Report for the Hearing delivered in Case 246/84

I — Facts and written procedure

1. The applicant, a reviser in Grade LA 4 in the General Secretariat of the Council, entered the Council's employment on 1 November 1980 as a reviser in the Greek translation division then being set up. On 1 April 1982 Mr Constantinopoulos, a reviser in the same division, was appointed temporary head of division and occupied that post until April 1983. He continued de facto to do the work relating to that post until 1 December 1983. During the whole period the applicant was responsible for the internal coordination of the division and for standing in for Mr Constantinopoulos during his absences. On 23 February 1983 the Council published Notice No LA/250 of an open competition to fill the post of Head of the Greek Division of the Language Service (Official Journal C 51, p. 8). It was stipulated in the competition notice inter alia that admission was restricted to those candidates who, After successfully taking the tests for the competition the applicant's name was entered at the top of the list of suitable candidates. The documents show that the names of only two candidates were included in the list of suitable candidates; the other name was that of Mr Constantinopoulos, who was placed second. By Decision No 11/83 of 13 December 1983 the appointing authority filled the post by appointing Mr Constantinopoulos head of division. On 21 March 1984, the applicant submitted a complaint under Article 90 (2) of the Staff Regulations against Decision No 11/83. In its reply of 20 July 1984, sent to the applicant on 10 October 1984, the Secretary-General of the Council referred to ‘its discretion to take into consideration factors other than the position in the list, such as suitability for the duties of the post and the interest of the service’. The letter went on to say that in the present case reasons relating to the interest of the service justified the preference given to the candidate appointed and that the administration could not overlook ‘special suitability for the duties of the post’.

‘by the date of its publication, had at least 10 years' experience in the field of translating or revising texts, which could consist, in part, of experience in other fields of linguistic activity’.

2. By an application of 12 October 1984, received at the Court Registry on 15 October 1984, the applicant brought the present action for the annulment of Decision No 11/83 of 13 December 1983 and for compensation for the injury caused by the aforesaid decision. 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 enquiry. On the applicant's request it ordered the Council to produce certain documents relating to the procedure of appointment at issue.

II — Conclusions of the parties

The applicant claims that the Court should:

1. As regards the procedure

Declare the present action admissible and declare itself to have jurisdiction to hear it;

Confirm that throughout the proceedings the applicant has reserved his right to refer to relevant factors;

Recognize that the applicant has offered to adduce evidence of the facts on which he relies;

Order the defendant to produce all the administrative documents and documents of which the applicant is unaware, especially

a) the application of the candidate appointed together with supporting documents;

b) the report of the Selection Board to the appointing authority after the conclusion of the competition at issue;

c) the internal notes and any other documents on the basis of which the appointing authority selected the candidate appointed and rejected the applicant;

d) any other document connected with the present case;

2. As regards the substance

Declare the present action well founded and substantiated and in consequence

i) Annul Decision No 11/83 of the appointing authority in order that the authority may select the applicant for appointment to the post of head of the Greek translation division with retroactive effect from 1 December 1983;

ii) Extend, in so far as is necessary, the period of validity of the list of suitable candidates drawn up by the Selection Board following Competition No LA/250;

iii) Order the defendant to pay damages to the applicant in respect of loss of earnings from the date on which he failed to be appointed, equal to the difference between the salary he actually received and the salary he would have received if he had been appointed to the post in question on 1 December 1983 in Grade LA/3, Step 3, for the period from 1 December 1983 to the date on which the applicant is appointed to the post in question and in the grade to which he is entitled, together with interest on such damages;

iv) Order the defendant to pay nominal compensation of BFR 1 to the applicant in respect of nonmaterial damage;

v) Order the defendant to pay the costs and, in any event, to apply Articles 69 to 73, in particular Article 70, of the Rules of Procedure of the Court in the applicant's favour.

The Council contends that the Court should :

Dismiss the substantive claims of the applicant as unfounded;

Order the applicant to pay the costs in so far as the defendant is not liable for them under the provisions of Article 70 of the Rules of Procedure.

III — Submissions and arguments of the parties

1. The applicant alleges in the first place that there is an infringement of Article 27 of the Staff Regulations, according to which ‘recruitment shall be directed to securing for the institution the services of officials of the highest standard of ability, efficiency and integrity’. The infringement arises from the fact that the applicant has superior qualifications to those of the candidate selected and from the fact that he was first in the competition. As regards qualifications, the applicant says that he was able to show that he had: (i) 10 years' employment as an official translator in the Greek Ministry of Foreign Affairs; (ii) six years' employment as an official translator with the North Atlantic Treaty Organization; (iii) three years' employment as a reviser in the General Secretariat of the Council, for which his staff report varied from very good to excellent; (iv) three years' experience as a trainee advocate and seven years as an advocate at the Court of First Instance, Athens; (v) three years' employment (prior to obtaining his university degree) as an employee of the National Bank of Greece; (vi) postgraduate studies (Masters of Law at the University of London) specializing inter alia in the law and institutions of the European Communities. As regards the classification of the candidates in the competition, the applicant says that only two candidates, namely himself (297 out of 400 points) and the candidate selected (276 out of 400 points) had their names entered on the list of suitable candidates. Since the nature of the various tests and the marks were determined in exercise of its discretion by the appointing authority itself, the act of choosing the person who came second amounted to choosing the less competent person. That was all the more true in the present case since the applicant had obtained better marks not only in the linguistic and scientific tests but also in the tests relating to ability to organize and manage. In those circumstances it is not possible to accept the Council's argument to the effect that after the list of suitable candidates was drawn up the appointing authority still had a discretion in the choice of candidates. As the Court held in the judgment of 15 December 1966 (Case 62/65 Manlio Serio v Commission of the EAEC [1966] ECR 561), although the administration ‘is entitled in making its selections to ignore the precise order of merit in the competition for reasons which it is incumbent upon the administration to evaluate ... nevertheless it may not destroy the very concept of competition by departing substantially from the result of the competition without serious reasons’. In addition, the administration from the outset showed bias towards the candidate ultimately selected by entrusting him with temporary responsibility for the division; the applicant, however, had no opportunity to display his ability outside the competition. The contested measure also amounts to a misuse of powers since it seeks to ratify a decision which was already taken when the other candidate was given temporary responsibility for the division. In that respect the applicant observes that the fact that Mr Constantinopoulos perfomed his duties well cannot be taken into account since no comparison was available. He maintains that the administration could not claim that the applicant was slow and excessively scrupulous since he had obtained in his staff report the mark ‘excellent’ for the quality of his work, his conscientiousness and relations with his colleagues and the mark ‘very good’ for all other aspects, including speed of performance. Finally, the administration cannot argue that in human terms the position of the candidate ultimately appointed would have been embarrassing if the applicant had been preferred to him.

2. The Council denies any infringement of the Staff Regulations and misuse of powers. As regards the alleged infringement of the Staff Regulations, it. states that the post of Head of the Greek Language Division requires both technical abilities, at the linguistic level, and human skill in managing and coordinating a department. In the present case the Council considered that Mr Constantinopoulos was the person most suitable for that purpose by reason inter alia of his capacity for organizing and his natural authority. Those considerations had led the administration to give him temporary responsibility for the division. More specifically, the Council explains that its choice in appointing Mr Constantinopoulos was dictated by the following considerations: (i) the excellent services which Mr Constantinopoulos had rendered as head of division during particularly difficult periods; (ii) the certainty that the difficulties would continue for a certain time in view of the restricted number of officials in the particular division; (iii) the fact that no risk could be taken with regard to the division: since Mr Constantinopoulos had displayed excellent qualities, the Council did not wish to deprive itself thereof on the sole ground that another candidate might display the same ability. In addition, the difference between the two candidates (297 marks out of 400 and 276 marks out of 400 respectively) is not very great and the candidate selected obtained more marks than the applicant (54 against 46 marks) in the oral tests designed to determine ability to organize and manage a department. As against those considerations the applicant cannot plead his qualifications which he says are superior to those of Mr Constantinopoulos. Apart from the fact that qualifications mainly serve to determine the admissibility of candidates to tests, the choice of the best candidate must also be based on consideration of the personality of the candidates and in particular their ability to manage an important unit. As regards the complaint of misuse of powers the Council denies that it has been motivated by considerations other than those of the ability of the candidates. Although it is undeniable that a difficult situation in human terms would have been created if the person who had been head for some time had to serve under the authority of one of his former subordinates, those considerations were not a decisive factor in the Council's choice. The Council cannot be criticized for not having entrusted responsibility for the division temporarily to the applicant. Even if performance of such duties may be regarded as preparation for the competition, the Council cannot be expected to offer all possible candidates in the competition an opportunity to assume such responsibilities in turn. The Council considers that the claim for damages must in any event be rejected. Even if the contested decision must be annulled it does not follow that the applicant is capable of running the division.

IV — Fresh issue raised during the course of the proceedings

1. In a document which was received at the Court on 27 December 1985, at the end of the oral procedure, the applicant raised a fresh issue within the meaning of Article 42 (2) of the Rules of Procedure to the effect that the person appointed to the post in question did not satisfy the condition of 10 years' experience laid down in the Notice of Competition No LA/250. In support of that submission he says that documents produced by the Council at the request of the Court reveal fresh matters of fact and law of exceptional importance which justify the raising of a fresh issue concerning the annulment. Those documents reveal a contradiction between the matters contained in the first application by the person appointed for the original competition for revisers (No LA/198) and his application for the competition at issue (No LA/250). In the first application, in particular, Mr Constantinopoulos stated that he had three years' experience, from 1976 to 1979 (with Exantas Ltd Publishers, Athens, 1976-78; with Gerhardt Verlag, Berlin, 1976-79) and had completed postgraduate studies lasting seven years from 1968 to 1975 (Universität Bonn, 1968-71; Freie Universität Berlin, 1972-75). In the second application he stated that he had nine years' experience, from 1972 to 1980 (Exantas Ltd Publishers, Athens, 1972-80; Gerhardt Verlag, Berlin, 1976-79) and had spent five years on postgraduate studies (Universität Bonn and Freie Universität Berlin, 1968-73). It thus appeared that Mr Constantinopoulos had trebled his working experience by including a certificate from the very same employer (Exantas Ltd Publishers) and at the same time claiming a shorter duration of postgraduate studies by omitting to include documentary evidence which he had annexed to his first application. The Council in its rejoinder states that Mr Constantinopoulos' postgraduate studies extended from 1968 to 1975 (seven years) and that in the application for Competition No LA/250 his studies were inadvertently stated to have ended in 1973. The Council contends that when the Notice of Competition LA/250 was published on 23 February 1983 Mr Constantinopoulos had 11 years' working experience, from 1972 to 1983; for the whole of that period Mr Constantinopoulos had worked as a translator and reviser. Those facts were given both in the two applications and in a detailed curriculum vitae which the Council had requested of Mr Constantinopoulos which showed that he was in Berlin from 1972 to 1975 and worked at the same time for Exantas, Athens. The difference between the two certificates from Exantas relating to the commencement of Mr Constantinopoulos' work with them was due to the fact that he had confined himself to producing for each of the two competitions documentary evidence to satisfy the conditions of experience laid down for each of them.

V — Oral procedure

At the sitting on 21 October 1986 the Court (Third Chamber) heard evidence from Mr Christos Constantinopoulos, Head of the Greek Division of the Language Service of the Council, and from Mr Themistocles Banoussis, the director of Exantas Ltd Publishers, on the question of how long, and in what capacity, Mr Christos Constantinopoulos had worked for Exantas Ltd.

Mr Constantinopoulos stated in essence that between 1972 and 1980 — the year of his entry into the service of the Council — he lived partly in Berlin and partly in Greece. During that time he worked for the publishing firm of Exantas as a reader. His activities included proposing books — in Greek or other languages — for publication, translating certain publications or parts thereof, and revising and collating translations by other translators. Those activities amounted to fulltime employment. Although from 1972 to 1975 he also followed courses at the university (two or three seminars a week), he nevertheless devoted the greater part of his time to translation work. Mr Constantinopoulos further stated that he had received from Exantas a salary of about DR 15000 a month at the

beginning, rising to about DR 35000 to 40000 by the end, to which was added a given percentage on titles in which he had collaborated.

Mr Banoussis confirmed in essence that Mr Contantinopoulos had worked for Exantas as a reader from 1972 to 1980. The work had entailed proposing books for inclusion in published series and supervising, revising and collating translations. His remuneration had been about DR 10000 to 15000 at the beginning and about DR 25000 later on; to this salary were added certain supplements and percentages relating to specific works. Mr Banoussis also said that he considered Mr Constantinopoulos to be one of his fulltime colleagues.

U. Everling Judge-Rapporteur

1 Language of the Case: Greek.