C-123/75

composed of: A.M. Donner, President of Chamber, A. O'Keeffe and G. Bosco, Judges,

Advocate-General: G. Reischl

Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts

'thorough' knowledge of Danish was Since this complaint was unsuccessful desirable. the applicant brought the present action on 16 December 1975. By letter dated 1 April 1974 the applicant sent the President of the 2. After hearing the report of the Parliament a complaint with regard to Judge-Rapporteur and the views of the this notice. He asked in particular that Advocate-General the First Chamber of the notice be published in all the the Court decided to call upon the languages of the Community and that at European Parliament to lodge before 15 least it should be referred to on the August 1976 the staff report of the notice board of the German-speaking Selection Board in internal competition officials. A/51, including the annexed marks and On 2 April 1974 the applicant applied the notice of internal competition A/51. for the vacancy. Since the recruitment These documents were lodged by the procedure referred to in the notice was Parliament on 13 July 1976. not successful, the Parliament, to fill the post in question, organized on 18 By order dated 22 September 1976 the First Chamber of the Court decided to November 1974 internal competition A/51, the notice for which stated inter hear as a witness at the public hearing the Chairman of the Selection Board for alia — 'for practical purposes a knowledge of internal competition A/51 and Danish is desirable'; formulated the questions on which he would be heard. — the competition was based 'on qualifications and tests'; — the tests would consist of two interviews, one of which would cover II — Conclusions of the parties one or more subjects within the ambit of the 'nature of the work' The applicant claims that the Court should: (lasting 15 minutes) and the other on any knowledge of the official '— rule that the present application is admissible as to form and that it has languages of the European Communities (lasting ten minutes); been made within the prescribed — The marking relating to the period; qualifications and two oral tests — Before any further steps are taken in would be respectively from 0 to 40, the proceedings, from 0 to 30 and from 0 to 10; order the defendant to lodge with — However, with regard to the marking the Court Registry the minutes of the Selection Board and the two files (0 to 10) relating to the second test on Gallo and Küster; (knowledge of languages) only that — if not, then as from now, part of the mark above 5 would be rule that the decision of the taken into account. President of the European On 25 November 1974 the applicant Parliament dated 29 April 1975 applied for this post. On the conclusion appointing Giuseppe Gallo head of of the competition the President of the division is vitiated on the grounds of Parliament by decision dated 29 April misuse of powers and illegality; 1975 appointed Guiseppe Gallo to the — in consequence rule that this decision is null and void and post. therefore annul it; By letter dated 18 June 1975 the — order the European Parliament to applicant made a complaint against this bear the costs of the action, all other decision under the second paragraph of rights, entitlements and actions Article 90 of the Staff Regulations. being reserved.'

accordance with the applicable applied in the previous competitions provisions; remained valid, as logically they should, — take note that the defendant reserves and, if necessary, whether they have been its rights'. correctly applied. With regard, for example, to the criterion 'ability to lead a high-level team', applied in previous III — Submissions and argu­ competitions, it appeared from the file of ments of the parties Case 23/74 that the Selection Board had not been informed of the temporary The applicant contests the lawfulness of appointment held by the applicant as the decision in question on the ground: head of division. It appears from this — that the appointing authority did not same file that there had been conferred take account of his eligibility for on the applicant at the time only a promotion; seniority of ten years both in the — that in competition A/43 where the category in question and in the lower ability requirements were practically grade whereas in fact his seniority was 16 the same as in competition A/51, the years under the first criterion and 12 applicant was given 60 marks whereas years under the second. the successful candidate in the latter competition received 58-5 marks; The defendant objects that although in — that this candidate, moreover, did not previous actions brought by the applicant take part in the examination relating against the Parliament, the latter had to knowledge of Danish, although voluntarily produced the minutes of the such knowledge was stated in the deliberations of the Selection Board, its notice of competition to be attitude cannot be the same in the 'desirable'; present case. In the present action the — that assuming that the members of applicant has not managed to point to the Selection Board were appointed any factor capable of showing the least in the present case by the Secretary- internal irregularity vitiating the work of General, the appointment of the the Selection Board. His criticism is Selection Board is ultra vires since based solely on generalizations. Having the power given to the Secretary- been defeated in the competition he is General to appoint selection boards trying to create means of annulling it had not been at the time brought to and seeks to find these means in the the knowledge of the staff. minutes of the deliberations of the Selection Board. The European The applicant considers that these Parliament is therefore entitled not to factors, besides showing the irregular accede to the applicant's request to nature of the contested measure, give rise produce these documents unless it is to a number of serious presumptions of required to do so by the Court. In this the existence of a misuse of powers with latter event the table of marks would regard to him. To ascertain whether there relate only to the applicant since the is any such irregularity and misuse of other candidates in the competition are powers the Court should have the strangers to the proceedings. In the same

A/45). On the one hand the fact should not be overlooked that different Returning to this latter complaint based competitions are not comparable inter se, on the fact that the power delegated to so that the results of previous the Secretary-General to appoint competitions are irrelevant to those of selection boards was not published, the the competition in question. Further, the applicant refers to the provisions of the laying down of criteria of selection and Staff Regulations and in particular the awarding points on the basis of these second paragraph of Article 110 and criteria comes within the discretion Article 25 from which it appeared that vested in the Selection Board and the publication of this delegation was Court is entitled only to review matters indispensable to its legality. The relating to legality. applicant further cites German law and the case-law of the French Conseil d'État Finally the defendant observes: in support of the obligatory nature of — that reference to Article 45 in the such publication. contested decision cannot affect the validity of this decision, since Mr Further, the contested decision does not Gallo was appointed, as appears, as a contain only a reference to Article 45 of result of an internal competition; the Staff Regulations. It expressly states — since knowledge of Danish was in the operative part that Mr Gallo is described only as 'desirable', the fact promoted ('viene promosso') to head of that Mr Gallo did not take part in the division, Grade A 3. The negligence of examination relating to this subject is the European Parliament in drafting this quite irrelevant. decision is thus of such a degree that it is necessary to conclude that the measure The applicant in reply says that his should be annulled for lack of a request for production of the minutes of statement of reasons or on the ground of the Selection Board is based on erroneous reasons.

suspicions into certainty. In this respect decision to Article 45 of the Staff it suffices to recall: Regulations is in accordance with a — the last staff report on the applicant, form of wording constantly used by while being very flattering to him, no the Parliament in appointments longer speaks of his eligibility for a made as a result of a competition and promotion which in previous reports it has never before given rise to their authors had never failed to misunderstanding or discussion. recommend; Moreover this wording does not — the fact that the appointment of Mr conflict with the actual position for Kieffer, annulled by the Court as a the entry of an official upon a higher result of Case 77/74, was followed by grade of his category may, even if it the appointment of a candidate other follows a competition, be described as than the applicant; promotion. In any event, leaving — the fact, moreover, that objective aside the fact that reasons do not criteria such as his eligibility for have to be given for a decision to promotion and his eight and a half appoint, an imprecise or incorrect months as acting head of division reference to a provision of the Staff were not taken into account; Regulations is not sufficient in itself — the fact that in the case of the to justify the complaint that wrong or successful candidate there was no insufficient reasons have been given. examination relating to knowledge of For the rest, the present complaint, as Danish. set out in the reply, amounts to widening the submissions made in In support of these arguments the the applications, with the result that applicant produces a synoptic table of its admissibility may be questioned. officials appointed to A 3 who have been — The fact that there was no preferred to him for reasons which in the examination of Danish in the case of majority of cases are in his opinion Mr Gallo was because he had stated incomprehensible. he had no such knowledge. In these circumstances the Selection Board

inadmissible under the Rules of Environment and which according to Procedure of the Court which the President of the European prohibit fresh issues from being Parliament should be regarded as raised in the course of proceedings. such in the meaning of Article 7 of — In so far as the complaints made by the Staff Regulations, nor of his the applicant contain only professional experience with certain assumptions or generalities, the German firms. application itself is inadmissible as — If the temporary posting had been appears from the judgment of the taken into account it would have Court in Case 30/68, Lacroix v enabled him to obtain considerably Commission. higher marks than those received by Mr G. Gallo on the basis of selection criteria Nos 7 and 8 and if the IV — Oral procedure aforesaid professional experience had been taken into account he would Mr Legrand-Lane, Chairman of the have received much higher marks Selection Board for the competition A/51 than 0 under the sixth criterion. of the European Parliament, gave — The ceiling applied by the Selection evidence at the hearing on 14 October Board in marking under the first and 1976. second criteria with regard to The parties gave evidence at this same seniority and age constitutes an hearing. unjustified limitation on marks which could only work to the disadvantage Having regard to the reasoned report by of older and more senior officials the Selection Board lodged at the Court such as the applicant himself. by the European Parliament on 13 July 1976, the applicant confirmed the The defendant replied during the hearing complaints made in his written pleadings that the Selection Board in fact took and further observed: account of the temporary posting and of — A comparison between the marks the professional experience of the received for qualifications and those applicant. which the Selection Board gave him for the first oral test show that the In essence it stated that the criticisms Selection Board intentionally formulated by the applicant are either undermarked him. unfounded or are a repetition of those — The Selection Board did not take already made in the written procedure. account either of his temporary posting from 1 September 1973 to 20 The Advocate-General delivered his May 1974 as head of division of the opinion at the hearing on 11 November Committee on Public Health and the 1976.

5 Although Article 25 of the Staff Regulations lays down the manner in which decisions relating to specific individuals are to be published, it does not specify the manner of publication of measures having a general scope or measures which relate to a division of responsibilities within the institution.

6 The delegation of the power in question involves a generally recognized division of powers within the institution.

7 In the event it is established that it has been notified not only to the Directors-General of the institution, Chairmen of Groups, to the Secretariat and to the Control Bureau, but also the Staff Committee established under Article 9 of the Staff Regulations under which their duties are, inter alia to represent the interest of the staff vis-à-vis their institution and to 'maintain continuous contact between the institution and the staff.'

8 In these circumstances the contested delegation of power is legally effective without its being necessary to go into the question whether such a delegation

KÜSTER v PARLIAMENT

constitutes a measure covered by the second paragraph of Article 110 of the Staff Regulations.

JUDGMENT OF 25. 11. 1976 — CASE 123/75

15 A misuse of powers is not deemed to exist unless it is proved that the appointing authority in taking the measure in question has followed an objective other than the legal one.

16 Where only one candidate is suitable for promotion under the second paragraph of Article 45 (1) of the Staff Regulations, the fact that the above authority decides to organize an internal competition without making a promotion does not in itself constitute sufficient evidence of a misuse of powers.

17 In such a case the appointing authority, since it has available for consideration only one candidate suitable for promotion, may have all the more reason for holding an internal competition since it may rightly consider that it does not have a sufficiently wide choice to ensure recruitment in accordance as far as possible with the requirements of the post to be filled.

18 The applicant states further that a misuse of powers in this respect is proved by the fact that the marks accorded to him in the competition in question are lower than that attained in a previous competition (A/43) to fill a post in the same category and grade, the Selection Board for which competition was constituted in the same way as that for competition A/51 and made its selection on the basis of similar, if not identical, criteria of assessment.

19 It is established that the previous competition in question was based on qualifications and that competition A/5, was organized on qualifications and tests.

25 The applicant alleges further that the Selection Board in competition A/51 drew up the list of the various suitable candidates without taking account of the fact that he had temporarily held the post of First Secretary of Committee from 1 September 1973 to 20 May 1974.

26 The Selection Board, according to the applicant, also omitted to take account, for the purposes of the list of suitable candidates, of his experience and professional qualifications acquired both before and after his entry into the service of the European Parliament.

27 Finally it is said that the Selection Board did not include among the criteria of assessment it adopted that of his eligibility for promotion to the vacant post.

28 It appears from the evidence of the Chairman of the Selection Board in competition A/51 given during the oral proceedings that the Selection Board knew that the applicant held the temporary post from 1 September 1973 to 20 May 1974 and that this was taken into account in the assessment of the applicant's qualities and professional experience.

29 It appears also from this evidence that the Selection Board, in assessing the applicant's professional qualifications and abilities, had available all the

JUDGMENT OF 25. Π. 1976 — CASE 123/75

Costs

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

36 The applicant has failed in his submissions.

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

KÜSTER v PARLIAMENT

On those grounds,

A. Van Houtte A. M. Donner

Registrar President of the First Chamber

OPINION OF MR ADVOCATE-GENERAL REISCHL DELIVERED ON 11 NOVEMBER 19761

Mr President, indicated in the announcement, as had Members of the Court, already been done in the notice of vacancy. Whereas however in the first By a notice dated 12 March 1974 posted notice of vacancy thorough knowledge of in the European Parliament it was Danish was required, it was simply stated announced that the post of a Head of with regard to the competition that for Division in Grade A3 in the practical purposes a knowledge of Directorate-General for Committees and Danish is desirable. The applicant also Interparliamentary Delegations was took part in this competition. The vacant. The applicant was among those Selection Board carried out the requisite who applied for the post. The post was examinations and made its report on 18 not filled by promotion or transfer and April 1975. There were nine applicants therefore on 18 November 1974 it was on the list of suitable candidates: the announced that an internal competition candidate who headed the list had total — A/51 — would take place. The duties marks of 56-5, the second candidate, Mr involved in the post were set out in detail G., 50-25, while the applicant with 46-25 and the requisite ability and knowledge came sixth. On the basis of this list the

I — Translated Írom the German.