Judgment of the Court (First Chamber) of 15 December 1966. - Manlio Serio v Commission of the EAEC. - Case 62-65.



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Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

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1 . OFFICIALS - RECRUITMENT - MANDATORY RECONCILLIATION OF THE CONCEPTS OF COMPETITION AND OF SELECTION - LIMITS OF THE ADMINISTRATION'S POWERS OF ASSESSMENT

( STAFF REGULATIONS OF OFFICIALS OF THE EAEC, ARTICLES 29 AND 30 )

2 . OFFICIALS - RECRUITMENT - REVIEW BY THE COURT - LIMITS

( STAFF REGULATIONS OF OFFICIALS OF THE EAEC, TITLE III, CHAPTER I )

Summary

1 . IN THE RECRUITMENT OF OFFICIALS THE ADMINISTRATION IS OBLIGED TO RECONCILE THE CONCEPTS OF COMPETITION AND SELECTION RESULTING FROM THE COMBINED PROVISIONS OF ARTICLES 29 AND 30 OF THE STAFF REGULATIONS . ALTHOUGH THE ADMINISTRATION IS ENTITLED IN MAKING ITS SELECTIONS TO IGNORE THE PRECISE ORDER OF MERIT IN THE COMPETITION FOR REASONS WHICH IT IS INCUMBENT UPON THE ADMINISTRATION TO EVALUATE AND JUSTIFY BEFORE THE COURT, NEVERTHELESS IT MAY NOT DESTROY THE VERY CONCEPT OF COMPETITION BY DEPARTING SUBSTANTIALLY FROM THE RESULT OF THE COMPETITION WITHOUT SERIOUS REASONS .

2 . AS THE COURT'S REVIEW IS LIMITED TO EXAMINING THE WAYS AND MEANS WHICH MAY HAVE LED TO THE EVALUATION MADE BY THE APPOINTING AUTHORITY, THE COURT CANNOT ENCROACH UPON THE PREROGATIVES OF THE APPOINTING AUTHORITY BY ADDRESSING TO IT INSTRUCTIONS CAPABLE OF DETERMINING ITS CHOICE .

Parties

IN CASE 62/65

MANLIO SERIO, DOCTOR OF LAW, A TEMPORARY SERVANT OF THE EUROPEAN PARLIAMENT RESIDING IN LUXEMBOURG, ASSISTED SUCCESSIVELY BY CAMILLE LINDEN, ADVOCATE OF THE LUXEMBOURG BAR ( WRITTEN PROCEDURE ) AND BY REMO SERIO, ADVOCATE OF THE SALERNO BAR ( ORAL PROCEDURE ), WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT 4 RUE DE BRAGANCE,

APPLICANT,

V

COMMISSION OF THE EUROPEAN ATOMIC ENERGY COMMUNITY, REPRESENTED BY ITS LEGAL ADVISER, JAN GIJSSELS, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICES OF HENRI MANZANARES, SECRETARY OF THE LEGAL DEPARTMENT OF THE EUROPEAN EXECUTIVES, 2 PLACE DE METZ,

DEFENDANT,

Subject of the case

APPLICATION FOR THE ANNULMENT OF APPOINTMENTS MADE BY THE DEFENDANT TO THE DETRIMENT OF THE APPLICANT AND FOR THE PAYMENT OF DAMAGES,

Grounds

P.568

I - ADMISSIBILITY

THE DEFENDANT RAISES AN OBJECTION OF INADMISSIBILITY AGAINST THE APPLICATION ON THE GROUND THAT IN HIS APPLICATION THE APPLICANT HAS OMITTED TO INDICATE PRECISELY THE GROUNDS RELIED UPON AND THE PROVISIONS OF THE STAFF REGULATIONS OR THE RULES OF LAW WHICH ARE ALLEGED TO HAVE BEEN INFRINGED .

THE APPLICATION IN ITS ENTIRETY MENTIONS WITH SUFFICIENT CLARITY THE PRINCIPLES OF LAW WHICH, ACCORDING TO THE APPLICANT, HAVE BEEN INFRINGED BY THE COMMISSION .

THE APPLICANT REFERS IN PARTICULAR TO ARTICLE 27 OF THE STAFF REGULATIONS IN ORDER TO ESTABLISH THAT HIS CLASSIFICATION IN THE COMPETITION ENTITLES HIM TO BE SELECTED IN PREFERENCE TO THE OTHER CANDIDATES . HE ALSO REFERS TO THE JUDGMENT OF THE COURT IN CASE 15/63, CONCERNING THE ROLE TO BE PLAYED BY AN OFFICIAL'S NATIONALITY IN SELECTION FOR A POST . FINALLY HE SETS OUT WITH SUFFICIENT CLARITY THE COMPLAINT OF MISUSE OF POWERS .

IT FOLLOWS FROM THE FOREGOING THAT THE APPLICATION MUST BE DECLARED TO BE ADMISSIBLE, AS THE REQUIREMENTS OF FORM IMPOSED BY ARTICLE 38 OF THE RULES OF PROCEDURE HAVE BEEN SATISFIED .

II - THE SUBSTANCE OF THE CASE

A - THE REQUEST FOR ANNULMENT OF THE APPOINTMENT OF THE CANDIDATE MR VAN CAUWENBERG

WITH REGARD TO THE POST ON THE STAFF OF THE DIRECTOR OF ADMINISTRATION AND PERSONNEL AT BRUSSELS, THE DEFENDANT HAS EMPHASIZED THAT, BY REASON OF THE FACT THAT TWO OF THE FOUR POSTS OF HEAD OF DEPARTMENT AND THE POST OF DIRECTOR WERE ALREADY OCCUPIED BY ITALIANS, IT WAS NOT POSSIBLE FOR IT TO SELECT THE APPLICANT, WHO WAS ALSO ITALIAN, FOR FEAR OF FURTHER AGGRAVATING THE GEOGRAPHICAL IMBALANCE OF POSTS IN THE DIRECTORATE IN QUESTION .

P.569

THE APPLICANT, BASING HIS ARGUMENT ON THE JUDGMENT OF THE COURT OF 4 MARCH 1964 IN CASE 15/63, HAS ALLEGED THAT THE CRITERION OF NATIONALITY ONLY COMES INTO PLAY WHEN THE CANDIDATES' QUALIFICATIONS ARE APPROXIMATELY EQUAL AND, IN ADDITION, CAN ONLY BE TAKEN INTO ACCOUNT IN THE CONTEXT OF THE TOTALITY OF THE STAFF OF AN INSTITUTION AND NOT IN THAT OF A SINGLE DEPARTMENT .

THE JUDGMENT CITED FOLLOWED ARTICLE 27 OF THE CHAPTER OF THE STAFF REGULATIONS ENTITLED ' RECRUITMENT ' WHICH PROVIDES THAT ' NO POSTS SHALL BE RESERVED FOR NATIONALS OF ANY SPECIFIC MEMBER STATE '. THE JUDGMENT REFERRED TO, WHICH CONCERNS A CASE OF PROMOTION OR TRANSFER, CANNOT BE APPLIED TO THIS CASE .

ARTICLE 27 ALSO STIPULATES THAT OFFICIALS MUST BE ' RECRUITED ON THE BROADEST POSSIBLE GEOGRAPHICAL BASIS '. THIS BROAD GEOGRAPHICAL DISTRIBUTION IS PARTICULARLY DESIRABLE IN THE DIRECTORATE OF ADMINISTRATION AND PERSONNEL, WHICH CONCERNS ALL OFFICIALS . IN ANY EVENT, THE PRACTICAL REQUIREMENTS OF THE POST MAY WELL HAVE MADE IT NECESSARY TO AVOID THE APPOINTMENT OF A FOURTH SERVANT WITH THE SAME LEGAL AND ADMINISTRATIVE TRAINING IN A DIRECTORATE WHOSE STAFF COMPRISES SIX PERSONS IN ALL .

THE DEFENDANT WAS THEREFORE ENTITLED IN THIS CASE TO GIVE PREFERENCE TO A CANDIDATE OF A NATIONALITY OTHER THAN THAT OF THE APPLICANT . EVEN IF THE COMMISSION WERE TO BE CRITICIZED FOR SELECTING THE THIRTY-FIFTH CANDIDATE AND THE FIFTH BELGIAN IN THE ORDER OF MERIT IN THE COMPETITION IN PREFERENCE TO ALL THE CANDIDATES PLACED HIGHER IN THE LIST, THE APPLICANT HAS NO PERSONAL INTEREST IN FORMULATING THAT COMPLAINT .

THIS HEAD OF CLAIM MUST THEREFORE BE DISMISSED .

B - THE REQUEST FOR ANNULMENT OF THE APPOINTMENT OF THE CANDIDATE MR PETRUCCO

WITH REGARD TO THE VACANT POST IN THE PERSONNEL DEPARTMENT OF THE KARLSRUHE ESTABLISHMENT OF THE JOINT RESEARCH CENTRE, THE OFFICIAL DEPUTED TO INTERVIEW THE CANDIDATES PRIOR TO THEIR POSSIBLE ENGAGEMENT SENT THE COMMISSION A REPORT ON THE APPLICANT WORDED AS FOLLOWS :

' A GOOD CANDIDATE . HOWEVER HIS VOCATIONAL EXPERIENCE EQUIPS HIM RATHER FOR A POST IN WHICH HIS LEGAL KNOWLEDGE AND EXPERIENCE CAN BE BETTER UTILIZED . THE MANAGEMENT OF THE STAFF OF A SMALL RESEARCH CENTRE WOULD DIVERT HIM FROM A CAREER CORRESPONDING BETTER TO HIS QUALIFICATIONS '.

P.570

AFTER RECEIVING THIS REPORT, THE COMMISSION PROCEEDED TO SELECT MR PETRUCCO .

IT APPEARS FROM A COMPARISON OF THE RESULTS OBTAINED BY MR SERIO AND MR PETRUCCO IN THE ORAL TESTS THAT THE APPLICANT WAS PLACED FIRST WITH 73.4 POINTS, WHILST THE CANDIDATE SELECTED WAS ONLY PLACED TWELFTH WITH 66 POINTS . FURTHER, A COMPARISON OF THE RESPECTIVE FILES OF THE TWO CANDIDATES SHOWS THAT THE APPLICANT'S QUALIFICATIONS WERE FAR SUPERIOR TO THOSE OF THE CANDIDATE CHOSEN .

UNDER THE TERMS OF ARTICLE 29 OF THE STAFF REGULATIONS ' BEFORE FILLING A VACANT POST ' OR ' CONSTITUTING A RESERVE FOR FUTURE RECRUITMENT ' THE APPOINTING AUTHORITY SHALL FOLLOW ' THE PROCEDURE FOR COMPETITIONS '. UNDER THE TERMS OF ARTICLE 30, THE SAID AUTHORITY SHALL THEN ' DECIDE ' WHICH OF THOSE ON THE LIST OF SUITABLE CANDIDATES TO APPOINT TO THE VACANT POSTS .

IT IS THEREFORE OBLIGED TO RECONCILE THE CONCEPTS OF COMPETITION AND SELECTION RESULTING FROM THESE PROVISIONS READ TOGETHER .

ALTHOUGH IT IS ENTITLED IN MAKING ITS SELECTIONS TO IGNORE THE PRECISE ORDER OF MERIT IN THE COMPETITION FOR REASONS WHICH IT IS INCUMBENT UPON THE ADMINISTRATION TO EVALUATE AND JUSTIFY BEFORE THE COURT, NEVERTHELESS IT MAY NOT DESTROY THE VERY CONCEPT OF COMPETITION BY DEPARTING SUBSTANTIALLY FROM THE RESULT OF THE COMPETITION WITHOUT SERIOUS REASONS .

HOWEVER NO SUCH REASONS APPLY IN THE PRESENT CASE, SINCE THE EXCELLENCE OF A CANDIDATE PLACED FIRST CANNOT BE CONSIDERED AS JUSTIFICATION FOR HIS REJECTION . THE DEFENDANT'S ALLEGATION THAT THE COMMISSION'S CHOICE WAS INSPIRED BY THE GREATER EXPERIENCE OF THE CANDIDATE APPOINTED SEEMS IRRELEVANT . IN FACT, UNDER THE TERMS OF ARTICLE 1(1)(D ) OF ANNEX III TO THE STAFF REGULATIONS THE NOTICE OF COMPETITION MUST SPECIFY ' THE DEGREE OF EXPERIENCE REQUIRED FOR THE POSTS TO BE FILLED '.

ARTICLE 5 OF ANNEX III OBLIGES THE SELECTION BOARD TO DRAW UP A LIST OF CANDIDATES ' WHO MEET THE REQUIREMENTS SET OUT IN THE NOTICE OF COMPETITION '.

THUS, IN ALLOWING MR SERIO TO TAKE PART IN THE COMPETITION, THE SELECTION BOARD HAD ALREADY CONSIDERED THE DEGREE OF HIS EXPERIENCE, SO DEPRIVING THE COMMISSION OF THE OPPORTUNITY TO JUSTIFY A SUBSEQUENT REFUSAL TO APPOINT THE CANDIDATE BY REASON ONLY OF HIS INSUFFICIENT EXPERIENCE .

MOREOVER THE POST TO BE FILLED WAS A POST OF ADMINISTRATOR IN CAREER BRACKET A7-A6 IN WHICH THE OFFICIAL, WHO IS USUALLY INEXPERIENCED, BEGINS TO CARRY OUT HIS DUTIES UNDER THE SUPERVISION OF EXPERIENCED SUPERIORS . IT APPEARS FROM THE FILE THAT THE APPLICANT HAD FOR THREE YEARS PRACTISED PATENT LAW WITH THE MONTECATINI COMPANY AND FOR ONE YEAR HAD CARRIED OUT TEMPORARY DUTIES AT THE EUROPEAN PARLIAMENT . THEREFORE THE LACK OF EXPERIENCE REFERRED TO DURING THE PROCEEDINGS IN ORDER TO JUSTIFY THE APPLICANT'S REJECTION CANNOT BE ACCEPTED, MORE ESPECIALLY AS THIS REASON APPEARS TO BE DIFFERENT FROM THAT GIVEN AT THE TIME OF THE APPLICANT'S EXCLUSION .

P.571

FINALLY THE COMMISSION CANNOT HIDE BEHIND THE ARGUMENT THAT, HAVING CONSTITUTED A RESERVE LIST FOR FUTURE RECRUITMENT, IT THEN HAD COMPLETE FREEDOM OF CHOICE .

IT APPEARS FROM THE NOTICE OF GENERAL COMPETITIONS PUBLISHED BY THE COMMISSION ( OFFICIAL JOURNAL OF 22 JUNE 1964 ) THAT ' THE LIST OF SUITABLE CANDIDATES WILL BE SENT TO THE APPOINTING AUTHORITY, WHICH WILL SELECT FROM IT THE CANDIDATES TO BE APPOINTED OR, IN THE EVENT OF THE CONSTITUTION OF A RESERVE LIST FOR FUTURE RECRUITMENT, TO BE PLACED ON THAT LIST '.

THE COMMISSION HAS THEREFORE ALREADY MADE A FIRST CHOICE BY PLACING THE CANDIDATES ON THAT LIST . CONSEQUENTLY IT CANNOT THEREAFTER CLAIM A DISCRETIONARY POWER TO MAKE A SERIOUS DEPARTURE FROM THE CHOICES WHICH IT HAD PREVIOUSLY MADE .

IT FOLLOWS FROM THE FOREGOING THAT THE DEFENDANT HAS INFRINGED ARTICLES 27, 29 AND 30 OF THE STAFF REGULATIONS OF OFFICIALS AND THAT, THEREFORE, THE APPOINTMENT OF THE CANDIDATE MR PETRUCCO TO THE KARLSRUHE POST SHOULD BE ANNULLED .

C - THE CLAIM FOR COMPENSATION

THE APPLICANT REQUESTS THE COURT TO AWARD HIM DAMAGES FOR THE LOSS OF INCOME SUFFERED BY REASON OF HIS REJECTION .

THE CIRCUMSTANCES IN WHICH THE APPLICANT'S REJECTION OCCURRED AND THE ERRONEOUS REASONS GIVEN CONSTITUTE A WRONGFUL ACT OR OMISSION ON THE PART OF THE DEFENDANT AND SUCH WRONGFUL ACT OR OMISSION HAS CAUSED DAMAGE GIVING THE RIGHT TO REPARATION .

SUCH LOSS IS CALCULATED EX AEQUO ET BONO AT ONE HUNDRED AND FIFTY THOUSAND BELGIAN FRANCS .

D - THE APPLICANT'S REMAINING CONCLUSIONS

THE APPLICANT ALSO REQUESTS THE COURT TO ORDER THE DEFENDANT TO APPOINT HIM WITH RETROACTIVE EFFECT TO ONE OF THE VACANT POSTS .

IT IS THE DEFENDANT'S DUTY TO CARRY OUT THE JUDGMENT OF ANNULMENT BUT THE COURT CANNOT ENCROACH UPON THE PREROGATIVES OF THE APPOINTING AUTHORITY BY ADDRESSING TO IT INSTRUCTIONS CAPABLE OF DETERMINING ITS CHOICE . THE DEFENDANT IS CAPABLE OF MAKING ITS CHOICE WHILE STRICTLY OBSERVING THE PROVISIONS OF THE STAFF REGULATIONS .

THE COURT'S REVIEW IS LIMITED TO EXAMINING THE WAYS AND MEANS WHICH MAY HAVE LED TO THE EVALUATION MADE BY THE APPOINTING AUTHORITY .

THEREFORE THE REQUEST MUST BE REJECTED .

E - THE REQUEST FOR THE PRODUCTION OF DOCUMENTS

ON 1 SEPTEMBER 1966 THE APPLICANT LODGED A REQUEST FOR THE DEFENDANT TO BE ORDERED TO PRODUCE A SERIES OF EIGHT DOCUMENTS .

AT THE HEARING IN OPEN COURT THE DEFENDANT OF ITS OWN ACCORD LODGED THE FILES CONCERNING THE CANDIDATURES OF MR SERIO AND MR PETRUCCO .

AS THE COURT CONSIDERS THAT IT HAS THEREBY BEEN PROVIDED WITH SUFFICIENT INFORMATION, IT IS OF THE OPINION THAT THERE IS NO NECESSITY TO ORDER THE PRODUCTION OF ADDITIONAL DOCUMENTS .

Decision on costs

UNDER THE TERMS OF ARTICLE 69(2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .

AS THE APPLICANT HAS SUCCEEDED IN RESPECT OF THE ESSENTIAL PART OF HIS CONCLUSIONS, THE DEFENDANT SHOULD BEAR THE ENTIRE COSTS OF THE ACTION . HOWEVER, ON 3 OCTOBER 1966 THE APPLICANT WITHDREW HIS APPLICATION 62/65 R FOR THE ADOPTION OF AN INTERIM MEASURE IN WHICH HE SOUGHT THE SUSPENSION OF THE ESTABLISHMENT OF THE TWO OFFICIALS WHOSE APPOINTMENTS HE CONTESTED . THIS WITHDRAWAL WAS CAUSED BY THE DEFENDANT'S DECLARATION THAT THE ESTABLISHMENT OF THOSE TWO OFFICIALS HAD ALREADY TAKEN PLACE BY DECISIONS OF 29 JULY 1966 . THE REASON FOR THE APPLICANT'S WITHDRAWAL WAS THE BELATED LODGING OF HIS REQUEST FOR SUSPENSION OF EXECUTION OF THE DECISIONS .

TAKING INTO ACCOUNT THE FACT THAT, IN ACCORDANCE WITH ARTICLE 70 OF THE RULES OF PROCEDURE, THE COSTS INCURRED BY INSTITUTIONS IN PROCEEDINGS REFERRED TO IN THE STAFF REGULATIONS SHALL BE BORNE BY THEM, THERE ARE GROUNDS FOR DECIDING THAT THE APPLICANT MUST BEAR THE COSTS INCURRED BY HIM IN APPLICATION 62/65 R FOR THE ADOPTION OF THAT INTERIM MEASURE .

Operative part

THE COURT ( FIRST CHAMBER )

HEREBY :

1 . ANNULS THE APPOINTMENT OF MR EUGENIO PETRUCCO AS ADMINISTRATOR IN THE PERSONNEL DEPARTMENT OF THE KARLSRUHE ESTABLISHMENT OF THE JOINT RESEARCH CENTRE;

2 . ORDERS THE DEFENDANT TO PAY TO THE APPLICANT THE SUM OF ONE HUNDRED AND FIFTY THOUSAND BELGIAN FRANCS BY WAY OF DAMAGES;

3 . ORDERS THE DEFENDANT TO PAY THE COSTS OF THE PROCEEDINGS, WITH THE EXCEPTION OF THOSE INCURRED BY THE APPLICANT IN APPLICATION 62/65 R FOR THE ADOPTION OF AN INTERIM MEASURE .