61992J0115

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1. Officials ° Vacant post ° Filling by promotion or transfer ° Consideration of comparative merits of candidates ° Discretion of the administration ° Choice of a procedure involving interview with each candidate ° Procedure not followed ° Judgment of the Court of First Instance declaring unlawful a decision rejecting the application of an official not invited to interview ° Dismissal of appeal

(Statute of the Court of Justice of the EEC, Art. 51; Staff Regulations, Art. 45(1))

2. Officials ° Act adversely affecting an official ° Rejection of an application for a post ° Obligation to provide a statement of reasons at the latest by the stage of rejection of the complaint ° Failure to comply ° Rectification during legal proceedings ° Not permissible ° Judgment of the Court of First Instance penalizing failure to state grounds ° Dismissal of appeal

(Staff Regulations, second para. of Art. 25 and Art. 90(2))

1. Where the Court of First Instance, in its findings and assessments of fact which fall solely within its jurisdiction, has found on the one hand that the appointing authority, for the purpose of filling a vacant post, has decided in the exercise of its discretion to consider the comparative merits of candidates for promotion or transfer on the basis in particular of an interview with each of the candidates and, on the other hand, that the procedure determined for such consideration has not been followed, inasmuch as not all the candidates were interviewed, that Court was right to declare that a decision rejecting the application of one official who was not invited to interview was unlawful. An appeal against the judgment of the Court of First Instance is therefore unfounded.

2. Although the appointing authority is not required to provide a statement of grounds for promotion or transfer decisions in respect of unsuccessful candidates, it is required to provide a statement of grounds for rejecting a complaint lodged under Article 90(2) of the Staff Regulations by an unsuccessful candidate, the statement of grounds for such a decision being deemed to be the same as the statement of grounds for the decision against which the complaint was directed.

Although it is true that the appointing authority is not, in general, required to reply to a complaint, the position is different where the decision which is the subject of it is not reasoned, since a reasoned reply coming after an action has been commenced would not meet its purpose as regards either the person concerned or the Court.

An appeal against a judgment of the Court of First Instance penalizing such a lack of a statement of grounds is therefore unfounded.

In Case C-115/92 P,

European Parliament, represented first by Jorge Campinos, Jurisconsult, assisted by Christian Pennera, and then represented by the latter, of its Legal Service, acting as Agents, with an address for service in Luxembourg at the Secretariat of the European Parliament, Kirchberg,

appellant,

APPEAL against the judgment of the Court of First Instance of the European Communities (Third Chamber) of 12 February 1992 in Case T-52/90 Volger v Parliament [1992] ECR II-121, claiming that that judgment should be set aside,

the other party to the proceedings being:

Cornelis Volger, represented by Jean-Noël Louis, of the Brussels Bar, with an address for service in Luxembourg at the offices of Fiduciaire Myson SARL, 1 Rue Glesener, who contends that the appeal should be dismissed in its entirety and that the appellant should be ordered to pay the costs,

supported by Union Syndicale-Luxembourg, represented by Gérard Collin and Véronique Leclercq, both of the Brussels Bar, with an address for service in Luxembourg at the offices of Fiduciaire Myson SARL, 1 Rue Glesener,

intervener,

THE COURT (Third Chamber),

composed of: J.C. Moitinho de Almeida, President of the Chamber, F. Grévisse and M. Zuleeg, Judges,

Advocate General: C.O. Lenz,

Registrar: H. von Holstein, Deputy Registrar,

having regard to the Report for the Hearing,

after hearing oral argument from the parties at the hearing on 4 March 1993,

after hearing the Opinion of the Advocate General at the sitting on 1 April 1993,

gives the following

Judgment

1 By application lodged at the Court Registry on 10 April 1992, the European Parliament brought an appeal under Article 49 of the Statute of the Court of Justice of the EEC and the corresponding provisions of the Statutes of the Court of Justice of the ECSC and the EAEC against the judgment of the Court of First Instance of 12 February 1992 in Case T-52/90 Volger v Parliament [1992] ECR II-121, in so far as that judgment annulled the Parliament' s decision of 4 July 1990 rejecting Mr Volger' s application for the post declared vacant by Vacancy Notice No 6084.

2 It may be seen from the findings of the Court of First Instance in its judgment (paragraphs 1 to 9) that on 2 October 1989 the Parliament published that vacancy notice with a view to filling by way of transfer a post of administrator in the information office at The Hague. Before the vacancy notice was published, Mr Volger had had an interview with the head of division of that office with a view to his possible assignment thereto.

3 Mr Volger' s application for the post declared vacant by Vacancy Notice No 6084 was rejected by a standard form sent to him by the recruitment office.

4 On 18 July 1990, Mr Volger lodged a complaint against the decision rejecting his application for the post. As the Parliament did not reply within the period of four months prescribed by the second subparagraph of Article 90(2) of the Staff Regulations of Officials of the European Communities ("the Staff Regulations"), Mr Volger brought an action on 18 December 1990 seeking the annulment of that decision and payment of compensation for the damage suffered. On 20 December 1990 the President of the Parliament, as the appointing authority, sent Mr Volger a decision expressly rejecting his complaint.

5 By the contested judgment the Court of First Instance annulled the decision at issue on the ground that the appointing authority had in the first place failed to comply, with regard to the applicant, with the procedure which it had itself laid down for considering the comparative merits of the candidates for the purpose of filling the post in question, thereby disregarding both the principle of equal treatment and the right of every official to be heard and depriving the applicant of the guarantee of an actual consideration of his comparative merits in respect of his application, and in the second place failed to state the grounds on which his application had been rejected.

6 In its appeal the Parliament challenges first the findings of the Court of First Instance as to the absence of an interview with Mr Volger in the course of the procedure for considering the comparative merits of the candidates and secondly that Court' s interpretation of the obligation laid down by the second paragraph of Article 25 of the Staff Regulations to state the grounds on which its decision had been based.

7 Reference is made to the Report for the Hearing for a fuller account of the course of the procedure and the submissions and arguments of the parties, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.

The plea alleging misappreciation by the Court of First Instance of Mr Volger' s right to be heard during the consideration of the comparative merits of the candidates

8 Before examining whether, in the context of the exercise of its discretion, the Parliament gave lawful consideration to Mr Volger' s comparative merits in relation to his application for the post declared vacant by Vacancy Notice No 6084 (paragraphs 25 and 26 of the contested judgment), the Court of First Instance first of all referred to the judgment of the Court of Justice in Case C-269/90 Hauptzollamt Muenchen-Mitte v Technische Universitaet Muenchen [1991] ECR I-5469, paragraph 14, according to which "where the Community institutions have such a power of appraisal, respect for the rights guaranteed by the Community legal order in administrative procedures is of even more fundamental importance" and which states that those guarantees include in particular "the right of the person concerned to make his views known".

9 The Court of First Instance went on to state (paragraphs 27 and 28 of the contested judgment) that it was apparent from all the documents before it that the appointing authority had intended to assess the respective merits of the candidates on the basis in particular of a discussion between each one and the head of division responsible for the Hague office, and found that, unlike the other candidates, Mr Volger did not have the benefit of such a discussion within the context of the procedure for filling the post in question.

10 The Court of First Instance then declared (paragraph 29 of the contested judgment) that the failure to comply, as regards Mr Volger, with the procedure for considering applications which the appointing authority had itself laid down for filling the post declared vacant by Vacancy Notice No 6084 was such as to vitiate the decision at issue. That decision was accordingly the outcome of an unlawful procedure, regard being had to the principle of equal treatment and the right of officials to a fair hearing.

11 The Parliament complains that the Court of First Instance extended to the sphere of the European public service the concept of the right of the person concerned to make his views known, as defined by the judgment in the Technische Universitaet Muenchen case cited above. It claims in that connection that neither the Staff Regulations nor the relevant case-law require an administrative authority to give a hearing to candidates systematically before proceeding to fill a post, whether by transfer, promotion or competition, unless such a requirement is laid down in the notice of competition. The case-law of the Court of Justice to the effect that the person concerned must be able to make his views known when the administrative authority adopts a measure which is liable gravely to prejudice his interests does not apply, it is claimed, to a situation such as that in this case (Case 75/77 Mollet v Commission [1978] ECR 897).

12 The Parliament adds that the consideration of the comparative merits of candidates on the basis of their staff reports and of their abilities and qualifications, and in the light of the conditions laid down by the vacancy notice, was carried out in this case with full observance of Article 43 and 45 of the Staff Regulations and the requirements of case-law. According to the Parliament the fact that such a consideration was required did not mean that it was wrong for only one of the candidates, whose position was entirely different from Mr Volger' s, to be invited for an interview, since an interview with Mr Volger, who had been assigned for the last 10 years to the directorate general to which the Hague office was responsible, could not change the administrative authority' s assessment based on many years' work with him. The Parliament also remarks that neither the vacancy notice nor any internal instruction from its departments required an interview to be held with each of the candidates and that it had not therefore infringed any rule which it had itself laid down on that point.

13 In that respect it must be stated that the fact that the Court of First Instance found that the right of officials to a hearing during the procedure for considering the applications for the post in question had been infringed was due to its finding that the appointing authority had decided to undertake such a consideration on the basis in particular of an interview with each of the candidates and that, unlike the other candidates, Mr Volger did not have the benefit of such an interview.

14 On the basis of the reply of the President of the Parliament to the complaint by the person concerned and the two memoranda from the Directorate General for Personnel, the Budget and Finance on the one hand and the Directorate General for Information and Public Relations on the other, dated 5 and 27 September 1990 respectively, the Court of First Instance took the view that the appointing authority intended to base its assessment of the candidates' merits in particular on an interview between each one and the head of division responsible for the Hague office.

15 It was on the basis of those factors that the Court of First Instance found that the appointing authority had not observed in this case the procedure for considering the applications upon which it had decided. The Court of Justice has no jurisdiction to call in question that assessment of the facts of the dispute.

16 Since the reasons for the absence of an interview on which the Parliament relies cannot justify the failure to follow a procedure which the appointing authority had itself laid down, this plea must be rejected.

The plea alleging misinterpretation by the Court of First Instance of the requirement of a statement of grounds resulting from the combined provisions of the second paragraph of Article 25 and Article 90(2) of the Staff Regulations.

17 In the contested judgment (paragraphs 36 to 43) the Court of First Instance pointed out that the appointing authority is required to state, at least at the stage of rejection of the complaint, the grounds on which it rejects an application for a post. The Court of First Instance found that before Mr Volger instituted proceedings no reasoned reply had been given to his complaint. It was in fact only after the proceedings had been instituted that the Parliament sent Mr Volger a duly reasoned decision rejecting his complaint.

18 According to the Court of First Instance, the total absence of a statement of the grounds on which a decision is based cannot be remedied by explanations given by the appointing authority after an action has been brought, since at that stage a reasoned reply no longer fulfils its purpose, which is to permit the person concerned to assess the advisability of bringing an action and to enable the Community judicature to exercise its power of review. Moreover, the possibility of rectifying the total absence of a statement of grounds after an action has been brought would impair the applicant' s rights of defence and would offend against the principle of the equality of parties before the Community judicature.

19 The Parliament claims that the Court' s case-law with regard to the nullity of unreasoned administrative acts does not apply in the context of Articles 90 and 91 of the Staff Regulations.

20 In that respect it observes that the implied rejection of a complaint is a lawful situation for which the Staff Regulations expressly provide and that it cannot therefore entail the automatic success of any action brought by an official. Moreover, the interpretation embodied in the judgment of the Court of First Instance would seriously compromise solutions envisaged by the Staff Regulations by way of dialogue between the administrative authority and the official. According to the Parliament, in cases in which, as in this one, the authority' s failure to reply does not allow the official to decide as to the advisability of bringing proceedings, the appropriate solution is to order the institution in question automatically to pay the costs of the action.

21 That argument cannot be upheld.

22 It must be noted that, according to the case-law of the Court, the appointing authority is not required to provide a statement of grounds for promotion decisions with regard to candidates not promoted; it is required, on the other hand, to provide a statement of grounds for its decision rejecting a complaint lodged under Article 90(2) of the Staff Regulations by a candidate who is not promoted (Case 188/73 Grassi v Council [1974] ECR 1099), the statement of grounds for such a decision being deemed to be the same as the statement of reasons for the decision against which the complaint was directed (Case 121/76 Moli v Commission [1977] ECR 1971 and Case 75/77 Mollet v Commission [1978] ECR 897). That case-law applies also in the event of a transfer.

23 Although it is true that the appointing authority is not, in general, required to reply to a complaint, the position is different where the decision which is the subject of it is not reasoned. In fact, as the Court of First Instance has pointed out, a reasoned reply coming after an action has been commenced would not meet its purpose as regards either the person concerned or the Court.

24 In these circumstances it may be held that the Court of First Instance correctly took the view that the decision expressly rejecting Mr Volger' s complaint could not be taken into consideration and on that basis annulled the contested decision, and there is no need to consider the other arguments advanced by the Parliament.

25 It follows from the foregoing considerations that this plea must rejected and consequently the appeal must be dismissed in its entirety.

Costs

26 Under Article 69(2) of the Rules of Procedure the unsuccessful party is to be ordered to pay the costs. Since the Parliament has failed in its pleas it must be ordered to pay the costs, including those of the intervener.

On those grounds,

THE COURT (Third Chamber)

hereby:

1. Dismisses the appeal;

2. Orders the Parliament to pay the costs, including those of the intervener.