C-7/77

JUDGMENT OF THE COURT (FIRST CHAMBER) OF 16 MARCH 1978 1

Bernhard Diether Ritter von Wüllcrstorff und Urbair v Commission of the European Communities

Case 7/77

1. Officials — Application — Initial complaint — Required condition only for measures which toe administration can review — Decision of a Selection Board (Staff Regulations, Arts. 90 and 91)

2. Officials — Application — Assignment to a post — Absence of financial henefits or enhanced official status — legal interest in taking proceedings (Staff Regulations, Art. 91)

1. By providing that an appeal to the does not therefore cover the Court of Justice shall lie only if the decisions of a Selection Board. person concerned has previously 2. Even in the absence of financial brought an official complaint, Article benefits or enhanced official status, 91 (2) of the Staff Regulations refers an official or servant may have an only to measures which the interest in preferring some oduties to appointing authority can review and others.

THE COURT (First Chamber), composed of: G. Bosco, President of Chamber, A. M. Donner and J. Mertens de Wilmars, Judges, Advocate General : J.-P. Warner Registrar: A. Van Houtte gives the following

JUDGMENT

Facts and issues

The facts of the case, the course of the Chamber) annulled inter alia the procedure, the conclusions, submissions decision making that appointment and arguments of the parties may be (Joined Cases 81 to 88/74, Marenco v summarized as follows: Commission [1975] ECR 1247). Subsequently the Commission notified its staff, through Vacancy Notice COM/ I — Facts and procedure 1149/75, that the said post was vacant During the second half of 1972 the and fixed 30 January 1976 as the Commission posted up Vacancy Notice closing date for application. COM/646/72 relating to a post of Mr Bernhard-Diether Ritter von Principal Administrator in Category and Wüllerstorff und Urbair, who was at career bracket A 5/A 4 in the Tobacco, that time in Grade A 6 and assigned to Hops, Potatoes and Other Specialized the Wine, Spirits and Derived Products Crops Division of the Organization of Division of the Organization of Markets in Specialized Crops, Fisheries Markets in Specialized Crops, Fisheries Directorate of the Directorate General Directorate of the Directorate General for Agriculture. for Agriculture, and certain other On 22 October 1973 the Commission officials then applied for promotion to decided to fill this vacancy pursuant to the vacant post. The Director of the Article 29 (2) of the Staff Regulations Directorate in question carried out an of Officials and to appoint Mr Eduardo examination of the comparative merits Capuano to the post. By judgment of of the candidates and proposed that Mr 29 October 1975 the Court (First von Wüllerstorff should be appointed to

"(b) Thorough knowledge of economic and technical problems in the sectors involved, particularly the III — Submissions and argu­ potato market (production, trade, ments of the parties prices) in Community and non- Community countries. A — Admissibility

(d) Thorough experience relevant to The defendant emphasizes first of all the post". that the present application was lodged without the applicant's having first The only candidate admitted to the submitted a complaint as provided in competition was Mr Capuano. On the Article 90 (2) of the Staff Regulations basis of written and oral tests, which of Officials. Since the present appli­ took place on 23 and 30 November cation is principally directed against the

JUDGMENT OF 16. J. 1978 — CASE 7/77

Directorate General. taining the procedure of an initial complaint even in these circumstances. The applicant remarks, with regard to the failure to submit a complaint, that The principles established by the Court, the Court of Justice has already in particular in its judgment of 14 June delivered an express ruling in the 1972 (Case 44/71 Marcato v Com dispute in question to the effect that it is mission [1972] ECR 427), namely that unnecessary to submit a complaint (see the only form of appeal in relation to a the above-mentioned judgment in the decision taken by a Selection Board lies Costacurta case).

measures. He disputes that opportunities ECR 1563. The present position thus for transfer do not constitute a legal appears to be that the Court permits one or other course to be followed. The interest: since a post has been declared vacant he is entitled, if he fulfils the defendant nevertheless considers that a respective conditions, to submit his ruling settling the principle would application for transfer as well as for afford a greater degree of legal promotion (third paragraph of Article 4

A legal interest in a promoted to Grade A 5. If the Court of transfer thus exists and an application Justice rules in favour of the applicant's for transfer must naturally be protected claims he could apply for the post which by the Court. would then have to be declared vacant. In the present case the specific interen In that case, however, he could only be of the applicant in obtaining the post in a candidate for transfer. Whilst the need dispute is sufficiently established by the to protect promotion prospects is not fact that he endeavoured to obtain the

post not only by promotion but also any administrative measure must through the competition organized. He contain a statement of reasons and is at present employed in an accounting such statement may not be vitiated post which does not accord so well with by errors of law or of fact; conduct his training and experience as the post ultra vires in that the Selection Board in question. He would thus have better erred in failing to admit the applicant prospects if he held the post in dispute to the competition. instead of his present post. 3. As a further alternative: The defendant considers that the sole Infringement of Article 7 of the Staff point at issue is whether, in the event of Regulations of Officials and of the post in question again becoming Article 27 thereof and especially the vacant, any advantage would accrue to third paragraph of the latter; misuse the applicant or any legal interest of his of powers in that, on the one hand, would be protected, having regard to the post in question was reserved for his present situation. a person of a specific nationality and The fact that the applicant for his on the other, the entire course of the present post and that he previously procedure shows that the aim applied for six other vacant posts in pursued was not the interests of the Grade A 5/4 in the Directorate General service but the appointment of the for Agriculture shows that the person whose previous appointment applicant's main concern was to obtain to that post had been annulled by the promotion to Grade A 5. It cannot thus Court, be claimed that he has failed to obtain the advantages which he was seeking by First submission entering the disputed competition. The applicant claims that the Selection Finally, the applicant is not entitled to Board for the competition simply stated claim that the duties of this present post that he did not fulfil the conditions set are unsuitable: he himself chose to out at (b) and (d) under Eligibility (see apply for that post. Annex I to the application). This mere assertion is quite unsubstantiated and no B — Substance explanation is even attempted. Since the reasons which guided the Selection The applicant advances the following Board in its appraisal remain unknown the Court cannot review the lawfulness complaints concerning: of that appraisal. In the present case this 1. Infringement of Article 25 of the "statement of reasons" must a fortiori Staff Regulations of Officials and of be held utterly insufficient in that the Article 5 of Annex III thereto; applicant: conduct ultra vires in that no sufficient statement of reasons has — was proposed for promotion to the been supplied for the decision of the post by the Director of the Direc­ Selection Board in Internal torate where the post in question is; Competition COM/1149/75 not to — is a Doctor in Agricultural Sciences, admit him to that competition; which in principle should permit him 2. In the alternative: to take part in any competition for a post relating to agriculture; Infringement of Article 25 of the Staff Regulations of Officials and of — has passed the "Staatsexamen" in Article 5 of Annex III thereto, and, agriculture in Bavaria, which gives more generally, of the rules and him the status of "Landwirtschaft­ principles in accordance with which licher Assessor";

— the test for this qualification 37/72 Manato v Commission [1973] required studies at advanced level in ECR 361 where it was held that the general agricultural economy which report of the Selection Board and a clearly covers potatoes; further note from the administration did not contain a sufficient statement of — completed one of the two pro bationary years of practical work, reasons since they "merely indicated the before going up to university, on a qualifications in which the applicant was German national research farm considered to be deficient whereas, at where, out of 350 hectares culti first sight, his practical experience might vated, 150 were given over to seem comparable to that of the other candidates admitted". potatoes and indeed exclusively to the cultivation and propagation of At all events an appraisal lacks a new varieties. sufficient statement of reasons if the reasons or criteria upon which it was The defendant observes that the very based are unknown. In the present case

not be made. In the present case the market in that he has personally taken wording of the conditions of eligibility pan in the establishment of two such was very clear. There is no difference organizations. It must further be between this manner of notifying the emphasized that the applicant was candidate and a more explicit form of proposed for the post in dispute by the notification which could only have Director concerned on the ground, repeated the substance of terms of the which on this occasion was properly section in question. In fact the adequacy substantiated, that the applicant fully of the statement of reasons can only be meets the requirements laid down for appraised with regard to the re this post (see Annex II to the defence). quirements of review by the Court; the With regard to the requirements for person concerned must be in a position, review by the Court the applicant if necessary, to challenge these reasons observes that it is impossible in the and the Court must be able to consider present case to examine or review the

VON WÜLLERSTORFF UND URBAIR ν COMMISSION

It clearly follows that that decision cannot be for the post in question, proposed that extended to a case where the statement he should be promoted further confirms that the two disputed conditions of of reasons refers to very clear and eligibility were fulfilled in the present moreover specific conditions for the case. post to be filled. The present dispute also differs from the Manato case The defendant considers that the infor precisely in that it does not appear that mation supplied by the applicant shows either the qualifications or the clearly that the latter can indeed be considered as a specialist in agricultural experience of the applicant can "at first sight" compare with those of the sciences but certainly not as a specialist

economic aspects. decision and thereby depart from its normal practice in such matters. With regard to the requirement of thorough experience relevant to the post Second submission it can be accepted that the applicant has a general experience of problems The applicant maintains that he fulfils concerning the common organization of the conditions set out at (b) and (d) the agricultural markets but certainly no under Eligibility in the notice of specific knowledge of potatoes and competition. seeds nor experience of quality and marketing standards and problems With regard to (b) he refers to his relating to potato diseases. studies and to the two probationary years of practical work (see above). The applicant replies that the degree of Furthermore, during his university Doctor in Agricultural Sciences implies vacations he spent periods on various the first qualification in question. farms on which potatoes were culti Even if doubts might be entertained vated. regarding his present thorough

The same considerations apply to the judgment, the more so since the Board second condition in dispute. Experience was not required to take cognizance of it. in carrying out the work involved in managing the common organizations of Third submission the agricultural markets (and thorough knowledge of the potato sector) has The applicant considers that the post in further been accepted by the Director question had been reserved for a person concerned. of a specific nationality and that it was necessary to appoint Mr Capuano Finally, apart from cases where a notice whose previous appointment to that of competition was "made to measure" post had been annulled by the Court. for a candidate, it is always possible to Following that annulment the defendant find, if it is so desired, that any had decided to dispense with the candidate for posts involving a certain procedure of appointment through technical complexity, which have not promotion or transfer in which Mr been held before by the persons concerned, one or more ways in which Capuano, as a member of the temporary staff, could not take part. Finally, Mr the latter does not fully meet the Capuano was appointed after an requirements. It is to be wondered how internal competition to which he was Mr Capuano can have a better the only person admitted and this is experience than the applicant of a post contrary to the very concept of a mainly concerned with the establish­ competition. It must be open to question ment and application of common organi­ whether there can still be a competition zations of the market when the former when only one candidate is admitted. has never set up or worked in such The defendant observes that the organizations. applicant is unable to furnish any The defendant replies that the Selection serious evidence in support of his Board for a competition necessarily statements.

Finally, the defendant emphasizes that a The applicant asks whether, at any rate distinction must be drawn between the if several candidates have applied, it is proceedings for annulment directed not legally necessary, as soon as it has against the decision refusing to admit been decided that only one candidate the applicant to the competition and the may enter, to dispense with the proceedings for the annulment of the competition and instead to hold an open competition and of the subsequent competition. appointment on the one hand and the The defendant states that the relevant inferences to be drawn on the other. provisions of the Staff Regulations do Even supposing for the sake of not contain anything prohibiting argument that the Court were to find competitions with a single candidate. that the decision refusing to admit the Further, in practice this situation is not applicant to the competition was unusual in internal competitions. irregular and in particular that such irre­ Finally it should be recalled that the gularity consisted in an inadequate sole concern of the Selection Board at statement of reasons or in an in­ the stage of the examination of fringement of a procedural requirement qualifications is to check that such the defendant does not consider that qualifications meet the conditions in the this finding must entail the annulment notice of competition; the provision of the contested decisions. In this laying down that "wherever possible at connexion it refers to the judgment of lean twice as many names as the num­ 29 September 1976 in Case 9/76 ber of posts to be filled" shall be put Morello v Commission [1976] ECR forward only applies to drawing up the 1415. list of suitable candidates after the tests.

4 By a note of 16 November 1976 the Selection Board for the competition notified the applicant of its decision not to admit him to the competition on the grounds that he did not fulfil the above-mentioned conditions.

Admissibility

5 The Commission, the defendant, considers that the application is inadmissible first because the applicant has failed to comply with Article 90 of the Staff Regulations of Officials in that he commenced proceedings without first submitting a complaint and further because he has no longer a legal interest in the annulment of the contested measures since, after 1 January 1977, he too was promoted to Grade A 5, the same grade as that of the post which he sought.

6 With regard to the first point Article 91 (2) of the Staff Regulations in fact provides that an appeal to the Court of justice shall lie only if the person concerned has first availed himself of the administrative procedure laid down in Article 90.

7 Nevertheless this procedure is devoid of purpose where a complaint is directed against the decisions of a Selection Board in a competition since the appointing authority is not empowered to review such decisions.

8 Accordingly the general plan both of the administrative procedure and of the court procedure militates against an interpretation of Article 91 (2),

Substance

13 The applicant makes three submissions.

14 The decision of the Selection Board failed to comply with the legal requirements in that it did not contain an adequate statement of reasons.

15 The decision is unfounded in fact and accordingly is vitiated by errors of law or of fact and is therefore ultra vires.

16 Finally, in the alternative, the decision is vitiated by misuse of powers since everything points to the fact that the procedure followed by the Selection Board was intended to reserve the post in question for a person of a specific nationality whose previous appointment to that post had, moreover, been annulled by the Court on a previous occasion.

JUDGMENT OF 16. 3. 1978 — CASE 7/77

23 Since the above-mentioned footnote, to which reference was made in the notice of competition, placed special emphasis on the need to produce evidence or a statement from candidates that they possessed thorough knowledge in these spheres, the Selection Board was entitled to consider that failure to provide information indicated a serious lack of such knowledge.

24 Likewise the applicant's career does not show that he possesses "thorough experience relevant to the post".

VON WÜLLERSTORFF UND URBAIR v COMMISSION

25 It must in any case be found that with regard to both conditions the documents submitted with the application of the candidate who was accepted indicate that be was more suitable.

26 Accordingly, although the background to the application in question may give rise to some doubts, consideration of the circumstances has not revealed either an error of fact or of law or misuse of powers.

27 In that situation, the Selection Board has provided a sufficient statement of reasons for its decision by indicating the conditions of eligibility which it considered were not met by the applicant's application.

THE COURT (First Chamber)

hereby:

1. Dismisses the application;

OPINION OF MR WARNER — CASE 7/77

2. Orders the parties to bear their own costs.

Bosco Donner Mertens de Wilmars