Report for the Hearing delivered in Case 324/85
I — Summary of the facts
1. Yves Bouteiller, a French national, has been in the service of the Commission in the Directorate-General for Competition since 1959. Since 1965 he has been in Grade A 4. From 1968 he was assigned to the Energy Division of the Directorate for Cartels and Monopolies, Dumping and Private Discrimination in the Directorate-General for Competition. As part of the reorganization of the Directorate-General for Competition, Mr Bouteiller was assigned with effect from 1 October 1984 to the Division for Energy (Other than Coal), Chemicals, Agricultural Products and Foodstuffs in the Directorate for Restrictive Practices and Abuse of Dominant Positions II. Since he was the most senior official in that division, he carried out the duties of the head of that division, in accordance with a Note issued by the Director of the Directorate concerned dated 1 October 1984, until the new holder of the post was appointed. On 26 October 1984 the Commission published Vacancy Notice COM/1421/84 for the post of head of the said division (A 3). The duties were described as follows: The qualifications required were the following: Yves Bouteiller and 18 other officials applied for the post. One of the candidates was Jürgen Mensching, an official of German nationality who since 1978 had been classified in Grade A 4, from 1970 to 1975 was a member of the Cabinet of Mr Haferkamp, from 1975 to 1981 was assistant to the Director-General for Competition and was then seconded to Mr Haferkamp, first as Deputy Chef de Cabinet (A 3) and then, from 1 September 1984, as Chef de Cabinet (A 2).
‘(i) Manage the conduct of individual cases on restrictive practices and abuses of dominant positions in the economic sectors concerned;
ii) Analyse in detail the legal and economic aspects of the various cases;
iii) Follow the trend in conditions of competition on the market in those sectors and maintain contact with undertakings concerned.’
‘ (i) University education, supported by a degree or equivalent professional experience;
ii) Thorough knowledge of the EEC Treaty and of Community competition law;
iii) Knowledge of one or more of the sectors concerned;
iv) Ability to conduct negotiations and find solutions in individual cases of restrictive practices and dominant positions within the framework of the competition policy of the Community;
v) Wide experience appropriate to the post;
vi) Ability to head a division.’
2. The applications for the post in question were examined by the Advisory Committee entrusted by the Commission with giving an opinion on applications for posts in Grades A 2 and A 3 as regards the competence and ability of the candidates. In a report dated 17 December 1984, the Committee reached the conclusion that special consideration should be given to five candidates. Mr Mensching was one of those candidates but Mr Bouteiller was not. On 19 December 1984 the Commission examined the applications. According to the minutes of the meeting, it considered the comparative merits of the candidates, having regard to the nature of the post, and examined the reports on the ability, efficiency and conduct in the service of each of the candidates. It then decided to appoint Mr Mensching to the post of Head of Division. That meeting took place at a time when two Members of the Commission, Mr Ortoli and Mr Pisani, both of French nationality, had resigned, with effect from 26 October 1984 and 3 December 1984 respectively. Since the new Commission was to take up its duties on 5 January 1985, the Council, at its meetings on 6 November and 11 December 1984, had decided that it was unnecessary to appoint replacements for such a short period.
4. The applicant was informed in a note of 5 February 1985 that his application for the post of Head of Division had not been successful and he learned that Mr Mensching had been appointed to that post. On 29 April 1985 the applicant submitted a complaint against the Commission's decision. His complaint was rejected by letter of 2 August 1985.
II — Procedure and conclusions of the parties
1. By an application lodged at the Court Registry on 4 November 1985, the applicant brought the present action. The applicant claims that the Court should: (i) Declare null and void the decision appointing Mr Jürgen Mensching to the post of Head of Division; (ii) Order the Commission to pay the costs. In his reply, the applicant further claims that the Court should, in the alternative: (i) Order the Commission or the Council to produce the minutes relating to the failure to replace Mr Ortoli and Mr Pisani as Members of the Commission; (ii) Order the Commission to produce the documents concerning the work of the Advisory Committee on appointments to Grades A 2 and A 3, and all the documents which preceded Opinion No 52/84 drawn up by the committee concerning the A 3 post of Head of the Division for Energy, Chemicals, Agricultural Products and Foodstuffs; (iii) Order the Commission to produce Mr Mensching's periodic reports.
2. The Commission claims that the Court should : (i) Dismiss the application as unfounded; (ii) Make an order as to costs as prescribed by the law.
3. 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.
III — Submissions and arguments of the parties during the written procedure
1. In his first submission, the applicant daims that the Commission was not, at the time of the contested decision, validly constituted within the meaning of the fourth subparagraph of Article 10 (1) of the Treaty establishing a Single Council and a Single Commission of the European Communities, since at that time it no longer had any French Members, owing to the resignation of Mr Ortoli and Mr Pisani. It was therefore not, as constituted, entided to decide on applications by French officials and to take important decisions, such as that concerning the appointment in question, which were not of an urgent nature. According to the applicant, the Commission acted precipitously in order to appoint a member of the private office of one of the Members of the Commission, in order to prevent the new Commission, which was taking up its duties on 5 January 1985, from having an opportunity of considering that question. In that connection the applicant questions whether the minutes of the Council meetings on 6 December and 11 December 1985 whose production he claims that the Court should order, concerning the Council's decision not to replace the two French Members of the Commission who had resigned, did not provide for restrictions on the Commission's powers. The Commission considers that the contested decision was adopted within the normal period and denies that it intended to give preference to a member of the private office of a Member of the Commission. It stresses that the rule on the composition of the Commission contained in the fourth subparagraph of Article 10 (1) cannot interfere with the overriding principle of continuity in the public service. The second paragraph of Article 12 of the Treaty establishing a Single Council and a Single Commission expressly permits the Council not to replace a Member whose duties end before the expiry of his term of office. In such a case, the functioning of the Commission is not interrupted and the validity of the measures adopted during that period is not affected. The Commission refers in that regard to the Council's reply to Written Question No 1942/84 of the European Parliament (Official Journal 1985, C 135, p. 25).
2. In his second submission, the applicant claims that the Commission, on grounds of nationality, appointed to the post in question a candidate who did not satisfy the requirements laid down in the vacancy notice, in breach of Article 7 (1) of the Staff Regulations of Officials. He claims that Mr Mensching could not, from his previous activities, have acquired the experience necessary, namely knowledge of one or more of the competition sectors concerned as required by the vacancy notice; that is in his view demonstrated by the successive organization plans of the Commission from 1970 to 1984, from which it is clear that Mr Haferkamp, for whom he was working, was concerned only with questions which had nothing to to with competition, such as energy policy and the creation of an internal market through harmonization of laws. Furthermore, while he was assisting the Director-General for Competition, Mr Mensching was concerned in particular with administrative and personnel matters and problems concerning aid. It would appear that he spent only about 2% of his time dealing with individual cases on the application of Articles 85 and 86 of the EEC Treaty in the sectors concerned. In order to verify whether the Commission used its discretion correctly in that regard, it is necessary to ascertain the content of Mr Mensching's periodic reports, whose production the applicant requests. Unlike Mr Mensching, the applicant clearly satisfied the requirements laid down in the vacancy notice, as is shown by his flattering periodic reports and by the fact that he was entrusted with the duties of the head of the division in question. In that regard, the applicant is particularly critical of the fact that the note of 1 October 1984 entrusting him with those duties was not submitted to the Commission when it decided on the contested appointment. The Commission.considers that in appointing Mr Mensching to the post in question it manifestly remained within the bounds of its discretion. Mr Mensching satisfied the requirements laid down in the vacancy notice because he had dealt with questions concerning energy and competition when he was a member of Mr Haferkamp's Cabinet and, as the assistant to the Director-General for Competition, had undertaken duties in all spheres of competition, as is clear from his periodic reports. In the Cabinet of a Member of the Commission, Mr Mensching followed all the activities of the institution, thus demonstrating his qualities of intelligence, method and versatility; he also proved his ability to manage staff. The applicant's career also shows that he has the required qualifications. However, contrary to what the applicant maintains, the fact that he performed the duties of head of the division in question may not be taken into consideration because he did so merely because he was the most senior official in the highest grade, as prescribed by the internal rules of the Commission, and not as a result of a decision of the appointing authority; that is why the note in question is not relevant to the contested decision. It was for the appointing authority alone to assess the competence and abilities of the candidates. The Commission stresses in that regard that the Advisory Committee on appointments to Grades A 2 and A 3 took the view that consideration should be given to Mr Mensching, but not to the applicant, and the allegation that he was chosen on grounds of nationality is contradicted by the fact that Germans are overrepresented in the Directorate-General for Competition. Mr Mensching was chosen because the appointing authority, in the proper exercise of its discretion, considered his merits and abilities to be superior.
3. In his third submission, the applicant claims that the Commission did not itself consider the comparative merits of the candidates, in breach of Article 45 of the Staff Regulations of Officials. In his view the Commission based itself solely on the examination of the applications by the Directorate-General for Personnel and Administration and on the opinion of the Advisory Committee on appointments to Grades A 2 and A 3, a committee whose functioning is contrary to Article 45 of the Staff Regulations. Furthermore, the applications were considered on an erroneous basis in so far as his file did not state that he had been entrusted with the duties in question and that he was therefore the only candidate who had already performed those duties. Lastly, on 19 December 1985 the Commission did not yet have at its disposal the periodic report for 1983 to 1985. The Commission points out that, after being examined by the Directorate for Personnel and Administration, all the applications were circulated among the Members of the Commission. It is clear from the minutes of the Commission's meeting that it itself undertook a consideration of the comparative merits of the candidates. The Advisory Committee on Promotions, whose opinion was also submitted to the Commission, is a consultative body created by a Decision of 23 July 1980 and composed of the Secretary-General, the Director-General for Personnel and Administration, a Director-General appointed by the President of the Commission and a representative of the Member of the Commission responsible for Personnel and Administration, which delivers an opinion on the competence and ability of the various candidates as regards the qualifications required for the post to be filled. Unlike a temporary appointment decided on by the appointing authority pursuant to Article 7 of the Staff Regulations, the mere fact of acting as head of division in automatic application of the internal rules has no effect on the assessment of merits. There was no delay in drawing up the applicant's periodic report for 1983 to 1985, and he was therefore not adversely affected by the fact that the contested decision was adopted before that report was drawn up.
4. In his fourth submission, the applicant claims that the Commission misused its powers by seeking to give preference to someone who had worked for a Member of the Commission rather than a career official. Such practices on the part of the Commission give rise to widespread ill-feeling amongst the staff. In this case, the fact that there was a misuse of powers is established by a collection of presumptions and circumstances. In that regard, the applicant refers in particular to the exceptional haste with which the Commission acted, in the absence of any French Members, when the new Commission was to take up its duties on 5 January 1985. The promotion of a person working in the priyate office of a Member of the Commission is in itself suspect; it was part of a ‘package deal’ intended to reward various assistants of Members of the Commission. At the same meeting on 19 December 1984 the Commission also adopted a decision to appoint another official which it subsequently had to revoke because it had been adopted erroneously. The predetermined candidate who was assigned to the post did not satisfy the requirement laid down. According to the Commission, the applicant has not produced any specific evidence to show that it adopted its decision on the basis of considerations other than the merits of the candidates and the interests of the service and that it sought to give preference to a person working in the private office of a Member of the Commission. It considers that the legality of a promotion may be assessed only by reference to the circumstances of the individual case and no account may be taken of factors extraneous to the case, such as those referred to by the applicant. The Commission also denies that it acted in haste in making the appointment in question and considers that the applicant's argument based on the absence of any French Member when the contested decision was adopted is contrary to the principle that Members of the Commission are independent of the Member States of which they are nationals.
U. Everling
Judge-Rapporteur
1 Language of the Case: French.