JUDGMENT OF THE COURT OF FIRST INSTANCE (FIFTH Chamber)

16 January 2001

Joined Cases T-97/99 and T-99/99

Michael Charnier and Eoghan O'Hannrachain

v

European Parliament

‛Officials — Grade A 1 post — Article 29(2) of the Staff Regulations — Notice of vacancy — Manifest error of assessment — Misuse of powers’

Full text in French   II-1

Application for:

annulment of the decisions of the Parliament not to appoint the applicants to the post of Director-General for Finance and Financial Control and of the decision appointing another candidate to that post and, second, for damages

Held:

The actions are dismissed. The parties are ordered to bear their own costs.

Summary

1. Officials — Recruitment — Procedures — Transition from the procedure under Article 29(1) of the Staff Regulations to the procedure under Article 29(2) — Whether permissible — Discretion of the appointing authority to widen its field of choice

   (Staff Regulations, Art. 29)

2. Officials — Vacant posts — Consideration of candidates'comparative merits — Discretion of the administration — Review by the Court — Limits — Grade A 1 post — Selection from among candidates — Selection based on the interests of the service

   (Staff Regulations, Art. 29)

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

1.  The use of the term ‘whether’ in Article 29 of the Staff Regulations clearly indicates that the appointing authority is not bound absolutely to adopt the measures therein mentioned, including promotion or transfer within the institution, but merely to consider in each case whether they are capable of resulting in the appointment of a person of the highest standard of ability, efficiency and integrity. The appointing authority is therefore not bound to follow, in the order indicated, the various stages of procedure set out in Article 29(1) of the Staff Regulations.

   It may also move on from a recruitment procedure initiated on the basis of Article 29(1) of the Staff Regulations to a procedure under Article 29(2) since it is not obliged to carry though a recruitment procedure once it has been initiated but possesses discretionary power to extend its field of choice in the interests of the service.

   A decision to have recourse to the procedure under Article 29(2) of the Staff Regulations made during the course of a recruitment procedure which has already been initiated need not necessarily be taken when the vacancy notice is published and is not subject to any condition as to publication.

   (see paras 33-36)

   See: 81/74 to 88/74 Marenco v Commission [1975] ECR 1247, paras. 21 and 23; 289/81 Mavridis v Parliament [1983] ECR 1731, para. 23; C-331 /87 Exorchos v Parliament [1989] ECR 4185; T-38/89 Hochbaum v Commission [1990] ECR II-43, para. 15; T-18/92 and T-68/92 Coussios v Commission [1994] ECRSC I-A-47 and II-171, para. 98; T-586/93 Kotzonis v ESC [1995] ECR II-665, paras 43 and 44; T-118/95 Anacoreta Correia v Commission [1996] ECRSC I-A-283 and II-835, para. 34

2.  As regards recruitment to fill a Grade A 1 post, when comparing the merits of candidates for such a post which entails great responsibilities and in assessing the interests of the service, the appointing authority has a wide discretion. That assessment may be called in question only if it is vitiated by a manifest error. In addition, it may lawfully prefer one qualified candidate over another qualified candidate for reasons which take account of the interests of the service.

   In that regard, the review to be carried out by the Court does not imply that it is entitled to undertake independently a comparison of the merits of the candidates, and still less that it is entitled to substitute its own assessment of those merits for that of the appointing authority. The Court thus verifies whether, in the light of the qualifications required by the vacancy notice, the administration, in adopting the decision to appoint one candidate rather than another, has remained within reasonable bounds and has not used its power in a manifestly incorrect way.

   (see paras 77-79)

   See: Kotzonis v ESC, cited above, para. 81; Anacoreta Correia v Commission, cited above, para. 75

3.  The concept of misuse of powers has a precise scope which refers to the use of its powers by an administrative authority for a purpose other than that for which they were conferred upon it. A decision is vitiated by misuse of powers only if it appears on the basis of objective, relevant and consistent evidence to have been taken with the purpose of achieving an end other than that stated.

   In that regard, a statement by the Vice-President of the Parliament, from which it is apparent that the President of the Parliament wished to appoint the person concerned to a high-ranking post and to that end intended to orchestrate political negotiations within the Bureau, does not constitute evidence that the decision to appoint a particular candidate to the post at issue had been taken by the Bureau of the Parliament before the procedure under Article 29(2) of the Staff Regulations was initiated, since that statement does not establish that the President's words were acted upon or therefore that those negotiations actually took place within the Bureau.

   Nor does a statement in which a Quaestor of the Parliament merely reports comments which were made to him by Members of the Parliament and which he took as a basis for considering that the decision to appoint the person concerned had been taken prior to the meetings of Bureau, following which the person concerned was appointed to the post at issue, constitute evidence to that effect. That statement, which contains a factual account of what had been reported to the Quaestor in question before those meetings of the Bureau and confirmation of his participation in those meetings, does not demonstrate that the appointment procedure followed by the Bureau was invalidated or that the members of the Bureau had agreed beforehand on the appointment of the person concerned. Hearsay relating to the conduct of the procedure is not sufficient to demonstrate that the Bureau had decided, before the procedure under Article 29(2) of the Staff Regulations was initiated, to appoint the person concerned, since an examination of the merits of all the candidates for the post was in fact carried out by the Bureau.

   (see paras 104, 109, 111-112)

   See: Anacoreta Correia v Commission, cited above, para. 25; T-112/96 and T-115/96 Séché v Commission [1999] ECRSC I-A-115 and II-623, para. 139