JUDGMENT OF 1. 12. 1983 — CASE 18/83 MORINA v PARLIAMENT

In Case 18/83

THE COURT (Third Chamber), composed of: Y. Galmot, President of Chamber, U. Everling and C. Kakouris, Judges, Advocate General: G. F. Mancini Registrar: J. A. Pompe, Deputy Registrar

gives the following

JUDGMENT

Facts and Issues

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

I — Facts and written procedure

1. By Vacancy Notice No 3285 of 3 November 1981 the European Parliament, the defendant in these proceedings, commenced the procedure for the filling of a post of principal administrator (Career Bracket A 5/A 4) in the Directorate General for Research and Documentation (post No 1305). The vacancy notice indicated that the post was to be filled so far as possible by transfer or promotion. The applicant, Domenico Morina, an administrator in Grade A 6 in the same Directorate General (DG V), who had been eligible within the meaning of Article 45 of the Staff Regulations since 1 January 1979, applied for the vacant post. By memorandum of 6 May 1982 addressed to the Director General for Administration, Personnel and Finance, the Secretaiy General of the Parliament requested the immediate transfer of A 5/A 4 post No 1305 from the Legal and Budgetary Affairs Division (DG V) to the Treasury and Accounts Division (DG IV) and as a result it was impossible to continue with the procedure for filling the vacancy. The applicant was informed of the cancellation of the procedure by a notification slip from the administration to which the words “Procedure cancelled by the appointing authority” were added. By letter of 28 July 1982, which was received on 29 July 1982, Mr Morina lodged an objection under Article 90 (2) of the Staff Regulations against the decision cancelling the procedure for filling the post. He claimed that the decision was addressed to him personally, since he had a personal and individual interest in the matter. The complaint went on to say that “the absence of any statement of reasons may oblige me to apply to the Court of Justice to obtain cancellation of a decision which manifestly affects me adversely”. By letter dated 3 November 1982, which reached the applicant on 10 November 1982, the President of the European Parliament replied that “this procedure was interrupted by reason of the transfer to Directorate General IV of A 5/A 4 post No 1305, which made it impossible to proceed with recruitment on the basis of the abovementioned vacancy notice... the decisions were adopted for imperative reasons relating to the service and have no personal connection with your application”.

2. This action was brought by an application lodged at the Court Registry on 7 February 1983. Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court (Third Chamber) decided to open the oral procedure without any preparatory inquiry.

II — Conclusions of the parties

The applicant claims that the Court should:

Declare that the application is admissible;

As to its substance, declare that it is well founded;

Declare that the decision transferring the vacant post, during the procedure fulfilling it, to another Directorate General is illegal and accordingly annul it;

Declare in any case that the interruption of the procedure is illegal and that the European Parliament must bring it to a conclusion;

Remit the case for that purpose to the European Parliament;

Order the defendant to pay the whole of the costs.

The European Parliament contends that the Court should:

Take note that the defendant leaves to the Court the question of the admissibility of the application;

As to its substance, dismiss the application;

Make an order as to costs in accordance with the applicable provisions of the Staff Regulations.

Ill — Submissions and arguments of the parties

1. Admissibility

The European Parliament, which leaves to the Court the matter of admissibility, expresses doubts on three points :

In the first place, since the applicant obtained satisfaction regarding his complaint, there is no longer any ground for bringing the present action. In his complaint Mr Morina confined himself to requesting clarification regarding the cancellation of the procedure for filling the post. That clarification was given to him in the reply from the President of the Parliament, who stated that the procedure had been cancelled for reasons relating to the service, which had no connection with the applicant's application.

In the second place, the application did not state its true purpose which was to obtain a declaration of the illegality of, and to annul, the decision to transfer the post which was adopted during the procedure for filling it. No such claim was made in the complaint.

In the third place, the question arises whether the decision to cancel the procedure, which was of a general nature, can adversely affect the applicant. In that respect, however, the case-law of the Court would appear to show that the implied rejection of an application arising from the cancellation of a procedure is capable of adversely affecting the person concerned.

The applicant objects that he is suffering present damage since he is in a situation protected by law. By submitting his application, he became entitled to rely upon the lawful completion of the procedure and upon the administration's exercising its powers in that respect in accordance with the obligations incumbent upon it.

2. The substance

The application is based on the following submissions and arguments:

a) infringement of the Staff Regulations, breach of the principle of good administration and misuse of powers;

b) breach of the principle of the protection of legitimate expectation;

c) failure to state the grounds on which the measure was based.

(a) Infringement of the Staff Regulations, breach of the principle of good administration and misuse of powers

The applicant states that there is no objective reason based on the interests of the service which can justify the transfer of the post in question during the procedure for filling it. The transfer was decided upon not in the interests of the service but in order to eliminate the applicant and favour another official who had to be “fitted in”. In any event, the interests of the applicant were not taken into consideration since the administration had available at least two other posts provided for in the budget, for which there was no vacancy notice.

By acting in this manner the Parliament has caused the applicant present and personal damage. The applicant was virtually the only candidate eligible for promotion to the post in question. Moreover, he had been proposed for the post by his superiors.

The European Parliament replies that whilst Article 29 of the Staff Regulations obliges the appointing authority, before commencing any competition, to examine the possibilities of promotion and transfer within the institution, that obligation relates only to consideration of the possibilities of appointment and not to an actual appointment which the appointing authority is not obliged to make (judgment of 31 March 1965 in Joined Cases 12 and 29/64 Ley v Commission [1965] ECR 107). It follows that the applicant can claim no objective right to promotion (judgment of 25 November 1976 in Case 30/76 Küster [1976] ECR 1719). That rule applies particularly in this case since there were three other candidates for the vacant post.

According to the Parliament, the transfer of the vacant post to another Directorate General was decided upon for imperative reasons relating to the service and was wholly unconnected with the applicant's application. The transfer involved a change in the nature of the duties attaching to the post and therefore there was no point in proceeding with an appointment on the basis of the vacancy notice. In fact, the new duties attaching to post No 1305 involve accountancy and, after the transfer, a vacancy notice was issued in respect of that post for the recruitment of an administrator responsible for imprest accounts.

(b) Breach of the principle of the protection of legitimate expectation

The applicant considers that the administration cannot, as a matter of principle, withdraw an offer of employment without contravening the principle of the protection of legitimate expectation. Since the publication of a vacancy notice under Article 4 of the Staff Regulations should attract the bestplaced candidates, those of the candidates who fulfil the conditions for admission have a legitimate expectation that they will be appointed to take up the duties in question.

The applicant satisfies all the conditions for admission and, moreover, was proposed for the post by his superiors. In those circumstances, his appointment to the post described in the vacancy notice had become a near certainty which was tantamount to a genuine vested personal right.

The European Parliament states by way of reply that there is no foundation for any allegation of a breach of the principle of the protection of legitimate expectation in cases such as this one where the application for appointment to the post was set aside for objective reasons relating to the service.

Moreover, according to the judgment of 24 June 1969 (Case 26/68 fux [1969] ECR 145), there is nothing in Article 4 or Article 29 of the Staff Regulations to say that once a recruitment procedure has been commenced the appointing authority is obliged to pursue it by filling the post which has become vacant, since those provisions are intended merely to ensure that the appointing authority makes only appointments which are in conformity with the rules prescribed by law.

Finally, the appointing authority cannot attach more importance to a contingent advantage which an official may obtain in the future from a recruitment procedure than to certain and present needs which, in the interests of the service, require it to take immediate measures.

(c) Failure to state the reasons on which the measure was based

The applicant claims that the decision to transfer the post does not disclose to him the reasons on which it was based, since it contains no explanation regarding the alleged interests of the service.

Since the vacant post corresponds in all respects to his activities and experience and since he was the candidate proposed for the post, it was particularly important for the said decision properly to state the reasons upon which it was based as far as the applicant was concerned. Since it is not permissible to remedy the absence of a statement of the reasons on which a measure is based during the proceedings before the Court (judgment of 26 November 1981 in Case 195/80 Michel [1981] ECR 2861), the transfer decision must be annulled.

According to the European Parliament, the allegation regarding the absence of any statement of reasons is unfounded, since the applicant was informed as to the outcome of his application. It is apparent from the words “Procedure cancelled by the appointing authority” appearing on the notification slip sent by the administration to the applicant that the procedure was discontinued for a reason relating to the service rather than that the application had not been accepted.

IV — Oral procedure

The parties presented oral argument at the sitting on 20 October 1983.

The Advocate General delivered his opinion at the same sitting.

Decision

1. By application lodged at the Court Registry on 7 February 1983, Domenico Morina, an administrator in Grade A 6 in the Directorate General for Research and Documentation (DG V) of the European Parliament, brought an action regarding the cancellation by the European Parliament of a procedure to fill the post of a principal administrator (Career Bracket A5/A4) in the Legal Affairs Division of that Directorate General (Vacancy Notice No 3285 of 3 November 1981).

2. The applicant, who was eligible for promotion within the meaning of Article 45 of the Staff Regulations, had applied for the vacant post, the vacancy notice for which stated that the post would be filled for preference by means of transfer or promotion.

3. By decision of 6 May 1982, the Secretary General of the European Parliament ordered the immediate transfer of the post to the Treasury and Accounts Division of Directorate General IV. Since that transfer entailed a change in the nature of the duties attaching to the post, the administration cancelled the procedure to fill the post and informed the applicant thereof by means of a notification slip bearing the words “Procedure cancelled by the appointing authority”.

4. On 29 July 1982, Mr Morina lodged a complaint against that cancellation under Article 90 (2) of the Staff Regulations and asked to be informed of the reasons therefor. By letter of 3 November 1982 the President of the Parliament rejected the complaint, stating that the procedure for filling the post had been interrupted because the post had been transferred to Directorate General IV and the transfer had made it impossible for the procedure to continue on the basis of the vacancy notice. The letter added that “the decisions taken were adopted for imperative reasons relating to the service and have no personal connection with your application”.

5. This application, which was lodged on 7 February 1983, seeks on the one hand cancellation of the decision transferring the post and, on the other, a finding that the interruption of the procedure for filling the post was unlawful.

Admissibility

6. The European Parliament, without formally raising an objection of inadmissibility, has expressed doubts regarding the admissibility of the application in so far as its subject-matter is different from that of the complaint. The complaint should be regarded, it states, as a mere request for clarification as to the reasons for the cancellation of the procedure for filling the post, whereas the application seeks annulment of the decision transferring the post.

7. It is apparent from the complaint that, whilst the applicant did in fact ask for information regarding the reasons for cancellation of the procedure for filling the post, he also took care to explain that in the absence of clarification as to those reasons he would be obliged to bring an action before the Court for annulment of a decision which manifestly affected him adversely. In those circumstances, there is no disparity between the complaint and the application and the application must be considered admissible.

Substance

8. The applicant complains in the first place that the European Parliament breached the principles of the protection of legitimate expectation and good administration by transferring the vacant post during the procedure for filling it and thus withdrawing its offer of employment.

9. As the Court held in its judgment of 24 June 1969 (Case 26/68 Fux [1969] ECR 107), the provisions of the Staff Regulations regarding the filling of vacant posts are intended to provide a guarantee for the person concerned that the appointing authority will make appointments only in conformity with the rules prescribed by law. However, it does not follow from those provisions that once a recruitment procedure has been initiated the said authority is necessarily obliged to pursue it by filling the post which has become vacant. That submission must therefore be rejected.

10. The applicant also maintains that the decision transferring the post in question did not sufficiently state the reasons on which it was based in relation to the applicant, since it contained no explanation regarding the alleged interests of the service invoked by the Parliament.

11. The statement of the reasons on which a decision adversely affecting an official is based must enable the Court to review the legality thereof and must provide the person concerned with details sufficient to allow him to ascertain whether or not the decision is well founded. The requirement of a statement of reasons must nevertheless be considered in the context of the circumstances of the case, particularly the scope of the measure, the nature of the reasons relied upon and the interest which the addressee may have in receiving an explanation. Particularly in the case of a measure involving the organization of the service, it must be emphasized, moreover, that the obligation to give a statement of grounds must be related to the margin of discretion available to the appointing authority in this connection, as the Court held in its judgments of 28 May 1980 (Joined Cases 33 and 75/79 Kuhner [1980] ECR 1677) and of 29 October 1981 (Case 125/80 Anting [1981] ECR 2539).

12. Although, in the present case, the administration initially confined itself to informing the applicant of the fact that the procedure for filling the post had been cancelled, without stating the reasons for so doing, it nevertheless stated, in response to his complaint, that the procedure had been interrupted because of the transfer of the post and that the contested decisions had been adopted for reasons relating to the service which were unconnected with the applicant's application. In this case, a statement of reasons of that kind must be regarded as sufficient to enable the applicant to safeguard his rights. That submission also must therefore be rejected.

13. The applicant finally accuses the Parliament of misusing its powers in so far as the transfer was decided upon not in the interests of the service but in order to eliminate the applicant and to favour another official.

14. It should be noted in that connection that the applicant has given no details of his complaint and has not adduced any evidence to support such an allegation. Moreover, in view of the explanations given by the European Parliament at the hearing, the interests of the service upon which it relies have been established. This submission must therefore likewise be rejected.

15. Since none of the applicant's submissions has been successful, this action must be dismissed.

Costs

16. Under Article 69 (2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been asked for in the successful party's pleading.

17. However, by virtue of Article 70 of the Rules of Procedure, the costs incurred by institutions in actions brought by servants of the Communities are to be borne by the institutions.

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

1 Dimisses the application;

2 Orders the parties tö bear their own costs.