JUDGMENT OF 26. 5. 1971 — JOINED CASES 45 AND 49/70 BODE v COMMISSION

In Joined Cases 45 and 49/70

THE COURT (Second Chamber) composed of: A. Trabucchi, President of Chamber, P. Pescatore and H. Kutscher (Rapporteur), Judges, Advocate-General: A. Dutheillet de Lamothe Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Summary of facts and procedure

The facts which form the basis of the action and the course of the procedure may be summarized as follows:

1) The applicant, who was born in 1909, entered the service of the High Authority in 1956. He was assigned to the Press and Information Department of that institution and performed his duties at the Communities' Information Office in Bonn. At the beginning of 1963 he was transferred to Luxembourg without being assigned to another post and he remained there for a year without being entrusted with any duties. From the beginning of 1964 until 20 June 1968, he was assigned to the Documentation Division of the Directorate-General for Labour, Reorganization and redeployment problems, then from 11 June 1969 to the Safety in the Coal and Steel Industry Division in the Directorate-General for Social Affairs. He was classified in Grade A4.

2) The Commission published Vacancy Notice No COM/603 in the Staff Courier of 16 January 1969 relating to a post in Career Bracket A5-A4 in the Directorate-General for Press and Information at the Information Office of the Communities in Bonn. The ‘description of duties’ read as follows: Under ‘qualification required’ the notice mentioned: The applicant and five other officials applied for this post within the context of the procedure laid down in Article 29(1)(a) of the Staff Regulations of Officials. But the Commission, which considered that none of the candidates fulfilled the required conditions, decided not to hold an internal competition in application of Article 29(1)(b) and had the vacancy notice published in the other institutions of the Communities on the basis of subparagraph (c) of that provision. As this procedure produced no results, it decided to apply Article 29(2) under which ‘a procedure other than the competition procedure may be adopted by the appointing authority … in exceptional cases, for recruitment to posts which require special qualifications’. Accordingly, it appointed Mr Egon Heinrich who was at that time attaché for European political questions to a group in the German Bundestag. By letter of 19 February 1970, it informed the applicant that it had been unable to consider his application.

‘Principal administrator

Planning and research work:

following political and economic developments;

maintaining contacts with economic organizations, trade unions, educational establishments and other private organizations;

drawing up analyses of press reports;

drafting press releases;

replying to requests for information.’

‘University level education evidenced by a diploma or an equivalent level of professional experience; thorough knowledge of the work and activities of the European Communities; wide experience of information work; experience of drafting reports and press releases.’

3) On 15 April 1970 the applicant submitted a complaint to the President of the Commission ‘against the communication … of 19 February 1970 … and against the rejection of my application’. He claimed that the communication was in breach of Article 25 of the Staff Regulations of Officials because there had been delay in sending it and because it did not show the grounds for the refusal. Moreover, he asked what ‘special qualifications’ which did not appear in Notice of Competition COM/603 had been required of the candidates and why the appointment to the post in question constituted an ‘exceptional case’. The complaint was entered in the Administration's Register on 21 April 1970. On 3 August 1970 the applicant received a letter from the President of the Commission dated 22 July 1970 which rejected his complaint. This letter stated in particular that the Commission had decided on 15 October 1969 not to take into consideration the applicant's application which was submitted during the stage laid down in Article 29(1)(a) of the Staff Regulations of Officials because he did not possess the necessary qualifications for the duties attaching to the post to be filled since, for more than five years, he had not performed any duties in the field of information. Moreover, it stated that the procedure laid down in Article 29(1)(c) of the Staff Regulations of Officials had produced no results.

4) The applications now before the Court were lodged on 5 August 1970 in Case 45/70 and on 7 August 1970 in Case 49/70. On 15 October 1970, the Second Chamber of the Court ordered the two cases to be joined for the purposes of the oral procedure and the judgment. After hearing the report of the Judge-Rapporteur and the views of the Advocate-General, the Second Chamber decided to open the oral procedure without a preparatory inquiry. However it called on the parties to ‘develop in the oral proceedings, in their observations on the substance of the case their respective arguments according to which the applicant performed or did not perform duties in the field of information from 1964 to 1968’ and ‘where appropriate, to produce any relevant documents in this connexion’. The parties complied with this request; the applicant in particular submitted documents relating to his work during that period. The parties presented oral argument at the hearing on 11 March 1971. The Advocate-General delivered his opinion at the hearing on 28 April 1971.

II — Conclusions of the parties

In Case 45/70 the applicant claims essentially that the Court should:

‘declare void or in any case illegal… and annul the following measures’ :

1) the decision rejecting the applicant's complaint of 15 April 1970 which follows from the Commission's failure to reply within two months;

2) the communication of 19 February 1970;

3) the appointment of Mr Heinrich;

moreover:

4) ‘declare illegal or at least incomplete and annul Vacancy Notice COM/603 as it was published in the Staff Courier of 16 January 1969’;

5) order the defendant to bear the costs.

In Case 49/70 the applicant puts forward the same conclusions but requests under head 1 the annulment of the decision of 22 July 1970 which expressly rejected his complaint.

In both cases the defendant contends that the applications should be dismissed as inadmissible and that the applicant should be ordered to bear the costs.

III — Submissions and arguments of the parties

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

1. Admissibility

A — Conclusions formulated under heads 1 to 3 in Case 45/70

The Commission states that the request formulated under head 1 is inadmissible because the applicant's complaint was already inadmissible. The rejection of a candidate's application during the promotion/transfer stage (Article 29(1)(a) of the Staff Regulations of Officials) may not be contested separately but only when an application is lodged within the prescribed period against the appointment of another candidate. Therefore the applicant could not a fortiori contest the communication of 19 February 1970 on the grounds that there was delay in sending it and that no reasons for it were given. The applicant may not rely upon the case-law of the Court whereby the Court may also review the legality of the various measures which preceded the appointment which is being contested. This case-law relates to individual measures involved in competition procedure whilst the question which is at issue here had not yet been settled by the Court. The requests formulated under head 2 and 3 are out of time. The complaint of 15 April 1970 could not preserve the period for instituting proceedings because, in contrast to the application, it did not request either the annulment of the rejection of the applicant's application for the post or the annulment of Mr Heinrich's appointment and because, as the Commission has already shown, it referred to a measure which could not be contested separately.

The applicant replies that it follows clearly from the heading of the complaint that it referred inter alia to the rejection of his application. The contents of the complaint show plainly that it also contests Mr Heinrich's appointment, though with the necessary reservation. Finally, it emerges from the letter of the Commission of 22 July 1970 that it fully understood the contents of the complaint at that time and that it did not consider the complaint inadmissible.

A complaint preserves the period for instituting proceedings when in substance it has the same contents as any application which may be made subsequently. No objection can be raised if it differs from the application in its form; any argument to the contrary would oblige an official to seek the assistance of an advocate to draft the application.

The communication of 19 February 1970 affected the applicant adversely because it was only thereby that he was informed of the rejection of his application. According to the case-law of the Court, it is, it is true, not necessary, but permissible, to contest separately the various measures involved in the appointment procedure.

B — Request formulated under head 4 in Case 45/70

The Commission considers it doubtful that the applicant has an interest which is legally protected in the annulment of the vacancy notice. He maintains that the Commission was under an obligation to hold the open competition provided for at the end of the first subparagraph of Article 29(1) since the conditions laid down in Article 29(2) of the Staff Regulations of Officials were not fulfilled. However he cannot have been adversely affected by the fact that the competition did not take place.

The applicant replies that any candidate who may have a chance in a competition procedure carried out under Article 29(1) has an interest in seeing that the appointing authority does not circumvent this provision by adopting a procedure under Article 29(2).

C — Case 49/70

The Commission considers that this application is completely inadmissible. The Court of Justice has decided that an express rejection which follows a rejection by implication may not give rise to a new right of action when, as in this case, the legal and factual situation has not altered in the meantime.

The applicant replies that it was necessary to make two applications since the Commission only gave a decision on his complaint after the period laid down in Article 91 of the Staff Regulations of Officials had expired. The applicant was notified of the decision at a time when the originating application in Case 45/70 had already been drawn up.

2. The substance of the case

A — Belated communication and failure to give reasons for the decision rejecting the applicant's application for the post

The applicant considers that the communication of 19 February 1970 is in breach of Article 25 of the Staff Regulations of Officials because it was not sent ‘at once’. It follows from the letter of the President of the Commission of 22 July 1970 that it had already been decided on 15 October 1969 to reject the applicant's application. Moreover, the communication is out of time even if the period had only started to run from the appointment of Mr Heinrich. The communication is also in breach of; Article 25 because no reasons for it were given, although it contained a decision adversely affecting the applicant.

The Commission replies that any delay which there may have been cannot affect the legality of the rejection or of the appointment. However, the Court of Justice has ruled that it is permissible not to give reasons for a decision rejecting an application which was taken during the promotion/transfer stage in the appointment procedure (Article 29(1)(a) of the Staff Regulations).

B — Infringement of Article 4, 11, 27 and 29(1) and (2) of the Staff Regulations of Officials; misuse of powers

The applicant claims that the Commission wrongly accepted that conditions laid down in Article 29(2) of the Staff Regulations of Officials were satisfied. The post in question did not require ‘special qualifications’ within the meaning of that provision; a fortiori the appointment to that post did not constitute an ‘exceptional case’. The post had not been newly created; it had previously been occupied by members of the staff of the Communities.

If this had really been an ‘exceptional case’, the Commission would have been obliged to say so in the vacancy notice, in accordance with Article 29 in conjunction with Articles 4, 11 and 27 of the Staff Regulations of Officials, so as to inform candidates and to enable the Court of Justice to review the regularity of the procedure.

Moreover, the applicant possessed ‘special qualifications’. The Commission did not take into consideration the fact:

that he can point to having worked for nearly twenty years as a press attaché, a free-lance journalist, editor and, finally, as an official employed in the Press and Information Department of the Communities;

that he acquired special qualifications in the fields of activity mentioned in Vacancy Notice COM/603 as an official in the Information Office in Bonn from 1956 to 1963;

that as a member of the Documentation Division in the Directorate-General for Labour Questions of the High Authority from 1964 to 1968, he maintained special contacts with German organizations, unions, educational establishments and the press.

The applicant opposes the Commission's statement that he has not performed duties in the field of information for more than five years. His duties in the Documentation Division included: editing a monthly journal (‘Soziale Ereignisse in der Gemeinschaft’), analyses, talks given to groups of specialists and visitors, lecture tours, publishing articles in the German technical press and representing the Directorate-General at professional conferences in the Federal Republic of Germany. These duties are absolutely identical to those of an information office. Even if the Commission's statement were correct, .the applicant's qualifications are, moreover, proved by his previous work.

But, contrary to the wish of the Head of the Directorate-General for Press and Information, the Commission decided to appoint to the post in question a candidate from outside the Communities under pressure from national bodies. It did not examine whether the post could be filled by transfer or promotion nor did it hold a competition. It therefore applied Article 29(2) of the Staff Regulations of Officials wrongly; the Commission ‘served national interests’.

The Commission states that the arguments which the applicant develops concerning misuse of powers are statements which are completely unfounded and tailored to meet his case.

The apointment procedure was properly applied. In the promotion/transfer stage, the applications of six candidates including the applicant were examined and rejected because they did not fulfil all the required conditions. Besides, after examining them it decided not to hold an internal competition because there were no applications which could be accepted; according to the case-law of the Court, the Commission was not even obliged to carry out that procedure. Finally, the procedure laid down in Article 29(1)(c), which was properly applied, produced no results since no candidate came forward. This is apparent from several documents which it produces and which recount in detail the course of the appointment procedure.

As the applicant himself is classified in Grade A4, he could only have obtained the post which was declared vacant by way of transfer, which however he cannot claim; moreover, the appointing authority possesses discretionary power with regard to applications.

It is not correct that in his former post at the Information Office in Bonn the applicant carried out the wide duties described in Vacancy Notice COM/603. The duties attached to the post occupied by the applicant were considerably extended after his departure; they were allotted to another official who is still entrusted with them. From 1956 to 1963, the applicant mainly dealt with questions concerned with the training of young people and adults in the field covered by the ECSC, that is, duties which were essentially different from those which the post at issue involves.

In support of the rejection of the applicant's complaint, it merely states that the applicant had for a long time not been working in the information field properly speaking of the sort for which external information offices of the Commission are responsible. It is not therefore party to mistaken assumptions but in order to assess the professional experience of the applicant it was guided by the duties relating to the post which had been declared vacant. In so doing, it particularly took into consideration, and rightly so, that the duties which the applicant had performed from 1964 to 1968 were limited to social questions in the field covered by the ECSC and therefore to a tightly restricted sector. Moreover, the rejection of the applicant's application was in addition caused by other considerations which cannot be put in writing, such as the age of the applicant and at the same time the desire to appoint to the post which had been declared vacant a candidate who might be expected to occupy the post for a relatively long time.

The applicant has not demonstrated in an appropriate manner why in his opinion the appointment to the post in question did not constitute an ‘exceptional case’ under Article 29(2) of the Staff Regulations of Officials. This expression merely means that the appointing authority may not apply this provision consistently and arbitrarily. It is possible to speak of ‘special qualifications’ within the meaning of this provision when in particular the knowledge was acquired through unusual training, where the opportunities of obtaining the knowledge do not exist or are only very limited or again where the relevant professional experience is only rarely found in the Member States. Therefore, the fact that the Commission acted as it did to fill a post which was so much ‘in the public eye’ cannot be criticized.

The Commission did not have to indicate in the vacancy notice that it was an ‘exceptional case’ for which ‘special qualifications’ were necessary. As the Staff Regulations do not lay down the contents of these vacancy notices, it should suffice if any candidates which there may be can obtain an idea of the duties relating to the post in question and ascertain whether they fulfil the required conditions, at least in principle. Moreover, the information which the applicant demands is contrary to Article 29(1) of the Staff Regulations, since it implies a priori that the post may only be filled by using the procedure laid down in the second paragraph of that article.

The applicant replies that it follows from the documents submitted by the Commission that the appointing authority, without having considered the matter itself, which is not permissible, adopted the mistaken idea of the relevant Directorate-General that the post in question could not be filled by promotion, transefer or internal competition. As the Commission did not properly apply the appointment procedure which is laid down in the first place, it could not hold an open competition (end of first paragraph of Article 29(1) of the Staff Regulations of Officials). Accordingly, it could not have recourse to the procedure laid down in Article 29(2) either.

In short, it must be held that the Commission applied the procedures laid down in Article 29(1) ‘solely as a matter of form’.

Article 29(2) must be understood to mean that there is an ‘exceptional case’ where a post requires ‘special qualifications’. The decision that such knowledge is required must be taken on the basis of the conditions laid down in the vacancy notice. Vacancy Notice COM/603 did not mention special knowledge which could not be found among the officials of the Communities, since it would be difficult for an external candidate to fulfil one of the required conditions which was ‘thorough knowledge of the work and activities of the European Communities’. The fact that the Commission accepted that Mr Heinrich fulfilled this condition is even less easy to understand since it could not have obtained any knowledge as to his suitability either as a result of employment with the Communities or by means of a competition.

It is not enough for the Commission to contest the complaint that there has been misuse of powers. Since it is difficult for the applicant to bring evidence in support of this, it ought rather to submit all documents relating to the allocation of the post in question and Mr Heinrich's appointment.

The applicant, ‘reserving the right to call other witnesses’, requests moreover that Messrs Georges Ludovici and Paolo Salconi be heard to testify to the following facts:

At the beginning, the Director of the Directorate-General Press and Information had envisaged filling the post which had become vacant from within the institution. The official who was approached for this purpose refused the offer which was made to him and the applicant learnt from officials who were friends of his that the Commission was considering appointing to this post a certain outsider.

On 15 November 1968, the Office of a Member of the Commission informed the applicant that the decision on filling the post from outside the institutions was imminent. A week before, the members of the Executive Committee of the Free Trade Union for European Officials, including Mr Ludovici, put forward their objections in this connexion to a member of the European Parliament during an interview by the newspaper ‘Welt der Arbeit’, a photocopy of which the applicant has submitted. Subsequently, Mr Salconi, a member of the Executive Committee made approaches to the same effect in Bonn.

The Commission replies that in a large administrative authority like the Commission the decision-making body is obliged to have its decisions prepared by the relevant departments. This being so, it cannot be reproached for adopting the proposals of those departments where it is convinced that they are well founded, as in this case.

The statement that the Commission only applied the procedure laid down in Article 29(1) of the Staff Regulations of Officials ‘solely as a matter of form’ has no factual basis. The applicant seems to start with the idea that an infringement of Article 29(1) of the Staff Regulations involves ipso facto an infringement of Article 29(2). This is not correct for, as is shown from the defendant's detailed submission on this point, each of the two provisions has a meaning of its own.

The applicant's request that the Commission submit the documents relating to the filling of the vacant post and to the appointment of Mr Heinrich is inadmissible as an offer of proof because it is not sufficiently specific (‘Ausforschungsbeweis’). It falls to the applicant to prove the existence of misuse of powers; the Commission is not obliged to exonerate itself. This could only be otherwise if the complaint were unequivocal, which, however, is not the case.

The statement that the applicant was informed on 15 November 1968 of the plans to fill this post cannot be correct, since the vacancy notice was only published on 16 January 1969. Investigations have shown that the Office in question had informed the applicant of the stage reached in the appointment procedure in October 1969. That this was done was in no way out of the ordinary since the applicant's application was known. Moreover, this information was only given after the written stage of the procedure for adopting the decision had been started.

The requests for witnesses to be heard must be dismissed as irrelevant because the interview which the applicant mentioned had already taken place in November 1968, therefore before the vacancy notice in question was published.

As to whether a post requires particular specialist knowledge, this is only decided on the basis of the duties relating to that post which can only be described briefly in the vacancy notice.

Article 29 does not lay down that an internal competition must be held but leaves this question to the discretion of the appointing authority and this can only be reviewed to a limited extent. The appointing authority must in particular assess the chances of success of this procedure and the expenses involved and it is authorized if necessary to go straight on to the procedure laid down in Article 29(2).

The Commission states in detail the reasons why the duties relating to the post in question are really exceptional; in this connexion, it points out above all the specific knowledge, abilities and personal qualities which the person holding the post must in its opinion possess.

In particular it retraces the career of Mr Heinrich whom the Commission had known for a long time.

Grounds of judgment

1. The applications are for the annulment: of the communication of 19 February 1970 whereby the defendant informed the applicant that his application for the post which was the subject of Vacancy Notice COM/603 had been rejected; of the appointment of Mr Heinrich to the said post; of the abovementioned vacancy notice.

2. Moreover, the applicant requests the Court to annul the decisions rejecting by implication (Application 45/70) and afterwards expressly (Application 49/70), his complaint of 15 April 1975 against the communication of 19 February 1970.

I — Admissibility

1. Application 45/70

3. A — The defendant claims that the conclusions concerning the rejection of the applicant's application and the appointment of Mr Heinrich are inadmissible because they are out of time. In fact, because the complaint of 15 April 1970 had not contained the same requests, it had not preserved the period of three months prescribed for appeals to the Court by Article 91 of the Staff Regulation of Officials, a period which in the present case had expired on 5 August 1970, the date when the application was made.

4. To preserve the right of appeal, a complaint made under Article 90 of the Staff Regulations must and need only have substantially the same subject-matter as the subsequent appeal to the Court and need not fulfil all the conditions as to form to which the latter is subject.

5. In the present case, according to its heading, the complaint of 15 April 1970 was directed ‘against the communication … of 19 February 1970 … and against the rejection of my application’. Although this complaint does not expressly request that the appointment of Mr Heinrich be revoked it objects, however, to the defendant's using the recruitment procedure laid down in Article 29(2) of the Staff Regulations of Officials and expresses ‘the hope that my complaint will enable a solution to be found whereby the Commission will provide overwhelming proof that it is possible to have a staff policy which is just because it is independent’. The applicant's action must therefore be understood as contesting both the refusal to accept his application and consequently, the appointment of his fellow applicant.

6. Therefore the conclusions in the present case must be deemed to have been lodged within the prescribed period.

7. B — As for the conclusions for the annulment of the rejection by implication of the abovementioned complaint, the defendant raises the objection that they are inadmissible on the ground that this complaint was itself inadmissible. It claims that in fact a decision rejecting an application submitted in the promotion/transfer stage (Article 29(1)(a) of the Staff Regulations of Officials) may not be contested separately but only by means of a complaint or an application directed against the final decision of appointment. A fortiori, the applicant was not entitled to submit a complaint to the appointing authority in which he only objected to the fact that there had been some delay in sending the communication of 19 February 1970 and that it did not state the reasons on which it was based.

8. This objection fails to recognize in fact that the complaint in question was directed both against the rejection of the applicant's application and against the appointment of Mr Heinrich. The objection must therefore be dismissed.

9. C — As regards the request for the annulment of the vacancy notice, the defendant questions that the applicant can have a legitimate interest in the Court's deciding to this effect.

10. This request is linked to the submission in the application that, assuming that the conditions for the application of Article 29(2) of the Staff Regulations of Officials were actually satisfied in the present case, the defendant was obliged to mention them expressly in that notice. The applicant's interest in putting forward such an argument belongs to the examination of the substance of the case.

2. Application 49/70

11. To the extent to which this application reiterates the conclusions submitted in Application 45/70, it runs into the objection that it is inadmissible because the case is lis pendens, which objection the Court must raise of its own motion.

12. As regards the request for the annulment of the decision contained in the defendant's letter of 22 July 1970, this decision confirms the decision rejecting by implication the applicant's complaint of 15 April 1970, which decision was the subject-matter of Application 45/70. As no new element of law or of fact had arisen between the rejection by implication and the express rejection, the applicant cannot establish any legal interest in requesting the annulment of this decision which was by way of confirmation and could not affect him adversely. In fact, under the provisions of the second sentence of the first paragraph of Article 34 of the ECSC Treaty, the first paragraph of Article 176 of the EEC Treaty and the first paragraph of Article 149 of the EAEC Treaty, where a measure of an institution has been declared void by the Court that institution ‘shall be required to take the necessary measures to comply with’ the judgment declaring that the measure is void. It follows that, when the Court annuls a decision, the author of that decision is under an obligation to revoke or at least not to apply a subsequent decision which simply confirms the first one.

13. For all these reasons, Application 49/70 is inadmissible.

II — The substance of Application 45/70

14. 1. The applicant requests the annulment of the decisions rejecting his application and appointing Mr Heinrich, on the ground in particular that the defendant infringed Article 29 of the Staff Regulations of Officials by making an appointment according to the procedure laid down in the second paragraph of that article when the conditions for the application of that paragraph were not satisfied.

15. Under the provisions of Article 29(2) ‘a procedure other than the competition procedure may be adopted by the appointing authority… in exceptional cases, also for recruitment to posts which require special qualifications’. The use of the expression ‘exceptional cases’ shows that the application of this provision is subject to very strict conditions as to form and substance, which moreover is in accordance with both the requirements of the service and the legitimate interest of officials. Therefore the instiutions may only have recourse to the special procedure laid down in Article 29(2) when they have examined with the greatest care whether the conditions for the application of that provision are fulfilled. Moreover, the decision to have recourse to that procedure must state the reasons on which it is based so that the Court may, if necessary, review the legality of that decision.

16. It emerges from the file in the present case that on 22 October 1969 the defendant decided in the written procedure in particular: not to accept the applications of the applicant and five other officials; to find ‘that the qualifications required to perform the duties relating to the post to be filled are special qualifications within the meaning of Article 29(2) of the Staff Regulations’ and ‘as regards the recruitment of an official qualified to perform the duties relating to the abovementioned post, this is an exceptional case within the meaning of the same provision’; ‘under these circumstances,… to fill the post by using a procedure other than open competition and to appoint Mr Egon Heinrich… to the abovementioned post’.

17. Although the decision not to accept the applicant's application is separate in law from those which relate to the recourse to the procedure laid down in Article 29(2) of the Staff Regulations and the appointment of Mr Heinrich, it cannot be considered separately, since it is possible that the latter decisions may have had an effect on the first because of the connexion created by the Commission itself between all these measures.

18. It also emerges from the file that these decisions were made on the basis of proposals which set out the reasons why it was not possible to fill the post in question by following one of the procedures referred to in Article 29(1) (a), (b) or (c) but which omitted to point out the reasons why this was an ‘exceptional case’ and a post ‘which require(s) qualifications’ so that a decision had to be taken not to hold the competition prescribed at the end of the first sentence of Article 29(1).

19. The abovementioned documents therefore show that the decision to fill the post in question by a method other than competition fails to give the reasons for this, so that it does not emerge from the decision of the appointing authority whether the latter considered as carefully as it was obliged to do whether the conditions for the application of Article 29(2) were in fact fulfilled. Therefore, since the procedure which led to the appointment of Mr Heinrich was illegal, this decision and consequently the decisions rejecting the applicant's application and his complaint of 15 April 1970 must be annulled without any need to consider the other complaints raised by the applicant in respect of these measures.

20. 2. The applicant requests moreover the annulment of Vacancy Notice COM/603 relating to the post in question.

21. This request is linked to the complaint that the defendant, if it considered that the post in question could and should be filled according to the procedure laid down in Article 29(2), should have indicated that fact in the said notice. In view of the foregoing, this request is no longer of interest to the applicant.

III — Costs

22. Under the provisions of Article 69(2) of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs. Since the defendant has essentially failed in its submissions, it must be ordered to bear all the costs.

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 the second sentence of the first paragraph of Article 34 and to Article 15 of the Treaty establishing the ECSC; Having regard to the first paragraph of Article 176 and to Article 190 of the Treaty establishing the EEC; Having regard to the first paragraph of Article 149 and to Article 162 of the Treaty establishing the EAEC; Having regard to the Protocols on the Statute of the Court of Justice; Having regard to the Staff Regulations of Officials, especially Article 29; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, especially Article 69, THE COURT (Second Chamber) hereby:

1 Annuls the decisions rejecting the applicant's application for the post which was the subject of Vacancy Notice COM/603, appointing Mr Heinrich to that post and rejecting the applicant's complaint of 15 April 1970;

2 Dismisses application 49/70 as inadmissible;

3 Orders the defendant to bear all the costs of the action.