C-27/63
ECLI:EU:C:1964:17
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JUDGMENT OF THE COURT <ap note>1</ap note> 19 MARCH 1964
Goffredo Raponi v Commission of the European Economic Community
Case 27/63
Summary
1. Officials — Promotion — Powers and duties of the administration (EEC Staff Regulations, Article 45)
2. Officials — Promotion — Criteria for assessment — Absence of periodical reports during
period of adaptation of Staff Regulations — No obligation on the administration to draw
up ad hoc reports (EEC Staff Regulations, Article 45)
3. Officials — Promotion — Administration's criteria for assessment — No obligation to state reasons as regards unsuccessful candidates
(EEC Staff Regulations, Articles 25 and 45)
1. The appointing authority has wide require the Administration to draw
discretionarypowers in relation to up ad hoc reports to take the place of
the promotion of officials. Such the reports provided for in Article 43 powers do, however, presuppose the during the adaptation period when
existence of the necessary guarantee ever a vacant post makes it necessary afforded by the scrupulous considera to compare the merits of possible
tion of personal files each containing candidates.
comparable information. This exam ination evalua 3. In the the Ad should comprise an case of promotion, tion of merits on a basis of equality ministration is under no obligation, and the taking into account of infor under Article 25 of the Staff Regula mation the source and content of tions, to state the factors on which its which is comparable in each instance. assessment was based in respect of unsuccessful candidates.
2. It would be too much, however, to
In Case 27/63
GOFFREDO RAPONI , Official of the Commission of the European Economic
Community, represented by Marcel Slusny, advocate at the Cour d'Appel, Brussels, Head of Department at the University of Brussels, with an address
1 — Language of the case: French.
JUDGMENT OF 19.3.64— CASE 27/63
for service in Luxembourg at the chambers of Mr Arendt, avocat-avoué, 6 rue Willy-Goergen,
applicant,
v
COMMISSION OF THE EUROPEAN ECONOMIC COMMUNITY , represented by its Legal Adviser Louis de la Fontaine, acting as Agent, with an address for
service in Luxembourg at the offices of Mr Manzanares, Secretary of the
Legal Department of the European Executives, 2 place de Metz,
defendant,
Application for annulment of the Decision of the Commission of the EEC of 13 February 1963 appointing Mr D. Strasser Director of Internal Affairs within the Directorate-General for Administration,
THE COURT
composed of: A. M. Donner, President, Ch. L. Hammes and A. Trabucchi, Presidents of Chambers, L. Delvaux, R. Rossi, R. Lecourt (Rapporteur) and W. Strauß, Judges,
Advocate-General: K. Roemer Registrar: A. Van Houtte
gives the following
JUDGMENT
Issues of fact and of law
I — Facts The above-mentioned vacancy notice
described the duties attached to the post By vacancy notice No 209, published in as follows: the Staff Information Bulletin of the
EEC Commission No 10 of 30 August 'Director of Internal Affairs, 1962, the post of Director of Internal — to be responsible for the following Affairs within the Directorate-General Departments: Buildings, Equipment, for Administration, a Grade A/2 post, Conferences; Library and Documen was declared vacant. Any officials inter tation; Distribution of Post, Archives Trans ested were invited to submit their and Internal Administration;
applications to the Directorate-General lation, Copying and Distribution of for Administration 20 September Ser- by Documents; and Interpreting 1962. vice.
RAPONI v COMMISSION
Qualifications and Experience: Strasser to the post in question. degree ór higher qualification in law or economics; II — Conclusions of the parties
familiarity with the problems of admini
stration and considerable experience in The applicant, Mr Raponi, claims in his this field; application against the EEC 'and, so far ability to manage efficiently five large as may be necessary, the Commission', administrative units at Director level. that the Court should: Langua es: 1. 'Declare null and void the Decision a thorough knowledge of one of the 13 1963 Mr of February whereby Community langua es; Strasser was appointed Director of
an adequate knowledge of one other Internal Affairs; language.'
Community The Directorate-General for Admini 2. Order the EEC and, if necessary, the stration received five applications, in Commission, to bear the whole of the cluding those of Mr Raponi and Mr costs of the procedings; Strasser. The Heads of Division in the
Department of Internal Affairs were 3. Note that the applicant reserves his informed by a note from the Director- right to raise any new submissions of
General for Administration, Mr Smul fact or law as shall seem to him ders, that at its meeting of 13 February appropriate after the other parties
1963 the Commission, acting as the have presented their defence and
appointing authority, 'after considering after production by them of any documents.' the comparative merits of the candidates
eligible for promotion', had appointed In his reply Mr Raponi completed head Mr Strasser to the post of Director of 2, above, by adding 'inclusive of fees', Internal Affairs. and appended head 4 as fol ws:
By letter of 21 February 1963 addressed 4. 'As a subsidiary point through the official channels to the (a) order the Community to produce members of the Commission, Mr Raponi the minutes of the Council of
requested the Commission to inform him Ministers relating to the estab
of the criteria on the basis of which it lishment of the Staff Regulations; had decided to reject his application for (b) order the Commission to produce
the post in question. In his letter the the minutes of the meeting of applicant stated that he was exercising 13 February 1963, or at least the right accorded him by Article 90 of that part of the minutes which
Staff Regulations. relates to the promotion of Mr Mr Raponi's application was lodged at Strasser; the Court Registry on 13 May 1963. (c) order production of the minutes
By letter of 13 June the Commission and documents of the Staff Com informed the applicant that, in accord mittee relating to promotion of ance with Article 45 of the Staff Regula officials and in particular the
tions, it had considered the comparative memorandum of 27 March 1963 merits of the officials eligible for promo drawn up by the Staff Commit tion had for the vacant to the Com who applied tee and submitted
post of Director of Internal Affairs, and mission.' that following this assessment, which In the course of the oral procedure, the had taken into account in particular the applicant also requested production of
applicant's candidature, it had decided the whole of the minutes of the meeting 'exercising its right of selection as the of the Commission on 13 February 1963,
appointing authority' to promote Mr as well as the files of the Administration
JUDGMENT OF 19.3.54 — CASE 27/63
submitted to the Commission. Staff Regulations, it should have been The EEC Commission contended in its the subject of general provisions for statement of defence that the Court giving effect to it, adopted after con
should: sulting the Staff Committee and the Staff 'declare the application unfounded and Regulations Committee provided for in give judgment on costs according to the Article 10, and brought to the attention relevant provisions', of the staff.
and, in its rejoinder, that the Court Article 45 presupposes in particular
should: consideration of comparative reports on
'declare the application unfounded and officialsdrawn up in accordance with
order the applicant to bear the costs Article 43 of the Regulations.
according to the relevant provisions. This Article refers expressly to Article 110, while the procedure for drawing up III — Arguments of the parties the reports is still at present under con
sideration by the Staff Regulations
As to the Committee, which has apparently been identity of the defendant and the consulted by the Commission. admissibility of the application The defendant draws attention to Article
In his 45 (1) of the Regulations and maintains reply the applicant sets out his that this provision, complete in itself, reasons for naming both the EEC and is applicable without any need to supple
the EEC Commission as defendants in ment it by a provision for giving effect the application. The applicant's purpose to it and that in fact it establishes all the in so doing, bearing in mind the opinion factors necessary for enabling promo
of Mr Advocate-General Lagrange in tions to be made, despite the reference Case 25/60 and the case-law of the in Article 43 to Article 110. Court, was both to fulfil the require
Since the procedure for drawing up the ments of Article 91 of the Staff Regula reports has not yet been adopted by the tions and to gain access to the prepara
institutions, there are as yet no reports tory documents relating to certain regu
which can be taken into consideration lations made by the Councils of Mini and in the meantime it has been neces
sters.
The defendant does not comment on the sary to effect promotions based solely on a consideration of the comparative general questions raised above, replying merits as in this case. only that it is not empowered to produce According to the defendant this con
in Court the minutes of the Council, but sideration can be carried out by the that the Court is able under Article 21 appointing authority 'to whom the of its Statute to require any institution Regulations accord a discretionary to supply information. The defendant does not contest the power, without making it necessary to
lay down by general regulations the admissibility of the application. procedure for making such an assess
ment.'
On the first complaint On the second complaint The applicant pleads the four grounds
stated in Article 173 of the EEC Treaty, The applicant invokes the four grounds
claiming that the Commission's Decision for annulment set out in Article 173, of 13 February 1963 did not comply with claiming that the contested Decision Article 110 of the Staff Regulations. fails to comply with Article 5 in fine of the
According to this Article, in view of the Regulations. importance of Article 45 (1) of the He claims that it is impossible to judge
RAPONI v COMMISSION
the ability of an official to fill a given the requirements of the law. descrip 'requirements post without relying on a prior Moreover, the of the
tion of the duties and powers attaching service' do not demand that vacant
to that post after consultation with the posts must be filled forthwith. In support Staff Regulations Committee and, if of this view he cites the proportion of
necessary, with the Staff Committee in auxiliary staff among the officials of
accordance with the general rule in the Community and the opportunity 'interim' Article 110. open to the latter of using the The defendant states that this complaint procedure.
is open to two interpretations. In its rejoinder, the defendant states that If the is it to applicant referring to the the applicant's reply requires
description of duties in the vacancy maintain its objection of inadmissibility time the ground that the application is out months'
notice within the three on
defendant, inadmissible because it is of time, and there are grounds for saying
out of time since he did not contest the that the description of the duties in
vacancy notice No 209 is not at variance time notice within the three month's
limit, and went so far as to make his with the definition of the basic post.
application without expressing any reservations as to the legality of the On the third complaint advertisement of the vacancy.
If the applicant considers that all pro The applicant pleads the four grounds for motions or appointments must be sus annulment in Article 173 of the Treaty. pended until the institution has defined In his view the contested Decision the duties in accordance with Article 5, applies the first part of Article 45 (1) of then in the defendant's opinion he seems the Regulations in the wrong way since
to be overlooking the requirements of the Commission did not determine its the service and the fact that the general selection criteria in advance. Prior description of duties is a long and exact determination of such criteria is the sole
ing task which must be undertaken in guarantee of strict compliance with
cooperation with the other institutions. Article 27 of the Regulations and of
The applicant replies to the argument exclusion of misuse of powers.
that the application is out of time by Article 45, which grants the Commission
emphasizing that the act adversely a discretionary power, also provides for affecting him is not the vacancy notice, the consideration of comparative merits
which is merely a preliminary step and based on reports, which presupposes
cannot do irreparable harm, but the that such a power is linked to the
Decision which was finally adopted. He consideration of the comparative merits
also invokes Article 184 of the Treaty by of the various candidates, and thus of
analogy. the said reports.
Turning to the defendant's second It is inconceivable that there should exist argument, the applicant draws atten no predetermined objective procedure, tion to the situation currently prevailing known to officials beforehand. A study in in the various institutions and the resolu comparative law with particular refer
tion of the European Parliament of 6 ence to Italian law, as well as a careful February 1963 noting the delay which examination of the four texts of Article
has built up in integration and classifica 45 would prove to be informative.
tion of posts and declares that he is in The applicant has agreed in his reply
no way responsible for the Commission's that this complaint is merely a develop
delay and that the latter has only itself ment of his first complaint and has to blame if it is not in a position to effect suggested that the Court should call for promotions in such a manner as to meet the production of the memorandum of
JUDGMENT OF 19.3.64 — CASE 27/63
27 May 1963 from the Staff Committee administrative notice sent to him in his to the EEC Commission concerning capacity as an official of the Directorate promotion procedure. concerned. This notice neglected even
The defendant replies that the applicant is to mention that the legal formalities
attempting to impute to the Commission had been complied with.
an obligation which is not laid down by The defendant concedes that promotion
the Regulations. of an official may be construed as an
The fixing of criteria would risk preju implied refusal to promote the other
dicing the wide discretionary power of candidates for the same promotion. But the appointing authority which results this implied refusal need not be em
from the actual words used in Article bodied in an individual decision of
45 (1), stating that promotion shall be refusal stating the reasons on which it is
exclusively by selection. No official, based. says the defendant, has a right to The contested Decision appointing Mr promotion. Strasser did not adversely affect him and To fix criteria in advance would restrict therefore need not state the reasons on
the Administration's freedom of selec which it was based. tion, particularly with regard to the The applicant's argument would lead
filling of such high posts as those of to the unacceptable conclusion that the
officials classed as A/2. same decision is lawful as regards the
person to whom it is addressed, but un
On the fourth complaint lawful in relation to a third party. It also fails to recognize that no right of
The applicant pleads the four grounds set promotion exists.
out in Article 173 of the Treaty since the To give reasons for a decision which
contested Decision, by failing to state denies promotion to an official would not the reasons on which it was based, does be in his interests. not comply with the first part of Article 25 of the Staff Regulations. On the fifth complaint A decision to reject an application
adversely affects the candidate and The applicant requests that the contested should therefore state the reasons on Decision be annulled, on the ground
which it is based to enable the latter to that the Commission relied on facts determine whether regard was had to his which were incorrect or incorrectly legitimate interests, and the Court to interpreted by it. This ground of the
review the legality of the decision of application is supported, according to rejection. the applicant, by the letter from the The applicant quotes the case-law of President of the Commission of 14 June the Court according to which the state 1963, received by the applicant after his ment of reasons is a guarantee of com application had been lodged. pliance with legal requirements. The Court cannot properly exercise its
The necessity of providing all officials powers of judicial review unless it with proper guarantees regarding pub has before it the full minutes of the
licity for measures affecting their careers Commission of 13 February 1963, en
is confirmed by the formal requirement abling it to determine the manner in
regarding the publication of notices. which the Commission made its com
The applicant recalls on this subject parative assessment of the officials' that the Decision adversely affecting capabilities. The particulars submitted
him was not brought to his notice by one for the Commission's appraisal were
of the methods of communication pro incomplete and were not the same for vided for in Article 25, but by a simple each candidate.
RAPONI v COMMISSION
The defendant contends that the appli file was produced. 'As a subsidiary cant's allegations are unwarranted and point' the applicant requested the pro
that the appointment of Mr Strasser, duction of various documents, as listed who —
as is not contested —
satisfied at head 4 of his conclusions. the legal prerequisites for promotion, The defendant replied, in terms which complied in every respect with the have been summarized above, that it Regulations. was not authorized to produce the
The applicant has not proved the minutes of the Council. It supplied the
existence of any ground of invalidity minutes of the meeting of 13 February or procedural defect which could 1963, omitting a passage 'because it any lead to annulment of the appointment. sets out the opinions of certain members
The defendant attaches the minutes, of the Commission and such opinions
production of which was requested, as a cannot be made public by reason of the schedule to its rejoinder; it states that a confidential nature of the Commission's deliberations.'
passage of one and a half lines has had to be omitted because of the confidential It claimed that the applicant had no
nature of the Commission's delibera legal interest entitling him to call for tions. production of documents concerning No service reports meaningwithin the the Staff Committee. of Article 43 are produced because there The oral submissions of the parties were are none in existence. There is no obliga heard on 12 November 1963, and on
tion to make such reports until after a 6 February Mr Advocate-General period of two years, and the Staff Roemer delivered his opinion to the
Regulations of officials were not pub effect that the contested Decision lished until 15 January 1962. should be annulled. The declaration made by the President, After the oral procedure had closed, the of the Commission to the effect that the Commission was requested to produce
comparative merits of the candidates all the documents which had been sub
were taken into account should suffice. mitted to members of the Commission relating to the candidates for the post
IV — Procedure in question. The Commission replied that there was The written procedure followed the only one such document and that it was normal course. already set out in the schedule to its The parties annexed schedules to their rejoinder.
pleadings and the applicant's personal
Grounds of judgment
Admissibility
The applicant has instituted proceedings against an act of. the Commission
whereby an official was appointed to a post for which the applicant was a candidate. The application is made against the European Economic Com
munity and, so far as is necessary, the Commission; Article 91 of the Staff
Regulations of officials of the EEC refers to disputes between 'one of the Communities' and one of its officials. Article 179 of the EEC Treaty provides that 'The Court of Justice shall have jurisdiction in any dispute between the
JUDGMENT OF 19.3.64 — CASE 27/63
Community and its servants within the limits and under the conditions laid Employment.' down in the Staff Regulations or the Conditions of
The Commission, as the supreme appointing authority, is entitled to be a
party to legal proceedings in connexion with disputes which may arise be tween it and its staff. Article 90 of the Regulations, which establishes the
system for the submission of complaints by staff, states that any such com
plaint, which in the normal order of events precedes an application to the
Court, is to be made against the appointing authority of their institution. Exercise of the right of action provided for in Article 91 must, in the absence of any provision to the contrary, abide by the same rule.
The Commission has the capacity to represent the Community in Court. Accordingly, the application must be judged admissible and be deemed to be made against the Commission.
On the first complaint
The applicant requests the annulment of the Decision appointing Mr Strasser to the post of Director of Internal Affairs within the Directorate-
General for Administration on the ground that it infringes Article 110 of
the Regulations, since no general provisions for giving effect to Article 45 (1) of the Regulations and Article 43, to which Article 45 refers indirectly, were
adopted or published.
Recourse to Article 45 does not appear to necessitateany implementing measures other than that to which it refers by implication; that is, the drawing up of reports which constitute one factor in the consideration of the comparative merits of officials who are eligible for promotion. Moreover, it is not disputed that no periodical reports as provided for in Article 43,
and made under conditions to be fixed by general provisions for giving effect
to that Article within the meaning of Article 110, were in existence at the
time the contested Decision was made.
However regrettable the delay in putting Article 110 into effect may be, none of the institutions was in a position at the time to adopt the general
provisions in question, because of the date on which the Regulations were published and entered into force. Since they did not enter into force until
1 January 1962, the Commission did not act improperly at the time of the contested Decision in having failed to make out the reports. Thus Article 45
had to be used before the adoption of the general implementing provisions provided for. The requirements of the service make it impossible to consider
this procedure during a transitional period as illegal.
RAPONI v COMMISSION
Accordingly the first complaint is unfounded.
On the second complaint
The applicant complains that the contested Decision infringes Article 5 in fine of the Regulations, because the vacancy notice regarding the post in question was not preceded by a description of the post within the meaning of
the said Article.
This complaint relates both to the inadequacy of the vacancy notice itself and possibly the general failure on the part of the Commission to issue descriptions of all the posts within its administration.
The alleged inadequacy of the vacancy notice consists in the absence of any
clearly defined criteria of selection. Since this complaint is closely connected with the third complaint, it may be conveniently examined below.
In the present proceedings, bearing in mind the requirements of the service, the complexity of the task of describing the various posts, and the actual description of the post in question as given in the vacancy notice, the legality of the contested decision should be confirmed on this point.
On the third complaint
The applicant complains, first, that the Commission applied in the wrong
way the first part of Article 45 (1) of the Regulations, in that it failed to determine in advance its criteria for selection; and secondly, that the
Commission applied in the wrong way Articles 27 and 45 — in conjunction
with Article 43 —
which provide for the consideration of reports and pre
suppose the existence of a predetermined and objective procedure with
which officials would be acquainted in advance.
Article 45 provides that promotion shall be exclusively by selection after consideration of the comparative merits of the candidates. The appointing
authority has in this report wide discretionary powers. Such powers pre
suppose that, while great freedom is allowed in making the decision, there
must at the same time be a scrupulous consideration of personal files each
containing comparable information. This second factor provides the neces
sary guarantee that powers will be exercised in full knowledge of the facts.
Article 45 (1) of the Regulations indicates as a criterion the reports, to be made at least once every two years, provided for by Article 43; the non
existence of these reports at the time of the contested Decision does not seem
JUDGMENT OF 19.3.64 — CASE 27/63
sufficient ground for concluding that the Decision is illegal. It would be too much to require the Administration to draw up ad hoc reports to take the place of the reports provided for in Article 43 during the adaptation period
whenever a vacant post makes it necessary to compare the merits of possible candidates.
An examination of the factors actually taken into account by the Commission is a matter connected with the review of the 'consideration of the comparative merits' of the candidates.
Accordingly, this complaint is not well-founded.
On the fourth complaint
The applicant requests the annulment of the contested Decision, on the
ground that the reasons on which it was based were not stated.
According to Article 25 of the Staff Regulations, any decision relating to a specific individual which is taken under the Staff Regulations shall be com
municated in writing to the officials concerned and any decision adversely affecting an official shall state the reasons on which it is based.
The contested Decision did not state the reasons on which it was based in so far as concerns the person to whom it was addressed, that is to say, the official
whose candidature for the post in question was accepted and who was there fore not adversely affected by it. As for the other candidates, it should be borne in mind that the Commission has wide discretionary powers in making its selection. The factors on which this assessment is based, covering not only the efficiency and vocational aptitude of the applicants but also their charac
ter, behaviour and general personality, are ill-suited for inclusion in a
statement of reasons and were they so included the statements might well
prove prejudicial to the interests of the unsuccessful candidates. The Court
would, however, emphasize all the more strongly that the guarantees
ensuring a full consideration of candidates' personal files must always and in
every respect be observed.
This ground of the application must accordingly be dismissed.
On the fifth complaint
The applicant requests the annulment of the contested Decision, on the
ground that the factors on which the Commission based its Decision were incorrect or incorrectly interpreted by it.
RAPONI v COMMISSION
The post for which Mr Raponi applied should not have been filled until a consideration of the comparative merits of the candidates eligible for
promotion had been made. Such consideration implies a comparison of the
aptitudes of those candidates. However wide the Commission's discretionary
powers, the Commission must evaluate those merits on a basis of equality,
having recourse to information the source and content of which is com
parable in each instance.
It is not disputed that the curriculum vitae of the applicant which was sub
mitted to the Commission by its administrative service did not corres
pond either to the curriculum vitae which appears in his personal file, nor to that which was attached to his request for promotion. The Commission may well therefore have been insufficiently informed as to the applicant's career. Nor is it disputed that no examination of the linguistic proficiency of the
various candidates took place, despite the precise requirements relating to this specified in the vacancy notice.
The Court has no evidence before it that the Commission supplemented its knowledge by consulting the personal files of the candidates.
The factors taken into account by the Commission in taking its Decision were insufficient.
Accordingly, this decision must be annulled on the ground that it infringes the first subparagraph of Article 45 (1) of the Staff Regulations of officials of the EEC.
Costs
The applicant has been successful in his main conclusions. The defendant
must, by virtue of Article 69 (2) of the Rules of Procedure, be ordered to bear the costs.
On those grounds,
Upon reading the pleadings;
Upon hearing the report of the Judge-Rapporteur;
Upon hearing the parties;
Upon hearing the opinion of the Advocate-Gnral;
Having regard to the Treaty establishing the European Economic Com munity, especially Articles 173 and 179; Having regard to the Protocol on the Statute of the Court of Justice of the European Economic Community;
OPINION OF MR ROEMER — CASE 27/63
Having regard to the Staff Regulations of officials of the European Econ omic Community, especially Articles 5, 25, 27, 43, 45, 90, 91 and 110; Having regard to the Rules of Procedure of the Court of Justice of the
European Communities, especially Article 69,
THE COURT
hereby:
1. Annuls the Decision of 13 February 1963 of the Commission of the European Economic Community appointing D. Stras ser as Director of Internal Affairs within the Directorate-
General for Adminstraion;
2. Orders the Commission of the European Economic Com
munity to bear the costs.
Donner Hammes Trabucchi Delvaux Rossi Lecourt
Delivered in open court in Luxembourg on 19 March 1964.
A. Van Houtte A. M. Donner
Registrar President
OPINION OF MR ADVOCATE-GENERAL ROEMER <ap note>1</ap note> DELIVERED ON 6 FEBRUARY 1964
Summary
Introduction 141
I — Remarks on Procedure 141
1. Right of Appeal 141
2. Designation of defendant 142
II — Grounds of the appeal 142
1 —
Translated from the German.