JUDGMENT OF THE COURT OF FIRST INSTANCE (Fifth Chamber)

14 October 2003

Case T-174/02

Micole Wieme

v

Commission of the European Communities

‛Officials — Vacancy notice — Assessment of the candidates' merits — Manifest error of assessment — Abuse of power’

Full text in French II-1165

Application for:

annulment of the Commission Decision of 13 July 2001 rejecting the applicant's application for the post of head of unit ‘Legal affairs and control of the application of Community provisions' of the ’General Matters' Directorate of the Taxation and Customs Union Directorate General.

Held:

The action is dismissed. Each party is ordered to bear its own costs.

Summary

Officials — Actions — Prior administrative complaint — Requirement that subject-matter and grounds be the same — Pleas in law and arguments not appearing in the complaint, but closely linked to it — Admissible — Consistency between complaint and application — Consideration by the Court of its own motion

The rule that there should be harmony between a complaint, within the meaning of Article 90(2) of the Staff Regulations, and the action which follows requires that, for a plea before the Community judicature to be admissible, it must have already been raised in the pre-litigation procedure, enabling the appointing authority to know in sufficient detail the criticisms made by the person concerned of the contested decision. Whilst claims for relief before the Community judicature may contain only the same heads of claim, based on similar matters, as those raised in the complaint, those heads of claim may nevertheless be developed before the Community judicature by the presentation of pleas in law and arguments which, whilst not necessarily appearing in the complaint, are closely linked to it. The question of consistency between the complaint and the application is a matter of public policy and should be considered by the Court of its own motion. (see para. 18) See: T-57/89 Alexandrakis v Commission [1990] ECR II-143, para. 8; T-4/92 Vardakas v Commission [1993] ECR II-357, para. 16; T-4/96 S v Court of Justice [1997] ECR II-1125, para. 98; T-187/98 Cubero Vermurie v Commission [2000] ECRSC I-A-195 and II-885, para. 35

The latitude available to the appointing authority regarding appointment presupposes a careful examination of candidates' files and meticulous regard to the requirements laid down 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 to which it must have meticulous regard. With a view to establishing whether the appointing authority exceeded the bounds of that legal framework and that it acted solely in the interests of the service, within the meaning of Article 7 of the Staff Regulations, the Court must first of all examine what conditions were laid down in the vacancy notice and then verify whether the candidate chosen by the appointing authority to occupy the vacant post actually satisfied those conditions. Such an examination must be limited to consideration of the question whether, having regard to the considerations which may have influenced it in making its assessment, the administration remained within reasonable bounds and did not use its power in a manifestly incorrect way. The Court cannot substitute its assessment of the candidates' qualifications for that of the appointing authority. (see paras 37-38) See: T-356/94 Vecchi v Commission [1996] ECRSC I-A-437 and II-1251, paras 53 and 54; T-159/96 Wenk v Commission [1998] ECRSC I-A-193 and II-593, paras 63 and 64, and the case-law cited