JUDGMENT OF 3. 2. 1977 —CASE 91/76 DE LACROIX v COURT OF JUSTICE

In Case 91/76,

THE COURT (First Chamber) composed of: A. M. Dormer, President of Chamber, J. Mertens de Wilmars and G. Bosco, Judges, Advocate-General: J.-P. Warner Registrar: H.J. Eversen, Deputy Registrar

gives the following

JUDGMENT

Facts

The facts and the arguments developed by the parties during the written procedure may be summarized as follows:

I — Facts and procedure

1. On 11 May 1976 the administration of the Court of Justice published an advertisement in various newspapers stating that it required a ‘lawyer/linguist of French mother tongue for the translation into French of legal texts from at least two other official languages of the European Communities’. On 28 May 1976 the applicant submitted an application but the Director of Administration at the Court informed her by letter of 27 July 1976 that the Selection Committee had been unable to accept her application. On 27 September 1976 the applicant lodged the present application for the annulment of that communication and it was entered at the Court Registry on the same day. She lodged a simultaneous application for an order suspending continuation of the recruitment procedure from which she had been excluded. This application was dismissed by Order of 15 October 1976 of the President of the First Chamber.

2. By a document entered at the Court Registry on 26 October 1976 the defendant, the administration of the Court of Justice, contested the admissibility of the application and requested that the Court should, pursuant to Article 91 of the Rules of Procedure, rule as to the admissibility without going into the substance of the case. In a statement of 25 November 1976, entered at the Court Registry on 29 November 1976, the applicant presented her submissions and conclusions concerning the objection.

3. On 11 October 1976 the applicant submitted a complaint under Article 90 of the Staff Regulations of Officials against the contested decision refusing her application and the complaint was registered on 14 October 1976.

II — Conclusions of the parties

In her application, the applicant claims that the Court should:

annul the contested decision and order the defendant to pay the costs of the action.

In its objection of inadmissibility, the defendant contends that the Court should:

declare the application inadmissible,

order each party to bear its own costs both in connexion with the interlocutory proceedings and with the main action.

In respect of the objection the applicant claims that the Court should:

stay the proceedings pending a new application contesting the reply (or the absence of a reply) to the applicant's complaint and, in consequence, annul the contested decision and, accordingly, all measures taken under the recruitment procedure in which the applicant was prevented from taking part, the defendant being ordered to pay the costs.

III — Submissions and arguments of the parties

1. The defendant raises two objections of inadmissibility, the first and principal one arising from non-compliance with Article 91 of the Staff Regulations of Officials in that, prior to lodging her application, the applicant did not submit to the appointing authority a complaint against the act adversely affecting her and the second and alternative one being that the applicant is not a person to whom the Staff Regulations apply within the meaning of Article 91 of the Staff Regulations. (a) As regards the first submission, the defendant states that no prior complaint was made to the appointing authority. Subsequent to the submission of the application, the applicant lodged, on 11 October 1976, that is to say, within the prescribed period, a complaint within the meaning of Article 90 of the Staff Regulations on which the defendant may take a decision within four months; this cannot however make the present application admissible. (b) The engagement procedure applied in this case was not a procedure for recruitment of officials by external competition but for the engagement of staff on temporary contract. Those involved would therefore have been engaged, if at all, under the Conditions of Employment of Other Servants of the European Communities and not under the Staff Regulations of Officials of the European Communities. The words used in the advertisement make it clear that it concerns the ‘engagement’ of temporary staff and not the ‘recruitment’ of officials. This being so, there was no question of a competition which would have had to take place in accordance with the conditions laid down in the Staff Regulations of Officials. The Conditions of Employment of Other Servants do not provide for the procedure of compulsory competition which may give rise to legal rights which candidates may require the Court to protect. The Institution has discretion to engage on contract the servant who best meets the immediate requirements of the service. Even if, in the interests of the service and to exclude any arbitrary decision, the Institution applies internal procedures, it does not have to give the reasons for or justify its choice.

2. (a) In reply to the first submission of inadmissibility, the applicant states that although she submitted an application to the Court without prior complaint she did so on grounds of urgency and circumspection. As the contested measure was notified during the holiday period and the engagement procedure adopted was not clear and, moreover, so as to be able to make an application for suspension of its operation, it was thought best to initiate proceedings within the period of two months laid down in Article 173 of the Treaty. (b) The combined effect of the defendant's contention that the applicant is not ‘a person to whom the Staff Regulations of Officials apply and on whom Article 91 confers a right of appeal’ and the first submission of inadmissibility is to deprive the applicant of all redress through the courts. It is impossible to make the right of appeal subject to prior submission of a complaint in accordance with Article 91 of the Staff Regulations and at the same time to deny that the applicant is, as she is required to be in order to bring an action under Article 91 of the Staff Regulations, a person to whom the Staff Regulations apply. Conversely, if the applicant is not such a person she cannot be prevented from initiating proceedings for annulment pursuant to Article 173 of the EEC Treaty, since such proceedings are not subject to prior submission of a complaint. Apart from recommendations and opinions, the review of the validity of all acts of the Community institutions is one of the basic aspects of the task of the Court. After hearing the views of the Advocate-General the Court (First Chamber), by decision of 14 December 1976, resolved, pursuant to Article 91 (3) and (4) of the Rules of Procedure, to decide on the application without opening the oral procedure.

Law

1. The application, dated 27 September 1976 and entered at the Court Registry on the same day, is brought against the administration of the Court of Justice and seeks the annulment, in its own words, ‘of the refusal to accept the applicant's application for the competition for the post of lawyer/linguist of French mother tongue’.

2. After the application was lodged, the applicant submitted a complaint pursuant to Article 90 (2) of the Staff Regulations of Officials.

3. The defendant has raised an objection of inadmissibility based, principally, on non-compliance with Article 91 of the Staff Regulations of Officials in that the applicant did not, before lodging her application, submit to the appointing authority a complaint against the act adversely affecting her, and, alternatively, on the ground that the applicant is not a person to whom the Staff Regulations apply within the meaning of Article 91 of the Staff Regulations.

4. The defendant has requested that the Court (First Chamber) should give a ruling on this objection, under Article 91 of the Rules of Procedure, without going into the substance of the case.

5. This request must be granted.

6. While the applicant leaves it to the discretion of the Court as regards the principal objection raised, she states that the defendant cannot deny that she is a ‘person to whom these Staff Regulations apply’ and at the same time consider her as bound to comply with the administrative procedures prescribed by Article 91 of the Staff Regulations.

7. If she is not a person to whom the Staff Regulations apply, her application is based on Article 173 of the Treaty, which provision does not make the admissibility of an application subject to the prior submission of an appeal through official channels.

8. However, in so far as it is based on Article 173 of the Treaty, the application is inadmissible since that provision confers no right to institute proceedings for annulment of the acts of institutions other than the Council or the Commission.

9. In consequence, the application is admissible only in so far as it is based on Article 179 of the Treaty, under which the Court of Justice has jurisdiction in any dispute between the Community and its servants within the limits and under the conditions laid down in the Staff Regulations or the Conditions of Employment.

10. In these circumstances, and without the need for a decision on the submission of inadmissibility based on the fact the applicant is not a ‘person to whom these Staff Regulations apply’ within the meaning of Articles 90 and 91 of the Staff Regulations, which, by virtue of Article 46 of the Conditions of Employment of Other Servants, have been made applicable by analogy to the said ‘other servants’, an application under Article 179 of the Treaty cannot be declared admissible in the absence of a prior complaint as provided for in the said Article 91.

11. Since this essential procedural requirement has not been satisfied, the application must be declared inadmissible.

Costs

12. The applicant has failed in her submissions.

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

14. Nevertheless under Article 70 of the Rules of Procedure, in proceedings commenced by servants of the Communities the institutions shall bear their own costs.

15. Since the application has been declared inadmissible under the Conditions of Employment of Other Servants, Articles 69 and 70 of the Rules of Procedure must be applied by analogy.

On those grounds, THE COURT (First Chamber) hereby:

1 Dismisses the application as inadmissible;

2 Orders each party to bear its own costs.