JUDGMENT OF THE COURT OF FIRST INSTANCE (Fourth Chamber)

19 February 1998

Case T-3/97

Anna Maria Campogrande

v

Commission of the European Communities

‛Officials — Notice of vacancy — Level of post to be filled — Appointment to a Grade A 4/A 5 post of head of unit — Illegalityof the Commission's decision of 19 July 1988 — Rejection of application for post’

Full text in French II-215

Application for:

annulment of the Commission's decision to appoint Mr Cesare De Montis to the post of Head of Unit 2 (‘Andean Pact’) of Directorate A (‘Latin America’) of Directorate-General IB (External relations: Southern Mediterranean, Middle and Near East, Latin America, South and South-East Asia and North-South Cooperation) and of the Commission's decision rejecting the applicant's candidature for that post.

Decision:

Application dismissed.

Abstract of the Judgment

The applicant, a Principal Administrator of the Commission, has been classified in Grade A 4, Step 5, since 1 January 1992. Since September 1975 she has been attached to the Directorate-General for External Economic Relations (DG I), where she is currently in charge of the ‘Uruguay desk’.

In Summary of Vacancy Notices No 39 of 14 December 1995 the Commission published, pursuant to Articles 4 and 29(l)(a) of the Staff Regulations of Officials of the European Communities (Staff Regulations), Notice of Vacancy COM/141/95 (the contested vacancy notice) for the post of Head of Unit 2 ‘Andean Pact’ in Directorate B ‘Latin America’ of the Directorate-General for External relations: Southern Mediterranean, Middle and Near East, Latin America, South and South-East Asia and North-South Cooperation (DG IB) (Unit IB.B.2). The notice stated that the successful applicant would be responsible for relations with the countries concerned. As regards the necessary qualifications, it stated: ‘Knowledge of external relations and cooperation policy. Ability to negotiate in an international environment. Experience in managing a team.’

On 9 January 1996 the applicant submitted her candidature for post COM/141/95. By note of 12 January 1996 she sent a copy of her most recent staff report to the Secretary of the Appointments Advisory Committee (CCN).

By letter of 30 January 1996 the Secretary of the CCN informed the applicant that, ‘following the proceedings, and without prejudging the final decisions adopted by the appointing authority for the purpose of filling the post in question, the [CCN] delivered the following opinion:

— re examination of the application submitted: following examination of the applications, your application should not be taken into consideration on this occasion’.

The appointing authority notified the applicant on 7 March 1996 of its decision not to accept her application for the post in issue. The appointing authority filled the post by transferring Mr Cesare De Montis, a Grade A 5 official in DG I, who since 1995 had been responsible for coordinating financial aid to Turkey, Malta and Cyprus.

On 6 May 1996 the applicant submitted a complaint under Article 90(2) of the Staff Regulations against the appointment of Mr Cesare De Montis to die contested post, the corresponding decision of the appointing authority of 7 March 1996 not to appoint her to the post and Commission Decision COM(88)PV 928 of 19 July 1988 on the filling of middle-management posts, published in Administrative Notices No 578 of 5 December 1988, as amended by Commission Decision of 28 June 1995 published in Administrative Notices No 898 of 7 July 1995 (decision of 19 July 1988).

On 2 October 1996 the Commission rejected her complaint.

Substance

First plea, alleging the illegality of the decision of 19 July 1988

First part of the first plea, alleging infringement of Article 5 of the Staff Regulations and of Annex I thereto

In the context of a procedure to fill a middle-management post within the Commission, the rale in point 3.1 of the decision of 19 July 1988 that the level of the post to be filled is to be determined according to the importance of the tasks entrusted to the office in question does not require that the description of the functions set out in Annex 2 to that decision contain particular criteria for determining the importance of the tasks entrusted to the office in question. Although the decision determining the level of a post of Head of Unit must be taken in the light of the importance of the tasks carried out by the unit in question, it does not follow that the functions of the Head of Unit must be defined differently according to the level of the post. The fact that a Head of Unit's duties are described in the same way where they correspond to a standard Grade 3 Head of Division post and to a standard Grade A 4/A 5 post of Principal Administrator is compatible with Article 5 of the Staff Regulations and Annex I thereto (paragraphs 30 and 31).

See: 193/82 to 198/82 Rosani and Others v Council [1983] ECR 2841, para. 11; T-10/94 Kratz v Commission [1995] ECR II-1455, para. 53; T-16/94 Benecos v Commission [1995] ECRSC II-335

Second part of the first plea, alleging 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 38)

See: T-56/94De Smuts v Commission [1996] ECRSC II-1325. para. 37

The rejuvenation of middle management was among the objectives pursued by the Commission when it adopted the decision of 19 July 1988. In pursuing that objective the Commission would have misused its powers only if the rejuvenation of middle management were difficult to reconcile with the interest of the service, which was the precise aim pursued when the power to adopt the decision of 19 July 1988 was conferred on the Commission (paragraphs 40 and 41).

Provided that that objective has not led the Commission to abandon the other objectives set out in the statement of reasons of the decision of 19 July 1988 and the guidelines based on that objective are followed only where the comparison of merits is not decisive, the rejuvenation of middle management cannot be regarded as incompatible with the interest of the service (paragraph 44).

Third part of the first plea, alleging beach of the principle that the decision relating to the level of the post to be filled is necessarily objective in nature

The decision of 19 July 1988, as amended on 28 June 1995, provides that the CCN and the appointing authority may examine potential applications for a middle management post to be filled within the Commission before defining the level ofthat post. That is not capable of affecting the necessarily objective nature of the procedure. The Commission must be allowed to provide for the CCN to keep itself constantly informed of the state of the institution's human resources so that it will be in a position to carry out its task to the full and in the best possible manner. Furthermore, such knowledge is among the matters of normal and legitimate concern to an organ responsible, inter alia, for administering an institution's human resources. Moreover, even supposing that the decision of 19 July 1988 were to be declared illegal in that it allows the CCN and the appointing authority to examine potential applications for middle management posts within the Commission, the Community judicature would not be in a position to review the question whether the Commission's Director-General for Personnel and Administration and the Director-General concerned by the post to be filled took account of their knowledge of the state of human resources in the Commission and the Directorate-General in question when, in the context of the CCN, they decided on the level of the post to be filled, unless evidence were adduced that they adopted their decision for the purpose of favouring one potential candidate over the others (paragraphs 55, 56 and 59).

Fourth part of the first plea, alleging breach of the principle that every official is entitled to reasonable career prospects within his institution and of Article 5(3) of the Staff Regulations

The principle that every official is entitled to reasonable career prospects within his institution means that where the appointing authority contemplates filling vacant posts it must first consider, pursuant to Article 29 of the Staff Regulations, whether the post can be filled by promotion or transfer within the institution and then whether to hold competitions internal to the institution. The order of preference thus established is the expression of the principle that officials who are recruited are entitled to reasonable career prospects. Having regard to that definition, the arguments which the applicant puts forward in her application are not such as to disclose a breach of the principle referred to, since they do not relate to any breach of the order of preference established by Article 29 of the Staff Regulations (paragraph 65).

See: 20/83 and 21/83 Vlachos v Court of Justice [1984] ECR 4149, para. 19; T-52/90 Volger v Parliament [1992] ECR II-121, para. 24

Article 5(3) of tlie Staff Regulations provides that ‘[identical conditions of recruitment and service shall apply to all officials belonging to the same category or the same service’ (paragraph 66).

The rule in the second indent of point 3.2 of the new version of the decision of 19 July 1988 that ‘where a post of head of unit/counsellor is to be filled which involves promotion from A 4 to A 3, candidates must have appropriate management experience’ does not have the effect that the applicant's career is subject to different conditions from those applicable to the careers of younger officials. All Grade A 4 officials must meet that condition if they are to reach Grade A 3; and Grade A 5 officials must be promoted to Grade A 4 before they can seek promotion to Grade A 3, provided that they meet the ‘appropriate management experience’ requirement. Furthermore, even an official who meets the conditions for promotion has no subjective right to promotion (paragraph 67).

See: T-262/94 Baiwir v Commission [1996] ECRSC II-739, para. 67

The career profiles set out in Annex I to the decision of 19 July 1988 concern younger officials who have shown that they have special potential and represent the Commission's general desire to rejuvenate its middle management. For these career profiles to be discriminatory on the ground of age against officials eligible to occupy middle management posts there must be an exclusive criterion for selection, one which rules out all other criteria for selection, such as consideration of the comparative merits of the various candidates as required by Article 45 of the Staff Regulations. That is not the case, since taking those career profiles into consideration is merely an option offered to the CCN. The applicant has therefore failed to establish that the decision of 19 July 1988 infringed Article 5(3) of the Staff Regulations in that regard (paragraphs 68 to 70).

Second plea in law, alleging that the decision determining the level of the post to be filled is unlawful

In the context of a recruitment procedure an applicant may, in an action challenging steps in that procedure, contest the legality of earlier steps which are closely linked to them, since in such a procedure applicants cannot be expected to bring as many actions as the number of acts which may have affected them adversely. The applicant is therefore entitled to contest the legality of the decision defining the level of the post to be filled in the context of the present procedure (paragraphs 81 and 83).

See: C-448/93 P Commission v Noonan [1995] ECR I-2321, para. 17

Since the appointing authority has a wide discretion in determining the level of a post to be filled, the Court's review must be limited to an examination of the question whether, having regard to the considerations which may have influenced the administration in making its assessment, the administration remained within reasonable bounds and did not use its discretion in a manifestly incorrect way. The Court cannot therefore substitute its assessment of the level at which the post is to be filled for that of the appointing authority (paragraph 84).

See: T-3/92 Latham v Commission [1994] ECRSC II-83, para. 46

The comparison of the units of Directorate B which the applicant malees fails to demonstrate that the appointing authority used its power in a manifestly incorrect way in fixing the level of the post of Head of Unit IB. B. 2 at Grade A4. On the basis of the criteria used by the applicant in determining the relative importance of each unit, the post of head of the most important unit in that directorate, Unit IB.B.l (Central America, Mexico, Cuba), is occupied by a Grade A 4 official. Furthermore, Units IB.B.2 and IB.B.3 were created when the former ‘South America’ unit was split up, and the former head of that unit, a Grade A 3 official, is now Head of Unit IB.B.3. The presence of this Grade A 3 official is therefore not such as to establish that in not fixing the level of the post of Head of Unit IB.B.2 at Grade A 3 the appointing authority was guilty of a manifest error of assessment (paragraphs 85 to 87).

There is no need to consider the level at which the post of Head of Unit IB.B.2 would be fixed if it were to be declared vacant, since the fact that it is currently occupied by a Grade A 3 official does not in itself preclude the appointing authority from exercising its wide discretion in choosing the level of such a post if it were subsequently to become vacant (paragraph 88).

Third plea in law, alleging the illegality of the contested vacancy notice

The purpose of a notice of vacancy is, first, to inform those concerned as precisely as possible of the nature of the conditions required to occupy the post to be filled in order to enable them to determine whether it is appropriate to apply for it and, secondly, to define the legal framework within which the appointing authority will consider the comparative merits of the candidates as provided for in Article 45(1) of the Staff Regulations. Furthermore, the role played by a notice of vacancy must be distinguished from that played by a subsequent document describing the post in question. The purpose of the second document is to keep the staff of the institution concerned informed, on an informal basis, of current events within the institution (paragraphs 100 to 102).

See: Benecos v Commission, cited above, para. 19

The description of the post of Head of Unit IB.B.2 in die contested notice of vacancy enabled the applicant to submit her candidature and was sufficiently precise for it to be possible to consider the comparative merits of the applicants and, on that basis, to reject the applicant's candidature and appoint Mr Cesare De Montis (paragraph 103).

Fourth plea in law, alleging inadequacy of the statement of reasons in the decision rejecting the applicant's candidature

In order to determine the adequacy of the statement of reasons of a measure it is necessary to place it in the context in which it was adopted. General and purely procedural reasons cannot be regarded as adequate, however, if the appointing authority has not informed the applicant, at the latest in its decision rejecting the complaint, of the individual and relevant reason which justified rejecting the candidature of the official concerned (paragraph 112).

See: C-350/88 Delacre and Others v Commission [1990] ECR I-395, para. 16; T-26/90 Finsider v Commission [1992] ECR II-1789, para. 72; T-25/92 Vela Palacios v ESC [1993] ECR II-201, para. 25; Benecos v Commission, cited above, paras 33 and 35

In its decision expressly rejecting the applicant's complaint the appointing authority did not simply provide general and purely procedural reasons. It stated that the applicant's candidature had been rejected because she did not show a higher level of ability in management and diplomacy than the successali candidate. Those two elements must therefore be regarded as constituting the individual and relevant ground which is required in order to satisfy the obligation to provide an adequate statement of reasons for the decision rejecting the applicant's candidature (paragraph 113).

Fifth plea in law, alleging the existence of a manifest error in assessing the merits of Mr Cesare De Montis

In assessing the qualifications and merits of the candidates to be taken into consideration in making a decision on appointment by way of promotion or transfer, the appointing authority possesses a wide discretion. In that connection, review by the Community judicature must be confined to the question whether, having regard to the various considerations which have influenced the administration in making its assessment, the latter has remained within reasonable bounds and has not used its power in a manifestly incorrect way. The Community judicature cannot therefore substitute its assessment of the candidates' qualifications and merits for that of the appointing authority (paragraph 122).

See: T-496/93 Allo v Commission [1995] ECRSC II-405, para. 39

The applicant has been unable to show that the appointing authority did not remain within reasonable bounds or used its power in a manifestly incorrect way in choosing to appoint Mr Cesare De Montis to the post of Head of Unit IB.B.2 (paragraph 127).

Operative part:

The application is dismissed.