JUDGMENT OF THE COURT OF FIRST INSTANCE (Fourth Chamber)

17 December 1997

Case T-110/96

Dominique-François Bareth

v

Committee of the Regions of the European Union

‛Officials — Internal competition — Refusal to appoint a successful candidate — Misuse of powers — Principle of equal treatment — Obligation to state reasons’

Full text in French II-1163

Application for:

annulment of the decision of the Committee of the Regions of 20 September 1995 inasmuch as it refuses to appoint the applicant to one of the vacant posts referred to in Notice of Internal Competition A/02/95 and appointment of othei successful candidates to the said posts.

Decision:

Application granted.

Abstract of the Judgment

The applicant entered the service of the Economic and Social Committee of the European Communities (ESC) as an official on 1 May 1992.

On 11 May 1995 the office of the Committee of the Regions of the European Union (COR) published a notice of vacancy concerning eight posts as Head of Unit and/or Principle Administrator in Grade A 5 in various services of the Secretariat General of the COR.

On 23 May 1995 the President of the COR considered that none of the candidates met the requirements for promotion or transfer within his institution and decided to hold an internal competition, based on qualifications and tests, pursuant to Article 29(l)(b) of the Staff Regulations of Officials of the European Communities (Staff Regulations).

The competition in question was Competition A/02/95. The notice, which was published on 29 May 1995, read as follows:

‘III. COMPETITION

The competition ... is open to candidates who provide evidence that they meet the following conditions:

Diploma or qualifications required — Level of experience required Candidates must:

(a) have completed studies at university level evidenced by a diploma or professional experience at an equivalent level.

(b) have at least 10 years' postgraduate experience on the date for submission of applications, of which the last three years at least must have been relevant to the grade and the duties to be performed. Experience in regional or local administration would be a particular advantage.

Knowledge of languages

...

V. MARKING OF TESTS

Qualifications and tests will be evaluated as follows:

1. Qualifications and professional experience: 0 to 25 points 2. First written test: 0 to 25 points 2. Second written test: 0 to 15 points 4. Oral test: 0 to 35 points

Candidates who have obtained at least 60% of the available points in all the tests will be placed on the list of successful candidates in order of merit.’

Eighteen applications were submitted. Twelve were from the Secretariat General of the COR and six, including the applicant's, from the common structure.

By letter of 6 July 1995 the applicant was informed that he had been admitted to participate in the competition. Fourteen candidates in all were admitted, including nine from die Secretariat General of the COR and five from the common structure. The nine candidates from the COR were all temporary servants in that institution.

Candidates were requested to state their preferences as regards the posts to which they wished to be appointed. Following the tests the Selection Board drew up a list of the successful candidates in order of merit. The applicant was in sixth position on that list.

On 20 September 1995 the office of the COR, in its capacity as appointing authority, appointed eight successful candidates to the vacant posts (contested decision). All were former temporary servants of the COR. Four were placed before the applicant on the list of successful candidates and the remaining four after him.

By letter of 26 September 1995 the applicant requested the Secretary-General of the COR to communicate to him the list of successful candidates in order of merit or, failing that, to inform him of his position on that list. He also asked whether any other successful candidates placed after him on that list had been appointed and, if so, to state the reasons for appointing them.

The applicant received no reply to that letter.

By note of 11 October 1995 the President of the COR informed the applicant that the appointing authority had decided not to appoint him to one of the vacant posts.

By letter of 10 November 1995 the applicant requested the Secretary General of the COR to inform him whether any candidates placed after him had been appointed and, if so, to state the reasons which led the appointing authority to depart from the classification of the list of successful candidates. Moreover, the applicant pointed out that ‘persistent rumours within the ESC, the COR and the common structure [claimed] that all the candidates in the competition had been successful and that only those from the COR had been appointed, even if they had been placed after candidates from the ESC on the list of successful candidates’.

The applicant received no reply to that letter.

On 18 December 1995 the applicant submitted a complaint under Article 90(2) of the Staff Regulations against the contested decision.

By decision of 18 April 1996, which was notified to the applicant on 22 April 1996, the COR expressly rejected the complaint.

By letter of 9 May 1996 to the Secretary General of the COR the applicant pointed out that the list of successful candidates and the order of classification had still not been communicated to him.

On 22 July 1996 the applicant lodged his application.

Substance

In the light of the documents before the Court, the three pleas in law which the applicant puts forward must be examined together, owing to the mutually dependent nature of the arguments on which he relies. The first plea alleges a breach of the notice of competition, a breach of Article 27 of the Staff Regulations and an abuse of powers. The second alleges a breach of the principle of equal treatment and the third alleges a breach of Article 25 of the Staff Regulations.

First, the applicant became concerned about how the appointing authority proposed to deal with the results of Internal Competition A/02/95 when he was informed that he had been entered on the list of successful candidates and the appointment of the successful candidates to the vacant posts appeared on the agenda of one of the meetings of the appointing authority (paragraph 39).

Similarly, when the President of the COR informed him on 11 October 1995 that the appointing authority had decided not to appoint him to one of the vacant posts referred to in the notice of competition, the applicant, in his letter of 10 November 1995, again requested the Secretary General of the COR to inform him whether any successful candidates placed below him had been appointed and, if so, to state the reasons which led the appointing authority to depart from the classification of the list of successful candidates (paragraph 41).

Finally, even when his complaint had been rejected, the applicant again wrote to the Secretary General of the COR on 9 May 1996 in order to point out that the list of successful candidates and the order of classification had still not been communicated to him (paragraph 42).

Second, the eight successful candidates appointed by the appointing authority already' held the posts to be filled as temporary servants before the office of the COR published the notice of vacancies concerning those posts (paragraph 43).

Third, the appointing authority admits that when making the appointments it attached particular importance to the successful candidates' experience or professional training. According to Notice of Competition A/02/95, however, the points allocated for candidates' professional experience could not exceed 25 out of a total result of 100 points. Consequently, those marks could not validly be regarded as being of overriding importance for the appointment of the successful candidates. It follows, moreover, that the Selection Board should have already taken account of qualifications and professional experience when adopting the list of successful candidates (paragraph 44).

The abovementioned factors are capable of influencing the extent of the COR's obligation to state reasons in the present case (paragraph 45).

The obligation to state the reasons on which a decision adversely affecting an official was based is intended to enable the Community judicature to review the legality of the decision and to provide the official concerned with details sufficient to allow him to ascertain whether the decision is well founded or whether it is vitiated by an error which will allow its legality to be challenged. The obligation to state reasons laid down in the second paragraph of Article 25 of the Staff Regulations merely reiterates the general obligation laid down in Article 190 of the EC treaty. Furthermore, that obligation constitutes an essential principle of Community law which may be derogated from only for compelling reasons. In the context of the Community public service and, in particular, the recruitment procedures provided for in Article 27 of the Staff Regulations, the purpose of the obligation to state reasons is, in particular, to provide candidates with a guarantee that those procedures are conducted without favouritism and on the basis of objective and impartial criteria which are defined fairly (paragraph 46).

See: 195/80 Michel v Parliament [1981] ECR 2861, para. 22; T-l/90 Pérez-Mínguez Casariego v Commission [1991] ECR II-143, para. 73

It must be pointed out that the statement of reasons provided by the COR to justify derogating from the classification in the list of suitable candidates is particularly succinct and evasive (paragraph 47).

Although it is true that when appointing a successful candidate the appointing authority has the power to depart from the order of candidates in the list drawn up by the Selection Board, the use of that power cannot be justified by a statement of reasons as succinct and evasive as that in the note of 11 October 1995 and the decision of 18 April 1996. Where the appointing authority departs from the order of classification in the list of successful candidates drawn up following a competition it may not do so unless it has valid reasons and justifies its decision clearly and in full. In the present case the statement of the reasons on which the note and decision in questions were based does not meet those requirements and does not enable the Court to ascertain whether there existed serious reasons which justified the appointment of the four candidates placed after the applicant on the list of successful candidates (paragraph 48).

See: 246/84 Kotsonis v Council [1986] ECR 3989, para. 9; C-345/90 P Parliament v Harming [1992] ECR I-949, para. 28

Furthermore, the reasons advanced by the COR are not of such a kind as to dispel the doubt raised by the evidence supporting the applicant's arguments concerning the existence of an abuse of powers and of unequal treatment of the successful candidates in Internal Competition A/02/95 (paragraph 49).

In those circumstances the COR has failed to fulfil the obligation to state the reasons on which the contested decision was based inasmuch as it, first, refuses to appoint the applicant to one of the vacant posts referred to in the notice of Internal Competition A/02/95 and, second, appoints to those posts the four candidates who were placed after the applicant on the list of successful candidates. Furthermore, in spite of the opportunities which it was given, the COR failed to make good the inadequacy of the statement of reasons for the contested decision. It failed to provide any concrete, objective and relevant information concerning the training and professional experience of the four abovementioned candidates which might have justified the contested decision (paragraph 50).

Operative part:

The decision of the Committee of the Regions of 20 September 1995 is annulled inasmuch as it refuses to appoint the applicant to one of the vacant posts referred to in notice of internal competition A/02/95.

The decision of the Committee of the Regions of 20 September 1995 is annulled inasmuch as it appoints to certain vacant posts referred to in notice of internal competition A/02/95 a number of successful candidates who were placed after the applicant on the list of successful candidates.