61982CJ0010_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 10/82
SVEN-OLE MOGENSEN, CARL WALTENBURG, LENE OEHRGAARD AND JEAN-LOUIS DELVAUX, OFFICIALS OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, ALL RESIDING IN BELGIUM, ASSISTED AND REPRESENTED BY JYTTE THORBEK, OF THE COPENHAGEN BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF JACQUES LOESCH, 2 RUE GOETHE,
APPLICANTS,
V
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, JOHANNES FOENS BUHL, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ORESTE MONTALTO, A MEMBER OF ITS LEGAL DEPARTMENT, JEAN MONNET BUILDING, KIRCHBERG,
DEFENDANT,
Subject of the case
APPLICATION IN THE TERMS OF THE CONCLUSIONS SET OUT IN THE APPLICATION,
Grounds
1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 8 JANUARY 1982, MESSRS MOGENSEN, WALTENBURG AND DELVAUX AND MRS OEHRGAARD, WHO WERE ALL OFFICIALS IN GRADE L/A 6 EMPLOYED IN THE DANISH TRANSLATION DIVISION OF THE COMMISSION OF THE EUROPEAN COMMUNITIES WHEN THEY SUBMITTED THEIR CANDIDATURES FOR A POST OF REVISER PURSUANT TO VACANCY NOTICE COM/1144/80, HAVE BROUGHT AN ACTION SEEKING, FIRST, THE ANNULMENT OF COMMISSION DECISIONS OF 28 APRIL 1981 REJECTING THEIR CANDIDATURES FOR THAT POST AND, SECONDLY TO COMPEL THE COMMISSION TO APPOINT TO THE POST THE BEST QUALIFIED OF THE FOUR APPLICANTS .
2 IN THE VACANCY NOTICE IN QUESTION, COM/1144/80, THE COMMISSION DECLARED VACANT A POST OF REVISER IN CATEGORY AND CAREER BRACKET L/A 5-4 WHICH WAS SUBJECT TO THE FOLLOWING CONDITIONS :
' ' UNIVERSITY EDUCATION ATTESTED BY A DIPLOMA OR EQUIVALENT PROFESSIONAL EXPERIENCE ;
LONG EXPERIENCE OF TRANSLATION ; EXPERIENCE OF REVISION ;
PROVEN ACTIVE COMMAND OF LANGUAGE AND A SOUND STYLE . ' '
3 IT IS COMMON GROUND THAT EACH OF THE FOUR APPLICANTS HAD ALL THE QUALIFICATIONS STIPULATED IN THE VACANCY NOTICE . HOWEVER THEIR APPLICATIONS, WHICH WERE SUBMITTED WITHIN THE FRAMEWORK OF THE PROCEDURE UNDER ARTICLE 29 ( 1 ) ( A ) OF THE STAFF REGULATIONS, WERE REJECTED AND AN OFFICIAL OF THE COUNCIL OF THE EUROPEAN COMMUNITIES, WHO WAS ALREADY WORKING AS A REVISER IN GRADE L/A 5 AT THE COUNCIL, WAS APPOINTED UNDER ARTICLE 29 ( 1 ) ( C ) OF THE STAFF REGULATIONS .
4 THE APPLICANTS SUBMITTED TO THE APPOINTING AUTHORITY A COMPLAINT UNDER ARTICLE 90 OF THE STAFF REGULATIONS AND THEN BROUGHT THE PRESENT ACTION WHICH IS FOUNDED ON TWO PRINCIPAL SUBMISSIONS . THE FIRST IS THAT ARTICLE 29 ( 1 ) OF THE STAFF REGULATIONS HAS BEEN INFRINGED AND THE SECOND IS FOUNDED ON THE APPLICANTS '
ALLEGATION THAT THE POST OF REVISER IN QUESTION WAS RESERVED IN ADVANCE FOR THE COUNCIL OFFICIAL, AS IS EVIDENCED, ACCORDING TO THEM, BY ALL THE NOTES AND LETTERS FROM THE RELEVANT DEPARTMENTS OF THE COMMISSION .
5 IN THEIR REPLY, THE APPLICANTS FURTHER CLAIM, LARGELY ON THE BASIS OF THE ARGUMENTS ADDUCED IN SUPPORT OF THEIR SECOND SUBMISSION, THAT THE COMMISSION MISUSED ITS POWERS .
THE FIRST SUBMISSION
6 IN SUPPORT OF THEIR FIRST SUBMISSION, THE APPLICANTS ARGUE THAT THE APPOINTING AUTHORITY MAY NOT FILL A POST BY WAY OF TRANSFER, THAT IS TO SAY BY USING STAGE ( C ) OF THE PROCEDURE UNDER ARTICLE 29 ( 1 ), UNTIL AFTER IT HAS ESTABLISHED, IN CONFORMITY WITH STAGE ( A ) OF THAT PROCEDURE, THAT THERE ARE NO CANDIDATES WITHIN THE INSTITUTION WHO MEET THE CONDITIONS SET OUT IN THE VACANCY NOTICE . BY NOT APPOINTING ANY OF THE FOUR APPLICANTS ALTHOUGH THEY ALL POSSESS THE QUALIFICATIONS PRESCRIBED IN THE VACANCY NOTICE, THE APPOINTING AUTHORITY THEREFORE INFRINGED ARTICLE 29 OF THE STAFF REGULATIONS . THE APPLICANTS MAINTAIN, FURTHERMORE, THAT THE COMMISSION CANNOT RELY ON ARTICLE 27 OF THE STAFF REGULATIONS IN ORDER TO ARRIVE AT A DIFFERENT INTERPRETATION SINCE ARTICLE 29 IS A SPECIAL PROVISION AND THEREFORE PREVAILS OVER ARTICLE 27 . ON THE OTHER HAND, THEY SAY THAT THERE IS NOTHING TO PREVENT ARTICLE 27 FROM BEING INTERPRETED TO THE EFFECT THAT THE CONCEPT OF THE INTERESTS OF THE SERVICE IS GIVEN ACTUAL CONCRETE EXPRESSION IN ARTICLE 29, IN OTHER WORDS THAT QUALIFIED CANDIDATES WITHIN AN INSTITUTION SHOULD BE GIVEN PREFERENCE OVER THOSE FROM OUTSIDE .
7 THE COMMISSION REJECTS THAT ARGUMENT . IN ITS VIEW, ALTHOUGH THE APPOINTING AUTHORITY IS CERTAINLY OBLIGED TO EXAMINE FIRST THE POSSIBILITIES UNDER ARTICLE
29 ( 1 ) ( A ), THE CAREFULLY SHADED WORDING OF ARTICLE 29 CLEARLY SHOWS THAT THE AUTHORITY HAS A WIDE DISCRETION IN THIS RESPECT . THUS WHERE THE APPOINTING AUTHORITY FINDS, AS IT DID IN THE CASE IN POINT, THAT PROMOTION WITHIN THE INSTITUTION IS NOT POSSIBLE, IT IS QUITE AT LIBERTY EITHER TO HOLD AN INTERNAL COMPETITION ( STAGE ( B )) OR TO ARRANGE FOR A TRANSFER ( STAGE ( C )). AN INTERNAL COMPETITION WOULD HAVE SERVED NO PURPOSE IN THIS CASE SINCE THERE COULD NOT HAVE BEEN ANY CANDIDATES WITHIN THE INSTITUTION WHO WERE MORE SUITABLE THAN THOSE REJECTED UNDER STAGE ( A ), AND THAT WAS WHY THE COMMISSION PASSED STRAIGHT ON TO STAGE ( C ). THE COMMISSION CONSIDERS, MOREOVER, THAT POSTS SHOULD BE FILLED HAVING REGARD FIRST AND FOREMOST TO ARTICLE 27, THAT IS TO SAY WITH A VIEW ' ' TO SECURING FOR THE INSTITUTION THE SERVICES OF OFFICIALS OF THE HIGHEST STANDARD OF ABILITY, EFFICIENCY AND INTEGRITY ' ' . CONSEQUENTLY THE APPOINTING AUTHORITY IS NOT OBLIGED TO ADOPT THE METHOD OF PROMOTION WITHIN THE INSTITUTION, PARTICULARLY SINCE THE DECISION NOT TO FILL A VACANT POST IS A MATTER FOR THE APPOINTING AUTHORITY ' S DISCRETION .
8 IT SHOULD BE NOTED FIRST THAT THE APPLICANTS '
INTERPRETATION TO THE EFFECT THAT THE APPOINTING AUTHORITY SHOULD HAVE APPOINTED ONE OF THEM TO THE VACANT POST IS IN CONTRADICTION WITH THE FACT THAT ARTICLE 29 ( 1 ) ( A ) REQUIRES THE AUTHORITY ONLY TO CONSIDER WHETHER THE POST CAN BE FILLED BY PROMOTION .
9 THE USE OF THE WORD ' ' CAN ' '
CLEARLY SHOWS THAT THE APPOINTING AUTHORITY IS UNDER NO ABSOLUTE OBLIGATION TO PROMOTE AN OFFICIAL BUT MERELY HAS TO CONSIDER, IN EACH CASE, WHETHER PROMOTION IS CAPABLE OF LEADING TO THE APPOINTMENT OF A PERSON OF THE HIGHEST STANDARD OF ABILITY, EFFICIENCY AND INTEGRITY AS REQUIRED BY ARTICLE 27 OF THE STAFF REGULATIONS .
10 ALTHOUGH ARTICLE 29 ( 1 ) ( A ) REQUIRES THE APPOINTING AUTHORITY TO CONSIDER THE POSSIBILITY OF PROMOTION WITH THE UTMOST CARE BEFORE GOING ON TO THE FOLLOWING STAGE, IT DOES NOT PREVENT THE AUTHORITY, IN THE COURSE OF SUCH AN EXAMINATION, FROM ALSO TAKING ACCOUNT OF THE POSSIBILITY OF OBTAINING BETTER CANDIDATES BY USING THE OTHER PROCEDURE MENTIONED IN THAT PARAGRAPH . CONSEQUENTLY THE APPOINTING AUTHORITY IS AT LIBERTY TO CONSIDER THE SUBSEQUENT OPTIONS .
11 IN THE CASE IN POINT THE NEXT STAGE WAS A TRANSFER SINCE AN INTERNAL COMPETITION WOULD HAVE SERVED NO PURPOSE BECAUSE, AS THE COMMISSION
RIGHTLY SUBMITS, ALL THE CANDIDATES SUITABLE FOR THE POST HAD ALREADY COME FORWARD IN THE COURSE OF STAGE ( A ). IT IS CLEAR BOTH FROM THE DOCUMENTS BEFORE THE COURT AND FROM THE ORAL ARGUMENT THAT THE CANDIDATE RECRUITED BY WAY OF TRANSFER HAD ALL THE ABOVE-MENTIONED QUALIFICATIONS AND SATISFIED IN EVERY RESPECT THE PARTICULAR REQUIREMENTS OF THE POST TO BE FILLED .
12 IN THOSE CIRCUMSTANCES THE COMMISSION DID NOT, IN THE CASE IN POINT, INFRINGE ARTICLE 29 ( 1 ) OF THE STAFF REGULATIONS AND THE FIRST SUBMISSION IS THEREFORE UNFOUNDED .
THE SECOND SUBMISSION
13 THE APPLICANTS BASE THEIR SECOND SUBMISSION ON THE ASSERTION THAT THE COMMISSION DELIBERATELY RESERVED THE POST TO BE FILLED FOR THE OFFICIAL FROM THE COUNCIL . THEY SUBMIT THAT THE DEPARTMENT CONCERNED PROPOSED STARTING THE PROCEDURE FOR TRANSFERRING THAT OFFICIAL EVEN BEFORE THE QUALIFICATIONS OF THE INTERNAL CANDIDATES WERE KNOWN . THEY BASE THEIR ALLEGATION ESSENTIALLY ON NOTES EXCHANGED BETWEEN THE DEPARTMENTS OF THE COMMISSION, AND IN PARTICULAR ON THE NOTE DATED 13 JUNE 1980 FROM THE HEAD OF THE RECRUITING, APPOINTMENTS AND PROMOTION DIVISION INDICATING THE COURSE TO BE FOLLOWED IF THAT OFFICIAL WAS TO BE APPOINTED, THE NOTE OF 18 FEBRUARY 1981 REJECTING THE CANDIDATURES FROM WITHIN THE COMMISSION AND PROPOSING TO FILL THE POST BY WAY OF TRANSFER AND THE NOTE DATED 20 FEBRUARY 1981 PROPOSING THAT THE OFFICIAL IN QUESTION BE TRANSFERRED .
14 THE COMMISSION STATES THAT IT IS WRONG TO MAINTAIN THAT THE POST WAS RESERVED IN ADVANCE FOR THE OFFICIAL FROM THE COUNCIL, SINCE ON 18 FEBRUARY IT DID NOT YET HAVE IN ITS POSSESSION THE DOCUMENTS RELATING TO THAT OFFICIAL . IN ITS REJOINDER THE COMMISSION FURTHER POINTS OUT THAT ITS CHOICE WAS DICTATED BY THE DESIRE TO CHOOSE THE BEST CANDIDATE AND THAT IT WAS QUITE NORMAL FOR THE COMMISSION TO KEEP ITSELF INFORMED OF HIGHLY QUALIFIED CANDIDATES FROM OUTSIDE THE INSTITUTION AND FOR IT TO HAVE ACCORDINGLY TAKEN ACCOUNT OF THE EXISTENCE OF SUCH A CANDIDATE WHEN CONSIDERING THE INTERNAL CANDIDATES .
15 BY THUS EXPRESSLY RECOGNIZING THAT IT TOOK ACCOUNT OF THE QUALIFICATIONS OF THAT OFFICIAL FROM THE COUNCIL, THE COMMISSION IS IN EFFECT ADMITTING THAT THE HEAD OF THE TRANSLATION DEPARTMENT IN QUESTION WISHED, EVEN BEFORE THE VACANCY NOTICE WAS PUT UP, TO PROPOSE THAT THAT OFFICIAL BE APPOINTED TO THE POST OF REVISER . SUCH AN ATTITUDE RAISES THE QUESTION WHETHER THE POST OF
REVISER WAS IN FACT RESERVED FOR THAT OFFICIAL EVEN BEFORE THE START OF STAGE ( A ) OF THE PROCEDURE UNDER ARTICLE 29 ( 1 ) OF THE STAFF REGULATIONS .
16 IT HAS TO BE NOTED, HOWEVER, THAT SINCE THE APPOINTING AUTHORITY IS NOT OBLIGED TO FILL A POST BY PROMOTION WITHIN THE INSTITUTION AND HAS A WIDE DISCRETION FOR THE PURPOSE OF FINDING THE CANDIDATE WITH THE HIGHEST STANDARD OF ABILITY, EFFICIENCY AND INTEGRITY, THE COURT MUST CONFINE ITSELF TO THE QUESTION WHETHER THE ADMINISTRATION KEPT WITHIN PROPER BOUNDS AND DID NOT EXERCISE ITS POWER IN A MANIFESTLY ERRONEOUS MANNER .
17 IN THAT RESPECT THE MERE FACT THAT WHEN THE RECRUITMENT PROCEDURE WAS OPENED, A CANDIDATE FROM ANOTHER INSTITUTION WAS REGARDED AS BEING THE MOST SUITABLE, DOES NOT NECESSARILY MEAN THAT THE INTERNAL CANDIDATURES WERE NOT CAREFULLY CONSIDERED .
18 IN THIS CASE THERE IS NOTHING IN THE DOCUMENTS BEFORE THE COURT TO SHOW THAT THE APPOINTING AUTHORITY DID NOT IN FACT CONSIDER THE QUALIFICATIONS AND MERITS OF THE INTERNAL CANDIDATES . IT SHOULD BE NOTED IN THIS RESPECT, IN THE FIRST PLACE, THAT TWO OF THE FOUR APPLICANTS ( OEHRGAARD AND DELVAUX ) HAD ONLY TWO YEARS '
SENIORITY IN GRADE L/A 6 WHICH IS ADMITTEDLY THE MINIMUM SENIORITY REQUIRED FOR PROMOTION BUT IS FAR BELOW THE AVERAGE RECORDED IN 1981 OF FOUR YEARS AND SEVEN MONTHS AND THAT THE APPOINTING AUTHORITY WAS THEREFORE PERFECTLY ENTITLED TO CONSIDER THAT THEIR EXPERIENCE WAS INADEQUATE . IT SHOULD ALSO BE NOTED THAT THE OTHER TWO APPLICANTS HAD ALSO APPLIED FOR POSTS OF PRINCIPAL TRANSLATOR IN GRADE L/A 5 ( VACANCY NOTICE COM/1134-1140/80 ) AND WERE MOREOVER PROMOTED TO SUCH POSTS ON 1 MARCH 1981, EVEN BEFORE THE OFFICIAL FROM THE COUNCIL WAS APPOINTED TO THE POST OF REVISER . THIS CLEARLY INDICATES THAT, HAVING REGARD TO THEIR FILES, THE APPOINTING AUTHORITY DECIDED THAT THOSE TWO CANDIDATES COULD BE APPOINTED TO THE POST OF PRINCIPAL TRANSLATOR BUT NOT TO THAT OF REVISER .
19 FURTHERMORE, NEITHER THE ALLEGATIONS MADE BY THE APPLICANTS NOR THE DOCUMENTS BEFORE THE COURT JUSTIFY THE CONCLUSION THAT BY APPOINTING A THIRD PARTY, THE DEFENDANT EXERCISED ITS DISCRETION IN A WAY THAT WAS MANIFESTLY ERRONEOUS .
20 IT IS COMMON GROUND THAT THE OFFICIAL WHO WAS IN FACT APPOINTED HAD WORKED AS A TRANSLATOR FOR MORE THAN A YEAR FOR THE COMMISSION, THEN SERVED AS A REVISER IN GRADE L/A 5 AT THE COUNCIL AS FROM 1975 AND THUS HAD SIX YEARS '
EXPERIENCE IN THE POST TO BE FILLED WHEREAS THE APPLICANTS HAD SERVED AS TRANSLATORS IN GRADE L/A 6 FOR LITTLE MORE THAN TWO YEARS AND WERE ONLY INCIDENTALLY ENGAGED IN REVISION .
21 CONSEQUENTLY THE COMMISSION WAS ENTITLED TO CONSIDER THAT THE OFFICIAL APPOINTED POSSESSED, TO A GREATER EXTENT THAN THE APPLICANTS, THE QUALIFICATIONS NECESSARY FOR THE DUTIES OF A REVISER, PARTICULARLY AS REGARDS THE REQUIREMENT OF EXPERIENCE OF REVISION, AND TO APPOINT HIM IN THE INTERESTS OF THE SERVICE .
22 SINCE THE APPLICANTS HAVE ADDUCED NO OTHER EVIDENCE THAT THE APPOINTING AUTHORITY EXCEEDED ITS DISCRETIONARY POWERS IN GIVING ITS PREFERENCE TO ANOTHER CANDIDATE FOR THE PURPOSES OF THE APPOINTMENT TO THE POST OF REVISER IN QUESTION, THE SECOND SUBMISSION MUST BE REJECTED .
23 CONSEQUENTLY THE SUBMISSION OF MISUSE OF POWERS, WHICH IS BASED ESSENTIALY ON THE SAME ARGUMENTS AS THOSE PUT FORWARD IN SUPPORT OF THE SECOND SUBMISSION, MUST ALSO BE REJECTED AS BEING UNFOUNDED WITHOUT THERE BEING ANY NEED TO DECIDE WHETHER THAT SUBMISSION IS, AS THE COMMISSION MAINTAINS, INADMISSIBLE ON THE GROUND THAT IT WAS MADE OUT OF TIME .
24 THE APPLICATION FOR THE ANNULMENT OF THE COMMISSION DECISIONS IN QUESTION MUST THEREFORE BE DISMISSED . CONSEQUENTLY THE REQUEST FOR AN ORDER DIRECTING THE COMMISSION TO APPOINT THE BEST QUALIFIED OF THE APPLICANTS MUST ALSO BE REJECTED . FURTHERMORE THAT REQUEST IS IN ANY EVENT ONE WHICH THE COURT HAS NO JURISDICTION TO ENTERTAIN .
Decision on costs
COSTS
25 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . HOWEVER, UNDER ARTICLE 70 OF THE RULES OF PROCEDURE COSTS INCURRED BY THE INSTITUTIONS IN PROCEEDINGS BROUGHT BY SERVANTS OF THE COMMUNITY ARE TO BE BORNE BY THOSE INSTITUTIONS .
Operative part
ON THOSE GROUNDS,
THE COURT ( SECOND CHAMBER )
HEREBY :
1 . DISMISSES THE APPLICATION ;
2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .