JUDGMENT OF THE COURT OF FIRST INSTANCE (Fourth Chamber)

16 October 1996

Case T-36/94

Alberto Capitanio

v

Commission of the European Communities

‛Officials — Reinstatement — Establishment of the level of a post — Act adversely affecting an official’

Full text in French II-1279

Application for:

annulment of the decision of the Commission relating to the drawing-up and publication of Vacancy Notice COM/022/93 for die post of Head of Unit 4 (Technical Group on Infrastructure) of Directorate E (East and Southern Africa) of Directorate-General VIII (Development), of its decision to classify that post at Grade A 5/A 4, of the decision to annul the vacancy notice for it in order to allow the reinstatement of an official who had taken leave on personal grounds, and of all subsequent and/or related decisions adopted by the Commission in pursuance of die abovementioned decisions, in particular the decision rejecting the applicant's candidature and the decision appointing Mr G. to that post.

Decision:

Application dismissed.

Abstract of the Judgment

The applicant is an official in Grade A 4. From March 1989 to March 1991, he took on the duties of Head of Unit 4 (Technical Group on Infrastructure) of Directorate E (East and Southern Africa) of the Directorate-General for Development (DG VIII) (‘Unit VIII.E.4’). On 31 October 1991, he was appointed deputy head of that unit. On account of the retirement of his head of unit, he was acting head of unit until 30 November 1993.

On 25 March 1993, a vacancy notice for the post of Head of Unit VIII.E.4 was published in accordance with Articles 4 and 29(l)(a) of the Staff Regulations of Officials of the European Communities (‘the Staff Regulations’). The notice stated solely that the head of unit would be ‘responsible for directing and coordinating the work’. The applicant submitted his candidature within the specified time-limit.

The Advisory Committee on Appointments (‘the ACA’) met on 17 June 1993, decided that the post should be awarded to an official in Grade A 5/A 4, considered an application for reinstatement from a Commission official in Grade A 5, Mr G., and recommended that Mr G. be appointed to the post on the basis of Article 40 of the Staff Regulations. The applicant was notified ofthat decision on 29 June 1993.

On 25 June 1993, the applicant lodged a first complaint ‘against the decision of the Commission relating to publication of Vacancy Notice COM/022/93 for the post of Head of Unit VIII.E.4 and all subsequent decisions adopted by the Commission in pursuance of that decision’. That complaint, which was considered at the meeting of the Interdepartmental Group on 16 September 1993, was rejected by implied decision on 25 October 1993.

By letter of 30 July 1993, tlie Commission's Director-General for Personnel and Administration, replying to a letter from the applicant's counsel calling into question the annulment of Vacancy Notice COM/022/93, informed the latter in particular of the criteria applied by the ACA when specifying the level of the post.

On 24 September 1993, the applicant lodged a second complaint, against the decision of the Commission classifying the post of Head of Unit VIII.E.4 at Grade A 5/A 4 and the decision annulling Vacancy Notice COM/022/93 in order to allow the reinstatement of an official in Grade A 5 who had taken leave on personal grounds. That complaint, which die Interdepartmental Group dealt with at its meeting on 11 November 1993, was rejected by implied decision on 24 January 1994.

Admissibility

First, the application is devoid of purpose in so far as it is directed against the decision relating to the drawing-up and publication of the vacancy notice for the post of Head of Unit VIII.E.4, since that decision was annulled by the Commission on 24 June 1993 (paragraph 28).

Second, the decision fixing the level of the post at Grade A 5/A 4 constitutes a stage preceding the filling of the post in the strict sense. In particular it allowed Mr G. 's reinstatement which had priority. That decision adopted by die Commission on 8 September 1993 did not in itself have the effect of excluding the applicant from the category of candidates who could be appointed, since he is an official in Grade A 4. The applicant was turned down for the post because Mr G. had to be reinstated as a matter of priority and not because of die grade at which the appointing authority decided to classify the post. The decision as to grade is nevertheless liable to affect the applicant adversely within the meaning of Article 90(2) of the Staff Regulations inasmuch as it deprives him of the chance of promotion to A 3 when the post is filled. The application is accordingly admissible in so far as it seeks annulment of the decision to classify the vacant post at Grade A 5/A 4 (paragraph 29).

Third, the decision to annul the vacancy notice amounts to an act adversely affecting the applicant within the meaning of Article 90(2) of the Staff Regulations since it deprived him of the entitlement to consideration for appointment or promotion which he had acquired on submitting his candidature. The application is accordingly admissible with regard to that decision (paragraph 30).

Fourth, the decision to annul the vacancy notice was adopted before the appointing authority had compared the candidates' merits, so that it cannot be treated as a rejection of the applicant's candidature. The application is therefore devoid of purpose in so far as it is directed against an alleged decision rejecting the applicant's candidature (paragraph 31).

Fifth, even though the priority reinstatement of Mr G. was mandatory under Article 40(4)(d) of the Staff Regulations, it amounts to an act adversely affecting the applicant within the meaning of Article 90(2) of the Staff Regulations inasmuch as it deprives him of the chance of obtaining the vacant post. Consequently, priority reinstatement of an official on leave on personal grounds cannot be automatically exempted from the review by the Court which might be sought by any interested official who alleges that the conditions in Article 40(4)(d) have not been complied with and who could have been appointed in place of the first official (paragraph 32).

Sixth, and finally, given that it is settled law that an action brought by an official which is formally directed against the express or implied rejection of a prior complaint through administrative channels lodged under Article 90(2) of the Staff Regulations has the effect of bringing before the Court the decision adversely affecting him against which the complaint was submitted, it is unnecessary to consider whether this application is admissible in so far as it is directed against the implied decisions rejecting the applicant's complaints, because it is expressly directed against all the decisions which were the subject of the prior complaint through administrative channels in the case (paragraph 33).

See: 293/87 Vainker v Parliament [1989] ECR 23, para. 8; T-33/91 Williams v Court of Auditors [1992] ECR II-2499, para. 23

It follows from the above that the application must be declared admissible solely in so far as it is directed against the decision to classify the post at issue at Grade A 5/A 4, the decision to annul the vacancy notice and the decision reinstating Mr G. (paragraph 34).

However, the applicant has not developed any specific arguments relating to his contention that the decisions annulling the vacancy notice and reinstating Mr G. were unlawful. As he stated at die hearing, his pleas of annulment are directed at the decision to classify the post at Grade A 5/A 4 which opened the way for Mr. G. 's reinstatement after the appointing authority had annulled Vacancy Notice COM/022/93. Accordingly, alüiough tlie application is admissible in so far as it is directed against the three abovementioned decisions, the entire case turns on whether the applicant's pleas in support of annulment of the single decision fixing the level of the post at issue at Grade A 5/A 4 (‘the contested decision’) are well founded. The Court thus limits its consideration of the substance of the application to that question (paragraph 35).

Substance

The first plea, that the second paragraph of Article 25 of the Staff Regulations was infringed

The requirement of a statement of reasons must be considered in the context of the circumstances of the case, in particular the content of the measure, the nature of the reasons relied upon and the interest which the addressee may have in receiving an explanation (paragraph 39).

See: T-18/92 and T-68/92 Coussios v Commission [1994] ECRSC II-171, para. 45

In this instance, the scope of the obligation to give reasons can be defined by referring to the case-law relating to the obligation to provide unsuccessful candidates with reasons for decisions on promotion, even though the contested decision was adopted outside a promotion procedure in the strict sense. The contested decision concerns a similar factual situation, since its effect is to exclude the applicant from the candidates who can be promoted when the vacant post is filled. It is clear from the case-law relating to the obligation to give reasons for decisions on promotion that the appointing authority is not under an obligation to provide unsuccessful candidates with reasons for such decisions. It is required, on the other hand, to provide reasons for its decision to reject a complaint made on the basis of Article 90(2) of the Staff Regulations by a candidate who was not promoted, the grounds of that decision rejecting the complaint being deemed to be identical to those of the decision against which the complaint was directed (paragraph 40).

See: Coussios v Commission, cited above

In this case, therefore, the appointing authority was not required to give reasons for the contested decision, but it was under an obligation to give reasons for rejection of the complaint lodged by the applicant against it. The complaint lodged on24 September 1993 was not rejected by any express decision, whether before or after this action was commenced (paragraph 41).

However, it is necessary to consider whether the Commission has not notified the applicant of the reasons for the contested decision by means other than an express decision rejecting his complaint of 24 September 1993 (paragraph 42).

By letter of 30 July 1993, that is to say before the complaint was lodged, the Commission notified the applicant of the criteria used by the ACA when it adopted its opinion relating to die contested decision (paragraph 43).

In view of that fact, die applicant cannot contend that no reasons at all had been given for the contested decision when he brought this action, since the Commission had notified him of the criteria applied by the ACA when formulating its opinion on the grading of the post at issue. Indeed, even the applicant did not rule out diat some reasoning for die contested decision had been given when he wrote in his reply that it appeared ‘that the disputed decisions [were] vitiated by a lack of reasons or, at die very least, by insufficient reasoning’, although when he lodged his application he had claimed that the contested decision was vitiated by a ‘complete lack of reasons’ (paragraph 44).

Nevertheless, while the Commission cannot be said to have given no reasons for die contested decision, the reasons given cannot be regarded as sufficient. No reason is given for the change in die assessment of the criteria under which die level of the post had previously been fixed at A 3, a point which the applicant had expressly raised in his complaint of 24 September 1993 (paragraph 45).

In accordance with settled case-law, it is therefore necessary to examine whether additional information capable of remedying the defective reasoning has been provided in the course of these proceedings. The Commission stated in its pleadings and at the hearing that a new approach to development policy resulting in a change in the administrative organization of Unit VIII.E.4 caused it to adopt the contested decision. The applicant has thus been in a position to check the merits of that explanation during the course of these proceedings, as shown by his observations on the point. That explanation also enables the Court to exercise its powers of review (paragraph 46).

See: T-25/92 Vela Palacios v ESC [1993] ECRII-201, para. 26; T-16/94 Benecos v Commission [1995] ECR-SC II-335, para. 36

The second plea, that the decision of 19 July 1988 was unlawful and Articles 5(4) and 7(1) of the Staff Regulations were infringed

The contested decision, which was adopted on 8 September 1993, falls outside the procedure for filling the post of Head of Unit VIII.E.4 initiated under Article 29(1) of the Staff Regulations by publication of Vacancy Notice COM/022/93 and concluded by the decision published on 24 June 1993 annulling that notice (paragraph 53).

This plea is accordingly ineffective in so far as it criticizes the possibility, offered by the procedure for filling middle-management posts adopted by the Commission by decision of 19 July 1988, of fixing the level of the post when the appointing authority knows the identity of the candidates for the post and has the files relating to them, because such a situation did not arise in this case, the appointment to the post of Head of Unit VIII.E.4 not having taken place by transfer or promotion (paragraph 54).

First, therefore, it is necessary to consider whether the decision of 19 July 1988 offends against the principle that the post and the grade should correspond. In its judgment in Kratz v Commission, this Court explained that there is nothing which prevents head of unit posts from being filled at Grade A 3, A 4 or A 5, depending on the importance of the tasks entrusted to the unit in question. Article 7 of the Staff Regulations and Annex I thereto do not lay down that head of unit posts must be filled at Grade A 3. Accordingly, the decision of 19 July 1988 is not unlawful because it allows the level of a head of unit post to be fixed at Grade A 5/A 4 (paragraph 55).

See: T-10/94 Kratz v Commission [1995] ECRSC II-315, para. 53

Secondly, by contending that a decision fixing the level of a post in the case of reinstatement under Article 40(4)(d) of the Staff Regulations must likewise be based on objective reasons, the applicant is asking the Court to review whether the contested decision complies with the principle that the post and the grade should correspond, as derived from Articles 5(4) and 7(1) of the Staff Regulations and the general principles governing the civil service (paragraph 56).

For that puipose, the Court must examine whether the contested decision is based on objective factors demonstrating that the level at which the post was fixed reflects the importance of the tasks entrusted to the unit in question. However, review of a decision fixing the level of a post to be filled must be limited to examination of the question whether, having regard to the considerations which may have influenced it in making its assessment, the administration remained within reasonable bounds and did not use its power in a manifestly incorrect way (paragraph 57).

See: 324/85 Bouteiller v Commission [1987] ECR 529, para. 6; 233/85 Bonino v Commission [1987] BCR 739, para. 5; T-82/91 Latham v Commission [1994] ECRSC II-61 para. 47

In this case, it is necessary to take account of the various matters raised by the applicant under the first plea (paragraph 58).

Neither the Commission's previous decision fixing the level of the post of Head of Unit VIII.E.4 at Grade A 3 nor its previous decision fixing the level of a similar post at that grade means that it is precluded from subsequently reconsidering the grading of those posts, given a new approach based, for example, on a new personnel management policy in the directorate-general in question. The mere fact that a different assessment was made in the past cannot amount to proof that the Commission exceeded the limits of the broad discretion which it enjoys in that regard or that it used it in a manifestly incorrect way (paragraph 59).

Also, the fact that the other officials in the unit in question have, with one exception, a higher grade than their immediate superior cannot amount to concrete evidence that the limits of that broad discretion were exceeded or that it was used in a manifestly incorrect way. Greater seniority may be the reason why officials with a comparable career profile are on a higher grade than the official appointed head of their unit (paragraph 60).

The letter of 30 July 1993 sent by the Commission to the applicant's counsel and the further explanations provided by it in its pleadings and at the hearing make clear that the contested decision is based on objective factors. The Commission contended that a different approach to development policy aiming to give priority to integrated development aid projects over individual aid projects made it necessary to alter the administrative organization within the directorate-general in question. Such a change in administrative organization may affect the factors taken into account when the level of the post in question is fixed, such as the political dimension of the activity of Unit VIII.E.4, the level of contacts outside or within the institution, the level of the managerial staff necessary for its activities, the available budget and die Commission's priorities (paragraph 61).

Accordingly, the matters relied on by the applicant do not show that when the Commission adopted the contested decision it used its power in a manifestly incorrect way (paragraph 62).

The third plea, that Articles 27, 29 and 45 of the Staff Regulations were infringed

The contested decision does not infringe Article 27 of the Staff Regulations. The level of a post is fixed before it is awarded to one of the candidates. The very wording of Article 27 of the Staff Regulations makes it clear that Article 27 applies only to that last stage, namely the award to one of the candidates of a post whose level has already been fixed. Accordingly, Article 27 does not apply to the procedure which led to adoption of the contested decision (paragraph 68).

Nor have Articles 29 and 45 of the Staff Regulations been infringed in this case because the contested decision was adopted outside the procedure for filling the post of Head of Unit VIII.E.4 (paragraph 69).

The applicant has in any event not claimed that the decision to award the post of Head of Unit VIII.E.4 to Mr G. on the basis of Article 40(4)(d) of the Staff Regulations infringed Article 27 thereof (paragraph 70).

The fourth plea, that the vacancy notice was unlawful

The Court has held that the action is devoid of purpose in so far as it is directed against the decision relating to the drawing-up and publication of the vacancy notice for the post at issue. The fourth plea is therefore ineffective (paragraphs 74 and 75).

Costs

In view of the fact that the Court has found that insufficient reasons were given when the complaint was rejected and that that was remedied only during the proceedings before the Court, the Commission must be ordered to pay the applicant's costs (paragraph 79).

Operative part:

The application is dismissed.

The Commission is ordered to pay the costs.