JUDGMENT OF THE COURT OF FIRST INSTANCE (Fourth Chamber)

19 September 1996

Case T-158/94

François Brunagel

v

European Parliament

‛Officials — Recruitment procedure — Application of Article 29(2) of the Staff Regulations — Assessment of candidates' professional ability — Misuse of powers — Nondiscrimination — Statement of reasons’

Full text in French II-1131

Application for:

annulment of the decision of the European Parliament of 19 July 1993 not to appoint the applicant to the post of Head of Protocol and, consequently, for annulment of the decision to appoint Mr B to that post.

Decision:

Application dismissed.

Abstract of the Judgment

The applicant, an official in Grade A 4 in the Directorate-General for Information and Public Relations of the European Parliament, where he held the post of Head of Publications and Events, applied for the Grade A 3 post of Head of Protocol which had been the subject of a vacancy notice of 13 April 1992. His application was rejected on 29 September 1992. None of the other candidates who applied was successful.

On a proposal from the Director General for Administration, and after obtaining the opinion of the Joint Committee, the appointing authority reopened the procedure for filling the post, this time pursuant to Article 29(2) of the Staff Regulations of Officials of the European Communities (‘the Staff Regulations’). On 29 September 1992, a selection committee was set up.

The applicant reapplied. On 3 March 1993, he was informed that he was among those included on the list of suitable candidates. In a memorandum of 22 April 1993, the Director of Cabinet of the President of the Parliament informed the Secretary-General that the President, following individual interviews with the candidates put forward by the selection committee, considered Mr B to be the candidate most qualified to fill the vacant post. The decision to appoint Mr B was adopted on 15 July 1993 and the applicant was informed thereof by letter of 19 July 1993. On 19 October 1993, he lodged a complaint, which was rejected by implied decision.

Substance

Tìie plea that Articles 27, 29 and 30 of the Staff Regulations were infringed

The first limb: unlawfulness of the decision to have recourse to the procedure under Article 29(2) of the Staff Regulations

The Court points out first that the procedure provided for by Article 29(2) of the Staff Regulations may be used in two cases only, that is to say for the recruitment of Grade A 1 or A 2 officials and, ‘in exceptional cases, also for recruitment to posts which require special qualifications’ (paragraphs 34 and 35).

According to the case-law, the term ‘exceptional case’ must be interpreted strictly. In addition, if the procedures laid down by Article 29(1) of the Staff Regulations produce candidates satisfying the special qualifications required, the special nature of the post can in no way justify treating the case as exceptional within the meaning of Article 29(2). Therefore, before following the procedure laid down in Article 29(2), the Community institutions must consider in each case whether the recruitment procedures listed in Article 29(1) are capable of leading to the appointment of a person of the highest standard of ability, efficiency and integrity. They are not required, however, to implement all the procedures mentioned therein (paragraph 36).

See: 176/73 Van Belle v Council [1914] ECR 1361, para. 14; 128/84 Van der Stijl v Commission [1985] ECR 3281, para. 22; T-586/93 Kolzonis v CSC [1995] ECRSC II-203, para. 94

As regards the question whether the ordinary procedure has produced a candidate possessing the special qualifications required, according to settled case-law it is for the appointing authority to assess whether a candidate fulfils the conditions required by the vacancy notice, and that assessment may be questioned only in the case of manifest error (paragraph 38).

See: 111/83 Picciolo v Parliament [1984] ECR 2323, para. 16

The Court notes from the documents before it that the appointing authority decided that the internal candidates considered under the ordinary procedure in accordance with Article 29(l)(a) did not possess the special qualifications required by the vacancy notice. According to the Director General for Administration, they would have needed to acquire further experience in order to possess those qualifications (paragraphs 39, 40 and 41).

For posts which require special qualifications, it is also for the appointing authority to decide, subject to review by the Community judicature, whether the case is exceptional, and that assessment may be questioned only in the case of manifest error (paragraph 45).

See: 81/74 to 88/74 Marenco and Others v Commission [1975] ECR 1247, para. 27

The Parliament contended that special qualifications were needed for the duties of Head of Protocol. The Court considers that there is no reason to doubt that assessment (paragraphs 46, 47 and 48).

As regards the existence of an exceptional case, the Parliament, in reply to questions put by the Court at the hearing, described the geopolitical situation at the time as exceptional, so that a new job description for the post of Head of Protocol had to be established. The Court considers, on this point too, that the Parliament's explanations, which moreover are not disputed by the applicant, are not to be called into question (paragraphs 49 and 50).

Finally, it follows from the foregoing that the applicant's argument that the appointing authority could have held an open competition must be discounted. Where the ordinary procedure would produce suitable candidates but the institution takes the view that it would be desirable to have a wider choice of candidates, it may, admittedly, hold an open competition under Article 29(1) of the Staff Regulations in which all potential candidates, both internal and external, may participate. However, when the conditions laid down by Article 29(2) are satisfied, the institution is entitled to have recourse to a different type of procedure in order to fill the post (paragraph 51).

See: Van der Stijl v Commission, cited above, para. 23; Kotzonis v ESC. cited above, para. 94

The second limb: failure to comply with the rules on recruitment (Articles 27 and 30 of the Staff Regulations)

Under Article 30 of the Staff Regulations, the appointing authority chooses from the list of suitable candidates drawn up at the end of the competition those whom it intends to appoint to the vacant posts; it is entitled in making its selection not to follow the precise order of merit of the successful candidates in the competition for reasons which are for it to determine and, if necessary, justify before the Community judicature, provided that it does not destroy the very essence of the competition by departing substantially from its results without serious reasons. In the Court's opinion, that case-law applies to a procedure such as the one in this case (paragraphs 67 and 68).

See: 62/65 Serio v Commission [1966] ECR 561 ; 246/84 Kotsonis v Council [1986] ECR 3989, para. 9

When comparing candidates' merits, the appointing authority has a wide discretion. The Court's review must accordingly be confined to the question whether, having regard to the various considerations which have influenced the administration in making its assessment, the administration, after following a procedure untainted by irregularity, has remained within reasonable bounds and has not used its power in a manifestly incorrect way or for purposes other than those for which it was conferred upon it (paragraph 69).

See: Kotzonis v ESC, cited above, para. 81

It is apparent from the account given by the Parliament, first, that it attributed particular importance to the personal qualities of the selected candidate and, secondly, that it wished to elaborate a new job description for the post of Head of Protocol. Since there is no information before the Court which would give grounds for believing that the assessment of the candidates' merits was vitiated by an error of fact or law, the second limb of the plea must be rejected (paragraphs 70 to 74).

The pleas alleging misuse of powers and breach of the principle of non-discrimination

The concept of misuse of powers refers to cases where an administrative authority has used its powers for a purpose other than that for which they were conferred upon it. According to established case-law, a decision is vitiated by misuse of powers only where it appears, on the basis of objective, relevant and consistent evidence, to have been taken for purposes other than those stated (paragraph 86).

See: Koizonis v ESC, cited above, para. 73; T-64/94 Benecos v Commission [1995] ECRSC II-769, para. 76

It is apparent from the Court's findings on the plea alleging infringement of Articles 27, 29 and 30 of the Staff Regulations, first, that the appointing authority did not exercise its discretion in a manifestly wrong way by utilizing the procedure provided for by Article 29(2) of the Staff Regulations and, secondly, that there is no reason to believe that Mr B's application was assessed in the light of conditions other than those set out in the recruitment notice (paragraph 88).

Since the other arguments put forward by the applicant under those pleas cannot be regarded as relevant for the purpose of establishing that the appointing authority misused its powers, the Court finds that the appointing authority did not use those powers for a purpose other than that for which they were conferred upon it (paragraphs 89, 90 and 91).

The principle of nondiscrimination was not breached, since the appointing authority in the exercise of its discretion duly considered the relative merits of the applicant's candidature (paragraph 92).

See: T-52/90 Volger v Parliament [1992] ECR II-121. para. 24 et seq.

The plea that no reasons or no adequate reasons were given

The purpose of the obligation to state the grounds on which a decision is based is to enable the Community judicature to review the legality of the decision and to provide the person concerned with sufficient information to determine whether the decision is well founded or whether it contains a defect giving grounds for its legality to be challenged. That principle has been confirmed as regards Article 29(2) of the Staff Regulations. The requirement is satisfied when the measure at issue has been adopted in circumstances known to the official concerned, which enable him to apprehend the scope of the decision taken in his regard (paragraph 106).

See: 195/80 Michel v Parliament [1981] ECR 2861, para. 22; C-116/88 and C-149/88 Hecq v Commission [1990] ECR I-599, paras 26 and 27; T-160/89 and T-161/89 Kalavros v Court of Justice [1990] ECR II-871, para. 64; T-80/92 Turner v Commission [1993] ECR II-1465 para 62

In the case of a decision rejecting an application for a vacant post, the appointing authority is bound to state the grounds at least for the decision rejecting the official's complaint. It is sufficient that the statement of reasons be based on compliance with the conditions which under the Staff Regulations must be satisfied for the procedure to be lawful. A statement of reasons that is general and purely procedural in nature cannot be regarded as sufficient when the candidate is not given the specific and relevant ground for the rejection of his candidature. In this case, since the applicant was not given the grounds shown to be relevant to the rejection of his candidature, the brief statement of reasons in the contested decision is not sufficient to comply with the obligation to give reasons. The applicant indicated clearly by his complaint that he wished to ascertain the specific and relevant grounds upon which his application was rejected (paragraphs 107, 108 and 109).

See: Volger v Parliament, cited above, para. 36; T-108/92 Caló v Commission [1994] ECRSC II-213, para. 34; T-16/94 Benecos v Commission [1995] ECRSC II-335, para. 35

However, the Court does not take the view that no grounds at all were stated. It should be noted in particular that the applicant's candidature was rejected at the final stage of the procedure. The applicant must have understood, therefore, that the appointing authority was, in the exercise of its discretion, making a selection on die basis of the attributes of the suitable candidates listed. In addition, since the explanations given by the Parliament during the course of the proceedings have informed him of the reasons that concerned him personally, the plea of inadequate reasoning has become nugatory (paragraphs 113, 114 and 115).

See: T-25/92 Vela Palacios v ESC [1993] ECR II-201. para. 27; T-16/94 Benecos v Commission [1995] ECRSC II-335, para. 38

Costs

Having regard to the fact that adequate reasons had still not been given for the contested decision when the complaint was rejected and that that was corrected only after proceedings had been brought, the Court considers that the Parliament should be ordered to pay the applicant's costs (paragraph 119).

Operative part:

1. The application is dismissed.