be admissible under Article 38(l)(c) of the Rules of Procedure;

order the lodging of documents in accordance with the provisions of the Rules of Procedure;

in so far as is necessary, allow the pre -sentation of the evidence set out above, the reference to which may be presumed to be repeated herein;

for the remainder, accept the conclusions in the originating application of31 December 1965 and rule that the twofold rejection of the applicant is contrary to the rules of natural justice and the provisions of the Staff Regulations, in particular Article 27 thereof;

rule that such rejection is illegal in particular as being ultra vires and a misuse of powers, as the applicant has by far the highest qualifications and none of the reasons for the rejection are well founded in fact, in law or in natural justice;

subject generally to all reservations whatsoever.’

D —. In its rejoinder the defendant contends that the Court should:

‘accept the defendant's conclusions set out in the statement of defence.’

III — Submissions and arguments of the parties

The submissions and arguments of the parties may be summarized as follows:

A — Admissibility

The defendant claims that the application is inadmissible on the ground that in the application the applicant has not referred to the provisions of the Staff Regulations of Officials or the rules of law which are alleged to have been infringed and has not indicated, even by implication, the grounds on which his application is based.

The defendant states that in the first place the applicant claims that he should have been the first to be selected, since he was placed first on the list, but does not specify under which provision of the Staff Regulations the institution is obliged to choose the candidate placed first in a competition. The applicant goes on to allege that the institution has shown no valid reason for passing over his candidature and that in fact there was no valid reason for rejecting it. The defendant observes, however, that the applicant does not specify whether he criticizes the non-communication of reasons and, because of this, does not indicate what provision imposes an obligation of this nature. Neither does he specify whether he is criticizing the lack of reasons or their illegality, and it follows from this that he is not relying on the mandatory nature of the provisions in dispute.

The defendant concludes from this that the application does not contain a brief statement of the grounds upon which it is based, as required by Article 38(1)(c) of the Rules of Procedure.

The applicant replies first that Article 38 (1)(c) of the Rules of Procedure requires in the application only a brief statement of the grounds upon which it is based and not a detailed argument.

He goes on to allege that he has denned the rules of law referred to and the grounds upon which his application is based as follows:

he had clearly referred to Article 27 of the Staff Regulations, under the terms of which recruitment shall be directed to securing for the institutions the services of officials of the highest standard, and he has claimed that it is this express, mandatory provision which has been infringed by the rejection of the candidate placed first;

he has referred to the case-law of the Court, limiting the power of the appointing authority to make its choice from the list of suitable candidates, and in particular the judgment of the Court of 4 March 1964 ([1964] E.C.R. 31) in Lassalle v European Parliament;

in his application he expressly reserves the right to put forward during the course of the proceedings all details which he was not then in a position to do;

he has emphasized that the reasons for his rejection, which were communicated to him verbally, were not valid according to legal theory and the case-law on the subject.

The defendant replies that its objection does not refer to the conciseness of the application but to the fact that it does not contain a precise statement of the grounds upon which it is based.

According to the defendant, it is only in the reply that the applicant mentions incidentally the complaint of misuse of powers and raises his ambiguous objections to the reasons on which the decision was based.

The defendant states further that the reference to Article 27 of the Staff Regulations cannot form the basis of an application in respect of infringement of a rule of law, when the subject-matter of the dispute is whether the Commission is obliged to appoint the candidate who is placed first by the Selection Board, in contradiction to the express provision of Article 30 of the Staff Regulations.

B — The substance of the case

1. Complaint of infringement of Article 27 of the Staff Regulations The applicant points out that he was placed first in the competition and that, in addition, he possesses strong claims to be appointed. He not only holds the degree of doctor of law, but he has also widened his academic training in the fields of Community law, international law and comparative law as he has shown by the numerous degrees and diplomas annexed to his application. His perfect command of French, English, Dutch and German is also evidenced by the production of diplomas. He appears on the list of suitable candidates in several competitions and his vocational experience is supported by three certificates. Although Article 27 of the Staff Regulations lay down two obligations, first of choosing the most highly-qualified candidates and secondly of recruiting them on the broadest possible geographical basis, it appears from legal theory and case-law that the principle of qualifications must prevail over that of geographical distribution. The applicant cites in particular the case-law of the Court in its judgment of 4 March 1964 ([1964] E.C.R. 31) from which it appears that, on the one hand, the criterion of nationality only comes into play when the qualifications of the candidates are approximately equal and that, on the other hand, this criterion can only be taken into consideration in the context of the totality of the staff of the institution. The defendant replies that under the terms of Article 30 of the Staff Regulations, as confirmed by Article 5 of Annex III thereto, the appointing authority has the power to make a selection. Although the Selection Board evaluates the intrinsic worth of the candidates, it is for the appointing authority to choose from among the candidates listed by the Selection Board that candidate most suitable for the actual post to be filled. According to the defendant, the system established by the Staff Regulations is as follows. Article 27 is a preliminary general provision which defines the objective to be attained: to create a body of officials of the highest possible calibre and representative of all the Member States. It is the provisions which follow, namely Articles 28, 29 and 30, which constitute the precise, technical, detailed rules for recruitment. And Article 30 expressly states that the appointing authority shall decide which of the candidates to appoint from the list of suitable candidates drawn up by the Selection Board. The defendant then refutes the applicant's argument based on the case-law of the Court in its judgment of 4 March 1964 ([1964] E.C.R. 31). It observes that the present application concerns a recruitment, whilst the judgment cited dealt with a question of promotion where the post to be filled had been reserved for a person of a particular nationality, despite the express prohibition contained in Article 27 of the Staff Regulations. The defendant cites the opinion of Mr Advocate-General Lagrange in this same case ([1964] E.C.R. 40) and claims that it is at the stage of recruitment that the institution must take care to fulfil the obligation of geographical balance imposed by Article 27 of the Staff Regulations. It adds that the judgment in question reserved the right of institutions to allow reasons of nationality to prevail over qualifications, even in cases of promotion, when the interests of the department required this. The defendant considers that the criterion of nationality, despite its subsidiary nature, may be so important to the composition and functioning of departments that it must prevail over other considerations. In reply to the applicant's argument that the geographical balance of posts should be effected in the context of the institution and not of a department, the defendant states that the abovementioned judgment of 4 March 1964 uses the words ‘geographical balance among its staff’ , which must be interpreted as meaning that such balance must be sought in every large administrative unit of the institution.

2. Complaint of non-communication of the reasons on which the decision was based and of absence of such reasons The applicant claims that no relevant reason has been given for rejecting his candidature and that, in respect of the post to be filled at Karlsruhe, it has even been said that the applicant was too highly qualified, which is certainly not a valid argument. The defendant replies that neither in law nor in fact can the Commission be obliged to communicate to candidates the reasons why they were not appointed. However, in this case, reasons were given to the applicant. It states that with regard to the post at Karlsruhe the applicant himself admitted this in his application. In respect of the post on Mr Tinelli's staff, the applicant cannot dispute that Mr Tinelli spoke to him about the problem of nationality which arose in this case. The defendant observes that the applicant has not furnished the slightest proof that the appointing authority's power of selection was exercised in an arbitrary manner or that the reasons for the decisions taken were unconnected with the interests of the department. The defendant then explains for the Court's enlightenment the reasons which led it to appoint other candidates to the posts to be filled. With regard to the post on Mr Tinelli's staff, that official proposed the appointment of the applicant, following an interview with him, having regard to the results of the competition and the favourable personal impression made by the applicant. The appointing authority did not accept this proposal and appointed a Belgian to the vacant post. It based its actions on the requirement of as broad a geographical distribution as possible of the posts to be filled, as referred to in Article 27 of the Staff Regulations. It states that in fact if Mr Tinelli's new assistant had been Italian, the department of the Directorate of Personnel would have comprised four Italian officials out of a total of six. With regard to the vacant post in the Personnel Department of the Karlsruhe establishment of the Joint Research Centre, the reason for rejecting the applicant is not that he was considered too highly qualified to occupy the post to be filled. The real reason is that the applicant's knowledge and abilities equipped him for tasks less practical than the management of the staff of the Research Centre. The applicant replies, in respect of the post on Mr Tinelli's staff, that the criterion of nationality can play only a subordinate role, and in any event only in the context of the institution, and not, as erroneously maintained by the defendant, in the context of a particular Directorate. With regard to the Karlsruhe post, the applicant offers to prove by all means open to him in law, in particular by the production of the defendant's administrative files and by the evidence of witnesses, that, as a result of his conversation with the applicant and an examination of the file, Mr Welisch, the Head of administration at Karlsruhe, considered the applicant to be too highly qualified for the post to be filled and made a report to that effect. On the subject of his abilities in the field of personnel management, the applicant emphasizes that his curriculum vitae mentions that during his military service he was head of administration of the C.R.C. of Otranto (Lecce) in his capacity as aeronautical officer, where he had been responsible precisely for the management of the staff of the Centre, with all the complex tasks which that entailed. The applicant concludes from this that the defendant has been guilty of a misuse of powers arid of acting ultra vires in rejecting him for reasons both arbitrary and contrary to the Staff Regulations. The defendant replies, in respect of the post on Mr Tinelli's staff, that it follows from the words used by the Court in its judgment of 4 March 1964 that its analysis of the first complaint was that a geographical balance must be sought in every large administrative unit and that it would be inconceivable to set up a financial department which was predominantly French, an economics department predominantly German and an atomic research department predominantly Italian. With regard to the Karlsruhe post, the defendant replies that it considered the applicant not to possess the practical experience which would enable him to act with immediate efficiency and that it thus exercised its power of selection by seeking among the other successful candidates in the competition for the person best suited for the post to be filled.

3. Request for the production of documents The applicant points out that, in accordance with the provisions of Article 22 of the Statute of the Court of Justice of the EAEC, Article 26 of the Staff Regulations of Officials of the EAEC and Article 46 of the Conditions of Employment of Other Servants of the Community, there are grounds for producing in court the administrative documents of the contents of which the applicant is ignorant and in particular the following documents: the Selection Board's report with the result of Competition EURATOM/AD/A/47/64; the documents relating to the appointments made at Brussels and Karlsruhe to the applicant's detriment; the reasons given for rejecting the applicant; the memoranda and correspondence relating to the applicant's candidatures, particularly the report made by Mr Welisch giving reasons for the refusal to appoint the applicant; all other documents of the administration relating to this matter. In support of his demand, the applicant relies on the fact that: with regard to the Brussels post, the documents requested are capable of revealing the real importance of an advantageous placing in a competition and, therefore, of underlining the weight of the primary criterion of qualifications as compared to the secondary criterion of nationality; with regard to the Karlsruhe post, it is essential to know the contents of Mr Welisch's report explaining the reasons for the applicant's rejection. The defendant replies that, taking into account the explanations given by it, all factors in the case are known to the applicant and the Court. It adds that one cannot, on the one hand, maintain that a decision is. illegal without indicating the legal bases for such a contention and without offering proof and, on the other hand, demand that the opposing party shall prove by all necessary documents that its decision is legal. The defendant observes finally that neither in fact nor in law is the Commission obliged to communicate to the applicant or to the forty-five other candidates successful in the competition the reasons why they were not subsequently appointed. It contends that the request for the production of documents is unfounded and even inadmissible.

4. Claim for damages The applicant requests the Court, as compensation for the loss suffered by him during the period in which he has not enjoyed the benefit of his appointment, to order the defendant to pay to him by way of damages the sum of 26000 Belgian francs per month, subject to the possible addition of allowances, or any other higher sum to be fixed ex aequo et bono in accordance with the scale of salaries and allowances laid down by the Staff Regulations.

IV — Procedure

The statements of the parties were lodged within the prescribed time-limits and the procedure followed the normal course.

During its hearing on 1 June 1966 and after hearing the preliminary report of the Judge-Rapporteur and the opinion of the Advocate-General, the Court (First Chamber) decided to open the oral procedure without making any preparatory inquiry. However, it invited the defendant to place on the file the documents concerning the appointments at Brussels and Karlsruhe, the annulment of which is sought, and the memoranda and correspondence relating to the applicant's candidature, including the report of Mr Welisch.

The defendant produced seven documents on 25 June 1966.

As on 3 October 1966 the applicant withdrew his application (62/65 R) for the adoption of an interim measure with a view to obtaining the suspension of application of the appointments of the two officials engaged by the defendant following the competition in dispute, on 5 October 1966 the President of the First Chamber ordered that application to be removed from the register.

On 26 August 1966 the applicant lodged a request for the procedure, which had been started in French, to be continued in Italian.

On 1 September 1966 the applicant lodged a request that the defendant be ordered to produce a series of eight documents.

At its hearing on 5 October 1966, the First Chamber of the Court, after hearing the opinion of the Advocate-General, decided to invite the parties to present their oral observations on this request at the hearing fixed for the main action.

The parties presented oral argument at the hearing on 9 November 1966.

The First Chamber of the Court authorized counsel for the applicant to present his submissions in Italian, in accordance with Article 29 (2) (c) of the Rules of Procedure.

During the hearing the defendant lodged the files concerning the candidatures of Mr Serio and Mr Petrucco.

Mr Advocate-General Roemer delivered his opinion at the hearing on 22 November 1966.

Grounds of judgment

I — Admissibility

The defendant raises an objection of inadmissibility against the application on the ground that in his application the applicant has omitted to indicate precisely the grounds relied upon and the provisions of the Staff Regulations or the rules of law which are alleged to have been infringed.

The application in its entirety mentions with sufficient clarity the principles of law which, according to the applicant, have been infringed by the Commission.

The applicant refers in particular to Article 27 of the Staff Regulations in order to establish that his classification in the competition entitles him to be selected in preference to the other candidates. He also refers to the judgment of the Court in Case 15/63, concerning the role to be played by an official's nationality in selection for a post. Finally he sets out with sufficient clarity the complaint of misuse of powers.

It follows from the foregoing that the application must be declared to be admissible, as the requirements of form imposed by Article 38 of the Rules of Procedure have been satisfied.

II — The substance of the case

A — The request for annulment of the appointment of the candidate Mr Van Cauwenberg

With regard to the post on the staff of the Director of Administration and Personnel at Brussels, the defendant has emphasized that, by reason of the fact that two of the four posts of Head of Department and the post of Director were already occupied by Italians, it was not possible for it to select the applicant, who was also Italian, for fear of further aggravating the geographical imbalance of posts in the Directorate in question.

The applicant, basing his argument on the judgment of the Court of 4 March 1964 in Case 15/63, has alleged that the criterion of nationality only comes into play when the candidates' qualifications are approximately equal and, in addition, can only be taken into account in the context of the totality of the staff of an institution and not in that of a single department.

The judgment cited followed Article 27 of the Chapter of the Staff Regulations entitled ‘Recruitment’ which provides that ‘No posts shall be reserved for nationals of any specific Member State’. The judgment referred to, which concerns a case of promotion or transfer, cannot be applied to this case.

Article 27 also stipulates that officials must be ‘recruited on the broadest possible geographical basis’. This broad geographical distribution is particularly desirable in the Directorate of Administration and Personnel, which concerns all officials. In any event, the practical requirements of the post may well have made it necessary to avoid the appointment of a fourth servant with the same legal and administrative training in a Directorate whose staff comprises six persons in all.

The defendant was therefore entitled in this case to give preference to a candidate of a nationality other than that of the applicant. Even if the Commission were to be criticized for selecting the thirty-fifth candidate and the fifth Belgian in the order of merit in the competition in preference to all the candidates placed higher in the list, the applicant has no personal interest in formulating that complaint.

This head of claim must therefore be dismissed.

B — The request for annulment of the appointment of the candidate Mr Petrucco

With regard to the vacant post in the Personnel Department of the Karlsruhe establishment of the Joint Research Centre, the official deputed to interview the candidates prior to their possible engagement sent the Commission a report on the applicant worded as follows:

‘A good candidate. However his vocational experience equips him rather for a post in which his legal knowledge and experience can be better utilized. The management of the staff of a small research centre would divert him from a career corresponding better to his qualifications.’

After receiving this report, the Commission proceeded to select Mr Petrucco.

It appears from a comparison of the results obtained by Mr Serio and Mr Petrucco in the oral tests that the applicant was placed first with 73.4 points, whilst the candidate selected was only placed twelfth with 66 points. Further, a comparison of the respective files of the two candidates shows that the applicant's qualifications were far superior to those of the candidate chosen.

Under the terms of Article 29 of the Staff Regulations ‘Before filling a vacant post’ or ‘constituting a reserve for future recruitment’ the appointing authority shall follow ‘the procedure for competitions’. Under the terms of Article 30, the said authority shall then ‘decide’ which of those on the list of suitable candidates to appoint to the vacant posts.

It is therefore obliged to reconcile the concepts of competition and selection resulting from these provisions read together.

Although it is entitled in making its selections to ignore the precise order of merit in the competition for reasons which it is incumbent upon the administration to evaluate and justify before the Court, nevertheless it may not destroy the very concept of competition by departing substantially from the result of the competition without serious reasons.

However no such reasons apply in the present case, since the excellence of a candidate placed first cannot be considered as justification for his rejection. The defendant's allegation that the Commission's choice was inspired by the greater experience of the candidate appointed seems irrelevant. In fact, under the terms of Article 1 (1)(d) of Annex III to the Staff Regulations the notice of competition must specify ‘the degree of experience required for the posts to be filled’.

Article 5 of Annex HI obliges the Selection Board to draw up a list of candidates ‘who meet the requirements set out in the notice of competition’.

Thus, in allowing Mr Serio to take part in the competition, the Selection Board had already considered the degree of his experience, so depriving the Commission of the opportunity to justify a subsequent refusal to appoint the candidate by reason only of his insufficient experience.

Moreover the post to be filled was a post of administrator in career bracket A 7-A 6 in which the official, who is usually inexperienced, begins to carry out his duties under the supervision of experienced superiors. It appears from the file that the applicant had for three years practised patent law with the Montecatini company and for one year had carried out temporary duties at the European Parliament. Therefore the lack of experience referred to during the proceedings in order to justify the applicant's rejection cannot be accepted, more especially as this reason appears to be different from that given at the time of the applicant's exclusion.

Finally the Commission cannot hide behind the argument that, having constituted a reserve list for future recruitment, it then had complete freedom of choice.

It appears from the notice of general competitions published by the Commission (Official Journal of 22 June 1964) that ‘the list of suitable candidates will be sent to the appointing authority, which will select from it the candidates to be appointed or, in the event of the constitution of a reserve list for future recruitment, to be placed on that list’.

The Commission has therefore already made a first choice by placing the candidates on that list. Consequently it cannot thereafter claim a discretionary power to make a serious departure from the choices which it had previously made.

It follows from the foregoing that the defendant has infringed Articles 27, 29 and 30 of the Staff Regulations of Officials and that, therefore, the appointment of the candidate Mr Petrucco to the Karlsruhe post should be annulled.

C — The claim for compensation

The applicant requests the Court to award him damages for the loss of income suffered by reason of his rejection.

The circumstances in which the applicant's rejection occurred and the erroneous reasons given constitute a wrongful act or omission on the part of the defendant and such wrongful act or omission has caused damage giving the right to reparation.

Such loss is calculated ex aequo et bono at one hundred and fifty thousand Belgian francs.

D — The applicant's remaining conclusions

The applicant also requests the Court to order the defendant to appoint him with retroactive effect to one of the vacant posts.

It is the defendant's duty to carry out the judgment of annulment but the Court cannot encroach upon the prerogatives of the appointing authority by addressing to it instructions capable of determining its choice. The defendant is capable of making its choice while strictly observing the provisions of the Staff Regulations.

The Co art's review is limited to examining the ways and means which may have led to the evaluation made by the appointing authority.

Therefore the request must be rejected.

E — The request for the production of documents

On 1 September 1966 the applicant lodged a request for the defendant to be ordered to produce a series of eight documents.

At the hearing in open court the defendant of its own accord lodged the files concerning the candidatures of Mr Serio and Mr Petrucco.

As the Court considers that it has thereby been provided with sufficient information, it is of the opinion that there is no necessity to order the production of additional documents.

III — Costs

Under the terms of Article 69 (2) of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs.

As the applicant has succeeded in respect of the essential part of his conclusions, the defendant should bear the entire costs of the action. However, on 3 October 1966 the applicant withdrew his Application 62/65 R for the adoption of an interim measure in which he sought the suspension of the establishment of the two officials whose appointments he contested. This withdrawal was caused by the defendant's declaration that the establishment of those two officials had already taken place by decisions of 29 July 1966. The reason for the applicant's withdrawal was the belated lodging of his request for suspension of execution of the decisions.

On those grounds, Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties; Upon hearing the opinion of the Advocate-General; Having regard to Articles 151 and 152 of the Treaty establishing the EAEC; Having regard to the Protocol on the Statute of the Court of Justice of the EAEC; Having regard to the Staff Regulations of Officials of the EAEC, especially Articles 7, 27 to 30, 90 and 91; Having regard to the Rules of Procedure of the Court of Justice of the European Communities; THE COURT (First Chamber) hereby:

1 Annuls the appointment of Mr Eugenio Petrucco as administrator in the Personnel Department of the Karlsruhe establishment of the Joint Research Centre;

2 Orders the defendant to pay to the applicant the sum of one hundred and fifty thousand Belgian francs by way of damages;

3 Orders the defendant to pay the costs of the proceedings, with the exception of those incurred by the applicant in Application 62/65 R for the adoption of an interim measure.