JUDGMENT OF THE COURT OF FIRST INSTANCE (Second Chamber)

22 May 1996

Case T-140/94

Enrique Gutiérrez de Quijano y Llorens

v

European Parliament

‛Officials — Action for annulment — Action for compensation — Inter-institutional transfer — Article 29(1) of the Staff Regulations’

Full text in Spanish II-689

Application for:

— annulment of the decision of the European Parliament of 10 January 1994 rejecting the applicant's complaint against the decision of 16 August 1993 whereby the Parliament rejected his application for transfer to a post as a Spanish-language interpreter;

— compensation for the nonmaterial damage he claims to have suffered by reason of the refusal of such transfer.

Decision:

Annulment; remainder of the application dismissed.

Abstract of the Judgment

The applicant entered the service of the European Parliament on 6 January 1986 as a Spanish-language interpreter and was transferred to the Court of Justice on 1 January 1990.

On 4 July 1991, the applicant sent a letter to the Director of the Parliament's Interpreting Service expressing the wish to be reappointed to the post he occupied at the Parliament before his transfer to the Court of Justice. Since he received no reply, the applicant sent a letter on 5 February 1992 to his former immediate superior at the Parliament requesting a written reply to his application for a transfer. By a letter of 19 March 1992, the latter informed the applicant that his application had been forwarded to the competent department of the administration of the Parliament. By letter of 24 May 1992 to the Parliament's Personnel Department, the applicant again requested a written reply to his application for a transfer. Since he received no response, he visited the abovementioned department himself, which informed him that his application had never arrived.

By letter of 30 July 1992, the Directorate-General for the Administration of the Parliament informed the applicant that the posts for interpreters in that institution are filled according to the combination of languages offered and that it was not expected to recruit staff possessing a range of languages such as his.

Notice of Competition No PE/161/LA for the recruitment of Spanish-language interpreters was published on 26 November 1992. By letter of 11 January 1993, the applicant pointed out to the Head of the Personnel Division of the Parliament that, in accordance with Article 29 of the Staff Regulations of Officials of the European Communities (‘Staff Regulations’), transfer procedures take precedence over competition procedures, and formally repeated his request to be reinstated in that institution.

On 15 March 1993, the Parliament published Notice of Vacancy No 7281 concerning post No VI/LA/2759 for one Spanish-language interpreter, to be filled by way of transfer. On the same date, the Parliament also published Notice of Vacancy No PE/LA/91 concerning the same post No VI/LA/2759, to be filled by way of transfer from other Community institutions. The two notices were identical as regards the duties and the qualifications and knowledge required of the candidates. They included the ‘ability to take charge of certain coordination duties’ and ‘specific knowledge of problems relating to the powers of the Communities’, conditions which were not laid down in Notice of Competition No PE/161/LA.

On 22 March 1993, the applicant applied for the post referred to in Notice of Transfer No PE/LA/91. By letter of 16 August 1993, the Parliament informed him that it was not possible to grant his application for a transfer. On 30 September 1993, the applicant lodged a complaint against the decision rejecting his application for a transfer. That complaint was rejected on 10 January 1994.

The claim for annulment

Admissibility

So far as concerns the applicant's claim that the Court should appoint him to the post declared vacant, the Court points out that the Community judicature cannot, without encroaching upon the prerogatives of the appointing authority, issue directions to the institutions or replace them (paragraph 31).

See: 224/87 Koutchoumoff v Commission [1989] ECR 99, para. 12; T-556/93 Saby v Commission [1995] ECRSC II-375, para. 30; T-507/93 Branco v Court of Auditors [1995] ECRSC II-797, para. 49

The claim that Competition No PE/161/LA should be suspended is tantamount to an application for an interim measure from the Court which, in order to be admissible, can only be made in accordance with Article 104 of the Rules of Procedure (paragraph 32).

See: T-368/94 R Blanchard v Commission [1994] ECR II-1099, para. 18

Substance

Infringement of Article 29(1) of the Staff Regulations

First, Article 29(1 )(a) of the Staff Regulations requires the appointing authority to consider as a priority the possibilities of promotion and transfer within the institution before proceeding to one of the subsequent stages laid down by that article, that is to say, in order, consideration of the possibility of organizing an internal competition, reviewing requests for inter-institutional transfer and, if necessary, organizing an open competition, and, secondly, the simultaneous publication of the notices corresponding to the various successive stages provided for in Article 29(1) of the Staff Regulations, such as an internal vacancy notice and a notice of inter-institutional transfer, even where those notices do not expressly set out the order of priority laid down in Article 29(1) of the Staff Regulations, does not prevent consideration being given first to internal candidates before a review of any requests for inter-institutional transfer (paragraph 41).

See: T-52/90 Volger v Commission [1992] ECR II-121, paras 19 and 20

Next, where, in the exercise of its power of assessment, the appointing authority decides, as in this case, to extend its choice in the interest of the service, and thus to pass from one stage of the recruitment procedure to another, which follows it according to the order of priority set out in Article 29(1) of the Staff Regulations, it must exercise such power within the legal framework which it has laid down for itself by means of the vacancy notice and ensure that the conditions set out in the aforementioned notice correspond to those set out in the notices relating to subsequent stages and, in particular, as in the present case, in the notice of competition, since if it were open to the institutions to change the conditions of participation from one stage of the procedure to the next, in particular by making them less strict, they would be at liberty to organize external recruitment procedures without having to consider internal candidates or, as in this case, candidates applying at the inter-institutional transfer stage (paragraph 43).

See: 341/85, 251/86, 258/86, 259/86, 262/86, 266/86, 222/87 and 232/87 Van Der Stijl and Cullington v Commission [1989] ECR 511, para. 52; T-586/93 Kolzonis v ESC [1995] ECRSC II-203. para. 45

Notice of Transfer No PE/LA/91, published as Internal Notice of Vacancy No 7281 on 15 March 1993, placed stricter conditions on participation than those set out in Notice of Competition No PE/161/LA published on 26 November 1992. In the circumstances, the appointing authority could no longer observe either the framework which it had initially decided to adopt by publishing, despite the order provided for in Article 29(1) of the Staff Regulations, Notice of Competition No PE/161/LA before publishing Internal Notice of Vacancy No 7281 and Notice of Transfer No PE/LA/91, or the framework it subsequently chose by publishing the two latter notices. The appointing authority made it impossible for those notices, in so far as they referred to the same post, to play their part, pursuant to Article 29(1) of the Staff Regulations, in the recruitment procedure, namely that of informing the persons concerned, as accurately as possible, of the conditions to be fulfilled in order to be recruited to the post in issue. If in this case the appointing authority had found that the conditions required by the internal vacancy notice, the transfer notice and the general competition notice were more, or less, exacting than the needs of the service demanded, it was entitled to reopen the recruitment procedure after withdrawing the original vacancy notice and putting a suitably amended one in its place in order to be able duly to continue, on the basis of that notice, the subsequent stages of recruitment as provided for in Article 29(1) of the Staff Regulations (paragraph 46).

See: Van Der Stijl and Cullington v Commission, cited above, para. 50; T-45/91 McAvoy v Parliament [1993] ECR II-83, para. 48; T-58/91 Booss and Fischer v Commission [1993] ECR II-147, para. 67; Kotzonis v ESC, cited above, para. 67; T-562/93 Obst v Commission [1995] ECRSC II-737, para 46

Moreover, since it had definitively rejected the applicant's candidature on the grounds that the appointing authority was not obliged to fill a vacant post and that it wished to have a broader basis for comparison and selection, the Parliament did not in fact examine the applicant's candidature in relation to the conditions laid down in Vacancy Notice No PE/LA/91, nor in relation to those laid down in Notice of Competition No PE/161/LA, since, when candidatures submitted on the basis of the latter notice were examined, the applicant's candidature had already been rejected. The Parliament therefore did not proceed to consider the comparative merits of the applicant and of the candidates who had been accepted on the basis of Notice No PE/161/LA, in order to ensure that, in the present case, recruitment had been carried out in accordance with Article 29 of the Staff Regulations, although such an examination was expressly put forward as a ground for the appointing authority's decision to move on to the general competition stage by means of the publication of Notice No PE/161/LA, which was intended to provide a wider basis for selection and comparison, and although such an examination was possible since the Parliament had in its possession the candidatures for the external competition and that of the applicant at the same time (paragraph 50).

The claim for compensation

Admissibility

Where a direct link exists between an action for annulment and an action for damages, the latter is, in any event, admissible as being ancillary to the action for annulment where the latter is itself admissible. Since the applicant's action for annulment is admissible, his action for damages must also be held to be admissible (paragraphs 54 and 55).

See: T-11/90 H.S. v Council [1992] ECR II-1869, para. 25; T-3/92 Latham v Commission [1994] ECRSC II-83, paras 37 and 38; T-18/93 Marcalo v Commission [1994] ECRSC II-681. para. 58; Branco v Court of Auditors, cited above, para. 42

Substance

The Community can only be held liable to pay damages if a number of conditions are satisfied as regards the illegality of the allegedly wrongful act committed by the institutions, the actual harm suffered and the existence of a causal link between the act and the damage alleged to have been suffered (paragraph 56).

See: T-82/91 Latham v Commission [1994] ECRSC II-61, para. 63; T-39/93 and T-553/93 Baltsavias v Commission [1995] ECRSC II-695, para. 80

The Staff Regulations do not confer on Community officials any right to inter-institutional transfer, even where they meet all the requisite conditions. It therefore follows that, even where the decision rejecting the applicant's complaint against the Parliament's refusal to accede to his request to be transferred is unlawful, the applicant still does not have a right to such transfer. Although the defendant institution may in principle incur liability for the unlawfulness of the disputed decision, which must entail its annulment, such liability can actually be incurred only where it is proven that, were it not for such unlawfulness, the applicant would have been granted the transfer applied for by him. In view of the foregoing, the Court cannot, at this stage, take a decision on the claim for compensation made by the applicant which, accordingly, must be dismissed as premature (paragraphs 57 to 59).

See: Branco v Court of Auditors, cited above, para. 28

Operative part:

The Parliament's decision of 10 January 1994 rejecting the applicant's complaint against the rejection of his candidature for the vacant post which was the subject of Notice No PE/LA/91 of 15 March 1993 is annulled.

The remainder of the application is dismissed.