Judgment of the Court (Third Chamber) of 10 December 1987. - Ernst R. Bauer and others v Commission of the European Communities. - Officials - Promotions. - Joined cases 151/86, 152/86, 153/86 and 154/86.



European Court reports 1987 Page 04951



Summary

Parties

Grounds

Decision on costs

Operative part



Keywords

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OFFICIALS - SCIENTIFIC AND TECHNICAL SERVICES - TRANSFER FROM CATEGORY B TO CATEGORY A - DISCRETION OF THE ADMINISTRATION REGARDING THE CHOICE OF PROCEDURE APPLICABLE

( ART . 45 ( 2 ) AND ART . 98 ( 2 ) OF THE STAFF REGULATIONS )

Summary

ALTHOUGH ARTICLE 45 ( 2 ) OF THE STAFF REGULATIONS, WHICH PROVIDES THAT AN OFFICIAL MAY BE TRANSFERRED FROM ONE SERVICE TO ANOTHER OR PROMOTED FROM ONE CATEGORY TO ANOTHER ONLY ON THE BASIS OF A COMPETITION, IN CONJUNCTION WITH THE SECOND PARAGRAPH OF ARTICLE 98, WHICH PROVIDES THAT THAT PRINCIPLE SHALL NOT APPLY TO OFFICIALS IN THE SCIENTIFIC AND TECHNICAL SERVICES, ALLOW THE APPOINTING AUTHORITY TO PROMOTE SCIENTIFIC AND TECHNICAL STAFF TO A HIGHER CATEGORY WITHOUT USING THE COMPETITION PROCEDURE, IT IS NEITHER THE PURPOSE NOR THE EFFECT OF THOSE PROVISIONS TO PROHIBIT THE USE OF SUCH A PROCEDURE .

IN VIEW OF THE DISCRETION WHICH THE APPOINTING AUTHORITY ENJOYS IN THE MATTER, IT MAY ALSO IMPLEMENT A SUI GENERIS PROCEDURE BASED ON THE COMPETITION PROCEDURE BUT DIFFERING FROM IT IN CERTAIN RESPECTS .

Parties

IN JOINED CASES 151 TO 154/86

ERNST R . BAUER, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, EMPLOYED AT THE ISPRA JOINT RESEARCH CENTRE, VARESE ( ITALY ),

REINHARD FREIDHOF, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, EMPLOYED AT THE ISPRA JOINT RESEARCH CENTRE, RANCO ( ITALY ),

HORST KUTSCHERA, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, EMPLOYED AT THE ISPRA JOINT RESEARCH CENTRE, BREBBIA ( ITALY ),

WINFRIED BOETTCHER, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, EMPLOYED AT THE ISPRA JOINT RESEARCH CENTRE, ISPRA ( ITALY ),

REPRESENTED BY BERND POTTHAST AND HANS-JOSEF ROEBER, OF THE COLOGNE BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF VICTOR BIEL, 18 A RUE DES GLACIS,

APPLICANTS,

V

COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY HENRI ETIENNE, PRINCIPAL LEGAL ADVISER, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE AT THE OFFICE OF G . KREMLIS, A MEMBER OF ITS LEGAL SERVICE, JEAN MONNET BUILDING, KIRCHBERG,

DEFENDANT,

APPLICATION FOR THE ANNULMENT OF THE DECISION CONTAINED IN LETTERS OF 16 SEPTEMBER 1985 NOT TO INCLUDE THE APPLICANTS IN THE LIST OF CATEGORY B OFFICIALS AND TEMPORARY STAFF IN THE SCIENTIFIC AND TECHNICAL SERVICES SUITABLE FOR PERFORMING CATEGORY A DUTIES,

THE COURT ( THIRD CHAMBER )

COMPOSED OF : J . C . MOITINHO DE ALMEIDA, PRESIDENT OF CHAMBER, U . EVERLING AND Y . GALMOT, JUDGES,

ADVOCATE GENERAL : J . MISCHO

REGISTRAR : J . A . POMPE, ASSISTANT REGISTRAR

HAVING REGARD TO THE REPORT FOR THE HEARING AND FURTHER TO THE HEARING ON 24 SEPTEMBER 1987,

HAVING HEARD THE OPINION OF THE ADVOCATE GENERAL DELIVERED AT THE HEARING OF 28 OCTOBER 1987,

GIVES THE FOLLOWING

JUDGMENT

Grounds

1 BY FOUR APPLICATIONS LODGED AT THE COURT REGISTRY ON 25 JUNE 1986, MR BAUER, MR FREIDHOF, MR KUTSCHERA AND MR BOETTCHER, CATEGORY B OFFICIALS IN THE SCIENTIFIC AND TECHNICAL SERVICES, EMPLOYED AT THE ISPRA JOINT RESEARCH CENTRE, BROUGHT ACTIONS SEEKING, FIRST, THE ANNULMENT OF THE DECISIONS NOTIFIED BY LETTERS OF 16 SEPTEMBER 1985 WHEREBY THE AD HOC COMMITTEE SET UP TO ASSESS THE SUITABILITY OF CATEGORY B OFFICIALS IN THE SCIENTIFIC AND TECHNICAL SERVICES TO PERFORM CATEGORY A DUTIES REFUSED TO ENTER THEIR NAMES ON THE LIST OF SUITABLE CANDIDATES PROVIDED FOR THAT PURPOSE AND, SECONDLY, THE ANNULMENT OF THE COMMISSION' S DECISIONS DATED 4 APRIL 1986 REJECTING THEIR COMPLAINT AGAINST THE ABOVEMENTIONED DECISIONS .

2 BY THE SAME APPLICATIONS AS MR BAUER, MR FREIDHOF, MR KUTSCHERA AND MR BOETTCHER ALSO SEEK AN ORDER REQUIRING THE COMMISSION TO INCLUDE THEM IN THE LIST OF SUITABLE CANDIDATES OR, ALTERNATIVELY, REQUIRING IT TO RESUBMIT THEIR APPLICATIONS TO THE AD HOC COMMITTEE WITH A VIEW TO INCLUDING THEM IN THE LIST .

3 IN 1983, THE APPLICANTS APPLIED FOR TRANSFERS TO CATEGORY A . THEIR APPLICATIONS WERE EXAMINED BY AN AD HOC COMMITTEE IN ACCORDANCE WITH THE "PROCEDURES TO BE IMPLEMENTED PRIOR TO DECISIONS ON THE TRANSFER FROM CATEGORY B TO CATEGORY A OF OFFICIALS AND TEMPORARY STAFF IN THE SCIENTIFIC AND TECHNICAL SERVICES" ( HEREINAFTER REFERRED TO AS "THE PROCEDURAL ARRANGEMENTS "), ADOPTED BY THE COMMISSION ON 3 JUNE 1983 ( ADMINISTRATIVE NOTICES NO 409 OF 24 JUNE 1983 ).

4 AT THE END OF THE PROCEDURE, THE CHAIRMAN OF THE AD HOC COMMITTEE AND THE COMMISSION' S DIRECTOR-GENERAL FOR PERSONNEL AND ADMINISTRATION INFORMED THE APPLICANTS BY LETTERS DATED 16 SEPTEMBER 1985 THAT THE AD HOC COMMITTEE HAD DECIDED NOT TO ENTER THEIR NAMES ON THE LIST OF CANDIDATES SUITABLE FOR PERFORMING CATEGORY A DUTIES . THE COMPLAINTS MADE BY MR BAUER, MR FREIDHOF, MR KUTSCHERA AND MR BOETTCHER AGAINST THOSE DECISIONS, PURSUANT TO ARTICLE 90 OF THE STAFF REGULATIONS, WERE REJECTED BY DECISIONS OF THE COMMISSION OF 4 APRIL 1986 .

5 REFERENCE IS MADE TO THE REPORT FOR THE HEARING FOR THE LEGAL BACKGROUND TO THE DISPUTE AND THE SUBMISSIONS AND ARGUMENTS OF THE PARTIES, WHICH ARE MENTIONED OR DISCUSSED HEREINAFTER ONLY IN SO FAR AS IS NECESSARY FOR THE REASONING OF THE COURT .

6 THE APPLICANTS RELY ON FOUR SUBMISSIONS IN SUPPORT OF THEIR ACTION . THEIR FIRST SUBMISSION IS THAT THE AD HOC COMMITTEE MISINTERPRETED ITS ROLE UNDER THE PROCEDURAL ARRANGEMENTS, THEIR SECOND SUBMISSION THAT THE AD HOC COMMITTEE WAS NOT ENTITLED TO TAKE ACCOUNT, AS IT DID, OF BUDGETARY CONSTRAINTS WHEN DRAWING UP THE LIST OF SUITABLE CANDIDATES, THEIR THIRD SUBMISSION THAT THE SELECTION PROCEDURE USED WAS EQUIVALENT TO A COMPETITION, WHICH WAS CONTRARY TO THE STAFF REGULATIONS, AND THEIR LAST SUBMISSION THAT THE PRINCIPLE OF EQUAL TREATMENT WAS CONTRAVENED .

THE SUBMISSION THAT THE AD HOC COMMITTEE SHOULD HAVE ENTERED THE APPLICANTS' NAMES ON THE LIST OF SUITABLE CANDIDATES

7 THE APPLICANTS MAINTAIN THAT THE PROCEDURAL ARRANGEMENTS REQUIRED THE AD HOC COMMITTEE TO ENTER THEIR NAMES ON THE LIST OF SUITABLE CANDIDATES SINCE THEY HELD A DEGREE OR DIPLOMA FROM A UNIVERSITY OR A COMPARABLE ESTABLISHMENT . IN THEIR VIEW, THE COMMITTEE SHOULD HAVE CONFINED ITS TASK TO VERIFYING WHETHER THEY HELD SUCH A DEGREE OR DIPLOMA AND TO DEFINING THE AREA OF COMPETENCE IN WHICH THEY WERE CAPABLE OF PERFORMING CATEGORY A DUTIES . THEY ARGUE THAT NO PROPER OBJECTION CAN BE MADE TO THAT ARGUMENT ON THE BASIS OF THE PRINCIPLE OF EQUAL TREATMENT SINCE CANDIDATES WITH DEGREES OR DIPLOMAS AND CANDIDATES WITHOUT DEGREES OR DIPLOMAS ARE IN OBJECTIVELY DIFFERENT SITUATIONS .

8 IT SHOULD BE OBSERVED IN THIS REGARD THAT, ACCORDING TO SECTION III OF THE PROCEDURAL ARRANGEMENTS, THE AD HOC COMMITTEE IS TO EXAMINE APPLICATIONS IN THE MANNER PROVIDED FOR IN PARAGRAPH III ( 2 ). FIRST, THE COMMITTEE IS TO SCRUTINIZE THE CANDIDATE' S APPLICATION AND, WHERE APPROPRIATE, HOLD A PERSONAL INTERVIEW WITH THE CANDIDATE AND/OR HIS SUPERIORS . THAT INITIAL STAGE IS IN PRINCIPLE FOLLOWED BY THE ASSESSMENT OF A SCIENTIFIC OR TECHNICAL DISSERTATION WHOSE SUBJECT IS SELECTED BY THE COMMITTEE . HOWEVER, CANDIDATES HOLDING A DEGREE OR DIPLOMA FROM A UNIVERSITY OR COMPARABLE ESTABLISHMENT WHO ALSO FULFIL CERTAIN CONDITIONS RELATING TO PROFESSIONAL EXPERIENCE AND SENIORITY ARE EXEMPTED FROM SUBMITTING A DISSERTATION : THOSE CANDIDATES "MAY BE RECOGNIZED AS ELIGIBLE FOR TRANSFER FOLLOWING VERIFICATION OF THEIR DIPLOMAS AND AN INTERVIEW WITH THE COMMITTEE TO ASSESS THEIR LEVEL AND AREAS OF COMPETENCE ". FOLLOWING ITS DELIBERATIONS THE COMMITTEE DRAWS UP A LIST OF SUITABLE CANDIDATES AND A REASONED REPORT BOTH OF WHICH IT SUBMITS TO THE APPOINTING AUTHORITY .

9 IT IS APPARENT FROM THE ACTUAL WORDING OF THE ABOVEMENTIONED PROVISIONS THAT THE CANDIDATES HOLDING A DEGREE OR DIPLOMA FROM A UNIVERSITY OR COMPARABLE ESTABLISHMENT "MAY" BE RECOGNIZED AS ELIGIBLE FOR TRANSFER . THE POSSESSION OF THE DEGREE OR DIPLOMA DOES NOT THEREFORE AUTOMATICALLY ENTITLE THEM TO BE DECLARED SUITABLE FOR PERFORMING CATEGORY A DUTIES . FURTHERMORE, THE AD HOC COMMITTEE' S TASK IS NOT ONLY TO DETERMINE THEIR AREA, BUT ALSO THEIR LEVEL, OF COMPETENCE BEFORE DRAWING UP THE LIST OF SUITABLE CANDIDATES .

10 IT IS TRUE THAT CANDIDATES HOLDING A DEGREE OR DIPLOMA ARE IN A SITUATION WHICH IS OBJECTIVELY DIFFERENT FROM THAT OF THE OTHER CANDIDATES, WHICH MAY HAVE BEEN LEGITIMATE CAUSE FOR THE COMMISSION TO ADOPT PARTICULAR ARRANGEMENTS FOR DETERMINING THE LEVEL OF KNOWLEDGE OF THOSE CANDIDATES . HOWEVER, CONTRARY TO THE APPLICANT' S ARGUMENT, THAT CIRCUMSTANCE COULD NOT HAVE JUSTIFIED MORE FAVOURABLE TREATMENT BEING ACCORDED TO CANDIDATES WITH DEGREES OR DIPLOMAS WHEN THE LIST OF SUITABLE CANDIDATES WAS DRAWN UP .

11 IN FACT, ALL CATEGORY B STAFF ARE EQUALLY ELIGIBLE FOR TRANSFER TO THE NEXT HIGHER CATEGORY, WHETHER OR NOT THEY HAVE A DEGREE OR A DIPLOMA . SUCH A TRANSFER MUST BE MADE ON THE BASIS OF A COMPARATIVE EXAMINATION OF THE MERITS OF THE CANDIDATES AND SOME OF THEM ARE NOT TO BE GIVEN AN ADVANTAGE SIMPLY BECAUSE THEY HOLD A DEGREE OR A DIPLOMA .

12 IT FOLLOWS THAT THE AD HOC COMMITTEE HAD THE DUTY OF ASSESSING WHETHER THE CANDIDATES WITH DEGREES OR DIPLOMAS WERE SUITABLE FOR TRANSFER TO THE NEXT HIGHER CATEGORY AND THAT IT WAS NOT OBLIGED TO ENTER THE NAMES OF ALL THOSE CANDIDATES ON THE LIST .

13 THE FIRST SUBMISSION MUST THEREFORE BE DISMISSED .

THE SUBMISSION THAT THE COMMITTEE OUGHT NOT TO HAVE TAKEN BUDGETARY CONSTRAINTS INTO ACCOUNT

14 THE APPLICANTS CONTEND THAT THE AD HOC COMMITTEE LIMITED THE NUMBER OF NAMES ON THE LIST OF SUITABLE CANDIDATES IN ORDER TO TAKE ACCOUNT OF BUDGETARY CONSTRAINTS AND THAT IT HAD NO POWER TO DO SO SINCE BUDGETARY CONSTRAINTS SHOULD BE TAKEN INTO ACCOUNT ONLY WHEN THE ACTUAL APPOINTMENTS ARE MADE .

15 IT SHOULD BE NOTED THAT, ACCORDING TO PARAGRAPH I ( D ) OF THE PROCEDURAL ARRANGEMENTS, THE COMMITTEE, WHEN DRAWING UP THE LIST OF SUITABLE CANDIDATES, WAS OBLIGED TO TAKE INTO ACCOUNT THE LIKELY AVAILABLE BUDGETARY RESOURCES . IT IS NOT THE CASE, AS THE APPLICANTS MAINTAIN, THAT THAT PROVISION CONFLICTS WITH PARAGRAPH III 2 ( E ), ACCORDING TO WHICH TRANSFERS ARE TO BE DECIDED BY THE APPOINTING AUTHORITY IN THE LIGHT OF "THE BUDGETARY SITUATION ": IT CAN ONLY BE UNDERSTOOD AS CALLING UPON THE COMMITTEE TO LIMIT THE NUMBER OF NAMES ON THE LIST OF SUITABLE CANDIDATES TO THE NUMBER OF POSTS LIKELY TO BECOME VACANT DURING THE PERIOD OF VALIDITY OF THE LIST .

16 THE PURPOSE OF SETTING UP THE COMMITTEE WAS IN FACT TO FACILITATE THE APPOINTING AUTHORITY' S SELECTION . THIS AIM WOULD NOT HAVE BEEN ATTAINED IF THE NUMBER OF STAFF ON THE LIST OF SUITABLE CANDIDATES HAD BORNE NO RELATION TO THE LIKELY AVAILABLE BUDGETARY RESOURCES .

17 THE SECOND SUBMISSION MUST THEREFORE ALSO BE DISMISSED .

THE SUBMISSION THAT THE SELECTION PROCEDURE WAS EQUIVALENT TO A COMPETITION

18 THE APPLICANTS SUBMIT THAT THE SELECTION SO CARRIED OUT AMONGST THE CANDIDATES WAS EQUIVALENT TO A COMPETITION PROCEDURE AND THAT THE SECOND PARAGRAPH OF ARTICLE 98 OF THE STAFF REGULATIONS PROHIBITS THE HOLDING OF A COMPETITION FOR THE TRANSFER OF SCIENTIFIC AND TECHNICAL STAFF FROM ONE CATEGORY TO A HIGHER CATEGORY .

19 IT MUST BE POINTED OUT THAT, ALTHOUGH ARTICLE 45 ( 2 ) OF THE STAFF REGULATIONS LAYS DOWN THE PRINCIPLE THAT AN OFFICIAL MAY BE TRANSFERRED FROM ONE SERVICE TO ANOTHER OR PROMOTED FROM ONE CATEGORY TO ANOTHER ONLY ON THE BASIS OF A COMPETITION, THE SECOND PARAGRAPH OF ARTICLE 98 PROVIDES THAT "ARTICLE 45 ( 2 ) SHALL NOT APPLY TO OFFICIALS COVERED BY ARTICLE 92 ". IT IS CLEAR FROM THOSE PROVISIONS CONSIDERED TOGETHER THAT THEY ALLOW THE APPOINTING AUTHORITY TO PROMOTE SCIENTIFIC AND TECHNICAL STAFF TO A HIGHER CATEGORY WITHOUT USING THE COMPETITION PROCEDURE; HOWEVER, PROHIBITING THE USE OF SUCH A PROCEDURE IS NEITHER THEIR PURPOSE NOR THEIR EFFECT .

20 FURTHERMORE, IT MUST BE POINTED OUT THAT IN THE PRESENT CASE THE COMMISSION DID NOT INTEND TO HOLD A COMPETITION WITHIN THE MEANING OF THE STAFF REGULATIONS . IN VIEW OF THE DISCRETION WHICH THE COMMISSION HAD IN ORGANIZING THE PARTICULAR PROCEDURE FOR TRANSFERRING SCIENTIFIC AND TECHNCIAL STAFF TO A HIGHER CATEGORY, IT WAS ENTITLED, LIKE ANY AUTHORITY WITH DISCRETIONARY DECISION-MAKING POWERS, TO IMPLEMENT A SUI GENERIS PROCEDURE . EVEN IF THAT PROCEDURE WAS INTENDED TO SELECT THE MOST SUITABLE CANDIDATES FOR PERFORMING CATEGORY A DUTIES, IT WAS DIFFERENT IN SEVERAL RESPECTS FROM A COMPETITION PROCEDURE .

21 THE THIRD SUBMISSION CANNOT THEREFORE BE UPHELD .

THE SUBMISSION ALLEGING A BREACH OF THE PRINCIPLE OF EQUAL TREATMENT

22 THE APPLICANTS MAINTAIN THAT THE CONDITIONS IN WHICH THEIR INTERVIEW WITH THE COMMITTEE TOOK PLACE PREJUDICED THEM IN RELATION TO CANDIDATES WITHOUT DEGREES OR DIPLOMAS, IN BREACH OF THE PRINCIPLE OF EQUAL TREATMENT .

23 IT SHOULD BE NOTED THAT UNDER THE PROCEDURAL ARRANGEMENTS THE COMMITTEE IS AT LIBERTY TO DECIDE THE FORM OF THE INTERVIEW TO BE HELD WITH THE CANDIDATES WITH DEGREES OR DIPLOMAS . IT DID NOT EXCEED THAT DISCRETION IN DECIDING TO CONDUCT THE INTERVIEW ON THE BASIS OF A TALK PRESENTED BY THE CANDIDATES ON A TECHNICAL SUBJECT RELATING TO THEIR AREA OF SPECIAL KNOWLEDGE AND FOLLOWED BY QUESTIONS ASKED BY THE MEMBERS OF THE COMMITTEE . THERE IS NOTHING IN THE CASE-FILE TO INDICATE THAT THE CONDITIONS FOR PREPARING THE TALKS OR THE CHOICE OF SUBJECTS MAY HAVE PUT CANDIDATES WITH DEGREES OR DIPLOMAS AT A DISADVANTAGE IN RELATION TO CANDIDATES WITHOUT DEGREES OR DIPLOMAS, HAVING REGARD TO THE SCIENTIFIC AND TECHNICAL KNOWLEDGE WHICH THE CANDIDATES WERE ASSUMED TO HAVE BY VIRTUE OF THEIR POSSESSION OF A DEGREE OR A DIPLOMA .

24 THE FOURTH SUBMISSION MUST THEREFORE ALSO BE DISMISSED .

25 IT IS CLEAR FROM THE CONSIDERATIONS SET OUT ABOVE THAT THE APPLICANTS' CLAIMS FOR ANNULMENT MUST BE DISMISSED .

26 SO TOO MUST THE CLAIMS FOR AN ORDER REQUIRING THE COMMISSION TO ENTER THE APPLICANTS ON THE LIST OF SUITABLE CANDIDATES OR TO RESUBMIT THEIR CASES TO THE AD HOC COMMITTEE WITHOUT ITS BEING NECESSARY TO RULE ON THE ADMISSIBILITY OF THOSE CLAIMS .

Decision on costs

COSTS

27 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY MUST BE ORDERED TO PAY THE COSTS . HOWEVER, UNDER ARTICLE 70 OF THOSE RULES, THE COSTS INCURRED BY INSTITUTIONS IN CASES BROUGHT BY OFFICIALS OF THE COMMUNITIES ARE TO BE BORNE BY THE INSTITUTIONS .

Operative part

ON THOSE GROUNDS,

THE COURT ( THIRD CHAMBER )

HEREBY :

( 1 ) DISMISSES THE APPLICATIONS;

( 2 ) ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .