JUDGMENT OF THE COURT OF FIRST INSTANCE (Fifth Chamber)

17 February 1998

Case T-56/96

Alberto Maccaferri

v

Commission of the European Communities

‛Officials — Members of temporary staff — Recruitment procedure — Transfer of post — Absence of statement of reasons — Misuse of powers — Legitimate expectations’

Full text in French   II-133

Application for:

annulment of the decision of the Commission not to appoint the applicant member of the temporary staff in Grade A 4/A 5 in the Directorate-General for Enterprise Policy, Distributive Trades, Tourism and Cooperatives upon the conclusion of Competition 62T/XXIII/93 and, in so far as necessary, of die decision of the Commission to transfer that post to another Directorate-General and to replace it with a Category B budgetary post.

Decision:

Annulment.

Abstract of the Judgment

The applicant worked for a number of years in the public and private sectors in Italy. On 21 April 1993 he entered the service of the Commission as a member of the auxiliary staff. On 1 May 1994, when his contract as a member of the auxiliary staff had expired, the applicant was recruited by the firm James Duncan & Associates, which placed him at the disposal of the Directorate-General for Enterprise Policy, Distributive Trades, Tourism and Cooperatives (DG XXIII) of the Commission.

The applicant participated in Competition 62T/XXIII/93, organised for the purpose of selecting a number of the temporary staff in Grade A 4/A 5 in DG XXIII. By note of 22 July 1994 the President of the Selection Board informed him that he had been included on the list of suitable candidates.

On an unspecified date the Commission subsequently decided to transfer that Grade A 4/A 5 post to another directorate-general and to replace it with a Category B post. A new recruitment procedure for that Category B post was organised. The transfer of this post gave rise to an exchange of letters between various departments of the Commission, in particular between the Directorate-General for Personnel and Administration (DG IX) and DG XXIII, and between the Commission and the trade union Renouveau et Démocratie.

By note of 25 October 1995 Mr Chêne, of the Personnel Directorate of DG IX, informed the President ofthat trade union: ‘I am able to confirm that DG XXIII, in the context of the organisation of its resources, surrendered one of those vacant temporary Category A posts and, consequently, there is a reserve of suitable candidates which has not yet been used. It is intended that this reserve will remain valid for the purpose of filling future temporary Category A posts requiring the same profile. As regards the temporary Grade B 1 post, I am also able to confirm that the normal selection procedure has been followed and that a candidate has been recruited.’

On 20 October 1995 the applicant submitted a complaint against the contested decisions. The Commission failed to reply.

Admissibility

The fact that a candidate has taken part in a competition with the result that he has been placed in a favourable position on the reserve list is evidence of an interest which he has in the outcome of that competition as determined by the appointing authority. In the present case the transfer of die post at issue and its replacement by a Category B post prevented the applicant from being appointed to the post which the competition was intended to fill and which he might expect to fill as a successful candidate in the competition. The Commission's decision not to pursue the selection procedure is therefore capable of adversely affecting the applicant (paragraphs 25 and 26).

See: 26/68 Fia v Commission [1969] ECR 145, para. 3; T-38/89 Hochbaum v Commission [1990] ECR II-43, para. 8; T-37/89 Hanning v Parliament [1990] ECR II-463, para. 23

Substance

First plea, alleging a breach of the provisions of the Staff Regulations on filling vacant posts and of the obligation to state reasons laid down in Article 25 of the Staff Regulations

Although the Staff Regulations of Officials of the European Communities (Staff Regulations) do not place the appointing authority under an obligation, once a recruitment procedure has begun, to pursue it by filling a post declared vacant, the rale is none the less that, in filling a post declared vacant, the appointing authority must proceed with the appointment of successful candidates in accordance with the competition results and can deviate from that rule only for sound reasons, justifying its decision clearly and fully (paragraph 33).

See: Fux v Commission, cited above, paras 11 and 12; 316/82 and 40/83 Kohler v Court of Auditors [1984] ECR 641, para. 22; Harming v Parliament, cited above, para. 48; T-35/96 Rasmussen v Commission [1997] ECRSC II-187, para. 60

When the selection procedure was annulled the Commission was aware of the identity of the candidates who had been entered on the list of suitable candidates and met the conditions necessary to be appointed to the post in issue. In such a case the institution was obliged to inform those concerned of a measure which affected them individually (paragraphs 34 and 35).

See: Rasmussen v Commission, cited above, para. 34

The obligation to state reasons laid down in the first paragraph of Article 11 of the rales applicable to other servants of the European Communities in conjunction with the second paragraph of Article 25 of the Staff Regulations is intended on the one hand to provide the person concerned with sufficient information to determine whether the rejection of his candidature was well founded and whether it is appropriate to bring proceedings before the Court and on the other hand to enable the Court to review the legality of this decision (paragraph 36).

See: T-52/90 Volger v Parliament [1992] ECR II-121, para. 40; T-13/95 Kyrpitsis v ESC [1996] ECRSC II-503, para. 74

In the present case the defendant provided the applicant with no information relating to the transfer of the post in issue. In such circumstances the Commission's decision not to appoint the applicant to the post in issue is vitiated by a complete absence of reasons. Such a breach cannot be remedied by explanations provided following the initiation of proceedings before the Court, since at that stage such explanations no longer fulfil their function (paragraphs 37 and 38).

See: Kyrpitsis v ESC, cited above, paras 68 to 74

Second plea, alleging misuse of powers

A misuse of powers is deemed to exist only where it is shown that, in adopting the measure in issue, the appointing authority pursued a different aim from that referred to by the rules in question or where it appears, on the basis of objective, relevant and consistent evidence, to have been taken for puiposes other then those stated. In the present case the applicant has addressed no evidence of any misuse of powers (paragraphs 46 and 47).

See: Hochbaum v Commission, cited above, para. 22; T-106/92 Frederiksen v Parliament [1995] ECRSC II-99, para. 47; T-586/93 Kolzonis v ESC [1995] ECRSC II-203, para. 73; Rasmussen v Commission, cited above, para. 70

Third plea, alleging a breach of the principle of protection of legitimate expectations

The applicant could not legitimately expect that the appointing authority would pursue the selection procedure in question to its end. The Staff Regulations do not place the appointing authority under an obligation to pursue a recruitment procedure once it has begun by filling the vacant post (paragraph 54).

See: Harming v Parliament, cited above, para. 48

Moreover, an official may not plead a breach of the principle of the protection of legitimate expectations unless the administration has given him precise assurances. Neither the applicant's inclusion on the list of suitable candidates, nor the Commission's letter of 22 August 1994 informing him that he had been included on that list nor the memorandum of 4 August 1994 from Mr Bombassei to Mr von Molelce contains precise assurances that he would be appointed to the post in question, especially as he had no subjective right in that regard (paragraphs 55 and 56).

See: T-123/89 Chomel v Commission [1990] ECR II-131, para. 26; T-587/93 Ortega Urretavizcayav Commission [1996] ECRSC II-1027, para. 57; Rasmussens Commission, città above, para. 63

Operative part;

The decision of the Commission not to appoint the applicant as a member of the temporary staff in Grade A 4/A 5 in the Directorate-General for Enterprise Policy, Distributive Trades, Tourism and Cooperatives upon the conclusion of Competition T/XXIII/93 is annulled.