61981J0298

1 . OFFICIALS - RECRUITMENT - PROCEDURES - CHOICE - DISCRETION OF THE ADMINISTRATION

( STAFF REGULATIONS OF OFFICIALS , ART . 29 ( 1 ))

2 . OFFICIALS - PROMOTION - CONSIDERATION OF COMPARATIVE MERITS - CRITERIA - INTERESTS OF THE SERVICE - PERSONAL MERITS OF CANDIDATES - DISCRETION OF APPOINTING AUTHORITY - REVIEW BY THE COURT - LIMITS

( STAFF REGULATIONS OF OFFICIALS , ART . 45 )

1 . ARTICLE 29 ( 1 ) OF THE STAFF REGULATIONS PROVIDES FOR VARIOUS POSSIBLE PROCEDURES FOR THE FILLING OF VACANT POSTS , THE FIRST OF WHICH IS A CONSIDERATION OF THE POSSIBILITIES OF PROMOTION OR TRANSFER WITHIN THE INSTITUTION . IT IS FOR THE APPOINTING AUTHORITY TO ASSESS WHETHER IT IS POSSIBLE TO FILL THE VACANT POST BY MEANS OF THAT FIRST PROCEDURE OR WHETHER IT IS APPROPRIATE TO PROCEED TO THE SECOND PROCEDURE ENVISAGED , NAMELY THE ORGANIZATION OF A COMPETITION INTERNAL TO THE INSTITUTION . SINCE PROMOTIONS OR TRANSFERS WITHIN THE INSTITUTION ARE PERMITTED BY THE STAFF REGULATIONS , IT FOLLOWS THAT THE APPOINTING AUTHORITY HAS A WIDE DISCRETION IN THAT RESPECT .

2 . IN ORDER TO EVALUATE THE INTERESTS OF THE SERVICE TOGETHER WITH THE MERITS WHICH MUST BE TAKEN INTO ACCOUNT IN THE CONTEXT OF THE DECISION PROVIDED FOR BY ARTICLE 45 OF THE STAFF REGULATIONS IN A MATTER OF PROMOTION , THE APPOINTING AUTHORITY HAS A WIDE MARGIN OF DISCRETION AND , IN THAT SPHERE , THE COURT MUST RESTRICT ITSELF TO THE QUESTION WHETHER , REGARD BEING HAD TO THE METHODS AND MEANS WHICH MAY HAVE LED TO THE ASSESSMENT MADE BY THE ADMINISTRATION , THE LATTER REMAINED WITHIN BOUNDS WHICH ARE NOT OPEN TO CRITICISM AND DID NOT USE ITS POWER IN A MANIFESTLY INCORRECT MANNER .

WHERE OFFICIALS WHO ARE ELIGIBLE FOR PROMOTION HAVE LENGTHY EXPERIENCE , THE APPOINTING AUTHORITY IS ENTITLED TO TAKE INTO ACCOUNT , IN ORDER TO ASSESS THEIR QUALIFICATIONS FOR THE POST IN QUESTION , IN ADDITION TO THE NUMBER AND THE NATURE OF THE DEGREES HELD BY THEM , THE COMPETENCE AND EFFICIENCY WHICH THEY HAVE SHOWN IN THE SERVICE . MOREOVER , IT CANNOT BE SUGGESTED THAT IT IS A MISUSE OF THE POWER OF DISCRETION TO TAKE INTO ACCOUNT , IN CONJUNCTION WITH OTHER FACTORS , THE AGE OF CANDIDATES AND THEIR SENIORITY IN THE GRADE OR SERVICE . INDEED , THE QUALIFICATIONS AND MERITS OF THE CANDIDATES BEING EQUAL , THOSE MATTERS MAY EVEN CONSTITUTE A DECISIVE FACTOR IN THE APPOINTING AUTHORITY ' S DECISION .

IN CASE 298/81

FRANCO COLUSSI , AN OFFICIAL OF THE EUROPEAN PARLIAMENT , REPRESENTED BY MARCEL SLUSNY OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE APPLICANT ' S RESIDENCE , 36 RUE DE WILTZ ,

APPLICANT ,

V

EUROPEAN PARLIAMENT , REPRESENTED BY THE DIRECTOR OF PERSONNEL AND SOCIAL AFFAIRS , MARTIN SCHMIDT , ACTING AS AGENT , ASSISTED BY ALEX BONN OF THE LUXEMBOURG BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF MR BONN , 22 COTE D ' EICH ,

DEFENDANT ,

APPLICATION FOR THE ANNULMENT OF A DECISION TO PROMOTE AN OFFICIAL ,

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 27 NOVEMBER 1981 , FRANCO COLUSSI , AN OFFICIAL OF THE EUROPEAN PARLIAMENT , BROUGHT AN ACTION FOR THE ANNULMENT OF THE DECISION OF THE PRESIDENT OF THE PARLIAMENT TO APPOINT MRS CATTARINO AS LINGUISTIC ADVISER IN THE ITALIAN TRANSLATION DIVISION .

2 BY VACANCY NOTICE NO 2690 OF 14 JULY 1980 , THE PARLIAMENT INITIATED THE PROCEDURE FOR FILLING SEVEN POSTS OF LINGUISTIC ADVISER IN GRADE L/A 3 , ONE OF WHICH WAS IN THE ITALIAN TRANSLATION DIVISION , INITIALLY BY PROMOTION OR TRANSFER .

3 THE APPLICANT TOGETHER WITH TWO OTHER OFFICIALS , INCLUDING MRS CATTARINO , ALL THREE IN GRADE L/A 4 , SUBMITTED APPLICATIONS FOR THE POST IN THE ITALIAN DIVISION .

4 IN ORDER TO SUPPLEMENT HIS APPLICATION FORM , THE APPLICANT DREW ATTENTION TO THE FACT THAT IN ADDITION TO A DEGREE IN LANGUAGES , SINCE 1978 HE HAS ALSO HAD A DEGREE IN LAW . HE EXPRESSLY REQUESTED THAT THE APPOINTMENT TO THE POST BE BASED ON A GENUINE COMPARISON OF QUALIFICATIONS AND MERITS AND NOT ON THE AGE OF THE CANDIDATES .

5 BY A MEMORANDUM OF 8 OCTOBER 1980 , THE HEAD OF THE ITALIAN TRANSLATION DIVISON INFORMED THE DIRECTOR OF TRANSLATION AND TERMINOLOGY OF THE RESULT OF HIS CONSIDERATION OF THE APPLICATIONS . HE PROPOSED THE PROMOTION OF MRS CATTARINO IN VIEW OF THE FACT THAT ALTHOUGH SHE AND THE APPLICANT BOTH HAD EXCELLENT REPORTS , MRS CATTARINO , WHO HAD FOR YEARS REGULARLY REPLACED THE HEAD OF DIVISION WHEN HE WAS ABSENT , WAS THE OLDER AND HAD GREATER SENIORITY IN THE GRADE AND IN THE SERVICE .

6 ON 1 DECEMBER 1980 , THE PRESIDENT OF THE PARLIAMENT , ACTING AS THE APPOINTING AUTHORITY , PROMOTED MRS CATTARINO TO BE LINGUISTIC ADVISER IN GRADE L/A 3 .

7 THE COMPLAINT WITHIN THE MEANING OF ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS , WHICH THE APPLICANT SUBMITTED AGAINST THE DECISION NOT TO APPOINT HIM LINGUISTIC ADVISER AND AGAINST THE IMPLIED REJECTION OF THE REQUEST WHICH ACCOMPANIED HIS APPLICATION FOR THE POST WAS REJECTED BY DECISION OF THE PRESIDENT OF THE PARLIAMENT ON 4 DECEMBER 1981 AND THE APPLICANT CONSEQUENTLY BROUGHT THE PRESENT ACTION .

8 IN SUPPORT OF HIS ACTION , THE APPLICANT PUTS FORWARD A SERIES OF SUBMISSIONS SOME OF WHICH RELATE TO QUESTIONS OF FORM AND PROCEDURE AND OTHERS TO THE SUBSTANCE OF THE DISPUTED DECISION .

SUBMISSIONS RELATING TO FORM AND PROCEDURE

9 THE APPLICANT CLAIMS IN THE FIRST PLACE THAT THE PRESIDENT OF THE PARLIAMENT WAS NOT COMPETENT TO TAKE THE DISPUTED DECISION BECAUSE THE POWER TO MAKE SUCH A PROMOTION HAD NOT BEEN VALIDLY DELEGATED .

10 IN THAT RESPECT IT SHOULD BE NOTED THAT , BY DECISION NO 175/62 OF 12 DECEMBER 1962 OF THE BUREAU OF THE PARLIAMENT , ADOPTED IN ACCORDANCE WITH ARTICLE 2 OF THE STAFF REGULATIONS , THE PRESIDENT OF THE PARLIAMENT , ACTING ON A PROPOSAL OF THE SECRETARY GENERAL , WAS DESIGNATED AS APPOINTING AUTHORITY , IN PARTICULAR FOR THE APPLICATION OF ARTICLE 45 OF THE STAFF REGULATIONS TO OFFICIALS IN CATEGORIES A AND L/A IN THE GRADE IN QUESTION . ACCORDING TO THE RULES OF PROCEDURE OF PARLIAMENT BOTH IN THE VERSION APPLICABLE WHEN THE ABOVE DECISION OF THE BUREAU WAS ADOPTED AND IN THAT APPLICABLE AT THE MATERIAL TIME , THE COMPOSITION AND ORGANIZATION OF THE SECRETARIAT OF THE PARLIAMENT ARE DETERMINED BY THE BUREAU , WHICH ALSO ESTABLISHES THE NUMBER OF EMPLOYEES AND THE RULES RELATING TO THEIR ADMINISTRATIVE AND FINANCIAL SITUATION . IT IS THEREFORE COMPETENT TO DESIGNATE THE APPOINTING AUTHORITY . UNDER THOSE CIRCUMSTANCES THE AUTHORITY OF THE PRESIDENT OF THE PARLIAMENT TO TAKE THE DISPUTED DECISION IS BEYOND QUESTION .

11 THE APPLICANT FURTHER MAINTAINS THAT ACCORDING TO THE PRINCIPLE OF NEMO JUDEX IN RE SUA THE PRESIDENT OF THE PARLIAMENT WAS NOT EMPOWERED TO ARRIVE AT A DECISION ON THE COMPLAINT LODGED AGAINST A DECISION TAKEN BY HIMSELF .

12 IN THAT RESPECT IT SHOULD BE NOTED THAT ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS PROVIDES A PRELIMINARY MEANS OF SEEKING REDRESS WHEREBY THE ADMINISTRATION IS ENABLED TO RECONSIDER ITS DECISION BEFORE AN APPLICATION IS MADE TO THE COURT . UNDER THE TERMS OF THAT ARTICLE THE COMPLAINT MUST BE ADDRESSED , THROUGH OFFICIAL CHANNELS , TO THE APPOINTING AUTHORITY , THAT IS TO SAY IN THIS CASE , PURSUANT TO THE ABOVE-MENTIONED DECISION NO 175/62 OF 12 DECEMBER 1962 , THE PRESIDENT OF THE PARLIAMENT . IN ACCORDANCE WITH THE REQUIREMENTS OF THE STAFF REGULATIONS , THE PRESIDENT THEREFORE HAD NO ALTERNATIVE BUT TO DECIDE ON THE COMPLAINT HIMSELF .

13 FINALLY THE APPLICANT CLAIMS THAT THE PRESIDENT OF THE PARLIAMENT DID NOT HIMSELF DECIDE ON THE APPOINTMENT TO BE MADE . THAT IS SHOWN BY THE WORDING OF HIS DECISION REJECTING THE APPLICANT ' S COMPLAINT , WHICH REFERRED TO A THOROUGH INVESTIGATION UNDERTAKEN BY HIS STAFF .

14 IN THAT RESPECT IT SHOULD BE NOTED THAT THE APPOINTING AUTHORITY MAY ENLIST THE SERVICES OF ADMINISTRATIVE STAFF FOR THE ACCOMPLISHMENT OF ITS TASK . IN THIS CASE THE DECISION WAS SIGNED BY THE PRESIDENT OF THE PARLIAMENT , AND THERE IS NO REASON TO SUPPOSE THAT THE DECISION WAS NOT TAKEN BY THAT AUTHORITY IN PERSON , EVEN IF HIS STAFF PARTICIPATED IN THE PREPARATION .

15 THE APPLICANT ' S SUBMISSIONS RELATING TO FORM AND PROCEDURE ARE THEREFORE UNFOUNDED .

THE SUBMISSIONS AS TO SUBSTANCE

16 THE APPLICANT MAINTAINS IN THE FIRST PLACE THAT THE VACANCY NOTICE ON THE BASIS OF WHICH THE DISPUTED DECISION WAS ADOPTED IS VOID ON THE GROUND THAT IT DID NOT PROVIDE FOR THE ORGANIZATION OF AN INTERNAL COMPETITION DESPITE THE FACT THAT BECAUSE OF THE NOVELTY OF THE POST A COMPETITION WOULD HAVE BEEN THE SOLE MEANS OF EVALUATING THE CANDIDATES ' QUALIFICATIONS .

17 IT SHOULD BE RECALLED IN THAT RESPECT THAT ARTICLE 29 ( 1 ) OF THE STAFF REGULATIONS PROVIDES FOR VARIOUS POSSIBLE PROCEDURES FOR THE FILLING OF VACANT POSTS , THE FIRST OF WHICH IS A CONSIDERATION OF THE POSSIBILITIES OF PROMOTION OR TRANSFER WITHIN THE INSTITUTION . IT IS FOR THE APPOINTING AUTHORITY TO ASSESS WHETHER IT IS POSSIBLE TO FILL THE VACANT POST BY MEANS OF THAT FIRST PROCEDURE OR WHETHER IT IS APPROPRIATE TO PROCEED TO THE SECOND PROCEDURE ENVISAGED , NAMELY THE ORGANIZATION OF A COMPETITION INTERNAL TO THE INSTITUTION . SINCE PROMOTIONS OR TRANSFERS WITHIN THE INSTITUTION ARE PERMITTED BY THE STAFF REGULATIONS , IT FOLLOWS THAT THE APPOINTING AUTHORITY HAS A WIDE DISCRETION IN THAT RESPECT .

18 IN THIS CASE THERE IS NO REASON FOR TAKING THE VIEW THAT THE APPOINTING AUTHORITY MISUSED THAT POWER BY REACHING THE CONCLUSION THAT IT WAS POSSIBLE TO FILL THE VACANT POST BY AN EXAMINATION OF THE OPPORTUNITIES FOR PROMOTION OR TRANSFER .

19 THE APPLICANT ALSO MAINTAINS THAT IT HAS NOT BEEN ESTABLISHED THAT THE APPOINTING AUTHORITY GENUINELY CONSIDERED THE MERITS AND THE PERIODIC REPORTS OF THE VARIOUS CANDIDATES . HE FURTHER CLAIMS THAT THE POST IN QUESTION , LIKE THE POSTS OF ADVISER IN THE OTHER DIVISIONS , WAS RESERVED FOR THE OLDEST OFFICIAL AND FINALLY THAT HIS OWN ABILITIES AND DEGREES WERE MORE IMPRESSIVE THAN THOSE OF THE OFFICIAL PROMOTED .

20 AS THE CASE CONCERNS A DECISION TO PROMOTE AN OFFICIAL , IT SHOULD FIRST BE EMPHASIZED THAT IN ORDER TO EVALUATE THE INTERESTS OF THE SERVICE TOGETHER WITH THE MERITS WHICH MUST BE TAKEN INTO ACCOUNT IN THE CONTEXT OF THE DECISION PROVIDED FOR BY ARTICLE 45 OF THE STAFF REGULATIONS , THE APPOINTING AUTHORITY HAS A WIDE MARGIN OF DISCRETION AND THAT , IN THAT SPHERE , THE COURT MUST RESTRICT ITSELF TO THE QUESTION WHETHER , REGARD BEING HAD TO THE METHODS AND MEANS WHICH MAY HAVE LED TO THE ASSESSMENT MADE BY THE ADMINISTRATION , THE LATTER REMAINED WITHIN BOUNDS WHICH ARE NOT OPEN TO CRITICISM AND DID NOT USE ITS POWER IN A MANIFESTLY INCORRECT MANNER .

21 IN THIS CASE THERE IS NO SINGLE FACTOR IN THE PAPERS ON THE CASE WHICH MAKES IT POSSIBLE TO STATE THAT THE PRESIDENT OF THE PARLIAMENT DID NOT ACTUALLY ASSESS THE QUALIFICATIONS AND MERITS OF THE VARIOUS CANDIDATES . IN PARTICULAR , THE APPLICANT HAS NOT ESTABLISHED THAT THE PRESIDENT OF THE PARLIAMENT HAD DECIDED FROM THE OUTSET TO SELECT THE OLDEST CANDIDATE IRRESPECTIVE OF THE MERITS AND QUALIFICATIONS OF THE VARIOUS CANDIDATES . INDEED THE APPOINTMENTS MADE IN SOME OTHER DIVISIONS DISPROVE THAT ALLEGATION .

22 IN VIEW OF THE FACT THAT THE OFFICIALS INVOLVED HAD LENGTHY EXPERIENCE , THE APPOINTING AUTHORITY WAS ENTITLED TO TAKE INTO ACCOUNT , IN ORDER TO ASSESS THEIR QUALIFICATIONS FOR THE POST IN QUESTION , IN ADDITION TO THE NUMBER AND THE NATURE OF THE DEGREES HELD BY THE APPLICANT AND MRS CATTARINO , THE COMPETENCE AND EFFICIENCY WHICH THEY HAD SHOWN IN THE SERVICE . MOREOVER , IT CANNOT BE SUGGESTED THAT IT WAS A MISUSE OF THE POWER OF DISCRETION TO TAKE INTO ACCOUNT , IN CONJUNCTION WITH OTHER FACTORS , THE AGE OF CANDIDATES AND THEIR SENIORITY IN THE GRADE OR SERVICE . INDEED , THE QUALIFICATIONS AND MERITS OF THE CANDIDATES BEING EQUAL , THOSE MATTERS MAY EVEN CONSTITUTE A DECISIVE FACTOR IN THE APPOINTING AUTHORITY ' S DECISION .

23 IT FOLLOWS THAT THE SUBMISSIONS RELATING TO THE SUBSTANCE OF THE DISPUTED DECISION MUST ALSO BE REJECTED AND THE ACTION MUST THEREFORE BE DISMISSED AS UNFOUNDED .

COSTS

24 UNDER THE TERMS OF ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . NEVERTHELESS , PURSUANT TO ARTICLE 70 OF THE RULES OF PROCEDURE COSTS INCURRED BY THE INSTITUTIONS IN PROCEEDINGS BROUGHT BY SERVANTS OF THE COMMUNITIES ARE TO BE BORNE BY THOSE INSTITUTIONS .

ON THOSE GROUNDS ,

THE COURT ( THIRD CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION AS UNFOUNDED ;

2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .