C-117/81

In Case 117/81

JEAN-JACQUES GEIST, represented by Marcel Slusny, of t h e Brussels Bar, with an address for service in L u x e m b o u r g at t h e C h a m b e r s of Ernest Arendt, Advocate, C e n t r e Louvigny, 34 B R u e Philippe-II, applicant,

v

COMMISSION OF T H E EUROPEAN COMMUNITIES, represented by its Legal Advisers, J ö r n P i p k o m a n d H e n d r i k V a n Lier, acting as Agents, with an address for service in L u x e m b o u r g at the office of O r e s t e M o n t a k o , a member of its Legal D e p a r t m e n t , Jean M o n n e t Building, Kirchberg, defendant,

GEIST v COMMISSION

APPLICATION for annulment of the Commission decision of 14 July 1980 to the effect that the applicant's candidature for Post N o 120 could not be accepted, of the decision contained in Vacancy Notice N o 120 to reserve the post for officials paid from the operational appropriations and of all the decisions taken following the publication of that notice to fill Post N o 120,

The facts of the case, the course of the Mr Geist was employed in a special field procedure and the conclusions, which seemed to suit him and was submissions and arguments of the parties assigned to the hydraulic studies section may be summarized as follows : of the Joint Nuclear Research Centre at Petten.

I — Facts and written procedure

Mr Geist, a French national and an Following a Council decision dated engineer, was recruited on 1 April 1962 15 June 1965 amending the 1962 second as scientific officer by the Gommission of research programme the hydraulic the EAEC and on 1 January 1966 was studies section at Petten was abolished; promoted to Grade A 5 after a period of the group directed by the applicant was secondment in the USA. disbanded on 24 July 1967.

JUDGMENT OF 6. 7. 1983 — CASE 117/81

The Directorate of the Joint Nuclear Research Centre attempted several times It seems that the solutions in that respect to find a solution. Thus for example in proposed by the Commission especially 1975 it invited Mr Geist to seek a post of in 1979 could not be accepted. scientific attache with the Community's delegation in Washington. That post was In those circumstances Mr Geist applied however given to another official. for Post No 120 referred to in a vacancy notice published by the Commission of the European Communities in the Staff On 22 August 1975 the Council of Courier dated 13 June 1980 and worded Ministers confirmed that the as follows: development of reactor families should be left to the exclusive initiative of the Member States (Official Journal, L 231 "Post No 120 — pursuant to the system of 2. 9. 1975). of rotation adopted for delegations and information offices, the Directorate- General I, External Relations, seeks for the delegation in Washington: an official Faced with the impossibility of of Grade A 4 to Grade A 7, First integrating Mr Geist into the new Secretary responsible for Scientific and programme of research at Petten as Technical Matters. Wide experience in defined by the Council, the Director- the field of scientific and technical General of the Joint Research Centre problems and in particular in the field of requested him to choose between two energy is required . . . applications are vacant posts at the Joint Nuclear reserved to officials of the Commission Research Centre at Ispra in Italy. paid out of operational appropriations."

notified by letter dated 14 July 1980 and 2. Are there other decisions of the same on the other hand, as far as necessary, kind as that of 23 July 1975? If so, the withdrawal of the decision to transfer what are their characteristics? When or to promote another official and finally they concern staff management are the amendment of the terms of Vacancy they brought to the attention of the Notice No 120 with the object of staff? making the vacancy also accessible to officials paid from appropriations in the research and investment budget. 3. Does the decision of 23 July 1975. concern the scientific and technical staff paid from research appro- When on 14 February 1981 he noted priations? What are the reasons that his complaint had been rejected by leading the Commission to give an implication, Mr Geist brought the affirmative or negative answer to present action which was filed at the that question? Court Registry on 14 May 1981.

4. What are the basic criteria for staff management in the case of scientific Upon hearing the report of the Judge- and technical staff subject to the Rapporteur and the views of the provisions of Title VIII of the Staff Advocate General the Court (Second Regulations in view of the uncertain Chamber), pursuant to Article 22 of the or temporary nature of research Protocol on the Statute of the Court of programmes? Can the Commission Justice of the EAEC and Article 45 of provide a brief analysis of the the Rules of Procedure, decided to management policy which it has proceed to measures of inquiry. pursued, together with statistics if possible?

the research'programmes adopted by II — C o n c l u s i o n s of t h e p a r t i e s the Council? The applicant claims that the Court 6. Why did the Commission in 1975 should: encourage the applicant to make an application for a post of scientific 1. Declare that the decision communi- attache with the delegation in cated to the applicant by letter dated Washington when according to its 14 July 1980 stating that his own statements 'external offices do application for Post No 120 could not not have officials covered by Title be accepted is null and void; VIII of the Staff Regulations' (defence, p. 16) and 'none of the 2. Declare that the decision of the tasks performed by any of the opposite party, communicated in external offices comes under the Vacancy Notice No 120, to reserve research programmes' defined by the the post in question to officials paid Council (rejoinder, p. 10)? from operational appropriations is null and void? 7. What are the actual reasons for the decision taken with regard to the 3. Declare that all decisions taken after applicant? Are they exclusively the publication of that vacancy notice related to the terms of the vacancy with a view to filling Post No 120 are notice? Did the Commission null and void whether they concern consider the comparative merits of appointment, promotion, transfer or the applicants? any other method of assignment;

4. Order the opposite party to pay the 8. Has the Commission in other costs. vacancy notices decided to reserve the post offered to scientific and technical officials paid from oper- The defendant contends that the Court ational appropriations? should: 1. Dismiss the action as unfounded; 9. The Commission is requested to forward the document mentioned at 2. Order the applicant to pay the costs; the bottom of p. 79 of Annex III to its defence, namely document C O M (75) p.v. 349, second part." subject to all necessary reserves.

the Commission decision of 5 October that if for a compelling reason it is 1977 adopted pursuant to Article 2 of certain that the contested decision would the Staff Regulations (Staff Courier of have been the same even had there been 17 November 1977). no such defect in form as alleged the applicant has no interest in claiming that there is such a defect. In the applicant's view this submission cannot be dismissed on the ground that on the one hand he has no advantage in The defendant acknowledges that those the annulment of a decision by reason of judgments were given in different a formal defect when its substance can circumstances from those of this case no doubt be confirmed or on the other (omission by the selection board of the hand that the alleged defect cannot have candidate's name in an internal re- affected him adversely. Such an cruitment competition in Case 9/76 argument would lead to a systematic Morello and the absence of a member of breach of the terms of the Staff Regu- the disciplinary board from one of the lations in so far as it is open to every sittings held by the board in Case 124/75 institution when challenged to re-issue Perinciolo). It nevertheless considers that the measure annulled and to ensure that the principle which they illustrate should the omission or irregularity established is be transposed to this case in so far as the made good. alleged lack of authority cannot alter the fact that the applicant is disqualified from applying since he is an official of the scientific and technical staff paid The applicant claims moreover that he from appropriations in the research and was entitled to be informed of the investment budget. appointment of the successful applicant and that is was not until the documents annexed to the defence were lodged that he was in fact in a position to take Second submission cognizance of the decision of the appointing authority dated 18 July 1980 to appoint François Lafontaine. The In the applicant's view, there has been an contested letter sent to him on 14. July infringement of the provisions of Article 1980 thus contains no useful infor- 25 of the Staff Regulations to the effect mation. that: "Any decision adversely affecting an official shall state the grounds on which it is based", since the letter of 14 The Commission acknowledges that the July 1980 is confined to mentioning the contested letter was not signed by the contested decision without stating the appointing authority. That fact, which grounds on which it is based. cannot have affected the applicant adversely, is not however such as to To the extent to which his application justify annulment of the measure on the was considered unacceptable on grounds ground of a formal defect. connected with the actual wording of the vacancy notice the applicant considers that he was entitled to know the basis of It may be seen from the judgments of the the conditions required for filling Post Court in Case 124/75 Perinciolo v No 120 in so far as that basis seems to Council [1976] ECR 1953 and Case 9/76 follow from the Commission decision Morello v Commission [1976] ECR 1415 dated 23 July 1975 on the purpose and

It follows inter alia from the judgments in Joined Cases 33 and 75/79 Kuhner v A statement of the general reasons for a Commission [1980] ECR 1677, Case decision to reject an application on the 188/73 Grassi v Council [1974] ECR one hand allows the unsuccessful 1099 and in particular Case 101/77 applicant to act with knowledge of the Ganzini v Commission [1978] ECR 915 facts and on the other prevents the that the appointing authority is not administration from persisting in a required to state the reasons for which it course likely to affect the successful considered another candidate more applicant adversely. suitable for the proposed duties than the official not selected "since the recitals of such a statement of reasons might be In the applicant's opinion the failure to prejudicial to the candidate". state reasons cannot be justified by the defendant's concern not to prejudice the applicant in so far as the rejection of the In citing that case-law the defendant's latter's application for Post No 120 purpose is to show that, even if the is not the result of a consideration of applicant had not been disqualified from the comparative merits of all the applying and if the comparative merits of competitors. all the applicants had been considered it would have been required to state reasons for its decision. The Commission emphasizes that the submission of a formal defect relied on by Mr Morello in the aforesaid Case Alternatively, in case the rejection of his 9/76 and rejected by the Court related candidature is based on the fact he is an precisely to a failure to state the grounds official of the scientific and technical on which a decision to refuse admission staff paid from appropriations in the to an internal competition was based. research and investment budget, the applicant makes the following submissions: In the Commission's opinion sufficient reasons were given in the contested letter since the applicant could not be unaware that Post No 120, as shown in the Third submission vacancy notice, was reserved to officials paid from operational appropriations. When he was informed that his The applicant alleges that the vacancy application was rejected, the applicant notice on the basis of which the thus necessarily knew the reasons. contested decision was taken is vitiated

by misuse of power. In reserving the nuclear research programmes is vacancy to officials paid from the oper­ compensated for by the advantages" set ational appropriations the vacancy notice out in Title VIII of the Staff Regulations discriminates between officials of the which are provisions outside the normal scientific and technical staff to the law. That is the case with Articles 97 to detriment of officials paid from research 100 which provide respectively for the appropriations. There is no objective award of an additional advance in step in necessity for such discrimination. recognition of exceptional merit, a change in the original classification on completion of the period of probation, the award of a bonus for exceptional service and the grant of special The Commission observes that the allowances for arduous working distinction between officials paid from conditions. operational appropriations and those paid from research appropriations, far from being arbitrary or subjective, is required by provisions relating to the budget and the Staff Regulations, the It is apparent from paragraph 19 of the purpose of which in no way adversely judgment in the aforesaid case of Jănsch affects the principle of equality of that the distinction thus made by the treatment between officials in Staff Regulations is based on "objective comparable situations. In that respect the criteria so that there can be no question defendant reminds the Court that, of all of a breach . . . of the principle of officials belonging to the scientific and equality between officials." technical staff, those paid from appro­ priations in the research and investment budget are in a special position governed in particular by Article 174 (2) of the The defendant states further that it is EAEC Treaty, Chapter 33 of the bound to carry out the research General Budget of the Communities, the programmes as defined by the Council; first paragraph of Article 92 and all the special allowances are attributed to such provisions of Title VIII of the Staff work by the budgetary rules themselves Regulations. Those officials contribute to (in particular Articles 88 to 95 of the achieving research objects as specially Financial Regulation of 21. 12. 1977, defined by the Council whereas officials Official Journal, L 356, as most recently paid from operational appropriations amended by the Financial Regulation of perform tasks which are not so differen­ 16. 12. 1980, Official Journal, L 345) tiated. That distinction is due both to and that it cannot therefore, without budgetary constraints and requirements making itself liable, assign an official associated with the organization of paid from research appropriations to research in the field of nuclear energy. tasks not serving one of the research programmes determined by the Council.

accepted as proving the case for Before considering the substance of the annulment. fourth submission the Commission contends that the organization, operation and breakdown of the various working units are matters within the discretion of the Community institutions. Fourth submission The defendant emphasizes that whether officials belonging to directorates other than those with genuinely external functions may be assigned to external The applicant pleads that there is a departments depends "on the special breach of the rule patere legem quam ipse needs of the countries concerned and the fecisti inasmuch as the exclusion in the economic circumstances at the time". vacancy notice of officials paid from research appropriations contradicts the Commission decision dated 23 July 1975 with regard to the operation of the As regards the decision of 23 July 1975 rotation system (COM(75) PV 349). on the operation of the rotation system it should be borne in mind that apart from exceptional cases officials working in external offices are reassigned to the The system of rotation of officials was directorates-general from which the adopted to prevent the ossification of applicants appointed to replace them departments. The decision of 23 July come (Point II (4.1) of the decision) and 1975 which excludes all discrimination that as part of that general movement between the various scientific categories, officials are assigned together with their provides that officials of directorates- budgetary posts (Point III (1.2)). general other than those with genuinely external functions, when assigned to external departments, are to be posted there together with their budgetary post. The Court has recognized the lawfulness of the system of reassignment of officials together with their posts both in general If it were to be shown that in external (Case 60/80 Kindermann v Commission departments there were no officials paid [1981] ECR 1329) and as part of the from research appropriations that would rotation procedures established by the prove that the defendant has appointed Commission (Joined Cases 161 and none since 23 July 1975, when it set up 162/80 Carbognani and Coda Zabetta the rotation system described above. The [1981] ECR 543). Commission cannot therefore justify discrimination between officials in 1980 by a series of other previous cases of discrimination. The defendant emphasizes that although the rotation system is indeed intended to facilitate the mobility of officials and to prevent a certain ossification of the staff Finally the applicant observes that quite a of external departments, it cannot result number of officials paid from research in doing violence to the specific appropriations do not perform any character under the budget of the strictly scientific duties. There is research appropriations by allowing an therefore no reason to exclude them official paid from such appropriations to from external departments. be assigned to a post which does not

Hence in the Commission's view there is The applicant emphasizes that in Annex no contradiction in thus restricting access III to its defence the Commission to posts in external departments even produces the draft minutes of the 349th though the system of rotation provides meeting of the Commission held on for the possibility of transferring officials 23 July 1975 relating to the principles together with their posts. and application of the rotation system (COM(75) PV 349). In the applicant's opinion the wording adopted probably in Concluding its defence, the Commission the form of a regulation or decision states that even if the applicant had been disregards the terms of Article 110 in so able to put himself forward as a far as on the one hand the decision candidate and the comparative merits of adopted constitutes a general provision the candidates had been considered which was not published or brought to together with his own, the successful general notice and on the other hand candidate would have been the same, was adopted without taking into account namely Mr Lafontaine. the opinion of the Staff Committee or the Staff Regulations Committee.

The defendant places before the Court In the Commission's view that is a fresh the personal file of Mr Lafontaine, whose exemplary career suffices to issue which must be rejected on the basis establish that he was the best applicant of Article 42 (2) of the Rules of for Post No 120. Procedure of the Court. The Commission is nevertheless minded to make the following two observations:

In that respect the applicant in his reply states that the Commission cannot claim On the one hand in so far as the to have considered the comparative submission clearly, though by merits of Mr Lafontaine with his own implication, seeks the annulment of the since on the defendant's own admission Commission decision of 23 July 1975, his application was rejected on the the applicant has no interest in making it ground that he was disqualified from since the vacant Post No 120 owes its

raison d'être only to the system of decisions by a regulated system of rotation. transfers more in keeping with the requirements of justice and foreseeability for the officials concerned." On the other hand, although it is true that the decision of 23 July 1975 was not published and was not the subject of The rotation system, which applies only consultation as provided in Article 110 of to Commission officials working in the Staff Regulations, breach of that external offices and press and infor- provision would be established only if mation offices, allows them mobility of the decision in question were a general assignment whilst at the same time provisions within the meaning of Article guaranteeing them a career similar to 110 of the Staff Regulations. The that of officials at central offices. establishment of the system of rotation however is not a measure of a general nature but, as the applicant seems to The Commission refers to the aforesaid have recognized, within the discretion of judgment of 24 February 1981 and that the Commission in organizing in the best of 17 December 1981 in Case 791/79 possible way the interests of its various Démont v Commission [1981] ECR 3105 offices and the operation, breakdown and states that in view of the nature of and structure of the various units. the decision of 23 July 1975 only the resulting individual decisions affect the officials concerned. The submission alleging the infringement of Article 110 of the Staff Regulations cannot therefore be upheld. The Commission recalls that in the aforesaid judgment in the Démont case the Court held with regard to the decision of 23 July 1975 that: "Those provisions, which were adopted i v — Written observations moreover outside the procedure laid l o d g e d in a n s w e r to t h e down in Article 110 of the Staff Regu- q u e s t i o n s p u t by t h e C o u r t lations, derive from the general power vested in every institution to provide for its own internal organization in the interests of proper efficiency" (para- The first question asked the defendant to graph 8). state the legal nature of the decision of 23 July 1975. In the Commission's view the decision of 23 July 1975 is to be distinguished from The Commission states that it is an the general provisions for giving effect to internal measure which according to the the Staff Regulations referred to in aforesaid judgment of the Court of Article 110 thereof in so far as the 24 February 1981 in Joined Cases 161 rotation system established by the and 162/80 Carbognani and Coda aforesaid decision concerns mainly Zabetta at paragraph 25 "cannot be said officials working only for the to have introduced any new rules of Commission whereas Article 110 refers substance concerning the assignment of to provisions applicable to all officials, officials to external offices, its effect whatever the institution to which they being to replace a system of ad hoc belong.

As illustration the Commission produces a memorandum dated 7 June 1982 from The Commission refers to point 10 of its Mr Hannaert, Head of the Personnel defence and point 5 of the rejoinder and and Administration Division at Ispra, states that it is a normal rule to exclude addressed to Mr Pipkorn, a member of scientific and technical officials paid the Commission's Legal Department, in from research appropriations from the respect of the questions put by the Court rotation system in so far as such staff is in these proceedings. In the recruited and assigned on the basis of the memorandum Mr Hannaert states that requirements of the budget and Staff since the Joint Research Centre was set Regulations relevant to the research up a number of research programmes .sector, and'more particularly the various have been abandoned; the research research programmes for the execution workers concerned have been transferred of which it is responsible. to the Centre's new programmes either

JUDGMENT OF 6. 7. 1983 — CASE 117/81

GEIST v COMMISSION

other than those set out above. The defence and requested by the Court, was Commission did not consider the produced by the Commission. comparative merits of the applicant and the successful candidate.

In answer to the eighth question the V — Oral procedure Commission states that pursuant to Article 92 of the Staff Regulations defining the scope, ratione personae, of The applicant, represented by Mr Slusny, Title VIII, only officials paid from advocate, and the Commission of the research appropriations are members of European Communities, represented by the technical staff. Officials paid from J. Pipkorn, acting as Agent, and operational appropriations belong either H. Henrichs, a technical expert, to the administrative or the language presented oral argument at the sitting on staff (Article 5 of the Staff Regulations). 28 April 1983.

Document COM(75) PV 349, second The Advocate General delivered his part, referred to in Annex III to the opinion at the sitting on 2 June 1983.

Decision

i. By application lodged at the Court Registry on 14 May 1981 Mr Geist,.a scientific official assigned to the Joint Research Centre at Ispra, brought an action for the annulment of the decision notified to him on 14 July 1980 to the effect that his application for Post N o 120 as First Secretary responsible for Scientific and Technical Matters with the Communities' delegation in Washington could not be accepted; of the decision contained in Vacancy Notice No 120 to reserve the post to officials paid from operational appro- priations and of all decisions taken pursuant to the publication of the vacancy notice for the purpose of filling Post N o 120.

s In a memorandum dated 14 July 1980 Mr Geist was informed that his application had been rejected. On 13 October 1980 he made a complaint under Article 90 (2) of the Staff Regulations claiming the withdrawal of the decision notified by letter of 14 July 1980, the withdrawal, so far as necessary, of the decision to transfer or promote another official and finally the amendment of the terms of Vacancy Notice No 120 with the object of making the vacancy available also to officials paid from appropriations in the research and investment budget. When by implication the administration rejected his complaint Mr Geist brought the present action.

GEIST v COMMISSION

T h e first t w o submissions

6 In support of his application the applicant first of all makes two submissions of patent defects in the decision notified on 14 July 1980 rejecting his application. He claims on the one hand that the official who signed the memorandum of 14 July 1980 had no power to do so and on the other that the grounds on which the decision was based were not stated.

7 The Court finds that even assuming that the contested decision is vitiated by the two breaches of procedural requirements alleged, an applicant has no legitimate interest in securing the annulment of a decision for a formal defect where the administration has no discretion and is bound to act is it did. In such a case the annulment of the contested decision could only give rise to another decision substantially identical to the decision annulled.

s The Commission alleges that such is the case here. The vacancy notice required it to exclude Mr Geisťs application since he was not paid from operational appropriations. The validity of that argument ultimately depends on whether Vacancy Notice N o 120 could lawfully prescribe that the post in issue could be assigned only to an official paid from the operational appro­ priations. In those circumstances it is appropriate to reserve judgment on the first two submissions and to consider the other submissions in the application in which Mr Geist challenges the legality of Vacancy Notice N o 120 inasmuch as it lays down the rule that only officials.paid fronroperational appropriations may apply for the post at issue.

1 3 It follows from the foregoing that in the absence at that time of any mechanism enabling the research budget to be compensated the Commission could not assign an official paid from research appropriations together with his budgetary post to the post of First Secretary in Washington. Mr Geist has therefore no ground for maintaining that in reserving that post to officials paid from operational appropriations Vacancy Notice N o 120 was in breach of the decision of 23 July 1975.

u In the second place the applicant maintains that in excluding officials paid from research appropriations Vacancy Notice N o 120 discriminated without any objective justification against officials of the scientific and technical staff.

GEIST v COMMISSION

is It must be remembered in that respect that the distinction between officials of the scientific or technical staff paid from appropriations in the research and investment budget and officials of the administrative or language staff paid from operational appropriations follows from the very provisions of Title VIII of the Staff Regulations which introduces various differences of treatment between those two categories of staff in consideration of the special features of their duties.

i6 It follows from the foregoing that when Vacancy Notice N o 120 established an additional difference between those categories it was justified by the need to apply the decision of 23 July 1975 in accordance with the decisions taken by the Council in relation to research and with the budgetary rules on allocation of appropriations. The applicant has therefore no ground for maintaining that Vacancy Notice N o 120 unlawfully discriminated between officials of the Commission.

Costs

2i Pursuant to Article 69 (2) of the Rules of Procedure the unsuccessful party is to be ordered to pay the costs.

22 The applicant has failed in his submissions.

23 However, pursuant to Article 70 of the Rules of Procedure, in proceedings brought by officials of the Communities, the institutions are to bear their own costs.

On those grounds,

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

H. A. Rühi U. Everling Principal Administrator President of the Third Chamber