JUDGMENT OF THE COURT OF FIRST INSTANCE (Fifth Chamber)

9 June 1998

Case T-176/97

Alan Hick

v

Economic and Social Committee of the European Communities

‛Officials — Promotion — Official made available to work in the department in which he was previously employed — Secondment in the interests of the service — Misuse of powers’

Full text in French II-845

Application for:

annulment of Decision No 439/96 A of the Economic and Social Committee of 30 September 1996 promoting Mr J. to Grade A 3 and appointing him Head of the Division for Social, Family, Educational and Cultural Affairs in Directorate B — Consultative Work of the European Economic and Social Committee and also of the decision of the same date rejecting the applicant's candidature for that post.

Decision:

Application dismissed.

Abstract of the Judgment

The applicant is a Grade A 4 official in the Division for Social, Family, Educational and Cultural Affairs (Social Affairs Division) in Directorate B — Consultative Work of the Economic and Social Committee of the European Communities (ESC).

Following the death of the head of that division in April 1996 the applicant was appointed acting Head of Division.

Following the publication on 18 June 1996 of Vacancy Notice No 8/96 to fill the post as Head of Division, the appointing authority received nine applications. Three, including the applicant's, were expressly submitted with a view to participation in an internal competition within the meaning of Article 29(l)(b) of the Staff Regulations of Officials of the European Communities (Staff Regulations).

The appointing authority did not hold an internal competition. By Decision No 439/96 A of 30 September 1996 it appointed Mr J. to the post by promotion within the meaning of Article 29(l)(a) of the Staff Regulations, with effect from 1 October 1996. By Decision No 440/96 of the same date the appointing authority made Mr J. available to the Directorate-General for Consultative Work, Specialised Department for Delegations (Delegations Department) for a period of one month.

By lener of the same date the President of the ESC informed the applicant that his application had not been successful.

On 30 October 1996 Mr Tom Jenkins was elected president of the ESC. On the same date the Directorate for Personnel of the ESC announced that Mr. J. was to be seconded, in the interests of the service, to the President's office. By Decision No 497/96 A of 8 November 1996 Mr J. was seconded as Chef de Cabinet to the Secretariat of the President with immediate effect, until the end of the newly elected President's term of office.

By Decision No 563/96 A of 23 December 1996 the appointing authority called upon the applicant to serve as acting Head of Division while Mr J. was on secondment; the decision took effect on 1 November 1996.

On 24 December 1996 the applicant submitted a complaint within the meaning of Article 90(2) of the Staff Regulations against, first, Decision No 439/96 A of 30 September 1996 appointing Mr J. to the post of Head of Division of the Social Affairs Division and, second, the decision rejecting his application.

On 22 April 1997 the appointing authority rejected the applicant's complaint. It pointed out that it had taken the decision to make Mr J. available to the Delegations Department ‘in the interests of the service, having taken account of the fact that this was the post previously occupied by Mr J., of the unit's current workload and of the fact that it was understaffed’ and so that work in progress might be completed. The appointing authority also pointed out that decision to second Mr J. as Chef de Cabinet in the Secretariat of the President was taken by the President in his capacity as appointing authority, in the interests of the service, pursuant to Article 35(b) and the second indent of subparagraph (a) of the first paragraph of Article 37 of the Staff Regulations.

Substance

The single plea put forward alleges an infringement of Article 4(1) and Article 27 of the Staff Regulations and a misuse of powers in the form of an abuse of procedure.

Essentially, the applicant claims that the appointment complained of was not made to fill a post in the conditions provided for in the Staff Regulations and that, accordingly, it amounts to a misuse of powers consisting in an abuse of procedure (paragraph 26).

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 with the exclusive purpose, or at any rate the main purpose, of achieving an end other than that stated or of evading a procedure specifically prescribed by the Treaty for dealing with the circumstances of the case (paragraph 27).

See: The Queen v The Minister for Agriculture, Fisheries and Food and the Secretary of State for Health, exparte: Fedesa and Others [1990] ECR I-4023, para. 24; T-589/93 Ryan-Sheridan v EFILWC [1996] ECRSC II-77, para. 117

On examining the evidence adduced in the present case to substantiate the alleged misuse of powers, the Court finds:

— the applicant has failed to support his claims that the results of election of Mr Jenkins were already known in April 1996 and that Mr J. informed the applicant of his intention never to take up his duties as Head of the Social Affairs Division;

— neither the decision to make Mr J. available to his previous department nor the decision to second him, nor any other evidence before the court, corroborates the applicant's claim that the post referred to in Vacancy Notice No 8/96 was transferred to the Delegations Department;

— even on the assumption that it is established, the fact that the ESC envisaged on 30 October 1996, the actual day on which the appointment complained of was made, seconding the official promoted to the office of the President of the ESC does not permit the conclusion that the ESC exercised its powers for the puipose of achieving an end other than that stated, since it would be contrary to the Staff Regulations to proscribe the secondment of a newly appointed official or to prohibit a promotion on the ground that the official concerned might be seconded in the interests of the service following his appointment;

— the fact that Mr J. has not yet carried out the duties of Head of the Social Affairs Division does not give rise to a presumption that when it appointed him the appointing authority never intended that he should carry out the duties associated with that post;

— the applicant has not contradicted the explanation provided by the ESC at the hearing concerning the fact that Mr J. did not carry out his duties in the Social Affairs Division during the period 1 to 7 November 1996;

— it has not been established that Mr J.'s secondment was contrary to the interests of the service owing to the problems experienced in the Delegations Department and the Social Affairs Division; in that regard, the institutions have a broad discretion to organise their departments to suit the tasks entrusted to them and to assign the staff available to them in the light of such tasks, provided, however, that such assignment is made in the interests of the service and conforms with the principle of assignment to an equivalent post. Any problems which might be caused to his former department by the departure of an official and the benefit to his new department which might be obtained from his reassignment are considerations which are governed by the same discretion (paragraphs 28 to 37).

See: 176/82 Nebe v Commission [1983] ECR 2475, para. 18; T-80/92 Turner v Commission [1993] ECR II-1465, para. 53; T-13/95 Kyrpitsis v ESC [1996] ECRSC II-503. paras 55 and 56

Operative part:

The application is dismissed as unfounded.