61983J0018

1 . OFFICIALS - RECRUITMENT - OBLIGATION OF THE ADMINISTRATION TO FILL A POST WHICH HAS BECOME VACANT - NONE

( STAFF REGULATIONS , ARTS 4 AND 29 )

2.OFFICIALS - DECISIONS ADVERSELY AFFECTING AN OFFICIAL - STATEMENT OF REASONS - OBLIGATION - PURPOSE - SCOPE - ASSESSMENT WITH REGARD TO MEASURES FOR ORGANIZATION OF THE SERVICE

( STAFF REGULATIONS , ART . 25 )

1 . THE PROVISIONS OF THE STAFF REGULATIONS REGARDING THE FILLING OF VACANT POSTS ARE INTENDED TO PROVIDE A GUARANTEE FOR CANDIDATES THAT THE APPOINTING AUTHORITY WILL MAKE APPOINTMENTS ONLY IN CONFORMITY WITH THE RULES PRESCRIBED BY LAW . HOWEVER , IT DOES NOT FOLLOW FROM THOSE PROVISIONS THAT ONCE A RECRUITMENT PROCEDURE HAS BEEN INITIATED THE SAID AUTHORITY IS NECESSARILY OBLIGED TO PURSUE IT BY FILLING THE POST WHICH HAS BECOME VACANT .

2.THE STATEMENT OF THE REASONS ON WHICH A DECISION ADVERSELY AFFECTING AN OFFICIAL IS BASED MUST ENABLE THE COURT TO REVIEW THE LEGALITY THEREOF AND MUST PROVIDE THE PERSON CONCERNED WITH DETAILS SUFFICIENT TO ALLOW HIM TO ASCERTAIN WHETHER OR NOT THE DECISION IS WELL FOUNDED . THE REQUIREMENT OF A STATEMENT OF REASONS MUST NEVERTHELESS BE CONSIDERED IN THE CONTEXT OF THE CIRCUMSTANCES OF THE CASE , PARTICULARLY THE SCOPE OF THE MEASURE , THE NATURE OF THE REASONS RELIED UPON AND THE INTEREST WHICH THE ADDRESSEE MAY HAVE IN RECEIVING AN EXPLANATION .

PARTICULARLY IN THE CASE OF A MEASURE INVOLVING THE ORGANIZATION OF THE SERVICE , THE OBLIGATION TO GIVE A STATEMENT OF GROUNDS MUST MOREOVER BE RELATED TO THE MARGIN OF DISCRETION AVAILABLE TO THE APPOINTING AUTHORITY IN THIS CONNECTION .

IN CASE 18/83

DOMENICO MORINA , AN OFFICIAL OF THE EUROPEAN PARLIAMENT , OF 32 RUE DE KEHLEN , MAMER , REPRESENTED BY VICTOR BIEL , OF THE LUXEMBOURG BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE LATTER ' S CHAMBERS , 18 A RUE DES GLACIS ,

APPLICANT ,

V

EUROPEAN PARLIAMENT , REPRESENTED BY MANFRED PETER , HEAD OF THE LEGAL AND ADMINISTRATIVE QUESTIONS DIVISION , ASSISTED BY ALEX BONN , OF THE LUXEMBOURG BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE LATTER ' S CHAMBERS , 22 COTE D ' EICH ,

DEFENDANT ,

APPLICATION FOR THE ANNULMENT OF A PROCEDURE FOR FILLING A POST OF PRINCIPAL ADMINISTRATOR ( VACANCY NOTICE NO 3285 ),

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 7 FEBRUARY 1983 , DOMENICO MORINA , AN ADMINISTRATOR IN GRADE A 6 IN THE DIRECTORATE GENERAL FOR RESEARCH AND DOCUMENTATION ( DG V ) OF THE EUROPEAN PARLIAMENT , BROUGHT AN ACTION REGARDING THE CANCELLATION BY THE EUROPEAN PARLIAMENT OF A PROCEDURE TO FILL THE POST OF A PRINCIPAL ADMINISTRATOR ( CAREER BRACKET A 5/A 4 ) IN THE LEGAL AFFAIRS DIVISION OF THAT DIRECTORATE GENERAL ( VACANCY NOTICE NO 3285 OF 3 NOVEMBER 1981 ).

2 THE APPLICANT , WHO WAS ELIGIBLE FOR PROMOTION WITHIN THE MEANING OF ARTICLE 45 OF THE STAFF REGULATIONS , HAD APPLIED FOR THE VACANT POST , THE VACANCY NOTICE FOR WHICH STATED THAT THE POST WOULD BE FILLED FOR PREFERENCE BY MEANS OF TRANSFER OR PROMOTION .

3 BY DECISION OF 6 MAY 1982 , THE SECRETARY GENERAL OF THE EUROPEAN PARLIAMENT ORDERED THE IMMEDIATE TRANSFER OF THE POST TO THE TREASURY AND ACCOUNTS DIVISION OF DIRECTORATE GENERAL IV . SINCE THAT TRANSFER ENTAILED A CHANGE IN THE NATURE OF THE DUTIES ATTACHING TO THE POST , THE ADMINISTRATION CANCELLED THE PROCEDURE TO FILL THE POST AND INFORMED THE APPLICANT THEREOF BY MEANS OF A NOTIFICATION SLIP BEARING THE WORDS ' ' PROCEDURE CANCELLED BY THE APPOINTING AUTHORITY ' ' .

4 ON 29 JULY 1982 , MR MORINA LODGED A COMPLAINT AGAINST THAT CANCELLATION UNDER ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS AND ASKED TO BE INFORMED OF THE REASONS THEREFOR . BY LETTER OF 3 NOVEMBER 1982 THE PRESIDENT OF THE PARLIAMENT REJECTED THE COMPLAINT , STATING THAT THE PROCEDURE FOR FILLING THE POST HAD BEEN INTERRUPTED BECAUSE THE POST HAD BEEN TRANSFERRED TO DIRECTORATE GENERAL IV AND THE TRANSFER HAD MADE IT IMPOSSIBLE FOR THE PROCEDURE TO CONTINUE ON THE BASIS OF THE VACANCY NOTICE . THE LETTER ADDED THAT ' ' THE DECISIONS TAKEN WERE ADOPTED FOR IMPERATIVE REASONS RELATING TO THE SERVICE AND HAVE NO PERSONAL CONNECTION WITH YOUR APPLICATION ' ' .

5 THIS APPLICATION , WHICH WAS LODGED ON 7 FEBRUARY 1983 , SEEKS ON THE ONE HAND CANCELLATION OF THE DECISION TRANSFERRING THE POST AND , ON THE OTHER , A FINDING THAT THE INTERRUPTION OF THE PROCEDURE FOR FILLING THE POST WAS UNLAWFUL .

ADMISSIBILITY

6 THE EUROPEAN PARLIAMENT , WITHOUT FORMALLY RAISING AN OBJECTION OF INADMISSIBILITY , HAS EXPRESSED DOUBTS REGARDING THE ADMISSIBILITY OF THE APPLICATION IN SO FAR AS ITS SUBJECT-MATTER IS DIFFERENT FROM THAT OF THE COMPLAINT . THE COMPLAINT SHOULD BE REGARDED , IT STATES , AS A MERE REQUEST FOR CLARIFICATION AS TO THE REASONS FOR THE CANCELLATION OF THE PROCEDURE FOR FILLING THE POST , WHEREAS THE APPLICATION SEEKS ANNULMENT OF THE DECISION TRANSFERRING THE POST .

7 IT IS APPARENT FROM THE COMPLAINT THAT , WHILST THE APPLICANT DID IN FACT ASK FOR INFORMATION REGARDING THE REASONS FOR CANCELLATION OF THE PROCEDURE FOR FILLING THE POST , HE ALSO TOOK CARE TO EXPLAIN THAT IN THE ABSENCE OF CLARIFICATION AS TO THOSE REASONS HE WOULD BE OBLIGED TO BRING AN ACTION BEFORE THE COURT FOR ANNULMENT OF A DECISION WHICH MANIFESTLY AFFECTED HIM ADVERSELY . IN THOSE CIRCUMSTANCES , THERE IS NO DISPARITY BETWEEN THE COMPLAINT AND THE APPLICATION AND THE APPLICATION MUST BE CONSIDERED ADMISSIBLE .

SUBSTANCE

8 THE APPLICANT COMPLAINS IN THE FIRST PLACE THAT THE EUROPEAN PARLIAMENT BREACHED THE PRINCIPLES OF THE PROTECTION OF LEGITIMATE EXPECTATION AND GOOD ADMINISTRATION BY TRANSFERRING THE VACANT POST DURING THE PROCEDURE FOR FILLING IT AND THUS WITHDRAWING ITS OFFER OF EMPLOYMENT .

9 AS THE COURT HELD IN ITS JUDGMENT OF 24 JUNE 1969 ( CASE 26/68 FUX ( 1969 ) ECR 107 ), THE PROVISIONS OF THE STAFF REGULATIONS REGARDING THE FILLING OF VACANT POSTS ARE INTENDED TO PROVIDE A GUARANTEE FOR THE PERSON CONCERNED THAT THE APPOINTING AUTHORITY WILL MAKE APPOINTMENTS ONLY IN CONFORMITY WITH THE RULES PRESCRIBED BY LAW . HOWEVER , IT DOES NOT FOLLOW FROM THOSE PROVISIONS THAT ONCE A RECRUITMENT PROCEDURE HAS BEEN INITIATED THE SAID AUTHORITY IS NECESSARILY OBLIGED TO PURSUE IT BY FILLING THE POST WHICH HAS BECOME VACANT . THAT SUBMISSION MUST THEREFORE BE REJECTED .

10 THE APPLICANT ALSO MAINTAINS THAT THE DECISION TRANSFERRING THE POST IN QUESTION DID NOT SUFFICIENTLY STATE THE REASONS ON WHICH IT WAS BASED IN RELATION TO THE APPLICANT , SINCE IT CONTAINED NO EXPLANATION REGARDING THE ALLEGED INTERESTS OF THE SERVICE INVOKED BY THE PARLIAMENT .

11 THE STATEMENT OF THE REASONS ON WHICH A DECISION ADVERSELY AFFECTING AN OFFICIAL IS BASED MUST ENABLE THE COURT TO REVIEW THE LEGALITY THEREOF AND MUST PROVIDE THE PERSON CONCERNED WITH DETAILS SUFFICIENT TO ALLOW HIM TO ASCERTAIN WHETHER OR NOT THE DECISION IS WELL FOUNDED . THE REQUIREMENT OF A STATEMENT OF REASONS MUST NEVERTHELESS BE CONSIDERED IN THE CONTEXT OF THE CIRCUMSTANCES OF THE CASE , PARTICULARLY THE SCOPE OF THE MEASURE , THE NATURE OF THE REASONS RELIED UPON AND THE INTEREST WHICH THE ADDRESSEE MAY HAVE IN RECEIVING AN EXPLANATION . PARTICULARLY IN THE CASE OF A MEASURE INVOLVING THE ORGANIZATION OF THE SERVICE , IT MUST BE EMPHASIZED , MOREOVER , THAT THE OBLIGATION TO GIVE A STATEMENT OF GROUNDS MUST BE RELATED TO THE MARGIN OF DISCRETION AVAILABLE TO THE APPOINTING AUTHORITY IN THIS CONNECTION , AS THE COURT HELD IN ITS JUDGMENTS OF 28 MAY 1980 ( JOINED CASES 33 AND 75/79 KUHNER ( 1980 ) ECR 1677 ) AND OF 29 OCTOBER 1981 ( CASE 125/80 ARNING ( 1981 ) ECR 2539 ).

12 ALTHOUGH , IN THE PRESENT CASE , THE ADMINISTRATION INITIALLY CONFINED ITSELF TO INFORMING THE APPLICANT OF THE FACT THAT THE PROCEDURE FOR FILLING THE POST HAD BEEN CANCELLED , WITHOUT STATING THE REASONS FOR SO DOING , IT NEVERTHELESS STATED , IN RESPONSE TO HIS COMPLAINT , THAT THE PROCEDURE HAD BEEN INTERRUPTED BECAUSE OF THE TRANSFER OF THE POST AND THAT THE CONTESTED DECISIONS HAD BEEN ADOPTED FOR REASONS RELATING TO THE SERVICE WHICH WERE UNCONNECTED WITH THE APPLICANT ' S APPLICATION . IN THIS CASE , A STATEMENT OF REASONS OF THAT KIND MUST BE REGARDED AS SUFFICIENT TO ENABLE THE APPLICANT TO SAFEGUARD HIS RIGHTS . THAT SUBMISSION ALSO MUST THEREFORE BE REJECTED .

13 THE APPLICANT FINALLY ACCUSES THE PARLIAMENT OF MISUSING ITS POWERS IN SO FAR AS THE TRANSFER WAS DECIDED UPON NOT IN THE INTERESTS OF THE SERVICE BUT IN ORDER TO ELIMINATE THE APPLICANT AND TO FAVOUR ANOTHER OFFICIAL .

14 IT SHOULD BE NOTED IN THAT CONNECTION THAT THE APPLICANT HAS GIVEN NO DETAILS OF HIS COMPLAINT AND HAS NOT ADDUCED ANY EVIDENCE TO SUPPORT SUCH AN ALLEGATION . MOREOVER , IN VIEW OF THE EXPLANATIONS GIVEN BY THE EUROPEAN PARLIAMENT AT THE HEARING , THE INTERESTS OF THE SERVICE UPON WHICH IT RELIES HAVE BEEN ESTABLISHED . THIS SUBMISSION MUST THEREFORE LIKEWISE BE REJECTED .

15 SINCE NONE OF THE APPLICANT ' S SUBMISSIONS HAS BEEN SUCCESSFUL , THIS ACTION MUST BE DISMISSED .

COSTS

16 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE , THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS IF THEY HAVE BEEN ASKED FOR IN THE SUCCESSFUL PARTY ' S PLEADING .

17 HOWEVER , BY VIRTUE OF ARTICLE 70 OF THE RULES OF PROCEDURE , THE COSTS INCURRED BY INSTITUTIONS IN ACTIONS BROUGHT BY SERVANTS OF THE COMMUNITIES ARE TO BE BORNE BY THE INSTITUTIONS .

ON THOSE GROUNDS ,

THE COURT ( THIRD CHAMBER )

HEREBY :

1 . DIMISSES THE APPLICATION ;

2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .