JUDGMENT OF THE COURT OF FIRST INSTANCE (Third Chamber)

20 September 2001

Case T-95/01

Gerald Coget and Others

v

Court of Auditors of the European Communities

‛Officials — Post of Secretary-General — Call for applications — ‘High level’ experience — Wide discretion of the institution — Call to interview’

Full text in French   II-879

Application for:

annulment of the decision of the Court of Auditors of 22 February 2001 to appoint Michel Hervé to the post of Secretary-General of the institution with effect from 1 July 2001.

Held:

The application is dismissed. The parties are to bear their own costs, including those arising from the two applications for interim relief.

Summary

1. Officials — Actions — Interest in bringing proceedings — Action for annulment of an appointment of a member of the temporary staff, brought by an official after refusing to take part in the procedure leading to the appointment — Inadmissibility of the action — Conditions

   (Staff Regulations, Arts 90 and 91)

2. Officials — Temporary staff — Temporary staff in Grade A 1 as referred to in Art. 2(a) of the Conditions of Employment of Other Servants — Recruitment — Choice of methods of organising the selection procedure and conduct of that procedure — Discretion of the authority authorised to conclude contracts of engagement — Call for applications — Purpose — Conditions for admission

   (Conditions of Employment of Other Servants, Art. 2(a); Staff Regulations, Art. 5(1))

3. Officials — Temporary staff — Temporary staff in Grade A 1 as referred to in Article 2(a) of the Conditions of Employment of Other Servants — Recruitment — Qualifications in the call for applications — ‘High level’ professional experience — Discretion of the authority authorised to conclude contracts of engagement — Conditions — Judicial review

   (Conditions of Employment of Other Servants, Arts 2(a), 10 and 12; Staff Regulations, Arts 5(4), second subpara., and 27)

4. Officials — Temporary staff — Recruitment — Call for applications — Examination of the professional experience of the candidates — Discretion of the authority authorised to conclude contracts of engagement — Judicial review — Limits

5. Officials — Temporary staff — Recruitment — Procedure — Pre-recruitment interview — Post of Secretary-General of the Court of Auditors — Special selection procedure

   (Rules of Procedure of the Court of Auditors, Art. 12)

1.  An official who has voluntarily decided not to apply for a vacant post and has thus refused to take part in the appointment procedure cannot then challenge the appointment of a third party, made as the result of a procedure which has followed its normal course. That principle applies mutatis mutandis where the applicant has voluntarily decided not to respond to a call for applications for the selection of a member of the temporary staff.

   (see para. 38)

   See: 252/81 Macevicius v Parliament [1983] ECR 867, para. 10

2.  Since the procedures and obligations relating to the recruitment of officials do not apply to the recruitment of a member of the temporary staff in Grade A 1, as referred to in Article 2(a) of the Conditions of Employment of Other Servants, the authority authorised to conclude contracts of engagement has a very wide discretion both in the choice of the methods of organising the selection procedure and in the conduct of that procedure. In particular, an institution is not obliged to publish any form of call for applications for the recruitment of its secretary-general. Consequently, although it is true that, just as a notice of vacancy is binding on the appointing authority, the authority authorised to conclude contracts of engagement is obliged to comply with the conditions laid down in the call for applications which it chooses freely to issue, it cannot be a ground of complaint against it that it did not provide a more precise and detailed description of some of the conditions set out in that call.

   Moreover, the relevant rule - that a notice of competition may lawfully merely repeat, without specifying the level of experience required for the post to be filled, the general wording of Article 5(1) of the Staff Regulations for the category to which that post belongs and thus leave it to the Selection Board to decide in each case whether the qualifications and diplomas produced and the professional experience claimed by each candidate correspond to the level required by the Staff Regulations, and therefore by the notice, for the performance of the duties in question - is a fortiori transposable where the post in question is a high level temporary staff post for which an institution has freely decided to use the procedure of a call for applications.

   (see paras 56, 58, 69)

   See: 225/87 Belardinelli and Others v Court of Justice [1989] ECR 2353, paras 13 and 14; T-46/89 Pitrone v Commission [1990] ECR II-577, para. 26; T-21/98 Leite Mateus v Commission [1999] ECRSC I-A-25 and II-107, para. 31

3.  For the recruitment of an institution's secretary-general, who is a member of the temporary staff in Grade Al, the authority authorised to conclude contracts of engagement has, subject to the prohibition of discrimination, a very wide discretion in the interpretation of the call for applications which it has chosen freely to issue and, in particular, to decide whether the professional experience claimed by each candidate corresponds to the level required by that call, and, therefore, to determine what must be understood by ‘high level’ experience. That assessment cannot be called in question, except in the event of manifest error.

   Moreover, the concept of ‘high level’ experience is not defined in the Staff Regulations, the Conditions of Employment of Other Servants or Decision 98/47 of the Court of Auditors laying down general provisions for the implementation of the second subparagraph of Article 5(4) of the Staff Regulations, describing the duties and powers attaching to each basic post in the various grades. There is no justification for maintaining that the expression ‘high level’ refers only to European Civil Service Grades A 2 and A 3. That is a fortiori the case where both candidatures internal to the Community institutions and external candidatures are to be assessed.

   Under Article 27 of the Staff Regulations and Article 12 of the Conditions of Employment of Other Servants, recruitment and engagement must be directed to securing for the institution the services of officials and servants of the highest standard of ability, efficiency and integrity. According to Article 5 of the Staff Regulations, which, pursuant to Article 10 of the Conditions of Employment of Other Servants, applies by analogy to the classification of temporary staff, Category A includes the highest-ranking posts and comprises eight grades, divided into career brackets ordinarily containing two grades each for staff engaged in administrative and advisory duties.

   Grades A 4 and A 5 correspond to the basic posts of principal administrator and can therefore be regarded as ‘high level’. Since the Staff Regulations and the Conditions of Employment of Other Servants require all officials in Category A to have university education and potential management qualities, it is consistent with those prescribed characteristics to take the view that an official who, in addition, has unquestionable experience in Grades A 7 and A 6 can properly be regarded as ‘high level’ when he reaches Grade A 5 and above.

   In any event, an institution cannot be considered to have made a manifest error of assessment when it took the view, in the interests of placing all internal and external candidates possessing many types of experience in diverse fields on an equal footing, that experience acquired in the European Civil Service Grades A 4 and A 5 could be taken into account as the ‘high level’ professional experience required in the call for applications.

   (see paras 85-88, 113)

   See: 198/87 Kerznann v Court of Auditors [1989] ECR 2083, paras 19 and 20; T-20/89 Moritz v Commission [1990] ECR II-769, para. 29; T-160/89 and T-161/89 Kalavros v Court of Justice [1990] ECR II-871 ; T-586/93 Kotzonis v ESC [1995] ECR II-665, para. 81; T-589/93 Ryan-Sheridan v EFILWC [1996] ECRSC I-A-27 and II-77, para. 75; T-178/95 and T-179/95 Picciolo and Caló v Committee of the Regions [1997] ECRSC I-A-51 and II-155, para. 95; T-203/97 Forvass v Commission [1999] ECRSC I-A-129 and II-705, para. 45

4.  The authority authorised to conclude contracts of engagement has a wide discretion, in particular where the post to be filled is a Grade A 1 or A 2 post, to decide whether the professional experience claimed by each candidate corresponds to the level required by the call for applications which it was, moreover, not obliged to issue. That assessment cannot be called in question, except in the event of a manifest error.

   (see para. 113)

   See: Kerzmann v Court of Auditors, cited above, paras 19 and 20; Moritz v Commission, cited above, para. 29; Kalavros v Court of Justice, cited above; Kotzonis v ESC, cited above, para. 81; Ryan-Sheridan v EFILWC, cited above; Picciolo and Caló v Committee of the Regions, cited above, para. 95; Forvass v Commission, cited above, para. 45

5.  There is no provision in the Staff Regulations which grants to a candidate in a recruitment procedure the right to an interview with his potential immediate superior or which establishes an obligation to call the person concerned to such an interview as a matter of course. The authority authorised to conclude contracts of engagement cannot therefore be obliged to arrange interviews with the candidates for a post unless, and in so far as, such an obligation arises from the legal framework which it has established for itself.

   Moreover, although the holding of interviews with candidates for a post to be filled may constitute an important aspect of the procedures for appointing or promoting officials, or even of the recruitment of certain members of the temporary staff, in so far as the interview facilitates consideration of their comparative merits, the same does not apply to the procedure for the selection of the Secretary-General of the Court of Auditors, which is quite different from those mentioned above. Far from requiring any consideration of comparative merits, the only provision relating to the recruitment of the Secretary-General, namely Article 12 of the Rules of Procedure of the Court of Auditors, lays down that he is to be appointed by the Court following an election by secret ballot.

   (see paras 136-138)

   See: T-118/95 Anacoreta Correia v Commission [1996] ECRSC I-A-283 and II-835, para. 36