JUDGMENT OF THE COURT OF FIRST INSTANCE (Fourth Chamber)

12 June 1997

Case T-104/96

Ludwig Krämer

v

Commission of the European Communities

‛Officials — Establishment of the level of a post — Manifest error of assessment — Error of law — Misuse of powers — Article 7 of the Staff Regulations’

Full text in French II-463

Application for:

the annulment of the vacancy notice for the post of Head of Unit XI. B. 3, classified at Grade A 5/A 4 (COM/111/95), and the annulment, in consequence, of the appointment of Mr K. to that post.

Decision:

Application dismissed.

Abstract of the Judgment

The applicant, a Commission official now in Grade A 3, has been employed in the Directorate-General for the Environment, Nuclear Safety and Civil Protection (DGXI) since 1973. From 1972 to 1973 he performed duties in the Directorate-General for Competition.

In 1987 he was appointed to Grade A 4 as head of the unit ‘Legal Matters and Application of Community Law’, which was directly attached to the Director-General of DG XI. In 1993 he was appointed to Grade A 3 without a change in post.

In 1994 the Commission decided to reorganize DGXI with effect from 1 September 1994. On reorganization, the Director of Directorate B ‘Environmental Instruments’ became responsible for the unit ‘Legal Matters and Application of Community Law’ (Unit XI.B.3).

Following that reorganization, the applicant was posted on 1 October 1994 to the Waste Management Unit in Directorate C ‘Nuclear Safety, Civil Protection and Industry’ of DG XI, which has since become Unit 3 in the new Directorate E ‘Industry and Environment’ of DG XL He was nevertheless instructed to continue to manage Unit XI.B.3 pending the appointment of a new head of unit.

Since the post of head of unit had fallen vacant as a result of the applicant's new posting, on 27 October 1994 the Commission published a vacancy notice for that post, to be filled at Grade A 3, A 4 or A 5, in accordance with the procedure laid down by the Commission decision of 19 July 1988 on the filling of middle-management posts (‘the decision of 19 July 1988’). The applicant applied for the post.

On 13 December 1994 the applicant was summoned by the Director-General who is said to have informed him that he intended to propose to the Advisory Committee on Appointments (‘ACA’) that another candidate be appointed.

On 15 December 1994 the Director-General was heard by the ACA. He stated that the post should be filled at Grade A 5/A 4 and specified, on the basis of the vacancy notice, the qualifications needed for that post. The ACA accepted that proposal. It then examined the admissible applications, but did not take the applicant's into account because his grade was too high. Following that examination, the ACA concluded that the applications of Mr K. and Mr R. could be considered.

By decision of 21 March 1995 the Commission decided to appoint Mr K., an official in Grade A 5, to the post to which the vacancy notice related.

The applicant lodged a complaint against that appointment, of which he was informed in May 1995.

By judgment of 17 May 1995 in Case T-10/94 Kratz v Commission [1995] ECR II-1455, the Court of First Instance held that the decision of 19 July 1988 was illegal, in so far as it permitted the level of the post to be filled to be set at a time when the ACA and the appointing authority were already familiar with the identities and personal files of the candidates for that post.

On 3 October 1995 the Commission annulled the appointment of Mr K. in order to comply with that judgment, as it likewise annulled all the other appointments which had been made on the basis of the provisions held to be illegal and had been challenged within the prescribed time-limits.

On 4 October 1995 Mr K. was posted afresh as acting Head of Unit XI.B.3 pending the filling of the post of head of unit.

On 12 October 1995 the Commission published a new vacancy notice for the post of Head of Unit XI.B.3, to be filled this time at Grade A 5/A 4. That vacancy notice contained the same specification as the vacancy notice of 27 October 1994.

On 26 October 1995 the applicant lodged a complaint against that second vacancy notice. On 16 November 1995 the ACA gave an opinion stating that the applications of Mr B. and Mr K. could be considered. By decision of 19 December 1995 Mr K. was appointed to the post of Head of Unit XI.B.3. On 16 April 1996 the Commission rejected the applicant's complaint of 26 October 1995. The applicant was informed of that decision by letter of 18 April 1996.

Substance

Vie first plea: manifest error of assessment of the facts and error of law

Review by the Court of a decision by the appointing authority 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. Therefore the Community judicature may not substitute its assessment of the level of a post for that of the appointing authority (paragraph 38).

See: T-36/94 Capimmo v Commission [1996] ECRSC II-1279, para. 57; T-37/94 Benecos v Commission [1996] ECRSC II-1301, para. 56

Article 7 of the Staff Regulations and Annex I thereto do not require head of unit posts necessarily to be filled at Grade A 3. The requirement that die post must correspond to the grade does not mean that the institutions are obliged to define the duties attaching to each basic post in the same way. Duties as head of unit may thus be carried out in different basic posts, that is to say those of principal administrator (A 5/A 4) or head of division (A 3) (paragraph 39).

See 193/82 to 198/82 Rosani and Others v Council [1983] ECR 2841, para. 11; Kratz v Commission, cited above, para. 53; Capitanio v Commission, cited above, para. 55; Benecos v Commission, cited above, para. 54

The documents before die Court do not show that die Commission used its power in a manifestly incorrect way or erred in law when it adopted die contested decision (paragraph 47).

The second plea: misuse of powers

The concept of misuse of powers has a precisely defined scope and refers to cases where an administrative authority has used its powers for a puipose other than that for which they were conferred on it. 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 for purposes other than those stated (paragraph 67).

See: T-118/95 Correia v Commission [1996] ECRSC II-835, para. 25

The applicant has failed to establish that powers were misused (paragraph 77).

The third plea: infringement of Article 7 of the Staff Regulations

Under Article 7(1) of the Staff Regulations, the appointing authority, acting solely in the interests of the service and without regard to nationality, is to assign each official by appointment to a post in his category or service which corresponds to his grade (paragraph 82).

The applicant's assertion that the level of the post was not established in the interests of the service but with the sole purpose of appointing Mr K. amounts to mere repetition of the previous plea. It is unfounded for the same reasons (paragraph 83).

Operative part:

The application is dismissed.

The parties shall bear their own costs.