JUDGMENT OF 17. 12. 1981 — CASE 151/80 DE HOE v COMMISSION

In Case 151/80

THE COURT (First Chamber) composed of: G. Bosco, President of Chamber, A. O'Keeffe and T. Koopmans, Judges, Advocate General: G. Reischl Registrar: J. A. Pompe, Deputy Registrar

gives the following

JUDGMENT

Facts and Issues

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

I — Facts and written procedure

Mr de Hoe is an architect. Having practised his profession in an independent capacity from 1957 to 1960, he was engaged by the Commission of the European Atomic Energy Community in August 1960 in Grade A 6 Step 1. From September 1970 he worked in Directorate-General VIII for Development, in the Commission of the European Communities. He was promoted to Grade A 4 Step 3 with effect from 1 January 1974. In the context of measures relating to the reorganization of Directorate-General VIII, adopted by the Commission on 11 June 1975, he was assigned to the Division for Urban Works and Social Infrastructure in Directorate C of that Directorate General.

Mr L. is also an architect. He was in the service of the European Association for Cooperation from 3 September 1973 to 31 May 1976 as a delegated controller of the European Development Fund at Bangui (Central African Republic). In May 1976 he was engaged by the Commission as a temporary official in Grade A 3 Step 2 and assigned to the duties of Head of the West Africa Division of Directorate-General VIII. Following Vacancy Notice and Internal Competition No COM/232/76, he was appointed as a probationary official with effect from 1 January 1979 by a Commission decision of 23 January 1979 and kept in the abovementioned post.

On 1 May 1979 Vacancy Notice No COM/161/79 was published in relation to an A 3 post as Head of Division C 5, the Urban Works and Social Infrastructure Division, in Directorate-General VIII. The qualifications required were:

Education to university level supported by a degree or experience at an equivalent level;

Thorough knowledge and experience of economic and technical problems in the field of social infrastructure and urban works in the developing countries;

General knowledge of the economic and social problems in the developing countries;

Ability to manage and to organize the activities of an administrative unit and participate in negotiations in the context of meetings at a high level;

Wide and proven experience appropriate to the post.

Six candidates submitted an application, including Mr de Hoe and Mr L.

In a confidential memorandum of 1 June 1979, the Director-General of Directorate-General VIII informed the Head of the Cabinet of Mr Commissioner Cheysson that “only the applications of Mr L. and Mr de Hoe meet the qualifications and experience required for this post”.

At its meeting of 13 June 1979, the Commission decided to appoint Mr L. Head of Division C 5, the Urban Works and Social Infrastructure Division, with effect from 1 July 1979. As a result the applicant was advised in a letter dated 5 July 1979 that the appointing authority had been unable to accept his application for the post to be filled.

On 10 September 1979 the applicant submitted a complaint under Article 90 (2) of the Staff Regulations.

According to the applicant's information, the Commission adopted a decision expressly rejecting that complaint on 27 March 1980. That decision of 27 March 1980 is set out in a letter of 17 April 1980 which was communicated to the applicant on 30 April 1980.

The present application was lodged at the Court Registry on 25 June 1980.

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:

Annul the contested decision taken by the Commission on 13 June 1979;

Annul the express rejection, on 27 March 1980, of the applicant's complaint through official channels;

Order the Commission to pay the costs.

The Commission claims that the Court should:

Dismiss the application as unfounded;

Order the applicant to pay the costs.

III — Submissions and arguments of the parties

1. The applicant's first submission alleges an infringement by the Commission of the first subparagraph of Article 7 (1) and of the first subparagraph of Article 45 (1) of the Staff Regulations and of Vacancy Notice No COM/161/79 of 1 March 1979. According to the applicant, the Commission took into consideration factors extrinsic to the post to be filled and to Vacancy Notice No COM/161/79, such as the wider requirements as to the reorganization of several divisions of the relevant Directorate-General. The Commission had thus infringed the provisions set out in the submission, had not applied the general principle of the interest of the service and had misused its powers. The second submission alleges infringement of Vacancy Notice No COM/161/79 of 1 March 1979, mistake of fact, inadequacy of the statement of reasons and misuse of powers. The vacancy notice required, as an objective condition of suitability, a thorough knowledge and experience of the economic and technical problems in the field of social infrastructure and urban works in the developing countries. The Commission ought to have determined and stated how that condition of suitability was met by Mr L. before admitting him to a comparison of merits with the other candidates. In deciding to appoint Mr L. Head of Division, the Commission infringed the provisions referred to in the submission, did not in law adequately state the reasons on which its decision was based and misused its powers. The third submission alleges infringement of Articles 43 and the first subparagraph of Article 45 (1) of the Staff Regulations, infringement of the general principle of equality of treatment in the consideration of the conditions attaching to a post to be filled, inadequacy of reasons and misuse of powers. The periodic report covering the period from 1975 to 1977, which was the last periodic report made before the contested decisions, was not on the applicant's personal file. The periodic report constitutes an essential factor in the comparison of merits whenever an official is considered for promotion or takes part in a procedure within the meaning of Article 29 of the Staff Regulations. Therefore, a proper comparison of merits cannot lawfully be made without considering that essential factor of assessment and without considering the experience and qualities of an official during the period closest to the decision to be taken whilst the same periodic report is taken into consideration in the case of the other candidates. The applicant believes that the Commission misused its powers in deciding to reject him without having knowledge of his periodic report or of his experience during that period, in not comparing the candidates' merits and not giving any legal grounds for that unequal treatment.

2. As to the first submission, the Commission contends that the decision complained of was not taken in the context of a reorganization of Directorate-General VIII. There had been no reorganization and, even if there had been, no illegality would have resulted from this. It is not open to question that once a post becomes vacant, as a result of a reorganization or for any other reason, it is for the appointing authority to fill it. According to the Commission, the only question worthy of examination so far as the first submission is concerned is whether the appointing authority did not take account of the particular conditions required to fill the post in question when considering the applications and appointing Mr L. In fact the appointing authority took its decision after a detailed examination of the qualifications of the candidates, having regard to the characteristics of the post to be filled and after comparing the candidates' merits on the basis of a body of documents and information relating to the ability of each of them, the nature of the duties to be performed and qualifications required. Mr L. was appointed to the vacant post because it appeared to the Commission that that candidate fulfilled all the conditions required. In relation to the applicant's second submission, the Commission maintains that, according to the established case-law of the Court, the appointing authority enjoys a very wide discretion in comparing the merits of officials eligible for promotion by reference to the characteristics of the post to be filled (judgment of 19 February 1964 in Case 27/63 Raponi v Commission [1964] ECR 129, judgment of 7 July 1964 in Case 97/63 de Pascale v Commission [1964] ECR 515, judgment of 30 October 1974 in Case 188/73 Grassi v Council [1974] ECR 1099, and judgment of 1 July 1976 in Case 62/75 de Wind v Commission [1976] ECR 1167). There may be criticism of the compatibility of the facts on which the administration based its assessment with the assessment itself only in the case of manifest error. In this case, Mr L.'s application as well as the other documents which the appointing authority might have considered show that he had obtained wide experience of economic and technical problems in the field of collective infrastructure and urban works in the developing countries. It was therefore possible for the Commission reasonably to take the view that Mr L. had a thorough knowledge of the said field and therefore did not exceed the limits of its discretion. The Commission considers that the decision appointing Mr L. and the express rejection of the complaint made by the applicant through official channels under Article 90 (2) of the Staff Regulations gave adequate statements of the reasons on which they were based, having regard to the judgment of 30 October 1974 in Case 188/73 Grassi v Council ([1974] ECR 1099), in which the Court took the view that there was no need for a decision promoting an individual to be reasoned and that, although the obligation to give reasons for a decision rejecting a complaint applied in the case of a disputed promotion, the reasons to be given in those cases would be concerned only with the fulfilment of the legal conditions on which, under the Staff Regulations, the validity of the promotion depends. As to the third submission, the Commission states that apparently a periodic report on the applicant covering the period from 1975 to 1977 had been drawn up by the competent reporting officer on 5 December 1977 and was transmitted to the applicant so that he might read it and countersign it. Mr de Hoe did not feel able to accept the terms of the report and requested an interview with his reporting officer. As a result of that interview, the reporting officer altered his report and prepared a new report with four copies which were sent to the applicant, who kept them and still held them at the time when the application to the Court was made. Finally the Commission notes that in any event the absence of the periodic report did not in fact adversely affect the applicant, in so far as it was, on the whole, less favourable than the previous reports of which the Commission had knowledge.

3. In his reply, the applicant expands upon the facts which he set out in summary form in his application. He emphasizes the details of his career which, he asserts, give him the thorough knowledge and experience of economic and technical problems in the field of social infrastructure and urban works in the developing countries necessary to fill the post in question. The applicant submits that the Commission took into consideration factors extrinsic to the post to be filled. All factors not included in Vacancy Notice No COM/161/79 must be regarded as extrinsic factors. The applicant alleges that the contested measure was taken in the context and in the final phase of a series of administrative measures the common aim of which was the reorganization of several divisions in Directorate-General VIII. A memorandum had been circulated in Directorate-General VIII at the beginning of March 1979, containing the arrangements made by the Commission on 28 February 1979 relating to the internal organization of that Directorate-General. A draft vacancy notice which became Vacancy Notice No COM/161/79 was attached to that memorandum. According to the applicant's information, there is in existence a letter from Mr Commissioner Cheysson, addressed on 25 June 1979 to the Belgian Minister for Foreign Affairs, Mr Simonet, which stated that Mr L.'s transfer had been decided upon by the Commission in order to meet the wider requirements as to the reorganization of several divisions of Directorate-General VIII. Therefore by taking into consideration requirements wider than those attaching to the post to be filled, the Commission incorrectly applied the concept of the interest of the service, infringed the provisions referred to in the first submission and misused its powers. With regard to the second submission, the applicant maintains that Vacancy Notice No COM/161/79 set out, as qualifications required for the post to be filled, a list of five specific conditions of admissibility. On receiving applications for such a post, the appointing authority ought, as a preliminary step, to have checked whether the candidates fulfilled each and every condition. In the context of that examination, the appointing authority had no discretion, but had to check objectively that the conditions of suitability were all met by the candidate. According to the applicant, the appointing authority ought to have divided the applications into three categories : (a) candidates unsuited for the post to be filled; (b) suitable candidates whose relative merits were compared for the purposes of the choice to be made; (c) the suitable candidate who, as a result of the assessment of merits, was considered by the appointing authority to be the best. In this case, the applicant alleges that Mr. L. ought objectively to have been classified in the first category, because of his lack of a thorough knowledge in the stipulated field. Furthermore, in deciding that Mr. L. satisfied the condition of the admissibility of his application, the Commission did not in law adequately state the reasons on which its decision was based. The second submission is therefore well founded with the result that the contested measure should be annulled. The applicant points out that the quantity and quality of the projects carried out either in collaboration with Mr L. or under his control or supervision did not give him the knowledge and experience necessary for the post to be filled. Therefore a decision of transfer taken as a result of an inadmissible application infringes the provisions referred to in the submission and is vitiated by a misuse of powers. With regard to the absence of the applicant's periodic report at the time of the assessment of the candidates' comparative merits, the Guide to Staff Reports provides for a dialogue between the official who is the subject of the report and the reporting officer, at the end of which the report becomes final if no complaint has been made by the official who is the subject of the report to the reporting officer within the prescribed period. In this case, the finding by the reporting officer that the prescribed period had expired ought to have resulted in his being obliged to confirm his provisional report, which in this way would have become definitive and formally correct. It is therefore wrong to claim that the irregularity relied on in the submission is the applicant's fault. The applicant disputes the Commission's statement that the periodic report for the period 1975 to 1977 was less favourable than the previous reports. The analytical assessments gave a mark of “above average” both for ability and for conduct in the service. Among his principal tasks during that period, the applicant had been given the very important responsibility of replacing the head of division when the latter was away. The extension and enlargement of the applicant's responsibilities during the period immediately preceding that during which the contested decision was taken show that the periodic report for the period 1975 to 1977 added considerably to the excellent assessments of the earlier reports. Therefore, it is not open to the Commission to allege that the decision would have been the same if the said periodic report had been properly drawn up by it.

4. In its rejoinder, the Commission confirms that a series of decisions concerning the internal organization of Directorate-General VIII was taken by the Commission in the course of its 506th session, on 28 February 1979, acting on a proposal from its Commissioner, Mr Cheysson. The fact that those measures resulted inter alia in the transfer of the vacant A 3 post from Division B 2 to Division C 5, thus giving rise to Vacancy Notice No COM/161/79, obviously does not mean that the disputed appointment was prompted by factors other than those laid down in the vacancy notice in question. As to the correspondence between Mr Commissioner Cheysson and Mr Simonet, Minister for Foreign Affairs, that included a letter in which the minister, undoubtedly at the request of the official concerned, contacted a Member of the Commission, with a view to recommending the application of a compatriot. Mr Cheysson replied in the following manner: The Commission notes that when it is thus placed in its proper context the letter of 25 June 1979 from Mr Commissioner Cheysson does not have the meaning which the applicant seeks to ascribe to it. In his reply the applicant isolates one of the appointing authority's criteria for assessment, that is to say thorough knowledge and experience of technical problems, by considering it only from a purely quantitative point of view. However, the choice to be made by the appointing authority is a result of a comparison covering all the conditions laid down having regard to the post to be filled and at the end of that comparison, settles on that candidate who on the whole appears most able to perform the duties required. Since the post to be filled in this case was that of head of division in the Directorate-General for Development, it was necessary to pay particular attention to the candidate's management qualities. As is pointed out in paragraph 69 of the Spierenburg Report containing proposals for reform of the Commission and its departments: On the question of the absence of the applicant's periodic report for the period from 1975 to 1977, the Commission refers to the judgment of the Court of 13 July 1972 in Case 90/70, Bernardi v European Parliament ([1972] ECR 60) in which the Court took the view that: and concluded that The Commission concludes from that judgment and from the opinion of Mr Advocate General Roemer that the official had failed to observe the general duty of loyalty and cooperation and his duty to do everything to ensure that the decisions to be taken in the context of a procedure which was specially organized to decide upon a promotion in which he had an interest, could be taken in a regular fashion. Moreover, it follows from the Guide to Staff Reports that the official concerned is obliged to return the periodic report. The Commission does not accept the applicant's arguments to the effect that the report relating to the period from 1 July 1976 to 30 June 1977 constitutes an improvement relative to the earlier period.

“However, the post was given to another candidate whose qualities are equally outstanding, but whose transfer met wider requirements as to the reorganization of several divisions of this directorate-general”.

“It should not be possible for anyone to be appointed head of division (and a fortiori to a higher position) unless he has shown aptitude for management... A head of division should also have had experience throughout his career of several different sectors of the Commission's activities ...”

In view of Mr L.'s experience in the service of the European Development Association between 1973 and 1976 and his earlier activities in the Commission as head of division, first of Division VIII B 1, the West Africa Division, and at present in Division VIII C 5, the Urban Works and Social Infrastructure Division, it was possible for the appointing authority reasonably to take the view that he fulfilled the condition relating to thorough knowledge and experience of economic and technical problems in the field of social infrastructures and urban works in the developing countries.

“Assuming that a proposed periodic report communicated to the person concerned in order to obtain his signature and comments may already be considered, before it is returned, as a report capable of being subjected to the comparative consideration referred to in Article 45 of the Staff Regulations, it is in any event clear from the foregoing that the ‘report’ could not feature in the said comparative consideration for the sole reason that the applicant retained it for four months”

“In those circumstances, the applicant cannot invoke before the Court irregularities which may have been the consequence of his own behaviour.”

5. In a supplementary pleading, the applicant alleges that there is often political intervention in regard to the appointment of high officials and that he was therefore not surprised at Mr Simonet's action in suggesting him for the post in question. Mr Cheysson's letter affords proof that not only he but also the whole of the Commission considered that the two candidates were equal and that therefore the sole and determinant reason for choosing Mr L. was indeed the fact that his transfer met wider requirements as to the reorganization of several divisions of the directorate-general. The sole and determinant reason for the contested measure was the reorganization of Division B 1. Such a reason is unlawful and its illegality entails the annulment of the contested measure. The applicant is surprised that the Commission relies on the Spierenburg Report which is dated 24 September 1979, that is to say after the contested measure, in order to attempt to add to the criteria laid down in the vacancy notice concerned. The applicant observes that in its rejoinder the Commission produces new documents which did not appear in Mr L.'s file when the contested decision was taken. Those documents therefore do not prove that the contested condition of admissibility was examined particularly closely by the appointing authority. But what might be more serious, according to the applicant, is the fact that those documents show that the assessment which the appointing authority claims to have made with regard to Mr L.'s thorough knowledge and economic and technical experience in the field of social infrastructure and urban works in the developing countries was superficial and characterized by errors. The applicant states that it is wrong in law to claim that the failure by the official who is the subject of the report to return the report to the reporting officer within the prescribed period constitutes a breach of the official's general duty of loyalty and cooperation. On the contrary, as a result of a rule of the Staff Regulations which binds it and which it is not entitled to alter, even by means of general provisions for the implementation of the Staff Regulation, the Commission has The applicant disputes the Commission's statement to the effect that his periodic report for the period 1975 to 1977 was less good than those for the earlier periods.

“(a) bounden duty... to ensure that that report is drawn up periodically on the dates laid down by the Staff Regulations and that it is drawn up in proper form” (judgment of 14 July 1977 in Case 61/76 Geist v Commission, [1977] ECR 1419).

6. In its observations on the applicant's supplementary pleading, the Commission repeats that the applicant has not shown that the disputed appointment was prompted by factors extrinsic to Vacancy Notice No COM/161/79. The Commission states that it does not dispute the fact that the applicant fulfilled the conditions laid down in the vacancy notice. It has in fact always maintained that he and Mr L. were the two best candidates among those who met the required conditions. It was inevitably obliged to make a choice between the two and did so in favour of Mr L. With regard to the absence of the periodic report for the period 1975 to 1977, the Commission invokes the principle nemo auditor turpitudinem suam allegans whereby it ill becomes the applicant to rely on an irregularity which is a result of his own incorrect conduct.

IV — Oral procedure

The parties presented oral argument at the sitting on 1 October 1981.

The Advocate General delivered his opinion at the sitting on 12 November 1981.

Decision

1. By application lodged at the Court Registry on 25 June 1980, Mr de Hoe, an official of the Commission of the European Communities, brought an action under Article 91 of the Staff Regulations of Officials claiming the annulment, on the one hand, of the decision of 13 June 1979 by which the Commission appointed Mr L. Head of Division C 5, the Urban Works and Social Infrastructure Division, and, on the other, of the decision rejecting the complaint made by the applicant on 10 September 1979 against the abovementioned decision of 13 June 1979.

2. The applicant, an architect by training, entered the service of the Commission on 29 August 1960. Since 1970 he has performed his duties in the Directorate-General for Development. Appointed to Grade A 4, Step 3, on 1 January 1974, he was assigned as principal administrator to Division C 5 in Directorate-General VIII, where he performs the duties of head of West Africa, Central Africa, Pacific and Maghreb sector of the division, entrusted with planning, advisory and supervisory duties concerning technical instruction and the accomplishment of projects financed by Community resources in the field of urban works and social infrastructure. He replaces the head of division in his absence and in this regard has experience as acting head of division of more than 360 days.

3. On 1 May 1979 Vacancy Notice No COM/161/79 was published concerning the post of Head of the Division for Urban Works and Social Infrastructure. Among the qualifications required for this post were a thorough knowledge and experience of economic and technical problems in the field of social infrastructure and urban works in the developing countries. The applicant applied for the vacant post in the context of Article 29 (1) (a) of the Staff Regulations.

4. On 13 June 1979 the Commission appointed Mr L. to the vacant post with effect from 1 July 1979 and informed the applicant on 5 July 1979 that the appointing authority had been unable to accept his application for the post to be filled.

5. The applicant submitted a complaint under Article 90 (2) of the Staff Regulations on 10 September 1979. He was notified of the decision rejecting his complaint by a letter of 17 April 1980. Subsequently the applicant made this application to the Court.

6. In support of his application, the applicant puts forward three submissions. In the first submission he maintains that the decisive reason for the contested measures was the taking into consideration by the Commission of factors extrinsic to the post to be filled, such as the wider requirements as to the reorganization of several divisions of Directorate-General VIII. According to the applicant, the interest of the service may not be taken into consideration on the basis of factors other than those intrinsic to the post to be filled. In the second submission, the applicant contends that it was not possible for the Commission, without making a mistake of fact, to decide that the candidate appointed met the objective condition of suitability laid down by the vacancy notice. The Commission thus infringed the provisions of the vacancy notice, did not provide adequate reasons for its decision and misused its powers. The third submission is based on Articles 43 and 45 of the Staff Regulations, on infringement of the general principle of equality of treatment in the consideration of the applications for a post to be filled, on inadequacy of the reasons on which the decision was based and misuse of powers.

7. It is appropriate to consider first the second submission, the examination of which may affect the first submission. According to the applicant, the official appointed to the post to be filled did not meet one of the conditions required by the vacancy notice, that is to say, that relating to “thorough knowledge and experience of economic and technical problems in the field of social infrastructure and urban works in the developing countries”. He examines Mr L.'s experience in the field described in the vacancy notice and concludes from it that it was not possible for the Commission, without making a mistake of fact, to take the view that the official met the condition cited above. In addition, he submits that no adequate statement of the reasons for the decision to appoint that official was given, inasmuch as there is no indication of the grounds on which the Commission might lawfully have considered Mr L.'s knowledge to be thorough.

8. It is clear from the case-law of the Court, particularly from its judgment of 30 October 1974 in Grassi v Council ([1974] ECR 1099) that the basic function of the vacancy notice is to give those interested the most accurate information possible about the nature of the conditions of eligibility for the post to which it relates, in order to enable them to judge whether they should apply for it, and that when the appointing authority has to fill a post, it must, when drawing up the vacancy notice, take account of the special conditions of eligibility required of the holder.

9. However the Court has recognized that the appointing authority has a wide discretion in comparing the candidates' merits and that its assessment as to whether a candidate fulfils the conditions of eligibility required by the vacancy notice may be questioned only in the event of manifest error.

10. It is clear from the file that Mr L. had been employed as an architect by a firm in Rotterdam for a period of about five years and then by a firm in Rome for a period of five years (during which time he was concerned with projects and studies in the field mentioned in the vacancy notice). Thereafter he was in the service of the European Association for Cooperation, as controller of the European Development Fund, from September 1973 to May 1976. On 1 June 1976 he entered the service of the Commission, where he performed the duties of Head of the West Africa Division of Directorate-General VIII.

11. It also emerges from the file that six officials of the Commission applied for the post to be filled. According to the Commission's usual practice, the candidates' qualifications and experience were examined by the Director-General of Directorate-General VIII. According to his report, only the applications of Mr L. and the applicant met the qualifications and experience required for the post to be filled. In the light of that report and after examining the candidates' qualifications and merits, the Commission appointed Mr L. to the vacant post.

12. In those circumstances, it must be stated that the applicant has not submitted to the Court any factors capable of establishing that the Commission had committed a manifest error of judgment in considering that Mr L. fulfilled the conditions in the vacancy notice and in appointing him to the post to be filled, and that it therefore did not exceed the limits of the power conferred upon it.

13. So far as the alleged inadequacy of reasons given for the decision is concerned, the Court has already stated in its judgment of 30 October 1974, cited above, on the one hand that there is no need for a decision promoting an individual to be reasoned and on the other hand that, whilst the duty to give reasons for a decision rejecting a complaint applies even in the case of a contested promotion, the reasons to be given in that case will be concerned only with fulfilment of the legal conditions on which, under the Staff Regulations, the validity of the promotion depends. That does not mean that the Commission must set out in detail in what way it considered that the appointed candidate fulfilled the conditions in the vacancy notice. The decision of 17 April 1980 rejecting the applicant's complaint was therefore sufficiently reasoned.

14. It follows that the second submission must be rejected.

15. With regard to the first submission, it is true that in the course of its meeting of 28 February 1979 the Commission took a series of decisions concerning the internal organization of Directorate-General VIII. Those decisions resulted inter alia in the transfer of the vacant A 3 post from Division B 2 to Division C 3. The applicant infers from this that the Commission was guilty of a misuse of powers in appointing Mr L. to the vacant post. In this regard he refers to a personal letter which was written by a member of the Commission in reply to a letter sent to him, which drew his attention to the applicant's application for the post. In that letter, the Commissioner, having acknowledged the applicant's qualities, stated that another candidate “whose qualities are equally outstanding” and “whose transfer met wider requirements as to the reorganization of several divisions of the Directorate-General” had been chosen.

16. However, it should be pointed out that, when a candidate fulfils all the conditions in the vacancy notice, the appointing authority may appoint him rather than another equally well-qualified candidate for reasons relating to the interest of the service, without that appointment's constituting a misuse of powers. The applicant does not put forward any argument capable of showing that the decision making the appointment was taken for reasons which were incompatible with the choice of the candidate who best complied with the interest of the service and the conditions of the post to be filled. Therefore the applicant's submission cannot be accepted.

17. In his third submission the applicant contends that at the time of the contested decision the Commission did not have his periodic report for the period from 1975 to 1977. It is also true that, according to the case-law of the Court, periodic reports constitute essential factors for all decisions concerning an official's career.

18. However, it appears from the file that the report was drawn up by the competent reporting officer on 5 December 1977, that it was transmitted to the applicant so that he might read and countersign it, and that he later requested an interview with his reporting officer. As a result of that interview, the reporting officer changed his report and in April 1978 drew up a new report with four copies and transmitted them to the applicant who kept them and still held them at the time when the application to the Court was made. This shows that the candidate himself did not consider that it was necessary for the assessment of his qualities for purposes of the post to be filled that that document should appear in his file.

19. Under those circumstances the applicant may not rely on the absence of the periodic report for the period mentioned, and therefore the third submission must also be rejected.

20. Since the applicant has failed in all his submissions, the application must be dismissed.

Costs

21. Under Article 69 (2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs. However under Article 70 of the Rules of Procedure, costs incurred by the institutions in applications by officials of the Communities are to be borne by the institutions themselves.

On those grounds, THE COURT (First Chamber) hereby

1 Dismisses the application;

2 Orders the parties to bear their own costs.