CELEX: 62007FJ0128
Language: en
Date: 2009-04-02 00:00:00
Title: Judgment of the Civil Service Tribunal (Second Chamber) of 2 April 2009. # Andreas Menidiatis v Commission of the European Communities. # Public service - Officials - Recruitment. # Case F-128/07.

JUDGMENT OF THE CIVIL SERVICE TRIBUNAL 
      (Second Chamber)
      2 April 2009
      Case F-128/07
      Andreas Menidiatis
      v
      Commission of the European Communities 
      (Civil service – Officials – Recruitment – Choice of procedure – Head of representation – Vacancy – Secondment in the interests of the service – Lack of competence – Scope of the secondment procedure)
      Application: brought under Articles 236 EC and 152 EA, in which Mr Menidiatis seeks annulment of the Commission’s decision of 21 December
         2006 rejecting his application for the vacant post of Head of the Commission’s Representation in Athens (Greece) and appointing
         Mr P. to that post.
      
      Held: The Commission’s decision of 21 December 2006 rejecting the applicant’s application for the vacant post of Head of the Commission’s
         Representation in Athens (Greece) and appointing Mr P. to that post is annulled. The Commission is ordered to pay all the
         costs.
      
      Summary
      1.      Officials – Secondment in the interests of the service
      (Staff Regulations, Art. 37, first para., (a), second indent)
      2.      Officials – Actions – Interest in bringing proceedings – Action brought against the rejection of an application for a post
            of Head of Representation at the Commission – Application rejected at the pre-selection stage – Admissibility
      1.      The ‘sensitive political nature’ of the duties carried out by the Commission’s heads of representation is not in itself sufficient
         to justify recourse to secondment of an official. Such an interpretation of the second indent of Article 37, first paragraph,
         (a), of the Staff Regulations would amount to allowing secondment to assist the relevant Commissioners of all officials carrying
         out ‘sensitive political’ duties within the institution which are normally the responsibility of senior management and would
         thus undermine the very structure of the European civil service as established in Article 35 of the Staff Regulations, thereby
         calling into question in particular the clarity of hierarchical relations.
      
      Furthermore, secondment in the interests of the service ‘to assist a person holding an office provided for in the Treaties’
         assumes the existence of a relationship of trust intuitu personae between the latter and the official on secondment, and that
         relationship implies that close direct links may be permanently forged between the persons concerned, based on the particular
         working methods of the Member concerned and those of the Member’s Cabinet as a whole. The facts that reports drawn up by a
         head of representation are sent directly to the Commissioner responsible, that telephone contacts, exchanges of emails or
         meetings take place between the head of representation and the Commissioner or members of the Commissioner’s Cabinet, or that
         the content of such exchanges is confidential, do not in themselves establish that the working relationship between the Commissioner
         and the head of representation concerned is intuitu personae.
      
      The applicability of the second indent of Article 37, first paragraph, (a), of the Staff Regulations depends solely on the
         conditions laid down in that provision, and not at all on the administrative consequences that stem from its application.
         Any other interpretation would amount to allowing recourse to Article 37 of the Staff Regulations for a purpose other than
         that for which it was intended and thus legitimise an abuse of process.
      
      (see paras 70, 73, 75, 77)
      
      2. The fact that an applicant’s application for a post of head of representation at the Commission was eliminated at the pre-selection
         stage does not deprive him of any interest in challenging the validity of the recruitment procedure that followed, where the
         assessments of the pre-selection panels could not have prejudged the appointing authority’s final assessment. Furthermore,
         such an applicant retains a legal interest in bringing proceedings in order to prevent the unlawfulness in question recurring
         in connection with another similar selection procedure.
      
      (see para. 81)
      See:
      C-362/05 P Wunenburger v Commission [2007] ECR I‑4333, para. 50
      
      T-370/03 Wunenburger v Commission [2005] ECR-SC I‑A‑189 and II‑853, para. 20
      
JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL (Second Chamber)
      2 April 2009 (*)
      
      (Civil service – Officials – Recruitment – Choice of procedure – Head of representation – Vacancy – Secondment in the interests of the service – Lack of competence – Scope of the secondment procedure)
      In Case F‑128/07,
      ACTION under Articles 236 EC and 152 EA,
      Andreas Menidiatis, official of the Commission of the European Communities, residing in Rhode-Saint-Genèse (Belgium), represented by S.A. Pappas,
         lawyer,
      
      applicant,
      v
      Commission of the European Communities, represented by G. Berscheid and K. Herrmann, acting as Agents,
      
      defendant,
      THE TRIBUNAL (Second Chamber),
      composed of H. Kanninen, President, H. Kreppel and S. Van Raepenbusch (Rapporteur), Judges,
      Registrar: R. Schiano, Administrator,
      having regard to the written procedure and further to the hearing on 9 October 2008, 
      gives the following
      Judgment
      1        By application received at the Registry of the Civil Service Tribunal on 31 October 2007 by fax (the original being lodged
         on 7 November 2007), Mr Menidiatis seeks annulment of the decision of 21 December 2006 rejecting his application for the vacant
         post of Head of the Representation of the Commission of the European Communities in Athens (Greece) and appointing Mr P. to
         that post.
      
       Legal context
       Secondment in the interests of the service
      2        Article 35 of the Staff Regulations of Officials of the European Communities (‘Staff Regulations’) reads:
      
      ‘Officials shall be assigned one of the following administrative statuses:
      (a) Active employment;
      (b) Secondment;
      (c) Leave on personal grounds;
      (d) Non-active status;
      (e) Leave for military service;
       (f) Parental leave or family leave.’
      3        Article 36 of the Staff Regulations reads:
      
      ‘An official having active status is one who is performing the duties pertaining to the post to which he has been appointed
         or temporarily assigned as provided in Title IV.’
      
      4        Article 37, first paragraph, of the Staff Regulations reads:
      
      ‘An official on secondment is an established official who, by decision of the appointing authority:
      a)      has been directed in the interests of the service: 
      –        to serve temporarily in a post outside his institution; 
      or
      –        to assist temporarily a person holding an office provided for in the Treaties or the elected President of one of the institutions
         or organs of the Communities, or one of the political groups in the European Parliament or the Committee of the Regions [of
         the European Union], or a group in the European Economic and Social Committee;
      
      –        to serve temporarily in a post which is included in the list of posts financed from the research and investment appropriations
         and which the budgetary authorities have classified as temporary.
      
      …’
      5        Article 38 of the Staff Regulations provides:
      
      ‘Secondment in the interests of the service shall be governed by the following rules:
      a)      the decision on secondment shall be taken by the appointing authority after hearing the official concerned;
      b)      the duration of secondment shall be determined by the appointing authority;
      c)      at the end of every six months, the official concerned may request that his secondment be terminated;
      d)      an official on secondment pursuant to the first indent of Article 37 [, first paragraph,] (a) shall be entitled to a salary
         differential where the total remuneration carried by the post to which he is seconded is less than that carried by his grade
         and step in his parent institution; he shall likewise be entitled to reimbursement of all additional expenses entailed by
         his secondment;
      
      e)      an official on secondment pursuant to the first indent of Article 37 [, first paragraph,] (a) shall continue to pay pension
         contributions based on the salary for active employment carried by his grade and step in his parent institution;
      
      f)      an official on secondment shall retain his post, his right to advancement to a higher step and his eligibility for promotion;
         
      
      g)      when his secondment ends an official shall at once be reinstated in the post formerly occupied by him.’
      6        Lastly, the table of appointing authorities for staff paid from the  administrative budget contained in Annex I to the Commission
         Decision of 16 June 2005, as last amended by Commission Decision C(2006) 2318 of 13 June 2006 on the exercise of powers conferred
         by the Staff Regulations on the Appointing Authority and by the Conditions of Employment of Other Servants (‘Conditions of
         Employment’) on the Authority Responsible for Concluding Contracts of Employment (published in Administrative Notices No 47‑2005 of 24 June 2005, ‘the Appointing Authority Decision’), provides, in paragraph 5 of Part III ‘Career’, with regard
         to secondment in the interests of the service, inter alia:
      
      ‘For the Head of Cabinet, deputy Head of Cabinet and Head of Representation: this power [to appoint] is delegated to the Member
         of the Commission responsible for personnel and administration, in agreement with the President, in the case of secondments
         to the office of a Member of the Commission. The Directorate-General of origin is informed.’                            
      
       Decision on middle management staff
      7        On 28 April 2004 the Commission adopted Decision C(2004) 1597 on middle management staff, published in Administrative Notices No 73‑2004 of 23 June 2004 (‘the Middle Management Decision’).
      
      8        Article 2(1) of the Middle Management Decision provides:
      
      ‘Middle management functions and staff
      Middle management functions are those which meet both of the following criteria:
      –        they involve the permanent and continuous management of an administrative unit;
      –        they appear in the Commission’s official organisation chart.
      A person who satisfies both of these criteria at the same time is thereby a member of the middle management staff.
      This means that the functions of head of unit, Head of Delegation…, Head of an Office or Representation in the Member States
         as well as those of Deputy Head of Delegation at AD 13/AD 14 … level are hereby defined as middle management functions … and
         are covered by this decision.
      
      These posts shall be filled either at grades AD 9/AD 12 or at AD13/AD 14.’
      9        Article 14(2) of the Middle Management Decision provides as follows:
      
      ‘Heads of Offices or Representations in the Member States
      2.1 Selection
      The final interviews, as provided by Articles 8(1.3) and 10(1), shall be carried out by the Director-General for press and
         information, the Director-General for personnel, the Secretary-General or, at the latter’s request, a designated Rapporteur
         (see Article 8.[1.]3).
      
      2.2 Appointment
      For posts at grade AD 9/AD 12, the appointing authority shall be the Director-General for press and information.
      For posts at grade AD 13/AD 14, the appointing authority shall be the Director-General for press and information, in agreement
         with the President and the Members of the Commission responsible for personnel and for press and information.
      
      …’
      10      Paragraph 9.2 of the Administrative Guide of 10 December 2004 on the role, duties and selection and appointment of Commission
         Middle Managers (A*9/A*12 and A*13/A*14), ‘the Administrative Guide’, reads as follows:
      
      ‘Selection: The final interviews of Heads of Offices or Representations in the Member States are to be carried out by the
         Director-General for Press and Communication, the Director-General of DG ADMIN, the Secretary-General or, at the latter’s
         request, a designated Rapporteur …
      
      Appointment: For posts at grade AD 9/AD 12, the appointing authority is the Director-General for Press and Communication.
      For posts at grade AD 13/AD 14, the appointing authority is the Director-General for Press and Communication, in agreement
         with the President and the Members of the Commission responsible for personnel and for press and information.’
      
       The decision on the procedure for appointments to the post of head of representation
      11      The Commission also adopted, on 7 July 2004, Decision C(2004) 2662 on the procedure for appointments to the post of head of
         representation (‘the Head of Representation Decision’), Article 1 of which provides:
      
      ‘Appointments to the post of head of the Commission’s representation in the Member States shall be made either by secondment
         of an official (under Article 37 [, first paragraph, (a), second indent,] and Article 38 of the Staff Regulations), or by
         engagement of a temporary staff member under contract [under Article 2(c)] of the Conditions of Employment, at Grade A*/AD 12.’
      
      12      The procedure applicable to decisions to second an official as a head of representation was laid down by the Director-General
         of the Directorate-General (DG) for Personnel and Administration by memoranda of 20 April and 26 May 2005. That procedure
         comprises the following stages:
      
      ‘ –      Appointment of a rapporteur by DG [Personnel and Administration];
      –        Applications sent to DG [Communication];
      –        Pre-selection procedure, adoption of a shortlist;
      –        Interview with Director-General DG [Communication] and Rapporteur;
      –        Selection report transmitted to DG [Personnel and Administration; that] report should include pre-selection phase, choice
         of final shortlist;
      
      –        Written procedure of the [Advisory Committee on Appointments];
      –        Final choice of the Director-General DG [Communication];
      –        Simplified procedure (agreement of the Cabinets of the President, Vice-President Wallström and Vice-President  Kallas);
      –        Decision of Vice-President Kallas.’ 
       Background to the case
      13      On 9 March 2006 the Commission published Vacancy Notice COM/2006/961 for the secondment of an official or the engagement of
         a temporary staff member to carry out the duties of Head of the Commission’s Representation in Greece. 
      
      14      The vacancy notice states inter alia:
      
      ‘The post is open to officials and temporary staff in function group A* in active employment at the Commission on the closing
         date for applications. In order to be admitted, candidates must:
      
      1. have at least ten years’ professional [post-university] experience, preferably in the field of information, communication,
         media and/or politics and economic affairs, including at least five years in a coordination and/or team management role; 
      
      2. possess a thorough knowledge of written and spoken Greek and a satisfactory knowledge of another official language of the
         European Union. A good command of French and/or English would be an advantage.
      
      The post of Head of the Commission’s Representation will be filled either by secondment of an official (under the second indent
         of Article 37 [, first paragraph, (a), and Article 38 of the Staff Regulations]) or by engagement of a temporary staff member
         under contract [under Article 2(c), of the Conditions of Employment] at Grade A*12. The length of the initial appointment
         … will be three years; it may be renewed once for a maximum period of two years.
      
      If the candidate selected is an official in a substantive grade that is higher than Grade A*12, he/she will be seconded at
         his/her current grade and step.’
      
      15      The applicant and 11 other candidates submitted applications for the post of Head of the Commission’s Representation in Athens.
         During the first stage of the selection procedure, after the applications had been considered, a pre-selection panel chose
         seven of the candidates to be called for pre-selection interviews. The applicant’s name was not among those of the candidates
         chosen.
      
      16      The preliminary interviews with the pre-selection panel took place on 15 and 18 May 2006. Of the seven candidates interviewed,
         the panel proposed that the Director-General of DG Communication should call four of them for final interview.
      
      17      The four candidates who were pre-selected were each called for interview with a selection panel made up of Mr Sørensen, Director-General
         of DG Communication, Mr. K., acting as Rapporteur, and Mr R., acting as Secretary. The interviews took place on 7 July 2006.
      
      18      At the final interview, Mr P. was awarded a mark of 82/100 and the other three candidates were awarded 65/100, 69/100 and
         74/100, respectively.
      
      19      The Advisory Committee on Appointments concluded in its opinion of 6 September 2006 that, ‘in the light of each candidate’s
          application form under Article 37 [, first paragraph, (a), and Article 38 of the Staff Regulations] and of their staff files,
         … the applications submitted by Messrs Y., K. and P. should be taken into consideration’. However, it considered that ‘Mr P’s
         application should be given particular consideration’.
      
      20      By decision of the Vice-President of the Commission, Mr Kallas, of 20 December 2006, Mr P. was seconded in the interests of
         the service to the post of Head of the Commission’s Representation in Athens, with effect from 1 January 2007 for a period
         of three years. The same decision classified Mr P. in Grade AD 12 for the duration of his secondment.
      
      21      By a memorandum of 21 December 2006 (‘the contested decision’), the applicant was informed that his application had been rejected
         and that Mr P. had been appointed to the post of Head of the Commission’s Representation in Athens.
      
      22      On 28 February 2007, the applicant lodged a complaint under Article 90(2) of the Staff Regulations against the contested decision
         with the Director-General of DG Communication. That complaint was forwarded to the relevant service within DG Personnel and
         Administration  and was registered on 17 April 2007.
      
      23      By decision of 25 September 2007, notified to the applicant on 1 October 2007, the Commission dismissed the complaint.
      
       Forms of order sought and procedure
      24      The applicant claims that the Tribunal should:
      
      –        declare the application admissible and well-founded;
      –        annul the contested decision;
      –        order the Commission to pay the costs.
      25      The Commission contends that the Tribunal should:
      
      –        dismiss the application as unfounded;
      –        make an appropriate order as to costs.
      26      At the end of the hearing the Tribunal requested the Commission to produce factual information indicative of the personal
         link which, according to the Commission, connects the heads of representation to the Member of the Commission responsible
         for communication strategy and justifies recourse to Article 37 of the Staff Regulations, as provided in the Head of Representation
         Decision. The Commission responded to that request in a memorandum of 31 October 2008, received at the Registry of the Tribunal
         on the same day by fax (the original being lodged on 3 November 2008), and that memorandum was forwarded to the applicant
         for his observations on 4 November 2008. In a memorandum of 14 November 2008, received at the Registry of the Tribunal on
         the same day by fax (the original being lodged on 19 November 2008), the applicant submitted written observations. On the
         latter date the oral procedure was closed and the case entered the deliberation stage.
      
      27      By order of 1 December 2008, the Tribunal reopened the oral procedure and invited the Commission to submit any brief observations
         it might have on the applicant’s abovementioned memorandum of 14 November 2008. The Commission, in compliance with that request,
         filed written observations on 15 December 2008.
      
       Law
      28      The applicant relies on a number of pleas in law in support of his action: first, that the selection procedure was unlawful
         and had not been complied with; second, that the vacancy notice was unlawful; third, that the vacancy notice had not been
         complied with; fourth, that Article 11a of the Staff Regulations had been infringed; fifth, that the downgrading of the post
         of head of representation in Athens was unlawful as was the Head of Representation Decision; sixth, that the vacancy notice
         was published out of time; seventh, that the rules concerning the rotation of staff occupying sensitive posts had been infringed;
         eighth, that there had been a failure to state reasons for the decision refusing access to the documents requested by the
         applicant in his complaint; and finally, ninth, that there had been a misuse of powers.
      
      29      It is necessary in particular to consider the first plea, alleging that the procedure for selecting the head of representation
         was unlawful and had not been complied with.
      
       Arguments of the parties
      30      The applicant subdivides his first plea into two parts.
      
      31      In the first part the applicant submits that it is unlawful for Members of the Commission to intervene in the procedure for
         appointing heads of representation. He states that, in the present case, the Head of the Commission’s Representation in Athens
         was appointed by decision of Vice-President Kallas after obtaining the agreement of the Cabinets of the President of the Commission,
         of Vice-President Wallström and of Vice-President Kallas.
      
      32      That involvement of Members of the Commission in the selection procedure at issue is not objectively justified, since they
         have no managerial powers or responsibilities and are not required to have a direct relationship with the heads of representation,
         who remain in their posts irrespective of the length of the terms of office of Commissioners. Representations constitute decentralised
         units of DG Communication and have no political status. The choice of heads of representation intuitu personae, according to the same procedure as that used for the selection of members of the Cabinets of Commissioners has no legal
         basis.
      
      33      In his observations of 14 November 2008, the applicant asserts that secondment in order to ‘assist temporarily a person holding
         an office’, under the second indent of Article 37, first paragraph, (a), of the Staff Regulations, implies that the official
         on secondment is to be physically present with that person. In any event, the Commission has not adduced evidence of the existence
         of frequent, regular and structured contacts attesting to a relationship of trust between heads of representation and specifically
         the Commissioner responsible for communication strategy. The applicant points in that regard to the organic and hierarchical
         connection between heads of representation and the services within DG Communication.
      
      34      The Commission replies that in the present case it is not a matter of recruitment but of secondment under the second indent
         of Article 37, first paragraph, (a), of the Staff Regulations, which is justified by the nature of the post.
      
      35      First of all, on the one hand, the representation has the task of providing information and communicating with the national
         and regional media and with the general public regarding Commission policy and, on the other hand, it briefs the Commission
         on the political situation in the Member State concerned. It therefore constitutes a relay point between the Commission and
         the national, regional and local authorities in the Member State concerned, with the head of representation acting as a spokesperson
         for the Commission in the Member State concerned, and doing so in close cooperation with the Commissioner responsible for
         communication.
      
      36      Such functions are undoubtedly of a sensitive political nature, which is why the term of office of a head of representation
         is limited to three years.
      
      37      In those circumstances, selection of a head of representation cannot be treated in the same way as selection of a head of
         unit in Grade AD 12 employed in Brussels. It was for that reason that the Commission decided to second heads of representation,
         in the interests of the service, to assist the Member of the Commission responsible for communication strategy. It is a functional
         secondment of heads of representation, even though the representations themselves, from the organisational point of view,
         form part of DG Communication.
      
      38      The Commission adds that the second indent of Article 37, first paragraph, (a), of the Staff Regulations does not require
         the existence of a specific post, forming part of the Commissioner’s Cabinet and included, from the organisational point of
         view, in a separate organisation chart from that of the services of the Commission. The terms of that provision expressly
         emphasise the functions to be carried out, which require, in the present context, the existence of a special link between
         the official on secondment and the Member of the Commission (see, to that effect, Case T‑162/96 Forcheri v Commission [1998] ECR-SC I‑A‑421 and II‑1203, paragraph 65).
      
      39      The involvement of three Commissioners’ Cabinets in the procedure for seconding an official to perform the duties of head
         of representation is justified specifically in view of the latter’s particular responsibilities.
      
      40      The fact that the duration of the secondment of the Head of Representation in Athens does not necessarily correspond to the
         duration of the Commissioner’s term of office is irrelevant since only the appointing authority may decide on the duration
         of a secondment in the interests of the service (see, to that effect, Case T‑237/00 Reynolds v European Parliament [2002] ECR II‑163, paragraphs 51 to 53, and Case T‑237/00 Reynolds v European Parliament [2005] ECR-SC I‑A‑385 and II‑1731, paragraphs 64 to 66).
      
      41      Lastly, in its observations lodged on 31 October 2008, in response to the question raised by the Tribunal, as stated in paragraph
         26 above, the Commission again asserts, in order to justify recourse to Article 37 of the Staff Regulations, that the closeness
         of the contacts between the Commissioner responsible for communication strategy and heads of representation varies according
         to political events and the calendar of the College of Commissioners. It is impossible, given the geographical distance between
         the headquarters of the Commission and the offices of its 27 representations, to hold direct meetings between the Commissioner
         concerned and the 27 heads of representation on a weekly or even monthly basis. However, the frequency of direct contacts
         between the person to be assisted through the secondment and the person on secondment do not in themselves constitute a condition
         for the second indent of Article 37, first paragraph, (a), of the Staff Regulations to apply, since the assessment of whether
         relationships of mutual trust exist is not necessarily based on quantifiable parameters such as the number of direct meetings
         or the number of telephone calls. What is important is the content of those relationships which, in most cases, is of a confidential
         nature.
      
      42      According to the Commission, direct contacts between heads of representation and the Commissioner responsible for communication
         strategy take various forms. As a rule, these are:
      
      –        telephone calls or e-mails between the Commissioner and the members of his Cabinet, on the one hand, and heads of representation,
         on the other hand; these contacts vary depending on events at national and Community level, and increase before visits by
         the Commissioner to the Member State concerned;
      
      –        visits by the Commissioner to the Member State concerned, during which he is accompanied by the head of representation;
      –        missions by the head of representation to Brussels, during which a meeting with the Commissioner is obligatory;
      –        attendance by the Commissioner at meetings of heads of representation in Brussels at least twice a year;
      –        reports drafted by heads of representation, which are sent direct to the Commissioner.
      43      In the second part of his first plea the applicant disputes the authority of the Vice-President of the Commission, Mr Kallas,
         to act as appointing authority in the case of secondment of an official as a head of representation. He relies, in that regard,
         on Article 14(2) of the Middle Management Decision, from which it is clear that it is the Director-General of DG Communication
         who is the appointing authority with regard to the appointment of a head of representation in Grade AD 12. In the present
         case, that Director-General merely proposed the appointment of Mr P., with the decision to appoint finally being taken by
         Vice-President Kallas.
      
      44      According to the applicant, the scope of the Middle Management Decision cannot be restricted solely to cases of transfer and
         appointment under Articles 7 and 29 of the Staff Regulations. That Decision, which concerns all middle management staff and
         applies, as is apparent from Article 1 of the Decision, to all Commission departments and departments administratively attached
         to the Commission, is of broad and general scope: it regulates the procedure for the selection and appointment of heads of
         section and representation irrespective of whether the procedure at issue ‘concerns’ an appointment, a transfer, a promotion
         or an external selection. Article 2(1) of the Middle Management Decision also states that heads of representation are concerned
         by the Decision, although it does not specify the procedure for their appointment.
      
      45      In the applicant’s submission, the Head of Representation Decision does not preclude the applicability of the Middle Management
         Decision. There is no conflict between the two Decisions. The fact that the Head of Representation Decision was adopted after
         the Middle Management Decision is therefore irrelevant.
      
      46      The applicant points out, moreover, that according to paragraph 9 of the Administrative Guide, which postdates the Head of
         Representation Decision, the rules for selection and appointment of heads of representation are generally the same as those
         applying to other middle management posts, although there are some differences with regard to the appointing authority and
         the involvement of other committees, apart from the Advisory Committee on Appointments intervening by virtue of Article 14(2)
         of the Middle Management Decision.
      
      47      In addition, point 5 of Part III of the table of appointing authorities for staff paid from the administrative budget contained
         in Annex I to the Appointing Authority Decision gives no support for the Commission’s view, since it is apparent from that
         point that the Commissioner responsible for matters of personnel and administration has the role of appointing authority only
         where the secondment in question is to the office of a Member of the Commission, which is not the case here.
      
      48      Lastly, the applicant notes that the decision dismissing his complaint was adopted by the College of Commissioners, which
         was not the appointing authority responsible for taking that decision. That irregularity demonstrates the unacceptable politicisation
         of the entire recruitment procedure for an official deemed to be in Grade AD 12. That infringement of the rules of separation
         of the powers devolved to the appointing authority infringes the principle of impartiality of the procedure and casts doubt
         on the existence of a genuine examination of the comparative merits of candidates for a vacant post, whereas it is such an
         examination which provides a guarantee of equal treatment of officials and of the principle that recruited officials are entitled
         to reasonable career prospects.
      
      49      The Commission first of all observes that, as stated in its second recital, the Middle Management Decision is based on Articles
         2, 4, 5, 7 and 29 of the Staff Regulations and that therefore its scope of application is concerned with appointments to middle
         management posts by means of transfer in the interests of the service under Article 7 of the Staff Regulations, or by means
         of appointment of an official under Article 29 of the Staff Regulations. No reference is made to Articles 37 and 38 of the
         Staff Regulations. 
      
      50      Secondly, the Commission states that the procedure at issue cannot be subject to the Middle Management Decision because, according
         to the table of appointing authorities for staff paid from the administrative budget, annexed to the Administrative Authority
         Decision, the appointing authority responsible for taking the decision to second an official in the interests of the service
         in order to carry out the duties of head of representation is the Member of the Commission responsible for personnel and administration.
         It was therefore necessary to lay down a separate selection procedure, which was done through the adoption of decisions of
         the Director-General of DG Personnel and Administration of 20 April and 26 May 2005.
      
      51      According to the Commission, the applicant’s argument based on the Administrative Guide and the Middle Management Decision
         has no bearing in those circumstances, since the Member of the Commission cannot, in any event, ensure compliance with the
         selection procedure culminating in the adoption of a decision where that Member is not the competent appointing authority.
      
      52      Thirdly, with regard to the applicant’s argument based on the allegedly improper involvement of three Commissioners’ Cabinets
         in the appointment of the head of representation in Athens, the Commission counters this by saying that the involvement of
         the Commissioners concerned, at the penultimate stage of the selection procedure, stems from the nature of the functions of
         a head of representation and Vice-President Kallas’s role as appointing authority in this matter.
      
      53      Lastly, as regards the allegation that the College of Commissioners lacked competence to adopt the decision dismissing the
         complaint, the  Commission points out that the footnote on page 2, relating to point 12 ‘Complaints’ of Part V of the table
         of appointing authorities for staff paid from the administrative budget, annexed to the Appointing Authority Decision states:
         
      
      ‘… if the contested decision was taken by the Commissioner with responsibility for personnel and administration or by the
         Commission: the Commission is the Appointing Authority …’
      
      54      Since in this case the contested decision was adopted by the Vice-President of the Commission, Mr Kallas, the response to
         the complaint made against that decision had to be given by the College of Commissioners.
      
      55      In any event, the Commission considers that the first plea was raised in the interests of the law and is therefore inadmissible.
         
      
      56      In that connection, so the Commission argues, since the applicant was excluded from the selection procedure at the stage at
         which the candidates’ files were being examined by the pre-selection panel, the question whether the procedure leading to
         Mr P.’s secondment should have been followed according to the Middle Management Decision or according to other decisions is
         not one affecting his personal situation since, even if the Middle Management Decision had applied, the decision taken with
         regard to the applicant would have been the same, in that the composition of the pre-selection panel would not have been different
         whichever procedure was followed.
      
      57      At the hearing the Commission raised an objection of inadmissibility against the plea alleging the inapplicability in the
         present case of the second indent of Article 37, first paragraph, (a), of the Staff Regulations on the ground that it had
         not been relied upon either in the complaint or in the application, and was relied upon for the first time at the hearing,
         in response to questions raised by the Tribunal.
      
      58      The Commission also pointed out at the hearing that under Article 38(g) of the Staff Regulations it was possible for the head
         of representation to be reinstated at once in the post formerly occupied by him, when his secondment ended. That possibility
         is entirely consistent with the requirements of the post, in view of the personal link between the person concerned and the
         Member of the Commission responsible for communication strategy, since the end of the latter’s term of office is likely to
         lead to the end of the secondment. Lastly, the Commission pointed out that it would be difficult to arrange a mobility procedure
         between Commission representatives in the Member States comparable to that which exists between delegations, in view of the
         language constraints connected with the post of head of representation, and the fact that the latter is in most cases a national
         of the host country.
      
       Findings of the Tribunal
      59      It is appropriate first of all to consider the admissibility of the complaint alleging the inapplicability of Article 37 of
         the Staff Regulations, and secondly whether it was lawful for the Commission to apply the provisions of the Staff Regulations
         relating to secondment in the interests of the service to assist a person holding an office provided for in the Treaties,
         for the purposes, in the present context, of the recruitment of the head of representation in Athens.
      
       Admissibility of the complaint alleging the inapplicability of Article 37 of the Staff Regulations
      60      The Commission raised at the hearing an objection of inadmissibility against the complaint alleging the inapplicability in
         the present case of the second indent of Article 37, first paragraph, (a), of the Staff Regulations on the ground that that
         complaint was not raised in the application.
      
      61      This objection cannot be upheld. It was specifically in response to the applicant’s plea alleging the unlawfulness of the
         selection procedure for the head of representation followed in this case, in the light of Articles 7 and 29 of the Rules of
         Procedure, and of Article 14(2) of the Middle Management Decision, that the Commission put forward the argument that it had
         been incumbent on it during that selection procedure to apply the second indent of Article 37, first paragraph, (a), of the
         Staff Regulations, so that it is in the light of that provision rather than of Articles 7 and 29 of the Staff Regulations
         that, in the Commission’s view, the legality of the contested selection procedure should be assessed.
      
      62      In those circumstances, examination of the validity of the first plea necessarily requires the Tribunal to examine first of
         all the applicability in this case of Article 37 of the Staff Regulations.
      
      63      In any event, the applicant’s line of argument amounts to challenging the authority of the Commissioner responsible for personnel
         and administration to appoint the head of representation in Athens, and the scope of Article 37 of the Staff Regulations,
         which the Commission applied, and thus constitutes a plea involving matters of public policy which may be raised by the Tribunal
         of its own motion at any stage of the proceedings before it.
      
      64      The objection of inadmissibility against the complaint alleging the inapplicability of Article 37 of the Staff Regulations
         must therefore be dismissed.
      
       The merits of the complaint alleging the inapplicability of Article 37 of the Staff Regulations
      65      It should be noted first of all that, under Article 35 of the Staff Regulations, officials are assigned one of the following
         administrative statuses: active employment, secondment, leave on personal grounds, non-active status, leave for military service,
         parental leave or family leave. It is clear that active employment, which, under Article 36 of the Staff Regulations, is the
         status of an official ‘who is performing the duties pertaining to the post to which he has been appointed or temporarily assigned
         under the conditions contained in Title IV [Working Conditions of Officials]’, is the normal status of an official and the
         other statuses are extraordinary. Moreover, in order to be assigned one of those statuses, an official must meet the specific
         conditions laid down in that regard in the Staff Regulations.
      
      66      Thus, under the second indent of Article 37, first paragraph, (a), of the Staff Regulations, an official may be seconded in
         the interests of the service in order to ‘assist temporarily a person holding an office provided for in the Treaties’, such
         as a Member of the Commission.
      
      67      As the Court held in Case C‑432/04 Commission v Cresson [2006] ECR I‑6387, paragraph 137, the purpose of secondment to assist a Commissioner is, generally, to enable persons who
         have previously been appointed on the basis of merit, often by competition, and have demonstrated their ability, to make their
         talents available for the benefit of the Cabinets. The Court also held that those advisers are appointed intuitu personae, that is to say in a manner that is largely discretionary, with those concerned being selected both for their professional
         and personal qualities and for their ability to adapt to the working methods specific to the Commissioner concerned and those
         of the Cabinet as a whole (Commission v Cresson, paragraph 130; see also, to that effect, concerning the appointment of legal secretaries to the chambers of judges of the
         Court of Justice, Case F‑103/07 Duta v Court of Justice [2008] ECR-SC I‑1-A‑0000 and II‑A-1-0000, paragraph 26, which is the subject of an appeal pending before the Court of First
         Instance of the European Communities in Case T‑475/08 P).
      
      68      The discretion of the person or service to which the person concerned has been seconded, and the mutual trust that must imbue
         relations between that person or service and the official on secondment throughout the period of secondment, were also highlighted
         by the Court of Justice and the Court of First Instance in connection with the appointment of an official to a political group
         in the European Parliament, the appointing authority thereby being enabled to terminate the secondment at any moment where
         the relationship of mutual trust no longer exists (Case C‑111/02 P European Parliament v Reynolds [2004] ECR I‑5475, paragraphs 54 to 56 and Case T‑237/00 Reynolds v European Parliament, paragraph 66). In the same way, Article 38 of the Staff Regulations allows an official on secondment, at the end of every
         six months, to request that his secondment be terminated, which demonstrates the instability of the employment relationship
         between the person concerned and the person to whose office he is seconded.
      
      69      In the present case, the Commission asserts, in the first place, that the very nature of the duties carried out by a head
         of representation, who provides a relay point between the Commission and the national, regional or local authorities of the
         host Member State, justifies recourse to secondment in the interests of the service under the second indent of Article 37,
         first paragraph, (a), of the Staff Regulations.
      
      70      That justification cannot be accepted. The ‘sensitive political nature’, as the Commission puts it, of the duties carried
         out by the heads of representation, however genuine it may be, is not in itself such as to justify recourse to secondment
         of an official. Such an interpretation of the second indent of Article 37, first paragraph, (a), of the Staff Regulations
         would amount to allowing secondment to assist the relevant Commissioners of all officials carrying out ‘sensitive political’
         duties within the institution which are normally the responsibility of senior management and would thus undermine the very
         structure of the European civil service as established in Article 35 of the Staff Regulations, thereby calling into question
         in particular the clarity of hierarchical relations.
      
      71      However, Article 2(1) of the Middle Management Decision includes heads of representation among middle management staff.
      
      72      Secondly, the Commission asserts that the second indent of Article 37, first paragraph, (a), of the Staff Regulations does
         not require an official seconded to assist a Member of an institution actually to carry out his duties within that Member’s
         Cabinet or appear on the latter’s organisation chart.
      
      73      In that regard, it should be noted, as it was in paragraphs 68 and 69 above, that secondment in the interests of the service
         ‘to assist a person holding an office provided for in the Treaties’ assumes the existence of a relationship of trust intuitu personae between the latter and the official on secondment, and that relationship implies that close direct links may be permanently
         forged between the persons concerned, based on the particular working methods of the Member concerned and those of the Member’s
         Cabinet as a whole.
      
      74      Even assuming that physical distance does not, as a matter of principle, make the establishment of personal relationships
         between heads of representation and the Commissioner responsible for communication strategy impossible or particularly difficult,
         the fact remains that the Commission has not established in the present case that such relationships exist.
      
      75      On the contrary, it is apparent from the case-file, in particular from the organisation chart of DG Communication, that the
         people having direct contact with the heads of representation are, primarily, Directorate B (‘Representations’) of that Directorate-General,
         under the authority of its Director-General. The Commission itself stated in its pleadings that the closeness of contacts
         with the Commissioner responsible for communication or the members of that Commissioner’s Cabinet varies depending on political
         events at a given time, such as a visit by the Commissioner to the Member State concerned. The facts that reports drawn up
         by the head of representation are sent directly to the Commissioner responsible, that telephone contacts, exchanges of e-mails
         or meetings take place between the head of representation and the Commissioner or members of the Commissioner’s Cabinet, or
         that the content of such exchanges is confidential, do not in themselves establish that the working relationship between the
         Commissioner in charge of communication and the head of representation concerned is intuitu personae. Such facts may also characterise relationships forged between a Director-General of the Commission and a Commissioner without
         the Director-General being seconded to assist the latter in the interests of the service. Moreover, it is apparent from the
         case-file that heads of representation are in reality required to provide assistance to all Commissioners, in particular where
         they are travelling within the host Member State.
      
      76      Lastly, although it is true that the term of secondment of the Commission’s head of representation in Athens is limited to
         three years, as is apparent from the contested vacancy notice , that term, which may be renewed once for a maximum of two
         years, does not necessarily correspond to the term of office of the Commissioner responsible for communication strategy and
         it has not been established that on expiry of the latter’s term of office heads of representation normally have their secondment
         terminated.
      
      77      Thirdly, the Commission has asserted that the rule laid down in Article 38(g) of the Staff Regulations, which states that
         when his secondment ends an official is at once to be reinstated in the post formerly occupied by him, makes it possible to
         resolve the difficulties arising as a result of the impossibility of arranging a mobility procedure comparable to that provided
         for in respect of officials posted to third countries. While there are undoubtedly practical difficulties linked to the mobility
         of heads of representation, the applicability of the secondment arrangement should not be made dependent on the operational
         advantage of applying such an arrangement to a certain category of officials. In other words, the applicability of the second
         indent of Article 37, first paragraph, (a), of the Staff Regulations depends solely on the conditions laid down in that provision,
         and not at all on the administrative consequences that stem from its application. Any other interpretation would amount to
         allowing recourse to Article 37 of the Staff Regulations for a purpose other than that for which it was intended and thus
         legitimise an abuse of process.
      
      78      Fourthly, as the Commission moreover acknowledged at the hearing, the selection procedure for heads of representation seconded
         to assist the Commissioner responsible for communication strategy, the arrangement for which is set out in the memoranda from
         the Director-General of DG Personnel and Administration of 20 April and 26 May 2005, is clearly not so different, in terms
         of its unwieldy structure, from the selection procedure for middle management staff as provided in Articles 8 and 14(2) of
         the Middle Management Decision, the main difference lying in the designation of the appointing authority. In the first case,
         as it concerns the appointment of a head of representation in Grade AD 12, the appointing authority is the Commissioner responsible
         for personnel and administration, in agreement with the President of the Commission and the Commissioner responsible for communication
         strategy; in the second case, under Article 14(2) of the Middle Management Decision, it is the Director-General for Press
         and Communication.
      
      79      The systematic organisation of a selection procedure for the secondment of an official to assist a Commissioner, comparable
         to the one organised to fill middle management posts, is difficult to reconcile with the discretion which, in principle, a
         Commissioner has in choosing the advisers who are seconded to assist him or her.
      
      80      Fifthly and lastly, the Commission asserts that, in any event, since the applicant was excluded from the selection procedure
         right from the stage at which the candidates’ files were examined by the pre-selection panel, he has no interest in seeking
         annulment of the contested decision, given that the composition of the panel would still have been the same if the Middle
         Management Decision had applied.
      
      81      In that regard, it should be pointed out that the Commission explained, both in its defence and at the hearing, that all the
         applications were submitted to the Advisory Committee on Appointments and the three Cabinets of the Commissioners concerned,
         even after the pre-selection and selection panels had finished their work, so that the assessments of those panels could not
         have prejudged the appointing authority’s final assessment. In those circumstances, the fact that the applicant’s application
         was eliminated at the pre-selection stage does not deprive the applicant of any interest in challenging the validity of the
         procedure that followed, since the three Cabinets of Commissioners were involved before the appointment was decided. Furthermore,
         the applicant retains a legal interest in bringing proceedings in order to prevent the unlawfulness in question recurring
         in connection with another similar selection procedure (see, to that effect, Case C-362/05 P Wunenburger v Commission [2007] ECR I‑4333, paragraph 50, and Case T-370/03 Wunenburger v Commission [2005] ECR-SC I‑A‑189 and II‑853, paragraph 20).
      
      82      It is apparent from the foregoing, without the need to consider the other complaints covered by the first plea and the other
         pleas raised by the applicant, that in the present case the Commission unlawfully applied  the second indent of Article 37,
         first paragraph, (a), of the Staff Regulations instead of Articles 7 and 29 of those regulations in respect of the appointment
         of the head of representation in Athens and hence the contested decision must be annulled because it was adopted on the basis
         of a procedure which was itself unlawful, in particular, on the ground of lack of competence.
      
       Costs
      83      Under Article 122 of the Rules of Procedure of the Tribunal, the provisions of Title 2, Chapter 8, of those rules on costs
         apply only to cases brought before the Tribunal from the date on which those rules enter into force, namely, 1 November 2007.
         The relevant provisions of the Rules of Procedure of the Court of First Instance continue to apply mutatis mutandis to cases pending before the Tribunal before that date.
      
      84      Under Article 87(2) of the Rules of Procedure of the Court of First Instance, the unsuccessful party is to be ordered to pay
         the costs if they have been applied for in the successful party’s pleadings. As the Commission has been unsuccessful, it should
         be ordered to pay all the costs, in accordance with the form of order sought by the applicant.
      
      On those grounds,
      THE TRIBUNAL (Second Chamber)
      hereby:
      1.      Annuls the Decision of the Commission of the European Communities of 21 December 2006 rejecting the application of  Mr Menidiatis
            for the vacant post of Head of the Commission’s Representation in Athens (Greece) and appointing Mr P. to the post.
      2.      Orders the Commission of the European Communities to pay all the costs.
      
               Kanninen 
            
            
                Kreppel 
            
            
                Van Raepenbusch
            
         Delivered in open court in Luxembourg on 2 April 2009.
      
               W. Hakenberg 
            
             
            
                      H. Kanninen 
            
         
               Registrar
            
             
            
                     President      
            
         
         The text of the present decision and those of the decisions of the Community Courts cited in it which have not yet been published
            in the European Court Reports are available on the internet site of the Court of Justice: www.curia.europa.eu
         
      
      * Language of the case: French.