C-21/70

JUDGMENT OF THE COURT (SECOND CHAMBER) 3 FEBRUARY 19711

Eva Rittweger v Commission of the European Communities

Case 21/70

Summary

1. Officials — Recruitment — Promotion — Transfer — Internal competition — Interchangeable methods — Priority in relation to the external competition (Staff Regulations of Officials of the EEC, Article 4)

2. Officials — Promotion — Assessments made by the administration of the qualifica­ tions of rejected candidates — Compulsory communication to those concerned and insertion in their personal file (Staff Regulations of Officials of the EEC, Articles 26 and 43)

JUDGMENT OF 3. 2. 1971—CASE 21/70

Luxembourg at the Chambers of its Legal Adviser, Émile Reuter, 4 boulevard Royal, defendant,

Application for the annulment of

(a) the decision of the Commission of 1 October 1969 appointing Mr Lenoch to a post of reviser;

(b) the decision of the President of the Commission of 23 March 1970, rejecting the complaint of the applicant of 26 January 1970 made against the said appointment,

THE COURT (Second Chamber)

RITTWEGER v COMMISSION

Knowledge of languages: the names of the candidates and specifying that Mr Lenoch has been — a perfect command of German; a translator in Grade L/A 6 since 1 — a very extensive knowledge of two March 1964; the memorandum con­ other Community languages; tained no similar reference concern­ — knowledge of English desirable.' ing the other candidates. 3. After several officials including the (b) By a memorandum of 7 July 1969 applicant put forward their candidature addressed to Mr Lambert, the Dir­ for the vacant post, the defendant de­ ector-General of Personnel and Ad­ cided on 1 October 1969 to appoint Mr ministration of the Commission in Lenoch, who is also a German national. Brussells, Mr Bodson expressed his That decision was taken in the following wish to 'know the reasons which led circumstances: your departments to reply to Miss Eva Rittweger that it was not pos­ (a) by a 'memorandum for the Members sible to accept her candidature'. of the Commission' of 3 July 1969 By a memorandum of 17 July 1969 the Secretariat-General of the Com­ also addressed to Mr Lambert, Mr mission Bodson:

JUDGMENT OF 3. 2. 1971—CASE 21/70

(c) By a memorandum of 28 July 1969 — stated that 'in consequence the addressed to Mr Bodson, Mr Lam­ Commission decided on 1 October bert: 1969, after a consideration of the — confirmed that the information comparative merits of the candi­ prematurely given to the applicant dates as well as of reports on concerning her candidature was them with regard to their com­ based upon 'a substantial error petence, efficiency and conduct in which anticipated the decision to the service, to appoint Mr Lenoch' be taken by the Commission in the to the disputed post. matter. Moreover, the error was 4. On 26 January 1970, the applicant immediately rectified'; submitted a complaint under Article 90 — pointed out: 'You mention at the of the Staff Regulations of Officials, in end of your memorandum that the which she asked the appointing authority communication put forward under to 'reconsider all the files put forward' your authority and that of Mr and to 'review the procedure followed in Coppé to the Commission takes order to set aside the candidate who into account only the seniority of Mr Lenoch. This is a formula was finally appointed and who does not fulfil the conditions of the published which was obligatory here, since vacancy notice'. alone among all the candidates, Mr Lenoch was an official in By letter of 23 March 1970, notified on 2 April 1970, the President of the Com­ Grade A/6 (the others being in mission informed the applicant 'that it is Grade A/5) and that it was there­ not possible for the Commission to act fore proper to show to the Com­ upon this complaint'. In fact 'a close mission that he had the necessary examination of the candidature files has seniority to obtain a promotion'; led to the conclusion that among all the — sent to Mr Bodson a telex message candidates Mr Lenoch is the most fitted which had been addressed to him to carry out the work attaching to the by Mr Reichling, Assistant Direc­ tor-General of Personnel and Ad­ post in question, based upon his univer­ sity education and his professional ministration at Luxembourg; this experience'. telex message included an assess­ ment of the merits of each of the 5. On 19 May 1970 the applicant lodged candidates. the present application.

jecting her complaint on the basis lodge the memoranda of 7 and 17 July of Article 90 of the Staff Regula­ 1969, sent by Mr Bodson to Mr Lambert tions of Officials to be null and and to reply to one question. void, The defendant complied with that re­ (2) rule that the decision promoting quest within the time laid down. Mr Lenoch to the post of reviser, The parties presented oral argument at vacant according to Vacancy the hearing on 19 November 1970. Notice No COM/102/69, is The Advocate-General delivered his illegal, opinion at the hearing on 16 December — consequently annul it and declare it 1970. void; — order the institutions from which the IV — Summary of the sub­ annulled measures were issued to take missions and arguments all steps as your judgment shall of the parties direct; The submissions of the parties may be — hold that the Commission, if not the summarized as follows: European Communities, must bear all the costs and expenses of the pro­ First submission: Infringement of the ceedings; third paragraph of Article 4 of the The defendant in its statement of defence, Staff Regulations contends that the Court should: The applicant states that Mr Lenoch could have acceded to the disputed post — reject the applicant's claim by dis­ only by way of promotion, whilst all missing her entire application as unfounded; the other candidates including the ap­ plicant could have been appointed to — order the applicant to pay the costs. it by transfer. The third paragraph of In her reply the applicant claims that the Court should: Article 4 of the Staff Regulations of Officials requires the institutions to — hold that the defendant must put on give preference, among the various the file the additional information methods of filling a vacant post, to received by Mr Bodson which was transfer; that requirement follows also referred to in the memorandum of 2 from the rules of good budgetary October 1969 for the Members of management. the Commission, which was put on The defendant replies that the third the file by the defendant; paragraph of Article 4 of the Staff — consequently annul the decision adopt­ Regulations places transfer, promotion ed and order the Commission to take and internal competition on the same such measures as your judgment shall plane. It follows equally from Article direct. 29 (1) (a) of the Staff Regulations, In its rejoinder, the defendant adheres which even mentions 'promotion' be­ to its previous conclusions. fore 'transfer', that these two methods 'are enclosed within the same stage of III — Procedure the operation'. Furthermore, those pro­ visions deal only with the possibilities of The written procedure followed the promotion or of transfer and the Court normal course. has interpreted that expression as mean­ After hearing the report of the Judge- ing that the institution is not absolutely Rapporteur and the views of the Ad­ obliged to take the measures in ques­ vocate-General, the Court (Second tion. Chamber) decided to open the oral pro­ As to the budgetary argument, the Staff cedure without a preparatory inquiry. It Regulations themselves have not in­ nevertheless called on the defendant to cluded it.

The applicant accepts that the admin to solve linguistic difficulties due to istration is not required to do the im the multiple and increasing technicality possible in order to find a candidate of the documents which are translated capable of being appointed by transfer in the Communities, and to give the to a vacant post among its staff. But exact translation of terms or expressions when, as in the present case, there are causing difficulty in current translation. such candidates, it is required to give In that employment Mr Lenoch re preference to the method of transfer. ceived excellent periodical reports. In such a situation the budgetary argu In support of these assertions, the de ment also remains entirely valid. fendant has produced a series of docu The defendant persists in believing that ments and particularly: Article 29 of the Staff Regulations al — the information card completed by lows the institutions to consider the Mr Lenoch in 1957, for the purpose possibilities of transfer and of pro of his entry into the service of the motion at the same time.

The ex ployers as well as a certificate from the Director of the Institut für Ur- perience which he might have acquired in commerce, journalism and films are und Frühgeschichte of the Univer of no importance in the present case. sity of Vienna. Furthermore, it follows from the letter The applicant misunderstands the of the President of the Commission of meaning of the letter of 23 March 1970, 23 March 1970 that the defendant has which merely states that the university accepted the university studies of Mr education as possessed by Mr Lenoch Lenoch as a decisive criterion. The had been one of the reasons for his vacancy notice placed such studies on being chosen. an equal footing with professional ex The applicant replies that: perience of an equivalent level'.

cerned; ability to find the correct expression — at no time did Mr Lenoch himself or the most appropriate formula and his excellent style had been highly ap put himself forward as a translator; preciated'. — in his application form for the dis That wide experience of translation led puted post Mr Lenoch described his to his posting to the terminology sec knowledge of the three other official tion, the essential purpose of which is languages as 'good to very good',

whilst the notice had mentioned: geration as well as scrupulous modesty'. Very good knowledge of two other Nevertheless, Mr Lenoch's superiors languages of the Community'. had judged his knowledge of French, In view of its nature, Mr Lenoch's Italian and English to be very good. university education bore no relation Lastly there is no clear line of de ship to the requirements laid down marcation between Very good know by the vacancy notice. ledge' and 'good to very good know The certificates from former employers ledge'. of Mr Lenoch were prepared after the It would not have been reasonable to disputed decision, and consequently judge Mr Lenoch solely on the basis cannot be relied on to justify it. In the of documents prior to 1 July 1967, same way the periodical report on Mr since the later period had been the Lenoch dealing with the period from 1 most important because it immediately July 1967 to 30 June 1969 is of no preceded the appointment. legal value as it was not adopted until The date on the certificates of the after the said decision. former employers of Mr Lenoch is of The defendant states that Mr Lenoch no importance, as these documents deal was appointed 'translator' as from 1 with facts prior to the disputed ap

Because 'especially' — and not 'exclusively' — of this, the said Members were unable lexicography and terminology. to take into account 'that stable and It was the duty of translator-terminolo objective fact', which is particularly gists posted to the terminology office important in the present case, since it of the Commission in Luxembourg to is difficult to make a reliable compar prepare phraseological glossaries; they ison between such different duties as were therefore constantly required to those of terminologist and translator as translate sentences and entire para well as between such subjective factors graphs in which technical terms caus as conduct in the service, application ing difficulty in translation are found. to work and the human relationships of 'The terminologist has thus the con each candidate. tinuous duty of translating'. In order The defendant thus disregarded the to illustrate the nature of this work, case-law of the Court according to the defendant has put on the file two which 'the Commission, however wide volumes of glossaries prepared by the its discretion, must make an assess said terminologists. ment of merits on a basis of equality Furthermore it has put in a certificate and taking into account comparable by another former employer of Mr sources of information and data'. Lenoch, from which it appears that the The defendant replies that the appli latter had provided translations which cant's argument is 'both erroneous in had given full satisfaction. fact and irrelevant'. It is correct that the The value-judgment which candidates document annexed to the memorandum make of their own qualities cannot be of the Secretariat-General of 3 July decisive, since 'there may be vain exag- 1969 mentioned only the seniority—in

his grade—of Mr Lenoch; that was At the hearing, the applicant stated in however justified since of the candidates particular that: Mr Lenoch alone could have acceded — certain findings mentioned with re­ to the disputed post solely by way of gard to the applicant in the telex promotion, so that it was necessary to message annexed to the memoran­ specify that he had within his grade dum of 28 July 1969, are 'disgrace­ (L/A 6 at the time) the necessary ful'; on the other hand this telex seniority to allow of promotion. message did not tell the truth by Nevertheless, the application forms had stating that Mr Lenoch had been been communicated to the Members engaged as a translator with the of the Commission and the personal High Authority, when it appears files of the candidates held at their from the file that he was engaged disposal; these documents noted the as a corrector in Category B and seniority of each candidate. that he held that position until The applicant draws attention to cer­ 1964; tain passages in the memorandum of 2 — the process of appointment shows October 1969, the scope of which it is the regrettable tendency on the part interesting to note: it concerned the of the administration to impose its finding that the appointment procedure own choice on the appointing 'had been suspended at the request of authority; Mr Bodson' and that this suspension — she offers to prove that unlike the 'was able to be lifted following addi­ other candidates Mr Lenoch did not tional information received by Mr Bod­ receive the premature information son'. It is not acceptable that informa­ that his candidature could not be tion of which neither the source nor the accepted; purport are known should affect the contested decision. — it is unacceptable that a telex mes­ In any case if Mr Bodson was not in­ sage should state opinions concerning formed of the seniority of the respective the staff likely to affect the choice candidates it follows from this that he of a candidate; in the present case had not received the personal files of the use of the telex message in the latter. question was a clear infringement The defendant replies that the mention of Article 26 of the Staff Regulations of Officials. of Mr Lenoch's seniority alone 'in a document which is only a summariz­ Also at the hearing the defendant ing document referring furthermore to pointed out in particular that: basic documents, clearly does not — the fact that at the time the can­ imply in that respect that information concerning the seniority of the can­ didates were wrongly and in a pre­ mature manner informed that their didates does not appear in the docu­ candidatures had not been accepted ments in the possession of the Members of the Commission to which reference was due to a misunderstanding was made, and from which moreover originating in the defendant's de­ partments in Luxembourg; certain information was drawn (applica­ tion forms, personal files, periodical — by claiming that Mr Lenoch had reports etc.)'. not received such information the

3 The third paragraph of Article 4 of the Staff Regulations of Officials, con­ firmed in this connexion by considerations of a budgetary nature, requires the institutions to give preference to transfer.

4 According to the wording of the provision quoted 'If the vacancy cannot be filled by transfer, promotion or an internal competition, it shall be notified to the staff or the three European Communities'.

5 This provision lays down but a single rule of priority, that is to say, that which must be observed between transfer, promotion or internal competition on the one hand and external competition on the other, the first-mentioned operations being put on an equal footing among themselves.

6 The administration therefore remains free to give preference to a candidate capable of being appointed by means of promotion alone when it regards him more suitable than his competitors.

7 It is not possible in regard to the wording of the abovementioned provisions to raise considerations of a budgetary nature, no trace of which is shown by these provisions.

8 This submission must therefore be rejected.

13 By a decision of the President of the High Authority of the ECSC of 22 April 1964, Mr Lenoch was 'appointed translator, classified in Grade 6 ... of Category L/A'—that is to say, of the 'Language Service' in accordance with the wording of Annex I to the Staff Regulations of Officials—'and posted in that capacity to the terminology section of the translation division' of the Directorate-General of Administration and Finance.

14 Since then and until his appointment to the disputed post Mr Lenoch carried out terminological and lexicographical duties which included in particular the preparation of multi-lingual glossaries providing the exact translation of highly technical terms or expressions, likely to cause difficulty in current translation.

15 In those circumstances the defendant could properly consider that the person concerned had 'wide experience of translation'.

16 With regard to linguistic knowledge, Mr Lenoch's superiors classified this as 'very good'.

17 Lastly the letter of the President of the Commission of 23 March 1970 states that 'close examination of the candidature files has led to the conclusion that among all the candidates Mr Lenoch is the most fitted to carry out the duties attaching to the post in question, based upon his university education and his professional experience'.

18 As professional experience is thus mentioned under the same heading as university education, it is not possible to deduce from this letter that the defendant chose Mr Lenoch for the sole reason that he had a university education.

23 With regard to the seniority of each candidate they were informed only of that of Mr Lenoch, to the exclusion of the seniority of the other candidates including the applicant.

24 It is true that the 'memorandum for the Members of the Commission' pre­ pared by the Secretariat of that institution and dated 3 July 1969 mentioned only Mr Lenoch's seniority.

25 However, that fact is easily explained in that, as Mr Lenoch was the only candidate who could have acceded to the disputed post solely by promotion, it appeared proper to specify that he had the minimum seniority in his grade required for the purpose of promotion by the second subparagraph of Article 45 (1) of the Staff Regulations of Officials.

26 Further, the abovementioned memorandum indicated 'that the personal files of all the candidates are held at the disposal of the Members of the Com­ mission by the Directorate-General of Personnel and Administration'.

27 Consequently, as the said files showed the seniority of each candidate, it cannot be claimed that the administration had made it impossible for the appointing authority to take this factor into account.

28 This complaint must therefore be rejected.

34 It appears from the file that the information provided in the abovementioned telex message consituted an essential part of the said 'additional information'.

35 It must be accepted, therefore, that the said telex message exercised a decisive influence on the content of the disputed decisions.

36 Under Article 26 of the Staff Regulations of Officials, 'The personal file of an official shall contain:

(a) all documents concerning his administrative status and all reports relating to his ability, efficiency and conduct;

(b) any comments by the official on such documents'.

37 According to the wording of Article 43 of those Regulations 'The ability, efficiency and conduct in the service of each official... shall be the subject of a periodical', report which shall be 'communicated to the official' who 'shall be entitled to make any comments thereon which he considers relevant'.

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

The defendant has been unsuccessful in its submissions.

On those grounds,

Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties; Upon hearing the opinion of the Advocate-General; Having regard to the Staff Regulations of Officials, especially Articles 4, 26 and 43; Having regard to the Protocols on the Statute of the Court of Justice; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, especially Article 69,

THE COURT (Second Chamber)

hereby :