61975CJ0123_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 123/75
BERTHOLD KUSTER, AN OFFICIAL OF THE EUROPEAN PARLIAMENT, RESIDING IN LUXEMBOURG, REPRESENTED BY VICTOR BIEL, ADVOCATE OF THE LUXEMBOURG BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF THE SAID VICTOR BIEL, 18 A RUE DES GLACIS,
APPLICANT
V EUROPEAN PARLIAMENT, REPRESENTED BY ITS SECRETARY-GENERAL, HANS ROBERT NORD, ACTING AS AGENT, ASSISTED BY ALEX BONN, ADVOCATE OF THE LUXEMBOURG BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF THE SAID ALEX BONN AT 22 COTE D ' EICH,
DEFENDANT,
Subject of the case
APPLICATION FOR ANNULMENT OF THE DECISION OF THE PRESIDENT OF THE EUROPEAN PARLIAMENT OF 29 APRIL 1975 APPOINTING GIUSEPPE GALLO TO A POST AS HEAD OF DIVISION FOLLOWING INTERNAL COMPETITION A/51,
Grounds
1 BY AN ACTION BROUGHT ON 16 DECEMBER 1975 THE APPLICANT CLAIMS THAT THE COURT SHOULD ANNUL THE APPOINTMENT OF MR GIUSEPPE GALLO MADE ON 29 APRIL 1975 BY THE EUROPEAN PARLIAMENT AS A RESULT OF INTERNAL COMPETITION A/51 .
2 IN SUPPORT OF THE APPLICATION THE APPLICANT MAINTAINS THAT THE SELECTION BOARD FOR THE COMPETITION WAS IRREGULARLY CONSTITUTED SINCE THE SECRETARY-GENERAL OF THE EUROPEAN PARLIAMENT HAD APPOINTED THE MEMBERS OF THE SELECTION BOARD UNDER A DELEGATION OF POWER MADE FOR THIS PURPOSE BY THE BUREAU OF THE INSTITUTION, WHICH DELEGATION HAS NO FORCE IN LAW SINCE IT WAS NOT BROUGHT TO THE KNOWLEDGE OF THE STAFF IN THE MANNER PROVIDED BY THE PROVISIONS OF THE STAFF REGULATIONS .
3 ACCORDING TO THE APPLICANT SUCH A DELEGATION WOULD HAVE BEEN EFFECTIVE ONLY IF IT HAD BEEN POSTED OR PUBLISHED IN ACCORDANCE WITH ARTICLE 25 OF THE STAFF REGULATIONS .
4 THE SECOND PARAGRAPH OF ARTICLE 110 OF THE STAFF REGULATIONS PROVIDES THAT ' ALL SUCH GENERAL PROVISIONS . . . SHALL BE BROUGHT TO THE ATTENTION OF THE STAFF ', BUT DOES NOT SPECIFY THE MANNER IN WHICH THEY ARE TO BE BROUGHT TO THE ATTENTION OF THE STAFF .
5 ALTHOUGH ARTICLE 25 OF THE STAFF REGULATIONS LAYS DOWN THE MANNER IN WHICH DECISIONS RELATING TO SPECIFIC INDIVIDUALS ARE TO BE PUBLISHED, IT DOES NOT SPECIFY THE MANNER OF PUBLICATION OF MEASURES HAVING A GENERAL SCOPE OR MEASURES WHICH RELATE TO A DIVISION OF RESPONSIBILITIES WITHIN THE INSTITUTION .
6 THE DELEGATION OF THE POWER IN QUESTION INVOLVES A GENERALLY RECOGNIZED DIVISION OF POWERS WITHIN THE INSTITUTION .
7 IN THE EVENT IT IS ESTABLISHED THAT IT HAS BEEN NOTIFIED NOT ONLY TO THE DIRECTORS-GENERAL OF THE INSTITUTION, CHAIRMEN OF GROUPS, TO THE SECRETARIAT AND TO THE CONTROL BUREAU, BUT ALSO THE STAFF COMMITTEE ESTABLISHED UNDER ARTICLE 9 OF THE STAFF REGULATIONS UNDER WHICH THEIR DUTIES ARE, INTER ALIA TO REPRESENT THE INTEREST OF THE STAFF VIS-A-VIS THEIR INSTITUTION AND TO ' MAINTAIN CONTINUOUS CONTACT BETWEEN THE INSTITUTION AND THE STAFF . '
8 IN THESE CIRCUMSTANCES THE CONTESTED DELEGATION OF POWER IS LEGALLY EFFECTIVE WITHOUT ITS BEING NECESSARY TO GO INTO THE QUESTION WHETHER SUCH A DELEGATION CONSTITUTES A MEASURE COVERED BY THE SECOND PARAGRAPH OF ARTICLE 110 OF THE STAFF REGULATIONS .
9 THE APPLICANT THEN MAINTAINS THAT THE CONTESTED DECISION INFRINGES ARTICLE 29 ( 1 ) ( A ) AND ( B ) AND ARTICLE 45 OF THE STAFF REGULATIONS IN THAT THE APPOINTING AUTHORITY HELD THE ABOVEMENTIONED INTERNAL COMPETITION WITHOUT TAKING ACCOUNT OF THE APPLICANT ' S ELIGIBILITY FOR PROMOTION .
10 ALTHOUGH ARTICLE 29 ( 1 ) ( A ) OF THE STAFF REGULATIONS PROVIDES THAT BEFORE FILLING A VACANT POST IN AN INSTITUTION, THE APPOINTING AUTHORITY SHALL FIRST CONSIDER WHETHER THE POST CAN BE FILLED BY PROMOTION OR TRANSFER WITHIN THE INSTITUTIONS, IT DOES NOT GIVE OFFICIALS WHO FULFIL THE CONDITIONS FOR PROMOTION A PERSONAL RIGHT TO PROMOTION, SINCE THE FILLING OF EACH POST MUST IN ACCORDANCE WITH THE FIRST PARAGRAPH OF ARTICLE 27 OF THE STAFF REGULATIONS BE BASED IN THE FIRST PLACE ON THE INTERESTS OF THE SERVICE .
11 MOREOVER ARTICLE 45 ( 1 ) OF THE STAFF REGULATIONS PROVIDES THAT ' PROMOTION SHALL BE EXCLUSIVELY BY SELECTION . . . AFTER CONSIDERATION OF THE COMPARATIVE MERITS OF THE OFFICIALS ELIGIBLE FOR PROMOTION . . . ' .
12 IT APPEARS FROM THESE PROVISIONS THAT THE APPOINTING AUTHORITY HAS A WIDE DISCRETION IN THE MATTER .
13 THUS IT DOES NOT APPEAR THAT IN DECIDING TO HOLD AN INTERNAL COMPETITION INSTEAD OF PROMOTING THE APPLICANT THE APPOINTING AUTHORITY FAILED TO FULFIL ITS OBLIGATIONS UNDER ARTICLES 29 AND 45 OF THE STAFF REGULATIONS AND INFRINGED THE APPLICANT ' S RIGHTS UNDER THOSE REGULATIONS .
14 THE APPLICANT MAINTAINS THAT IN ANY EVENT THE PROCEDURE OF RECRUITMENT FOLLOWED INVOLVES A MISUSE OF POWERS WITH REGARD TO HIM SINCE HE WAS EXCLUDED NOTWITHSTANDING THE FACT THAT HE WAS THE ONLY CANDIDATE ELIGIBLE FOR PROMOTION ACCORDING TO THE PROVISIONS OF THE STAFF REGULATIONS AND IN PARTICULAR THOSE ON THE SECOND PARAGRAPH OF ARTICLE 45 ( 1 ).
15 A MISUSE OF POWERS IS NOT DEEMED TO EXIST UNLESS IT IS PROVED THAT THE APPOINTING AUTHORITY IN TAKING THE MEASURE IN QUESTION HAS FOLLOWED AN OBJECTIVE OTHER THAN THE LEGAL ONE .
16 WHERE ONLY ONE CANDIDATE IS SUITABLE FOR PROMOTION UNDER THE SECOND PARAGRAPH OF ARTICLE 45 ( 1 ) OF THE STAFF REGULATIONS, THE FACT THAT THE ABOVE AUTHORITY DECIDES TO ORGANIZE AN INTERNAL COMPETITION WITHOUT MAKING A PROMOTION DOES NOT IN ITSELF CONSTITUTE SUFFICIENT EVIDENCE OF A MISUSE OF POWERS .
17 IN SUCH A CASE THE APPOINTING AUTHORITY, SINCE IT HAS AVAILABLE FOR CONSIDERATION ONLY ONE CANDIDATE SUITABLE FOR PROMOTION, MAY HAVE ALL THE MORE REASON FOR HOLDING AN INTERNAL COMPETITION SINCE IT MAY RIGHTLY CONSIDER THAT IT DOES NOT HAVE A SUFFICIENTLY WIDE CHOICE TO ENSURE RECRUITMENT IN ACCORDANCE AS FAR AS POSSIBLE WITH THE REQUIREMENTS OF THE POST TO BE FILLED .
18 THE APPLICANT STATES FURTHER THAT A MISUSE OF POWERS IN THIS RESPECT IS PROVED BY THE FACT THAT THE MARKS ACCORDED TO HIM IN THE COMPETITION IN QUESTION ARE LOWER THAN THAT ATTAINED IN A PREVIOUS COMPETITION ( A/43 ) TO FILL A POST IN THE SAME CATEGORY AND GRADE, THE SELECTION BOARD FOR WHICH COMPETITION WAS CONSTITUTED IN THE SAME WAY AS THAT FOR COMPETITION A/51 AND MADE ITS SELECTION ON THE BASIS OF SIMILAR, IF NOT IDENTICAL, CRITERIA OF ASSESSMENT .
19 IT IS ESTABLISHED THAT THE PREVIOUS COMPETITION IN QUESTION WAS BASED ON QUALIFICATIONS AND THAT COMPETITION A/5, WAS ORGANIZED ON QUALIFICATIONS AND TESTS .
20 FURTHER THE CRITERIA OF ASSESSMENT APPLIED IN COMPETITION A/43 ALSO TOOK ACCOUNT OF THE CANDIDATE ' S INCLUSION IN THE PREVIOUS LISTS OF SUITABLE CANDIDATES WHEREAS THIS FACT WAS NOT TAKEN INTO ACCOUNT IN COMPETITION A/51 SAVE IN SO FAR AS THE SAID LISTS RELATED TO INTERNAL COMPETITIONS ' BASED ON QUALIFICATIONS AND TESTS ' .
21 THEREFORE SINCE THE TWO COMPETITION PROCEDURES IN QUESTION WERE NOT WHOLLY COMPARABLE THERE IS NO LEGAL BASIS FOR THE APPLICANT ' S COMPLAINT .
22 MOREOVER THE CRITICISMS MADE AGAINST THE INSTITUTION IN COMPETITION A/51 OF THE ORAL TESTS AN THE MANNER IN WHICH THESE TESTS WERE CONDUCTED APPEAR TO BE EQUALLY UNFOUNDED .
23 HAVING REGARD TO THE RESULT OF CONSIDERATION OF THE QUALIFICATIONS AND TESTS RECORDED IN THE TABLE OF MARKS ANNEXED TO THE SELECTION BOARD ' S REPORT ON THE COMPETITION IN QUESTION, IT DOES NOT APPEAR THAT THE ORGANIZATION AND CONDUCT OF THE TESTS DISCRIMINATED AGAINST THE APPLICANT .
24 WITH REGARD, FURTHERMORE, TO THE TEST OF KNOWLEDGE OF DANISH, ALTHOUGH IT IS TRUE THAT THE SUCCESSFUL CANDIDATE DID NOT TAKE SUCH A TEST, IT IS ALSO TRUE THAT KNOWLEDGE OF THIS LANGUAGE WAS DESCRIBED AS ' DESIRABLE '
BY THE NOTICE OF COMPETITION AND THAT THE APPLICANT OBTAINED HIGHER MARKS THAN DID THE SUCCESSFUL CANDIDATE FOR HIS KNOWLEDGE OF LANGUAGES .
25 THE APPLICANT ALLEGES FURTHER THAT THE SELECTION BOARD IN COMPETITION A/51 DREW UP THE LIST OF THE VARIOUS SUITABLE CANDIDATES WITHOUT TAKING ACCOUNT OF THE FACT THAT HE HAD TEMPORARILY HELD THE POST OF FIRST SECRETARY OF COMMITTEE FROM 1 SEPTEMBER 1973 TO 20 MAY 1974 .
26 THE SELECTION BOARD, ACCORDING TO THE APPLICANT, ALSO OMITTED TO TAKE ACCOUNT, FOR THE PURPOSES OF THE LIST OF SUITABLE CANDIDATES, OF HIS EXPERIENCE AND PROFESSIONAL QUALIFICATIONS ACQUIRED BOTH BEFORE AND AFTER HIS ENTRY INTO THE SERVICE OF THE EUROPEAN PARLIAMENT .
27 FINALLY IT IS SAID THAT THE SELECTION BOARD DID NOT INCLUDE AMONG THE CRITERIA OF ASSESSMENT IT ADOPTED THAT OF HIS ELIGIBILITY FOR PROMOTION TO THE VACANT POST .
28 IT APPEARS FROM THE EVIDENCE OF THE CHAIRMAN OF THE SELECTION BOARD IN COMPETITION A/51 GIVEN DURING THE ORAL PROCEEDINGS THAT THE SELECTION BOARD KNEW THAT THE APPLICANT HELD THE TEMPORARY POST FROM 1 SEPTEMBER 1973 TO 20 MAY 1974 AND THAT THIS WAS TAKEN INTO ACCOUNT IN THE ASSESSMENT OF THE APPLICANT ' S QUALITIES AND PROFESSIONAL EXPERIENCE .
29 IT APPEARS ALSO FROM THIS EVIDENCE THAT THE SELECTION BOARD, IN ASSESSING THE APPLICANT ' S PROFESSIONAL QUALIFICATIONS AND ABILITIES, HAD AVAILABLE ALL THE FACTORS FOR ASSESSMENT CONTAINED IN HIS PERSONAL FILE AND IN THE DOCUMENTS ANNEXED THERETO INCLUDING THOSE REFERRED TO BY THE APPLICANT IN HIS LETTER OF 22 FEBRUARY 1975 SENT TO THE DIRECTOR-GENERAL FOR ADMINISTRATION, PERSONNEL AND FINANCE .
30 FINALLY THE APPLICANT POINTS OUT THAT WHILE THE CONTESTED DECISION REFERS TO ' THE RESULTS OF THE COMPETITION '
IT ALSO MENTIONS ARTICLE 45 OF THE STAFF REGULATIONS ON PROMOTION AND EXPRESSLY STATES IN THE OPERATIVE PART THAT THE SUCCESSFUL CANDIDATE IS ' PROMOTED '
TO THE VACANT POST .
31 IT IS THUS ALLEGED THAT IMPRECISE AND CONTRADICTORY REASONS ARE GIVEN FOR THE SAID DECISION WHICH SHOULD THEREFORE BE ANNULLED .
32 THE RECRUITMENT PROCEDURE FOLLOWED IN THE PRESENT CASE CLEARLY SHOWS THAT THE APPOINTMENT IN QUESTION WAS MADE AS A RESULT OF AN INTERNAL COMPETITION AND ACCORDINGLY PROVIDES NO GROUNDS FOR PUTTING IN DOUBT THE LEGAL BASIS OF THAT MEASURE .
33 THEREFORE SINCE THE LACK OF PRECISION, WHICH HAS BEEN REMARKED, IN THE REASONS FOR THE CONTESTED DECISION IS NOT DECISIVE, IT CANNOT AFFECT THE VALIDITY OF THE DECISION .
34 THE APPLICATION IS, FOR ALL THESE REASONS, DISMISSED AS UNFOUNDED .
Decision on costs
COSTS
35 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .
36 THE APPLICANT HAS FAILED IN HIS SUBMISSIONS .
37 HOWEVER UNDER ARTICLE 70 OF THE RULES OF PROCEDURE, IN PROCEEDINGS COMMENCED BY SERVANTS OF THE COMMUNITIES INSTITUTIONS SHALL BEAR THEIR OWN COSTS .
Operative part
ON THOSE GROUNDS,
THE COURT ( FIRST CHAMBER )
HEREBY :
1 . DISMISSES THE APPLICATION AS UNFOUNDED ;
2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .