JUDGMENT OF 29. 9. 1976 — CASE 105/75 GIUFFRIDA v COUNCIL
In Case 105/75
THE COURT (First Chamber) composed of: A. O'Keeffe, President of Chamber, A. M. Donner and F. Capotorti, Judges, Advocate-General: J.-P. Warner Registrar: A. Van Houtte
gives the following
JUDGMENT
Facts
The facts and the arguments put forward by the parties during the written procedure may be summarized as follows:
I — Facts and written procedure
1. By Notice No 11/75-I of 18 February 1975 the Secretariat-General of the Council drew the attention of the staff to Notice of Internal Competition No Council/A/108. The competition was to be held on the basis of qualifications and concerned a vacant post of principal administrator in career bracket A 5/A 4, to be filled in Grade A 4. The applicant, who held the post of principal administrator in Grade A 5 in the Legal Department of the Secretariat-General, submitted his application on 3 March 1975. Emilio Martino, a reviser in the Language Service classified in Grade L/A 4, submitted his application on 4 March 1975. The decision to appoint Mr Martino to the post in question was published on 20 May 1975. On 30 May the applicant submitted a complaint against this decision under Article 90 (2) of the Staff Regulations of Officials. His complaint was rejected by a letter from the Secretary-General dated 16 September 1975 and the applicant brought the present application on 3 October 1975.
2. The written procedure followed the normal course. 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 holding any preparatory inquiry. However, it requested the defendant to submit the Memorandum of 12 June 1975 before the date of the hearing.
II — Conclusions of the parties
The applicant claims that the Court should:
‘1. Annul the decision of the defendant published on 20 May 1975 appointing Emilio Martino to thepost of principal administrator in career bracket A 5/A 4, in Grade A 4, which was the subject of Notice of Internal Competition No Council/A/108; 2. Annul all decisions prior to and/or concomitant with the decision of appointment referred to at 1. above, in particular, the decision not to have recourse for the purpose of filling the vacancy in question to the procedure of promotion and the decision to organize Internal Competition No Council/A/108 on the basis of qualifications; 3. Annul the express decision rejecting the applicant's complaint lodged on 30 May 1975; 4. Order the defendant to bear the costs.’
The defendant contends that the Court should:
‘Declare that the application is unfounded and dismiss it’.
III — Submissions and arguments of the parties
In support of his application the applicant makes the following submissions:
Non-compliance with the terms of the decision of the Council of 21 March 1973;
Disregard of the principle of equal treatment of officials and of the terms of Article 5 (3) of the Staff Regulations of Officials;
Infringement of the terms of Article 29 (1) (a) and (b);
Infringement of the terms of Article 7 and the third paragraph of Article 27 of the Staff Regulations of Officials and misuse of powers.
(1) Non-compliance with the decision of the Council of 21 March 1973
The applicant observes that according to the express terms of the decision of the Secretary General of the Council of 21 March 1973 (Annex 7 to the application) internal competitions enabling officials to enter Categories A, B and C must take place ‘on the basis of qualifications and tests’. As the appointment of Mr Martino to Grade A 4 involved his moving from the Language Service into Category A, Internal Competition No A/ 108 should have been organized on the basis of qualifications and tests and not merely on the basis of qualifications.
The defendant maintains that the submission is not well founded for the simple reason that the memorandum of 21 March 1973 from the Secretary-General does not constitute a ‘decision’ in the true sense. This memorandum merely laid down a particular approach to be followed within the context of a long-term policy for advancement meeting the wishes of the staff and the requirements of the service.
Furthermore, as the memorandum in question dealt with competitions which the administration was proposing to organize from time to time on a general basis to enable officials to enter a higher category or service pursuant to Article 45 of the Staff Regulations, it did not provide for cases such as the present which concerned appointment to a specific post.
The applicant maintains that the fact that the memorandum of 21 March 1973 is a ‘decision’ is shown:
by its wording;
by the events which led up to it, which show that it is a measure resulting from an agreement between the Secretary-General and representatives of the staff;
by its context since it contains sections dealing with the ‘Joint Committee’ and the ‘Consultative Committees on Advancement’.
Furthermore, to maintain that the ‘decision’ in question is not applicable to a case — such as the present — in which a specific post is to be filled is to prevent it from having any practical effect. Moreover, such an argument is contrary to the very wording of the decision and disregards the terms of the first paragraph of Article 4 of the Staff Regulations.
The defendant objects further that far from constituting a decision concerning the organization of examinations the letter of 21 March 1973 merely lays down a general principle, that of ‘auto-recruitment’, which is based upon reasons of expediency, but does not lay down detailed rules for its application. These rules, which have first to be studied by the Joint Committee, had not been drawn up in detail or adopted when the contested appointment was made. The differences of formulation and conception between the letter of 21 March 1973 and the memorandum of 12 June 1975 are symptomatic of this fact. In the latter the Secretary-General undertakes to implement the measures set out in detail therein but his undertaking is only effective as regards the future.
In addition, the defendant repeats that, even if the Memorandum of 21 March 1973 is in the nature of a decision, it refers to the organization of open competitions to be held from time to time and by no means prohibits the organization of a specific competition or governs the arrangements therefor. Moreover, in this instance there is no entry into a ‘higher’ category, as under the Staff Regulations the Language Service is assimilated to Category A.
(2) Disregard of the principle of equal treatment
The applicant observes that officials in the Language Service, including himself, who had entered Category A as the result of an open competition were always appointed at the lowest grade of that category (A 7). Mr Martino, on the other hand, was immediately classified in Grade A 4 after an internal competition which took place solely on the basis of qualifications and this classification therefore disregards the principle, which is recognized by the Court, that all officials shall be treated equally and, in particular, the provision contained in Article 5 (3) of the Staff Regulations which states that ‘Identical conditions of recruitment and service career shall apply to all officials belonging to the same category or the same service’.
In reply, the defendant puts forward the objection that the transfer of Mr Martino from L/A 4 to A 4 is entirely in accordance with the Staff Regulations and does not infringe the terms of Article 45 (2), according to which ‘An official may be transferred from one service to another or promoted from one category to another only on the basis of a competition’. In fact:
The Staff Regulations simply assimilate officials in the Language Service (L/A) to officials in Category A, so that transfer or promotion from one to another must not be regarded as transfer or promotion towards a ‘higher’ category within the meaning of the provisions cited above;
the principle referred to by the applicant, namely that ‘Where a decision is taken to appoint an official to a post in a career bracket in a higher category, such official shall be classified in the starting grade of that career bracket’, is contained in a decision of the Commission of 10 March 1971 and therefore is not applicable as such to the Council;
In any case, a competition was organized in this instance;
Finally, Article 5 (3) of the Staff Regulations does not apply to the present case, since it lays down a principle which applies to the career of an official within a single service or a single category.
Thus, by organizing an internal competition which it was not required to organize the Secretary-General scrupulously observed the principle of equal treatment.
The applicant replies by producing a list of the officials classified in the Language Service (L/A) of the Council who have entered Category A after open competitions on the basis of qualifications and tests and who have been classified in the starting grade, A 7. In addition, he refers to the communication of 14 November 1974 from the Secretary-General in reply to a statement contained in the Bulletin of the Amalgamated European Public Service Union of 7 November 1974 concerning the ‘transition of an official of Italian nationality from Category L/A to Category A’ (Annexes 8 and 9 to the application), and maintains that the Union rightly criticized such ‘transition’ as a predetermined measure requested by the Italian delegation and involving such unequal treatment that the Secretary-General attempted to justify it on exceptional grounds by ‘the desire to mitigate the anomalies of a situation which has already existed for a long time’. Apart from the fact that such anomalies cannot justify discriminatory and arbitrary treatment as against other officials, Mr Marti no could have mitigated those circumstances himself by taking part in the open competitions which had previously been organized for recruitment into Category A: other officials from the Language Service did participate in these competitions and were subsequently appointed in Grade A 7.
Finally, the applicant maintains that the principle of equal treatment to which he refers in this instance is not based on the decision of the Commission of 10 March 1971 but on an established practice of the Council in such matters, which is in accordance with the principle contained in Article 5 (3) of the Treaty.
The defendant observes that the very absence of any common hierarchy between the Language Service and Category A is sufficient to rule out any obligation on the administration to appoint Mr Martino to the starting grade in this instance. Furthermore, his appointment does not form an exception to any ‘practice hitherto followed’ or to any ‘established practice’. If officials in Grade L/A 6 or even L/A 5 were classified in Grade A 7 after their entry into Category A that is merely because the general internal competitions in which those candidates freely decided to participate were intended to fill posts in Grade A 7. These candidates were under no obligation as regards their classification, which was determined solely by the level of the vacant posts opened to competition.
(3) Infringement of the terms of Article 29 (1) (a) and (b) of the Staff Regulations
The applicant maintains that, when considered in relation to the terms of Article 29 (1) of the Staff Regulations, the appointment in question is irregular, in that the appointing authority did not consider whether the post could be ‘filled by promotion’ before it organized the internal competition.
The defendant maintains that Article 29 of the Staff Regulations creates no order of priority as regards promotion, transfer, internal competition or transfer from one institution to another.
Priority only exists in relation to open competitions. Moreover, the appointment of Mr Martino may be regarded as a transfer (on the ground that he did not enter a higher grade) or as promotion. Thus, as there was no need to organize an internal competition in this instance, the ground of complaint is the more uncalled for.
The applicant replies that the Court of Justice has itself acknowledged that the question whether a post can be filled by promotion must be considered before a decision is taken to organize an internal competition. Moreover, it is incorrect to claim that this case concerns the transfer or promotion of an official: on the contrary, it deals with his transfer from a service into a category, that is, with steps expressly dealt with in Article 45 (2) of the Staff Regulations. In any event, even if the defendant's argument on this point were correct it would follow that, as this is a case of promotion, the appointing authority would have to consider the comparative merits of each candidate and take into account the qualifications of the applicant, who satisfied the conditions for promotion.
The defendant repeats its argument that under the Staff Regulations transfer, promotion and internal competition are placed on the same level. Therefore, as no entry into a higher category was involved in this case and as it was under no obligation to organize an internal competition the administration would have filled the vacant post by transfer and not by an internal competition if, as the applicant claims, it had wished to favour Mr Martino, all the more so as the results of the competition would have to bind the appointing authority, even if they were unfavourable to Mr. Martino.
(4) Infringement of the terms of Articles 7 and 27 of the Staff Regulations and misuse of powers
The applicant maintains that the appointment of Mr Martino involves a misuse of powers in that, contrary to Article 7 and the third paragraph of Article 27 of the Staff Regulations, the post in question was reserved for the official appointed. In support of this submission the applicant emphasizes the following points in particular:
I he communication from the Secretary-General of 14 November 1974 shows that even before the internal competition in question was held it had been decided to award the vacant post to the candidate who was in fact appointed;
The question whether the post in question could be filled by promotion was not considered;
The vacant post was filled by an internal competition on the basis of qualifications although, in accordance with his own decision of 21 March 1973 the Secretary-General should have organized either an internal competition on the basis of qualifications and tests or, in accordance with the practice followed until then, an open competition;
Contrary to previous practice, the notice of competition in question specifies the Directorate-General in which the successful candidate will be required to perform his duties and, inter alia, attaches a condition for admission to the competition (that the successful candidate must have 'held the secretariat for meetings of Council working parties or Committees for at least four years), which was drawn up specifically with Mr Martino in mind;
The selection board failed to draw up the list of suitable candidates in descending order of merit or at least did not expressly do so; it thus ignored the very concept of the ‘list of suitable candidates’ or, at all events, the practice always followed in such matters.
The defendant questions the justification for these allegations by referring to the arguments already put forward against the preceding submissions and, in addition, by observing that:
If, when he circulated his note of 14 November 1974 to the staff, the Secretary-General was aware of the existence of a discriminatory situation, it was of course that affecting Mr Martino who had, over a long period, been performing duties appropriate to Category A. Although perhaps anomalous, the situation in question was only the result of the constant demands of the service and it had to be remedied so that the Staff Regulations could be observed;
The notice of competition contained no condition as to nationality. On the other hand, the administration is at liberty, in the light of the particular requirements of the post to be filled, to make its selection on the basis of certain specific training which the candidate must possess;
Although the notice of competition gives a detailed description of the dudes involved in the post to be filled, it attaches no condition of admission based directly on the particular area of activity in question.
The applicant continues to maintain that the description of the duties to be performed as contained in the vacancy notice played a decisive role in the outcome of the competition. The selection board in fact drew up a list of suitable candidates in the light of the knowledge and experience of the candidates in the sector of regional policy, on the basis of an assessment which could do nothing but favour Mr Martino.
The defendant replies that the contested requirements correspond to the interests of the service. They did not constitute a condition of admission but, as is normal in notices of competition, were merely included by way of information. Furthermore, the selection board did not base its findings on these requirements alone. The determining factor for the purposes of its decision appears to have been the experience of Mr Martino, which is eight years longer than that of the applicant.
In addition, the defendant regrets the rather polemical tone of the application and the reply and adds that it has not considered it necessary to reply to all the allegations and insinuations made by the applicant, for the simple reason that they are outside the scope of the discussion. The purpose of the action is not to question the intentions of the Council or the Italian delegation, but merely to check whether the terms of the Staff Regulations have been applied in this instance. The evidence put forward by the Council leaves no doubt as to the regularity of the competition procedure in dispute.
IV — Oral procedure
The parties presented oral argument at the hearing on 24 June 1976.
The Advocate-General delivered his opinion at the hearing on 13 July 1976.
Law
1. In an application brought on 3 October 1975 the applicant, an official of the Council of the European Communities, requests the annulment of the decision of the Council appointing Emilio Martino to the post of principal administrator at the Directorate-General for Regional Policy.
2. In support of his application the applicant maintains that the contested decision was adopted following an internal competition which was organized for the sole purpose of appointing to the vacant post the candidate who was in fact successful.
3. For this reason, the decision in question is alleged to be contrary to the provisions of the Staff Regulations and to constitute a misuse of powers.
4. The decision making the appointment in question was adopted following Internal Competition on the Basis of Qualifications No A/ 108, the notice of competition for which was published on 18 February 1975 in Communication No 11/75-I from the Secretary-General.
5. Under the terms of the first paragraph of Article 27 of the Staff Regulations ‘Recruitment shall be directed to securing for the institution the services of officials of the highest standard of ability, efficiency and integrity …’
6. In addition, Article 29 of the Staff Regulations lays down the necessary recruitment procedures — which, in paragraph 1 (b), include the internal competition — so that vacant posts may be filled by officials chosen on the basis of objective criteria and only in the interests of the service.
7. In his note of 14 November 1974, in which he replied to the criticisms made by the Amalgamated European Public Service Union in its Bulletin of 7 November 1974, the Secretary-General stated that:
‘— The question of the transfer of an official in Grade L/A 4 to Grade A 4 as a result of a competition arose out of a desire to mitigate an anomalous situation which has already lasted for some years and which came into existence as the result of excessive leniency on the part of the administration. — It will be impossible for such a situation to arise in future. Measures will be adopted to ensure that in the near future the tasks performed by each official are those of his category or service.’
8. The defendant has not contested the pertinence in this case of these statements and, during the written and oral procedure, has admitted that the ‘situation which has already lasted for some years’ to which the Secretary General referred was that of Mr Martino who was classified in Grade L/A 4 but who had for a considerable time been assigned to a post which was identical to the post in question.
9. In its rejoinder the defendant stated that as such a situation was anomalous ‘it was appropriate … to remedy it’ by means of the opportunity presented by Competition No A/ 108.
10. It is clear from the abovementioned note and from the foregoing statements that Internal Competition No A/108 was organized by the appointing authority for the sole purpose of remedying the anomalous administrative status of a specific official and of appointing that same official to the post declared vacant.
11. The pursuit of such a specific objective is contrary to the aims of any recruitment procedure, including the internal competition procedure, and thus constitutes a misuse of powers.
12. The existence of misuse of powers in this instance is moreover confirmed by the fact that one of the conditions for admission to the competition was that the successful candidate must have held the secretariat for meetings of Council working parties or committees on regional policy for at least four years.
13. It is not disputed that such a restrictive condition corresponds exactly to the duties performed by Emilio Martino in his previous post.
14. Furthermore, none of the information provided by the defendant shows why it was necessary in the interests of the service to lay down such a specific condition as regards the duration of the duties referred to.
15. Furthermore, in a memorandum dated 21 March 1973 which was drawn up after agreement with the staff representatives, the Secretary-General of the Council had given the Directorate for Administration certain directives in relation to internal competitions (section III).
16. The memorandum provided, in particular, that ‘in order to ensure the equal treatment of all officials internal competitions will take place on the basis of qualifications and tests offering the same guarantees of selection as open competitions although adapted to the internal nature of the competition and the types of post to be filled’.
17. Whether or not the memorandum in question was at that time in the nature of a decision, the fact remains that, in the interests of proper administration and in so far as an internal competition may result in transfer or promotion into a higher category or into the Language Service, the appointing authority should have regarded itself as under a moral obligation to comply with it and, therefore, to organize the competition in question on the basis not only of qualifications but of tests also.
18. On these grounds it must be concluded that the decision to make the appointment in question involves a misuse of powers and must therefore be annulled.
Costs
19. Under the terms of Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs.
20. The defendant has failed in his submissions.
21. The defendant must therefore be ordered to pay the costs of the action.
On those grounds, THE COURT (First Chamber) hereby:
1 Annuls the contested decision;
2 Orders the defendant to pay the costs of the action.