C-252/81

J U D G M E N T OF T H E COURT (SECOND CHAMBER) 17 M A R C H 1983 »

Margherita Hebrant, née Macevičius, v European Parliament

(Official — P r o m o t i o n )

Case 252/81

Officials —Applications to the Court — Interest —Application for the annulment of an appointment brought by an official after refusing to take part in the procedure leading to the appointment — Application inadmissible — Conditions (Staff Regulations of Officials, Arts. 90 and 91)

Where an official has voluntarily decided appointment, made following the normal not to apply for a post advertised in a procedure, of an official who fulfils the notice of vacancy and has thus refused to requirements laid down in the notice of take part in the appointment procedure, vacancy. it is not open to him to challenge the

JUDGMENT OF 17. 3. 1983 — CASE 252/81

A P P L I C A T I O N for t h e a n n u l m e n t of the decision of the E u r o p e a n P a r ­ liament of 24 O c t o b e r 1980, published on 25 N o v e m b e r 1980, in so far as it relates to the a p p o i n t m e n t of A. Reid to the only A 3 post vacant, a n d in the alternative the a p p o i n t m e n t of the applicant t o t h a t post,

T H E C O U R T (Second C h a m b e r )

c o m p o s e d of: P. P e s c a t o r e , President of C h a m b e r , O . D u e a n d K. Bahl- mann, Judges,

Advocate G e n e r a l : G. F. M a n c i n i Registrar: H . A. R ü h i , Principal Administrator

gives the following

On 24 March 1976 the applicant brought Grade A 3 for the budgetary year 1980 a second action seeking principally the and did not mention the Cataloguing annulment of her periodic report for the and Library Administration Division. period 1973 to 1974. The disputed The proposal, was accepted and later report, dated 19 March 1975, which adopted by the Secretary-General and by according to the applicant contained the Parliament's Committee on Budgets. assessments not consistent with those in earlier reports (that is to say, reports made before Mr Taylor became Director-General), was described by the In a letter to the President of the applicant as constituting "serious . . . Parliament dated 6 November 1979 abuse of powers by a director-general in and registered on 12 November 1979, the performance of his administrative the applicant complained that the duties". However, that action too was Cataloguing and Library Administration dismissed by a judgment of the Court Division had not been considered with (First Chamber) of 12 May 1977 (Case regard to the requests for conversion of 31/76 Macevičius v Parliament [1977] posts. According to the applicant, this ECR 883). was an example of a systematic administrative policy pursued by Mr Taylor aimed at up-grading the post of the head of the Reference, Information Certain structural changes were to be and Documentation Division to the carried out in 1978 and 1979 in the detriment of the Cataloguing and Cataloguing and Library Administration Library Administration Division. Division of the library of the European Parliament, of which the applicant is in charge,, and in the Reference, Infor­ mation and Documentation Division of On 14 July 1980 Vacancy Notice No which Mr Reid, also a Principal 2677 was published, advertising a post of Administrator in Grade A 4, is in charge. head of division (Grade A 3), a re- Various preparatory documents relating graded post to be included in the to the budget and the organization of detailed list of posts for 1980 for the the European Parliament, originating Directorate of the Reference, Infor­ from the Secretary-General and from the mation and Documentation Division. On Committee on Budgets in particular, 11 June 1980 the applicant brought an suggested a conversion of post for those action seeking principally the annulment two heads of section from Grade A 5/4 of the nomination of Mr Reid alone for to Grade A 3. promotion to Grade A 3 and, in the alternative, that she and M r Reid should both be promoted to Grade A 3. However, by an order made on 18 In a memorandum dated 5 September November 1980 the Court (Third 1979 addressed to the Secretary-General Chamber) dismissed the action as of the Parliament and relating to the inadmissible (Case 141/80 [1980] ECR adoption of the 1980 budget, Mr Taylor, 3509). Director-General for Research and Documentation, referring to the budgetary limits fixed by Parliament in a resolution dated 10 May 1979, proposed The applicant did not submit an only that the post of Head of the application for the vacancy mentioned Reference, Information and Documen­ above. After examination of the tation Division should be converted to applications received, five in number, the

appointing authority appointed Mr Reid Rule on costs in accordance with the as Head of Division in Grade A 3 by a relevant provisions of law." decision of 24 October 1980 published on 25 November 1980. On 20 February In its rejoinder the defendant added that 1981 the applicant submitted a complaint "as for costs, however," the Court against the decision pursuant to Article should "order the applicant to pay them 90 (2) of the Staff Regulations. in full." Following the implied rejection of that complaint she brought this action on 16 September 1981, which was registered at the Court on the same day. Ill — Summary of the sub- m i s s i o n s a n d a r g u m e n t s of the parties On hearing the report of the Judge- Rapporteur and the views of the Advocate General, the Court (Second A — On the facts Chamber) decided to open the oral proceedings without any preparatory (a) The applicant believes that the inquiry. criticisms which she made of the changes undertaken by Mr Taylor were the reason for the permanent state of tension II — C o n c l u s i o n s of t h e p a r t i e s between herself and Mr Taylor and for her periodic reports being less favourable than before. She maintains that she has The applicant claimed that the Court been the subject of "various machi- should: nations" which, after the dismissal of her three earlier actions, led to the creation of "an artificial but effective barrier to " 1 . Take formal note of the lodging of the progress of her career". this application and declare it admissible; The appointment of Mr Reid was thus the culmination of a process begun 2. Declare it well founded and several years earlier. consequently annul the decision of 24 October 1980, published on 25 The defendant disputes that interpre- November 1980, in so far as it tation of the facts and considers that, on appointed Mr Reid to the sole A 3 the contrary, the applicant's systematic post vacant; opposition — which she invariably attributed to the interests of the service 3. Alternatively, appoint the applicant — led to a negative and non-compliant to that post; attitude "which resulted in personal Order the Parliament to pay the disappointments and which had a costs." detrimental effect on her efficiency in the department."

The Parliament concludes that the post vacant", the defendant considers insinuations and accusations directed that the two grounds put forward by the against Mr Taylor were as ill-founded as applicant — that is to say, on the one those described above. hand an intellectual one connected with her opposition to the development of such a division and on the other hand In her reply the applicant denies having the fact that the requirements as to set out the facts in a subjective manner. proficiency and qualifications set out in She admits that she has expressed herself the Vacancy Notice were based on Mr in forceful terms in the past and that Reid's curriculum vitae — should be there have been comments concerning rejected. her conduct at work, but that is due to the fact "that she is personally not well- liked for the reasons which she has The first of those two grounds, which is given." evidence of the applicant's enduring opposition to a reform which was decided upon years ago, cannot be She also emphasizes that it is not correct reconciled with the obligation to act to maintain that she is still opposed to solely in the interests of the institution. the reorganization decided upon in 1974. As for the second, the Parliament denies She accepts it as a fact; however, that that the requirements laid down in the does not mean that the arguments which Vacancy Notice were based on Mr she put forward are automatically Reid's curriculum vitae, and considers invalid, and therefore all she has done is that in deciding not to apply the to explain her previous position. On the applicant continued to show the same other hand, she believes "that by reason attitude of sterile opposition, which is of her opposition at the time she reprehensible from the point of view of has subsequently been discriminated both the institution and its departments. against".

whether she has an interest in bringing liament maintains that by reason of both an action. her training and her experience the applicant could have aspired to the vacant post in question. Furthermore, she maintains that the disputed measure does adversely affect her inasmuch as it allows a third party to The defendant adds that as far as benefit from advantages which she does admissibility is concerned officials must not enjoy, and that it may be considered abide by the rules. Since officials have a to be tainted by illegality or nullity; from duty to cooperate with regard to the that point of view she has an argument procedure for filling vacant posts, the for the admissibility of her application. applicant cannot complain that her interests were not protected by the The applicant then challenges the Par- appointing authority when she had liament's argument that her refusal to deprived it of the opportunity of doing apply for the vacancy in question was so within the framework of the proper evidence of her continuing opposition to procedure. the changes decided upon by the Par- liament in 1974. She considers, on the contrary, that if she had done so when she did not possess the required C — On the merits experience, she would have been criticized for such "presumption", and that presumption would, moreover, have The applicant relies on three submissions. been interpreted "as outright intellectual dishonesty". (a) First submission: "Breach of the trust which an official may legitimately The applicant is of the view that even have in the appointing authority as supposing she had brought an action well as of the general principles of after having submitted an application for equity" the vacant post, the European Parliament would none the less have answered her to the effect that "the interests of the service being paramount in decisions on The applicant points out that the Staff appointments, it was obvious that, given Regulations, and in particular Articles 11 the opposition shown earlier to the and 21 thereof, require an official, in change of which the disputed measure is carrying out his duties, to bear in mind merely a consequence, the applicant solely the interests of the Communities could evidently not carry out the relevant and to assist and advise his superiors, duties". giving them his opinion in writing if necessary. Finally, the applicant is of the opinion that the attitude of the defendant Those principles together should "be towards her is, at the very least, lacking placed in parallel with the confidence in balance. The Parliament maintains on which an official is entitled to have in his the one hand that the applicant's attitude superiors." is sterile and groundless — the result of her difficult character and the fact that she is full of her own merits — while on In that respect, it would be contrary to the other hand, arguing for the equity for an official fulfilling a duty in inadmissibility of the action, the Par- the interests of the service by explaining,

As for the general principle of equity Yet according to the applicant it was as a which is implied in that of legitimate result of the written communications in trust, it presupposes that "the authority which she had expressed, in her pro­ in which the official is to have trust will fessional capacity, opposition to the not react unfairly with regard to the reforms planned that she had been " o n person concerned." the one hand the subject of unfavourable periodic reports, and on the other hand deprived of promotion on the basis of (b) Second submission: "Infringement of the Vacancy Notice", whereas the Article 5 (3) of the Staff Regulations applicant might have expected that her of Officials" courage would, on the contrary, increase the confidence which one could have in her regarding the way in which she carried out her duties. According to the applicant, the principle stated in Article 5 (3) of the Staff Regu­ lations, namely that identical conditions of recruitment and service career shall The defendant entirely agrees with the apply to all officials belonging to the applicant's argument that " a n official same category or the same service, has who expressed an opinion to his hier­ been blantantly ignored as far as she is archical superior relating to instructions concerned. which appear to him to be irregular should not be penalized for doing so." However, it disputes the conclusion She points out that she has had no drawn by the applicant that she has been promotion since 1 January 1973, whereas penalized for expressing her opinion, and Mr Reid's career over the same period refers the Court to the description of the "could well be described as 'meteoric' " . facts and antecedents of the case. In this According to her, it would be difficult context there is no room for discussion not to see a "flagrant difference" of the controversial principle of the between the stagnation of her career and legitimate trust of officials in the the rapid development of that of Mr appointing authority. Reid, "which could only derive from the facts already stated: on the one hand the applicant's courageous stance and on the As far as the alleged breach of general other hand promotion due to the success principles of equity is concerned, the of the ideas for reorganizing the division defendant considers itself unable to reply directed by Mr Taylor". to a submission upon which the applicant has· declined to elaborate, and therefore proposes to dismiss it out of hand. The defendant considers that "the applicant's complaints are entirely groundless" because she was not the The applicant persists in maintaining that victim of any discrimination, especially as it was only from the time that she first what she refers to as her "courageous showed her opposition to Mr Taylor's attitude" — which is in fact an obstinate

refusal to recognize first the desirability munities cannot be regarded as and subsequently the reality of a change constituting a valid argument for — "has done nothing but create needless dismissing the applicant's proposition, problems for her superiors". especially since the Parliament did not provide any other explanation for the disparity between the career of Mr Reid and that of the applicant. Furthermore, the Parliament is of the view that the sole effect of Article 5 (3) is to stipulate equal treatment for all officials from their entry into the service (c) Third submission: "Infringement of of the Communities, and it cannot Article 7 (1) of the Staff Regulations therefore be interpreted as meaning that of Officials and of Article 45 (1) officials of the same grade should have thereof" identical progress in their careers. Appointments and promotions should be made only as required by the interests of the service. It follows from the description of the facts that the According to the applicant, it appears administration of the Parliament acted from the preparatory documents for the exclusively in the interest of the service requests submitted to the budget as it appeared from the circumstances authority that the interests of the service and in so doing it was merely complying required that the Library Division, more with its obligations under the Staff Regu- properly under the charge of the lations, and therefore the second sub- applicant, should be managed by an mission should also be rejected. official of Grade A 3. It is clear that that requirement does not cease to exist "merely because the only A 3 post which appears ultimately to have been requested from the budget authority is to The applicant remarks that on the one be allocated to the Reference, Documen- hand the Parliament does not deny that tation and Information Division". there are differences between the careers of the two officials in question without giving any explanation for the difference, while on the other hand it has retreated behind the concept of the interests of the It is true that the appointing authority is service. Such an attitude demonstrates the sole judge of the interests of the that the applicant was correct in alleging, service in the allocation of posts, but it is as far as the admissibility of the action is necessary for it to take a reasoned concerned, that even had she applied for decision and while the Court is not judge the vacancy in question, she would have of the interests of the service, it is the been told "that the interests of the judge "of the manner in which such a service required that Mr Reid should be decision was taken". In the circum- appointed in her stead". stances the applicant, relying in addition on the differences between the careers of Mr Reid and herself, maintains that the Furthermore, the simple statement by the conversion of post from A 4 to A 3 Parliament that Article 5 (3) of the Staff which is in dispute in the present action Regulations merely stipulates equal is contrary to the rules contained in the treatment for all officials from their Staff Regulations. On this point the entry into the service of the Com- applicant refers to the judgment given by

According to the Parliament, the lessons of the Dautzenberg judgment are not According to the applicant, the position applicable to the present case. In that as set out by the defendant indicates case the administration obtained only that the Director-General, Mr Taylor, one of the three A 3 posts which it had changed "his view of the interests of the requested, but the Committee on service during the course of planning, Budgets left the choice of the remaining restricting his consideration to the post to the appointing authority. In this division to which Mr Reid belonged case, however, the Commitee on Budgets because the Committee on Budgets had made it clearly understood that it was already insisted on the need for not disposed to accept the creation of strengthening the documentation depart­ two A 3 posts, while at the same time ment". Consequently the allocation of insisting on the need for reinforcement the re-grading of the A 4 post to A 3 to in the documentation department. It was Mr Reid's department was not carried in the light of that that the Director- out in due form, and it is that absence of General had put forward the fully regularity which the Court may condemn reasoned proposal to develop the without its being necessary to rule on the documentation department. The concept of the interests of the service, defendant points out that, contrary to which the Court is not competent to do. the position in other Community institutions, the budget authority of the Parliament constitutes a part of the appointing authority for the General Secretariat. Finally, the applicant repeats that the problem raised by the present case is exactly the same as that of the Daut­ zenberg case. The Parliament confined itself to the assumption that the change Consequently, not only had the General in the Director-General's proposal had Secretariat acted in full conformity with taken the interests of the service into

Decision

1 By an application l o d g e d at the C o u r t Registry on 16 September 1981 M r s M a r g h e r i t a H e b r a n t , née Macevičius, an official in G r a d e A 4 of the E u r o p e a n P a r l i a m e n t , b r o u g h t an action for the a n n u l m e n t of the decision of the P a r l i a m e n t of 24 O c t o b e r 1980 by which M r Reid was appointed to the vacant A 3 post in the library and, in the alternative, for the a p p o i n t m e n t of the applicant t o t h a t post.

2 T h e applicant is in charge of t h e C a t a l o g u i n g and Library Administration Division of the library of the E u r o p e a n P a r l i a m e n t which also includes the Reference, I n f o r m a t i o n a n d D o c u m e n t a t i o n Division u n d e r the charge of M r Reid. W h e n alterations t o the s t r u c t u r e of those t w o d e p a r t m e n t s w e r e being p l a n n e d for 1978 a n d 1979, the Secretary-General of the E u r o p e a n

MACEVIČIUS v PARLIAMENT

Parliament requested conversion of posts from Grade A 5/4 to Grade A 3 for the two heads of division mentioned above, in preparatory documents relating to the budget and organization of the Parliament.

3 However, referring to the budgetary limits fixed by the European Parliament in a resolution of 10 May 1979, the Director-General for Research and Documentation, who is responsible for the library, finally proposed that only the post of Head of the Reference, Information and Documentation Division be converted into a Grade A 3 post.

detrimental to her because it was tainted by procedural irregularities. In essence these were that Mr Reid was the only candidate for the A 3 post in dispute, and that the Vacancy Notice contained requirements based on Mr Reid's curriculum vitae to such an extent that she did not have the required qualifications, a fact which, moreover, justified her failure to submit an application. She further maintains that even had she brought an action after having submitted an application, the Parliament would have retreated behind the notion of the interests of the service in order to reject it.

s It is appropriate to recall in the first place that in the Order of 18 November 1980 the President of the Third Chamber declared that Vacancy Notice No 2677 could not now be the subject of an action because it had not been the subject of a previous complaint on the part of the applicant. Consequently, the applicant's main argument, by which she maintains that the requirements imposed by that notice deprived her of the appointment to the disputed Grade A 3 post, is no longer open to her.

9 In addition it is established that from the date of the publication of the Vacancy Notice the appointment procedure followed its normal course, that five candidates applied and that Mr Reid fulfilled the conditions required by the Vacancy Notice.

io. Since the applicant voluntarily decided not to apply for the post, and thus refused to take part in the appointment procedure, she cannot now challenge the appointment of a third party, and consequently her application for the annulment of Mr Reid's appointment is inadmissible.

On those grounds,

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

hereby:

1. Dismisses the application as inadmissible.

2. Orders the applicant to pay the costs in their entirety.

Pescatore Due Bahlmann