Opinion of Mr Advocate General Tesauro delivered on 15 October 1991. - Ingfried Hochbaum v Commission of the European Communities. - Officials - Promotion - Misues of power. - Case C-107/90 P.



European Court reports 1992 Page I-00157



Opinion of the Advocate-General

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Mr President,

Members of the Court,

1. By judgment of 9 July 1987, (1) upholding an application by Mr Hochbaum, this Court annulled the appointment of Mr Waterschoot as Head of Division in DG IV by reason of the fact that the Advisory Committee for appointments to grades A2 and A3 had not been consulted on the basis of complete candidates' files. Following that judgment, the Commission decided to annul vacancy notice COM/902/84, on the basis of which Mr Waterschoot had been appointed; it therefore initiated a new procedure (by notice COM/83/87), at the end of which the appointing authority reappointed Mr Waterschoot. It should be noted that both vacancy notices were drafted in identical terms.

Mr Hochbaum brought a further action before the Court of First Instance, seeking the annulment of the Commission' s decision to terminate the original procedure and annulment of the measures adopted under the new appointment procedure. The Court of First Instance dismissed that application by judgment of 14 February 1990; (2) it is against that judgment that the appeal on which this Court is called upon to adjudicate is directed.

2. Mr Hochbaum' s appeal relates only to the part of the judgment in which the Court of First Instance dismissed his third plea in law (paragraphs 21 to 26), based on misuse of powers. (3) In that plea, the then applicant had essentially contended that the Commission annulled ab initio the procedure declared partly invalid by the Court of Justice and decided to publish a fresh vacancy notice (COM/83/87) not in the general interest but purely in order to legitimize the already certain appointment of Mr Waterschoot. And in fact the latter, who at the time of the first procedure did not - according to the appellant - fulfil the requirements as to relevant experience laid down by the vacancy notice, only fulfilled those requirements subsequently, specifically because of the work done by him following the appointment which was later held to be unlawful. In support of his allegation of misuse of powers, Mr Hochbaum referred to the failure to fulfil the requirements laid down for the original procedure.

The Court of First Instance stated in reply to that argument, in general terms, that the Community judicature must limit its review to the question whether the appointing authority has used its power in a manner which is manifestly wrong; that, in the present case, there was no objective indication that Mr Waterschoot did not fulfil the requirements for a valid application (paragraph 24); and that, in any event, there was no evidence that the Commission acted with any objective in mind other than the interests of the service (paragraphs 25 and 26).

In his appeal, the appellant contends that the Court of First Instance rejected the plea as to misuse of power and thereby itself not only committed a misuse of powers but, even before that, an infringement of Article 45 of the Staff Regulations. The Commission has raised an objection of inadmissibility because, in its view, the appellant' s pleas are intended to bring about a discussion of the findings of fact made by the Court of First Instance, which is not available in appeal proceedings before the Court of Justice.

3. In his first plea, which comprises two specific allegations, the appellant contests, first, the Court of First Instance' s statement that "The appointing authority has a discretionary power of appraisal in matters of promotion and the Community judicature must limit its review to the question whether the appointing authority has used its power which is manifestly wrong" (first sentence of paragraph 24).

In Mr Hochbaum' s opinion, different limits apply to the review by the Court of the discretionary power granted by Article 45 to the appointing authority: the Court of First Instance should have considered whether the candidate chosen by the appointing authority fulfilled all the requirements of vacancy notice COM/902/84. By so alleging, Mr Hochbaum essentially challenges the Court of First Instance' s interpretation of Article 45 of the Staff Regulations as regards the limits of the discretionary power vested in the appointing authority and of the review of that power by the Court.

It should be remembered, for the purposes of this case, that Article 45 of the Staff Regulations provides that "Promotion shall be exclusively by selection from among officials who have completed a minimum period in their grade, after consideration of the comparative merits of the officials eligible for promotion and of the reports on them". That wording shows that the appointing authority enjoys a wide discretion, which, of course, must be exercised within the limits laid down by that provision. In particular, the officials concerned must fulfil the requirements to be promoted and therefore must fulfil, inter alia the requirements laid down in the vacancy notice.

In that regard, let me say straight away that the contested statement by the Court of First Instance is specifically supported by settled and consistent case law; the Court of Justice has stated on several occasions that the appointing authority enjoys a wide discretion regarding promotions and that it must therefore "restrict itself to the question whether, having regard to the considerations which guided its assessment, the administration kept within reasonable bounds and did not exercise its power in a manifestly erroneous manner". (4)

The Court of Justice has also made clear that "While the appointing authority enjoys wide discretion in this matter, there is ipso facto an assumption that the exercise of this discretion will include careful examination of the files and meticulous regard to the requirements laid down in the notice of vacancy". (5) In short, the appointing authority is required to exercise that discretion "within the self-imposed limits contained in the notice of vacancy"; (6) failure to observe the conditions laid down in that notice would in fact entail annulment of the appointment made by the appointing authority since the latter thereby "breached the self-imposed legal limits contained in that notice." (7)

However, I do not consider that the dicta just quoted conflict with the contested statement by the Court of First Instance in the present case. Indeed, if a precondition for the submission of a valid application is fulfilment of the requirements for promotion, it follows that the appointment of a candidate not qualifying for promotion, in so far as he is found entirely to lack at least one of the qualifications laid down in the vacancy notice, means that the appointing authority has exercised its discretion in a manifestly incorrect manner. However, as is apparent from previous decisions of the Court of Justice in that regard, such a finding must be based on objective information contained in the documents before the Court. (8) Where, on the other hand, there is no indication that the applications taken into account were not valid, it follows that the appointing authority' s exercise of its discretion cannot be called in question. The choice to be made under Article 45 of the Staff Regulations cannot be regarded as a compulsory choice (in other words, no choice at all): it is incumbent upon the appointing authority to choose from among candidates eligible for promotion the one who, in view of his qualifications and the duties he will be required to carry out, is the most suitable person for the vacant post. That conclusion has been confirmed by the Court of Justice which, on several occasions, has stated that it "cannot substitute its assessment of the merits and qualifications of the candidates for that of the appointing authority". (9)

4. The appellant' s criticism is therefore unfounded since - in the present case - there is no evidence of any error in the interpretation of Article 45 of the Staff Regulations given by the Court of First Instance in the first sentence of paragraph 24 of the contested judgment.

The appellant' s second criticism, set out in his first plea in law, is that the Court of First Instance stated hardly any reasons, in the light of Article 45 of the Staff Regulations and having regard to the pleas in law put forward by him in the proceedings, for its conclusion that Mr Waterschoot fulfilled the requirements laid down in the first vacancy notice. The Court of First Instance merely stated in the judgment appealed against that "there is no objective indication in the documents before the Court of First Instance that, prior to performing the tasks of Head of the State Monopolies and Public Enterprises Division, Mr Waterschoot did not satisfy the conditions required for submitting his application for the post in question" (second sentence of paragraph 24). The appellant infers from this that the Court of First Instance failed to examine the grounds of his specific complaint regarding Mr Waterschoot' s qualifications.

That statement gives the impression that the Court of First Instance, relying on the information in the documents before it and the lack of any indications to the contrary, reached the conclusion that Mr Waterschoot submitted a valid application in response to the first vacancy notice. In the abstract, I can agree with the view that the precise and specific objections made by the appellant regarding the fact that at the time of the first vacancy notice, Mr Waterschoot did not fulfil all the requirements laid down in that notice, deserved a more detailed statement of reasons.

On closer examination, however, the aspect just referred to does not appear to be decisive; in fact, the reasoning developed by the Court of First Instance even makes it appear irrelevant. I would point out that the Court of First Instance went on to say that "even if the Commission did take account of the experience acquired by Mr Waterschoot following his first appointment, that does not mean that the institution acted with any objective in mind other than the interests of the service, in such a way as to commit a misuse of powers" (paragraph 25).

Thus, the Court of First Instance not only concluded that there were no indications that Mr Waterschoot did not fulfil all the requirements laid down in the first vacancy notice but then added that, in any event, even if the Commission had taken account only of the experience acquired subsequently, no misuse of powers would thereby be established.

In view of the fact that the Court of First Instance adopted that reasoning in dealing with the plea in law alleging misuse of powers and that - essentially - it came to the conclusion that that plea could not be upheld even if it were shown that Mr Waterschoot had not, at the time of the first vacancy notice, submitted a valid application, I consider that the criticism under review is not decisive in those circumstances and, in any event, is subsumed by the second plea in law.

5. In that plea, the appellant maintains that the Court of First Instance itself misused its powers in so far as it failed to examine the true purpose of the annulment of the first vacancy notice and the consequent opening of a new competition procedure. In particular, in the appellant' s view, the Commission opened a new procedure solely in order to be able to take account of the experience acquired by Mr Waterschoot as a result of the first appointment, which was subsequently declared unlawful by the Court of Justice.

I would point out in the first place that, as the Court of Justice has reiterated many times, "a decision may amount to a misuse of powers only if it appears, on the basis of objective, relevant and consistent indications, to have been taken for purposes other than those stated". (10) In the present case, therefore, indications of a misuse of powers would be apparent if, on the basis of evidence of the kind referred to, it were proved that the decision to commence a new competition procedure was adopted for a purpose other than that of appointing the most suitable candidate to the vacant post, in particular in order to take account of the experience acquired by Mr Waterschoot in the meantime.

However, as is apparent from the judgment appealed against, the Court of First Instance found that "the proof required to establish a misuse of powers on the part of the defendant has not been adduced" (paragraph 26). In particular, as has been seen, the only argument relied on by the appellant, namely the fact that Mr Waterschoot did not fulfil the requirements of the first vacancy notice, was dismissed by the Court of First Instance because there were no objective indications that Mr Waterschoot did not fulfil those requirements (second sentence of paragraph 24); and that, in any event, acceptance of the experience acquired following an appointment subsequently declared unlawful was not sufficient to prove that, by annulling the initial decision and publishing a new vacancy notice, the Commission misused its powers (paragraph 25).

At this point, I shall merely observe that the statement made by the Court of First Instance in paragraph 25 of its judgment is not incorrect. The case for a misuse of powers cannot be based on the mere fact that account was taken of experience acquired as a result of an unlawful appointment, - such a case can only be made out if there are a number of objective and relevant indications that the Commission, in the present case, annulled the initial procedure and published a second vacancy notice for the sole purpose of taking account of such experience, which had not been acquired at the time of the first vacancy notice.

However, the Court of First Instance specifically found, in the judgment appealed against (paragraph 26), that there were no indications that that aim was pursued by the Commission in opening a new competition procedure.

The second plea in law should therefore also be rejected.

6. In view of the foregoing considerations, I suggest that the Court of Justice dismiss the appeal.

As regards the question of costs, I consider that in the present case there are clear equitable grounds for their being shared; I therefore suggest, in accordance with the second subparagraph of paragraph 2 of Article 122 of the Rules Procedure, the parties, including the intervener, should bear their own costs.

(*) Original language: Italian.

(1) - Joined Cases 44, 77, 294 and 295/85 Hochbaum and Rawes v Commission [1987] ECR 3259.

(2) - Case T-38/89 Hochbaum v Commission [1990] ECR II-43.

(3) - The applicant' s other two pleas in law before the Court of First Instance, alleging infringement of Article 176 of the Treaty and infringement of Article 25 of the Staff Regulations, are not repeated in the present appeal.

(4) - Judgment in Case 52/86 Banner v Parliament [1987] ECR 979, paragraph 9. See also, among others, the judgment in Case 26/85 Waysse v Commission [1986] ECR 3131, paragraph 26; judgment in Case 306/85 Huybrechts v Commission [1987] ECR 629, paragraph 9; and judgment in Case 111/86 Delauche v Commission [1987] ECR 5345, paragraph 18.

(5) - Judgment in Case 188/73 Grassi v Council [1974] ECR 1099, paragraph 26.

(6) - Judgment in Case 343/88 Culin v Commission [1990] ECR 225, paragraph 19.

(7) - Ibid., paragraph 22.

(8) - See for example the judgment in Case 282/81 Ragusa v Commission [1983] ECR 1245, paragraph 13; judgment in Case 52/86, cited above, paragraph 9; and the judgment in Case C-343/87 Culin, in which the Court upheld the application since it was apparent from the documents before the Court that the appointing authority had relied on a requirement not laid down in the vacancy notice as a decisive criterion for promotion (paragraph 21).

(9) - Judgment in Case 282/82, cited above, paragraph 13.

(10) - Judgment in Case 52/86, cited above, paragraph 6; see also the judgment in Case 135/87 Vlachou v Court of Auditors [1988] ECR 2091, paragraph 27.