61974CJ0081_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN JOINED CASES 81 TO 88/74
GIULIANO MARENCO, ROSA-MARIA MARENCO, NEE GUIDA, PIERO RAVAIOLI, DORANGELA VAN LOO, NEE LUCIONI, BERNHARD VON WUELLERSTORFF UND URBAIR, ROLF WERNER, PIETER ALBERTI ANDKONRAD BAUMANN, ALL REPRESENTED BY MARCEL GREGOIRE, ADVOCATE WITH THE COUR D'APPEL, BRUSSELS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF TONY BIEVER, ADVOCATE, 83 BOULEVARD GRANDE-DUCHESSE CHARLOTTE, APPLICANTS,
V
COMMISSION OF THE EUROPEAN COMMUNITIES REPRESENTED BY ITS LEGAL ADVISER, RAYMOND BAEYENS, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF PIERRE LAMOUREUX, LEGAL ADVISER TO THE COMMISSION, 4 BOULEVARD ROYAL, DEFENDANT,
Subject of the case
APPLICATION FOR THE ANNULMENT OF THE DECISIONS OF THE COMMISSION OF 22 OCTOBER 1973 APPOINTING MESSRS PIERO BURIGANA, FRANCESCO CONTE, EDUARDO CAPUANO, RAFFAELE DE SANTIS, CLAUDIO GUIDA, FRANCESCO PETTINI, VITO SACCOMANDI, CARLO SAVIOINI AND DARIO TOSI, TO POSTS OF PRINCIPAL ADMINISTRATOR WHICH WERE THE SUBJECT OF VACANCY NOTICES COM/943/72, COM/396/72, COM/646/72, COM/938/72, COM/939/72, COM/931/72, COM/940/72, COM/947/72 AND COM/948/72, AND THE ANNULMENT OF ALL CONNECTED DECISIONS AND THE DECISION REJECTING THE COMPLAINTS MADE IN THAT RESPECT .
Grounds
1 THE APPLICATIONS LODGED ON 28 OCTOBER 1974 AND RECEIVED AT THE COURT REGISTRY ON THE SAME DATE ARE FOR THE ANNULMENT OF THE DECISIONS OF THE COMMISSION OF 22 OCTOBER 1973 APPOINTING MESSRS P . BURIGANA, F . CONTE, E . CAPUANO, R . DE SANTIS, C . GUIDA, F . PETTINI, V . SACCOMANDI, C . SAVOINI AND D . TOSI TO POSTS OF PRINCIPAL ADMINISTRATOR OF CATEGORY AND CAREER BRACKET A 5 - A 4, WHICH WERE THE SUBJECT OF VACANCY NOTICES COM/943/72, COM/396/72, COM/646/72, COM/938/72, COM/939/72, COM/931/72, COM/940/72, COM/947/72 AND COM/948/72 .
2 THESE APPOINTMENTS WERE MADE IN APPLICATION OF ARTICLE 29 ( 2 ) OF THE STAFF REGULATIONS OF OFFICIALS, WHEREBY A PROCEDURE OTHER THAN THE COMPETITION PROCEDURE MAY BE ADOPTED IN PARTICULAR IN EXCEPTIONAL CASES FOR RECRUITMENT TO POSTS WHICH REQUIRE SPECIAL QUALIFICATIONS .
ADMISSIBILITY
3 THE DEFENDANT FIRST OF ALL CLAIMS THAT APPLICATIONS 87/74 AND 88/74 ARE INADMISSIBLE ON THE GROUND THAT ON THE DATE ON WHICH THEY WERE LODGED THE APPLICANTS NO LONGER HAD THE STATUS OF OFFICIALS BECAUSE THEIR RESIGNATIONS TOOK EFFECT FROM 1 MARCH AND 1 OCTOBER 1974 RESPECTIVELY .
4 ACCORDING TO THESE TWO APPLICANTS THEIR INTEREST IN BRINGING PROCEEDINGS FOLLOWS FROM THE FACT THAT THEY WERE OFFICIALS WHEN THE CONTESTED DECISIONS WERE TAKEN AND ALSO WHEN PROCEEDINGS WERE STARTED BY MEANS OF THEIR PREVIOUS COMPLAINT, AND THAT THEY COULD AT LEAST, LIKE THE OTHER APPLICANTS, HAVE TAKEN PART IN COMPETITIONS HAD THESE BEEN HELD .
5 UNDER ARTICLES 90 AND 91 OF THE STAFF REGULATIONS, 'ANY PERSON TO WHOM THESE STAFF REGULATIONS APPLY' MEANS NOT ONLY OFFICIALS WHO ARE AT PRESENT SERVING BUT ALSO THOSE WHO WERE DOING SO PREVIOUSLY AND ANY CANDIDATES FOR A POST .
6 NEVERTHELESS, IN ORDER FOR A FORMER OFFICIAL TO BE ABLE TO LODGE AN APPEAL UNDER THESE PROVISIONS HE MUST HAVE IN ADDITION A PERSONAL INTEREST IN THE ANNULMENT OF THE CONTESTED MEASURE .
7 SUCH IS NOT THE CASE AS REGARDS AN OFFICIAL WHO, THROUGH HIS RESIGNATION, HAS SHOWN HIS DESIRE TO CEASE TO BELONG TO THE INSTITUTION WITHIN WHICH THE POSTS FILLED BY THE CONTESTED MEASURE WERE VACANT .
8 FOR THESE REASONS APPLICATIONS 87/74 AND 88/74 ARE INADMISSIBLE .
9 THE DEFENDANT ALSO QUESTIONS THE PERSONAL AND DIRECT INTEREST OF THE SEVEN OTHER APPLICANTS ON THE GROUND THAT NONE OF THEM APPLIED FOR ALL THE POSTS WHICH THE CONTESTED MEASURES FILLED, AND SOME DID NOT EVEN APPLY FOR ANY OF THESE POSTS .
10 THE INTEREST OF THESE APPLICANTS IN BRINGING PROCEEDINGS LIES IN THE FACT THAT THEY COULD, IF THE DEFENDANT HAD ORGANIZED A COMPETITION INTERNAL TO THE INSTITUTION UNDER ARTICLE 29 ( 1 ) ( B ), HAVE APPLIED FOR THE POSTS FOR WHICH THEY DID NOT APPLY AT THE PROCEDURAL STAGE IN VIEW OF POSSIBLE PROMOTIONS OR TRANSFERS .
11 THE OBJECTION MUST CONSEQUENTLY BE REJECTED .
12 THE DEFENDANT POINTS OUT FINALLY THAT BECAUSE OF THE SPECIFIC CONDITIONS LAID DOWN WITH REGARD TO QUALIFICATIONS, THE VACANCY NOTICES RELATING TO THE POSTS IN QUESTION PREVENT APPLICATIONS MADE BY CERTAIN APPLICANTS FROM BEING TAKEN INTO CONSIDERATION .
13 THIS CLAIM IS NOT EVEN SUPPORTED IN ANY WAY BY EVIDENCE, WHICH THE COMMISSION IS UNDER A DUTY TO ADDUCE .
14 CONSEQUENTLY APPLICATIONS 81 TO 86/74 MUST BE REGARDED AS ADMISSIBLE .
ON THE SUBSTANCE OF THE CASE
15 THE APPLICANTS CLAIM THAT THE CONTESTED DECISIONS COULD NOT HAVE BEEN TAKEN IN APPLICATION OF ARTICLE 29 ( 2 ) BECAUSE THAT PROVISION IS CONCERNED ONLY WITH THE RECRUITMENT OF PERSONS NOT YET IN THE SERVICE OF THE COMMUNITIES AND CANNOT BE USED WHERE, FOR THE PURPOSE OF FILLING A VACANT POST, SERVANTS ALREADY IN OFFICE WHO COULD CONSEQUENTLY HAVE ENTERED FOR A COMPETITION INTERNAL TO THE INSTITUTION ARE TO BE CONSIDERED .
16 THE ABILITIES REQUIRED OF THE OCCUPANT OF A POST REQUIRING SPECIAL QUALIFICATIONS MAY BE OF SUCH A KIND THAT, IN EXCEPTIONAL CASES, THE COMPETITION PROCEDURE IS INAPPROPRIATE FOR THE PURPOSE OF ESTABLISHING THE EXISTENCE OF THOSE ABILITIES .
17 IT MAY THEREFORE BE CONCLUDED THAT BY APPLYING ARTICLE 29 ( 2 ) IN RESPECT OF SERVANTS ALREADY IN OFFICE THE DEFENDANT DID NOT INFRINGE THIS PROVISION .
18 THE APPLICANTS CLAIM IN THE SECOND PLACE THAT THE APPLICATION OF ARTICLE 29 ( 2 ) OF THE STAFF REGULATIONS PRESUPPOSES THAT CONDITIONS OF FORM AND OF SUBSTANCE ARE FULFILLED WHICH ARE NOT FULFILLED IN THE PRESENT CASE .
19 THEY MAINTAIN FIRST OF ALL THAT NEITHER THE VACANCY NOTICES NOR THE SUBSEQUENT MEASURES PROVIDED FOR THE POSSIBILITY OF RECOURSE TO ARTICLE 29 ( 2 ) AND THAT THESE NOTICES OR THESE MEASURES WERE NOT PUBLISHED IN THE OFFICIAL JOURNAL .
20 IT APPEARS FROM THE FILES THAT THE VACANCY NOTICES WERE PROPERLY BROUGHT TO THE KNOWLEDGE OF THE STAFF OF THE COMMISSION IN APPLICATION OF ARTICLE 29 ( 1 ) ( A ) AND THEN POSTED IN THE OTHER INSTITUTIONS IN APPLICATION OF PARAGRAPH ( 1 ) ( C ) OF THE SAME ARTICLE .
21 A DECISION TO HAVE RECOURSE TO ARTICLE 29 ( 2 ) MADE DURING THE COURSE OF A RECRUITMENT PROCEDURE WHICH HAS BEEN INITIATED NEED NOT NECESSARILY BE TAKEN WHEN THE VACANCY NOTICES ARE PUBLISHED AND NEED NOT BE PUBLISHED IN THE OFFICIAL JOURNAL .
22 THE CONTESTED DECISIONS WERE ADOPTED ON THE BASIS OF PROPOSALS FROM THE DIRECTORATES GENERAL CONCERNED SETTING OUT THE REASONS WHY THE POSTS IN QUESTION COULD NOT BE FILLED IN ACCORDANCE WITH THE PROCEDURE LAID DOWN IN ARTICLE 29 ( 1 ) ( A ).
23 RECOURSE TO ARTICLE 29 ( 2 ) IS NOT SUBJECT TO ANY CONDITION AS TO PUBLICATION BUT ONLY TO THE CIRCUMSTANCE THAT THE RECRUITMENT IS OF GRADE A 1 OR A 2 OFFICIALS OR TO 'POSTS WHICH REQUIRE SPECIAL QUALIFICATIONS '.
24 THE APPLICANTS MAINTAIN NEXT THAT NO REASONS WERE GIVEN FOR THE DECISION TO APPLY ARTICLE 29 ( 2 ), JUST AS THE DECISION NOT TO RESORT TO THE GENERAL COMPETITION PROCEDURE PROVIDED FOR BY THE LAST SENTENCE OF ARTICLE 29 ( 1 ) WAS NOT JUSTIFIED .
25 HOWEVER THE PROPOSAL CONCERNING APPOINTMENT TO THE CONTESTED POSTS WHICH WAS SENT ON 12 OCTOBER 1973 TO THE APPOINTING AUTHORITY SETS OUT IN SUFFICIENT DETAIL THE RESPECTS IN WHICH THE QUALIFICATIONS REQUIRED WERE SPECIAL .
26 THE APPLICANTS CONTEST THAT THE POSTS REQUIRED SPECIAL QUALIFICATIONS AND COULD ONLY BE FILLED BY MEANS OF THE SPECIAL PROCEDURE USED .
27 NEVERTHELESS IT IS FOR THE APPOINTING AUTHORITY TO DECIDE, SUBJECT TO REVIEW BY THE COURT, THE SPECIAL NATURE OF THE QUALIFICATIONS NECESSARY TO FILL A POST .
28 IT FOLLOWS FROM THE VACANCY NOTICES THAT IN THE PRESENT CASE THE SPECIAL QUALIFICATION REQUIRED WAS DESCRIBED EACH TIME AND IT HAS NOT APPEARED THAT IN SO DOING THE SAID AUTHORITY EXCEEDED THE LIMITS OF ITS DISCRETION .
29 THE APPLICANTS CLAIM THAT ARTICLE 7 AND THE THIRD PARAGRAPH OF ARTICLE 27 OF THE STAFF REGULATIONS HAVE BEEN INFRINGED IN THAT THE POSTS IN QUESTION WERE RESERVED FOR PERSONS OF A PARTICULAR NATIONALITY, IN THE PRESENT CASE ITALIAN .
30 IN SO DOING THE DEFENDANT IS SAID TO HAVE BEEN GUILTY OF A MISUSE OF POWERS WHICH EXPLAINS WHY IT DID NOT ORGANIZE EITHER INTERNAL OR GENERAL COMPETITIONS AND WHY IT HAD RECOURSE TO THE PROCEDURE LAID DOWN IN
ARTICLE 29 ( 2 ).
31 ACCORDING TO ARTICLE 7 AND THE THIRD PARAGRAPH OF ARTICLE 27 OF THE STAFF REGULATIONS, NO POSTS MAY BE RESERVED FOR NATIONALS OF ANY SPECIFIC MEMBER STATE AND EVERY APPOINTMENT MUST BE MADE WITHOUT REGARD TO NATIONALITY .
32 IT APPEARS FROM THE PROCEDURE THAT IN AGREEMENT WITH THE COUNCIL WHICH WAS ACTING AS BUDGETARY AUTHORITY, THE COMMISSION, IN ANTICIPATION OF THE 1973 BUDGET, HAD CREATED ON 25 OCTOBER 1972 20 POSTS IN CAREER BRACKET A 5 - A 4 OVER AND ABOVE THE OFFICIAL COMPLEMENT .
33 ACCORDING TO THE ACTUAL STATEMENTS OF THE DEFENDANT, IT WAS A QUESTION OF 'REMEDYING A GEOGRAPHICAL DISEQUILIBRIUM KNOWN TO ALL, AND WHICH WAS AGAINST THE INTERESTS OF A CERTAIN NATIONALITY, BY MEANS OF THE CHOICE MADE BY THE APPOINTING AUTHORITY OF CANDIDATES FROM AMONG PERSONS OF THAT NATIONALITY WHO FULFILLED COMPLETELY THE SPECIAL QUALIFICATIONS REQUIRED ...'.
34 THE NEED FOR THE COMMUNITY ADMINISTRATION TO REMEDY A GEOGRAPHICAL DISEQUILIBRIUM IN THE POSTS WITHIN ITS DEPARTMENTS WHEN RECRUITING MUST GIVE WAY TO THE REQUIREMENTS OF THE INTERESTS OF THE SERVICE AND THE CONSIDERATION OF THE PERSONAL MERITS OF THE CANDIDATES .
35 IN THE CASE OF VACANCY NOTICES COM/939/72, COM/940/72 AND COM/943/72, HOWEVER, WHERE THE REQUIREMENTS WERE RESPECTIVELY A 'THOROUGH KNOWLEDGE OF THE PARTICULAR PROBLEMS OF THE AGRICULTURAL STRUCTURES IN ITALY AND OF THE POLICIES FOR THE IMPROVEMENT OF THE STRUCTURES', A 'THOROUGH KNOWLEDGE OF THE ECONOMIC PROBLEMS OF ITALIAN AGRICULTURE' AND A 'THOROUGH KNOWLEDGE OF ITALIAN REGULATIONS IN THE WINE SECTOR', IT MAY HAVE BEEN LEGITIMATE TO FAVOUR CANDIDATES OF ITALIAN NATIONALITY WHO WERE OBVIOUSLY LIKELY TO BE BETTER EQUIPPED TO FULFIL THE QUALIFICATIONS REQUIRED .
36 CONSEQUENTLY THE APPLICATIONS IN RESPECT OF VACANCY NOTICES COM/939/72, COM/940/72 AND COM/943/72 MUST BE DISMISSED .
37 THE THIRD SUBMISSION MUST BE ACCEPTED AS REGARDS VACANCY NOTICES COM/396/72, COM/646/72, COM/931/72, COM/938/72, COM/947/72 AND COM/948/72, AND THE CORRESPONDING DECISIONS IN QUESTION MUST BE ANNULLED .
Decision on costs
38 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY MUST BEAR THE COSTS .
39 THE APPLICANTS IN CASES 87/74 AND 88/74 HAVE FAILED IN THEIR APPLICATIONS .
40 THE DEFENDANT HAS FAILED IN ITS SUBMISSIONS AS REGARDS POSTS COM/396/72, COM/646/72, COM/938/72, COM/931/72, COM/947/72 AND COM/948/72 .
41 NEVERTHELESS, UNDER ARTICLE 70 OF THE RULES OF PROCEDURE, IN PROCEEDINGS BROUGHT BY SERVANTS OF THE COMMUNITIES, INSTITUTIONS SHALL BEAR THEIR OWN COSTS .
Operative part
THE COURT ( FIRST CHAMBER )
HEREBY :
1 . DISMISSES APPLICATIONS 87/74 AND 88/74;
2 . ANNULS THE DECISIONS OF APPOINTMENT TO THE POSTS WHICH WERE THE SUBJECT OF VACANCY NOTICES COM/396/72, COM/646/72, COM/938/72, COM/931/72, COM/947/72 AND COM/948/72 AND DISMISSES APPLICATIONS 81 TO 86/74 AS REGARDS THE REMAINDER OF THE CONCLUSIONS THEREIN;
3 . ORDERS THE APPLICANTS AND THE DEFENDANT IN CASES 87/74 AND 88/74 TO BEAR THEIR OWN COSTS;
4 . ORDERS THE DEFENDANT TO BEAR THE COSTS AS REGARDS APPLICATIONS 81 TO 86/74 .