Keywords
Summary

Keywords

++++

1 . Officials - Recruitment - Vacant post - Filling of post - Procedures - Discretionary power of the institutions - Limits - Post involving the exercise of a power to take decisions - Choice of one of the legal procedures laid down in the Staff Regulations or the Conditions of Employment of Other Servants

2 . Officials - Actions - Interest in bringing proceedings - Person to whom a judgment annulling a measure is addressed - Action against an act of an institution adopted to comply with the judgment of the Court - Admissibility

( Staff Regulations of Officials, Art . 91 )

3 . Officials - Recruitment - Engagement of a member of the temporary staff - Engagement for the purpose of regularizing the position of the person concerned after the annulment of his appointment as an official - Misuse of power - Illegality

4 . Officials - Recruitment - Procedures - Choice - Discretionary power of the administration - Engagement of a temporary member of staff in order to fill a permanent post - Whether permissible

( Conditions of Employment of Other Servants, Art . 2(b ) )

5 . Officials - Recruitment - Notice of vacancy - Open competition procedure - Correspondence necessary between a notice of vacancy and a notice of competition

( Staff Regulations of Officials, Art . 29(1 ) )

Summary

1 . The institutions, which have a wide discretion in their choice of the most appropriate means for meeting their personnel requirements, must, however, in the case of a post involving the exercise of a power to take decisions, comply with one of the legal procedures which are laid down limitatively in the Staff Regulations or in the Conditions of Employment of Other Servants .

Consequently, if it is not possible to engage someone as an official or employee of the Communities, the institutions may not fill, even temporarily, such a post except with a deputy or by appointing an official to fill the post ad interim .

That principle may only be derogated from for compelling reasons related, in particular, to the urgency of filling a vacant post .

2 . Those to whom a judgment of the Court annulling an act of an institution is addressed are directly concerned by the way in which the institution in question seeks to comply with the judgment and are therefore entitled to bring an action against an act which was adopted in order to comply with the judgment, even if the contested act has in the mean time exhausted its effects .

3 . A member of the temporary staff may be engaged only to meet the needs of the service and not to regularize a state of affairs . Consequently, the retroactive engagement of a member of the temporary staff for the purposes of regularizing the position of the person concerned is vitiated by a misuse of powers when that person' s appointment as an official was annulled by a judgment of the Court which neither nullified the various acts which he adopted in the performance of his duties, since ostensibly he was duly appointed, nor, since he acted in good faith, deprived him of the rights he acquired in return for his services .

4 . The appointing authority has a wide discretion in filling a post and consequently, when a post is permanent, it may engage a temporary member of staff pursuant to Article 2(b ) of the Conditions of Employment of Other Servants before appointing an official to perform the duties corresponding to the post .

5 . Although, when filling a post, the appointing authority has wide discretion in comparing the candidates' merits, it must exercise it within the limits contained in the Notice of Vacancy, so that if, when the candidatures are considered, the conditions laid down in that notice are more exacting than the needs of the service demand, it may lawfully reopen the procedure by substituting a new notice of vacancy for the original notice .

Those principles must be applied all the more strictly in the case of an internal recruitment procedure as far as the correspondence between the notice of vacancy and the notice of competition is concerned . If it were open to the appointing authority to change the conditions laid down in the notice of vacancy at the notice of competition stage, it would be at liberty to organize an external recruitment procedure without having to consider internal candidates, contrary to its obligation under Article 29(1 ) of the Staff Regulations to consider internal recruitment possibilities before organizing an open competition .