JUDGMENT OF THE COURT OF FIRST INSTANCE (First Chamber)

12 June 1997

Case T-237/95

Fernando Carbajo Ferrerò

v

European Parliament

‛Officials — Internal competition — Appointment to a post of Head of Division’

Fuli text in French II-429

Application for:

annulment of, first, the European Parliament's decision to appoint Mr X to the post of Head of Division in the European Parliament's Madrid Office following Internal Competition No A/88, and, second, the European Parliament's decision not to appoint the applicant to that post.

Decision:

Application dismissed.

Abstract of the Judgment

The applicant temporarily held a Grade A 5 post at the European Parliament's Information Office in Madrid (the Madrid Office).

On 10 January 1994 the Parliament published a vacancy notice with a view to filling, by promotion or transfer, the Grade A 3 post of Head of Division in the Parliament's Directorate-General for Information and Public Relations in the Madrid Office. That procedure did not result in any appointment.

On 9 March 1994 a notice of internal competition (No A/88) was published with a view to filling the post of Head of Division in the Madrid Office.

On 1 May 1994, the applicant was called upon to occupy the post of Head of Division temporarily until that post was filled and for a maximum period of one year.

On 13 December 1994 the applicant, who had taken part in competition No A/88, was notified that the Selection Board had decided to place him second on the list of suitable candidates.

The applicant subsequently learnt that the appointing authority had appointed Mr X to the post by a decision adopted on 21 February 1995.

On 29 May 1995 the applicant lodged a complaint against the appointing authority's decision not to appoint him to the post at issue and to appoint Mr X. That complaint was expressly rejected by decision of 6 October 1995.

Admissibility

When the appointing authority decides, at the final stage, to appoint a candidate appearing on a list of suitable candidates for a single post, that decision will inevitably be accompanied by a concomitant decision - at the very least an implicit, but nevertheless necessary, decision - not to appoint the other candidate or candidates on the list. The decision not to appoint an official has a direct and immediate impact on his legal situation by definitively excluding him from the procedure as a result of the simultaneous cancellation of the list of suitable candidates (paragraph 22).

See: T-l/90 Pérez-Mùiguez Casariego v Commission [1991] ECR II-143, paras 78 and 81

Substance

Since the appointing authority has a wide discretion when comparing the merits of candidates, such as those placed on a list of suitable candidates, review by the Community judicature must be confined to the question whether, having regard to the various considerations which 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 26).

See: T-586/93 Kotzonis v ESC [1995] ECR II-665, para. 81; T-158/94Brunagelv Parliament [1996] ECRSC II-1131, para. 69

The plea alleging misuse of power

According to the applicant, the misuse of power lies in particular in an ad hoc modification of the notice of competition compared with the vacancy notice, in the content of the notice of the competition itself and in the damage to the applicant's name and reputation (paragraph 29).

When examining the lawfulness of a decision rejecting an application, the Community judicature may, in view of the interrelation between the various steps which make up the recruitment procedure, examine whether a preparatory act, such as the notice of competition, which is closely linked to the contested decision, may be unlawful (paragraph 46).

See: T-589/93 Ryan-Sheridanv EFILWC [1996] ECRSC II-77, paras 23 and 25

The essential function of a notice of competition is to give those interested the most accurate information possible about the conditions of eligibility for the post in question, so as to enable them to judge whether they should apply for it. The appointing authority enjoys a wide discretion in deciding upon the criteria of ability required for the posts that are to be filled and in determining, in the light of those criteria and in the interests of the service, the rules and conditions under which a competition is organized (paragraph 47).

See: T-132/89 Gallone v Council [1990] ECR II-549, para. 27

In defining the conditions for admission to the tests, the notice of competition can, lawfully, merely repeat the general wording of Article 5(1) of the Staff Regulations, without specifying the level of experience required for the post to be filled, and thus leave it to the Selection Board to decide in each case whether the qualifications and diplomas produced and the relevant experience claimed by each candidate correspond to the level required by the Staff Regulations and, therefore, by the notice of competition, for the discharge of duties pertaining to the category to which that notice relates (paragraph 48).

See: 44/71 Marcato v Commission [1972] ECR 427, para. 14; 225/87 Belardinelliand Others v Court of Justice [1989] ECR 2353, paras 13 and 14

Where the appointing authority, in order to fill a vacant post, decides to extend its choice in the interest of the service, and to pass from one stage of the recruitment procedure to another which, according to the order of priority set out in Article 29(1) of the Staff Regulations, follows it, it must exercise such power within the legal framework which it has laid down for itself by means of the vacancy notice, and ensure that the conditions set out in that notice correspond to those set out in the notices relating to subsequent stages and, in particular, in the notice of competition. If it were open to the appointing authority to change the conditions of participation set out in the vacancy notice, from one stage in the procedure fulfilling a post to the next, in particular by making them less strict, it would be at liberty to organize external recruitment procedures without having to consider internal candidates (paragraph 50).

See: 341/85, 251/86, 258/86, 259/86,262/86 and 266/86, 222/87 and 232/87 Van der Stijl and Another v Commission [1989] ECR 511; T-140/94 Gutiérrez de Quijano y Llorens w Parliament [1996] ECRSC II-689, para. 43

In this case, the notice of competition was not changed in such a way as to compromise the necessary correspondence between the conditions set out in the vacancy notice and those set out in the notices relating to subsequent stages (paragraph 52).

Furthermore, the applicant failed to produce any objective, relevant and consistent evidence to suggest that the absence, in the notice of competition, of any entry conditions concerning qualifications and experience connected with the type of duties relating to the vacant post was intended to enable Mr X to take part in the competition (paragraph 55).

The plea alleging infringement of the notice of competition

There is no basis for the applicant's allegations concerning a possible irregularity in the language test and they are not sufficient to establish that the Selection Board failed to test his knowledge of all the languages which he had claimed to know on his application form (paragraph 72).

The plea alleging infringement of the appointment procedure

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. Since, in making its selection, it need not follow the precise order of merit of the successful candidates in the competition, it must logically also be entitled, when making that choice, not to follow the proposal of a consultative body, which is not provided for by the relevant rules and is given after the list of suitable candidates has been drawn up (paragraph 77).

See: 62/65 Serio v Commission [1966] ECR 561, 570; 246/84 Kotsonis v Council [1986] ECR 3989, para. 9; Brimagelv Parliament, cited above, para. 67

The plea alleging failure to give reasons

The obligation to give reasons laid down by the second paragraph of Article 25 of the Staff Regulations is intended, on the one hand, to provide the person concerned with sufficient information to determine whether the act adversely affecting him is well founded and whether it is appropriate to bring legal proceedings before the Court and, on the other, to enable the Court to review the legality of that act. The extent of that obligation must be assessed by reference to the actual circumstances, in particular the tenor of the act, the nature of the grounds relied on and the interest which the addressee may have in receiving explanations (paragraph 82).

See: T-60/94 Pierrat v Court of Justice [1995] ECRSC II-77, para. 31; T-280/94 Lopes v Court of Justice [1996] ECRSC II-239, para. 148

As a general rule the appointing authority is not required to give to the candidates who were not appointed and who are lower on a list of suitable candidates drawn up according to order of merit a statement of its reasons for not appointing them, since the competition procedure is specifically intended to make such a statement of reasons unnecessary. The appointing authority is under an obligation to state its reasons, at least at the stage when a complaint by an unsuccessful candidate against the decision rejecting his candidature and/or against the decision appointing another candidate is rejected (paragraph 83).

See: 16/64 Rauch v Commission [1965] ECR 135, 145; Pérez-MínguezCasariegov Commission, cited above, para. 76; Pierratv Court of Justice, cited above, para. 30

The statements of reasons for the decisions at issue complied with the relevant rules and the requirements laid down in the case-law (paragraph 89).

The pleas alleging breach of the principle of good administration, disregard for the interest of the service and a manifest error of assessment.

The concept of the interest of the service relates to the proper working of the institution in general and to the specific requirements of the post to be filled in particular. 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’ (paragraph 99).

See: Ryan-Sheridanv EFILWC, cited above, para. 132; T-13/95KyrpitsisvESC [1996] ECRSC II-503, para. 51

A Selection Board has wide discretion when examining the results of the tests in a competition and the Community judicature has no jurisdiction to review whether those value judgments, which are comparative by nature, are well founded unless the rules which govern the proceedings of Selection Boards have been obviously infringed. The Selection Board, in assessing the candidates' professional knowledge, abilities and motivation, is bound to base its decisions exclusively on their performances alone, in accordance with the requirements of the notice of competition (paragraph 101).

See: T-170/95 Carrer v Court of Justice [1996] ECRSC II-1071, paras 49 and 50

Operative part:

The application is dismissed.