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

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Appeals ° Pleas in law ° Pleas in law relating to matters definitively settled by a judgment of the Court of First Instance which was the subject of an appeal dismissed by the Court of Justice ° Res judicata ° Appeal dismissed
(EC Treaty, Art. 168a; EC Statute of the Court of Justice, Art. 52)

An appeal in which all of the pleas in law put forward by the appellant relate to matters definitively settled by a judgment of the Court of First Instance which was the subject of an appeal dismissed by the Court of Justice must be dismissed.

In Case C-397/95 P,
Dimitrios Coussios, a former official of the Commission of the European Communities, represented by Georgios Sakellaropoulos, of the Athens Bar, 122 Third of September Road, 10434 Athens,
appellant,
APPEAL against the order of the Court of First Instance of the European Communities (Fourth Chamber) of 11 October 1995 in Case T-302/94 Coussios v Commission [1995] ECR-SC II-723, seeking to have that order set aside,
the other party to the proceedings being:
Commission of the European Communities, represented by Ana Maria Alves Vieira, of its Legal Service, acting as Agent, assisted by Denis Waelbroeck, of the Brussels Bar, with an address for service in Luxembourg at the office of Carlos Gómez de la Cruz, also of the Legal Service, Wagner Centre, Kirchberg,
THE COURT (Third Chamber),
composed of: J.-P. Puissochet, President of the Chamber, J.C. Moitinho de Almeida and C. Gulmann (Rapporteur), Judges,
Advocate General: D. Ruiz-Jarabo Colomer,
Registrar: R. Grass,
after hearing the views of the Advocate General,
makes the following
Order

1 By application lodged at the Registry of the Court of Justice on 18 December 1995, Mr Coussios appealed, pursuant to Article 49 of the Statute of the Court of Justice of the EC and the corresponding provisions of the Statutes of the Court of Justice of the ECSC and the EAEC, against the order of the Court of First Instance of the European Communities (Fourth Chamber) of 11 October 1995 in Case T-302/94 Coussios v Commission [1995] ECR-SC II-723 (hereinafter "the order appealed against"), which dismissed as inadmissible his action seeking the annulment of the Commission decision appointing P. to the post of Head of Unit VII.C.3 with effect from 1 December 1993.
2 According to the order appealed against, the Commission decided, on 10 April 1991, to create within DG VII a new "Air Safety ° Air Traffic Control ° Industrial Policy" Unit (VII.C.3).
3 On 2 May 1991, the Commission published Vacancy Notice COM/64/91 concerning the post of Head of this new unit. Mr Coussios, at that time Deputy Head of Unit VII.B.3 "Transport safety ° Research and technology" within DG VII, was one of those who applied. On the basis of a memorandum from the Director General of 4 June 1991, the Director "assumed the responsibilities of Head of Unit C.3". On 16 June 1991, Mr Coussios was assigned to the new Unit as Deputy Head of Unit.
4 On 5 July 1991, the Commission requested the other institutions to draw Vacancy Notice COM/64/91 to the attention of their staff. No other application was received.
5 On 8 July 1991, the vacancy notice was the subject of "re-publication" in an amended version. Mr Coussios reapplied for the post. The lawfulness of this "re-publication" formed the subject-matter of an action brought by Mr Coussios before the Court of First Instance (Case T-18/92).
6 On 13 February 1992, the Commission decided not to fill the vacant post in Unit VII.C.3 at that stage, not to organize an internal competition and to hold an external competition instead. Those decisions formed the subject-matter of a second action brought by Mr Coussios before the Court of First Instance (Case T-68/92).
7 By judgment of 23 February 1994 (Coussios v Commission [1994] ECR-SC II-171), the Court of First Instance (Fifth Chamber) dismissed the application in Case T-18/92. By that same judgment, the Court of First Instance rejected the remainder of the action in Case T-68/92 but held that the plea based on the absence of reasons for the rejection of Mr Coussios' application for the post in question by way of promotion was well founded (paragraph 77). The Court then found that this illegality entailed, by way of consequence, the illegality of the decision not to organize an internal competition and of the decision to hold an external competition (paragraph 103). The Court took the view, however, that annulment of those decisions would constitute an excessive penalty for the unlawful act committed in so far as the adverse effects on the rights of third parties might be disproportionate (paragraph 106). Assessing the damage suffered ex aequo et bono, the Court accordingly considered that the award of ECU 2 000 represented appropriate compensation for the applicant (paragraph 108).
8 The appeal by Mr Coussios against that judgment was dismissed by the Court of Justice (Third Chamber) by judgment of 1 June 1995 in Case C-119/94 P Coussios v Commission [1995] ECR I-1439.
9 Before the Court of Justice had delivered its judgment, Mr Coussios brought a fresh action on 28 September 1994 before the Court of First Instance, registered as Case T-302/94, against the appointment of P., the successful candidate in the external competition, as Head of Unit VII.C.3 with effect from 1 December 1993.
10 Against this action, the Commission raised an objection of inadmissibility under Article 114(1) of the Rules of Procedure of the Court of First Instance. Mr Coussios submitted observations against the objection of inadmissibility.
The order appealed against
11 The order appealed against dismissed as inadmissible the action brought by Mr Coussios.
12 The Court of First Instance first noted that the purpose of the action was to secure the annulment of the appointment of P. as Head of Unit VII.C.3 with effect from 1 December 1993. It also found that, of the pleas in law put forward in support of the action, only that based on breach of the principle of proper administration, to the effect that the contested appointment had been made at a time when the organization of an external competition was still the subject of dispute, was directly relied on against the appointing decision which the applicant sought to have annulled. All of the other pleas in law were directed against decisions the legality of which had been examined in Cases T-18/92 and T-68/92, in which the Court of First Instance had delivered judgment on 23 February 1994, upheld on appeal by judgment of the Court of Justice of 1 June 1995 (paragraph 44 of the order appealed against).
13 The Court of First Instance first noted in this regard, at paragraph 45 of the order, that the only illegality found by its judgment of 23 February 1994, namely breach of the obligation to give reasons for the decision rejecting the applicant' s candidature, had been definitively penalized by the award of compensation. The Court had taken the view that the decision not to organize an internal competition and the decision to hold an external competition had not been vitiated intrinsically by any illegality and that, even if the illegality confirmed could have entailed that of the decision not to organize an internal competition and of the decision to hold an external competition, the annulment of those two decisions would have constituted an excessive penalty for the unlawful act committed in so far as the adverse effects on the rights of third parties might have been disproportionate. In the judgment on appeal, the Court of Justice had upheld the judgment of the Court of First Instance, stating that the latter had therefore been entitled to form the view that the failure to give reasons for rejecting the appellant' s application for the post in question did not justify it invalidating the entire appointment procedure and that the award of compensation represented appropriate reparation for the non-material damage resulting from that failure to give reasons.
14 The Court of First Instance thus took the view that its refusal to annul the decisions preparatory to the appointment of P., which included the decision not to organize an internal competition and the decision to hold an external competition, had acquired the authority of res judicata and could for that reason no longer be contested by the appellant. Those decisions thus remained valid (paragraph 46 of the order).
15 Secondly, the Court of First Instance added that it was clear from the documents in the case that the appellant had himself taken part in the external competition organized by the Commission to fill the post in question but that he had not been included among the successful candidates from whom the appointment was to be made. Neither the legality of the organization of that external competition nor that of the manner in which it was conducted could be contested at that stage (paragraph 47 of the order).
16 The Court of First Instance therefore took the view that, in the light of this information, the appellant had no interest in having the Court rule on the plea based on breach of the principle of proper administration, since an annulment of the appointment of P. could not result in the annulment of the preparatory decisions and could not entitle the applicant to be included among the potential candidates for a fresh appointment, since only those candidates who had been successful in the external competition could, in such an eventuality, be appointed to the post in question (paragraph 48 of the order).
17 The Court of First Instance accordingly found that the appellant had no interest in seeking the annulment of P.' s appointment since such an annulment would not affect his legal position. It therefore held that the application was inadmissible and that it ought to uphold the objection of inadmissibility raised by the Commission (paragraphs 49 and 50 of the order).
The appeal
18 In his appeal, Mr Coussios requests the Court to declare that the appeal is admissible, that the order appealed against is void and that the application submitted to the Court of First Instance in Case T-302/94 is admissible, and to order the Commission to pay all costs.
19 The Commission takes the view that this appeal is in part inadmissible and, in any event, unfounded.
20 In support of his appeal, Mr Coussios relies on three pleas in law.
21 In his first plea, he argues that the reasoning in the order is wrong with regard to the issue of proper administration and absence of any interest in bringing proceedings, since the failure to comply with the principles of proper administration had already been recognized by the judgment of the Court of First Instance of 23 February 1994 and by that of the Court of Justice of 1 June 1995. He adds that he still has an interest in bringing proceedings since he is a Commission official and has never recognized the fact of having been compulsorily retired.
22 In his second plea, Mr Coussios relies on a breach of the principle of proportionality with regard to the rights of third parties. In his view, the order advocates application of the principle of proportionality with regard to the rights of third parties outside the service, but not with regard to him.
23 In his third plea in law, Mr Coussios submits that the reservations which he expressed regarding his application for the disputed competition and the fact that it was on the same day, namely 1 December 1993, that he was unlawfully removed and a third party from outside the service appointed preclude the matter from being res judicata. He argues that neither the persons nor the dispute are identical, but that, even if one were to accept that this were the case, this assertion would be disproved by the judgment of the Court of First Instance of 23 February 1994 and by that of the Court of Justice of 1 June 1995, since it was held in Case T-68/92, concerning the external competition, that "the rules were not observed".
24 It must first be pointed out that, under Article 119 of the Rules of Procedure, the Court may at any time dismiss an appeal if it is clearly inadmissible or clearly unfounded.
25 Next, the three pleas in law put forward by the appellant in his appeal relate to matters which were definitively settled by the judgment of the Court of First Instance of 23 February 1994 and by that of the Court of Justice of 1 June 1995. Those pleas cannot therefore be taken into consideration in the present appeal. As the Court of First Instance correctly pointed out in paragraph 46 of the order appealed against, the findings made in those judgments cannot again be contested by the appellant in the context of the present appeal.
26 With regard to the appellant' s contention that he still has an interest in bringing proceedings inasmuch as he remains a Commission official, it is necessary to add, as the Commission points out, that the Court of First Instance did not refer to this circumstance in the order. It took the view that the appellant did not have any interest in seeking the annulment of the appointment to the post in issue because he had not been successful in the competition organized to fill that post and was for that reason not included among the candidates from whom a fresh appointment could be made.
27 It follows from the foregoing that the pleas in law put forward by the appellant in support of his appeal are clearly unfounded. The appeal must for that reason be dismissed pursuant to Article 119 of the Rules of Procedure.

Costs
28 Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs. Under Article 70 of the Rules of Procedure, the costs incurred by the institutions in proceedings between them and their servants are to be borne by the institutions. However, Article 122 of the Rules of Procedure provides that Article 70 is not applicable to appeals brought by officials or other servants of the institutions. Since Mr Coussios has been unsuccessful, he must be ordered to pay the costs of the present proceedings.

On those grounds,
THE COURT (Third Chamber)
hereby orders:
1. The appeal is dismissed.
2. Mr Coussios is ordered to pay the costs of the present proceedings.
Luxembourg, 11 July 1996.