JUDGMENT OF THE COURT OF FIRST INSTANCE (Fifth Chamber)

18 March 1997

Joined Cases T-178/95 and T-179/95

Santo Picciolo and Giuseppe Caló

v

Committee of the Regions of the European Union

‛Officials — New post with the Committee of the Regions — Vacancy Notice — Rejection of candidatures — Action for annulment — Delay in communicating the rejection decisions — Failure to state reasons — Equal treatment — Manifest error of assessment’

Full text in French II-155

Application for:

first, the annulment of the decisions of the Committee of the Regions of 5 December 1994 rejecting the applicants' candidatures for the post of Director at the Directorate of Administration and Registry of die Committee of the Regions following the publication of Vacancy Notice CdR/1/94, and, second, annulment of the decision of the same date appointing Mr M. to that post.

Decision:

Application dismissed.

Abstract of the Judgment

The applicant in Case T-178/95, Santo Picciolo, a Grade A 3 official, is Head of the [Treasury and] Accounts Division of the Directorate-General for Personnel, the Budget and Finance of the European Parliament.

The applicant in Case T-179/95, Giuseppe Caló, a Grade A 3 official, is Head of the ‘Agricultural Accounts and Structures' unit of the Directorate for ’Agricultural, Fisheries and Environmental Statistics' in the Statistical Office (Commission of the European Communities).

In Vacancy Notice CdR/1/94, adopted by the President of the Committee of the Regions (CdR) on 17 November 1994 and displayed on the premises of the CdR and of the Economic and Social Committee of the European Communities (Ecosoc) from 21 November 1994, the Committee of the Regions declared that the Grade A 2 post of Director at the Directorate of Administration and Registry of the CdR was vacant. The closing date for submitting applications by post was noon on 1 December 1994.

Following a request from the Secretary-General of the Union Syndicale (European Public Service Union), one of the main unions of the European Civil Service, the Director of Personnel, Administration and Finances of Ecosoc informed the Secretary-General on 29 November 1994 that Vacancy Notice CdR/1/94, prepared by the Personnel Directorate at the request of the Committee of the Regions, had been submitted to the Secretary-General of the Committee of the Regions in his absence on 18 November 1994 and had been displayed in Ecosoc on 21 November 1994 following the weekend.

On 30 November and 1 December 1994 respectively, the applicants Caló and Picciolo submitted their candidatures for the post which had been declared vacant.

On 5 December 1994 the Committee of the Regions appointed Mr M. to the post at issue.

By letters dated 10 February 1995 the applicants were notified that their candidatures for the post had been rejected.

Substance

First plea, alleging infringement of the second subparagraph of Article 25 of the Staff Regulations

The delay in notifying the decisions rejecting the applicants' candidatures must not be assessed with respect to the decision appointing another candidate, but, rather, with respect to the selection decision which resulted in their being excluded (paragraph 28).

See: 111/83 Picciolo v Parliament [1984] ECR 2323, para. 25

Even if there was a delay in notifying the applicants that their candidatures had been rejected, that delay cannot entail the annulment of the contested measures. The notification of an individual decision to the person concerned is an act subsequent to the decision and therefore has no influence on its content. The finding that notification of an individual decision to the person concerned was belated cannot, in itself, constitute an infringement of Article 25 of the Staff Regulations of Officials of the European Communities (the Staff Regulations), such as to entail annulment of the contested measures (paragraph 29).

See: T-1/90 Pérez-Mínguez Casariego v Commission [1991] ECR II-143, para. 72

The requirement laid down in the second subparagraph of Article 25 of the Staff Regulations that any decision adversely affecting an official should state the grounds on which it is based, constitutes an essential principle of Community law which may be derogated from only for compelling reasons. That requirement is intended, first, to enable the Community judicature to review the legality of the decision and, second, to provide the person concerned with the necessary information to allow him to ascertain whether or not the decision is well founded (paragraph 33).

See: Pérez-Mínguez Casariego v Commission, cited above, para. 73

The appointing authority is not under an obligation to provide unsuccessful candidates with reasons for its decisions on promotion. However, it is required to provide reasons for its decision to reject a complaint made under Article 90(2) of the Staff Regulations by an applicant who was not promoted, the grounds of that decision being deemed to be identical to those of the decision against which the complaint was directed. It is sufficient that the statement of reasons be based on compliance with the conditions which under the Staff Regulations must be satisfied for the procedure to be lawful (paragraph 34).

See: T-18/92 and T-68/92 Coussios\Commission [1994] ECRSC II-171, para.69; T-108/92 Caló v Commission [1994] ECRSC II-213, para. 34; T-37/94 Benecos v Commission [1996] ECRSC II-1301, para. 39

The detailed explanations given by the appointing authority in its response to those complaints must be considered as a sufficient statement of the reasons on which the rejection of the candidatures was based (paragraphs 35 and 38).

The second plea, alleging breach of the principle of equal treatment of and nondiscrimination between officials

The principles of equality of treatment and nondiscrimination mean that comparable situations cannot be treated differently unless such differentiation is objectively justified (paragraph 54).

See: T-109/92 Lacruz Bassols v Court of Justice [1994] ECRSC II-105, para. 87

The applicants have not established that the time-limit for submitting candidatures was unusually short. The period of 13 days, from the morning of 18 November 1994 when the vacancy notice was sent to the various institutions, until the final date for submitting applications at noon on 1 December 1994, must be considered as having been sufficient for notifying potential candidates. Even if the various institutions to which the vacancy notice was sent did not show the necessary diligence in bringing die vacancy notice to the attention of their respective staff immediately, that lack of diligence cannot, in any event, be imputed to the Committee of die Regions (paragraph 57).

A claim is admissible if it is apparent from the wording of die complaint or, at least, by necessary implication from it, that it was contemplated Üierein. Accordingly, aldiough the forms of order sought before the Community judicature may contain only heads of claim based on the same matters as those relied on in die complaint, those heads of claim may neverüieless be developed before the Court by the submission of pleas and arguments not necessarily appearing in the complaint but closely linked to it (paragraph 60).

See: 184/80 Van Zaanen v Court of Auditors [1981] ECR 1951, para. 13; T-58/91 Booss and Fischer v Commission [1993] ECR II-147, para. 83; T-378/94 Knijffv Court of Auditors [1996] ECRSC II-1341, para. 21

The argument concerning the need to recruit on the broadest possible geographic basis is to be found, at least in the rudimentary form of a transcription of Article 27 of the Staff Regulations, in the applicants' complaints; it must therefore be held admissible (paragraph 64).

At the hearing the applicants stressed that Article 27 of the Staff Regulations constitutes a fundamental provision of those regulations, but did not specify how they considered it to have been infringed in this case. That provision means, they maintained, that, in the context of a recruitment procedure, the qualifications required of candidates must be defined not on the basis of the profile of the person whom it may be desired to recruit for geographical reasons but with a view to ensuring the professional suitability of the successful candidate (paragraph 65).

The rale in the third subparagraph of Article 27 of the Staff Regulations that no posts are to be reserved for nationals of any specific Member State must be observed in all the recruitment procedures provided for in Article 29 of the Staff Regulations, including the recruitment of Grade A 1 or A 2 officials, according to the procedure provided for in Article 29(2) (paragraph 66).

See: Booss and Fischer v Commission, cited above, para. 85

The appointing authority may, however, make nationality the prevailing criterion in order to maintain or restore a geographical balance provided that it has first established on the basis of a comparative examination of the applications that the qualifications of the candidates are essentially the same (paragraph 67).

See: T-586/93 Kotzonis v Economic and Social Committee [1995] ECR II-665, para. 86

Tfie third plea, alleging infringement of Article 45 of the Staff Regulations and manifest error of assessment

The administration carried out ‘a comparative examination of the candidatures in the light of the posts available. Following that examination, the administration, acting on a proposal from the Secretary-General, decided to appoint Mr M. as Director of the Registry, Administration and Budgets’. A detailed comparative examination of the application forms and the curricula vitae annexed to them was carried out (paragraphs 82 and 83).

The Court must therefore examine the question whether the appointing authority committed any manifest error in considering that, in contrast to the successful candidate, the applicants did not satisfy all the specific requirements concerning qualifications laid down in the vacancy notice (paragraph 84).

See: T-356/94 Vecchi v Commission [1996] ECRSC II-1251, para. 54

In determining whether any error in the selection of a Grade A 2 official is manifest and exceeds the wide discretion which the appointing authority has in comparing the merits of candidates and evaluating the interests of the service, the Court must confine its review to the question whether, having regard to the various considerations which have influenced the administration in making its assessment, the administration remained within reasonable bounds and has not used its power in a manifestly incorrect way or for purposes other than those for which it was conferred. In exercising the discretion available to it regarding an appointment or promotion, the appointing authority 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 (paragraph 85).

See: C-35/92 P Parliament v Frederiksen [1993] ECR I-991, para. 15; T-20/89 Moritz v Commission [1990] ECR II-769, para. 29

Although the description of the qualifications required in the Vacancy Notice CdR/1/94 does, in fact, leave some scope for interpretation, that lack of precision must be set against the importance of the post to be filled. Since the vacancy notice relates to a newly-created Grade A 2 post, the ‘qualifications required’ must be regarded as reasonably precise, and therefore capable of serving as a useful criterion for selecting the best candidate, from among the applicants for the post of director, in the interests of the service (paragraph 87).

The vacancy notice served its purpose, which was to inform those concerned as accurately as possible of the nature of the requirements for the post in question in order to enable them to judge whether it was appropriate for them to apply for it. The terms in which the notice was drafted are not such as to prevent the Court of First Instance from verifying whether the appointing authority committed any manifest error of assessment. Review of the examination of the applicants' qualifications carried out by the appointing authority has not disclosed any such manifest error on its part (paragraph 95).

See: Vecchi v Commission, cited above, para. 50

The fourth plea, alleging misuse of powers

The concept of misuse of powers refers to the use by an administrative authority of its powers for a purpose other than that for which they were conferred upon it. A decision is therefore vitiated by misuse of powers only where it appears, on the basis of objective, relevant and consistent evidence, to have been taken for purposes other than those stated (paragraph 100).

See: Kotzonis v Economic and Social Committee, cited above, para. 73; T-158/94 Brunagel v Parliament [1996] ECRSC II-l131, para. 86; T-56/94De Santis v Commission [1996] ECRSC II-1325, para. 37

The mere fact that speculation concerning the appointment of Mr M. was subsequently confirmed cannot, therefore, in itself amount to evidence of misuse of powers, if there is no other reason to believe that the successful candidate did not satisfy the conditions and qualifications laid down in Vacancy Notice CdR/1/94 (paragraph 104).

See: De Santis v Commission, cited above, para. 41

Operative part:

The applications are dismissed.