JUDGMENT OF THE COURT OF FIRST INSTANCE (Second Chamber)

8 June 1995

Case T-496/93

Alain-Pierre Alio

v

Commission of the European Communities

‛Officials — Appointment — Discretion of the appointing authority — Interest of the service — Statement of reasons — Absence of staff report — Bearing on the procedure — Procedure for filling middle-management posts — Rights of the defence’

Full text in French II-405

Application for:

first, the annulment of the decisions appointing Ms X as head of the Commission delegation in Romania and rejecting the applicant's application for that post and, secondly, the award of damages in respect of the material and nonmaterial damage suffered by the applicant as a result of those decisions and the absence of his staff report for the period 1989 to 1991 from his personal file when the applications for the post in question were being considered.

Decision:

Application dismissed.

Abstract of the Judgment

The Commission published a vacancy notice for the post of head of the Commission's delegation to Romania. The post in question was to be filled in accordance with the procedure laid down in the decision of the Commission of 19 July 1988 on the filling of middle-management posts [COM(88)PV 928, decision of 19 July 1988]. The applicant, an official in Grade A 4 at the Commission, and Ms X, also an official in Grade A 4, submitted their applications for that post.

The Advisory Committee on Appointments (‘ACA’), after hearing the Director-General of the Directorate-General for External Relations (DG I), decided that the post should be filled at Grade A 3 and that the application for the post submitted by the applicant should not be taken into account.

The Director-General of DG I then expressed the opinion that the post in question should be filled at Grade A 3 and that only Ms X possessed the required qualifications. She was appointed to the disputed post by means of promotion to Grade A 3.

The applicant lodged a complaint against those decisions and sought compensation for the material and nonmaterial damage which he claimed to have suffered. That complaint was rejected by express decision.

Admissibility

Admissibility of certain pleas in law for annulment

The Court of First Instance notes that the rule of consistency between the complaint and the application initiating legal proceedings requires any plea put forward before the Court to have been raised already in the complaint in the context of the pre-litigation procedure. None the less, while the statement of the form of order the Court to have been raised already in the complaint in the context of the pre-litigation procedure. None the less, while the statement of the form of order applied for may contain only ‘heads of claim’ based on the same matters as the heads of claim raised in the complaint, the former may none the less be developed before the Court by the submission of pleas and arguments which need not necessarily appear in the complaint but must be closely linked to it (paragraph 26).

See: T-58/91 Booss and Fischer v Commission [1993] ECR II-147, para. 83

The Court also observes that, since the pre-litigation procedure is informal in character and those concerned are generally acting without the assistance of a lawyer at that stage, the administration must not interpret complaints restrictively but, on the contrary, must consider them with an open mind (paragraph 27).

See: 133/88 Del Amo Martinez v Parliament [1989] ECR 689, para. 11

The Court considers that the plea alleging infringement of the first paragraph of Article 4 of the Staff Regulations and the plea alleging breach of the principle of equal treatment are closely linked with the heads of claim raised in the applicant's complaint. Accordingly those pleas are admissible.

On the other hand, the Court finds that his complaint does not contain any plea or argument from which the Commission, even with an open mind, could have inferred that the applicant was relying on a breach of the principle of the protection of legitimate expectations. Accordingly that plea is inadmissible.

Admissibility of claim for a direction to be issued to the Commission

The applicant requested the Court to prohibit the Commission from placing a draft staff report on his personal file and to order the Commission to remove that document from any file parallel to his personal file.

The Court restates the principle that it may not issue directions to a Community institution without encroaching upon the prerogatives of the appointing authority. That principle also applies both in the context of a review of legality, based on Article 91 of the Staff Regulations, and in the context of an application for compensation (paragraph 32).

See: T-20/92 Moat v Commission [1993] ECR II-799, para. 36

Substance

The applicant asked the Court to exclude from the proceedings a draft staff report. The Court finds that, in view of the fact that the report was drawn up after the disputed decisions were adopted, that document could not have been relevant to the disputed decisions. Accordingly, the Court will not take any account of it (paragraph 35).

The plea alleging manifest errors of assessment

The applicant maintains that the consideration of his merits as compared with those of Ms X undertaken by the Commission is vitiated by manifest errors.

The Court points out that, in assessing the interests of the service and the qualifications and merits of the candidates to be taken into consideration in making a decision on appointment by way of promotion or transfer, the appointing authority possesses a wide discretion. In that connection, the Court's review must be confined to the question whether, having regard to the various considerations which have influenced the administration in making its assessment, the latter has remained within reasonable bounds and has not used its power in a manifestly incorrect way (paragraph 39).

See: 324/85 Bouteiller v Commission [1987] ECR 529, para. 6; T-82/91 Latham v Commission [1994] ECRSC II-61, para. 47

The Court finds that the applicant has not adduced any evidence of a nature such as to show that the appointing authority has used its powers in a manifestly incorrect way by choosing Ms X rather than the applicant to fill the post in question.

Vie plea alleging infringement of the first paragraph of Article 4 and Article 7(1) of the Staff Regulations

The applicant denies that the appointment at issue was made solely in the interest of the service.

The Court considers that the various factors relied upon by the applicant in support of that plea are not of a nature such as to establish that the appointing authority's assessment of the interest of the service is manifestly incorrect; nor are they supported by objective and relevant evidence (paragraph 50).

The plea alleging misuse of powers

A decision may amount to a misuse of powers only if it appears, on the basis of objective, relevant and consistent evidence, to have been taken for puiposes other than those stated (paragraph 53).

Since the applicant has not adduced any evidence in support of that plea, it is rejected.

See: T-80/92 Turner v Commission [1993] ECR II-1465, para. 70

The plea alleging breach of the obligation to state reasons

The applicant maintains that the Commission infringed the second paragraph of Article 25 inasmuch as it omitted to state clearly the reasons for preferring Ms X's candidature to his.

The Court points out that the appointing authority is not required to give a statement of reasons for promotion or transfer decisions in respect of candidates who are not promoted or transferred. The appointing authority is, on the other hand, required to give a statement of reasons for a decision rejecting a complaint lodged by a candidate who has not been promoted or transferred. For the purpose of ensuring compliance with the second paragraph of Article 25 of the Staff Regulations it is sufficient that the statement of reasons for the rejection of a compliant lodged against a transfer or promotion decision deals with the existence of the legal conditions which the Staff Regulations require to be satisfied for the procedure to be lawful (paragraph 58).

See: C-115/92 P Parliament v Volger [1993] ECR I-6549, para. 22; T-52/90 Volger v Parliament [1992] ECR II-121, para. 36

In this case, the Court considers that the decision of the Commission rejecting the applicant's complaint enabled him to know the reasons for which the appointing authority chose Ms X to fill the post in question and rejected his own application for the post (paragraph 59).

Tìie plea alleging infringement of Articles 26 and 45 of the Staff Regulations and of the rights of the defence

As regards the first part of that plea, namely, infringement of Articles 26 and 45 of the Staff Regulations as a result of the absence of the applicant's staff report for the period from 1 July 1989 to 30 June 1991 from his personal file at the time when the candidatures were being considered, the Court finds, first, that the absence of the staff report in question is not disputed.

None the less, the fact that a file is irregular or incomplete for lack of a staff report at the time when the comparative merits of the candidates are examined does not justify the annulment of an appointment by way of transfer or promotion, unless it is shown that that fact could have had a decisive effect on the promotion procedure. Moreover, if a staff report is missing, the appointing authority may seek other information capable of compensating for its absence (paragraph 71).

See: T-18/93 Marcato v Commission [1994] ECRSC II-681, para. 73

In the present case, it has not been shown that absence from the official's personal file of the staff report in question could have had a decisive effect on the appointment procedure.

In the second part of his plea, the applicant maintains that the system for filling middle-management posts at the Commission, resulting from the decision of 19 July 1988 is, by its very nanne, capable of entailing infringements of Article 26 of the Staff Regulations inasmuch as it provides for the ACA to take into account the oral assessments made by the Director-General concerned without their ever being made known to the official concerned.

Decisions taken by the appointing authority which affect an official's administrative status and career and which are based on matters not included in his personal file are contrary to the guarantees contained in the Staff Regulations and must be annulled because they were adopted on the basis of a procedure vitiated by illegality (paragraph 75).

See: T-109/92 Lacruz Bassols v Court of Justice [1994] ECRSC II-105, para. 68

It appears from the facts of the present case that the applications were examined on the basis of staff reports and application forms while taking account of information provided by the Director-General within the limits of the case-law cited above (paragraph 78).

The plea alleging breach of the principle of equal treatment

The Court finds that that plea is based on the arguments put forward under the preceding pleas in law and is not supported by any additional argument (paragraph 81).

The claims for compensation

The absence of the staff report in question from the applicant's personal file had no decisive bearing on the conduct of the appointment procedure at issue and could not therefore have caused the applicant any material damage.

As regards nonmaterial damage, the Court observes that the absence of a staff report from the personal file of an official is capable of giving rise, in so far as that official is concerned, to nonmaterial damage if, on the one hand, his career could have been affected thereby or if, on the other, that fact resulted in his being put in an uncertain or anxious state of mind with regard to his future (paragraph 89).

See: T-13/92 Moat v Commission [1993] ECR II-287, para. 44; T-27/90 Latham v Commission [1991] ECR II-35, para. 49

The Court takes the view that, in this case, it has not been shown that the absence of the staff report in question had a negative influence on the career of the applicant or resulted, in his case, in an uncertain or anxious state of mind with regard to his future.

Operative part:

The application is dismissed.