JUDGMENT OF THE COURT OF FIRST INSTANCE (Fifth Chamber)

12 May 1998

Case T-159/96

Rüdiger Wenk

v

Commission of the European Communities

‛Officials — Recruitment — Post as Head of Delegation of the Commission — Vacancy notice — Legality — Declaration rejecting candidature — Obligation to state reasons — Comparative examination of candidates' merits — Appointing authority's discretion — Protection of legitimate expectations — Duty to have regard for the welfare and interests of officials’

Full text in French II-593

Application for:

annulment of the Commission decision of 2 February 1996 rejecting the applicant's candidature for the post of Head of Delegation of the Commission in San José

Decision:

Commission ordered to pay damages. Remainder of application dismissed.

Abstract of the Judgment

With a view to filling a Grade A 5/A 4 post as Head of Delegation of the Commission in San José (Costa Rica), the Commission published vacancy notice COM/121/95 (vacancy notice) on 16 November 1995. Candidates were required to have a detailed knowledge of Community policies and of the functioning of the economic and political aspects of the European Union and its external relations, the ability to lead a team in a different socio-cultural environment and experience appropriate for the post.

By decision of 30 January 1996 the Commission appointed Mr K. to the post in question.

The applicant, a Grade A 4 official of the Commission employed in the Commission's delegation in Venezuela and a candidate for the abovementioned post, was informed in a standard letter of the Commission's decision not to accept his candidacy.

By letter of 19 April 1996 the applicant requested the Commission to inform him of the criteria for the vacant post and to provide him with details of the comparative examination of merits which the appointing authority had carried out for the purpose of filling the post in question. The applicant received no reply and on 13 May 1996 he submitted a complaint within the meaning of Article 90(2) of the Staff Regulations of Officials of the European Communities (Staff Regulations); then, when the relevant four-month period had elapsed, he considered that the complaint had been the subject of an implied decision rejecting it on 13 September 1996 and, by an application lodged at the Registry of the Court of First Instance on 15 October 1996, he brought the present action for annulment.

On 20 November 1996 the applicant was notified of a decision dated 11 September 1996 rejecting his complaint.

Substance

The plea alleging the illegality of the vacancy notice

The function of a vacancy notice is, first, to give those interested the most accurate information possible about the conditions of eligibility for the post to enable them to judge whether they should apply for it and, second, to establish the legal framework within which the institution proposes to consider the comparative merits of the candidates (paragraph 24).

See: 188/73 Grassi v Council [1974] ECR 1099, para. 40; C-343/87 Culin v Commission [1990] ECR I-225, para. 19

The appointing authority fails to respect this legal framework if it decides on the particular conditions required to fill the vacant post only after the vacancy notice has been published, regard being had to the candidates who have come forward, and if it takes account, when considering candidatures, of conditions other than those stipulated in the vacancy notice. To proceed in this manner would deprive the vacancy notice of its basic function in the recruitment procedure (paragraph 25).

See: T-58/91 Booss and Fischer v Commission [1993] ECR II-147, para. 67; T-6/96 Contargyris v Council [1997] ECRSC II-357, para. 98

Having regard to the particular nature of the post, namely to head the delegation of the Commission in a nonmember country, the vacancy notice cannot be considered to have been drafted in general and imprecise terms so as to have prevented the appointing authority from considering the respective merits of candidates.

The plea alleging irregularities in the examination of comparative merits and a breach of the principle of the protection of legitimate expectations and the duty to have regard for the welfare and interests of officials

The plea alleging irrégularités in the examination of comparative merits

The consideration of applications for transfer or promotion pursuant to Article 29(1 )(a) of the Staff Regulations must comply with Article 45 of the Staff Regulations, which provides expressly for consideration of the comparative merits of the officials eligible for promotion. The requirement for this consideration of comparative merits reflects the principle of equality of treatment of officials and the principle that officials are entitled to reasonable career prospects (paragraph 54).

See: T-52/90 Volger v Parliament [1992] ECR II-121, para. 24; T-22/92 Weißenfels v Parliament [1993] ECR II-1095, para. 66

Where there is a sufficiently consistent body of evidence suggesting that no real examination of the comparative merits of the candidates took place, it is for the defendant institution to show, by objective evidence amenable to judicial review, that it observed the guarantees which officials eligible for promotion have under Article 45 of the Staff Regulations and did undertake such an examination (paragraph 55).

See: T-25/90 Schönherr w ESC [1992] ECR II-63, para. 25; T-386/94 Allo v Commission [1996] ECRSC II-1161, para. 39

In that regard, the institutions have the power under the Staff Regulations to carry out the consideration of the comparative merits of the candidates according to the procedure or in the manner which they consider to be the most appropriate (paragraph 58).

See: Allo v Commission, cited above, para. 29

Since the Commission has shown that it did in fact consider the merits of the various candidates and that it was after this had been done, first by the Advisory Committee on Appointments and then by the External Relations Steering Committee, on a proposal by the Director-General of the Directorate-General for External Relations: Europe and the New Independent States, Common Foreign and Security Policy and External Missions (DG IA), that the applicant's candidature was not accepted, the complaint alleging that there was no comparative examination of the merits must be rejected.

The complaint alleging a manifest error of assessment

The latitude available to the appointing authority regarding appointment presupposes a ‘careful examination’ of candidates' files 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. The vacancy notice constitutes the legal framework which the appointing authority imposes on itself and to which it must have ‘meticulous regard’ (paragraph 63).

See: C-35/92 P Parliaments Frederiksen [1993] ECR I-991, paras 15 and 16; Y-21/96 Giannini v Commission [1997] ECRSC II-211, para. 19

With a view to establishing whether the appointing authority exceeded the bounds of that legal framework and that it acted solely in the interests of the service, within the meaning of Article 7 of the Staff Regulations, the Court must examine what conditions were laid down in the vacancy notice in this case and verify whether the candidate chosen by the appointing authority to occupy the vacant post actually satisfied those conditions. Such an examination must be limited to consideration 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. The Court cannot therefore substitute its assessment of the candidates' qualifications for that of the appointing authority (paragraph 64).

See: 282/81 Ragusa v Commission [1983] ECR 1245, para. 9; 233/85 Bonino v Commission [1987] ECR 739, para. 5; Parliament v Frederiksen, cited above, para. 17; T-l 69/89 Frederiksen v Parliament [1991] ECR II-1403; Schönherr y ESC, cited above, para. 20; T-ll/91 Schloh v Council [1992] ECR II-203, para. 51; T-82/91 Latham v Commission [1994] ECRSC II-61, para. 62; T-262/94 Baiwir v Commission [1996] ECRSC II-739, para. 66; Giannini v Commission, cited above, para. 20; T-142/95 Delvaux v Commission [1997] ECRSC II-1247, para. 38

In accordance with those principles, the Court considers that the appointing authority did not commit a manifest error of assessment.

Breach of the principle of protection of legitimate expectations

In the context of a decision to fill a vacant post based on Article 29(l)(a) of the Staff Regulations, the appointing authority must observe the criteria laid down in Articles 7 and 27 of the Staff Regulations and consider the comparative merits of the candidates, as provided for in Article 45 of the Staff Regulations. It follows that a promise of promotion, even assuming that it were proven, could not create a legitimate expectation on the part of the applicant, given that it was made without regard to the applicable provisions of the Staff Regulations (paragraph 92).

See: Weißenfels v Parliament, cited above, para. 92

Breach of the obligation to have regard for the welfare and interests of officials

The administration's duty to have regard for the interests of its servants reflects the balance of reciprocal rights and obligations established by the Staff Regulations between the public authority and its servants. However, the protection of the rights and interests of officials must always be subject to compliance with the mies in force. A promise made in breach of the provisions of the Staff Regulations cannot form the basis of a duty to have regard for the welfare of the official concerned which entitles him to claim advantages which the Staff Regulations do not confer on him (paragraphs 99 and 100).

See: T-22/89 and T-74/89 Blackman v Parliament [1993] ECR II-249, para. 96; T-81/96 Apostolidis and Others v Commission [1997] ECRSC II-607, para. 90

The plea alleging a breach of the second paragraph of Article 25 of the Staff Regulations

The requirement laid down in the second paragraph 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 can be derogated from only for compelling reasons. That requirement is intended, first, to provide the official concerned with the necessary information to allow him to ascertain whether the act adversely affecting him is well founded and whether it is appropriate to bring legal proceedings before the Court and, second, to enable the Court to review the legality ofthat act (paragraphs 113 and 114).

See: T-178/95 and T-179/95 Picciolo and Caló v Committee of the Regions [1997] ECRSC II-155, para. 33; T-237/95 Carbajo Ferrerò v Parliament [1997] ECRSC II-429, para. 82

Although the appointing authority is not under an obligation to provide unsuccessful candidates with reasons for its decision on promotion, 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. While it cannot be denied that the appointing authority is not generally required to respond to a complaint, the position is different where the decision forming the object of the complaint does not state the grounds on which it is based. A reasoned reply provided after a legal action has been brought does not serve its defined purpose vis-à-vis either the official concerned or the Court (paragraph 115).

See: Grassi v Council, cited above, para. 13; 121/76 Moli v Commission [1977] ECR 1971, para. 12; Picciolo and Caló v Committee of the Regions, cited above, para. 34; Volger v Parliament, cited above, para. 40; T-13/95 Kyrpitsis v ESC [1996] ECRSC II-503, para. 74

By failing to inform the applicant of the reasons for rejecting his candidature, if not within four months following submission of his complaint at the very least before he brought proceedings, the Commission infringed the second paragraph of Article 25 of the Staff Regulations. Consequently, by virtue of the principle of proportionality, it is necessary to have regard not only to the interests of the applicant who has been the victim of the unlawful act but also to the interests of others whose legitimate expectations may be harmed if claims for annulment are upheld (paragraphs 119 and 121 to 123).

See: T-18/92 and T-68/92 Coussiosv Commission [1994] ECRSC II-171, para. 105; T-586/93 Kotzonis v ESC [1995] ECRSC II-203, para. 107; T-562/93 Obst v Commission [1995] ECRSC II-737, para. 81

In the light of its unlimited jurisdiction in disputes of a financial nature, the Court may, even in the absence of proper submissions to that effect, order the respondent institution to pay compensation for the nonmaterial damage caused by its service-related fault. In the present case the Court considers that compensation is the form of reparation which best meets both the interests of the applicant and the requirements of the service.

In evaluating the harm suffered, regard must be had to the fact that the applicant was obliged to bring legal proceedings in order to be informed of the grounds of the decision rejecting his candidature (paragraphs 122 and 123).

See: 24/79 Oberthiirv Commission [1980] ECR 1743, para. 14

Operative part:

The Commission is ordered to pay the applicant the sum of ECU 400 by way of damages for its service-related fault.

The remainder of the application is dismissed.