JUDGMENT OF 23. 1. 1975 — CASE 29/74 DE DAPPER v PARLIAMENT
In Case 29/74
THE COURT (First Chamber) composed of: J. Mertens de Wilmars, President of Chamber (Rapporteur), A. M. Donner and R. Monaco, Judges, Advocate-General: J.-P. Warner Registrar: A. Van Houtte
gives the following
JUDGMENT
Facts
The facts and the arguments of the parties put forward in the course of the written procedure may be summarized as follows:
I — Facts and procedure
On 20 December 1972 by Vacancy Notice No 707 the personnel of the European Parliament was notified that there were three vacancies for the post of reviser in the Dutch Language Division, in the career bracket L/A 5-4, to be filled under the provisions of Article 29 (1) (a) of the Staff Regulations, in the first instance by way of promotion or transfer.
Ten applications, including that of the applicant, were received and the Director-General for Administration, Personnel and Finance forwarded these to the relevant director of the Directorate-General for Sessional and General Services with a note to the effect that none of these candidatures could be considered for transfer.
On 25 January 1973 the relevant director returned them to the Director-General for Administration, Personnel and Finance, informing him that ‘these applications had been the subject of a very careful examination, in which not only Miss Roos (the Director of the Translation Service) and Mr Van Mulders (head of the Dutch Language Division but also the revisers of that Division had participated and that it emerged that from a mere perusal of his personal file none of them possessed such obvious qualifications that he could without hesitation be recommended for promotion’. It was further suggested that an internal competition be held on the basis of tests, ‘leaving it to a selection board to decide between the candidates’.
Since the appointing authority was opposed to such a procedure, the relevant director then proceeded to an ‘examination of the comparative merits of the candidates for promotion’. In the light of the result of this examination, which was reached unanimously by the head of the Dutch Language Division as well as the three senior revisers, he proposed on 9 May 1973 that ‘taking into account seniority in grade and seniority in the service, as well as the reports, Messrs Schilperoort, van Ray and Ras should be promoted’.
By decision dated 21 May 1973 the appointing authority promoted these three officials.
The applicant submitted against this decision a complaint within the meaning of Article 90 (2) of the Staff Regulations and dated 5 November 1973.
The President of the European Parliament rejected this complaint on the ground that the applicant was not entitled to rely upon ‘the fact that the appointing authority had for a certain time envisaged a change for the purpose of selecting candidates from the procedure under Article 29 (1) (a) to that under Article 29 (1) (b), but had not carried this proposal into effect’.
The applicant filed his appeal on 8 May 1974.
The written procedure followed the normal course except that the defendant did not file a rejoinder.
Upon hearing the report of the Judge-Rapporteur and the views of the Advocate-General the Court (First Chamber) decided to open the oral procedure without making any preparatory inquiry.
II — Conclusions of the parties
The applicant claims that the Court should:
rule that the application is admissible as regards its form and that it was lodged in good time;
rule that it is well founded and justified as to its substance;
accordingly annul the three ‘promotions’ decided upon by the appointing authority on 21 May 1973 consequent upon Vacancy Notice No 707;
alternatively, should the European Parliament state that the appointing authority was in possession of the candidates' personal files when it made its selection, take note that the applicant offers to prove by all means available at law and more particularly by inquiry that the personal files or at least his personal file, were not submitted to the President of the Parliament for the purpose of examination as to the comparative merits;
in that case to reserve the costs;
and, should the Court be able to come to an immediate decision, order the defendant to bear the costs.
The applicant did not in his reply repeat the above mentioned offer of proof.
The defendant contends that the Court should:
take note that it does not intend to contest the admissibility of the application;
as regards the substance of the case, reject the different submissions as inadmissible, or alternatively as unfounded;
reject the offer of proof as here and now contradicted or superfluous;
consequently dismiss the application;
make an appropriate order as to costs.
III — Submissions and arguments of the parties
(a) The submission that the appointments in question do not constitute promotions but mere transfers
The applicant argues that under the provisions of Article 45 of the Staff Regulations promotion ‘shall be effected by appointment of the official to the next higher grade in the category or service to which he belongs’. However, in the present case the officials remained in their existing grade and step. The appointments in question could and should therefore have been made by way of simple transfer.
The defendant replies that according to the table of basic posts and corresponding career brackets, the position of translator appears under Grades L/A 6-5, whilst that of reviser appears under Grades L/A 5-4. To progress from the post as a translator in Grade L/A 5 to that of a reviser in Grade L/A 5 was in the present case rightly treated as a promotion within the meaning of Article 45 of the Staff Regulations, although this provision does not expressly govern the case of such a promotion. That this is so is explained by the fact that Article 5 and Annex I were only incorporated in the Staff Regulations at the last moment, when Article 45 had already been drafted, and without modifying that article. Nevertheless the duties of translators and of revisers are quite different and besides, a reviser appointed to Grade L/A 5 has the possibility of advancing to Grade L/A 4 which is not the case with a translator in Grade L/A 5.
The applicant replies that neither the Council nor the Commission has ever found that in the case of the language service there can be promotions without at the same time a change in grade, as expressly provided by Article 45 (1). The Court has had occasion to deal with the same problem in Rittweger v Commission (Rec. 1971, p. 7) and Ley v Commission [1965] ECR 107) where it was said that promotion in the language service follows the compulsory rules of Article 45.
Moreover the conclusion that a translator in Grade L/A 5 cannot be promoted to Grade L/A 4 without becoming a reviser is not acceptable. Finally, the importance of this question for an official who has not been promoted and whose candidature has not been accepted does mean that it constitutes an act adversely affecting him within the meaning of Article 90 (2).
(b) The submission regarding the (alleged) infringement by the appointing authority of Article 45 of the Staff Regulations
The applicant submits that the appointing authority ought, in conformity with Article 45, to have made its choice, on the basis of the personal files, by carrying out itself the examination of comparative merits, whereas in actual fact all it did was to agree to the proposals submitted to it and to adopt them. Consideration of merits cannot be replaced by a simple calculation based on seniority in service and grade but must of necessity be concerned with factors such as ability, efficiency and conduct in the service… However, the persons who were concerned with the selection had three months before expressly declared that from a mere perusal of his personal file none of the candidates possessed such obvious qualifications that one could without hesitation recommend him for promotion.
The defendant replies that the consideration of the comparative merits under Article 45 was undertaken by the administration on two occasions, the first before the note from the competent director of 25 January 1973 was drafted and the second before that of the same director of 9 May 1973 was drafted. Not only seniority therefore was taken into consideration in connexion with the proposal for promotion, as is abundantly proved by the fact that the applications of those candidates whose seniority had been greater than that of the three officials who had been promoted, did not succeed.
Moreover, although the competent director had returned the applications, with his note of 25 January 1973, to the Director-General for Administration this does not mean that for the purposes of the subsequent examination of the procedure for filling the posts, the personal files were not examined by the administration.
The applicant replies that a ‘consideration of comparative merits’ on two occasions by the same selection board could only have resulted in opposite conclusions if meanwhile there had been a new fact or a new periodic report, which was not the case.
It is not the administration but the appointing authority, that is to say, the President of the Parliament himself, who as regards Categories A or L/A ought to have available to him the candidates' personal files.
(c) The submission that, for the purposes of the consideration of the comparative merits of the candidates, the personal files did not contain the last periodic report
The applicant points out that the process of examining the merits was not properly carried out, since the last annual report which ought to have appeared on the file long ago was not there.
The defendant replies that although it is true that the periodic reports for the period 1971/1972 were lacking, this is to be explained by the fact that the year 1973 had seen the enlargement of the staff by nationals of the new Member States and that the administration found it impossible in practice to prepare the reports within the time limits which had previously been possible to observe. Nevertheless, all the candidates were treated in the same manner. In any event, Article 45 does not require the periodic reports to cover a particular period.
The applicant replies that the excuse based on the enlargement of the Communities is not admissible for the purpose of explaining the absence of the last periodic report in the candidates' personal files. The very purpose of the periodic report is to chart the progress of officials and this is why Article. 43 provides for a ‘periodical report made at least once every two years’.
(d) The submission alleging misuse of powers, or alternatively of procedure
The applicant claims that by the excercise of pressure on an ‘ad hoc selection board’, the appointing authority, by refusing to organize a competition and in enjoining the said board to find who could be promoted, it was guilty of misuse of powers or alternatively of procedure.
The defendant replies that although at a certain date the administration considered that there was no possibility of promotion or transfer and envisaged the possibility of setting up an internal competition, this is a matter for the appointing authority to decide and it is for that authority to arrive at a conclusion as to whether there are possibilities of promotion. The appointing authority is indeed obliged, where a post is to be filled, to go through the stage laid down in Article 29 (1) (a) of the Staff Regulation before going on to the subsequent stages, but there is no ground for complaining that it did not carry on to a later stage if sooner or later it found that it was possible to proceed on the basis of the first stages.
Whilst the argument might have some justification there is still the problem of its admissibility as regards the applicant who was eligible for promotion and in whose interest it lay that the possibilities for promotion should be exhausted before a competition was arranged. The applicant therefore had no cause for raising this submission which could only work to his detriment.
The applicant replies that, whilst the appointing authority admittedly had a discretionary power as regards the choice of means for filling a vacancy this does not mean that it could order subordinates to suggest candidates eligible for promotion when these very subordinates had previously let it be known that they were unable to find such candidates without proceeding by way of a competition.
Although the applicant had no interest in raising a submission that could only work to his detriment, this tends to prove that the institution had decided not to give him any chance, whatever might have been the level of results obtained by him in the internal competition that was originally proposed.
The Advocate-General delivered his opinion on 10 December 1974.
Law
1. The application lodged at the Registry of the Court of Justice on 8 May 1974 seeks the annulment of the decision by the European Parliament of 21 May 1975 appointing by way of promotion three translators of the Dutch division to posts of reviser, these having been the subject of Vacancy Notice No 707.
2. The applicant considers in the first place that in maintaining the promoted officials in Grade L/A 5 of career bracket L/A 5-4 when previously they had the same grade in career bracket L/A 6-5, the contested decision infringed Article 45 (1) of the Staff Regulations according to which promotion ‘shall be effected by appointment of the official to the next higher grade in the category or service to which he belongs’.
3. The appointments in question, according to the applicant, should have been made by way of transfer.
4. Such a submission can only be relied upon by those adversely affected by the illegality of the decision, assuming that this were proved, in the present case only the officials promoted.
5. The submission must be rejected.
6. In the applicant's view Article 45 of the Staff Regulations has also been infringed in that the defendant did not consider the comparative merits of each candidate ‘on an equal basis and in the light of comparable information and data’, since only the seniority of grade and of service was considered.
7. It is apparent from the note which on 9 May 1973 the competent Director addressed to the Director-General for Administration, Personnel and Finance, that the various applications had been the subject of a careful consideration of the comparative merits of the various candidates and that in taking into account ‘also’ seniority in grade and service, the appointment of the three successful candidates was proposed.
8. The submission is unfounded in fact and must be rejected.
9. The applicant further argues that the file prepared with a view to a consideration of the comparative merits of the candidates did not in his case contain the periodic report for the years 1971 and 1972.
10. In so far as the first comparative examination undertaken in January 1973 is concerned, the defendant does not dispute this fact which, according to it, was due to difficulties arising from the recruitment of additional staff, which became necessary by reason of the accession of the new Member States.
11. It points out that the periodic report files of the other candidates had been subject to the same delay so that in relation to each other the individual candidates were not adversely affected.
12. The defendant nevertheless pointed out that at the time of the final comparative consideration which took place during the months of April and May 1973 ‘all the reports had been either placed in the personal files or drawn up in such a way that the appointing authority was able to take cognizance of them in its comparative consideration’.
13. Nevertheless it is established that the periodic report relating to the applicant was only drawn up on 21 December 1973 and accordingly it could not have been known to the authority in question.
14. In any event even if it had existed in draft form at that time, it could not have been taken into consideration unless it had previously been communicated, in accordance with Article 43 of the Staff Regulations, to the applicant so as to allow him to make any comments thereon which he considered relevant.
15. Consideration of the merits of candidates whose periodic reports had already been drawn up under Article 43 and of others in whose case this had not yet been done fails to meet the requirements of Article 45 with regard to consideration of the comparative merits of officials.
16. Thus the contested decision infringes Article 45 and must be annulled.
Costs
17. Under Article 69 (2) of the Rules of Procedure, the unsuccessful party must bear the costs.
18. The defendant has failed in its submissions and must accordingly be ordered to pay the costs.
On those grounds THE COURT (First Chamber) hereby:
1 Annuls the decision of the European Parliament of 21 May 1973 appointing three translators of the Dutch Language Division to posts of reviser;
2 Orders the European Parliament to pay the costs.