C-151/80

APPLICATION for

1. The annulment of the decision of 13 June 1979 whereby the Commission appointed Mr L. Head of Division C 5, the Urban Works and Social Infrastructure Division, in the Directorate-General (VIII) for Development, and 2. The annulment of the Commission's rejection, by a letter dated 17 April 1980 and communicated to the applicant on 30 April 1980, of the complaint made by the applicant on 10 September 1979,

DE HOE v COMMISSION

T H E COURT (First Chamber)

composed of: G. Bosco, President of Chamber, A. O'Keeffe and T. Koopmans, Judges,

Advocate General: G. Reischl Registrar: J. A. Pompe, Deputy Registrar

JUDGMENT OF 17. 12. 1981 — CASE 151/80

DE HOE v COMMISSION

161/79, such as the wider requirements The periodic report covering the period as to the reorganization of several from 1975 to 1977, which was the last divisions of the relevant Directorate- periodic report made before the General. The Commission had thus contested decisions, was not on the infringed the provisions set out in the applicant's personal file. The periodic submission, had not applied the general report constitutes an essential factor in principle of the interest of the service the comparison of merits whenever an and had misused its powers. official is considered for promotion or takes part in a procedure within the meaning of Article 29 of the Staff Regu- lations. Therefore, a proper comparison of merits cannot lawfully be made The second submission alleges infringe- without considering that essential factor ment of Vacancy Notice No C O M / of assessment and without considering 161/79 of 1 March 1979, mistake of the experience and qualities of an official fact, inadequacy of the statement of during the period closest to the decision reasons and misuse of powers. to be taken whilst the same periodic report is taken into consideration in the case of the other candidates.

The vacancy notice required, as an objective condition of suitability, a thorough knowledge and experience of The applicant believes that the Com- the economic and technical problems in mission misused its powers in deciding to the field of social infrastructure and reject him without having knowledge of urban works in the developing countries. his periodic report or of his experience The Commission ought to have during that period, in not comparing the determined and stated how that candidates' merits and not giving any condition of suitability was met by Mr L. legal grounds for that unequal treatment. before admitting him to a comparison of merits with the other candidates.

take account of the particular conditions in the developing countries. It was required to fill the post in question therefore possible for the Commission when considering the applications and reasonably to take the view that Mr L. appointing Mr L. had a thorough knowledge of the said field and therefore did not exceed the limits of its discretion. In fact the appointing authority took its decision after a detailed examination of the qualifications of the candidates, The Commission considers that the having regard to the characteristics of decision appointing Mr L. and the the post to be filled and after comparing express rejection of the complaint made the candidates' merits on the basis of a by the applicant through official channels body of documents and information under Article 90 (2) of the Staff Regu- relating to the ability of each of them, lations gave adequate statements of the the nature of the duties to be performed reasons on which they were based, and qualifications required.

Mr de Hoe did not feel able to accept the terms of the report and requested an interview There may be criticism of the with his reporting officer. As a result of compatibility of the facts on which the that interview, the reporting officer administration based its assessment with altered his report and prepared a new the assessment itself only in the case of report with four copies which were sent manifest error. In this case, Mr L.'s to the applicant, who kept them and still application as well as the other docu- held them at the time when the ments which the appointing authority application to the Court was made. might have considered show that he had obtained wide experience of economic and technical problems in the field of Finally the Commission notes that in any collective infrastructure and urban works event the absence of the periodic report

did not in fact adversely affect the order to meet the wider requirements applicant, in so far as it was, on the as to the reorganization of several whole, less favourable than the previous divisions of Directorate-General VIII. reports of which the Commission had Therefore by taking into consideration knowledge. requirements wider than those attaching to the post to be filled, the Commission incorrectly applied the concept of the interest of the service, infringed the 3. In his reply, the applicant expands provisions referred to in the first upon the facts which he set out in submission and misused its powers. summary form in his application. He emphasizes the details of his career which, he asserts, give him the thorough knowledge and experience of economic With regard to the second submission, and technical problems in the field of the applicant maintains that Vacancy social infrastructure and urban works in Notice No COM/161/79 set out, as the developing countries necessary to fill qualifications required for the post to be the post in question. filled, a list of five specific conditions of admissibility. On receiving applications for such a post, the appointing authority ought, as a preliminary step, to have The applicant submits that the checked whether the candidates fulfilled Commission took into consideration each and every condition. In the context factors extrinsic to the post to be filled. of that examination, the appointing All factors not included in Vacancy authority had no discretion, but had to Notice No COM/161/79 must be check objectively that the conditions of regarded as extrinsic factors. The suitability were all met by the candidate. applicant alleges that the contested According to the applicant, the measure was taken in the context and in appointing authority ought to have the final phase of a series of divided the applications into three administrative measures the common aim categories : of which was the reorganization of several divisions in Directorate-General VIII. A memorandum had been circu- lated in Directorate-General VIII at the (a) candidates unsuited for the post to beginning of March 1979, containing the be filled; arrangements made by the Commission on 28 February 1979 relating to the internal organization of that Directorate- General. A draft vacancy notice which (b) suitable candidates whose relative became Vacancy Notice No C O M / merits were compared for the 161/79 was attached to that purposes of the choice to be made; memorandum.

With regard to the absence of the applicant's periodic report at the time of 4. In its rejoinder, the Commission the assessment of the candidates' confirms that a series of decisions comparative merits, the Guide to Staff concerning the internal organization of Reports provides for a dialogue between Directorate-General VIII was taken by the official who is the subject of the the Commission in the course of its report and the reporting officer, at the 506th session, on 28 February 1979, end of which the report becomes final if acting on a proposal from its Com- no complaint has been made by the missioner, Mr Cheysson. The fact that official who is the subject of the report those measures resulted inter alia in the to the reporting officer within the pre- transfer of the vacant A 3 post from scribed period. In this case, the finding Division B 2 to Division C 5, thus giving by the reporting officer that the pre- rise to Vacancy Notice No COM/ scribed period had expired ought to have 161/79, obviously does not mean that resulted in his being obliged to confirm the disputed appointment was prompted his provisional report, which in this way by factors other than those laid down in would have become definitive and the vacancy notice in question. formally correct. It is therefore wrong to claim that the irregularity relied on in the submission is the applicant's fault. As to the correspondence between Mr Commissioner Cheysson and Mr The applicant disputes the Commission's Simonet, Minister for Foreign Affairs, statement that the periodic report for the that included a letter in which the

minister, undoubtedly at the request of several different sectors of the the official concerned, contacted a Commission's activities . . . " Member of the Commission, with a view to recommending the application of a In view of Mr L.'s experience in the compatriot. Mr Cheysson replied in the service of the European Development following manner: Association between 1973 and 1976 and his earlier activities in the Commission as "However, the post was given to another head of division, first of Division VIII candidate whose qualities are equally B 1, the West Africa Division, and at outstanding, but whose transfer met present in Division VIII C 5, the Urban wider requirements as to the reorganiz- Works and Social Infrastructure Divis- ation of several divisions of this direc- ion, it was possible for the appointing torate-general". authority reasonably to take the view that he fulfilled the condition relating to The Commission notes that when it is thorough knowledge and experience of thus placed in its proper context the economic and technical problems in the letter of 25 June 1979 from Mr field of social infrastructures and urban Commissioner Cheysson does not have works in the developing countries. the meaning which the applicant seeks to ascribe to it. On the question of the absence of the In his reply the applicant isolates one of applicant's periodic report for the period the appointing authority's criteria for from 1975 to 1977, the Commission assessment, that is to say thorough refers to the judgment of the Court of 13 July 1972 in Case 90/70, Bernardi v knowledge and experience of technical European Parliament ([1972] ECR 60) in problems, by considering it only from a which the Court took the view that: purely quantitative point of view. However, the choice to be made by the appointing authority is a result of a "Assuming that a proposed periodic comparison covering all the conditions report communicated to the person laid down having regard to the post to concerned in order to obtain his be filled and at the end of that signature and comments may already be comparison, settles on that candidate considered, before it is returned, as a who on the whole appears most able to report capable of being subjected to the perform the duties required. Since the comparative consideration referred to in post to be filled in this case was that of Article 45 of the Staff Regulations, it is head of division in the Directorate- in any event clear from the foregoing

. . The Commission concludes from that A head of division should also have had judgment and from the opinion of Mr experience throughout his career of Advocate General Roemer that the

The Commission does not accept the But what might be more serious, applicant's arguments to the effect that according to the applicant, is the fact the report relating to the period from 1 that those documents show that the July 1976 to 30 June 1977 constitutes an assessment which the appointing improvement relative to the earlier authority claims to have made with period. regard to Mr L.'s thorough knowledge and economic and technical experience in the field of social infrastructure and 5. In a supplementary pleading, the urban works in the developing countries applicant alleges that there is often was superficial and characterized by political intervention in regard to the errors. appointment of high officials and that he was therefore not surprised at Mr Simonet's action in suggesting him for The applicant states that it is wrong in the post in question. law to claim that the failure by the official who is the subject of the report to return the report to the reporting Mr Cheysson's letter affords proof that officer within the prescribed period not only he but also the whole of the constitutes a breach of the official's Commission considered that the two general duty of loyalty and cooperation. candidates were equal and that therefore the sole and determinant reason for choosing Mr L. was indeed the fact that On the contrary, as a result of a rule of his transfer met wider requirements as to the Staff Regulations which binds it and the reorganization of several divisions of which it is not entitled to alter, even by the directorate-general. The sole and means of general provisions for the determinant reason for the contested implementation of the Staff Regulation, measure was the reorganization of the Commission has Division B 1. Such a reason is unlawful and its illegality entails the annulment of the contested measure. "(a) bounden d u t y . . . to ensure that that report is drawn up periodically on the dates laid down by the Staff The applicant is surprised that the Regulations and that it is drawn up Commission relies on the Spierenburg in proper form" (judgment of 14 Report which is dated 24 September July 1977 in Case 61/76 Geist v 1979, that is to say after the contested Commission, [1977] ECR 1419).

2 The applicant, an architect by training, entered the service of the Commission on 29 August 1960. Since 1970 he has performed his duties in the Directorate-General for Development. Appointed to Grade A 4, Step 3, on 1 January 1974, he was assigned as principal administrator to Division C 5 in Directorate-General VIII, where he performs the duties of head of West Africa, Central Africa, Pacific and Maghreb sector of the division, entrusted with planning, advisory and supervisory duties concerning technical

JUDGMENT OF 17. 12. 1981 — CASE 151/80

instruction and the accomplishment of projects financed by Community resources in the field of urban works and social infrastructure. He replaces the head of division in his absence and in this regard has experience as acting head of division of more than 360 days.

3 On 1 May 1979 Vacancy Notice No COM/161/79 was published concerning the post of Head of the Division for Urban Works and Social Infrastructure. Among the qualifications required for this post were a thorough knowledge and experience of economic and technical problems in the field of social infrastructure and urban works in the developing countries. The applicant applied for the vacant post in the context of Article 29 (1) (a) of the Staff Regulations.

4 On 13 June 1979 the Commission appointed Mr L. to the vacant post with effect from 1 July 1979 and informed the applicant on 5 July 1979 that the appointing authority had been unable to accept his application for the post to be filled.

5 The applicant submitted a complaint under Article 90 (2) of the Staff Regu- lations on 10 September 1979. He was notified of the decision rejecting his complaint by a letter of 17 April 1980. Subsequently the applicant made this application to the Court.

7 It is appropriate to consider first the second submission, the examination of which may affect the first submission. According to the applicant, the official appointed to the post to be filled did not meet one of the conditions required by the vacancy notice, that is to say, that relating to "thorough knowledge and experience of economic and technical problems in the field of social infrastructure and urban works in the developing countries". He examines Mr L.'s experience in the field described in the vacancy notice and concludes from it that it was not possible for the Commission, without making a mistake of fact, to take the view that the official met the condition cited above. In addition, he submits that no adequate statement of the reasons for the decision to appoint that official was given, inasmuch as there is no indication of the grounds on which the Commission might lawfully have considered Mr L.'s knowledge to be thorough.

8 It is clear from the case-law of the Court, particularly from its judgment of 30 October 1974 in Grassi v Council ([1974] ECR 1099) that the basic function of the vacancy notice is to give those interested the most accurate information possible about the nature of the conditions of eligibility for the post to which it relates, in order to enable them to judge whether they should apply for it, and that when the appointing authority has to fill a post, it must, when drawing up the vacancy notice, take account of the special conditions of eligibility required of the holder.

9 However the Court has recognized that the appointing authority has a wide discretion in comparing the candidates' merits and that its assessment as to whether a candidate fulfils the conditions of eligibility required by the vacancy notice may be questioned only in the event of manifest error.

1 3 So far as the alleged inadequacy of reasons given for the decision is concerned, the Court has already stated in its judgment of 30 October 1974, cited above, on the one hand that there is no need for a decision promoting an individual to be reasoned and on the other hand that, whilst the duty to give reasons for a decision rejecting a complaint applies even in the case of a contested promotion, the reasons to be given in that case will be concerned only with fulfilment of the legal conditions on which, under the Staff Regu- lations, the validity of the promotion depends. That does not mean that the Commission must set out in detail in what way it considered that the appointed candidate fulfilled the conditions in the vacancy notice. The decision of 17 April 1980 rejecting the applicant's complaint was therefore sufficiently reasoned.

14 It follows that the second submission must be rejected.

DE HOE v COMMISSION

17 In his third submission the applicant contends that at the time of the contested decision the Commission did not have his periodic report for the period from 1975 to 1977. It is also true that, according to the case-law of the Court, periodic reports constitute essential factors for all decisions concerning an official's career.

18 However, it appears from the file that the report was drawn up by the competent reporting officer on 5 December 1977, that it was transmitted to the applicant so that he might read and countersign it, and that he later requested an interview with his reporting officer. As a result of that interview, the reporting officer changed his report and in April 1978 drew up a new report with four copies and transmitted them to the applicant who kept them and still held them at the time when the application to the Court

JUDGMENT OF 17. 12. 1981 — CASE 151/80

was made. This shows that the candidate himself did not consider that it was necessary for the assessment of his qualities for purposes of the post to be filled that that document should appear in his file.

19 Under those circumstances the applicant may not rely on the absence of the periodic report for the period mentioned, and therefore the third submission must also be rejected.

20 Since the applicant has failed in all his submissions, the application must be dismissed.

2. Orders the parties to bear their own costs.

Bosco O'Keeffe Koopmans

Delivered in open court in Luxembourg on 17 December 1981.

A. Van Houtte G. Bosco Registrar President of the First Chamber