JUDGMENT OF THE COURT OF FIRST INSTANCE (Third Chamber)

15 February 1996

Case T-5 89/93

Susan Ryan-Sheridan

v

European Foundation for the Improvement of Living and Working Conditions

‛Officials — Employees of the European Foundation for the Improvement of Living and Working Conditions — Recruitment procedure — Rejection of an internal candidate — Action for annulment — Action for damages’

Full text in French II-77

Application for:

annulment of the decision rejecting the applicant's candidature for a post of Programme Manager : Publications and for an order requiring the European Foundation for the Improvement of Living and Working Conditions to pay damages.

Decision:

Application dismissed.

Abstract of the Judgment

Ms Ryan-Sheridan is a ‘Publications Officer’ in category B. In this capacity she is responsible for the overall administration and management of the Foundation's publications programme under the authority of N.W., the head of service.

The Director of the Foundation wrote a memorandum to N. W. informing him that a competition was to be organized with a view to recruiting a Programme Manager : Publications in Category A 7/A 6 with responsibility for policy and strategy for a publications programme.

The memorandum referred to a competition which would initially be restricted to Community officials but it also provided, if necessary, for the preparation of a general competition based on candidates' qualifications and an interview.

In order to be eligible, candidates were specifically required to have a university education, attested by a relevant degree or diploma, a minimum of five years' relevant practical experience, fluency in a Community language and knowledge of at least another Community language. The Recruitment Committee was to consider applications submitted by members of staff of other Community bodies before applications to take part in the general competition.

The Foundation published a vacancy notice addressed to all its Category A officials eligible for transfer to the vacant post. The description of the duties relating to the vacant post repeated in its entirety that set out in the abovementioned memorandum from the Director but the vacancy notice did not require internal candidates to meet any particular conditions of eligibility.

No member of the Foundation's staff applied. The Foundation then published a notice identical with the first, but this time addressed to all its members of staff, and a notice of restricted competition addressed to employees of other Community bodies. That notice required, moreover, that external candidates should have a university education, with a degree or diploma relevant to the specialization, a minimum of five years' appropriate experience after graduation, a thorough knowledge of English or French and a satisfactory knowledge of a second Community language.

In the memorandum which it sent to the Director of the Foundation concerning the ‘results of the internal and restricted competitions’, the Recruitment Committee pointed out that it had examined, in the first place, three internal candidatures, one of which was the applicant's, and that it had unanimously found that none of the three candidates was sufficiently qualified or experienced in the various specific areas covered by the duties described to warrant being called for interview.

On that ground, the Director of the Foundation informed the applicant that her application for the vacant post had been unsuccessful.

The applicant lodged a complaint and from the outset brought an action for annulment and for damages, together with a request that the contested acts and the recruitment procedure be suspended. That application for interim relief was dismissed (order of the Court of First Instance in Case T-589/93 R Ryan-Sheridan v EFILWC [1994] ECRSC II-257).

The Foundation rejected the applicant's complaint on the ground, in particular, that the post which she occupied and the vacant post were different both in terms of their nature and their level.

Jurisdiction of the Court of First Instance

The Court observes that under Regulation No 1860/76 it has jurisdiction in any dispute between the Foundation and its employees. Even though the Foundation is not a Community institution within the meaning of the Staff Regulations of Officials of the European Communities, the present case constitutes a dispute between the European Community and one of its servants within the meaning of Article 179 of the EC Treaty.

The claim for annulment

Admissibility

The Court finds that the decision adversely affecting the official is the act contained in the letter from the Director of the Foundation informing the applicant that her application had not been successful, inasmuch as that act defines once and for all the position of the Foundation on completion of a recruitment procedure involving an internal notice, a notice of restricted competition and the Recruitment Committee's opinion (paragraph 23).

See: 204/85 Streghili v Court of Auditors [1987] ECR 389, para. 6; T-69/92 Seghers v Council [1993] ECR II-651, para. 28; T-20/92 Moat v Commission [1993] ECR II-799, para. 43

The application for annulment brought by the applicant is thus admissible in so faias it is directed against the decision rejecting her candidature and, when examining the lawfulness of that decision, the Court may, in view of the interrelation between the various steps which make up the recruitment procedure, examine whether the three preparatory acts, which are closely linked to the contested decision, may be unlawful (paragraph 25).

See: 12/64 and 29/64 Ley v Commission [1965] ECR 107; Case 3/66 Alfieri v Parliament [1966] ECR 437; C-448/93 P Commission v Noonan [1995] ECR I-2321, paras 17 to 19; T-108/92 Caló v Commission [1994] ECRSC II-213, para. 13

Substance

1. Infringement of Article 29 of the Staff Regulations

The Court finds that, contrary to the applicant's claims, it does not appear from the facts of the case that the defendant departed from the order of precedence laid down by Article 29 of the Staff Regulations, assuming that that provision is applicable to the Foundation (paragraph 32).

2. Infringement of the principle of equal treatment

The Court observes that since she was able to apply for the vacant post, the applicant does not, in any event, have any interest in claiming that, unlike the internal notice, the notice of restricted competition laid down specific conditions relating to ability which enabled the staff of other Community bodies to decide whether they should submit an application. Moreover, the Court finds that the plea is factually incorrect, since the conditions for filling the vacant post were not more exacting for the staff of the Foundation than for the staff of other Community bodies (paragraphs 41 and 42).

3. The unlawfulness of the internal notice

The Court finds that the applicant has no interest in relying on any inaccuracy in the internal notice, irrespective of whether its exact legal nature is that of a vacancy notice or a competition notice. The alleged inaccuracy, assuming it were proved, does not adversely affect her, since she was able to submit her application for the vacant post. Moreover, the Court finds that the internal notice fulfils the conditions laid down in the case-law for vacancy notices and competition notices (paragraph 55 and 56).

See: T-16/94 Benecos v Commission [1995] ECRSC II-335, para. 18; Seghersv Council, cited above, para. 34

4. Infringement of the internal notice

The Court finds that, since the Foundation considered that the applicant was not sufficiently qualified or experienced in the various specific areas covered by the duties described in the internal notice, the decision to reject her candidature was not based on conditions which were not expressly set out in that notice (paragraphs 61 and 62).

5. Manifest error of assessment

According to settled case-law, it was for the defendant to assess whether the applicant fulfilled the conditions laid down by the internal notice and that assessment may be questioned only in the event of a manifest error. Consequently, the Court camiot substitute itself for the defendant and review the latter's assessment of the professional abilities of the candidates, except in so far as it finds that there has been a manifest error of assessment (paragraph 75).

See: T-160/89 and T-161/89 Kalavros v Court of Justice [1990] ECR II-871, para. 29

After comparing the duties relating to the applicant's post and those relating to the post to be filled, the Court concludes that the applicant, who bears the burden of proof, has not been able to demonstrate the alleged correspondence between the duties relating to the two posts and that, accordingly, the Foundation was able to consider that the applicant was not sufficiently qualified or experienced in the various areas covered by the duties described in the internal notice without thereby committing a manifest error of assessment in that respect (paragraphs 76 to 86).

6. Lack of or inadequate statement of reasons

According to settled case-law, the purpose of a statement of reasons for a decision that adversely affects an official is to provide the official with the necessary indications to determine whether or not that decision is well founded in order that he may take the legal steps necessary to defend his rights and interests. Moreover, the obligation to state reasons is intended to enable the Community judicature to review the legality of the decision. Furthermore, the extent of the obligation to state reasons must be determined on the basis of the particular facts of each case. In particular, the reasons given for a decision are sufficient if it was adopted in circumstances known to the official concerned and enables him to understand the scope of the measure concerning him (paragraphs 90, 92 and 95).

See: 36/81, 37/81 and 218/81 Seton v Commission [1983] ECR 1789, para. 47; 69/83 Lux v Court of Auditors [1984] ECR 2447, para. 36; 111/83 Picciolo v Parliament [1984] ECR 2323; C-169/88 Prelle v Commission [1989] ECR 4335, para. 9; T-133/89 Búrban v Parliament[l990] ECR II-245, para. 43; T-5/92 Tallarico v Parliament [1993] ECR II-477, para. 35; T-80/92 Turner v Commission [1993] ECR II-1465, para. 62; T-36/93 Ojha v Commission [1995] ECRSC II-497, para. 60

The Court considers that the statement of reasons for the decision rejecting the applicant's candidature itself enabled her to challenge its substance and the Court to find that the Foundation could not be criticized for any error of assessment. Moreover, the applicant knew perfectly well that, at the very least, she was not sufficiently experienced or qualified with regard to the entire range of duties relating to the vacant post. Finally, the decision rejecting the applicant's complaint states sufficiently clearly and precisely the differences in nature and level between her post and the post to be filled (paragraphs 91, 93, 96 and 97).

7. Lack of formal impartiality of the Recruitment Committee and infringement of Article 10 of Regulation No 1860/76

The Court considers that, in accordance with Article 10, referred to above, the Director of the Foundation was informed in due time of the personal disagreement between the applicant and N.W. Accordingly, assuming that Article 10 of Regulation No 1860/76 is applicable, its provisions have, in any event, been observed (paragraphs 104 and 105).

Furthermore, it was objectively appropriate for N.W. to sit on the Recruitment Committee in his dual capacity as head of the service concerned and as the immediate superior of the future incumbent of the post to be filled. In addition, although it was the administration's duty to ensure the impartiality of the Recruitment Committee, the assessment made by N.W. of the applicant's professional ability, while it contained comments which were critical of her, was none the less reasoned, moderate and free of any element of such a kind as to suggest the existence of any animosity incompatible with the duty of impartiality incumbent upon the members of a recruitment committee. Finally, it is not disputed that the three members of the Recruitment Committee, one of whom represented the staff committee, were unanimous in their opinion. In those circumstances, it does not appear that N.W.'s presence as a member of the Recruitment Committee could have been such as to affect the objectivity of its deliberations (paragraphs 106, 107, 108 and 109).

8. Misuse of powers, abuse of process and infringement of Article 23 of Regulation No 1860/76

It has been consistently held that in order to prove that there has been a misuse of powers, it must be demonstrated on the basis of objective, relevant and consistent evidence that the disputed decision was taken for purposes other than those stated or that the administration exercised its powers for purposes other than those for which they were conferred upon it (paragraph 117).

See: 817/79 Buyl and Others v Commission [1982] ECR 245, para. 28; Lux v Court of Auditors , cited above, para. 30; T-108/89 Scheuer v Commission [1990] ECR II-411, paras 49 and 50; T-544/93 and T-566/93 Abello and Others v Commission [1995] ECRSC II-815, para. 86

The Court finds that, contrary to the applicant's allegations, it has not been shown that the Foundation preferred an external applicant from the outset, that the Recruitment Committee considered external candidatures submitted in response to the notice of restricted competition before internal candidatures or that the applicant's candidature was rejected as a result of the personal disagreement between her and N.W. (paragraphs 118, 119 and 120).

9. Breach of the principle of the protection of legitimate expectations and of the right of the applicant to have her qualifications taken into consideration in practice

The Court considers that neither the experience of the applicant, nor her university degrees, nor those two factors taken together, support the view that, by not calling her for an initial interview, the Recruitment Committee committed a manifest error of assessment. Nor is it apparent from the case-file that the Foundation gave the applicant, contrary to her claim, assurances which were sufficiently precise to arouse legitimate expectations as to her eligibility for the vacant post (paragraphs 126 and 127).

10. Breach of the duty to have regard for the welfare of officials

The Court considers that the applicant cannot usefully rely on this plea since she was not able to establish the alleged correspondence between the duties relating to her post and those relating to the post to be filled.

Moreover, the requirements inherent in the duty to have regard for the welfare of officials cannot prevent the appointing authority from adopting measures which it considers to be necessary in the interests of the service, since the filling of each post must be based primarily on those interests. In view of the scope of the discretion which the authority has in evaluating the interests of the service, the review undertaken by the Court must be confined to the question whether the authority remained within the bounds of that discretion and did not exercise it in a manner which is manifestly incorrect (paragraphs 131 and 132).

See: Turner v Commission, cited above, para. 77

Since it cannot be reproached for any irregularity in that regard, the Foundation has not breached its duty to have regard for the welfare of officials (paragraph 133).

The claim for damages

It is settled law that the Community can only be held liable to pay damages if a number of conditions are satisfied as regards the illegality of the allegedly wrongful act committed by the Community body, the actual harm suffered and the existence of a causal link between the act and the damage alleged to have been suffered (paragraph 141).

See: T-3/92 Latham v Commission [1994] ECRSC II-83 para. 63

Since the applicant has not adduced any evidence that the disputed recruitment procedure was irregular, the claim for damages for the loss which she claims to have suffered as a result of the decision to reject her candidature must be dismissed (paragraph 142).

See: Latham v Commission, cited above, paras 65 and 66

The Court considers, ex abundanti cautela, that, in so far as the claim put forward by the applicant during the hearing and increasing to BFR 500000 the damage alleged during the written procedure to have been suffered, is based, according to the Foundation, on a different cause, it constitutes a new claim and must therefore, as such, be rejected as inadmissible (paragraph 144).

See: T-41/89 Schwedler v Parliament [1990] ECR II-79, para. 34; T-22/92 Weißenfels v Parliament [1993] ECR II-1095, paras 27 and 28

Operative part:

The application is dismissed.