Judgment of the Court (First Chamber) of 17 December 1981. - Jacques de Hoe v Commission of the European Communities. - Official - Annulment of an appointment. - Case 151/80.



European Court reports 1981 Page 03161



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

1 . OFFICIALS - RECRUITMENT - VACANCY NOTICE - EXAMINATION OF APPLICATIONS WITH REGARD TO THE CONDITIONS LAID DOWN - DISCRETION OF APPOINTING AUTHORITY - REVIEW BY THE COURT - LIMITS

2 . OFFICIALS - PROMOTION - OBJECTION - DECISION REJECTING COMPLAINT THROUGH OFFICIAL CHANNELS - DUTY TO STATE REASONS - EXTENT

( STAFF REGULATIONS OF OFFICIALS , ARTS 45 AND 90 ( 2 ))

3 . OFFICIALS - RECRUITMENT - APPOINTMENT - CANDIDATES WITH EQUAL QUALIFICATIONS - CHOICE BASED ON INTERESTS OF SERVICE - MISUSE OF POWERS - NONE

4 . OFFICIALS - PROMOTION - COMPARATIVE ASSESSMENT OF MERITS - ABSENCE OF PERIODIC REPORT ATTRIBUTABLE TO THE CONDUCT OF THE PERSON CONCERNED - EFFECTS

( STAFF REGULATIONS OF OFFICIALS , ART . 45 )

Summary

1 . THE APPOINTING AUTHORITY HAS A WIDE DISCRETION IN COMPARING CANDIDATES ' MERITS AND ITS ASSESSMENT AS TO WHETHER A CANDIDATE FULFILS THE CONDITIONS OF ELIGIBILITY REQUIRED BY THE VACANCY NOTICE MAY BE QUESTIONED ONLY IN THE EVENT OF MANIFEST ERROR .

2 . WHILST THE DUTY TO GIVE REASONS FOR A DECISION REJECTING A COMPLAINT THROUGH OFFICIAL CHANNELS APPLIES EVEN IN THE CASE OF A CONTESTED PROMOTION , THE REASONS TO BE GIVEN IN THAT CASE WILL BE CONCERNED ONLY WITH FULFILMENT OF THE LEGAL CONDITIONS ON WHICH , UNDER THE STAFF REGULATIONS , THE VALIDITY OF THE PROMOTION DEPENDS . THAT DOES NOT MEAN THAT THE COMMISSION MUST SET OUT IN DETAIL IN WHAT WAY IT CONSIDERED THAT THE APPOINTED CANDIDATE FULFILLED THE CONDITIONS IN THE VACANCY NOTICE .

3 . WHEN A CANDIDATE FULFILS ALL THE CONDITIONS IN THE VACANCY NOTICE , THE APPOINTING AUTHORITY MAY APPOINT HIM RATHER THAN ANOTHER EQUALLY WELL- QUALIFIED CANDIDATE FOR REASONS RELATING TO THE INTEREST OF THE SERVICE , WITHOUT THAT APPOINTMENT ' S CONSTITUTING A MISUSE OF POWERS .

4 . PERIODIC REPORTS CONSTITUTE ESSENTIAL FACTORS FOR ALL DECISIONS CONCERNING AN OFFICIAL ' S CAREER . HOWEVER , A CANDIDATE FOR A VACANT POST WHOSE BEHAVIOUR SHOWS THAT HE HIMSELF DID NOT CONSIDER THE PRESENCE OF HIS PERIODIC REPORT IN HIS FILE TO BE NECESSARY FOR THE ASSESSMENT OF HIS QUALITIES FOR THE PURPOSES OF THE POST TO BE FILLED , MAY NOT RELY ON THE ABSENCE OF THAT REPORT IN ORDER TO CONTEST THE REGULARITY OF THE PROMOTION PROCEDURE .

Parties

IN CASE 151/80

JACQUES DE HOE , AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES RESIDING AT 69 GEMSLAAN , 1900 OVERIJSE , BELGIUM , REPRESENTED BY JACQUES PUTZEYS AND XAVIER LEURQUIN OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF G . NICKTS , HUISSIER , 17 BOULEVARD ROYAL ,

APPLICANT ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , RAYMOND BAEYENS , ACTING AS AGENT , ASSISTED BY ROBERT ANDERSEN OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF M . MONTALTO , A MEMBER OF ITS LEGAL DEPARTMENT , JEAN MONNET BUILDING , KIRCHBERG , LUXEMBOURG ,

DEFENDANT ,

Subject of the case

APPLICATION FOR

1 . THE ANNULMENT OF THE DECISION OF 13 JUNE 1979 WHEREBY THE COMMISSION APPOINTED MR L . HEAD OF DIVISION C 5 , THE URBAN WORKS AND SOCIAL INFRASTRUCTURE DIVISION , IN THE DIRECTORATE-GENERAL ( VIII ) FOR DEVELOPMENT , AND

2.THE ANNULMENT OF THE COMMISSION ' S REJECTION , BY A LETTER DATED 17 APRIL 1980 AND COMMUNICATED TO THE APPLICANT ON 30 APRIL 1980 , OF THE COMPLAINT MADE BY THE APPLICANT ON 10 SEPTEMBER 1979 ,

Grounds

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 25 JUNE 1980 , MR DE HOE , AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , BROUGHT AN ACTION UNDER ARTICLE 91 OF THE STAFF REGULATIONS OF OFFICIALS CLAIMING THE ANNULMENT , ON THE ONE HAND , OF THE DECISION OF 13 JUNE 1979 BY WHICH THE COMMISSION APPOINTED MR L . HEAD OF DIVISION C 5 , THE URBAN WORKS AND SOCIAL INFRASTRUCTURE DIVISION , AND , ON THE OTHER , OF THE DECISION REJECTING THE COMPLAINT MADE BY THE APPLICANT ON 10 SEPTEMBER 1979 AGAINST THE ABOVE-MENTIONED DECISION OF 13 JUNE 1979 .

2 THE APPLICANT , AN ARCHITECT BY TRAINING , ENTERED THE SERVICE OF THE COMMISSION ON 29 AUGUST 1960 . SINCE 1970 HE HAS PERFORMED HIS DUTIES IN THE DIRECTORATE-GENERAL FOR DEVELOPMENT . APPOINTED TO GRADE A 4 , STEP 3 , ON 1 JANUARY 1974 , HE WAS ASSIGNED AS PRINCIPAL ADMINISTRATOR TO DIVISION C 5 IN DIRECTORATE-GENERAL VIII , WHERE HE PERFORMS THE DUTIES OF HEAD OF WEST AFRICA , CENTRAL AFRICA , PACIFIC AND MAGHREB SECTOR OF THE DIVISION , ENTRUSTED WITH PLANNING , ADVISORY AND SUPERVISORY DUTIES CONCERNING TECHNICAL INSTRUCTION AND THE ACCOMPLISHMENT OF PROJECTS FINANCED BY COMMUNITY RESOURCES IN THE FIELD OF URBAN WORKS AND SOCIAL INFRASTRUCTURE . HE REPLACES THE HEAD OF DIVISION IN HIS ABSENCE AND IN THIS REGARD HAS EXPERIENCE AS ACTING HEAD OF DIVISION OF MORE THAN 360 DAYS .

3 ON 1 MAY 1979 VACANCY NOTICE NO COM/161/79 WAS PUBLISHED CONCERNING THE POST OF HEAD OF THE DIVISION FOR URBAN WORKS AND SOCIAL INFRASTRUCTURE . AMONG THE QUALIFICATIONS REQUIRED FOR THIS POST WERE A THOROUGH KNOWLEDGE AND EXPERIENCE OF ECONOMIC AND TECHNICAL PROBLEMS IN THE FIELD OF SOCIAL INFRASTRUCTURE AND URBAN WORKS IN THE DEVELOPING COUNTRIES . THE APPLICANT APPLIED FOR THE VACANT POST IN THE CONTEXT OF ARTICLE 29 ( 1 ) ( A ) OF THE STAFF REGULATIONS .

4 ON 13 JUNE 1979 THE COMMISSION APPOINTED MR L . TO THE VACANT POST WITH EFFECT FROM 1 JULY 1979 AND INFORMED THE APPLICANT ON 5 JULY 1979 THAT THE APPOINTING AUTHORITY HAD BEEN UNABLE TO ACCEPT HIS APPLICATION FOR THE POST TO BE FILLED .

5 THE APPLICANT SUBMITTED A COMPLAINT UNDER ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS ON 10 SEPTEMBER 1979 . HE WAS NOTIFIED OF THE DECISION REJECTING HIS COMPLAINT BY A LETTER OF 17 APRIL 1980 . SUBSEQUENTLY THE APPLICANT MADE THIS APPLICATION TO THE COURT .

6 IN SUPPORT OF HIS APPLICATION , THE APPLICANT PUTS FORWARD THREE SUBMISSIONS . IN THE FIRST SUBMISSION HE MAINTAINS THAT THE DECISIVE REASON FOR THE CONTESTED MEASURES WAS THE TAKING INTO CONSIDERATION BY THE COMMISSION OF FACTORS EXTRINSIC TO THE POST TO BE FILLED , SUCH AS THE WIDER REQUIREMENTS AS TO THE REORGANIZATION OF SEVERAL DIVISIONS OF DIRECTORATE-GENERAL VIII . ACCORDING TO THE APPLICANT , THE INTEREST OF THE SERVICE MAY NOT BE TAKEN INTO CONSIDERATION ON THE BASIS OF FACTORS OTHER THAN THOSE INTRINSIC TO THE POST TO BE FILLED . IN THE SECOND SUBMISSION , THE APPLICANT CONTENDS THAT IT WAS NOT POSSIBLE FOR THE COMMISSION , WITHOUT MAKING A MISTAKE OF FACT , TO DECIDE THAT THE CANDIDATE APPOINTED MET THE OBJECTIVE CONDITION OF SUITABILITY LAID DOWN BY THE VACANCY NOTICE . THE COMMISSION THUS INFRINGED THE PROVISIONS OF THE VACANCY NOTICE , DID NOT PROVIDE ADEQUATE REASONS FOR ITS DECISION AND MISUSED ITS POWERS . THE THIRD SUBMISSION IS BASED ON ARTICLES 43 AND 45 OF THE STAFF REGULATIONS , ON INFRINGEMENT OF THE GENERAL PRINCIPLE OF EQUALITY OF TREATMENT IN THE CONSIDERATION OF THE APPLICATIONS FOR A POST TO BE FILLED , ON INADEQUACY OF THE REASONS ON WHICH THE DECISION WAS BASED AND MISUSE OF POWERS .

7 IT IS APPROPRIATE TO CONSIDER FIRST THE SECOND SUBMISSION , THE EXAMINATION OF WHICH MAY AFFECT THE FIRST SUBMISSION . ACCORDING TO THE APPLICANT , THE OFFICIAL APPOINTED TO THE POST TO BE FILLED DID NOT MEET ONE OF THE CONDITIONS REQUIRED BY THE VACANCY NOTICE , THAT IS TO SAY , THAT RELATING TO ' ' THOROUGH KNOWLEDGE AND EXPERIENCE OF ECONOMIC AND TECHNICAL PROBLEMS IN THE FIELD OF SOCIAL INFRASTRUCTURE AND URBAN WORKS IN THE DEVELOPING COUNTRIES ' ' . HE EXAMINES MR L . ' S EXPERIENCE IN THE FIELD DESCRIBED IN THE VACANCY NOTICE AND CONCLUDES FROM IT THAT IT WAS NOT POSSIBLE FOR THE COMMISSION , WITHOUT MAKING A MISTAKE OF FACT , TO TAKE THE VIEW THAT THE OFFICIAL MET THE CONDITION CITED ABOVE . IN ADDITION , HE SUBMITS THAT NO ADEQUATE STATEMENT OF THE REASONS FOR THE DECISION TO APPOINT THAT OFFICIAL WAS GIVEN , INASMUCH AS THERE IS NO INDICATION OF THE GROUNDS ON WHICH THE COMMISSION MIGHT LAWFULLY HAVE CONSIDERED MR L . ' S KNOWLEDGE TO BE THOROUGH .

8 IT IS CLEAR FROM THE CASE-LAW OF THE COURT , PARTICULARLY FROM ITS JUDGMENT OF 30 OCTOBER 1974 IN GRASSI V COUNCIL (( 1974 ) ECR 1099 ) THAT THE BASIC FUNCTION OF THE VACANCY NOTICE IS TO GIVE THOSE INTERESTED THE MOST ACCURATE INFORMATION POSSIBLE ABOUT THE NATURE OF THE CONDITIONS OF ELIGIBILITY FOR THE POST TO WHICH IT RELATES , IN ORDER TO ENABLE THEM TO JUDGE WHETHER THEY SHOULD APPLY FOR IT , AND THAT WHEN THE APPOINTING AUTHORITY HAS TO FILL A POST , IT MUST , WHEN DRAWING UP THE VACANCY NOTICE , TAKE ACCOUNT OF THE SPECIAL CONDITIONS OF ELIGIBILITY REQUIRED OF THE HOLDER .

9 HOWEVER THE COURT HAS RECOGNIZED THAT THE APPOINTING AUTHORITY HAS A WIDE DISCRETION IN COMPARING THE CANDIDATES ' MERITS AND THAT ITS ASSESSMENT AS TO WHETHER A CANDIDATE FULFILS THE CONDITIONS OF ELIGIBILITY REQUIRED BY THE VACANCY NOTICE MAY BE QUESTIONED ONLY IN THE EVENT OF MANIFEST ERROR .

10 IT IS CLEAR FROM THE FILE THAT MR L . HAD BEEN EMPLOYED AS AN ARCHITECT BY A FIRM IN ROTTERDAM FOR A PERIOD OF ABOUT FIVE YEARS AND THEN BY A FIRM IN ROME FOR A PERIOD OF FIVE YEARS ( DURING WHICH TIME HE WAS CONCERNED WITH PROJECTS AND STUDIES IN THE FIELD MENTIONED IN THE VACANCY NOTICE ). THEREAFTER HE WAS IN THE SERVICE OF THE EUROPEAN ASSOCIATION FOR COOPERATION , AS CONTROLLER OF THE EUROPEAN DEVELOPMENT FUND , FROM SEPTEMBER 1973 TO MAY 1976 . ON 1 JUNE 1976 HE ENTERED THE SERVICE OF THE COMMISSION , WHERE HE PERFORMED THE DUTIES OF HEAD OF THE WEST AFRICA DIVISION OF DIRECTORATE-GENERAL VIII .

11 IT ALSO EMERGES FROM THE FILE THAT SIX OFFICIALS OF THE COMMISSION APPLIED FOR THE POST TO BE FILLED . ACCORDING TO THE COMMISSION ' S USUAL PRACTICE , THE CANDIDATES ' QUALIFICATIONS AND EXPERIENCE WERE EXAMINED BY THE DIRECTOR- GENERAL OF DIRECTORATE-GENERAL VIII . ACCORDING TO HIS REPORT , ONLY THE APPLICATIONS OF MR L . AND THE APPLICANT MET THE QUALIFICATIONS AND EXPERIENCE REQUIRED FOR THE POST TO BE FILLED . IN THE LIGHT OF THAT REPORT AND AFTER EXAMINING THE CANDIDATES ' QUALIFICATIONS AND MERITS , THE COMMISSION APPOINTED MR L . TO THE VACANT POST .

12 IN THOSE CIRCUMSTANCES , IT MUST BE STATED THAT THE APPLICANT HAS NOT SUBMITTED TO THE COURT ANY FACTORS CAPABLE OF ESTABLISHING THAT THE COMMISSION HAD COMMITTED A MANIFEST ERROR OF JUDGMENT IN CONSIDERING THAT MR L . FULFILLED THE CONDITIONS IN THE VACANCY NOTICE AND IN APPOINTING HIM TO THE POST TO BE FILLED , AND THAT IT THEREFORE DID NOT EXCEED THE LIMITS OF THE POWER CONFERRED UPON IT .

13 SO FAR AS THE ALLEGED INADEQUACY OF REASONS GIVEN FOR THE DECISION IS CONCERNED , THE COURT HAS ALREADY STATED IN ITS JUDGMENT OF 30 OCTOBER 1974 , CITED ABOVE , ON THE ONE HAND THAT THERE IS NO NEED FOR A DECISION PROMOTING AN INDIVIDUAL TO BE REASONED AND ON THE OTHER HAND THAT , WHILST THE DUTY TO GIVE REASONS FOR A DECISION REJECTING A COMPLAINT APPLIES EVEN IN THE CASE OF A CONTESTED PROMOTION , THE REASONS TO BE GIVEN IN THAT CASE WILL BE CONCERNED ONLY WITH FULFILMENT OF THE LEGAL CONDITIONS ON WHICH , UNDER THE STAFF REGULATIONS , THE VALIDITY OF THE PROMOTION DEPENDS . THAT DOES NOT MEAN THAT THE COMMISSION MUST SET OUT IN DETAIL IN WHAT WAY IT CONSIDERED THAT THE APPOINTED CANDIDATE FULFILLED THE CONDITIONS IN THE VACANCY NOTICE . THE DECISION OF 17 APRIL 1980 REJECTING THE APPLICANT ' S COMPLAINT WAS THEREFORE SUFFICIENTLY REASONED .

14 IT FOLLOWS THAT THE SECOND SUBMISSION MUST BE REJECTED .

15 WITH REGARD TO THE FIRST SUBMISSION , IT IS TRUE THAT IN THE COURSE OF ITS MEETING OF 28 FEBRUARY 1979 THE COMMISSION TOOK A SERIES OF DECISIONS CONCERNING THE INTERNAL ORGANIZATION OF DIRECTORATE-GENERAL VIII . THOSE DECISIONS RESULTED INTER ALIA IN THE TRANSFER OF THE VACANT A 3 POST FROM DIVISION B 2 TO DIVISION C 3 . THE APPLICANT INFERS FROM THIS THAT THE COMMISSION WAS GUILTY OF A MISUSE OF POWERS IN APPOINTING MR L . TO THE VACANT POST . IN THIS REGARD HE REFERS TO A PERSONAL LETTER WHICH WAS WRITTEN BY A MEMBER OF THE COMMISSION IN REPLY TO A LETTER SENT TO HIM , WHICH DREW HIS ATTENTION TO THE APPLICANT ' S APPLICATION FOR THE POST . IN THAT LETTER , THE COMMISSIONER , HAVING ACKNOWLEDGED THE APPLICANT ' S QUALITIES , STATED THAT ANOTHER CANDIDATE ' ' WHOSE QUALITIES ARE EQUALLY OUTSTANDING ' ' AND ' ' WHOSE TRANSFER MET WIDER REQUIREMENTS AS TO THE REORGANIZATION OF SEVERAL DIVISIONS OF THE DIRECTORATE-GENERAL ' ' HAD BEEN CHOSEN .

16 HOWEVER , IT SHOULD BE POINTED OUT THAT , WHEN A CANDIDATE FULFILS ALL THE CONDITIONS IN THE VACANCY NOTICE , THE APPOINTING AUTHORITY MAY APPOINT HIM RATHER THAN ANOTHER EQUALLY WELL-QUALIFIED CANDIDATE FOR REASONS RELATING TO THE INTEREST OF THE SERVICE , WITHOUT THAT APPOINTMENT ' S CONSTITUTING A MISUSE OF POWERS . THE APPLICANT DOES NOT PUT FORWARD ANY ARGUMENT CAPABLE OF SHOWING THAT THE DECISION MAKING THE APPOINTMENT WAS TAKEN FOR REASONS WHICH WERE INCOMPATIBLE WITH THE CHOICE OF THE CANDIDATE WHO BEST COMPLIED WITH THE INTEREST OF THE SERVICE AND THE CONDITIONS OF THE POST TO BE FILLED . THEREFORE THE APPLICANT ' S SUBMISSION CANNOT BE ACCEPTED .

17 IN HIS THIRD SUBMISSION THE APPLICANT CONTENDS THAT AT THE TIME OF THE CONTESTED DECISION THE COMMISSION DID NOT HAVE HIS PERIODIC REPORT FOR THE PERIOD FROM 1975 TO 1977 . IT IS ALSO TRUE THAT , ACCORDING TO THE CASE-LAW OF THE COURT , PERIODIC REPORTS CONSTITUTE ESSENTIAL FACTORS FOR ALL DECISIONS CONCERNING AN OFFICIAL ' S CAREER .

18 HOWEVER , IT APPEARS FROM THE FILE THAT THE REPORT WAS DRAWN UP BY THE COMPETENT REPORTING OFFICER ON 5 DECEMBER 1977 , THAT IT WAS TRANSMITTED TO THE APPLICANT SO THAT HE MIGHT READ AND COUNTERSIGN IT , AND THAT HE LATER REQUESTED AN INTERVIEW WITH HIS REPORTING OFFICER . AS A RESULT OF THAT INTERVIEW , THE REPORTING OFFICER CHANGED HIS REPORT AND IN APRIL 1978 DREW UP A NEW REPORT WITH FOUR COPIES AND TRANSMITTED THEM TO THE APPLICANT WHO KEPT THEM AND STILL HELD THEM AT THE TIME WHEN THE APPLICATION TO THE COURT WAS MADE . THIS SHOWS THAT THE CANDIDATE HIMSELF DID NOT CONSIDER THAT IT WAS NECESSARY FOR THE ASSESSMENT OF HIS QUALITIES FOR PURPOSES OF THE POST TO BE FILLED THAT THAT DOCUMENT SHOULD APPEAR IN HIS FILE .

19 UNDER THOSE CIRCUMSTANCES THE APPLICANT MAY NOT RELY ON THE ABSENCE OF THE PERIODIC REPORT FOR THE PERIOD MENTIONED , AND THEREFORE THE THIRD SUBMISSION MUST ALSO BE REJECTED .

20 SINCE THE APPLICANT HAS FAILED IN ALL HIS SUBMISSIONS , THE APPLICATION MUST BE DISMISSED .

Decision on costs

21 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE , THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . HOWEVER UNDER ARTICLE 70 OF THE RULES OF PROCEDURE , COSTS INCURRED BY THE INSTITUTIONS IN APPLICATIONS BY OFFICIALS OF THE COMMUNITIES ARE TO BE BORNE BY THE INSTITUTIONS THEMSELVES .

Operative part

ON THOSE GROUNDS ,

THE COURT ( FIRST CHAMBER )

HEREBY

1 . DISMISSES THE APPLICATION ;

2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .