C-107/90

Report for the Hearing in Case C-107/90

CELEX: 61990CJ0107
Datum: 1992-01-17
Källa: eur-lex.europa.eu

I — Facts and procedure before die Court of First Instance

The following appears from the judgment of the Coun of First Instance of 14 February 1990 in Case T-38/89 Hochbaum v Commission [1990] ECR II-43:

‘1. Following the publication in 1984 of Vacancy Notice COM/902/84, Mr Hochbaum, an official of the Directorate-General for Competition (DG IV) at the Commission, submitted an application ... for the post of Head of the State Monopolies and Public Enterprises Division. When the Commission appointed another candidate, Mr Waterschoot, to the post in question, Mr Hochbaum brought an action for the annulment of that appointment. 2. By judgment of 9 July 1987, the Court of Justice annulled the contested appointment and, with h, the Commission's decision rejecting the applicant's application for the post, inter alia on the ground that the Advisory Committee on Appointments to Grades A 2 and A 3 (hereinafter referred to as the “Noel Committee”, after the name of its President at the time) had not been consulted on the basis of complete application files (Joined Cases 44, 77, 294 and 295/85, Hochbaum and Rawes v Commission [1987] ECR 3259). 3. In the light of that judgment, the Commission recommenced the recruitment procedure ... and sought anew the opinion of the Noël Committee on all the applications submitted in 1984 under Vacancy Notice COM/902/84. Subsequently, in line with the Noël Committee's opinion which suggested that a fresh vacancy notice should be published “so as to enable the appointment procedure to be completed with the greatest possible transparency as required by the Court of Justice’, the Commission decided to cancel the aforementioned vacancy notice and to initiate a fresh procedure to fill the post in question by the publication, on 7 August 1987, of Vacancy Notice COM/83/87. ... Mr Hochbaum and ten other officials submitted applications under the new vacancy notice and, on 15 October 1987, after consulting the Noël Committee, the Commission appointed Mr Waterschoot to be Head of Division. 4. In the meantime Mr Hochbaum had on 18 September 1987 lodged a complaint under Article 90(2) of the Staff Regulations of Officials (hereinafter referred to as the “Staff Regulations”) against the Commission's decisions, referred to in the preceding paragraph, cancelling Vacancy Notice COM/902/84 as a result of the abovementioned judgment of the Court of Justice and opening vacancy COM/83/87 for the post in question. Six months later, by a decision of 17 March 1988, which was notified to the applicant on 15 April, the administration rejected that complaint.’

Under those circumstances, on 6 July 1988 Mr Hochbaum brought an action in which he claimed that the Court of First Instance should:

declare null and void:

a) the Commission's decision cancelling Vacancy Notice COM/902/84;

b) as far as might be necessary, the implied decision rejecting the applicant's application for the post of Head of the State Monopolies and Public Enterprises Division declared vacant under Vacancy Notice No COM/902/84;

c) the adoption by the Commission and subsequent publication on 31 July 1987 of Vacancy Notice COM/83/87 relating to the A 3 post of Head of the State Monopolies and Public Enterprises Division, implementation of Articles 101 and 102, in the Directorate-General for Competition (DG IV) together with any other subsequent decisions adopted by the Commission under that unlawful procedure including the ‘fresh’ (third) appointment of Mr Waterschoot;

d) as far as may be necessary, the express rejection by the Commission of the administrative complaint lodged by the applicant on 16 November 1987 and registered at the Secretariat-General under number 3194/87;

order the defendant to pay the sum of 1 franc on a provisional basis on account of damages to be assessed subsequently;

order the defendant to pay the costs together with the other costs necessarily incurred for the purposes of the proceedings.

The defendant claimed that the Court of First Instance should:

declare the application inadmissible, or at least, ill founded;

make an order as to costs in accordance with law.

In support of his action before the Court of First Instance, Mr Hochbaum put forward three pleas in law, alleging infringement of Article 176 of the Treaty, infringement of Article 25 of the Stan Reguladons of Officials and misuse of powers.

In its judgment the Court of First Instance held as follows:

‘; ... 21. The third submission is that the Commission misused its powers by publishing Vacancy Notice COM/83/87 in order to seek to give a semblance of legality to the decision appointing Mr Waterschoot. In reality, it is said that that decision had been taken before the publication of the abovementioned notice, the formal decision to appoint following only later without any actual comparative examination of the merits of the candidates. 22. However, as the Court of Justice has already held (see the abovementioned Vládnu judgment), a misuse of powers is deemed to exist only if it is proven that the appointing authority, in adopting the contested decision, was pursuing an objective other than that pursued by the rules in question. Consequently it is for the Court of First Instance to ascertain whether in the present case the applicant has produced proof that the appointing authority pursued an objective other than the interests of the service in adopting the contested decisions. 23. In that connection the applicant essentially alleges that the Commission cancelled the procedure which had been started and published a fresh vacancy notice in order to arrogate to itself the right to take into account the experience acquired by Mr Waterschoot following the annulment of his unlawful appointment as Head of Division. In support of his argument, he alleges more specifically that, at the time when the first vacancy notice was published, Mr Waterschoot did not satisfy the qualifications required for submitting a valid application. 24. It should be recalled that the appointing authority has a discretionary power of appraisal in matters of promotion and the Community judicature must limit its review to the question whether the appointing authority has used its power in a manner which is manifestly wrong (see, in particular, the judgment of 22 June 1989 in Case 104/88 Brus v Commission [1989] ECR 1873, paragraph 17). In the present case, there is no objective indication in the documents before the Court of First Instance that, prior to performing the tasks of Head of the Sute Monopolies and Public Enterprises Division, Mr Waterschoot did not satisfy the conditions required for submitting his application for the post in question. 25. It should, moreover, be pointed out that, even if the Commission did take account of the experience acquired by Mr Waterschoot following his first appointment, that does not mean that that institution acted with any objective in mind other than the interests of the service, in such a way as to commit a misuse of powers. 26. Consequendy, the proof required to establish a misuse of powers on the pan of the defendant has not been adduced. Accordingly, the third submission must be rejected. ...’

II — Subject-matter of the appeal and forms of order sought

By application lodged at the Registry of the Court of Justice 17 April 1990, Ingfried Hochbaum brought an appeal against the abovementioned judgment of the Court of First Instance, which had been notified to him on 15 February 1990, on the ground that it had been delivered in breach of Community law.

By order of 10 October 1990, the Court of Justice granted leave to Union Syndicale — Brussels to intervene in support of the forms of order sought by Mr Hochbaum.

Mr Hochbaum claims that the Court of Justice should:

set aside the contested judgment in its entirety;

and, granting the forms of order sought by the applicant at first instance, annul:

a) the Commission's decision cancelling Vacancy Notice COM/902/84;

c) the adoption by the Commission and subsequent publication on 31 July 1987 of Vacancy Notice COM/83/87 relating to the A 3 post of ‘Head of the Sute Monopolies and Public Enterprises Division, implementation of Articles 101 and 102,’ in the Directorate-General for Competition (DG IV) together with any other subsequent decisions adopted by the Commission under that unlawful procedure including the ‘fresh’ (third) appointment of Mr Waterschoot;

order the defendant to pay the sum of 1 franc on a provisional basis on account of damages to be assessed subsequently;

order the defendant to pay the costs together with the other costs necessarily incurred for the purposes of the proceedings.

The Commission contends that the Court of Justice should:

dismiss the appeal;

make an order as to costs in accordance with the Staff Regulations.

III — Summary of the parties' pleas in law and arguments

By his first plea in law, Mr Hochbaum alleges infringement of Article 45 of the Staff Regulations, the first paragraph of which provides:

‘Promotion shall be by decision of the appointing authority. It shall be effected by appointment of the official to the next higher grade in the category or service to which he belongs. Promotion shall be exclusively from among officials who have completed a minimum period in their grade, after consideration of the comparative merits of the officials eligible for promotion and of the reports on them.’

In support of that plea, Mr Hochbaum maintains first that the judgment of the Court of First Instance disregards the limits governing the Court's review of the exercise of the discretion conferred on the appointing authority by Article 45. It is apparent from the judgment of the Court of Justice in Case C-343/87 C ulin v Commission [1990] ECR I-225 that although the appointing authority has a wide discretion in comparing the merits of the candidates for promotion, it must exercise it within the self-imposed limits contained in the vacancy notice. In the appellant's view, it follows that the Court of First Instance should have considered whether the candidate selected by the appointing authority possessed all the qualifications required by vacancy notice COM/902/84.

Union Syndicale, the intervener, also refers to the judgment in Culin cited above in support of its view that the Court of First Instance was under an obligation to check whether all the candidates considered by the Advisory Committee on Appointments possessed the required qualifications. By failing to do so, the Court of First Instance contravened the principles laid down by the case-law.

According to the Commusion, the contested judgment merely refers to the consistent case-law of the Court of Justice according to which the Court's review should be limited to whether the appointing authority exercised its power improperly. The Commission queries whether Mr Hochbaum considers that the selection of the successful candidate is governed and determined in every respect by the vacancy notice. That cannot be the case since the conditions applicable to the promotion procedure still allow the appointing authority an absolute power of appraisal regarding both the consideration, in the case of each candidate, of the qualifications required and the final selection of the person to be appointed.

Mr Hochbaum then submits (again in support of his first plea) that paragraph 24 of the judgment of the Court of First Instance does not provide an adequate answer to the arguments put forward by him in his submissions to that court, namely that at the time of publication of Vacancy Notice COM/902/84 Mr Waterschoot did not possess the prescribed qualifications and that the decision to cancel that notice and publish a new one was thus taken in order to enable the appointing authority to take account of the experience acquired by Mr Waterschoot following his unlawful appointment to the post of head of division. According to Mr Hochbaum, the Court of First Instance was wrong not to verify the truth of the specific statements made concerning Mr Waterschoot's qualifications.

Union Syndicale shares the view that the grounds of the judgment of the Court of First Instance do not constitute a lawful and adequate response to the pleas in law made by Mr Hochbaum. It observes that in the documents submitted to the Court of First Instance, Mr Hochbaum demonstrated that Mr Waterschoot did not fulfil the conditions laid down by the vacancy notice. Moreover, the Commission conceded that the appointing authority did not adopt, as the decisive factor in its selection, the requirements of the notice.

According to the Commission, the second limb of the first plea in lav challenges the Court of First Instance's appraisal of the reasons underlying the appointing authority's decision to cancel the procedure which had been commenced and to publish a new vacancy notice. That appraisal, being one of pure fact, cannot be referred to the Court of Justice by virtue of Article 51 of its Statute.

Whilst conceding that the distinction between fact and law is difficult to draw and that, under French administrative law, an appeal court is competent to verify the material existence and exactitude of the facts relied on by the lower court for its decision, as well as the legal classification of them, the Commission considers that the Court of Justice should not undertake an examination of the actual intention of the appointing authority which, being a matter of pure fact, is not susceptible to review by an appellate court.

Moreover, the Commission considers that the Court of First Instance gave a sufficient statement of reasons for that part of its judgment (in particular at the end of paragraph 24). The judgment implicitly recognizes that Mr Waterschoot possessed qualifications required by the vacancy notice, thus dismissing Mr Hochbaum's argument that the knowledge of problems concerning Sute monopolies could be acquired only by people who had already assumed responsibilities in that area.

The second plea in law advanced by Mr Hochbaum in support of his appeal is that a misuse of power was committed. Misuse of powers lies, in his view, not in the manner in which the power is exercised but in the purpose of its exercise. It was therefore incumbent upon the Court of First Instance to decide whether the appointing authority exercised its discretion with a view to appointing the most suitable person for the functions of head of division. To that end, the Court of First Instance should have established whether the fact of taking account of relevant experience acquired by virtue of an unlawful appointment constituted a misuse of power. By failing to do so, the Court of Fust Instance did not determine what was the aim actually pursued by the appointing authority's abandonment of the procedure under vacancy notice COM/902/84.

Union Syndicale submits that it is apparent from objective factors that the appointing authority did not exercise its discretion with a view to appointing the most suitable person for the functions of head of division. In that regard it cites the general assessment contained in Mr Hochbaum's surf report for the period 1 July 1987 to 30 June 1989 and a memoranudm dated 4 July 1990, signed by Mr Ehlermann, the Director-General of DG IV, in which he advised Mr Waterschoot to consult Mr Hochbaum on a problem concerning a State monopoly.

The Commission contends that the appellant's plea is inadmissible by virtue of Article 51 because it again invites the Court of Justice to verify a factual assessment made by the Court of First Instance which, in paragraph 26 of its judgment, took the view that Mr Hochbaum had not produced the proof required to establish a misuse of power.

As regards the substance, the Commission denies that the procedure followed by the appointing authority was blended to give a semblance of legality to the decision to appoint Mr Waterschoot. The reopening of the procedure meant that both Mr Waterschoot and Mr Hochbaum were in competition with other viable candidates. If the appointing authority's aim had really been to appoint Mr Waterschoot, continuation of the earlier procedure, after rectification of the defect to which it had been subject, would have been sufficient. The Commission observes that the Court of first Instance expressly stated that even though the Commission took account of die experience acquired by Mr Waterschoot following his first appointment, ‘that does not mean that that institution acted with any objective in mind other than the interests of the service’, and that statement specifically disposes of the arguments put forward by Mr Hochbaum concerning a misuse of power.

Gordon Slynn

Judge-Rapporteur

1 Language of the case: French.