61963CJ0027_EN
Parties
Subject of the case
Grounds
Decision on costs
Endorsements
Operative part
Parties
IN CASE 27/63
GOFFREDO RAPONI, OFFICIAL OF THE COMMISSION OF THE EUROPEAN ECONOMIC COMMUNITY, REPRESENTED BY MARCEL SLUSNY, ADVOCATE AT THE COUR D' APPEL, BRUSSELS, HEAD OF DEPARTMENT AT THE UNIVERSITY OF BRUSSELS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF MR ARENDT, AVOCAT-AVOUE, 6 RUE WILLY-GOERGEN,
APPLICANT,
V
COMMISSION OF THE EUROPEAN ECONOMIC COMMUNITY, REPRESENTED BY ITS LEGAL ADVISER, LOUIS DE LA FONTAINE, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICES OF MR MANZANARES, SECRETARY OF THE LEGAL DEPARTMENT OF THE EUROPEAN EXECUTIVES, 2 PLACE DE METZ,
DEFENDANT,
Subject of the case
APPLICATION FOR ANNULMENT OF THE DECISION OF THE COMMISSION OF THE EEC OF 13 FEBRUARY 1963 APPOINTING MR D STRASSER, DIRECTOR OF INTERNAL AFFAIRS, WITHIN THE DIRECTORATE-GENERAL FOR ADMINISTRATION,
Grounds
P.135
ADMISSIBILITY
THE APPLICANT HAS INSTITUTED PROCEEDINGS AGAINST AN ACT OF THE COMMISSION WHEREBY AN OFFICIAL WAS APPOINTED TO A POST FOR WHICH THE APPLICANT WAS A CANDIDATE . THE APPLICATION IS MADE AGAINST THE EUROPEAN ECONOMIC COMMUNITY AND, SO FAR AS IS NECESSARY, THE COMMISSION . ARTICLE 91 OF THE STAFF REGULATIONS OF OFFICIALS OF THE EEC REFERS TO DISPUTES BETWEEN ' ONE OF THE COMMUNITIES ' AND ONE OF ITS OFFICIALS . ARTICLE 179 OF THE EEC TREATY PROVIDES THAT ' THE COURT OF JUSTICE SHALL HAVE JURISDICTION IN ANY DISPUTE BETWEEN THE COMMUNITY AND ITS SERVANTS WITHIN THE LIMITS AND UNDER THE CONDITIONS LAID DOWN IN THE STAFF REGULATIONS OR THE CONDITIONS OF EMPLOYMENT '.
P.136
THE COMMISSION, AS THE SUPREME APPOINTING AUTHORITY, IS ENTITLED TO BE A PARTY TO LEGAL PROCEEDINGS IN CONNEXION WITH DISPUTES WHICH MAY ARISE BETWEEN IT AND ITS STAFF . ARTICLE 90 OF THE REGULATIONS, WHICH ESTABLISHES THE SYSTEM FOR THE SUBMISSION OF COMPLAINTS BY STAFF, STATES THAT ANY SUCH COMPLAINT, WHICH IN THE NORMAL ORDER OF EVENTS PRECEDES AN APPLICATION TO THE COURT, IS TO BE MADE AGAINST THE APPOINTING AUTHORITY OF THEIR INSTITUTION . EXERCISE OF THE RIGHT OF ACTION PROVIDED FOR IN ARTICLE 91 MUST, IN THE ABSENCE OF ANY PROVISION TO THE CONTRARY, ABIDE BY THE SAME RULE .
THE COMMISSION HAS THE CAPACITY TO REPRESENT THE COMMUNITY IN COURT . ACCORDINGLY, THE APPLICATION MUST BE JUDGED ADMISSIBLE AND BE DEEMED TO BE MADE AGAINST THE COMMISSION .
ON THE FIRST COMPLAINT
THE APPLICANT REQUESTS THE ANNULMENT OF THE DECISION APPOINTING MR STRASSER TO THE POST OF DIRECTOR OF INTERNAL AFFAIRS WITHIN THE DIRECTORATE-GENERAL FOR ADMINISTRATION ON THE GROUND THAT IT INFRINGES ARTICLE 110 OF THE REGULATIONS, SINCE NO GENERAL PROVISIONS FOR GIVING EFFECT TO ARTICLE 45(1 ) OF THE REGULATIONS AND ARTICLE 43, TO WHICH ARTICLE 45 REFERS INDIRECTLY, WERE ADOPTED OR PUBLISHED .
RECOURSE TO ARTICLE 45 DOES NOT APPEAR TO NECESSITATE ANY IMPLEMENTING MEASURES OTHER THAN THAT TO WHICH IT REFERS BY IMPLICATION; THAT IS, THE DRAWING UP OF REPORTS WHICH CONSTITUTE ONE FACTOR IN THE CONSIDERATION OF THE COMPARATIVE MERITS OF OFFICIALS WHO ARE ELIGIBLE FOR PROMOTION . MOREOVER, IT IS NOT DISPUTED THAT NO PERIODICAL REPORTS AS PROVIDED FOR IN ARTICLE 43, AND MADE UNDER CONDITIONS TO BE FIXED BY GENERAL PROVISIONS FOR GIVING EFFECT TO THAT ARTICLE WITHIN THE MEANING OF ARTICLE 110, WERE IN EXISTENCE AT THE TIME THE CONTESTED DECISION WAS MADE .
HOWEVER REGRETTABLE THE DELAY IN PUTTING ARTICLE 110 INTO EFFECT MAY BE, NONE OF THE INSTITUTIONS WAS IN A POSITION AT THE TIME TO ADOPT THE GENERAL PROVISIONS IN QUESTION, BECAUSE OF THE DATE ON WHICH THE REGULATIONS WERE PUBLISHED AND ENTERED INTO FORCE . SINCE THEY DID NOT ENTER INTO FORCE UNTIL 1 JANUARY 1962, THE COMMISSION DID NOT ACT IMPROPERLY AT THE TIME OF THE CONTESTED DECISION IN HAVING FAILED TO MAKE OUT THE REPORTS . THUS ARTICLE 45 HAD TO BE USED BEFORE THE ADOPTION OF THE GENERAL IMPLEMENTING PROVISIONS PROVIDED FOR . THE REQUIREMENTS OF THE SERVICE MAKE IT IMPOSSIBLE TO CONSIDER THIS PROCEDURE DURING A TRANSITIONAL PERIOD AS ILLEGAL .
P.137
ACCORDING THE FIRST COMPLAINT IS UNFOUNDED .
ON THE SECOND COMPLAINT
THE APPLICANT COMPLAINS THAT THE CONTESTED DECISION INFRINGES ARTICLE 5 IN FINE OF THE REGULATIONS, BECAUSE THE VACANCY NOTICE REGARDING THE POST IN QUESTION WAS NOT PRECEDED BY A DESCRIPTION OF THE POST WITHIN THE MEANING OF THE SAID ARTICLE .
THIS COMPLAINT RELATES BOTH TO THE INADEQUACY OF THE VACANCY NOTICE ITSELF AND POSSIBLY THE GENERAL FAILURE ON THE PART OF THE COMMISSION TO ISSUE DESCRIPTIONS OF ALL THE POSTS WITHIN ITS ADMINISTRATION .
THE ALLEGED INADEQUACY OF THE VACANCY NOTICE CONSISTS IN THE ABSENCE OF ANY CLEARLY DEFINED CRITERIA OF SELECTION . SINCE THIS COMPLAINT IS CLOSELY CONNECTED WITH THE THIRD COMPLAINT, IT MAY BE CONVENIENTLY EXAMINED BELOW .
IN THE PRESENT PROCEEDINGS, BEARING IN MIND THE REQUIREMENTS OF THE SERVICE, THE COMPLEXITY OF THE TASK OF DESCRIBING THE VARIOUS POSTS, AND THE ACTUAL DESCRIPTION OF THE POST IN QUESTION AS GIVEN IN THE VACANCY NOTICE, THE LEGALITY OF THE CONTESTED DECISION SHOULD BE CONFIRMED ON THIS POINT .
ON THE THIRD COMPLAINT
THE APPLICANT COMPLAINS, FIRST, THAT THE COMMISSION APPLIED IN THE WRONG WAY THE FIRST PART OF ARTICLE 45(1 ) OF THE REGULATIONS, IN THAT IT FAILED TO DETERMINE IN ADVANCE ITS CRITERIA FOR SELECTION; AND SECONDLY, THAT THE COMMISSION APPLIED IN THE WRONG WAY ARTICLES 27 AND 45 - IN CONJUNCTION WITH ARTICLE 43 - WHICH PROVIDE FOR THE CONSIDERATION OF REPORTS AND PRESUPPOSE THE EXISTENCE OF A PREDETERMINED AND OBJECTIVE PROCEDURE WITH WHICH OFFICIALS WOULD BE ACQUAINTED IN ADVANCE .
ARTICLE 45 PROVIDES THAT PROMOTION SHALL BE EXCLUSIVELY BY SELECTION AFTER CONSIDERATION OF THE COMPARATIVE MERITS OF THE CANDIDATES . THE APPOINTING AUTHORITY HAS IN THIS REPORT WIDE DISCRETIONARY POWERS . SUCH POWERS PRESUPPOSE THAT, WHILE GREAT FREEDOM IS ALLOWED IN MAKING THE DECISION, THERE MUST AT THE SAME TIME BE A SCRUPULOUS CONSIDERATION OF PERSONAL FILES EACH CONTAINING COMPARABLE INFORMATION . THIS SECOND FACTOR PROVIDES THE NECESSARY GUARANTEE THAT POWERS WILL BE EXERCISED IN FULL KNOWLEDGE OF THE FACTS .
ARTICLE 45(1 ) OF THE REGULATIONS INDICATES AS A CRITERION THE REPORTS, TO BE MADE AT LEAST ONCE EVERY TWO YEARS, PROVIDED FOR BY ARTICLE 43; THE NON-EXISTENCE OF THESE REPORTS AT THE TIME OF THE CONTESTED DECISION DOES NOT SEEM SUFFICIENT GROUND FOR CONCLUDING THAT THE DECISION IS ILLEGAL . IT WOULD BE TOO MUCH TO REQUIRE THE ADMINISTRATION TO DRAW UP AD-HOC REPORTS TO TAKE THE PLACE OF THE REPORTS PROVIDED FOR IN ARTICLE 43 DURING THE ADAPTATION PERIOD WHENEVER A VACANT POST MAKES IT NECESSARY TO COMPARE THE MERITS OF POSSIBLE CANDIDATES .
P.138
AN EXAMINATION OF THE FACTORS ACTUALLY TAKEN INTO ACCOUNT BY THE COMMISSION IS A MATTER CONNECTED WITH THE REVIEW OF THE ' CONSIDERATION OF THE COMPARATIVE MERITS ' OF THE CANDIDATES .
ACCORDINGLY, THIS COMPLAINT IS NOT WELL-FOUNDED .
ON THE FOURTH COMPLAINT
THE APPLICANT REQUESTS THE ANNULMENT OF THE CONTESTED DECISION, ON THE GROUND THAT THE REASONS ON WHICH IT WAS BASED WERE NOT STATED .
ACCORDING TO ARTICLE 25 OF THE STAFF REGULATIONS, ANY DECISION RELATING TO A SPECIFIC INDIVIDUAL WHICH IS TAKEN UNDER THE STAFF REGULATIONS SHALL BE COMMUNICATED IN WRITING TO THE OFFICIALS CONCERNED AND ANY DECISION ADVERSELY AFFECTING AN OFFICIAL SHALL STATE THE REASONS ON WHICH IT IS BASED .
THE CONTESTED DECISION DID NOT STATE THE REASONS ON WHICH IT WAS BASED IN SO FAR AS CONCERNS THE PERSON TO WHOM IT WAS ADDRESSED, THAT IS TO SAY, THE OFFICIAL WHOSE CANDIDATURE FOR THE POST IN QUESTION WAS ACCEPTED AND WHO WAS THEREFORE NOT ADVERSELY AFFECTED BY IT . AS FOR THE OTHER CANDIDATES, IT SHOULD BE BORNE IN MIND THAT THE COMMISSION HAS WIDE DISCRETIONARY POWERS IN MAKING ITS SELECTION . THE FACTORS ON WHICH THIS ASSESSMENT IS BASED, COVERING NOT ONLY THE EFFICIENCY AND VOCATIONAL APTITUDE OF THE APPLICANTS BUT ALSO THEIR CHARACTER, BEHAVIOUR AND GENERAL PERSONALITY, ARE ILL-SUITED FOR INCLUSION IN A STATEMENT OF REASONS AND WERE THEY SO INCLUDED THE STATEMENTS MIGHT WELL PROVE PREJUDICIAL TO THE INTERESTS OF THE UNSUCCESSFUL CANDIDATES . THE COURT WOULD, HOWEVER, EMPHASIZE ALL THE MORE STRONGLY THAT THE GUARANTEES ENSURING A FULL CONSIDERATION OF CANDIDATES' PERSONAL FILES MUST ALWAYS AND IN EVERY RESPECT BE OBSERVED .
THIS GROUND OF THE APPLICATION MUST ACCORDINGLY BE DISMISSED .
ON THE FIFTH COMPLAINT
THE APPLICANT REQUESTS THE ANNULMENT OF THE CONTESTED DECISION, ON THE GROUND THAT THE FACTORS ON WHICH THE COMMISSION BASED ITS DECISION WERE INCORRECT OR INCORRECTLY INTERPRETED BY IT .
THE POST FOR WHICH MR RAPONI APPLIED SHOULD NOT HAVE BEEN FILLED UNTIL A CONSIDERATION OF THE COMPARATIVE MERITS OF THE CANDIDATES ELIGIBLE FOR PROMOTION HAD BEEN MADE . SUCH CONSIDERATION IMPLIES A COMPARISON OF THE APTITUDES OF THOSE CANDIDATES . HOWEVER WIDE THE COMMISSION'S DISCRETIONARY POWERS, THE COMMISSION MUST EVALUATE THOSE MERITS ON A BASIS OF EQUALITY, HAVING RECOURSE TO INFORMATION THE SOURCE AND CONTENT OF WHICH IS COMPARABLE IN EACH INSTANCE .
IT IS NOT DISPUTED THAT THE CURRICULUM VITAE OF THE APPLICANT WHICH WAS SUBMITTED TO THE COMMISSION BY ITS ADMINISTRATIVE SERVICE DID NOT CORRESPOND EITHER TO THE CURRICULUM VITAE WHICH APPEARS IN HIS PERSONAL FILE, NOR TO THAT WHICH WAS ATTACHED TO HIS REQUEST FOR PROMOTION . THE COMMISSION MAY WELL THEREFORE HAVE BEEN INSUFFICIENTLY INFORMED AS TO THE APPLICANT'S CAREER . NOR IS IT DISPUTED THAT NO EXAMINATION OF THE LINGUISTIC PROFICIENCY OF THE VARIOUS CANDIDATES TOOK PLACE, DESPITE THE PRECISE REQUIREMENTS RELATING TO THIS SPECIFIED IN THE VACANCY NOTICE .
THE COURT HAS NO EVIDENCE BEFORE IT THAT THE COMMISSION SUPPLEMENTED ITS KNOWLEDGE BY CONSULTING THE PERSONAL FILES OF THE CANDIDATES .
THE FACTORS TAKEN INTO ACCOUNT BY THE COMMISSION IN TAKING ITS DECISION WERE INSUFFICIENT .
ACCORDINGLY, THIS DECISION MUST BE ANNULLED ON THE GROUND THAT IT INFRINGES THE FIRST SUBPARAGRAPH OF ARTICLE 45(1 ) OF THE STAFF REGULATIONS OF OFFICIALS OF THE EEC .
Decision on costs
THE APPLICANT HAS BEEN SUCCESSFUL IN HIS MAIN CONCLUSIONS .
THE DEFENDANT MUST, BY VIRTUE OF ARTICLE 69(2 ) OF THE RULES OF PROCEDURE, BE ORDERED TO BEAR THE COSTS .
Endorsements
ON THOSE GROUNDS,
UPON READING THE PLEADINGS;
UPON HEARING THE REPORT OF THE JUDGE-RAPPORTEUR;
UPON HEARING THE PARTIES;
UPON HEARING THE OPINION OF THE ADVOCATE - GENERAL;
HAVING REGARD TO THE TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY, ESPECIALLY ARTICLES 173 AND 179;
HAVING REGARD TO THE PROTOCOL ON THE STATUTE OF THE COURT OF JUSTICE OF THE EUROPEAN ECONOMIC COMMUNITY;
HAVING REGARD TO THE STAFF REGULATIONS OF OFFICIALS OF THE EUROPEAN ECONOMIC COMMUNITY, ESPECIALLY ARTICLES 5, 25, 27, 43, 45, 90, 91 AND 110;
HAVING REGARD TO THE RULES OF PROCEDURE OF THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES, ESPECIALLY ARTICLE 69,
Operative part
THE COURT
HEREBY :
1 . ANNULS THE DECISION OF 13 FEBRUARY 1963 OF THE COMMISSION OF THE EUROPEAN ECONOMIC COMMUNITY APPOINTING D . STRASSER AS DIRECTOR OF INTERNAL AFFAIRS WITHIN THE DIRECTORATE-GENERAL FOR ADMINISTRATION;
2 . ORDERS THE COMMISSION OF THE EUROPEAN ECONOMIC COMMUNITY TO BEAR THE COSTS .