JUDGMENT OF 25. 11. 1976 — CASE 123/75 KÜSTER v PARLIAMENT

In Case 123/75

THE COURT (First Chamber) composed of: A.M. Donner, President of Chamber, A. O'Keeffe and G. Bosco, Judges, Advocate-General: G. Reischl Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts

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

I — Facts and written procedure

1. By notice board announcement on 12 March 1974 the appointing authority published Vacancy Notice No 1058 for a post as head of division (A 3) with the Directorate-General for Committees and Interparliamentary Delegations. This notice, published in French, stated inter alia that the procedure for filling the post was by promotion and transfer and that for practical purposes a‘thorough’ knowledge of Danish was desirable. By letter dated 1 April 1974 the applicant sent the President of the Parliament a complaint with regard to this notice. He asked in particular that the notice be published in all the languages of the Community and that at least it should be referred to on the notice board of the German-speaking officials. On 2 April 1974 the applicant applied for the vacancy. Since the recruitment procedure referred to in the notice was not successful, the Parliament, to fill the post in question, organized on 18 November 1974 internal competition A/51, the notice for which stated inter alia ‘for practical purposes a knowledge of Danish is desirable’; the competition was based ‘on qualifications and tests’; the tests would consist of two interviews, one of which would cover one or more subjects within the ambit of the ‘nature of the work’ (lasting 15 minutes) and the other on any knowledge of the official languages of the European Communities (lasting ten minutes); The marking relating to the qualifications and two oral tests would be respectively from 0 to 40, from 0 to 30 and from 0 to 10; However, with regard to the marking (0 to 10) relating to the second test (knowledge of languages) only that part of the mark above 5 would be taken into account. On 25 November 1974 the applicant applied for this post. On the conclusion of the competition the President of the Parliament by decision dated 29 April 1975 appointed Guiseppe Gallo to the post. By letter dated 18 June 1975 the applicant made a complaint against this decision under the second paragraph of Article 90 of the Staff Regulations. Since this complaint was unsuccessful the applicant brought the present action on 16 December 1975.

2. After hearing the report of the Judge-Rapporteur and the views of the Advocate-General the First Chamber of the Court decided to call upon the European Parliament to lodge before 15 August 1976 the staff report of the Selection Board in internal competition A/51, including the annexed marks and the notice of internal competition A/51. These documents were lodged by the Parliament on 13 July 1976. By order dated 22 September 1976 the First Chamber of the Court decided to hear as a witness at the public hearing the Chairman of the Selection Board for internal competition A/51 and formulated the questions on which he would be heard.

II — Conclusions of the parties

The applicant claims that the Court should:

‘— rule that the present application is admissible as to form and that it has been made within the prescribed period; — Before any further steps are taken in the proceedings, order the defendant to lodge with the Court Registry the minutes of the Selection Board and the two files on Gallo and Küster; — if not, then as from now, rule that the decision of the President of the European Parliament dated 29 April 1975 appointing Giuseppe Gallo head of division is vitiated on the grounds of misuse of powers and illegality; — in consequence rule that this decision is null and void and therefore annul it; — order the European Parliament to bear the costs of the action, all other rights, entitlements and actions being reserved.’

The defendant claims that the Court should:

‘— take note that the defendant does not intend to contest the admissibility of the action with regard to form; — with regard to the substance, rule that the action is unfounded; — dismiss it; — make an order as to costs in accordance with the applicable provisions; — take note that the defendant reserves its rights’.

III — Submissions and arguments of the parties

The applicant contests the lawfulness of the decision in question on the ground:

that the appointing authority did not take account of his eligibility for promotion;

that in competition A/43 where the ability requirements were practically the same as in competition A/51, the applicant was given 60 marks whereas the successful candidate in the latter competition received 58-5 marks;

that this candidate, moreover, did not take part in the examination relating to knowledge of Danish, although such knowledge was stated in the notice of competition to be ‘desirable’;

that assuming that the members of the Selection Board were appointed in the present case by the Secretary-General, the appointment of the Selection Board is ultra vires since the power given to the Secretary-General to appoint selection boards had not been at the time brought to the knowledge of the staff.

The applicant considers that these factors, besides showing the irregular nature of the contested measure, give rise to a number of serious presumptions of the existence of a misuse of powers with regard to him. To ascertain whether there is any such irregularity and misuse of powers the Court should have the personal files of Giuseppe Gallo and the applicant and the papers of the Selection Board. The production of the papers of the Selection Board is, moreover, all the more necessary since it is necessary to know, before proceeding with a case, the criteria of selection adopted in the present case by the Selection Board in order to ascertain whether the criteria applied in the previous competitions remained valid, as logically they should, and, if necessary, whether they have been correctly applied. With regard, for example, to the criterion ‘ability to lead a high-level team’, applied in previous competitions, it appeared from the file of Case 23/74 that the Selection Board had not been informed of the temporary appointment held by the applicant as head of division. It appears from this same file that there had been conferred on the applicant at the time only a seniority of ten years both in the category in question and in the lower grade whereas in fact his seniority was 16 years under the first criterion and 12 years under the second.

The defendant objects that although in previous actions brought by the applicant against the Parliament, the latter had voluntarily produced the minutes of the deliberations of the Selection Board, its attitude cannot be the same in the present case. In the present action the applicant has not managed to point to any factor capable of showing the least internal irregularity vitiating the work of the Selection Board. His criticism is based solely on generalizations. Having been defeated in the competition he is trying to create means of annulling it and seeks to find these means in the minutes of the deliberations of the Selection Board. The European Parliament is therefore entitled not to accede to the applicant's request to produce these documents unless it is required to do so by the Court. In this latter event the table of marks would relate only to the applicant since the other candidates in the competition are strangers to the proceedings. In the same way the European Parliament cannot accede to the request to produce the personal file of Mr Gallo since such a document is confidential and cannot be revealed to third parties.

The defendant then considers the complaints made by the applicant. Some of these complaints are to be found in previous actions brought by the applicant against the European Parliament; others on the other hand are specific to the present action. Both kinds are unfounded. This is particularly the case with the complaints relating to the marks given and the criteria of selection adopted in the present competition and in the previous competitions (A/43, A/45). On the one hand the fact should not be overlooked that different competitions are not comparable inter se, so that the results of previous competitions are irrelevant to those of the competition in question. Further, the laying down of criteria of selection and awarding points on the basis of these criteria comes within the discretion vested in the Selection Board and the Court is entitled only to review matters relating to legality.

Finally the defendant observes:

that reference to Article 45 in the contested decision cannot affect the validity of this decision, since Mr Gallo was appointed, as appears, as a result of an internal competition;

since knowledge of Danish was described only as ‘desirable’, the fact that Mr Gallo did not take part in the examination relating to this subject is quite irrelevant.

The applicant in reply says that his request for production of the minutes of the Selection Board is based on complaints showing that there are numerous irregularities with regard to the competition in question. The fact that the Selection Board did not even ask Mr Gallo whether he knew Danish in itself leads to the presumption, unless the word ‘desirable’ has no meaning, that the appointment of this candidate was decided in advance. In the same way the fact that the applicant had obtained in the competition A/43 more marks than the successful candidate in the present competition likewise gives rise to a presumption of irregularity since the members of the Selection Board were probably the same, with perhaps one exception, in the two competitions and the criteria of selection were of the same nature. Further, the scope of the complaint of ultra vires should not be overlooked for the Court had not dismissed this in its judgments relating to the previous actions brought by the applicant against the European Parliament.

Returning to this latter complaint based on the fact that the power delegated to the Secretary-General to appoint selection boards was not published, the applicant refers to the provisions of the Staff Regulations and in particular the second paragraph of Article 110 and Article 25 from which it appeared that publication of this delegation was indispensable to its legality. The applicant further cites German law and the case-law of the French Conseil d'État in support of the obligatory nature of such publication.

Further, the contested decision does not contain only a reference to Article 45 of the Staff Regulations. It expressly states in the operative part that Mr Gallo is promoted (viene promosso) to head of division, Grade A 3. The negligence of the European Parliament in drafting this decision is thus of such a degree that it is necessary to conclude that the measure should be annulled for lack of a statement of reasons or on the ground of erroneous reasons.

Finally, with regard to the submission of misuse of powers, it is established that even in the absence of positive evidence the Court, if it has before it several presumptions with regard thereto, may find that there is such misuse. Although in Case 23/74 the applicant had suspicions of misuse of powers with regard to him, the facts in the subsequent actions have translated these suspicions into certainty. In this respect it suffices to recall:

the last staff report on the applicant, while being very flattering to him, no longer speaks of his eligibility for a promotion which in previous reports their authors had never failed to recommend;

the fact that the appointment of Mr Kieffer, annulled by the Court as a result of Case 77/74, was followed by the appointment of a candidate other than the applicant;

the fact, moreover, that objective criteria such as his eligibility for promotion and his eight and a half months as acting head of division were not taken into account;

the fact that in the case of the successful candidate there was no examination relating to knowledge of Danish.

In support of these arguments the applicant produces a synoptic table of officials appointed to A 3 who have been preferred to him for reasons which in the majority of cases are in his opinion incomprehensible.

In its rejoinder the defendant states that the applicant, while claiming that the decision appointing Mr Gallo should be annulled, bases his action on the alleged irregular nature of the internal competition A/51: the procedure of the competition is thus the true subject-matter of the action. Having said this the defendant returns to the arguments set out in its defence, observing in particular:

that the Secretary-General had power to appoint the members of the Selection Board by virtue of an Office decision of 7 and 8 October 1971 which was brought to the attention of five Directors-General, five Chairmen of Groups, the Secretariat, the Staff Committee and the Control Bureau. Such publication more than satisfies the requirements of the Staff Regulations;

the reference in the contested decision to Article 45 of the Staff Regulations is in accordance with a form of wording constantly used by the Parliament in appointments made as a result of a competition and it has never before given rise to misunderstanding or discussion. Moreover this wording does not conflict with the actual position for the entry of an official upon a higher grade of his category may, even if it follows a competition, be described as promotion. In any event, leaving aside the fact that reasons do not have to be given for a decision to appoint, an imprecise or incorrect reference to a provision of the Staff Regulations is not sufficient in itself to justify the complaint that wrong or insufficient reasons have been given. For the rest, the present complaint, as set out in the reply, amounts to widening the submissions made in the applications, with the result that its admissibility may be questioned.

The fact that there was no examination of Danish in the case of Mr Gallo was because he had stated he had no such knowledge. In these circumstances the Selection Board did not need to inquire about this knowledge which the notice of competition moreover did not regard as indispensable. This complaint moreover is the only one of those put forward by the applicant relating to the deliberations of the Selection Board. In view of this fact and that the applicant has not made more specific claims the Parliament is perfectly entitled, having regard to the provisions of Article 6 of Annex III to the Staff Regulations, to refuse to produce documents relating to the deliberations of the Selection Board. Moreover, since these documents, as the applicant admits, are intended to enable him to formulate other submissions, their production is inadmissible under the Rules of Procedure of the Court which prohibit fresh issues from being raised in the course of proceedings.

In so far as the complaints made by the applicant contain only assumptions or generalities, the application itself is inadmissible as appears from the judgment of the Court in Case 30/68, Lacroix v Commission.

IV — Oral procedure

Mr Legrand-Lane, Chairman of the Selection Board for the competition A/51 of the European Parliament, gave evidence at the hearing on 14 October 1976.

The parties gave evidence at this same hearing.

Having regard to the reasoned report by the Selection Board lodged at the Court by the European Parliament on 13 July 1976, the applicant confirmed the complaints made in his written pleadings and further observed:

A comparison between the marks received for qualifications and those which the Selection Board gave him for the first oral test show that the Selection Board intentionally undermarked him.

The Selection Board did not take account either of his temporary posting from 1 September 1973 to 20 May 1974 as head of division of the Committee on Public Health and the Environment and which according to the President of the European Parliament should be regarded as such in the meaning of Article 7 of the Staff Regulations, nor of his professional experience with certain German firms.

If the temporary posting had been taken into account it would have enabled him to obtain considerably higher marks than those received by Mr G. Gallo on the basis of selection criteria Nos 7 and 8 and if the aforesaid professional experience had been taken into account he would have received much higher marks than 0 under the sixth criterion.

The ceiling applied by the Selection Board in marking under the first and second criteria with regard to seniority and age constitutes an unjustified limitation on marks which could only work to the disadvantage of older and more senior officials such as the applicant himself.

The defendant replied during the hearing that the Selection Board in fact took account of the temporary posting and of the professional experience of the applicant.

In essence it stated that the criticisms formulated by the applicant are either unfounded or are a repetition of those already made in the written procedure.

The Advocate-General delivered his opinion at the hearing on 11 November 1976.

Law

1. By an action brought on 16 December 1975 the applicant claims that the Court should annul the appointment of Mr Giuseppe Gallo made on 29 April 1975 by the European Parliament as a result of internal competition A/51.

2. In support of the application the applicant maintains that the Selection Board for the competition was irregularly constituted since the Secretary-General of the European Parliament had appointed the members of the Selection Board under a delegation of power made for this purpose by the Bureau of the institution, which delegation has no force in law since it was not brought to the knowledge of the staff in the manner provided by the provisions of the Staff Regulations.

3. According to the applicant such a delegation would have been effective only if it had been posted or published in accordance with Article 25 of the Staff Regulations.

4. The second paragraph of Article 110 of the Staff Regulations provides that ‘All such general provisions … shall be brought to the attention of the staff’, but does not specify the manner in which they are to be brought to the attention of the staff.

5. Although Article 25 of the Staff Regulations lays down the manner in which decisions relating to specific individuals are to be published, it does not specify the manner of publication of measures having a general scope or measures which relate to a division of responsibilities within the institution.

6. The delegation of the power in question involves a generally recognized division of powers within the institution.

7. In the event it is established that it has been notified not only to the Directors-General of the institution, Chairmen of Groups, to the Secretariat and to the Control Bureau, but also the Staff Committee established under Article 9 of the Staff Regulations under which their duties are, inter alia to represent the interest of the staff vis-à-vis their institution and to ‘maintain continuous contact between the institution and the staff.’

8. In these circumstances the contested delegation of power is legally effective without its being necessary to go into the question whether such a delegation constitutes a measure covered by the second paragraph of Article 110 of the Staff Regulations.

9. The applicant then maintains that the contested decision infringes Article 29 (1) (a) and (b) and Article 45 of the Staff Regulations in that the appointing authority held the abovementioned internal competition without taking account of the applicant's eligibility for promotion.

10. Although Article 29 (1) (a) of the Staff Regulations provides that before filling a vacant post in an institution, the appointing authority shall first consider whether the post can be filled by promotion or transfer within the institutions, it does not give officials who fulfil the conditions for promotion a personal right to promotion, since the filling of each post must in accordance with the first paragraph of Article 27 of the Staff Regulations be based in the first place on the interests of the service.

11. Moreover Article 45 (1) of the Staff Regulations provides that ‘promotion shall be exclusively by selection … after consideration of the comparative merits of the officials eligible for promotion …’.

12. It appears from these provisions that the appointing authority has a wide discretion in the matter.

13. Thus it does not appear that in deciding to hold an internal competition instead of promoting the applicant the appointing authority failed to fulfil its obligations under Articles 29 and 45 of the Staff Regulations and infringed the applicant's rights under those Regulations.

14. The applicant maintains that in any event the procedure of recruitment followed involves a misuse of powers with regard to him since he was excluded notwithstanding the fact that he was the only candidate eligible for promotion according to the provisions of the Staff Regulations and in particular those on the second paragraph of Article 45 (1).

15. A misuse of powers is not deemed to exist unless it is proved that the appointing authority in taking the measure in question has followed an objective other than the legal one.

16. Where only one candidate is suitable for promotion under the second paragraph of Article 45 (1) of the Staff Regulations, the fact that the above authority decides to organize an internal competition without making a promotion does not in itself constitute sufficient evidence of a misuse of powers.

17. In such a case the appointing authority, since it has available for consideration only one candidate suitable for promotion, may have all the more reason for holding an internal competition since it may rightly consider that it does not have a sufficiently wide choice to ensure recruitment in accordance as far as possible with the requirements of the post to be filled.

18. The applicant states further that a misuse of powers in this respect is proved by the fact that the marks accorded to him in the competition in question are lower than that attained in a previous competition (A/43) to fill a post in the same category and grade, the Selection Board for which competition was constituted in the same way as that for competition A/51 and made its selection on the basis of similar, if not identical, criteria of assessment.

19. It is established that the previous competition in question was based on qualifications and that competition A/5, was organized on qualifications and tests.

20. Further the criteria of assessment applied in competition A/43 also took account of the candidate's inclusion in the previous lists of suitable candidates whereas this fact was not taken into account in competition A/51 save in so far as the said lists related to internal competitions ‘based on qualifications and tests’.

21. Therefore since the two competition procedures in question were not wholly comparable there is no legal basis for the applicant's complaint.

22. Moreover the criticisms made against the institution in competition A/51 of the oral tests an the manner in which these tests were conducted appear to be equally unfounded.

23. Having regard to the result of consideration of the qualifications and tests recorded in the table of marks annexed to the Selection Board's report on the competition in question, it does not appear that the organization and conduct of the tests discriminated against the applicant.

24. With regard, furthermore, to the test of knowledge of Danish, although it is true that the successful candidate did not take such a test, it is also true that knowledge of this language was described as ‘desirable’ by the notice of competition and that the applicant obtained higher marks than did the successful candidate for his knowledge of languages.

25. The applicant alleges further that the Selection Board in competition A/51 drew up the list of the various suitable candidates without taking account of the fact that he had temporarily held the post of First Secretary of Committee from 1 September 1973 to 20 May 1974.

26. The Selection Board, according to the applicant, also omitted to take account, for the purposes of the list of suitable candidates, of his experience and professional qualifications acquired both before and after his entry into the service of the European Parliament.

27. Finally it is said that the Selection Board did not include among the criteria of assessment it adopted that of his eligibility for promotion to the vacant post.

28. It appears from the evidence of the Chairman of the Selection Board in competition A/51 given during the oral proceedings that the Selection Board knew that the applicant held the temporary post from 1 September 1973 to 20 May 1974 and that this was taken into account in the assessment of the applicant's qualities and professional experience.

29. It appears also from this evidence that the Selection Board, in assessing the applicant's professional qualifications and abilities, had available all the factors for assessment contained in his personal file and in the documents annexed thereto including those referred to by the applicant in his letter of 22 February 1975 sent to the Director-General for Administration, Personnel and Finance.

30. Finally the applicant points out that while the contested decision refers to ‘the results of the competition’ it also mentions Article 45 of the Staff Regulations on promotion and expressly states in the operative part that the successful candidate is ‘promoted’ to the vacant post.

31. It is thus alleged that imprecise and contradictory reasons are given for the said decision which should therefore be annulled.

32. The recruitment procedure followed in the present case clearly shows that the appointment in question was made as a result of an internal competition and accordingly provides no grounds for putting in doubt the legal basis of that measure.

33. Therefore since the lack of precision, which has been remarked, in the reasons for the contested decision is not decisive, it cannot affect the validity of the decision.

34. The application is, for all these reasons, dismissed as unfounded.

Costs

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

36. The applicant has failed in his submissions.

37. However under Article 70 of the Rules of Procedure, in proceedings commenced by servants of the Communities institutions shall bear their own costs.

On those grounds, THE COURT (First Chamber) hereby:

1 Dismisses the application as unfounded;

2 Orders the parties to bear their own costs.