C-26/68

3. Officials — Experts and officials — Distinction

4. Officials — Recruitment — Competition — Candidates entered on list of suitable candidates — Right of candidates to be appointed — No unconditional right (Staff Regulations of Officials of the EEC, Article 30)

1. The fact that a candidate has taken 3. It does not necessarily follow from part in a competition with the result the concept of an expert that such a that he has been entered on a list of person cannot, should the need arise, suitable candidates is evidence of an be consulted regularly and carry out interest which he has in the outcome without interruption the activities as­ of that competition as determined by signed to him. The distinction be­ the appointing authority. tween an expert and an official must be sought above all in the nature of 2. It does not follow from the provisions the legal relationship which binds of the second paragraph of Article 4 each of them to the institution to or from Articles 29 and 30 of the which they are assigned. Staff Regulations of Officials of the EEC that once a recruitment pro­ 4. The candidates entered on a list of cedure has been initiated the appoint­ suitable candidates have no uncon­ ing authority is obliged to pursue it ditional right to be appointed to the by filling the post which has become vacant post even if they are placed vacant. first.

In Case 26/68

Jeannette Fux , an official of the Commission of the European Com­ munities, residing at Schaerbeek-Brussels, 27 avenue Adolphe-Lacomblee, assisted by Maurice Colaert, advocate at the Cour d'Appel, Brussels, with an

THE COURT (First Chamber)

composed of: J. Mertens de Wilmars, President of Chamber, A. M. Donner and R. Monaco (Rapporteur), Judges,

Advocate-General: K. Roemer

Registrar: A. Van Houtte

gives the following

JUDGMENT

have been assigned to posts. Only then thousand Belgian francs) by way of will it be possible to establish whether damages, subject to the express reser­ the abovementioned post still exists un­ vation of the applicant's right to der the new administrative structure'. amend this figure in the course of The applicant was subsequently in­ the proceedings; formed that she was posted 'under the re-organization of the departments of B — Alternatively: the Commission' to Directorate-General XI—A—1. — award the applicant the sum of FB On 13 August 1968 she was informed 250 000 (two hundred and fifty that 'The post of principal administra­ thousand Belgian francs) subject to tive assistant, which was vacant accord­ the express reservation of the appli­ ing to the detailed list of posts for the cant's right to amend this figure in former Division III—B—3 of the EEC the course of the proceedings; and which was the subject of Notice of Competition EEC 5882, has been C — In any event: abolished under the re-structuring of the departments of the Commission'. — Order the defendant to pay the Against this decision the applicant costs.

brought the present application which The defendant contends that the Court was lodged at the Court Registry on 13 should: November 1968. Upon hearing the re­ — dismiss the application in its entirety port of the Judge-Rapporteur and the as inadmissible or unfounded; views of the Advocate-General, the — order the applicant to pay the costs. Court (First Chamber) decided to open the oral procedure without any prepara­ tory inquiry. The parties presented their III — Submissions and argu­ oral submissions at the hearing on 21 ments of the parties May 1969. The Advocate-General de­ livered his opinion at the hearing on 4 Submissions and arguments or the parties June 1969. may be summarized as follows:

tions, for neither the regulations nor post corresponding to the one above- general principles of law acknowledge mentioned. that servants named on a list of suitable The defendant contends that what the candidates, even when placed first there applicant in fact is asking for is the on, are entided to be appointed to the creation, within the present detailed lists post opened to competition. of posts, of a specific post. However, The applicant replies that she pleads in such a request is inadmissible since it support of her application the grounds of interferes on the one hand with the ex infringement of the Staff Regulations clusive powers of the Commission as and of misuse of powers precisely be regards the organization of its depart cause the contested measure does pre ments within the budgetary limits fixed judice her rights. by the Council and on the other with She also argues that, since she was the exclusive powers of the Council placed first on the list of suitable can itself in its capacity as budgetary didates, it is wrong to claim that the authority. contested decision does not adversely

and which no longer appears in the The applicant maintains that the second detailed list of posts of the Commis paragraph of Article 4 and Articles 29 sion of the European Communities. and 30 of the Staff Regulations have However such a prospect does not been infringed in the present case in have the features of enforceability, that: and of exclusiveness to the applicant — having decided to fill the disputed which are associated with a subjective post by means of the competition right; procedure, the defendant no longer — after the merger of the three execu had the power to abolish the post (in tives, the detailed list of posts relating fringement of the second paragraph of to each of them was abolished and Article 4): replaced by the new list adopted by — the contested decision destroys the the Commission of the European procedure which was initiated (in Communities: the decision of 20 June fringement of Article 29); 1968 whereby the Commission adopt — the contested decision disregards the ed its detailed list of posts so far as obligation on the part of the appoint posts in Category B were concerned ing authority to fill the vacant post on is not therefore a decision abolishing the basis of the list of suitable can within the detailed list of posts of the didates drawn up by the Selection EEC Commission the post for which Board (infringement of Article 30). the applicant had competed. It is to The defendant maintains that this line be regarded as a decision creating of argument is unfounded since: and putting into force a new detailed — it amounts to denying to the adminis list of posts which does not include a trative authorities the jurisdiction and

power vested in them to take at that substantial reasons be put forward any time the necessary measures of for her non-appointment. organization or re-organization inter In support of her argument the appli nal to the service; cant cites, inter alia, the case-law of the — it disregards the principle enshrined Court in the judgment in Case 62/65. in national administrative law, in The defendant rejoins, with regard to particular in that of France, according Articles 29 and 30 of the Staff Regula to which candidates put forward by a tions, that the provisions of the Staff selection board have no vested right Regulations at most require that the to be appointed, since appointment appointing authority should choose the always presupposes that 'the pro candidate which it appoints from the list visions of the Staff Regulations gov of suitable candidates drawn up by the erning access to the post opened to Selection Board. Furthermore, the judg competition remain in force and that ment in Case 62/65 does no more than the administration has not altered the state that, should this authority decide organization of its departments or to make an appointment, it must when reduced its staff'. making its choice follow the precise Thus, the defendant goes on to say, order of merit in the competition except what would be perfectly lawful even for reasons which it will be incumbent under normal circumstances is so a upon it to evaluate and justify before the fortiori where substantial changes, due Court should it depart substantially to the merger of three executives, have from that order. been made in the structure of an ad Moreover, adds the defendant, it is a ministration as in the present case. It is mistake to claim that the Commission obvious that in a situation of this kind was 'bound by its decision to fill the post

organize its departments. What she does in appointments promotions or trans deny is that the administration has the fers), the revocation of such a decision is power to go back on its decisions once always possible and permissible. they have been adopted. The applicant's argument, contends the At the time when the vacancy notice defendant, is made the more untenable was published the Commission knew by the fact that the merger of the execu that the three executives were to be tives has resulted in a reduction in the merged and that this merger could give total number of budgetary posts. rise to problems of re-organization.

On the other

nected with the interests of the service The applicant states in the first place and illegal, 'to exclude the applicant and that the administration's power is never her colleague also appearing on the list arbitrary and that even in the case of of suitable candidates in order to appoint the exercise of a discretionary power any Mr Dietzler to an alleged new post'. official is entitled to submit for review In support, the applicant argues in par by the Court the reasons for a decision ticular that the abolition of the post in which affects him adversely. dispute is fictitious and that in fact this She goes on to remark that the argu post continues to exist.

Federal Republic of Germany. Mr Dietz It emphasizes that the arguments on ler, a German customs officer under his which the applicant founds her sub national administration, is consulted on a mission are not accompanied by evidence continuing basis precisely on all the but constitute simple assertions which questions arising from this harmoniza are unfounded and of little relevance. tion with regard to specifically German The post in dispute does not in fact exist problems. any more. Mr Dietzler does not occupy On the other hand, it is necessary to this post and does not do exactly the avoid the confusion to which the term same work as his predecessor.

This, however, is quite German problems. Moreover the Com unusual and contrary to normal practice mission regularly consults in the same since what typifies an expert is that he circumstances other customs experts of is called upon to fulfil special temporary various nationalities on similar questions tasks, not those which, as in the present peculiar to particular Member States. case, are the very ones for which a post These experts, called in specially for was created. each working session, belong to their In fact, the applicant continues, the de national administrations, from which scription 'expert' used by the defendant they continue to draw their salaries, and is merely a device for the purpose of not to the staff of the Commission, surmounting the difficulty that it is which confines itself to paying them impossible for the time being to appoint

Mr Dietzler to the post in question. The goods and secondarily with problems sequence of events makes it clear that concerning Community transport; the post was officially abolished and then — contrary to the applicant's statement given unofficially to Mr Dietzler, until that the list of suitable candidates was such time as it can be restored and Mr drawn up at the beginning of June Dietzler's position thus regularized. 1967, the Selection Board did not In this connexion, adds the applicant, it meet until 3 July 1967 at 3.30 p.m. is interesting to note that the Selection Board had drawn up the list of suitable B — The claim for damages candidates at the beginning of the month of June and that in the course of the The applicant maintains that in any same month the Commission suddenly event there is a wrongful act or omis found that it must await the outline of sion on the part of the defendant re the new organization of the internal de sulting from the fact that the appoint partments so that it might know whether ing authority took the decision to fill the post in dispute was preserved. Such the disputed post and did not pursue a change of position is all the less ex this decision.

was at hand and that this could cause man national administration; re-structuring problems. Thus it was — the post in dispute does not exist in for the defendant, before adopting such the Commission's present list of de a decision, to examine any bearing which tailed posts so that the argument put the merger might have on the existence forward by the applicant remains a of this post. simple unverified supposition. The damage suffered, continues the ap It contends that it is for these reasons plicant, is considerable.

primary and secondary claim and won ing to the application of the agric dered what significance to attribute to ultural policy whereas Mr Dietzler is this repetition, maintains that it was concerned almost exclusively with guilty of no wrongful act or omission questions dealing with the origin of when it adopted the detailed list of posts

which does not include the post in dis or her request is refused in which event pute. Faced with the exigencies arising the wrongful act or omission follows from the merger of the executives it from the fact that the Commission pub- acted in accordance with and within the fished the vacancy notice and notice of limits of its jurisdiction and its powers. competition and thus decided to fill the Furthermore, the second factor which vacant post, whereas at that time it must be present for liability to exist, should already have been taking account namely damage suffered by the appli of the problems arising from the merger cant, is not established either. In the of the executives. The conduct of the connexion it should be noted that: Commission is in any event seriously — first, the candidates put forward by a negligent and culpably frivolous. selection board have no right to be The applicant goes on to argue that the appointed and therefore the appli

damage. Her references to serious tions and did not take part in any other preparation for the competition, to competition. the sacrifices called for by such pre In the second place, account must be paration etc., are 'figures of speech' taken of the fruitless efforts expended incapable of establishing the actual in the necessary preparation for the com existence or the extent of the damage. petition. The applicant states that she A competition within the Community had the sound training required for the does not call for 'cramming' on the post in dispute since on the one hand part of those participating but rather she came from the French customs ad for the demonstration of a sound pre ministration (where she was an inspec

The former, was unfounded', the applicant is mak in conformity with the basic principle ing use of an expression which has of the continuity of the post, had to or never been employed in connexion ganize the competition—even at the risk with the concept of damage but which of its subsequently appearing to have no is merely one of the very numerous purpose—if at the time the competition attempts at a definition of the con corresponded to the requirements of the cept of a wrongful act or omission. service. The latter did no more than

FUX v COMMISSION

Moreover, as regards the existence of of pursuing her efforts through all the the alleged damage it must be remarked channels open to her. that, since the applicant was entitled Finally, as regards her preparation for only to reasonable priority and not to a the competition, if there was no question right to be appointed, she ought not, of 'cramming' and if she already posses­ without being guilty of serious neglig­ sed a sound basic training upon which ence the consequences of which fall on she merely sought to improve it is hard her alone, to have allowed her career to to see why she had to undertake such depend on the happening of an event as intensive preparation that, by reason of uncertain as that appointment or to have the contested measure, she suffered the been content to remain inactive instead damage alleged.

Grounds of judgment Admissibility

1 The defendant objects that the application is inadmissible, claiming that officials and servants cannot be heard to contest measures adopted by the institutions concerning the organization and the functioning of the depart­ ments in so far as those measures do not adversely affect the rights which they hold under the Staff Regulations.

2 In the present case the contested measure is said not to affect adversely the rights of the applicant since the officials named on the list of suitable can­ didates have no right to be appointed to the post opened to competition. 3 The fact that a candidate has taken part in a competition with the result that he has achieved a favourable position is evidence of an interest which he has in the outcome of that competition as determined by the appointing authority. 4 In the present case the applicant argues that the Commission's decision to terminate the recruitment procedure in dispute infringed certain provisions of the Staff Regulations and constitutes a misuse of powers since it was prompted by reasons unconnected with the interests of the service.

JUDGMENT OF 24. 6. 1969 — CASE 26/68

authority, once it has decided to fill a vacant post and to this end has initiated the recruitment procedure prescribed by the Staff Regulations, no longer has the power to abolish that post and to go back on its original decision.

9 The said provisions state the objective criteria which any procedure for filling vacant posts in the interests of the service must satisfy.

10 They are intended at the same time to provide a guarantee for the person concerned that the appointed authority will only make appointments in con­ formity with the rules prescribed by law.

1 However, it does not follow from these provisions that once a recruitment procedure has been initiated the said authority is obliged to pursue it by filling the post which has become vacant.

12 Futhermore, the defendant justifies the abolition of the post in dispute on grounds derived from the merger of the executives.

18 According to the applicant Mr Dietzler who is 'consulted regularly on the problems of the harmonization of customs laws having regard to specific German problems' is in fact performing the same duties as those prescribed for the post in dispute.

FUX v COMMISSION

19 Furthermore she says that this official has been wrongly described as an expert since he is consulted on a continuing basis and performs his duties on a permanent basis. 20 It is apparent from Vacancy Notice No 5882 relating to the post in dispute that the duties which were entrusted to Mr Dietzler only partly correspond to those attached to this post. 21 Moreover it does not necessarily follow from the concept of an expert that such person cannot, should the need arise, be consulted regularly and carry out without interruption the activities assigned to him. 22 The distinction between an expert and an official must be sought above all in the nature of the legal relationship which binds each of them to the institution to which they are assigned. 23 It is common ground in the present case that Mr Dietzler continues to be employed by his national administration, the Commission merely paying him subsistence allowances and reimbursing his travel expenses as far as Brussels. 24 A situation of this kind is not one which could conceivably fit into a service relationship existing between the Community and one of its officials within the meaning of the Staff Regulations.

25 Although the practice of having recourse within the departments of the Community to the services of national officials does call for certain reserva­ tions to be expressed if the use of such officials attains sizeable proportions proportions and lasts a considerable time, it can be justified in the present case because of the need for close cooperation between the Commission and the national customs administrations when the transitional period comes to an end.

33 The applicant has failed to show the existence of any damage caused by the wrongful act or omission of which she accuses the Commission. 34 Since the candidates entered on a list of suitable candidates have no un­ conditional right to be appointed to the vacant post, even if they are placed first, there does not exist in the present case an adequate causal connexion between the conduct of the Commission and the damage alleged.

35 Since, moreover, the competition in dispute was, as appears from the vacancy notice, on the basis of qualifications, it did not prescribe tests which would have called for special effort by way of preparation on the part of the candidates.

36 Furthermore the applicant has brought no evidence of the expenses she in­ curred on this occasion.

37 In these circumstances the claim for damages must be dismissed as unfounded.

Costs

38 The applicant has failed in her application.

hereby:

I. Dismisses the application as unfounded;

2. Orders the parties to bear their own costs.

Mertens de Wilmars Donner Monaco

Delivered in open court in Luxembourg on 24 June 1969

A. Van Houtte J. Mertens de Wilmars Registrar President of the First Chamber

1 — Translated from the German.