CELEX: 61981CC0282
Language: en
Date: 1983-03-03
Title: Opinion of Mr Advocate General Sir Gordon Slynn delivered on 3 March 1983. # Salvatore Ragusa v Commission of the European Communities. # Official - Annulment of an appointment. # Case 282/81.

OPINION OF ADVOCATE GENERAL SIR GORDON SLYNN
      DELIVERED ON 3 MARCH 1983
      
         My Lords,
      
      In this action the applicant, Mr Salvatore Ragusa, an official of the Commission in Grade A 4 who works at the Joint Research Centre (JRC) at Ispra, is applying for the annulment of a decision apointing Mr Jack Randies to the post of Head of the Division “Project Super Sara” at Ispra and for an order that the Commission recommence the recruitment procedure for filling the post.
      Although the Commission does not contest the admissibility of the application, in view of the time scale involved, it is necessary to consider whether the application was made in time.
      The three-month period within which a complaint against an act adversely affecting an official must be submitted, pursuant to Article 90 (2) of the Staff Regulations, started to run in this case the day after Mr Ragusa received notification of the appointment of Mr Randies. The decision appointing the latter (with effect from 1 August 1980) was made on 17 July 1980 but it seems that it was only brought to the attention of the staff at Ispra by a memorandum circulated by the Establishment Director dated 22 August. Mr Ragusa's complaint against the appointment is dated 20 November and was, according to him, presented to the Commission the following day. The Commission does not dispute this (the decision rejecting the complaint says that it was lodged on 26 November but this seems to refer to the date it was received in Brussels and not the date on which it was submitted by Mr Ragusa to his superior, as required by Anicie 90 (3) of the Staff Regulations). On the basis that Mr Ragusa was not notified of the appointment before the memorandum dated 22 August, his complaint was submitted in time.
      The four-month period within which the Commission should have notified Mr Ragusa of its decision concerning his complaint expired on 21 March 1981 without any decision having been notified. Under Article 90 (2) the Commission was therefore deemed to have rejected the complaint by an implied decision. Pursuant to Article 91 (3) Mr Ragusa then had three months in which to apply to the Court, to which the Court's Rules of Procedure add a further 10 days because the application would be made from Italy (Article 1 of Annex II of the Rules of Procedure). That takes the period in which the application would have had to been lodged down to 1 July. In fact it was only lodged on 28 October.
      It appears that, on 5 June, i.e. only a few weeks before the expiry of the period for applying to the Court, the Commission adopted an express decision rejecting the complaint which was only received by Mr Ragusa on 22 July, i.e. after the expiry of that period. Article 91 (3) provides that the time for applying to the Court starts to run (i) from the date of notification to the official of an express decision taken in response to the complaint or (ii) “on the date of expiry of the period prescribed for the reply where the appeal is against an implied decision rejecting a complaint ...”. In the latter event, time to apply to the Court starts to run again “where a complaint is rejected by express decision after being rejected by implied decision but before the period for lodging an appeal has expired”. It is to be observed that Article 81 (1) of the Court's Rules of Procedure provides that time starts to run from the day following receipt of notification.
      In Case 5/76 Jänsch v Commission [1976] ECR 1027 the Court held that, for the purposes of this proviso, a decision is to be regarded as arising at the date on which it is adopted but the extended period for applying to the Court runs from the date of notification where any delay in notification is not attributable to the official. There is no indication, in the present case, that the delay of over a month in the notification of the decision of 5 June was attributable to Mr Ragusa. Therefore, adding 10 days to 22 October because he was in Italy, the application was in time on 28 October.
      The facts of the case are these. By a decision dated 15 February 1971 the Commission, acting under Article 2 of the Staff Regulations, made the Director General of the JRC the appointing authority for the JRC staff subject to certain exceptions which are not here relevant. In a memorandum dated 23 October 1979 the Director General set out the recruitment procedure for filling vacant posts that had been agreed with the representatives of the JRC staff.
      The procedure was to apply from 1 November 1979 and was to unfold, so far as is relevant to the present case, as follows:
      
               (1)
            
            
               a notice initiating the procedure would be published;
            
         
               (2)
            
            
               selection of the candidates considered to be capable of performing the functions in question would be made by a local committee comprising one member representing the service concerned, one representing the administration, one designated by the local Staff Cominee and one independent member;
            
         
               (3)
            
            
               the committee, described as a “consultative” body, would act after a preliminary assessment of the candidates had been made by the administration and the service concerned; these would draw up a summary of their assessment for the benefit of the committee;
            
         
               (4)
            
            
               the committee would decide whether to hold interviews;
            
         
               (5)
            
            
               it would then inform the appointing authority (the Director General) of the candidates judged fit to fill the post, in order of priority if need be, and make any comments it would think useful;
            
         
               (6)
            
            
               on the basis of the list drawn up by the committee, the administrative services would consult the representatives of the staff and, at the same time, the opinion of those in charge of staff management would be sought, concerning grading;
            
         
               (7)
            
            
               the opinion elicited would be submitted to the Director General who would make the decision.
            
         On 19 May 1980 a vacancy notice, COM/R/522/80, was published. It advertised a post at Ispra in Grade A 3 as head of a division responsible for a research programme called “Super Sara”. The final date for making an application for the post was 6 June 1980. On 3 June Mr Ragusa filled in an application form and submitted it within time. In all there were five candidates for the post, four from Ispra and one who was employed in the JRC at Karlsruhe.
      On 11 and 12 June Mr R. Mas, who was the Deputy Director General of the JRC and also the Establishment Director at Ispra, saw the four Ispra candidates separately. According to Mr Ragusa, Mr Mas saw him on 11 June and told him that
      
               (1)
            
            
               his candidature could not be accepted for political reasons;
            
         
               (2)
            
            
               Mr Randies, one of the other candidates from Ispra, was to be appointed.
            
         On 12 June Mr Mas wrote to the Director General giving an account of the interviews. In this letter he explained that he had decided not to follow the recruitment procedure set out in the memorandum of 23 October 1979 because
      
               (1)
            
            
               the candidates came from Ispra and he knew them well;
            
         
               (2)
            
            
               the interviews served only to allow the candidates to expand on the reasons for their candidatures and to talk about their view of their role if they were appointed;
            
         
               (3)
            
            
               the candidates were internal and so the staff representatives would not be disturbed at the prospect of outsiders being parachuted in;
            
         
               (4)
            
            
               there was no necessity to discuss questions of salary status and work conditions, etc..
            
         He went on to say that, after hearing what the candidates had to say, considering “l'ensemble du contexte technique et politique” and assessing their technical abilities and character, he preferred Mr Randies and suggested that he be appointed. The letter ends by saying that it was urgent to make the appointment. It should be added that, at this time, it appears that Mr Mas was not aware that there was a candidate from Karlsruhe.
      Mr Mas' letter appears to have provoked the Staff Committee at Ispra into sending to the Director General a telex dated 16 June 1980 protesting about his action. Following this the Director General wrote a memorandum to Mr Mas, dated 1 July 1980, saying that he could not accept the proposal to diverge from the agreed recruiting procedure and asking Mr Mas to convene the recruiting committee so that it could consider the matter and then to let the Director General have their report so that he could make the appointment. On the same day Mr Mas wrote to three officials who, according to Mr Ragusa, were directors at Ispra, saying that he would interview the candidate from Karlsruhe when he arrived and suggesting that they also should interview him afterwards in order to obtain some idea of his candidature. Exceptionally Mr Mas agreed to a member of the local Staff Committee of at least a grade equal to that of the candidate being at the interview. These interviews appear to have taken place on 4 July.
      On 14 July the recruiting committee made out its report. It was composed of a Mr Klersy, an official from the Scientific and Technical Services, who would be the successful candidate's immediate superior (Grade A 3), a Mr Chambaud, an official from the Administration (Grade A 4), a Mr Ardente, a representative of the staff, who was also from the Scientific and Technical Services (Grade A 5) and a Mr Ooms, chairman of the local Staff Committee (Grade B 3). The committee's report, which Mr Ardente did not sign, says that it analysed the files of the five candidates and took account of the special characteristics of the post before concluding that three of the candidates were the most suitable to fill it, with a preference for Mr Randies. Mr Ragusa was not one of the preferred trio. According to the Commission the committee's report, together with the personal files of the candidates and their applications, were immediately sent to the Director General who made the decision appointing Mr Randies on 17 July.
      Mr Ragusa has claimed that the appointment of Mr Randies was unlawful for two reasons:
      
               (1)
            
            
               breach of the Staff Regulations and misuse of powers in that Mr Randies was appointed by reason of his nationality rather than his qualifications for the post;
            
         
               (2)
            
            
               defects in the recruitment procedure.
            
         Mr Ragusa accepts that nationality is a relevant criterion, albeit of secondary importance, which may be taken into account when making an appointment and refers, inter alia, to Case 15/63, Lassalle v Parliament [1964] ECR 31 at page 38. In the present case, it is said, the recourse to the criterion of nationality was not justified because it did not have the subsidiary role attached to it by the Court and Mr Randies was selected for the post even though he did not possess several of the qualifications required for it. In support of this, Mr Ragusa relies on the letter of 12 June, in which Mr Mas refers to the “political context”, and alleges that, in view of his position, Mr Mas cannot be taken to have been expressing a personal view and must have influenced both his superior, the Director General, and the other recipients of the letter who were subordinate to him. In addition, it is said that it was impossible for the recruiting committee to diverge from the view taken by Mr Mas.
      There is, unfortunately, no evidence from Mr Mas as to his account of the interview on 11 June, and he is no longer employed by the Commission at Ispra. The evidence available, however, does not support the assertion that Mr Randies' nationality was the sole criterion taken into account, nor that it was regarded as of primary importance in the ultimate decision. The Commission admits that Mr Mas' references to the “political context” of the appointment is an allusion to the “geographic” distribution of posts at Ispra which, at that time, was weighted in favour of Italian officials. But the fact remains that the letter of 12 June, taken as a whole, does not show that Mr Mas failed to take account of the qualifications of the candidates; quite the contrary, it suggests that he considered all aspects and that nationality was only one of them. Even if he did take account only of the nationality of the candidates, he could only have expressed a personal view; the appointment was to be made by the Director General and there is no evidence that he was swayed in his decision by nationality. The allegation that the recruiting committee servilely followed the lead given by Mr Mas is not supported by any evidence.
      To back up the assertion that Mr Randies lacked the qualifications required for the post or at least was not as well qualified as Mr Ragusa, reliance is placed on events which took place after the appointment of Mr Randies. The Commission disputes Mr Ragusa's interpretation of those events, and I cannot see that the matters relied on establish that Mr Randle was responsible. In any event they do not seem to me to support the suggestion that at the time of the appointment he was not qualified to be appointed. Further it cannot be said from a comparison of the qualifications of Mr Randies and Mr Ragusa, as set out in the latter's application, that Mr Randies was manifestly not qualified or obviously less qualified than Mr Ragusa or, in the result, that the Director General had come to a conclusion to which no reasonable Director General could come on the material available.
      There may be cases where an appointment is so evidently unjustified that the Court could interfere: but, where the ultimate decision depends on the assessment of technical qualifications, the appointing authority has a margin of discretion with which, if exercised on a proper basis and within that margin, the Court does not interfere.
      Mr Ragusa complains that the terms of the memorandum of 23 October 1979 were not observed. Counsel for the Commission, citing Case 782/79 Geeraerdv Commission [1980] ECR 3651 at paragraphs 11 to 14 of the judgment, submitted that, because the procedure is an internal measure and not one prescribed by the Staff Regulations, the administration remains free to depart from it. The Geeraerd case concerned an exceptional situation arising from a reorganization of the career brackets for staff in the Language Service. In the present case there was no such exceptional situation and the candidates for the post were entitled to expect that the administration would follow the procedure it had itself laid down (cf. the analogous situation in Case 105/75 Giuffrida v Council [1976] ECR 1395 at para. 17 of the judgment). It does not follow that Mr Ragusa is entitled to have the decision annulled for any departure from the terms of the memorandum. He has no interest in obtaining the annulment of the appointment on the basis of a defect in procedure unless, in the absence of the defect, the proceedings could have had a different result (Case 30/78 Distillers vCommission [1980] ECR 2229 at paragraph 26 of the judgment).
      The first complaint made by Mr Ragusa is that the recruiting committee should have comprised three members whose grade was at least equal to that of the post to be filled (A 3) and one representative of the Staff Committee. This requirement does not appear in the memorandum of 23 October 1979 although it was provided, in a memorandum dated 18 March 1975, that the six-member recruiting committees which were then in use at Ispra should be comprised of persons of the same grade as the post to be filled. The 23 October 1979 memorandum set out a uniform procedure to be applied in all the JRC establishments and therefore, as I see it, replaced the six-member recruiting committees at Ispra. It has not been suggested that this memorandum does not represent what was agreed with the staff representatives and it seems to me that there was no requirement that all of the members of the four-member recruiting committees (save the representative of the Staff Committee) should be of the same grade as, the post to be filled.
      Secondly, it is said that Mr Ardente did not sign the committee's report and this shows that he did not take part in its proceedings. This latter was a point raised at the hearing though, as counsel for the Commission pointed out, it seems to have been admitted in Mr Ragusa's reply that Mr Ardente was present. After the hearing the Commission submitted a written statement by Mr Ardente and Mr Ooms to the effect that no significance was to be read into the former's failure to sign the report. It is unfortunate that this statement, on which observations have been submitted by counsel for Mr Ragusa, did not reply adequately to the specific questions raised by the Court but in the circumstances it seems reight to conclude that Mr Ardente did take part in the proceedings. The failure to sign the report, whilst not to be encouraged, is not, in itself, such a defect as to bring about the nullity of the report. Such slips do occur from time to time, but are, in my view, relevant only if they reveal a substantial defect in procedure such as the improper constitution of a committee, a failure to submit a report for the approval of one of its members or the disavowal of a report by a committee member where it is to be adopted unanimously. No such defect has been proved here.
      The next point made is that Mr Ardente was a member of the committee in his capacity as a representative of the staff. In consequence the committee was improperly constituted because there were two staff representatives and no independent member as required by the 23 October 1979 memorandum. This is confirmed by the committee's report and the statement made by Mr Ardente and Mr Ooms Counsel for the Commission submitted that, in substance, Mr Ardente was an independent member because he is from the Scientific and Technical Services, although not an official in the service concerned, and he quite often fulfils this function on recruiting committees. The fact that, because of his trade union interests, he was described in the committee's report as a representative of the staff does not detract from this; at the very least he was a member of the committee in both capacities. I would have been prepared to accept this explanation were it not for the fact that, in the written statement submitted after the hearing, Mr Ardente makes it clear, not only that he attended as a representative of the staff, but also that, given the special nature of the post to be filled, the deputation from the local Staff Committee (i.e. Mr Ooms and himself) limited itself to ensuring that there was formal compliance with the Staff Regulations. By limiting his role in this way, it is arguable that Mr Ardente did not, in substance, discharge the functions of an independent member. As a result the committee was improperly constituted. Nevertheless, this procedural defect does not, in my opinion, justify annulling the whole procedure. Quite apart from the fact that the committee is only consultative and does not issue a binding decision, there is no requirement that its opinion should be unanimous. In the event, the committee's preference for three of the candidates, Mr Randies in particular, reflects, it would seem, the views of Mr Klersy and Mr Chambaud, who did not limit themselves in the same way. Had Mr Ardente considered which of the candidates was most apt for the post and come to a conclusion in favour of Mr Ragusa, or at least against the candidates favoured by Mr Klersy and Mr Chambaud, it seems likely that he would have been outvoted. For the very reason that the Director General decided that the agreed procedure should be followed, it is very unsatisfactory that the composition of the committee did not follow exactly the requirements agreed. In the circumstances, and taking into account that Mr Ardente was a staff rather than an independent representative, I do not consider that it would be right to annul the decision because of this defect in the procedure.
      Fourth, a complaint is made about the fact that the candidate from Karlsruhe was to be interviewed by thr.ee directors (in the presence of a representative of the staff). There is nothing in the 23 October 1979 memorandum which prevents this and its purpose seems to have been to acquaint the directors with the candidate. Had he not been interviewed at all, some doubt might have been raised concerning the lawfulness of the proceedings but it is wrong to say that, because the memorandum does not specifically provide for an interview by the three directors, there was a defect in the procedure. Even if there were, it is difficult to see how the absence of such a defect could have led to a different result given that the recruiting committee did not recommend this candidate. It is also said that the representative of the staff did not attend the interview, an assertion for which there is no real evidence.
      Lastly it is said that the recruiting committee should only have delivered its report after interviewing the candidates. No such requirement emerges from the memorandum, which makes it quite clear that the decision whether to interview a candidate is made by the committee itself at the request of one of its members. There is no evidence that the committee's decision to make its recommendation on the basis of the candidates' files was dictated by anything other than the feeling that interviews were unnecessary.
      In the result, for the reasons I have given, it is my opinion that this application should be rejected and that each party should be ordered to pay its own costs pursuant to Article 70 of the Rules of Procedure.