Judgment — ECLI:EU:T:2001:8
Date: 2001-01-16
Language of the case: French
Court formation: Fifth Chamber
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Concepts: Choice of procedure;Recruitment other than by competition;Plea alleging misuse of powers
Procedure: Staff cases - unfounded;Action for damages - unfounded

SUMMARY — JOINED CASES T-97/99 AND T-99/99 
Summary 
1. Officials - Recruitment - Procedures - Transition from the procedure under 
Article 29(1) of the Staff Regulations to the procedure under Article 29(2) -
Whether permissible - Discretion of the appointing authority to widen its field of 
choice 
(Staff Regulations, Art. 29) 
2. Officials - Vacant posts - Consideration of candidates'comparative merits -
Discretion of the administration - Review by the Court - Limits - Grade A 1 post 
- Selection from among candidates - Selection based on the interests of the service 
(Staff Regulations, Art. 29) 
3. Officials - Actions - Pleas in law - Misuse of powers - Definition 
1. The use of the term 'whether' in Article 29 of the Staff Regulations clearly 
indicates that the appointing authority is not bound absolutely to adopt the measures 
therein mentioned, including promotion or transfer within the institution, but merely 
to consider in each case whether they are capable of resulting in the appointment of 
a person of the highest standard of ability, efficiency and integrity. The appointing 
authority is therefore not bound to follow, in the order indicated, the various stages 
of procedure set out in Article 29(1) of the Staff Regulations. 
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CHAMIER AND O'HANNRACHAIN v PARLIAMENT 
It may also move on from a recruitment procedure initiated on the basis of 
Article 29(1) of the Staff Regulations to a procedure under Article 29(2) since it is 
not obliged to carry though a recruitment procedure once it has been initiated but 
possesses discretionary power to extend its field of choice in the interests of the 
service. 
A decision to have recourse to the procedure under Article 29(2) of the Staff 
Regulations made during the course of a recruitment procedure which has already 
been initiated need not necessarily be taken when the vacancy notice is published 
and is not subject to any condition as to publication. 
(see paras 33-36) 
See: 81/74 to 88/74 Marenco v Commission [1975] ECR 1247, paras. 21 and 23; 289/81 
Mavridis v Parliament [1983] ECR 1731, para. 23; C-331 /87 Exorchos v Parliament 
[1989] ECR 4185; T-38/89 Hochbaum v Commission [1990] ECR II-43, para. 15; 
T-18/92 and T-68/92 Coussios v Commission [1994] ECR-SC I-A-47 and II-171, para. 
98; T-586/93 Kotzonis v ESC [1995] ECR II-665, paras 43 and 44; T-118/95 Anacoreta 
Correia v Commission [1996] ECR-SC l-A-283 and II-835, para. 34 
2. As regards recruitment to fill a Grade A 1 post, when comparing the merits of 
candidates for such a post which entails great responsibilities and in assessing the 
interests of the service, the appointing authority has a wide discretion. That 
assessment may be called in question only if it is vitiated by a manifest error. In 
addition, it may lawfully prefer one qualified candidate over another qualified 
candidate for reasons which take account of the interests of the service. 
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SUMMARY — JOINED CASES T-97/99 AND T-99/99 
In that regard, the review to be carried out by the Court does not imply that it is 
entitled to undertake independently a comparison of the merits of the candidates, and 
still less that it is entitled to substitute its own assessment of those merits for that 
of the appointing authority. The Court thus verifies whether, in the light of the 
qualifications required by the vacancy notice, the administration, in adopting the 
decision to appoint one candidate rather than another, has remained within 
reasonable bounds and has not used its power in a manifestly incorrect way. 
(see paras 77-79) 
See: Kotzonis v ESC, cited above, para. 81; Anacoreta Correia v Commission, cited 
above, para. 75 
3. The concept of misuse of powers has a precise scope which refers to the use of 
its powers by an administrative authority for a purpose other than that for which 
they were conferred upon it. A decision is vitiated by misuse of powers only if it 
appears on the basis of objective, relevant and consistent evidence to have been 
taken with the purpose of achieving an end other than that stated. 
In that regard, a statement by the Vice-President of the Parliament, from which it 
is apparent that the President of the Parliament wished to appoint the person 
concerned to a high-ranking post and to that end intended to orchestrate political 
negotiations within the Bureau, does not constitute evidence that the decision to 
appoint a particular candidate to the post at issue had been taken by the Bureau of 
the Parliament before the procedure under Article 29(2) of the Staff Regulations was 
initiated, since that statement does not establish that the President's words were 
acted upon or therefore that those negotiations actually took place within the Bureau. 
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CHAMIER AND O'HANNRACHAIN v PARLIAMENT 
Nor does a statement in which a Quaestor of the Parliament merely reports 
comments which were made to him by Members of the Parliament and which he 
took as a basis for considering that the decision to appoint the person concerned had 
been taken prior to the meetings of Bureau, following which the person concerned 
was appointed to the post at issue, constitute evidence to that effect. That statement, 
which contains a factual account of what had been reported to the Quaestor in 
question before those meetings of the Bureau and confirmation of his participation 
in those meetings, does not demonstrate that the appointment procedure followed by 
the Bureau was invalidated or that the members of the Bureau had agreed 
beforehand on the appointment of the person concerned. Hearsay relating to the 
conduct of the procedure is not sufficient to demonstrate that the Bureau had 
decided, before the procedure under Article 29(2) of the Staff Regulations was 
initiated, to appoint the person concerned, since an examination of the merits of all 
the candidates for the post was in fact carried out by the Bureau. 
(see paras 104, 109, 111-112) 
See: Anacoreta Correia v Commission, cited above, para. 25; T-112/96 and T-115/96 
Séché v Commission [1999] ECR-SC I-A-115 and II-623, para. 139 
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