JUDGMENT OF THE COURT OF FIRST INSTANCE (Third Chamber)

19 November 1996

Case T-272/94

Claude Brulant

v

European Parliament

‛Officials — Promotion — Abuse of process’

Full text in French II-1397

Application for:

annulment of the decision of the European Parliament relating to the filling of Post No II/A/1933, of the decision rejecting the applicant's candidature and of the decision expressly rejecting his complaint.

Decision:

Annulment.

Abstract of the Judgment

The Parliament published Vacancy Notice No 7262 with a view to filling a post of assistant Head of Division (Post No II/A/1933) in Directorate-General II (Committees and Delegations). The Director-General of DG II proposed that the applicant be promoted to the vacant post, whilst the Secretary-General of the Parliament proposed Mrs X, Head of Department in Directorate-General V (Personnel, the Budget and Finance). According to the Secretary-General, it was essential, when making appointments to A 3 posts, to give priority, by reason of the hierarchical authority conferred on them, to persons who, like Mrs X, had demonstrated their ability to perform management duties over a significant period of time.

By decision of 30 September 1993, Mrs X was promoted to Post No II/A/1933 with effect from 1 October 1993.

In exchange for the assignment on 1 January 1994 of Mrs X, together with Post No II/A/1933, to the post of Head of the Internal Market Division in Directorate-General IV (Research), Mr W, an official in DG IV, was on the same date assigned, together with his post, to the post within DG II of Head of Division for Relations with Countries within the European Free Trade Association (EFTA), in the light of a request from the Director-General of DG V of 22 November 1993 and with the agreement of DG II and DG IV.

By decision of 28 April 1994, the appointing authority rejected the applicant's complaint on the ground that the experience of Mrs X as a head of department had played a decisive role in the selection made by the appointing authority.

The plea alleging abuse of process

The Court points out that, in the absence of any evidence calling in question the legality of measures adopted by the Community institutions, such measures are presumed to be lawful.

See: 11/81 Dürbeck v Commission [1982] ECR 1251, para. 17; 15/85 Consorzio Cooperative d'Abruzzo v Commission [1987] ECR 1005, para. 10; T-35/92 John Deere v Commission [1994] ECR II-957, para. 31

The Court notes that, whilst Mrs X was officially appointed to Post No II/A/1933 in DG II, she never performed the duties attaching thereto, although that post was assigned to DG II in accordance with the very wording of Vacancy Notice No 7262. Moreover, even after her appointment to Post No II/A/1933, Mrs X still continued to perform her former duties in DG V until she was reassigned, together with Post No II/A/1933, to DG IV, whereas the Director-General ofll had considered it necessary, as a matter of priority, to strengthen the team dealing with economic and monetary affairs within his Directorate-General.

Furthermore, less than two months after Mrs X's promotion to Post No II/A/1933 in DG II, the procedure for her reassignment, together with that post, to DG IV was officially initiated and, following that reassignment, Mrs X performed duties which were substantially different from those described in Vacancy Notice No 7262. Moreover, according to the Parliament, the duties attaching to Post No II/A/1933 were never effectively performed by anyone. Lastly, since by the date when the decision rejecting the applicant's complaint was adopted it had already been apparent for several months that Post No II/A/1933 had not been effectively filled, Mrs X's experience as a head of department, upon which reliance was placed in support of the rejection of the applicant's complaint, is tantamount to a complete absence of any statement of reasons, of which the Community judicature is empowered, of its own motion, to take cognizance.

See: 18/57 Noid v High Authority [1959] ECR 41; T-534/93 Grynberg and Hall v Commission [1994] ECRSC II-595, para. 59; T-562/93 Obst v Commission [1995] ECRSC II-737, para. 89

The Court infers from this sequence of events that the Parliament ultimately appointed to Post No II/A/1933 an official to whom it then entrusted the performance, within a different Directorate-General, of duties which were intrinsically and substantially different from those described in the notice published in order to fill the vacancy for that post. It necessarily follows that Post No II/A/1933, as described in Vacancy Notice No 7262, has, in the result, never been effectively filled, contrary to the objective initially assigned to the promotion procedure in issue and despite the fact that, according to the very wording of the first paragraph of Article 4 of the Staff Regulations, no appointment or promotion is to be made for any purpose other than that of filling a vacant post.

Consequently, the effect of the contested promotion decision and the subsequent decision reassigning Mrs X, together with Post No II/A/1933, to DG IV was to rebut the presumption as to the validity of the contested promotion procedure.

Furthermore, the Parliament has not been able to discharge its burden of proving the legality of the procedure. The Court rejects, as having no factual basis, the arguments developed by the Parliament in order to justify the reassignment of Mrs X, together with Post No II/A/1933, to DG IV in exchange for the transfer of Mr W, together with his post, from DG IV to DG II, which was said to have been prompted by the entry into force of the Agreement on the European Economic Area on 1 January 1994, that is to say, only a few weeks after delivery of the Opinion of the Court of Justice declaring that the provisions of the Agreement which it had been called upon to review were compatible with the EC Treaty.

It is not disputed that the Opinion delivered by the Court of Justice took effect from 10 April 1992. Moreover, it is apparent from the documents in the case that, having been appointed, from 1 January 1994, head of the division dealing with relations with the EFTA countries, as the official whom the Parliament regarded as tlie person best qualified to set up a specialized structure to handle relations with die EFTA countries, Mr W was nevertheless subsequently given responsibility for the Division for Interparliamentary Relations — Europe.

In those circumstances, the appointment of Mrs X to Post No II/A/1933 within DG II and her subsequent reassignment, together with that post, to another Directorate-General constitute objective, relevant and consistent evidence enabling the Court to conclude that, in the present case, the Parliament exercised its powers in order to achieve results other than those alleged and that it committed an abuse of process.

See: T-586/93 Kotzonis v ESC [1995] ECRSC II-203, para. 73; T-326/94 Dimitriadis v Coltri of Auditors [1996] ECRSC II-613, para. 40

Operative part:

The decision of the European Parliament of 30 September 1993 concerning the filling of the post advertised in Vacancy Notice No 7262 (Post No II/A/1933) is annulled.

The decision rejecting the applicant's candidature for that post is also annulled.