OPINION OF ADVOCATE GENERAL

SIR GORDON SLYNN

delivered on 6 June 1985

My Lords,

Mr Pauvert was taken on as a driver by the Commission on 1 July 1973 at Grade D3. On 1 June 1978 he was transferred to the Court of Auditors at Grade D2. On 16 February 1983 the Court of Auditors published a notice of vacancy for a head driver in Grade Dl (No CC/D/1/83). One of the conditions specified was that the candidate must have fifteen years experience as a driver. The notice stated that applications for transfer should be lodged by 10 March. On 17 March the President of the Court of Auditors interviewed Mr Pauvert and in a memorandum of the same date addressed to Mr Pauvert and numbered 2517, the President confirmed that he had told Mr Pauvert that he intended to make an appointment for the post which involved certain functions and that, after examining Mr Pauvert's abilities, he was ready to proceed to nominate him to the Dl post if Mr Pauvert could confirm that he was capable of carrying out the functions specified and that he was in agreement. He stated that if Mr Pauvert was in agreement he would proceed to the nomination. The President was the appointing authority in respect of this post.

By note of 18 March 1983, the applicant confirmed that he was able to carry out the duties. Mr Pauvert had not in fact put in an application in accordance with the notice of vacancy. The only candidate who had done so was another driver who was also of Grade D2 and who, like Mr Pauvert, would need to be promoted rather than transferred to the Grade Dl post. The President subsequently learned that although Mr Pauvert had more than fifteen years working experience, he had only spent eleven years and three months working as a driver, so that he did not satisfy the requirement of fifteen years driving experience. The other driver concerned did in fact have more than fifteen years experience as a driver. As a result, the President decided that the initial vacancy notice did not satisfactorily describe the nature of the post or the qualifications which such a post really required. He accordingly caused a second notice of vacancy (No CC/D/2/83) to be published on 7 July 1983, in which the experience required was a minimum of fifteen years of which eight had to be as a driver. Requests for transfer, it was said, must be lodged by 29 July 1983.

It seems that the reason why this second notice was published, which was said to cancel and replace the first notice of 16 February 1983, was to enable Mr Pauvert to qualify as a candidate.

Both Mr Pauvert and the other driver were candidates under this notice.

Mr Pauvert asked on 6 April 1984 that the memorandum of 17 March 1983 should be included on his file but he did not ask that he be appointed nor did he complain of his non-appointment. That request was refused on 10 April 1984. A similar request of 12 April 1984 which set out the President's statement that he would proceed to a nomination (which was described in the request as changing Mr Pauvert's administrative position) was also refused on 8 May 1984.

Having considered both applications and, it seems, other possible drivers who had not in fact applied for either vacancy, together with the demands of the service, the President decided to hold an internal competition. Notice of this (No CC/D/2/84) was given on 16 May 1984, applications to be lodged by 12 June 1984. One of the qualifications required was that the applicants should have had fifteen years experience, of which at least eight should have been spent as a driver. In fact, no appointment has been made as a result of this competition.

On 27 June 1984 Mr Pauvert submitted a complaint pursuant to Article 90 (2) of the Staff Regulations following the publication of the notice of the internal competition on 16 May 1984. In that, he again referred to the statement of the President in the notice which had not been withdrawn that he would proceed to appoint Mr Pauvert to a Dl post. He accordingly asked that the decision to nominate should be submitted to this Court as to its legality. He also asked that his nomination to the post should be made official.

That document was treated as a complaint and was rejected on 12 July 1984. The memorandum rejecting the complaint accepted that Memorandum No 2517 did indeed constitute a commitment on the appointing authority's part to fill the post by promoting Mr Pauvert, after a comparative assessment of the merits of the officials who were eligible for promotion. It was said, however, that that decision had been subject to the conditions of the first vacancy notice, No CC/D/1/83, and that it was discovered that his experience did not qualify so that he could not be appointed.

The Court of Auditors, it was said, was obliged by virtue of Article 45 of the Staff Regulations to undertake a fresh comparative assessment of the merits of officials who were eligible for promotion. Since a number of officials appeared to be eligible the internal competition was held.

Mr Pauvert contends that Memorandum No 2517 constituted a valid decision or statement of intention to promote him and that once it became unconditional by his acceptance, there was no justification to go back on it. Even if he did not qualify under the terms of the first notice of vacancy, he did so under the terms of the second notice, and the undertaking to appoint him remained valid and final, especially as it had been given after an assessment of his abilities. Moreover, he contends that the failure to promote him was a breach of the principle of satisfying his legitimate expectations and of good administration.

There is no document in the file or any oral decision refusing to proceed with the appointment first promised or any request for such appointment in formal terms. I would, however, accept that the application for Memorandum No 2517 to be put in his file, though it missed the real point, does indicate that he is asking for an appointment to be made and that the refusal to do so pursuant to Memorandum No 2517, inherent in the publication of the notice of internal competition, was the subject of his complaint under Article 90 (2), as the Court of Auditors clearly accepted it to be.

However, although Mr Pauvert had not applied under the first notice of vacancy, it seems clear that the statement of intention by the President of the Court of Auditors was given in the context of that notice and subject to its terms. Curious though it may be that a person who did not apply in time should be promised the appointment, it is also clear that if Mr Pauvert had in fact qualified he would have been promoted and appointed to the post. The underlying basis of the statement of intention, however, was that Mr Pauvert qualified in fact as a candidate who had had fifteen years driving experience. That basis was proved to be erroneous before the appointment was made. Mr Pauvert must have known that he was not qualified and there is nothing to indicate that the President was prepared to, or did, waive the requirement as to fifteen years driving experience for the purposes of the first notice of vacancy.

In these circumstances, although I do not accept the argument of the Court of Auditors that this error of fact rendered the undertaking void, it seems to me that once the facts were known, the President was entitled to refuse to proceed with the undertaking, and was entitled not to make the promotion. Once the new notice of vacancy was published, albeit tailored to fit Mr Pauvert's qualifications, the proceedings in effect began again. It would have been improper for the President not to consider the two candidates who applied on their merits. He was entitled having done so to proceed to an internal competition.

Accordingly, although it is, to say the least, unfortunate that'the undertaking was given before the facts were checked, I do not consider that there has been here any illegal refusal to proceed to an appointment or promotion. Nor, since he must have known that he was not qualified (which was perhaps why he did not apply in the first place) can he establish that there has been an abuse of his legitimate expectations. The fact that a mistake was made does not in this case justify his claim that he should as a matter of good administration be appointed to a post promised on the basis of an error of fact. He had full opportunity to apply under the second notice of vacancy and the internal competition.

In my opinion, accordingly, this application should be dismissed. Despite the fact that Mr Pauvert's hopes must have been raised by the initial undertaking, I do not consider that it can be said that the Court of Auditors unreasonably or vexatiously caused him to incur the costs of these proceedings within the meaning of Article 69 (3) of the Court's Rules of Procedure.

I would order each party to bear its own costs.