Opinion of the Advocate General — ECLI:EU:C:2002:514
Date: 2002-09-19
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Procedure: Appeal - unfounded;Staff cases

summary, following an internal reorganisation in which the Directorate General for Personnel, the Budget and Finance was split in order to create a Directorate General for Finance and Financial Control and a Directorate General for Personnel a vacancy arose for a Director General for Finance and Financial Control. Initially, it was decided to invite applications under Article 29(1)(a) of the Staff Regulations. The vacancy notice required candidates to demonstrate inter alia specific expertise in financial matters. Both Mr O'Hannrachain and Mr Lopez Veiga, as well as four other candidates, applied for this post. Together with one other candidate Mr Lopez Veiga, who was at that time a Commission official seconded to the Parliament as the President's chef de cabinet, did not come within the category of persons eligible under Article 29(1)(a) of the Staff Regulations to be considered for appointment to the above post. None the less, he did apply in view of the possibility that the appointing authority might decide to extend the recruitment procedure under Article 29(2) of the Staff Regulations. It was in fact so decided. Shortly thereafter Mr Lopez Veiga was appointed to that post. Mr O'Hannrachain lodged a complaint against that appointment decision which was unsuccessful, and, subsequently, brought an action. 4. On 19 March 2001 Mr O'Hannrachain lodged an appeal in which he is seeking the setting aside of the judgment appealed against, the upholding of his pleas at first instance and finally an order that the defendant should pay the costs. III - Appeal 5. Mr O'Hannrachain raises six pleas on appeal. The first concerns infringement of Article 29 of the Staff Regulations of Officials. Secondly, the Court of First Instance disregarded the principle of legality, the duty to provide a statement of reasons and the audi alteram partem rule. Thirdly, it disregarded the effects attaching to a vacancy notice. Fourthly, there was a misinterpretation of the concept of the misuse of powers. Fifthly, there was a failure to have regard to Articles 7 and 27 of the Staff Regulations and to the principle of non-discrimination. Finally, there was a failure to have regard to the principle of sound management and proper administration, and breach of the obligation to provide a statement of reasons. A - First plea: infringement of Article 29 of the Staff Regulations 6. The first plea is directed against the view formed by the Court in paragraphs 33 to 37 and paragraphs 39 and 40 of the judgment appealed against. 7. Mr O'Hannrachain submits that the Court of First Instance misconstrued Article 29 of the Staff Regulations by taking the view that the appointing authority may have recourse to the procedure referred to in Article 29(2) of the Staff Regulations after initiating a recruitment procedure under Article 29(1) of the Staff Regulations without first carrying out an examination of the comparative merits of the eligible candidates under Article 29(1) with a view to verifying whether they meet the requirements of the vacancy notice. By acting in that way, the appointing authority failed to examine whether, in the present case and in accordance with Article 29 of the Staff Regulations, the promotion/transfer procedure was likely to result in the appointment of a person possessing the highest levels of ability, efficiency and integrity. 8. Furthermore, at paragraph 37 of its judgment the Court of First Instance recognized that the candidatures were of a priori significance without providing further reasoning or justification in support. According to Mr O'Hannrachain that amounts to an acknowledgement that there was a deliberate and predetermined intention on the part of the Parliament to appoint Mr Lopez Veiga in breach of the procedures existing for that purpose. 9. Mr O'Hannrachain submits that the shortness of the period within which Mr Lopez Veiga was appointed is in fact open to question as far as the circumstances in which the appointment was made are concerned. In that connection he points to the fact that Mr Lopez Veiga was allowed to take part in the recruitment procedure as a result of improper recourse being had to the procedure under Article 29(2) of the Staff Regulations; to the failure to conduct a comparative examination of the merits of candidates whose applications were admissible under Article 29(1) of the Staff Regulations; to the precipitate decision by the Bureau on a barely reasoned proposal from the Secretary General; to the absence of discussion of the candidatures finally accepted and of reasoning enabling appraisal of the reasons why preference was given to Mr Lopez Veiga. 10. The Parliament contends that the first plea is inadmissible since it concerns a factual assessment and that the plea is in any event unfounded since the Court of First Instance in forming its view based itself on settled case-law concerning the procedure under Article 29(2) of the Staff Regulations. Moreover, the appellant misinterpreted the term a priori in paragraph 37 of the judgment appealed against. Appraisal of the first plea 11. I share the Parliament's view that the Court of First Instance does not appear to have misdirected itself in law by concluding that it was permissible to extend the recruitment procedure under Article 29(2) of the Staff Regulations whilst a recruitment procedure under Article 29(1) thereof was pending even where four possibly eligible candidates had manifested themselves. In so doing the Court of First Instance was able to base itself on settled case-law. For it has been held that use of the term whether in Article 29 of the Staff Regulations demonstrates that the appointing authority is not bound absolutely to adopt those measures, but merely to consider in each case whether they are capable of resulting in the appointment of an official of the highest standard of ability, efficiency and integrity. (2) The Court of First Instance was entitled to infer therefrom that the appointing authority is not bound to follow, in the order indicated, the various stages of procedure set out in Article 29(1) of the Staff Regulations. (3) Under that decision it is also the case that the appointing authority is not obliged to carry through a recruitment procedure once it has been initiated (4) but possesses discretionary power to extend its field of choice (5) in the interests of the service and thus to avail itself of its power under Article 29(2) of the Staff Regulations. It is also settled case-law that a decision to make use of the possibility provided for in Article 29(2) of the Staff Regulations does not necessarily have to be taken at the time of publication of the vacancy notice and that application of Article 29(2) of the Staff Regulations is not subject to a specific publication requirement. (6) The only relevant factor is whether the recruitment is of Grade A1 or A2 officials or to posts for which special qualifications are required. 12. Thus, on the basis of existing case-law, to which reference was also made in the judgment appealed against, the Court of First Instance was entitled to conclude that the appointing authority had competence to decide to continue the recruitment procedure under Article 29(2) of the Staff Regulations and also, in the context of the extended field of choice in question, to include in its appraisal the two candidatures which were not able to be taken into consideration under the initial recruitment procedure under Article 29(1)(a) of the Staff Regulations. 13. As to Mr O'Hannrachain's view in relation to use of the term a priori in paragraph 37 of the judgment appealed against I would point out that the Court of First Instance plainly meant in this connection that the two candidatures submitted after initiation of the procedure under Article 29(2) of the Staff Regulations were at first sight (a priori) important in order to ensure that the available vacancy was correctly filled. 14. It follows from the foregoing that that plea cannot succeed. B - Second plea: non-observance of the principle of legality, failure to comply with the duty to provide a statement of reasons and breach of the principle of the right to be heard by acceptance of production of documents drawn up after adoption of the contested decision 15. Mr O'Hannrachain submits that in paragraphs 58, 61 and 66 of the judgment appealed against the Court of First Instance infringed the principle of legality, the duty to provide a statement of reasons and the principle of the right to be heard by accepting production by the Parliament at first instance of documents drawn up after adoption of the decision to appoint Mr Lopez Veiga. 16. Essentially Mr O'Hannrachain considers that the legality of a decision must be appraised at the time when the decision was adopted without regard being had to information becoming available at a subsequent stage owing to the fact that such information was not known when the decision was adopted. The reasoning must therefore also be founded on verifiable grounds which must be ascertainable from the file established for the purposes of the decision-making process. Moreover, it is said to be contrary to the principle of the right to be heard to have regard, as the Court of First Instance did in the judgment appealed against, to documents drawn up after adoption of the contested decision in order to justify that decision. 17. According to the Parliament, Mr O'Hannrachin's view as to the principle of legality is based on a mistaken interpretation of the case-law. In the present case the matters referred to merely serve to confirm what was already known at the time of the decision to appoint Mr Lopez Veiga. That plea, it is contended, is therefore unsubstantiated. Assessment of the second plea 18. It is settled case-law that in the context of an application for annulment under Article 230 EC the legality of the contested measure must be assessed on the basis of the elements of fact and of law existing at the time when the measure was adopted. (7) That is, however, not material in the present context. 19. For there is a difference between, on the one hand, documents which form the basis of a decision and, on the other, documents produced in exercise of the rights of the defence which serve to support justification of the decision adopted. 20. In that connection it should be noted that at paragraphs 56 and 57 of the judgment appealed against the Court of First Instance recalls that, in accordance with settled case-law, the exercise of the discretion which the appointing authority enjoys in the matter of appointments presupposes a meticulous examination of the application files and a careful regard for the requirements set out in the vacancy notice, so that the appointing authority is required to reject any candidate who does not meet those requirements. The vacancy notice constitutes a legal framework which the appointing authority imposes on itself and which it must meticulously respect. The Court of First Instance goes on to recall that, for the purpose of verifying whether the appointing authority has not acted outside the bounds of that legal framework and has acted in the interest of the service, the Court of First Instance must first establish what were the requisite conditions in order subsequently to verify whether the chosen candidate satisfies those conditions. Finally, the Court of First Instance notes that such a review does not, however, mean that the Court of First Instance can substitute its own assessment of the candidates' merits for that of the appointing authority. 21. The Court of First Instance subsequently inquired as to whether Mr Lopez Veiga satisfied the requirements laid down in the vacancy notice. Since the applicants at first instance stated that Mr Lopez Veiga did not hold a university degree in economics or finance and did not have equivalent professional experience and was also said to have no detailed knowledge of the specific rules, in particular the financial regulations applicable to the Community institutions, the Court of First Instance went into these aspects particularly extensively. In that connection the Court of First Instance took Mr Lopez Veiga's curriculum vitae as the point of departure. After requesting the Parliament for an official copy of the relevant degree and a list of the courses followed in that connection, the Court of First Instance subsequently concluded that Mr Lopez Veiga possessed a degree qualification in economics. It further found that on the basis of the curriculum vitae and the documents annexed by the Parliament to its defence that Mr Lopez Veiga also possessed the requisite knowledge concerning the rules and regulations applicable to the institutions. 22. These documents produced by the Parliament are challenged by Mr O'Hannrachain. In his view the Court of First Instance should not have admitted them in evidence. It should be noted that in this case they constitute further substantiation of the information given in the curriculum vitae of Mr Lopez Veiga and that those documents were produced in the context of the defence to the action at first instance. The Court of First Instance held that, although those documents were submitted after the candidacy of Mr Lopez Veiga and were intended to demonstrate the correctness and completeness of the information before the appointing authority at the time when the decision was made, that could not be equated with events occurring after the date when the decision was made. Viewed in that light there was no evidence to suggest that the Court had formed an incorrect legal view. Accordingly that plea is of no avail. C - The other pleas 23. The third, fourth, fifth and sixth pleas have to a large extent in common that they essentially concern the unsuitability of the appointed person for the post of Director General of Finance and Financial Control and irregularities in the appointment procedure. I shall set out below first the views of the parties before giving my assessment of those other pleas. 1. Third plea: non-observance of the duty to provide a statement of reasons and disregard of the effects attaching to a vacancy notice 24. This plea is directed against paragraphs 62 to 66 of the judgment appealed against. In that part of the judgment appealed against the Court of First Instance forms the view that the appointing authority did not manifestly err in its assessment that Mr Lopez Veiga possesses the knowledge and experience required by the vacancy notice. In Mr O'Hannrachain's view, the Court of First Instance, in making that assessment, formed an incorrect view of the matter and thus disregarded the effects of a vacancy notice. 25. Mr O'Hannrachain points to the context in which the vacancy arose. In particular he dwells on the fact that the reason why the previous directorate general was split into two new directorates general has to do with the increasingly complex financial and budgetary regulatory framework applicable to the Community institutions, which is reflected in the specific expertise and broad experience required of the occupant of the post in question. It is submitted that the Court of First Instance should also have had regard to that aspect in determining whether the appointing authority could properly have adopted the contested decision. Mr Lopez Veiga is said not to satisfy two conditions in the vacancy notice, namely possession of a university degree in economics or finance or equivalent experience and a thorough knowledge of the regulations applicable to the Community institutions, particularly in the financial sector. 26. Nor, it is submitted, does the decision appointing Mr Lopez Veiga to the post of director general contain any reasoning from which it might be inferred that he satisfies the requirements laid down. In that regard the Court of First Instance is said to have been satisfied by statements by the Parliament. Moreover, the Court is said to have taken over a task of the appointing authority by itself making a selection of the qualifications required and stressing that Mr Lopez Veiga satisfies those and disregarding the others which could not be determined with certainty. 27. The Parliament considers this plea to be inadmissible and in any event unfounded. First, the Court of First Instance is said to have satisfactorily indicated why the appointing authority was entitled to form the view that Mr Lopez Veiga satisfied the functional requirements laid down. The Parliament further points out that Mr O'Hannrachain persists in his view that the contested appointment decision itself contains insufficient reasoning concerning the requirements laid down in the vacancy notice. The Court of First Instance would thus have had to inquire not only as to whether the appointing authority could have reached the present decision but also into whether the appointment decision was itself based on an adequate statement of reasons. However, at first instance Mr O'Hannrachain never raised such a plea. Moreover, the Parliament points out that the appointing authority in that respect is not bound to give reasons for its decisions. As regards the alleged disregard of the effects of a vacancy notice the Parliament states that it is not for the Court - at the appellate stage - to re-evaluate the facts as submitted to the Court. 2. Fourth plea: infringement of the concept of misuse of powers 28. This plea is directed against the view formed by the Court of First Instance at paragraphs 109, 111, 112 and paragraphs 116 to 120 of the judgment appealed against. The Court is therein said to have misconstrued the concept of misuse of powers by not regarding the numerous objective, material and concordant matters raised by Mr O'Hannrachain as indicative of a misuse of powers. Moreover, the Court is said to have examined each of the various matters individually and neglected to make a general assessment of the total picture emerging. 29. As examples of this he mentions the declarations by the Vice President, a quaestor of the Parliament and political parties respectively, the fact that a number of candidates withdrew, the fact that Mr Lopez Veiga applied in view of the possibility that the appointing authority might decide to have recourse to Article 29(2) of the Staff Regulations and also the fact that Mr Lopez Veiga did not satisfy certain essential requirements of the post in question. In Mr O'Hannrachain's view, the finding by the Court of First Instance that the President of the Parliament made a statement of his intention to appoint Mr Lopez Veiga to a high-ranking post as well as its finding that Mr Lopez Veiga was involved in the preparation of the recruitment procedure, as stated in paragraph 120 of the judgment appealed against, were in themselves sufficient to support the assumption of a misuse of powers. In any event, it is said, that assumption may be inferred from the totality of those matters. 30. Finally, the Court of First Instance is said to have dismissed a number of those matters as immaterial without examination or adequate examination. 31. The Parliament asserts that the Court of First Instance concluded on proper grounds that there was no misuse of powers, and that this plea must therefore also be rejected. 3. Fifth plea: infringement of Articles 7 and 27 of the Staff Regulations and the principle of non-discrimination 32. In paragraphs 84 to 88 of the judgment appealed against the Court of First Instance disregarded Articles 7 and 27 of the Staff regulations and the principle of non-discrimination by not calling in question the appointment of a candidate not satisfying all the requirements of the vacancy notice whereas Mr O'Hannrachain satisfies them in all respects. 33. Mr O'Hannrachain asserts that, even though the appointing authority has a wide margin of discretion, the present case concerns a non-qualified candidate with the result that that candidate cannot therefore be compared with the other candidates and should not even have been considered. 34. By adjudging that the appointing authority did not manifestly err in regard to the suitability of the candidacy of Mr Lopez Veiga who, according to the appellant, does not satisfy the qualifications in particular because he does not possess the requisite knowledge in the budgetary and financial fields, the Court of First Instance erred in its assessment in paragraphs 84 to 86 of the judgment appealed against. 35. At paragraph 87 of the judgment appealed against the Court of First Instance is said to have misconstrued the term in the interest of the service because responsibilities of a general and political nature cannot replace the specific expertise required for the function in question. 36. In the Parliament's view that plea must be dismissed. The Court of First Instance remained entirely within the limits drawn by the case-law in holding that the Bureau had not manifestly erred in its assessment. Moreover, the Parliament points to the wide margin of appreciation conferred on the appointing authority in regard to A1 posts. Nor in regard to the term in the interest of the service was there any error of assessment on the part of the Court of First Instance. 4. Sixth plea: breach of the principle of sound management and good administration and non-observance of the duty to provide a statement of reasons 37. This plea is directed against paragraphs 128 and 129 of the judgment appealed against. According to Mr O'Hannrachain this was essentially a case of a political appointment concerning a person not satisfying the special qualifications required in an irregular procedure which was abridged for that purpose. Thus the Court of First Instance erred in regard both to the facts and the law. 38. The Parliament states that Mr O'Hannrachain merely recalls the context in which Mr Lopez Veiga was appointed and his dissatisfaction with the interpretation of the facts by the Court of First Instance. Such a criticism is not a plea which is admissible on appeal. Accordingly, the plea concerning the alleged breach of the principle of sound management and non-compliance with the duty to provide a statement of reasons must be dismissed. 5. Appraisal of the other pleas 39. The third, fourth, fifth and sixth pleas have in common that the factual context in which that appointment procedure took place is contested in closer detail. 40. As was indicated in the case of the first plea the Court of First Instance was entitled to hold, on the basis of existing case-law, that in the present case it was permissible to extend the recruitment procedure under Article 29(2) of the Staff Regulations. 41. It may be inferred from the treatment of the second plea that it was possible to establish on the basis of the curriculum vitae of Mr Lopez Veiga that he satisfies the requirements as laid down in the vacancy notice. That was reaffirmed by the documents drawn up pursuant to the rights of the defence. 42. Also in the context of the inquiry into whether the appointing authority did not exceed the limits of its discretionary power and observed the requirements laid down in the vacancy notice, the Court of First Instance established on review that Mr Lopez Veiga satisfied all the requirements of the vacancy notice and concluded that the appointing authority could properly come to the decision which it adopted. 43. The third plea is directed to the statement of reasons and disregard of the effects of the vacancy notice. In so far as the plea is also directed against the reasoning of the appointment decision itself it is inadmissible. In that respect it should also be noted that an appointment decision which states that the candidate satisfies the requirements of the vacancy notice and possesses relevant personal qualities and experience contains an adequate statement of reasons. The task of the Court of First Instance is to review whether the appointing authority has adhered to the requirements stated in the vacancy notice and whether the candidate appointed actually satisfies them. I already stated in the preceding paragraph that the Court of First Instance inquired whether the relevant candidate satisfied all the requirements connected with the post. In regard to financial expertise and relevant work experience an adequate statement of reasons was provided by the Court of First Instance in paragraphs 62 to 66 of the judgment appealed against. Accordingly, that plea must fail since it is unsubstantiated. 44. In regard to the argument that the Court of First Instance ought to have taken account of the context in which the vacancy arose (the background of a new directorate general and the specific expertise and experience to head it), I would additionally point out that it may be assumed that in the determination of the requirements of the post account was taken of those matters. Accordingly, a review of whether those requirements of the post were satisfied is sufficient. 45. In regard to the fourth plea I would point out that the alleged misuse of powers is elucidated on appeal by reference to the factual circumstances in which the appointment was made. These circumstances were inquired into by the Court of First Instance at paragraphs 109, 111 and 116 to 120. On the basis of that inquiry the Court of First Instance was entitled to conclude that there was no question of a misuse of powers in the present case. For the sake of completeness I would point out that the arguments deployed by Mr O'Hannrachain in order to substantiate his view are of a factual nature and on that basis are manifestly inadmissible. The Parliament rightly refers to the judgment in Hilti. (8) It is stated therein that the appraisal by the Court of First Instance of the evidence put before it does not constitute (save where the clear sense of that evidence has been distorted) a point of law which is subject, as such, to review by the Court of Justice. The Parliament is likewise correct when it notes that a plea challenging a finding of fact in the contested judgment, according to which no misuse of power was established, must be rejected as inadmissible. (9) 46. The fifth plea is essentially based on the view that the appointing authority was obliged to compare the respective merits of Mr Lopez Veiga (or precisely did not need to compare them) and ought to have concluded that the applicant was more suitable than the candidate appointed. In this connection the appellant is repeating his view of the facts that Mr Lopez Veiga did not satisfy the requirements in the vacancy notice. That prompts me to conclude that this is an argument which I already noted was unsubstantiated in connection with the first, second and third pleas. In appraising the first plea I already established that it is permissible to extend a pending recruitment procedure. That means that it was legitimate also to take into consideration the candidacy of Mr Lopez Veiga. It follows from the appraisal of the second and third pleas that the Court of First Instance was entitled to consider that the appointing authority could legitimately form the view on the basis of the facts available to it that Mr Lopez Veiga satisfied the requirements of the post laid down. 47. Nor therefore can the sixth plea based on the factual view that Mr Lopez Veiga does not satisfy the requirements laid down, which was dismissed as unfounded by the Court of First Instance, be upheld since it is manifestly inadmissible. D - Compensation 48. Since it follows from the foregoing that none of the pleas can succeed, it is not necessary to deal with the claim for payment of compensation. IV - Conclusion 49. In light of the foregoing I suggest that the Court of Justice: (1) dismiss the appeal; and (2) order Mr O'Hannrachain to pay the costs. 1: - Original language: Dutch. 2: - Joined Cases 12/64 and 29/64 Ley v Commission [1965] ECR 107. 3: - See, for example, reference by the Court of First Instance to its earlier case-law in Case T-586/93 Kotzonis v ESC [1995] ECR II-665 and Case T-118/95 Anacoreta Correira v Commission [1995] ECR-SC I-A-283 and II-835. 4: - See, for example, Cases 26/68 Fux v Commission [1969] ECR 145, Joined Cases 316/82 and 40/83 Kohler v Court of Auditors [1984] ECR 641 and Case 135/87 Vlacho v Court of Auditors [1988] ECR 2901. 5: - See, for example, Case T-38/89 Hochbaum v Commission [1990] ECR II-43 and Kotzonis v ESC (cited above at footnote 3). 6: - Joined Cases 81/74 to 88/74 Marenco v Commission [1975] ECR 1247. 7: - Joined Cases 15/76 and 16/76 France v Commission [1979] ECR 321. 8: - Case C-53/92 P Hilti v Commission [1994] ECR I-667. 9: - Case C-18/91 P V v Parliament [1992] ECR I-3997; and more recently, Case C-340/00 P Commission v Cwik [2001] ECR I-10269.