OPINION OF MR MAYRAS — CASE 181/77 GANZINI v COMMISSION

In Case 101/77

THE COURT (First Chamber) composed of: G. Bosco, President of Chamber, J. Mertens de Wilmars and A. O'Keeffe, Judges, Advocate General: H. Mayras Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts and Issues

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

I — Facts and written procedure

The applicant, who was recruited on a contractual basis as a messenger by the High Authority of the ECSC in 1953, was established on 1 July 1956 in Grade 13, step 6, of Category C. On 1 January 1958 he was promoted to Grade 12, step 5 (clerical assistant). At his request, supported by a medical certificate, he was transferred in June 1961 from the Publications Department to the Internal Services Branch as a messenger/ receptionist.

When the new Staff Regulations of Officials were applied the applicant was classified in Grade 2, step 7, of the newly-created Category D.

A memorandum from the Directorate General for Administration and Finance dated January 1963 (confirmed on several occasions after requests by the applicant for an explanation of his ‘detrimental downgrading’) nevertheless applied a transitional measure to him:

‘… having regard to the rights which you have acquired, the High Authority has also decided to maintain on a personal basis the possibility of your being taken into consideration for transfer or promotion from what would have been your position in Category C to such vacant post in that category as may interest you …’

Mr Ganzini was promoted to Grade D 1, step 6 (head of unit/messenger) with effect from 1 November 1975.

Following the posting of Notice of Vacancy COM /726/76, concerning a post of clerical officer (C 3 /C 2) in the ‘Dispatch’ department of DG DC in Luxembourg, application forms were received from both Mr Ganzini (D 1) and Mr S. (C 4).

In a memorandum dated 26 November 1976 from the Head of the Administration Division to the Head of the Personnel Division in Luxembourg the opinion was expressed that:

‘Mr S. is better qualified …, in particular because he has much longer and more recent experience than Mr Ganzini in the field of dispatch.’

Mr S. was promoted to the post in dispute by a decision of 7 December 1976.

By an undated memorandum, which he claims to have received at the beginning of January 1977, Mr Ganzini was informed that the appointing authority:

‘non ha potuto accogliere alla Sua candidatura per l'impiego resosi vacante’ (has been unable to accept your application for the post to be filled).

By two memoranda dated 1 March 1977 Mr Ganzini submitted to the appointing authority:

A request under Article 90 (1) of the Staff Regulations for his administrative status to be regularized before his retirement by means of appointment in Grade C 3;

A complaint under Article 90 (2) of the Staff Regulations:

‘… I cannot allow myself to be set aside as a candidate when my application ought to have been accepted.’

By a memorandum dated 17 May 1977 the request for ‘reclassification’ in Category C was rejected.

By a letter from the Commission of 29 September 1977, signed by Christopher Tugendhat, the applicant (who claims never to have received the letter in question) was informed that:

his ‘application was taken into consideration, that is, it was examined on the same basis as that of another official who put himself forward within the context of the procedure laid down in Article 29 (1) (a) of the Staff Regulations, with a view to occupation of the post in question by way of promotion’.

As he received no reply to his complaint during the specified period of four months, the applicant lodged the present application on 2 August 1977.

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 any preparatory inquiry.

II — Conclusions of the parties

The applicant claims that the Court should:

1) Declare that the rejection of the application is unlawful and must therefore be annulled;

2) Declare that the implied decision rejecting the complaint is unjustified and must therefore be annulled;

3) Declare that the appointing authority has committed a wrongful act and must be held liable therefor;

4) Fix the non-material loss suffered by the applicant at Bfrs 1;

5) Order the defendant to pay the costs of the action.

The defendant contends that the Court should:

1) Dismiss the present application as unfounded;

2) Order the applicant to pay the costs.

III — Submissions and arguments of the parties

The applicant maintains that no reasons were given for the decision in dispute and that it is therefore contrary to Article 25 of the Staff Regulations, unless the defendant can show that the unconditional rejection of the applicant's application does not constitute a decision adversely affecting him.

The vacancy notice is irregular, if not unlawful, since it does not contain sufficient information to enable the candidate's chances of success to be judged. In accordance with Article 29 of the Staff Regulations it should at least have contained the strict obligation to consider whether the post could be filled by promotion within the meaning of Article 45. No such comparative assessment appears to have taken place.

Finally, the rejection of the applicant's application is based on considerations which constitute a misuse of powers. The complaint in which he requested the regularization of his administrative status received a reply which terminated as follows:

‘Finally, let me observe that your recent promotion into D 1 appears to me to have brought your career to an honourable conclusion, which, furthermore, you share with several colleagues whose administrative status is identical to yours.’

That might be the ‘explanation’ of the rejection at issue, although it cannot be a reason for it.

The misuse of powers lies in the fact that the administration did not consider whether the applicant's case was not different from that of the other officials who also suffered a downgrading and that its desire to treat them all equally caused it to lose sight of the obligation contained in Article 7 (1) of the Staff Regulations, that is, to act solely in the interests of the service.

The Commission replies that by preferring the other candidate on the ground that he had longer and more recent experience in the field of dispatch it in no way exceeded its discretionary powers, since the post was filled on the basis of the interests of the service and the promotion was by selection after consideration of the comparative merits of the candidates in accordance with the terms of the first paragraph of Article 27 and Article 45 (1) of the Staff Regulations.

The vacancy notice as such is not vitiated by any irregularity. It gives full details of the post to be filled as well as of the nature of the duties and the qualifications required.

No objective and conclusive evidence is put forward in support of the submission of misuse of powers. As regards the administration's reply to the applicant's complaint concerning the regularization of his administrative status, it does not provide any evidence of ill-will towards the official concerned.

The applicant replies that he contested a quite specific decision, that is, the decision not to ‘entertain’ his application for the post. The Commission appears to wish to ignore the difference between the inadmissibility of an application and the fact that the candidate is not accepted to occupy the vacant post. If there had been a genuine consideration of comparative merits another candidate could certainly have been appointed.

The Commission argues, with documents in support, that it accepted and considered the applicant's application. It ought to have said so within the four months which followed receipt of the complaint. By failing to do so it committed a serious wrongful act and bears the entire liability for the proceedings brought against it. The applicant might, at the very most, be able to consider discontinuing the proceedings if the defence would declare itself ready to bear the costs incurred.

The Commission replies that the wording of the decision notified to the applicant in January 1977 appears on the printed form used for any application.

The delay involved in the preparation of the reply given by the Commission on 29 September 1977 to the complaint of 1 March 1977 is explained by the fact that the Directorate General for Personnel is established at the seat of the Commission in Brussels, whereas the applicant's file was in Luxembourg.

The applicant, represented by V. Biel, Advocate of the Luxembourg Bar, and the Commission of the European Communities, represented by its Legal Adviser, R. Baeyens, acting as Agent, presented oral argument at the hearing on 23 February 1978.

The Advocate General delivered his opinion at the hearing on 9 March 1978.

Decision

1. The present application, which was lodged on 2 August 1977, seeks principally the annulment of the decision of the appointing authority not to accept the applicant's application for the post of clerical officer (C 3/C 2) in the ‘Dispatch’ department of the Directorate General for Personnel and Administration in Luxembourg, which formed the subject of Notice of Vacancy COM/726/76.

2. Following publication of that vacancy notice the post was applied for by two candidates, Mr S. (C 4) and the applicant (D 1), both of whom were eligible to be taken into consideration under Article 29 (1) (a) of the Staff Regulations, that is, for promotion or transfer within the institution.

3. In a memorandum dated 26 November 1976 to the Head of the Personnel Division in Luxembourg the Head of the Administration Division in Brussels expressed the opinion that ‘… Mr S. is better qualified for the post [in question] in particular because he has much longer — and more recent — experience than Mr Ganzini in the field of dispatch’.

4. Mr S. was promoted to the post at issue by a decision dated 7 December 1976.

5. By an undated memorandum, which he claims to have received at the beginning of January 1977, the applicant was informed that the appointing authority ‘non ha potuto accogliere alla Sua candidatura per l'impiego resosi vacante’ (has been unable to accept your application for the post to be filled).

6. By a memorandum dated 1 March 1977 Mr Ganzini submitted to the appointing authority a complaint under Article 90 (2) of the Staff Regulations, to which the Commission failed to reply, with the result that, in accordance with the terms of that article, its silence constituted, with effect from 1 July 1977, an implied decision of rejection whose annulment is sought by the applicant in the present application.

7. It was only by a letter from the defendant dated 29 September 1977, signed by Christopher Tugendhat, that the applicant was informed that his ‘application was taken into consideration, that is, it was examined on the same basis as that of another official who put himself forward within the context of the procedure laid down in Article 29 (1) (a) of the Staff Regulations, with a view to occupation of the post in question by way of promotion’.

8. The applicant maintains that he never received the said letter.

9. In support of his application the applicant refers to the absence, in infringement of Article 25 of the Staff Regulations, of any statement of reasons for the decision not to ‘entertain’ his application for the post, which affected him adversely.

10. The appointing authority has no duty to provide a statement of the reasons on which a decision not to accept an application for a post is based since the recitals of such a statement of reasons might be prejudicial to the candidate.

11. It is established that even if the Italian verb ‘accogliere’ does not correspond to the French ‘retenir’ (to accept) it is clearly in the latter sense that the rejection by the Commission of the applicant's application after consideration of the comparative merits of both candidates within the context of the procedure for promotion or transfer provided for in Article 29 (1) (a) of the Staff Regulations must be understood.

12. Therefore, the administration in no way exceeded its discretionary powers, and in filling the post acted solely on the basis of the interests of the service.

13. It ought, however, to have made use of the period for replying to the complaint through official channels in order to dispel the applicant's misunderstanding.

14. Nevertheless, the submission is unfounded and must be rejected.

15. Secondly, the applicant alleges that the vacancy notice was irregular in that it did not contain either information enabling the candidate's chances of success to be judged or, at the least, the stria obligation to consider whether the post could be filled by promotion within the meaning of Article 45 of the Staff Regulations.

16. A reply has already been given in relation to the alleged absence of consideration of the comparative merits of the two candidates.

17. Furthermore, the contested notice gives full details of the post to be filled as well as of the nature of the duties and the qualifications required.

18. The submission cannot therefore be accepted.

19. Finally, the applicant alleges a misuse of powers, in that the administration did not consider whether Mr Ganzini's case was not different from that of the other officials who had also suffered a downgrading when the Staff Regulations were applied in 1959.

20. The other officials referred to by the applicant did not apply for the post at issue and for that reason the position of the applicant did not have to be and was not compared to theirs.

21. Furthermore, it has been shown that the choice made by the appointing authority was based solely on the interests of the service and that for that reason no allegation of misuse of powers can be made against it.

22. The submission is inadmissible.

Costs

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

24. The applicant has failed in his submissions.

25. However, in the light of the attitude of the Commission, which failed to dispel the applicant's misunderstanding of the meaning to be given to the rejection of his application, it is decided under the second subparagraph of Article 69 (2) of the Rules of Procedure to order the defendant to pav all the costs.

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

1 Dismisses the application;

2 Orders the defendant to pay all the costs.