JUDGMENT OF 28.6.1972 — CASE 88/71 BRASSEUR v EUROPEAN PARLIAMENT

In Case 88/71,

THE COURT (First Chamber), composed of: J. Mertens de Wilmars, President of Chamber, A. M. Donner and R. Monaco (Rapporteur), Judges, Advocate-General: K. Roemer Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Summary of facts and procedure

1. On 24 March 1971 the European Parliament published notice of Internal Competition No C/40 with a view to filling a post of ‘clerical officer’ at the Directorate-General for Administration, classified in career bracket C3-C2. The applicant, who entered the service of the European Parliament on 1 December 1958 as a chauffeur in Grade D2, participated in this competition together with several other officials. Although he was placed at the head of the list of suitable candidates, he was not appointed. Before filling the vacant post the appointing authority sought the opinion of the Director-General for Administration. The latter gave his opinion in a memorandum of 13 July 1971, in which he referred not only to the written comments appearing on the applicant's personal file but also to a memorandum from the Head of the Conferences Division of the European Parliament dated 6 July 1971, and to the criticisms of a Member of Parliament during the second session of the Parliament. The appointing authority decided to appoint Claude Lesire who was second on the list of suitable candidates. On 25 October 1971 the applicant lodged this application against that decision.

2. Having heard the report of the Judge-Rapporteur and the views of the Advocate-General, the Court (First Chamber) decided to open the oral procedure without any preparatory inquiry. The parties put forward oral argument at the hearing on 26 April 1972. The Advocate-General delivered his opinion at the hearing on 24 May 1972.

II — Conclusions of the parties

The applicant claims that the Court should :

Declare this application to be admissible as to form and in accordance with the time-limits; As to the substance of the case:

Declare the application to be well-founded and justified and, consequently, rule that the decision appointing Mr Lesire to the post of clerical officer in career bracket C3-C2 should be annulled and declare it null and void;

Order the Parliament to bear all the costs and expenses of the action;

Take formal note that the applicant reserves the right to raise, during the proceedings, any submissions of law or fact which appear appropriate ;

Take formal note that he reserves the right to require the appointing authority to produce any documents, application forms or files justifying the choice which it has made and the preference which led to the appointment of Mr Lesire ;

Alternatively: Take formal note that the applicant offers to prove by all legal means open to him that his application was rejected on the basis of memoranda not appearing on his personal file.

The defendant contends that the Court should :

Take formal note that the defendant does not contest the admissibility of the application;

However, declare its two submissions to be unfounded;

Dismiss the said application;

Make an order as to costs in accordance with the relevant provisions.

III — Submissions and arguments of the parties

The submissions and arguments of the parties may be summarized as follows:

The applicant maintains that the decision to appoint Claude Lesire to the post in dispute is void because it is vitiated by misure of powers (or of procedure) and because it is illegal, in that it infringes Article 26(6) of the Staff Regulations.

Having recalled his educational and vocational training and his service record, he states that on 1 December 1968 he reached the limit of his career bracket, that he has entered several internal competitions and has always been on the list of suitable candidates but has never been successful. He also emphasizes the fact that — unlike himself — the candidate appointed to the post in dispute has no persons under his supervision, is not at the limit of his career bracket and was appointed after him. He alleges finally that the appointment in dispute was motivated by the appointing authority's wish to transfer Mr Lesire definitively to a post other than that of chauffeur. The procedure and the objective aims of the internal competition were thereby distorted since the contested appointment was based not on a comparative examination of the merits of the candidates but on the desire of the Administration to ‘find a job’ for the chosen candidate.

The defendant outlines the different procedural stages of the internal competition in question. It emphasizes more particularly:

First, that the difference between the total points obtained by the applicant (32) and those obtained by Mr Lesire (30) in the classification which the selection board arrived at was minimal and justified a choice between the two ;

Secondly, that as regards ‘suitability for the performance of the duties’, the points awarded to the two candidates were 9 for the applicant and 15 for Mr Lesire.

The defendant concludes that the procedure and the appointment were in due form and do not constitute a misuse of powers or of procedure. The appointing authority made a legitimate use of the discretionary power which it enjoys in this field and made its choice with the additional guidance of the opinion of the Director-General for Administration, which was based solely on grounds relating to the interests of the service.

The applicant replies by criticizing the way in which his ‘suitability for the performance of the duties’ was assessed. In his opinion, it is clear that the selection board, when drawing up the order of merit, gave undue weight to the periodic reports, and that the difference of 6 points between the two candidates is due to the written observations included in his personal file in a memorandum of 13 July 1970 and recalled in the opinion of the Director-General. He adds that, were it not for these observations, his classification would have been far higher than that of Mr Lesire. He concludes therefore that the procedure was illegal; the Administration penalized him twice on the basis of the same facts: once when the selection board drew up the order of merit and a second time when the final decision was taken, departing from the result of that classification.

The defendant, in its rejoinder, objects to the fact that the applicant presents certain alleged facts as being established simply because they have not been formally traversed. It rejects the imputation to it of concessions which it has neither made nor had to make, and formally denies, for the purposes both of the written procedure and of the oral procedure, all the facts, allegations and arguments of the applicant which it has not expressly accepted. Having noted that certain complaints, made by the applicant against the Parliament, consist of criticisms regarding the exercise of functions entrusted to that institution, and seem furthermore to have been submitted in the name of the entire staff, it contests the right of the opposite party to act as spokesman for the officials as a whole.

After pointing out that the criticisms made against the judgment of the selection board, on which the classification of the candidates is based, are inadmissible because they concern a matter which is irrelevant to the subject-matter of the application, the defendant observes that the written observations on the applicant's personal file cannot be alleged to be ‘malicious’. This argument amounts to contesting the Administration's right to make criticisms of its servant's actions and would render periodic reports devoid of purpose.

2. The applicant further alleges that his candidatur ew was ‘obstructed’ by an opinion given during the competition procedure at the stage of selection of the successful candidate which did not appear on his personal file. By referring in this way to an opinion which does not appear on his file, the Parliament acted improperly and thus took an illegal decision in relation to the second paragraph of Article 26 of the Staff Regulations, which forbids the Administration to cite a document against an official unless it has been communicated to him before it was filed. The defendant states that the selection board for the competition classified the candidates on the basis of criteria enabling the respective merits of each to be compared. The opinion which the Director-General for Administration sent on 15 July 1971 to the Secretary-General of the European Parliament was not a document intended to be added to the personal file of a candidate or of an official. It was in fact based on material in Mr Brasseur's personal file, such as, in fact, the ‘written observations’ to which he refers. Finally, the remark concerning the applicant's conduct made by a Member of Parliament and mentioned in the aforementioned opinion was superfluous and not decisive in the event. In any case, the opinion of the Director-General for Administration was only one factor in the decision of the Secretary-General, who had the candidates' files at his disposal and came to his decision on the basis of these and the results of the competition. Emphasizing again the decisive effect which he believes the opinion of the Director General to have had in connexion with the rejection of his candidature, the applicant recalls that that opinion mentions a remark made by a Member of Parliament and a memorandum attached thereto. As regards more particularly the remark in question, it was a ‘mere oral allegation’ of which, according to the text of the opinion itself, the Director-General learned only indirectly. Neither the opinion, nor the said remark — which played such an important role in the Director-General's assessment — nor, finally, the attached memorandum were included in the personal file of the official concerned. The applicant : Stresses the danger which the ‘underhand’ nature of ‘confidential’ memoranda, whose contents are and remain inaccessible to those affected, except by means of an application before the Court, can have for all servants of the Communities; Denounces the illegality of a decision taken on the basis of documents and allegations which were not communicated to him and which did not appear on his personal file. In its rejoinder, the defendant gives further details regarding the content and origin both of the memorandum mentioned above, which is produced as an annex to the defence, and of the written observations appearing in the applicant's personal file. It adds that the Administration cannot be reproached for not having attached to the file in question the aforementioned memorandum and the remark made by a Member of Parliament, to which the Director-General refers in his opinion. Such an omission is not evidence of malice towards the applicant but rather shows the Administration's intention to avoid including in his personal file incidents the repetition of which could be harmful to him. Having repeated that the selection board made its decision solely on the basis of the contents of the file, the defendant states that the appointing authority has the incontestable right to make its final choice having regard to a report, whether written or oral, emanating from the Director-General for Administration and referring to information supplementing the memoranda in the personal file in the hands of the Administration. Such information was not decisive in this case; at the most it corroborated the material contained in the file and, more particularly, in the written observations included therein by the memorandum of 13 July 1970. The defendant observes, finally, that the applicant has in fact abandoned his first submission based on a misuse of powers or of procedure since he has left this point to the wisdom of the Court and has not replied to the objections made in this connexion by the Parliament. At the oral hearing the applicant expressly maintained his first submission, though stating that he left this point to the wisdom of the Court. He emphasized furthermore that, in his statements, he never intended to discredit the Parliament or to act in the name of its entire staff but that the quite simply pleaded his interests within the confines of the rights of the defence. The defendant, after once more deploring what it considers to be malicious and unfounded ‘insinuations’, stated that in the meantime the applicant had been promoted to Grade D1 as a parliamentary usher. This promotion displays the objectivity and impartiality of the Administration towards the applicant, as indeed towards all officials. The applicant replies that promotion to D1 cannot compensate for the prejudice which he has suffered by his rejection in the competition in question, which entailed promotion from category D to category C.

Grounds of judgment

1. By an application lodged at the Registry on 25 October 1971, the applicant brought an action for the annulment of the decision of the European Parliament filling the vacant post which was the subject of Notice of Internal Competition No C/40 of 24 March 1971.

2. The applicant asserts first of all that the contested appointment is void for misuse of powers in that it was motivated by the wish of the Administration to transfer Mr Lesire, who had become unable to perform the duties of chauffeur which he had previously discharged, to another post through the expedient of the competition at issue.

3. The fact that the appointing authority wishes to give an official, who has become incapable of performing the duties which he previously discharged, the opportunity of obtaining another post corresponding to his capabilities and qualifications cannot be considered an illegal measure, so long as the provisions of the Staff Regulations relating to the recruitment of officials are observed.

4. The applicant does not contest the legality of the recruitment procedure followed in this case but alleges a number of matters concerned essentially with his qualities and merits as compared with those of his rival.

5. These allegations are not such as to make it appear that the appointing authority in this case pursued an illegal purpose and disregarded the interests of the service.

6. The submission must therefore be rejected.

7. The applicant also asserts that the decision at issue is void for illegality in that the appointing authority made its decision on the basis of an opinion of the Director-General for Administration of 13 July 1971 containing remarks critical of him made by a Member of the European Parliament and by a Head of Division of that institution.

8. Since these remarks were not included in his personal file, reference to them in the competition procedure is said to have been incompatible with Article 26 of the Staff Regulations of Officials.

9. According to subparagraph (a) of the first paragraph of Article 26 of the Staff Regulations of Officials the personal file of an official shall contain, inter laia,‘all documents concerning his administrative status and all reports relating to his ability, efficiency and conduct’.

10. In pursuance of the second paragraph of the same article the aforementioned documents may not be used or cited by the institution against an official unless they were communicated to him before they were filed.

11. The purpose of these provisions is to guarantee an official's right of defence by ensuring that decisions taken by the appointing authority affecting his administrative status and his career are not based on matters concerning his conduct which are not included in his personal file.

12. According to the applicant, the opinion of the Director-General for Administration had a decisive influence on the tenor of the decision adversely affecting him.

13. He asserts, in this connexion, that he was placed first on the list of suitable candidates drawn up by the selection board and was awarded two points more than Mr Lesire.

14. It emerges from the report accompanying that list, and in particular from Annex 3, that in regard to ‘suitability for the performance of the duties’ Mr Lesire obtained maximum points, 6 points more than the applicant.

15. The latter was able to make up this difference with the points obtained by his inclusion on the lists of suitable candidates in previous competitions and with two extra points for seniority.

16. Although for the purpose of assessing the suitability of each candidate it is necessary to have regard to the total number of points obtained, the importance for this assessment of the qualifications relating to suitability for the performance of the duties must not be disregarded.

17. This being the case, reasons based on the interests of the service sufficiently justify the preference given to the candidate appointed.

18. It does not seem, therefore, that the opinion of the Director-General for Administration of 13 July 1971 had a decisive influence on the choice made by the appointing authority.

19. There is no reason to annul the appointment of Mr Lesire and the application must therefore be dismissed.

Costs

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

21. The applicant has failed in his submissions.

22. However, under Article 70 of the Rules of Procedure, in proceedings commenced by servants of the Communities the institutions shall bear their own 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 Staff Regulations of Officials of the European Communities, especially Articles 26 and 29 ; 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, THE COURT (First Chamber) hereby :

1 Dismisses the application;

2 Orders the parties to bear their own costs.