61984CJ0246_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 246/84
VASSILIOS KOTSONIS, AN OFFICIAL IN THE GENERAL SECRETARIAT OF THE COUNCIL OF THE EUROPEAN COMMUNITIES, RESIDING AT 26 AVENUE A . SCHEITLER, 1150 BRUSSELS, REPRESENTED BY ANGELOS KOTSONIS, OF THE ATHENS BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF VICTOR BIEL, 18A RUE DES GLACIS,
APPLICANT,
V
COUNCIL OF THE EUROPEAN COMMUNITIES, REPRESENTED BY JOHN CARBERY, AN ADVISER IN ITS LEGAL DEPARTMENT, ACTING AS AGENT, ASSISTED BY CHRISTOS MAVRAKOS, JOINT AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF JORG KASER, MANAGER OF THE LEGAL DIRECTORATE OF THE EUROPEAN INVESTMENT BANK, 100 BOULEVARD KONRAD- ADENAUER,
DEFENDANT,
Subject of the case
APPLICATION FOR THE ANNULMENT OF A DECISION TO APPOINT AN OFFICIAL AND FOR COMPENSATION,
Grounds
1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 15 OCTOBER 1984 MR VASSILIOS KOTSONIS, A REVISER IN GRADE LA/4 IN THE GENERAL SECRETARIAT OF THE COUNCIL OF THE EUROPEAN COMMUNITIES, BROUGHT AN ACTION SEEKING ( A ) THE ANNULMENT OF COUNCIL DECISION NO 11/83 OF 13 DECEMBER 1983 APPOINTING MR CHRISTOS CONSTANTINOPOULOS TO THE POST OF HEAD OF THE GREEK DIVISION OF THE COUNCIL ' S LANGUAGE SERVICE AND ( B ) COMPENSATION FOR THE DAMAGE INCURRED AS A RESULT OF THAT DECISION .
2 ACCORDING TO THE DOCUMENTS BEFORE THE COURT, ON 23 FEBRUARY 1983 THE COUNCIL PUBLISHED A NOTICE ( NO LA/250 ) ANNOUNCING AN OPEN COMPETITION TO FILL THE POST OF HEAD OF THE GREEK DIVISION OF THE LANGUAGE SERVICE ( OFFICIAL JOURNAL 1983, C 51, P . 8 ). THE NOTICE STIPULATED INTER ALIA THAT ENTRY TO THE COMPETITION WAS RESTRICTED TO CANDIDATES HAVING GREEK AS THEIR MOTHER TONGUE, FURNISHING EVIDENCE OF A FULL UNIVERSITY EDUCATION AND HAVING ACQUIRED, BY THE DATE OF PUBLICATION, AT LEAST 10 YEARS '
EXPERIENCE IN THE FIELD OF TRANSLATING OR REVISING TEXTS, WHICH MIGHT INCLUDE, IN PART, EXPERIENCE IN OTHER LINGUISTIC FIELDS .
3 BOTH MR KOTSONIS AND MR CONSTANTINOPOULOS WERE SUCCESSFUL IN THE COMPETITION TESTS . HAVING OBTAINED A SCORE OF 297 POINTS OUT OF 400, COMPARED WITH 276 OUT OF 400 OBTAINED BY HIS COMPETITOR, MR KOTSONIS WAS ENTERED AT THE TOP OF THE LIST OF SUITABLE CANDIDATES WHILST MR CONSTANTINOPOULOS WAS PLACED SECOND AND THE OTHER CANDIDATES FAILED THE TESTS ALTOGETHER .
4 BY DECISION NO 11/83 OF 13 DECEMBER 1983 THE COUNCIL FILLED THE VACANCY BY APPOINTING MR CONSTANTINOPOULOS HEAD OF THE GREEK DIVISION OF THE LANGUAGE SERVICE WITH EFFECT FROM 1 DECEMBER 1983 .
5 MR KOTSONIS SUBMITTED A COMPLAINT UNDER ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS, WHICH WAS REJECTED BY LETTER OF THE SECRETARY-GENERAL OF THE COUNCIL OF 20 JULY 1984 ; HE THEREUPON BROUGHT THE PRESENT ACTION .
6 REFERENCE SHOULD BE MADE TO THE REPORT FOR THE HEARING FOR A MORE DETAILED ACCOUNT OF THE FACTS AND OF THE SUBMISSIONS AND ARGUMENTS OF THE PARTIES, WHICH ARE MENTIONED OR DISCUSSED HEREINAFTER ONLY IN SO FAR AS IS NECESSARY FOR THE REASONING OF THE COURT .
THE APPLICATION FOR THE ANNULMENT OF THE DECISION TO MAKE THE APPOINTMENT 7 IN SUPPORT OF HIS APPLICATION FOR THE ANNULMENT OF DECISION NO 11/83 APPOINTING MR CONSTANTINOPOULOS, THE APPLICANT ' S FIRST SUBMISSION IS THAT THE DECISION INFRINGES ARTICLE 27 OF THE STAFF REGULATIONS, WHICH CALLS FOR THE RECRUITMENT OF OFFICIALS ' OF THE HIGHEST STANDARD OF ABILITY, EFFICIENCY AND INTEGRITY ' . THE APPLICANT CLAIMS THAT THE COUNCIL, IN DECIDING TO APPOINT MR CONSTANTINOPOULOS, TOOK INTO ACCOUNT NEITHER THE APPLICANT ' S QUALIFICATIONS, WHICH ARE GENERALLY SUPERIOR TO THOSE PRODUCED BY THE APPOINTED CANDIDATE, NOR THE FACT THAT HE WAS PLACED FIRST IN THE COMPETITION .
8 AS FAR AS AN EVALUATION OF THE CANDIDATES '
QUALIFICATIONS IS CONCERNED, THE COURT CONSIDERS IT SUFFICIENT TO OBSERVE THAT THE COMPETITION IN QUESTION WAS BASED ON QUALIFICATIONS AND TESTS, AND REQUIRED CANDIDATES '
QUALIFICATIONS TO BE TAKEN INTO ACCOUNT WHEN DECIDING WHETHER TO ADMIT THEM TO THE TESTS ; WHETHER CANDIDATES '
NAMES WERE ENTERED ON THE LIST OF SUITABLE CANDIDATES, HOWEVER, DEPENDED ON THE POINTS OBTAINED IN THE TESTS . THE COUNCIL WAS THEREFORE JUSTIFIED IN IGNORING THE QUALIFICATIONS OF SUCCESSFUL CANDIDATES WHEN CHOOSING FROM AMONGST THEM, SINCE ACCOUNT HAD ALREADY BEEN TAKEN OF THOSE QUALIFICATIONS WHEN THE CANDIDATES WERE ADMITTED TO THE COMPETITION . THE SUBMISSION MUST THEREFORE BE REJECTED .
9 AS REGARDS THE SUBMISSION BASED ON THE ORDER IN WHICH THE SUCCESSFUL CANDIDATES AT THE COMPETITION WERE CLASSIFIED, IT SHOULD BE RECALLED THAT ACCORDING TO ARTICLE 30 OF THE STAFF REGULATIONS THE APPOINTING AUTHORITY CHOOSES FROM THE LIST OF SUITABLE CANDIDATES YIELDED BY THE COMPETITION THOSE WHOM IT INTENDS TO APPOINT TO THE VACANT POSTS . AS THE COURT HAS ALREADY HELD IN ITS JUDGMENT OF 15 DECEMBER 1966 ( CASE 62/65 SERIO V COMMISSION ( 1966 ) ECR 561 ), THE APPOINTING AUTHORITY IS ENTITLED IN MAKING ITS SELECTION TO IGNORE THE PRECISE ORDER OF MERIT IN THE COMPETITION FOR REASONS WHICH IT IS INCUMBENT UPON THE ADMINISTRATION TO DETERMINE AND TO JUSTIFY BEFORE THE COURT, PROVIDED THAT IT DOES NOT DESTROY THE VERY ESSENCE OF THE COMPETITION BY DEPARTING SUBSTANTIALLY FROM THE RESULTS OF THE COMPETITION WITHOUT SERIOUS REASONS . IT FOLLOWS THAT THE ADMINISTRATION IS NOT IN ALL CIRCUMSTANCES BOUND TO APPOINT THE CANDIDATE PLACED FIRST BUT MAY GIVE PREFERENCE TO ANOTHER CANDIDATE LISTED AS SUITABLE IF IT HAS REASONS FOR DOING SO WHICH SERVE THE INTERESTS OF THE SERVICE .
10 THE COUNCIL JUSTIFIES ITS CHOICE OF CANDIDATE ON THE GROUND THAT MR CONSTANTINOPOULOS WAS THE MOST SUITABLE PERSON FOR PERFORMING THE TASKS ENTAILED BY THE POST IN QUESTION ON ACCOUNT OF HIS ORGANIZATIONAL ABILITY AND NATURAL AUTHORITY, WHICH HE HAD DEMONSTRATED INTER ALIA WHEN HE WAS TEMPORARILY IN CHARGE OF THE DIVISION . THE COUNCIL ALSO RELIES ON THE FACT THAT MR CONSTANTINOPOULOS WAS MORE SUCCESSFUL THAN THE APPLICANT IN THE ORAL TEST IN THE COMPETITION DESIGNED TO ASSESS CANDIDATES '
ORGANIZATIONAL AND ADMINISTRATIVE ABILITIES . IN THE LIGHT OF THOSE EXPLANATIONS THE ADMINISTRATION DOES NOT APPEAR TO HAVE EXCEEDED ITS DISCRETION BY APPOINTING THE CANDIDATE WHO WAS PLACED SECOND . AGAIN, THE APPLICANT ' S SUBMISSION CANNOT BE UPHELD .
11 CONSEQUENTLY, THE ARGUMENT THAT ARTICLE 27 OF THE STAFF REGULATIONS WAS INFRINGED MUST BE REJECTED .
12 IN THE SECOND PLACE, THE APPLICANT ALLEGES THAT THE DISPUTED DECISION IS IN BREACH OF THE PRINCIPLE OF EQUALITY OF TREATMENT BETWEEN OFFICIALS AND CONSTITUTES A MISUSE OF POWERS . HE CLAIMS THAT THE ADMINISTRATION SHOWED FROM THE OUTSET A PREFERENCE FOR THE CANDIDATE ULTIMATELY SELECTED, AND THAT THIS HAD MANIFESTED ITSELF INTER ALIA IN ITS ENTRUSTING HIM WITH THE PROVISIONAL MANAGEMENT OF THE DIVISION FOR THE PERIOD FROM 1 APRIL 1982 TO 1 DECEMBER 1983, WHEREAS IT HAD NOT GIVEN THE APPLICANT THE SAME CHANCE TO PROVE HIS ABILITIES . IN THOSE CIRCUMSTANCES THE APPLICANT TAKES THE VIEW THAT THE APPOINTMENT OF MR CONSTANTINOPOULOS WAS REALLY DESIGNED TO COVER EX POST FACTO A DECISION TAKEN EARLIER .
13 IT MUST BE ADMITTED THAT THE PERFORMANCE OF DUTIES ON A TEMPORARY BASIS IS INDEED LIABLE TO PLACE THE PERSON PERFORMING THEM AT AN ADVANTAGE WHEN HE PREPARES FOR A SUBSEQUENT COMPETITION DESIGNED TO FILL THE POST PERMANENTLY . THAT FACT CANNOT, HOWEVER, PREVENT THE ADMINISTRATION FROM TAKING THE INITIAL STEP, SUBJECT TO THE LIMITS LAID DOWN BY THE STAFF REGULATIONS, OF FILLING A POST TEMPORARILY BY CALLING UPON THE PERSON WHOM IT CONSIDERS MOST SUITABLE FOR PERFORMING THE DUTIES INVOLVED . ON NO ACCOUNT MAY THE ADMINISTRATION BE OBLIGED TO OFFER ALL POTENTIAL CANDIDATES FOR A SUBSEQUENT COMPETITION THE CHANCE OF OCCUPYING THE POST IN SUCCESSION . SUCH A PROCEDURE WOULD, AS THE COUNCIL HAS RIGHTLY EMPHASIZED, PREVENT THE SERVICE FROM FUNCTIONING WELL .
14 NOR MAY THE COUNCIL BE TAKEN TO TASK FOR HAVING BEEN GUIDED BY CONSIDERATIONS EXTRANEOUS TO THE INTERESTS OF THE SERVICE WHEN IT DECIDED TO APPOINT MR CONSTANTINOPOULOS . ALTHOUGH IT IS TRUE THAT AN INTERNAL MEMORANDUM, PREPARATORY TO THE DECISION TO MAKE THE APPOINTMENT, MENTIONS INTER ALIA THE ' DISTRESSING POSITION '
IN WHICH MR CONSTANTINOPOULOS MIGHT BE PLACED IF THE APPLICANT WERE APPOINTED, THAT FACT CANNOT INVALIDATE THE GROUNDS CITED BY THE COUNCIL IN SUPPORT OF ITS DECISION, NAMELY THAT IT CHOSE THE CANDIDATE ULTIMATELY SELECTED ON ACCOUNT OF HIS MANAGERIAL QUALITIES .
15 ACCORDINGLY, IT HAS NOT BEEN SHOWN THAT THE COUNCIL WAS IN BREACH OF THE PRINCIPLE OF EQUALITY OR THAT IT MISUSED ITS POWERS, WITH THE RESULT THAT THE ABOVE ARGUMENT MUST ALSO BE REJECTED .
16 LASTLY, THE APPLICANT MAINTAINS THAT MR CONSTANTINOPOULOS COULD NOT BE ADMITTED TO THE TESTS IN COMPETITION NO LA/250 AND COULD NOT THEREFORE BE APPOINTED AS A RESULT, BECAUSE HE DID NOT FULFIL THE CONDITION OF AT LEAST 10 YEARS '
EXPERIENCE OF TRANSLATING OR REVISING TEXTS, AS WAS REQUIRED BY THE NOTICE OF COMPETITION .
17 IN SUPPORT OF THAT ARGUMENT THE APPLICANT DRAWS ATTENTION TO THE DISCREPANCY BETWEEN MR CONSTANTINOPOULOS '
APPLICATION FORM FOR COMPETITION NO LA/250 AND HIS APPLICATION FOR AN EARLIER COMPETITION, COMPETITION NO LA/198, ON THE BASIS OF WHICH HE HAD BEEN RECRUITED BY THE COUNCIL . THE DISCREPANCY AS TO HIS PROFESSIONAL EXPERIENCE IS DUE TO DIFFERING ATTESTATIONS FROM THE SAME EMPLOYER, NAMELY EXANTAS LIMITED, WHICH IN 1980 CERTIFIED THAT MR CONSTANTINOPOULOS HAD WORKED WITH EXANTAS FROM NOVEMBER 1976 TO MARCH 1978, BUT CERTIFIED IN 1983 THAT THE COLLABORATION EXTENDED FROM 1972 UNTIL MR CONSTANTINOPOULOS WAS RECRUITED BY THE COUNCIL .
18 THE ABOVE ARGUMENT, WHICH WAS RAISED IN THE COURSE OF THE PROCEEDINGS, IS ADMISSIBLE PURSUANT TO ARTICLE 42 ( 2 ) OF THE RULES OF PROCEDURE ON THE GROUND THAT IT IS BASED ON A COMPARISON OF THE APPLICATION FORMS SUBMITTED BY THE PERSON APPOINTED IN THE COMPETITION AT ISSUE AND ( PREVIOUSLY ) IN COMPETITION NO LA/198, AND THAT THE EARLIER DOCUMENT WAS NOT ADDED BY THE COUNCIL TO THE DOCUMENTS LAID BEFORE THE COURT UNTIL THE WRITTEN PROCEDURE HAD CLOSED .
19 AS REGARDS THE SUBSTANCE OF THE ARGUMENT IT SHOULD BE NOTED THAT, IN HIS APPLICATION FOR THE COMPETITION AT ISSUE IN THESE PROCEEDINGS, MR CONSTANTINOPOULOS STATED THAT HE HAD WORKED AS A COMMISSIONING EDITOR AND TRANSLATOR AND REVISER FOR EXANTAS LIMITED . PUBLISHERS, IN ATHENS, FROM 1972 TO 1980 AND AS AN EXTERNAL READER AND TRANSLATOR FOR THE PUBLISHERS GERHARDT VERLAG, IN BERLIN, FROM 1976 TO 1979, AND THAT HE HAD FOLLOWED A POST-GRADUATE COURSE IN THE FEDERAL REPUBLIC OF GERMANY FROM 1968 TO 1973 . IN HIS APPLICATION FORM FOR COMPETITION NO LA/198, ON THE OTHER HAND, HE DECLARED THAT HE HAD WORKED FOR EXANTAS AS A TRANSLATOR AND REVISER FROM 1976 TO 1978 AND FOR GERHARDT VERLAG AS AN EXTERNAL READER AND TRANSLATOR FROM 1976 TO 1979, AND THAT HE HAD FOLLOWED A POST-GRADUATE COURSE IN THE FEDERAL REPUBLIC OF GERMANY FROM 1968 TO 1975 .
20 THE COURT TOOK THE VIEW THAT THE DISCREPANCIES BETWEEN THE EVIDENCE CONTAINED IN THE TWO APPLICATION FORMS GAVE RISE TO DOUBT AS TO THE NATURE AND DURATION OF THE PROFESSIONAL EXPERIENCE ACQUIRED BY THE OFFICIAL APPOINTED . IN ORDER TO CLARIFY THE POINT, THE COURT HEARD EVIDENCE FROM MR CONSTANTINOPOULOS AND FROM A REPRESENTATIVE OF EXANTAS LIMITED, MR BANOUSSIS, AS TO THE PERIOD DURING WHICH, AND THE CAPACITY IN WHICH, MR CONSTANTINOPOULOS WORKED FOR EXANTAS .
21 THE WITNESSES GIVING EVIDENCE WERE CONSISTENT IN STATING THAT FROM 1972 TO 1980 MR CONSTANTINOPOULOS HAD LIVED PARTLY IN BERLIN AND PARTLY IN GREECE AND HAD THROUGHOUT THAT PERIOD WORKED FULL-TIME FOR EXANTAS AS AN EXTERNAL READER . THE POST HAD ENTAILED THE TRANSLATION OF PUBLICATIONS OR PARTS THEREOF AND THE SUPERVISION, REVISION AND COLLATION OF TRANSLATIONS BY OTHER TRANSLATORS . MR CONSTANTINOPOULOS FURTHER DECLARED, AS A WITNESS, THAT ALTHOUGH HE HAD ENROLLED AT THE FREE UNIVERSITY OF BERLIN BETWEEN 1972 AND 1975 HE HAD NOT ATTENDED MORE THAN TWO OR THREE SEMINARS A WEEK, WHICH HAD NOT PREVENTED HIM FROM DEVOTING MOST OF HIS TIME TO TRANSLATION WORK .
22 THE COURT HAS ALSO TAKEN NOTE OF A STATEMENT BY MR CONSTANTINOPOULOS WHICH WAS ADDED BY THE COUNCIL TO THE DOCUMENTS OF THE CASE, EXPLAINING THAT HE HAD CONFINED HIMSELF, FOR EACH OF THE TWO COMPETITIONS, TO PRODUCING THE DOCUMENTARY EVIDENCE TO COVER THE MINIMUM CONDITIONS REQUIRED FOR ADMISSION TO THE COMPETITION .
23 IN THE LIGHT OF THAT EVIDENCE IT MUST BE HELD THAT THE APPLICANT HAS FAILED TO SHOW THAT, CONTRARY TO THE STATEMENTS IN HIS APPLICATION FORM FOR THE COMPETITION AT ISSUE IN THESE PROCEEDINGS, MR CONSTANTINOPOULOS DID NOT WORK FULL-TIME FOR EXANTAS LIMITED, PUBLISHERS, IN THE TRANSLATION AND REVISION OF TEXTS THROUGHOUT THE PERIOD FROM 1972 UNTIL HIS ENTRY INTO THE SERVICE OF THE COUNCIL .
24 SINCE THE APPLICANT HAS THEREFORE FAILED TO ESTABLISH THAT THE CANDIDATE APPOINTED HAD NOT, BY 23 FEBRUARY 1983 ( THE DATE OF PUBLICATION OF THE NOTICE OF COMPETITION ), FULFILLED THE CONDITION OF AT LEAST 10 YEARS '
RELEVANT EXPERIENCE REQUIRED FOR ADMISSION TO THE COMPETITION, THIS SUBMISSION MUST LIKEWISE BE REJECTED .
THE CLAIM FOR COMPENSATION 25 SINCE IT IS CLEAR FROM THE FOREGOING THAT THE CONTESTED DECISION TO APPOINT MR CONSTANTINOPOULOS WAS NOT VITIATED BY ILLEGALITY, THE CLAIM FOR COMPENSATION FOR THE DAMAGE ALLEGEDLY INCURRED AS A RESULT OF THE CONTESTED DECISION MUST ALSO BE REJECTED .
Decision on costs
COSTS
26 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY MUST BE ORDERED TO PAY THE COSTS IF THEY HAVE BEEN ASKED FOR IN THE SUCCESSFUL PARTY ' S PLEADING . HOWEVER, ARTICLE 70 OF THE RULES OF PROCEDURE PROVIDES THAT THE INSTITUTIONS MUST BEAR THEIR OWN COSTS IN ACTIONS BROUGHT BY SERVANTS OF THE COMMUNITIES .
Operative part
ON THOSE GROUNDS,
THE COURT ( THIRD CHAMBER )
HEREBY :
( 1 ) DISMISSES THE APPLICATION ;
( 2 ) ORDERS EACH PARTY TO BEAR ITS OWN COSTS .