C-23/74

JUDGMENT of 12. 3. 1975 — case 23/74

decision of the appointing authority claim a right to obtain the benefit of because it gives rise to specific this temporary posting. benefits. 5. The interests of the service and the 4. Since the temporary posting of an impartiality of recruitment may official arises from an assessment of render desirable an internal competi­ the interests of the service, the party tion notwithstanding the possibility of involved cannot, by reason only of filling a vacant post by way of the fact that he is performing the promotion or transfer within the functions of the post in question, institution.

In Case 23/74

BERTHOLD KÜSTER, an official of the European Parliament, residing at 243 rue des Romains, Bertrange (Luxembourg) represented by Victor Biel, Advocate of the Cour Supérieure de Justice du Grande-Duché, 71 rue des Glacis, Luxembourg, in whose chambers he has chosen his address for service,

applicant v

EUROPEAN PARLIAMENT, represented by its Secretary-General, Hans Robert Nord, assisted by Alex Bonn, of the Luxembourg Bar, having chosen its address for service in his chambers

KÜSTER v PARLIAMENT

JUDGMENT

Facts

The facts and the arguments developed allowance provided for under Article 7 by the parties in the course of the (2) of the Staff Regulations. written procedure may be summarized as By letter dated 4 March 1974 in reply to follows: the letter of 13 February 1974 the Secretary-General observed that there had been no proposal for temporary appointment, because consequent upon I — Facts and procedure competition A/43 the post was shortly to be filled. The applicant, an official in Grade A4, entered the service of the High Authority Meanwhile by Notice of Vacancy No in April 1959. In May 1961 he joined the 875 of 26 September 1973 five posts of Language Service of the European head of division in the Directorate-

By letter of 26 November 1973 the On 23 November 1973 Notice of applicant approached the Director-Ge­ internal competition A/43 was pub­ neral, Mr Pasetti-Bombardella, with a lished. As a result of this new procedure view to obtaining an official decision in the applicant asked the Secretary-Gen­ relation to the post which he in fact eral by letter of 26 November 1973 to temporarily occupied. This letter inform him of the results of the remained unanswered. He thereupon, by consideration under Article 29 (1) (a). If letter of 13 February 1974 addressed to appropriate, he insisted upon knowing the Secretary-General of the European the reasons why this consideration had Parliament, repeated his application, produced no result. A copy of this letter asking for a reply at the earliest possible was sent to the President of the date. He emphasized that he had in fact European Parliament. occupied the post since 1 September By identical letters of 20 December 1973 1973. from the President and the Secretary-Gen­ On 22 February 1974 he made a formal eral the applicant was informed that it complaint to the appointing authority had seemed preferable to find a wider within the meaning of Article 90 (2), basis of choice for filling the vacant requesting the grant of the interim posts. By application dated 30

JUDGMENT OF 12. 3. 1975 — CASE 23/74

KÜSTER v PARLIAMENT

B. rule that the action is inadmissible or considers that the applicant had by his alternatively unfounded; letter of 26 November 1973 made a

ments of the parties only against this decision that Mr Küster could make a complaint within the 1. On the first conclusion meaning of Article 90 (2) of the Staff Regulations. The complaint which as The applicant argues that the meaning of from 22 February he in fact made Article 7 (2), first sentence, of the Staff against the failure to pay him the Regulations, under the terms of which differential allowance under Article 7 (2) 'an official may be called upon to did not relate to the decision asked for occupy temporarily a post.

If one reference to a decision as to temporary accepts the applicant's argument that posting under Article 7 (2). This means interim posting constitutes a de facto that notwithstanding the ambiguous situation, of a kind that confers on him wording of this provision, temporary the right to the differential allowance posting is a matter of fact, not requiring without a formal decision of the to be incorporated in a formal ad hoc administration, then the complaint of 22 decision. In the event the applicant had February constitutes the first procedural found himself de facto instructed to act necessary to ensure the admissibility carry out tasks entrusted to his superior; of an action before the Court.

It follows that the applicant 1973 and 13 February 1974. was entitled to the differential allowance Consequently, on this reasoning also, the under Article 7 (2), second sentence, as action is premature and therefore from the moment that he had in fact inadmissible. carried out temporarily the functions of Secretary of the aforementioned On the merits, the defendant points out Committee. that from the wording of Article 7 (2), The defendant considers the first claim first sentence, it follows that temporary in the action to be inadmissible. If one appointments must be the result of a

formal act on the part of the appointing action as regards the temporary posting authority, this being an interpretation is not subject to doubt. confirmed by the Court in its judgment The applicant argues that he had been of 16 March 1971 in Case 48/70, instructed by his immediate superior, Bernardi v European Parliament, Rec. who had just been promoted, to direct, 1971, p. 175. Accordingly the payment as head of the department, the of the differential allowance can only Secretariat of the Committee on Public take place on the basis of an ad hoc act. Health and the Environment.

A/43. temporary posting. As from the moment The applicant denies that his letters of when the applicant was instructed by his 26 November 1973 to Mr Pasetti-Bom superior to exercise the superior bardella and of 13 February 1974 to the functions of head of the department, he Secretary-General amounted to requests was entitled to the differential within the meaning of Article 90 (1) of allowance. In this matter the Parliament the Staff Regulations. These two letters no longer has any discretionary power. only amount to an exchange of The defendant replies that the legal correspondence with the administration, effect of Mr Küster's letters of 26 since the only authority competent in

It matters little authority to adopt a position in the who is the addressee because in any matter had expired is justified by the fact event Article 90 (3) provides that that Mr Küster had presented an requests on the part of officials to which application for interim measures on 25 Article 90 (1) relates must be submitted March 1974. Since this request was through the immediate superior. Besides, declared admissible by the President of it is shown by the wording of the the First Chamber of the Court of complaint of 22 February 1974 that the Justice in his order of 28 March 1974, it applicant himself considered the is appropriate to apply the rule of Article aforementioned letters as requests within 91 (4) of the Staff Regulations according the meaning of Article 90 (1). to which the proceedings in the Even if one were to consider the principal action before the Court of correspondence of 26 November 1973 Justice shall be suspended until such and 13 February 1974 as not amounting time as an express or implied decision to a request within the meaning of rejecting the complaint is taken'. Since Article 90 (1), the complaint is still the time-limit for replying to the inadmissible. Under the provisions of complaint of 22 February 1974 expired Article 80 (2) of the Staff Regulations the on 23 June 1974, the admissibility of the complaint must be submitted against an

act adversely affecting him either where instance to fill the vacancies by the authority has taken a decision or promotion or transfer within the where it has failed to adopt a measure institution. An applicant who fulfilled all prescribed by the Staff Regulations. The the conditions for promotion to one of second hypothesis is the one adduced by the vacant posts had an interest in the the applicant. But if there had been no administration proceeding according to requests there could have been no the procedure laid down by Article complaint against a wrongful failure on 29 (1) (a) of the Staff Regulations.

This is why points out that it is clear from the letters the opening of the internal competition A/43 is illegal and ought to be annulled, of 26 November 1973 and 13 February along with the five appointments in 1974 and from the complaint of 22 question. In the alternative the applicant February 1974 that the applicant himself argues that the internal competition considered that the situation would only A/43 had taken place in an irregular be regularized after he had obtained a formal ad hoc decision from the

It is from which the indemnity is due, is for this reason that the applicant argues calculated. that the other side ought to produce all the documents in support of the list of 2. As regards the appointments suitable candidates for the vacant posts, including the list itself and if necessary, According to the applicant one ought in the last annual reports of the candidates the first place to examine the question of who were promoted. the intrinsic legality of the internal competition A/43 which replaced the The defendant wonders whether the Notice of Vacancy No 875. By this complaint which commences the Notice of Vacancy the appointing administrative stage of the action ought authority had promised in the first not already to set out in a summary

form the allegations of illegality on the discretionary power with which the which the action will be based. In this administration is endowed and which respect the defendant draws attention to concerns the possibilities available to it the fact that having found that the by the first stage of the procedure. complaint of 7 March 1974 did not The defendant declares itself prepared to indicate any grounds of illegality, it had produce the list of suitable candidates by its (administrative) decision of 14 agreed by the Selection Board in the March invited Mr Küster to detail his course of its functions, as well as the complaint more fully.

reports. It is emphasized that Mr Küster expressly declared. The applicant ought was not entered on the list of suitable therefore to have awaited the definitive candidates under Article 30 of the Staff decision of the appointing authority Regulations. Consequently the appoint before placing the matter before the ing authority could not have upheld Mr Court. Küster's candidature. The defendant states that it observed the The criticism of the criteria adopted by provisions of Article 29 of the Staff the Selection Board must be considered Regulations when in the first place it inadmissible. Under the provisions of conducted an examination of the Article 5 of Annex III of the Staff possibilities of promotion and transfer Regulations the Selection Board shall, under Article 29 (1) (a). Notice of whilst adhering to the requirements of Vacancy No 875 clearly indicated that the notice of competition, determine the President of the European Parliament how the candidates' qualifications are to envisaged filling the vacant post in the be assessed. In this task it enjoys a full first place by promotion or transfer. discretionary power. Besides, the criteria Only after it had become apparent that adopted and their assessment are in this first stage of the procedure could accordance with the notice of not produce satisfactory results did the competition and do not reveal authority proceed to the second stage irregularity of a kind that could tend to under Article 29 (1) (b) by publishing lay the legality of the procedure open to Notice of internal competition A/43 of question.

November 1973 and 20 December 1973. of his complaint. The applicant's letter Besides, no proof can be asked of the of 18 March, furnishing certain administration insofar as relates to supplementary details in support of his details of the examination which it must complaint, is equally clear in this undertake during the first stage of the respect. The defendant's theory that the procedure of Article 29 (1). The complaint already ought to contain in examination in question forms part of summary fashion the arguments upon

1. his long professional experience with Criterion No 1: Seniority of service in the Committee on Public Health and Category A or in Category LA on the Environment; whatever basis. Marking: 1 point per completed year with a maximum of 10 2. his merits in the service in question points. which were highly appreciated by his immediate superiors; This criterion is to the disadvantage of all officials, including the applicant, who 3. the excellent reports on him; have more than 10 years of seniority in 4. the fact that the Head of Category A. Administration of the European Criterion No 2: Seniority acquired in Parliament, the Director-General Mr the career bracket immediately below Pasetti-Bombardella, had suggested that corresponding to the posts to be him for promotion; filled, that is to say career bracket A 4/5 and LA 4/5. Marking: 1 point per 5. the fact that he had in fact occupied a completed year with a maximum of 10 post of Grade A3 for eight and a half months. points.

On a more general aspect, the opening Here the same remarks apply as in the case of Criterion No 1. of internal competition A/43 is also tainted by irregularities, in particular in Criterion No 3: Age. Marking: 1 point that it contravenes Article 45 of the Staff as from 30 years of age, 2 points as Regulations which provides that officials from 35 years of age up to 5 points in order to be eligible for promotion beyond 50 years of age. shall have completed a minimum period in their grade. On this point the Since this criterion has nothing to do applicant affirms that the other side with merit it is misplaced. Since the intended to take an option on certain average age of the candidates who candidates amongst the temporary entered for the competition is

approximately 35, this criterion might amounting to a preparation for posts favour a particular candidate. corresponding to those to be filled. Marking: 0 to 10 points. Criterion No 4: Appearing on a list of suitable candidates for a post in Grade The application of this criterion provides A 3 consequent upon a previous the best proof of misuse of powers. competition based on tests. Marking: According to the documents submitted 3 points. by the other side Mr Küster received no points on the basis of this criterion, Although this criterion is not convincing whilst he could lay claim to three years' — it might be used to give an advantage professional activity in different posts in to certain predetermined candidates — it German industry. Besides, this criterion does not lend itself to a priori criticism. of necessity distorts the results of the Criterion No 5: University diplomas competition because by virtue of its and certificates. Marking: 0 to 10 application candidates who entered the points. service of the Community institutions either immediately after their studies, or The applicant, who is a holder of a a short time subsequently, would university diploma, wonders why the necessarily be at a disadvantage when Selection Board awarded him only 4 compared with those who recently came points. The applicant considers that he to the institutions. The applicant was discriminated against in the light of wonders on what basis the Selection the criteria adopted in Notice of Board could judge these previous Vacancy A/43. Besides, one wonders activities. He concludesthis that why the Selection Board ignored criterion had been made to measure with equivalent professional experience. a view to eliminating those candidates Criterion No 6: Studies more having a long professional experience with the institutions. specifically connected with the specific requirement of the posts to be filled. Criterion No 9: Ability to direct a Marking: 0 to 10 points. high-level team. Marking: 0 to 10 On this point one wonders what points. particular studies can be meant here. The applicant, who obtained 4 points, Since the competition involved 5 states that this mark contradicts his different posts, a fair application on report. comparable bases is impossible. Criterion No 10: Ability at Criterion No 7: General reports and organization and methods. Marking: professional assessments within the 0 to 10 points. Community institutions. Marking: 0 to 10 points Here the same observations apply as in the case of the previous criterion. The applicant notwithstanding his excellent reports only obtained 7.5 Criterion No 11: Verification of points whilst two candidates in respect linguistic ability. Marking: 0 to 10 of whom no report existed were given 7 points. points 'for reasons of equity'. On the other hand, two other candidates who Criterion No 12: Verification of a very had no report had received no points. thorough knowledge of the structure Such examinations cannot be taken and functioning of the European seriously. Communities and of the institutions, in particular of Parliament, as well as Criterion No 8: Prior experience or of the Treaties and of Community activities of an analogous kind or legislation. Marking: 0 to 10 points.

The applicant arrives at the conclusion As regards the detailed discussion which that he could have received at least the applicant undertook in his reply of between 12 and 15 points more and on the factors of assessment which appear the basis of these he would very in the Selection Board's report, the probably have been promoted. It is defendant points out that the Court regrettable that the Selection Board did cannot be called upon either to repeat not take into consideration the most the Selection Board's work or to logical criterion in the matter: substitute its own assessment for that of professional experience acquired in the the Selection Board. The Court's power post to be filled. One is forced to amounts to no more than verification of conclude that the selection of the the legality of the competition candidates constitutes a misuse of procedure. It is denied that the Selection powers rendering void all the Selection Board, in its competition based on Board's activities. qualifications, conducted oral tests. It interviewed the candidates with a view Finally, the applicant affirms that the to verifying the qualifications put Selection Board was not appointed by forward by the candidates. Such the appointing authority. Under Article verification is perfectly permissible and is 30 of the Staff Regulations the Selection not sufficient to characterize the Board shall be appointed by the competition as a competition based on appointing authority. It follows from the tests. decision of 12 December 1962 of the Bureau of Parliament that in relation to The appointment of the Selection Board officials in Category A the powers under by the Secretary-General of Parliament is Article 30 of the Staff Regulations are correct since it follows from the decision reserved to the President of Parliament. relating to the determination of According to its report the Selection appointing authorities taken by the Board had been appointed by the Bureau of the European Parliament in Secretary-General of Parliament, i.e. in the course of its meeting of 7/8 October violation of the decision of 12 December 1971.

2 The defendant alleges that the action is, as regards the two first heads of claim, inadmissible on the ground that it has not been the subject-matter of the prior complaint requird by Article 90 and 91 of the Staff Regulations.

3 By letter of 26 November 1973 the applicant made a request to the appointing authority with a view to obtaining the temporary posting as head of division, Secretary of a Committee of the European Parliament.

4 This application was rejected by decision of 4 March 1974, which also meant, in an implied but certain fashion, a refusal to grant him the differential allowance under Article 7 (2) of the Staff Regulations.

5 As a result of this refusal the applicant brought the present action, to which there was joined an application for interim measures with a view to obtaining a suspension of any steps to fill the abovementioned vacant post.

KÜSTER v PARLIAMENT

6 Whilst the applicant did not, prior to the action, make a fresh complaint, he had on 22 february 1974 supplemented his previous request by a complaint against the failure to take steps to grant him a temporary posting as secretary.

13 Accordingly the action is admissible.

JUDGMENT OF 12. 3. 1975 — CASE 23/74

On the temporary posting

14 The applicant argues that the grant of a temporary posting within the meaning of Article 7 (2) of the Staff Regulations occurs automatically in a case where an official, consequent on the departure of his superior who is promoted to another post, is instructed to replace him de facto.

15 Under the provisions of Article 7 (2) an official 'may be called upon to occupy temporarily a post in a career bracket in his category which is higher than his substantive career bracket'.

16 The application of this provision requires an express decision on the part of the appointing authority, since it involves in relation to the official an entitlement to specific benefits from the administration.

formalities provided for under Article 29 (1) (a) of the Staff Regulations had been carried out.

21 It is claimed that under this article the appointing authority can only proceed to organize a competition internal to the institution, such as is referred to under (b) of the paragraph in question, if it seems impossible to fill the post by promotion or transfer within the institution.

22 From his bi-annual reports it appears that the applicant is capable of filling the vacant post, and since he had submitted his candidature in respect thereof, such proof could not be adduced, so that the decision to organize an internal competition is illegal.

23 This argument cannot be accepted.

24 In fact, the presence of several persons having the qualifications for promotion or transfer within the institution may lead the appointing authority to conclude that the interests of the service and the impartiality of recruitment render an internal competition desirable.

25 The applicant's argument amounts to granting the deputy of an official whose post has become vacant the right to succeed him as soon as it appears from his personal file that he has the necessary qualifications to fill that post.

31 On the contrary, it must be stated that in the present case the criteria which the Selection Board adopted for the competition appear to have been chosen in a spirit of impartiality and to have been inspired by a desire as far as possible to take account of the different factors which in the present case ought to be taken into consideration.

32 In any case it does not appear that by reason of the choice of criteria the applicant was arbitrarily placed at a disadvantage so that the adoption of these criteria amounted in his case to a misuse of powers or a violation of his rights under the Staff Regulations.

33 As regards the attribution of points under different criteria, the applicant rightly criticizes the decision of the Selection Board concerned with this competition to grant under the heading 'General reports and professional assessments within the Community institutions', 7 out of 10 points to two candidates in respect of whom no periodic reports existed.

34 This refers to two candidates who had for several years been temporary officials of the secretariats of political groups, who by reason of the fact that they were temporary servants had not been the subject of periodic reports.

35 Whilst there is nothing to prevent the admission of temporary staff to internal competitions it is not correct to attribute to them fictitious marks when by reason of their legal position they do not comply with the criteria applied.

KÜSTER v PARLIAMENT

THE COURT (First Chamber)

hereby:

1. Dismisses the action

2. Orders each party to bear its own costs.

Mertens de Wilmars Donner O'Keeffe

Delivered in open court in Luxembourg on 12 March 1975.