JUDGMENT OF THE COURT OF FIRST INSTANCE (Third Chamber)

29 February 1996

Case T-280/94

Orlando Lopes

v

Court of Justice of the European Communities

‛Officials — Rejection of candidatures for promotion — Flexible working hours — Applications for annulment and damages’

Full text in French II-239

Application for:

annulment of two decisions rejecting the applicant's candidature for promotion and of a decision refusing to authorize him to work flexible hours, as well as for compensation for the material and nonmaterial damage which he claims to have suffered as a result of his superiors' conduct and the contested decisions.

Decision:

Annulment of the decision communicated to the applicant on 11 February 1994 rejecting his candidature for the posts declared vacant by vacancy notice No CJ 68/92 and the decision rejecting complaint Cont. 12/94-R directed against that decision; for the rest, application dismissed.

Abstract of the Judgment

The applicant was a candidate for one of the two posts of principal lawyer-linguis in the Portuguese Translation Division declared vacant by vacancy notice No C. 68/92, published on 2 December 1992.

After it had carried out a comparative examination of the candidatures received and found that none of them fulfilled the requirements of vacancy notice No C J 68/92. the Administrative Committee of the Court of Justice decided at its meeting on 15 March 1993‘to reject the candidatures submitted ... and to suspend the procedure for filling those two posts’. Each of the candidates was advised of the rejection oi his candidature (that decision is the subject-matter of the action brought by the applicant in Case T-547/93).

The applicant subsequently applied for one of the two posts of principal lawyer-linguist in the Portuguese translation division declared vacant by vacancy notice No CJ 82/93, published on 20 December 1993.

In parallel with the procedure for filling the posts referred to in vacancy notice No C J 82/93, the Court's Administrative Committee resumed the procedure for filling the posts referred to in vacancy notice No CJ 68/92, not by publishing a new vacancy notice, but by reexamining the candidatures initially received. After that joint examination the Administrative Committee appointed, as principal lawyer-linguists, two of the candidates to the posts declared vacant by vacancy notice No CJ 68/92, and two of the candidates to the posts declared vacant by vacancy notice No CJ 82/93. The applicant was advised of the rejection of his candidature for those posts in two memoranda dated 11 February 1994. He lodged a complaint against those two decisions, registered under Cont. 12/94-R, which was rejected by the Court's decision of 27 June 1994.

The Registrar of the Court also refused to give the applicant authorization to work flexible working hours in order to be able to follow courses at the University of Trier. He brought a complaint against that refusal, which was registered under Cont. 2/94-R and rejected by the Court's decision of 29 April 1994.

The defendant's application for the exclusion from the file of a memorandum of 24 June 1987

As an annex to his reply, the applicant submitted a document from the file in another case pending before the Court of First Instance. The defendant requests that this document be withdrawn from the file, since it infringes the rule that the file in a case pending before the Court of First Instance is confidential.

The Court of First Instance considers that an official working within the institution is not entitled to consult the files in pending cases, except where such consultation is related to the specific tasks entrusted to him — which is not the case here. Any other interpretation might render ineffective the third paragraph of Article 5 of the Instructions to the Registrar of the Court of First Instance of 3 March 1994, under which only the lawyers or agents of the parties to the case in question or persons duly authorized by them may have access to the file of a case pending before the Court.

In the specific circumstances of this case, however, the Court considers that the document at issue should not be withdrawn from the file. The file contains a report relating to the ability, efficiency and conduct of the applicant, within the meaning of Article 26 of the Staff Regulations, which should therefore have been communicated to him and placed in his personal file. Moreover, the applicant relies on that document as proof of a misuse of powers to his detriment.

The claim for annulment

The plea oflack of legal basis, referring specifically to the annulment of the decision rejecting the applicant's candidature for the posts forming the subject-matter of vacancy notice No CJ 68/92, communicated on 11 February 1994

The plea raises the question whether the appointing authority, after rejecting all candidatures for a post declared vacant, is entitled to resume its examination of those candidatures with a view to adopting a new decision in the light of the requirements of the original vacancy notice, but taking into account changes which have in the meantime occurred in the capacities or qualifications of the candidates.

By proceeding in that way, the appointing authority gives itself an opportunity to fill a vacant post by appointing candidates who did not satisfy the conditions laid down by the original vacancy notice, both at the final date for lodging their candidatures and when their merits were compared, which was the reason for which the appointing authority had correctly rejected them. Since the appointing authority's intention is to make its choice on the basis of that original, extended notice, the use of such a procedure amounts to a retroactive relaxation of the conditions laid down in that notice, to the advantage of those candidates alone. The Court considers that, in acting in that manner, the appointing authority is in breach of its obligation meticulously to observe the requirements set out in the vacancy notice, which constitutes the legal framework which it imposes on itself.

See: C-35/92 P Parliament v Frederiksen [1993] ECR I-991; T-45/91 McAvoy v Parliament [1993] ECR II-83

If, in the absence of candidates satisfying the conditions laid down by the vacancy notice at the date of its publication, the appointing authority could simply wait until their capacities had developed and then resume its examination of their candidatures alone, it would exclude from selection officials who, having correctly evaluated their capacities, had not applied for the post at that date. Such an exclusion might affect persons whose qualifications had in the meantime become comparable or even superior to those of the officials who had prematurely applied for the post. Such a result would be manifestly contrary to the purpose of the first paragraph of Article 27 and Article 29(1) of the Staff Regulations, namely to recruit officials of the highest standard of ability and to fill vacant posts on that basis. Moreover, the appointing authority would thereby disregard the essential role played by the vacancy notice, which is to give those interested the most accurate information possible about the conditions of eligibility of the post to enable them to judge for themselves whether they should apply for it.

See: 188/73 Grassi v Council [1974] ECR 1099; T-56/89 Bataille and Others v Parliament [1990] ECR II-597, para. 48; T-156/89 Valverde Mordt v Court of Justice [1991] ECR II-407, para. 62

The Court considers that in those circumstances the appointing authority was not entitled to resume its examination of the candidatures which it had initially rejected.

The pleas for annulment of the decision rejecting the applicant's application f or the posts which were the subject-matter of vacancy notice No CJ 82/93

The Court considers that the applicant's five pleas alleging breach of rules of competence, of Articles 26 and 43 of the Staff Regulations, of the first subparagraph of Article 45(1) of the Staff Regulations, and of the principle of career progression, are based more or less on the same arguments of facts and of law, pleadings and documents as are relied upon by the applicant in support of his action in Case T-547/93, particularly in relation to his first, second and fifth pleas in law, and that they must therefore be rejected on the same grounds as those already set out in the judgment of even date in that case.

The plea for annulment of the decision refusing to authorize flexible working hours, on the ground that it failed to state the reasons upon which it was based

The obligation to give reasons, laid down by Article 25 of the Staff Regulations is intended, on the one hand, to provide the person concerned with sufficient information to determine whether the act adversely affecting him is well founded and whether it is appropriate to bring legal proceedings before the Court, and on the other, to enable the Court to review the legality of that act.

See: 195/80 Michel v Parliament [1981] ECR 2861; T-52/90 Volger v Parliament [1992] ECR II-121; T-18/92 and T-68/92 Coussios v Commission ECRSC II-171; T-586/93 Kotzonis v Commission [1995] ECRSC II-203

The extent of that obligation must, in each case, be assessed by reference to the actual circumstances, in particular the meaning of the act, the nature of the grounds relied on and the interest which the addressee may have in receiving explanations. Thus, a decision contains a sufficient statement of reasons where it has been taken in circumstances known to the applicant, which enabled him to understand its full meaning.

See: 19/87 Hecq v Commission [1988] ECR 1681; T-36/93 Ojha v Commission [1995] ECRSC II-497

In the present case, the legal reason given by the defendant for its refusal was that the possibility of working according to a flexible timetable in the way requested was not provided for by any provision of the Staff Regulations or by any general not consider that it was legally empowered to grant an authorization of the type requested by the applicant, the defendant did not have any discretion and was consequently not obliged to give reasons for the expediency of its decision. The requirement that reasons be stated should not be confused with review of the lawfulness of the decision's substance, with which the applicant's second plea in this case is concerned.

Tlie plea for annulment of the decision refiising authorization to work flexible working hours on the ground of infringement of Article 24(3) of the Staff Regulations and of its general implementing provisions

The first sentence of the second paragraph of Article 55 provides that the normal working week of officials may not exceed 42 hours, determined in accordance with a general timetable laid down by the appointing authority. It is clear from the fourth indent of Article 2(1) of the decision of the Court of Justice on the appointing authority that it is the Court of Justice which has the power to fix that general timetable.

The third paragraph of Article 24 of the Staff Regulations, which provides that the Communities are to facilitate such further training and instruction for officials as is compatible with the proper functioning of the service and is in accordance with their own interests, does not permit a derogation from the general working hours so determined. In that regard, the Staff Regulations merely stipulate, in Article 57 in conjunction with the second paragraph of Article 6 of Annex V, that the institution may grant special leave within the limits laid down in the further training and instruction programme drawn up by the institution pursuant to the third paragraph of Article 24 of the Staff Regulations.

It is, moreover, undisputed that the expression ‘flexible working hours’ refers to a method of organizing and managing the working hours of officials which, at the material time, was provided for neither by the Staff Regulations nor by the general timetable fixed by the Court of Justice, nor by any other general implementing decision adopted by the appointing authority. Inasmuch as the defendant considers that the introduction of flexible working hours would be difficult to reconcile with the requirements of the proper functioning of its service, the Court points out that the institutions have a broad discretion in organizing their departments according to the tasks entrusted to them.

See: Hecą v Commission, cited above; T-80/92 Turner v Commission [1993] BCR II-1465

The provisions of the first paragraph of Article 56 of the Staff Regulations, in conjunction with the eighth indent of Article 5(1) of the decision of the Court of Justice on the appointing authority, under which night-work and work on Sundays or public holidays may not be authorized except in accordance with the procedure laid down by the Registrar, aims to protect the interests of officials in very specific situations, of urgency or an extraordinary increase in work, in which the interests of the institution require such working hours. To use those provisions to authorize the type of flexible working hours which the applicant requested, would be to use them for a purpose wholly different from their intended purpose.

The claim for compensation

In the circumstances of the present case, the Court of First Instance considers that annulment of the contested act will be sufficient compensation for the damage suffered by the applicant as a result of the second decision to reject his application for the posts referred to in vacancy notice No C J 68/92, notified on 11 February 1994.

For the rest, the Court observes that the application for compensation seeks reparation of the damage allegedly caused by acts adversely affecting the applicant, whose annulment is also requested, and by measures preparatory to those acts. The application for compensation is therefore closely linked to the application for annulment, so that dismissal of the latter application must entail dismissal of the application for compensation.

Operative part:

The defendant's application of 10 January 1995 for withdrawal from the file of a document annexed to the reply in Case T-280/94 and of certain passages relating thereto is dismissed.

The defendant's decision communicated to the applicant on 11 February 1994 rejecting his application for the post declared vacant by notice No CJ 68/92 is annulled and its decision of 27 June 1994 is annulled in so far as it rejects the part of complaint Cont. 12/94-R against that decision.

The remainder of the application is dismissed.