Opinion of Mr Advocate General Mischo delivered on 26 September 1989. - Annibale Culin v Commission of the European Communities. - Officials - Annulment of appointment. - Case C-343/87.



European Court reports 1990 Page I-00225



Opinion of the Advocate-General

++++

Mr President,

Members of the Court,

1 . In order to fill the post of Head of a division of the Directorate-General for Competition ( hereinafter : "DG IV "), the Commission - the defendant - published a vacancy notice on 26 September 1986, as a result of which 18 officials presented themselves as candidates for the post; amongst them was the applicant, Mr Culin, an official in DG IV who had been acting Head of Division from 12 November 1985 to 11 November 1986 . When the Commission decided on 24 November 1986 to fill the vacancy by appointing Mr Argyris, who was appointed Head of another division within DG IV with effect from 4 February 1987, Mr Culin lodged a complaint against the decision rejecting his application for the post and against the decision appointing Mr Argyris . The Commission expressly rejected the complaint, claiming that the applicant' s term of office as acting Head had not been satisfactory .

2 . Following that rejection Mr Culin brought the present action for the annulment of the decision expressly rejecting his complaint, the decision appointing Mr Argyris to the contested post and the decision rejecting his candidature for the post .

3 . It is, however, clear from the case-law of the Court - and in particular from the Vainker judgment ( 1 ) - that the action brought by an official against the rejection of his complaint is inseparable from the action against the act allegedly affecting him adversely . The present case concerns the appointment of Mr Argyris to the post - a decision which implies the rejection of the applicant' s candidature . I can therefore confine my views to the claim for annulment of the appointment which was made .

Infringement of Article 45 of the Staff Regulations

4 . The applicant first pleads an infringement of Article 45, under which "promotion shall be exclusively by selection from among officials who have completed a minimum period in their grade, after consideration of the comparative merits of the officials eligible for promotion and of the reports on them ". According to Mr Culin, consideration of the candidates' comparative merits in this case was vitiated by manifest error . In its reply to the applicant' s complaint, the Commission states that :

"The appointing authority took account ..., in particular, of the functions as acting Head taken up by (( Mr Culin )) from 12 November 1985, and it was this aspect which was not considered satisfactory . Consequently, the Commission decided, on the expiry of his term as acting Head, to fill the post by appointing another official ... Having thus answered the main argument, the Commission takes the view that the other arguments put forward by (( Mr Culin )) concerning the appointment of Mr Argyris become quite irrelevant ".

5 . The applicant was thus officially notified by the appointing authority that it had eliminated his candidature on account of the allegedly unsatisfactory manner in which he had managed the division .

6 . Nevertheless, after the commencement of these proceedings the Commission adopted an addendum to the reply to Mr Culin' s complaint which states that, while he was acting Head, he

"showed all the diligence and ability needed for the temporary performance of the duties of Head of Division, to the complete satisfaction of his superiors ".

The Commission went on to state that the reason why his candidature was unsuccessful was simply that it did not include

"all the requisite qualifications to warrant his inclusion amongst the most suitable candidates for assuming the responsibilities of Head of a division of the size of Division IV/B-2",

but that the fact of his not having been appointed

"did not in any way detract from the excellent assessments which his work has always attracted ".

7 . In the course of the proceedings before the Court the Commission submitted that there had been a simple misunderstanding, which had not arisen until long after the decision and could not affect its validity .

8 . I cannot agree with that view, however . When replying to a complaint, the Commission is supposed to set out the true reasons underlying the act in dispute . What is at issue in this case is the whole function of the pre-litigation procedure in the context of a dispute between an official and the institution employing him . Accordingly, the Court has repeatedly emphasized the importance of that procedure, and especially the need for the administration to state the reasons for a decision rejecting a complaint, even in the context of a contested promotion . ( 2 )

9 . The importance of doing so is all the greater since the administration is, by contrast, under no obligation to give its reasons for rejecting a candidature . In a dispute regarding promotion, the complaint and the reply given to it thus afford the only pre-litigation opportunity enabling the official to ascertain whether his rights have been observed and the administration to demonstrate that it has acted in conformity with the Staff Regulations .

10 . It is therefore clear that, if it were accepted that the reasons given in reply to the complaint did not need to coincide with the reasons for the act challenged by that complaint, the entire pre-litigation procedure would become virtually meaningless, since it would no longer enable the official to discover the reasons for the act which he was contesting .

11 . Every official must therefore be entitled to proceed on the presumption that the reasons given in reply to his complaint are indeed those on which the act adversely affecting him are based .

12 . The question arises whether that presumption should be considered irrebuttable . That would undoubtedly be going too far . It is, however, my opinion that an institution should not be permitted to overturn the presumption, especially after an action has been commenced, unless it provides convincing evidence to show that the contested decision was indeed based on a different set of considerations from those cited in reply to the complaint . Such would, for example, have been the case here if the Commission had been able to point to an extract from the Minutes of the Advisory Committee on Appointments to Grades A 2 and A 3 or the Minutes of one of its own meetings disclosing that, despite the wholly satisfactory manner in which Mr Culin had performed temporarily the duties of Head of Division, the Commission had none the less reached the conclusion that some other candidate was better suited to taking over those duties on a permanent basis .

13 . In this case the Commission contends that this is precisely what occurred ( see p . 2 of the addendum to the reply given to the complaint ), but cannot produce any evidence in support .

14 . It included among the documents before the Court a memorandum of 20 or 28 October 1986 ( the date is illegible ), sent by the Director-General for Competition to the Director-General for Personnel and Administration, via the Member of the Commission responsible for competition matters . The memorandum contains the criteria on the basis of which the Director-General considered the 18 applications for the post and the staff reports on the officials in question . It records that five candidatures appear to have been submitted by candidates having a thorough knowledge of competition policy and suitable experience for the duties involved; further, each of the candidates shows the necessary ability for managing a division . Five persons are then named, but Mr Culin is not one of them .

15 . The Director-General for Competition then sets out the criteria on the basis of which he proposes to choose from among those five candidates, and concludes by proposing the appointment of Mr Argyris and by asking the Director-General for Personnel and Administration to make the necessary arrangements to obtain the Commission' s consent to the proposal .

16 . Neither in that memorandum nor in the Minutes of the meeting of 27 October 1989 of the Advisory Committee on Appointments to Grades A 2 and A 3, nor in the opinion given by the Committee, is any mention made of Mr Culin' s term as acting Head of Division . Those documents therefore do not demonstrate that no account was taken of Mr Culin' s term as acting Head, in any manner unfavourable to him . On the contrary, the fact that Mr Culin' s name does not appear even on the list of the five officials whom the Advisory Committee considered suitable for performing the duties of Head of Division - a list identical to the one contained in the memorandum of the Director-General for Competition - tends to suggest that a negative assessment was given of his term as acting Head in the course of the meeting of that Committee .

17 . The Commission has therefore not managed to rebut the presumption in question by means of any tangible evidence . Accordingly, there is no alternative but to assume that the appointing authority' s decision was indeed based on the spurious reason given in the reply to the complaint .

18 . However, if the candidature of one of the officials has been eliminated on the basis of a manifestly mistaken assessment of his merits then the entire procedure is vitiated by it, and the appointment which followed it must be annulled . It cannot validly be objected that Mr Culin had no interest in challenging the appointment of Mr Argyris because he could not have been sure of being appointed in his stead . The present situation is not analogous to the Morello case, ( 3 ) cited by the Commission, in which it could be clearly established that, in the light of his previous experience, the official was not qualified to carry out the duties for which he had applied . At no time was it contended that Mr Culin did not fulfil the conditions of the vacancy notice .

19 . As every official has a legitimate interest in ensuring that the promotion procedures in which he participates are conducted lawfully, the applicant' s first submission must be upheld .

Failure to comply with the terms of the vacancy notice

20 . In the second place, the applicant asserts that the Commission did not comply with the terms of the vacancy notice for the post . He claims that the appointing authority appointed a candidate who did not fulfil all the conditions set out in the vacancy notice, point 3 of which requires candidates to be familiar with one or more of the following sectors : textiles, clothing, leather, or other manufacturing industries . According to the applicant, that condition was clear, not open to interpretation, and not satisfied by the candidate chosen by the appointing authority, since he manifestly did not have the relevant knowledge, and indeed could not have acquired it in the course of his career .

21 . In that connection the defendant has basically recapitulated during the written and oral procedure the assessments contained in the abovementioned memorandum of its Director-General for Competition, dated 20 or 28 October 1986 . On page 2 of the memorandum is to be found the following statement :

"Attention should be drawn to the diversity of the industrial sectors falling within the scope of the division, from which it may be concluded that it is not any specific knowledge but rather the individual' s open-mindedness and organizing ability which must be regarded as the decisive criteria in the choice of candidate to fill the post in question ."

Further on, the memorandum recites that Mr Argyris

"has an extensive knowledge and experience not only in matters of State aid but also in industrial matters generally ".

That passage, too, must clearly be interpreted as meaning that a more specialized knowledge of the sectors listed in the vacancy notice is not an essential condition placed on admission to the vacant post .

22 . It is my opinion that, by adopting that approach, the Commission has gone too far . Of course, the institutions are entitled to appoint as Head of Division a person having no very specialized knowledge of a particular sector of the economy but having an adequate knowledge of a more widely drawn field . They are also entitled to use as the decisive criterion the candidates' open-mindedness, organizing flair or leadership qualities . In that event, however, they must draft the vacancy notice accordingly and may not require a knowledge of specified sectors . It should be noted, incidentally, that knowledge of that kind may actually be important for the purpose of detecting the presence of restrictive practices or, even more importantly, the abuse of a dominant position, because the degree of competition may vary from one sector of the economy to the next . There was therefore probably good reason for requiring, in the vacancy notice, a knowledge of certain sectors .

23 . It is, moreover, clear from the case-law of the Court that :

"though 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 contained in the notice of vacancy ". ( 4 )

24 . As was noted above, however, the "limits" in this case are narrower than the Commission appears to think, since, besides the "wide-ranging experience relevant to the duties involved" in point 5, the vacancy notice includes point 3, cited above . The Commission has not demonstrated that the candidate chosen has a specialized knowledge of one or more of the sectors mentioned in the notice .

25 . My conclusion therefore is that the appointing authority has not complied with the conditions laid down in Vacancy Notice COM/1607/86 and that the decision appointing Mr Argyris to the contested post must be annulled on that ground as well .

Infringement of the third paragraph of Article 27 of the Staff Regulations

26 . The applicant further pleads an infringement of the third paragraph of Article 27 of the Staff Regulations, under which "No posts shall be reserved for nationals of any specific Member State ". He maintains that it was "common knowledge" in DG IV that the post in question was reserved for an official of British nationality . He offers to prove the point through the testimony of an official prepared to recount a conversation with a member of a Commissioner' s cabinet, which would show that a vacant post - not the post at issue in this case - had been reserved for an official on account of his nationality, which proves that posts of Head of Division in DG IV are, as a rule, filled on that basis .

27 . However, it is self-evident that "grape-vine" rumours and a statement made by the member of a cabinet a number of years previously about a different post cannot serve as proof that the post in dispute was in fact reserved for a British national . That submission cannot therefore be accepted .

Misuse of powers

28 . The applicant' s last submission concerns the misuse of powers . This misuse of powers is, he claims, proved by the fact that the candidate chosen, Mr Argyris, occupied the post only very briefly - indeed, not at all - and was rapidly transferred to the head of another division, being replaced in the contested post by another official who had not submitted his candidature in reply to Vacancy Notice COM/1607/86 . The applicant asserts that the whole procedure was thus designed solely to "facilitate and safeguard the access of a specific candidate to a post declared vacant, whereas that candidate was in fact intended to occupy a different post altogether ". What is in evidence is therefore, in effect, an operation whose only purpose was to enable Mr Argyris to move to Grade A 3, rather than actually to use his appointment to fill the vacancy . In support of that claim the applicant cites the fact that the new table of posts for the Commission, showing the transfer of Mr Argyris to the post of Head of the Transport and Tourism Division, was adopted virtually at the same time as Mr Argyris was due to take up his duties in the contested post .

29 . It must be admitted that Mr Culin' s explanation is an attractive one . Nevertheless, there is a lack of cogent evidence . It may be that, at the time of his appointment, Mr Argyris was indeed intended to occupy the post in question but that the appointing authority realized shortly afterwards that it could make better use of his services as Head of another division . I therefore propose that the Court should not accept the submission alleging a misuse of powers .

Claim for compensation

30 . The applicant claims that the Court should order the defendant to pay him the token sum of one franc as compensation for the non-material damage which he has suffered as a result of the unfavourable and mistaken assessment in the reply to his complaint .

31 . It must be stressed at this point that the mistaken assessment is undeniably a service-related fault and that, during its preparation by the Directorate-General for Personnel and Administration and after its distribution for approval to the cabinets of all the Members of the Commission, the contentious text received considerable publicity . Although the memorandum withdrawing the assessment probably received virtually the same publicity, the fact remains that the addendum, dated 24 May 1988, was not adopted until six and a half months after Mr Culin had brought the action ( 5 November 1987 ) and almost 10 months after the reply to the complaint had been notified to him ( 3 August 1987 ). In the meantime, the unfavourable appraisal of Mr Culin' s abilities in managing an administrative unit had been able to spread far beyond the circle of those who had been able to read the text at issue .

32 . In those circumstances, the withdrawal of the mistaken comment does not, in itself, sufficiently redress the non-material damage incurred by the applicant, and he should be awarded the token sum of one franc .

33 . The question arises, however, whether the non-material damage will have been sufficiently redressed if the Court decides to annul the appointment of Mr Argyris . In its judgment of 7 October 1985 in Case 128/84 Van der Stijl v Commission (( 1985 )) ECR 3281, at p . 3296, the Court held that the annulment of the contested appointment decision constituted appropriate reparation for any non-material damage which the applicant might have suffered . On the other hand, that decision was annulled because the Commission had wrongly had recourse to the special procedure under Article 29(2 ) of the Staff Regulations . No offensive remark about the applicant' s abilities had been made in that case .

34 . In view of that essential difference, I consider that Mr Culin is still entitled to the token sum of one franc if the Court accepts my proposal that it should annul the appointment of Mr Argyris .

35 . As regards the material damage for which the applicant seeks compensation, on the other hand, it must be recalled that, although an official may be eligible for promotion, he is not entitled to it . According to Article 45 of the Staff Regulations, promotion is "by selection ". The appointing authority could thus quite legitimately have preferred some candidate other than Mr Culin, even if it had been aware of his sound career as acting Head . In any event, therefore, Mr Culin could not have been certain of the appointment .

36 . It follows that the applicant has not suffered a "still subsisting injury" within the meaning of successive judgments of the Court . ( 5 )

37 . In conclusion, I propose that the Court should uphold the first two submissions made by Mr Culin, and should accordingly annul the decision of 24 November 1986 appointing Mr Argyris to the post of Head of Division IV/B-2, award the applicant the franc which he has claimed as compensation for non-material damage, and order the defendant to pay the costs .

(*) Original language : French .

( 1 ) Judgment of 17 January 1989 in Case 293/87 Vainker v Parliament (( 1989 )) ECR 23, paragraphs 7 to 9 .

( 2 ) On this subject, see the judgment of 30 October 1974 in Case 188/73 Grassi v Council (( 1974 )) ECR 1099 . The Court has even held that, in the case of an implied decision rejecting a complaint, the statement of reasons is necessarily deemed to be the same as the statement of reasons or the absence of reasons for the decision which was the subject of the unanswered complaint ( see judgments of 27 October 1977 in Case 121/76 Moli v Commission (( 1977 )) ECR 1971, at p . 1978, and of 13 April 1978 in Case 75/77 Mollet v Commission (( 1978 )) ECR 897, at p . 906 ).

( 3 ) Judgment of 29 September 1976 in Case 9/76 Morello v Commission (( 1976 )) ECR 1415 .

( 4 ) See judgment of 30 October 1974 Grassi v Council, cited above, at p . 1111 .

( 5 ) See judgments of 9 July 1970 in Case 23/69 Fiehn v Commission (( 1970 )) ECR 547 and of 13 July 1972 in Case 79/71 Heinemann v Commission (( 1972 )) ECR 579, at p . 589 .