61969J0012

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OFFICIALS - RECRUITMENT - RATIONALIZATION OF THE ADMINISTRATION FOLLOWING THE MERGER TREATY - VOLUNTARY TRANSFER TO A POST CORRESPONDING TO CAREER BRACKET IMMEDIATELY BELOW THAT APPLICABLE TO GRADE - NATURE - PRIORITY RIGHT OF THE OFFICIAL CONCERNED TO BE TRANSFERRED TO ANY POST CORRESPONDING TO HIS GRADE - GUARANTEES - SUITABILITY OF CANDIDATES HAVING PRIORITY - CONSIDERATION - STATEMENT OF REASONS - DUTIES OF THE ADMINISTRATION - REFERENCE TO THE MERITS OF CANDIDATES NOT ENTITLED TO PRIORITY NOT PERMISSIBLE .

( REGULATION NO 259/68 OF THE COUNCIL, ARTICLE 8 )

THE VOLUNTARY ACCEPTANCE BY CERTAIN SERVANTS OF TRANSFER UNDER ARTICLE 8(1 ) OF REGULATION NO 259/68 CONSTITUTES AN ESSENTIALLY TEMPORARY MEASURE WHICH IS JUSTIFIED BY THE SHORT-TERM REQUIEMENTS OF THE SERVICE FOLLOWING THE MERGER OF THE EXECUTIVES AND CANNOT BE PROLONGED TO THE DETRIMENT OF THE OFFICIAL CONCERNED .

IN VIEW OF THE QUITE EXCEPTIONAL AND TEMPORARY NATURE OF SUCH TRANSFER AND IN ORDER NOT TO DISREGARD THE OBLIGATIONS ARISING UNDER ARTICLE 8(2 ), IT IS NECESSARY TO PROVIDE THE OFFICIALS CONCERNED WITH STRICT GUARANTEES REGARDING THEIR PRIORITY RIGHT .

THE IMPLEMENTATION OF SUCH GUARANTEES REQUIRES THAT THE SUITABILITY OF THE CANDIDATES HAVING PRIORITY BE CONSIDERED INDEPENDENTLY OF ANY REFERENCE TO THE POSSIBLE MERITS OF THOSE WHO HAVE NO SUCH RIGHT .

A CONSIDERATION OF THE SUITABILITY OF THESE CANDIDATES MUST BE BASED ON CONCRETE FACTORS WHICH ARE CAPABLE OF REVIEW; THESE FACTORS MUST APPEAR IN THE MINUTES OF THE COMMISSION .

IN CASE 12/69

GUSTAV WONNERTH, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, RESIDING IN LUXEMBOURG AT 13 RUE SCHOENFELS, BRIDEL, REPRESENTED BY ERNEST ARENDT, ADVOCATE OF THE LUXEMBOURG BAR, 34B RUE PHILIPPE-II, LUXEMBOURG,

APPLICANT,

V

COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, LOUIS DE LA FONTAINE, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF EMILE REUTER, 4 BOULEVARD ROYAL,

DEFENDANT,

APPLICATION :

( 1 ) FOR THE ANNULMENT OF THE DECISION, TAKEN IN PURSUANCE OF VACANCY NOTICE NO COM/161, TO APPOINT MR GUENTER ARNING TO THE VACANT POST OF HEAD OF DIVISION F/2, WORK SAFETY, IN THE DIRECTORATE-GENERAL FOR SOCIAL AFFAIRS, OF WHICH THE APPLICANT WAS INFORMED BY PUBLICATION NO 2/1969 OF 16 JANUARY 1969;

( 2 ) FOR THE ANNULMENT OF THE DECISION INFORMING THE APPLICANT ON 30 JANUARY 1969 THAT IT HAD NOT BEEN POSSIBLE TO ENTERTAIN HIS APPLICATION IN RESPECT OF VACANCY NOTICE NO COM/161;

( 3 ) TO THE EXTENT NECESSARY, FOR THE ANNULMENT OF THE IMPLIED DECISION OF REJECTION ARISING FROM THE ADMINISTRATION'S FAILURE OVER MORE THAN TWO MONTHS TO REPLY TO THE COMPLAINT THROUGH OFFICIAL CHANNELS LODGED BY THE APPLICANT ON 19 DECEMBER 1968 .

1 THE MAIN PURPOSE OF THE APPLICATION IS THE ANNULMENT OF THE DECISION OF THE COMMISSION APPOINTING MR ARNING TO THE POST OF HEAD OF THE WORK SAFETY DIVISION WHICH FORMS PART OF THE DIRECTORATE-GENERAL FOR SOCIAL AFFAIRS, AND REJECTING THE CANDIDATURE OF THE APPLICANT FOR THAT POST .

2 THE DEFENDANT CONSIDERS THAT THE APPLICATION IS INADMISSIBLE TO THE EXTENT TO WHICH IT RELATES TO THE REFUSAL OF THE COMMISSION TO APPOINT THE APPLICANT .

3 THE APPOINTMENT OF MR ARNING NECESSARILY IMPLIES A REFUSAL TO APPLY TO THE APPLICANT IN THIS INSTANCE THE BENEFIT OF ARTICLE 8(2 ) OF REGULATION NO 259/68, WITH THE RESULT THAT THIS DECISION AFFECTS HIM ADVERSELY .

4 THE APPLICATION FOR ANNULMENT IS ADMISSIBLE .

5 THE APPLICANT REQUESTS THE COURT TO GIVE RULINGS ON CERTAIN POINTS .

6 THE PURPOSE OF HIS SEEKING THESE RULINGS IS EITHER TO OBTAIN ACCEPTANCE OF THE VALIDITY OF CERTAIN OF THE SUBMISSIONS PUT FORWARD IN SUPPORT OF THE APPLICATION FOR ANNULMENT, OR TO INDUCE THE COURT AT THIS STAGE TO GIVE INSTRUCTIONS TO THE AUTHORITY RESPONSIBLE FOR ENFORCING THE JUDGMENT TO BE DELIVERED IN THIS INSTANCE .

7 AS REGARDS THESE DIFFERENT POINTS, THE APPLICATION MUST BE DECLARED INADMISSIBLE .

8 FINALLY, THE APPLICATION IS ALSO INADMISSIBLE TO THE EXTENT TO WHICH IT SEEKS THE COMPULSORY INTERVENTION OF MR ARNING, AS THIS FORM OF LEGAL ACTION IS NOT PROVIDED FOR IN THE RULES OF PROCEDURE .

THE SUBSTANCE OF THE CASE

9 THE APPLICANT ALLEGES THAT THE CONTESTED DECISION WAS TAKEN IN VIOLATION OF ARTICLE 8(2 ) OF REGULATION NO 259/68, WHEREBY OFFICIALS WHO, WITHIN THE CONTEXT OF THE MERGER OF THE EXECUTIVES, HAVE ACCEPTED TRANSFER TO A POST CORRESPONDING TO THE CAREER BRACKET IMMEDIATELY BELOW THAT APPLICABLE TO THEIR GRADE, HAVE A PRIORITY RIGHT OF TRANSFER TO ANY POST CORRESPONDING TO THEIR GRADE WHICH MAY FALL VACANT OR BE CREATED PROVIDED THAT THEY ARE SUITABLE FOR THE POST IN QUESTION .

10 HE MAINTAINS, FIRST, THAT ONCE IT HAD BEEN SHOWN THAT HE WAS SUITABLE FOR THE VACANT POST, HE HAD A RIGHT TO BE APPOINTED THERETO WITHOUT ANY NEED FOR HIS MERITS TO BE COMPARED WITH THOSE OF THE CANDIDATES NOT HAVING A PRIORITY RIGHT .

11 HE STATES THAT THE COMMISSION WAS THEREFORE REQUIRED FIRST TO CONSIDER SEPARATELY THE SUITABILITY OF THE CANDIDATES ENTITLED TO THE PRIORITY RIGHT PROVIDED FOR IN ARTICLE 8(2 ).

12 THE PARTIES ACKNOWLEDGE THAT, WHEN A CANDIDATE WHO HAS THIS RIGHT DEMONSTRATES HE IS SUITABLE, HE MUST BE APPOINTED IN PREFERENCE TO CANDIDATES NOT HAVING A PRIORITY RIGHT, ALTHOUGH THE ADMINISTRATION MAY STILL CHOOSE BETWEEN THE VARIOUS PRIORITY CANDIDATES WHO ARE ACKNOWLEDGED TO BE SUITABLE .

13 THE COMMISSION MAINTAINS THAT IT GAVE PRELIMINARY AND SEPARATE CONSIDERATION TO THE PRIORITY CANDIDATES .

14 IT STATES THAT ALTHOUGH IT IS TRUE THAT THIS CONSIDERATION WAS GIVEN WITHIN THE FRAMEWORK OF A RECRUITMENT PROCEDURE CONCERNING BOTH THESE CANDIDATES AND THEIR COMPETITORS WHO HAD NO PRIORITY RIGHT, THIS METHOD OF PROCEEDING IS NORMAL IN SUCH CASES AND IS JUSTIFIED BY THE DESIRE NOT TO ENCUMBER THE RECRUITMENT FORMALITIES .

15 AS A RESULT OF THIS CONSIDERATION, THE COMMISSION TOOK THE VIEW THAT NONE OF THE THREE OFFICIALS WHO HAD PRIORITY RIGHTS AND WHO HAD APPLIED FOR THE POST WAS SUITABLE AND THAT THIS ASSESSMENT FALLS WITHIN THE AREA OF ITS SOLE DISCRETIONARY POWER .

16 THE VOLUNTARY ACCEPTANCE BY CERTAIN SERVANTS OF TRANSFER UNDER ARTICLE 8(1 ) OF REGULATION NO 259/68 CONSTITUTES AN ESSENTIALLY TEMPORARY MEASURE WHICH IS JUSTIFIED BY THE SHORT-TERM REQUIREMENTS OF THE SERVICE FOLLOWING THE MERGER OF THE EXECUTIVES AND CANNOT BE PROLONGED TO THE DETRIMENT OF THE OFFICIAL CONCERNED .

17 IN VIEW OF THE QUITE EXCEPTIONAL AND TEMPORARY NATURE OF SUCH TRANSFER, AND IN ORDER NOT TO COMPROMISE THE REALITY OF THE OBLIGATIONS ARISING UNDER ARTICLE 8(2 ), IT IS NECESSARY TO PROVIDE THE OFFICIALS CONCERNED WITH STRICT GUARANTEES REGARDING THEIR PRIORITY RIGHT .

18 THE IMPLEMENTATION OF SUCH GUARANTEES REQUIRES INTER ALIA THAT THE SUITABILITY OF THE CANDIDATES HAVING PRIORITY BE CONSIDERED INDEPENDENTLY OF ANY REFERENCE TO THE POSSIBLE MERITS OF THOSE WHO HAVE NO SUCH RIGHT .

19 THE MINUTES OF THE MEETING OF THE COMMISSION OF 18 DECEMBER 1968 IN FACT STATE THAT THE COMMISSION " FIRST " CONSIDERED THE POSSIBILITY OF THREE OFFICIALS' BENEFITING FROM THE ABOVEMENTIONED PRIORITY RIGHT .

20 HOWEVER, THE SAME MINUTES SHOW THAT THIS CONSIDERATION WAS PRECEDED BY A DETAILED STATEMENT BY THE COMMISSIONER CONCERNED REGARDING THE QUALIFICATIONS OF ALL THE CANDIDATES WITHOUT DISTINCTION AND THAT THE OPINION OF THE DIRECTOR-GENERAL, WHICH ALSO DEALT WITH ALL THE CANDIDATES, HAD PREVIOUSLY BEEN CONSIDERED . MOREOVER, THE REPORTS OF ALL THE CANDIDATES WITHOUT DISTINCTION WERE KNOWN TO THE MEMBERS OF THE COMMISSION, WHO HAD ALSO HAD A PREVIOUS OPPORTUNITY TO STUDY THE FILES OF BOTH THE NON-PRIORITY AND THE PRIORITY CANDIDATES .

21 THIS METHOD OF PROCEDURE, WHICH LEADS TO COMPARISONS BETWEEN CATEGORIES OF SERVANTS, WHO, IN THIS INSTANCE, COULD NOT COMPETE WITH EACH OTHER, DOES NOT FULLY GUARANTEE TO THE OFFICIALS WHO HAD VOLUNTARILY ACCEPTED PROVISIONAL TRANSFER UNDER ARTICLE 8(1 ) THE FULL BENEFIT OF THE PRIORITY RIGHT CONFERRED ON THEM BY ARTICLE 8 .

22 MOREOVER, BY REASON OF THE PRIORITY TO WHICH SUCH OFFICIALS ARE ENTITLED, A CONSIDERATION OF THEIR ABILITIES MUST BE BASED ON CONCRETE FACTORS WHICH ARE CAPABLE OF REVIEW, TO THE EXTENT TO WHICH SUCH A CONSIDERATION MIGHT RESULT IN THEIR BEING EXCLUDED IN FAVOUR OF CANDIDATES NOT ENTITLED TO SUCH PRIORITY . 23 SUCH FACTORS MUST ONLY CONCERN THE QUALIFICATIONS REQUIRED BY THE VACANCY NOTICE AND MUST APPEAR IN THE MINUTES OF THE COMMISSION .

24 IN THIS CONNEXION, THE MINUTES OF THE MEETING OF THE COMMISSION OF 18 DECEMBER 1968 ONLY CONTAIN CONSIDERATIONS WHICH ARE SO GENERAL THAT THEY DO NOT SATISFY THE REQUIREMENTS INDICATED ABOVE .

25 FOR THESE REASONS THE DECISION INFRINGES ARTICLE 8(2 ) AND MUST BE ANNULLED .

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

27 AS THE DEFENDANT HAS FAILED IN ITS SUBMISSIONS, IT MUST BE ORDERED TO PAY THE COSTS .

THE COURT ( FIRST CHAMBER )

HEREBY :

1 . ANNULS THE DECISION OF THE COMMISSION OF 18 DECEMBER 1968 APPOINTING MR ARNING AS HEAD OF THE DIVISION FOR WORK SAFETY;

2 . ORDERS THE COMMISSION OF THE EUROPEAN COMMUNITIES TO PAY THE COSTS OF THE ACTION .