61985J0044

++++

1 . OFFICIALS - ACTIONS - MEASURE HAVING ADVERSE EFFECTS - PROMOTION DECISION CONFIRMED AFTER RE-EXAMINATION - ACTION DIRECTED AGAINST ORIGINAL DECISION - ADMISSIBILITY

( STAFF REGULATIONS, ARTS 90 ( 2 ) AND 91 )

2 . OFFICIALS - PROMOTION - COMPARATIVE EXAMINATION OF MERITS - FAILURE TO TAKE ACCOUNT OF PERIODIC REPORTS OF CERTAIN CANDIDATES - IRREGULARITY CAPABLE OF BEING REMEDIED BY RE-EXAMINATION

( STAFF REGULATIONS, ART . 45 )

3 . OFFICIALS - PROMOTION - COMPARATIVE EXAMINATION OF MERITS - A*2 AND A*3 POSTS - PARTICIPATION OF A CONSULTATIVE BODY NOT PROVIDED FOR IN THE STAFF REGULATIONS - OBLIGATION TO RECONSULT WHERE THE FILE IS RE-EXAMINED - LIMITS

( STAFF REGULATIONS, ART . 45 )

1 . THE CONFIRMATION OF A PROMOTION DECISION AFTER A RE-EXAMINATION DOES NOT RENDER INADMISSIBLE AN ACTION BROUGHT BY AN UNSUCCESSFUL CANDIDATE AGAINST THE ORIGINAL DECISION .

2 . EVEN IF A PROMOTION DECISION IS VITIATED BY A PROCEDURAL DEFECT OWING TO THE FAILURE TO TAKE ACCOUNT OF THE PERIODIC REPORTS OF CERTAIN CANDIDATES AT THE TIME OF THE COMPARATIVE EXAMINATION OF MERITS, THAT IRREGULARITY CAN BE REMEDIED BY RE-EXAMINING THE FILE .

3 . THE SETTING UP BY THE COMMISSION OF AN ADVISORY COMMITTEE NOT PROVIDED FOR BY THE STAFF REGULATIONS IN ORDER TO OBTAIN AN OPINION REGARDING APPOINTMENTS TO CERTAIN POSTS IN RELATION TO THE ABILITIES AND APTITUDES OF CANDIDATES, HAVING REGARD TO THE QUALIFICATIONS REQUIRED, CONSTITUTES A MEASURE DESIGNED TO ENSURE THAT THE COMMISSION, AS APPOINTING AUTHORITY, HAS A BETTER BASIS FOR CARRYING OUT THE COMPARATIVE EXAMINATION OF THE MERITS OF THE CANDIDATES AS REQUIRED BY ARTICLE 45 OF THE STAFF REGULATIONS . ALTHOUGH THE COMMITTEE' S ROLE IS PURELY ADVISORY, ITS OPINION IS THUS ONE OF THE FACTORS ON WHICH THE COMMISSION BASES ITS OWN ASSESSMENT OF THE CANDIDATES . IT FOLLOWS THAT IF THE COMMISSION IS MOVED TO RECONSIDER AN APPOINTMENT WHICH WAS DECIDED UPON AFTER THE COMMITTEE GAVE ITS OPINION, THE COMMITTEE MUST BE RECONSULTED IN SO FAR AS THE COMMISSION' S RE-EXAMINATION OF THE FILE INVOLVES A FRESH COMPARISON OF THE MERITS OF THE CANDIDATES . HOWEVER, THE COMMISSION IS NOT OBLIGED TO DO SO IF, IN VIEW OF THE PARTICULAR CIRCUMSTANCES OF THE CASE, THE FACT OF NOT RECONSULTING THE COMMITTEE CANNOT HARM THE INTERESTS OF THE CANDIDATES IN QUESTION . THAT, HOWEVER, IS NOT THE POSITION WHERE NOT JUST ONE CANDIDATE' S PERIODIC REPORT BUT AN UNSPECIFIED NUMBER OF PERIODIC REPORTS OF SEVERAL CANDIDATES FOR THE POST AT ISSUE ARE MISSING .

IN JOINED CASES 44, 77, 294 AND 295/85

INGFRIED HOCHBAUM, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY J.-N . LOUIS, OF THE BRUSSELS BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF NICOLAS DECKER, 16 AVENUE MARIE-THERESE,

AND

EDWARD RAWES, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY B . LIESENBERG, OF THE BRUSSELS BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF A . ELVINGER, 15 COTE D' EICH,

APPLICANTS,

V

COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, D . GOULOUSSIS, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE AT THE OFFICE OF G . KREMLIS, A MEMBER OF ITS LEGAL DEPARTMENT, JEAN MONNET BUILDING, KIRCHBERG,

DEFENDANT,

APPLICATION FOR, INTER ALIA, THE ANNULMENT OF THE DECISIONS OF THE COMMISSION OF 30 MAY 1984 AND 30 JANUARY 1985 MAKING AN APPOINTMENT TO THE POST OF HEAD OF THE STATE MONOPOLIES AND PUBLIC ENTERPRISES DIVISION FOLLOWING VACANCY NOTICE COM/902/84,

THE COURT ( SECOND CHAMBER )

COMPOSED OF : T.*F . O' HIGGINS, PRESIDENT OF CHAMBER, O . DUE AND K . BAHLMANN, JUDGES,

ADVOCATE GENERAL : G.*F . MANCINI

REGISTRAR : D . LOUTERMAN, ADMINISTRATOR

HAVING REGARD TO THE REPORT FOR THE HEARING AND FURTHER TO THE HEARING ON 8 OCTOBER 1986,

AFTER HEARING THE OPINION OF THE ADVOCATE GENERAL DELIVERED AT THE SITTING ON 22 JANUARY 1987,

GIVES THE FOLLOWING

JUDGMENT

1 BY APPLICATIONS LODGED AT THE COURT REGISTRY ON 15 FEBRUARY, 29 MARCH AND 3 OCTOBER 1985, INGFRIED HOCHBAUM AND EDWARD RAWES, OFFICIALS OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, BROUGHT ACTIONS FOR THE ANNULMENT OF THE DECISIONS OF THE COMMISSION OF 30 MAY 1984 APPOINTING PAUL WATERSCHOOT TO THE POST OF HEAD OF THE STATE MONOPOLIES AND PUBLIC ENTERPRISES DIVISION IN THE DIRECTORATE-GENERAL FOR COMPETITION AND OF 30 JANUARY 1985 CONFIRMING THAT APPOINTMENT . IN CASE 44/85, IT IS ALSO CLAIMED THAT THE COMMISSION SHOULD PAY MR HOCHBAUM SYMBOLIC DAMAGES OF BFR*1 FOR THE NON-MATERIAL DAMAGE ALLEGEDLY CAUSED TO HIM BY THOSE DECISIONS .

2 ON 13 APRIL 1984 THE COMMISSION PUBLISHED VACANCY NOTICE COM/902/84 FOR THE POST OF HEAD OF THE STATE MONOPOLIES AND PUBLIC ENTERPRISES DIVISION . MESSRS HOCHBAUM AND RAWES, AND 14 OTHER OFFICIALS, SUBMITTED APPLICATIONS FOR THAT POST . ON 30 MAY 1984, THE COMMISSION DECIDED TO FILL THE POST BY WAY OF PROMOTION BY APPOINTING ONE OF THE CANDIDATES, MR WATERSCHOOT .

3 IT APPEARS FROM THE DOCUMENTS BEFORE THE COURT THAT WHEN THE COMMISSION ADOPTED ITS DECISION OF 30 MAY 1984, AN UNSPECIFIED NUMBER OF PERIODIC REPORTS WERE NOT IN THE PERSONAL FILES OF SEVERAL CANDIDATES . HAVING BECOME AWARE OF THAT FACT, ON 30 JANUARY 1985 THE COMMISSION CARRIED OUT A NEW COMPARATIVE EXAMINATION OF THE MERITS OF ALL THE CANDIDATES, ON THAT OCCASION TAKING INTO CONSIDERATION THE PERIODIC REPORTS WHICH WERE MISSING AT THE TIME OF THE COMPARATIVE EXAMINATION CARRIED OUT BEFORE THE DECISION OF 30 MAY 1984 . THAT RE-EXAMINATION PROMPTED THE COMMISSION TO CONCLUDE THAT IT WAS IN FACT APPROPRIATE TO FILL THE VACANT POST BY PROMOTING MR WATERSCHOOT AND CONSEQUENTLY "THE COMMISSION THEREFORE CONFIRMED ITS DECISION OF 30 MAY 1984 AND DECIDED THAT THERE WAS NO REASON TO CANCEL THE APPOINTMENT" OF THE CANDIDATE CHOSEN .

4 REFERENCE IS MADE TO THE REPORT FOR THE HEARING FOR A FULLER ACCOUNT OF THE FACTS AND THE ARGUMENTS OF THE PARTIES, WHICH ARE MENTIONED OR DISCUSSED HEREINAFTER ONLY IN SO FAR AS IS NECESSARY FOR THE REASONING OF THE COURT .

ADMISSIBILITY

5 THE COMMISSION CONTENDS THAT THE APPLICATIONS IN CASES 44 AND 77/85 ARE INADMISSIBLE SINCE, UNLIKE THE APPLICATIONS IN CASES 294 AND 295/85, WHICH RELATE TO THE DECISION OF 30 JANUARY 1985, THEY ARE CONCERNED WITH THE COMMISSION DECISION OF 30 MAY 1984 . SINCE THE LATTER DECISION WAS SUPERSEDED BY THAT OF 30 JANUARY 1985, WHICH WAS ADOPTED AFTER A FRESH COMPARATIVE EXAMINATION OF THE MERITS OF THE CANDIDATES, THE APPLICATION FOR ANNULMENT OF THE FIRST DECISION IS DEVOID OF PURPOSE .

6 IN THAT CONNECTION, IT NEED MERELY BE STATED THAT THE APPLICATIONS IN CASES 44 AND 77/85 CONCERN THE FACT THAT THE COMMISSION APPOINTED MR WATERSCHOOT TO THE VACANT POST AND THUS, BY IMPLICATION, REJECTED THE APPLICANTS' APPLICATIONS FOR THAT POST . THE COMMISSION DID NOT AMEND THE DECISION OF 30 MAY 1984 BUT, ON THE CONTRARY, CONFIRMED IT AND AS A RESULT THE APPLICANTS' COMPLAINTS REGARDING THE FIRST DECISION STILL STAND .

7 IT FOLLOWS THAT THE APPLICATIONS ARE ADMISSIBLE .

THE SUBSTANCE

8 IN SUPPORT OF THEIR CLAIMS, THE APPLICANTS RELY ESSENTIALLY UPON THE FOLLOWING ARGUMENTS : ( A ) INFRINGEMENT OF ARTICLES 45 AND 25 AND THE THIRD PARAGRAPH OF ARTICLE 27 OF THE STAFF REGULATIONS; ( B ) FAILURE TO OBSERVE THE REQUIREMENTS OF THE VACANCY NOTICE, AND ( C ) MISUSE OF POWERS . THOSE SUBMISSIONS COMPRISE ESSENTIALLY TWO ALLEGATIONS, NAMELY THAT THERE WERE IRREGULARITIES IN THE PROCEDURE LEADING UP TO THE CONTESTED MEASURES AND THAT THERE WAS AN ERROR OF APPRAISAL, IN SO FAR AS THE COMMISSION DID NOT CHOOSE THE OFFICIAL MOST SUITABLE FOR THE POST TO BE FILLED .

9 IT IS APPROPRIATE TO CONSIDER FIRST THE ARGUMENTS OF THE APPLICANTS REGARDING PROCEDURAL IRREGULARITIES . THE APPLICANTS CLAIM THAT, SINCE THE PERIODIC REPORTS ON CERTAIN CANDIDATES WERE MISSING WHEN THE COMMISSION ADOPTED ITS DECISION OF 30 MAY 1984, THE COMMISSION COULD NOT HAVE CARRIED OUT A COMPARATIVE EXAMINATION OF THE MERITS OF THE CANDIDATES . CONSEQUENTLY, THE APPOINTMENT TO THE VACANT POST, BY WAY OF PROMOTION, AND THE CONSEQUENT REJECTION OF THE APPLICANTS' APPLICATIONS WERE IN BREACH OF ARTICLE 45 OF THE STAFF REGULATIONS, WHICH REQUIRES AS A PRECONDITION FOR PROMOTION A "CONSIDERATION OF THE COMPARATIVE MERITS OF THE OFFICIALS ELIGIBLE FOR PROMOTION AND OF THE REPORTS ON THEM ". SINCE THE DECISION OF 30 MAY 1984 WAS THUS UNLAWFUL, THE COMMISSION WAS NOT IN A POSITION TO CONFIRM IT SUBSEQUENTLY .

10 IT MUST BE OBSERVED THAT THE DECISION OF 30 MAY 1984 WAS VITIATED BY A PROCEDURAL DEFECT OWING TO THE FAILURE TO TAKE ACCOUNT OF THE PERIODIC REPORTS OF CERTAIN CANDIDATES AT THE TIME OF THE COMPARATIVE EXAMINATION OF THE MERITS OF THE CANDIDATES . HOWEVER, IT WAS POSSIBLE TO REMEDY THAT IRREGULARITY BY RE-EXAMINING THE FILE . IT IS THEREFORE NECESSARY TO EXAMINE THE PROCEDURE PRIOR TO THE DECISION OF 30 JANUARY 1985, ALTHOUGH IT MUST BE BORNE IN MIND THAT THE LEGALITY OF THAT DECISION CANNOT BE CALLED IN QUESTION MERELY BY REASON OF THE FACT THAT IT WAS THE SAME AS THE PREVIOUS DECISION ADOPTED AT THE CONCLUSION OF AN IRREGULAR PROCEDURE .

11 IN THAT REGARD, THE APPLICANTS CRITICIZE THE COMMISSION FOR NOT SEEKING THE VIEWS OF THE ADVISORY COMMITTEE ON APPOINTMENTS TO GRADES A*2 AND A*3 (" THE COMMITTEE ") WHEN DRAWING UP THE DECISION OF 30 JANUARY 1985 .

12 THE COMMISSION STATES THAT THERE WAS NO NEED TO CONSULT THE COMMITTEE A SECOND TIME, SINCE IT HAD ALREADY EXPRESSED ITS VIEWS DURING THE PROCEDURE LEADING TO THE DECISION OF 30 MAY 1984 .

13 THE ROLE OF THE COMMITTEE AND THE EFFECT OF ITS OPINION OF 25 MAY 1984 ON THE PROCEDURE LEADING TO THE DECISION OF 30 JANUARY 1985 MUST BE CONSIDERED .

14 IT IS APPARENT FROM THE DOCUMENTS BEFORE THE COURT AND IN PARTICULAR FROM THE INFORMATION FURNISHED BY THE COMMISSION AT THE REQUEST OF THE COURT THAT THE COMMITTEE WAS SET UP PURSUANT TO A POLICY DECISION ADOPTED IN 1980 . THE TASK OF THE COMMITTEE IS TO EXAMINE APPLICATIONS FOR PROMOTIONS, INTERNAL TRANSFERS AND TRANSFERS FROM OTHER INSTITUTIONS TO POSTS IN GRADES A*2 AND A*3, WITH RESPECT TO THE ABILITIES AND APTITUDES OF THE VARIOUS CANDIDATES, HAVING REGARD TO THE QUALIFICATIONS REQUIRED FOR THE POST TO BE FILLED . WITHIN THOSE TERMS OF REFERENCE, IT ISSUES AN OPINION CONCERNING THE CANDIDATES IN QUESTION, ADDRESSED TO THE MEMBER OF THE COMMISSION WITH RESPONSIBILITY FOR THE BRANCH OF ACTIVITY CONCERNED, AND TO THE MEMBER OF THE COMMISSION RESPONSIBLE FOR PERSONNEL AND ADMINISTRATION .

15 IN THE PRESENT CASE, THE COMMITTEE DESIGNATED, ON 25 MAY 1984, IN ALPHABETICAL ORDER FROM AMONGST THE 16 OFFICIALS WHO APPLIED FOR THE POST FOUR CANDIDATES "PARTICULARLY DESERVING OF CONSIDERATION ". THE FOUR INCLUDED MESSRS HOCHBAUM AND WATERSCHOOT . HOWEVER, THE COMMITTEE DID NOT IN ANY WAY RANK THE CANDIDATES WHO WERE CONSIDERED SUITABLE FOR THE POST IN QUESTION AND DID NOT EXPRESS ANY PREFERENCE FOR ANY OF THEM IN ANY OTHER RESPECT .

16 IT MUST BE NOTED THAT THE SETTING UP BY THE COMMISSION OF AN ADVISORY COMMITTEE NOT PROVIDED FOR BY THE STAFF REGULATIONS IN ORDER TO OBTAIN AN OPINION REGARDING APPOINTMENTS TO CERTAIN POSTS IN RELATION TO THE ABILITIES AND APTITUDES OF CANDIDATES, HAVING REGARD TO THE QUALIFICATIONS REQUIRED, CONSTITUTES A MEASURE DESIGNED TO ENSURE THAT THE COMMISSION, AS APPOINTING AUTHORITY, HAS A BETTER BASIS FOR CARRYING OUT THE COMPARATIVE EXAMINATION OF THE MERITS OF THE CANDIDATES, AS REQUIRED BY ARTICLE 45 OF THE STAFF REGULATIONS . ALTHOUGH THE COMMITTEE' S ROLE IS PURELY ADVISORY, ITS OPINION IS THUS ONE OF THE FACTORS ON WHICH THE COMMISSION BASES ITS OWN ASSESSMENT OF THE CANDIDATES .

17 IT FOLLOWS THAT IF THE COMMISSION IS MOVED TO RECONSIDER AN APPOINTMENT WHICH WAS DECIDED UPON AFTER THE COMMITTEE GAVE ITS OPINION, THE COMMITTEE MUST BE RECONSULTED IN SO FAR AS THE COMMISSION' S RE-EXAMINATION OF THE FILE INVOLVES A FRESH COMPARISON OF THE MERITS OF THE CANDIDATES . HOWEVER, THE COMMISSION IS NOT OBLIGED TO DO SO IF, IN VIEW OF THE PARTICULAR CIRCUMSTANCES OF THE CASE, THE FACT OF NOT RECONSULTING THE COMMITTEE CANNOT HARM THE INTERESTS OF THE CANDIDATES IN QUESTION .

18 THAT, HOWEVER, IS NOT THE POSITION IN THIS CASE . WHEN THE COMMITTEE ADOPTED ITS OPINION ON 25 MAY 1984, NOT JUST ONE PERIODIC REPORT OF ONE CANDIDATE BUT AN UNSPECIFIED NUMBER OF PERIODIC REPORTS OF SEVERAL CANDIDATES FOR THE POST AT ISSUE WERE MISSING . IT CANNOT THEREFORE BE DENIED THAT FRESH CONSIDERATION OF THE ABILITIES AND APTITUDES OF THE CANDIDATES, BASED ON ALL THE PERIODIC REPORTS, MIGHT HAVE PROMPTED THE COMMITTEE TO AMEND THE LIST OF CANDIDATES "PARTICULARLY DESERVING OF CONSIDERATION", EITHER BY REMOVING NAMES FROM THE LIST OR BY ADDING NEW NAMES TO IT . NOR CAN THE POSSIBILITY BE EXCLUDED THAT ONE OR OTHER OF THE APPLICANTS MIGHT HAVE BENEFITED FROM SUCH A CHANGE .

19 IT FOLLOWS THAT, WHEN IT RECONSIDERED THE APPOINTMENT TO THE POST IN QUESTION WITHOUT RECONSULTING THE ADVISORY COMMITTEE, THE COMMISSION DID NOT HAVE AT ITS DISPOSAL THE NECESSARY INFORMATION FOR THE COMPARATIVE EXAMINATION REQUIRED BY ARTICLE 45 OF THE STAFF REGULATIONS AND THAT THAT PROCEDURAL DEFECT MAY HAVE AFFECTED THE RESULTS OF THAT RE-EXAMINATION .

20 IT MUST THEREFORE BE CONCLUDED THAT THE FIRST APPOINTMENT DECISION, OF 30 MAY 1984, IS INVALID BECAUSE OF THE ABSENCE OF SEVERAL PERIODIC REPORTS AND THAT THE SECOND DECISION, OF 30 JANUARY 1985, IS INVALID BECAUSE THE ADVISORY COMMITTEE WAS NOT RECONSULTED .

21 THE DECISIONS OF THE COMMISSION OF 30 MAY 1984 APPOINTING MR WATERSCHOOT TO THE POST OF HEAD OF THE STATE MONOPOLIES AND PUBLIC ENTERPRISES DIVISION IN THE DIRECTORATE GENERAL FOR COMPETITION AND OF 30 JANUARY 1985 CONFIRMING THAT APPOINTMENT MUST THEREFORE BE ANNULLED . CONSEQUENTLY, THE DECISIONS OF THE COMMISSION REJECTING THE APPLICANTS' APPLICATIONS MUST ALSO BE ANNULLED, AND IT IS UNNECESSARY FOR THE APPLICANTS' OTHER SUBMISSIONS TO BE CONSIDERED .

22 AS REGARDS THE CLAIM FOR DAMAGES IN CASE 44/85, THE CANCELLATIONS IN THEMSELVES ADEQUATELY COMPENSATE FOR ANY NON-MATERIAL DAMAGE WHICH MR HOCHBAUM MAY HAVE SUFFERED IN THE CIRCUMSTANCES . THE CLAIM FOR DAMAGES IS THEREFORE DEVOID OF PURPOSE AND NO DECISION NEED BE GIVEN ON IT .

COSTS

23 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . SINCE THE COMMISSION HAS FAILED IN ITS SUBMISSIONS, IT MUST BE ORDERED TO PAY THE COSTS .

ON THOSE GROUNDS,

THE COURT ( SECOND CHAMBER )

HEREBY :

( 1 ) ANNULS THE DECISIONS OF THE COMMISSION OF 30 MAY 1984 APPOINTING MR WATERSCHOOT TO THE POST OF HEAD OF THE STATE MONOPOLIES AND PUBLIC ENTERPRISES DIVISION IN THE DIRECTORATE-GENERAL FOR COMPETITION AND OF 30 JANUARY 1985 CONFIRMING THAT APPOINTMENT;

( 2 ) LIKEWISE ANNULS THE COMMISSION DECISIONS REJECTING THE APPLICANTS' APPLICATIONS FOR THAT POST;

( 3 ) ORDERS THE COMMISSION TO PAY THE COSTS .