Court of Justice of the European Communities (including Court of First Instance Decisions)

OFFICIALS - APPLICATIONS TO THE COURT - ACT ADVERSELY AFFECTING AN OFFICIAL - CONCEPT - DECISION OF AN INSTITUTION CONCERNING THE CONCLUSION OF CONTRACTS FOR STUDIES AND SURVEYS WITH THIRD PARTIES - EXCLUSION
( STAFF REGULATIONS OF OFFICIALS , ARTS 90 AND 91 )

A DECISION RELATING IN GENERAL TERMS TO THE USE OF APPROPRIATIONS FOR THE CONCLUSION OF CONTRACTS FOR STUDIES AND SURVEYS WITH PERSONS OR COMPANIES NOT IN THE EMPLOYMENT OF AN INSTITUTION CANNOT BE REGARDED AS AN ACT ADVERSELY AFFECTING A FORMER OFFICIAL WITHIN THE MEANING OF ARTICLE 91 OF THE STAFF REGULATIONS .

IN JOINED CASES 28 AND 165/80
JEAN LECLERCQ , A FORMER OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , RESIDING IN BRUSSELS , REPRESENTED BY MARCEL SLUSNY OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE AT THE CHAMBERS OF E . ARENDT , ADVOCATE , 34B RUE PHILIPPE-II , LUXEMBOURG ,
APPLICANT ,
V
COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , RAYMOND BAEYENS , ACTING AS AGENT , ASSISTED BY J . C . DENONCIN OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF MARIO CERVINO , JEAN MONNET BUILDING , KIRCHBERG ,
DEFENDANT ,

APPLICATIONS UNDER ARTICLE 90 OF THE STAFF REGULATIONS AND OBJECTIONS BY THE DEFENDANT THAT THEY ARE INADMISSIBLE ,

1 BY APPLICATIONS LODGED AT THE COURT REGISTRY ON 18 JANUARY AND 14 JULY 1980 , JEAN LECLERCQ , A FORMER OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , BROUGHT TWO ACTIONS BASED ON THE PROVISIONS OF THE STAFF REGULATIONS OF OFFICIALS , SEEKING ANNULMENT OF THE DECISION NOTIFIED TO HIM BY LETTER OF 19 OCTOBER 1979 BY P . BAICHERE , DIRECTOR-GENERAL FOR PERSONNEL AND ADMINISTRATION OF THE COMMISSION , AND OF THE DECISION OF THE COMMISSION OF NOVEMBER 1978 TO WHICH THE SAID LETTER REFERRED .

2 MR BAICHERE ' S LETTER , TO WHICH REFERENCE IS MADE IN BOTH ACTIONS , WAS THE ANSWER TO A LETTER FROM THE APPLICANT DATED 13 JULY 1979 IN WHICH THE APPLICANT EXPLAINED THAT , SHORTLY AFTER TERMINATING HIS SERVICE WITH THE COMMISSION IN JULY 1973 , HE HAD PARTICIPATED IN THE FORMATION OF A COMPANY OF INDEPENDENT CONSULTANTS CALLED SCIENCE , THE SHARES OF WHICH HAD BEEN ALLOTTED TO FORMER OFFICIALS OF THE COMMISSION AND OTHER PERSONS OF VARIOUS NATIONALITIES . ALTHOUGH NOT AN ACTIVE MEMBER , HE HAD BEEN KEPT INFORMED OF THE COMPANY ' S ACTIVITIES ; THE COMPANY HAD BEEN DENIED A CONTRACT TO CARRY OUT A STUDY FOR WHICH ITS NAME HAD BEEN PUT FORWARD BY THE DEPARTMENT CONCERNED , THE DIRECTORATE-GENERAL FOR ENERGY ; ACCORDING TO INFORMATION RECEIVED BY SCIENCE OVER THE TELEPHONE , THE REFUSAL WAS BASED ON THE FACT THAT THE COMPANY EMPLOYED FORMER OFFICIALS WHO MAINTAINED FINANCIAL LINKS WITH THE COMMISSION . THE APPLICANT STATED IN HIS LETTER THAT HE FOUND THIS REASON ' ' SURPRISING ' ' , AND HE ASKED MR BAICHERE TO INTERVENE SO AS TO AVOID A DISPUTE , SINCE THE REFUSAL ENTAILED A DIRECT LOSS FOR SCIENCE .
3 IN HIS REPLY DATED 19 OCTOBER 1979 MR BAICHERE EXPRESSED HIS REGRET THAT HE WAS UNABLE TO GIVE A FAVOURABLE RESPONSE . HE STATED THAT ' ' PURSUANT TO A NEW DECISION ADOPTED BY THE COMMISSION IN NOVEMBER LAST YEAR , THE DIRECTORATE-GENERAL FOR BUDGETS IS NO LONGER AUTHORIZED TO CONCLUDE CONTRACTS FOR STUDIES AND SURVEYS WITH UNDERTAKINGS OR ASSOCIATIONS IN WHICH FORMER OFFICIALS WHO STILL RETAIN FINANCIAL CONNECTIONS WITH THE INSTITUTION UNDER THE STAFF REGULATIONS HAVE A DIRECT OR INDIRECT INTEREST ' ' .

4 IN THE COURSE OF THE PROCEEDINGS THE PARTIES ACKNOWLEDGED THAT THE ' ' NEW DECISION ' ' REFERRED TO IN MR BAICHERE ' S LETTER WAS IN FACT A DECISION ADOPTED BY THE COMMISSION ON 26 JUNE 1974 . THE COURT TAKES THE ACTIONS TO BE DIRECTED AGAINST THAT DECISION , AND AGAINST ITS APPLICATION TO THE COMPANY SCIENCE , AS INDICATED IN MR BAICHERE ' S LETTER .

5 BY TWO SEPARATE DOCUMENTS , LODGED ON 14 MARCH AND 29 SEPTEMBER 1980 , THE COMMISSION RAISED OBJECTIONS OF INADMISSIBILITY AND APPLIED TO THE COURT FOR A DECISION THEREON .

ADMISSIBILITY
6 IT APPEARS FROM THE INFORMATION PROVIDED BY THE COMMISSION , WHICH HAS NOT BEEN CONTESTED BY THE APPLICANT , THAT THE COMMISSION ' S DECISION OF 26 JUNE 1974 RELATED TO THE USE OF APPROPRIATIONS FOR STUDIES AND WAS WORDED AS FOLLOWS : ' ' OTHERWISE THAN IN EXCEPTIONAL CASES AND BY EXPRESS DEROGATION DECIDED UPON BY THE COMMISSION , CONTRACTS FOR STUDIES AND SURVEYS SHOULD NOT BE CONCLUDED WITH FORMER OFFICIALS WHO RETAIN FINANCIAL LINKS WITH THE COMMISSION . ' '
7 A DECISION OF THIS KIND , WHICH RELATES IN GENERAL TERMS TO THE USE OF APPROPRIATIONS FOR THE CONCLUSION OF CONTRACTS FOR STUDIES AND SURVEYS WITH PERSONS OR COMPANIES OUTSIDE THE COMMISSION , CANNOT BE REGARDED AS AN ACT ADVERSELY AFFECTING A FORMER OFFICIAL WITHIN THE MEANING OF ARTICLE 91 OF THE STAFF REGULATIONS .

8 IN SO FAR AS MR BAICHERE ' S LETTER OF 14 OCTOBER 1979 IS TO BE REGARDED NOT AS MERE INFORMATION , GIVEN BY AN OFFICIAL OF THE COMMISSION TO A FORMER COLLEAGUE , BUT AS EMBODYING A DECISION TO WITHHOLD A CONTRACT FOR A STUDY BY VIRTUE OF THE COMMISSION ' S DECISION OF 26 JUNE 1974 , THE REFUSAL TO GRANT THE CONTRACT WAS ADDRESSED TO THE COMPANY SCIENCE AND NOT TO THE APPLICANT ; THEREFORE IT CONCERNED THE APPLICANT NEITHER DIRECTLY NOR INDIVIDUALLY .

9 THE TWO APPLICATIONS MUST THEREFORE BE DISMISSED AS INADMISSIBLE , WITHOUT THE NEED FOR AN EXAMINATION OF THE COMMISSION ' S ARGUMENT THAT THE APPLICATION IN CASE 28/80 IS INADMISSIBLE ON THE GROUND THAT THERE WAS NO PRIOR COMPLAINT THROUGH OFFICIAL CHANNELS .

COSTS
10 PURSUANT TO ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . HOWEVER , PURSUANT TO ARTICLE 70 OF THE RULES OF PROCEDURE , COSTS INCURRED BY INSTITUTIONS IN ACTIONS BROUGHT BY SERVANTS OF THE COMMUNITIES ARE TO BE BORNE BY THE INSTITUTIONS .

ON THOSE GROUNDS ,
THE COURT ( FIRST CHAMBER )
HEREBY :
1 . DISMISSES THE APPLICATIONS AS INADMISSIBLE ;

2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .