Keywords
Summary

Keywords

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1. Officials ° Actions ° Prior complaint through official channels ° Definition ° Classification a matter for the Court

(Staff Regulations, Art. 90(2))

2. Officials ° Actions ° Act adversely affecting an official ° Definition ° Preparatory act ° Decision not to follow the procedure laid down in Article 29(1) of the Staff Regulations to fill a vacant post but to follow the procedure laid down in Article 29(2) without excluding the candidatures already submitted

(Staff Regulations, Arts 29 and 90)

3. Officials ° Notice of vacancy ° Internal recruitment procedure not proceeded with and recruitment procedure open to external candidates followed ° Whether permissible ° Conditions set out in the vacancy notice and those in the recruitment notice must be the same where the candidatures received in response to the two notices are considered simultaneously

(Staff Regulations, Art. 29)

4. Officials ° Actions ° Pleas in law ° Misuse of powers ° Definition

5. Officials ° Recruitment ° Application of Article 29(2) of the Staff Regulations ° Selection from among candidates ° Discretion of the appointing authority ° Review by the Court ° Limits

(Staff Regulations, Art. 29(2))

6. Officials ° Recruitment ° Criteria ° Geographical balance ° Candidates' personal merits ° Reconciling of criteria

(Staff Regulations, Arts 7 and 27)

7. Officials ° Recruitment ° Application of Article 29(2) of the Staff Regulations ° Strict interpretation ° Transfer from the Language Service to Category A ° Whether permissible

(Staff Regulations, Arts 29(1) and (2) and 45(2))

8. Officials ° Decision adversely affecting an official ° Rejection of candidature ° Duty to provide reasons no later than the time when the official' s complaint is rejected ° Not fulfilled ° Regularization during the proceedings before the Court ° Not permissible

(Staff Regulations, Arts 25(2) and 90(2))

9. Officials ° Actions ° Unlimited jurisdiction of the Court ° Rejection of candidature unlawful, for lack of reasons ° Annulment an excessive penalty ° Reparation, by means of an award of compensation, of non-material damage caused by the wrongful act

(Staff Regulations, Art. 91(1))

Summary

1. The precise classification of a letter or note is a matter for the Court alone and not for the parties. An official' s letter which, without expressly requesting withdrawal of the decision in question, clearly seeks an amicable settlement of the official' s complaints or a letter which clearly expresses the applicant' s intention to challenge a decision adversely affecting him constitutes a complaint within the meaning of Article 90(2) of the Staff Regulations.

2. Only acts or decisions producing binding legal consequences likely directly and immediately to affect the applicant' s interests by significantly changing his legal situation may be the subject of an action for annulment. Such is not the position as regards an official who has submitted his candidature for a vacant post at a stage at which it is sought to fill the post following the procedure under Article 29(1) of the Staff Regulations, where the appointing authority decides to follow the procedure under Article 29(2), under which his candidature will still be considered. That decision is only a preparatory measure which does not immediately affect the applicant' s legal situation and against which he cannot direct claims for annulment.

3. Where, in filling a vacant post, the appointing authority in using its discretionary power to extend its field of choice in the interests of the service, decides to proceed from an internal recruitment procedure to a recruitment procedure open to external candidates and at the same time decides that the candidates who applied in the internal recruitment procedure are automatically to be taken into consideration in the recruitment procedure open to external candidates, it must ensure that the same conditions are required to be met in both procedures. If it were open to the institutions to change the conditions of participation from one stage to the next when filling a post, in particular by making them less strict, they would be at liberty to organize external recruitment procedures without having to consider internal candidates.

4. The concept of misuse of powers has a precise meaning and refers to cases in which an administrative authority has used its powers for a purpose other than that for which they were conferred on it. A decision may amount to a misuse of powers only if it appears, on the basis of objective, relevant and consistent evidence, to have been taken for purposes other than those stated.

5. When it seeks to fill a vacant Grade A 2 post using the option available under Article 29(2) of the Staff Regulations, the appointing authority has a wide discretion in comparing the merits of the candidates and in assessing the interests of the service. The Court' s review must accordingly be confined to the question whether, having regard to the various considerations which influenced the administration in making its assessment, the administration, after following a procedure untainted by irregularity, has remained within reasonable bounds and has not used its power in a manifestly incorrect way or for purposes other than those for which it was conferred upon it. Furthermore, in comparing the candidates' merits, the appointing authority must proceed on the basis of an assessment of all the qualifications of each candidate possessing the necessary qualifications in relation to the qualifications which are desirable for the post to be filled.

6. In making an appointment to a post, the appointing authority may make nationality the prevailing criterion in order to maintain or restore a geographical balance provided that it has first established on the basis of a comparative examination that the qualifications of the candidates are essentially the same.

7. Article 29(2) of the Staff Regulations is of an exceptional nature and must therefore be strictly interpreted. However, such a strict interpretation is required only in relation to the conditions to be satisfied before the appointing authority may resort to the Article 29(2) procedure. On the other hand, once those conditions have been satisfied, any restriction of the candidatures which may be taken into consideration under that procedure would go against the very purpose of that procedure.

Consequently, the exceptional procedure provided for by Article 29(2) replaces the competition procedure in all respects and in no case can the commencement of that procedure prevent the appointing authority from taking into consideration candidates who could have taken part in the competition procedure if followed. It follows that in allowing an official to be transferred from one service to another or promoted from one category to another by means of a competition, Article 45(2) of the Staff Regulations must be interpreted as meaning that such transfer or promotion is also possible where the appointing authority has duly substituted, for commencement of a competition procedure, adoption of the alternative procedure provided for by Article 29(2) of the Staff Regulations.

Moreover, an interpretation to the effect that Article 45(2) of the Staff Regulations means that transfers from one service to another or promotions from one category to another are prohibited, even in a procedure adopted under Article 29(2), would be unfavourable to officials of the institutions as opposed to external candidates, which would be contrary to the very principles on which Article 29 of the Staff Regulations is based, since Article 29(1) generally gives preference to candidates who are already officials.

8. While the appointing authority is not bound to give reasons for its decisions to appoint officials, it is required to provide reasons for its decision to reject a complaint made under Article 90(2) of the Staff Regulations by a candidate who was not appointed, the reasons for that decision being deemed to be identical to those for the decision against which the complaint was made. The total absence of reasons for an appointment decision cannot be made good by explanations provided by the appointing authority following the bringing of an action, since at that stage such explanations no longer fulfil their function, which is, first, to provide the person concerned with sufficient information to assess whether the rejection of his candidature was well founded and to decide whether it would be appropriate to bring an action before the Court and, secondly, to enable the Court to exercise its power of review.

9. The Court may, given its unlimited jurisdiction in proceedings concerning pecuniary matters, even in the absence of a proper claim to this effect, order the defendant institution to pay compensation for the non-material damage caused by its fault. Where annulment, for lack of reasons, of the decision rejecting the applicant' s candidature and, in consequence, of the decision appointing another candidate would constitute an excessive penalty for the unlawful act committed, having disproportionate adverse effects on that third party' s rights, an award of compensation constitutes the form of reparation which best meets both the applicant' s interests and the requirements of the service.