C-62/65

JUDGMENT OF THE COURT (FIRST CHAMBER) 15 DECEMBER 19661

Manlio Serio v Commission of the EAEC

Case 62/65

Summary

1. Officials — Recruitment — Mandatory reconciliation of the concepts of competition and of selection — Limits of the administration's powers of assessment (Staff Regulations of Officials of the EAEC, Articles 29 and 30)

2. Officials — Recruitment — Review by the Court — Limits (Staff Regulations of Officials of the EAEC, Title III, Chapter 1)

Application for the annulment of appointments made by the defendant to the detriment of the applicant and for the payment of damages,

THE COURT (First Chamber)

composed of: A. Trabucchi, President of Chamber, L. Delvaux (Rapporteur) and R. Lecourt, Judges,

Advocate-General: K. Roemer

Registrar: H. J. Eversen, Assistant Registrar

gives the following

I — Facts appointed, having regard to the result of the competition and the favourable per­ The facts may be summarized as follows: sonal impression made by him. The On 16 January 1965 the applicant took part appointing authority did not accept this in a competition (Notice of Competition proposal and appointed a Belgian to the EURATOM/AD/A/47/64 published in the vacant post. It based its decision on the Official Journal of 22 June 1964) held for necessity for the broadest possible geo­ the purpose of establishing a reserve list of graphical distribution of vacant posts, as administrators in Grades A 7 and A 6. The referred to in Article 27 of the Staff Regula­ Selection Board placed him first in this tions of Officials of the EAEC. It appears competition. from the defendant's explanations, in fact, The Directorate-General of Administration that if Mr Tinelli's new assistant had been and Personnel advised the applicant by of Italian nationality the service of the letter of 14 April 1965 that his name Directorate of Personnel would have appeared on the list of suitable candicates comprised four Italian officials out of a and that he would be called upon to fill a total of six. post of administrator if the requirements of The applicant was then summoned on 24 the administration necessitated this and if September 1965 to the Karlsruhe establish­ the limit of validity of the reserve list, which ment of the Joint Research Centre, where a expired on 31 December 1965 but which post in the Personnel Department was could be extended, allowed it. vacant. According to the applicant, he was On 12 May 1965 the applicant was sum­ passed over for this post as he was con­ moned to Brussels by Mr Tinelli, the sidered to be too highly qualified for it. Director of the abovementioned Direc­ According to the defendant, on the other torate-General. The applicant was informed hand, it appeared that his vocational that there was a vacant post on Mr Tinelli's experience and abilities equipped him for staff, which was to be filled at the level of duties less practical than the management Grade A 6. He was also invited to undergo of the staff of the Research Centre. the medical examination prior to appoint­ By application lodged on 31 December ment. 1965, the applicant requests the Court to It appears from the statements of the annul the appointments of the candidates defendant that following this interview Mr appearing with him on the list of suitable Tinelli proposed that the applicant be candidates and to rule that the appointing

authority shall be obliged to appoint him to the detriment of the applicant who was one of the posts for which he applied. placed first in the said competition; — rule that the appointing authorities of II — Conclusions of the parties the defendant shall with retroactive effect appoint the applicant to one of the A — In his application the applicant claims vacant posts, under the conditions that the Court should: discussed and agreed on with Mr Tinelli '1. Procedure and approved by the administration — rule that the present application is ad (appointment in Grade A 6) and, in so missible ; far as in necessary, extend the validity of — declare that it has jurisdiction to enter the list of suitable candidates; tain it; — order the defendant to pay to the appli — take note that the applicant reserves the cant, by way of damages for the loss of right to put forward during the course income suffered by reason of his of the proceedings all details of fact and rejection, the sum of 26 000 Belgian law which at the lodging of this applica francs per month, subject to the possible tion it was not possible for him to do; addition of allowances, or any other — take note that he reserves the right to put higher sum to be fixed ex aequo et bono forward evidence with regard to the by the Court in accordance with the points described above; scale of salaries and allowances laid — in any event order the relevant depart down by the Staff Regulations, the whole ments of the defendant to lodge all ad to compensate for the loss suffered by

2. The substance of the case the Court should: — rule that this application is well founded — declare the application to be admissible and consequently annul the appoint under Article 38(l)(c) of the Rules of ments made by the defendant as a result Procedure; of Competition EURATOM/AD/A/ — order the lodging of documents in 47/64 to the detriment of the applicant accordance with the provisions of the since there was no valid reason for Rules of Procedure; passing over him as he was placed first in — in so far as is necessary, allow the pre - the competition; sentation of the evidence set out above, — annul any other appointment made by the reference to which may be presumed an appointing authority of the Com

JUDGMENT OF 15. 12. 1966 — CASE 62/65

justice; detailed argument. — subject generally to all reservations He goes on to allege that he has denned the whatsoever.' rules of law referred to and the grounds D — In its rejoinder the defendant contends upon which his application is based as that the Court should: follows: 'accept the defendant's conclusions set out — he had clearly referred to Article 27 of in the statement of defence.' the Staff Regulations, under the terms of which recruitment shall be directed to III — Submissions and arguments securing for the institutions the services of the parties of officials of the highest standard, and

tions the institution is obliged to choose the subject. candidate placed first in a competition. The The defendant replies that its objection does applicant goes on to allege that the institu not refer to the conciseness of the applica tion has shown no valid reason for passing tion but to the fact that it does not contain a over his candidature and that in fact there precise statement of the grounds upon which was no valid reason for rejecting it. The it is based. defendant observes, however, that the According to the defendant, it is only in the applicant does not specify whether he reply that the applicant mentions inciden

SERIO v COMMISSION

of all the Member States. It is the provisions 1. Complaint of infringement of Article 27 which follow, namely Articles 28, 29 and 30, of the Staff Regulations which constitute the precise, technical, detailed rules for recruitment. And Article The applicant points out that he was placed 30 expressly states that the appointing first in the competition and that, in addi authority shall decide which of the candi tion, he possesses strong claims to be dates to appoint from the list of suitable

application. present application concerns a recruitment, His perfect command of French, English, whilst the judgment cited dealt with a Dutch and German is also evidenced by the question of promotion where the post to be production of diplomas. He appears on the filled had been reserved for a person of a list of suitable candidates in several com particular nationality, despite the express petitions and his vocational experience is prohibition contained in Article 27 of the supported by three certificates. Staff Regulations. The defendant cites the Although Article 27 of the Staff Regulations opinion of Mr Advocate-General Lagrange lay down two obligations, first of choosing in this same case ([1964] E.C_R_ 40) and the most highly-qualified candidates and claims that it is at the stage of recruitment secondly of recruiting them on the broadest that the institution must take care to fulfil possible geographical basis, it appears from the obligation of geographical balance legal theory and case-law that the principle imposed by Article 27 of the Staff Regula of qualifications must prevail over that of tions. It adds that the judgment in question

institution. In reply to the applicant's argument that The defendant replies that under the terms the geographical balance of posts should be of Article 30 of the Staff Regulations, as effected in the context of the institution and confirmed by Article 5 of Annex III thereto, not of a department, the defendant states the appointing authority has the power to that the abovementioned judgment of 4 make a selection. Although the Selection March 1964 uses the words 'geographical Board evaluates the intrinsic worth of the balance among its staff', which must be candidates, it is for the appointing authority interpreted as meaning that such balance

must be sought in every large adminis sonnel Department of the Karlsruhe trative unit of the institution. establishment of the Joint Research Centre, the reason for rejecting the applicant is not 2. Complaint of non-communication of that he was considered too highly qualified the reasons on which the decision was to occupy the post to be filled. The real based and of absence of such reasons reason is that the applicant's knowledge and abilities equipped him for tasks less The applicant claims that no relevant reason practical than the management of the staff has been given for rejecting his candidature of the Research Centre. and that, in respect of the post to be filled at The applicant replies, in respect of the post Karlsruhe, it has even been said that the on Mr Tinelli's staff, that the criterion of applicant was too highly qualified, which is nationality can play only a subordinate certainly not a valid argument. role, and in any event only in the context of The defendant replies that neither in law nor the institution, and not, as erroneously in fact can the Commission be obliged to maintained by the defendant, in the context communicate to candidates the reasons why of a particular Directorate. they were not appointed. However, in this With regard to the Karlsruhe post, the case, reasons were given to the applicant. It applicant offers to prove by all means open states that with regard to the post at Karls to him in law, in particular by the produc ruhe the applicant himself admitted this in tion of the defendant's administrative files his application.

vacant post. It based its actions on the the words used by the Court in its judgment requirement of as broad a geographical of 4 March 1964 that its analysis of the first distribution as possible of the posts to be complaint was that a geographical balance filled, as referred to in Article 27 of the must be sought in every large administrative Staff Regulations. It states that in fact if unit and that it would be inconceivable to Mr Tinelli's new assistant had been Italian, set up a financial department which was the department of the Directorate of Per

SERIO v COMMISSION

legal. 3. Request for the production of docu The defendant observes finally that neither ments in fact nor in law is the Commission obliged to communicate to the applicant or to the The applicant points out that, in accordance forty-five other candidates successful in the with the provisions of Article 22 of the competition the reasons why they were not Statute of the Court of Justice of the subsequently appointed. EAEC, Article 26 of the Staff Regulations It contends that the request for the pro of Officials of the EAEC and Article 46 of duction of documents is unfounded and the Conditions of Employment of Other even inadmissible. Servants of the Community, there are grounds for producing in court the ad

JUDGMENT OF 15. 12. 1966 — CASE 62/65

As on 3 October 1966 the applicant with­ Chamber of the Court, after hearing the drew his application (62/65 R) for the opinion of the Advocate-General, decided adoption of an interim measure with a to invite the parties to present their oral view to obtaining the suspension of applica­ observations on this request at the hearing tion of the appointments of the two officials fixed for the main action. engaged by the defendant following the The parties presented oral argument at the competition in dispute, on 5 October 1966 hearing on 9 November 1966. the President of the First Chamber ordered The First Chamber of the Court authorized that application to be removed from the counsel for the applicant to present his register. submissions in Italian, in accordance with On 26 August 1966 the applicant lodged a Article 29 (2) (c) of the Rules of Procedure. request for the procedure, which had been During the hearing the defendant lodged started in French, to be continued in the files concerning the candidatures of Mr Italian. Serio and Mr Petrucco. On 1 September 1966 the applicant lodged Mr Advocate-General Roemer delivered a request that the defendant be ordered to his opinion at the hearing on 22 November produce a series of eight documents. 1966. At its hearing on 5 October 1966, the First

Grounds of judgment

I — Admissibility

The defendant raises an objection of inadmissibility against the application on the ground that in his application the applicant has omitted to indicate precisely the grounds relied upon and the provisions of the Staff Regulations or the rules of law which are alleged to have been infringed.

SERIO v COMMISSION

nel at Brussels, the defendant has emphasized that, by reason of the fact that two of the four posts of Head of Department and the post of Director were already occupied by Italians, it was not possible for it to select the applicant, who was also Italian, for fear of further aggravating the geographical imbalance of posts in the Directorate in question.

The applicant, basing his argument on the judgment of the Court of 4 March 1964 in Case 15/63, has alleged that the criterion of nationality only comes into play when the candidates' qualifications are approximately equal and, in addition, can only be taken into account in the context of the totality of the staff of an institution and not in that of a single department.

The judgment cited followed Article 27 of the Chapter of the Staff Regulations entitled 'Recruitment' which provides that 'No posts shall be reserved for nationals of any specific Member State'. The judgment referred to, which concerns a case of promotion or transfer, cannot be applied to this case.

Article 27 also stipulates that officials must be 'recruited on the broadest possible geographical basis'. This broad geographical distribution is particularly desirable in the Directorate of Administration and Personnel, which concerns all officials. In any event, the practical requirements of the post may well have made it necessary to avoid the appointment of a fourth servant with the same legal and administrative training in a Directorate whose staff comprises six persons in all.

The defendant was therefore entitled in this case to give preference to a candidate of a nationality other than that of the applicant. Even if the Commission were to be criticized for selecting the thirty-fifth candidate and the fifth Belgian in the order of merit in the competition in preference to all the candidates placed higher in the list, the applicant has no personal interest in formulating that complaint.

After receiving this report, the Commission proceeded to select Mr Petrucco.

It appears from a comparison of the results obtained by Mr Serio and Mr Petrucco in the oral tests that the applicant was placed first with 73.4 points, whilst the candidate selected was only placed twelfth with 66 points. Further, a comparison of the respective files of the two candidates shows that the applicant's qualifications were far superior to those of the candidate chosen.

Under the terms of Article 29 of the Staff Regulations 'Before filling a vacant post' or 'constituting a reserve for future recruitment' the appointing authority shall follow 'the procedure for competitions'. Under the terms of Article 30, the said authority shall then 'decide' which of those on the list of suitable candidates to appoint to the vacant posts.

It is therefore obliged to reconcile the concepts of competition and selection result­ ing from these provisions read together.

Although it is entitled in making its selections to ignore the precise order of merit in the competition for reasons which it is incumbent upon the administration to evaluate and justify before the Court, nevertheless it may not destroy the very concept of competition by departing substantially from the result of the competi­ tion without serious reasons.

However no such reasons apply in the present case, since the excellence of a can­ didate placed first cannot be considered as justification for his rejection. The defendant's allegation that the Commission's choice was inspired by the greater experience of the candidate appointed seems irrelevant. In fact, under the terms of Article 1 (1)(d) of Annex III to the Staff Regulations the notice of competition must specify 'the degree of experience required for the posts to be filled'.

It appears from the notice of general competitions published by the Commission (Official Journal of 22 June 1964) that 'the list of suitable candidates will be sent to the appointing authority, which will select from it the candidates to be appointed or, in the event of the constitution of a reserve list for future recruitment, to be placed on that list'.

The Commission has therefore already made a first choice by placing the candidates on that list. Consequently it cannot thereafter claim a discretionary power to make a serious departure from the choices which it had previously made.

It follows from the foregoing that the defendant has infringed Articles 27, 29 and 30 of the Staff Regulations of Officials and that, therefore, the appointment of the candidate Mr Petrucco to the Karlsruhe post should be annulled.

C — The claim for compensation

The applicant requests the Court to award him damages for the loss of income suffered by reason of his rejection.

The circumstances in which the applicant's rejection occurred and the erroneous reasons given constitute a wrongful act or omission on the part of the defendant and such wrongful act or omission has caused damage giving the right to repara­ tion.

Therefore the request must be rejected.

E — The request for the production of documents

On 1 September 1966 the applicant lodged a request for the defendant to be ordered to produce a series of eight documents.

At the hearing in open court the defendant of its own accord lodged the files concerning the candidatures of Mr Serio and Mr Petrucco.

As the Court considers that it has thereby been provided with sufficient informa­ tion, it is of the opinion that there is no necessity to order the production of additional documents.

III — Costs

Having regard to the Protocol on the Statute of the Court of Justice of the EAEC; Having regard to the Staff Regulations of Officials of the EAEC, especially Articles 7, 27 to 30, 90 and 91; Having regard to the Rules of Procedure of the Court of Justice of the European Communities;

THE COURT (First Chamber)

hereby:

1. Annuls the appointment of Mr Eugenio Petrucco as administrator in the Personnel Department of the Karlsruhe establishment of the Joint Research Centre;

2. Orders the defendant to pay to the applicant the sum of one hundred and fifty thousand Belgian francs by way of damages;

3. Orders the defendant to pay the costs of the proceedings, with the exception of those incurred by the applicant in Application 62/65 R for the adoption of an interim measure.

1 — Translated from the French version.