JUDGMENT OF THE COURT OF FIRST INSTANCE (Second Chamber)

26 January 2000

Case T-86/98

Dimitrios Gouloussis

v

Commission of the European Communities

‛Officials — Promotion — Grade A 2 post — Action for annulment’

Full text in Greek II-23

Application for:

annulment of the decision to appoint Antonio Caeiro as Principal Legal Adviser to the Commission, of the decision rejecting the applicant's candidature for that post and also of the Commission's implied decision rejecting the applicant's complaint.

Held:

The application is dismissed. The Commission shall bear the costs.

Summary

Officials — Decision adversely affecting an official — Rejection of a candidature — Obligation to state reasons no later than at the stage of rejecting the complaint — Non-compliance — Regularisation in the course of the litigation proceedings

Officials — Promotion — Criteria — Geographical equilibrium — Posts in Grade A 1 and A 2 — Filling thereof in consideration of candidates' nationality — Prohibition — Appointment of a candidate on the basis that his merits are greater than those of other candidates — Admissibility

Where the powers conferred on the appointing authority by the Staff Regulations are exercised by the college of Commissioners, the fact that the decision to appoint an official in Grade A 2 was prepared by the Advisory Committee on Appointments and the members' cabinets and then approved by the college of Commissioners without any detailed discussion at that level of the merits of the various candidates cannot be regarded as an irregularity vitiating the appointment procedure. If the members of the Commission were required to make systematic use of their power to consider all candidates in all procedures for the appointment of officials in Grade A 2, they would be prevented from taking advantage of the reduced workload resulting from the way in which the preparations for their meetings are currently organised in the cabinets. This arrangement corresponds with a long-established procedure based on an obvious interest in arriving at a preliminary provisional agreement among the cabinets, which does not compromise the legitimacy of any final decisions taken by the Commission or interfere with the college's freedom to take decisions. (see paras 25 and 26) See: T-112/96 Séché v Commission [1999] ECRSC II-623, para. 56

In a promotion procedure, the fact that mere predictions are made concerning the appointment or promotion of an official, even if they subsequently prove correct, does not in any way establish that that official was chosen in advance and appointed to the vacant post without the appointing authority having first considered the candidates' comparative merits. (see paras 42 and 43) See: T-496/93 Allo v Commission [1995] ECR II-405, para. 46

The rule in the third paragraph of Article 27 of the Staff Regulations that no post is to be reserved for nationals of any specific Member State must also be observed in regard to Grade A 1 and A 2 posts. However, any infringement of that article is precluded if the official concerned was appointed to the vacant post on the basis that his merits were greater than those of other candidates. (see paras 45 to 47) See: T-58/91 Booss and Fischer v Commission [1993] ECR II-147, para. 85, and the case-law cited there

The purpose of the pre-litigation procedure provided for in Articles 90 and 91 of the Staff Regulations is to give the parties the opportunity to find an amicable solution to the dispute. In that procedure the Community institution exercises an administrative function and not a judicial function. The latter function is reserved for the Court of First Instance (and then, where appropriate, the Court of Justice), before which an action may be brought when the parties do not succeed in finding an amicable solution to the dispute. (see para. 61) See: T-124/94 Maurissen v Court of Auditors [1996] ECRSC II-1229, para. 60