JUDGMENT OF THE COURT OF FIRST INSTANCE (Fifth Chamber)

21 July 1998 (1)

(Officials — Admissibility — Establishment — Legitimate expectations — Equaltreatment)

In Joined Cases T-66/96 and T-221/97,

John Mellett, a member of the temporary staff at the Court of Justice of theEuropean Communities, residing at 61 Rue des Maraîchers, Plateau du Kirchberg,Luxembourg, represented by Brendan O'Donovan, Solicitor, and Conor Quigley,Barrister, with an address for service in Luxembourg at the aforementionedaddress,

applicant,

v

Court of Justice of the European Communities, represented by Timothy Millett,Legal Adviser, acting as Agent, with an address for service in Luxembourg at theoffice of Mr Millett, Court of Justice, Kirchberg,

defendant,

APPLICATION, in Case T-66/96, for annulment of the decision of the Court ofJustice of the European Communities of 14 June 1995 and, in Case T-221/97, forannulment of the decisions of the President of the Court of Justice of 17 October

1996 and 4 December 1996 not to commence the procedure leading to theestablishment of the applicant as a permanent official,

THE COURT OF FIRST INSTANCE

OF THE EUROPEAN COMMUNITIES (Fifth Chamber),

composed of: J. Azizi, President, R. García-Valdecasas and M. Jaeger, Judges,

Registrar: A. Mair, Administrator,

having regard to the written procedures and further to the hearings on 17 February1998 and 16 June 1998,

gives the following

Judgment

I — Legal background

1.

    Point 1 of the decision concerning the recruitment and establishment of drivers ofthe Members of the Court, adopted by the Court on 30 June 1976 (hereinafter 'the1976 Decision‘), provides that drivers are to be engaged as temporary staff on thebasis of Article 2(c) of the Conditions of Employment of Other Servants(hereinafter 'the Conditions of Employment‘). Point 2 of the 1976 Decisionprovides that: 'La procédure de titularisation pourra être entamée après troisannées de service sur proposition du Membre auprès duquel le chauffeur estaffecté. Après un concours interne, les chauffeurs sont nommés fonctionnairesstagiaires dans la carrière D 3 - D 2‘. [The establishment procedure may becommenced after three years' service on a proposal from the Member to whom thedriver is assigned. After an internal competition, drivers shall be appointedprobationary officials in career bracket D 3 — D 2.]

2.

    In 1995, the exercise of the powers of the appointing authority within the defendantinstitution was regulated by the Decision of the Court of 25 January 1995 on theexercise of the power of appointment (hereinafter 'the Decision on the appointingauthority‘) and by the Decision of the Court of 25 January 1995 on theAdministrative Committee of the Court (hereinafter 'the Decision on theAdministrative Committee‘). Under those decisions, the President of the Court isgiven the power to appoint drivers in the Chambers of a Member of the Court(hereinafter 'drivers‘) as temporary staff (Article 7(3) of the Decision on theappointing authority) and to appoint them as officials (Article 5(3) of the Decisionon the appointing authority). However, the Administrative Committee is

competent to take any decision of an administrative nature in the name of theCourt, particularly as regards the organisation and functioning of the institution(second paragraph of Article 2 of the Decision on the Administrative Committee),save that the full Court retains the competence to approve the preliminary draftbudget before it is transmitted to the budgetary authority (third paragraph ofArticle 2 of the Decision on the Administrative Committee).

3.

    On 9 June 1994 the Head of the Personnel Division, Mr Pommiès, sent amemorandum to the Registrar of the Court, Mr Grass, entitled 'Avant-projet debudget 1995 — présentation du tableau des effectifs — emplois affectés aux cabinetsdes Membres (catégories B, C et D)‘. [Preliminary draft budget 1995 —presentation of the list of posts — posts attached to the Chambers of the Membersof the Court (Categories B, C and D).] He explained that 'préparation de l'avant-projet de budget destiné à couvrir les besoins de l'institution à la suite desprochaines adhésions pourrait être l'occasion de procéder à une refonte du tableaudes effectifs consistant à regrouper dans les emplois temporaires, avec les emploisde référendaires, les emplois affectés aux cabinets des membres de la Cour, c'est-à-dire les emplois B et C du personnel de secrétariat et les emplois D deschauffeurs‘. [Preparation of the preliminary draft budget intended to cover theinstitution's needs as a result of the forthcoming accessions might be an appropriateoccasion for a reorganisation of the Court's list of posts consisting of regrouping inthe temporary posts, along with the legal secretaries' posts, the posts attached tothe Chambers of the Members of the Court, that is to say the secretarial posts inCategories B and C and the drivers' posts in Category D.] According to the authorof the memorandum, that modification of the Court's list of posts had the dualadvantage of, on the one hand, translating into budgetary terms the administrativepractice of filling posts within the Chambers no longer by the appointment ofofficials but by the recruitment of members of temporary staff, thus preserving thefreedom for Members to choose their close collaborators and, on the other, itwould make it easier to offer career prospects to staff in the Chambers.

4.

    On 14 June 1994 the Registrar sent a memorandum to the Members of the Courtentitled 'Budget — lettre rectificative ”élargissement” à l'état prévisionnel 1995‘[Budget — amendment to the estimate for 1995 (enlargement)] in which heproposed that, in addition to the legal secretaries' posts, the other posts attachedto the Chambers of the Members of the Court and of the Court of First Instancebe included under the heading 'temporary posts‘, that is to say the secretarialposts in Categories B and C and the drivers' posts in Category D.

5.

    At its administrative meeting of 11 July 1994, the Court approved that proposal. Point 8 of the minutes of the administrative meeting of the Court of 11 July 1994reads as follows: '... La Cour approuve également la proposition de demander àl'autorité budgétaire une modification du tableau des effectifs consistant àregrouper, dans les emplois temporaires, l'ensemble des emplois affectés auxcabinets des membres, c'est-à-dire les emplois B et C du personnel de secrétariat

et les emplois D des chauffeurs (sauf ceux qui sont actuellement occupés par desfonctionnaires affectés aux cabinets). ...‘ [... The Court also approves the proposalto ask the budgetary authority for a modification of the Court's list of postsconsisting of regrouping, in the temporary posts, all of the posts attached to theChambers of the Members, that is to say the secretarial posts in Categories B andC and the drivers' posts in Category D (except those which are currently held byofficials assigned to the Chambers of the Members). ...] (hereinafter 'the Court'sdecision of 11 July 1994‘).

6.

    The Court's request was accepted by the budgetary authority when the 1998 budgetwas adopted.

II — Facts and procedure

7.

    In 1970, the applicant, Mr Mellett, joined the Irish Defence Forces. His dutiesmainly entailed work as a driver, bodyguard and courier.

8.

    Soon after his appointment as a Judge of the Court in October 1991, Judge Murrayasked Mr Mellett to become his personal driver. The applicant claims, and theCourt does not dispute this, that he told Judge Murray that he would be willing toaccept this new career on condition that he had some prospect of becoming apermanent member of staff at the Court. On the basis of information receivedfrom officials at the Court, Judge Murray informed him that he would be amember of the temporary staff for his first three years of service, on thecompletion of which he would become a permanent member of staff, provided thatJudge Murray made a proposal to that effect. Mr Mellett claims that he acceptedthe position as driver on that basis. He states that a Category C official of thePersonnel Division, acting in the course of her duties, explained to him that, as amatter of practice, drivers on temporary contracts were established as permanentofficials after completing three years' satisfactory service. He adds that the DeputyRegistrar, Mr Cranfield, confirmed that information and stated that any change inthat practice would only apply to those drivers who entered into service after thedate of any such change.

9.

    In order to assist Mr Mellett in obtaining leave of absence from the Irish Army, theDeputy Registrar, Mr Cranfield, wrote to the Secretary of the Department ofDefence on 22 April 1992. In that letter he confirmed that Mr Mellett would beengaged as a member of the temporary staff and, after pointing out that the StaffRegulations limited the duration of such contracts to a maximum of three years, headded: 'In the normal course of events, we would expect Mr Mellett to participatein an internal competition to become a permanent member of staff in the thirdyear of his appointment if all works out correctly.‘ On the basis of that request,Mr Mellett was granted leave of absence for a period of three years; that leave wassubsequently extended.

10.

    By letter dated 14 April 1992, Mr Mellett was offered a contract as a member ofthe temporary staff for an indefinite period from 16 May 1992. By letter dated 23April 1992 Mr Mellett indicated that he accepted that offer. On 14 May 1992, MrMellett and the Head of the Personnel Division signed a contract by which MrMellett was engaged as a member of the temporary staff on the basis of Article2(c) of the Conditions of Employment.

11.

    Mr Mellett claims that he was informed by the Deputy Registrar, Mr Cranfield, inFebruary 1993 that he would be the last driver to be established as a permanentofficial under the 1976 Decision. He also claims that Mr Cranfield told him, inApril 1994, that the procedure leading to his establishment would commence in theautumn. Again according to the applicant, Judge Murray told him in July 1994 thatthe Registrar of the Court had assured him that his establishment as a permanentofficial would proceed in due course.

12.

    On 13 December 1994, Judge Murray sent a memorandum to the Registrar askinghim to examine the question of the establishment of his driver.

13.

    By a memorandum dated 7 March 1995 the Registrar replied that, at itsadministrative meeting on 11 July 1994, the Court had ended the practice ofestablishing the Members' drivers and had decided that, in future, drivers wouldonly be members of the temporary staff or seconded officials.

14.

    By a memorandum dated 7 April 1995 Judge Murray told the Registrar that MrMellett had left his previous job to come to the Court as a driver on the footingthat he could be established on the basis of the practice then in force, which hadbeen expressly confirmed to Mr Mellett and to Judge Murray by the administrationat the time of Mr Mellett's engagement. Judge Murray therefore asked theRegistrar 'bien vouloir procéder à sa titularisation conformément à la pratiquebien établie [kindly to proceed to his establishment in accordance with the well-established practice]‘.

15.

    By a memorandum in reply dated 19 May 1995, the Registrar stated that, by itsdecision of 11 July 1994, the Court intended to put an end to the possibility forMembers' drivers to become established officials. As to whether that decisionapplied to the members of the temporary staff employed at the Court as at 11 July1994, Mr Mellett and six other drivers referred to by name, the memorandumstated that 'M. le Président considère qu'à compter de la décision du 11 juillet1994, la décision du 30 juin 1976 n'est plus applicable, et que, en conséquence, leschauffeurs se trouvant dans la situation d'agent temporaire à cette date n'ont plusvocation à être titularisés. Il ne lui paraît pas possible à cet égard de faire unedistinction entre ces agents selon qu'ils ont ou non reçu une information del'administration de la Cour sur une éventuelle abrogation de la décision du 30 juin1976‘. [The President considers that as from the decision of 11 July 1994, thedecision of 30 June 1976 is no longer applicable and that, therefore, the drivers in

the position of members of the temporary staff at that date are no longer eligibleto be established. In this connection he does not consider it possible to draw adistinction between those members of the temporary staff according to whether ornot they were notified by the administration of the Court about the possible repealof the decision of 30 June 1976.] Finally, the Registrar added that, if Judge Murraywished, the question could be discussed in the Administrative Committee.

16.

    At the request of Judge Murray, the question was put to the AdministrativeCommittee on 14 June 1995 together with an explanatory memorandum, dated 6June 1995, from the Head of the Personnel Division, Mr Pommiès, entitled'Situation des chauffeurs de membres — cas de M. John Mellett‘ [Situation of thedrivers of Members of the Court — Case of Mr John Mellett]. That memorandum,which was prepared at the request of the Registrar, states, in particular, at point5, that 'M. Murray a demandé que M. Mellett soit titularisé en application de ladécision du 30 juin 1976‘ [Mr Murray requested that Mr Mellet be established asa permanent official pursuant to the Decision of 30 June 1976]. Annexed to thatmemorandum was, inter alia, a copy of a proposal for a new system of recruitmentand appointment of drivers of Members of the Court, dated 1 February 1993. Thatproposal, which was prepared by the Head of the Personnel Division, provided asfollows: 'le nouveau régime devrait s'appliquer à tous les chauffeurs de membresrecrutés à compter de la date de sa mise en vigueur. ... A titre transitoire lechauffeur de membre de la Cour engagé comme agent temporaire le 16 mai 1992,sous l'empire de la décision de 1976, pourrait continuer à bénéficier de cesdispositions et donc faire l'objet d'une procédure de titularisation après trois annéesde service, sur proposition du membre concerné. En revanche, le nouveau régimeserait appliqué aux trois agents temporaires engagés en janvier 1993. Lesintéressés ont d'ailleurs été informés par écrit lors de la notification de leurengagement que la possibilité d'abroger la décision de 1976 était en cours dediscussion et qu'ils ne pourraient pas s'attendre à une titularisation dans l'emploiqu'ils étaient appelés à occuper‘. [The new scheme should apply to all Members'drivers recruited with effect from the date on which it enters into force. ... As atransitional measure, the driver of the Member of the Court who was recruited asa member of the temporary staff on 16 May 1992, under the 1976 Decision, couldremain subject to the provisions of that decision and thus the procedure for hisestablishment could be commenced after three years of service, on a proposal fromthe Member concerned. However, the new scheme would be applied to the threemembers of the temporary staff recruited in January 1993. Indeed, the personsconcerned were informed in writing at the time they were notified of theirrecruitment that the possible repeal of the 1976 Decision was under discussion andthat they could not expect to become established in the posts they were called uponto fill.] By agreement with the President of the Court of Justice, that proposal,which had been approved by the Registrar, was submitted to the AdministrativeCommittee on 15 February 1993 and should subsequently have been submitted tothe administrative meeting. However, that proposal, which the administrativecommittee had deferred to a subsequent meeting, was not re-entered on theagenda of any administrative meeting.

17.

    With the exception of the applicant, all the drivers recruited between 1992 and 11July 1994 were warned in writing, at the time when they were recruited, thatdiscussions concerning the amendment of the 1976 Decision were taking place andthat, in particular, they could not expect the system to be applied to them.

18.

    Point 4 of the minutes of the Administrative Committee's meeting on 14 June 1995,is entitled 'Situation des chauffeurs de membres au regard de la décision de laCour du 11/07/1994‘ [Situation of the drivers of Members of the Court in the lightof the Court's decision of 11 July 1994] and reads as follows: 'Il est d'abordrappelé que la Cour, par sa décision du 11/07/94 visant à demander à l'autoritébudgétaire la modification du tableau des effectifs, a mis fin à la possibilité detitularisation des chauffeurs de membres prévue par la décision du 30 juin 1976. Aprés discussion, le Comité administratif estime que la décision du 11/07/94 doitêtre appliquée, sans exception, à l'égard de tous les chauffeurs se trouvant dans lasituation d'agent temporaire à cette date.‘ [It is first recalled that the Court, byits decision of 11 July 1994 to ask the budgetary authority for the modification ofthe list of posts, has put an end to the possibility of establishing the Members'drivers provided for by the decision of 30 June 1976. After discussion, theAdministrative Committee takes the view that the decision of 11 July 1994 must beapplied without any exceptions to all the drivers who were members of thetemporary staff at that date] (hereinafter 'the Decision of 14 June 1995‘ or 'thecontested decision‘). Judge Murray informed Mr Mellett of the AdministrativeCommittee's decision later that day.

19.

    On 21 June 1995, Mr Mellett addressed a memorandum to Judge Murray askinghim for a copy of the Administrative Committee's decision of 14 June 1995rejecting the proposal to set in train the procedure for establishing him as apermanent official, together with a statement of the reasons for its adoption.

20.

    By memorandum of 21 June 1995, Judge Murray asked the Registrar to furnish himwith a copy of the Administrative Committee's decision of 14 June 1995. No replyhas been received to that request.

21.

    On 13 September 1995, Mr Mellett made a complaint under Article 90(2) of theStaff Regulations against the decision of the Administrative Committee of theCourt of 14 June 1995 not to commence the procedure leading to his establishmentas an official.

22.

    By a decision of 22 January 1996, notified to the applicant on 13 February 1996,the Complaints Committee of the Court dismissed the complaint as inadmissible.

23.

    By application lodged at the Registry of the Court of First Instance on 13 May1996, the applicant brought the action, registered under Number T-66/96, againstthe decision of the Administrative Committee of the Court of Justice of 14 June

1995 not to commence the procedure leading to his establishment as a permanentofficial.

24.

    In its pleadings in Case T-66/96, the Court of Justice submitted that the action wasinadmissible on the ground that the contested measure did not adversely affect theapplicant and that the latter had not submitted an individual request within themeaning of Article 90(1) of the Staff Regulations of Officials of the EuropeanCommunities (hereinafter 'the Staff Regulations‘).

25.

    In view of that argument, Mr Mellett commenced two new preliminary procedures.

26.

    First, following a request from Mr Mellett, Judge Murray sent a memorandum tothe President of the Court, dated 11 July 1996, stating that he was prepared tomake a formal request for Mr Mellett's establishment as a permanent official. Bya memorandum of 22 July 1996, the President of the Court replied to JudgeMurray that he could only give a negative reply to such a request. On 1 October1996, Judge Murray sent a further memorandum to the President of the Courtrequesting that Mr Mellett be established as a permanent official. By amemorandum dated 17 October 1996, the President of the Court informed JudgeMurray of his decision to refuse that request. By letter dated 14 November 1996,Judge Murray sent Mr Mellett a copy of the memorandum of the President of theCourt of 17 October 1996. On 9 January 1997, Mr Mellett submitted a complaint,registered under No 1/97-R, against the decision of the President of the Court of17 October 1996 refusing to establish him as a permanent official.

27.

    Second, by a letter dated 9 September 1996, Mr Mellett submitted a request, withinthe meaning of Article 90(1) of the Staff Regulations, to the President of the Courtin his capacity as appointing authority, to be appointed as a permanent official ofthe Court assigned to the Chambers of Judge Murray. By memorandum of 4December 1996, the President of the Court notified his decision to refuse thatrequest. On 9 January 1997, Mr Mellett submitted a complaint, registered underNo 2/97-R, against the decision of the President of the Court of 4 December 1996refusing his request for establishment.

28.

    By a single decision dated 28 April 1997, received by Mr Mellett on 2 May 1997,the Complaints Committee of the Court dismissed Complaint No 2/97-R, directedagainst the decision of the President of the Court of 4 December 1996, asunfounded and held that it was not necessary to rule on Complaint No 1/97-R,directed against the memorandum of 17 October 1996.

29.

    In those circumstances, by application lodged at the Registry of the Court of FirstInstance on 29 July 1997, the applicant brought the action, registered under numberT-221/97, for annulment of the decisions of the President of the Court of 17October 1996 and 4 December 1996.

30.

    Upon hearing the report of the Judge-Rapporteur, the Court of First Instance(Fifth Chamber) decided to open the oral procedures without any preparatorymeasures of inquiry.

31.

    The parties presented oral argument and gave their replies to the Court's questionsat the hearings on 17 February 1998 and 16 June 1998. At the end of the hearingon 17 February 1998, the Court did not close the oral procedure and accepted thatthe defendant should reply, in writing, before 25 March 1998, to four questionsraised during the hearing on 17 February 1998 and repeated in writing on 5 March1998. The defendant complied with that request by letter lodged at the Registryof the Court of First Instance on 26 March 1998.

32.

    Having heard the views of the parties on joinder of the cases at the hearing on 16June 1998, the Court considers that Cases T-66/96 and T-221/97 should be joinedfor the purposes of the judgment.

III — Forms of order sought

33.

    In Case T-66/96,

The applicant claims that the Court of First Instance should:

—    annul the decision of the Administrative Committee of the Court of Justiceof 14 June 1995 not to commence the procedure leading to hisestablishment as a permanent official;

—    order the Court to pay the costs.

The defendant claims that the Court of First Instance should:

—    dismiss the application as inadmissible;

—    in the alternative, dismiss the application as unfounded;

—    order the applicant to bear his own costs.

34.

    In Case T-221/97,

The applicant claims that the Court of First Instance should:

—    annul the decision of the President of the Court of Justice of 17 October1996 refusing to open a competition for the recruitment of a driver as apermanent official assigned to the Chambers of Judge Murray and/or;

—    annul the decision of the President of the Court of Justice of 4 December1996 refusing to appoint the applicant as a permanent official assigned tothe Chambers of Judge Murray;

—    order the Court to pay the costs.

The defendant contends that the Court of First Instance should:

—    dismiss the application as inadmissible or, in the alternative, as unfounded,in so far as it seeks the annulment of the decision allegedly contained in thememorandum of 17 October 1996 from the President of the Court of Justiceto Judge Murray;

—    dismiss the application as unfounded, in so far as it seeks the annulment ofthe decision of the President of the Court of Justice of 4 December 1996refusing the applicant's request for appointment as an established official;

—    order the applicant to bear his own costs.

Admissibility

A.    Admissibility in Case T-66/96

Arguments of the parties

35.

    Without having requested, by separate document, that the Court rule under Article114 of the Rules of Procedure, the defendant claims that the action is inadmissible.

36.

    The defendant, after pointing out that complaints and applications to the Courtmay be directed only against an act of the appointing authority adversely affectingthe complainant or applicant (Case 33/80 Albini v Council and Commission [1981]ECR 2141), claims that, in the present case, the measure for which annulment issought does not constitute an act adversely affecting the applicant.

37.

    It maintains that the only acts which may be considered as adversely affecting theperson concerned are those which produce binding legal consequences such as toaffect, directly and immediately, the applicant's interests by significantly changinghis legal situation (Case T-562/93 Obst v Commission [1995] ECR-SC I-A-247, p.II-737, paragraph 23). A mere statement of a future intention on the part of theappointing authority is not, however, capable of creating rights and obligations onthe part of officials (Joined Cases 269/84 and 292/84 Fabbro v Commission [1986]ECR 2983). Similarly, general measures for the organisation of the departments,for which the administration alone is responsible cannot constitute measuresadversely affecting the applicant within the meaning of the Staff Regulations(Joined Cases 109/63 and 13/64 Muller v Commission [1964] ECR 663).

38.

    The defendant claims that the position adopted by the Administrative Committeeon 14 June 1995 is not an individual decision relating to the applicant but concernsa category of temporary servants which, in addition to the applicant, comprises sixother drivers referred to by name in the Registrar's memorandum of 19 May 1995. Furthermore, it maintains that it is clear from the minutes of the meeting of 14June 1995, according to which 'le comité administratif estime que la décision du11 juillet 1994 doit être appliquée, sans exception à l'égard de tous les chauffeursse trouvant dans la situation d'agent temporaire à cette date‘ [the AdministrativeCommittee considers that the decision of 11 July 1994 must be applied without anyexceptions to all the drivers who were members of the temporary staff at that date]that the position adopted by the Administrative Committee does no more thanconfirm the general decision of the Court of 11 July 1994. The position adoptedby the Administrative Committee on 14 June 1995 thus constitutes a general lineof conduct applicable to all the drivers of the Members of the Court who weremembers of the temporary staff as at 11 July 1994. That general line of conducthas not been translated into a decision directly and immediately affecting theapplicant's interests.

39.

    The applicant claims that the defendant's argument that the AdministrativeCommittee's decision of 14 June 1995 does not constitute an act adversely affectinghim should be rejected on three grounds and that the Administrative Committee'sdecision of 14 June 1995 directly changed his legal position.

40.

    First, the applicant submits that the issue before the Administrative Committee ofthe Court was at all times that of his establishment as a permanent official. Moreover, it is clear from the correspondence between Judge Murray, the Registrarand Mr Pommiès that this was the case. According to the applicant, the fact thatthe issue was raised at a meeting of the Administrative Committee, which hasnormally no role in the establishment of drivers, indicates that Judge Murray raisedthat issue before that body. The applicant points out that the AdministrativeCommittee of the Court is competent to take any decision of an administrativenature in the name of the Court and that, since the President of the Court haddecided to refuse Judge Murray's request of 7 April 1995 that he be established asa permanent official (as is apparent from the Registrar's memorandum of 19 May1995), Judge Murray was obliged to bring the matter before the AdministrativeCommittee. The matter of the establishment of the applicant was thus properlyput to that body at its meeting of 14 June 1995. He points out further that theRegistrar's memorandum of 19 May 1995 expressly suggested that Judge Murrayrefer the question of the establishment of the applicant as a permanent official tothe Administrative Committee, if he so wished. Finally, in view of the disagreementas to the true nature of the Administrative Committee's decision of 14 June 1995,the applicant requests the Court to summons those Members of the Court whowere present at that meeting to appear in order to give oral evidence, under Article64(4) of the Rules of Procedure of the Court of First Instance.

41.

    Second, the applicant points out that since 11 July 1994 he was the only personcoming within the scope of the decision of 30 June 1976 and concludes that theissue was not whether an exception was to be made to the decision of 11 July 1994,but whether he was to obtain the benefit of the regime in place from 1976. Theapplicant notes that, as admitted in Mr Pommiès' memorandum of 6 June 1995, alldrivers recruited by the Court after him were informed by the administration thatthe possible repeal of the 1976 decision was being considered and that they couldtherefore not expect that decision to be applied to them.

42.

    Third, the applicant claims that it would have been futile for Judge Murray to haveasked the President of the Court to commence the procedure leading to hisestablishment since the latter must comply with any decisions taken by theAdministrative Committee.

43.

    The applicant goes on to claim that his legal situation was immediately and directlychanged from the moment the Administrative Committee took its decision of 14June 1995.

44.

    The Administrative Committee's decision of 14 June 1995 is no mere statement offuture intent, but an unequivocal ruling on the effect of the decision of 11 July 1994upon the application of the 1976 Decision.

45.

    The applicant also points out that, in accordance with the decision of 30 June 1976,which provides that the procedure for the establishment of a driver is to commenceon the basis of a proposal by the Member of the Court to whom the driver isassigned, Judge Murray addressed a memorandum to the Registrar to that effecton 13 December 1994.

46.

    Finally referring to the Opinion of Advocate General Mischo in Fabbro vCommission (cited at paragraph 37 above, point 8), the applicant claims that, inorder for an action to be admissible, there is no need for an individual decision tohave been taken, but it is sufficient that the applicant can show that the contesteddecision directly affected him and that he has a present and vested personalinterest in bringing the action. First, the Administrative Committee's decision of14 June 1995 directly affected the applicant since it prevents the 1976 Decisionfrom being applied to him, and second, since he is the only person who can stillrely on the 1976 Decision, the applicant has a vested and present interest inbringing this action.

47.

    The defendant rejects the three arguments put forward by the applicant to refutethe view that the Administrative Committee's decision of 14 June 1995 does notconstitute an act adversely affecting him.

48.

    First, contrary to what the applicant claims, the issue before the AdministrativeCommittee on 14 June 1995 was not the establishment of the applicant as apermanent official but, rather, a confirmation of the general measure of

organisation of the Court's services adopted on 11 July 1994 in relation to an entirecategory of drivers addressed in their generality. The defendant notes that thememorandum from the Head of the Personnel Division, Mr Pommiès, of 6 June1995 is entitled: 'Situation des chauffeurs — cas de M. John Mellett‘ and wasintended 'de vous adresser des éléments d'informations relatifs à la situation deschauffeurs de membres‘ [to provide you with information concerning the situationof Members' drivers]. The memorandum does not therefore deal exclusively withMr Mellett's situation. In any event, that preparatory document could not in anyway prejudge the position adopted by the Administrative Committee on 14 June1995.

49.

    Second, it is clear from the heading of point 4 of the minutes that the issue putbefore the Administrative Committee on 14 June 1995 was not whether theapplicant's case should be dealt with under the 1976 Decision but, rather, whetheror not an exception could be envisaged to the Court's decision of 11 July 1994 forone or other of the drivers who were members of the temporary staff at that date.

50.

    Third, the defendant stresses that the applicant himself never at any time submitteda request to the appointing authority concerning his establishment but that all thesteps taken at the time were taken by Judge Murray and not by the applicant. Thedefendant stresses that no request was submitted by the applicant under Article90(1) of the Staff Regulations. In consequence, no decision concerning theestablishment of the applicant was ever taken or addressed to him. The defendantadds that the applicant seems to acknowledge that this analysis is correct in so faras he submitted a request to the appointing authority, on 11 September 1996, underArticle 90(1) of the Staff Regulations to be appointed as a permanent officialassigned to the Chambers of Judge Murray.

Findings of the Court

51.

    The defendant maintains that the Administrative Committee's decision of 14 June1995 does not constitute a measure adversely affecting the applicant in so far as itis not an individual decision relating to him but concerns a category of membersof the temporary staff including six other drivers in addition to the applicant. Thedefendant adds that the decision of 14 June 1995 does no more than confirm thegeneral decision of 11 July 1994. It stresses that the applicant himself never at anytime submitted a request within the meaning of Article 90(1) of the StaffRegulations and concludes that there is no decision directly affecting the applicant'sinterests.

52.

    That argument cannot be accepted. On the one hand, the AdministrativeCommittee's decision of 14 June 1995 must be regarded as constituting the replyto the request for the establishment of the applicant. On the other, in any event

in the light of the settled case-law, the Administrative Committee's decision of 14June 1995 must be regarded as an adverse act since it affects the applicant.

53.

    First, as regards the subject-matter of the Administrative Committee's decision of14 June 1995, it is apparent from an examination of the sequence of memorandapreceding the decision of 14 June 1995 that, contrary to the defendant's assertion,the question put to the Administrative Committee on 14 June 1995 was, indeed,that of the establishment of the applicant.

54.

    The whole administrative procedure, the discussions and exchanges of memorandaconcerning the establishment of drivers commenced with Judge Murray'smemorandum of 13 December 1994, headed 'Titularisation de M. Mellett‘[Establishment of Mr Mellett], in which he asked the Registrar 'be so kind as toexamine the question of the possible establishment of (my) driver, Mr John Mellett...‘. Likewise, all subsequent memoranda leading up to the decision adopted at theAdministrative Committee's meeting on 14 June 1995 concerned the question ofthe establishment of the applicant. Thus, the memorandum in reply sent by theRegistrar to Judge Murray on 7 March 1995 bears the heading 'Titularisation deM. Mellett‘ [Establishment of Mr Mellett]. Judge Murray's memorandum of 7April 1995 also concerns only the question of Mr Mellett's establishment. TheRegistrar's memorandum dated 19 May 1995 is again headed 'Titularisation de M.Mellett — Votre memorandum du 7 avril 1995‘ [Establishment of Mr Mellett — yourmemorandum of 7 April 1995]. It is true that, in that memorandum, the Registrarrefers to the situation of six other drivers employed as members of the temporarystaff at the Court as at 11 July 1994. It is, however, clear that that reference wasmade only in order to focus on the specific circumstances of the applicant, as isdemonstrated by the statement of the President of the Court, contained in thefollowing paragraph of the memorandum, to the effect that there is no need todraw a distinction between those members of the temporary staff according towhether or not they were notified by the administration about the possible repealof the 1976 Decision. The memorandum ends, furthermore, with the sentence 'Sivous le souhaitiez, la question pourrait être discutée au sein du comitéadministratif‘. [If you wish, the question could be discussed in the AdministrativeCommittee]. Finally, Mr Pommiès' memorandum of 6 June 1995 to the Registrar,in preparation for the Administrative Committee's meeting on 14 June 1995, isheaded 'situation des chauffeurs des membres — cas de M. John Mellett‘.[Situation of Members' drivers — case of Mr John Mellett].

55.

    It thus follows from both the headings and content of those memoranda and fromtheir sequence that the position adopted by the Administrative Committee on 14June 1995 concerned the case of Mr Mellett, which was at the centre of thediscussions even if, indirectly, it could, in some circumstances, also have concernedthe six other drivers who were members of the temporary staff as at 11 July 1994.

56.

    Furthermore, not only did the discussions actually concern Mr Mellett's situationbut, as is apparent from the Registrar's memorandum of 19 May 1995, the position

adopted by the Administrative Committee on 14 June 1995 must be regarded asbeing the reply to the request for the establishment of the applicant submitted byJudge Murray. It must be observed here that, at paragraph 5 of his memorandumto the Registrar of 6 June 1995, preparatory to the Administrative Committee'smeeting on 14 June 1995, Mr Pommiès expressly mentions, with reference to theprevious memoranda, that 'Mr Murray has requested that Mr Mellett beestablished pursuant to the decision of 30 June 1976‘.

57.

    Finally, it must be pointed out that the point made by the President of the Court,which is reproduced in the Registrar's memorandum of 19 May 1995, according towhich it is not possible to draw a distinction between the members of staffaccording to whether or not they were notified about the repeal of the 1976Decision, referred only to the case of the applicant since all the other driversrecruited after the applicant were expressly warned in writing that the amendmentof the 1976 Decision was being considered and that they could therefore not expectit to be applied to them.

58.

    It follows from the foregoing that the question actually put to the AdministrativeCommittee on 14 June 1995 was in point of fact that of the establishment of theapplicant. Furthermore, no other request for establishment, except for that of theapplicant, was put to the Administrative Committee, which therefore had no reasonto consider the situation of the drivers in general.

59.

    The defendant's argument according to which the contested decision merelyconfirmed the general decision of 11 July 1994 is also unfounded. The point inquestion was that of the establishment of the applicant and this means that it wasnecessary to examine whether the decision of 11 July 1994 applied to the applicantor if he could remain subject to the previous system provided for by the 1976Decision. Notwithstanding the fact that the decision of 14 June 1995 is couched invery general terms, there is scarcely any doubt that the true object of thediscussions was the establishment of the applicant.

60.

    Second, even supposing that the contested decision does not constitute anindividual decision concerning the applicant, but a general measure concerning allthe Members' drivers who were members of the temporary staff at that time, thatis to say the applicant and six other drivers, it none the less constitutes, in anyevent, an act adversely affecting the applicant within the meaning of Article 90(2)of the Staff Regulations.

61.

    It is apparent from Articles 90 and 91 of the Staff Regulations that an act adverselyaffecting an official may consist either of a measure of a general nature or of anindividual decision addressed to the applicant or to a third party. It is also settledin case-law that officials have the right to submit a complaint and then to bringproceedings against a general measure of the appointing authority which adverselyaffects them without having to be individually concerned by that measure for the

purposes of Article 173 of the Treaty (Case 54/75 de Dapper v Parliament [1976]ECR 1381; Joined Cases 146/85 and 431/85 Diezler and Others v ESC [1987] ECR4283). Thus, in Case 125/87 Brown v Court of Justice [1988] ECR 1619, the Courtof Justice held that an action challenging the legality of the general decision of thePresident of the Court concerning the grading and remuneration of officials whochange to a higher category following a competition was admissible.

62.

    It has also been held that, although mere internal measures of organisation of theservice, which do not adversely affect the position under the Staff Regulations ofthe official concerned, do not, in principle, constitute acts having an adverse effect,certain measures may, however, be regarded as having an adverse effect even ifthey do not affect the material interests or rank of an official, if they affect hispersonal interests or future prospects (Case T-36/93 Ojha v Commission [1995]ECR-SC II-497, paragraphs 41 and 42).

63.

    There is scarcely any doubt that the Administrative Committee's decision of 14June 1995 affects the applicant. Even if the contested decision is regarded as alsoconcerning the six other drivers, in addition to the applicant, as the defendantmaintains that it should be, it has, in any event, the effect of denying the applicantthe benefit of the establishment procedure laid down in the 1976 Decision. Oncethe Administrative Committee had decided that the new arrangements of 11 July1994 were to be applied without any exceptions to all the drivers who weremembers of the temporary staff on that date, the President of the Court, whoconstitutes the appointing authority, could no longer decide to commence theprocedure for the establishment of the applicant. It is therefore clear that theAdministrative Committee's decision of 14 June 1995 changed the applicant's legalsituation since it had the effect of refusing, or denying, him the possibility ofobtaining the benefit of the establishment procedure laid down in the 1976Decision. In so far as the contested decision provides that the 1994 decision is toapply without any exceptions to all the drivers who were members of the temporarystaff at that date, even if the driver had not been informed when taking up his postthat he could not rely on the 1976 Decision, it must be regarded as affecting thelegal situation of the applicant in particular, since he was the only driver who wasa member of the temporary staff not to have been so informed. It follows that thecontested decision constitutes a decision which may be the subject of an action forannulment in so far as it produces binding legal consequences liable to affect theapplicant's interests by significantly changing his legal situation (Case T-293/94 VelaPalacios v ESC [1996] ECR-SC II-893, paragraph 22).

64.

    Contrary to the defendant's assertion, that conclusion cannot be affected by the factthat the applicant himself never at any time submitted a request under Article90(1) of the Staff Regulations. It is only in the absence of an act having an adverseeffect that the person concerned must submit a prior request to the appointingauthority. As stated above, the contested measure must be regarded as adverselyaffecting the applicant. Furthermore, the applicant cannot be criticised for nothaving submitted any request himself since, according to the 1976 Decision on the

establishment of drivers, it is for the Member to whom the driver is assigned, andnot for the driver himself, to request that the establishment procedure becommenced. Judge Murray submitted such a request.

65.

    It follows that the application in Case T-66/96 is admissible.

B.    Admissibility of Case T-221/97

66.

    The defendant does not contest the admissibility of the action in so far as it isdirected against the decision of the President of the Court of 4 December 1996rejecting Mr Mellett's request for establishment.

67.

    On the other hand, it claims that the action is inadmissible in so far as it seeks theannulment of the decision allegedly contained in the memorandum of the Presidentof the Court of 17 October 1996 to Judge Murray.

68.

    The defendant argues that the request which led to the President of the Court'sreply of 17 October 1996 was not made by Mr Mellett, but by a third person,namely Judge Murray, and that the memorandum of 17 October 1996 wasaddressed to Judge Murray and not to Mr Mellett. It contends that that exchangeof memoranda is not within the scheme of Article 90(1) of the Staff Regulationsbut is internal to the institution. Moreover, the memorandum of the President ofthe Court of 17 October 1996 constitutes at most an act preparatory to a finaldecision and does not adversely affect the applicant.

69.

    The defendant considers that the judgment in Case T-46/90 Devillez and Others vParliament [1993] ECR II-699, which is relied on by the applicant, is not relevantbecause in the present case the appointing authority has taken and notified adecision in due form, namely the decision of the President of the Court of 4December 1996, whereas in the Devillez case the appointing authority had notformally addressed a decision to the applicant.

70.

    Finally, the defendant considers that it would be entirely superfluous to givejudgment on the alleged decision of the President of the Court of 17 October 1996when precisely the same point of substance is to be found in the decision of 4December 1996.

71.

    The applicant states that both in this action and in Case T-66/96 he was seeking tohave a procedure commenced for his benefit on the basis of the 1976 Decision andthat, under that decision, the procedure for establishment is commenced by aproposal from the Member of the Court to whom the driver is assigned.

72.

    Just as Case T-66/96 is the sequel to Judge Murray's request of 13 December 1994,Case T-221/97 is the sequel to the new request submitted by Judge Murray on 1

October 1996 and challenges the legality of the decision of the President of theCourt of 17 October 1996.

73.

    The applicant accepts that Judge Murray's request of 1 October 1996 and thedecision of the President of the Court of 17 October 1996 do not fall within thescheme of Article 90(1) of the Staff Regulations, but points out that the requestmade by him to the President of the Court under Article 90(1) was made expresslywithout prejudice to the requests for his establishment made in due form by JudgeMurray. He submits that the present proceedings are not based exclusively onArticle 90(1) of the Staff Regulations, but seek the annulment of two separatedecisions taken by the appointing authority on 17 October and 4 December 1996under two different procedures.

74.

    The applicant also recalls that it is not necessary for an act to be communicateddirectly to the persons affected thereby for it to be capable of directly affecting aspecific legal situation (Devillez and Others v Parliament, cited at point 69 above,paragraphs 12 to 15).

75.

    The applicant submits that the decision of 17 October 1996 manifestly constitutesan act adversely affecting him within the meaning of Article 90(2) of the StaffRegulations, since it excludes him from the benefit of the 1976 Decision.

76.

    In the applicant's view, the decision of 4 December 1996 has no bearing on thelegality of the decision of 17 October 1996. Each of those procedures was takenunder different provisions of the Staff Regulations and have a different purpose,since the first challenges a decision not to commence a procedure leading to theholding of a competition under the 1976 Decision, whilst the other is a request forestablishment addressed directly to the President of the Court by the applicant andsubmitted à titre conservatoire.

77.

    The applicant considers that if it were to be superfluous to consider the questionof the legality of the decision of 17 October 1996, the Court of First Instanceshould rule that there is no need to give a decision on that part of the application,but should not hold it inadmissible.

Findings of the Court

78.

    The admissibility of the application in Case T-221/97, in so far as it is directedagainst the decision of the President of the Court of 4 December 1996, is notdisputed, in so far as that decision constitutes an individual decision in response tothe request submitted by the applicant within the meaning of Article 90(1) of theStaff Regulations.

79.

    It follows that it is necessary only to consider the admissibility of the application inso far as it is directed against the decision of the President of the Court of 17October 1996.

80.

    The defendant disputes the admissibility of the application against the decision ofthe President of the Court of 17 October 1996 essentially on two grounds: thedecision of the President of the Court of 17 October 1996 was not addressed to theapplicant and constituted a reply to a request submitted, not by the applicant, butby Judge Murray; and, secondly, it was only a preparatory act.

81.

    Those objections cannot be accepted, since the admissibility of this application isapparent a fortiori from the reasoning set out above in relation to the examinationof the admissibility of the application in Case T-66/96.

82.

    As regards, first, the fact that the decision of the President of the Court of 17October 1996 is the reply to the request submitted by Judge Murray and not to anindividual request submitted by the applicant, the Court finds, as is apparent fromJudge Murray's letter of 11 July 1996, that it was at the express request of theapplicant that Judge Murray formally asked the President of the Court tocommence the procedure for his establishment. That request was quiteunambiguous in so far as it was clearly seeking to obtain the commencement of theestablishment procedure. It follows that, notwithstanding the fact that it wasformally submitted by the applicant's immediate superior and not by the applicanthimself, it must be construed as a request within the meaning of Article 90(1) ofthe Staff Regulations (see, to that effect, the judgment in Devillez and Others vParliament, cited at paragraph 69 above). Furthermore, in the present case, therequest was submitted in accordance with the formal requirements and conditionslaid down in the 1976 Decision, which expressly provides that the procedure for theestablishment of drivers is commenced on a written proposal from the Member ofthe Court to whom the driver is assigned.

83.

    In any event, even supposing that Judge Murray's memorandum cannot beconstrued as a request within the meaning of Article 90(1) of the Staff Regulations,it is sufficient to recall that it is only in the absence of an act having adverse effectwithin the meaning of Article 90(2) of the Staff Regulations that an official mustsubmit a prior request to the appointing authority. In the present case, there is nodoubt that the decision of 17 October 1996 constitutes an act adversely affectingthe applicant by directly affecting his legal situation. It was issued by thecompetent authority and embodies the administration's definitive view concerningthe individual situation of the applicant.

84.

    The fact that the decision of the President of the Court of 17 October 1996 was notaddressed to the applicant cannot invalidate that conclusion. It has been held thatthe fact that an official was informed only orally of the refusal of a request,formally addressed to his immediate superior, cannot prevent such a refusal from

constituting a decision adversely affecting that official (Devillez and Others vParliament, cited at paragraph 69 above, paragraphs 13 and 14). Likewise,according to the case-law of the Court of Justice, oral decisions can constitute actsadversely affecting the persons concerned (Case 316/82 Kohler v Court of Auditors[1984] ECR 641, paragraphs 8 to 13).

85.

    Finally, the fact that the appointing authority subsequently adopted and informedthe applicant of the decision of the President of the Court of 4 December 1996cannot alter the fact that the decision of 17 October 1996 is an act having adverseeffect. The communication of the decision of 4 December 1996 is an actsubsequent to the decision of the President of the Court of 17 October 1996already adopted and having prior existence (Case T-113/95 Mancini v Commission[1996] ECR-SC I-A-185 and II-543).

86.

    As regards, second, the claim that the decision of 17 October 1996 constituted onlya preparatory act, it is sufficient to note that it states the clear, unconditional anddefinitive refusal by the competent authority to grant the request forcommencement of the procedure for establishment of the applicant, which wassubmitted by Judge Murray in accordance with the procedure laid down in the 1976Decision. It follows that the negative response of the President of the Court of 17October 1996 to Judge Murray's request cannot in any case be regarded as a purelyinternal measure in an exchange of correspondence within the institution but isindeed in the nature of a decision.

87.

    It follows from the foregoing that the application in Case T-221/97 is admissible inso far as it concerns the application for annulment of both the decision of thePresident of the Court of 17 October 1996 and the decision of the President of theCourt of 4 December 1996.

Substance

88.

    Since the two actions are admissible and, as the parties agree, concern decisionsconcerning the same substantive issue, the Court will first consider the legality ofthe very first decision, namely that of the Administrative Committee of 14 June1995.

89.

    The applicant puts forward five pleas in support of his application against thatdecision. The first alleges breach of Article 25 of the Staff Regulations; the secondalleges breach of the principle of equal treatment; the third alleges breach of theprinciple of the protection of legitimate expectations; the fourth alleges breach ofthe prohibition of retroactive withdrawal of a legal measure which has conferredindividual rights; and the fifth alleges that the applicant's legitimate rights andinterests were not taken into account.

90.

    The Court considers that, in the present case, it is appropriate to start byconsidering the plea of breach of the principle of the protection of legitimateexpectations.

Breach of the principle of the protection of legitimate expectations

91.

    The applicant, referring to the settled case-law on the principle of the protectionof legitimate expectations, submits that unequivocal representations were made tohim by a Member of the Court and by members of staff acting in the course oftheir duties as to his prospects of becoming a permanent official and it was on thebasis of those representations that he accepted the post and disrupted his personallife and changed his professional career.

92.

    Whilst taking note, in the reply, that the content of those representations is notdisputed by the defendant, the applicant claims that both the source and the natureof those representations had led him to expect that the procedure leading to hisestablishment as a permanent official would be applied. Contrary to the situationin Vlachou v Court of Auditors (Case 162/84 [1986] ECR 481, paragraphs 5 and 6),where the Court held that the promises of establishment made to the applicantcould not create any legitimate expectation since they did not take account of thecompetition procedure, which is the only means of acceding to an official's post inthe institutions, the representations made in the present case were in conformitywith Article 29(1) of the Staff Regulations, since according to them an internalcompetition procedure would be commenced which would lead to the applicant'sestablishment as a permanent official. Second, those representations were basedupon a correct interpretation of the practice applied by the Court in relation to therecruitment and establishment of drivers.

93.

    The applicant considers that, since he satisfied the conditions for recruitment andestablishment as provided for by the Court's practice, he is not relying uponunlawful acts committed by the Court in favour of others and that theAdministrative Committee's decision of 14 June 1995 should be annulled on theground that it breaches the principle of the protection of legitimate expectations.

94.

    As far as the question of legality of the 1976 Decision is concerned and the bearingwhich that question has on the question whether the decision of 14 June 1995 waswell founded, the applicant puts forward five arguments.

95.

    First, the applicant reminds the Court that it is established case-law that, inprinciple, acts of the institutions are presumed to be lawful and accordingly producelegal effects, even if they are tainted by irregularities, until such time as they areannulled or withdrawn (Joined Cases 7/56, 3/57 to 7/57 Algera v Common Assembly[1957-1958] ECR 39, more specifically, p. 61; Case C-137/92 P Commission v BASFand Others [1994] ECR I-2555, paragraph 48). The defendant has not proved that

the 1976 Decision amounted to a misuse of powers, that is to say that it was takenwith the exclusive purpose, or at any rate main purpose, of achieving an end otherthan that stated or evading a procedure specifically prescribed by the Treaty fordealing with the circumstances of the case (Case C-331/88 The Queen v Ministry ofAgriculture, ex parte Fedesa and Others [1990] ECR I-4023, paragraph 24).

96.

    Second, even if the holding of internal competitions on the basis of the 1976Decision was contrary to the Staff Regulations, there is nothing to prevent thedefendant from organising any future competition under the 1976 Decision incompliance with the Staff Regulations.

97.

    Third, the applicant claims that, if the 1976 Decision was illegal, the defendant canrevoke an illegal decision retroactively only where proper consideration is given tothe principle of legal certainty (Case 111/63 Lemmerz Werke v High Authority [1965]ECR 677). The Administrative Committee did not take account of the applicant'scircumstances when it adopted the contested decision of 14 June 1995.

98.

    Fourth, the defendant cannot invoke in these proceedings irregularities which arethe consequence of its own conduct (Case 90/71 Bernardi v Parliament [1972] ECR603, paragraph 10). Since the defendant never questioned the validity of the 1976Decision prior to submission of its defence, the applicant is not seeking the benefitof an illegal act but merely the application to his particular circumstances of adecision upon which he was legally entitled to rely.

99.

    Fifth, if the invalidity of the 1976 Decision was, as the defendant asserts, so plain,that decision was void ab initio, or even non-existent, and all the appointmentsestablishing drivers assigned to Chambers of Members of the Court made underthe authority of that decision are null and void (Commission v BASF and Others,cited at paragraph 95 above, paragraph 49; Case T-156/89 Valverde Mordt v Courtof Justice [1991] ECR II-407, paragraph 84).

100.

    The defendant claims, first, that the letter from the Deputy Registrar, Mr Cranfield,dated 22 April 1992 cannot be regarded as comprising a 'precise assurance‘ withinthe meaning of the case-law (Case T-123/89 Chomel v Commission [1990] ECR II-131, paragraph 25) because, on the one hand, the letter was not addressed to theapplicant but to a third party, the Secretary of the Department of Defense and, onthe other, because it was hedged about with important restrictions.

101.

    Second, the defendant does not dispute that Judge Murray, Ms Mixture and theDeputy Registrar gave the applicant oral assurances such as to lead him to believethat the procedure for the establishment of drivers under the 1976 Decision wouldbe applied to him, but contends that such oral assurances cannot give rise tolegitimate expectations. It reminds the Court that promises which do not takeaccount of the provisions of the Staff Regulations cannot give rise to legitimateexpectations on the part of the person concerned (Chomel v Commission, cited atparagraph 100 above; Case T-20/91 Holtbecker v Commission [1992] ECR II-2599;

Case T-534/93 Grynberg and Hall v Commission [1994] ECR-SC I-A-183 andII-595).

102.

    Third, the defendant argues that the procedure for the establishment of driversprovided for by the 1976 Decision constituted a misuse of powers since thesuccessful candidate in the internal competition was designated in advance. Thedefendant points out that, according to the case-law of the Court (Case 105/75Giuffrida v Council [1976] ECR 1395; Case 142/85 Schweiring v Court of Auditors[1986] ECR 3177), a competition organised by the appointing authority for the solepurpose of remedying the anomalous administrative status of a specific official andof appointing that official to the post declared vacant is contrary to the aims of anyrecruitment procedure and thus constitutes a misuse of powers. The defendantpoints out that the applicant is demanding that it organise a competition in whichhe is guaranteed in advance of being the successful candidate. It is not bound byany rule of law to perform such an unlawful act.

103.

    Finally, the defendant contends that the case-law concerning the withdrawal ofillegal administrative acts relied on by the applicant and, in particular, the judgmentin Case C-90/95 P De Compte v Parliament [1997] ECR I-1999, paragraph 35)relates only to acts addressed to the person concerned, whilst the 1976 Decision isa general measure for the organisation of the Court's services and not an individualact conferring rights on the applicant and, moreover, was never addressed to theapplicant.

Findings of the Court

104.

    The principle that legitimate expectations should be respected is one of thefundamental principles of the Community (Case 112/80 Dürbeck [1981] ECR 1095,paragraph 48). According to settled case-law, the right to rely on this principle extends to any individual who is in a situation in which it is clear that theCommunity administration has, by giving him precise assurances, led him toentertain reasonable expectations (Case T-3/92 Latham v Commission [1994]ECR-SC II-83, paragraph 58; Grynberg and Hall v Commission, cited at paragraph101 above, paragraph 51; Case T-235/94 Galtieri v Parliament [1996] ECR-SCI-A-43 and II-129, paragraph 63; Case T-207/95 Maria de los Angeles Ibarra Gil vCommission [1997] ECR-SC I-A-13 and II-31, paragraph 25; Case T-211/95 Petit-Laurent v Commission [1997] ECR-SC I-A-21 and II-57, paragraph 72; Chomel vCommission, cited at paragraph 100 above, paragraph 26; Case T-498/93Dornonville de la Cour v Commission [1994] ECR-SC II-813, paragraph 46; CaseT-35/96 Lars Bo Rasmussen v Commission [1997] ECR-SC I-A-61 and II-87,paragraph 63).

105.

    It is therefore necessary to consider whether the administration gave the applicantprecise assurances and, if so, whether they led him to entertain reasonableexpectations.

106.

    As to the question whether the applicant did receive precise assurances, it issufficient to observe, without there being any need to consider whether theRegistrar's letter of 22 April 1992 is capable of providing proof of such assurances,that the defendant expressly stated that it does not dispute the applicant'scontentions concerning the information given to him, before his entry into service,with a view to his entry into service. In particular, Judge Murray informed him thathe would become an established official after three years' service provided that hehimself proposed it and Mr Cranfield, the Deputy Registrar, confirmed to him thatany change in the practice laid down in the 1976 Decision would apply only tothose drivers who entered into service after that time and that the procedureleading to his establishment would commence in the autumn of 1994. Similarly, thedefendant has not disputed the applicant's assertion that Judge Murray told himin July 1994 that the Registrar had assured him that his establishment as apermanent official would proceed in due course.

107.

    Since that information was precise, unconditional and consistent and came fromauthorised and reliable sources, it follows that the administration gave the applicantprecise assurances. The fact that the information was given orally, rather than inwriting, cannot alter this finding.

108.

    Next, it is necessary to consider whether those assurances could have given rise toreasonable expectations within the meaning of the aforementioned case-law.

109.

    According to settled case-law, even if an official receives incorrect confirmationfrom the administration of the entitlement he is claiming, such an undertakingcannot create a legitimate expectation, since no official of a Community institutioncan give a valid undertaking not to apply Community law (Chomel v Commission,cited at paragraph 100 above, paragraph 28). It is also clear from that case-lawthat promises which do not take account of provisions of the Staff Regulationscannot give rise to a legitimate expectation on the part of the person concerned(Vlachou v Court of Auditors, cited at paragraph 92 above, Chomel v Commission,cited at paragraph 100 above, paragraph 30).

110.

    In the present case, the expectation which the applicant is asking to be respectedis not based on an undertaking by the administration not to apply Community lawbut arises from the precise assurances which were given to him that theestablishment procedure laid down in the 1976 Decision would be applied to himprovided that the Member of the Court proposed that it be done.

111.

    The defendant submits, however, that those assurances could not give rise toreasonable expectations on the ground that the decision of 30 June 1976 is clearly

unlawful in so far as it provides for the holding of an internal competition in whichthe successful candidate is designated in advance.

112.

    It maintains that choosing the successful candidate in a competition in advanceconstitutes a misuse of power. The holding of such a competition is contrary to theStaff Regulations and to the principle of equal treatment.

113.

    It is therefore necessary to consider whether the 1976 Decision is clearly unlawfulin so far as it constitutes a misuse of power.

114.

    Point 2 of the 1976 Decision provides: '(a) The establishment procedure may becommenced after three years' service on a proposal from the Member to whom thedriver is assigned. (b) After an internal competition, drivers shall be appointedprobationary officials in career bracket D 3 — D 2 ...‘

115.

    Contrary to the defendant's assertion, the 1976 Decision does not therefore providefor the holding of a sham competition in which the successful candidate isdesignated in advance, but lays down a condition for participation in an internalcompetition for drivers, namely completion of three years' service to the satisfactionof the Member concerned and a proposal by the latter that the establishmentprocedure be commenced. The 1976 Decision does not provide that the driver, amember of the temporary staff, taking part in such an internal competition willnecessarily be established. Likewise, the 1976 Decision does not provide that onlyone candidate may be permitted to participate in the internal competition in whichthere will automatically be a successful candidate. Furthermore, the decision doesnot prevent the Court from periodically holding an internal competition for driversin which drivers having already completed three years' service to the satisfactionof the Member to whom they are assigned may participate and in which thenumber of successful candidates need not necessarily be the same as the numberof candidates. The 1976 Decision merely lays down certain conditions forparticipation in an internal competition for drivers, but does not prevent the Courtfrom organising that competition in accordance with the Staff Regulations and thegeneral principles relating to the Community civil service.

116.

    It follows that the establishment procedure provided for in the 1976 Decision is notclearly contrary to the Staff Regulations. The precise assurances given to theapplicant could therefore have led the applicant to entertain reasonableexpectations as regards the possibility of participating in an internal competition.

117.

    In any event, even if the 1976 Decision were unlawful, the assurances given to theapplicant were by nature such as to lead him to entertain reasonable expectations.

118.

    First, it is to be remembered in this regard that, according to settled case-law, actsof the Community institutions are, in principle, presumed to be lawful andaccordingly produce legal effects, even if they are tainted by irregularities, until

such time as they are annulled or withdrawn (Commission v BASF and Others, citedat paragraph 95 above, paragraph 48).

119.

    In the present case, it is not disputed that on the day when the contested decisionwas adopted the 1976 Decision had not been annulled nor been the subject of anyproceedings for a declaration that it was unlawful. As the applicant points out, itwas in fact only in its defence that the defendant submitted for the first time thatthe 1976 Decision was clearly unlawful. Moreover, it is apparent from thedocuments before the Court, in particular point 3 of Mr Pommiès' memorandumof 9 June 1994 to the Registrar of the Court and page 2 of the Registrar'smemorandum to Judge Murray of 7 March 1995, that it was in order to preservethe freedom of Members to choose their close collaborators, and not in order toabolish rules purported to be clearly unlawful, that the defendant accepted theproposal to ask the budgetary authority to regroup, in the temporary posts, thedrivers' posts in Category D.

120.

    Second, it follows from settled case-law that 'while it must be acknowledged thatany Community institution which finds that a measure which it has just adopted istainted by illegality has the right to withdraw it within a reasonable period, withretroactive effect, that right may be restricted by the need to fulfil the legitimateexpectations of a beneficiary of the measure, who has been led to rely on thelawfulness thereof (de Compte v Parliament, cited at paragraph 103 above,paragraph 35; Case 14/81 Alpha Steel v Commission [1982] ECR 749, paragraphs10 to 12; Case 15/85 Consorzio Cooperative d'Abruzzo v Commission [1987] ECR1005, paragraphs 12 to 17).

121.

    Contrary to the defendant's assertion, it follows from the case-law that thatprinciple may not only be relied upon by a person to whom an individualadministrative measure is addressed, but may also apply in respect of a generalmeasure (see, in particular, Case C-248/89 Cargill v Commission [1991] ECR I-2987,paragraph 20; Case C-365/89 Cargill [1991] ECR I-3045, paragraph 18; Case 120/86Mulder v Ministre de l'Agriculture et de la Pêche [1988] ECR 2321; Case 84/78Tomadini v Administrazione delle finanze dello Stato [1979] ECR 1801; Case 224/82Meiko-Konservenfabrik v Germany [1983] ECR 2539).

122.

    In the present case, it is not disputed that precise assurances were given to theapplicant by reliable sources within the institution, namely a Member of the Courtand the Deputy Registrar, and that those assurances were not based on a clearmisreading of the rules of law applicable but were, on the contrary, based on therules in force, namely the 1976 Decision which, on the one hand, had been adoptedand consistently applied for almost 20 years by the members of the highestCommunity court and, on the other, provided for the possibility of establishmentafter an internal competition, in accordance with Article 29(1) of the StaffRegulations. In those circumstances, it cannot be argued that the 1976 Decisionwas so tainted with illegality that the applicant, a member of the temporary staffin Category D, should have known that he could not rely upon it.

123.

    It follows from the foregoing that the precise assurances given to the applicantcould have led him to entertain reasonable expectations as to the possibility of hisparticipating in an internal competition in accordance with the establishmentprocedure provided for by the 1976 Decision. It must also be observed that theproposal for the repeal of the 1976 rules, dated February 1993, expressly providedthat, as a transitional measure, the driver who was recruited on 16 May 1992 underthe 1976 Decision, namely the applicant, could remain subject to the provisions ofthat decision and go through an establishment procedure after three years' service,on a proposal from the Member concerned.

124.

    It follows that the plea of failure to protect legitimate expectations is well foundedand that the Administrative Committee's decision of 14 June 1995 must beannulled.

125.

    In the present case, however, the Court considers it appropriate to examine alsothe plea of breach of the principle of equal treatment.

The plea of breach of the principle of equal treatment

Arguments of the parties

126.

    The applicant submits that, since 16 May 1995, he has satisfied the conditions forrecruitment and establishment as a Member's driver. He claims that theAdministrative Committee's decision of 14 June 1995 therefore contravenes theprinciple of equal treatment since it amounts to a refusal to apply an establishedprocedure for his benefit in circumstances where that procedure had beensystematically applied to other persons in identical circumstances, without anyjustification being given for that difference in treatment.

127.

    The defendant maintains that the procedure for the establishment of drivers laiddown by the 1976 Decision constituted a misuse of power, since the successfulcandidate in the internal competition was designated in advance. Referring to thecase-law according to which no one may plead in his own cause an unlawful actcommitted in favour of another (Case 134/84 Williams v Court of Auditors [1985]ECR 2225; Case T-30/90 Zoder v Parliament [1991] ECR II-207), the defendantcontends that the applicant may not, in the name of the principle of equality oftreatment, rely on the fact that other drivers benefited from competitions vitiatedby a misuse of power. In its view, the plea of breach of the principle of equaltreatment is therefore unfounded.

128.

    The applicant submits that the defendant's argument that no one may plead in hisown cause an unlawful act committed in favour of another is not relevant since the1976 Decision is lawful.

Findings of the Court

129.

    According to settled case-law, the principle of equal treatment is breached wheretwo categories of person whose legal and factual circumstances disclose no essentialdifference are treated differently (Case T-211/95 Petit-Laurent v Commission [1997]ECR-SC II-57, paragraph 56).

130.

    As was found in the examination of the previous plea, the defendant has not putforward any arguments or evidence enabling the Court to conclude that the 1976Decision was unlawful. In relying on the fact that all the drivers who weremembers of the temporary staff have been established in accordance with the 1976Decision, the applicant is not therefore basing his case on an unlawful actcommitted in favour of another.

131.

    In order to determine whether the refusal to commence the procedure for theestablishment of the applicant constitutes a breach of the principle of non-discrimination, it is necessary to consider whether the factual and legalcircumstances of the applicant were actually the same as those of the drivers whohad been established previously.

132.

    It is apparent from the documents before the Court that all the drivers who wereestablished before the applicant on the basis of the 1976 Decision were establishedbefore 11 July 1994. In so far as the defendant purportedly repealed the 1976Decision on 11 July 1994 in order to replace it with new rules, it is necessary todetermine whether the applicant's circumstances are comparable to those of thedrivers who had the possibility of taking part in a competition under the 1976Decision.

133.

    It is therefore necessary to consider whether the Court validly adopted on 11 July1994 a decision repealing the 1976 Decision.

134.

    The decision of 11 July 1994, which appears at point 8 of the minutes of theCourt's administrative meeting of 11 July 1994, states, under the heading '8. Budget— lettre rectificative ”l'élargissement” à l'état prévisionnel 1995‘ [Budget —amendment to the estimate for 1995 (enlargement)] : 'La Cour adopte l'étatprévisionnel 1995 amendé incorporant les demandes budgétaires liées àl'élargissement ...‘ [The Court adopts the amended estimate for 1995 incorporatingthe budgetary requests relating to enlargement ...] 'La Cour approuve égalementla proposition de demander à l'autorité budgétaire une modification du tableau deseffectifs consistant à regrouper dans les emplois temporaires, avec les emplois deréférendaires, l'ensemble des emplois affectés aux cabinets des membres, c'est-à-dire les emplois B et C du personnel de secrétariat et les emplois D des chauffeurs...‘ [The Court also approves the proposal to ask the budgetary authority for amodification of the Court's list of posts consisting of regrouping in the temporaryposts, along with the legal secretaries' posts all of the posts assigned to the

Chambers of the Members of the Court, that is to say the secretarial posts inCategories B and C and the drivers' posts in Category D ...].

135.

    Without it being necessary to consider whether, as the defendant submits, therepeal of the establishment procedure laid down in the 1976 Decision is merely ageneral measure of the services of the Court which does not require approval bythe budgetary authority, it is sufficient to point out that, in the present case, theCourt has not adopted any such decision. As is apparent from the very wordingof the decision of 11 July 1994, the defendant did not decide to repeal the 1976Decision and thenceforth modify the system of recruitment and establishment ofdrivers, but merely asked the budgetary authority for a modification of its list ofposts. Furthermore, as the defendant has pointed out, that request had still notbeen approved by the budgetary authority when the contested decision was adoptedbut was only approved when the 1998 budget was adopted. The Court observesthat the documents annexed by the defendant to its defence also corroborate thatview. Mr Pommiès states expressly in his memorandum of 6 June 1995 that thematter of the proposal for repealing the 1976 Decision, which was put to themeeting of the Administrative Committee on 15 February 1993, had been deferredto a subsequent meeting but that it had not been re-entered on the agenda andthat 'les modalités de recrutement et de nomination des chauffeurs de membressont actuellement régies par une décision prise par la Cour lors de sa réunionadministrative du 30 juin 1976‘ [The detailed rules for the recruitment andappointment of drivers of Members of the Court are currently governed by adecision adopted by the Court at its administrative meeting of 30 June 1976]. Inview of all the foregoing, it follows that, on the day on which the contested decisionwas adopted, the 1976 decision had not been validly repealed.

136.

    Furthermore, in order validly to repeal the 1976 Decision, the Court should haveobserved the administrative law principle of following the same procedures. The1976 Decision had been adopted after consultation of the Staff Committee, inaccordance with Article 2 of the decision of 31 October 1974 on the establishmentof a Staff Committee, but the latter was not consulted before the adoption of thedecision of 11 July 1994.

137.

    It follows from the foregoing that, at least on the day on which the contesteddecision was adopted, the decision of 11 July 1994 had not had the effect, or eventhe implicit effect, of validly repealing the 1976 Decision.

138.

    It follows that, at the time when the contested decision was adopted, the applicantwas in a situation comparable to the situation of drivers previously admitted to acompetition held under the 1976 Decision. Accordingly, it must be held that MrMellett suffered discrimination.

139.

    The plea of breach of the principle of equal treatment is therefore well founded,too.

140.

    It follows from all the foregoing that the decision of the Administrative Committeeof the Court of 14 June 1995 must be annulled. It is therefore not necessary toconsider the other pleas raised by the applicant.

141.

    Finally, the Court notes that in Case T-221/97 the applicant has raised the samepleas in relation to the two decisions of the President of the Court of 17 October1996 and 4 December 1996 and that those decisions are affected by the same flawsas the decision of 14 June 1995. It follows that, on the same grounds, the twodecisions of the President of the Court of 17 October 1996 and 4 December 1996must also be annulled in so far as they refuse to allow the establishment procedureprovided for in the 1976 Decision to be commenced for the applicant.

Costs

142.

    Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to beordered to pay the costs, if they have been asked for in the successful party'spleadings. Since the Court of Justice has been unsuccessful and since the applicanthas asked for costs to be awarded against it, the Court of Justice must be orderedto pay the costs.

On those grounds,

THE COURT OF FIRST INSTANCE (Fifth Chamber)

hereby:

1.    Joins Cases T-66/96 and T-221/97 for the purposes of the judgment;

2.    Annuls the decision of 14 June 1995 of the Administrative Committee ofthe Court of Justice, as it is apparent from point 4 of the minutes, and thedecisions of the President of the Court of Justice of 17 October 1996 and4 December 1996 not to commence the procedure which could have led tothe establishment of the applicant as a permanent official;

3.    Orders the Court of Justice to pay the costs in Case T-66/96 and in CaseT-221/97.

Azizi García-Valdecasas Jaeger

Delivered in open court in Luxembourg on 21 July 1998.

H. Jung

J. Azizi

Registrar

President

1: Language of the case: English.

ECR-SC