C-77/74
ECLI:EU:C:1975:105
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JUDGMENT OF THE COURT (FIRST CHAMBER) OF 10 JULY 1975 <apnote>1</apnote>
Berthold Küster
ν European Parliament
Case 77/74
Summary
Officiate — Periodical report — Replacement by the judgment of a selection board — Inadmissibility (Staff Regulations, Article 43)
The judgment of a selection board cannot take the place of the periodical report.
In Case 77/74
BERTHOLD KÜSTER, an official of the European Parliament, residing at Bertrange (Luxembourg), represented by Victor Biel, Advocate of the Cour Supérieure de Justice of the Grand-Duchy of Luxembourg, with an address for service in Luxembourg at the Chambers of his counsel, 18a rue des Glacis,
applicant,
v
EUROPEAN PARLIAMENT, Luxembourg, represented by its Secretary-General, Hans Robert Nord, as Agent, assisted by Alex Bonn, Advocate of the Luxembourg Bar, with an address for service at the Chambers of its counsel, 22 Côte d'Eich,
defendant,
Application for the annulment of internal competition A/45 and of the appointment made thereunder.
1 — Language of the Case: French.
JUDGMENT OF 10. 7. 1975 — CASE 77/74
THE COURT (First Chamber)
composed of: J.Mertens de Wilmars, President of Chamber, R.Monaco (Rapporteur) and A. O'Keeffe, Judges,
Advocate-General: G. Reischl
Registrar: A. Van Houtte
gives the following
JUDGMENT
Facts
The facts and the arguments developed Article 90 (2) of the Staff Regulations. by the parties in the course of the written Since no reply on the part of the procedure may be summarized as appointing authority was received in follows: relation to this complaint the applicant lodged the present application on 16 I — Facts and written procedure October 1974.
1. By Notice of Vacancy No 892 of 28 2. On hearing the report of the September 1973 a post of Head of Judge-Rapporteur and the views of the Division in the Directorate-General Advocate-General, the Court (First 'Research and Documentation' was Chamber) decided to hear Mr Hans declared vacant as at 1 January 1974. The Joachim Opitz, Director-General at the wording of the notice stated that the post European Parliament, as a witness in his in question was in the first instance to be capacity as chairman of the Selection filled by way of 'promotion' or 'transfer Board in internal competition A/45 on within the institution'. two questions relating to the marks awarded by this Selection Board under criteria 7 and 12. On 3 October 1973 the applicant submitted his candidature on the basis of this form of recruitment. II — Conclusions of the parties By notice of 23 november 1973 the internal competition A/45 was opened in The applicant claims that the Court order to fill the said post. By decision of should:
14 February 1974 the appointing '(1) Before proceeding further, order the authority appointed Mr Gérard Kieffer to Parliament to produce all papers, the post. documents and minutes relating to competition A/45 in order to allow a By letter of 17 March 1974 the applicant complete and factual examination of submitted a complaint against this the Selection Board's proposals to appointment within the meaning of take place.
KÜSTER v PARLIAMENT
(2) Record that the applicant reserves the Secretariat of the political groups and right in due course to present all therefore was not entitled to be other submissions in support of his promoted .1
application and to submit such offer — been allotted Step 6 on the occasion of proof as may be appropriate. of his first classification as an official (3) Rule that the present appeal is admissible in its form and presented submits in particular the following: within the appropriate time-limit. (4) Accordingly, rule that the implied (1) Under the provisions of Article 29 rejection of the applicant's complaint of the Staff Regulations the appointing to the President of the European authority is obliged, before opening an Parliament of 17 March 1974. is null internal competition, to state its inability and void. to fill the vacant post by way of (5) Rule that the promotion which took promotion or transfer within the place on the basis of competition institution. Yet the notice of competition A/45 is irregular and illegal and merely states that the appointing accordingly annul the same. authority had decided to fill the post by (6) Order the Parliament to pay all the way of competition and makes not the costs and expenses of the slightest reference to the grounds on proceedings.' which no promotion is possible in the present case. In these circumstances the The defendant claims that the Court opening of the competition in question should: is irregular: the competition was organized with a view to appointing a 'Record that the defendant does not specific candidate, .even if he were the dispute the admissibility of the last in the list of suitable candidates, and proceedings. therefore involves a misuse of powers.
Record that it produced in the (2) The Selection Board in the present proceedings the reasoned report of the case was appointed by the Selection Board in competition A/45 and Secretary-General when in fact, under the the list of suitable candidates prepared by provisions which were notified to the the Selection Board, excluding the marks staff in 1962, only the president of obtained by candidates other than Mr Parliament can appoint selection boards Küster. in respect of competitions in Category A. As regards the decision of the Bureau of Reject the applicant's request for the Parliament of 7 and 8 October 1971 production of further documents. which, in respect of grades other than Al and A 2, delegates this competence to Rule that the application is unfounded the Seretary-General, it was never and reject it. brought to the notice of the staff and cannot for that reason be used against it. Make an order for costs in accordance with the relevant provisions.' (3) Contrary to the terms of the notice of competition, according to which the competition would be on the basis of III — Submissions and argu 'qualifications'; the Selection Board in ments of the parties fact held oral 'tests' which were the subject of marks. This amounted to an The applicant, after having pointed out arbitrary alteration of the structure of the that the appointed candidate had competition set out in the — at the time of his appointment been aforementioned notice, which rendered a 'temporary servant' with the the competition procedure null and void.
JUDGMENT OF 10. 7. 1975 - CASE 77/74
(4) The applicant points to the absence, that the first stage of recruitment had amongst the criteria for selection adopted produced no convincing result; by the Selection Board, of that of — the decision of the Bureau of experience acquired in the post to be Parliament which delegated to the filled (as regards these criteria. cf. Annex Secretary-General the power of 2 to the statement of defence). He finds appointing the selection board in moreover that the Selection Board had competitions of Category A for committed several irregularities in grades other than A/1 and A/2, falls
marking. It appears in particular, that in within the legal exercise of an the course of the selection procedure, internal power of delegation. As such, which was done simultaneously by the this decision is not subject to a same Selection Board in respect of the requirement of publication. In any two competitions A/43 and A/45, Mr event, even if such information were Gérard Kieffer had in respect of the same to be necessary or useful the failure to criterion (No 12) obtained three more provide it does not affect the validity points in Competition A/45 than in of the delegation itself; Competition A/43, whilst the applicant — the 'interviews' to which applicants had obtained three more points in were called in the present case do not Competition A/43 than in Competition amount to oral 'tests': they had no
A/45. Moreover, it seems inexplicable purpose other than to allow the how a candidate who at the time of the Selection Board to verify by direct competitions was a 'temporary servant' contact the professional training and could have obtained five points under the personality of each candidate. Criterion No 2, in respect of seniority acquired in the career next below that Finally, as regards the criticisms raised corresponding to the post to be filled, against the alleged irregularities and seven points under Criterion No 7 committed by the Selection Board, the (general reports .
. .), when he had never defendant produces the reasoned report in fact been the subject of a periodical of the Selection Board, but states that it report. In support of these allegations the is not inclined in the present case to applicant requires the production of divulge the marks obtained by the every paper, document and minute various candidates other than the relating to Competition A/45, including applicant. It further points out: the personal file of Mr Gérard Kieffer. — since the criterion of 'general reports' is considered indispensable in the The applicant concludes that also in the light of the provisions of the Staff course of reviewing legality, the Court is Regulations, but cannot on the other competent to investigate facts amounting hand apply to temporary servants, the to irregularity vitiating the activities of a solution adopted by the Selection selection board. To accept a contrary Board has the sole purpose of view would be equivalent to rendering ensuring that the same treatment is the fundamental principle of legal given to all officials; protection of officials devoid of any — since the posts to be filled in practical meaning.
Competitions A/43 and A/45 were different, it is not surprising that the The defendant replies by, in particular, same candidate obtained different emphasizing: points in relation to the same — the procedure under Article 29 of the criterion of selection; Staff Regulations was rigorously — the attribution to a temporary respected in the present case, since servant' of points for seniority the appointing authority organized acquired in thebracketcareer the competition after having found immediately below the post to be
KÜSTER ν PARLIAMENT
filled is explained by the necessity of necessary' in the case of decisions that are ensuring uniform objective criteria of of interest to staff in general. Besides, the selection and assessment in respect of need for such publication follows even all candidates admitted to the from the procedure under Article 90 of competition, including temporary the Staff Regulations, as to the method of servants. Besides, activity with submitting a complaint. political groups within the General Secretariat does indeed constitute a career within the institution itself. The applicant finally continues to contest the regularity of the criteria for The defendant concludes that whilst the marking which were applied by the
Selection Board. He criticizes inter alia: Court may and indeed must verify the — the criterion of seniority which, above legality of criteria laid down and applied a specific number of years, grants the by a selection board, it nevertheless same points to officials of different cannot take the selection board's place seniority: by reshaping its assessments as to the — the criterion which takes, into qualifications of the various candidates. account the activity exercised before entry into service with the institution, In his reply, the applicant develops his since this criterion cannot benefit thesis that Article 29 (1) (a) of the Staff those who joined the Community Regulations prohibits the appointing immediately after concluding their authority from opening an internal
university education. competition as long as it is possible to fill a vacant post by way of promotion (or of transfer within the institution). This is In its rejoinder the defendant refers to precisely the case here, since in the the Court's Judgment of 12 March 1975 reports made on him the applicant has in Case 23/74 Küster v European been considered suitable for promotion. Parliament and takes the view that the To proceed without explanation to the principles set out in that Judgment allow opening of an internal competition on several of the submissions raised in the the pretext of wishing to find a wider present case to be refuted.
This is basis of selection, means reducing the particularly the case with: situation of 'promotable' officials to that — the submission that Article 29 (1) (a) of officials who can only fill the vacant of the Staff Regulations was infringed post by way of competition, and thus in that the appointing authority prejudicing the rights of the former in ought, before proceeding to an their career prospects. internal competition, to have exhausted the possibilities of The applicant then points out that the promotion or of transfer within the decision of the Bureau of Parliament of 7 institution which existed in the and 8 October referred to by the present case; defendant, cannot be analysed simply as — the submission based on the allegedly an 'internal act of division of irregular nature of the appointment competence' but constitutes an 'act of the selection board due to the designating the appointing authority'. non-publication of the decision of Respect for the principle of legal the Bureau of Parliament enabling certainty requires that such an act be the Secretary-General to make the brought to the knowledge of the criticized appointment; interested parties, all the more so since — tne submission based on the tact that
Article 25 of the Staff Regulations, by the competition in question which providing that specific decisions must be was a competition based on published, implies that notification by qualifications, had, through the way of publication is even more expedient of interviews with the
JUDGMENT OF 10. 7. 1975 — CASE 77/74
candidates, involved oral tests. The assessment of the criteria of marking Court has in fact rejected the thesis adopted by the Selection Board. that the competition based on qualifications cannot involve such interviews without turning into one IV — Oral procedure based on tests; — the submission of misuse of powers. The oral observations of the parties were made at the hearing of 28 May 1975. Alter having refuted certain complaints, based on the manner in which the In the course of this hearing, the Court Selection Board had allocated its marks heard as a witness Mr Hans Joachim to the applicant in the competition in Opitz, Director-General with the question, as well as in Competition A/43, European Parliament, the chairman of the defendant objects to the allegation of the Selection Board in relation to the 'manipulation' made by the applicant competition in question. against the Selection Board. Finally, it insists on the limits on the Court's power The Advocate-General delivered his of review, particularly as regards the opinion on 19 June 1975.
Law
1 By action brought on 16 October 1974 under Article 91 of the Staff Regulations, the applicant asks the Court to annul the implied rejection by the European Parliament of his complaint of 17 March 1974 and consequently to annul the appointment of Mr Gérard Kieffer which took place on 14 February 1974 as a result of Competition A/45.
2 In support of his conclusions he submits inter alia that the criticized appointment is irregular since the Selection Board in relation to the competition had, under the heading 'General reports and professional assessments within the Community institutions' attributed points to the appointed candidate, for whom no periodic report in fact existed.
3 It is not denied that the appointed candidate was at the time of his appointment a temporary servant and that he had not, by reason of this fact, been the subject of a report.
4 Nevertheless it is shown by the details which were furnished by the chairman of the Selection Board in the course of the oral procedure that the Selection Board had, on the basis of the aforementioned criterion of selection, accorded this candidate seven points out of ten.
KÜSTER ν PARLIAMENT
5 Whilst there is nothing to prevent the admission of temporary servants 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 one of the criteria of selection applied.
6 Besides, whilst it is true that the heading under which the marks in question were granted is not only that of 'general reports' but also that of 'professional assessments within the Community institutions', it nonetheless remains a fact that the conditions which the Staff Regulations place upon the preparation of the periodic report exclude the possibility of this being replaced by the judgment made by a selection board.
7 Moreover, it is shown by the information supplied at the hearing that the number of points attributed under this heading expresses an arithmetic value and at the same time a global assessment of the individual qualities of the candidate, very different from that which forms the basis of the periodic report.
8 In these circumstances this marking must be considered irregular from the point of view of the Staff Regulations and of such a kind as to involve the annulment of the appointment.
9 As is shown by the Selection Board's report annexed to the statement of defence, the appointed candidate could not, in the absence of the marking in question, have achieved the number of points treated as the minimum for inclusion in the list of suitable candidates.
to Thus the irregularity referred to, which, affects the validity of the appointment in question, causes prejudice to the applicant.
11 There being no need to examine the other claims in the action, the appointment of Mr Gérard Kieffer resulting form Competition A/45 must therefore be annulled.
JUDGMENT OF 10. 7. 1975 — CASE 77/74
Costs
12 By Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs.
13 The defendant has failed in its plea.
14 The defendant must therefore be ordered to pay the costs of the proceedings.
On those grounds,
THE COURT (First Chamber)
hereby
1. Annuls the appointment of Mr Gérard Kieffer resulting from Competition A/45;
2. Orders the defendant to pay the costs.
Mertens de Wilmars Monaco O'Keeffe
Delivered in open court in Luxembourg on 10 July 1975.
A. Van Houtte J. Mertens de Wilmars
Registrar President of the First Chamber