C-88/71

JUDGMENT OF 28.6.1972 — CASE 88/71

In Case 88/71,

Henri Brasseur, an official of the European Parliament, represented by Victor Biel, Advocate at the Cour Superieure de Justice, Luxembourg, with an address for service in Luxembourg at the latter's Chambers, 71 rue des Glacis,

applicant,

v

European Parliament, represented by its Secretary-General, Hans Robert Nord, acting as Agent, assisted by Alex Bonn, of the Luxembourg Bar, with an address for service in Luxembourg at the latter's Chambers, 22 Côte-d'Eich,

gives the following

JUDGMENT

Issues of fact and of law

I — Summary of facts and pro­ The applicant, who entered the service of cedure the European Parliament on 1 December 1958 as a chauffeur in Grade D2, parti­ 1. On 24 March 1971 the European cipated in this competition together with Parliament published notice of Internal several other officials. Competition No C/40 with a view to Although he was placed at the head of the filling a post of 'clerical officer' at the list of suitable candidates, he was not Directorate-General for Administration, appointed. classified in career bracket C3-C2. Before filling the vacant post the appointing

BRASSEUR v EUROPEAN PARLIAMENT

III — Submissions and arguments II — Conclusions of the parties of the parties

The applicant claims that the Court should : The submissions and arguments of the parties may be summarized as follows: — Declare this application to be ad­ The applicant maintains that the decision missible as to form and in accordance to appoint Claude Lesire to the post in with the time-limits; dispute is void because it is vitiated by misure of powers (or of procedure) and As to the substance of the case: because it is illegal, in that it infringes Article 26(6) of the Staff Regulations. — Declare the application to be well- Having recalled his educational and founded and justified and, consequently, vocational training and his service record, rule that the decision appointing Mr he states that on 1 December 1968 he Lesire to the post of clerical officer in reached the limit of his career bracket, that career bracket C3-C2 should be he has entered several internal competitions annulled and declare it null and void; and has always been on the list of suitable candidates but has never been successful. — Order the Parliament to bear all the He also emphasizes the fact that—unlike costs and expenses of the action; himself—the candidate appointed to the post in dispute has no persons under his — Take formal note that the applicant supervision, is not at the limit of his career reserves the right to raise, during the bracket and was appointed after him. He proceedings, any submissions of law or alleges finally that the appointment in fact which appear appropriate ; dispute was motivated by the appointing authority's wish to transfer Mr Lesire — Take formal note that he reserves the definitively to a post other than that of

chauffeur. The procedure and the objective the order of merit and a second time when aims of the internal competition were the final decision was taken, departing thereby distorted since the contested from the result of that classification. appointment was based not on a com The defendant, in its rejoinder, objects parative examination of the merits of the to the fact that the applicant presents candidates but on the desire of the Admini certain alleged facts as being established stration to 'find a job' for the chosen simply because they have not been formally candidate. traversed. It rejects the imputation to it of The defendant outlines the different proce concessions which it has neither made nor dural stages of the internal competition in had to make, and formally denies, for the

Mr Lesire. After pointing out that the criticisms made against the judgment of the selection The defendant concludes that the proce board, on which the classification of the dure and the appointment were in due form candidates is based, are inadmissible and do not constitute a misuse of powers or because they concern a matter which is of procedure. The appointing authority irrelevant to the subject-matter of the made a legitimate use of the discretionary application, the defendant observes that power which it enjoys in this field and the written observations on the applicant's made its choice with the additional personal file cannot be alleged to be guidance of the opinion of the Director- 'malicious'.

By referring in this way to observations included in his personal file an opinion which does not appear on his in a memorandum of 13 July 1970 and file, the Parliament acted improperly and recalled in the opinion of the Director- thus took an illegal decision in relation to General. He adds that, were it not for the second paragraph of Article 26 of the these observations, his classification would Staff Regulations, which forbids the have been far higher than that of Mr Lesire. Administration to cite a document against He concludes therefore that the procedure an official unless it has been communicated was illegal; the Administration penalized to him before it was filed. him twice on the basis of the same facts: The defendant states that the selection once when the selection board drew up board for the competition classified the

candidates on the basis of criteria enabling In its rejoinder, the defendant gives further the respective merits of each to be com details regarding the content and origin pared. The opinion which the Director- both of the memorandum mentioned General for Administration sent on 15 July above, which is produced as an annex to 1971 to the Secretary-General of the Euro the defence, and of the written observations pean Parliament was not a document appearing in the applicant's personal file. intended to be added to the personal file It adds that the Administration cannot be of a candidate or of an official. It was in fact reproached for not having attached to the based on material in Mr Brasseur's file in question the aforementioned memo personal file, such as, in fact, the 'written randum and the remark made by a Mem observations' to which he refers. Finally, ber of Parliament, to which the Director- the remark concerning the applicant's General refers in his opinion.

Such information was not memorandum attached thereto. As regards decisive in this case; at the most it cor more particularly the remark in question, roborated the material contained in the it was a 'mere oral allegation' of which, file and, more particularly, in the written according to the text of the opinion itself, observations included therein by the memo the Director-General learned only in randum of 13 July 1970. directly. Neither the opinion, nor the The defendant observes, finally, that the said remark—which played such an im applicant has in fact abandoned his first portant role in the Director-General's submission based on a misuse of powers assessment—nor, finally, the attached or of procedure since he has left this point memorandum were included in the personal to the wisdom of the Court and has not file of the official concerned. The applicant : replied to the objections made in this con nexion by the Parliament. At the oral hearing the applicant expressly — Stresses the danger which the 'under maintained his first submission, though hand' nature of 'confidential' memo stating that he left this point to the wisdom randa, whose contents are and remain

JUDGMENT OF 28.6.1972 — CASE 88/71

This promotion displays the objectivity D1 cannot compensate for the prejudice and impartiality of the Administration which he has suffered by his rejection in towards the applicant, as indeed towards the competition in question, which entailed all officials. promotion from category D to category C. The applicant replies that promotion to

Grounds of judgment

1 By an application lodged at the Registry on 25 October 1971, the applicant brought an action for the annulment of the decision of the European Parliament filling the vacant post which was the subject of Notice of Internal Competition No C/40 of 24 March 1971.

2 The applicant asserts first of all that the contested appointment is void for misuse of powers in that it was motivated by the wish of the Administration to transfer Mr Lesire, who had become unable to perform the duties of chauffeur which he had previously discharged, to another post through the expedient of the competi­ tion at issue.

3 The fact that the appointing authority wishes to give an official, who has become incapable of performing the duties which he previously discharged, the opportunity of obtaining another post corresponding to his capabilities and qualifications cannot be considered an illegal measure, so long as the provisions of the Staff Regulations relating to the recruitment of officials are observed.

9 According to subparagraph (a) of the first paragraph of Article 26 of the Staff Regulations of Officials the personal file of an official shall contain, inter laia, 'all documents concerning his administrative status and all reports relating to his ability, efficiency and conduct'.

10 In pursuance of the second paragraph of the same article the aforementioned documents may not be used or cited by the institution against an official unless they were communicated to him before they were filed.

11 The purpose of these provisions is to guarantee an official's right of defence by ensuring that decisions taken by the appointing authority affecting his administra­ tive status and his career are not based on matters concerning his conduct which are not included in his personal file.

12 According to the applicant, the opinion of the Director-General for Administra­ tion had a decisive influence on the tenor of the decision adversely affecting him.

13 He asserts, in this connexion, that he was placed first on the list of suitable candi­ dates drawn up by the selection board and was awarded two points more than Mr Lesire.

14 It emerges from the report accompanying that list, and in particular from Annex 3, that in regard to 'suitability for the performance of the duties' Mr Lesire ob­ tained maximum points, 6 points more than the applicant.

Costs

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

21 The applicant has failed in his submissions.

22 However, under Article 70 of the Rules of Procedure, in proceedings commenced by servants of the Communities the institutions shall bear their own costs.

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 of the European Communities, especially Articles 26 and 29 ; 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,

A. Van Houtte J. Mertens de Wilmars

Registrar President of the First Chamber