JUDGMENT OF THE COURT OF FIRST INSTANCE (Fifth Chamber)

18 April 1996

Case T-13/95

Nicolaos Kyrpitsis

v

Economic and Social Committee of the European Communities

‛Officials — Vacancy notice — Transfer — Interests of the service — Rejection of candidature — Statement of reasons’

Full text in French II-503

Application for:

annulment of the decisions rejecting the applicant's candidature for vacant posts Nos 2/94, 3/94 and 4/94 for a skilled employee (messenger) in Grade D 3/D 2 in the Directorate for Personnel, Administration and Finance of the Economic and Social Committee.

Decision:

Annulment.

Abstract of the Judgment

The applicant, an official of the Economic and Social Committee of the European Communities (ESC), has been employed since December 1993 as a skilled employee (Grade D 3) in the Directorate for Personnel, Administration and Finance, in the specialized internal ‘Restaurant, Cafeteria and Drinks Distribution’ service. On 6 March 1994, he submitted his candidature for three vacant posts, Nos 2/94, 3/94 and 4/94, for a skilled employee (messenger) or unskilled employee (runner) with the Directorate for Personnel, Administration and Finance, in the specialized internal ‘Meetings, Session, Reception and In-house Messengers’ service, for a transfer to a post as a skilled employee. Those posts were published at Grades D 3/D 2 or D 4.

On 21 March 1994, the Secretary General of the ESC questioned the Director for Personnel, Administration and Finance as to the possibility of filling the advertised posts.

On 24 March 1994 the Director replied to the Secretary General in essence, that although each of the candidatures put forward by officials in the ‘Restaurant, Cafeteria’ service satisfied in their entirety the conditions set out in the vacancy notices, he advised that they should be rejected having regard to the many operating problems experienced by that service.

On 30 March 1994, in accordance with the Director's proposal, the Secretary General informed the applicant that his candidature had been rejected. In response to a request for explanations from the applicant, the Secretary General informed him in a note dated 30 May 1994 that the appointing authority had made its selection from among those employees who possessed experience as messengers and already occupied such posts. The applicant then lodged a complaint against the rejection of his candidature. By a note dated 25 October 1994, the applicant was informed of the decision expressly rejecting his complaint.

Substance

The plea alleging breach of Article 29 of lhe Staff Regulations and of the relevant vacancy notices and manifest error of assessment

First part: failure to observe the priority to be given to filling posts by transfer

Article 29 of the Staff Regulations of Officials of the European Communities (‘the Staff Regulations’) lays down the procedures to be followed in filling a vacant post. The institution is to consider, first, whether the post can be filled by promotion or transfer, next, whether to hold an internal competition and, finally, applications for transfer made by officials of other institutions. Only if those possibilities are shown to be inappropriate does the institution follow the procedure for organizing a competition. It is for the institution to assess whether it is possible to fill the post by way of promotion or transfer, in accordance with Article 29(1 )(a), or whether it is appropriate to organize an internal competition (paragraph 31).

See: 176/73 Van Belle v Council [1974] ECR 1361, paras 5 and 6; 298/81 Colussi v Parliament [1983] ECR 1131. para. 17

Where the institution fills a vacant post, it can take that decision only after considering all the applications for the post, since the effect of Articles 7, 29 and 45 of the Staff Regulations in conjunction with one another is to require the appointing authority to consider the comparative merits of the candidates. It is only following such a comparison that the appointing authority is in a position to determine which are the best candidatures for the post to be filled. The requirement for the appointing authority to undertake a comparative examination of the merits of the candidates for a vacant post is an embodiment of both the principle of equal treatment of officials and the principle that they are entitled to reasonable career prospects (paragraphs 32 and 33).

See: T-52/90 Volger v Parliament [1992] ECR II-121, para. 24; T-25/92 Vela Palacios v ESC [1993] ECR II-201, para. 49; T-82/91 Latham v Commission [1994] ECRSC II-61, para. 62; T-506/93 Moat v Commission [1995] ECRSC II-147, para. 37

The appointing authority is required to comply with the vacancy notice which it has drawn up, since that notice, approved under Article 29 of the Staff Regulations, determines the conditions for taking up the post in question. The function of the vacancy notice is, first, to give those interested the most accurate information possible as to the conditions of eligibility for the post to enable them to establish whether they should apply for it and, second, to set the limits of legality within which the institution intends to undertake a comparison of the candidates' merits. The appointing authority fails to comply with those limits of legality if it becomes aware of conditions specially required to fill a post declared vacant only after the vacancy notice has been published, regard being had to the candidates who have come forward, and if it takes account, when considering the applications, of conditions other than those set out in the vacancy notice. Such an approach would deprive the vacancy notice of its basic function in the recruitment procedure, namely to give those interested the most accurate information possible of the nature of the conditions required to fill the post in question (paragraphs 34 to 37).

See: 188/73 Grassi v Council[1974] ECR 1099, para. 40; C-343/87 Culin v Commission [1990] ECR I-225, para. 19; T-l69/89 Frederiksen v Parliament [1991] ECR II-1403, para. 69; 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

The Court finds, first, that in his note of 30 May 1994, written in reply to the applicant's request for an explanation for the rejection of his candidature, the Secretary General stated that the appointing authority had made its selection from among employees who had experience of working as messengers and already occupied such posts. That selection criterion was not mentioned in the vacancy notices in question. Taking account of particular work experience is a criterion of such fundamental importance that if it is not mentioned among the requirements laid down in a vacancy notice, the appointing authority is not entitled to base its decision on it in making its choice from among the candidates. The Court therefore considers that the appointing authority has acted in breach of the vacancy notices (paragraphs 38 to 40).

Second, the Court points out that it is apparent from the documents before it and from the explanations given by the defendant during the hearing that there were other reasons for the rejection of the applicant's candidature. It is acknowledged that each of the candidatures submitted under the transfer procedure ‘satisfied in their entirety the conditions set out in the vacancy notices'. However, having considered the operational problems which, he alleges, would beset the ’Restaurant, Cafeteria' service if three of its officials were to be transferred to another service, the Director for Personnel, Administration and Finance suggested to the Secretary General of the ESC that potential transfers should be disregarded and the next stage in the procedure for filling vacant posts be set in motion (paragraphs 41 and 42).

The Court cannot accept the defendant's argument that the appointing authority did comply with Article 29 of the Staff Regulations and the vacancy notices in question because it considered the merits of the candidates under the transfer procedure. While the note sent by the Director for Personnel to the Secretary General of the ESC stated that all the applications for transfer satisfied in their entirety the conditions laid down by the vacancy notices, it is nevertheless the case that the appointing authority did not draw the necessary conclusion from that statement. Consequently, that statement should have led the appointing authority, in accordance with Article 29 of the Staff Regulations and the vacancy notices, to proceed with the transfer of the candidates, as provided, all the more so as, under point 6 of the vacancy notices, ‘the appointing authority shall first of all consider whether it is possible to fill the vacant posts by transfer’ (paragraph 43).

It follows from all the foregoing that by rejecting the applicant's candidature for the posts at issue, the appointing authority acted in breach of Article 29(l)(a) of the Staff Regulations and the vacancy notices. Accordingly, the first part of the plea is well founded (paragraphs 44 and 45).

Second part: consideration of the interests of the service

Under Article 7 of the Staff Regulations, the concept of the interest of the service relates to the proper working of the institution in general and to the specific requirements of the post to be filled in particular. While the institutions have a broad discretion to organize their departments to suit the tasks entrusted to them and to assign the staff available to them, the balance of reciprocal rights and obligations established by the Staff Regulations in the relationship between the public authority and civil servants none the less implies that when the appointing authority takes a decision concerning the situation of an official it should take into consideration all the factors which may affect its decision and that, in assigning an official, it should take into account not only the interests of the service and the principle of assignment to an equivalent post but also the rights and legitimate interests of the official concerned. Those interests include the official's interest in being promoted or transferred in accordance with his or her wishes and abilities. Consideration of that interest is an implied requirement under Article 29 of the Staff Regulations, which provides that the appointing authority is in the first place to consider whether a post can be filled by promotion or transfer. Furthermore, the official's interest in being transferred has also been taken into consideration by the legislature in the second paragraph of Article 7(1) of the Staff Regulations (paragraphs 51 to 53).

See: 19/87 Hecqv Commission [1988] ECR 1681, para. 6; 167/86 Rousseau v Court of Auditors [1988] ECR 2705, para. 13; C-298/93 Klinke v Court of Justice [1994] ECR I-3009, para. 38; T-108/89 Scheuer v Commission [1990] ECR II-411, para. 37; T-44/93 Saby v Commission [1995] ECRSC II-541, para. 47

The Court considers that the defendant's argument that in the interests of the service the ‘Restaurant, Cafeteria’ service should not be deprived of the assistance of one of its most experienced officials, on account of the operating problems experienced by that service, is devoid of substance (paragraph 54).

First, the defendant cannot rely on Case 176/82 Nebe v Commission or Case T-80/92 Turner v Commission, since the factual circumstances giving rise to those two cases are different from those in the present case. In those cases, the issue was not an application for transfer or promotion under Article 29 of the Staff Regulations and a vacancy notice, as in the case in point, but the applicants' objection to their automatic reassignment to a new post. In those two judgments, the Court ot Justice and the Court of First Instance concluded that the appointing authority, in exercising its broad discretion, may automatically assign the officials concerned to a different department from that in which they are employed and those officials may not object on the ground, in particular, that such reassignment would cause problems for their previous department, since such considerations come within the appointing authority's power of appraisal (paragraphs 55 and 56).

See: 176/82 Nebe v Commission [1983] ECR 2475. paras 16 to 19; T-80/92 Turner v Commission [1993] ECR II-1465, paras 53 to 59

Second, the effectiveness of the rules laid down by the Staff Regulations governing the transfer and promotion procedures would be nullified if the appointing authority were able to give priority to the interests of the department in which the official who is a candidate for transfer or promotion was originally employed. The objective of the system, as laid down by Articles 4, 7, 29 and 43 to 46 of the Staff Regulations, for filling vacant posts by way of transfer and promotion would be jeopardized if the appointing authority were authorized to reject an application for transfer or promotion just because the official's reassignment would, on account of his abilities and practical experience, give rise to a risk of operational difficulties within the original department in which he is employed. The defendant's argument would lead to placing significant obstacles in the way of mobility for officials in the European public service to the detriment of the proper working of the Community institutions. The institutions must be supplied with the resources they need in terms of qualified staff to ensure the proper functioning of their departments by encouraging, by means of transfer and promotion, the professional ambitions of the best qualified and most experienced officials and their desire for mobility (paragraphs 57 and 58).

While it concedes that it was for the defendant to ensure the proper functioning of the ‘Restaurant, Cafeteria’ service, the Court none the less considers that the measures adopted to that end could not be taken without breach of Article 29 of the Staff Regulations and the relevant vacancy notices. In the circumstances the appointing authority was obliged to find an appropriate solution, temporary if need be, in order to preserve the official's right to normal career prospects within the institution. As the defendant acknowledged at the hearing, the appointing authority made no effort to find such a solution. Accordingly, the Court considers that by using the criterion of the interests of the service to reject the applicant's candidature for the posts in respect of which he had applied for a transfer, the defendant failed to comply with Article 29 of the Staff Regulations and the relevant vacancy notices. Therefore the second part of this plea is also well founded (paragraphs 59 to 61).

The plea alleging failure to state reasons

The purpose of the obligation to state the reasons for any decision adversely affecting an official is, on the one hand, to provide the person concerned with sufficient details to allow him to ascertain whether or not the decision is well founded and, on the other, to make it possible for the decision to be the subject of judicial review. Where it takes a decision rejecting a candidature for a post declared vacant, the appointing authority is required to state the reasons for that decision, at least at the stage at which it rejects a complaint against such a decision (paragraphs 67 and 68).

See: 195/80 Michel v Parliament [1981] ECR 2861, para. 22; 69/83 Lux v Court of Auditors [1984]ECR 2447, para. 36; T-1/90 Pérez-Mínguez Casariego v Commission [1991] ECR II-143, para. 73; T-52/90 Volger v Parliament, cited above, para. 36; T-25/92 Vela Palacios v ESC, cited above, para. 22; T-16/94 Benecos v Commission [1995] ECRSC H-335, para. 31

The Court finds that the explanation given in the decision of 25 October 1994 rejecting the applicant's complaint did no more than invoke the interests of the service, without giving any further details, in order to justify the rejection of his candidature, and that this explanation is quite different from that put forward in the note to the applicant to the effect that the appointing authority had made its selection in favour of candidates who possessed practical experience as messengers and already occupied such posts. Moreover, it was not until it lodged its defence that the defendant genuinely gave reasons for the disputed decision, producing as an annex the note in which the Director, having found that all the applications submitted under the transfer procedure fully satisfied the criteria laid down in the vacancy notices, suggested to the Secretary General that any possible transfer of candidates employed in the ‘Restaurant, Cafeteria’ service should be ruled out on account of the operating problems that their departure would cause the service and that the candidates in the internal competition should be considered; the defendant subsequently added to the reasons thus given the explanations provided at the hearing by its adviser (paragraphs 69 and 70).

In order to assess whether the reasons stated for a decision are sufficient, they must be set in the context in which the contested measure was adopted (paragraph 71).

See: C-350/88 Delacreand Others v Commission [1990] ECR I-395, para. 16; T-26/90 Finsider v Commission [1992] ECR II-1789, para. 72; T-l6/94 Benecos v Commission, cited above, para. 33

In so far as the appointing authority's decision of 25 October 1994 rejecting the complaint gave the applicant an explanation of the reasons for which his candidature was rejected that was entirely at variance with the explanation given to him in the note of 30 May 1994, the appointing authority was not entitled in its rejection of his complaint merely to refer summarily to the interests of the service, but should have given the applicant a detailed, clear and consistent statement of the reasons for the rejection of his candidature such as to enable him to understand fully why it had been rejected. The brief reference in question is not simply an insufficient statement of reasons capable of being made good by supplementary information provided by the administration during the proceedings, but must be deemed not to constitute a statement of reasons at all (paragraphs 72 and 73).

See: T-25/92 Vela Palacios v ESC, cited above, para. 26; T-l6/94 Benecos v Commission, cited above, para. 36

The absence of a statement of reasons for the rejection of a complaint cannot be remedied by explanations provided by the administration following the initiation of proceedings, since at that stage such explanations no longer fulfil their function. The obligation to give reasons, laid down by the second paragraph of Article 25 in conjunction with Article 90(2) of the Staff Regulations, is intended, first, to provide the person concerned with sufficient information to assess whether the rejection of his candidature was well founded and whether it would be appropriate to bring an action before the Court and, second, to enable the Court to exercise its power of review (paragraph 74).

See: T-52/90 Volger v Parliament, cited above, para. 40; Joined Cases T-18/92 and T-68/92 Coussios v Commission [1994] ECRSC II-171, para. 74; T-586/93 Kotzonis v ESC [1995] ECRSC II-203, para. 105

It follows that production of the Director for Personnel's note at the time the defence was lodged, as well as the various explanations given by the defendant at the hearing concerning the interests of the service and the reasons which led the appointing authority to reject the applicant's candidature, cannot remedy the absence of a statement of reasons referred to above. The Court must, accordingly, conclude that the disputed decision was taken in breach of the appointing authority's obligation to give reasons (paragraphs 75 and 76).

Operative part:

The decisions of the Secretary General of the Economic and Social Committee of 30 March 1994 and 25 October 1994, rejecting the applicant's candidature for vacant posts Nos 2/94, 3/94 and 4/94 for a skilled employee (messenger) in Grade D 3/D 2 in the Directorate for Personnel, Administration and Finance of the Economic and Social Committee, are annulled.