JUDGMENT OF THE COURT OF FIRST INSTANCE (Third Chamber)

12 December 2002

Joined Cases T-338/00 and T-376/00

Carmelo Morello

v

Commission of the European Communities

‛Officials — Procedure for filling vacant posts — Statement of reasons — Comparative consideration of candidatures and equal treatment of officials — Actions for annulment — Actions for damages’

Full text in French II-1457

Application for:

first, annulment of the Commission's decision not to appoint the applicant to the post of Head of Unit 2 ‘Motor vehicles, other means of transport and related mechanical engineering’ within Directorate F ‘Capital goods and consumer goods industries’ of the Directorate-General for Competition (COM/113/99) and of the decision to appoint another candidate to that post, and, second, damages.

Held:

Cases T-338/00 and T-376/00 are joined. The application in Case T-376/00 is dismissed as inadmissible. In Case T-338/00, the Commission is ordered to pay the applicant the sum of EUR 2 500. The remainder of the application in Case T-338/00 is dismissed. In Case T-376/00, the parties are ordered to bear their own costs. In Case T-338/00, the Commission is ordered to pay the costs.

Summary

Officials — Decision adversely affecting an official — Rejection of an application for a post — Obligation to provide a statement of reasons at the latest by the stage of rejection of the complaint — Scope — Failure to comply — Rectification during legal proceedings — Condition

The express rejection of a complaint, after the prescribed period for bringing an appeal against the implied decision rejecting the complaint has elapsed, and which does not contain any new elements in relation to the legal or factual situation existing at the time of the implied rejection, is purely confirmatory and not capable of having an adverse effect on the official concerned. The fact that the express decision rejecting the complaint contains a statement of grounds which was lacking both in the original decision rejecting the applicant's candidature itself and, by definition, in the implied decision rejecting the complaint does not thereby make it an act adversely affecting the official. It could only be otherwise, and the express decision rejecting the complaint could only constitute an actionable measure adversely affecting the official, if the express decision rejecting the complaint contained a reexamination of the applicant's situation in the light of new elements of law or of fact. (see paras 34-35) See: T-14/91 Weyrich v Commission [1991] ECR II-235, para. 42

The essential function of the vacancy notice is to give those interested the most accurate information possible about the conditions of eligibility for the post to enable them to judge whether they should apply for it. The vacancy notice is also intended to establish the legal framework within which the appointing authority will undertake consideration of the comparative merits of the candidates, provided for in Article 45(1) of the Staff Regulations. The appointing authority fails to respect that framework if it decides on the particular conditions required to fill the vacant post only after the vacancy notice has been published, regard being had to the candidates who have come forward, and if it takes into consideration, when examining the candidatures, requirements other than those set out in the vacancy notice, since such a course of action would deprive the vacancy notice of the essential function which it must fulfil in the recruitment procedure. (see paras 85, 87, 90) See: C-81/88 Müllers v ESC [1990] ECR I-249, para. 20; T-169/89 Frederiksen v Parliament [1991] ECR II-1403, para. 67; T-16/94 Benecos v Commission, cited above, para. 18; T-159/96 Wenk v Commission [1998] ECRSC I-A-193 and II-593, para. 25

The fact that, since the reform decentralising promotion and appointment measures was introduced within the Commission, directors-general have acted as the appointing authority does not remove the requirement, and still less the opportunity, for the Advisory Committee on Appointments to hear the director-general concerned. The purpose of hearing the director-general concerned is to inform the Advisory Committee on Appointments about the qualifications required for the post to be filled and about the assessment of the candidates' merits, which does not detract either from the independence of the Advisory Committee on Appointments when adopting its opinion or from that of the director-general in question, in his capacity as the appointing authority, when adopting the final decision at a later stage. The fact that, following the reform, the director-general concerned is now empowered to take appointment decisions, after consulting the President and two other Members of the Commission, does not alter the nature of, and fundamental reason for, the hearing of the director-general by the Advisory Committee on Appointments. (see para. 101)

In assessing the interests of the service and the qualities to be taken into consideration in the context of the decision referred to in Article 45 of the Staff Regulations, the appointing authority possesses a wide discretion and, in that connection, the Community judicature must restrict itself to consideration of the question whether, regard being had to the various considerations which have influenced the administration in making its assessment, the latter has remained within reasonable limits and has not used its power in a manifestly incorrect way. The Court may not substitute its assessment of the qualifications of the candidate appointed for that of the appointing authority. In that regard, the fact that an official has obvious and acknowledged merits does not exclude the possibility that, in the context of consideration of the candidates' comparative merits, other officials may have higher merits. Neither the fact of having occupied the post concerned in an acting capacity nor length of service in the lower grade constitute decisive factors overriding the interests of the service, which is the decisive criterion determining the choice of candidates to be promoted. (see paras 119, 122) See: 282/81 Ragusa v Commission [1983] ECR 1254, para. 9; C-446/00 P Cubero Vermurie v Commission [2001] ECR I-10315, para. 21; C-309/01 P Council v McAuley [2001], not published in the ECR, para. 18; T-112/96 and T-115/96 Séché v Commission [1999] ECRSC I-A-115 and II-623, para. 62; T-152/00 E v Commission [2001] ECRSC I-A-179 and II-813, para. 29

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 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. (see para. 134) See: Séché v Commission, cited above, para. 139; T-111/99 Samper v Parliament [2000] ECRSC I-A-135 and II-611, para. 64

Where there is a direct link between the action for annulment and a claim for compensation, the latter may be declared admissible as incidental to the action for annulment, without necessarily having to be preceded both by a request from the person concerned to the appointing authority for compensation for the damage allegedly suffered and by a complaint challenging the validity of the rejection of that request. (see para. 148) See: T-17/90. T-28/91 and T-17/92 Cámara Alloisio and Others v Commission [1993] ECR II-841. para. 46; T-36/93 Ojha v Commission [1995| ECRSC I-A-161 and II-497. para. 115