61985J0324

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1 . OFFICIALS - PROMOTION - DISCRETION OF THE ADMINISTRATION - REVIEW BY THE COURT - LIMITS

( STAFF REGULATIONS OF OFFICIALS, ART . 45 )

2 . OFFICIALS - PROMOTION - CONSIDERATION OF THE COMPARATIVE MERITS - A*2 AND A*3 POSTS - PARTICIPATION OF AN ADVISORY COMMITTEE NOT PROVIDED FOR BY THE STAFF REGULATIONS - FREEDOM OF THE ADMINISTRATION TO DECIDE ITS COMPOSITION AND RESPONSIBILITIES

( STAFF REGULATIONS OF OFFICIALS, ART . 45 )

1 . IN ASSESSING THE INTERESTS OF THE SERVICE AND THE QUALIFICATIONS AND MERITS OF THE CANDIDATES TO BE TAKEN INTO CONSIDERATION IN MAKING A PROMOTION DECISION PURSUANT TO ARTICLE 45 OF THE STAFF REGULATIONS OF OFFICIALS, THE APPOINTING AUTHORITY POSSESSES A WIDE DISCRETION, AND IN THAT CONNECTION THE COURT' S REVIEW MUST BE CONFINED TO THE QUESTION WHETHER, HAVING REGARD TO THE VARIOUS CONSIDERATIONS WHICH HAVE INFLUENCED THE ADMINISTRATION IN MAKING ITS ASSESSMENT, THE LATTER HAS REMAINED WITHIN REASONABLE BOUNDS AND HAS NOT USED ITS POWER IN A MANIFESTLY INCORRECT WAY . THE COURT CANNOT THEREFORE SUBSTITUTE ITS ASSESSMENT OF THE QUALIFICATIONS AND MERITS OF THE CANDIDATES FOR THAT OF THE APPOINTING AUTHORITY .

2 . ALTHOUGH DECISIONS ON PROMOTION AND THE CONSIDERATION OF THE COMPARATIVE MERITS OF THE CANDIDATES PROVIDED FOR IN ARTICLE 45 OF THE STAFF REGULATIONS OF OFFICIALS ARE THE SOLE RESPONSIBILITY OF THE APPOINTING AUTHORITY, THE LATTER MAY INVOLVE IN THE PREPARATORY STAGE OF THOSE DECISIONS AN ADVISORY BODY SUCH AS A COMMITTEE RESPONSIBLE FOR EXAMINING APPLICATIONS FOR POSTS IN GRADES A*2 AND A*3 WHOSE COMPOSITION AND RESPONSIBILITIES IT IS FREE TO DECIDE . THE TAKING INTO CONSIDERATION OF THE OPINION OF SUCH A BODY CANNOT IN ITSELF VITIATE A DECISION OF THE ADMINISTRATION .

IN CASE 324/85,

YVES BOUTEILLER, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, RESIDING AT KRAAINEM, REPRESENTED BY MARCEL SLUSNY, OF THE BRUSSELS BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF CATHERINE WOLTER, 4 RUE LEMIRE, BELAIR,

APPLICANT,

V

COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY DIMITRIOS GOULOUSSIS, ITS LEGAL ADVISER, AND MARIE WOLFCARIUS, A MEMBER OF ITS LEGAL DEPARTMENT, ACTING AS AGENTS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF GEORGES KREMLIS, A MEMBER OF ITS LEGAL DEPARTMENT, JEAN MONNET BUILDING, KIRCHBERG,

DEFENDANT,

APPLICATION FOR ANNULMENT OF THE DECISION OF 19 DECEMBER 1984 APPOINTING A HEAD OF THE DIVISION FOR ENERGY ( OTHER THAN COAL ), CHEMICALS, AGRICULTURAL PRODUCTS AND FOODSTUFFS IN THE DIRECTORATE-GENERAL FOR COMPETITION,

THE COURT ( THIRD CHAMBER )

COMPOSED OF : Y . GALMOT, PRESIDENT OF THE CHAMBER, U . EVERLING AND J . C . MOITINHO DE ALMEIDA, JUDGES,

ADVOCATE GENERAL : J . L . DA CRUZ VILACA

REGISTRAR : D . LOUTERMAN, ADMINISTRATOR

HAVING REGARD TO THE REPORT FOR THE HEARING AND FURTHER TO THE HEARING ON 13 NOVEMBER 1986,

AFTER HEARING THE OPINION OF THE ADVOCATE GENERAL DELIVERED AT THE SITTING ON 10 DECEMBER 1986,

GIVES THE FOLLOWING

JUDGMENT

1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 4 NOVEMBER 1985, YVES BOUTEILLER, WHO SINCE 1959 HAS BEEN AN OFFICIAL OF THE COMMISSION IN THE DIRECTORATE-GENERAL FOR COMPETITION, AND SINCE 1965 HAS BEEN CLASSIFIED IN GRADE A*4, AND WHO IS NOW ASSIGNED TO THE DIVISION FOR ENERGY ( OTHER THAN COAL ), CHEMICALS, AGRICULTURAL PRODUCTS AND FOODSTUFFS IN THE DIRECTORATE FOR RESTRICTIVE PRACTICES AND ABUSE OF DOMINANT POSITIONS II, LODGED AN APPLICATION FOR THE ANNULMENT OF THE COMMISSION' S DECISION OF 19 DECEMBER 1984 APPOINTING ANOTHER CANDIDATE TO THE POST OF HEAD OF THE SAID DIVISION .

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

FIRST SUBMISSION : IRREGULAR COMPOSITION OF THE COMMISSION

3 WITH REGARD TO THE FIRST SUBMISSION CONCERNING THE COMPOSITION OF THE COMMISSION AT THE DATE OF THE CONTESTED DECISION AND COMPLIANCE WITH ARTICLE 10 ( 1 ) OF THE TREATY ESTABLISHING A SINGLE COUNCIL AND A SINGLE COMMISSION, THE APPLICANT STATED AT THE HEARING THAT IN HIS OPINION THE FACT THAT THERE WERE NO LONGER ANY FRENCH MEMBERS OF THE COMMISSION, FOLLOWING THE COUNCIL' S DECISION NOT TO REPLACE TWO OF ITS MEMBERS WHO HAD RESIGNED BEFORE THE IMMINENT RENEWAL OF THE TERMS OF OFFICE OF THE MEMBERS OF THE COMMISSION, WAS NOT IN ITSELF LIABLE TO RENDER UNLAWFUL A DECISION ADOPTED BY THE COMMISSION AS IT WAS THEN CONSTITUTED . HOWEVER, THE APPLICANT CLAIMED THAT THIS WAS EVIDENCE OF A MISUSE OF POWERS, ALTHOUGH HE STATED THAT HE WAS NOT ALLEGING THAT THE COMMISSION' S DECISION WAS ADOPTED FOR REASONS RELATING TO THE NATIONALITY OF THE CANDIDATES .

4 THE COURT THEREFORE CONSIDERS THAT IT IS UNNECESSARY TO EXAMINE THE LAWFULNESS OF THE CONTESTED DECISION AS REGARDS AN ALLEGED FAILURE TO COMPLY WITH THE RULES GOVERNING THE COMPOSITION OF THE COMMISSION AND THAT THE ISSUE RAISED IN THIS SUBMISSION SHOULD BE CONSIDERED AS PART OF THE FOURTH SUBMISSION ON MISUSE OF POWERS .

SECOND SUBMISSION : LACK OF QUALIFICATIONS OF THE CANDIDATE APPOINTED

5 THE APPLICANT THEN CLAIMED THAT THE CANDIDATE APPOINTED BY THE COMMISSION TO THE POST IN QUESTION DID NOT FULFIL ALL THE CONDITIONS LAID DOWN IN THE VACANCY NOTICE BECAUSE HE DID NOT POSSESS "KNOWLEDGE OF ONE OR MORE OF THE SECTORS CONCERNED ". IN SUPPORT OF THAT SUBMISSION, THE APPLICANT REFERRED TO THE CAREER OF THE CANDIDATE APPOINTED AND REQUESTED THE COURT TO ORDER THE PRODUCTION OF HIS PERSONAL FILE IN ORDER TO VERIFY HIS QUALIFICATIONS FOR THE POST IN QUESTION .

6 IN THAT REGARD IT MUST FIRST BE STRESSED THAT, IN ASSESSING THE INTERESTS OF THE SERVICE AND THE QUALIFICATIONS AND MERITS OF THE CANDIDATES TO BE TAKEN INTO CONSIDERATION IN MAKING A PROMOTION DECISION PURSUANT TO ARTICLE 45 OF THE STAFF REGULATIONS OF OFFICIALS, THE APPOINTING AUTHORITY POSSESSES A WIDE DISCRETION, AND IN THAT CONNECTION THE COURT' S REVIEW MUST BE CONFINED TO THE QUESTION WHETHER, HAVING REGARD TO THE VARIOUS CONSIDERATIONS WHICH HAVE INFLUENCED THE ADMINISTRATION IN MAKING ITS ASSESSMENT, THE LATTER HAS REMAINED WITHIN REASONABLE BOUNDS AND HAS NOT USED ITS POWER IN A MANIFESTLY INCORRECT WAY . THE COURT CANNOT THEREFORE SUBSTITUTE ITS ASSESSMENT OF THE QUALIFICATIONS AND MERITS OF THE CANDIDATES FOR THAT OF THE APPOINTING AUTHORITY .

7 IT SHOULD ALSO BE POINTED OUT THAT, WHEREAS THE VACANCY NOTICE REQUIRED "THOROUGH KNOWLEDGE" OF THE EEC TREATY AND OF COMMUNITY COMPETITION LAW AND "WIDE EXPERIENCE" APPROPRIATE TO THE POST, IT ONLY REQUIRED "KNOWLEDGE" OF ONE OR MORE OF THE SECTORS CONCERNED, THAT IS TO SAY ENERGY, CHEMICALS, AGRICULTURAL PRODUCTS AND FOODSTUFFS . THAT DIFFERENCE OF WORDING SHOWS THAT THE LATTER REQUIREMENT WAS LESS IMPORTANT FOR THE POST IN QUESTION THAN THE OTHER QUALIFICATIONS REQUIRED .

8 THE CANDIDATE WHO WAS APPOINTED HAD FOR 14 YEARS HELD VERY RESPONSIBLE POSITIONS, FIRST IN THE CABINET OF A MEMBER OF THE COMMISSION, WHERE HE WAS IN PARTICULAR IN CHARGE OF COMPETITION, AND SUBSEQUENTLY AS ASSISTANT TO THE DIRECTOR-GENERAL FOR COMPETITION . IT THEREFORE DOES NOT APPEAR MANIFESTLY INCORRECT TO CONSIDER THAT IN THAT CAPACITY HE HAD ACQUIRED KNOWLEDGE OF THE VARIOUS COMPETITION SECTORS, INCLUDING THOSE CONCERNED IN THIS CASE, AND THAT SUCH KNOWLEDGE WAS SUFFICIENT IN VIEW OF HIS OTHER QUALIFICATIONS, TO WHICH THE COMMISSION ATTACHED MORE IMPORTANCE . CONTRARY TO WHAT THE APPLICANT APPEARS TO MAINTAIN, THE COMMISSION WAS NOT BOUND TO REQUIRE THAT THE CANDIDATE SHOULD ALREADY HAVE UNDERTAKEN SPECIALIZED DUTIES IN ONE OR MORE OF THE SECTORS CONCERNED, AS HAD THE APPLICANT .

9 CONSEQUENTLY, THERE IS NOTHING IN THE DOCUMENTS BEFORE THE COURT TO SUPPORT A FINDING THAT, IN DECIDING THAT THE CANDIDATE APPOINTED TO THE POST IN QUESTION FULFILLED THE CONDITIONS LAID DOWN IN THE VACANCY NOTICE, THE COMMISSION COMMITTED A MANIFEST ERROR OR EXCEEDED THE BOUNDS OF ITS DISCRETIONARY POWERS . IN VIEW OF THIS AND OF THE FACT THAT ARTICLE 26 OF THE STAFF REGULATIONS OF OFFICIALS PROVIDES THAT PERSONAL FILES OF OFFICIALS ARE CONFIDENTIAL, THE COURT HAS CONCLUDED THAT IT IS NOT APPROPRIATE TO ORDER THE PRODUCTION OF THE PERSONAL FILE OF THE CANDIDATE WHO WAS APPOINTED .

THIRD SUBMISSION : INADEQUATE CONSIDERATION OF THE MERITS OF THE CANDIDATES

10 NOR IS IT POSSIBLE TO UPHOLD THE APPLICANT' S THIRD SUBMISSION, BY WHICH HE COMPLAINS THAT THE COMMISSION, IN BREACH OF ARTICLE 45 OF THE STAFF REGULATIONS DID NOT ITSELF CONSIDER THE COMPARATIVE MERITS OF THE VARIOUS CANDIDATES OR IN ANY EVENT DID SO ON THE BASIS OF AN IMPROPERLY CONSTITUTED FILE, WHICH DID NOT CONTAIN A CERTAIN DOCUMENT SHOWING THAT THE APPLICANT HAD ALREADY PERFORMED THE DUTIES IN QUESTION OR REFER TO MATTERS CONTAINED IN HIS LAST PERIODIC REPORT, FOR THE YEARS FROM 1983 TO 1985 .

11 ALTHOUGH DECISIONS ON PROMOTION AND THE CONSIDERATION OF THE COMPARATIVE MERITS PROVIDED FOR IN ARTICLE 45 OF THE STAFF REGULATIONS OF OFFICIALS ARE THE SOLE RESPONSIBILITY OF THE APPOINTING AUTHORITY, THE LATTER MAY INVOLVE IN THE PREPARATORY STAGE OF THOSE DECISIONS AN ADVISORY BODY WHOSE COMPOSITION AND RESPONSIBILITIES IT IS FREE TO DECIDE . AS REGARDS IN PARTICULAR THE ADVISORY COMMITTEE CREATED BY THE COMMISSION FOR APPOINTMENTS TO GRADES A*2 AND A*3, WHICH IN THIS CASE DREW UP AN OPINION ON THE ABILITIES AND APTITUDES OF THE CANDIDATES, IT IS CLEAR FROM THE JUDGMENT OF 23 OCTOBER 1986 IN CASE 26/85 ( VAYSSE V COMMISSION (( 1986 )) ECR 3131 ) THAT THE TAKING INTO CONSIDERATION OF AN OPINION OF THAT COMMITTEE CANNOT IN ITSELF VITIATE A DECISION OF THE COMMISSION .

12 FURTHERMORE, THERE IS NO OTHER EVIDENCE BEFORE THE COURT TO SUGGEST THAT THE COMMISSION DID NOT ITSELF ASSESS ALL RELEVANT MATTERS IN THIS CASE BEFORE ADOPTING THE CONTESTED DECISION .

13 AS REGARDS THE ABSENCE OF CERTAIN DOCUMENTS FROM THE FILE SUBMITTED TO THE COMMISSION, IT SUFFICES TO OBSERVE THAT THE FACT THAT, IN ACCORDANCE WITH THE COMMISSION' S INTERNAL RULES, THE APPLICANT, AS THE OFFICIAL WITH THE GREATEST SENIORITY IN THE HIGHEST GRADE IN THE NEWLY CREATED DIVISION, HAD ACTED AS HEAD OF THE DIVISION IN QUESTION BETWEEN 1 OCTOBER AND 19 DECEMBER 1984 WAS NOT SUCH AN IMPORTANT ELEMENT IN HIS CAREER AS TO CAUSE THE COMMISSION' S DECISION TO BE VITIATED BY THE ABSENCE OF ANY DOCUMENT RELATING THERETO IN THE FILE . SINCE THE APPLICANT' S LAST PERIODIC REPORT, FOR THE PERIOD FROM 1983 TO 1985, WAS DRAWN UP ON 4 FEBRUARY 1986 AND THE APPLICANT HAS NOT CLAIMED THAT IT WAS DRAWN UP LATE, HE CANNOT CRITICIZE THE COMMISSION FOR NOT TAKING MATTERS CONTAINED IN THAT REPORT INTO CONSIDERATION WHEN IT ADOPTED THE CONTESTED DECISION .

FOURTH SUBMISSION : MISUSE OF POWERS

14 NOR HAS THE APPLICANT BEEN ABLE TO PRODUCE ANY SPECIFIC EVIDENCE TO SHOW THAT THE COMMISSION WAS PURSUING ANY UNLAWFUL PURPOSE IN MAKING THE CONTESTED APPOINTMENT . IN SUPPORT OF HIS SUBMISSION THAT THE COMMISSION MISUSED ITS POWERS HE HAS MADE ONLY GENERAL ASSERTIONS, NOT CONFIRMED BY THE FACTS, AND REFERRED TO MATTERS WHICH HAVE NO CONNECTION WITH THE CONTESTED DECISION .

15 IN PARTICULAR, THE DOCUMENTS BEFORE THE COURT PROVIDE NO SUPPORT FOR THE CONCLUSION THAT THE CONTESTED DECISION WAS TAKEN, AS THE APPLICANT ALLEGES, SOLELY IN ORDER TO PROVIDE A POST FOR A PERSONAL ASSISTANT OF ONE OF THE DEPARTING MEMBERS OF THE COMMISSION AND THAT IT WAS THEREFORE A MISUSE OF THE COMMISSION' S DISCRETIONARY POWER . INDEED THE APPLICANT HIMSELF HAS NOT DISPUTED, EXCEPT AS REGARDS THE REQUIREMENT OF KNOWLEDGE OF ONE OR MORE OF THE SECTORS CONCERNED, WHICH HAS BEEN CONSIDERED ABOVE, THE QUALIFICATIONS AND MERITS OF THE APPOINTED CANDIDATE . MOREOVER THE LATTER WAS, UNLIKE THE APPLICANT, ONE OF THE FIVE CANDIDATES ( OUT OF THE TOTAL OF 19 ) WHOM THE ADVISORY COMMITTEE HAD RECOMMENDED SHOULD BE PARTICULARLY CONSIDERED FOR THE POST IN QUESTION; THAT SUPPORTS THE CONCLUSION THAT THE CONTESTED DECISION RESULTED FROM A CONSIDERATION OF THE COMPARATIVE MERITS OF THE CANDIDATES AND AN APPRAISAL OF THE INTERESTS OF THE SERVICE .

16 THE APPLICANT WAS MISTAKEN IN REFERRING, IN SUPPORT OF THIS SUBMISSION, TO THE SPEED WITH WHICH THE CONTESTED DECISION WAS ADOPTED, BEFORE THE NEWLY APPOINTED MEMBERS OF THE COMMISSION TOOK UP THEIR DUTIES ON 1 JANUARY 1986 . THE COMMISSION WAS ENTITLED TO CONSIDER THAT, IN THE CASE OF A NEWLY CREATED UNIT, IT WAS NECESSARY THAT A HEAD OF DIVISION SHOULD BE APPOINTED QUICKLY, BEFORE THE MEMBERS COMMENCED THEIR NEW TERM OF OFFICE . THAT FINDING IS NOT AFFECTED BY THE DELAYS OCCURRING IN THE CASE OF OTHER APPOINTMENTS REFERRED TO BY THE APPLICANT .

17 IT FOLLOWS FROM THE FOREGOING THAT NONE OF THE SUBMISSIONS PUT FORWARD BY THE APPLICANT IS WELL FOUNDED AND THAT THE APPLICATION MUST BE DISMISSED .

COSTS

18 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . HOWEVER, UNDER ARTICLE 70 OF THE RULES OF PROCEDURE THE INSTITUTIONS ARE TO BEAR THEIR OWN COSTS IN PROCEEDINGS BROUGHT BY SERVANTS OF THE COMMUNITIES .

On those grounds,

THE COURT ( Third Chamber )

hereby :

( 1 ) Dismisses the application;

( 2 ) Orders the parties to bear their own costs .