C-12/69

JUDGMENT OF THE COURT (FIRST CHAMBER) 10 DECEMBER 1969 1

Gustav Wonnerth

v Commission of the European Communities

Case 12/69

Summary

Officials — Recruitment — Rationalization of the administration following the Merger Treaty — Voluntary transfer to a post corresponding to career bracket immediately below that applicable to grade — Nature — Priority right of the official concerned to be transferred to any post corresponding to his grade — Guarantees — Suitability of candidates having priority — Consideration — Statement of reasons — Duties of the administration — Reference to the merits of candidates not entitled to priority not permissible. (Regulation No 259/68 of the Council, Article 8)

(1) for the annulment of the decision, taken in pursuance of Vacancy Notice No COM/161, to appoint Mr Günter Arning to the vacant post of Head of Division F/2, Work Safety, in the Directorate-General for Social Affairs, of which the applicant was informed by Publication No 2/1969 of 16 January 1969;

(2) for the annulment of the decision informing the applicant on 30 January 1969 that it had not been possible to entertain his application in respect of Vacancy Notice No COM/161;

(3) to the extent necessary, for the annulment of the implied decision of rejection arising from the administration's failure over more than two months to reply to the complaint through official channels lodged by the applicant on 19 December 1968.

THE COURT (First Chamber)

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

Advocate-General: K. Roemer Registrar: A. Van Houtte

of Head of the Division for Work — refusing to appoint the applicant to Safety, which formed part of the Direc­ the post referred to in Vacancy torate-General for Social Affairs. Notice No COM/161; The applicant found himself competing — appointing Mr Giinter Arning to that with two other officials in the same post; position in Grade A3, and with eight (2) In the alternative officials of a lower grade. By decision of 18 December 1968 the — Declare that by refusing to ap­ Commission appointed Mr Arning, one point the applicant to the post of the eight officials of lower grade, to referred to in Vacancy Notice No the post in question after finding that COM/161, the Commission has none of the officials in Grade A3 who infringed the provisions of Article had accepted transfer pursuant to Article 5(3), the first paragraph of Article 8(1) was suitable. 27 and Article 45 of the Staff Regulations; — And accordingly, annul the de­ II—Conclusion of the parties cision of the Commission on the ground that it infringes the above- (a) In his application the applicant mentioned provisions: claims that the Court should: — retusmg to appoint the appli­ I — Declare that the present application cant to the post referred to in is admissible; Vacancy Notice No COM/161; — appointing Mr Giinter Arning II—Declare that it is justified as re­ to that post; gards the substance of the action; (3) To the extent necessary: (1) Principally Declare that the defendant must pro­ — Declare that, as regards the equal duce the following documents at the or even greater merits of other hearing: candidates, the priority right pro­ vided for in Article 8(2) of Regu­ (a) the report submitted by Mr Vinck, Director-General of the Director­ lation No 259/68 confers on the ate for Social Affairs at the Com­ official who enjoys it a well-estab­ lished and absolute right to prefer­ mission, containing the proposals ence, provided that he can show concerning the applications made that he is suitable for the post in by the Directorate-General in re­ question; lation to the post referred to in — Declare that the applicant is suit­ Vacancy Notice No COM/161; able for the post forming the sub­ (b) The extract from the minutes of the Commission of 18 December ject of Vacancy Notice No COM/ 161; 1968 concerning the appointment And accordingly declare that the to the post referred to in Vacancy applicant had a well-established Notice No COM/161; right to be appointed to the post (c) The personal file containing the in question; periodic reports on Mr Günter Consequently: annul, on the ground that Arning, who was appointed to the it infringes Article 8(2) of Regulation post referred to in Vacancy Notice No 259/68 and the contractual under­ No COM/161 (Head of Division taking given by the defendant on 12 V/F/2, Work Safety) at the May 1968, the decision of the Com­ Directorate - General for Social mission: Affairs;

The defendant contends that the Court should: III—Submissions and argu­ ments of the parties — dismiss as inadmissible the con­ clusions claiming the annulment of The submissions and arguments of the an alleged decision of the Commission parties may be summarized as follows: of the European Communities refus­ ing to appoint the applicant to the A — Admissibility post referred to in Vacancy Notice No COM/161; 1. The defendant considers that the — Dismiss the entire application as un­ application is inadmissible inasmuch as founded; it refers to the Commission's refusal to — Order the defendant to pay the costs. appoint the applicant to the post re­ ferred to in Vacancy Notice No COM/ In his reply the applicant claims that 161. the Court should: According to the defendant, the measure 1. Set aside the submission of inadmis­ by which the administration informs a sibility put forward by the defendant; candidate that his application has not Declare that the present application been accepted cannot be contested, un­ is admissible in its entirety; like the decision to appoint a competitor and the implied decision rejecting the 2. As regards the substance of the complaint brought by the unsuccessful action, declare that it is well-founded, candidate. On this point the defendant accept the applicant's conclusions set refers to the case-law of the Court in out in his application commencing Case 16/64 (Judgment of 31 March the proceedings under I — 1, 2, 4 1965, Rauch v EEC [1965] E.C.R. and 5, refer the case back to the 144). Commision for further action to be The applicant considers that the decision taken and for the Court's decision to which rejects—that is to say, which does be put into effect by declaring that not appoint—an official who has a prior­ recruitment to a post for which a ity right within the meaning of Article 8 priority has been established must be of Regulation No 259/68 constitutes a made on the basis of precise and decision which may be contested in the definite rules capable of review by same way as the positive decision to ap­ the Court and either that the Court point, by way of promotion, an official shall itself define at least the general who has no such right. In the opinion nature of these rules, or that it shall of the applicant the priority right re­ order the Commission to adopt, sub­ ferred to in Article 8 excludes any con­ ject to a posteriori review by the sideration of 'the comparative merits of Court, those rules which it shall con­ the officials who have accepted transfer sider appropriate; under Article 8(1) with those officials Take note that the applicant does not who are eligible for promotion. When a adhere to his conclusions set out decision is taken to promote an official under II—3(a) and (b) of his applica­ in Grade A4, despite the existence of tion commencing the proceedings. officials in Grade A3 who have a priority

right, a subjective right of the latter is B — Substance infringed and the decision which thus sets his application aside is clearly cap 1. Legality of the Commission's decision able of affecting him adversely. of 18 December 1968 The applicant considers that it is thus mistaken to refer to the case-law of the (a) The applicant claims that when the Court in matters of promotion and that administration is dealing with an ap an analogy is rather to be sought in the plication from an official who has accept case-law concerning the obligations of ed transfer under Article 8(1) and who the authority as regards the reserve for is invoking the priority right conferred future recruitment, such as were brought on him by paragraph (2) of the same out in the Judgment in the Serio Case Article, the only criterion which it may of 15 December 1966 (Case 62/65 take into consideration is the suitability [1966] E.C_R_ 561). of such official to hold the post in ques The defendant rephes that the distinc

occurred. In both cases it is the appoint had a priority right. Finally, he observes ment of a competitor which adversely that the wording of the decision of 18 affects the unsuccessful candidate. December 1968, in particular, Point (b) Consequently, the applicant could not thereof, showed that the Commission contest an alleged decision refusing to had made a comparison of the files of all appoint him, but only the decision to the candidates including those of the appoint the candidate who was finally candidates not having a priority right. successful.

3. Finally, the defendant considers that with a priority right of transfer to a the conclusions claiming the interven post corresponding to his grade. This tion of Mr Arning are inadmissible on difference in treatment lies in the use the ground that the Rules of Procedure of techniques of selection based upon do not recognize a concept of compul guarantees capable of external review. sory intervention. The defendant replies that within the

context of Article 8(2) of Regulation No matters of promotion, sufficient reasons 259/68, the suitability of the applicant must be given for a decision rejecting an for the post in question must alone be official who has a priority right to ap considered, except that, where applica prise him of the basic reasons for the tions are received from several suitable Commission's refusal to appoint him. candidates who have accepted transfer The defendant replies that even if the under (Article 8(1), they should be con conclusions on this point were to be sidered inter se as to their merits. considered admissible, the submission In the opinion of the defendant no pro based on the absence of reasons for the cedural irregularity took place during decision could not be accepted. the meeting of 18 December 1968 which It is only an individual decision con could infringe the rights of the applicant cerning the applicant personally and in this respect. dealing with his particular case which Point (b) of the minutes of this meeting must, according to the case-law of the merely states that the Commissioners Court, contain evidence of its own heard first a general statement by the legality, that is, which must satisfy the Commissioner dealing with the matter, requirements of an express statement of without any comparison's being made of reasons (Judgment of 5 May 1966, the various candidates in different Gutmann v Commission of the EAEC, grades. Moreover, there is nothing in Joined Cases 18 and 35/65 [1966] Article 8 of Regulation No 259/68 to E.C_R_ 116). prevent all the applications' being taken The defendant maintains that the sub simultaneously, including those from the mission is only directed against the de candidates without priority, and being cision to appoint Mr Giinter Arning, examined during a single meeting held which, in accordance with the principle to consider the files of the candidates laid down in the Judgment of 15 in all grades. Any other method would December 1966 (Serio v Commission of needlessly encumber the selection pro the EAEC, Case 62/65 [1966] E.C_R_ cedure. 561) did not require any express state (b) The applicant then maintains that ment of reasons. It is sufficient for the the statement of reasons with which the Commission to be able to demonstrate Commission justifies its view that none before the Court of Justice that the

By cretionary power of the administration appointing a candidate without priority must be based on objective criteria rather than one having such a right the which are capable of review. It is thus Commission merely intended to reject insufficient to refer in the abstract to the candidates who were in one of the university education and training, ex situations, in this case availability for perience in appropriate employment and transfer, referred to in Article 29. This the general personality of the official, means that the position of the applicant since, contrary to the requirements in is that of a servant available for transfer

candidate (Judgment of 19 March 1964, the applicant's abilities acquired from Raponi v Commission of the EEC, Case his training were not those required for the post in question. 27/63 [1964] E.C.R. 138). (c) Finally, the applicant contends that Vacancy Notice No COM/161 required the contested decision is illegal in that it a thorough knowledge of the legislation and regulations in the field of work distorts the meaning of the words 'is safety, from the point of view both of suitable' by failing to take into account prevention of accidents and compensa­ the parity of the qualifications required by Vacancy Notice No COM/161 and tion for them. It is clear from the quali­ those of the applicant. fications listed by the applicant that they were in the main technical rather In this instance, the training and experi­ than legal qualifications in the field of ence of the applicant exactly fit the de­ work safety. scription of 'the vacant post appearing in In these circumstances, the conditions as the vacancy notice. The qualifications to qualifications required by the vacancy necessary—engineer or legal expert, notice were not fully satisfied. knowledge of legislation on work safety, ability to act as chairman of inter­ 2. Alternative submissions national meetings and certain linguistic requirements—were amply fulfilled by The applicant claims, in the alternative, the applicant (a multi-lingual engineer that even apart from any priority right specializing in work safety). under the Staff Regulations, the refusal The appropriate Director-treneral, whose to consider his application infringes opinion was regarded by the Commis­ Article 5(3), the first paragraph of sion in its letter of 12 December 1968 Article 27 and Article 45(1) of those as the most valuable, had considered all Regulations. the A3 candidates, including the appli­ In this connexion he maintains that in cant, to be 'in the field' with the result any case his position under the second that it is not clear what objective reasons paragraph of Article 8(1) can only be could have led the Commission to the temporary and that, in accordance with opposite conclusion that none of the A3 Article 5(3) of the Staff Regulations, he candidates was suitable. still retains the right to a career under The defendant replies that it was by conditions identical to those of the other taking into consideration, in the light of A3 officials. the applicant's file, his university educa­ Secondly, he maintains that no genuine

4 The application for annulment is admissible.

5 The applicant requests the Court to give rulings on certain points.

6 The purpose of his seeking these rulings is either to obtain acceptance of the validity of certain of the submissions put forward in support of the applica­ tion for annulment, or to induce the Court at this stage to give instructions to the authority responsible for enforcing the judgment to be delivered in this instance.

7 As regards these different points, the application must be declared in­ admissible.

8 Finally, the application is also inadmissible to the extent to which it seeks the compulsory intervention of Mr Arning, as this form of legal action is not provided for in the Rules of Procedure.

WONNERTH v COMMISSION

14 It states that although it is true that this consideration was given within the framework of a recruitment procedure concerning both these candidates and their competitors who had no priority right, this method of proceeding is normal in such cases and is justified by the desire not to encumber the recruitment formalities.

15 As a result of this consideration, the Commission took the view that none of the three officials who had priority rights and who had applied for the post was suitable and that this assessment falls within the area of its sole dis­ cretionary power.

16 The voluntary acceptance by certain servants of transfer under Article 8(1) of Regulation No 259/68 constitutes an essentially temporary measure which is justified by the short-term requirements of the service following the merger of the Executives and cannot be prolonged to the detriment of the official concerned.

17 In view of the quite exceptional and temporary nature of such transfer, and in order not to compromise the reality of the obligations arising under Article

JUDGMENT OF 10. 12. 1969 — CASE 12/69

8(2), it is necessary to provide the officials concerned with strict guarantees regarding their priority right.

23 Such factors must only concern the qualifications required by the Vacancy Notice and must appear in the minutes of the Commission. 24 In this connexion, the minutes of the meeting of the Commission of 18 December 1968 only contain considerations which are so general that they do not satisfy the requirements indicated above. 25 For these reasons the decision infringes Article 8(2) and must be annulled.

Costs

26 Under the terms of Article 69(2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs.

27 As the defendant has failed in its submissions, it must be ordered to pay the costs.

WONNERTH v COMMISSION

On those grounds,

Delivered in open court in Luxembourg on 10 December 1969.

A. Van Houtte R. Monaco Registrar President of the First Chamber

OPINION OF MR ADVOCATE-GENERAL ROEMER DELIVERED ON 12 NOVEMBER 1969 1

Mr President, in 1958. He was an official and headed Members of the Court, the Technical Research Division which formed part of the Directorate for Pro­ Let me recall briefly the essential facts duction within the Directorate-General giving rise to the action before us for Coal. After initial classification in today. Grade A5 he rose to Grade A4 in 1960 The applicant, Mr wonnerth, entered and was finally promoted to Grade A3 the service of the High Authority of the in 1962. On the merger of the Execu­ European Coal and Steel Community tives the Division of which the applicant 1 — Translated from the German.