1 By application lodged at the Court Registry on 17 April 1990, Ingfried Hochbaum, an official of the Commission of the European Communities, brought an appeal under Article 49 of the Statute on the Court of Justice of the EEC and the corresponding provisions of the Statutes on the Court of Justice of the ECSC and EAEC, against the judgment of 14 February 1990 by which the Court of First Instance dismissed his action for the annulment of the Commission decisions cancelling Vacancy Notice COM/902/84 for the post of Head of the State Monopolies and Public Enterprises Division and adopting Vacancy Notice COM/83/87.
2 In support of his appeal, by which he requests that the Court of Justice set aside the judgment of the Court of First Instance, the appellant puts forward two pleas in law, both of which relate to the third plea in law relied upon by him before the Court of First Instance, in which he alleged a misuse of powers. The first plea alleges infringement of Article 45 of the Staff Regulations of Officials of the European Communities and the second alleges failure to carry out the review required in cases of misuse of powers.
3 According to Mr Hochbaum, the Court of First Instance was wrong to dismiss his arguments that the Commission closed the recruitment procedure under reference COM/902/84 and initiated a new recruitment procedure in order to endow with a semblance of legality the decision, already beyond doubt, to appoint, Mr Waterschoot, one of the candidates. In support of that contention, the appellant alleged that, in the first procedure, which led to the appointment of Mr Waterschoot to the post in question, the latter did not possess the qualifications required by Vacancy Notice COM/902/84. That appointment was annulled by judgment of the Court of Justice in Joined Cases 44/85, 77/85, 294/85 and 295/85 Hochbaum and Rawes v Commission [1987] ECR 3259 because of a procedural defect but, according to the appellant, the experience acquired by Mr Waterschoot in that post enabled him to compensate for the inadequacy of his qualifications and it was for that reason that the decision was taken to open procedure COM/83/87, which again led to the appointment of Mr Waterschoot.
4 By order of 10 October 1990, the Court of First Instance granted leave to the Union Syndicale - Brussels to intervene in support of the appellant.
5 Reference is made to the Report for the Hearing for a fuller account of the facts, the procedure and the pleas in law and arguments of the parties, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court. The first plea in law
6 Pursuant to Article 45 of the Staff Regulations, "Promotion shall be exclusively from among officials who have completed a minimum period in their grade, after consideration of the comparative merits of the officials eligible for promotion and of the reports on them."
7 In the first limb of his first plea, the appellant claims that the Court of First Instance restricted its review of the application of that provision to the existence or otherwise of a manifest error on the part of the appointing authority in the exercise of the discretion available to it in that regard.
8 It has been consistently held that the appointing authority enjoys a wide discretion regarding promotions and that the review by the Court must therefore be restricted to the question whether the appointing authority exercised its power in a manifestly erroneous manner (see the judgment of the Court of Justice in Case 52/86 Banner v European Parliament [1987] ECR 979, paragraph 9). The approach taken by the Court of First Instance was therefore within the limits of the review required of it.
9 It is true that any judicial review must also verify whether the appointing authority exercised its discretion within the self-imposed limits contained in the vacancy notice (see the judgment of the Court of Justice in Case C-343/87 Culin v Commission [1990] ECR I-225, paragraph 19); however, account must be taken of the finding made by the Court of First Instance in paragraph 24 of its judgment that "there is no objective indication in the documents before the Court of First Instance that, prior to performing the tasks of Head of the State Monopolies and Public Enterprises Division, Mr Waterschoot did not satisfy the conditions required for submitting his application for the post in question". This being an assessment of fact, the Court of Justice has no jurisdiction to examine it further.
10 In the second limb of his first plea, Mr Hochbaum contends that the contested judgment did not adequately reply to the arguments put forward by him before that court concerning Mr Waterschoot' s qualifications.
11 In that regard, attention need merely be drawn to the above statement of the Court of First Instance. That statement, although succinct, replies to the arguments put forward by Mr Hochbaum.
12 The plea as to infringement of Article 45 of the Staff Regulations must therefore be dismissed. The second plea in law
13 In his second plea, Mr Hochbaum claims that the Court of First Instance disregarded the very nature of the allegation of misuse of powers, in that it did not seek to establish the real purpose of the contested decisions of the appointing authority.
14 The Court of Justice has consistently held that a misuse of powers is deemed to exist only if it is proven that the appointing authority, in adopting the contested decision, was pursuing an objective other than that pursued by the rules in question (see for example the judgment in Case 135/87 Vlachou v Court of Auditors [1988] ECR 2901, paragraph 27).
15 In its judgment, the Court of First Instance concluded that the fact that the experience acquired by Mr Waterschoot following his first appointment was taken into account was not sufficient to establish that the appointing authority was pursuing an objective other than the interests of the service, thus misusing its powers.
16 It follows that the Court of First Instance did not misapply the concept of misuse of powers. Moreover, pursuant to Article 168a of the EEC Treaty and the corresponding provisions of the ECSC and EAEC Treaties, matters of fact cannot be reviewed by the Court of Justice on appeal. It follows that Mr Hochbaum' s second plea must also be rejected.
17 Since neither of Mr Hochbaum' s pleas has been upheld, his appeal must be dismissed in its entirety.