JUDGMENT OF 3. 2. 1971—CASE 21/70 RITTWEGER v COMMISSION

In Case 21/70

THE COURT (Second Chamber) composed of: A. Trabucchi, President of Chamber, P. Pescatore and H. Kutscher (Rapporteur), Judges, Advocate-General: A. Dutheillet de Lamothe Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Facts

The facts on which the present proceedings are based may be summarized as follows:

1) The applicant, a German national, entered the service of the former High Authority of the ECSC in June 1953 as a ‘multi-lingual shorthand typist’ and in November 1957, following a competition, was appointed -translator in German and promoted to Grade 5 of Category L/A in January 1963.

2) In March 1969 the Commission published Vacancy Notice No COM/102/69 concerning a post of reviser (career brackets LA 5-L/A 4) in the Directorate-General of Personnel and Administration, Directorate of Publications, Translation Division. The notice contained in particular the following information:

‘Nature of duties: reviser

revision of German translations of texts drafted in two Community languages and possibly in English;

where necessary, translation into German of particularly difficult texts.

Qualifications required:

university education and a degree or equivalent professional experience;

wide experience of translation;

proven precision of expression and ease of style.

Knowledge of languages:

a perfect command of German;

a very extensive knowledge of two other Community languages;

knowledge of English desirable.’

3) After several officials including the applicant put forward their candidature for the vacant post, the defendant decided on 1 October 1969 to appoint Mr Lenoch, who is also a German national. That decision was taken in the following circumstances:

a) by a ‘memorandum for the Members of the Commission’ of 3 July 1969 the Secretariat-General of the Commission To that memorandum there was attached another ‘memorandum for the attention of the Members of the Commission’, setting out in particular the names of the candidates and specifying that Mr Lenoch has been a translator in Grade L/A 6 since 1 March 1964; the memorandum contained no similar reference concerning the other candidates.

stated ‘that it submitted for the approvel of the Commission a proposal by Mr Coppé and Mr Bodson that, after a consideration of the comparative merits of the candidates as well as of the reports of their competence, efficiency and conduct in the service, Mr Lenoch be appointed’ to the post in question;

stated that ‘at the request of Mr Bodson the agreement of the Commission is requested by the written procedure’;

invited the Members of the Commission to make known any observations which they might wish to make before 11 July 1969, it being understood that ‘if no observations or reservations are made by that date, the proposal will be regarded as approved’;

specified ‘that the personal files of all the candidates are held at the disposal of the Members of the Commission by the Directorate-General of Personnel and Administration’.

b) By a memorandum of 7 July 1969 addressed to Mr Lambert, the Director-General of Personnel and Administration of the Commission in Brussells, Mr Bodson expressed his wish to ‘know the reasons which led your departments to reply to Miss Eva Rittweger that it was not possible to accept her candidature’. By a memorandum of 17 July 1969 also addressed to Mr Lambert, Mr Bodson:

mentioned that he had learned meanwhile that the abovementioned information supplied to the applicant was based on a mistake;

stated that however ‘on 11 July, not having received the information which I awaited, I asked the Secretariat-General not to regard the decision as taken by means of the written procedure’;

stated that ‘before keeping to my proposal as it appeared in the text of the written procedure and giving my agreement to its being adopted, I wish you to have it re-examined’;

wondered, in fact, ‘whether the choice of Mr Lenoch is fully justified’ and more particularly whether ‘his work as a terminologist… has … given him the wide experience of translation’ which is required by the vacancy notice;

drew Mr Lambert's attention to the fact, already mentioned, that the ‘memorandum for the attention of the Members of the Commission’ did not take into account the seniority of candidates other than Mr Lenoch.

c) By a memorandum of 28 July 1969 addressed to Mr Bodson, Mr Lambert:

confirmed that the information prematurely given to the applicant concerning her candidature was based upon ‘a substantial error which anticipated the decision to be taken by the Commission in the matter. Moreover, the error was immediately rectified’;

pointed out: ‘You mention at the end of your memorandum that the communication put forward under your authority and that of Mr Coppé to the Commission takes into account only the seniority of Mr Lenoch. This is a formula which was obligatory here, since alone among all the candidates, Mr Lenoch was an official in Grade A/6 (the others being in Grade A/5) and that it was therefore proper to show to the Commission that he had the necessary seniority to obtain a promotion’;

sent to Mr Bodson a telex message which had been addressed to him by Mr Reichling, Assistant Director-General of Personnel and Administration at Luxembourg; this telex message included an assessment of the merits of each of the candidates.

d) By a ‘memorandum for the Members of the Commission’ of 2 October 1969, the Secretariat-General of the Commission,

after having indicated: that the appointment procedure had been suspended at the request of Mr Bodson; that the suspension ‘was able to be lifted following additional information received by Mr Bodson’; ‘that at the end of the extended period of time allowed (1 October 1969) no other observations or reservations had been drawn up in opposition’ to the proposal to appoint Mr Lenoch,

stated that ‘in consequence the Commission decided on 1 October 1969, after a consideration of the comparative merits of the candidates as well as of reports on them with regard to their competence, efficiency and conduct in the service, to appoint Mr Lenoch’ to the disputed post.

4) On 26 January 1970, the applicant submitted a complaint under Article 90 of the Staff Regulations of Officials, in which she asked the appointing authority to ‘reconsider all the files put forward’ and to ‘review the procedure followed in order to set aside the candidate who was finally appointed and who does not fulfil the conditions of the published vacancy notice’. By letter of 23 March 1970, notified on 2 April 1970, the President of the Commission informed the applicant ‘that it is not possible for the Commission to act upon this complaint’. In fact ‘a close examination of the candidature files has led to the conclusion that among all the candidates Mr Lenoch is the most fitted to carry out the work attaching to the post in question, based upon his university education and his professional experience’.

5) On 19 May 1970 the applicant lodged the present application.

II — Conclusions of the parties

The applicant in her application claims that the Court should:

accept the present application as to form and rule that it has been lodged within the prescribed period and consequently rule it to be admissible;

rule that the application is acceptable as to the substance of the case;

rule it to be well founded and consequently:

1) declare the information notified to the applicant on 2 April 1970 rejecting her complaint on the basis of Article 90 of the Staff Regulations of Officials to be null and void,

2) rule that the decision promoting Mr Lenoch to the post of reviser, vacant according to Vacancy Notice No COM/102/69, is illegal,

consequently annul it and declare it void;

order the institutions from which the annulled measures were issued to take all steps as your judgment shall direct;

hold that the Commission, if not the European Communities, must bear all the costs and expenses of the proceedings;

The defendant in its statement of defence, contends that the Court should:

reject the applicant's claim by dismissing her entire application as unfounded;

order the applicant to pay the costs.

In her reply the applicant claims that the Court should:

hold that the defendant must put on the file the additional information received by Mr Bodson which was referred to in the memorandum of 2 October 1969 for the Members of the Commission, which was put on the file by the defendant;

consequently annul the decision adopted and order the Commission to take such measures as your judgment shall direct.

In its rejoinder, the defendant adheres to its previous conclusions.

III — Procedure

The written procedure followed the normal course.

After hearing the report of the Judge-Rapporteur and the views of the Advocate-General, the Court (Second Chamber) decided to open the oral procedure without a preparatory inquiry. It nevertheless called on the defendant to lodge the memoranda of 7 and 17 July 1969, sent by Mr Bodson to Mr Lambert and to reply to one question.

The defendant complied with that request within the time laid down.

The parties presented oral argument at the hearing on 19 November 1970.

The Advocate-General delivered his opinion at the hearing on 16 December 1970.

IV — Summary of the submissions and arguments of the parties

The submissions of the parties may be summarized as follows:

First submission: Infringement of the third paragraph of Article 4 of the Staff Regulations

The applicant states that Mr Lenoch could have acceded to the disputed post only by way of promotion, whilst all the other candidates including the applicant could have been appointed to it by transfer. The third paragraph of Article 4 of the Staff Regulations of Officials requires the institutions to give preference, among the various methods of filling a vacant post, to transfer; that requirement follows also from the rules of good budgetary management.

The defendant replies that the third paragraph of Article 4 of the Staff Regulations places transfer, promotion and internal competition on the same plane. It follows equally from Article 29 (1) (a) of the Staff Regulations, which even mentions ‘promotion’ before ‘transfer’, that these two methods ‘are enclosed within the same stage of the operation’. Furthermore, those provisions deal only with the possibilities of promotion or of transfer and the Court has interpreted that expression as meaning that the institution is not absolutely obliged to take the measures in question.

As to the budgetary argument, the Staff Regulations themselves have not included it.

The applicant accepts that the administration is not required to do the impossible in order to find a candidate capable of being appointed by transfer to a vacant post among its staff. But when, as in the present case, there are such candidates, it is required to give preference to the method of transfer. In such a situation the budgetary argument also remains entirely valid.

The defendant persists in believing that Article 29 of the Staff Regulations allows the institutions to consider the possibilities of transfer and of promotion at the same time.

Second submission: Disregard of the Vacancy Notice No COM/102/69

The applicant points out that the vacancy notice required ‘wide experience of translation’. Mr Lenoch had carried out only the duties of a terminologisi; even before his entry into the service of the Communities he had never worked as a translator. The experience which he might have acquired in commerce, journalism and films are of no importance in the present case.

Furthermore, it follows from the letter of the President of the Commission of 23 March 1970 that the defendant has accepted the university studies of Mr Lenoch as a decisive criterion. The vacancy notice placed such studies on an equal footing with professional experience of an equivalent level'. Although the applicant had no university education, she had such experience.

The defendant replies that prior to his recruitment by the High Authority Mr Lenoch had carried out important translation work with several employers, ‘and his wide and extensive linguistic knowledge, his feeling for languages, his ability to find the correct expression or the most appropriate formula and his excellent style had been highly appreciated’.

That wide experience of translation led to his posting to the terminology section, the essential purpose of which is to solve linguistic difficulties due to the multiple and increasing technicality of the documents which are translated in the Communities, and to give the exact translation of terms or expressions causing difficulty in current translation. In that employment Mr Lenoch received excellent periodical reports.

In support of these assertions, the defendant has produced a series of documents and particularly:

the information card completed by Mr Lenoch in 1957, for the purpose of his entry into the service of the High Authority;

the periodical reports on Mr Lenoch prepared under Article 43 of the Staff Regulations for the period from 1 July 1965 to 30 June 1967 and for the subsequent period until 30 June 1969 respectively;

Mr Lenoch's application form for the disputed post;

several certificates from former employers as well as a certificate from the Director of the Institut für Ur- und Frühgeschichte of the University of Vienna.

The applicant misunderstands the meaning of the letter of 23 March 1970, which merely states that the university education as possessed by Mr Lenoch had been one of the reasons for his being chosen.

The applicant replies that:

the notice of 1963 announcing the competition following which Mr Lenoch had been recruited required only ‘a certain experience of problems of translation and/or lexicography’; further, it was specified that it was exclusively terminology and lexicographical work which was concerned;

at no time did Mr Lenoch himself put himself forward as a translator;

in his application form for the disputed post Mr Lenoch described his knowledge of the three other official languages as ‘good to very good’, whilst the notice had mentioned: ‘Very good knowledge of two other languages of the Community’.

In view of its nature, Mr Lenoch's university education bore no relationship to the requirements laid down by the vacancy notice.

The certificates from former employers of Mr Lenoch were prepared after the disputed decision, and consequently cannot be relied on to justify it. In the same way the periodical report on Mr Lenoch dealing with the period from 1 July 1967 to 30 June 1969 is of no legal value as it was not adopted until after the said decision.

The defendant states that Mr Lenoch was appointed ‘translator’ as from 1 March 1964. His duties in the terminology section have no connexion with his appointment to a post as translator. After all, Annex I to the Staff Regulations does not make provision for the basic post of ‘terminologisi’ but for a basic post of ‘translator’.

The notice of competition of 1963 indicated that the work to be done by the holder of the post in question was ‘especially’ — and not ‘exclusively’ — lexicography and terminology.

It was the duty of translator-terminologists posted to the terminology office of the Commission in Luxembourg to prepare phraseological glossaries; they were therefore constantly required to translate sentences and entire paragraphs in which technical terms causing difficulty in translation are found. ‘The terminologist has thus the continuous duty of translating’. In order to illustrate the nature of this work, the defendant has put on the file two volumes of glossaries prepared by the said terminologists.

Furthermore it has put in a certificate by another former employer of Mr Lenoch, from which it appears that the latter had provided translations which had given full satisfaction.

The value-judgment which candidates make of their own qualities cannot be decisive, since ‘there may be vain exaggeration as well as scrupulous modesty’. Nevertheless, Mr Lenoch's superiors had judged his knowledge of French, Italian and English to be very good. Lastly there is no clear line of demarcation between ‘Very good knowledge’ and ‘good to very good knowledge’.

It would not have been reasonable to judge Mr Lenoch solely on the basis of documents prior to 1 July 1967, since the later period had been the most important because it immediately preceded the appointment.

The date on the certificates of the former employers of Mr Lenoch is of no importance, as these documents deal with facts prior to the disputed appointment.

Third submission: Irregularity of the procedure

According to the applicant the information provided to the Members of the Commission took into account only Mr Lenoch's seniority to the exclusion of that of the other candidates. Because of this, the said Members were unable to take into account ‘that stable and objective fact’, which is particularly important in the present case, since it is difficult to make a reliable comparison between such different duties as those of terminologist and translator as well as between such subjective factors as conduct in the service, application to work and the human relationships of each candidate.

The defendant thus disregarded the case-law of the Court according to which ‘the Commission, however wide its discretion, must make an assessment of merits on a basis of equality and taking into account comparable sources of information and data’.

The defendant replies that the applicant's argument is ‘both erroneous in fact and irrelevant’. It is correct that the document annexed to the memorandum of the Secretariat-General of 3 July 1969 mentioned only the seniority—in his grade—of Mr Lenoch; that was however justified since of the candidates Mr Lenoch alone could have acceded to the disputed post solely by way of promotion, so that it was necessary to specify that he had within his grade (L/A 6 at the time) the necessary seniority to allow of promotion.

Nevertheless, the application forms had been communicated to the Members of the Commission and the personal files of the candidates held at their disposal; these documents noted the seniority of each candidate.

The applicant draws attention to certain passages in the memorandum of 2 October 1969, the scope of which it is interesting to note: it concerned the finding that the appointment procedure ‘had been suspended at the request of Mr Bodson’ and that this suspension ‘was able to be lifted following additional information received by Mr Bodson’. It is not acceptable that information of which neither the source nor the purport are known should affect the contested decision.

In any case if Mr Bodson was not informed of the seniority of the respective candidates it follows from this that he had not received the personal files of the latter.

The defendant replies that the mention of Mr Lenoch's seniority alone ‘in a document which is only a summarizing document referring furthermore to basic documents, clearly does not imply in that respect that information concerning the seniority of the candidates does not appear in the documents in the possession of the Members of the Commission to which reference was made, and from which moreover certain information was drawn (application forms, personal files, periodical reports etc.)’.

The suspension of the nomination procedure was lifted and the initial proposal of Mr Bodson to appoint Mr Lenoch was adhered to, following the memorandum of 28 July 1969.

At the hearing, the applicant stated in particular that:

certain findings mentioned with regard to the applicant in the telex message annexed to the memorandum of 28 July 1969, are ‘disgraceful’; on the other hand this telex message did not tell the truth by stating that Mr Lenoch had been engaged as a translator with the High Authority, when it appears from the file that he was engaged as a corrector in Category B and that he held that position until 1964;

the process of appointment shows the regrettable tendency on the part of the administration to impose its own choice on the appointing authority;

she offers to prove that unlike the other candidates Mr Lenoch did not receive the premature information that his candidature could not be accepted;

it is unacceptable that a telex message should state opinions concerning the staff likely to affect the choice of a candidate; in the present case the use of the telex message in question was a clear infringement of Article 26 of the Staff Regulations of Officials.

Also at the hearing the defendant pointed out in particular that:

the fact that at the time the candidates were wrongly and in a premature manner informed that their candidatures had not been accepted was due to a misunderstanding originating in the defendant's departments in Luxembourg;

by claiming that Mr Lenoch had not received such information the applicant ‘puts forward … an assertion which (she) cannot prove’;

in any event it was not the telex message in question which led to Mr Lenoch's appointment.

Grounds of judgment

1. The application seeks the annulment of the decision of the Commission of 1 October 1969 appointing Mr Lenoch to the post of reviser which was the subject of Vacancy Notice No COM/102/69, and of the decision of the President of the Commission of 23 March 1970 rejecting the applicant's complaint of 26 January 1970 against the said appointment.

The first submission

2. The applicant considers that the appointment of Mr Lenoch is vitiated by illegality by reason of the fact that the person concerned could have acceded to the disputed post only by way of promotion, whilst the other candidates and particularly the applicant could have been appointed simply by transfer.

3. The third paragraph of Article 4 of the Staff Regulations of Officials, confirmed in this connexion by considerations of a budgetary nature, requires the institutions to give preference to transfer.

4. According to the wording of the provision quoted ‘If the vacancy cannot be filled by transfer, promotion or an internal competition, it shall be notified to the staff or the three European Communities’.

5. This provision lays down but a single rule of priority, that is to say, that which must be observed between transfer, promotion or internal competition on the one hand and external competition on the other, the first-mentioned operations being put on an equal footing among themselves.

6. The administration therefore remains free to give preference to a candidate capable of being appointed by means of promotion alone when it regards him more suitable than his competitors.

7. It is not possible in regard to the wording of the abovementioned provisions to raise considerations of a budgetary nature, no trace of which is shown by these provisions.

8. This submission must therefore be rejected.

The second submission

9. The applicant claims that by appointing Mr Lenoch to the post in question the defendant did not conform to the conditions laid down in Vacancy Notice No COM/102/69.

10. The applicant alleges that, as Mr Lenoch carried out the duties not of a translator but of a terminologist with the Commission, he did not have ‘wide experience of translation’.

11. Furthermore, according to his application form, Mr Lenoch himself described his knowledge of French, Italian and Dutch as good to very good', whilst the vacancy notice had required ‘very good knowledge’ of two languages of the Community other than German.

12. Lastly, it appears on reading the letter from the President of the Commission of 23 March 1970 that the defendant accepted Mr Lenoch's university education as a decisive criterion, whilst according to the wording of the vacancy notice ‘university education with a degree’ should not have prevailed over ‘equivalent professional experience’ which the applicant considers that she possesses.

13. By a decision of the President of the High Authority of the ECSC of 22 April 1964, Mr Lenoch was ‘appointed translator, classified in Grade 6 … of Category L/A’—that is to say, of the ‘Language Service’ in accordance with the wording of Annex I to the Staff Regulations of Officials—‘and posted in that capacity to the terminology section of the translation division’ of the Directorate-General of Administration and Finance.

14. Since then and until his appointment to the disputed post Mr Lenoch carried out terminological and lexicographical duties which included in particular the preparation of multi-lingual glossaries providing the exact translation of highly technical terms or expressions, likely to cause difficulty in current translation.

15. In those circumstances the defendant could properly consider that the person concerned had ‘wide experience of translation’.

16. With regard to linguistic knowledge, Mr Lenoch's superiors classified this as ‘very good’.

17. Lastly the letter of the President of the Commission of 23 March 1970 states that ‘close examination of the candidature files has led to the conclusion that among all the candidates Mr Lenoch is the most fitted to carry out the duties attaching to the post in question, based upon his university education and his professional experience’.

18. As professional experience is thus mentioned under the same heading as university education, it is not possible to deduce from this letter that the defendant chose Mr Lenoch for the sole reason that he had a university education.

19. Nevertheless nothing prevented the defendant from choosing the candidate whom it considered to have, possibly owing to his university studies, the highest intellectual level, considered in relation to the requirements of the post to be filled.

20. It follows from all the foregoing that the submission must be rejected.

The third submission

21. The applicant alleges further that for several reasons the procedure which led to the appointment of Mr Lenoch is vitiated by illegality.

22. 1. The applicant points out first of all that the Members of the Commission came to their decision on the basis of incomplete information.

23. With regard to the seniority of each candidate they were informed only of that of Mr Lenoch, to the exclusion of the seniority of the other candidates including the applicant.

24. It is true that the ‘memorandum for the Members of the Commission’ prepared by the Secretariat of that institution and dated 3 July 1969 mentioned only Mr Lenoch's seniority.

25. However, that fact is easily explained in that, as Mr Lenoch was the only candidate who could have acceded to the disputed post solely by promotion, it appeared proper to specify that he had the minimum seniority in his grade required for the purpose of promotion by the second subparagraph of Article 45 (1) of the Staff Regulations of Officials.

26. Further, the abovementioned memorandum indicated ‘that the personal files of all the candidates are held at the disposal of the Members of the Commission by the Directorate-General of Personnel and Administration’.

27. Consequently, as the said files showed the seniority of each candidate, it cannot be claimed that the administration had made it impossible for the appointing authority to take this factor into account.

28. This complaint must therefore be rejected.

29. 2. The applicant complains of the fact that the disputed decisions were adopted in particular on the basis of scanty and inexact assessments contained, in respect of each of the candidates, in a telex message sent by the departments of the Commission in Luxembourg and communicated to the Commission through the Directorate-General of Personnel.

30. She claims that as the said telex message was not brought to the knowledge of those concerned and particularly of the applicant its use is incompatible with Article 26 of the Staff Regulations of Officials.

31. The defendant disputes the existence of a relationship of cause and effect between the disputed telex message and the adoption of the contested decisions.

32. That objection cannot be accepted.

33. According to the wording of the ‘memorandum for the Members of the Commission’ drafted by the Secretariat-General of that institution and dated 2 October 1969, the procedure relating to the filling of the post in question was suspended at the request of the competent Member of the Commission, and the suspension was ‘able to be lifted following additional information received’ by that member.

34. It appears from the file that the information provided in the abovementioned telex message consituted an essential part of the said ‘additional information’.

35. It must be accepted, therefore, that the said telex message exercised a decisive influence on the content of the disputed decisions.

36. Under Article 26 of the Staff Regulations of Officials, ‘The personal file of an official shall contain: (a) all documents concerning his administrative status and all reports relating to his ability, efficiency and conduct; (b) any comments by the official on such documents’.

37. According to the wording of Article 43 of those Regulations ‘The ability, efficiency and conduct in the service of each official… shall be the subject of a periodical’, report which shall be ‘communicated to the official’ who ‘shall be entitled to make any comments thereon which he considers relevant’.

38. The procedure which led to the adoption of the disputed decisions disregarded the abovementioned provisions.

39. The abovementioned telex message contained assessments concerning the competence of the applicant, assessments which were neither inserted in her personal file nor brought to her knowledge.

40. These assessments which were unfavourable to the applicant differ strikingly from the opinion which appears from the periodical report on her.

41. In these circumstances, because they occurred following a procedure vitiated by illegality the decisions in question must be annulled.

Costs

Under Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs.

The defendant has been unsuccessful in its submissions.

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 Staff Regulations of Officials, especially Articles 4, 26 and 43; Having regard to the Protocols on the Statute of the Court of Justice; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, especially Article 69, THE COURT (Second Chamber) hereby :

I Annuls the decision of the Commission of 1 October 1969 appointing Mr Lenoch to the post of reviser, which was the subject of Vacancy Notice No COM/102/69, and the decision of the President of the Commission of 23 March 1970 rejecting the complaint made by the applicant against the said appointment;

2 Orders the defendant to pay the costs.