C-29/74
ECLI:EU:C:1975:7
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JUDGMENT OF THE COURT (FIRST CHAMBER) 23 JANUARY 1975 1
Mr Raphael de Dapper v European Parliament
Case 29/74
Summary
Officials — Promotion — Candidates — Consideration of merits — Infringement (Staff Regulations, Article 45)
Consideration of the merits of yet been done fails to meet the candidates whose periodic reports had requirements of Article 45 with regard to already been drawn up under Article 43 consideration of the comparative merits and of others in whose case this had not of officials.
In Case 29/74
RAPHAEL DE DAPPER, a translator with the Dutch Language Division of the Translation Service of the European Parliament, residing at 137, rue des Pommiers, Luxembourg, represented by. and with an address for service in Luxembourg at the chambers of, V. Biel, advocate of the Cour Superieure of the Grand Duchy of Luxembourg, 71 rue des Glacis,
applicant,
v
EUROPEAN PARLIAMENT, represented by its Secretary-General, H. R. Nord, acting as Agent, assisted by and with an address for service in Luxembourg at the chambers of, A. Bonn, advocate of the Luxembourg Bar, 22 Côte d'Eich,
defendant,
Application for the annulment of the appointment by way of promotion of three translators of the Dutch Language Division to the post of reviser,
1 — Language of the Case: French.
JUDGMENT OF 23. 1. 1975 — CASE 29/74
THE COURT (First Chamber)
composed of: J. Mertens de Wilmars, President of Chamber (Rapporteur), A. M. Donner and R. Monaco, Judges,
Advocate-General: J.-P. Warner Registrar: A. Van Houtte
gives the following
JUDGMENT
Facts
The facts and the arguments of the Personnel and Finance, informing him parties put forward in the course of the that 'these applications had been the written procedure may be summarized as subject of a very careful examination, in follows: which not only Miss Roos (the Director of the Translation Service) and Mr Van Mulders (head of the Dutch Language Division but also the revisers of that I — Facts and procedure Division had participated and that it emerged that from a mere perusal of his On 20 December 1972 by Vacancy personal file none of them possessed such Notice No 707 the personnel of the obvious qualifications that he could European Parliament was notified that without hesitation be recommended for there were three vacancies for the post of promotion'. It was further suggested that reviser in the Dutch Language Division, an internal competition be held on the in the career bracket L/A 5-4, to be basis of tests, 'leaving it to a selection filled under the provisions of Article 29 board to decide between the candidates'. (1) (a) of the Staff Regulations, in the Since the appointing authority was first instance by way of promotion or opposed to such a procedure, the transfer. relevant director then proceeded to an Ten applications, including that of the 'examination of the comparative merits applicant, were received and the of the candidates for promotion'. In the Director-General for Administration, light of the result of this examination, Personnel and Finance forwarded these which was reached unanimously by the to the relevant director of the head of the Dutch Language Division as Directorate-General for Sessional and well as the three senior revisers, he General Services with a note to the effect proposed on 9 May 1973 that 'taking that none of these candidatures could be into account seniority in grade and considered for transfer. seniority in the service, as well as the On 25 January 1973 the relevant reports, Messrs Schilperoort, van Ray director returned them to the and Ras should be promoted'. Director-General for Administration, By decision dated 21 May 1973 the
DE DAPPER v PARLIAMENT
appointing authority promoted these applicant offers to prove by all three officials. means available at law and more The applicant submitted against this particularly by inquiry that the decision a complaint within the meaning personal files or at least his personal of Article 90 (2) of the Staff Regulations file, were not submitted to the and dated 5 November 1973. President of the Parliament for the purpose of examination as to the The President of the European comparative merits; Parliament rejected this complaint on the ground that the applicant was not — in that case to reserve the costs; entitled to rely upon 'the fact that the appointing authority had for a certain — and, should the Court be able to time envisaged a change for the purpose come to an immediate decision, order the defendant to bear the costs. of selecting candidates from the procedure under Article 29 (1) (a) to that The applicant did not in his reply repeat under Article 29 (1) (b), but had not the above mentioned offer of proof. carried this proposal into effect'. The applicant filed his appeal on 8 May The defendant contends that the Court 1974. should:
The written procedure followed the — take note that it does not intend to normal course except that the defendant contest the admissibility of the did not file a rejoinder. application; Upon hearing the report of the — as regards the substance of the case, Judge-Rapporteur and the views of the reject the different submissions as Advocate-General the Court (First inadmissible, or alternatively as Chamber) decided to open the oral unfounded; procedure without making any preparatory inquiry. — reject the offer of proof as here and now contradicted or superfluous;
— consequently dismiss the application; II — Conclusions of the — make an appropriate order as to parties costs.
The applicant claims that the Court should:
— rule that the application is admissible III — Submissions and argu as regards its form and that it was ments of the parties lodged in good time; — rule that it is well founded and (a) The submission that the appoint justified as to its substance; ments in question do not constitute — accordingly annul the three promotions but mere transfers 'promotions' decided upon by the The applicant argues that under the appointing authority on 21 May provisions of Article 45 of the Staff 1973 consequent upon Vacancy Regulations promotion 'shall be effected Notice No 707; by appointment of the official to the — alternatively, should the European next higher grade in the category or Parliament state that the appointing service to which he belongs'. However, authority was in possession of the in the present case the officials remained candidates' personal files when it in their existing grade and step. The made its selection, take note that the appointments in question could and
JUDGMENT OF 23. 1. 1975 — CASE 29/74
should therefore have been made by way (b) The submission regarding the of simple transfer. (alleged) infringement by the appointing authority of Article 45 of The defendant replies that according to the Staff Regulations the table of basic posts and corresponding career brackets, the The applicant submits that the position of translator appears under appointing authority ought, in conformi Grades L/A 6-5, whilst that of reviser ty with Article 45, to have made its appears under Grades L/A 5-4. To choice, on the basis of the personal files, progress from the post as a translator in by carrying out itself the examination of Grade L/A 5 to that of a reviser in comparative merits, whereas in actual Grade L/A 5 was in the present case fact all it did was to agree to the rightly treated as a promotion within the proposals submitted to it and to adopt meaning of Article 45 of the Staff them. Consideration of merits cannot be Regulations, although this provision replaced by a simple calculation based does not expressly govern the case of on seniority in service and grade but such a promotion. That this is so is must of necessity be concerned with explained by the fact that Article 5 and factors such as ability, efficiency and Annex I were only incorporated in the conduct in the service.
. . However, the Staff Regulations at the last moment, persons who were concerned with the when Article 45 had already been selection had three months before drafted, and without modifying that expressly declared that from a mere article. Nevertheless the duties of perusal of his personal file none of the translators and of revisers are quite candidates possessed such obvious different and besides, a reviser appointed qualifications that one could without to Grade L/A 5 has the possibility of hesitation recommend him for promo advancing to Grade L/A 4 which is not tion. the case with a translator in Grade L/A
5. The defendant replies that the consideration of the comparative merits The applicant replies that neither the under Article 45 was undertaken by the Council nor the Commission has ever administration on two occasions, the found that in the case of the language first before the note from the competent service there can be promotions without director of 25 January 1973 was drafted at the same time a change in grade, as and the second before that of the same expressly provided by Article 45 (1). The director of 9 May 1973 was drafted.
Not Court has had occasion to deal with the only seniority therefore was taken into same problem in Rittweger v consideration in connexion with the Commission (Rec. 1971, p. 7) and Ley v proposal for promotion, as is abundantly Commission [1965] ECR 107) where it proved by the fact that the applications was said that promotion in the language of those candidates whose seniority had service follows the compulsory rules of been greater than that of the three Article 45. officials who had been promoted, did
not succeed. Moreover the conclusion that a translator in Grade L/A 5 cannot be Moreover, although the competent promoted to Grade L/A 4 without director had returned the applications, becoming a reviser is not acceptable. with his note of 25 January 1973, to the Finally, the importance of this question Director-General for Administration this for an official who has not been does not mean that for the purposes of promoted and whose candidature has the subsequent examination of the not been accepted does mean that it procedure for filling the posts, the constitutes an act adversely affecting him personal files were not examined by the within the meaning of Article 90 (2). administration.
DE DAPPER v PARLIAMENT
The applicant replies that a (d) The submission alleging misuse of 'consideration of comparative merits' on powers, or alternatively of pro two occasions by the same selection cedure board could only have resulted in The applicant claims that by the excercise opposite conclusions if meanwhile there of pressure on an 'ad hoc selection had been a new fact or a new periodic board', the appointing authority, by report, which was not the case. refusing to organize a competition and in It is not the administration but the enjoining the said board to find who appointing authority, that is to say, the could be promoted, it was guilty of President of the Parliament himself, who misuse of powers or alternatively of pro
cedure. as regards Categories A or L/A ought to have available to him the candidates' The defendant replies that although at personal files. a certain date the administration considered that there was no possibility (c) The submission that, for the of promotion or transfer and envisaged purposes of the consideration of the the possibility of setting up an internal comparative merits of the candidates, competition, this is a matter for the the personal files did not contain the appointing authority to decide and it is last periodic report for that authority to arrive at a conclusion as to whether there are The applicant points out that the process possibilities of promotion.
The of examining the merits was not appointing authority is indeed obliged, properly carried out, since the last where a post is to be filled, to go annual report which ought to have through the stage laid down in Article 29 appeared on the file long ago was not (1) (a) of the Staff Regulation before there. going on to the subsequent stages, but there is no ground for complaining that The defendant replies that although it is it did not carry on to a later stage if true that the periodic reports for the sooner or later it found that it was period 1971/1972 were lacking, this is to possible to proceed on the basis of the be explained by the fact that the year first stages. 1973 had seen the enlargement of the Whilst the argument might have some staff by nationals of the new Member justification there is still the problem of States and that the administration found its admissibility as regards the applicant it impossible in practice to prepare the who was eligible for promotion and in reports within the time limits which had whose interest it lay that the possibilities previously been possible to observe. for promotion should be exhausted
Nevertheless, all the candidates were before a competition was arranged. The treated in the same manner. In any applicant therefore had no cause for event, Article 45 does not require the raising this submission which could only periodic reports to cover a particular work to his detriment. period. The applicant replies that, whilst the The applicant replies that the excuse appointing authority admittedly had a based on the enlargement of the discretionary power as regards the Communities is not admissible for the choice of means for filling a vacancy this purpose of explaining the absence of the does not mean that it could order last periodic report in the candidates' subordinates to suggest candidates
personal files. The very purpose of the eligible for promotion when these very periodic report is to chart the progress of subordinates had previously let it be officials and this is why Article. 43 known that they were unable to find provides for a 'periodical report made at such candidates without proceeding by least once every two years'. way of a competition.
JUDGMENT OF 23. 1. 1975 — CASE 29/74
Although the applicant had no interest obtained by him in the internal in raising a submission that could only competition that was originally work to his detriment, this tends to proposed. prove that the institution had decided not to give him any chance, whatever The Advocate-General delivered his might have been the level of results opinion on 10 December 1974.
Law
1 The application lodged at the Registry of the Court of Justice on 8 May 1974 seeks the annulment of the decision by the European Parliament of 21 May 1975 appointing by way of promotion three translators of the Dutch division to posts of reviser, these having been the subject of Vacancy Notice No 707.
2 The applicant considers in the first place that in maintaining the promoted officials in Grade L/A 5 of career bracket L/A 5-4 when previously they had the same grade in career bracket L/A 6-5, the contested decision infringed Article 45 (1) of the Staff Regulations according to which promotion 'shall be effected by appointment of the official to the next higher grade in the category or service to which he belongs'.
3 The appointments in question, according to the applicant, should have been made by way of transfer.
4 Such a submission can only be relied upon by those adversely affected by the illegality of the decision, assuming that this were proved, in the present case only the officials promoted.
5 The submission must be rejected.
6 In the applicant's view Article 45 of the Staff Regulations has also been infringed in that the defendant did not consider the comparative merits of each candidate 'on an equal basis and in the light of comparable information and data', since only the seniority of grade and of service was considered.
7 It is apparent from the note which on 9 May 1973 the competent Director addressed to the Director-General for Administration, Personnel and Finance,
DE DAPPER v PARLIAMENT
that the various applications had been the subject of a careful consideration of the comparative merits of the various candidates and that in taking into account 'also' seniority in grade and service, the appointment of the three successful candidates was proposed.
8 The submission is unfounded in fact and must be rejected.
9 The applicant further argues that the file prepared with a view to a consideration of the comparative merits of the candidates did not in his case contain the periodic report for the years 1971 and 1972.
10 In so far as the first comparative examination undertaken in January 1973 is concerned, the defendant does not dispute this fact which, according to it, was due to difficulties arising from the recruitment of additional staff, which became necessary by reason of the accession of the new Member States.
11 It points out that the periodic report files of the other candidates had been subject to the same delay so that in relation to each other the individual candidates were not adversely affected.
12 The defendant nevertheless pointed out that at the time of the final comparative consideration which took place during the months of April and May 1973 'all the reports had been either placed in the personal files or drawn up in such a way that the appointing authority was able to take cognizance of them in its comparative consideration'.
13 Nevertheless it is established that the periodic report relating to the applicant was only drawn up on 21 December 1973 and accordingly it could not have been known to the authority in question.
14 In any event even if it had existed in draft form at that time, it could not have been taken into consideration unless it had previously been communicated, in accordance with Article 43 of the Staff Regulations, to the applicant so as to allow him to make any comments thereon which he considered relevant.
15 Consideration of the merits of candidates whose periodic reports had already been drawn up under Article 43 and of others in whose case this had not yet
JUDGMENT OF 23. 1. 1975 — CASE 29/74
been done fails to meet the requirements of Article 45 with regard to consideration of the comparative merits of officials.
16 Thus the contested decision infringes Article 45 and must be annulled.
Costs
17 Under Article 69 (2) of the Rules of Procedure, the unsuccessful party must bear the costs.
18 The defendant has failed in its submissions and must accordingly be ordered to pay the costs.
On those grounds
THE COURT (First Chamber)
hereby:
1. Annuls the decision of the European Parliament of 21 May 1973 appointing three translators of the Dutch Language Division to posts of reviser;
2. Orders the European Parliament to pay the costs.
Mertens de Wilmars Donner Monaco
Delivered in open court in Luxembourg on 23 January 1975.
A. Van Houtte J. Mertens de Wilmars Registrar President of the First Chamber