JUDGMENT OF THE COURT OF FIRST INSTANCE (First Chamber)

19 March 1997

Case T-21/96

Antonio Giannini

v

Commission of the European Communities

‛Officials — Appointment — Vacancy notice — Interest of the service’

Full text in French II-211

Application for:

first, the annulment of the decisions appointing Mr X as Head of the Unit ‘Negotiation and management of textiles agreements; footwear and other industries’ and rejecting the applicant's candidature for that post, and, second, compensation for the material and nonmaterial damage allegedly suffered by the applicant as a result of those decisions.

Decision:

Annulment of the Commission's decisions. For the rest, application dismissed.

Abstract of the Judgment

On 15 December 1994 the Commission of the European Communities (Commission) published a vacancy notice for die post of Head of the Unit ‘Negotiation and management of textiles agreements; footwear and other industries’ within Directorate D of the Directorate-General for External Economic Relations. The notice was worded as follows: ‘COM/151/94 A 3/A 4/A 5 I/D/I Head of the Unit responsible for negotiating and managing the agreements on textiles, footwear’. The applicant, an official in Grade A 4, and six other persons, submitted an application for the post.

By note dated 29 March 1995 the applicant was informed that the Consultative Committee on Appointments (CCN), ‘examined at its meeting on 23 March 1995 the level at which the post is to be filled and also the qualifications required of the person holding the post’, that it had ‘examined all the applications and [...] heard the Deputy Director General [...] for External Economic Relations’ and had arrived at the following conclusion:

‘— as regards the level of the post of Head of Unit “Negotiation and management of textiles agreements; footwear and other industries”, that post should be filled at A 3 level;

— as regards the examination of the applications, and after examining them, [his] application should not be taken into consideration on this occasion. ’

The Committee added that it had, ‘however, noted [his] good qualifications’.

A little later the appointing authority appointed Mr X to the abovementioned post. By note dated 28 April 1995 the applicant was informed that his application had been rejected.

The claim for annulment

The exercise of the discretion which the appointing authority enjoys in the matter of appointments presupposes a meticulous examination of the application files and a careful regard for the requirements set out 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 a legal framework which the appointing authority imposes on itself and which it must ‘meticulously respect’ (paragraph 19).

See: C-35/92 P Parliament v Frederiksen [1993] ECR I-991, paras 15 and 16

For the purpose of verifying whether the appointing authority has not acted outside the bounds of that legal framework and has thus acted exclusively in the interests of the service within the meaning of Article 7 of the Staff Regulations of Officials of the European Communities (Staff Regulations), the Court of First Instance must first establish what were, in the event, the required conditions under the vacancy notice and then verify whether the candidate chosen by the appointing authority to occupy the vacant post did indeed satisfy those conditions. Such a review does not mean that the Court of First Instance is substituting its own assessment of the candidates' merits for that of the appointing authority; it is limited to the question whether, having regard to the considerations which may have influenced the administration in making its assessment, it remained within reasonable bounds and did not use its power in a manifestly incorrect manner (paragraph 20).

See: C-233/85 Bonino \Commission [1987] ECR 739, para. 5; Parliament v Frederiksen, cited above, para. 17; T-169/85 Frederiksen v Parliament [1991] ECR II-1403, para. 69; T-82/91 Latham v Commission [1994] ECRSC II-61, para. 62

The purpose of a vacancy notice specifically consists in informing those interested, as accurately as possible, of those conditions and to establish the legal framework within which the institution proposes to consider the comparative merits of the candidates. Both the general conditions indicated in the summary of vacancy notices, under the heading ‘minimum qualifications required for transfer/promotion’ and the specific conditions indicated, as the case may be, in the description of the post concerned form part of the required conditions under the vacancy notice. Since the purpose of a vacancy notice is to give those interested the most accurate information possible, the general part and the specific part of the notice must be considered together (paragraph 21).

See: 188/73 Grassi v Council [1974] ECR 1099, para. 40; T-58/91 Booss and Fischer v Commission [1993] II-147, para. 68; T-13/95 Kyrpitsis v Economic and Social Committee [1996] ECRSC II-503, para. 34; T-356/94 Vecchi v Commission [1996] ECRSC II-1251, para. 57

It is apparent that Mr X did not possess, at the time when he submitted his application, any experience either in the textiles or in the footwear sector, or even in the general field to which the duties attaching to the post to be filled belonged, namely that of the common commercial policy (paragraph 25).

In appointing Mr X to the post concerned and in rejecting the applicant's candidature, the Commission, having regard to the considerations which may have influenced its assessment, used its power in a manifestly incorrect manner. It therefore acted outside the bounds of the legal framework which it had imposed on itself and disregarded the interest of the service within the meaning of Article 7 of the Staff Regulations (paragraph 29).

The claim for compensation

The annulment of a contested act of the administration may constitute, in itself, compensation that is appropriate and, in principle sufficient for the nonmaterial damage which the applicant official may have suffered, in particular if the act did not involve any injurious assessment with respect to the applicant. It must be held that in this case the contested decisions did not contain any expressly negative assessment of die applicant's capacities which was liable to cause injury to him (paragraph 35).

See: C-343/87 Culin v Commission [1990] ECR I-225, paras 25 to 29; T-60/94 Pierratv Court of Justice [1995] ECRSC II-77, para. 62

Operative part:

The Commission's decisions appointing Mr X to the post of Head of Unit ‘Negotiation and management of textiles agreements; footwear and other industries’ following the publication of vacancy notice COM/151/94 and dismissing the applicant's candidature for the same post are annulled.

For the rest, the application is dismissed.

The Commission shall pay the costs.