61982CJ0316_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN JOINED CASES 316/82 AND 40/83
NELLY KOHLER, AN OFFICIAL AT THE COURT OF AUDITORS OF THE EUROPEAN COMMUNITIES, RESIDING AT 34 RUE J.-B . FRESEZ, LUXEMBOURG, REPRESENTED AND ASSISTED BY FRANCIS HERBERT OF THE BRUSSELS BAR, 116 AVENUE DE BROQUEVILLE, 1200 BRUSSELS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF NICOLAS DECKER, 16 AVENUE MARIE-THERESE,
APPLICANT,
V
COURT OF AUDITORS OF THE EUROPEAN COMMUNITIES, REPRESENTED BY JEAN-AIME STOLL, SECRETARY OF THE COURT OF AUDITORS, ASSISTED BY ALEX BONN OF THE LUXEMBOURG BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF THE SAID ALEX BONN, 22 COTE D ' EICH,
DEFENDANT,
Subject of the case
APPLICATION FOR THE ANNULMENT OF THE APPOINTING AUTHORITY ' S DECISIONS NOT TO APPOINT THE APPLICANT TO THE POST DECLARED VACANT, WHEN SHE WAS THE ONLY SUCCESSFUL CANDIDATE IN THE COMPETITION ORGANIZED FOR THE PURPOSE,
Grounds
1 BY TWO SEPARATE APPLICATIONS, LODGED AT THE COURT REGISTRY ON 13 DECEMBER 1982 AND 15 MARCH 1983, NELLY KOHLER, AN OFFICIAL AT THE COURT OF AUDITORS AT PRESENT IN GRADE LA 6, STEP 2, BROUGHT ACTIONS THE FIRST OF WHICH SOUGHT THE ANNULMENT OF THE DECISION OF THE APPOINTING AUTHORITY, WHICH WAS ORALLY COMMUNICATED TO THE APPLICANT ON 21 APRIL 1982, NOT TO APPOINT HER TO THE POST OF REVISER AND PRINCIPAL TRANSLATOR IN THE FRENCH TRANSLATION SECTION OF THE COURT OF AUDITORS, DECLARED VACANT BY VACANCY NOTICE NO CC/LA/3/81, AND THE SECOND OF WHICH SOUGHT THE ANNULMENT OF THE APPOINTING AUTHORITY ' S DECISION OF 14 SEPTEMBER 1982, REFUSING TO APPLY THE LIST OF SUITABLE CANDIDATES DRAWN UP BY THE SELECTION BOARD IN COMPETITION NO CC/LA/12/81 RELATING TO THAT VACANCY . THE SECOND ACTION IS BROUGHT IN THE ALTERNATIVE, IN CASE THE COURT SHOULD DECLARE THE FIRST ACTION TO BE INADMISSIBLE .
2 SIMULTANEOUSLY WITH THE PROCEDURE FOR THAT COMPETITION, TWO FURTHER PROCEDURES WERE COMMENCED FOR THE POSTS OF ' ' REVISER/PRINCIPAL TRANSLATOR ' '
IN THE DANISH AND ITALIAN SECTIONS . THE VACANCY AND COMPETITION NOTICES FOR ALL THREE WERE WORDED IN IDENTICAL TERMS . THE SUCCESSFUL CANDIDATES IN THE COMPETITIONS FOR THE DANISH AND ITALIAN SECTIONS WERE APPOINTED BY DECISION OF THE APPOINTING AUTHORITY ON 21 APRIL 1982 . ON THE SAME DAY, HOWEVER, AT AN INTERVIEW WITH THE PRESIDENT OF THE COURT OF AUDITORS, THE APPLICANT WAS REFUSED APPOINTMENT TO THE POST OF ' ' REVISER/PRINCIPAL TRANSLATOR ' '
IN THE FRENCH SECTION, WHICH WAS THE SUBJECT OF VACANCY NOTICE NO CC/LA/3/81 AND OF INTERNAL COMPETITION NO CC/LA/12/81, IN WHICH SHE HAD SUCCESSFULLY TAKEN PART, BECOMING THE ONLY PERSON TO BE ENTERED ON THE LIST OF SUITABLE CANDIDATES .
3 HER COMPLAINT OF 24 MAY 1982 UNDER ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS WAS REJECTED BY A DECISION DATED 14 SEPTEMBER 1982 OF THE PRESIDENT OF THE COURT OF AUDITORS, ACTING AS THE APPOINTING AUTHORITY . THE COMPLAINT WAS HELD TO BE INADMISSIBLE ON THE GROUNDS THAT IT WAS NOT PRECEDED EITHER BY A REQUEST OR BY A REJECTION THEREOF, AND WAS IN ANY CASE UNFOUNDED .
4 IN THE MEANTIME, BY A STAFF MEMORANDUM OF 21 JULY 1982, CORRECTED ON 23 JULY 1982, THE VACANCY REFERRED TO BY NOTICE NO CC/LA/3/81 WAS CANCELLED BY THE ADMINISTRATION, ON THE GROUNDS THAT ' ' IT HAS BECOME APPARENT, ESPECIALLY IN THE LIGHT OF CERTAIN RESULTS OF THE PROCEDURE FOR FILLING THE SAID POST, THAT THE CONDITIONS LAID DOWN BY THE VACANCY NOTICE WERE NOT IN KEEPING WITH THE NEEDS OF THE DEPARTMENT ' ' .
5 FOLLOWING THE REJECTION ON 14 SEPTEMBER 1982 OF HER COMPLAINT, THE APPLICANT BROUGHT HER FIRST ACTION ( CASE 316/82 ) ON 13 DECEMBER 1982 .
6 ON THE SAME DATE, 13 DECEMBER 1982, THE APPLICANT LODGED A SECOND, ALTERNATIVE COMPLAINT IN CASE THE COURT OF JUSTICE SHOULD APPROVE THE REASONING OF THE APPOINTING AUTHORITY AND REGARD THE EARLIER COMPLAINT OF 24 MAY 1982 AS INADMISSIBLE ON THE GROUND THAT IT HAD NOT BEEN PRECEDED BY A REQUEST WITHIN THE MEANING OF ARTICLE 90 ( 1 ) OF THE STAFF REGULATIONS . IN THAT EVENTUALITY, THE FIRST COMPLAINT WAS TO BE TREATED AS SUCH A REQUEST AND DEEMED TO HAVE BEEN REJECTED BY THE ABOVE-MENTIONED DECISION OF THE APPOINTING AUTHORITY OF 14 SEPTEMBER 1982 . IT WAS AGAINST THAT DECISION THAT THE SECOND COMPLAINT WAS DIRECTED .
7 BY DECISION OF 2 FEBRUARY 1983 THE APPOINTING AUTHORITY REJECTED THAT SECOND COMPLAINT AS BEING BROUGHT OUT OF TIME, ARGUING INTER ALIA THAT THE DECISION OF 14 SEPTEMBER 1982 SERVED MERELY AS A CONFIRMATION OF ITS DECISION OF 21 JULY 1982 CONTAINED IN THE STAFF MEMORANDUM, WHICH MUST BE REGARDED AS THE DECISION ADVERSELY AFFECTING THE APPLICANT AND AS CAUSING THE PERIOD PRESCRIBED BY ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS TO START TO RUN . THAT PERIOD CONSEQUENTLY LAPSED ON 21 OCTOBER 1982 .
A - CASE 316/82
ADMISSIBILITY
8 IN ITS DEFENCE THE COURT OF AUDITORS CLAIMS THAT THE ACTION IS INADMISSIBLE ON THE GROUND THAT IT IS DIRECTED AT AN ORAL DECISION OF 21 APRIL 1982, WHICH NEVER EXISTED SINCE IT WAS NEVER COMMUNICATED IN WRITING AS REQUIRED BY ARTICLE 25 OF THE STAFF REGULATIONS .
9 THE POSSIBILITY THAT A LEGALLY ACTIONABLE DECISION MAY HAVE ORAL FORM IS NOT IN PRINCIPLE PRECLUDED EITHER BY A PROVISION OF GENERAL SCOPE OR BY ANY SPECIAL PROVISIONS IN THE STAFF REGULATIONS .
10 IN PARTICULAR, ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS, WHICH PROVIDES THAT OFFICIALS ' ' MAY SUBMIT TO THE APPOINTING AUTHORITY A COMPLAINT AGAINST AN ACT . . . ' ', DOES NOT PREVENT SUCH AN ACT FROM BEING EXPRESSED ORALLY .
11 FURTHERMORE, THE POSSIBILITY THAT AN ACT MAY HAVE ORAL FORM IS NOT PRECLUDED BY ARTICLE 25 OF THE STAFF REGULATIONS, WHICH PROVIDES THAT : ' ' ANY DECISION RELATING TO A SPECIFIC INDIVIDUAL . . . SHALL AT ONCE BE COMMUNICATED IN WRITING TO THE OFFICIAL CONCERNED . ' '
THE COMMUNICATION IS, INDEED, AN ACT SUBSEQUENT TO THE DECISION ( JUDGMENT OF 29 OCTOBER 1981, CASE 125/80 ARNING ( 1981 ) ECR 2539 ), THAT DECISION HAVING BEEN ALREADY ADOPTED AND HAVING PRIOR EXISTENCE . THE DEFENDANT IS THEREFORE WRONG IN INTERPRETING ARTICLE 25 OF THE STAFF REGULATIONS AS MEANING THAT IT CALLS FOR WRITING AS A PREREQUISITE FOR THE EXISTENCE OF THE ACT TO BE COMMUNICATED .
12 IT IS COMMON GROUND THAT, AT THE INTERVIEW ON 21 APRIL 1982, THE APPOINTING AUTHORITY EXPRESSLY INTIMATED ITS INTENTION NOT TO PURSUE THE PROCEDURE BY APPOINTING THE APPLICANT TO THE POST DECLARED VACANT . THAT ORAL DECISION CONSTITUTES AN ACT FOR THE PURPOSES OF ARTICLE 90 OF THE STAFF REGULATIONS .
13 IT FOLLOWS THAT THE DEFENDANT ' S ARGUMENT AS TO THE ABSENCE OF ANY WRITTEN FORM FOR THE DISPUTED ACT IS UNFOUNDED QUITE APART FROM THE FACT THAT TO ACCEPT THE ARGUMENTS OF THE COURT OF AUDITORS WOULD BE TANTAMOUNT TO ALLOWING IT TO TAKE ADVANTAGE OF AN INFRINGEMENT, WHICH IT HAS ITSELF COMMITTED, OF ARTICLE 25 OF THE STAFF REGULATIONS SO AS TO DEPRIVE THE APPLICANT OF HER RIGHT OF ACTION .
14 THE COURT OF AUDITORS FURTHER CONTENDS THAT, IN ANY EVENT, THERE IS NO ACT ADVERSELY AFFECTING THE APPLICANT BECAUSE NO INDIVIDUAL DECISION DETRIMENTAL TO HER WAS EVER TAKEN, SINCE THE HALTING OF THE PROCEDURE FOR FILLING THE VACANCY CONSTITUTED A GENERAL MEASURE, PURSUED IN THE INTERESTS OF THE SERVICE .
15 THAT ARGUMENT OF THE DEFENDANT MUST BE DISMISSED . A DECISION NOT TO GIVE EFFECT TO A COMPLETED SELECTION PROCEDURE, EVEN IN CASES IN WHICH IT IS CLEAR THAT THE DECISION WAS TAKEN ON GENERAL GROUNDS CONNECTED WITH THE ORGANIZATION OF THE SERVICE, CANNOT BUT BE AIMED, DIRECTLY AND INDIVIDUALLY, AT THE ONLY SUCCESSFUL CANDIDATE IN A COMPETITION WHICH HAS PROGRESSED NORMALLY UNTIL THAT MOMENT . THE NEED WHICH THE APPOINTING AUTHORITY FELT TO INFORM THE APPLICANT AT THE INTERVIEW ON 21 APRIL 1982 MOREOVER SHOWS CLEARLY THAT EVEN THE APPOINTING AUTHORITY REGARDED MRS KOHLER AS THE OBJECT OF ITS DECISION .
16 IT FOLLOWS THAT THE OBJECTION THAT THE APPLICATION IN CASE 316/82 IS INADMISSIBLE MUST BE DISMISSED .
SUBSTANCE
17 THE APPLICANT BASES HER ACTION ON FOUR ARGUMENTS, NAMELY THE INFRINGEMENT OF ESSENTIAL PROCEDURAL REQUIREMENTS LAID DOWN BY ARTICLE 25 OF THE STAFF REGULATIONS ; INFRINGEMENT OF THE PROVISIONS OF THE STAFF REGULATIONS AND BREACH OF GENERAL LEGAL PRINCIPLES, ON THE GROUNDS THAT THE APPOINTING AUTHORITY OVERTURNED THE SELECTION BOARD ' S DECISION AND DISREGARDED THE WORDING OF THE VACANCY NOTICE ; DISCRIMINATION IN COMPARISON WITH THE SUCCESSFUL CANDIDATES IN TWO OTHER PARALLEL COMPETITIONS, WHO WERE APPOINTED ON 21 APRIL 1981 ; AND, LASTLY, MISUSE OF POWERS INASMUCH AS THE DECISION NOT TO APPOINT HER SOUGHT TO ATTAIN A GOAL OTHER THAN THE LEGAL ONE, NAMELY TO GIVE PREFERENCE TO ANOTHER CANDIDATE WHO WAS UNSUCCESSFUL IN THE COMPETITION .
18 THE COURT TAKES THE VIEW THAT, IN THE FIRST INSTANCE, IT SHOULD CONSIDER THE ARGUMENT CONCERNING THE INADEQUACY OF THE STATEMENT OF THE REASONS ON WHICH THE CONTESTED DECISION WAS BASED .
STATEMENT OF REASONS
19 IN THIS SUBMISSION, THE APPLICANT BASICALLY ASSERTS THAT IN SPITE OF THE VARIOUS STATEMENTS OF REASONS TO WHICH THE COURT OF AUDITORS HAS POINTED, ONE AFTER THE OTHER, NONE MAY BE CONSIDERED TO AFFORD A VALID BASIS FOR THE DISPUTED DECISION .
20 INDEED, SHE STATES THAT, AT THE INTERVIEW ON 21 APRIL 1982, THE REASON GIVEN BY THE APPOINTING AUTHORITY WAS THE APPLICANT ' S LACK OF EXPERIENCE, WHEREAS IN THE STAFF MEMORANDUM OF 21 JULY 1982 AND IN THE DECISION OF 14 SEPTEMBER 1982 REJECTING HER COMPLAINT - AND BY THE AUTHORITY ' S OWN ADMISSION ' ' IN THE LIGHT OF CERTAIN RESULTS OF THE PROCEDURE FOR FILLING THE POST ' '
- REFERENCE IS MADE TO THE FAILURE OF THE CONDITIONS IN THE VACANCY NOTICE TO REFLECT THE NEEDS OF THE SERVICE . MOREOVER, IT WAS NOT UNTIL THE COURT HEARING THAT THE APPOINTING AUTHORITY ADDUCED NEW REASONS, BASED ON THE NEED TO GIVE PRIORITY TO FILLING THE VACANCY FOR A HEAD OF THE FRENCH SECTION . THE SUCCESSIVE STATEMENTS OF REASONS FURTHER PROVE, SHE CLAIMS, THAT THE APPOINTING AUTHORITY AIMED TO ELIMINATE THE APPLICANT AS CANDIDATE IN FAVOUR OF THE CANDIDATE PREFERRED BY THE APPOINTING AUTHORITY, WHO HAD, HOWEVER, BEEN UNSUCCESSFUL IN THE COMPETITION .
21 ON THE OTHER HAND, THE COURT OF AUDITORS CONTENDS THAT THE REASONING BASED ON THE NEEDS OF THE SERVICE ALONE IS UNCHANGED, AND THAT ANY VARIATION IS DUE TO AN ELABORATION AND EXPLANATION OF THE REASONS ALREADY STATED TO THE APPLICANT AT THE INTERVIEW ON 21 APRIL 1982 . IT ARGUES IN PARTICULAR THAT THE APPOINTING AUTHORITY IS NOT COMPELLED TO GIVE EFFECT TO A SELECTION PROCEDURE BY APPOINTING THE SUCCESSFUL CANDIDATES .
22 IT IS TO BE NOTED THAT WHILST, AS THE COURT HAS PREVIOUSLY HELD, THE STAFF REGULATIONS DO NOT PLACE THE APPOINTING AUTHORITY UNDER AN OBLIGATION TO PURSUE A RECRUITMENT PROCEDURE ONCE IT HAS BEGUN, BY FILLING THE VACANCY CONCERNED, THE RULE IS NONE THE LESS THAT, IN FILLING A POST DECLARED VACANT, THE APPOINTING AUTHORITY MUST PROCEED WITH THE APPOINTMENT OF SUCCESSFUL CANDIDATES IN ACCORDANCE WITH THE COMPETITION RESULTS AND CANNOT DEVIATE FROM THAT RULE EXCEPT FOR WEIGHTY REASONS, JUSTIFYING ITS DECISION CLEARLY AND FULLY .
23 IN THE PRESENT INSTANCE THERE WAS A SPECIAL NEED FOR SUCH JUSTIFICATION, BECAUSE THE COURT OF AUDITORS HAD, SIMULTANEOUSLY WITH THE COMPETITION AT ISSUE, OPENED TWO FURTHER COMPETITIONS FOR FILLING THE POSTS OF ' ' REVISER/PRINCIPAL TRANSLATOR ' '
IN THE DANISH AND ITALIAN SECTIONS, AND HAD HAD NO DIFFICULTY, ON 21 APRIL 1982, IN APPOINTING THE SUCCESSFUL CANDIDATES IN THOSE COMPETITIONS . IT WAS THUS APPROPRIATE, IN ORDER TO PRECLUDE ANY ACCUSATION OF DISCRIMINATION, TO EXPLAIN WHY THE SAME STEP COULD NOT HAVE BEEN TAKEN IN
REGARD TO MRS KOHLER, AS THE SUCCESSFUL CANDIDATE IN COMPETITION NO CC/LA/12/81 .
24 IN THAT REGARD, THE COURT OBSERVES THAT THE DEFENDANT, AT THE VARIOUS STAGES IN THE DISPUTE, IN THE ADMINISTRATIVE PHASE AND LATER BEFORE THE COURT, ADDUCED REASONS WHICH ARE HARD TO RECONCILE WITH ONE ANOTHER AND WHICH, MOREOVER, ARE NOT BORNE OUT BY THE DOCUMENTS ON THE FILE .
25 ALTHOUGH THE REASON CITED AT THE INTERVIEW OF 21 APRIL 1982 WAS THE APPLICANT ' S LACK OF EXPERIENCE, IT SHOULD BE POINTED OUT THAT THE SELECTION BOARD, WHICH HAD ENTERED MRS KOHLER ON ITS LIST OF SUITABLE CANDIDATES FOR PERFORMING THE TASKS OF REVISER AND PRINCIPAL TRANSLATOR IN THE FRENCH TRANSLATION SECTION, HAD JUST MADE AN ASSESSMENT TO THE CONTRARY, WHICH THE ADMINISTRATION WAS NOT ENTITLED TO CHALLENGE .
26 WHILST THE STAFF MEMORANDUM OF 21 JULY 1982 AND THE DECISION DATED 14 SEPTEMBER 1982 REJECTING THE APPLICANT ' S COMPLAINT BOTH RECORD THE INAPPROPRIATE NATURE, IN TERMS OF THE NEEDS OF THE SERVICE, OF THE CONDITIONS LAID DOWN BY THE VACANCY NOTICE, IT IS APPARENT FROM THE DOCUMENTS ON THE FILE THAT THEIR INAPPROPRIATE NATURE WAS CITED ' ' IN THE LIGHT OF CERTAIN RESULTS ' '
OF THE COMPETITION . THE INFERENCE MUST BE DRAWN THAT THE ADMINISTRATION, IN USING THAT FORMULA, STILL INTENDED TO CONTEST MRS KOHLER ' S ABILITY TO PERFORM THE DUTIES FOR WHICH SHE HAD RECENTLY COMPETED AND, ACTING ULTRA VIRES, TO CHALLENGE THE SELECTION BOARD ' S APPRAISAL OF HER MERITS .
27 FINALLY, ALTHOUGH THE DEFENDANT, IN THE COURSE OF THE ORAL PROCEDURE BEFORE THE COURT, REFERRED TO THE NEED TO GIVE PRIORITY TO FILLING THE VACANCY FOR A HEAD OF THE FRENCH TRANSLATION SECTION, IT WAS UNABLE TO EXPLAIN WHY THE PURSUIT OF THAT OBJECTIVE DEMANDED THE INTERRUPTION OF THE PROCEDURE ALREADY IN PROGRESS FOR FILLING THE POST OF REVISER AND PRINCIPAL TRANSLATOR IN THE SAME SECTION, FOR WHICH THE APPLICANT WAS A CANDIDATE .
28 IT IS APPARENT FROM THESE FINDINGS THAT NONE OF THE SUCCESSIVE STATEMENTS OF REASONS PUT FORWARD BY THE DEFENDANT IS CAPABLE OF JUSTIFYING IN LAW THE DECISION NOT TO PURSUE THE PROCEDURE FOR FILLING THE POST OF REVISER AND PRINCIPAL TRANSLATOR IN THE FRENCH TRANSLATION SECTION OF THE COURT OF AUDITORS
BY APPOINTING THE SUCCESSFUL CANDIDATE IN COMPETITION NO CC/LA/12/81 . THE CONTESTED DECISION SHOULD THEREFORE BE ANNULLED .
29 IN THOSE CIRCUMSTANCES THERE IS NO NEED TO CONSIDER THE OTHER ARGUMENTS PUT FORWARD BY THE APPLICANT .
30 PURSUANT TO THE FIRST PARAGRAPH OF ARTICLE 176 OF THE EEC TREATY, IT IS FOR THE ADMINISTRATION TO TAKE THE NECESSARY MEASURES TO COMPLY WITH THE JUDGMENT OF THE COURT .
B - CASE 40/83
ADMISSIBILITY
31 THE ACTION IN THIS CASE, BROUGHT IN THE ALTERNATIVE TO CASE 316/82, IS DIRECTED AGAINST THE DECISION OF 14 SEPTEMBER 1982 REJECTING THE APPLICANT ' S COMPLAINT .
32 AS HAS ALREADY BEEN DEMONSTRATED IN THE EXAMINATION OF CASE 316/82, THE DECISION ADVERSELY AFFECTING THE APPLICANT IS THE ORAL DECISION COMMUNICATED TO HER AT THE INTERVIEW ON 21 APRIL 1982 .
33 CONSEQUENTLY, THE DECISION OF 14 SEPTEMBER 1982 CAN BE NO MORE THAN A CONFIRMATION OF THE EARLIER ORAL DECISION .
34 HOWEVER, BEING A CONFIRMATORY ACT IT CANNOT BE THE SUBJECT OF PROCEEDINGS BEFORE THE COURT .
35 IT FOLLOWS THAT THE APPLICATION IN CASE 40/83 MUST BE DISMISSED AS INADMISSIBLE .
Decision on costs
COSTS
36 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . SINCE THE DEFENDANT HAS FAILED IN ITS SUBMISSIONS, IT MUST BE ORDERED TO PAY THE COSTS, INCLUDING THOSE RELATING TO THE ACTION IN CASE 40/83, BROUGHT IN THE ALTERNATIVE AS A RESULT OF THE ERRONEOUS ARGUMENTS OF THE COURT OF AUDITORS IN ITS REPLY TO THE APPLICANT ' S FIRST COMPLAINT .
Operative part
ON THOSE GROUNDS,
THE COURT ( FIRST CHAMBER )
HEREBY :
1 . ANNULS THE DECISION OF THE APPOINTING AUTHORITY OF THE COURT OF AUDITORS OF 21 APRIL 1982 NOT TO PURSUE THE PROCEDURE FOR FILLING THE POST DECLARED VACANT BY VACANCY NOTICE NO CC/LA/3/81 BY APPOINTING THE APPLICANT THERETO ;
2 . DISMISSES THE APPLICATION IN CASE 40/83 AS INADMISSIBLE ;
3 . ORDERS THE COURT OF AUDITORS TO PAY THE COSTS .