C-76/69

JUDGMENT OF THE COURT (SECOND CHAMBER) 1 APRIL 19711

Dietrich Rabe

v Commission of the European Communities

Case 76/69

In Case 76/69

DIETRICH RABE, an official of the Commission of the European Com­ munities, residing at 13 Albertlaan, Tervueren, represented by Philippe Waquet, Advocate at the Conseil d'État and the Cour de Cassation of France, with an address for service in Luxembourg at the Chambers of Ernest Arendt, 34/B/IV rue Philippe-II,

composed of: A. Trabucchi, President of Chamber, P. Pescatore and H. Kutscher (Rapporteur), Judges,

Advocate-General: A. Dutheillet de Lamothe Registrar: A. Van Houtte

gives the following

1 — Language of the Case : French.

JUDGMENT OF 1. 4. 1971 — CASE 76/69

JUDGMENT

I — Facts unit and to take the chair at meet­ ings of experts.' The facts may be summarized as fol­ Subsequently, the defendant decided to lows: organize an internal competition on 1. The applicant, who was established the basis of qualifications, also bearing in 1964 as an official in Grade A 4, was the number COM/75, in order to fill first Head of the Structure and Rules the post detailed above. The notice of of the Market Branch at the Directorate- competition General for Steel of the former High — stated that applications presented as Authority of the ECSC. In 1966 he was a result of the vacancy notice would appointed temporary Chief Executive be considered as applications for the Assistant to a Member of the High competition; Authority. In 1967 he was appointed — defined in the following manner the temporary Head of Division. In 1968 'qualifications required'; he was assigned to a post in the Director­ '— University education confirmed by ate-General for General Research and a degree, or equivalent experi­ Technology. ence; 2. In June 1968 the defendant published — Detailed knowledge of the Treat­ Vacancy Notice COM/75 relating to the ies and of the machinery regulat­ Grade A 3 post of Head of Division ing the steel market; III—B-3 (Rules of the market—inspec­ — Good knowledge of the field of tion reports) within the Directorate for economic analysis; Steel under the Directorate-General for — Proven experience of working in Industrial affairs. This notice contained a group; in particular the following information: — Proven administrative experience 'Nature of duties: Head of Division and ability to direct.' To direct an administrative unit en­ From the several officials who applied, gaged in: among them the applicant, the Selection — the application of the rules established Board decided to award first place in the Hst of suitable candidates to Mr by the ECSC Treaty and of the im­ Peters. As a result, the Commission de­ plementing regulations in the field of cided on 30 April 1969 to appoint Mr publication of prices and non-dis­ crimination; Peters to the post in question. By letter of 15 September 1969 the applicant — the analysis of reports on inspections carried out at iron and steel under­ was informed that his application had not been successful. takings; — the preparation ot studies on the movement of prices of ECSC pro­ II — Procedure ducts. The procedure followed the normal Qualifications required: course.

Having heard the report of the Judge- In his application, the applicant makes Rapporteur and the views of the Ad the following observations: vocate-General the Court (Second 1. The selection board for the competi Chamber) decided to open the oral tion made its decision under irregular procedure without any preparatory in circumstances since one of its members, quiry. Mr Desbois, was not present at the It nevertheless invited the defendant to meeting when the decision was taken to reply in writing to the following ques propose to the Commission the appoint tions: ment of Mr Peters. Since there is noth

selection board? case as a whole that this procedure was 2. Why, in this case, did the Commis adopted solely for the purpose of ap sion not stop at the 'promotion/trans pointing Mr Peters to the post in ques fer' stage (Article 29 (1) (a) of the tion, in order to reward him for services Staff Regulations) rather than going he had rendered to the Private Offices on to hold an internal competition? of Members of the Commission: The defendant replied to the above — Unlike the applicant, Mr Peters is not questions. highly qualified on the subject of steel. The parties submitted their oral obser — By replacing the expression ability vations at the hearing on 21 January to direct an administrative unit and 1971. to take the chair at meetings of ex The Advocate-General delivered his perts' (Vacancy Notice) by 'proven opinion on 4 March 1971. experience of working in a group; proven administrative experience and III — Conclusions of the ability to direct' (notice of competi parties tion), the defendant reduced the con ditions required at the outset.

It is IV—Submissions and argu in conformity both with the require ments of law and of practical necessity ments of the parties that the results of a competition should The submissions and arguments of the be determined by the members of the parties may be summarized as follows: selection board present.

2. The allegation of misuse of power or were adopted by the Commission and of procedure is unfounded: which lay down with great precision — In his application form Mr Peters the composition of selection boards. stated that he had been entrusted, The Commission was given incomplete information on Mr Desbois's absence since 6 July 1967 and by the Mem ber of the Commission with whom since the information given did not dis he worked, with the task of 'follow close that he was not present at the ing closely, in his work in the Com most important meeting of the selection

Nevertheless, the rest, it either repeats the terms Mr Toffanin expressly maintained his of the vacancy notice or reproduces reservations in an official statement ac the substance of it. companying the report of the selection In his reply the applicant puts forward, board. In his opinion, the application inter alia, the following points: made by the applicant was irregular, 1. Since Mr Desbois did not participate and the choice of the selection board in the second meeting of the selection was Vitiated' by its erroneous assessment board—where the candidates were inter with regard to this point. viewed and the list of those suitable 2. If the competition in dispute had decided upon—he was not entitled to taken the proper course, the applicant

By tak According to the opinion expressed by ing its decision in Mr Desbois's absence the Joint Committee regarding the com the selection board infringed Article 25 petition in dispute, the members chosen of the Rules implementing Article 29 by the Staff Committee made the ob of the Staff Regulations, rules which servation that 'the qualifications required

do not seem to correspond to a Grade which is in breach of Article 32 of the A 3 post. They are surprised that, con Staff Regulations. sidering the qualifications required, no On the 'list of officials and other ser candidate was chosen by the procedure vants in employment with the Commis mentioned at Article 29 (1) (a) of the sion' drawn up for 1969 Mr Peters, at Staff Regulations'—in other words, that Grade A 3, appears under the Director an appointment was not made on the ate-General for Transport, Directorate basis of promotion or transfer following B, Division 2. On the other hand, it Vacancy Notice COM/75—' and ask emerges from Mr Peters's periodic re that it [the notice of competition] be port and from his application form that returned to the Directorate-General con he was employed in the Private Office of a Member of the Commission until cerned since they find themselves un able to express a valid opinion'. 20 May 1969. Finally, in the table annexed to a 'Note for the attention of The fact that a competition was never the Members of the Commission' issued theless held can only be explained on the basis that the appointment of Mr by the Commission's Secretary-General Peters—who did not satisfy the con and dated 28 May 1968, Mr Peters is ditions for transfer or promotion—had mentioned as working with the afore mentioned Division with his real Grade been decided upon beforehand. That also follows from the fact that the of A 5 and is not among the officials in the said Commissioner's office.

The of that unit, this being a condition officials concerned can enlighten the which the Commission has laid down Court as to the actual circumstances of in other cases. But since Mr Peters the competition and they should reply does not have such experience in re to the following question: 'Did you lation to steel, neither the vacancy notice know beforehand that Mr John Peters nor the notice of competition required would be chosen for the post (in ques this qualification. tion)?' The defendant cannot rely, in this con nexion, on the statement by Mr Peters In its rejoinder the defendant makes, in his application form. In fact, it is inter alia, the following observations: stated in the judgment of the Court in 1. The fact that Mr Desbois signed the Joined Cases 94 and 96/63 ([1964] ECR report of the selection board 'does in 297) that such documents are of an deed constitute an error', but Mr Des essentially subjective nature and can be bois was 'convinced of the excellent evaluated only with considerable care. qualities of Mr Peters'. It emerges from The exceptional favour which Mr Peters the minutes of the 76th meeting of the enjoyed at the Commission is also shown Commission that the latter, contrary to by the fact that in breach of Article 3 the applicant's allegations, was accura of the Staff Regulations the decision tely informed as to the significance of appointing him took effect from 1 July Mr Desbois's absence. 1968 although he took up his duties only The reservations expressed by Mr in May 1969. In addition, Mr Peters Toffanin and the initial absence of the was appointed at step 2 of his new document of which he complained were grade with seniority from 1 August 1967, of no consequence since the selection

board accepted the applicant's candida The fact that in the list of officials of ture and he was among those who did February 1968 Mr Peters was described well in the competition. Furthermore, the as having the temporary grade of A 3 document in question gave the applicant with the Directorate-General for Trans no advantage over Mr Peters. port 'is obviously the result of an ad 2. The periodic report made with regard ministrative error'. to Mr Peters was signed, first, by a In its written reply to the questions put Member of the Commission and, second by the Court, the defendant points out ly, by the Assistant Director-General for that Mr Toffanin, when examining the Industrial Affairs.

These minutes must other posts at Grade A 3. be understood to mean that the Com The Commission has never systematically mission, having examined and compared required candidates for vacant posts to all the applications submitted, considered have long experience in the relevant sec that none of the candidates who had tor. On the contrary, it may be better up to then applied for the post had not to base criteria of selection solely qualifications or ability such as would on knowledge already acquired but to have enabled the post to be filled by give greater importance to the ability promotion or transfer.

Furthermore, when unable to attend, by Mr Peters. he submits that he cannot be blamed for On his appointment, Mr Peters retained omissions from his file. the seniority which he had acquired He claims that as regards the Commis when, temporarily occupying the post of sion's decision to hold an internal com Deputy Chief Executive Assistant, he petition, the defendant has in effect re held the grade of A 3. In any case, this fused to reply to the question put by point is irrelevant to the dispute. the Court.

RABE v COMMISSION

monials which were absolutely necessary The decision to hold an internal com­ were at the disposal of the members of petition is at the discretion of the Ad­ the selection board and, secondly, the ministration which, in accordance with applicant was placed second on the list the case-law of the Court and in the of suitable candidates, a proposal with interest of officials themselves, is not which Mr Toffanin was himself in obliged to divulge the reasons for its agreement. conduct.

Grounds of judgment

1 This application is for the annulment of the decision of the Commission of 30 April 1969 appointing Mr Peters to the post of Head of Division III-B-3 which was the subject matter of Notice of Internal Competition COM/75, and for the annulment of the competition itself, including the notice of competition.

2 (1) The applicant considers that the said decision is illegal by reason of the fact that a member of the selection board for the competition, Mr Toffanin, added to the final report of the selection board comments to the effect that he considered, contrary to the opinion of the majority of the selection board, that two other candidates should have been placed jointly second with the appli­ cant on the said list, 'without removing my reservations as to the latter with regard to the contents of his personal file'.

3 On 10 March 1969 the administration invited the applicant to complete his application form by producing the degree in business studies referred to in the form, as well as testimonials issued by previous employers.

9 (2) The applicant claims that the competition procedure is also vitiated by the fact, which is uncontested, that another member of the selection board, Mr Desbois, although not present at the meeting of the selection board of 28 March 1969, nevertheless signed its report and declared himself to be in agreement with the conclusions of the selection board.

10 This meeting was designed in particular to enable the members of the selec­ tion board, by means of an interview with candidates which was intended to 'examine references regarding their employment', to come to a clear con­ clusion as to the qualifications and personality of each of them. In these circumstances, by agreeing expressly with the conclusions of the selection board, Mr Desbois gave the impression of being as well informed about each of the candidates as the other members of the selection board, whereas in reality he was not present at the interview which, in the mind of the selection board, was an important factor in assessing the candidates.

11 Because of this fact also, the conduct of the competition in question was illegal.

12 The possibility cannot be ruled out that if all the illegal acts mentioned above had not been committed the selection board, as well as the appointing authority, might have come to a different decision.

13 Internal Competition COM/75 and the decision appointing Mr Peters to the post in dispute must therefore be annulled on the ground of infringement of essential procedural requirements, there being no need to examine whether the further submissions advanced by the applicant are well-founded.

Upon hearing the opinion of the Advocate-General; Having regard to the Protocols on the Statute of the Court of Justice; Having regard to the Staff Regulations; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, especially Article 69,

THE COURT (Second Chamber)

hereby:

1. Annuls Internal Competition COM/75 and the decision of the Commission of 30 April 1969 appointing Mr Peters to the post of Head of Division III-B-3;

2. Orders the defendant to bear the costs of the action.

Trabucchi Pescatore Kutscher

Mr President, be candidates on the basis of the prin­ Members of the Court, ciple laid down by Article 45 of the Staff Regulations. In June 1968 the post of Head of Divi­ Eleven candidates applied, one at Grade sion (Market rules, inspection reports) A3, applying for transfer, and the other corresponding to Grade A3 became ten, which included Mr Rabe, at Grade vacant at the Directorate-General for A4 applying for promotion. Industrial Affairs, Steel Division, with On 22 July 1968, the Commission, the Commission. having considered the different applica­ In accordance with the Staff Regula­ tions, decided not to fill the post by tions, a vacancy notice was published in transfer or promotion but to hold an order to fill this post by transfer or pro­ internal competition as it is authorized motion. Only Grade A3 officials (for to do by Article 29 (1) (b) of the Staff transfer) and Grade A4 officials (for Regulations. promotion) could be candidates. On the A selection board composed of five other hand, Grade A5 officials could not members was appointed to judge the

1 — Translated from the French.