CELEX: C1996/294/25
Language: en
Date: 1996-10-05 00:00:00
Title: Action brought on 26 July 1996 by Jean-Claude Séché against the Commission of the European Communities (Case T-115/96)

5 . 10 . 96            EN                 Official Journal of the European Communities                                No C 294/ 13
— annul , in so far as is necessary, the appointment                 include 'documentary evidence relating to the candidate's
     decisions adopted at the end of internal competition            studies and vocational training and also his professional
     A/02/95 ,                                                       experience', the selection board requested some candidates
                                                                     working in the Secretariat General of the CR to supply
— order the defendant to pay the costs .                             additional supporting documents in order to regularize their
                                                                     incomplete files . Furthermore , it is not disputed that all the
                                                                     successful candidates appointed to the posts to be filled
Pleas in law and main arguments                                      came from within the CR . By contrast, none of the
                                                                     successful candidates from the organizational structure
The applicant, a Grade A 6 official of the Economic and              common to the ESC and the CR was appointed .
Social Committee ('ESC') and a successful candidate in
internal competition A/02/95 organized by the Committee
of the Regions (' CR') in order to fill eight principal
administrator posts, challenges the defendant's refusal to
appoint him to one of those posts .
First of all , he alleges breach of the competition notice in        Action brought on 26 July 1996 by Jean-Claude Seche
that Article IV ( c ) of the notice , concerning the oral tests,       against the Commission of the European Communities
refers to an examination covering, on the one hand, the
candidate's general knowledge and, on the other, his specific                                Case T-115 /96 )
knowledge relevant to the vacant posts for which he has                                       96/C 294/25
indicated a preference . The applicant notes in this respect
that at the time when the competition was started , the posts
for which the candidates could express a preference were all                        (Language of the case: French)
occupied by members of the temporary staff of the CR who
were all candidates in the competition . However, the
competition notice does not provide for the priorities               An action against the Commission of the European
indicated by candidates for vacant posts to be used for other        Communities was brought before the Court of First
purposes , and in particular as a criterion for selection by the     Instance of the European Communities on 26 July 1996 by
administration . Consequently, a factor intended for use as          Jean-Claude Seche, residing in Brussels, represented by Eric
an aid in the oral test organized by the selection board could       Boigelot, of the Brussels Bar, with an address for service in
not be used by the appointing authority to derogate from the         Luxembourg at the Chambers of Louis Schiltz, 2 rue du Fort
order of the candidates ' merits .                                   Rheinsheim .
Second, the applicant alleges infringement of Article 25 of          The applicant claims that the Court should:
the Staff Regulations in so far as the appointments decided
on as a result of the internal competition were motivated,           — annul the Commission 's decision of 1 December 1995
not by the desire to recruit the officials of the highest                rejecting his request of 30 August 1995 ,
standard of ability, efficiency and integrity, but simply by
the decision in principle to regularize the situation of
members of the temporary staff.                                      — order the Commission to reconstitute his career with
                                                                         effect from 1 June 1991 ,
According to the applicant, it is also apparent that the CR
infringed Article 25 of the Staff Regulations by failing to
                                                                     — in the alternative, order the Commission to pay him a
                                                                         differential allowance,
provide sufficient reasons for its decision to derogate from
the list of suitable candidates drawn up in accordance with
Article V of the notice of internal competition in question .        — order the Commission to pay him ECU 1 in symbolic
The obligation to provide reasons was all the more                       compensation for non-material damage,
 imperative in the circumstances since the Bureau of the CR
 departed from the Secretary-General 's proposed                     — order the Commission to pay the costs .
 appointments .
 Finally, the applicant considers that the decision to treat as a     Pleas in law and main arguments
 selection criterion the question whether a candidate
 belonged to the CR and the priorities indicated for certain          The applicant, an official in the Commission's Legal Service ,
 posts resulted in failure to ensure equal treatment for the          who has 14 years' seniority in Grade A 3 and has been
 successful candidates, which amounted to misuse of powers .          performing the duties of principal legal adviser since 1991 ,
 He notes in that regard that, after settling the criteria for        challenges the Commission 's refusal of his request to the
 admission to the competition and after the deadline had              appointing authority to upgrade his duties to A 2 , grant him,
 passed for submitting applications which were , in                   in the alternative, a temporary posting pending his
 accordance with Article V of the competition notice, to              promotion , reconstitute his career and pay him the
 ---pagebreak--- No C 294/ 14            EN                Official Journal of the European Communities                                  5 . 10 . 96
corresponding difference in salary. In his view, that decision          1 January 1997, when he reaches retirement age, and
is unlawful for the following reasons .                                 this also amounts to a breach of the duty to have regard
                                                                        for the interests of officials owed by the Community
— Breach of the principle that grade and post should                    administration .
    correspond .
                                                                     — Absence of comparative examination of candidates'
— Infringement of the third paragraph of Article 27 of the
                                                                        merits in the case of certain appointments made in the
    Staff Regulations, in that A 2 posts within the
                                                                        Legal Service .
    Commission, in particular in its Legal Service, are filled
    on the basis of nationality quotas .
                                                                     — Failure to state reasons .
— Breach not only of the principle of sound administration
    but also of the right of officials in Grade A 3 , in             — Preference given to another official for appointment to
    particular those who, like the applicant, perform duties            Grade A 2 because of unwillingness to award that grade
    as head of a section, to enjoy prospects of promotion.              to a legal adviser in Grade A 3 one year before he would
    That defect results from the fact that during the                   reach the compulsory retirement age, although that has
    reference period the Commission failed to advertise A 2             previously been done in the Legal Service and the Staff
    posts or to fill them and resorted, where necessary, to the         Regulations do not specify an age limit for
    practice of transferring officials with their posts .               promotion .
— Infringement of the rules relating to delegation, in that,         — Contrary to Article 7 of the Staff Regulations, a number
    although formally the Commission is empowered to                    of A 2 appointments made in the reference period did
    make the relevant decision, in reality it defers to the             not comply with the interests of the service which must
    choice of the chefs de cabinet who themselves pass                  be satisfied when filling posts, but amount to
    responsibility therefore to the chefs de cabinet                    ' appointments for organizational reasons'.
    'concerned'. That practice clearly amounts to a misuse of
    power and abuse of process .                                     — Breach of the principle of equal treatment, in that the
— Infringement of the rules relating to temporary postings,             applicant was discriminated against on the grounds of
    since the appointing authority did not excise the relevant          nationality, age and sex .
    power 'with regard to the circumstances of the case',
    contrary to Article 7 ( 2 ) of the Staff Regulations .           — Breach of good faith and of the principle of the
                                                                        protection of legitimate expectations, in so far as the
— Breach of the principles of the right to work and of the              applicant asserts that he is in a situation in which the
    public service relating to acting posts, inasmuch as such           Community administration has given him reasonable
    posts can only be temporary in nature and must be                   grounds to expect that he will be promoted to Grade A 2 ,
    limited to a few months , pending departmental                      given, first, that a 'French ' A 2 post has been made
    reorganization, in some circumstances through                       available to the Legal Service and, secondly, that
    promotion of the person in the acting post . The                    performing the duties of a principal adviser traditionally
    applicant will have been in an acting post for six years on         leads to promotion to Grade A 2 .