CELEX: 61969CC0012
Language: en
Date: 1969-11-12
Title: Opinion of Mr Advocate General Roemer delivered on 12 November 1969. # Gustav Wonnerth v Commission of the European Communities. # Case 12-69.

OPINION OF MR ADVOCATE-GENERAL ROEMER
      DELIVERED ON 12 NOVEMBER 1969 (
            1
         )
      
         Mr President,
      
         Members of the Court,
      Let me recall briefly the essential facts giving rise to the action before us today.
      The applicant, Mr Wonnerth, entered the service of the High Authority of the European Coal and Steel Community in 1958. He was an official and headed the Technical Research Division which formed part of the Directorate for Production within the Directorate-General for Coal. After initial classification in Grade A5 he rose to Grade A4 in 1960 and was finally promoted to Grade A3 in 1962. On the merger of the Executives the Division of which the applicant was the Head was disbanded. In the reformed single Commission the applicant was assigned to the Directorate for Coal which formed part of the Directorate-General for Energy, as adviser on coal research, and without any change in his classification. Within the context of the rationalization of its administration and the reduction in the number of posts the Commission applied to the applicant the provisions of Chapter II of Regulation No 259/68 of the Council, with which we are already familiar from other cases and which provides for the application of special measures to officials of the Commission. He was not required to leave the service, but the Commission requested him under Article 8 of this Regulation ‘to state whether he accept[ed] transfer to a post corresponding to the career bracket immediately below that applicable to his grade’. The applicant signified his acceptance. By virtue of a decision of the Commission of 21 May 1968 he has performed since 4 June 1968 duties corresponding to Grade A4. However, in accordance with the provision in Article 8(2) of Regulation No 259, he retains the rights to the emoluments corresponding to Grade A3 and to all the advantages relating thereto. Subsequently, by invoking another right sanctioned by Article 8(2) — the ‘priority right of transfer to any post corresponding to his grade which may fall vacant or be created’ —the applicant applied for several posts in Grade A3 for which vacancies had been announced. To some of these applications he received no reply and he was informed that the others could not be entertained. It appears that an application submitted on 9 September 1968 was still being considered when the present appeal was lodged at the Court.
      The question in this action concerns the application submitted by the applicant on 25 October 1968 for the post of Head of the Work Safety Division, the vacancy in the Directorate-General for Social Affairs having been published under Reference No COM/161. His application was accompanied by a detailed memorandum in which he gave an account of his former activities and of his experience in employment in matters of work safety. On 6 November he sent a letter in support of his application to the Commissioner responsible for the Directorate-General for Social Affairs. He moreover drew the attention of the President of the Commission to has application, regarding which he provided him with certain explanations in a further letter also dated 6 November. The memorandum to which I have just referred was attached to these two letters.
      However, the approaches thus made by the applicant were unavailing. The post advertised was awarded, by way of promotion to an official in Grade A4 by a decision of the Commission of 18 December 1968. On 19 December 1968 the applicant submitted a complaint against this appointment to the President of the Commission in a letter in which he maintained that the decision had been taken in disregard of the priority right of transfer which he held under Article 8 of Regulation No 259 and he therefore requested the Commission to ‘suspend the official announcement of the decision to the candidates pending clarification of the matter in dispute’. In this also he was unsuccessful: the promotion in question was published in an internal document of the Commission dated 16 January 1969. The applicant was subsequently informed by a letter from the Directorate-General for Administration and Personnel of 30 January 1969 simply that the appointing authority had been unable to entertain his application.
      It is as a result of this letter that he lodged his appeal to the Court on 5 March 1969.
      In his application, he claimed that the Court should:
      
               —
            
            
               declare that the priority right provided for in Article 8 of Regulation No 259/68 confers on the official who enjoys it an absolute right to be preferred to other candidates, provided that he shows that he is suitable for the post in question;
            
         
               —
            
            
               declare that the applicant is suitable for the post referred to in Vacancy Notice No COM/161 and that he therefore had the right to be transferred to this post.
            
         In addition, he claimed the annulment of the decision of the Commission refusing to transfer him to the post advertised and appointing another official thereto.
      finally, he asked for a declaration that the official thus appointed must intervene in the action.
      In his reply the applicant set out additional conclusions claiming that, when a priority right is claimed an the award of a post, recruitment to such a post must be carried out on the basis of precisely defined rules and that either the Court shall itself define at least the general nature of such rules or that it shall order the Commission to adopt them.
      The Commission asks the Court to dismiss as inadmissible the conclusions in which the applicant claims the annulment of the alleged decision refusing to appoint him, on the grounds that no such decision exists. In addition, the defendant requests you to state that the fresh conclusions set out by the applicant in his reply are also inadmissible. The defendant moreover considers that the appeal as a whole must be dismissed as unfounded.
      In order to open the legal consideration of this case, I must first consider certain questions of admissibility.
      I — Questions of admissibility
      
               (1)
            
            
               As I have already pointed out, the Commission disputes in limine litis that it adopted a decision for the express purpose of rejecting the applicant's application. It maintains that there can, therefore, be no question of the annulment of such a decision.
               This argument in fact appears to be correct. It appears that the Commission was required to fill a vacancy in pursuance of Article 29(1)(a) of the Staff Regulations of Officials; in other words, the procedure was one of appointment within the context of which a number of candidates had to be considered. It is undeniable that at one stage in this complex procedure the Commission of its own volition declined to consider the applicant. However, and this is a decisive factor, it did not act by taking an express formal decision; as in Case16/64(Rauch v Commission of the EEC [1965] E.C.R. 145) the only formal decision was a positive one to appoint another candidate to the post advertised. Similarly, the letter to the applicant of 30 January 1969 can at the most have concerned one of the preliminary measures involved in the appointment procedure and cannot have referred to a decision made for the specific purpose of rejecting his application. It is therefore clear that his conclusions claiming annulment can only concern the positive decision to which I have just referred, that is, the decision to promote another official. Furthermore his conclusions claiming annulment must be dismissed as inadmissible for lack of purpose.
            
         
               (2)
            
            
               The admissibility of the two heads of conclusions by which the applicant is requesting you to state, first, that he is suitable for the post advertised and, secondly, that he has a claim to be transferred thereto likewise appears doubtful.
               The Commission rightly maintained in the course of proceedings that the question of suitability involves a value-judgment which it is alone competent to make and for which the Court of Justice cannot substitute its own value-judgment. However, once this is established, the Court is in principle precluded from making such a positive declaration as that which the applicant is seeking.
               The same applies as regards his claim to be assigned to the vacant post. Even if it were undeniable that the applicant is suitable for this post, the Court could not maintain his claim. In fact, it is clear from the file that apart from the applicant two other A3 officials holding a priority right of transfer applied, for the post in question. We know nothing of their suitability. Thus, even if only a priority right of transfer were at issue, the Commission would none the less have to make a comparative assessment which the Court cannot anticipate. Consequently, it cannot be maintained that the applicant is entitled to claim appointment to the post in question and we can therefore only dismiss his claim as inadmissible.
            
         
               (3)
            
            
               I do not need to deal with his conclusions claiming that the official appointed to the post in question must enter an appearance, or, in the words of his appeal, must be compelled to intervene. Whatever one's opinion on the system of compulsory intervention and, in particular, on the question whether it could exist in our procedural law, the decisive factor is that it does not appear in the provisions at present in force governing the procedure of the Court of Justice. The Court cannot therefore order an intervention; it must rather allow the parties concerned to decide for themselves whether or not to participate in the action. This head of the applicant's conclusions is therefore without legal foundation and cannot be accepted.
            
         
               (4)
            
            
               Finally, the Commission maintains that the conclusions claiming certain declaration which the applicant sets out in his reply must be dismissed as out of time. However, I hesitate to follow the Commission on this point. It is of course clear that these conclusions do not appear in the application, even disguised in the form of a statement of reasons. Let me observe, however, that the applicant was only able to set them out on the basis and as a result of the production of the minutes of a meeting in the Commission, since the document was necessary in order to obtain the details of the appointment procedure and, in particular, to ascertain that it took place without any special implementing provision having been made. In this connexion it seems appropriate to refer to Article 42 of the Rules of Procedure, to the principles of which the Court has had recourse by analogy on several occasions when an amendment or an addition has been made to conclusions set out in the application.
               Moreover, I do not see that objections can be raised on principle against requesting the Court to give certain instructions to the Commission. On a strictly legal level, that is, so long as there is no trespass on either the Commission's discretionary power or on its freedom of assessment, this possibility need not necessarily be excluded. It thus appears that we cannot refuse to consider the head of the conclusions set out in the reply. It remains to be seen whether the outcome of this consideration must appear in the operative part of the judgment or whether, on the other hand, as the applicant's request is in fact a submission, it is enough that the problem which he has raised be dealt with in the grounds of judgment. This is however a question to which I need give no reply at the moment.
            
         II — Substance
      After making these observations on admissibility, I shall now consider whether the applicant's conclusions are well-founded. I shall deal principally with those which claim the annulment of the decision of 18 December 1968, in other words with those in which the applicant requests the annulment of the appointment of another official to the post advertised. The principal argument which he puts forward against this appointment is that it was made in disregard of his priority right of transfer provided for by Article 8 of Regulation No 259. In this connexion he first sets out a number of considerations of principle, which, in my opinion, must be regarded as essentially justified. I must therefore refer to each one expressly. It thus appears undeniable that the ‘declassification’ (if I may so call it for the sake of brevity) provided for in Article 8 of Regulation No 259, like all the special measures provided for in Chapter II of this Regulation, must follow extremely strict rules because it constitutes an exception to the general rules which the Staff Regulations lay down concerning the career bracket of officials. According to these principles the Commission, acting in the context of the organization of its administration, must ensure that this situation, which is in principle contrary to the Staff Regulations, exists for as short a period as possible. This requirement is a corollary of the basic principle of Chapter II of Regulation No 259 which concerns rationalization and a reduction in the number of posts (objectives which largely coincide with the aim of making financial economies). It is admittedly difficult to reconcile with this aim the maintenance of officials of Grade A3 on duties corresponding to a lower grade while appointing, by means of promotion, officials of that lower grade to vacant posts corresponding to Grade A3. However, another not insignificant reason which requires the administration to act with particular caution is the interest of the declassified officials who have been recognized as having a priority right (‘Vorrecht’) to transfer or, as the French version of the Regulations more neatly terms it, a ‘droit de priorité’. This right is intended to ensure that the position of such officials is brought as quickly as possible into line with the basic principle of the law relating to public servants which has been emphasized by the Court on many occasions (Judgment of 15 December 1965 in Case 15/65 (Klaer v High Authority [1965] E.C.R. 1054). According to this principle there must be a correspondence between the grade and the duties performed. However, it is undeniable that if this priority right is not to remain a dead letter it must be matched by a strict obligation on the administration. In this respect there are several considerations to be taken into account with which I shall now deal in order to determine whether, in this instance, the Commission has satisfied all the demands which can reasonably be made of it.
      
               (1)
            
            
               First, as we have seen, the applicant argues that for Article 8 of Regulation No 259 to be applied, detailed rules and precise criteria must be laid down in order that it can be determined whether the Commission correctly assessed the applications for transfer submitted in pursuance of this provision.
               However, a consideration of the conditions to which the priority right of transfer is subject in Article 8(2), that is, that a vacant post exists and that the official is suitable for it, scarcely gives the impression that this rule is one which requires provisions to be made for giving effect thereto. On the whole its application only poses the problem of the examination which must be carried out to determine whether the applicant is suitable for the post. However, taking into account the varied nature of the cases which must be settled and the differences in rank of the candidates being considered. I do not see how it was possible to lay down general rules (requiring perhaps, the organization of a competition) nor even to determine in a general way the relative importance of the various aspects to be considered. I think therefore that the Court may carry out a fully effective review despite the absence of such provisions for giving effect to the regulation and that, moreover, the only requirement which must be imposed is a scrupulous test of suitability. The best way in which the Commission can satisfy this requirement is to act in the manner set out by Euler in his work ‘Europäisches Beamtenstatut’ (
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                  ) in connexion with a similar situation provided for in Article 41 of the Staff Regulations of Officials, that is, by emphasizing the general orientation of the abilities of the official to be transferred, without attributing any great importance to special knowledge. We shall see subsequently whether the Commission acted in this manner in the present case: For the moment I need only say that the absence of provisions for giving effect to Article 8 of Regulation No 259 does not justify the annulment of the contested decision.
            
         
               (2)
            
            
               In addition, the applicant maintains that where applications for a vacant post are submitted both by officials enjoying a priority right and by officials eligible for promotion (as was the case in this instance) the Commission is not entitled in considering comparative suitability and merits (as provided in Article 45 in matters of promotion) to review both groups together. He considers that, in such a situation, it is first necessary to consider separately the applications submitted by officials holding a priority right and he goes so far as to say that a separate procedure is required and that it is only where the vacancy cannot be filled as a result of such procedure that the Commission may later consider the case of officials eligible for promotion.
               I consider that in putting forward this argument the applicant has highlighted an extremely important point If one considers the fact that a priority right of transfer is essentially dependent on the question of suitability, which amounts to saying that it depends upon a value-judgment which leaves little room for review by the Court, and if it is accepted that genuine guarantees must be attached to this priority right, it must be acknowledged that apart from the obligation to give reasons for the decision, to which I shall return later, no really effective means of protecting the interests of the official enjoying such right exists other than guarantees afforded by formal procedure. It will not be disputed that the best method of ensuring that the consideration of the suitability of an official is not subjected to undue influence is to leave aside during such consideration any possibilities of promotion which there may be. Consequently, although Article 8 of Regulation No 259 does not expressly impose an obligation to separate the applications when they are being considered, I am in agreement with the applicant when he maintains that it is possible to deduce from the very essence of the priority right sanctioned by Article 8 that an obligation to proceed in this manner exists. I can scarcely see how the Commission seeks to object that such a method of procedure results in an excessive delay in assignment of the vacant posts. In fact there is no requirement for the vacancy notice to be published in two separate stages, that is, that officials eligible for promotion are not requested to submit applications until after the cases of the officials having priority rights have been examined. All the officials interested in the vacant post may submit their applications at the same time. The only requirement which may be imposed is that thereafter the applications shall be considered separately and this simple requirement cannot greatly delay the proceedings. If this reasoning should be adopted it is clear that the contested decision must be annulled, since it was taken following the consideration, at one and the same time, of applications both from officials who were entitled to claim a right of transfer and from those who were seeking promotion.
               Although I am not prepared to take the procedural requirements so far, I must nevertheless at least admit the principle that it is not acceptable for comparisons to be made within a combined group consisting of all the candidates, that is, for those having a priority right and those who are eligible for promotion to be considered together. If the Commission proceeded in this way it is clear that it went further than the examination of suitability which is alone authorized by Article 8, and that this procedure amounted to a consideration of the comparative merits as laid down in the provisions concerning promotion and that, in other words, it adversely affected the priority right of transfer. Furthermore, the Commission appears to acknowledge this. However, the minutes of the meeting during which the contested decision was taken and which were produced before the Court do not make it absolutely clear whether it respected the principle in full. These minutes begin in purely general terms: ‘The application forms have been circulated. Mr Levi Sandri presented a detailed statement concerning the qualifications of the candidates … He put before the Commission the facts arising from his consideration of their merits’.
               The minutes continue in these terms: ‘The Commission takes note that each of its members has a copy of the reports of the candidates and has examined them’. It is quite true that these statements have all the appearances of a consideration of the merits, such as is ordinarily carried out in cases of promotion, in particular because the minutes speak of the ‘merits’ and of the ‘reports’ of all the candidates, that is, of assessments which have no direct link with a consideration of suitability. It is only on page 2 of the minutes that we find the following passage in relation to the officials enjoying a priority right: ‘the Commission examined first whether these officials could benefit from this provision’ (by this we must understand Article 8 of Regulation No 259). As regards the candidates who are eligible for promotion, we read finally in the penultimate paragraph of the minutes that ‘the Commission then carried out a consideration of the comparative merits of the other candidates’. As one might expect, the Commission emphasizes page 2 of the minutes in order to show that it undertook this consideration in two separate stages as required by the Staff Regulations. However, if we make an objective examination of the merits of the officials concerned, the least that can be said is that we cannot fail to note certain contradictions. In particular, in considering the minutes as a whole, it cannot be denied that, even if the Commission undertook its consideration in the order stated, the impression obtained by the members of the Commission on the basis of the assessment in respect of all the candidates at the same time played an important role from the outset. This shows that the consideration was not as separate and free from other influences as the officials enjoying a priority right are entitled to demand. In my opinion this is also a sufficient reason to state that the procedure was defective and that the resulting decision must be annulled.
            
         
               (3)
            
            
               I have already referred to a further guarantee of the priority right of transfer which resides in the obligation on the Commission, when the outcome of the consideration does not enable the post to be filled, to provide a detailed statement of reasons showing in what way and how closely the factors put forward were considered. Let me examine, therefore, whether the Commission fulfilled this requirement. Of course, I shall not need to go so far as to require the Commission to adopt a reasoned decision in respect of each of the officials concerned and to notify him of it. In the cases concerning appointment with which the Court has dealt it has never maintained that the administration was obliged to act in this way as regards the unsuccessful candidate; moreover, it cannot be shown that such a requirement must be met as regards the candidates enjoying a priority right. My consideration must therefore concern only the question of what reasons for the adoption of the contested decision were set out in the minutes of the meeting of the Commission and, in accordance with the judgment in the Serio case of 15 December 1966 (Case 62/65, Serio v Commission of the EAEC [1966] E.C.R. 561), how the Cammission attempts to give reasons for its decision before the Court.
               First, as regards the statement of reasons appearing in the minutes, I can accept the applicant's statement that it contains no concrete elements. We find only the phrase: ‘having considered in the light of their respective files both the university education and training and the experience in appropriate employment of the officials concerned, as well as their general personality’ which means that we are dealing with a stereotyped formula from which it is impossible to pick out the special features of the individual case and do not let us forget that is was necessary to consider three candidates having a priority right. Therefore, if we had to consider this formula alone, the Commission ought to accept without question the criticism that it gave insufficient reasons for its decision.
               Nor did the earner written procedure before the Court provide further enlightenment. Only in its rejoinder did the Commission provide further details concerning the reasons which had led it to consider that the applicant was unsuitable for the post in question. The considerations which it set out in this document show basically that the applicant's abilities in the field of work safety are primarily of a technical nature, while nothing has been said about him so far as the legal aspects of the post are concerned. This, the Commission says, is the reason why he could not be considered for a post which, according to the vacancy notice, requires a thorough knowledge of the state of the law in the field of work safety.
               This is unquestionably a fundamental reason affecting the specific case of the official concerned. Our consideration cannot stop there, however; we must rather ask ourselves whether the reasons given appear wholly convincing. No doubt in asking ourselves this question we are touching on the Commission's value-judgment on the applicant's suitability. However, as the object is not to substitute the Commission's value-judgment, but merely to see whether there is any strong evidence to show that it is unsound, there appears to be no doubt that in principle the reasons put forward by the Commission may be reviewed, as was done in the similar situation in Case62/65, Serio v Commission of the EAEC [1966] E.C.R. 561.
               The explanations which, without being contradicted by the Commission, the applicant himself provided regarding his earlier activities in the field of work safety, constitute the first essential factor in this respect. We learn from the memorandum which he drew up on 24 October 1968 that for several years he directed the central work safety department in a large industrial undertaking. Moreover, he is a member of various committees dealing with questions concerning this sector. He provided instruction for the purposes of vocational training in this field and is the author of publications on the subject. Let me point out in particular in this connexion the thesis which he published in 1958 on the cost and prevention of accidents in the mines of the Ruhr. Problems of work safety were also involved in this employment with the High Authority. We have learned that he was deputy secretary to a group of experts on mine security and that as Head of the Technical Research Division he was involved in several research programmes in the field of work safety and hygiene. For further details I refer to the abovementioned memorandum. It is correct to say that this memorandum is likely to show that although the applicant has extensive experience it is in the field of work safety. The impression obtained from this memorandum is, moreover, confirmed by the fact that the Director-General who is responsible for the post in question, that is, someone who is in a a particularly good position to form an opinion, formally stated when speaking of all the candidates including the applicant that they were ‘in the field’ (‘candidats valables’).
               The Commisson's only objection to these considerations is that the award of the post was also dependent on the extent and quality of legal knowledge. Whether on these grounds the Commission could fairly come to a decision on suitability clearly unfavourable to the applicant appears doubtful in many respects.
               First, it is hard to see how the applicant was concerned for several years with work safety without thereby becoming sufficiently familiar with the legal aspects thereof. There is a second significant argument. According to the vacancy notice a ‘training in engineering’ (‘formation d'ingénieur’) was the primary requirement. It is clear that the applicant had such training. Whether the same applies to the candidate who obtained the post and who has a legal training is doubtful, to say the least. The available documents show that at all events it was only on a temporary basis (for reasons of lack of staff) that he was entrusted with the consideration of certain technical questions (this is shown by the report of 1963) or that when necessary he also dealt with the technical aspects of the field of work safety (this is shown by the reports for 1964 and 1965). Of course I do not wish to conclude from these factors that the candidate who was appointed is not suitable for the post entrusted to him (which would require the annulment of his appointment). However, this factor shows none the less that the Commission clearly was not strict in its interpretation of the requirements set out in the vacancy notice. If the Commission considered that it was entitled to be so generous in its assessment when it was required to make a decision on the application of a candidate for promotion, it is undeniable that it had to give specific reasons to explain why it was not appropriate to adopt the same or a more liberal attitude (I am here thinking of the applicant's legal knowledge) in considering his priority right of transfer. In fact, I find no evidence of such an explanation.
               Taking into account the strict nature or the conditions required by Article 8 of Regulation No 259, I am unable to make any other finding than that the negative opinion of the applicant's suitability for the post advertised is open to criticism and that, at the least, the Commission has failed to provide convincing reasons for its rejection of his application. This is a further ground for the annulment of the contested decision.
            
         
               (4)
            
            
               It is therefore unnecessary for me to continue my inquiry. There is no reason for me to give an opinion on the conclusions claiming a definition of the priority right to transfer. I believe that I have said enough on this point in the earlier consideration. I do not believe it necessary for you to make a special ruling on this point in the operative part of your judgment. It is also unnecessary for you to deal with the conclusions by which the applicant claims (in the alternative) the annulment of the implied decision of rejection which is deemed to have been taken at the end of a period of two months from the date on which the complaint was submitted.
               Finally, this also applies to the alternative argument that the contested decision infringes Article 5(2), the first paragraph of Article 27 and Article 45(1) of the Staff Regulations of officials. This argument would only have to be considered if it were necessary to leave out of account the priority right of transfer, within the meaning indicated above.
            
         III — Summary
      I am therefore of the opinion that:
      The conclusions by which the applicant claims the annulment of the (alleged) decision to reject his application, a declaration by the Court that he is suitable for the post advertised and that he is entitled to be appointed to it, and a declaration that the official who was appointed to the post shall be obliged to intervene in the action, should be dismissed as inadmissible.
      The conclusions by which the applicant asks the Court to declare that the Commission must adopt precise rules for the award of a post applied for by officials enjoying a priority right are unfounded.
      On the other hand, the appeal appears justified to the extent that it seeks the annulment of the decision appointing another official to the post advertised.
      The Commission must bear all the costs of the action as the applicant has been successful as to the main part of his claims.
      (
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         )	Translated from the German.
      (
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         )	Volume I, page 324