Keywords
Summary

Keywords

1. Officials — Recruitment — Procedures — Passage from the procedure under Article 29(1) of the Staff Regulations to the procedure under Article 29(2) of the Staff Regulations — Whether permissible — Discretion of the appointing authority to extend its options — (Staff Regulations, Art. 29)

2. Officials — Recruitment — Recruitment under Article 29(2) of the Staff Regulations — Content of the candidate's file — Production in defence before the Court of First Instance of documents certifying the qualifications of the candidate selected drawn up after the decision to appoint — Whether permissible

3. Appeals — Pleas in law — Incorrect assessment of the facts — Inadmissible — Review by the Court of Justice of assessment of evidence — Excluded unless the sense of evidence has been distorted — (Art. 225 EC; Statute of the Court of Justice, Art. 58)

4. Officials — Actions — Pleas in law — Misuse of powers — Definition

Summary

1. Since the appointing authority has a wide discretion, where a vacant post is to be filled, for the purpose of finding the candidates with the highest standard of ability, efficiency and integrity it may go on from one stage of the recruitment procedure to another even if it has received valid applications in the first stage.

The use of the formulation "whether ... can" in Article 29(1) of the Staff Regulations clearly indicates moreover that the appointing authority is not bound absolutely to fill that post by way of promotion or transfer, but merely to consider in each case whether those measures are capable of resulting in the appointment of a person of the highest standard of ability, efficiency and integrity.

It follows that the appointing authority may decide to go on to the recruitment procedure provided for by Article 29(2) of the Staff Regulations, even where there are one or more candidates who satisfy all the conditions and requirements set out in the vacancy notice for the post to be filled. Moreover, that decision need not necessarily be taken when the vacancy notices are published and need not be published. Similarly, the fact that applicants for the internal recruitment procedure were not informed of the recourse to the recruitment procedure open to outside candidates could not constitute a breach of Article 29(2) where the first applicants were taken into account in the new procedure and the conditions required by the notice of vacancy were not altered.

see paras 14-17, 19

2. It is true that the legality of a decision on recruitment must be appraised in the light of the information available to the appointing authority when it adopted that decision. However, in recruitment procedures under Article 29(2) of the Staff Regulations, candidates are not required to produce documents certifying their qualifications or other documentary evidence, nor must the appointing authority have on the file, when the decision is taken, documents confirming the information it has.

see para. 28

3. Under Article 225 EC and Article 58 of the Statute of the Court of Justice, an appeal lies on points of law only and, therefore, the Court of First Instance alone has jurisdiction to find and appraise the facts, save where the factual inaccuracy of its findings results from the documents in the case before it. The appraisal of the facts by the Court of First Instance does not constitute, save where the clear sense of the evidence produced before it is distorted, a question of law which is subject, as such, to review by the Court of Justice.

see para. 35

4. The concept of misuse of powers has a precise scope and refers to the use of powers by an administrative authority for a purpose other than that for which they were conferred on it. A measure is only vitiated by misuse of powers if it appears, on the basis of objective, relevant and consistent evidence, to have been taken with the exclusive or main purpose of achieving an end other than that stated or evading a procedure specifically prescribed.

see para. 46