C-94/63

3. The application of Article 45 re­ mission, are documents of an essen­

quires no measure for giving effect tially subjective nature, the content

to it other than that laid down in and scope of which can be evaluated Article 43, to which Article 45 refers only with considerable care in a

con­ The matter as objective a by implication. application of requiring that sideration as possible of the merits of this provision presupposes re­

ports have been made on the ability, the candidates. The observance of

this requirement is im­ efficiency and conduct in the service especially portant in cases where the Commis­ of officials, these reports being one of the factors in the consideration of the sion takes its decision by written

v

European Economic Community and the Commission of that Community,

represented by the latter's Legal Adviser, Louis de la Fontaine, acting as Agent, with an address for service in Luxembourg at the office of Henri Manzanarès, Secretary of the Legal Department of the European Execu­ tives, 2 place de Metz, defendant,

BERNUSSET v COMMISSION

Application for

Case 94/63: annulment of the Decision of 8 July 1963 whereby the EEC Commission appointed Mr Edoardo Volpi to the post of Assistant in the

gives the following

Judgment Issues of fact and of law

I — Facts by written procedure to award the

vacant post to Mr Volpi and to promote Case 94/63 him to Grade A4 with effect from 1 April 1963; this decision was posted on

Following Vacancy Notice No 546, the notice boards in the Commission's which appeared in the Staff Information premises from 8 to 15 August 1963. Bulletin of the EEC Commission, No On 28 October 1963 the applicant

29 of 29 March 1963, a post of Assistant lodged an appeal at the Court Registry in Grade A4 was declared vacant in the against the appointment of Mr Volpi. Directorate General of Administration. Case 96/63 The vacancy notice gave particulars of

tion eleven in­ stration. received applications,

cluding those of the applicant and Mr 3. the personal files of the candi­

Rogalla, both of whom were classified dates'. in Grade A5. The defendant contends in each case The Commission decided on 3 July 1963 'that the Court should: 'transfer' to Mr Rogalla to the vacant — declare the application un­

temporary basis and to founded ; pro­ post on a

mote him to Grade A4 with effect from — order the applicant to bear the

1 November 1963. costs according to the relevant

Notice No both against the European Economic In Case 96/ 3: Community and against the Commis­ 'declare null and void the decision sion of thatCommunity on the grounds whereby Mr D. R. was appointed to the that, having regard to the opinion of the in Grade A4, advertised in Vacancy post Advocate-General in Case 25/60 and 515;' Notice No the decisions of the Court, he wished, on In both Cases: the one hand, to satisfy the require­

'order the European Economic Com­ ments of Article 91 of the Staff Regula­ Commis­ tions and, on the other, to gain access to munity or, alternatively, the to bear the whole of the costs of the sion the work done in preparation for the

procedings; regulations of the Councils in formulat­ note that the applicant reserves his right ing the Staff Regulations. to raise any fresh issues of fact or of law T he defendant does not express any view as shall seem to him appropriate after on this point and does not contest the

the other parties have presented their admissibility of the applications.

defence and after production by them documents.' of any B — As to the substance In his replies the applicant claims that

the Court should : Submissions common to both applica­

45 (1) should have been adopted, after were no reports existing which could be consultation with the Staff Committee taken into consideration at the time

and after the views of the Staff Regula­ when the contested decisions were made.

tions Committee had been obtained, and In the meantime the institutions had to should have been brought to the notice effect promotions and in so doing had to of the staff. base them solely on a consideration of

Promotion is such an important matter comparative merits.

that it cannot be made in an authori­

tarian manner, without the Staff Com­ mittee, representing the interests of the 2. Infringement of Article 5(4): whole staff and the Staff Regulations Absence of any description of the duties Committee, as the body responsible for and powers attaching to the posts harmoniza­ ensuring coordination and tion between the various institutions, The applicant invokes the illegality of the

are mentioned in Article 43 of the Staff Staff Committee. The Commission is Regulations which expressly refers to alone responsible for the delay in this

Article 110; they must therefore be matter and has only itself to blame if it made in accordance with the procedure cannot undertake promotions in a legal set out in Article 110. manner. The exigencies of the service

T he defendant replies that Article 45 (1) did not call for these vacant posts to be is complete in itself and is applicable filled immediately: auxiliary staff could without any need to supplement it by a have been taken on or the interim provision for giving effect to it; it procedure used.

establishes all the factors necessary for The distinction which the defendant

enabling promotion to be determined. seeks to draw between the definition of

Promotion is made exclusively by selec­ duties set out in Article 5 of the Staff tion after consideration of the merits of Regulations and the definition of duties therefor; the appointing officials eligible contained in a vacancy notice is un­

JUDGMENT OF 9.6.1964 — JOINED CASES 94 AND 96/63

tained in the vacancy notice conforms Article 45 (1) of the Staff Regulations with that laid down in Article 5 of the since the Commission did not decide in Staff Regulations is pure supposition. advance, and independently of the

According to the defendant this submis­ promotions it had to make, what cri­

sion shows that any promotion or teria it would apply in selecting the appointment should have been sus­ official best suited for filling the given pended until the institution had decided post.

on the definition of duties provided for The determination in advance of the

in Article 5. The effect would have been factors to be taken into account and the to paralyse Community activity as the relative weight to be given to each con­

ing posts. reports. It is unthinkable that there

In the present case the issue was not the could be no preconceived objective

abstract one of determining whether the rules known to servants in advance. candidates were in a position to carry The defendant replies that the applicant

out the duties of assistant or of principal is seeking to impose on the Commission administrator but of selecting the indi­ an obligation not laid down expressly or vidual candidate most suited to carry by implication in any provision of the out the duties defined in Vacancy Staff Regulations. The determination of Notices Nos 546 and 515. Even without criteria would either add no additional

the definition of duties and powers guarantee to those which officials enjoy required under Article 5 for each post, or adversely affect the wide discretionary the appointing authority was in a power expressly conferred on the ap­

position to assess the abilities of the pointing authority by Article 45 (1), and

application of the first subparagraph of the Court to examine the legality of his

BERNUSSET v COMMISSION

rejection. least the documents in the written

The defendant has itself admitted that proceedings if there were any such. The the contested measures adversely affect defendant admits that there was no

the applicant because it has offered no consideration of reports. The arguments objection to the admissibility of the which it advances to justify the absence applications. of reports are irrelevant as a test of

The defendant replies that Article 25 of legality. The legal safeguards laid down the Regulations only requires a state­ in Articles 43 and 45 of the Staff Regula­ ment of reasons for individual decisions tions the counterpart of the dis­ are

to take an individual decision con­ tions have some merit, which is not so

cerning each candidate whose applica­ here. In fact the Commission compared tion is not accepted. Admittedly the the qualifications and merits of all

promotion of another candidate may be candidates before selecting the one who tantamount to an implied refusal of the appeared most suitable. Furthermore applications of the others but this illegality as regards the promotions

refusal does not resolve itself into a made cannot be inferred from the

series of individual decisions and by absence of any reports on the candidates.

reason of its implicit nature does not call Article 45 in no way prohibits promo­

motion and of the reports on them as it second paragraph of Article 25 of the

was required to do by Article 45 of the Regulations, the decision regarding pro­

Staff Regulations. motion not having been posted at once It is for the defendant to show that it in the Commission's premises or pub­

gave this consideration and for this lished in the Monthly Staff Bulletin of purpose it must produce the minutes of the Communities. Promotion is the type the meeting of the Commission during of measure which is not perfected until

which the decision was taken or at all formalities have been completed;

JUDGMENT OF 9.6.1964 — JOINED CASES 94 AND 96/63

publication at all, has no effect on the When the Commission in the exer­

legality of the act. cise of its discretion adopts the

written procedure, it is not obliged

2. Infringement of the rules on the written to state its reasons for so doing. procedure (c) The proposal adopted in the present case is indeed a proposal of the

The applicant in his reply raises a further President of the Commission. The for falls Executive in­ submission annulment which Secretary acting on

into three parts. structions merely set the machinery (a) The Commission, which claims of the written procedure in motion.

of the internal regulations provides that amount to blocking posts for the future, where the written procedure is used something which would seriously harm agreement shall be reached on a pro­ the interests of all officials who have a

posal by one of the members of the right to a normal career. No abnormal Commission. situation is of a kind to justify such an The defendant's reply to this threefold infringement of the Regulations: more­

submission is essentially as folows: over in the present case there is a com­

(a) T he first part does not accord with plete lack of any statement of reasons

infringe­ the facts, since the Commission, which might justify such an

adopting its internal regula­ after ment.

cations were received before 31 March applicant, the Commission gave pre­

1963, that is, before the period of ference to Mr Rogalla by reason of his

validity of Article 108 had expired. theoretical and practical knowledge of

Mr Rogalla could legally have been German law relating to the public

chosen before that date. The Com­ service. The Commission is perfectly mission, not being in a position to do entitled to select from candidates of

this by reason of circumstances, was equal merit the one whose knowledge to the particularly suited to the efficient con­ quite properly able adopt proves

pursuant to the decision of the Court of The applicant maintains that Mr Rogalla 9 October 1963 (Official Journal of

was promoted only because of his 29 October 1963, p. 2598), decided on nationality and in order to take into 12 March 1964 to open the oral pro­

account, illegally, geographical conside­ cedure without apreparatory inquiry. rations in the distribution of posts. By order of 7 April 1964 the Second Moreover, Article 45 contains no refer­ Chamber decided, after hearing the ence to considerations of recruitment on a Advocate-General, to join the two cases geographical basis as set out in Article 27. for the purposes of procedure and

The Commission did not act in the judgment. interests of the service but pursued a The parties were heard on 22 April political aim. The applicant by virtue of 1964. In the course of the hearing they his training and experience has the produced certain documents. Advocate- qualifications required to a greater At the hearing on o May Mr degree than Mr Rogalla. General Roemer delivered his reasoned T he defendant on the contrary maintains oral opinion in favour of annulment of that the Commission selected Mr Rog- the two contested decisions.

Grounds of judgment

A — As to naming the defendants as parties and as to the admis­

that this procedure should be used before an appeal is made to the Court of

Justice. Any official may submit a request or complaint in this way through his immediate superior to the appointing authority of his institution. The appeal to the Court provided for in Article 91 must, failing any provision

to the contrary, follow the like rules and be brought against the same

authority. The appeal must be deemed to be brought against the Commis­

sion.

The admissibility of the appeal is not contested by the defendant and no

annulment of the appointment of Mr Rogalla to the post of Principal Administrator in the same Directorate for infringement of Article 110 of

the Staff Regulations on the ground that general provisions for giving effect to Article 45 (1) of the Staff Regulations were not duly adopted and published.

The application of Article 45 requires no measure for giving effect to it than that laid down in Article 43, to which Article 45 refers impli­ other by cation. The application of this provision pre-supposes that reports have

BERNUSSET v COMMISSION

been made on the ability, efficiency and conduct in the service of officials, these reports being one of the factors in the consideration of the comparative merits of the officials eligible for promotion. It is established in this case that the periodical reports provided for in

Article 43 and made in accordance with conditions to be determined by each institution by means of general provisions for giving effect to the Staff Regulations within the meaning of Article 110 were not in existence at the time when the contested decisions were made. But however regrettable may be the delay in this connexion in putting Article 110 into effect it must be said that none of the institutions was in a position at the time to adopt the general provisions for giving effect to the Staff Regulations —

reports provided for in Article 43 to be made, cannot be regarded as an

error of such a nature as to invalidate the decisions at issue.

Moreover Article 43 provides that periodical reports shall be made at least

every two years. The Commission thus could not have been in breach of thisduty at the date when the decisions at issue were made, that is to say, on 8 and 3 July 1963 respectively. Article 45 had therefore to be applied

before the said general provisions for giving effect to the Regulations had been drawn up.

The exigencies of the service make it impossible to regard this procedure as illegal at the time when the contested decisions were made.

As regards the first part of this submission the alleged inadequacy of the vacancy notices lies in the absence of clearly defined criteria making it possible to select the candidates most suited to these posts. As this point is

covered by the third submission, it will be appropriate to examine it later.

As regards the general failure to act on the part of the Commission, it must be admitted on this point that the contested decisions were legal in the

present case having regard to the complexity of the tasks of defining the various posts, the time involved, the definitions actually contained in the

vacancy notices and the need to fill the vacancies to meet the exigencies of the service.

3. As to the third submission

information. This second factor provides the necessary guarantee that

powers will be exercised with full knowledge of the facts.

Article 45 indicates as a criterion the reports provided for in Article 43; for the reasons set out above the fact that these reports were non-existent at the

date of the contested decisions does not appear sufficient to render those

decisions 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.

The applicant claims that the decisions in question should be annulled on the grounds that the reasons on which they were based were not stated.

Under Article 25 of the Staff Regulations any decision relating to a specific individual which is taken under the Staff Regulations shall at once be communicated in writing to the official concerned and any decision ad­

versely affecting him shall state the reasons on which it is based. Following this line of thought, it must be said that there was no need to give reasons for

the decisions at issue as respects the persons to whom they were addressed, that is to say the officials whose applications were accepted and who could not consequently be adversely affected. As regards the other candidates it

may be observed that, although the appointing authority has very wide discretionary powers in making its selection, the factors to be taken into account in applying that discretion depend not only on ability and effi­

ciency, that is to say, on the aptitude of those concerned in the performance of their duties, but also on their conduct in the service, that is to say, their behaviour, their character and their general personality. By their very nature findings on these matters thus are not appropriate as statements of

counterweight to the wide powers available to the Commission in this

matter.

JUDGMENT OF 9.6.1964 — JOINED CASES 94 AND 96/63

It is agreed that the two posts for which the applicant in the present case

had applied were to be filled by promotion and therefore after consideration of the comparative merits of the candidates. The Commission, wide as its discretionary powers may be, must treat all candidates alike and take into consideration comparable sources of information in making its comparisons. It is appropriate to check whether these conditions have been fulfilled in each of the present cases.

In Case 94/63 the contested decision was taken under the written procedure laid down in Article 11 of the internal regulations of the Commission of

After setting out particulars of the career and qualifications of Mr Volpi,

the communication ended with the following prop sal:

'I therefore propose, in agreement with the Committee of Chairmen, that

the members of the Commission should adopt the following decison:

"The Commission, after consideration of the comparative merits of the

candidates, has decided that Mr Edoardo Volpi shall fill the post of Assistant

BERNUSSET v COMMISSION

The minutes of the 236th meeting of the Commission held on 17 July 1963 contained the fol wing:

'The Executive Secretary gives notice that, the respective time-limits having

expired, no observations on or objections to the promotions submitted for approval to the Commission by written procedure have been made.

'The Commission accordingly adopted the decisions . . . mentioned

below . . .

The proposal of the President to promote Mr Volpi did not contain so much as a reference to the possible merits of other candidates. The application

forms submitted by the persons concerned themselves, without any verifica­

tion or check by the appropriate departments of the Commission, are docu­ ments of an essentially subjective nature, the content and scope of which can be evaluated only with considerable care in a matter requiring as objective a consideration as possible of the merits of the candidates. The observance of this requirement is especially important in cases where the Commission takes its decision by written procedure and therefore without the possibility of

any discussion and in the absence of reports on the ability, efficiency and conduct of candidates in the service.

It has not been claimed nor has any evidence been tendered that the Com­ mission supplemented its information by consulting the personal files of the candidates. It follows that the factors on which the Commission took its decision were inadequate.

In Case 96/63 the contested decision was taken by the Commission in accordance with the normal procedure in the course of its 234th meeting held on 3 July 1963.

'To sum up, I propose that the Commission adopt the following decision:

"The Commission, after considering the comparative merits of the can­ didates, has decided to appoint Mr Dieter Rogalla to the vacant post in Grade A4 in Division IX — A — 3 (Personnel Administration Division in the Personnel Directorate, Directorate-General of Administration) under No 515. This official is transferred to Division IX — A — 3 with effect

from 1 June 1963 and promoted to Grade A4 with effect from 1 November 1963".'

In the course of the proceedings the defendant maintained that the various applications of the candidates were annexed to the proposal of the President of the Commission. The minutes of the meeting of the Commission of 3 July 1963 contained the following:

'The Commission received applications from various officials of the Com­ mission for the vacant post in Grade A4 in the Personnel Adminstration Division in the Personnel Directorate of the Directorate-General of Admini­

stration in response to the notification of vacancy of this post (PERS/1/63). The Commission examined the proposal of the President to appoint to this post Mr Dieter Rogalla, at present an official in Grade A5 in the Directorate General of the Internal Market.

sonal files of the candidates. In the circumstances the considerations upon which the contested decision was based must be considered inadequate.

From a consideration of the facts set out above, it is appropriate 10 annul

the decisions taken on the ground that they infringe the first subparagraph

of Article 45 (1) of the Staff Regulations of the EEC, and there is no need to examine the other grounds pleaded in support of each application or more

especially to declare as regards Case 96/63 that the disputed promotion

constituted an infringement of Article 45 (1) of the Staff Regulations, inas­ much as the requirement regarding the period of service in his grade was not met at the time of his appointment in the case of the candidate promoted.

her by:

OPINION OF MR ROEMER — JOINED CASES 94 AND 96/63

1. Annuls the decision of 8 July 1963 whereby the Commission of the European Economic Community appointed Mr Edoardo Volpi to the post of Assistant in the Directorate- General Administration) of declared vacant by Vacancy Notice No 546;

2. Annuls the decision of 3 July 1963 whereby the Commission of the European Economic Community appointed Mr Dieter Rogalla to the post of Principal Administrator in the Directorate-General of Administration declared vacant by

Vacancy Notice No 515;

3. Orders the Commission of the European Economic Com­

other candidates. Hence the applicant's As in the recently decided proceedings decision to contest the aforementioned

27/63 (Raponi v Commission of the European decisions on promotion by applications Economic Community), the present cases for annulment.

relate to the consideration of decisions on The legal consideration of the present

promotion by the Commission. They cases is made very much easier by the were taken in one case on 3 July 1963 in fact that the arguments advanced are

order to fill a post in the Personnel largely covered by arguments we have Administration Division (Grade A4) heard in the Raponi case. This applies and in the other on 8 July 1963, follow­ especially to the complaint of infringe­

ment of Articles 5, 25, 45 and 110 of the ing the completion of the written pro­