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Document 62001CJ0121

Judgment of the Court (Second Chamber) of 5 June 2003.
Eoghan O'Hannrachain v European Parliament.
Appeals - Officials - Grade A 1 post - Article 29(2) of the Staff Regulations - Notice of vacancy - Documents drawn up after the contested decision.
Case C-121/01 P.

European Court Reports 2003 I-05539

ECLI identifier: ECLI:EU:C:2003:323

Arrêt de la Cour

Case C-121/01 P


Eoghan O'Hannrachain
v
European Parliament

«(Appeals – Officials – Grade A 1 post – Article 29(2) of the Staff Regulations – Notice of vacancy – Documents drawn up after the contested decision)»

Opinion of Advocate General Geelhoed delivered on 19 September 2002
I - 0000
    
Judgment of the Court (Second Chamber), 5 June 2003
I - 0000
    

Summary of the Judgment

1..
Officials – Recruitment – Procedures – Passage from the procedure under Article 29(1) of the Staff Regulations to the procedure under Article 29(2) of the Staff Regulations – Whether permissible – Discretion of the appointing authority to extend its options

(Staff Regulations, Art. 29)

2..
Officials – Recruitment – Recruitment under Article 29(2) of the Staff Regulations – Content of the candidate's file – Production in defence before the Court of First Instance of documents certifying the qualifications of the candidate selected drawn up after the decision to appoint – Whether permissible

3..
Appeals – Pleas in law – Incorrect assessment of the facts – Inadmissible – Review by the Court of Justice of assessment of evidence – Excluded unless the sense of evidence has been distorted

(Art. 225 EC; Statute of the Court of Justice, Art. 58)

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

1.
Since the appointing authority has a wide discretion, where a vacant post is to be filled, for the purpose of finding the candidates with the highest standard of ability, efficiency and integrity it may go on from one stage of the recruitment procedure to another even if it has received valid applications in the first stage. The use of the formulation whether ... can in Article 29(1) of the Staff Regulations clearly indicates moreover that the appointing authority is not bound absolutely 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. It follows that the appointing authority may decide to go on to the recruitment procedure provided for by Article 29(2) of the Staff Regulations, even where there are one or more candidates who satisfy all the conditions and requirements set out in the vacancy notice for the post to be filled. Moreover, that decision need not necessarily be taken when the vacancy notices are published and need not be published. Similarly, the fact that applicants for the internal recruitment procedure were not informed of the recourse to the recruitment procedure open to outside candidates could not constitute a breach of Article 29(2) where the first applicants were taken into account in the new procedure and the conditions required by the notice of vacancy were not altered. see paras 14-17, 19

2.
It is true that the legality of a decision on recruitment must be appraised in the light of the information available to the appointing authority when it adopted that decision. However, in recruitment procedures under Article 29(2) of the Staff Regulations, candidates are not required to produce documents certifying their qualifications or other documentary evidence, nor must the appointing authority have on the file, when the decision is taken, documents confirming the information it has. see para. 28

3.
Under Article 225 EC and Article 58 of the Statute of the Court of Justice, an appeal lies on points of law only and, therefore, the Court of First Instance alone has jurisdiction to find and appraise the facts, save where the factual inaccuracy of its findings results from the documents in the case before it. The appraisal of the facts by the Court of First Instance does not constitute, save where the clear sense of the evidence produced before it is distorted, a question of law which is subject, as such, to review by the Court of Justice. see para. 35

4.
The concept of misuse of powers has a precise scope and refers to the use of powers by an administrative authority for a purpose other than that for which they were conferred on it. A measure is only vitiated by misuse of powers if it appears, on the basis of objective, relevant and consistent evidence, to have been taken with the exclusive or main purpose of achieving an end other than that stated or evading a procedure specifically prescribed. see para. 46




JUDGMENT OF THE COURT (Second Chamber)
5 June 2003 (1)


((Appeals – Officials – Grade A 1 post – Article 29(2) of the Staff Regulations – Notice of vacancy – Documents drawn up after the contested decision))

In Case C-121/01 P,

Eoghan O'Hannrachain, official of the European Parliament, residing in Cents (Luxembourg), represented by G. Vandersanden and L. Levi, avocats,

appellant,

APPEAL against the judgment of the Court of First Instance of the European Communities (Fifth Chamber) of 16 January 2001 in Case T-97/99 Chamier and O'Hannrachain v Parliament [2001] ECR-SC I-A-1 and II-1, seeking to have that judgment set aside in part,

the other party to the proceedings being:

European Parliament, represented by J. Schoo, H. von Hertzen and D. Moore, acting as Agents, assisted by D. Waelbroeck, avocat, with an address for service in Luxembourg,defendant at first instance,

THE COURT (Second Chamber),,



composed of: J.-P. Puissochet, President of the Sixth Chamber, acting for the President of the Second Chamber, V. Skouris and N. Colneric (Rapporteur), Judges,

Advocate General: L.A. Geelhoed,
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 16 May 2002,

after hearing the Opinion of the Advocate General at the sitting on 19 September 2002,

gives the following



Judgment



1
By application lodged at the Court Registry on 15 March 2001, Mr O'Hannrachain brought an appeal under Article 49 of the EC Statute of the Court of Justice seeking partial annulment of the judgment of the Court of First Instance in Joined Cases T-97/99 and T-99/99 Chamier and O'Hannrachain v Parliament [2001] ECR-SC I-A-1 and II-1 ( the judgment under appeal), dismissing in their entirety as unfounded the actions brought by him and by Mr Chamier seeking, first, annulment of the decision of the appointing authority of 16 July 1998 appointing Mr Lopez Veiga to the post of Director-General of the Directorate-General for Finance and Financial Control ( the post at issue), the decisions of the same date not to appoint them to that post and, so far as relevant, the decisions of 21 January 1999 rejecting their complaints, and, second, an order that the Parliament pay damages.

Legal background

2
The first subparagraph of Article 7(1) of the Staff Regulations of Officials of the European Communities ( the Staff Regulations) provides: The appointing authority shall, acting solely in the interest of the service and without regard to nationality, assign each official by appointment or transfer to a post in his category or service which corresponds to his grade.

3
The first paragraph of Article 27 of the Staff Regulations provides: Recruitment shall be directed to securing for the institution the services of officials of the highest standard of ability, efficiency and integrity, recruited on the broadest possible geographical basis from among nationals of Member states of the Communities.

4
Article 29 of the Staff Regulations provides:

1.
Before filling a vacant post in an institution, the appointing authority shall first consider:

(a)
whether the post can be filled by promotion or transfer within the institution;

(b)
whether to hold competitions internal to the institution;

(c)
what applications for transfer have been made by officials of other institutions of the three European Communities;

and then follow the procedure for competitions on the basis either of qualifications or of tests, or of both qualifications and tests. Annex III lays down the competition procedure....

2.
A procedure other than the competition procedure may be adopted by the appointing authority for the recruitment of Grade A 1 or A 2 officials and, in exceptional cases, also for recruitment to posts which require special qualifications.

Factual background to the litigation

5
The factual background to the litigation is set out in the judgment under appeal in the following terms:

1
On 28 January 1998, the Bureau of the European Parliament ( the Bureau) adopted the proposal of the Secretary-General to split the Directorate-General for Personnel, the Budget and Finance (DG V) in order to create a Directorate-General for Finance and Financial Control (DG VIII) and a Directorate-General for Personnel (DG V).

2
Following that decision, a grade A 1 post of Director-General was declared vacant in each of those two Directorates-General. The procedure for recruitment of a Director-General of DG VIII was opened under Article 29(1)(a) of the Staff Regulations ... .

3
The notice of vacancy of 25 June 1998 for the post of Director-General of DG VIII reads: In accordance with the provisions of the Staff Regulations, the President of the European Parliament has decided to open the procedure for filling this post, initially by promotion or transfer within the institution. (1) DUTIES Under the authority of the Secretary-General and without prejudice to the responsibilities allocated to the Accounting Officer and the independence granted to the Financial Controller by the Financial Regulation and the detailed implementing rules:

─
leadership of the administrative departments responsible for financial matters, i.e. Members' allowances, the budget, treasury and accounting, the inventory and financial management and control;

─
coordination and organisation of the departments and supervision of the staff of the Directorate-General;

─
relations with the other institutions of the European Communities, particularly in connection with the budget procedure. (2) QUALIFICATIONS AND SKILLS REQUIRED

─
University degree in economics or finance or equivalent professional experience;

─
sound knowledge of the structure and functioning of the European Union and its institutions, particularly Parliament, and of the Treaties and Community legislation;

─
in-depth knowledge of the rules and regulations applicable to the Community institutions, particularly in the financial sphere;

─
excellent organisational skills and proven ability to lead large teams of staff and carry out administrative management;

─
ability to analyse and summarise problems;

─
thorough knowledge of one official language of the European Union and very good knowledge of a second. For practical reasons, knowledge of other official languages will be taken into consideration. The duties described under point 1 call for the highest degree of competence, efficiency and integrity, a very high level of judgment and decision-making ability and a flair for human relations.

4
On 2 July 1998, Mr Lopez Veiga, a Commission official on secondment to the Parliament as the President's chef de cabinet, applied for the post at issue in the following terms: I hereby apply for the post of Director-General of the Directorate-General for Finance and Financial Control in the event that the appointing authority decides to open the recruitment procedure under Article 29(2) of the Staff Regulations.

5
The applicants, Mr O'Hannrachain and Mr Chamier, officials of the Parliament, applied for that post on 9 and 10 July 1998 respectively. Mr B., Mr V. and Mr C. also applied for the post. However, only the applications of Mr B. and Mr V. were considered admissible under Article 29(1)(a) of the Staff Regulations. As Mr C. and Mr Lopez Veiga were Commission officials their applications were not admissible.

6
At the meeting of the Bureau of 13 July 1998, the Secretary-General of the Parliament, after giving details of the four applicants under Article 29(1) of the Staff Regulations and of the two applicants who could be considered under Article 29(2) of the Staff Regulations, proposed that, given the nature of the post to be filled, the Bureau should resort to the procedure under Article 29(2) of the Staff Regulations. The Bureau, in its capacity as appointing authority, decided the same day to open that procedure and to consider the applications of Mr C. and Mr Lopez Veiga. The minutes of that meeting of the Bureau read as follows:

3.
Filling A 1 and A 2 posts (in camera) The Bureau

─
heard a statement by the Secretary-General, who referred to the applications received for the three A 1 vacancies (Director-General of Personnel ─ DG V; Director-General of Finance and Financial Control ─ DG VIII; Director-General of Administration ─ DG VI) and for the A 2 vacancy (Director of Presidency Services ─ DG I) and proposed to open the procedure provided for in Article 29(2) of the Staff Regulations regarding the post of Director-General of Finance and Financial Control ─ DG VIII ─ (post No VIII/A/3942) in order to widen the choice of candidates for this particular post on the basis of the considerations set out in his note of 13 July 1998;

─
heard a statement by the President, who proposed that consideration of the applications for all four posts concerned should be resumed on Thursday, 16 July 1998 at 8.30 a.m. on the basis of the file submitted on 13 July 1998 to the members of the Bureau;

─
decided to open the procedure pursuant to Article 29(2) of the Staff Regulations as regards the post of Director-General of Finance and Financial Control.

7
On 15 July 1998, the Secretary-General was informed that Mr V. and Mr C. had withdrawn their applications for the post at issue. The same day he proposed to the Bureau that Mr Lopez Veiga should be appointed to the post of Director-General of DG VIII.

8
At its meeting of 16 July 1998, the Bureau heard statements by the President, Mrs Fontaine and Mr Cot, Vice-Presidents, the Secretary-General, the Legal Adviser, Mr Imbeni, Mrs Hoff, Mr Martin, Mr Anastassopoulos, Mr Gutiérrez Díaz, Mrs Schleicher, Mr Verde i Aldea, Mr Haarder and Mr Collins, Vice-Presidents and decided, following a vote, to appoint Mr Lopez Veiga to the post of Director-General at issue, pursuant to the procedure laid down by Article 29(2) of the Staff Regulations.

9
On 16 September 1998, the applicants received a letter from the Head of the Personnel Division which stated: Following the meeting of the Bureau of the European Parliament of 16 July 1998, I regret to inform you that your application for the above post has been rejected. Thank you for your interest in the post.

10
On 13 October 1998 both applicants lodged a complaint against the decision of 16 July 1998 to appoint Mr Lopez Veiga to the post at issue and against the decision rejecting their application of 16 September 1998. Those complaints were rejected by decisions of 21 January 1999, notified to the applicants on 25 January 1999.

The proceedings before the Court of First Instance and the judgment under appeal

6
By applications lodged at the Registry of the Court of First Instance on 20 and 22 April 1999, registered as Cases T-97/99 and T-99/99, Mr Chamier and Mr O'Hannrachain brought the actions referred to in paragraph 1 of this judgment. By order of 6 June 2000, the President of the Fifth Chamber of the Court of First Instance ordered that the cases be joined for the purposes of the oral procedure and judgment.

7
In support of their claims for annulment of the decisions of the appointing authority ( the contested decisions) the applicants relied on six pleas, alleging infringement of Article 29 of the Staff Regulations, infringement of the notice of vacancy, a manifest error of assessment in the choice made by the appointing authority, failure to have regard to Articles 7 and 27 of the Staff Regulations and to the principle of non-discrimination, misuse of powers, failure to have regard to the principle of sound management and proper administration, and breach of the obligation to provide a statement of reasons. They also made claims for damages alleging that their legitimate expectations were breached.

8
By the judgment under appeal, the Court of First Instance dismissed the two actions before it in their entirety, after rejecting as unfounded all the pleas raised by the applicants.

The appeal and forms of order sought

9
Mr O'Hannrachain brought an appeal against the judgment under appeal, served on him on 16 January 2001, in so far as it concerned him.

10
He claims that the Court should:

─
set aside the judgment under appeal;

─
consequently, grant the appellant the relief sought by him in the proceedings at first instance, and thus:

─
annul the appointing authority's decision of 16 July 1998 appointing Mr L.V. to the post of Director-General of the Directorate-General for Finance and Financial Control and the decision of the same date rejecting the appellant's application for that post and, in so far as may be necessary, annul the decision adopted on 21 January 1999 rejecting the appellant's complaint;

─
order the Parliament to pay damages estimated to amount, on a fair and equitable basis, to EUR 100 000;

─
order the Parliament to pay the costs.

11
The Parliament contends that the Court should:

─
dismiss the appeal as inadmissible in part and otherwise as unfounded;

─
in the alternative, in the unlikely event that the Court decides to overturn the judgment under appeal, refer the case back to the Court of First Instance for a fresh ruling in the appellant's action;

─
make an appropriate order as to costs.

The pleas relating to annulment of the judgment under appeal

12
In support of his appeal, Mr O'Hannrachain raises six pleas alleging that the Court of First Instance failed to have regard to:

─
Article 29 of the Staff Regulations;

─
the principle of legality, the obligation to state reasons and the audi alteram partem rule;

─
the obligation to state reasons and the effects attaching to a notice of vacancy;

─
the notion of misuse of powers;

─
Articles 7 and 27 of the Staff Regulations and the principle of non-discrimination;

─
the principle of sound management and proper administration and the obligation to state reasons.

The appeal

The claims seeking annulment

The plea alleging failure to have regard to Article 29 of the Staff Regulations

13
Mr O'Hannrachain submits essentially, first, that, in paragraphs 33 to 37 and 39 to 40 of the judgment under appeal, the Court of First Instance misconstrued Article 29 of the Staff Regulations by taking the view that the appointing authority may have recourse to the procedure referred to in Article 29(2) of the Staff Regulations after initiating a recruitment procedure under Article 29(1) of the Staff Regulations without first carrying out an examination of the comparative merits of the eligible candidates under Article 29(1) with a view to verifying whether they meet the requirements of the notice of vacancy. He takes the view that, by acting in that way, the appointing authority failed to examine whether, in the present case and in accordance with Article 29 of the Staff Regulations, the promotion/transfer procedure was likely to result in the appointment of a person possessing the highest levels of ability, efficiency and integrity.

14
In that regard, it must be observed that the Court of First Instance was right to point out, in paragraphs 33 to 35 of the judgment under appeal, that the argument that the appointing authority could not decide to move on to the next stage of the recruitment procedure because it had received valid applications in the first stage is not founded. According to settled case-law, the appointing authority has a wide discretion for the purpose of finding the candidates with the highest standard of ability, efficiency and integrity (see, in particular, Joined Cases 12/64 and 29/64 Ley v Commission [1965] ECR 107, 118, Case 135/87 Vlachou v Court of Auditors [1988] ECR 2901, paragraph 23, and Case C-174/99 P Parliament v Richard [2000] ECR I-6189, paragraph 37).

15
Furthermore, according to equally settled case-law, 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 Ley v Commission , cited above, and Parliament v Richard , cited above, paragraph 38).

16
It follows that the appointing authority may go on to a subsequent stage of the recruitment procedure, even where there are one or more candidates who satisfy all the conditions and requirements set out in the vacancy notice for the post to be filled ( Parliament v Richard , paragraph 40).

17
The Court of First Instance was also correct in pointing out, in paragraph 36 of the judgment under appeal, that a decision to have recourse to Article 29(2) of the Staff Regulations made during the course of a recruitment procedure which has been initiated need not necessarily be taken when the vacancy notices are published and need not be published (see Joined Cases 81/74 to 88/74 Marenco and Others v Commission [1975] ECR 1247, paragraphs 21 and 23, Case 289/81 Mavridis v Parliament [1983] ECR 1731, paragraph 23, and Case C-331/87 Exarchos v Parliament [1989] ECR 4185). It was thus entitled to conclude, in paragraph 37 of the judgment under appeal, that the appointing authority could decide to have recourse to the procedure under Article 29(2) of the Staff Regulations.

18
Mr O'Hannrachain then claims that the Court of First Instance failed to have regard to the fact that, although the shortness of the period within which Mr Lopez Veiga was appointed might not in itself be open to criticism, the circumstances in which the appointment was made are, given that Mr Lopez Veiga's application was considered as a result of improper recourse being had to the procedure under Article 29(2) of the Staff Regulations, that there was no consideration of the comparative merits of candidates whose applications were admissible under Article 29(1) of the Staff Regulations, that the Bureau made a precipitate decision on a barely reasoned proposal from the Secretary-General of the Parliament, and that there was no discussion of the applications finally accepted and no statement of reasons explaining why preference was given to Mr Lopez Veiga over him.

19
That argument cannot be accepted. The Court of First Instance was justified, in the light of the principles outlined in paragraphs 14 and 17 of this judgment, in concluding, in paragraph 39 of the judgment under appeal, that the shortness of the period, properly assessed in relation to the circumstances of the appointment, does not constitute a breach of Article 29 of the Staff Regulations. In that regard, the Court of First Instance was right to point out that, given that there was no obligation incumbent on the appointing authority to publish the decision to have recourse to the procedure under Article 29(2) of the Staff Regulations, the Bureau cannot be criticised for the shortness of the period within which it concluded that procedure, since its choice had in fact been widened. Finally, the Court of First Instance was also right to point out, in paragraph 40 of the judgment under appeal, that the fact that the applicants had not been informed of the Bureau's intention to have recourse to the procedure under Article 29(2) could not constitute a breach of that provision, given that the appointing authority had taken into account, in the recruitment procedure open to outside applicants, those applicants who had applied in the course of the internal recruitment procedure, without altering the conditions required by the notice of vacancy. Accordingly, the Court of First Instance did not err in law as regards the interpretation of Article 29 of the Staff Regulations.

20
Finally, Mr O'Hannrachain criticises the Court of First Instance for finding, in paragraph 37 of the judgment under appeal, that the applications submitted under Article 29(2) of the Staff Regulations were of a priori interest without giving reasons or justification. That finding amounts to an acknowledgement that there was a deliberate and predetermined intention on the part of the Parliament to appoint Mr Lopez Veiga in breach of the procedures existing for that purpose.

21
Such an argument cannot be upheld, based as it is on a misinterpretation of the judgment under appeal. In fact the Court confined itself to pointing out, in paragraph 37, first, that the Secretary-General of the Parliament, in a note drawn up for the Bureau meeting of 13 July 1998, had given details of all the applicants and proposed that the Bureau should have recourse to the procedure under Article 29(2) of the Staff Regulations, a proposal which was ratified at that meeting and, second, that that decision was clearly based on the fact that those two applications were of interest for the purposes of filling the post at issue. By using that formulation, the Court of First Instance simply recorded the fact that the two applications at issue were at first sight of interest with a view to ensuring that the vacancy was correctly filled.

22
It follows that the first plea of the appeal must be rejected.

The plea alleging failure to have regard to the principle of legality, the obligation to state reasons and the audi alteram partem rule

23
Mr O'Hannrachain submits that, in paragraphs 58, 61 and 66 of the judgment under appeal, the Court of First Instance infringed the principle of legality, the obligation to state reasons and the audi alteram partem rule by accepting production by the Parliament at first instance of documents drawn up after adoption of the decision to appoint Mr Lopez Veiga. In accordance with the principle that reasons should be stated, an administrative decision must be based on verifiable reasons. Where such reasons are not stated formally, they must be clear from the administrative file compiled during the procedure for enacting the measure. Proof of the reasons for the contested measure can be furnished only by evidence established in tempore non suspecto (before or at the same time as the measure). In the present case, the reasons should thus be based on evidence which was available and influenced the Parliament at the time it adopted that decision. The principle of legality requires that the legality of a decision be ascertained at the time of its adoption, without regard for evidence arising subsequently, since the administrative authority could not be aware of it at the time it made its decision. The audi alteram partem rule cannot justify the decision of the Court of First Instance to take account of documents postdating the adoption of that decision.

24
The Court of First Instance held, in paragraph 58 of the judgment under appeal, that the documents produced by the Parliament as annexes 8.2 and 8.5 to its defence, relating to the curriculum vitae of Mr Lopez Veiga, fall within the audi alteram partem rule as they answer the doubts expressed by the applicants regarding the education and professional experience of the person concerned. Although those documents were drawn up after that person applied for the post, they cannot, according to the Court of First Instance, be considered to be circumstances arising after the adoption of the appointment decision in so far as they constitute evidence of the authenticity and the extent of the information available to the author of that decision.

25
In paragraph 61 of the judgment under appeal, the Court of First Instance held: As regards the argument of the applicants that Mr Lopez Veiga did not have a degree in economics or finance or equivalent professional experience, it must be observed that he holds a Bachelor of administration degree from the University of South Africa. In that connection, the Parliament sent, at the request of the Court of First Instance, an official copy of the degree obtained by Mr Lopez Veiga and a list of the courses followed in order to obtain that degree. It is clear from those documents that the main subject studied by Mr Lopez Veiga during his university education was economics. Therefore, the applicants are wrong to allege that Mr Lopez Veiga has no university degree in economics.

26
In paragraph 66 of the judgment under appeal, the Court of First Instance referred to Mr Lopez Veiga's curriculum vitae and concluded that, although unconnected with the Community institutions, the duties he had previously performed showed he had proven experience in the budgetary field.

27
Those considerations are not vitiated by an error of law.

28
It is true that the legality of a decision on recruitment must be appraised in the light of the information available to the appointing authority when it adopted that decision. However, in recruitment procedures under Article 29(2) of the Staff Regulations, candidates are not required to produce documents certifying their qualifications or other documentary evidence, nor must the appointing authority have on the file, when the decision is taken, documents confirming the information it has.

29
It must be observed that Mr O'Hannrachain does not claim that the appointing authority did not have at its disposal all the information necessary when it decided to appoint Mr Lopez Veiga to the post at issue. He complains only that the Court of First Instance allowed the production of documents drawn up after the decision was taken. In that regard, it must be accepted that the Court of First Instance was entitled to take account of documents produced in the course of proceedings by the Parliament in the exercise of its rights of defence, which is one of the aspects of the audi alteram partem rule.

30
Accordingly, it must be held that, in paragraphs 58, 61 and 66 of the judgment under appeal, the Court of First Instance did not fail to have regard to the principle of legality, nor to the obligation to state reasons in decisions of the administration, nor to the audi alteram partem rule.

The pleas alleging failure to have regard to the obligation to state reasons and to the effects attaching to a notice of vacancy and breach of Articles 7 and 27 of the Staff Regulations and the principle of non-discrimination

31
The third and fifth pleas should be considered together in so far as they concern the unsuitability of the appointed person for the post at issue in the light of the requirements of the notice of vacancy.

32
By his third plea, Mr O'Hannrachain submits essentially that the assessment made by the Court of First Instance in paragraphs 62 to 66 of the judgment under appeal, regarding the qualifications and experience of Mr Lopez Veiga, is vitiated by an error of law in so far as it amounts to attributing to him qualifications which meet the requirements of the notice of vacancy. Therefore, in paragraph 67 of that judgment, the Court of First Instance failed to have regard to the effects attaching to a notice of vacancy.

33
More specifically, Mr O'Hannrachain submits that the decision to split the former DG V into two new Directorates-General must be taken into account. Examination of the duties attaching to the post at issue shows that the person appointed must be highly qualified and experienced in the various aspects of the Finance Directorate. The Court of First Instance did not take account of the importance attached by the Parliament itself to the technical and specialised nature of that post, which it intended to be distinct from general administrative duties. The Court of First Instance failed to have regard to the fact that two conditions set out in the notice of vacancy are clearly not fulfilled by Mr Lopez Veiga, namely:

─
university degree in economics or finance or equivalent professional experience, and

─
in-depth knowledge of the rules and regulations applicable to the Community institutions, particularly in the financial sphere.

34
By that plea, Mr O'Hannrachain is in fact disputing the appraisal of the facts made by the Court of First Instance.

35
In that connection, it must be recalled that under Article 225 EC and Article 58 of the Statute of the Court of Justice, an appeal lies on points of law only and that therefore the Court of First Instance alone has jurisdiction to find and appraise the facts, save where the factual inaccuracy of its findings results from the documents in the case before it. The appraisal of the facts by the Court of First Instance does not constitute, save where the clear sense of the evidence produced before it is distorted, a question of law which is subject, as such, to review by the Court of Justice (see, inter alia , Case C-449/99 P EIB v Hautem [2001] ECR I-6733, paragraph 44, and Case C-184/01 P Hirschfeldt v AEE [2002] ECR I-10173, paragraph 40).

36
In the present case, there is no indication that the Court of First Instance distorted the clear sense of the evidence put before it. Accordingly, that plea must be rejected as inadmissible.

37
Mr O'Hannrachain also claims that the Court of First Instance, in paragraph 64 of the judgment under appeal, substituted its assessment for that of the appointing authority. However, it must be held that the Court of First Instance respected the limits of the jurisdiction it has, which it described correctly in paragraph 57 of that judgment.

38
Mr O'Hannrachain submits further that the decision appointing Mr Lopez Veiga to the post at issue states no reasons which allow it to be ascertained whether he actually met the requirements set out in the notice of vacancy.

39
That plea, which concerns the Parliament's obligation to state reasons, was not raised before the Court of First Instance. It was, it is true, raised by Mr O'Hannrachain in his complaint beforehand. However, it was not incorporated as such in the application initiating proceedings before the Court of First Instance. To allow a party to put forward for the first time before the Court of Justice a plea in law which it has not raised before the Court of First Instance would be to allow it to bring before the Court of Justice, whose jurisdiction in appeals is limited, a case of wider ambit than that which came before the Court of First Instance (Case C-155/98 P Alexopoulou v Commission [1999] ECR I-4069, paragraph 41). Therefore, that plea must also be rejected as inadmissible.

40
It follows that the third plea must be rejected.

41
By his fifth plea, Mr O'Hannrachain essentially claims that, in paragraphs 84 to 87 of the judgment under appeal, the Court of First Instance disregarded Articles 7 and 27 of the Staff Regulations and the principle of non-discrimination by not calling in question the appointment of a candidate not satisfying all the requirements of the vacancy notice whereas Mr O'Hannrachain satisfies them in all respects.

42
Mr O'Hannrachain submits that the Court of First Instance made an error of assessment in holding, in paragraph 84 of the judgment under appeal, that the appointing authority did not make a manifest error in assessing whether Mr Lopez Veiga's application fulfilled the requirements of the notice of vacancy. He did not have the technical skills in the budgetary and financial fields required by the notice of vacancy. In paragraph 87 of that judgment, the Court of First Instance misinterpreted the term in the interest of the service because responsibilities of a general and political nature cannot validly replace the technical expertise implicated in the performance of the duties involved in the post at issue.

43
By those pleas, Mr O'Hannrachain again calls into question the appraisal of the facts made by the Court of First Instance. Accordingly, they must also be rejected as inadmissible.

44
It follows from the foregoing considerations that the fifth plea must be rejected.

The plea alleging failure to have regard to the concept of misuse of powers

45
By his fourth plea Mr O'Hannrachain essentially claims that, in paragraphs 109, 111, 112 and 116 to 121 of the judgment under appeal, the Court of First Instance misconstrued the concept of misuse of powers by not accepting that the many objective, relevant and consistent matters raised by Mr O'Hannrachain were evidence of a misuse of powers.

46
In that regard, it must be observed that, as is clear from paragraph 104 of the judgment under appeal, the concept of misuse of powers has a precise scope and refers to the use of powers by an administrative authority for a purpose other than that for which they were conferred on it. A measure is only vitiated by misuse of powers if it appears, on the basis of objective, relevant and consistent evidence, to have been taken with the exclusive or main purpose of achieving an end other than that stated or evading a procedure specifically prescribed by the Treaty for dealing with the circumstances of the case (see Case C-110/97 Netherlands v Council [2001] ECR I-8763, paragraph 137).

47
The Court of First Instance did not disregard that case-law in the judgment under appeal.

48
In particular, Mr O'Hannrachain claims that the Court of First Instance considered in isolation rather than as a whole the matters raised by the applicants in support of their allegations that Mr Lopez Veiga was the candidate selected beforehand by the appointing authority and that his appointment was made following an irregular procedure.

49
In that regard, it must be observed that, in paragraphs 106 to 121 of the judgment under appeal, the Court of First Instance examined in detail the factual circumstances on the basis of which Mr Lopez Veiga was appointed and which, according to the applicants, point to a misuse of powers. The paragraphs mentioned do not show that the Court of First Instance examined the matters relied on in support of the plea of misuse of powers in isolation rather than as a whole. It is true that, in paragraph 121 of the judgment under appeal, the Court of First Instance held, as regards the very short period between the Bureau's decision to have recourse to the procedure under Article 29(2) of the Staff Regulations and the decision to appoint Mr Lopez Veiga to the post at issue, that that fact alone cannot establish the misuse of powers by the Bureau of the Parliament. However, it must be held that it is clear from paragraphs 106 to 121 of the judgment under appeal taken together that the Court of Fist Instance, in fact, made an overall assessment of the matters put before it in support of that plea.

50
Mr O'Hannrachain also claims that the Court selected certain of the documents put before it by the applicants and purposely and high-handedly rejected those which did not favour the appointment of Mr Lopez Veiga, inter alia the newspaper article headed Liberals and Greens oppose political patronage and the excerpt from the publication entitled Babilonia y babel: el Parlamento Europeo desde dentro . In that regard, the Court of First Instance was right to hold, in paragraph 118 of the judgment under appeal, that such documents, emanating from third parties and drawn up after the Bureau's decision to appoint Mr Lopez Veiga, cannot constitute relevant and objective evidence of a misuse of powers.

51
Finally, Mr O'Hannrachain submits that the finding, in paragraph 120 of the judgment under appeal, that Mr Lopez Veiga was involved in the preparation of the recruitment procedure for the post to which he was appointed shows in itself that there was a misuse of powers.

52
It is true that Mr Lopez Veiga, because of his position as chef de cabinet of the President of the Parliament, had the task of informing the Secretary-General of that institution of the requirements for the drafting of the notice of vacancy. However, that fact alone, given, in particular, that Mr Lopez Veiga could not apply under that notice, does not prove that the selection eventually made by the appointing authority, in the circumstances outlined in paragraph 8 of the judgment under appeal, was motivated by considerations alien to the proper functioning of the institution. The applicant is thus not justified in maintaining that the Court of First Instance was wrong to dismiss the plea that the contested decisions were vitiated by a misuse of powers. Accordingly, the fourth plea must be rejected.

The plea alleging breach of the principle of sound management and good administration and failure to observe the obligation to state reasons

53
Mr O'Hannrachain submits essentially that the Court of First Instance could not sanction the appointment of Mr Lopez Veiga without breaching the principle of sound management and good administration. Moreover, the Court of First Instance disregarded the obligation to state reasons in taking the view that the appointment was based on proper reasons.

54
The Court of First Instance misinterpreted the facts and the law in confining itself to stating, in paragraph 129 of the judgment under appeal, that, in deciding to appoint Mr Lopez Veiga, the Parliament remained within reasonable limits and made no manifest error of assessment. On the contrary, it is established that the Parliament made a political appointment, favouring a person who did not have the specific qualifications required for the post at issue, following an irregular and abridged procedure to that end.

55
In that regard, it must be observed that the Court of First Instance was right to hold, in paragraph 129 of the judgment under appeal, that it is clear from consideration of the pleas relied on that the Bureau, in deciding to appoint Mr Lopez Veiga, remained within reasonable limits and made no manifest error of assessment. It must be observed in that regard that the Parliament has a wide discretion in its choice of the most appropriate means for meeting its personnel requirements (see, to that effect, Joined Cases 341/85, 251/86, 258/86, 259/86, 262/86 and 266/86, 222/87 and 232/87 Van der Stijl and Cullington v Commission [1989] ECR 511, paragraph 11). In the present case, it has not been established that the appointing authority breached the principle of sound management and good administration.

56
Finally, the argument alleging disregard of the obligation to state reasons cannot be upheld. The Court of First Instance was right to hold, in paragraph 128 of the judgment under appeal, that the arguments relied on in support of the allegation that that principle was breached concern the relevance of the reasons stated concerning the comparability of Mr Lopez Veiga's skills to those required by the notice of vacancy and do not concern the adequacy of those reasons.

57
It follows that the sixth plea must be rejected.

The claims for damages

58
As the claims in support of annulment of the contested decisions have been rejected by the Court of First Instance, it was entitled, in paragraphs 136 to 138 of the judgment under appeal, to reject the claims of the applicants for compensation for the non-material damage they claim to have suffered, since they have furnished no evidence of unlawful acts by the Parliament. As Mr O'Hannrachain has raised no argument liable to call into question the validity of that reasoning, his claim for damages before the Court is unfounded.

59
It follows from the foregoing considerations that the appeal must be dismissed in its entirety.


Costs

60
Under Article 69(2) of the Rules of Procedure, which is applicable to appeal proceedings by virtue of Article 118, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Under Article 70 of those Rules, in proceedings between the Communities and their servants, the institutions are to bear their own costs. However, by virtue of the second paragraph of Article 122 of the Rules of Procedure, Article 70 does not apply to appeals brought by officials or other servants of an institution against the latter. Since the Parliament has applied for costs and Mr O'Hannrachain has been unsuccessful in his appeal, he must be ordered to pay the costs.

On those grounds,

THE COURT (Second Chamber)

hereby:

1.
Dismisses the appeal;

2.
Orders Mr O'Hannrachain to pay the costs.

Puissochet

Skouris

Colneric

Delivered in open court in Luxembourg on 5 June 2003.

R. Grass

R. Schintgen

Registrar

President of the Second Chamber

1 –
Language of the case: French.
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