Corte di giustizia UE/1996

61994B0392 [OSCURATO:PERSONA] [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) 4 March 1996 ( *1 ) (No need to give a decision) [OSCURATO:PERSONA]392/94, [OSCURATO:PERSONA], residing in [OSCURATO:PERSONA] (Ireland), represented by [OSCURATO:PERSONA]Neill, Barrister-at-Law, of the Bar of Ireland, applicant, v [OSCURATO:PERSONA] of the [OSCURATO:PERSONA], represented by [OSCURATO:PERSONA] and [OSCURATO:PERSONA], of its [OSCURATO:PERSONA], acting as Agents, with an address for service in Luxembourg at the office of [OSCURATO:PERSONA], [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA], 100 [OSCURATO:PERSONA], defendant, APPLICATION for the annulment of the decision of the [OSCURATO:PERSONA] of 16 September 1994 not to admit the applicant to [OSCURATO:PERSONA] CONS/A/338 on the ground that the application form was submitted out of time and for an order that the [OSCURATO:PERSONA] pay him damages, [OSCURATO:PERSONA] [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), composed of: K. [OSCURATO:PERSONA], [OSCURATO:PERSONA], P. Lindh and J.D. Cooke, Judges, [OSCURATO:PERSONA]: H. [OSCURATO:PERSONA], makes the following [OSCURATO:PERSONA], procedure and forms of order sought 1 The applicant entered [OSCURATO:PERSONA] CONS/A/338, opened on 18 January 1994 by the [OSCURATO:PERSONA] with a view to drawing up a reserve list for the recruitment of administrators. By letter dated 30 June 1994, the [OSCURATO:PERSONA] for Personnel and Administration of the [OSCURATO:PERSONA] (hereinafter ‘DPA’) informed the candidate that his application could not be accepted because it had been posted after the closing date, fixed in the [OSCURATO:PERSONA] at midnight on 28 February 1994. 2 The applicant responded to the correspondence from the DPA by sending three faxes on 6 July 1994, 29 July 1994 and 15 September 1994 and a letter by registered mail on 15 September 1994. He pointed out that, on 28 February 1994, the closing date for applications, he had left his application form with a messenger for the floor where he worked at the [OSCURATO:PERSONA] of Justice at the time and he offered to provide evidence of that fact. 3 By letter of 16 September 1994 the DPA informed the applicant that it had re-examined his file. It pointed out that the envelope containing his application form did not bear a postmark and that the date stamped by the [OSCURATO:PERSONA]'s internal mail service was 3 March 1994. It informed the applicant that it could not give him a favourable reply since Section VI of the [OSCURATO:PERSONA] provided that the application form was to be posted before midnight on 28 February 1994, ‘the postmark being taken as proof’. 4 By application lodged at the [OSCURATO:PERSONA] on 19 December 1994, the applicant brought an action for annulment of the decision of the DPA of 30 June 1994 not to admit him to [OSCURATO:PERSONA] CONS/A/338 and for an order that the [OSCURATO:PERSONA] pay him damages. 5 By a document received at the [OSCURATO:PERSONA] on 14 March 1995, the [OSCURATO:PERSONA] raised a plea of inadmissibility under [OSCURATO:PERSONA] 114 of the Rules of Procedure and requested the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] to rule on that plea without considering the merits of the case. 6 By order of 4 July 1995, the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] decided to continue the procedure on the merits before taking a decision on the plea of inadmissibility. 7 In its defence, lodged on 12 September 1995, the [OSCURATO:PERSONA] indicated that the appointing authority had annulled the [OSCURATO:PERSONA] at issue by decision published in the [OSCURATO:PERSONA] of 16 February 1995 ( OJ 1995 C 39, p. 8 ). 8 Since the applicant had not lodged a reply by the date prescribed by the [OSCURATO:PERSONA], 27 October 1995, the written procedure ended on that date. 9 The applicant claims that the [OSCURATO:PERSONA] should: — annul the decision of 16 September 1994 whereby the DPA refused to admit the applicant to the tests for the general competition in question; — declare that the applicant is now entitled to enter the competition at its current stage; — order the [OSCURATO:PERSONA] to pay the applicant [a fixed sum] for material and non-material damage and expenses incurred; — order the [OSCURATO:PERSONA] to pay the costs. 10 [OSCURATO:PERSONA] contends that the [OSCURATO:PERSONA] should: — dismiss the action as inadmissible or, in the alternative, as unfounded; — order the applicant to pay the costs if he does not discontinue the proceedings and, if he does so, order each party to bear its own costs. Findings of the [OSCURATO:PERSONA] 11 [OSCURATO:PERSONA] finds that the action, as defined by the claims set out in the application, has become devoid of purpose following the annulment of the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] CONS/A/338 by decision of the [OSCURATO:PERSONA] published in the [OSCURATO:PERSONA] of 16 February 1995. 12 As regards the applicant's claim that the decision of the DPA of 16 September 1994 refusing to admit him to [OSCURATO:PERSONA] CONS/A/338 should be annulled, the [OSCURATO:PERSONA] observes that, even if the applicant were to succeed in his application, he could not take part in the competition in question since it has been annulled. 13 In so far as concerns the applicant's claim that he should be compensated for the material and non-material damage he has suffered and the expenses he has incurred in that context, the [OSCURATO:PERSONA] finds that claim to have also become devoid of purpose since the applicant cannot have suffered harm by reason of not being able to take part in a competition which has not been organized. 14 Finally, as regards the declaration sought by the applicant that he is entitled to enter the competition in question at its present stage, the [OSCURATO:PERSONA] finds that, in any event, in the context of an action brought under [OSCURATO:PERSONA] 179 of the EC Treaty, it has no jurisdiction to make such a declaration. 15 There is, therefore, no need to make a decision in the present case. Costs 16 [OSCURATO:PERSONA] 87(6) of the Rules of Procedure, where a case does not proceed to judgment, the costs are in the discretion of the [OSCURATO:PERSONA] of [OSCURATO:PERSONA]. In the present case, the [OSCURATO:PERSONA] finds that it was only in its defence that the [OSCURATO:PERSONA] stated that the competition notice had been annulled, when it could have already done so in its plea of inadmissibility of 14 March 1995. Accordingly, the [OSCURATO:PERSONA] contributed to the applicant's pursuing the action. On the other hand, it should be noted that the applicant could have discontinued the action when he learnt of the annulment of the competition in question upon taking cognizance of the [OSCURATO:PERSONA]'s defence. For all those reasons, each party should be ordered to bear its own costs. On those grounds, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) hereby orders: 1. There is no need to give a decision. 2. Each party shall bear its own costs. Luxembourg, 4 March 1996. H. [OSCURATO:PERSONA] K. [OSCURATO:PERSONA] ( *1 ) Language of the case: English.