JUDGMENT OF THE COURT OF FIRST INSTANCE (Fourth Chamber)

16 October 1996

Case T-37/94

Dimitrios Benecos

v

Commission of the European Communities

‛Officials — Reinstatement — Establishment of the level of a post — Act adversely affecting an official’

Full text in French II-1301

Application for:

annulment of the Commission's decision classifying in Grade A 5 post COM/022/93 Head of Unit 4 (Technical Group on Infrastructure) in Directorate E (East and Southern Africa) of Directorate-General VIII (Development) and for annulment of all subsequent decisions, namely, inter alia, the decision rejecting the applicant's candidature and the decision appointing Mr G. to the abovementioned post.

Decision:

Application dismissed.

Abstract of the Judgment

On 1 January 1983 the applicant entered the service of the Commission and was assigned to the Directorate-General for Development (DG VIII) as Head of Division in Grade A 3.

On 1 June 1989 he interrupted the performance of his duties at a time when he was acting as Head of Unit 4 (Technical Group on Infrastructure) of Directorate E (East and Southern Africa) of DG VIII (Unit VIII.E.4).

On 1 September 1992 he was reinstated in DG VIII as an Adviser. He then endeavoured on a number of occasions to secure the assignment to him of the duties of head of an operational unit. All those endeavours proved fruitless.

Following the applicant's departure on 1 June 1989, the Commission published a vacancy notice in respect of the post of Head of Unit VIII.E.4, under reference COM/147/90. At a meeting held on 7 December 1990 the Advisory Committee on Appointments (ACA), the advisory body which, pursuant to the decision of 19 July 1988 on the procedure for filling middle-management posts, is required to issue an opinion to the appointing authority when a post of head of unit is to be filled, considered the level at which the post to be filled should be classified and the qualifications required of the person appointed. The ACA concluded that ‘as regards the level of Head of Unit VIII.E.4 Technical Group on Infrastructure, that post should be filled at level A3’.

On 31 October 1991 the Commission created a post of Deputy Head of Unit VIII.E.4, to which it appointed the official who had acted as deputy to the head of that unit for a number of years.

On 25 March 1993, pursuant to Articles 4 and 29(1 )(a) of the Staff Regulations of Officials of the European Communities (Staff Regulations), the Commission published, under reference COM/022/93, a vacancy notice in respect of the post of Head of Unit VIII.E.4 (Vacancy Notice COM/022/93). The notice stated only that the Head of Unit VIII.E.4 would have ‘responsibility for directing and coordinating the work’.

The applicant applied for that post within the prescribed period.

The AC A met on 17 June 1993 and reached tire conclusion that the post should be filled by an official in Grade A 5/A 4, having regard to the particular importance of the unit in terms of its tasks and size. It then considered an application for reinstatement from an official of the Commission in Grade A 5, Mr G.

In the bulletin Vacances d'emploi No 24 of 24 June 1993 the staff were informed that Vacancy Notice COM/022/93 had been cancelled. The decision to cancel the vacancy notice was also communicated to the applicant in a standard form dated 29 June 1993, stating ‘cancellation of vacancy notice (see VE No 24 of 24 June 1993)’.

By letter of 7 July 1993 the applicant's lawyer asked the appointing authority to communicate the reasons on which the Commission's decision to cancel the vacancy notice had been based.

By letter of 30 July 1993 the Commission's Director General for Personnel and Administration replied in the following terms:

‘As is the case whenever a post of head of unit is to be filled, and on the basis of the usual criteria, the Advisory Committee on Appointments (ACA) first considered the level at which the post in question should be filled and stated its opinion that it should be filled at level A 5/A 4.

Because of the priority given to applications for reinstatement from officials who have taken leave on personal grounds, the ACA took note of the formal application from a Grade A 5 official to be reinstated in that post and considered his candidature first. After doing so the ACA expressed the opinion that the official satisfied the requirements of the post and recommended that he be reinstated pursuant to Article 40 of the Staff Regulations. It was therefore in the context of that reinstatement that the publication of the vacancy notice was cancelled.

Furthermore, I confirm that the Commission did not offer to reinstate that official in a post in Directorate-General XVII ...’.

By letter of 14 September 1993 the applicant's lawyer asked the Commission to provide him with the date of the meeting of the ACA, the criteria employed to determine that the level of the post in issue was Grade A 5 and the date of the meeting of the Commission at which the ACA's opinion was endorsed.

On 11 October 1993 the Commission replied in tlie following terms:

‘As I informed you in my letter of 30 July 1993, following the publication of the vacancy notice the AC A, at its meeting of 17 June 1993, first considered the level at which the post in question should be filled and expressed the opinion that it should be filled at level A 5/A 4.

The ACA then noted that there was a formal application for reinstatement in that post from an official on leave on personal grounds and expressed the opinion that the official in question satisfied the requirements of the post. The ACA therefore recommended that that official should be reinstated in that post and that the vacancy notice should be cancelled.

The decision to fill the post was adopted on 8 September 1993 by the Member of the Commission responsible for staff matters following the so-called “six-day” procedure ...’.

On 24 September 1993 the applicant lodged a complaint with the appointing authority against the Commission's decision to classify the post of Head of Unit VIII.E.4 as Grade A 5, the decision to cancel vacancy notice COM/022/93 to enable a Grade A 5 official on leave on personal grounds to be reinstated and all subsequent decisions adopted by the Commission, in particular the decision appointing Mr G. to the post in question.

That complaint was rejected by implied decision on 24 January 1994.

Admissibility

The decision to fill the post of Head of Unit VIII.E.4 at Grade A 5/A 4 (contested decision) forms the principal subject of the application (paragraph 30).

Since it was adopted on 8 September 1993, the contested decision did not form part of the procedure for filling the post of Head of Unit VIII.E.4, which was opened pursuant to Articles 4 and 29(1) of the Staff Regulations by the publication of Vacancy Notice COM/022/93 and closed by the decision cancelling that notice published on 24 June 1993 in the bulletin Vacances d'emploi No 24 (paragraphs 31 and 32).

None the less, the contested decision affects the applicant's legal position and his position under the Staff Regulations and is therefore an act adversely affecting him within the meaning of Article 90(2) of the Staff Regulations, in so far as it enabled a Grade A 5 official on leave on personal grounds to be appointed in accordance with the provisions on priority reinstatement and thus prevented the applicant from being appointed to the vacant post (paragraph 33).

Substance

First plea in law: infringement of the second paragraph of Article 25 of the Staff Regulations

The requirement of a statement of reasons must be considered in the context of the circumstances of the case, in particular the content of the measure, the nature of the reasons relied on and the interest which the addressee may have in receiving an explanation (paragraph 38).

See: T-18/92and T-68/92 Coussiosv Commission [1994] ECRSC II-171, para. 45

In this case the scope of the obligation to state reasons may be defined with reference to the case-law on the obligation to provide unsuccessful candidates with reasons for decisions on promotion, although the contested decision was adopted outside a promotion procedure. The contested decision concerns a comparable factual situation, since its effect is to preclude the applicant from the ranks of candidates eligible for appointment to the vacant post. The appointing authority is not under an obligation to provide unsuccessful candidates with reasons for its decisions on promotion. On the other hand, 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 rejecting the complaint being deemed to be identical to those of the decision against which the complaint was directed (paragraph 39).

See: Coussios v Commission, cited above, para. 69

In this case the appointing authority was therefore not required to state the reasons on which the contested decision was based, but it was under an obligation to state its reasons for rejecting the applicant's complaint against that decision. However, the complaint lodged on 24 September 1993 was not rejected by express decision either before or after the proceedings before the Court were initiated (paragraph 40).

It should be considered, however, whether the Commission informed the applicant of the grounds of the contested decision other than by way of express decision rejecting his complaint of 24 September 1993 (paragraph 41).

Having regard to the content of the Commission's letters to the applicant of 30 July 1993 and 11 October 1993, it is not open to the applicant to claim that there had been a total failure to state the reasons for the contested decision at the time when he brought these proceedings, since the Commission had informed him of the criteria which the ACA had employed in arriving at its opinion on the level at which the post in question should be filled (paragraphs 42 to 44).

Although it is not the case that the Commission provided no reasons whatsoever for the contested decision, the reasons given cannot be described as sufficient. They fail to indicate why the assessment of the criteria previously applied in filling the post at Grade A 3 had changed, although the applicant had expressly raised that point in his complaint of 24 September 1993 (paragraph 45).

Consequently, the Court must ascertain whether any further particulars of such a nature as to make up for the lack of reasoning noted above have been put forward in the course of the present proceedings. In that regard, the Commission has stated that what led it to adopt the contested decision was a new approach to development policy, which involved a change in the administrative organization of Unit VIII.E.4. The applicant was thus in a position to verify the merits of that explanation in the course of these proceedings. That explanation also enables the Court to exercise its power of judicial review (paragraph 46).

See: T-25/92 Vela Palacios v ESC [1993] ECR II-201, para. 26; T-16/94 Benecos v Commission [1995] ECRSC II-335, para. 36

Second plea in law; unlawfulness of the decision of 19 July 1988 and infringement of Articles 5(4) and 7(1) of the Staff Regulations

The contested decision, which was adopted on 8 September 1993, did not form part of the procedure for filling the post of Head of Unit VIII.E.4, which was opened pursuant to Article 29(1) of the Staff Regulations by the publication of Vacancy Notice COM/022/93 and closed by the decision cancelling that notice published on 24 June 1993 (paragraph 52).

It follows that the second plea in law is inoperative in so far as it complains that the decision of 19 July 1988 enabled the level of a vacant post to be determined at a time when the appointing authority was in possession of the candidates' identities and files; that situation did not arise in this case, as the appointment to the post of Head of Unit VIII.E.4 was not made by transfer or promotion (paragraph 53).

It should therefore first be considered whether the decision of 19 July 1988 infringes the principle of equivalence between post and grade. In that regard, this Court had occasion in Kratz v Commission to explain that there was nothing to prevent posts of head of unit from being filled at Grades A 3, A 4 or A 5, depending on the importance of die tasks entrusted to the unit concerned. Article 7 of and Annex I to the Staff Regulations do not require that posts of head of unit necessarily be filled at Grade A 3 (paragraph 54).

See: T-10/94 Kratz v Commission [1995] ECRSC II-315, para. 53

Secondly, the Court finds that, by claiming that a decision determining the level at which a post is to be filled in the event of reinstatement pursuant to Article 40(4)(d) of the Staff Regulations must also be supported by objective reasons, the applicant is requesting the Court to verify whether the contested decision complies with the principle of equivalence between post and grade resulting from Articles 5(4) and 7(1) of the Staff Regulations and the general principles governing the public service (paragraph 55).

For that purpose, the Court must consider whether the contested decision is based on objective factors showing that the determination of the level at which the post in question was to be filled reflected the importance of the tasks entrusted to the unit in question. However, review of a decision determining the level at which a post is to be filled must be limited to the question whether, having regard to the considerations which may have been decisive for the administration in making its assessment, the administration remained within reasonable bounds and did not use its power in a manifestly incorrect way (paragraph 56).

See: 324/85 Bouteiller v Commission [1987] ECR 529, para. 6; 233/85 Bonino v Commission [1987] ECR 739, para. 5; T-82/91 Latham v Commission [1994] ECRSC II-61, para. 47

In this case account should be taken of the various factors relied on by the applicant in connection with his first plea in law (paragraph 57).

In that regard, neither the decision whereby the Commission originally set the level of the post of Head of Unit VIILE.4 at Grade A 3 nor the decision whereby it subsequently set the level of a similar post at Grade A 3 implies that the Commission deprived itself of the possibility of changing the classification of those posts at a later date to take account of, for example, a new staff management policy within the Directorate-General in question. The mere fact that there had previously been a different assessment does not constitute evidence that the bounds of the Commission's wide discretion in such matters were exceeded or that that discretion was exercised in a manifestly incorrect manner (paragraph 58).

Similarly, the fact that the other officials in the unit in question were, apart from one exception, in a higher grade than their immediate superior does not constitute concrete evidence that the bounds of that wide discretion were exceeded or that it was exercised in a manifestly incorrect manner (paragraph 59).

In this case the contested decision is based on objective factors. The Commission claimed that a different conception of development policy, aimed at according greater priority to integrated development aid projects than to specific aid projects, called for a different administrative organization within the Directorate-General in question. Such a change in administrative organization may affect the factors taken into account when the level of the post in question is determined, such as the political dimension of the activity of Unit VIII.E.4 and the level of the persons to be dealt with internally or externally, the level of support necessary for the unit's activities, the budget funds available and the priorities of the Commission (paragraph 60).

Consequently, the factors relied on by the applicant do not show that in adopting the decision in issue the Commission used its power in a manifestly incorrect manner (paragraph 61).

Third plea in law: infringement of Articles 27, 29 and 45 of the Staff Regulations

The contested decision does not infringe Article 27 of the Staff Regulations. The level of a post is determined before the post is assigned to one of the candidates. It is clear from the very wording of Article 27 that that provision refers only to the final stage, namely the assignment, to one of the candidates, of a post whose level has already been determined (paragraph 68).

Nor have Articles 29 and 45 of die Staff Regulations been infringed in this case, since the contested decision did not form part of the procedure to fill the post of Head of Unit VIII.E.4 (paragraph 69).

Lastly, as regards the alleged infringement of Article 45 of the Staff Regulations, which lays down the principle of the collegiate nature of decisions of the Commission, it should be pointed out that in Benecos v Commission, cited above, this Court dismissed the same argument, pointing out that the so-called ‘six-day procedure’ merely substituted a written procedure for an oral procedure, if the College of Commissioners unanimously decided to use it, and did not in any way adversely affect an official's right to have his file examined by each of its members (paragraph 71).

Fourth plea in law: unlawfiilness of the vacancy notice

The fourth plea in law is devoid of purpose, since the contested decision did not form part of the procedure for filling the post of Head of Unit VIII.E.4 (paragraph 75).

Costs

In this case the Court finds that there was insufficient reasoning at the stage of rejection of the complaint, which was only made good in the proceedings before the Court. It was necessary to bring the action because of that lack of reasoning. Consequently, the Commission must be ordered to pay the applicant's costs in addition to its own costs, pursuant to the second subparagraph of Article 87(3) of the Rules of Procedure.

Operative part:

The application is dismissed.

The Commission is ordered to pay the costs.