Opinion of the Advocate General — ECLI:EU:C:1998:622
Date: 1998-12-17
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Procedure: Staff cases - successful;Appeal - successful

summary published in the Official Journal of the European Communities, (22) and the Court cannot be prevented from granting the appropriate order in a case such as the present by the fact that an interested third party did not so intervene, (23) but, instead, relied upon the appointing institution to safeguard his rights adequately. (24) 30. In the light of the foregoing, I am of the opinion that the judgment of the Court of First Instance, in so far as it rejects the complaint of the appellant concerning the modification by the European Parliament of the conditions for appointment to post III/A/2743, Head of Division at the Information Office in Madrid, in Notice of Internal Competition A/88, should be quashed and that the decisions appointing the successful candidate to that post and rejecting the candidature of the appellant should be annulled. The second ground of appeal 31. This ground of appeal consists of a criticism of the Court of First Instance for its rejection of the appellant's complaint of a violation of the Notice of Competition by way of discriminatory conduct by the selection board of the language tests. In essence, that Court considered that this complaint had been advanced for the first time at the oral hearing. A brief review of the history of this complaint is thus necessary. It is important to recall that the outcome of the language tests appears to have played a crucial, possibly decisive, role in the ultimate choice of Mr X in preference to the appellant. As the appellant seems to have known from the outset, at the end of the tests only one point separated these two candidates and this difference was attributable to the language tests, where Mr X obtained five points and the appellant four. The Director-General recommended the appellant on the basis of his superior experience in public relations. The Secretary-General, noting, however, that the choice was extremely difficult, recommended adherence to the conclusions of the selection board, which resulted in the decision of the appointing authority in favour of Mr X. 32. In his application, as in his original complaint, the appellant maintained that, since the conditions of admission to the competition envisaged only that candidates 'have complete command of Spanish and a very good knowledge of another language of the European Union‘, the selection board violated these conditions by taking into account knowledge of a third and fourth language. In a sentence which is crucial to this issue, he went on to say that the selection board accorded discriminatory treatment to those candidates, including the plaintiff, 'who, legitimately, did not pay particular attention to the specific questions which might have been put to them by the selection board in a third or fourth language‘. 33. The first point to make about the complaint as thus formulated is that, as pointed out by the European Parliament in its defence, and upheld by the Court of First Instance, the Notice of Competition, paragraph III.B.2.c, provided for 'conversation with the selection board to enable it to assess the candidates' knowledge of languages other than their main language‘. The Court of First Instance thus held that the selection board had not gone outside the framework of the Notice of Competition in assessing candidates' knowledge of a third or fourth language. This finding has not been challenged on the appeal. It remains to consider the appellant's claim of discrimination in that Mr X was treated more favourably by being questioned in other languages, whereas the appellant was not. The first problem relates to the formulation of the discrimination claim as summarised in the preceding paragraph. 34. At the time of his application to the Court of First Instance, the appellant was necessarily aware, as the European Parliament has pointed out, of the facts of his own interviews by the selection board and, in particular, whether he was questioned in a third or fourth language. He was also aware and alleged in the application that the single point which separated Mr X from him arose from the language tests. He limited himself, however, to claiming the legitimate right to pay no particular attention to such questions. This is quite different from his current claim that he was not, himself, so questioned. In my view, the allegation made in the application was not independent of his then current, though incorrect, claim that third or fourth languages could not be considered. In view of the central role played by the language tests, I would have been sympathetic to the appellant on this issue, if he had made his position clear. However, the allegation made in the application is at best ambiguous. If anything, it implies that he was questioned in a third or fourth language, but that, for claimed legitimate reasons, he was unprepared. In the context, there can be no reasonable excuse for his failure to state, if it be the case, that he was not so questioned. 35. In his reply in the proceedings before the Court of First Instance, the appellant continued to insist that questioning in a third or fourth language was precluded and that paragraph III.B.2.c of the Notice meant only that a language other than Spanish would be taken into account. He went on, however, to claim, 'in the alternative‘, that he would probably have obtained more points in thelanguage tests 'if he had been questioned in the same manner as [Mr X] on his knowledge of a third or fourth language - quod non‘. He did not clarify whether he was now claiming that he had not been questioned at all in a third or fourth language. Again his allegation was ambiguous, where there was no justification for ambiguity. 36. Prior to the oral hearing, the Court of First Instance requested the production by the European Parliament of certain documents. Among these was the report of the selection board and a table in an Annex (No 5) thereto showing the points received by the candidates in the tests. The appellant relied on this document at the hearing (see paragraph 62 of the judgment) to support his case of unequal treatment. Mr X received three points for Italian and one each for French and English, whereas the appellant received three points for French and one for English. He relied on the fact that the relevant box contained only a dash to show that he was not questioned in other languages, viz. Italian and Portuguese, of which he had claimed knowledge in his application. 37. The Court of First Instance ruled that the appellant's argument that the selection board had not questioned the candidates on their knowledge of all the languages mentioned in their applications for the post had been raised for the first time at the oral hearing, but did not treat the argument as inadmissible on this account (paragraphs 70 and 71). Rather it considered (paragraph 72) that the claims of irregularity in the language tests were 'unsubstantiated and were not sufficient to establish that the selection board failed to test his knowledge of all the languages of which he claimed to have knowledge in his application‘. 38. The claim of the appellant at this stage is that the Court of First Instance was wrong in holding that he had advanced this claim for the first time at the oral hearing. He states for the first time explicitly that he was not questioned in a third or fourth language. I would dismiss this ground of appeal. Firstly, the Court of First Instance had the opportunity to hear the arguments and assertions of the parties at the oral hearing regarding the interpretation to be given to the table in Annex 5. This is an assessment of fact which cannot be reviewed on appeal. In reaching its conclusion, it was entitled to take into account the history of the appellant's pleadings and in particular the fact that the complaint had not been made in the original application. Secondly, in holding that the matter was introduced for the first time at the oral hearing, the Court of First Instance overlooked the reference in the reply to alleged different treatment vis-à-vis Mr X. However, the allegation there made was, as I have said, ambiguous. In any event, it was already inadmissible for failure to make it in the application. Thirdly, the references to a third and fourth language made by the appellant consistently prior to the hearing involved counting Spanish as the first. It transpires from Annex 5 that the appellant was indeed awarded a mark in English and was thus, presumably, questioned in that language. The inconsistency of his position highlights the difficulty confronting the Court of First Instance in reaching a conclusion on thefacts. It is not the function of this Court to make findings in the absence of manifest error in the contested judgment. In my view, on this issue, there is none. The third and fourth grounds of appeal 39. The appellant argued in his application to the Court of First Instance that it was normal practice for the appointing authority to act in accordance with the recommendation of the Director-General of the Directorate-General for Information, and that the appointing authority should not have departed from it without furnishing special reasons for having done so. Even though the European Parliament did not deny the existence of such a practice, the Court of First Instance stated that neither the Staff Regulations nor any other measure required that the appointing authority request, let alone follow, the advice of the relevant Director-General (paragraph 76). Article 30 of the Staff Regulations gave the appointing authority the right to decide amongst those on the list of suitable candidates drawn up by the selection board. If the appointing authority could decide to depart from the selection board's order of preference, he could, a fortiori, do so in respect of a purely consultative recommendation, not provided for in the Staff Regulations, which was provided after the selection board's list had been drawn up (paragraph 77). 40. The appellant submits, as the third ground of his appeal, that the general practice of following the advice of the relevant Director-General has the character of 'an internal directive, by which the administration imposes on itself indicative rules of conduct from which it may not depart without specifying the reasons which led it to do so‘. (25) 41. The fourth ground of appeal relates to the appellant's more general argument before the Court of First Instance regarding breach of the requirement that grounds be given for any decision adversely affecting an official, pursuant to Article 25, second indent, of the Staff Regulations. The Court of First Instance observed that the appointing authority is obliged to give reasons when he rejects a complaint by a candidate against a decision not to appoint him to a post. (26) The sufficiency of the reasons given had to be judged in the light of concrete circumstances, such as the content of the decision, the reasons cited and theinterest of the addressee in receiving an explanation. (27) The reason given, in the response to the appellant's complaint, for appointing the successful candidate rather than the appellant to the disputed post was the appointing authority's desire to observe the order of preference in the list of suitable candidates prepared by the selection board (paragraph 85). This reasoning appeared to the Court of First Instance to be sufficient. This reasoning was already implicit in the statement, in the letter informing the appellant of the outcome of the competition, that the candidate who had been placed first on the selection board's list would be appointed (paragraph 86). The fact that the appellant was not informed before commencing proceedings that the difference between the marks awarded by the selection board to these two candidates arose from the tests of linguistic ability was not material, as the appointing authority's decision was based simply on their overall scores (paragraph 87). Regarding the recommendation of the Director-General, the Court of First Instance stated that the appointing authority was not obliged to consult him, that the candidates had already been ranked in order of merit by the selection board, and that there could be no additional obligation to give reasons where the appointing authority chose to adhere to the ranking submitted by that body (paragraph 88). 42. The appellant submits, further, in the fourth ground of his appeal, that he should have been informed of the reasons for the selection board's decision to rank him only in second place, and the successful candidate first, in the list of suitable candidates. In particular, he should have been informed of the decisive character of the linguistic tests, in order to enable him to detect the alleged discriminatory treatment regarding his third and fourth languages. (28) He also reiterates his argument regarding the reasons for the departure from the Director-General's recommendation. 43. The European Parliament's response to both grounds of appeal is that the reasons provided for the appointing authority's decision were sufficient, including in circumstances of departure from the Director-General's recommendation. 44. The decision in Pierrat concerned a consultative committee which was not provided for in the Staff Regulations but which was specifically established to assist the appointing authority with appointments, in the absence of any similar statutory body. (29) The position of such committees cannot, in my view, be compared with that of a senior official, such as the relevant Director-General, who was consulted as a matter of course by the appointing authority but who provided advice in the context of a competition for which a selection board had been established underthe Staff Regulations themselves. Where the appointing authority prefers to adhere to the ranking chosen by the selection board, there is, thus, no need to provide any additional justification, beyond the normal statement of reasons, for his failure to accept advice solicited from other sources outside the requirements of the Staff Regulations. 45. More generally, it appears to me that the desire to adhere to the ranking chosen by a competition selection board is a valid and sufficient reason for the appointing authority to appoint one candidate rather than another. It is not the function of the appointing authority to explain how or why the selection board arrived at a particular order of merit, given the independence of the latter body. Regarding the alleged failure of the selection board to adhere to the Notice of Competition in respect of the linguistic tests, the appellant was, as I have already noted above, in a position to verify himself which languages he was tested in and whether this complied with the Notice of Competition. In my view, therefore, both of these grounds of appeal should be rejected. The fifth ground of appeal 46. The appellant submitted to the Court of First Instance that the decision to appoint the successful candidate constituted a violation of the principles of good administration and of the interest of the service, as well as amounting to a manifest error of appreciation. He argued, in particular, that the selection board could not validly have admitted to the competition, and given first place to, a candidate who did not have the requisite qualifications and experience for the post in question, that the linguistic tests should not have been decisive given that they gave rise to a maximum of five marks out of a potential total of 105, and that the Italian language was not indispensable to the post in question. The appointing authority should, instead, have followed the advice of the Director-General of the Directorate-General for Information. 47. The Court of First Instance rejected the argument based on the principle of good administration because there was no suggestion that the selection board was not qualified to assess the candidates for the post at issue. (30) As regards the interest of the service, it said that, in the light of the scope of the discretion which the appointing authority has in evaluating that interest, the review to be undertaken by the Court of First Instance was confined to the question whether the authority remained within the bounds of that discretion and did not exercise it in a manner which was manifestly incorrect. (31) Furthermore, the work of the selection boardwas comparative in nature, was based on the performance of candidates in the competition tests, and could be reviewed by the Community judicature only in the case of a manifest breach of the rules governing its work (paragraph 101). On the facts of the case, having examined the successful candidate's application for the competition and his curriculum vitae, the Court of First Instance concluded that he was not manifestly unqualified to take up the post at issue. The fact that the selection board had given him marks equal to those awarded to the appellant in all tests other than the linguistic tests indicated that he had demonstrated his ability to exercise the functions entailed by the post (paragraph 103). 48. The appellant submits, on appeal, that the Court of First Instance failed to take into account the advice given to the appointing authority by the relevant Director-General, which emphasised, in particular, the experience and proven competence of the appellant and recommended his appointment to the post. However, as the Court of First Instance pointed out, it was not part of its task to substitute its assessment of the candidates for that of the appointing authority (paragraph 99). The Court of First Instance found that there was nothing to indicate that the successful candidate was manifestly unqualified to be appointed to the post at issue. This finding is not undermined by the evidence of the Director-General's high opinion of the appellant. In any event, the Director-General was not a party to the tests administered by the selection board, which were an essential part of the procedure for the assessment of candidates provided for in the Notice of Competition. Therefore, there are no grounds for concluding that the appointing authority failed to observe the principle of the interest of the service, or committed a manifest error of appreciation, in adhering to the ranking set out in the list of suitable candidates prepared by the selection board. I would, therefore, reject this ground of appeal. The sixth ground of appeal 49. The appellant claims that the Court of First Instance erred in law by rejecting his proof of alleged bias in the composition of the selection board. In his application he had claimed that one member of the board, his immediate superior, had made an unfounded accusation of nepotism against him by writing to the Director-General of the Directorate-General for Information to the effect that the appellant had proposed expenditure of Community funds in favour of an association presided over by his brother. The Director-General had shown the letter to the appellant and asked him to explain it. This should, he says, have disqualified the complainant from taking part in the selection board. 50. The European Parliament denied knowledge of the letter. The Court of First Instance held that the appellant had not furnished sufficient proof of its existence (paragraph 109) and dismissed the allegation. 51. I agree with the appellant that his declarations regarding the existence of the letter cannot be set aside because of his inability to produce a document which would, in any event, have been in the possession of the opposing party. None the less, I recommend that this ground be rejected as unfounded, because the allegation of bias has not, in any event, been substantiated. The appellant was, apparently, asked to explain the proposed application of funds to a body associated with a person bearing his family name. The correspondence of names was, apparently, a simple coincidence. The appellant does not suggest that he was unable to furnish this explanation or that it was rejected and is silent as to whether there were any further repercussions for him or whether the complainant exhibited any sign of bias or prejudice against him. In the absence of any claims to the contrary, the natural inference is that his explanation of an understandable misunderstanding was accepted. I would reject this ground of appeal as unfounded because unsubstantiated. Costs 52. The appellant has been successful, in my view, in respect of one of his grounds of appeal. Furthermore, the Court is able to give final judgment on the ground in question and to grant the orders sought, without referring the case back to the Court of First Instance. (32) The Court must, therefore, make a decision as to costs. (33) Equity does not require in the present case that the costs of the proceedings be shared between the parties. (34) Thus, the European Parliament should be ordered to pay all the costs of the proceedings. (35) Conclusion 53. In the light of the foregoing, I recommend that the Court: (1) quash the decision of the Court of First Instance in so far as it relates to the first ground of appeal; (2) annul the decision of 21 February 1995 appointing the Head of Division of the European Parliament Information Office in Madrid and the corresponding decision not to appoint the appellant to the said post; (3) order the European Parliament to pay all the costs of these proceedings, including those of the appellant. 1: Original language: English. 2: - Case T-237/95 Fernando Carbajo Ferrero [1997] ECR-SC II-429, hereinafter 'the contested judgment‘. 3: - The paragraph numbers in brackets in the main text relate to the contested judgment. 4: - Case 44/71 Marcato v Commission [1972] ECR 427 (hereinafter 'Marcato‘), paragraph 14; Case 225/87 Belardinelli and Others v Court of Justice [1989] ECR 2353 (hereinafter 'Belardinelli‘), paragraphs 13 and 14. 5: - Case T-140/94 Gutiérrez v European Parliament [1996] ECR-SC II-689, paragraph 43; Joined Cases 341/85, 251/86, 258/86, 259/86, 262/86, 266/86, 222/87 and 232/87 Van der Stijl and Others v Commission [1989] ECR 511 (hereinafter 'Van der Stijl‘). 6: - Loc. cit. 7: - Loc. cit. 8: - Case C-81/88 Müllers v ESC [1990] ECR I-249. 9: - It is clear from both the remainder of the text and the other language versions of this provision that the singular 'institution‘ is intended. 10: - Case 176/73 Van Belle v Council [1974] ECR 1361, paragraphs 5 and 6. In fact, the recourse to open competitions mentioned at the end of the first sentence of paragraph 1 is a fourth possibility. 11: - This view was espoused by the Court of First Instance in Case T-506/93 Moat v Commission [1995] ECR-SC II-147, paragraph 37. 12: - Case 188/73 [1974] ECR 1099 (hereinafter 'Grassi‘), paragraphs 26 and 38; see also Joined Cases T-178/95 and T-179/95 Picciolo and Calò v Committee of the Regions [1997] ECR-SC II-155 (hereinafter 'Picciolo‘), paragraph 85. 13: - Grassi, loc. cit., paragraphs 38 to 43; see also Picciolo, loc. cit., paragraph 87. 14: - Loc. cit. 15: - Ibid., paragraph 52, emphasis added. 16: - Case T-586/93 Kotzonis v ESC [1995] ECR II-665, paragraph 93. 17: - Loc. cit., paragraph 39. 18: - Loc. cit., paragraph 52. 19: - Thus the applicant's first submission was described as concerning 'Notice of Competition No COM 484 to 487/70‘; the Court's conclusion was that 'in so far as it refers to the notice of vacancy, the application must be dismissed‘ (paragraph 16). 20: - See, for example, the summary by Advocate General Jacobs in Van der Stijl, loc. cit., paragraph 28. 21: - Article 37 of the EC Statute of the Court of Justice, extended to the Court of First Instance by Article 46 of that Statute. 22: - Case T-1/90 Pérez-Mínguez Casariego v Commission [1991] ECR II-143 (hereinafter 'Pérez-Mínguez‘), paragraph 43. 23: - Case 12/69 Wonnerth v Commission [1969] ECR 577, paragraph 8; Case 184/80 Van Zaanen v Court of Auditors [1981] ECR 1951, paragraph 13; Pérez-Mínguez, loc. cit., paragraph 43; see also the Opinion of Advocate General Sir Gordon Slynn in Van Zaanen, loc. cit., p. 1971. 24: - Pérez-Mínguez, loc. cit., paragraph 42. 25: - Case T-22/92 Weißenfels v European Parliament [1993] ECR II-1095, paragraph 40. He also relied on Case T-60/94 Pierrat v Court of Justice [1995] ECR-SC II-77 (hereinafter 'Pierrat‘), paragraph 33. The points referred to by the appellant appear, however, in paragraph 35. 26: - Paragraph 83 of the contested judgment; Pierrat, loc. cit., paragraph 30. 27: - Paragraph 82 of the contested judgment; Case T-280/94 Lopes v Court of Justice [1996] ECR-SC II-239, paragraph 148. 28: - See the second ground of appeal discussed above. 29: - See also Joined Cases 44/85, 77/85, 294/85 and 295/85 Hochbaum and Rawes v Commission [1987] ECR 3259 and Case T-25/90 Schönherr v ESC [1992] ECR II-63. 30: - Paragraph 98 of the contested judgment; see also Joined Cases T-32/89 and T-39/89 Marcopoulos v Court of Justice [1990] ECR II-281, paragraphs 37 and 40. 31: - Paragraph 99 of the contested judgment; Case T-589/93 Ryan-Sheridan v FEACVT [1996] ECR-SC II-77, paragraph 132. 32: - Article 54, EC Statute of the Court of Justice. 33: - Article 122, first subparagraph, Rules of Procedure of the Court of Justice. 34: - Article 122, second subparagraph, second indent, Rules of Procedure of the Court of Justice. 35: - Article 69(2), Rules of Procedure of the Court of Justice.