C-282/81

APPLICATION for the annulment of a decision appointing the Head of Division in charge of the "Super Sara" project within the Projects Direc­ torate of the Ispra branch of the Joint Research Centre,

RAGUSA v COMMISSION

THE COURT ( Third Chamber )

composed of: U . Everling, President of Chamber , G. Bosco and Y. Galmot , Judges ,

Advocate General : Sir Gordon Slynn Registrar : J. A. Pompe , Deputy Registrar

gives the following

JUDGMENT OF 21. 4. 1983 — CASE 282/81

the establishment at Ispra in 1965 and That consultative body will act following had been in Grade A 4 since 1971, a preliminary review of the applications and Mr Randies, aged 50, of British carried out by the administration, in nationality, who joined the establishment collaboration with the relevant depart­ at Ispra in 1964 and who had been in ments. A summary of the applications grade A 4 since 1973. considered and of the assessments of them will be drawn up and submitted to the members of the recruiting committee.

2. For the appointment of an official in That committee will decide which can­ Grade A 3 at the Ispra establishment, the didates to invite for interview; such powers conferred on the appointing interviews shall be carried out upon authority by the Staff Regulations of reasoned request, even by a single Officials are exercised by the Director member of the committee. General of the Joint Research Centre.

RAGUSA v COMMISSION

General of the Joint Research Centre, official in Grade A 4 from the who was also the director of the Ispra administration representing the Ad­ establishment, to discuss his application. ministration and Personnel Division, Mi- Ardente, an official in Grade A 5 from the scientific and technical staff from a department not directly concerned with In a letter dated 12 June 1980 the the post in question and representing the Deputy Director General informed the staff, and of Mr Ooms, an official in Director General of the Joint Research Grade B 3 from the technical staff and Centre that he had seen separately each Chairman of the Executive Committee of of the four internal candidates who had the Ispra Staff Committee. In the report applied for the post in question, and it was stated that the Committee that, as they were internal candidates, he consisted: "(1) Of a senior member of had not felt obliged to follow the the staff (Mr Klersy); (2) of a repres­ procedure set out in the Director entative of the Administration and General's memorandum quoted above. Personnel Division; (3) of staff repres­ He went on to say that "having thus entatives." The Committee decided that given the candidates an opportunity to "having studied the files of the five cand­ give their views unreservedly, having idates and in view of the special weighed up the technical and political requirements of the vacancy notice" it circumstances as a whole and having appeared that Mr Randies and two other assessed the candidates on both the candidates were considered the most technical level (ability and experience) suitable for that post with a preference and that of character (personality)" he for Mr Randies whose special knowledge favoured Mr Randies and suggested that in the field under consideration gave him he be appointed. a definite advantage. The applicant's name did not appear on that list.

The applicant was informed in a letter Commission. The applicant claims that dated 5 June 1981 which he received on the Court should : 22 July 1981 that the Commission had rejected his complaint. In so far as "(1) Annul, by reason of the defects concerned the choice made by the described in the application, the appointing authority, that decision was decision whereby the appointing grounded on the fact that "as a sub­ authority appointed Jack Randies sidiary matter and in circumstances to the post of Head of Division for where qualifications and experience are the "Super Sara project" within the recognized as being comparable (the Projects Directorate of the Ispra appointing authority being the sole judge establishment; in this area), the administration is not prohibited from having recourse to the (2) Invite the Commission to re-open criterion of nationality in a subsidiary the procedure for appointment to role as a criterion to distinguish between the said grade and post; the candidates". The letter continued that although it was true that the (3) Order the defendant to pay the procedure as set out in the memorandum costs." of the Deputy Director General had not been strictly observed, the application of The Commission contends that the that procedure was not mandatory and, Court should : moreover, the spirit of that memorandum had not been overlooked "Dismiss the application as unfounded; in the way in which the candidates concerned had been selected. Order the applicant to pay the costs."

procedure laid down for that purpose in (b) The Commission believes that such the Director General's memorandum of a procedure, which is not laid down by 23 October 1979. the Staff Regulations, can only be regarded as an internal measure which is not in the nature of a strict rule and the failure to abide by which cannot be It is essential to follow that procedure, regarded as the breach of essential pro­ he claims, even though it was not cedural requirements as long as there has expressly laid down by the Staff Regu­ been no failure to observe the guarantees lations of Officials, because the contained in the Staff Regulations. provisions in question were drawn up by joint agreement with the staff organiz­ ations and because "simplifications" left to the discretion of the administration In addition it emphasizes that the would deprive the procedure of any procedure in question, which was drawn meaning and furthermore because, in this up primarily in order to simplify and case, those "simplifications" had been standardize the selection procedure for made by the Deputy Director General posts in lower grades, is ill-adapted for personally — the Director of the posts involving management functions, establishment — who is not the for which the personal qualities of each appointing authority. In a letter dated 12 candidate must be compared with the June 1980 he made it clear that he was requirements of the duties to be carried not intending to follow the procedure out. In this case however, the appointing laid down. authority had tried to follow that procedure as closely as possible, contrary to the suggestion by the director of the establishment to make the appointment In this case, all the applications should forthwith. have been submitted to a committee constituted, by analogy with Article 3 of Annex III to the Staff Regulations, of members of a grade equal to or higher The decision not to interview the can­ than that of the post to be filled. In fact didates was freely taken by the re­ only one of the members of the cruitment committee itself and not by the committee who reported on the can­ director of the establishment. That didates actually satisfied that require­ possibility is, moreover, expressly ment. Furthermore the committee should provided for in the outline procedure. have interviewed the candidates in person and should not have decided on the basis of the files alone.

On that point, the applicant refers in of the necessary factors for the particular to the contents of the letter assessment of the merits of the various from the Deputy Director General dated candidates with reference to the 12 June 1980 and also to the discussion requirements of the post to be filled. which he had had with him on 11 June 1980. According to the applicant, during that discussion the Deputy Director Genral more or less informed him openly 3. Disregard of selection criteria that, for political reasons, his application could not be considered and that the candidate suggested to the appointing authority was Mr Randies of British (a) According to the applicant the nationality. The letter of 12 June 1980 appointing authority placed too much therefore constituted a premature emphasis on the criterion of geographical assumption of the appointment of Mr or national distribution and disregarded Randies. In those circumstances it would the merits and qualifications of the have been almost impossible for the applicant as compared with those of Mr actions of the Deputy Director General Randies. to be publicly repudiated either by the recruiting committee or by the Director General. "While Mr Randies, as a specialist in thermo-hydraulics and in the behaviour of nuclear fuels, possessed only a few of the very wide range of skills which were necessary for the task of managing the (b) The Commission denies that the Super Sara project, the applicant, for his decision to appoint Mr Randies was part, had a proven multi-disciplinary taken in advance. Any statements made training and detailed knowledge in the by the Deputy Director General during a field of reactor safety and in the various private meeting, if they were in fact subjects and branches of science with made, at least in such categorical terms, which the person appointed to that post could only represent an expression of the would need to be conversant. The striclty personal point of view of the applicant's qualifications for the post person making them. The letter of 12 were therefore, he claims, not only June 1980 had no binding effect upon equal, but superior to those of Mr the appointing authority. Furthermore, Randies. the suggestion of the Deputy Director General that the internal procedure should not be observed was not adopted Moreover, he states, subsequent events by the appointing authority. demonstrated that Mr Randles's appointment had effects which were detrimental to the smooth running of the department because, in order to rectify The Director General alone has the problems and inadequacies which authority to take a decision such as that appeared following his appointment, it in the present case and, as far as the was necessary to create a "task force" procedure is concerned, the director of within which the applicant was called the establishment does not even have the upon to carry out extremely important power to make a proposal. There is duties, which were in fact more nothing to suggest that the Director important than those of Mr Randies. The General did not take his ' decision creation of that "task force" was sub­ completely independently, following an stantially based on studies and ideas objective and careful examination of all developed by the applicant.

IV — Answers to questions put by the Court Moreover, in this case geographical balance was a valid concern because the statistics of staff at the Ispra establishment on 30 November 1981 show that, of 26 officials of Grade A 3, In reply to the question put by the Court of whom 23 belonged to the technical or after the end of the written procedure, scientific staff, only one, namely Mr the Commission first explained the origin Randies, was of British nationality of the outline procedure contained in the whereas 10 were Italian. memorandum of 23 October 1979, from the Director General of the Joint Research Centre to the directors of the various establishments. It appears from the memorandum that the procedure was Contrary to the applicant's statements, drawn up in the course of a series of Mr Randies was selected solely on the meetings with the staff representatives of basis of a rigorous comparative study of the Joint Research Centre in order to his merits in relation to those of the harmonize the recruiting procedures other candidates. Moreover the recruit­ which were in operation in the various ment committee unanimously reached establishments. The minutes of those the same conclusion. That consideration meetings show that at one stage in the of the comparative merits of the can­ negotiations the intention had been to didates falls exclusively within the provide that the member nominated by domain of the discretionary power of the the Staff Committee should, in principle, administration, which was not obliged to belong to the category within which the give reasons for its assessement. post in question was graded, and that an

interview with the candidates was to be V — Oral procedure compulsory. Those rules no longer appear in the Director General's memorandum of 23 October 1979. At the sitting on 3 February 1983, the applicant, represented by G. Marchesini of the Milan Bar, and the Commission, As for the disputed recruitment represented by its agent, E. de March, procedure, the Commission stated that and by P. de Caterini of the Rome Bar, the director of the establishment at Ispra presented oral argument. held meetings with the four candidates from Ispra on 11 and 12 June 1980 and, following those meetings, wrote his letter The applicant drew particular attention of 12 June 1980. Thereafter he learned to the fact that, in the report of the re­ that there was a fifth application from an cruiting committee of 14 July 1980 there official in the establishment of Karlsruhe was no mention of an "independent whom he interviewed on 4 July 1980. member (that is, not from the department concerned)" and that it showed that two staff representatives were present and also to the fact that the When the director of the Ispra copy of the report submitted to the establishment expressed the view in his Court did not bear the signature of Mr letter of 12 June 1980 that it was not Ardente. He did not however dispute necessary to follow the procedure laid that Mr Ardente had in fact taken part in down in the memorandum of 23 October the committee's deliberations. 1979, the Staff Committee of the establishment referred to the Director General of the Joint Research Centre who confirmed the need to convene a On being invited to submit the original recruiting committee in a memorandum of that document after the hearing, the sent to the director of the establishment Commission informed the Court that it on 1 July 1980. had been lost. The carbon copy of the document, submitted by the Commission, did not bear the signature referred to. In addition the Commission submitted a statement by Mr Ooms and Mr Ardente The recruiting committee was therefore dated 8 February 1983 declaring that "as constituted and convened. It examined staff representatives" on the recruiting the applications and the files of the can­ committee in question, their presence on didates but did not consider it necessary the committee was limited essentially to for the candidates to be interviewed. ensuring the observance of the rules of the Staff Regulations and that the absence of Mr Ardente's signature from the report did not mean that he was not in agreement with the conclusions which The opinion drawn up by the committee it contained. on 14 July 1980, the personal files and the applications were then sent to the Director General who took the decision to appoint Mr Randies to the post in The Advocate General delivered his question. opinion at the sitting on 3 March 1983.

One member representing the administration;

One independent member (that is, not from the department concerned);

One member appointed by the local Staff Committee."

4 On 11 and 12 June 1980 the director of the Ispra establishment held interviews with the four candidates from Ispra. In a letter of 12 June 1980 he informed the Director General of the Joint Research Centre that he had not

JUDGMENT OF 21. 4. 1983 — CASE 282/81

felt obliged to follow the procedure laid down by the memorandum of 23 October 1979. He said that "having thus given the candidates an opportunity to give their views unreservedly, having weighed up the technical and political circumstances as a whole and having assessed the candidates on both the technical level (ability and experience) and that of character (perso­ nality)" he had decided in favour of Mr Randies who he suggested should be appointed to the post in question. Having subsequently learned of the existence of a fifth application, from an external candidate, he also invited that candidate for an interview on 4 July 1980.

Article 45 of the Staff Regulations, the appointing authority possesses a wide discretion and that, in that connection, the Court must restrict itself to consideration of the question whether, regard being had to the various considerations which have influenced the administration in making its assessment, the latter has remained within reasonable limits and has not used its power in a manifestly incorrect way.

10 In disputing the choice made by the Director General of the Joint Research Centre, the applicant first claims that the decision to appoint Mr Randies had already been taken in advance.

11 On that point it may be observed that, if the director of the Ispra establishment had formed a view before referring the matter to the recruiting committee and before interviewing the fifth candidate of whom he was not aware at that stage, those facts could not affect the validity of the decision taken by the Director General of the Joint Research Centre, who is the appointing authority. He was in no way bound by the views of the director of the establishment. There is nothing in the file to suggest that he did not take his decision in the light of all relevant factors and after a consideration of the comparative merits of the various candidates as provided by Article 45 of the Staff Regulations.

12 The applicant further claims that his abilities and his merits and qualifications are superior to those of Mr Randies as is demonstrated moreover by the fact that subsequently the applicant was called upon to remedy certain problems and inadequacies which appeared in the framework of the project concerned. Mr Randies was preferred to him for political reasons, because of his nationality.

17 According to the Commission such a procedure, which is not laid down by the Staff Regulations, does not have any legal validity and failure to observe it cannot therefore be regarded as an infringement of an essential procedural ' requirement.

18 In that respect it should be observed that when, by a decision of an internal nature, the appointing authority voluntarily institutes a compulsory con­ sultative procedure which is not prescribed by the Staff Regulations, it is obliged to abide by such a procedure, which cannot be regarded as lacking any legal validity. However, even though the director of the establishment at Ispra stated in his letter of 12 July 1980 that he did not wish to follow the procedure, the Director General, for his part, expressly insisted on the need to follow it and took his decision after receiving the opinion of the recruiting committee.

19 As to the course of the procedure in this case, the applicant claims that the recruiting committee was not constituted, by analogy with Article 3 of Annex

RAGUSA v COMMISSION

III to the Staff Regulations, of members who were all of a grade equal or superior to that of the post to be filled and that the committee did not subject the candidates to an interview. The applicant further claims that the report of the recruiting committee was not signed by its fourth member, Mr Ardente, and that, contrary to the memorandum of the Director General of the Joint Research Centre of 23 October 1979, the committee was not properly constituted.

20 On this subject it should be pointed out that Article 3 of Annex III to the Staff Regulations, on selection boards, does not apply to a recruiting committee not provided for by the Staff Regulations, whose purely con­ sultative functions are not comparable to those of a selection board for a competition. In view of the fact that the provisions establishing such a re­ cruiting committee do not lay down special requirements for its constitution, the fact that its members did not at least belong to the grade of the post concerned cannot constitute a procedural defect.

25 Regard being had to the purely consultative nature of that committee, the fact that its composition was stated wrongly in the report to the appointing authority does not, in itself, constitute a substantial procedural defect and is not of such a nature as to invalidate the disputed decision of the Director General of the Joint Research Centre.

26 The subsequent statement of Mr Ardente, according to which, in his capacity as a representative of the staff, he confined himself to ensuring that the relevant rules of the Staff Regulations were observed, is not, supposing it to be correct, of such a nature as to vitiate the legality of the opinion given by the recruiting committee. The procedure established by the memorandum of 23 October 1979 does not limit the right either of the staff representative or of any other member of the committee to assess freely all the factors to be taken into consideration in clarifying the choice of the appointing authority. Mr Ardente's error in voluntarily abstaining from expressing his opinion on some of those factors cannot therefore be attributed to the Commission.

27 For those reasons the application must be dismissed.

Costs

28 Under Article 69 (2) of the Rules of Procedure the unsuccessful party is to be ordered to pay the costs if they have been asked for in the successful party's pleading. However, pursuant to the second subparagraph of paragraph (3) of that article, the Court may order even a successful party to pay costs which the Court considers that party to have unreasonably or vexatiously caused the opposite party to incur.

1. Dismisses the application;

2. Orders the Commission to pay the costs.

Everling Bosco Galmot

Delivered in open court in Luxembourg on 21 April 1983.

J. A. Pompe U. Everling Deputy Registrar President of the Third Chamber