JUDGMENT OF 19.3.64 — CASE 27/63 RAPONI v COMMISSION

In Case 27/63

THE COURT composed of: A. M. Donner, President, Ch. L. Hammes and A. Trabucchi, Presidents of Chambers, L. Delvaux, R. Rossi, R. Lecourt (Rapporteur) and W. Strauß, Judges, Advocate-General: K. Roemer Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Facts

By vacancy notice No 209, published in the Staff Information Bulletin of the EEC Commission No 10 of 30 August 1962, the post of Director of Internal Affairs within the Directorate-General for Administration, a Grade A/2 post, was declared vacant. Any officials interested were invited to submit their applications to the Directorate-General for Administration by 20 September 1962.

The above-mentioned vacancy notice described the duties attached to the post as follows:

‘Director of Internal Affairs, to be responsible for the following Departments: Buildings, Equipment, Conferences; Library and Documentation; Distribution of Post, Archives and Internal Administration; Translation, Copying and Distribution of Documents; and Interpreting Ser-vice. Qualifications and Experience: degree ór higher qualification in law or economics; familiarity with the problems of administration and considerable experience in this field; ability to manage efficiently five large administrative units at Director level. Languages: a thorough knowledge of one of the Community languages; an adequate knowledge of one other Community language.’

The Directorate-General for Administration received five applications, including those of Mr Raponi and Mr Strasser. The Heads of Division in the Department of Internal Affairs were informed by a note from the Director-General for Administration, Mr Smulders, that at its meeting of 13 February 1963 the Commission, acting as the appointing authority, ‘after considering the comparative merits of the candidates eligible for promotion’, had appointed Mr Strasser to the post of Director of Internal Affairs.

By letter of 21 February 1963 addressed through the official channels to the members of the Commission, Mr Raponi requested the Commission to inform him of the criteria on the basis of which it had decided to reject his application for the post in question. In his letter the applicant stated that he was exercising the right accorded him by Article 90 of Staff Regulations.

Mr Raponi's application was lodged at the Court Registry on 13 May 1963.

By letter of 13 June the Commission informed the applicant that, in accordance with Article 45 of the Staff Regulations, it had considered the comparative merits of the officials eligible for promotion who had applied for the vacant post of Director of Internal Affairs, and that following this assessment, which had taken into account in particular the applicant's candidature, it had decided ‘exercising its right of selection as the appointing authority’ to promote Mr Strasser to the post in question.

II — Conclusions of the parties

The applicant, Mr Raponi, claims in his application against the EEC ‘and, so far as may be necessary, the Commission’, that the Court should:

1. ‘Declare null and void the Decision of 13 February 1963 whereby Mr Strasser was appointed Director of Internal Affairs; 2. Order the EEC and, if necessary, the Commission, to bear the whole of the costs of the proceedings; 3. Note that the applicant reserves his right to raise any new submissions of fact or law as shall seem to him appropriate after the other parties have presented their defence and after production by them of any documents.’

In his reply Mr Raponi completed head 2, above, by adding ‘inclusive of fees’, and appended head 4 as follows:

4. ‘As a subsidiary point (a) order the Community to produce the minutes of the Council of Ministers relating to the establishment of the Staff Regulations; (b) order the Commission to produce the minutes of the meeting of 13 February 1963, or at least that part of the minutes which relates to the promotion of Mr Strasser; (c) order production of the minutes and documents of the Staff Committee relating to promotion of officials and in particular the memorandum of 27 March 1963 drawn up by the Staff Committee and submitted to the Commission.’

In the course of the oral procedure, the applicant also requested production of the whole of the minutes of the meeting of the Commission on 13 February 1963, as well as the files of the Administration submitted to the Commission.

The EEC Commission contended in its statement of defence that the Court should:

‘declare the application unfounded and give judgment on costs according to the relevant provisions’,

and, in its rejoinder, that the Court should:

‘declare the application unfounded and order the applicant to bear the costs according to the relevant provisions.

III — Arguments of the parties

As to the identity of the defendant and the admissibility of the application

In his reply the applicant sets out his reasons for naming both the EEC and the EEC Commission as defendants in the application. The applicant's purpose in so doing, bearing in mind the opinion of Mr Advocate-General Lagrange in Case 25/60 and the case-law of the Court, was both to fulfil the requirements of Article 91 of the Staff Regulations and to gain access to the preparatory documents relating to certain regulations made by the Councils of Ministers.

The defendant does not comment on the general questions raised above, replying only that it is not empowered to produce in Court the minutes of the Council, but that the Court is able under Article 21 of its Statute to require any institution to supply information.

The defendant does not contest the admissibility of the application.

On the first complaint

The applicant pleads the four grounds stated in Article 173 of the EEC Treaty, claiming that the Commission's Decision of 13 February 1963 did not comply with Article 110 of the Staff Regulations. According to this Article, in view of the importance of Article 45 (1) of the Staff Regulations, it should have been the subject of general provisions for giving effect to it, adopted after consulting the Staff Committee and the Staff Regulations Committee provided for in Article 10, and brought to the attention of the staff.

Article 45 presupposes in particular consideration of comparative reports on officials drawn up in accordance with Article 43 of the Regulations.

This Article refers expressly to Article 110, while the procedure for drawing up the reports is still at present under consideration by the Staff Regulations Committee, which has apparently been consulted by the Commission.

The defendant draws attention to Article 45 (1) of the Regulations and maintains that this provision, complete in itself, is applicable without any need to supplement it by a provision for giving effect to it and that in fact it establishes all the factors necessary for enabling promotions to be made, despite the reference in Article 43 to Article 110.

Since the procedure for drawing up the reports has not yet been adopted by the institutions, there are as yet no reports which can be taken into consideration and in the meantime it has been necessary to effect promotions based solely on a consideration of the comparative merits as in this case.

According to the defendant this consideration can be carried out by the appointing authority ‘to whom the Regulations accord a discretionary power, without making it necessary to lay down by general regulations the procedure for making such an assessment.’

On the second complaint

The applicant invokes the four grounds for annulment set out in Article 173, claiming that the contested Decision fails to comply with Article 5 in fine of the Regulations.

He claims that it is impossible to judge the ability of an official to fill a given post without relying on a prior description of the duties and powers attaching to that post after consultation with the Staff Regulations Committee and, if necessary, with the Staff Committee in accordance with the general rule in Article 110.

The defendant states that this complaint is open to two interpretations.

If the applicant is referring to the description of duties in the vacancy notice within the three months’ timedefendant, inadmissible because it is out of time since he did not contest the notice within the three month's timelimit, and went so far as to make his application without expressing any reservations as to the legality of the advertisement of the vacancy.

If the applicant considers that all promotions or appointments must be suspended until the institution has defined the duties in accordance with Article 5, then in the defendant's opinion he seems to be overlooking the requirements of the service and the fact that the general description of duties is a long and exacting task which must be undertaken in cooperation with the other institutions. The applicant replies to the argument that the application is out of time by emphasizing that the act adversely affecting him is not the vacancy notice, which is merely a preliminary step and cannot do irreparable harm, but the Decision which was finally adopted. He also invokes Article 184 of the Treaty by analogy.

Turning to the defendant's second argument, the applicant draws attention to the situation currently prevailing in the various institutions and the resolution of the European Parliament of 6 February 1963 noting the delay which has built up in integration and classification of posts and declares that he is in no way responsible for the Commission's delay and that the latter has only itself to blame if it is not in a position to effect promotions in such a manner as to meet the requirements of the law.

Moreover, the ‘requirements of the service’ do not demand that vacant posts must be filled forthwith. In support of this view he cites the proportion of auxiliary staff among the officials of the Community and the opportunity open to the latter of using the ‘interim’ procedure.

In its rejoinder, the defendant states that the applicant's reply requires it to maintain its objection of inadmissibility on the ground that the application is out of time, and there are grounds for saying that the description of the duties in vacancy notice No 209 is not at variance with the definition of the basic post.

On the third complaint

The applicant pleads the four grounds for annulment in Article 173 of the Treaty. In his view the contested Decision applies the first part of Article 45 (1) of the Regulations in the wrong way since the Commission did not determine its selection criteria in advance. Prior determination of such criteria is the sole guarantee of strict compliance with Article 27 of the Regulations and of exclusion of misuse of powers.

Article 45, which grants the Commission a discretionary power, also provides for the consideration of comparative merits based on reports, which presupposes that such a power is linked to the consideration of the comparative merits of the various candidates, and thus of the said reports.

It is inconceivable that there should exist no predetermined objective procedure, known to officials beforehand. A study in comparative law with particular reference to Italian law, as well as a careful examination of the four texts of Article 45 would prove to be informative.

The applicant has agreed in his reply that this complaint is merely a development of his first complaint and has suggested that the Court should call for the production of the memorandum of27 May 1963 from the Staff Committee to the EEC Commission concerning promotion procedure.

The defendant replies that the applicant is attempting to impute to the Commission an obligation which is not laid down by the Regulations.

The fixing of criteria would risk prejudicing the wide discretionary power of the appointing authority which results from the actual words used in Article 45 (1), stating that promotion shall be exclusively by selection. No official, says the defendant, has a right to promotion.

To fix criteria in advance would restrict the Administration's freedom of selection, particularly with regard to the filling of such high posts as those of officials classed as A/2.

On the fourth complaint

The applicant pleads the four grounds set out in Article 173 of the Treaty since the contested Decision, by failing to state the reasons on which it was based, does not comply with the first part of Article 25 of the Staff Regulations.

A decision to reject an application adversely affects the candidate and should therefore state the reasons on which it is based to enable the latter to determine whether regard was had to his legitimate interests, and the Court to review the legality of the decision of rejection.

The applicant quotes the case-law of the Court according to which the statement of reasons is a guarantee of compliance with legal requirements.

The necessity of providing all officials with proper guarantees regarding publicity for measures affecting their careers is confirmed by the formal requirement regarding the publication of notices.

The applicant recalls on this subject that the Decision adversely affecting him was not brought to his notice by one of the methods of communication provided for in Article 25, but by a simple administrative notice sent to him in his capacity as an official of the Directorate concerned. This notice neglected even to mention that the legal formalities had been complied with.

The defendant concedes that promotion of an official may be construed as an implied refusal to promote the other candidates for the same promotion. But this implied refusal need not be embodied in an individual decision of refusal stating the reasons on which it is based.

The contested Decision appointing Mr Strasser did not adversely affect him and therefore need not state the reasons on which it was based.

The applicant's argument would lead to the unacceptable conclusion that the same decision is lawful as regards the person to whom it is addressed, but unlawful in relation to a third party. It also fails to recognize that no right of promotion exists.

To give reasons for a decision which denies promotion to an official would not be in his interests.

On the fifth complaint

The applicant requests that the contested Decision be annulled, on the ground that the Commission relied on facts which were incorrect or incorrectly interpreted by it. This ground of the application is supported, according to the applicant, by the letter from the President of the Commission of 14 June 1963, received by the applicant after his application had been lodged.

The Court cannot properly exercise its powers of judicial review unless it has before it the full minutes of the Commission of 13 February 1963, enabling it to determine the manner in which the Commission made its comparative assessment of the officials' capabilities. The particulars submitted for the Commission's appraisal were incomplete and were not the same for each candidate.

The defendant contends that the applicant's allegations are unwarranted and that the appointment of Mr Strasser, who — as is not contested — satisfied the legal prerequisites for promotion, complied in every respect with the Regulations.

The applicant has not proved the existence of any ground of invalidity or any procedural defect which could lead to annulment of the appointment. The defendant attaches the minutes, production of which was requested, as a schedule to its rejoinder; it states that a passage of one and a half lines has had to be omitted because of the confidential nature of the Commission's deliberations.

No service reports within the meaning of Article 43 are produced because there are none in existence. There is no obligation to make such reports until after a period of two years, and the Staff Regulations of officials were not published until 15 January 1962.

The declaration made by the President, of the Commission to the effect that the comparative merits of the candidates were taken into account should suffice.

IV — Procedure

The written procedure followed the normal course.

The parties annexed schedules to their pleadings and the applicant's personal file was produced. ‘As a subsidiary point’ the applicant requested the production of various documents, as listed at head 4 of his conclusions.

The defendant replied, in terms which have been summarized above, that it was not authorized to produce the minutes of the Council. It supplied the minutes of the meeting of 13 February 1963, omitting a passage ‘because it sets out the opinions of certain members of the Commission and such opinions cannot be made public by reason of the confidential nature of the Commission's deliberations.’

It claimed that the applicant had no legal interest entitling him to call for production of documents concerning the Staff Committee.

The oral submissions of the parties were heard on 12 November 1963, and on 6 February Mr Advocate-General Roemer delivered his opinion to the effect that the contested Decision should be annulled.

After the oral procedure had closed, the Commission was requested to produce all the documents which had been submitted to members of the Commission relating to the candidates for the post in question.

The Commission replied that there was only one such document and that it was already set out in the schedule to its rejoinder.

Grounds of judgment

Admissibility

The applicant has instituted proceedings against an act of. the Commission whereby an official was appointed to a post for which the applicant was a candidate. The application is made against the European Economic Community and, so far as is necessary, the Commission; Article 91 of the Staff Regulations of officials of the EEC refers to disputes between ‘one of the Communities’ and one of its officials. Article 179 of the EEC Treaty provides that ‘The Court of Justice shall have jurisdiction in any dispute between the Community and its servants within the limits and under the conditions laid down in the Staff Regulations or the Conditions of Employment.’

The Commission, as the supreme appointing authority, is entitled to be a party to legal proceedings in connexion with disputes which may arise between it and its staff. Article 90 of the Regulations, which establishes the system for the submission of complaints by staff, states that any such complaint, which in the normal order of events precedes an application to the Court, is to be made against the appointing authority of their institution. Exercise of the right of action provided for in Article 91 must, in the absence of any provision to the contrary, abide by the same rule.

The Commission has the capacity to represent the Community in Court. Accordingly, the application must be judged admissible and be deemed to be made against the Commission.

On the first complaint

The applicant requests the annulment of the Decision appointing Mr Strasser to the post of Director of Internal Affairs within the Directorate-General for Administration on the ground that it infringes Article 110 of the Regulations, since no general provisions for giving effect to Article 45 (1) of the Regulations and Article 43, to which Article 45 refers indirectly, were adopted or published.

Recourse to Article 45 does not appear to necessitate any implementing measures other than that to which it refers by implication; that is, the drawing up of reports which constitute one factor in the consideration of the comparative merits of officials who are eligible for promotion. Moreover, it is not disputed that no periodical reports as provided for in Article 43, and made under conditions to be fixed by general provisions for giving effect to that Article within the meaning of Article 110, were in existence at the time the contested Decision was made.

However regrettable the delay in putting Article 110 into effect may be, none of the institutions was in a position at the time to adopt the general provisions in question, because of the date on which the Regulations were published and entered into force. Since they did not enter into force until 1 January 1962, the Commission did not act improperly at the time of the contested Decision in having failed to make out the reports. Thus Article 45 had to be used before the adoption of the general implementing provisions provided for. The requirements of the service make it impossible to consider this procedure during a transitional period as illegal.

Accordingly the first complaint is unfounded.

On the second complaint

The applicant complains that the contested Decision infringes Article 5 in fine of the Regulations, because the vacancy notice regarding the post in question was not preceded by a description of the post within the meaning of the said Article.

This complaint relates both to the inadequacy of the vacancy notice itself and possibly the general failure on the part of the Commission to issue descriptions of all the posts within its administration.

The alleged inadequacy of the vacancy notice consists in the absence of any clearly defined criteria of selection. Since this complaint is closely connected with the third complaint, it may be conveniently examined below.

In the present proceedings, bearing in mind the requirements of the service, the complexity of the task of describing the various posts, and the actual description of the post in question as given in the vacancy notice, the legality of the contested decision should be confirmed on this point.

On the third complaint

The applicant complains, first, that the Commission applied in the wrong way the first part of Article 45 (1) of the Regulations, in that it failed to determine in advance its criteria for selection; and secondly, that the Commission applied in the wrong way Articles 27 and 45 — in conjunction with Article 43 — which provide for the consideration of reports and presuppose the existence of a predetermined and objective procedure with which officials would be acquainted in advance.

Article 45 provides that promotion shall be exclusively by selection after consideration of the comparative merits of the candidates. The appointing authority has in this report wide discretionary powers. Such powers presuppose that, while great freedom is allowed in making the decision, there must at the same time be a scrupulous consideration of personal files each containing comparable information. This second factor provides the necessary guarantee that powers will be exercised in full knowledge of the facts.

Article 45 (1) of the Regulations indicates as a criterion the reports, to be made at least once every two years, provided for by Article 43; the nonexistence of these reports at the time of the contested Decision does not seem sufficient ground for concluding that the Decision is illegal. It would be too much to require the Administration to draw up ad hoc reports to take the place of the reports provided for in Article 43 during the adaptation period whenever a vacant post makes it necessary to compare the merits of possible candidates.

An examination of the factors actually taken into account by the Commission is a matter connected with the review of the ‘consideration of the comparative merits’ of the candidates.

Accordingly, this complaint is not well-founded.

On the fourth complaint

The applicant requests the annulment of the contested Decision, on the ground that the reasons on which it was based were not stated.

According to Article 25 of the Staff Regulations, any decision relating to a specific individual which is taken under the Staff Regulations shall be communicated in writing to the officials concerned and any decision adversely affecting an official shall state the reasons on which it is based.

The contested Decision did not state the reasons on which it was based in so far as concerns the person to whom it was addressed, that is to say, the official whose candidature for the post in question was accepted and who was therefore not adversely affected by it. As for the other candidates, it should be borne in mind that the Commission has wide discretionary powers in making its selection. The factors on which this assessment is based, covering not only the efficiency and vocational aptitude of the applicants but also their character, behaviour and general personality, are ill-suited for inclusion in a statement of reasons and were they so included the statements might well prove prejudicial to the interests of the unsuccessful candidates. The Court would, however, emphasize all the more strongly that the guarantees ensuring a full consideration of candidates' personal files must always and in every respect be observed.

This ground of the application must accordingly be dismissed.

On the fifth complaint

The applicant requests the annulment of the contested Decision, on the ground that the factors on which the Commission based its Decision were incorrect or incorrectly interpreted by it.

The post for which Mr Raponi applied should not have been filled until a consideration of the comparative merits of the candidates eligible for promotion had been made. Such consideration implies a comparison of the aptitudes of those candidates. However wide the Commission's discretionary powers, the Commission must evaluate those merits on a basis of equality, having recourse to information the source and content of which is comparable in each instance.

It is not disputed that the curriculum vitae of the applicant which was submitted to the Commission by its administrative service did not correspond either to the curriculum vitae which appears in his personal file, nor to that which was attached to his request for promotion. The Commission may well therefore have been insufficiently informed as to the applicant's career. Nor is it disputed that no examination of the linguistic proficiency of the various candidates took place, despite the precise requirements relating to this specified in the vacancy notice.

The Court has no evidence before it that the Commission supplemented its knowledge by consulting the personal files of the candidates.

The factors taken into account by the Commission in taking its Decision were insufficient.

Accordingly, this decision must be annulled on the ground that it infringes the first subparagraph of Article 45 (1) of the Staff Regulations of officials of the EEC.

Costs

The applicant has been successful in his main conclusions. The defendant must, by virtue of Article 69 (2) of the Rules of Procedure, be ordered to bear the costs.

On those grounds, Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties; Upon hearing the opinion of the Advocate-General; Having regard to the Treaty establishing the European Economic Community, especially Articles 173 and 179; Having regard to the Protocol on the Statute of the Court of Justice of the European Economic Community; Having regard to the Staff Regulations of officials of the European Economic Community, especially Articles 5, 25, 27, 43, 45, 90, 91 and 110; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, especially Article 69, THE COURT hereby:

1 Annuls the Decision of 13 February 1963 of the Commission of the European Economic Community appointing D. Strasser as Director of Internal Affairs within the Directorate-General for Administration;

2 Orders the Commission of the European Economic Community to bear the costs.