61977J0157

OFFICIALS - RECRUITMENT - INTERNAL COMPETITION - FILLING OF VACANT POST - OBJECTIVE CRITERIA - CONSEQUENCE - APPOINTMENT OF SUCCESSFUL CANDIDATE IN COMPETITION - PRIOR RIGHT - EXCLUSION - APPOINTMENT OF ANOTHER CANDIDATE BY WAY OF TRANSFER - LEGALITY

( STAFF REGULATIONS OF OFFICIALS , ART . 29 )

ARTICLE 29 OF THE STAFF REGULATIONS OF OFFICIALS ESTABLISHES THE NECESSARY RECRUITMENT PROCEDURES SO THAT VACANT POSTS MAY BE FILLED BY OFFICIALS SELECTED ON THE BASIS OF OBJECTIVE CRITERIA AND SOLELY IN THE INTERESTS OF THE SERVICE . HENCE THAT PROVISION CANNOT BE INTERPRETED AS MEANING THAT IT CONFERS ON A SUCCESSFUL CANDIDATE IN AN INTERNAL COMPETITION HELD TO FILL A GIVEN POST A PRIOR RIGHT TO APPOINTMENT TO THAT POST AS AGAINST AN OFFICIAL WISHING TO BE ASSIGNED TO IT BY WAY OF TRANSFER .

IN CASE 157/77

MAXIMILIENNE CARO-FERNANDEZ ( NEE GILBEAU ), AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , RESIDING AT 8 CHEMIN DE LA BELLE CROIX , HORRUES ( PROVINCE DU HAINAUT ), BELGIUM , REPRESENTED AND ASSISTED BY MARCEL SLUSNY , ADVOCATE OF THE BRUSSELS BAR , 272 AVENUE BRUGMANN , 1180 BRUSSELS , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF JACQUES MARC , 38 RUE ALBERT 1 ,

APPLICANT ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , THOMAS F . CUSACK , ACTING AS AGENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF MARIO CERVINO , JEAN MONNET BUILDING , PLATEAU DE KIRCHBERG ,

DEFENDANT ,

APPLICATION FOR :

- THE ANNULMENT OF THE IMPLIED DECISION REJECTING THE APPLICANT ' S COMPLAINT ;

- THE ANNULMENT OF THE DEFENDANT ' S REFUSAL TO PROMOTE THE APPLICANT TO A POST OF ASSISTANT TRANSLATOR ( L/A 8-L/A7 ) OR TO EXTEND THE DURATION OF VALIDITY OF COMPETITION NO COM/LA/11/75 ;

- AN ORDER THAT THE COSTS BE PAID BY THE DEFENDANT .

1THE APPLICANT , AN OFFICIAL IN CATEGORY B AT THE COMMISSION , TOOK PART IN 1975 IN INTERNAL COMPETITION NO COM/LA/11/75 HELD TO CONSTITUTE A RESERVE WITH WHICH TO FILL VACANT POSTS IN CAREER BRACKET L/A 8-L/A 7 ( ASSISTANT TRANSLATOR ).

2THE FILE SHOWS THAT THE APPLICANT WAS PLACED FIRST AMONG THE SUCCESSFUL CANDIDATES OF FRENCH MOTHER TONGUE OR , AT LEAST , FIRST EX AEQUO WITH ANOTHER CANDIDATE , MISS F .

3THERE WAS A THIRD SUCCESSFUL CANDIDATE IN THE COMPETITION ( FRENCH LANGUAGE SECTION ), MR L ., WHO WAS PLACED AFTER THE APPLICANT AND MISS F .

4ALTHOUGH BOTH THE APPLICANT AND MISS F . REFUSED THE OFFER OF AN APPOINTMENT IN THE SERVICES OF THE COMMISSION WITH ASSIGNMENT TO LUXEMBOURG THE THIRD SUCCESSFUL CANDIDATE ACCEPTED IT AND WAS DULY APPOINTED .

5WHEN SUBSEQUENTLY IN THE COURSE OF 1976 TWO POSTS FOR TRANSLATORS OF FRENCH MOTHER TONGUE BECAME VACANT IN THE SERVICES OF THE COMMISSION IN BRUSSELS MISS F . WAS APPOINTED TO ONE OF THEM WHILE THE OTHER WAS FILLED BY THE TRANSFER TO BRUSSELS OF AN OFFICIAL EMPLOYED IN LUXEMBOURG .

6ALTHOUGH THE FINAL DATE FOR THE VALIDITY OF THE LIST OF SUITABLE CANDIDATES DRAWN UP IN CONSEQUENCE OF THE AFOREMENTIONED INTERNAL COMPETITION WAS DEFERRED FROM 31 DECEMBER 1976 TO 28 FEBRUARY 1977 THE APPLICANT REMAINED AFTER THE EXPIRY OF THAT PERIOD THE ONLY SUCCESSFUL CANDIDATE IN THAT COMPETITION NOT TO HAVE BEEN APPOINTED TO A POST OF ASSISTANT TRANSLATOR .

7BY A COMPLAINT BY WAY OF ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS OF OFFICIALS SUBMITTED TO THE APPOINTING AUTHORITY ON 27 MAY 1977 THE APPLICANT STATED THAT THE DECISION NOT TO APPOINT HER TO A POST OF ASSISTANT TRANSLATOR IN BRUSSELS CONSTITUTED DISCRIMINATORY TREATMENT AND IS THEREFORE AN ACT ADVERSELY AFFECTING HER .

8SHE REQUESTED THAT THAT SITUATION BE REMEDIED AND THAT SHE BE APPOINTED ' ' TO A POST OF ASSISTANT TRANSLATOR IN THE TRANSLATION DEPARTMENT . . . IN BRUSSELS , IN THE SAME WAY AS THE OTHER SUCCESSFUL CANDIDATE OF FRENCH MOTHER TONGUE IN INTERNAL COMPETITION NO COM/LA/11/75 ' ' .

9SINCE NO REPLY WAS RECEIVED TO THAT COMPLAINT , ON 22 DECEMBER 1977 THE APPLICANT LODGED THE PRESENT APPLICATION WHICH WAS RECEIVED AT THE COURT REGISTRY ON 23 DECEMBER 1977 . THE APPLICATION SEEKS THE ANNULMENT OF THE IMPLIED DECISION REJECTING THE COMPLAINT AS WELL AS OF THE REFUSAL OF THE COMMISSION EITHER TO PROMOTE THE APPLICANT TO A POST OF ASSISTANT TRANSLATOR IN CAREER BRACKET L/A 8-LA 7 OR TO EXTEND FURTHER THE DURATION OF VALIDITY OF THE COMPETITION .

10IN SUPPORT OF HER CONCLUSIONS THE APPLICANT MAINTAINS IN PARTICULAR THAT THE COMMISSION HAS FAILED TO FULFIL ITS OBLIGATION TO ENSURE THE NORMAL DEVELOPMENT OF HER CAREER AS WELL AS , ON A MORE GENERAL LEVEL , ITS OBLIGATIONS DERIVING FROM ARTICLE 24 OF THE STAFF REGULATIONS .

11SHE COMPLAINS IN PARTICULAR THAT THE COMMISSION FAILED TO TAKE HER ADVANCED VOCATIONAL TRAINING INTO ACCOUNT ( IN THIS INSTANCE DULY CERTIFIED FURTHER EDUCATION AT UNIVERSITY LEVEL ) WHEN FILLING THE TWO POSTS WHICH BECAME VACANT IN 1976 .

12IT IS CLEAR FROM THE TERMS OF THE FINAL PARAGRAPH OF ARTICLE 24 OF THE STAFF REGULATIONS THAT THE TRAINING AND INSTRUCTION OF OFFICIALS SHALL BE TAKEN INTO ACCOUNT FOR PURPOSES OF PROMOTION IN THEIR CAREERS .

13IT IS ESTABLISHED THAT THE APPOINTING AUTHORITY ORGANIZED AN INTERNAL COMPETITION FOR THE PURPOSE OF CONSTITUTING A RESERVE TO FILL VACANT POSTS IN CAREER BRACKET L/A 8-L/A 7 AND THAT THE APPLICANT TOOK PART SUCCESSFULLY IN THE TESTS FOR THAT COMPETITION .

14AS A RESULT OF THAT COMPETITION THE APPLICANT WAS OFFERED AND REFUSED AN APPOINTMENT TO A POST IN THAT CAREER BRACKET WITH ASSIGNMENT TO LUXEMBOURG WHICH WOULD HAVE RESULTED IN HER PROMOTION FROM HER PRESENT CATEGORY TO A HIGHER CATEGORY .

15UP TO THE TIME OF THE APPLICANT ' S REFUSAL OF THAT APPOINTMENT , THEREFORE , THE COMMISSION DID NOT IN ANY WAY FAIL IN ITS OBLIGATIONS TOWARDS HER DERIVING FROM THE PROVISIONS OF ARTICLE 24 OF THE STAFF REGULATIONS AS A WHOLE .

16ALTHOUGH THE APPLICANT DOES NOT CONTEST THE APPOINTMENT OF MISS F . AND HER ASSIGNMENT TO THE SERVICES OF THE COMMISSION IN BRUSSELS SHE CRITICIZES THE APPOINTING AUTHORITY FOR HAVING FAILED TO APPOINT HER IN LIKE MANNER TO ANOTHER POST OF ASSISTANT TRANSLATOR WHICH BECAME VACANT IN BRUSSELS DURING THE DURATION OF VALIDITY OF THE LIST OF SUITABLE CANDIDATES AND WHICH WAS FILLED BY THE TRANSFER OF ANOTHER OFFICIAL FROM THE SERVICES OF THE COMMISSION IN LUXEMBOURG .

17IN THAT REGARD SHE RELIES ON THE PROVISIONS OF ARTICLE 29 OF THE STAFF REGULATIONS IN ORDER , AS IT WERE , TO CLAIM A PRIOR RIGHT TO THAT POST , AS A SUCCESSFUL CANDIDATE IN AN INTERNAL COMPETITION , OVER AN OFFICIAL WISHING TO BE ASSIGNED TO IT BY WAY OF TRANSFER .

18HOWEVER , THAT ARGUMENT RECEIVES NO SUPPORT FROM THE WORDING OF ARTICLE 29 ITSELF , WHICH ESTABLISHES THE NECESSARY RECRUITMENT PROCEDURES SO THAT VACANT POSTS MAY BE FILLED BY OFFICIALS SELECTED ON THE BASIS OF OBJECTIVE CRITERIA AND SOLELY IN THE INTERESTS OF THE SERVICE .

19IN THE LIGHT OF THE FOREGOING CONSIDERATIONS THE FACT THAT THE COMMISSION ' S CHOICE DID NOT FALL UPON THE APPLICANT BUT RATHER UPON AN OFFICIAL WHO WAS ALREADY EMPLOYED IN THE LANGUAGE SERVICE DOES NOT APPEAR TO BE OPEN TO OBJECTIVE CRITICISM .

20THE APPLICANT HAS NOT BEEN ABLE TO PRODUCE ANY EVIDENCE TO PROVE THAT THE CONSIDERATIONS WHICH LED TO THE FILLING OF THE ABOVEMENTIONED POST BY WAY OF TRANSFER WERE EXTRANEOUS TO THE INTERESTS OF THE SERVICE .

21IT RESULTS FROM ALL OF THE FOREGOING THAT THE FACT THAT THE ADMINISTRATION DID NOT APPOINT THE APPLICANT TO A POST OF ASSISTANT TRANSLATOR DURING THE DURATION OF VALIDITY OF THE LIST OF SUITABLE CANDIDATES DOES NOT CONSTITUTE AN INFRINGEMENT EITHER OF ARTICLE 24 OR OF ARTICLE 29 OF THE STAFF REGULATIONS .

22AS REGARDS THE FAILURE TO EXTEND THE DURATION OF VALIDITY OF THE RESERVE LIST BEYOND 28 FEBRUARY 1977 THE COMMISSION HAS EXPLAINED THAT AT THAT PERIOD IT INTENDED TO ORGANIZE AN OPEN COMPETITION FOR THE PURPOSE OF FILLING THE NEW POSTS ALLOCATED BY THE BUDGETARY AUTHORITY FOR THE FINANCIAL YEAR 1977 , WHICH , AS REGARDS THE FRENCH LANGUAGE SECTION , INVOLVED ASSIGNMENT TO LUXEMBOURG .

23THE CONDUCT OF THE COMMISSION IN THAT REGARD , WHICH IS , MOREOVER , JUSTIFIED BY THE INTERESTS OF PROPER ADMINISTRATION , CANNOT CONSTITUTE A FAILURE TO FULFIL ITS OBLIGATION TO ASSIST THE APPLICANT WHICH DERIVES FROM ARTICLE 24 OF THE STAFF REGULATIONS .

24THERE IS , THEREFORE , NO REASON TO EXAMINE THE METHOD USED TO FILL TWO POSTS OF TRANSLATOR OF FRENCH MOTHER TONGUE IN BRUSSELS WHICH , ACCORDING TO STATEMENTS MADE BY TWO OFFICIALS OF THE COMMISSION DURING THEIR EXAMINATION BY THE COURT , BECAME VACANT DURING THE SECOND HALF OF 1977 .

25FINALLY , THE APPLICANT MAINTAINS THAT THE COMMISSION ' S REFUSAL TO APPOINT HER TO A POST OF ASSISTANT TRANSLATOR IN BRUSSELS AND TO EXTEND THE DURATION OF VALIDITY OF THE LIST OF SUITABLE CANDIDATES CONSTITUTES A MISUSE OF POWERS , SINCE IT IS BASED ON CONSIDERATIONS WHICH CONFLICT WITH THE INTERESTS OF THE SERVICE AND DERIVE , IN PARTICULAR , FROM THE OPPOSITION OF CERTAIN OFFICIALS TO THE ENTRY OF THE APPLICANT , WHO WAS RECRUITED IN CATEGORY C , INTO THE LANGUAGE SERVICE .

26IN SUPPORT OF THAT GROUND OF COMPLAINT THE APPLICANT REFERS TO VARIOUS COMPLAINTS ALLEGEDLY MADE IN THAT CONNEXION BY CERTAIN OFFICIALS OF THE COMMISSION .

27HOWEVER , THOSE ARE FACTORS WHICH CANNOT BE ADDUCED TO SUPPORT THE ARGUMENT OF A MISUSE OF POWERS ON THE PART OF THE COMMISSION .

28IN THE LIGHT OF ALL OF THE FOREGOING CONSIDERATIONS THE APPLICATION MUST BE DISMISSED AS UNFOUNDED , WITH THE RESULT THAT IT IS UNNECESSARY TO CONSIDER THE QUESTION OF ADMISSIBILITY RAISED BY THE COMMISSION .

COSTS

29UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE , THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .

30HOWEVER , UNDER ARTICLE 70 OF THE RULES OF PROCEDURE , IN PROCEEDINGS BY SERVANTS OF THE COMMUNITIES , INSTITUTIONS SHALL BEAR THEIR OWN COSTS .

ON THOSE GROUNDS ,

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION ;

2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .