JUDGMENT OF THE COURT OF FIRST INSTANCE (Fourth Chamber)

17 May 1995

Case T-16/94

Dimitrios Benecos

v

Commission of the European Communities

‛Vacancy notice — Level of post to be filled — Rejection of candidatures — Statement of reasons’

Full text in French II-335

Application for:

annulment of the Commission Decision rejecting the applicant's candidature forpost COM/106/92 Head of Unit I.E.4 ‘infrastructure (including telecommunications) and energy (including nuclear safety)’.

Decision:

Dismissal of the application.

Abstract of the Judgment

A vacancy notice for the managerial post of Head of Unit ‘infrastructure (including telecommunications) and energy (including nuclear safety)’ was published. It specified as follows: ‘COM/106/92 A 3/A 4/A 5 I.E.4 BRU Head of Unit“infrastructure (including telecommunications) and energy (including nuclear safety)”, responsible for technical assistance to the new independent States in the sectors concerned. Good knowledge of external relations and technical assistance duties, ability to manage a team’. The applicant, who is an official in Grade A 3, submitted an application for that post. The applicant was informed in a letter of 4 January 1993 that the Consultative Committee on Appointments (CCA) had reached the conclusion that the post in question ought to be filled at Grade A 3 and that following consideration of the candidatures received his application was not to be taken into consideration on that occasion.

On 16 March 1993 the appointing authority transferred an official to that post and informed the applicant that it was unable to accept his candidature.

First plea: infringement of the vacancy notice

The function of the vacancy notice is to inform the persons concerned as precisely as possible of the nature of the requirements demanded of the person who is to occupy the post to be filled in order that they may assess whether they should submit an application and also to fix the legal framework within which the appointing authority is to carry out the comparison of the candidates' merits provided for in Article 45(1) of the Staff Regulations (paragraph 18).

See: C-343/87 Culin v Commission [1990] ECR I-225, para. 19

The Court finds that the requirements set out in the vacancy notice were sufficiently precise to enable the merits of the various candidates to be compared and to justify the rejection of the applicant's candidature on that ground.

Second plea: infringement of the obligation to state the reasons on which the decision was based

In the case of a decision to reject a candidature, the appointing authority is bound to give a statement of reasons, at the very least when it rejects a complaint about such a decision, but since promotions and transfers involve choices, it suffices, for the procedure to be lawful, that the statement of reasons for the rejection of the complaint deals with the existence of the legal conditions laid down by the Staff Regulations (paragraph 31).

See: T-25/92 Vela Palacios v ESC [1993] ECR II-201, para. 22

In order to assess whether a statement of the reasons for a decision is sufficient, it must be placed in the context in which the contested measure was adopted (paragraph 33).

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

The Court finds that no statement whatsoever of the reasons for rejecting the applicant's candidature was given, but that the decision to reject the complaint stated that ‘the procedure for filling the post and the appointment of the successful candidate complied in full with the relevant legal provisions’ and that the decision in question ‘was adopted without any irregularity’. That reasoning is to be placed in the context of the opinion of the CCA, from which it is apparent that the legal conditions laid down in the Staff Regulations which must be observed for a procedure to be regular were observed, since that opinion refers to consideration of each candidate's application form and personal file and also to consideration of the applicant's candidature and those of the other candidates.

The Court considers that the decision is vitiated by an insufficient statement of reasons, because the appointing authority did not, at the very latest in its decision to reject the complaint, indicate any particular and relevant ground for rejecting the applicant's candidature, but does not consider there were no reasons whatsoever given for the decision (paragraph 35).

See: T-52/90 Volger v Parliament [1992] ECR II-121 ; Vela Palacios v ESC, cited above, para. 25; T-18/92 and T-68/92 Coussios v Commission [1994] ECRSC II-171

Where a statement of reasons for a decision is insufficient, but not totally lacking, additional information may be put forward during the course of the proceedings (paragraph 36).

See: Vela Palacios v ESC, cited above, para. 26

The Court finds that the Commission set out in its defence the reasons for which it rejected the applicant's candidature and that the plea alleging an insufficient statement of reasons has been rendered nugatory by the explanations given by the Commission during the course of the proceedings (paragraphs 37 and 38).

See: Vela Palacios v ESC, cited above, para. 27

Third plea: infringement of Articles 5, 29 and 45 of the Staff Regulations and Annex I thereto

The applicant's complaints regarding the decision of 19 July 1988 relate to the fact that the procedure laid down by that decision breaks the link between the post of head of division and Grade A 3 and enables the level at which the post may be filled to be fixed with knowledge of and therefore by reference to the identity of the candidates in order in some cases to eliminate certain candidates and to favour others (paragraph 46).

Since the applicant is an official in Grade A 3 and the post in question was filled at that grade, the applicant cannot allege that in the present case he was a victim of an infringement of the principle that a grade should correspond to the post or that he had been affected by the fixing of the level of the post to be filled at a level which did not correspond to its importance, which would have enabled the appointing authority to escape its obligation to take his candidature into account.

Since the applicant does not allege that his merits were greater than those of the candidate appointed, or that he satisfied the requirements of the vacancy notice better than that candidate, his argument concerning his merits and experience, even assuming them to be exceptional, cannot prove the existence of a manifest error of appraisal (paragraph 50).

The so called ‘six-day procedure’ does not affect the collegiate nature of the Commission's decisions since it merely substitutes a written procedure for an oral procedure, if the College of Commissioners unanimously decide to use it (paragraph 51).

Costs

The Court considers that, having regard to the fact that the contested decision was vitiated by an insufficient statement of reasons when the complaint was rejected and that it was remedied only during the proceedings before the Court, the Commission should be ordered to pay the applicant's costs (paragraph 55).

Operative part:

1. The application is dismissed.