Judgment of the Court (Second Chamber) of 18 March 1993. - European Parliament v Erik Dan Frederiksen. - Officials - Annulment of a promotion decision - Appeal. - Case C-35/92 P.



European Court reports 1993 Page I-00991



Summary

Parties

Grounds

Decision on costs

Operative part



Keywords

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1. Officials ° Vacancy notice ° Filling of post by promotion ° Consideration of the comparative merits of candidates ° Power of appraisal of the administration ° Limits ° Observance of the conditions laid down in the vacancy notice ° Review by the Court ° Scope ° Vacancy notice laying down technical conditions extending beyond the knowledge of the Court ° Appointment of an expert ° Whether permissible

2. Appeal ° Pleas ° Plea directed against a ground of the judgment not incorporated in the operative part ° Plea ineffective

3. Appeal ° Subject-matter of the dispute ° Counterclaim for compensation for non-material damage suffered as a result of the appeal ° Inadmissible

(Rules of Procedure of the Court of Justice, Art. 116)

Summary

1. Although the appointing authority has wide discretion in comparing the candidates' merits and reports, especially with a view to filling a post, it must exercise it within the self-imposed limits set by the vacancy notice. Accordingly, in exercising the discretion available to it regarding an appointment or promotion, it must examine carefully and impartially all the relevant parts of each application and meticulously observe the requirements laid down in the vacancy notice, thus being required to reject any candidate who does not meet those requirements.

It is incumbent on the Court of First Instance, in exercising its power of judicial review, to verify whether the candidate chosen by the appointing authority to occupy the vacant post actually satisfied those conditions. If the vacancy notice includes conditions of such a technical nature that the Court does not have the necessary knowledge to determine their scope and content, the Court is empowered to appoint an expert in order to establish, objectively, the precise scope of those requirements. The power to appoint an expert enables it, in the discharge of its duties, to undertake a detailed examination of the facts of the dispute on which it must adjudicate. If that possibility were not available, the appointing authority could escape any judicial review whenever its power of appraisal was exercised in a technical field in which the Court did not have the appropriate knowledge to determine whether the appointing authority had exceeded the bounds of the legal framework imposed on it.

2. Since one of the grounds relied on by the Court of First Instance is sufficient to justify the operative part of the judgment, such defects as might affect another ground of the judgment in any event have no bearing on the operative part and a plea based on them is ineffective and must be rejected.

3. By virtue of Article 116 of the Rules of Procedure of the Court of Justice, according to which a response in an appeal may not change the subject-matter of the dispute before the Court of First Instance, a counterclaim by a respondent for compensation for non-material damage allegedly suffered as a result of the appeal is inadmissible.

Parties

In Case C-35/92 P,

European Parliament, represented by J. Campinos, jurisconsult, assisted by D. Petersheim, of the Parliament' s Legal Service, acting as Agents, with an address for service in Luxembourg at the Secretariat General of the European Parliament, Kirchberg,

appellant,

APPEAL against the judgment of the Court of First Instance of the European Communities (Fourth Chamber) in Case T-169/89 of 11 December 1991 between Erik Dan Frederiksen and the European Parliament, seeking to have that judgment set aside and to have the application made by Mr Frederiksen at first instance dismissed,

the other party to the proceedings being:

Erik Dan Frederiksen, an official of the European Parliament, represented by G. Vandersanden, of the Brussels Bar, with an address for service in Luxembourg at the chambers of Alex Schmitt, 62 Avenue Guillaume, who contends that the appeal should be dismissed and that the European Parliament should be ordered to redress the non-material damage suffered by him,

THE COURT (Second Chamber),

composed of: J.L. Murray, President of the Chamber, G.F. Mancini and F.A. Schockweiler, Judges,

Advocate General: W. Van Gerven,

Registrar: J.-G. Giraud,

having regard to the appeal and reply of the European Parliament and the response and rejoinder of Mr Frederiksen,

having regard to the Report of the Judge-Rapporteur, and after hearing the views of the Advocate General and of the parties, pursuant to Article 120 of the Rules of Procedure,

after hearing the Opinion of the Advocate General at the sitting on 13 January 1991,

gives the following

Judgment

Grounds

1 By application lodged at the Registry of the Court of Justice on 12 February 1992, the European Parliament (hereinafter "the Parliament") brought an appeal pursuant to Article 49 of the Protocol on the Statute of the Court of Justice of the EEC and the corresponding provisions of the Protocols on the Statute of the Court of Justice of the ECSC and of the EAEC against the judgment of the Court of First Instance of 11 December 1991 in Case T-169/89 Frederiksen v Parliament [1991] ECR II-1403, in so far as it annulled the decision of the President of the Parliament of 3 July 1989 promoting Mrs X to the post of Language Adviser in the Danish Translation Division, Directorate General VII, Translation and General Services (hereinafter "DG VII"), of the Parliament.

2 According to the contested judgment, the facts of the case are as follows.

On 9 January 1989, the Parliament published Vacancy Notice No 5809 for a post of Language Adviser in Grade LA 3 in the Danish Translation Division. The qualifications and knowledge required in that vacancy notice included "knowledge of data-processing methods in management applications".

Mr Erik Dan Frederiksen, Mrs X and Mr Y, all officials in the Danish Translation Division of the Parliament, applied for that post following publication of the notice.

By memorandum of 2 February 1989, addressed to the Director General of DG VII, the Director of Translation and Terminology proposed that Mr Frederiksen be appointed to the post of Language Adviser. The proposal was based, inter alia, on his competence and experience in data processing.

By memorandum of 10 March 1989, the Director General of DG VII submitted a proposal to the Director General of Administration, Personnel and Finance that Mrs X should be promoted to the post in question, "even though that candidate finds it necessary, for the time being, to work half-time for family reasons". That proposal prompted a number of protests, inter alia from the Director of Translation and Terminology and the Head of the Danish Translation Division, on the ground, in particular, that Mrs X had no knowledge of data-processing methods in management applications. The Director General of DG VII nevertheless maintained her initial proposal in the memorandum which she sent to the Secretary-General of the Parliament on 7 June 1989.

On 3 July 1989 the President of the Parliament, as appointing authority, promoted Mrs X to the post of Language Adviser in Grade LA 3 in the Danish Translation Division with effect from 1 June 1989.

On 12 July 1989 Mr Frederiksen lodged a complaint against the decision appointing Mrs X. By letter of 29 November 1989 the President of the Parliament informed Mr Frederiksen that his complaint had been rejected.

Following her appointment, Mrs X applied for and obtained on 4 December 1989 permission to work half-time until 30 September 1990.

3 By application lodged at the Registry of the Court of First Instance on 27 December 1989, Mr Frederiksen brought an action for annulment of the decision by virtue of which Mrs X was promoted to the post of Language Adviser in the Danish Translation Division.

4 In the judgment now under appeal, the Court of First Instance annulled the contested decision of the President of the Parliament on the ground that in the circumstances of the case the appointing authority had wrongly considered that Mrs X fulfilled one of the requirements of the vacancy notice, namely "knowledge of data-processing methods in management applications" and that the appointing authority' s assessment was also vitiated by a manifest error relating both to its verification that Mrs X fulfilled the conditions laid down in the vacancy notice and to its comparison of the candidates' respective merits.

5 In support of its appeal, the Parliament puts forward two pleas in law alleging breach by the Court of First Instance of principles expounded in the case-law of the Court of Justice according to which, first, the latitude available to the appointing authority regarding promotion can be called in question by the Community judicature only where a manifest error has been committed and, secondly, procedural irregularities affecting the comparison of the merits of candidates can bring about annulment of a promotion decision only if they had a decisive impact on that decision and were not rectified at a subsequent stage of the procedure.

6 Mr Frederiksen contends that the appeal should be dismissed and that the Parliament should be ordered to pay him token damages of one franc to redress the non-material damage suffered by him as a result of the appeal.

7 By order of 3 April 1993, the President of the Court of Justice dismissed an application by the Parliament for suspension of the operation of the contested judgment and reserved the costs.

8 Reference is made to the Report of the Judge-Rapporteur for a fuller account of the pleas in law and arguments of the parties, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.

The claim for annulment of the contested judgment

The first plea in law

9 The Parliament' s first plea in law comprises two arguments, which it is appropriate to examine successively.

10 The Parliament' s first argument concerns paragraphs 67, 68 and 71 to 75 of the contested judgment, in which the Court of First Instance considered whether Mrs X satisfied one of the conditions laid down in the vacancy notice, namely the condition concerning "knowledge of data-processing methods in management applications".

11 In that connection, the Court of First Instance states in its judgment that the vacancy notice constitutes the legal framework imposed by the appointing authority on itself. The Court accordingly considered that it was under an obligation to establish whether the successful candidate' s qualifications were objectively in conformity with the requirements of the vacancy notice. The Court of First Instance found, first, that the requirement of knowledge of data-processing methods in management applications reflected a need, emphasized by the administration itself, to use new technologies in order to deal with the problems of the Parliament translation directorate. It also found, on the basis of an expert' s report which it had commissioned, that Mrs X did not have the knowledge of data processing required by the vacancy notice, as that term should be objectively interpreted. It concluded that, in considering that Mrs X fulfilled those conditions, the appointing authority exceeded the bounds which it had imposed on itself in the vacancy notice. In view of the wording of the conditions laid down in the vacancy notice, the appointing authority had no option but to reject Mrs X' s application.

12 With respect to that part of the judgment of the Court of First Instance, the Parliament claims that in matters of promotion judicial review must, according to the case-law, be limited to considering whether the appointing authority committed a manifest error of assessment. In this case, the alleged error committed by the appointing authority in assessing Mrs X' s knowledge of data processing cannot, it maintains, be described as manifest since the Court had to appoint an expert to verify whether the skills of the candidate in question corresponded to the qualifications required by the vacancy notice. In considering whether Mrs X' s knowledge in fact corresponded with the wording of the vacancy notice, the Court of First Instance, in its view, contravened the case-law by substituting its own assessment for that of the appointing authority.

13 In considering the merits of that argument, it must be borne in mind that it is settled law (see, for example, the judgments in Case 188/73 Grassi v Council [1974] ECR 1099, paragraph 38, and Case C-343/87 Culin v Commission [1990] ECR I-225, paragraph 19) that although the appointing authority has wide discretion in comparing the candidates' merits and reports, especially with a view to the post to be filled, it must exercise it within the self-imposed limits set by the vacancy notice.

14 The purpose of the vacancy notice is to give those interested the most accurate information possible about the conditions of eligibility for the post to enable them to judge for themselves whether they should apply for it (Grassi, paragraph 40).

15 Thus, the latitude available to the appointing authority regarding appointment or promotion presupposes careful examination of the file and meticulous regard to the requirements laid down in the vacancy notice, so that the appointing authority is required to reject any candidate who does not meet those requirements (Grassi). Moreover, in its judgment in Case C-269/90 Technische Universitaet Muenchen [1991] ECR I-5469, paragraph 14, the Court observed, in general terms, that the power of appraisal available to a Community authority is tempered by the obligation to examine carefully and impartially all the relevant aspects of the individual case.

16 In those circumstances, the Court of First Instance was right to hold in the contested judgment that the vacancy notice constituted the legal framework which the appointing authority imposed on itself and must, therefore, observe meticulously.

17 With a view to establishing whether or not the appointing authority exceeded the bounds of that legal framework, it was incumbent on the Court of First Instance, first, to establish which conditions were laid down in the vacancy notice and then to verify whether the candidate chosen by the appointing authority to occupy the vacant post actually satisfied those conditions.

18 If it was the case that the vacancy notice included conditions of such a technical nature that the Court did not have the necessary knowledge to determine their scope and content, the Court was empowered to appoint an expert in order to establish, objectively, the precise scope of those requirements.

19 The power to appoint an expert is one of the powers available to the Court in order to facilitate, in the discharge of its duties, a detailed examination of the facts of the disputes on which it must adjudicate. If that possibility were not available, the appointing authority could escape any judicial review whenever its power of appraisal was exercised in a technical field in which the Court did not have the appropriate knowledge to determine whether the appointing authority had exceeded the bounds of the legal framework imposed by the vacancy notice.

20 It follows from those considerations that the Court of First Instance did not contravene Community law by seeking the opinion of an expert in order to determine the scope of the condition in the vacancy notice concerning knowledge of data processing in management applications and by holding, in the light of that requirement, as it should be interpreted objectively, that in this case the appointing authority had clearly exceeded the bounds of its power of appraisal by promoting Mrs X, whose knowledge did not meet the conditions laid down in the vacancy notice.

21 In those circumstances, the first argument put forward by the Parliament in support of its first plea in law must be rejected.

22 The second argument put forward by the Parliament in support of that plea concerns paragraph 76 of the contested judgment.

23 In that paragraph, the Court of First Instance found that, in any event, the Parliament had not produced evidence that the appointing authority had actually assessed, with the requisite objectivity and exactitude, the extent to which Mrs X' s knowledge met the requirements of the vacancy notice. The Court held that the appointing authority did not have sufficient information to enable it to make such an assessment, that the assessments made by the authorities at a lower level in the course of the promotion procedure were based on an error, and that the Parliament' s Legal Service relied on the same erroneous information in the procedure which led to rejection of the complaint lodged by Mr Frederiksen.

24 The Parliament criticizes the Court of First Instance for referring, in paragraph 76 of its judgment, to a material error committed by the Director General of DG VII in assuming that the data-processing requirements in this case were the same as those previously included in the competition notices for the posts of Language Adviser in the Parliament' s Spanish and Portuguese translation divisions. That error, it maintains, could have had no effect either on the promotion decision, since it occurred in a memorandum drawn up by the Director General of DG VII after the adoption of that decision, or on the rejection of Mr Frederiksen' s complaint, since the opinion of the Parliament' s Legal Service noted the error in question and relied on an earlier document not containing that error.

25 Even if it is assumed that the appellant' s complaint does not call in question the assessment of the facts of the case by the Court of First Instance, which is not open to challenge in an appeal, but can be construed as alleging an error of law committed by the Court of First Instance in the grounds of its judgment, it need merely be observed that it is apparent from its very wording that paragraph 76 is superfluous since, in paragraph 75 of the judgment, the Court concluded that the appointing authority had unlawfully promoted Mrs X, as she did not meet one of the conditions laid down in the vacancy notice.

26 Since it is apparent from paragraphs 13 to 20 of this judgment that the Court of First Instance did not contravene Community law by reaching that conclusion, the Parliament' s second argument concerning a subsequent point relating to the same finding, which is merely intended to corroborate a conclusion justified in law by the preceding reasoning, cannot be upheld.

27 In those circumstances, the first plea in law put forward by the Parliament must be rejected in its entirety.

The second plea in law

28 The Parliament' s second plea in law concerns paragraphs 77 to 79 of the contested judgment.

29 In that part of its judgment, the Court of First Instance considered in detail the manner in which the appointing authority in this case undertook its comparative examination of the merits of the candidates provided for in Article 45 of the Staff Regulations of the European Communities. It held that the only comparative examination brought to the notice of the appointing authority by way of guidance as to the proper appointment decision to be taken was that contained in the memorandum of 10 March 1989 from the Director General of DG VII. According to the Court of First Instance, that memorandum was incomplete and vitiated by manifest errors of fact and law. In the first place, it did not mention the data-processing knowledge or experience of the three candidates. It also contained an error in the comparison of the staff reports, in that Mrs X and Mr Frederiksen, contrary to what was stated in that memorandum, had the same number of "excellent" assessments. Finally, it referred, as a consideration of at least the same importance as the other criteria for the comparative examination of merits, to the concern to ensure equality of opportunity for men and women, from which the Court of First Instance inferred that the appointing authority' s comparative examination of the candidates' merits did not display the requisite objectivity and exactitude.

30 In support of its plea, the Parliament contends that the Court of First Instance contravened Community law by holding, with respect to the comparative examination of the merits of the candidates, that the contested promotion decision was vitiated by several procedural irregularities, whereas the comparison of merits was carried out by the administration carefully and objectively and, in any event, the errors committed were corrected in the course of the procedure dealing with the complaint, on completion of which the appointing authority fully confirmed its initial decision.

31 In that regard, reference need merely be made to the finding in paragraph 20 of this judgment that the Court of First Instance was right to hold that the appointing authority had clearly exceeded the bounds of its power of appraisal by promoting Mrs X, whose knowledge did not meet the conditions laid down in the vacancy notice. That is in itself sufficient reason to justify the annulment on legal grounds of the decision promoting Mrs X. In those circumstances, such defects as might vitiate the other finding of the Court of First Instance as to the comparison of the merits of candidates do not in any event affect the operative part of the contested judgment. The Parliament' s plea directed against the latter finding is therefore ineffective and must be rejected.

32 It follows from all the foregoing that the Parliament' s appeal is unfounded and must be dismissed.

The counterclaim for compensation for non-material damage

33 In his pleadings, Mr Frederiksen based his claim for payment of token damages of one franc as compensation for non-material damage suffered on the ground that the appeal brought by the Parliament was dilatory and vexatious.

34 It must be borne in mind that, according to Article 116 of the Rules of Procedure,

"1. A response may seek:

° to dismiss, in whole or in part, the appeal or to set aside, in whole or in part, the decision of the Court of First Instance;

° the same form of order, in whole or in part, as that sought at first instance and shall not seek a different form of order.

2. The subject-matter of the proceedings before the Court of First Instance may not be changed in the response."

35 It follows that, in an appeal, the other party to the proceedings is not entitled to seek compensation for damage allegedly suffered by him as a result of the appeal lodged by the applicant.

36 In those circumstances, Mr Frederiksen' s contention that the Parliament should be ordered to redress the damage allegedly suffered by him as a result of the appeal must be declared inadmissible.

Decision on costs

Costs

37 Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs. Since the Parliament has been unsuccessful, it must be ordered to pay the costs, including those of the application for interim measures.

Operative part

On those grounds,

THE COURT (Second Chamber)

hereby:

1. Dismisses the appeal as unfounded;

2. Dismisses the counterclaim as inadmissible;

3. Orders the European Parliament to pay the costs of these proceedings, including those of the application for interim measures.