61973CJ0188_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 188/73
DANIELE GRASSI, OFFICIAL OF THE SECRETARIAT-GENERAL OF THE COUNCIL, 55, REEBOKLAAN, TERVUEREN, REPRESENTED BY MARCEL SLUSNY, ADVOCATE AT THE BRUSSELS COUR D'APPEL, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT, 34B IV, RUE PHILIPPE II, APPLICANT,
V
COUNCIL OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, ANTONIO SACCHETTINI, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF MR VAN DEN HOUTEN, DIRECTOR OF THE LEGAL DEPARTMENT OF THE EUROPEAN INVESTMENT BANK, 2, PLACE DE METZ, DEFENDANT,
Subject of the case
IN THE MATTER OF THE ANNULMENT OF THE EXPRESS DECISION OF THE SECRETARY-GENERAL OF THE COUNCIL ON 13 SEPTEMBER 1973 REJECTING THE COMPLAINT LODGED BY THE APPLICANT ON 9 JULY 1973 CONCERNING THE APPOINTMENT OF MR X TO THE POST OF HEAD OF THE ITALIAN LANGUAGE DIVISION; THE ANNULMENT OF THIS APPOINTMENT, WHICH TOOK PLACE ON 25 MAY 1973,
Grounds
1 BY APPLICATION OF 5 DECEMBER 1973, THE APPLICANT BROUGHT AN ACTION BEFORE THE COURT UNDER ARTICLE 91 OF THE STAFF REGULATIONS FOR ANNULMENT OF THE EXPRESS DECISION OF THE SECRETARY-GENERAL OF THE COUNCIL OF 13 SEPTEMBER 1973 REJECTING THE APPLICANT'S COMPLAINT OF 9 JULY 1973 CONCERNING THE APPOINTMENT OF MR X TO THE POST OF HEAD OF A LANGUAGE DIVISION AND FOR ANNULMENT OF THAT APPOINTMENT, WHICH TOOK PLACE ON 25 MAY 1973 .
2 THE APPLICANT ALSO CLAIMED 'THAT THE COURT SHOULD : ... 4 . TAKE NOTE THAT THE APPLICANT RESERVES THE RIGHT, ON COMPLETION OF THE FORMALITIES PROVIDED FOR UNDER ARTICLES 90 AND 91 OF THE STAFF REGULATIONS, TO BRING AN ACTION BEFORE THE COURT IN THE MATTER OF THE EXPRESS OR IMPLIED REJECTION OF THE REQUEST CONTAINED IN HIS LETTER OF 9 JULY 1973 '.
3 THE APPOINTMENT TOOK PLACE AS PART OF A REORGANIZATION OF THE LANGUAGE DEPARTMENT DESIGNED TO CONVERT ITS SECTIONS INTO DIVISIONS AND WAS MADE PURSUANT TO NOTICE OF VACANCY NO 31/73 OF 29 MARCH 1973 ANNOUNCING FIVE POSTS OF HEAD OF TRANSLATION DIVISION AT GRADE LA 3 .
4 AMONG THE CONDITIONS OF ELIGIBILITY CONTAINED IN THE NOTICE WERE THE FOLLOWING : 'PERFECT COMMAND OF ONE OF THE LANGUAGES OF THE COMMUNITIES, INCLUDING KNOWLEDGE OF ECONOMIC AND LEGAL TERMINOLOGY WITH PARTICULAR REFERENCE TO THE FIELDS CONCERNING THE EUROPEAN COMMUNITIES, AND A THOROUGH KNOWLEDGE OF ( THE ) THREE OTHER LANGUAGES OF THE COMMUNITIES' AND 'EXPERIENCE OF SEVERAL YEARS AS HEAD OF AN ADMINISTRATIVE UNIT OF SOME IMPORTANCE '.
AS TO ADMISSIBILITY
5 THE DEFENDANT PLEADS THAT THE FOURTH PART OF THE APPLICANT'S CLAIM, AS CITED ABOVE, IS INADMISSIBLE BECAUSE IT DOES NOT ARISE OUT OF THE SUBJECT-MATTER OF WHICH THE COURT IS BEING ASKED TO RULE IN THE PRESENT ACTION .
6 THE APPLICANT LEAVES IT TO THE WISDOM OF THE COURT .
7 THE MEANING OF THE FOURTH PART OF THE CLAIM IS, TO SAY THE LEAST, OBSCURE AND ITS RELEVANCE TO A SOLUTION OF THE DISPUTE HAS NOT BEEN ESTABLISHED .
8 THIS CLAIM MUST THEREFORE BE TREATED AS INADMISSIBLE .
9 NO OBJECTIONS HAVE BEEN RAISED AGAINST THE ADMISSIBILITY OF THE APPLICANT'S REMAINING CLAIMS .
AS TO SUBSTANCE
FIRST SUBMISSION
10 THE APPLICANT RELIES ON ARTICLES 25, 45 AND 90 ( 2 ) OF THE STAFF REGULATIONS TO CHALLENGE THE DECISION OF 13 SEPTEMBER 1973 REJECTING HIS COMPLAINT, BECAUSE NO REASONS WERE GIVEN AND A DECISION WHICH IS NOT REASONED PREVENTS THE PERSON CONCERNED FROM BRINGING THE WHOLE OF HIS CASE BEFORE THE COURT .
11 AS REGARDS ARTICLES 25 AND 45 THERE IS NO NEED FOR A DECISION PROMOTING AN INDIVIDUAL TO BE REASONED AS IT DOES NOT ADVERSELY AFFECT THE PERSON TO WHOM IT IS ADDRESSED, VIZ . THE OFFICIAL WHOSE CANDIDATURE HAS BEEN SUCCESSFUL .
12 THE APPOINTING AUTHORITY IS NOT OBLIGED TO GIVE REASONS FOR PROMOTION DECISIONS INSOFAR AS THEY AFFECT CANDIDATES WHO HAVE NOT BEEN PROMOTED; A STATEMENT OF THESE REASONS MIGHT HARM SOME IF NOT ALL UNSUCCESSFUL CANDIDATES .
13 AS FOR ARTICLE 90 ( 2 ), THE OBLIGATION TO GIVE REASONS FOR A DECISION REJECTING A COMPLAINT ALSO APPLIS IN THE CASE OF A DISPUTED PROMOTION .
14 AS, HOWEVER, IN THE WORDS OF ARTICLE 45 OF THE STAFF REGULATIONS, PROMOTION SHALL BE 'BY SELECTION', THE REASONS TO BE GIVEN WILL BE CONCERNED ONLY WITH FULFILMENT OF THE LEGAL CONDITIONS ON WHICH, UNDER THE STAFF REGULATIONS, THE VALIDITY OF THE PROMOTION DEPENDS .
15 A RESTRICTION OF THIS NATURE CANNOT HAMPER THE PERSON CONCERNED IN FRAMING HIS APPEAL TO THE COURT, AS THE SUBJECT OF SUCH AN APPEAL MUST BE THE ACT OR OMISSION WHICH GAVE RISE TO THE COMPLAINT AND, IN MAKING THEIR SUBMISSIONS AND ARGUMENTS TO THE COURT, THE PARTIES ARE NOT BOUND BY THE WORDING OF THE COMPLAINT OR OF THE DECISION REJECTING IT .
16 THE REASONS GIVEN FOR THE DECISION OF 13 SEPTEMBER 1973 STATE THAT THE DISPUTED DECISION TO PROMOTE 'WAS TAKEN AFTER THE COMPARATIVE MERITS OF THE OFFICIALS ELIGIBLE FOR PROMOTION HAD BEEN CONSIDERED AND AFTER ALL ASSESSMENTS OF THEIR ABILITY, WORK AND CONDUCT IN THE DEPARTMENT, AS THEY APPEAR IN THE PERIODICAL REPORTS RENDERED PURSUANT TO ARTICLE 43 OF THE STAFF REGULATIONS, HAD BEEN TAKEN INTO ACCOUNT '.
17 WHILE THIS STATEMENT OF REASONS IS UNDOUBTEDLY CONCISE, IT NEVERTHELESS MEETS THE REQUIREMENTS INDICATED ABOVE .
18 IT WOULD, MOREOVER, HAVE BEEN DIFFICULT TO AMPLIFY IT WITHOUT DISCUSSING THE MERITS OF THE VARIOUS CANDIDATES ON THE BASIS OF THEIR PERSONAL FILES .
19 THIS SUBMISSION MUST, ACCORDINGLY, FAIL .
SECOND SUBMISSION
20 THE APPLICANT ALLEGES THAT, IN PROMOTING MR X, THE SECRETARY-GENERAL OF THE COUNCIL IGNORED THE LINGUISTIC CONDITIONS OF ELIGIBILITY PUBLISHED IN NOTICE OF VACANCY NO 31/73, SINCE THE PROMOTED OFFICIAL DOES NOT POSSESS 'A THOROUGH KNOWLEDGE OF ( THE ) THREE OTHER LANGUAGES OF THE COMMUNITIES IN ADDITION TO PERFECT COMMAND OF HIS MOTHER TONGUE '.
21 IN FACT, HE HAS A THOROUGH KNOWLEDGE ONLY OF FRENCH AND ONLY AN IMPERFECT KNOWLEDGE OF THE OTHER LANGUAGES .
22 WHILE RECOGNIZING THAT, IN MAKING A PROMOTION OR APPOINTMENT, IT IS BOUND TO ABIDE BY THE CONDITIONS FIXED BY ITSELF, THE DEFENDANT MAINTAINS THAT, IN THIS CASE, IT ACTED ON THE BASIS OF AN ASSESSMENT MADE NOT ONLY OF THE ABILITY AND WORK BUT ALSO OF THE OVERALL PERSONALITY OF EACH OF THE CANDIDATES FOR THE VACANCY .
23 THE COURT CAN GO INTO THE FACTS ON WHICH THE DECISION WAS BASED ONLY IF THE PERSONAL FILE AND ITS CONTENTS REVEAL SOMETHING MANIFESTLY QUESTIONABLE .
24 AS THERE WAS NOTHING OF THIS KIND IN THE PRESENT CASE, THE SUBMISSION SHOULD BE REJECTED WITHOUT ADOPTING THE MEASURES OF INQUIRY REQUESTED BY THE APPLICANT .
25 ARTICLE 45 PROVIDES THAT PROMOTION SHALL BE EXCLUSIVELY BY SELECTION AFTER CONSIDERATION OF THE COMPARATIVE MERITS OF THE OFFICIALS ELIGIBLE FOR PROMOTION AND OF THE REPORTS ON THEM .
26 WHILE THE APPOINTING AUTHORITY ENJOYS WIDE DISCRETION IN THIS MATTER, THERE IS IPSO FACTO AN ASSUMPTION THAT THE EXERCISE OF THIS DISCRETION WILL INCLUDE CAREFUL EXAMINATION OF THE FILES AND METICULOUS REGARD TO THE REQUIREMENTS LAID DOWN IN THE NOTICE OF VACANCY .
27 THE APPLICANT'S OBJECTIONS, WHICH HAVE NOT BEEN DISPELLED BY THE DEFENDANT, ARE CONCERNED PARTICULARLY WITH THE PHYSICAL ACCURACY OF FACTUAL STATEMENTS WHOSE CORRECTNESS CAN BE OBJECTIVELY ASSESSED .
28 FROM THE BIENNIAL REPORTS ON MR X, IT APPEARS THAT HIS KNOWLEDGE OF TWO LANGUAGES HAS BEEN DESCRIBED AS 'VERY GOOD', OF ANOTHER AS 'GOOD', AND OF A FOURTH AS 'FAIR '.
29 IT IS NOT DISPUTED THAT, TO MAKE COMPARISON EASIER, THE LEVELS 'VERY GOOD', 'GOOD' AND 'FAIR' ARE IN CURRENT USE TO CLASSIFY KNOWLEDGE OF LANGUAGES IN THE BIENNIAL REPORTS .
30 ON THE OTHER HAND, THERE IS EQUALLY NO DISPUTE THAT, IN THE QUALIFICATIONS REQUIRED IN NOTICES OF VACANCY, THE LEVELS OF ATTAINMENT REQUIRED IN LANGUAGES ARE DESCRIBED BY THE EXPRESSIONS 'PERFECT COMMAND', 'THOROUGH KNOWLEDGE', AND 'ADEQUATE KNOWLEDGE '.
31 IN THE CIRCUMSTANCES, THE QUESTION IS WHETHER MR X SATISFIED THE CONDITION LAID DOWN IN THE NOTICE OF VACANCY : 'PERFECT COMMAND OF ONE OF THE LANGUAGES OF THE COMMUNITIES ... AND A THOROUGH KNOWLEDGE OF ( THE ) THREE OTHER LANGUAGES OF THE COMMUNITIES '.
32 ON THIS POINT MR H . NOACK, FORMER DIRECTOR OF THE LANGUAGE DEPARTMENT OF THE COUNCIL, WHO APPEARED AS A WITNESS, DECLARED .. 'THE EXPRESSION' 'THOROUGH KNOWLEDGE' IS TO BE REGARDED AS A PRACTICAL EXPRESSION WHOSE MEANING DEPENDS ON THE OTHER TWO EXPRESSIONS, 'PERFECT COMMAND' AND 'ADEQUATE KNOWLEDGE '. 'PERFECT COMMAND' IS INTENDED TO INDICATE 'THE HIGHEST POSSIBLE LEVEL' OF KNOWLEDGE OF A LANGUAGE . THE TWO EXPRESSIONS, 'THOROUGH KNOWLEDGE' AND 'ADEQUATE KNOWLEDGE', REPRESENT LEVELS BELOW THAT OF PERFECT KNOWLEDGE . THE EXPRESSIONS 'VERY GOOD', 'GOOD' AND 'FAIR' MAKE THESE LEVELS EASIER TO UNDERSTAND . THE THREE CLASSIFICATIONS CANNOT BE PRECISELY EQUIVALENT IN EACH CASE : THEIR MEANING VARIES ACCORDING TO THE PERSON USING THEM; THE SIGNIFICANCE OF THOROUGH KNOWLEDGE MUST BE ASSESSED IN COMPARISON WITH THE OTHER EXPRESSIONS '.
33 MR G . BATTIN, A FORMER ASSISTANT HEAD OF THE LANGUAGE DEPARTMENT OF THE COUNCIL, WHO ALSO APPEARED AS A WITNESS, DECLARED : 'THE EXPRESSION' 'THOROUGH KNOWLEDGE' IS MEANT TO INDICATE KNOWLEDGE WHICH IS THE OPPOSITE OF 'SUPERFICIAL' BUT ... THIS VAGUE EXPRESSION WAS USED TO GIVE THE CANDIDATE AN INDICATION OF THE LEVEL OF KNOWLEDGE REQUIRED AND TO SERVE AS A GUIDELINE FOR THE SELECTION BOARD ... AS A GENERAL RULE, THE LEVEL OF ATTAINMENT IN A LANGUAGE INDICATED BY 'THOROUGH KNOWLEDGE' IS HIGHER THAN THAT WHICH THE REPORTS DESCRIBE AS 'FAIR' ... THE DISTINCTION MAY NOT BE SO CLEAR IN INDIVIDUAL CASES WHERE THE CANDIDATE'S KNOWLEDGE OF LANGUAGES IS REGARDED AS SUFFICIENT TO EQUIP HIM FOR THE JOB '.
34 THE VIEW OF THIS WITNESS WAS THAT 'THE WORDING OF NOTICE OF VACANCY NO 31/73 REQUIRED MORE THAN WAS NECESSARY BECAUSE IT DID NOT PAY SUFFICIENT REGARD TO THE EXTENT TO WHICH EVERY TRANSLATOR'S FAMILIARITY WITH LANGUAGES VARIES', BUT HE AGREED THAT A THOROUGH KNOWLEDGE OF THREE LANGUAGES HAD BEEN REQUIRED ON SEVERAL PREVIOUS OCCASIONS .
35 THE CONCLUSION TO BE DRAWN FROM THESE COMMENTS IS THAT THESE TWO METHODS OF CLASSIFICATION, ALTHOUGH NOT FULLY EQUIVALENT, HAVE SUFFICIENT IN COMMON TO MAKE IT IMPOSSIBLE TO REGARD KNOWLEDGE DESCRIBED BY THE WORD 'FAIR' TO BE REGARDED AS 'THOROUGH KNOWLEDGE '.
36 BOTH THE DEFENDANT AND THE WITNESSES HAVE, IT IS TRUE, QUALIFIED THEIR REMARKS BY COMMENTING THAT, IN THE ASSESSMENT OF REQUIREMENTS, THE OVERALL PERSONALITY OF THE CANDIDATE AND THE NATURE OF THE JOB TO BE FILLED MUST BE TAKEN INTO ACCOUNT .
37 THE COURT DOES NOT SHARE THIS VIEW .
38 IN FACT, THOUGH THE APPOINTING AUTHORITY HAS WIDE DISCRETION IN COMPARING THE CANDIDATES' MERITS AND REPORTS, ESPECIALLY WITH A VIEW TO THE POST TO BE FILLED, IT MUST EXERCISE IT WITHIN THE SELF-IMPOSED LIMITS CONTAINED IN THE NOTICE OF VACANCY .
39 WHEN THE APPOINTING AUTHORITY HAS TO FILL A POST, IT MUST, WHEN DRAWING UP THE NOTICE OF VACANCY, TAKE ACCOUNT OF THE SPECIAL CONDITIONS OF ELIGIBILITY REQUIRED OF THE HOLDER; IT DOES NOT SATISFY THE PROVISIONS OF STAFF REGULATIONS IF THE AUTHORITY DECIDES WHAT THESE CONDITIONS SHOULD BE ONLY AFTER THE NOTICE HAS BEEN PUBLISHED AND THE CANDIDATES ARE KNOWN, AND IF AN INTERPRETATION IS PLACED ON THE WORDING OF THE NOTICE OF VACANCY WHICH, IN THE AUTHORITY'S VIEW, SEEMS TO BE IN THE BEST INTERESTS OF THE SERVICE .
40 TO INTERPRET THE WORDING OF THE STAFF REGULATIONS OTHERWISE WOULD BE TO DEPRIVE THE NOTICE OF VACANCY OF ITS BASIC FUNCTION IN THE RECRUITMENT PROCEDURE, WHICH IS TO GIVE THOSE INTERESTED THE MOST ACCURATE INFORMATION POSSIBLE ABOUT THE CONDITIONS OF ELIGIBILITY FOR THE POST TO ENABLE THEM TO JUDGE WHETHER THEY SHOULD APPLY FOR IT .
41 AS THE APPOINTING AUTHORITY HAD, IN NOTICES OF VACANCY NO 31/73 REQUIRED 'A THOROUGH KNOWLEDGE OF ( THE ) THREE LANGUAGES OF THE COMMUNITIES', IT WAS BOUND BY THE TERMS OF ARTICLE 45 TO REJECT ANY CANDIDATE WHO, ACCORDING TO HIS REPORTS, DID NOT MEET THIS REQUIREMENTS .
42 IT INFRINGED ARTICLE 45 WHEN IT DECIDED THAT THE PUBLISHED REQUIREMENT WAS MET BY A CANDIDATE WHOSE BIENNIAL REPORTS STATED THAT HIS KNOWLEDGE OF LANGUAGES WAS ( APART FROM HIS MOTHER TONGUE ) ONLY 'VERY GOOD' OR 'GOOD' FOR TWO LANGUAGES AND 'FAIR' FOR A THIRD .
43 IF, AFTER THE EVENT, THE APPOINTING AUTHORITY FOUND THAT THE CONDITIONS OF ELIGIBILITY REQUIRED IN THE NOTICE OF VACANCY WERE MORE EXACTING THAN THE NEEDS OF THE SERVICE DEMANDED IT WAS ENTITLED TO RE-OPEN THE PROMOTION PROCEDURE AFTER WITHDRAWING THE ORIGINAL NOTICE OF VACANCY AND PUTTING AN AMENDED ONE IN ITS PLACE .
THIRD SUBMISSION
44 IN THIS SUBMISSION THE APPLICANT CHALLENGES THE APPOINTMENT OF MR X ON THE GROUND THAT THE LATTER DID NOT MEET THE CONDITION OF ELIGIBILITY PUBLISHED IN THE NOTICE OF VACANCY, VIZ . EXPERIENCE OF SEVERAL YEARS AS HEAD OF AN ADMINISTRATIVE UNIT OF SOME IMPORTANCE .
45 THE FACT IS THAT, ALTHOUGH MR X HAD BEEN A SECTION HEAD IN THE LANGUAGE DEPARTMENT SINCE 1962, HE HAD BEEN CONTINUALLY ABSENT ON STAFF COMMITTEE BUSINESS AND ASSOCIATED ACTIVITIES, WITH THE CONSEQUENCE THAT A SUBSTITUTE HAD FREQUENTLY TO ACT FOR HIM AS HEAD OF THE LANGUAGE SECTION .
46 THE LAST PARAGRAPH OF ARTICLE 1 OF ANNEX II TO THE STAFF REGULATIONS STATES : 'THE DUTIES UNDERTAKEN BY MEMBERS OF THE STAFF COMMITTEE AND BY OFFICIALS APPOINTED BY THE COMMITTEE TO ORGANS SET UP UNDER THE STAFF REGULATIONS OR BY THE INSTITUTION SHALL BE DEEMED TO BE PART OF THEIR NORMAL SERVICE IN THEIR INSTITUTION . THE FACT OF PERFORMING SUCH DUTIES SHALL IN NO WAY BE PREJUDICIAL TO THE PERSON CONCERNED '.
47 CONSEQUENTLY, EVEN IF THE APPLICANT'S ALLEGATIONS WERE PROVED, WHICH IS NOT THE CASE, THE ALLEGED ABSENCES COULD NOT BE TAKEN INTO ACCUNT IN DETERMINING WHETHER MR X DID OR DID NOT SATISFY THE REQUIREMENTS OF NOTICE OF VACANCY NO 31/73 .
48 THIS SUBMISSION MUST THEREFORE BE REJECTED .
CONCLUSION
49 IT FOLLOWS FROM THE FOREGOING THAT THE DISPUTED DECISION TO APPOINT MR X MUST BE ANNULLED .
Decision on costs
50 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY MUST BEAR THE COSTS .
51 THE DEFENDANT HAS FAILED IN ITS PLEA .
Operative part
ON THOSE GROUNDS,
THE COURT ( FIRST CHAMBER )
HEREBY :
1 . ANNULS THE DECISION IN DISPUTE .
2 . ORDERS THE DEFENDANT TO PAY THE COSTS .