C-80/81

J U D G M E N T OF T H E C O U R T (THIRD CHAMBER) 9 OCTOBER 1984 '

Robert Adam and Others v Commission of the European Communities

(Officials — Promotions)

Joined Cases 80 to 83/81 and 182 to 185/82

Measures adopted by the Community institutions — Internal directive Rules indicating the practice to be followed by the Administration — Whether binding on the Administration (Staff Regulations of Officials, Art. 5 (3))

Although the Court has consistently held nevertheless form rules of practice from that internal directives or measures of an which the Administration may not depart internal nature may not be regarded as without giving the reasons which led it rules of law which the Administration to do so, since otherwise the principle of is always bound to observe, they equality of treatment would be infringed.

T H E C O U R T (Third Chamber)

composed of: C. Kakouris, President of Chamber, U. Everling and Y. Galmot, Judges,

Advocate General : Sir Gordon Slynn Registrar: D. Louterman, Administrator

gives the following

JUDGMENT

Facts and Issues

services to perform Category A duties cedural Arrangements, were informed on could be assessed without a competition 9 June 1980 by the Directorate-General in order that such officials could move for Personnel and Administration that, into that category. For that purpose, it after examining the merits of each published, in Administrative Notices of 20 candidate, the ad hoc Committee "had December 1978, a notice entitled "Proce- not been able" to include their names on dures to be implemented prior to the list of suitable candidates. decisions on the transfer from Category B to Category A of officials in the scientific and technical services" (here- inafter referred to as "the Procedural On 8 September 1980 the four applicants Arrangements"). each lodged a complaint against that decision, pursuant to Article 90 (2) of the Staff Regulations, and then brought appeals against the implied decisions Section III of the Procedural Ar- rejecting their complaints, all of which rangements provides that an "ad hoc were registered at the Court on 10 April Committee", the members of which are 1981 under Nos 80/81, 81/81, 82/81 to be nominated by the Commission, is and 83/81. to examine applications in accordance with the procedure laid down in Section III (2) (a) to (d). That procedure consists in examining the application documents, By letters dated 17 March and 28 April supplemented, where appropriate, by an 1981, Mr O'Kennedy, the Member of interview with the candidate and an the Commission responsible for staff assessment of a dissertation written by matters, informed the applicants that, in the candidate on a scientific or technical view of their complaints, the Commission subject chosen by the Committee. had decided to refer their cases and those of other officials to the ad hoc Committee for reconsideration. Section III (2) (e) provides that:

On 17 December 1981, the applicants lodged a complaint against the contested decision of 24 September 1981 on the (a) Administrative Notices N o 281 of 10 ground that none of their fields of June 1980, of which the applicants competence were defined nor any appended only an extract to their indication given as to their classification reply and which contains the list of on the "priority" list. On 23 July 1982, suitable candidates initially drawn up they appealed against the implied by the ad hoc Committee; decision rejecting their complaint by applications registered at the Court under Nos 182/82, 183/82, 184/82 and (b) Administrative Notices N o 339 of 185/82. 16 October 1981, containing the addendum to the previous list;

By letters dated 29 July 1982, Mr Burke, the Member of the Commission re- (c) the list of the officials placed on the sponsible for staff matters, rejected the list in question and promoted to complaints lodged by them on 17 Category A since 10 June 1980. December 1981.

Owing to the change in its composition, The Commission supplied those docu- the Court decided to assign those cases ments on 18 April 1984. They show that, to the Third Chamber. By order of 26 of the nine officials added by the October 1982, the four cases were joined addendum published- in -Administrative for the purposes of the procedure and Notices No 339 of 16 October 1981 to the judgment. the list of officials eligible for transfer from Category B to Category A published in Administrative Notices No By order of 5 May 1983, both sets of 281 of 10 June 1980, two were cases, 80 to 83/81 and 182 to 185/82, promoted, namely Mr Willy Lycke, on were joined for the purposes of the 1 January 1982, and Mr Emile De Blust, procedure and the judgment. on 1 January 1984.

(2) Declare null and void the decision The first submission is that the authority notified to them in the letter of 24 which notified the applicants of the September 1981, according to which contested decision of 9 June 1980 lacked the ad hoc Committee was unable to competence. determine the fields of competence in which the applicants could The applicants contend that the ad hoc currently perform scientific or Committee is merely an auxiliary body technical duties in Category A at the whose task is to draw up the lists of level of competence required by the suitable candidates on the basis of which Commission services, in so far as the appointing authority decides to that decision is prejudicial to them; promote officials in Category B to Category A. (3) Declare null and void the decision to which the appointing authority The second submission referred in the letter of 24 September 1981 and by which it adopted the The second submission is that the ad hoc decision of the ad hoc Committee; Committee exceeded its powers.

(4) Declare null and void the decisions In this regard, the applicants point out of both the ad hoc Committee and that the ad hoc Committee required a the appointing authority to include written dissertation to be submitted,

JUDGMENT OF 9. 10. 1984 — JOINED CASES 80-83/81, 182-185/82

ADAM v COMMISSION

"The purpose of the arrangements concerned is the field in which they outlined below is to provide a means of work. assessing the ability of Category B officials in the scientific and technical services to perform Category A duties . . . with a view to their transfer to this The ad hoc Committee's discretion is Category." confirmed by the wording of the Pro- cedural Arrangements. The Commission points out that, when drawing up the list of suitable candidates, the Committee must take into account, according to That purpose, which applies to any Section I (a), the fact that "transfer from candidate for a transfer to Category A, Category B to Category A is the whether or not he has a university exception rather than the rule . . .", and, degree, necessarily entails that the ad hoc according to Section I (d), "the Committee must ascertain whether the budgetary situation". candidate is able to perform Category A duties in a particular field. Moreover, Section III (2) (d) of the Procedural Arrangements provides for candidates In the event of budgetary restrictions, having a university degree to be however, the applicants' argument would interviewed to enable the ad hoc make the ad hoc Committee's discretion Committee to "assess" their areas of meaningless by giving absolute priority competence. to officials with university degress. That line of argument is at odds with the purpose of the entire scheme, which is primarily designed to enable Category B In the Commission's view, it is worth officials, who, though not having pointing out in this regard that it is university degress, can rely on pro- stated in the Procedural Arrangements fessional experience at the level of approved by the Commission on 3 June Category A, to move into the higher 1983 that candidates holding a university category. degree or similar qualification :

containing the applicants' names to be or both, drew up the "list of Category B published, although their respective fields officials eligible for transfer" without of competence were not stated. providing for the applicants to be placed "in the first group, and with retroactive effect". The applicants argue, in the first place, that, in so far as the ad hoc Committee did not observe the Procedural Ar- rangements, it was the Commission's In the applicant's view, the Commission duty to make the necessary corrections. must ensure, without, however, en- croaching on the ad hoc Committee's Secondly, they do not accept the scientific independence, that the Com- Commission's argument that the fact that mittee carries out its duties in full in the fields of competence of the officials accordance with Section III of the Pro- concerned were not stated could not cedural Arrangements so as to have all prejudice their position because ap- the information which is indispensable pointments are decided upon by the for the exercise of its power of appointing authority "in the light of appointment. service requirements and the budgetary situation". The Commission has itself stated that it grants promotions on the The applicants point out in this basis of the list of suitable candidates. connection that, although the Committee The Commission must therefore ensure fundamentally amended its. original that it has full and comparable. infor- decision of 9 March 1980 at the request mation on each candidate so that they of the Director-General for Personnel have an equal chance. and Administration, by deciding on 31 July 1981 to add their names to the 1980 The Commission believes that the ad hoc transfer list by means of an addendum, Committee complied with the provisions the effect of the addendum was not of the Procedural Arrangements and that made clear. Consequently, in view of the it did not therefore have to correct the budgetary restrictions, the appointing list of suitable candidates. The deter- authority promoted to Category A by mination of an official's field of way of priority officials who were on the competence is not a necessary pre-con- original list and whose fields of dition for the appointing authority's competence had been stated. decision since that authority makes appointments in the light of service requirements and the budgetary situation. Since officials' fields of In the applicants' view, the ad hoc competence are defined quite broadly, Committee should have avoided that risk the appointing authority bases its by stating that its decision was to have decisions on the criteria mentioned above retroactive effect and that the applicants and on a candidate's personal file, which were therefore to be included in the first contains all the details of his training and group of officials eligible for promotion professional experience. and secondly by making it clear that, in view of their university degress, they were first in priority for promotion. The third submission

In the Commission's view, the third The fourth submission submission must be rejected in so far as it is directed against the appointing authority since the authority has no The fourth submission is that the power at all under the Procedural appointing authority did not withdraw Arrangements to draw up, let alone to all the appointments it made on the basis amend, the list of suitable candidates. of the tables published in Administrative Notices No 281 of 10 June 1980 and that its omission resulted in discrimination In so far as this submission is directed against the applicants. against the ad hoc Committee's work, the Commission first points out that after interviewing the applicants, the The applicants stress that, in view of the Committee considered itself unable to provisions of the Staff Regulations, determine their respective fields of which grant the appointing authority a competence and that therefore it had no wide discretion in this regard, they do criteria enabling it to classify them in the not wish either to claim a right to first or second group of selected officials automatic promotion or to ask the Court or to give them priority in the to substitute its judgment for that of the forthcoming promotions. Commission; on the other hand, the applicants do request the Court to verify whether the Commission observed the rules which it laid down itself and which, Secondly, the Commission points out by virtue of the principle patere legem that the relevant provisions do not quam ipse/ecisti, me binding upon it. provide for the selected candidates to be classified into several groups or for priority to be given to candidates with university degrees; consequently, such In this regard the applicants point out findings cannot be binding on the that the appointing authority did not appointing authority. delegate its power of appointment but a technical task which had to be performed prior to the exercise of that power and which consisted in drawing up a list of Thirdly, the Commission submits that, suitable candidates with all pertinent since the ad hoc Committee's duties information; it therefore had to grant consist only in drawing up a list of promotions only on the basis of full and suitable candidates and not in making comparable information on all the candi- appointments, the Committee cannot dates. retroactively include certain officials on that list. In this connection, it points out that the fact that the names of the The Commission again emphasizes that applicants were added to the original list the absence of findings regarding the by means of an addendum could not applicants' fields of competence could have prejudiced their position because not reduce their chances of eventually the appointing authority considered all moving into Category A since the the names put forward; indeed, one of appointing authority takes its decisions in the officials listed in the addendum in the light in particular of the requirements

Decision

1 By applications lodged at the Court Registry on 10 April 1981, Mr Adam, Mr De Blust, Mr De Windt and M r Godaert, scientific and technical officers in Category B at the Joint Research Centre, Ispra, brought actions for the annulment of the decision notified to them by letter of 9 June 1980 from the Directorate-General for Personnel and Administration by which the ad hoc Committee charged with assessing the ability of Category B officials in the scientific and technical services to perform Category A duties refused to place them on the list of suitable candidates to be drawn up for that purpose.

ADAM v COMMISSION

2 By applications lodged at the Court Registry on 23 July 1982, Mr Adam, Mr De Blust, Mr De Windt and Mr Godaert also brought actions for:

The annulment of the decision contained in the letter of 24 September 1981 by which the Commission adopted the decision taken by the ad hoc Committee on 30 July 1981 to include the applicants on the list of suitable candidates but without defining their fields of competence and without placing them in one of the "priority" groups established for the other officials eligible for the change of category;

The annulment of all promotions from Category B to Category A granted to officials in the scientific and technical services of the Joint Research Centre at Ispra since 10 June 1980.

7 On 17 December 1981, the applicants lodged a complaint against that decision, contending that, since the ad hoc Committee had found them suitable for a change of category, the Committee, or if not the Committee, the Commission, ought to have stated their fields of competence in accordance with the provisions of the Procedural Arrangements and secondly that the principle that all the officials found suitable for a change of category should be treated equally required that the applicants should be included in one of the "priority" groups appearing in the original list published in June 1980. That complaint remained unanswered by the Commission.

T h e a c t i o n s b r o u g h t in C a s e s 80 to 8 3 / 8 1 a g a i n s t t h e d e c i s i o n c o n t a i n e d in t h e l e t t e r of 9 J u n e 1980

8 It should be noted that, after these actions had been brought, the contested decision was withdrawn at the Commission's request and replaced by the ad hoc Committee's decision notified to the applicants on 24 September 1981.

9 These actions have therefore become purposeless and it is no longer necessary to give judgment on them.

io Article 69 (5) of the Rules of Procedure provides that, where a case does not proceed to judgment, costs are in the discretion of the Court.

n Since these actions resulted from errors made by the ad hoc Committee, which the Commission has acknowledged, the Commission must pay the costs of Cases 80 to 83/81.

i6 The Commission must therefore be ordered to pay the costs of Case 183/82.

C a s e s 182, 184 a n d 1 8 5 / 8 2

The claim that the decision contained in the letter of 24 September 1981 should be annulled

i7 In support of this claim the applicants make two submissions which are in essence that:

The appointing authority and the ad hoc Committee infringed Section III (2) of the Procedural Arrangements by failing to state the fields of competence in which the applicants were considered capable of performing Category A duties;

In disregard of the principle of equal treatment the appointing authority and the ad hoc Committee failed to classify the applicants in one of the two "priority" groups forming the original list of suitable candidates.

2i It should be pointed out in the first place that, although the ad hoc Committee has a discretion under the Procedural Arrangements to decide the field of competence into which each candidate for a change of category must be classified, the exercise of that discretion must, according to Section III (2) (e) of the Procedural Arrangements, lead to the definition of one or

ADAM v COMMISSION

more fields of competence for each candidate. It is established that in this instance the ad hoc Committee did not observe those provisions.

22 Secondly, although the Court has consistently held that internal directives or measures of an internal nature such as the Procedural Arrangements laid down by the Commission may not be regarded as rules of law which the Administration is always bound to observe, they nevertheless form rules of practice from which the Administration may not depart without giving the reasons which led it to do so, since otherwise the principle of equality of treatment would be infringed.

23 At the hearing the Commission was unable to state the reason for which it was impossible to determine the applicants' fields of competence, in contrast to its treatment of all the officials on the original list of suitable candidates.

24 Consequently, the submission that the Procedural Arrangements were infringed must be upheld as well founded.

28 Leaving aside the question whether or not the ad hoc Committee and the Commission had to classify candidates into "priority" groups on the original list, the Court is of the view that the Committee, and in any event the Commission, were under a duty to ensure that all the officials considered eligible for a change of category were treated equally.

29 Although it is true that the inclusion, of an official's name on the list of suitable candidates does not automatically give him a right to be promoted to Category A and that in this regard the appointing authority enjoys a wide discretion to decide which of the candidates on the list are to be promoted, that discretion must be exercised in such a way as to ensure that a scrupulous examination of the candidates' merits is carried out in the light of comparable sources of information and of data obtained in conformity with the principle of equality.

30 It is clear from the d o c u m e n t s before the C o u r t that in the applicants' case that r e q u i r e m e n t was not observed. By not placing them in one of the " p r i o r i t y " groups in the original list the Commission has m a d e it impossible for their merits t o be c o m p a r e d with those of the candidates o n the original list in a c c o r d a n c e with the principle of equal treatment. T h e submission alleging a breach of that principle must therefore be accepted as well founded.

3i It is clear from the examination of the t w o submissions o n which the claims for the a n n u l m e n t of the decision contained in the letter of 24 September 1981 are based t h a t the decision must be annulled in so far as the applicants' fields of c o m p e t e n c e and their r a n k i n g in relation to that of the other officials included in the original list of suitable candidates were not stated.

35 Article 69 (2) of the Rules of Procedure provides that the unsuccessful party is to be ordered to pay the costs. Since the defendant has essentially failed in its submissions, it must also be ordered to pay the costs of Cases 182, 184 and 185/82.

On those grounds,

T H E C O U R T (Third Chamber)

hereby:

1. Declares that it is unnecessary to give judgment in Cases 80 to 83/81;

2. Orders Case 183/82 to be removed from the Register;

For the Registrar H. A. Rühi C. K a k o u r i s

Principal Administrator President of the Third Chamber

OPINION OF ADVOCATE GENERAL SIR GORDON SLYNN DELIVERED ON 5 JULY 1984

My Lords, science calling, for scientific or technical qualifications. For such officials, at the time relevant to the present cases, the The provision in Article 45 (2) of the Commission issued in Administrative Staff Regulations that an official may be Notices No 220 of 20 December 1978 promoted from one category to another "Procedures to be implemented prior to only on the basis of a competition does decisions on the transfer from Category not, by virtue of Article 98 (2) of those B to Category A of officials in the regulations, apply to certain officials scientific and technical services" ("the occupying posts in the field of nuclear notice").