JUDGMENT OF THE COURT OF FIRST INSTANCE (Fourth Chamber)

16 October 1996

Case T-56/94

Raffaele de Santis

v

Commission of the European Communities

‛Officials — Vacancy notice — Abuse of process’

Full text in French II-1325

Application for:

annulment of the Commission decision of 16 December 1993 relating to publication of a vacancy notice (COM/144/93) for the post of Head of Unit 1 (Milk Products) of Directorate D (Organization of Markets in Livestock Products) of Directorate-General VI (Agriculture).

Decision:

Application dismissed.

Abstract of the Judgment

On 16 December 1993, the Commission published Vacancy Notice COM/144/93 (‘the vacancy notice’) for the post of Head of Unit 1 (Milk Products) of Directorate D (Organization of Markets in Livestock Products) of Directorate-General VI (Agriculture) (‘VLD.l’), 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 that the successful candidate would be responsible for directing and coordinating work in Unit VLD. 1. With regard to the qualifications required, it stated: ‘Training in agronomy and agricultural economics required, in-depth knowledge and confirmed experience of the common organization of the market in milk products. Managerial ability essential.’

On 13 January 1994, the final date for submitting applications, five candidatures were lodged, but the applicant's was not among them; according to him, that was because of the qualifications required by the vacancy notice. After fixing the level of the post at Grade A 5/A 4, the Commission appointed to the post, by way of transfer, Mr J., a Grade A 4 official serving in the Directorate-General for Agriculture.

By order of 11 March 1994 (T-56/94 R [1994] ECRSC II-267), the President of the Court of First Instance dismissed the application made by the applicant for interim measures to suspend the procedure for filling that post and reserved costs.

Substance

The first plea, alleging that Articles 5, 7, 29 and 45 of the Staff Regulations and Annex I thereto were infringed and that the decision of 19 July 1988 was unlawful

First, the applicant cannot contend that the decision of 19 July 1988 on filling middle-management posts is unlawful in that it offends against the principle that the post and the grade should correspond. He is an official in Grade A 4. The vacancy notice proivded that the successful candidate would be appointed in Grade A 3, A 4 or A 5. The applicant cannot claim, therefore, that he was a victim of a breach of the above principle, since the statement of the required grades did not prevent him from lodging his candidature (paragraph 23).

See: T-16/94 Benecos v Commission [1995] ECRSC II-335, paras 47 and 48

Since the applicant alleges infringement of the other provisions cited in the first plea solely in order to substantiate his argument that the decision of 19 July 1988 was unlawful, that plea is equally without substance in so far as it relates to those other provisions (paragraph 23).

Next, the alleged imprecision of the vacancy notice was not such as to prevent the applicant from lodging his candidature. The very fact that he considered that the requirements laid down in the vacancy notice were imprecise implies that he was unable to establish with certainty whether the vacancy notice precluded his candidature. If he had applied in such circumstances, he would have been entitled to challenge a rejection of his candidature by invoking the imprecision of the vacancy notice. His argument that the vacancy notice was imprecise is accordingly without substance (paragraph 24).

Finally, the lack of a precise indication in the vacancy notice of the level of the post to be filled, the use of the term ‘training’ and the condition relating to ‘managerial ability’ are not requirements which precluded the applicant's candidature. Since he was an official in Grade A 4, the detail in the vacancy notice relating to the grade of the post to be filled did not prevent his applying for the post. The prima facie meaning of the term ‘training’ was that officials who did not have a formal qualification in the subjects listed in the vacancy notice but could demonstrate equivalent practical experience could also apply. The requirement of managerial ability did not automatically rule out the candidature of an official who had already occupied the post of Head of Unit at issue when deputizing for the latter in his absence (paragraph 25).

The second plea, alleging misuse of powers and infringement of Article 27 of the Staff Regulations

The concept of misuse of powers has a precisely defined scope and refers to cases where an administrative authority has used its powers for a purpose other than that for which they were conferred on it. A decision may amount to a misuse of powers only if it appears, on the basis of objective, relevant and consistent evidence, to have been taken for purposes other than those stated (paragraph 37).

See: T-106/92 Frederiksen v Parliament [1995] ECRSC II-99, para. 47; T-496/93 Allo v Commission [1995] ECRSC II-405, para. 53; T-562/93 Obst v Commission [1995] ECRSC II-737, para. 62; T-l 18/95 Anacoreta Correia v Commission [1996] ECRSC II-835, para. 25

According to the applicant, the misuse of powers in this case is constituted by certain specific requirements which were specified in the vacancy notice solely in order to be able to appoint a candidate settled on in advance, namely Mr J. (paragraph 38).

The reasons put forward by the Commission to justify the requirement that the future head of Unit VI.D.l should have training in agronomy and agricultural economics demonstrate that it did not misuse its powers. The applicant has not disputed that the milk products sector has undergone constant technological change. In such circumstances, therefore, it was reasonable for the Commission to take the view that an official who had received training in agronomy and agricultural economics, even if not recently, was more suited to coping with such technological change as Head of Unit VI.D. 1 than an official with legal training. Furthermore, the Commission could point to the increase in staff numbers in the legal service of DG VI while the previous head of Unit VI.D.l had been in post, as a result of which two lawyers were dealing fulltime with the legal problems encountered in the milk sector, so that it was no longer necessary for the head of the unit to be a lawyer (paragraph 39).

There was no contradiction between the explanations provided by the Commission in these proceedings and its reply to a parliamentary question relating to this case. On the contrary, the Commission also pointed out in that reply that the situation at the time of publication of the vacancy notice differed from the situation in 1981 when the post of Head of Unit VI.D. 1 had last been vacant, which corresponds to the explanations provided by the Commission in its pleadings (paragraph 40).

Nor, finally, does the announcement in the specialist press that Mr J. was about to be appointed Head of Unit VI.D.l amount to objective and relevant evidence capable of establishing misuse of powers. The very wording ofthat article (‘Tipped to be the new head of the milk division is [Mr J.], currently head of the milk quota administration’) shows that a mere rumour was being reported. Besides, a prediction made by the specialist press which subsequently turns out to be accurate cannot in any event amount to evidence of misuse of powers (paragraph 41).

Accordingly, it cannot be inferred from the above matters that the official to be appointed to the post of Head of Unit VI.D.l had already been chosen before the procedure for filling the post had begun and that, as a result, the vacancy notice had been drafted to correspond to the characteristics ofthat official (paragraph 42).

As to the alleged infringement of Article 27 of the Staff Regulations, in the absence of misuse of powers the Commission cannot be alleged to have restricted the range of candidates for the post of Head of Unit VLD. 1. The applicant's argument based on Article 27 is therefore devoid of substance and must be rejected. He has in any event not adduced further evidence which could substantiate that argument (paragraph 44).

Operative parts

The application is dismissed.