CELEX: 61982CC0010
Language: en
Date: 1983-05-19 00:00:00
Title: Opinion of Mr Advocate General VerLoren van Themaat delivered on 19 May 1983. # Sven-Ole Mogensen and others v Commission of the European Communities. # Official - Promotion - Transfer. # Case 10/82.

OPINION OF MR ADVOCATE GENERAL
      VERLOREN VAN THEMAAT
      DELIVERED ON 19 MAY 1983 (
            1
         )
      
         Mr President,
      
      
         Members of the Court,
      
      1. The problem
      Case 10/82 raises in particularly acute form the question of the limits of an appointing authority's discretion when filling vacancies under Article 29 of the Staff Regulations.
      In Vacancy Notice COM/1144/80 the Commission declared vacant a post of reviser for which the following qualifications were required :
      
               1.
            
            
               University education attested by a diploma, or equivalent professional experience;
            
         
               2.
            
            
               Long experience of translation; experience of revision;
            
         
               3.
            
            
               Proven active command of language and a sound style.
            
         It is established that all four applicants had university education and wide professional experience at the relevant time. It is also established that they all satisfied both aspects of the second condition. Finally they have all submitted favourable periodic reports for the relevant period. It is thus clear that when the vacancy notice was published all four applicants satisfied all the requirements. It further appears from the files in Cases 9/82 and 10/82 that three of the four applicants have since been promoted to posts of principal translator, which are at the same level as the post of reviser and for which the requirements are practically the same.
      However the Commission passed over all four applicants for the vacancy in question and instead gave its preference to a reviser serving in another institution. From the summary in the Report for the Hearing of the content and chronology of the relevant correspondence, notes and administrative decisions produced to the Court, it is quite clear that, even before the vacancy was advertised, the head of the translation department in question already wished to propose that reviser who was working in another institution for appointment to the post. The prior examination required pursuant to Article 29 (1) of the Staff Regulations as to (a) whether the post can be filled by promotion or transfer within the institution and (b) whether to hold competitions internal to the institution was subsequently, on the evidence of the chronology of the various stages of the procedure, indeed apparently reduced to a mere formality. In the proceedings before the Court the Commission also expressly recognized that throughout the administrative procedure, account was taken of the qualities of the reviser who was then in the service of another institution (defence, page 8; rejoinder, page 4). It further pointed out, however, that “there is nothing unusual in the fact that the responsible officer keeps himself informed of suitable candidates from within the institution and elsewhere and that when assessing the various candidates in the period from February to April 1981, he took account of the fact that it would be possible to recruit a better qualified candidate by transferring an official from another institution of the European Communites”. This case thus raises in particularly acute form the question whether an institution may, under Article 29 of the Staff Regulations, reject candidatures from within the institution which meet all the requirements set out in a vacancy notice because a candidate from another institution, who is considered to be better qualified, is available.
      2. Claims and submissions of the applicants and the Commission's defence
      The applicants ask the Court to annul the Commission's decisions of 28 April 1981 rejecting their candidatures for the post of reviser at issue and to compel the Commission to appoint the best qualified of the four applicants to the post.
      The first and most important submission relied on by the applicants in their application is to the effect that Article 29 (l') of the Staff Regulations allows the appointing authority to recruit from outside the institution only when it has become apparent that there are no candidates within the institution who meet the stipulated requirements. In other words stage (c) of the procedure under Article 29 (1) can be applied only if no suitable candidate came forward under stages (a) and (b) of that procedure. The applicants claim that the Commission cannot rely on Article 27 of the Staff Regulations to arrive at another interpretation since Article 29, as a special provision, takes precedence over the general “statement of general aims” in Article 27. The following judgments of this Court are particularly relevant to an assessment of that submission: the judgments in Ley (Joined Cases 12/64 and 29/64 [1965] ECR 107, at p. 121), van Belle (Case 176/73 [1974] ECR 1361, at p. 1370). Küster (Case 23/74 [1975] ECR 353, at p. 367); Case 22/75, [1975] ECR 1267, at p. 1271; and 123/75 [1976] ECR 1701, at p. 1709), Giannini (Case 265/81 [1982] ECR 3865); and the judgment of 28 October 1982 in Colussi (Case 298/81 [1983] ECR 1131).
      The allegation made in the application itself that from the outset the vacancy was reserved for the candidate in question from another institution is elaborated in the reply so. as to constitute a second submission containing the allegation of misuse of powers. It is alleged that the department concerned proposed passing on to stage (c) even before the qualifications of candidates from other institutions could have been known. Decisions of the Court relevant to that second submission include in particular the judgments in the abovementioned Cases 123/75 (Küster) and 265/81 (Giannini) and in addition the judgment in Giuffrida (Case 105/75 [1976] ECR 1395, at p. 1402).
      In its defence the Commission relies first on the institutions' discretion in applying Article 29, expressly recognized by this Court in several of the abovementioned judgments. The Commission next denies that the post was reserved in advance for a candidate from another institution. It would have served no useful purpose in the case in point to hold a competition internal to the institution once stage (a) of the procedure under Article 29 (1) was completed since there could not be any candidates from within the institution who were more promising than those already rejected in stage (a). Therefore in accordance with Article 29 of the Staff Regulations and in the interests of the service, the Commission after rejecting the candidates who had come forward in stage (a) passed straight on to stage (c).
      Finally the Commission denies that the procedure employed pursued an objective other than the legal one under Article 29 (as regards this definition of misuse of powers, see the abovementioned judgment in Case 123/75).
      3. Assessment
      A primary factor damaging to the Commission in this case is the note of 13 June 1980 which has been produced to the Court. In that note the Head of the Recruiting, Appointments and Promotion Division asked for information from the Head of the translation directorate concerned concerning the candidate for transfer from another institution. The note ended with the words “Should the answer prove to be favourable, a vacancy for an L/A 5-L/A 4 post will have to be advertised and after rejection of any applications from within the Commission, the post will have to be advertised in the other institutions (Article 29 (1) (c) of the Staff Regulations)”.
      The impression of a “bogus consideration” of the possibilities of filling the vacancy internally was enhanced by the note from the Head of the translation directorate dated 18 February 1981 in which he takes the view that the experience of the internal candidates is insufficient and reserves the possibility of proposing a transfer under Article 29 (1) (c). He made such a suggestion as early as 20 February 1981 in respect of the candidates from another institution referred to in the note of 13 June 1980. Even before candidatures from within the institution were formally rejected by the appointing authority on 28 April 1981, namely on 25 March 1981, the Commission's representative in the contact group of the Brussels institutions made a statement justifying the transfer of the candidate from another institution, in this instance the Council.
      The train of events revealed in these notes is the precise opposite of that in the aforementioned Giannini case. In that case, the Commission's personnel department opposed an exactly comparable use of Article 29 in favour of a candidate whom the department concerned regarded as better than the internal candidate who had come forward in stage (a) of the procedure; as in the present case, the candidate regarded as better could only be appointed at a later stage. In that case the Court rejected the application submitted by the candidate, who had originally been proposed on the grounds of what were regarded as better qualifications, contesting the appointment of the internal candidate under stage (a), which had finally been made as a result of the personnel department's opposition. It is understandable that the applicants in the present case sought to rely in the course of oral argument on the Giannini case because, in that case, the Commission based its opposition to the “better” candidate on the view that his appointment would have constituted a misuse of powers as was held to exist in the abovementioned judgment of the Court in Giuffrida (Case 105/75 [1976] ECR at p. 1403). In my view, however, the applicants cannot succeed with their arguments derived from the Giannini case or from the Giuffrida case.
      The reference to the Giannini case is in any event to no avail because in that case, in so far as it is relevant here, the Court decided only (paragraph 11) “that at the time when the appointing authority adopted the contested decision it was not under the duty to compare the respective merits and abilities of [the appointed candidate] and the applicant because the latter was not a candidate for promotion or transfer” (but was eligible for consideration only at a later stage of an internal competition). The words I have underlined in that decisive paragraph of the decision leave altogether open the possibility that the Commission was entitled to take account of the allegedly better qualifications of the applicant in that case. Since in the Giannini case the Commission had made no use of that possibility, the Court could confine itself to holding (paragraph 13) that “neither the material in the file on the case nor the applicant's contentions show that the Commission made a manifest error or misused its powers when assessing [the appointed candidate's] merits and abilities”. In the result the only principle that can be inferred from the Giannini case is that, in the exercise of its discretion, the appointing authority has the power to judge candidates who come forward in the first stage of the procedure under Article 29 (1) exclusively on the their own merits. That conclusion seems indeed incontestable in the light of the wording of Article 29 but it says nothing about the power of the appointing authority in the first stage also to take account of the merits of candidates who are eligible for consideration only at a later stage of the procedure but who are already in fact known to the appointing authority (or, I may add, who may with reasonable confidence be expected by that authority to come forward at a later stage).
      Nor, in my view, can the applicants successfully rely on the Court's judgment in the Giuffrida case in support of their submission of a misuse of powers. The facts in that case were too different from those in the present one. In the Giuffrida case it was clear (paragraph 10) that the internal competition in question “was organized by the appointing authority for the sole purpose of remedying the anomalous administrative status of a specific official and of appointing that same official to the post declared vacant”. It is only for such a situation that paragraph 11 of the decision states that the “pursuit of such a specific objective is contrary to the aims of any recruitment procedure, including the internal competition procedure, and thus constitutes a misuse of powers”.
      The documents before the Court in this case reveal at most the intention from the outset to appoint to the post of reviser at the Commission the candidate who was considered the best qualified and who came from another institution. As early as its judgments in the Ley cases the Court took the view ([1965] ECR at p. 121) that the interpretation that Article 29 renders “obligatory... the holding of a competition internal to the institution, if no promotion or transfer can be decided on” was incorrect since “Article 29 (1) (b), just like Article 29 (1) (a), only requires the said authority to consider ‘whether’ to adopt the measures in question” and that “the use of the term ‘whether’clearly indicates that the appointing authority is not bound absolutely to adopt these said measures, but must merely consider in each case whether they are capable of resulting in the appointment of an official of the highest standard of ability, efficiency and integrity” (my italics).
      A similar statement is to be found for example in paragraph 10 of the decision in Case 123/75 (Küster [1975] ECR, at p. 1709). The appointing authority's wide discretion in this respect is mentioned inter alia in paragraph 12 of that. judgment and in, paragraph 17 of the recent judgment of the Court of 24 March 1983 in the Colussi case. It is apparent from paragraph 24 of the first Küster judgment (Case 23/74), paragraph 5 of the second Küster judgment (Case 22/75) and paragraph 10 of the third Küster judgment (Case 123/75) that the appointing authority may pass on to a subsequent stage of the procedure under Article 29 of the Staff Regulations only in the interests of the service. The examination in the course of each of the earlier stages in turn must be carried out with the utmost care.
      In the light of my analysis of the case, my views may be summarized as follows:
      
         First, both the wording of Article 29 (1) (a) and the relevant case-law show that even candidates within an institution who meet the requirements for a given vacancy have no right, on the basis of that provision to promotion or transfer.
      
         Secondly, it follows from the case-law that the appointing authority must carefully consider whether Article 29 (1) (a) and (b) can be applied before going on to apply Article 29 (1) (c) (or in more general terms to the following stage). But in accordance with the wording of the judgment in the Ley cases the interests of the service entitle the institution concerned to look for the candidate who meets the highest standards of inter alia ability and efficiency. The mere fact that at the outset of the procedure to fill a vacancy an external candidate was evidently considered to be the most suitable, does not support the inference that the internal candidates were not considered with sufficient care. This is particularly true since it was known, amongst other things, that the external candidate had acutally been revising translations from English, French and German for the Council since 1 July 1975. In addition he had earlier worked for about a year for the Commission and so his qualities as a translator (which in September 1973 led to his being recruited by the Council) were also known to the Commission for that reason.
      
         Thirdly, the applicants have been unable to produce evidence that the Commission has committed a manifest error or misused its powers (see the criteria in paragraph 13 of the abovementioned judgment in the Giannini case) in considering the merits and abilities of the candidate who was finally appointed. On the contrary the file on the case shows that in contrast to the applicants (who have only more or less incidentally done some revision), the candidate finally appointed had already for a number of years worked mainly as a reviser. The Commission could therefore properly expect him to be better qualified for the post in question than the applicants. For me that is the decisive factor in considering whether the rejection of the applicants' candidatures for the post of reviser was justified. The applicants have not sought an annulment of the appointment as such. It is not necessary therefore to examine the procedure leading up to the appointment itself.
      
         In conclusion I therefore propose that the Court dismiss the application for annulment of the decision rejecting their candidatures and order the parties to bear their own costs pursuant to Articles 69 and 70 of the Rules of Procedure. In view of the dismissal of the application for annulment, the supplementary claim made by. the applicants that the Commission be ordered to appoint the best qualified of them loses its basis. It is therefore unnecessary to consider whether that claim is admissible.
      (
            1
         )	Translated from the Dutch.