JUDGMENT OF THE COURT OF FIRST INSTANCE (Fourth Chamber)

9 February 1994

Case T-109/92

Isabel Lacruz Bassols

v

Court of Justice of the European Communities

‛Officials — Notice of vacancy of a post — Discrimination on grounds of language — Promotion — Consideration of comparative merits — Power of assessment — Power to organize services’

Full text In French II 105

Application for:

— the annulment of the decisions not to accept the applicant's applications for the posts advertised in Notices of Vacancies No CJ/116/91, No CJ/117/91 and No CJ/118/91;

— the annulment of the decisions of appointment taken after the publication of those notices of vacancy and the annulment, to the extent necessary, of the decisions rejecting the complaint submitted by the applicant.

Decision:

Application dismissed.

Abstract of the Judgment

Following the publication of three notices of vacancy relating to a post of principal German-language interpreter requiring a perfect command of German, a post of principal Italian-language interpreter requiring a perfect command of Italian and a post of principal interpreter to be involved in particular in the organizational planning of the interpretation division, the applicant, an official in Grade LA 6 since 16 April 1989, submitted applications for each of the posts in question.

The institution informed the applicant that none of her applications had been accepted. Following rejection of her complaint, the applicant brought the present action.

The claims seeking the annulment of the decisions taken following publication of Notice of Vacancy No CJ 118/91

The pleas in law alleging infringement of Article 45(1) of the Staff Regulations and manifest error of assessment

(a) Infringement of Article 45(1) of the Staff Regulations

The Court rejects this plea after finding that the appointing authority based itself, when choosing the official promoted to the post in question, on a scrupulous comparative examination of the essential merits and of the periodic reports of the three officials who had applied for the post (paragraph 38).

(b) Manifest error of assessment

In evaluating the interests of the service and the respective merits of candidates for a vacant post in the context of a promotion procedure, the appointing authority has a wide discretion. Review by the Community judicature must for that reason be limited to consideration of the question whether, having regard to the factors which have influenced the administration in making its assessment, the latter has not used its power in a manifestly incorrect way (paragraph 39).

See:280/80 D'Aloya v Council [1981] ECR 2887, para. 10; 233/85 Bonino v Commission[1987] ECR 739, para. 5; T-78/92 Perakis v Commission [1993] ECR, para. 45

The Court finds that, since no manifest error of assessment has been proved, this plea must also be rejected (paragraphs 40 to 46).

Tiie plea in law alleging misuse of powers

(a) Admissibility of the plea

A decision may amount to a misuse of powers only if it appears, on the basis of objective, relevant and consistent factors, to have been taken for purposes other than those of the rules in question (paragraph 52).

See: 69/83 Lux v Court of Auditors [1984] ECR 2447, para. 30; 135/87 Vlachou v Court of Auditors [1988] ECR 2901, para. 27; T-38/89 Hochbaum v Commission [1990] ECR II-43, para. 22

It must be possible for the official in question to follow the promotion procedure and to argue at its conclusion, in support of an action brought against the final decisions taken, that a misuse of powers has vitiated all the stages in the procedure, including the drafting of the notice of vacancy for the post, even if die latter has not been the subject of a complaint submitted within the period prescribed in the Staff Regulations (paragraph 53).

The Court considers that this plea must be declared admissible without its being necessary to decide the general question whether, by reason of its legal nature as an act adversely affecting the applicant, a notice of vacancy can acquire a definitive nature which would normally preclude reliance, in support of an application brought against final decisions of appointment and of rejection of candidatures, on any other plea which is directed against that notice of vacancy and which does not display the characteristics and specific features of the plea of misuse of powers (paragraph 54).

(b) Substance

The Court takes the view that the reference, in the notice of vacancy, to involvement in the organizational planning of the interpretation division falls within the scope of the interests of the service and cannot be regarded as amounting to a misuse of powers or procedure (paragraph 55).

The plea alleging defective statement of reasons and infringement of the second paragraph of Article 25 of the Staff Regulations

Where a decision rejects a candidature, the appointing authority is required to give reasons, at least at the stage of rejeeting tlie complaint submitted against such a decision. As promotions are made by selection, it is sufficient if those reasons relate to the existence of the conditions which under the Staff Regulations must be satisfied for a promotion to be lawful (paragraph 60).

See: Perakis v Parliament, cited above, para, 30

The Court takes the view that the decision rejecting the applicant's complaint sufficiently states the reasons on which it is based in that it addresses all the heads of complaint raised (paragraph 61).

Tiie plea In law alleging breach of the right to a fair hearing and infringement of Article 26 of the Staff Regulations

(a) The admissibility of the plea

The Court finds that this plea, raised for the first time in the reply, must be declared admissible in the light of the first subparagraph of Article 48(2) of the Court's Rules of Procedure, in so far as it is based on matters which became apparent only in the course of the procedure, and in the light of Article 44(1)(c) of those Rules, which, in the circumstances of this case, applies equally to the reply and requires a summary of the pleas in law on which the application is based. While the applicant did not refer expressly in her reply to the right to a fair hearing or to Article 26 of the Staff Regulations, she did point out that she had never been informed of the negative assessments made during the promotion procedure in respect of her conduct in the service, and this suffices to allow the institution to defend itself effectively and to enable the Court to exercise its power of review (paragraph 67).

See: 74/74 CNTA v Commission [1975] ECR 533, para. 4; T-18/90 Jongen v Commission [1991] ECR II-187, para. 13

(b) Substance

The purpose of Articles 26 and 43 of the Staff Regulations is to guarantee an official's right to a fair hearing by ensuring that decisions taken by the appointing authority affecting his administrative status and his career are not based on matters concerning his conduct which are not included in his personal file. It follows that a decision based on such matters is contrary to the guarantees contained in the Staff Regulations and must be annulled because it was adopted on the basis of a procedure vitiated by illegality (paragraph 68).

See: 21/70 Rinweger v Commission [1971] ECR 7, paras 29 to 41; 88/71 Brasseurs Parliament [1972] ECR 499, paras 9 to 11; Bonino v Commission, cited above, para. 11; T-82/89Marcato v Parliament [1990] ECR II-735, para. 78; Perakis v Parliament, cited above, para. 27

As a rule, the opinions given by hierarchical superiors consulted in the course of a promotion procedure are an expression of the administration's discretion and do not fall under the requirements laid down in Article 26 of the Staff Regulations, except when those opinions also contain, in addition to the assessments deriving from the comparative examination of the applications, particulars concerning the ability, efficiency or conduct of a candidate which have not previously been placed on the official's personal file.

See: Bonino v Commission, cited above, para. 13

None the less, failure to communicate those same particulars to the person concerned with a view to enabling him to submit his observations can invalidate the decisions rejecting his application and appointing a different candidate only in so far as they have had a decisive influence on the choice made by the appointing authority (paragraph 70).

See: Rittweger v Commission, cited above, para. 35; Brasseur v Parliament, cited above, para. 18

The Court finds that by failing to communicate to the applicant and to enter on her personal file certain factual particulars relating to her ability and conduct which had not been placed on her personal file or drawn to her attention before the contested decisions were taken, the defendant failed to comply with Article 26 of the Staff Regulations and to respect the applicant's right to a fair hearing. However, since those factual particulars cannot be regarded as having had a decisive influence on the choice made by the appointing authority, the fact that they were not placed on the applicant's personal file or communicated to her cannot for that reason invalidate the contested decisions (paragraphs 71 and 73).

The claim for the annulment of the decisions taken following the publication of Notices of Vacancy No CJ 116/91 and No CJ 117/91

The pleas in law alleging breach of the principle of nondiscrimination and infringement of Article 27 of the Staff Regulations, and also infringement of Article 45(1) of the Staff Regulations

In so far as the applicant submits that the requirement, imposed by the institution in the two notices of vacancy, of a perfect command of German or Italian is contrary to the principle of nondiscrimination, she does not rely on discrimination on grounds of nationality. For that reason the plea cannot be based on infringement of the third paragraph of Article 27 of the Staff Regulations, but rather on Article 5(3) of the Staff Regulations, which guarantees identical conditions of recruitment and service career to all officials belonging to the same category or the same service, and on the principle of nondiscrimination (paragraph 86).

By virtue ofthat principle, comparable situations cannot be treated differently unless such differentiation is objectively justified. As the interpreters of die interpretation division of an institution are all in comparable situations, in view of the fact that their duties consist in the interpretation from one or more source languages to a different target language, the exclusion, with regard to possible promotion, of several groups of interpreters eligible for promotion which are determined exclusively on the basis of linguistic criteria is in principle tantamount to treating these groups differently from those admitted to take part in the promotion procedure (paragraph 87).

Such a differentiation, however, is objectively justified if it is the consequence of the fact Üiat an interpretation division is structured on the basis of language booths and that the institution carries out promotions on a booth-by-booth basis rather than at the level of the division as a whole.

Each Community institution has a large measure of discretion in the matter of the organization of its departments and considerable latitude in the structuring of the various administrative units, taking account of a range of factors such as the nature and scope of the tasks assigned to them. An institution has for that reason no obligation towards an official to organize the department in which he is employed in such a way as to guarantee him promotion (paragraph 88),

See: 170/80 Bellardt-Riccl and Others V Commission [1981] ECR 3187, para. 19; 198/81 to 202/81 Micheli and Others v Commission [1982] BCR 4145, para. 18; T-163/89 Sebastiani v Parliament [1991] BCR II-715, para. 33

The Court considers that an institution cannot therefore be denied either the right to structure its interpretation division on the basis of language booths or to allocate posts of principal interpreter to the various booths according to the individual needs of each and consequently, in principle, to reassess the posts per booth by changing a post of interpreter into one of principal interpreter, in so doing, the institution may also take account of the staff structure in the various booths, the performance and qualifications of the interpreters and the contribution of the most experienced interpreters to the organization of the work of the booth (paragraphs 89 and 90).

The fact that the essential distinction between the posts of interpreter and principal interpreter lies in the degree of qualification of the interpreters is not open to criticism. In the light of the organization of a particular department, comparable duties may be assigned to servants in different grades and an official may for that reason perform duties which also attach to a post corresponding to a higher grade (paragraph 92).

See: 77/70 Prelle v Commission [1971] ECR 561, paran 10 to 12

However, the power of the institution to proceed with promotions on a booth-by-booth basis must be reconciled with the principle of equality and nondiscrimination inasmuch as that system of promotion cannot have the effect of excluding, for an excessively long period, the promotion of interpreters assigned to a particular booth (paragraph 95).

The Court finds that Notices of Vacancy No C J 116/91 and No C J 117/91 cannot be regarded, in the circumstances of the present case, as having been approved in breach of Article 5(3) of the Staff Regulations and of the principle of nondiscrimination. In view of the fact that the applicant did not satisfy the conditions as to languages laid down in those notices of vacancy, it was necessary to reject her application at the initial stage prior to the stage of the comparative examination of the merits. As a result, in this regard also, there can be no question of an Infringement of Article 45(1) of the Staff Regulations (paragraph 97).

The plea in law alleging misuse of powers

The Court finds that the two promotion procedures in dispute are not, ultimately, vitiated by a misuse of powers since they did not result in the premeditated appointment of unqualified officials, but that, on the contrary, it is clear from the documents before the Court that the two candidates ultimately promoted are meritorious officials (paragraph 101).

The plea in law alleging defective statement of reasons and infringement of the second paragraph of Article 25 of the Staff Regulations

The Court considers that this plea must be rejected on the grounds already set out above (paragraphs 60 and 61). In so far as the applicant criticizes the institution for having given partially incorrect reasons in its decision rejecting her complaint, the Court finds that this is not an allegation alleging an insufficient statement of reasons (paragraph 104).

Operative part:

The application is dismissed.