JUDGMENT OF THE COURT OF FIRST INSTANCE (Fifth Chamber)

11 November 2003

Case T-248/02

Carla Faita

v

Economic and Social Committee of the European Communities

‛Officials — Vacant posts — Article 29(1) of the Staff Regulations — Appointments procedure — Manifest error of assessment — Statement of reasons’

Full text in French   II-1365

Application for:

annulment of the decisions of the Economic and Social Committee of the European Communities of 20 September 2001 rejecting the applicant's candidature for the post of head of the Italian Translation and Typing Unit of the Directorate for Logistics and Translation and the decision of 16 October 2001 appointing another candidate to the post.

Held:

The application is dismissed. The parties are ordered to bear their own costs.

Summary

1. Officials — Decision 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 — Scope

   (Staff Regulations, Art. 90(2))

2. Officials — Recruitment — Procedures — Choice — Discretion of the administration

   (Staff Regulations, Art. 29(1))

3. Officials — Vacant post — Filling by promotion or transfer — Consideration of the comparative merits of candidates — Discretion of the administration — Obligation of the administration to adduce proof of the reality of the consideration of comparative merits

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

4. Officials — Actions — Pleas in law — Misuse of power — Concept

5. Officials — Vacant post — Filling by promotion or transfer — Consideration of comparative merits — Discretion of the appointing authority — Limits — Compliance with conditions laid down in the notice of vacancy — Judicial review

   (Staff Regulations, Arts 7 and 29)

1.  Where a decision rejects a candidature for a post declared vacant, the appointing authority is required to provide a statement of the grounds, at least at the stage of rejection of the complaint against such a decision. As promotions and transfers are by selection, however, the reasons for the rejection of a complaint need concern only the fulfilment of the legal conditions on which, under the Staff Regulations, the lawfulness of the procedure depends.

   (see para. 28)

   See: T-52/90 Volger y Parliament [1992] ECR II-121, para. 36; T-25/92 Vela Palacios v ESC [1993] ECR II-201, para. 22; T-16/94 Benecos v Commission [1995] ECRSC I-A-103 and II-335, para. 31; T-13/95 Kyrpitsis v ESC [1996] ECRSC I-A-167 and II-503, para. 68; T-330/00 and T-114/01 Cocchi and Hainz v Commission [2002] ECRSC I-A-193 and II-987, para. 55

2.  The appointing authority enjoys a wide discretion for the purpose of finding candidates with the highest standard of ability, efficiency and integrity. The use of the formulation ‘whether ... can’ in Article 29(1) of the Staff Regulations clearly indicates that the appointing authority is not bound absolutely, where a vacant post is to be filled, to fill that post by way of promotion or transfer, but merely to consider in each case whether those measures are capable of resulting in the appointment of a person of the highest standard of ability, efficiency and integrity.

   (see para. 45)

   See: C-174/99 P Parliament v Richard [2000] ECR I-6189, para. 38; T-372/00 Campolargo v Commission [2002] ECRSC I-A-49 and II-223, para. 93

3.  Where there is a sufficiently consistent body of evidence substantiating the argument of a candidate for a vacant post that no real examination of the comparative merits of the candidates took place, it is for the appointing authority to show, by objective evidence amenable to judicial review, that it observed the guarantees which officials have under Article 45 of the Staff Regulations and did undertake a comparative examination of the files.

   (see para. 46)

   See: T-159/96 Wenk v Commission [1998] ECRSC I-A-193 and II-593, para. 55; T-143198 Cendrowiczv Commission [1999] ECRSC I-A-273 and II-1341, para. 59

4.  There is misuse of powers, of which abuse of procedure is merely one form, only if it is proved that the administrative authority, in adopting the contested act, was pursuing an objective other than that pursued by the rules in question or if it is apparent, on the basis of objective, relevant and consistent evidence, that the act in question was adopted for purposes other than those stated.

   (see para. 59)

   See: T-86/97 Apostolidis v Court of Justice [1998] ECRSC I-A-167 and II-521, para. 84; T-173/99 Elkaïm and Mazuel v Commission [2000] ECRSC I-A-101 and II-433, para. 120

5.  The latitude available to the appointing authority regarding appointment presupposes a ‘careful examination’ of candidates' files and ‘meticulous regard’ to the requirements laid down in the vacancy notice, so that the appointing authority is required to reject any candidate who does not meet those requirements. The vacancy notice constitutes a legal framework which the appointing authority imposes on itself and to which it must have ‘meticulous regard’. With a view to establishing whether the appointing authority exceeded the bounds of that legal framework and that it acted solely in the interests of the service, within the meaning of Article 7 of the Staff Regulations, the Court must examine what conditions were laid down in the vacancy notice and then verify whether the candidate chosen by the appointing authority to occupy the vacant post actually satisfied those conditions. Such an examination must be limited to consideration of the question whether, having regard to the considerations which may have influenced it in making its assessment, the administration remained within reasonable bounds and did not use its power in a manifestly incorrect way. The Court cannot therefore substitute its assessment of the candidates' qualifications for that of the appointing authority.

   (see paras 70-71)

   See: 233/85 Bonino v Commission [1987] ECR 739, para. 5; C-35/92 P Parliament v Frederiksen [1993] ECR I-991, paras 15, 16 and 17; T-169/89 Frederiksen v Parliament [1991] ECR II-1403, para. 69; T-82/91 Latham v Commission [1994] ECRSCI-A-15 and II-61, para. 62; T-21/96 Giannini v Commission [1997] ECRSC I-A-69 and II-211, paras 19 and 20