61977CJ0101_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 101/77
LUIGI GANZINI, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, RESIDING IN LUXEMBOURG, 37 AVENUE ALPHONSE MUNCHEN, REPRESENTED BY VICTOR BIEL, ADVOCATE OF THE LUXEMBOURG BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF MR BIEL, 18A RUE DES GLACIS,
APPLICANT,
V
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, RAYMOND BAEYENS, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ITS LEGAL ADVISER, MARIO CERVINO, JEAN MONNET BUILDING, PLATEAU DE KIRCHBERG,
DEFENDANT,
Subject of the case
APPLICATION PRINCIPALLY FOR THE ANNULMENT OF THE DECISION OF THE APPOINTING AUTHORITY NOT TO ACCEPT THE APPLICANT ' S APPLICATION FOR THE POST OF CLERICAL OFFICER ( C 3/C 2 ) IN THE DIRECTORATE GENERAL FOR PERSONNEL AND ADMINISTRATION, LUXEMBOURG DIRECTORATE, WHICH FORMED THE SUBJECT OF NOTICE OF VACANCY COM/726/76,
Grounds
1THE PRESENT APPLICATION, WHICH WAS LODGED ON 2 AUGUST 1977, SEEKS PRINCIPALLY THE ANNULMENT OF THE DECISION OF THE APPOINTING AUTHORITY NOT TO ACCEPT THE APPLICANT ' S APPLICATION FOR THE POST OF CLERICAL OFFICER ( C 3/C 2 ) IN THE ' ' DISPATCH ' '
DEPARTMENT OF THE DIRECTORATE GENERAL FOR PERSONNEL AND ADMINISTRATION IN LUXEMBOURG, WHICH FORMED THE SUBJECT OF NOTICE OF VACANCY COM/726/76 .
2FOLLOWING PUBLICATION OF THAT VACANCY NOTICE THE POST WAS APPLIED FOR BY TWO CANDIDATES, MR S . ( C 4 ) AND THE APPLICANT ( D 1 ), BOTH OF WHOM WERE ELIGIBLE TO BE TAKEN INTO CONSIDERATION UNDER ARTICLE 29 ( 1 ) ( A ) OF THE STAFF REGULATIONS, THAT IS, FOR PROMOTION OR TRANSFER WITHIN THE INSTITUTION .
3IN A MEMORANDUM DATED 26 NOVEMBER 1976 TO THE HEAD OF THE PERSONNEL DIVISION IN LUXEMBOURG THE HEAD OF THE ADMINISTRATION DIVISION IN BRUSSELS EXPRESSED THE OPINION THAT ' ' . . . MR S . IS BETTER QUALIFIED FOR THE POST ( IN QUESTION ) IN PARTICULAR BECAUSE HE HAS MUCH LONGER - AND MORE RECENT - EXPERIENCE THAN MR GANZINI IN THE FIELD OF DISPATCH ' ' .
4MR S . WAS PROMOTED TO THE POST AT ISSUE BY A DECISION DATED 7 DECEMBER 1976 .
5BY AN UNDATED MEMORANDUM, WHICH HE CLAIMS TO HAVE RECEIVED AT THE BEGINNING OF JANUARY 1977, THE APPLICANT WAS INFORMED THAT THE APPOINTING AUTHORITY ' ' NON HA POTUTO ACCOGLIERE ALLA SUA CANDIDATURA PER L ' IMPIEGO RESOSI VACANTE ' '
( HAS BEEN UNABLE TO ACCEPT YOUR APPLICATION FOR THE POST TO BE FILLED ).
6BY A MEMORANDUM DATED 1 MARCH 1977 MR GANZINI SUBMITTED TO THE APPOINTING AUTHORITY A COMPLAINT UNDER ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS, TO WHICH THE COMMISSION FAILED TO REPLY, WITH THE RESULT THAT, IN ACCORDANCE WITH THE TERMS OF THAT ARTICLE, ITS SILENCE CONSTITUTED, WITH EFFECT FROM 1 JULY 1977, AN IMPLIED DECISION OF REJECTION WHOSE ANNULMENT IS SOUGHT BY THE APPLICANT IN THE PRESENT APPLICATION .
7IT WAS ONLY BY A LETTER FROM THE DEFENDANT DATED 29 SEPTEMBER 1977, SIGNED BY CHRISTOPHER TUGENDHAT, THAT THE APPLICANT WAS INFORMED THAT HIS ' ' APPLICATION WAS TAKEN INTO CONSIDERATION, THAT IS, IT WAS EXAMINED ON THE SAME BASIS AS THAT OF ANOTHER OFFICIAL WHO PUT HIMSELF FORWARD WITHIN THE CONTEXT OF THE PROCEDURE LAID DOWN IN ARTICLE 29 ( 1 ) ( A ) OF THE STAFF REGULATIONS, WITH A VIEW TO OCCUPATION OF THE POST IN QUESTION BY WAY OF PROMOTION ' ' .
8THE APPLICANT MAINTAINS THAT HE NEVER RECEIVED THE SAID LETTER .
9IN SUPPORT OF HIS APPLICATION THE APPLICANT REFERS TO THE ABSENCE, IN INFRINGEMENT OF ARTICLE 25 OF THE STAFF REGULATIONS, OF ANY STATEMENT OF REASONS FOR THE DECISION NOT TO ' ' ENTERTAIN ' '
HIS APPLICATION FOR THE POST, WHICH AFFECTED HIM ADVERSELY .
10THE APPOINTING AUTHORITY HAS NO DUTY TO PROVIDE A STATEMENT OF THE REASONS ON WHICH A DECISION NOT TO ACCEPT AN APPLICATION FOR A POST IS BASED SINCE THE RECITALS OF SUCH A STATEMENT OF REASONS MIGHT BE PREJUDICIAL TO THE CANDIDATE .
11IT IS ESTABLISHED THAT EVEN IF THE ITALIAN VERB ' ' ACCOGLIERE ' '
DOES NOT CORRESPOND TO THE FRENCH ' ' RETENIR ' '
( TO ACCEPT ) IT IS CLEARLY IN THE LATTER SENSE THAT THE REJECTION BY THE COMMISSION OF THE APPLICANT ' S APPLICATION AFTER CONSIDERATION OF THE COMPARATIVE MERITS OF BOTH CANDIDATES WITHIN THE CONTEXT OF THE PROCEDURE FOR PROMOTION OR TRANSFER PROVIDED FOR IN ARTICLE 29 ( 1 ) ( A ) OF THE STAFF REGULATIONS MUST BE UNDERSTOOD .
12THEREFORE, THE ADMINISTRATION IN NO WAY EXCEEDED ITS DISCRETIONARY POWERS, AND IN FILLING THE POST ACTED SOLELY ON THE BASIS OF THE INTERESTS OF THE SERVICE .
13IT OUGHT, HOWEVER, TO HAVE MADE USE OF THE PERIOD FOR REPLYING TO THE COMPLAINT THROUGH OFFICIAL CHANNELS IN ORDER TO DISPEL THE APPLICANT ' S MISUNDERSTANDING .
14NEVERTHELESS, THE SUBMISSION IS UNFOUNDED AND MUST BE REJECTED .
15SECONDLY, THE APPLICANT ALLEGES THAT THE VACANCY NOTICE WAS IRREGULAR IN THAT IT DID NOT CONTAIN EITHER INFORMATION ENABLING THE CANDIDATE ' S CHANCES OF SUCCESS TO BE JUDGED OR, AT THE LEAST, THE STRICT OBLIGATION TO CONSIDER WHETHER THE POST COULD BE FILLED BY PROMOTION WITHIN THE MEANING OF ARTICLE 45 OF THE STAFF REGULATIONS .
16A REPLY HAS ALREADY BEEN GIVEN IN RELATION TO THE ALLEGED ABSENCE OF CONSIDERATION OF THE COMPARATIVE MERITS OF THE TWO CANDIDATES .
17FURTHERMORE, THE CONTESTED NOTICE GIVES FULL DETAILS OF THE POST TO BE FILLED AS WELL AS OF THE NATURE OF THE DUTIES AND THE QUALIFICATIONS REQUIRED .
18THE SUBMISSION CANNOT THEREFORE BE ACCEPTED .
19FINALLY, THE APPLICANT ALLEGES A MISUSE OF POWERS, IN THAT THE ADMINISTRATION DID NOT CONSIDER WHETHER MR GANZINI ' S CASE WAS NOT DIFFERENT FROM THAT OF THE OTHER OFFICIALS WHO HAD ALSO SUFFERED A DOWNGRADING WHEN THE STAFF REGULATIONS WERE APPLIED IN 1959 .
20THE OTHER OFFICIALS REFERRED TO BY THE APPLICANT DID NOT APPLY FOR THE POST AT ISSUE AND FOR THAT REASON THE POSITION OF THE APPLICANT DID NOT HAVE TO BE AND WAS NOT COMPARED TO THEIRS .
21FURTHERMORE, IT HAS BEEN SHOWN THAT THE CHOICE MADE BY THE APPOINTING AUTHORITY WAS BASED SOLELY ON THE INTERESTS OF THE SERVICE AND THAT FOR THAT REASON NO ALLEGATION OF MISUSE OF POWERS CAN BE MADE AGAINST IT .
22THE SUBMISSION IS INADMISSIBLE .
Decision on costs
COSTS
23UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .
24THE APPLICANT HAS FAILED IN HIS SUBMISSIONS .
25HOWEVER, IN THE LIGHT OF THE ATTITUDE OF THE COMMISSION, WHICH FAILED TO DISPEL THE APPLICANT ' S MISUNDERSTANDING OF THE MEANING TO BE GIVEN TO THE REJECTION OF HIS APPLICATION, IT IS DECIDED UNDER THE SECOND SUBPARAGRAPH OF ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE TO ORDER THE DEFENDANT TO PAY ALL THE COSTS .
Operative part
ON THOSE GROUNDS,
THE COURT ( FIRST CHAMBER )
HEREBY :
1 . DISMISSES THE APPLICATION ;
2 . ORDERS THE DEFENDANT TO PAY ALL THE COSTS .