Judgment of the Court (Second Chamber) of 9 June 1964. - Pierre Bernusset v Commission of the European Economic Community. - Joined cases 94-63 and 96-63.



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Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

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1 . OFFICIALS - DISPUTES WITH THE ADMINISTRATION - ADMINISTRATION MADE PARTY TO PROCEEDINGS - APPOINTING AUTHORITY - CAPACITY TO BE A PARTY TO LEGAL PROCEEDINGS

( EEC TREATY, ARTICLE 179, EEC STAFF REGULATIONS, ARTICLES 90 AND 91 )

2 . OFFICIALS - DISPUTES WITH THE ADMINISTRATION - PROCEEDINGS BROUGHT AGAINST THE APPOINTING AUTHORITY

( EEC STAFF REGULATIONS, ARTICLES 90 AND 91 )

3 . OFFICIALS - PROMOTION - CONSIDERATION OF COMPARATIVE MERITS - PERIODICAL REPORTS - IMPLEMENTING MEASURES

( EEC STAFF REGULATIONS, ARTICLES 43, 45 AND 110 ) 4 . OFFICIALS - PROMOTION - PERIOD OF ADAPTATION OF THE REGULATIONS - ABSENCE OF PERIODICAL REPORTS - LEGALITY OF PROMOTIONS

( EEC STAFF REGULATIONS, ARTICLES 43, 45 AND 110 )

5 . OFFICIALS - PROMOTION - POWERS AND DUTIES OF THE ADMINISTRATION

( EEC STAFF REGULATIONS, ARTICLE 45 )

6 . OFFICIALS - PROMOTION - CRITERIA FOR ASSESSMENT - ABSENCE OF PERIODICAL REPORTS DURING PERIOD OF ADAPTATION OF STAFF REGULATIONS - NO OBLIGATION ON THE ADMINISTRATION TO DRAW UP AD HOC REPORTS

( EEC STAFF REGULATIONS, ARTICLE 45 )

7 . OFFICIALS - PROMOTION - ADMINISTRATION'S CRITERIA FOR ASSESSMENT - NO OBLIGATION TO STATE REASONS AS REGARDS UNSUCCESSFUL CANDIDATES

( EEC STAFF REGULATIONS, ARTICLES 25 AND 45 )

8 . OFFICIALS - PROMOTION BASED ON A CONSIDERATION OF SUBJECTIVE APPLICATION FORMS - STRICT CRITERIA FOR ASSESSMENT - OBLIGATION TO STUDY THE PERSONAL FILES OF CANDIDATES

( EEC STAFF REGULATIONS, ARTICLE 45 )

Summary

1 . IT FOLLOWS FROM ARTICLE 179 OF THE EEC TREATY AND FROM ARTICLES 90 AND 91 OF THE STAFF REGULATIONS OF OFFICIALS THAT THE APPOINTING AUTHORITY, WHICH EXERCISES IN FACT THE POWERS OF AN EMPLOYER WITH REGARD TO OFFICIALS, HAS THE CAPACITY TO BE A PARTY TO LEGAL PROCEEDINGS IN DISPUTES BETWEEN SERVANTS AND THE ADMINISTRATION .

CF . PARA . 1 OF SUMMARY IN JOINED CASES 79 AND 82/63 .

2 . ANY OFFICIAL MAY SUBMIT A REQUEST OR COMPLAINT THROUGH HIS IMMEDIATE SUPERIOR TO THE APPOINTING AUTHORITY OF HIS INSTITUTION UNDER ARTICLE 90 OF THE STAFF REGULATIONS . THE APPEAL TO THE COURT PROVIDED FOR IN ARTICLE 91 MUST, FAILING ANY PROVISION TO THE CONTRARY, FOLLOW THE LIKE RULES AND BE BROUGHT AGAINST THE SAME AUTHORITY .

3 . THE APPLICATION OF ARTICLE 45 REQUIRES NO MEASURE FOR GIVING EFFECT TO IT OTHER THAN THAT LAID DOWN IN ARTICLE 43, TO WHICH ARTICLE 45 REFERS BY IMPLICATION . THE APPLICATION OF THIS PROVISION PRESUPPOSES THAT REPORTS HAVE BEEN MADE ON THE ABILITY, EFFICIENCY AND CONDUCT IN THE SERVICE OF OFFICIALS, THESE REPORTS BEING ONE OF THE FACTORS IN THE CONSIDERATION OF THE COMPARATIVE MERITS OF THE OFFICIALS ELIGIBLE FOR PROMOTION .

4 . THE FACT THAT, DURING THE PERIOD OF ADAPTATION OF THE REGULATIONS, THE COMMISSION DID NOT ADOPT GENERAL PROVISIONS WHICH WOULD HAVE ALLOWED THE REPORTS PROVIDED FOR IN ARTICLE 43 TO BE MADE, CANNOT BE REGARDED AS AN ERROR OF SUCH A NATURE AS TO INVALIDATE A PROMOTION .

5 . THE APPOINTING AUTHORITY HAS WIDE DISCRETIONARY POWERS IN RELATION TO THE PROMOTION OF OFFICIALS . SUCH POWERS DO, HOWEVER, PRESUPPOSE THE EXISTENCE OF THE NECESSARY GUARANTEE AFFORDED BY THE SCRUPULOUS CONSIDERATION OF PERSONAL FILES EACH CONTAINING COMPARABLE INFORMATION . THIS EXAMINATION SHOULD COMPRISE AN EVALUATION OF MERITS ON A BASIS OF EQUALITY AND THE TAKING INTO ACCOUNT OF INFORMATION THE SOURCE AND CONTENT OF WHICH IS COMPARABLE IN EACH INSTANCE .

CF . PARA . 1 OF SUMMARY IN CASE 27/63 .

6 . IT WOULD BE TOO MUCH, HOWEVER, TO REQUIRE THE ADMINISTRATION TO DRAW UP AD HOC REPORTS TO TAKE THE PLACE OF THE REPORTS PROVIDED FOR IN ARTICLE 43 DURING THE ADAPTATION PERIOD WHENEVER A VACANT POST MAKES IT NECESSARY TO COMPARE THE MERITS OF POSSIBLE CANDIDATES .

CF . PARA . 2 OF SUMMARY IN CASE 27/63 .

7 . IN THE CASE OF PROMOTION, THE ADMINISTRATION IS UNDER NO OBLIGATION, UNDER ARTICLE 25 OF THE STAFF REGULATIONS, TO STATE THE FACTORS ON WHICH ITS ASSESSMENT WAS BASED IN RESPECT OF UNSUCCESSFUL CANDIDATES .

CF . PARA . 3 OF SUMMARY IN CASE 27/63 .

8 . APPLICATION FORMS SUBMITTED BY THE PERSONS CONCERNED THEMSELVES, WITHOUT ANY VERIFICATION OR CHECK BY THE APPROPRIATE DEPARTMENTS OF THE COMMISSION, ARE DOCUMENTS OF AN ESSENTIALLY SUBJECTIVE NATURE, THE CONTENT AND SCOPE OF WHICH CAN BE EVALUATED ONLY WITH CONSIDERABLE CARE IN A MATTER REQUIRING AS OBJECTIVE A CONSIDERATION AS POSSIBLE OF THE MERITS OF THE CANDIDATES . THE OBSERVANCE OF THIS REQUIREMENT IS ESPECIALLY IMPORTANT IN CASES WHERE THE COMMISSION TAKES ITS DECISION BY WRITTEN PROCEDURE AND THEREFORE WITHOUT THE POSSIBILITY OF ANY DISCUSSION AND IN THE ABSENCE OF REPORTS ON THE ABILITY, EFFICIENCY AND CONDUCT OF CANDIDATES IN THE SERVICE . IN SUCH CASES THE APPOINTING AUTHORITY MUST SUPPLEMENT ITS INFORMATION BY CONSULTING THE PERSONAL FILES OF THE CANDIDATES .

Parties

IN JOINED CASES 94 AND 96/63

PIERRE BERNUSSET, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN ECONOMIC COMMUNITY, REPRESENTED BY MARCEL SLUSNY, ADVOCATE OF THE COUR D'APPEL, BRUSSELS, LECTURER AT THE UNIVERSITY OF BRUSSELS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT, AVOCAT-AVOUE, 6 RUE WILLY-GOERGEN, APPLICANT,

V

EUROPEAN ECONOMIC COMMUNITY AND THE COMMISSION OF THAT COMMUNITY, REPRESENTED BY THE LATTER'S LEGAL ADVISER, LOUIS DE LA FONTAINE, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF HENRI MANZANARES, SECRETARY OF THE LEGAL DEPARTMENT OF THE EUROPEAN EXECUTIVES, 2 PLACE DE METZ, DEFENDANT,

Subject of the case

APPLICATION FOR

CASE 94/63 : ANNULMENT OF THE DECISION OF 8 JULY 1963 WHEREBY THE EEC COMMISSION APPOINTED MR EDOARDO VOLPI TO THE POST OF ASSISTANT IN THE DIRECTORATE GENERAL OF ADMINISTRATION, DECLARED VACANT BY VACANCY NOTICE N . 546;

CASE 96/63 : ANNULMENT OF THE DECISION OF 3 JULY 1963 WHEREBY THE EEC COMMISSION APPOINTED MR DIETER ROGALLA TO THE POST OF PRINCIPAL ADMINISTRATOR IN THE DIRECTORATE GENERAL OF ADMINISTRATION, DECLARED VACANT BY VACANCY NOTICE N . 515,

Grounds

A - AS TO NAMING THE DEFENDANTS AS PARTIES AND AS TO THE ADMISSIBILITY OF THE APPLICATIONS

THE APPLICATIONS ARE MADE AGAINST THE EUROPEAN ECONOMIC COMMUNITY ' OR, ALTERNATIVELY ', AGAINST THE COMMISSION OF THAT COMMUNITY . IT IS THEREFORE APPROPRIATE TO DETERMINE WHICH OF THE DEFENDANTS MUST ANSWER THE APPLICATIONS .

ARTICLE 179 OF THE EEC TREATY PROVIDES THAT ' THE COURT OF JUSTICE SHALL HAVE JURISDICTION IN ANY DISPUTE BETWEEN THE COMMUNITY AND ITS SERVANTS WITHIN THE LIMITS AND UNDER THE CONDITIONS LAID DOWN IN THE STAFF REGULATIONS OR THE CONDITIONS OF EMPLOYMENT '. THE EXPRESSION ' THE CONDITIONS LAID DOWN IN THE STAFF REGULATIONS ' NECESSARILY IMPLIES COMPETENCE TO BE A PARTY TO LEGAL PROCEEDINGS VESTED IN THE APPOINTING AUTHORITY WHICH EXERCISES IN FACT THE POWERS OF EMPLOYER IN RELATION TO OFFICIALS . THE APPOINTING AUTHORITY IN THE PRESENT CASE IS THE EEC COMMISSION . THIS VIEW IS CONFIRMED BY THE ACTUAL WORDING OF THE STAFF REGULATIONS OF OFFICIALS OF THE EEC . ARTICLE 91, UNDER TITLE VII HEADED ' APPEALS ', FOLLOWS ARTICLE 90 WHICH GOVERNS APPEALS THROUGH AN OFFICIAL'S IMMEDIATE SUPERIOR AND IT IS BOTH LOGICAL AND DESIRABLE THAT THIS PROCEDURE SHOULD BE USED BEFORE AN APPEAL IS MADE TO THE COURT OF JUSTICE . ANY OFFICIAL MAY SUBMIT A REQUEST OR COMPLAINT IN THIS WAY THROUGH HIS IMMEDIATE SUPERIOR TO THE APPOINTING AUTHORITY OF HIS INSTITUTION . THE APPEAL TO THE COURT PROVIDED FOR IN ARTICLE 91 MUST, FAILING ANY PROVISION TO THE CONTRARY, FOLLOW THE LIKE RULES AND BE BROUGHT AGAINST THE SAME AUTHORITY . THE APPEAL MUST BE DEEMED TO BE BROUGHT AGAINST THE COMMISSION .

THE ADMISSIBILITY OF THE APPEAL IS NOT CONTESTED BY THE DEFENDANT AND NO GROUNDS EXIST FOR THE COURT TO RAISE THE MATTER OF ITS OWN MOTION .

B - AS TO THE SUBSTANCE

AS TO THE SUBMISSIONS COMMON TO BOTH APPLICATIONS

1 . AS TO THE FIRST SUBMISSION

THE APPLICATIONS SEEK THE ANNULMENT OF THE APPOINTMENT OF MR VOLPI TO THE POST OF ASSISTANT IN THE DIRECTORATE-GENERAL OF ADMINISTRATION AND THE ANNULMENT OF THE APPOINTMENT OF MR ROGALLA TO THE POST OF PRINCIPAL ADMINISTRATOR IN THE SAME DIRECTORATE FOR INFRINGEMENT OF ARTICLE 110 OF THE STAFF REGULATIONS ON THE GROUND THAT GENERAL PROVISIONS FOR GIVING EFFECT TO ARTICLE 45 ( 1 ) OF THE STAFF REGULATIONS WERE NOT DULY ADOPTED AND PUBLISHED .

THE APPLICATION OF ARTICLE 45 REQUIRES NO MEASURE FOR GIVING EFFECT TO IT OTHER THAN THAT LAID DOWN IN ARTICLE 43, TO WHICH ARTICLE 45 REFERS BY IMPLICATION . THE APPLICATION OF THIS PROVISION PRE-SUPPOSES THAT REPORTS HAVE BEEN MADE ON THE ABILITY, EFFICIENCY AND CONDUCT IN THE SERVICE OF OFFICIALS, THESE REPORTS BEING ONE OF THE FACTORS IN THE CONSIDERATION OF THE COMPARATIVE MERITS OF THE OFFICIALS ELIGIBLE FOR PROMOTION .

IT IS ESTABLISHED IN THIS CASE THAT THE PERIODICAL REPORTS PROVIDED FOR IN ARTICLE 43 AND MADE IN ACCORDANCE WITH CONDITIONS TO BE DETERMINED BY EACH INSTITUTION BY MEANS OF GENERAL PROVISIONS FOR GIVING EFFECT TO THE STAFF REGULATIONS WITHIN THE MEANING OF ARTICLE 110 WERE NOT IN EXISTENCE AT THE TIME WHEN THE CONTESTED DECISIONS WERE MADE . BUT HOWEVER REGRETTABLE MAY BE THE DELAY IN THIS CONNEXION IN PUTTING ARTICLE 110 INTO EFFECT IT MUST BE SAID THAT NONE OF THE INSTITUTIONS WAS IN A POSITION AT THE TIME TO ADOPT THE GENERAL PROVISIONS FOR GIVING EFFECT TO THE STAFF REGULATIONS - AND IT IS THE FAILURE TO DO THIS WHICH IS ALLEGED IN THE ACTION - BY REASON OF THE DATE OF PUBLICATION AND ENTRY INTO FORCE OF THE STAFF REGULATIONS .

AS THE STAFF REGULATIONS WERE NOT PUBLISHED UNTIL 14 JUNE 1962 AND TOOK RETROACTIVE EFFECT ONLY ON 1 JANUARY 1962, IT MUST BE ADMITTED THAT, AT THE DATE WHEN THE CONTESTED DECISIONS WERE MADE, THE INSTITUTIONS OF THE COMMUNITY WERE STILL IN A TRANSITIONAL PERIOD AS REGARDS THE APPLICATION OF THE STAFF REGULATIONS . IN PARTICULAR THE FACT THAT AT THAT DATE THE COMMISSION HAD NOT YET ADOPTED GENERAL PROVISIONS WHICH WOULD HAVE ALLOWED THE REPORTS PROVIDED FOR IN ARTICLE 43 TO BE MADE, CANNOT BE REGARDED AS AN ERROR OF SUCH A NATURE AS TO INVALIDATE THE DECISIONS AT ISSUE .

MOREOVER ARTICLE 43 PROVIDES THAT PERIODICAL REPORTS SHALL BE MADE AT LEAST EVERY TWO YEARS . THE COMMISSION THUS COULD NOT HAVE BEEN IN BREACH OF THIS DUTY AT THE DATE WHEN THE DECISIONS AT ISSUE WERE MADE, THAT IS TO SAY, ON 8 AND 3 JULY 1963 RESPECTIVELY . ARTICLE 45 HAD THEREFORE TO BE APPLIED BEFORE THE SAID GENERAL PROVISIONS FOR GIVING EFFECT TO THE REGULATIONS HAD BEEN DRAWN UP .

THE EXIGENCIES OF THE SERVICE MAKE IT IMPOSSIBLE TO REGARD THIS PROCEDURE AS ILLEGAL AT THE TIME WHEN THE CONTESTED DECISIONS WERE MADE .

THE FIRST SUBMISSION IS THEREFORE UNFOUNDED .

2 . AS TO THE SECOND SUBMISSION

THE APPLICANT COMPLAINS THAT THE CONTESTED DECISIONS WERE MADE CONTRARY TO THE LAST PART OF ARTICLE 5 OF THE REGULATIONS IN THAT THE RELEVANT VACANCY NOTICES WERE NOT PRECEDED BY A DEFINITION OF THE POSTS WITHIN THE MEANING OF THAT ARTICLE .

THIS SUBMISSION REFERS TO BOTH THE INADEQUACY OF THE VACANCY NOTICES FOR THE VACANCIES FILLED BY THE CONTESTED DECISIONS AND TO THE GENERAL FAILURE TO ACT ON THE PART OF THE COMMISSION IN DEFINING THE DUTIES AND POWERS OF ALL THE POSTS IN ITS DEPARTMENTS .

AS REGARDS THE FIRST PART OF THIS SUBMISSION THE ALLEGED INADEQUACY OF THE VACANCY NOTICES LIES IN THE ABSENCE OF CLEARLY DEFINED CRITERIA MAKING IT POSSIBLE TO SELECT THE CANDIDATES MOST SUITED TO THESE POSTS . AS THIS POINT IS COVERED BY THE THIRD SUBMISSION, IT WILL BE APPROPRIATE TO EXAMINE IT LATER .

AS REGARDS THE GENERAL FAILURE TO ACT ON THE PART OF THE COMMISSION, IT MUST BE ADMITTED ON THIS POINT THAT THE CONTESTED DECISIONS WERE LEGAL IN THE PRESENT CASE HAVING REGARD TO THE COMPLEXITY OF THE TASKS OF DEFINING THE VARIOUS POSTS, THE TIME INVOLVED, THE DEFINITIONS ACTUALLY CONTAINED IN THE VACANCY NOTICES AND THE NEED TO FILL THE VACANCIES TO MEET THE EXIGENCIES OF THE SERVICE .

3 . AS TO THE THIRD SUBMISSION

THE APPLICANT MAINTAINS THAT THE COMMISSION APPLIED IN THE WRONG WAY THE FIRST SUBPARAGRAPH OF ARTICLE 45 ( 1 ) OF THE REGULATIONS IN THAT IT FAILED TO DETERMINE IN ADVANCE AND IN A GENERAL MANNER ITS CRITERIA FOR SELECTION FOR PROMOTION AND ALSO APPLIED IN THE WRONG WAY ARTICLES 27 AND 45 IN CONJUNCTION WITH ARTICLE 43, IN THAT THESE PRESUPPOSE THE EXISTENCE OF A PREDETERMINED AND OBJECTIVE PROCEDURE WITH WHICH OFFICIALS WOULD BE ACQUAINTED IN ADVANCE .

ARTICLE 45 PROVIDES THAT PROMOTION SHALL BE EXCLUSIVELY BY SELECTION AFTER CONSIDERATION OF THE COMPARATIVE MERITS OF THE OFFICIALS ELIGIBLE FOR PROMOTION AND OF THE REPORTS ON THEM . THE APPOINTING AUTHORITY HAS IN THIS RESPECT WIDE DISCRETIONARY POWERS . SUCH POWERS PRESUPPOSE THAT WHILE GREAT FREEDOM IS ALLOWED IN MAKING THE DECISION THERE MUST AT THE SAME TIME BE A SCRUPULOUS EXAMINATION OF PERSONAL FILES EACH CONTAINING COMPARABLE INFORMATION . THIS SECOND FACTOR PROVIDES THE NECESSARY GUARANTEE THAT POWERS WILL BE EXERCISED WITH FULL KNOWLEDGE OF THE FACTS .

ARTICLE 45 INDICATES AS A CRITERION THE REPORTS PROVIDED FOR IN ARTICLE 43; FOR THE REASONS SET OUT ABOVE THE FACT THAT THESE REPORTS WERE NON-EXISTENT AT THE DATE OF THE CONTESTED DECISIONS DOES NOT APPEAR SUFFICIENT TO RENDER THOSE DECISIONS ILLEGAL . IT WOULD BE TOO MUCH TO REQUIRE THE ADMINISTRATION TO DRAW UP AD HOC REPORTS TO TAKE THE PLACE OF THE REPORTS PROVIDED FOR IN ARTICLE 43 DURING THE ADAPTATION PERIOD .

THE ABSENCE OF REPORTS MAKES IT VITAL THAT THE APPOINTING AUTHORITY SHOULD MAKE SURE THAT THE OTHER PARTICULARS ON THE BASIS OF WHICH IT MUST CONSIDER THE COMPARATIVE MERITS OF THE CANDIDATES SHOULD BE AS FULL AND OBJECTIVE AS POSSIBLE . AN EXAMINATION OF THE FACTORS ACTUALLY TAKEN INTO ACCOUNT BY THE COMMISSION IN TAKING THE CONTESTED DECISIONS CAN SUITABLY BE CONSIDERED UNDER THE FIFTH SUBMISSION .

IN THE CIRCUMSTANCES THE PRESENT SUBMISSION IS THEREFORE UNFOUNDED .

4 . AS TO THE FOURTH SUBMISSION

THE APPLICANT CLAIMS THAT THE DECISIONS IN QUESTION SHOULD BE ANNULLED ON THE GROUNDS THAT THE REASONS ON WHICH THEY WERE BASED WERE NOT STATED . UNDER ARTICLE 25 OF THE STAFF REGULATIONS ANY DECISION RELATING TO A SPECIFIC INDIVIDUAL WHICH IS TAKEN UNDER THE STAFF REGULATIONS SHALL AT ONCE BE COMMUNICATED IN WRITING TO THE OFFICIAL CONCERNED AND ANY DECISION ADVERSELY AFFECTING HIM SHALL STATE THE REASONS ON WHICH IT IS BASED . FOLLOWING THIS LINE OF THOUGHT, IT MUST BE SAID THAT THERE WAS NO NEED TO GIVE REASONS FOR THE DECISIONS AT ISSUE AS RESPECTS THE PERSONS TO WHOM THEY WERE ADDRESSED, THAT IS TO SAY THE OFFICIALS WHOSE APPLICATIONS WERE ACCEPTED AND WHO COULD NOT CONSEQUENTLY BE ADVERSELY AFFECTED . AS REGARDS THE OTHER CANDIDATES IT MAY BE OBSERVED THAT, ALTHOUGH THE APPOINTING AUTHORITY HAS VERY WIDE DISCRETIONARY POWERS IN MAKING ITS SELECTION, THE FACTORS TO BE TAKEN INTO ACCOUNT IN APPLYING THAT DISCRETION DEPEND NOT ONLY ON ABILITY AND EFFICIENCY, THAT IS TO SAY, ON THE APTITUDE OF THOSE CONCERNED IN THE PERFORMANCE OF THEIR DUTIES, BUT ALSO ON THEIR CONDUCT IN THE SERVICE, THAT IS TO SAY, THEIR BEHAVIOUR, THEIR CHARACTER AND THEIR GENERAL PERSONALITY . BY THEIR VERY NATURE FINDINGS ON THESE MATTERS THUS ARE NOT APPROPRIATE AS STATEMENTS OF REASONS, THE PARTICULARS OF WHICH MIGHT, MOREOVER, PREJUDICE OFFICIALS WHOSE APPLICATIONS WERE NOT ACCEPTED .

ON THIS POINT THE APPLICATIONS MUST BE DISMISSED .

5 . ON THE FIFTH SUBMISSION

THE APPLICANT CLAIMS THAT THE CONTESTED DECISIONS SHOULD BE ANNULLED ON THE GROUND THAT THEY WERE TAKEN WITHOUT THE COMMISSION'S HAVING ADEQUATELY CONSIDERED, IN ITS CAPACITY OF APPOINTING AUTHORITY, THE COMPARATIVE MERITS OF ALL THE CANDIDATES AND IN PARTICULAR THOSE OF THE APPLICANT . THE COMMISSION THUS DID NOT OBSERVE THE SAFEGUARDS AFFORDED BY ARTICLE 45 OF THE REGULATIONS TO OFFICIALS ELIGIBLE FOR PROMOTION, THOSE SAFEGUARDS BEING THE COUNTERWEIGHT TO THE WIDE POWERS AVAILABLE TO THE COMMISSION IN THIS MATTER .

IT IS AGREED THAT THE TWO POSTS FOR WHICH THE APPLICANT IN THE PRESENT CASE HAD APPLIED WERE TO BE FILLED BY PROMOTION AND THEREFORE AFTER CONSIDERATION OF THE COMPARATIVE MERITS OF THE CANDIDATES . THE COMMISSION, WIDE AS ITS DISCRETIONARY POWERS MAY BE, MUST TREAT ALL CANDIDATES ALIKE AND TAKE INTO CONSIDERATION COMPARABLE SOURCES OF INFORMATION IN MAKING ITS COMPARISONS . IT IS APPROPRIATE TO CHECK WHETHER THESE CONDITIONS HAVE BEEN FULFILLED IN EACH OF THE PRESENT CASES .

IN CASE 94/63 THE CONTESTED DECISION WAS TAKEN UNDER THE WRITTEN PROCEDURE LAID DOWN IN ARTICLE 11 OF THE INTERNAL REGULATIONS OF THE COMMISSION OF 9 JANUARY 1963 ( OFFICIAL JOURNAL OF 31 JANUARY 1963, PP . 181 ET SEQ .). PURSUANT TO THIS PROVISION THE EXECUTIVE SECRETARY NOTIFIED ALL MEMBERS OF THE COMMISSION ON 2 JULY 1963 OF THE WRITTEN TEXT OF A COMMUNICATION FROM THE PRESIDENT OF THE COMMISSION HEADED ' PROMOTION DE MR EDOARDO VOLPI '. IN THAT COMMUNICATION THE PRESIDENT OF THE COMMISSION RECOMMENDED THAT ' AFTER A FULL EXAMINATION OF THE APPLICATIONS AND AN INTERVIEW WITH THE PERSONS CONCERNED THE DIRECTOR-GENERAL OF ADMINISTRATION HAS COME TO THE CONCLUSION THAT MR VOLPI IS THE MOST SUITABLE CANDIDATE TO FILL THE POST IN QUESTION . I ACCEPT THIS CONCLUSION IN AGREEMENT WITH THE MEMBERS OF THE COMMITTEE OF CHAIRMEN '.

AFTER SETTING OUT PARTICULARS OF THE CAREER AND QUALIFICATIONS OF MR VOLPI, THE COMMUNICATION ENDED WITH THE FOLLOWING PROPOSAL :

' I THEREFORE PROPOSE, IN AGREEMENT WITH THE COMMITTEE OF CHAIRMEN, THAT THE MEMBERS OF THE COMMISSION SHOULD ADOPT THE FOLLOWING DECISION :

" THE COMMISSION, AFTER CONSIDERATION OF THE COMPARATIVE MERITS OF THE CANDIDATES, HAS DECIDED THAT MR EDOARDO VOLPI SHALL FILL THE POST OF ASSISTANT TO THE DIRECTOR - GENERAL OF ADMINISTRATION, THE VACANCY FOR WHICH WAS PUBLISHED UNDER N . 546 . THE SAID OFFICIAL IS PROMOTED TO GRADE A 4 WITH EFFECT FROM 1 APRIL 1963 ".'

THERE WAS ANNEXED TO THE SAID COMMUNICATION VACANCY NOTICE N . 546, THE APPLICATIONS CONTAINING PARTICULARS OF THE CANDIDATES, ESPECIALLY AS REGARDS THEIR STANDARD OF EDUCATION, THEIR PREVIOUS POSTS, INCLUDING THEIR SERVICE WITH THE COMMUNITIES, THEIR KNOWLEDGE OF LANGUAGES AND OF SHORTHAND AND TYPEWRITING AND ANY OBSERVATIONS BY THEM .

THE ABOVEMENTIONED NOTIFICATION OF 2 JULY STATED THAT, UNLESS NOTICE OF ANY OBSERVATION OR OBJECTION WERE GIVEN TO THE EXECUTIVE SECRETARIAT BEFORE 6 P.M . ON 8 JULY, THE PRESIDENT'S PROPOSAL COULD BE DEEMED TO HAVE BEEN ACCEPTED .

THE MINUTES OF THE 236TH MEETING OF THE COMMISSION HELD ON 17 JULY 1963 CONTAINED THE FOLLOWING :

' THE EXECUTIVE SECRETARY GIVES NOTICE THAT, THE RESPECTIVE TIME-LIMITS HAVING EXPIRED, NO OBSERVATIONS ON OR OBJECTIONS TO THE PROMOTIONS SUBMITTED FOR APPROVAL TO THE COMMISSION BY WRITTEN PROCEDURE HAVE BEEN MADE .

' THE COMMISSION ACCORDINGLY ADOPTED THE DECISIONS...MENTIONED BELOW ...

' THE COMMISSION, AFTER CONSIDERATION OF THE COMPARATIVE MERITS OF THE CANDIDATES, HAS DECIDED THAT MR EDOARDO VOLPI SHALL FILL THE POST OF ASSISTANT TO THE DIRECTOR - GENERAL OF ADMINISTRATION THE VACANCY FOR WHICH WAS PUBLISHED UNDER N . 546 . THE SAID OFFICIAL IS PROMOTED TO GRADE A 4 WITH EFFECT FROM 1 APRIL 1963 . '

IT FOLLOWS FROM THE FOREGOING STATEMENTS THAT THE ONLY PARTICULARS AVAILABLE TO THE COMMISSION FOR CONSIDERATION OF THE COMPARATIVE MERITS OF THE CANDIDATES WERE THE COMMUNICATION FROM THEIR PRESIDENT AND THE APPLICATION FORMS .

THE PROPOSAL OF THE PRESIDENT TO PROMOTE MR VOLPI DID NOT CONTAIN SO MUCH AS A REFERENCE TO THE POSSIBLE MERITS OF OTHER CANDIDATES . THE APPLICATION FORMS SUBMITTED BY THE PERSONS CONCERNED THEMSELVES, WITHOUT ANY VERIFICATION OR CHECK BY THE APPROPRIATE DEPARTMENTS OF THE COMMISSION, ARE DOCUMENTS OF AN ESSENTIALLY SUBJECTIVE NATURE, THE CONTENT AND SCOPE OF WHICH CAN BE EVALUATED ONLY WITH CONSIDERABLE CARE IN A MATTER REQUIRING AS OBJECTIVE A CONSIDERATION AS POSSIBLE OF THE MERITS OF THE CANDIDATES . THE OBSERVANCE OF THIS REQUIREMENT IS ESPECIALLY IMPORTANT IN CASES WHERE THE COMMISSION TAKES ITS DECISION BY WRITTEN PROCEDURE AND THEREFORE WITHOUT THE POSSIBILITY OF ANY DISCUSSION AND IN THE ABSENCE OF REPORTS ON THE ABILITY, EFFICIENCY AND CONDUCT OF CANDIDATES IN THE SERVICE .

IT HAS NOT BEEN CLAIMED NOR HAS ANY EVIDENCE BEEN TENDERED THAT THE COMMISSION SUPPLEMENTED ITS INFORMATION BY CONSULTING THE PERSONAL FILES OF THE CANDIDATES . IT FOLLOWS THAT THE FACTORS ON WHICH THE COMMISSION TOOK ITS DECISION WERE INADEQUATE .

IN CASE 96/63 THE CONTESTED DECISION WAS TAKEN BY THE COMMISSION IN ACCORDANCE WITH THE NORMAL PROCEDURE IN THE COURSE OF ITS 234TH MEETING HELD ON 3 JULY 1963 .

ON 1 JULY THE MEMBERS OF THE COMMISSION RECEIVED NOTIFICATION OF A PROPOSAL OF THE PRESIDENT OF THE COMMISSION HEADED ' TRANSFER AND PROMOTION OF MR DIETER ROGALLA '. THE PRESIDENT STATED THEREIN :

' ALL CANDIDATES HAVE BEEN SEEN BY THE DIRECTOR-GENERAL OF ADMINISTRATION . AS PROPOSED BY HIM I HAVE COME TO THE CONCLUSION AFTER FULL INVESTIGATION THAT MR DIETER ROGALLA, AN OFFICIAL OF THE DIRECTORATE-GENERAL OF THE INTERNAL MARKET, IS THE MOST SUITABLE CANDIDATE . '

AFTER A STATEMENT ON THE CAREER AND QUALIFICATIONS OF MR ROGALLA THE PROPOSAL MENTIONED THAT ' THE FACTORS RELATING TO THE OTHER CANDIDATES WILL BE COMMUNICATED TO THE COMMISSION ORALLY ' AS WILL THE OPINION OF THE MEMBERS OF THE PRESIDENTIAL COMMITTEE .

AT THE END OF THE NOTIFICATION WAS THE FOLLOWING PROPOSAL :

' TO SUM UP, I PROPOSE THAT THE COMMISSION ADOPT THE FOLLOWING DECISION :

" THE COMMISSION, AFTER CONSIDERING THE COMPARATIVE MERITS OF THE CANDIDATES, HAS DECIDED TO APPOINT MR DIETER ROGALLA TO THE VACANT POST IN GRADE A 4 IN DIVISION IX - A - 3 ( PERSONNEL ADMINISTRATION DIVISION IN THE PERSONNEL DIRECTORATE, DIRECTORATE - GENERAL OF ADMINISTRATION ) UNDER N . 515 . THIS OFFICIAL IS TRANSFERRED TO DIVISION IX - A - 3 WITH EFFECT FROM 1 JUNE 1963 AND PROMOTED TO GRADE A 4 WITH EFFECT FROM 1 NOVEMBER 1963 ".'

IN THE COURSE OF THE PROCEEDINGS THE DEFENDANT MAINTAINED THAT THE VARIOUS APPLICATIONS OF THE CANDIDATES WERE ANNEXED TO THE PROPOSAL OF THE PRESIDENT OF THE COMMISSION . THE MINUTES OF THE MEETING OF THE COMMISSION OF 3 JULY 1963 CONTAINED THE FOLLOWING :

' THE COMMISSION RECEIVED APPLICATIONS FROM VARIOUS OFFICIALS OF THE COMMISSION FOR THE VACANT POST IN GRADE A 4 IN THE PERSONNEL ADMINISTRATION DIVISION IN THE PERSONNEL DIRECTORATE OF THE DIRECTORATE-GENERAL OF ADMINISTRATION IN RESPONSE TO THE NOTIFICATION OF VACANCY OF THIS POST ( PERS/1/63 ). THE COMMISSION EXAMINED THE PROPOSAL OF THE PRESIDENT TO APPOINT TO THIS POST MR DIETER ROGALLA, AT PRESENT AN OFFICIAL IN GRADE A 5 IN THE DIRECTORATE GENERAL OF THE INTERNAL MARKET .

' AFTER UNDERTAKING AN EXAMINATION OF THE COMPARATIVE MERITS OF THE CANDIDATES, THE COMMISSION APPOINTED MR DIETER ROGALLA TO THE POST IN GRADE A 4 IN THE PERSONNEL ADMINISTRATION DIVISION IN THE PERSONNEL DIRECTORATE . MR ROGALLA IS ACCORDINGLY TRANSFERRED TO THIS POST WITH EFFECT FROM 1 JUNE 1963 AND PROMOTED TO GRADE A 4 WITH EFFECT FROM 1 NOVEMBER 1963 . '

FROM THESE MINUTES IT DOES NOT APPEAR THAT THERE WAS ANY VERBAL NOTIFICATION TO THE MEMBERS OF THE COMMISSION ON THE ' FACTORS RELATING TO THE OTHER CANDIDATES '.

IT HAS NOT BEEN ESTABLISHED AND MOREOVER THE DEFENDANT HAS NOT MAINTAINED THAT THE COMMISSION SUPPLEMENTED ITS INFORMATION BY CONSULTING THE PERSONAL FILES OF THE CANDIDATES . IN THE CIRCUMSTANCES THE CONSIDERATIONS UPON WHICH THE CONTESTED DECISION WAS BASED MUST BE CONSIDERED INADEQUATE .

FROM A CONSIDERATION OF THE FACTS SET OUT ABOVE, IT IS APPROPRIATE TO ANNUL THE DECISIONS TAKEN ON THE GROUND THAT THEY INFRINGE THE FIRST SUBPARAGRAPH OF ARTICLE 45 ( 1 ) OF THE STAFF REGULATIONS OF THE EEC, AND THERE IS NO NEED TO EXAMINE THE OTHER GROUNDS PLEADED IN SUPPORT OF EACH APPLICATION OR MORE ESPECIALLY TO DECLARE AS REGARDS CASE 96/63 THAT THE DISPUTED PROMOTION CONSTITUTED AN INFRINGEMENT OF ARTICLE 45 ( 1 ) OF THE STAFF REGULATIONS, INASMUCH AS THE REQUIREMENT REGARDING THE PERIOD OF SERVICE IN HIS GRADE WAS NOT MET AT THE TIME OF HIS APPOINTMENT IN THE CASE OF THE CANDIDATE PROMOTED .

Decision on costs

THE APPLICANT HAS SUCCEEDED IN HIS PRINCIPAL CONCLUSIONS . UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE DEFENDANT MUST BEAR THE COSTS .

ON THOSE GROUNDS,

UPON READING THE PLEADINGS;

UPON HEARING THE REPORT OF THE JUDGE - RAPPORTEUR;

UPON HEARING THE PARTIES;

UPON HEARING THE OPINION OF THE ADVOCATE GENERAL;

HAVING REGARD TO THE TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY, ESPECIALLY ARTICLES 173 AND 179;

HAVING REGARD TO THE PROTOCOL ON THE STATUTE OF THE COURT OF JUSTICE OF THE EUROPEAN ECONOMIC COMMUNITY;

HAVING REGARD TO THE STAFF REGULATIONS OF OFFICIALS OF THE EUROPEAN ECONOMIC COMMUNITY, ESPECIALLY ARTICLES 5, 25, 27, 43, 45, 90, 91 AND 110;

HAVING REGARD TO THE RULES OF PROCEDURE OF THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES;

Operative part

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . ANNULS THE DECISION OF 8 JULY 1963

1 . ANNULS THE DECISION OF 8 JULY 1963 WHEREBY THE COMMISSION OF THE EUROPEAN ECONOMIC COMMUNITY APPOINTED MR EDOARDO VOLPI TO THE POST OF ASSISTANT IN THE DIRECTORATE - GENERAL OF ADMINISTRATION, DECLARED VACANT BY VACANCY NOTICE N . 546;

2 . ANNULS THE DECISION OF 3 JULY 1963

2 . ANNULS THE DECISION OF 3 JULY 1963 WHEREBY THE COMMISSION OF THE EUROPEAN ECONOMIC COMMUNITY APPOINTED MR DIETER ROGALLA TO THE POST OF PRINCIPAL ADMINISTRATOR IN THE DIRECTORATE-GENERAL OF ADMINISTRATION DECLARED VACANT BY VACANCY NOTICE N . 515;

3 . ORDERS THE COMMISSION OF THE EUROPEAN ECONOMIC COMMUNITY TO BEAR THE COSTS .