61974J0077

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OFFICIALS - PERIODICAL REPORT - REPLACEMENT BY THE JUDGMENT OF A SELECTION BOARD - INADMISSIBILITY

( STAFF REGULATIONS, ARTICLE 43 )

THE JUDGMENT OF A SELECTION BOARD CANNOT TAKE THE PLACE OF THE PERIODICAL REPORT .

IN CASE 77/74

BERTHOLD KUESTER, AN OFFICIAL OF THE EUROPEAN PARLIAMENT, RESIDING AT BERTRANGE ( LUXEMBOURG ), REPRESENTED BY VICTOR BIEL, ADVOCATE OF THE COUR SUPERIEURE DE JUSTICE OF THE GRAND-DUCHY OF LUXEMBOURG, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF HIS COUNSEL, 18A RUE DES GLACIS, APPLICANT,

V

EUROPEAN PARLIAMENT, LUXEMBOURG, REPRESENTED BY ITS SECRETARY-GENERAL, HANS ROBERT NORD, AS AGENT, ASSISTED BY ALEX BONN, ADVOCATE OF THE LUXEMBOURG BAR, WITH AN ADDRESS FOR SERVICE AT THE CHAMBERS OF ITS COUNSEL, 22 COTE D'EICH, DEFENDANT,

APPLICATION FOR THE ANNULMENT OF INTERNAL COMPETITION A/45 AND OF THE APPOINTMENT MADE THEREUNDER .

1 BY ACTION BROUGHT ON 16 OCTOBER 1974 UNDER ARTICLE 91 OF THE STAFF REGULATIONS, THE APPLICANT ASKS THE COURT TO ANNUL THE IMPLIED REJECTION BY THE EUROPEAN PARLIAMENT OF HIS COMPLAINT OF 17 MARCH 1974 AND CONSEQUENTLY TO ANNUL THE APPOINTMENT OF MR GERARD KIEFFER WHICH TOOK PLACE ON 14 FEBRUARY 1974 AS A RESULT OF COMPETITION A/45 .

2 IN SUPPORT OF HIS CONCLUSIONS HE SUBMITS INTER ALIA THAT THE CRITICIZED APPOINTMENT IS IRREGULAR SINCE THE SELECTION BOARD IN RELATION TO THE COMPETITION HAD, UNDER THE HEADING 'GENERAL REPORTS AND PROFESSIONAL ASSESSMENTS WITHIN THE COMMUNITY INSTITUTIONS' ATTRIBUTED POINTS TO THE APPOINTED CANDIDATE, FOR WHOM NO PERIODIC REPORT IN FACT EXISTED .

3 IT IS NOT DENIED THAT THE APPOINTED CANDIDATE WAS AT THE TIME OF HIS APPOINTMENT A TEMPORARY SERVANT AND THAT HE HAD NOT, BY REASON OF THIS FACT, BEEN THE SUBJECT OF A REPORT .

4 NEVERTHELESS IT IS SHOWN BY THE DETAILS WHICH WERE FURNISHED BY THE CHAIRMAN OF THE SELECTION BOARD IN THE COURSE OF THE ORAL PROCEDURE THAT THE SELECTION BOARD HAD, ON THE BASIS OF THE AFOREMENTIONED CRITERION OF SELECTION, ACCORDED THIS CANDIDATE SEVEN POINTS OUT OF TEN .

5 WHILST THERE IS NOTHING TO PREVENT THE ADMISSION OF TEMPORARY SERVANTS TO INTERNAL COMPETITIONS, IT IS NOT CORRECT TO ATTRIBUTE TO THEM FICTITIOUS MARKS WHEN, BY REASON OF THEIR LEGAL POSITION THEY DO NOT COMPLY WITH ONE OF THE CRITERIA OF SELECTION APPLIED .

6 BESIDES, WHILST IT IS TRUE THAT THE HEADING UNDER WHICH THE MARKS IN QUESTION WERE GRANTED IS NOT ONLY THAT OF 'GENERAL REPORTS' BUT ALSO THAT OF 'PROFESSIONAL ASSESSMENTS WITHIN THE COMMUNITY INSTITUTIONS', IT NONETHELESS REMAINS A FACT THAT THE CONDITIONS WHICH THE STAFF REGULATIONS PLACE UPON THE PREPARATION OF THE PERIODIC REPORT EXCLUDE THE POSSIBILITY OF THIS BEING REPLACED BY THE JUDGMENT MADE BY A SELECTION BOARD .

7 MOREOVER, IT IS SHOWN BY THE INFORMATION SUPPLIED AT THE HEARING THAT THE NUMBER OF POINTS ATTRIBUTED UNDER THIS HEADING EXPRESSES AN ARITHMETIC VALUE AND AT THE SAME TIME A GLOBAL ASSESSMENT OF THE INDIVIDUAL QUALITIES OF THE CANDIDATE, VERY DIFFERENT FROM THAT WHICH FORMS THE BASIS OF THE PERIODIC REPORT .

8 IN THESE CIRCUMSTANCES THIS MARKING MUST BE CONSIDERED IRREGULAR FROM THE POINT OF VIEW OF THE STAFF REGULATIONS AND OF SUCH A KIND AS TO INVOLVE THE ANNULMENT OF THE APPOINTMENT .

9 AS IS SHOWN BY THE SELECTION BOARD'S REPORT ANNEXED TO THE STATEMENT OF DEFENCE, THE APPOINTED CANDIDATE COULD NOT, IN THE ABSENCE OF THE MARKING IN QUESTION, HAVE ACHIEVED THE NUMBER OF POINTS TREATED AS THE MINIMUM FOR INCLUSION IN THE LIST OF SUITABLE CANDIDATES .

10 THUS THE IRREGULARITY REFERRED TO, WHICH, AFFECTS THE VALIDITY OF THE APPOINTMENT IN QUESTION, CAUSES PREJUDICE TO THE APPLICANT .

11 THERE BEING NO NEED TO EXAMINE THE OTHER CLAIMS IN THE ACTION, THE APPOINTMENT OF MR GERARD KIEFFER RESULTING FROM COMPETITION A/45 MUST THEREFORE BE ANNULLED .

12 BY ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .

13 THE DEFENDANT HAS FAILED IN ITS PLEA .

14 THE DEFENDANT MUST THEREFORE BE ORDERED TO PAY THE COSTS OF THE PROCEEDINGS .

THE COURT ( FIRST CHAMBER )

HEREBY :

1 . ANNULS THE APPOINTMENT OF MR GERARD KIEFFER RESULTING FROM COMPETITION A/45;

2 . ORDERS THE DEFENDANT TO PAY THE COSTS .