C-298/81

JUDGMENT OF 24. 3. 1983 — CASE 298/81

take into account, in order to assess discretion to take into account, in their qualifications for the post in conjunction with other factors, the question, in addition to the number age of candidates and their seniority and the nature of the degrees held by in the grade or service. Indeed, the them, the competence and efficiency qualifications and merits of the can- which they have shown in the service. didates being equal, those matters Moreover, it cannot be suggested that may even constitute a decisive factor it is a misuse of the power of in the appointing authority's decision.

In Case 298/81

FRANCO COLUSSI, an official of the European Parliament, represented by Marcel Slusny of the Brussels Bar, with an address for service in Luxembourg at the applicant's residence, 36 Rue de Wiltz, applicant, v

EUROPEAN PARLIAMENT, represented by the Director of Personnel and Social Affairs, Martin Schmidt, acting as Agent, assisted by Alex Bonn of the Luxembourg Bar, with an address for service in Luxembourg at the Chambers of Mr Bonn, 22 Côte d'Eich,

defendant,

JUDGMENT

Facts and Issues

The facts of the case and the submissions Knowledge of languages: a perfect and arguments of the parties may be command of Danish, German, English, summarized as follows: French, Italian or Dutch; in addition candidates must have a thorough knowledge of two other Community languages and a satisfactory knowledge I — Facts of a fourth such language.

1. By Vacancy Notice No 2690 of 2. The applicant, Franco Colussi, who 14 July 1980, the European Parliament entered the service of the European Par- commenced the procedure for filling, liament on 24 March 1961 and who has initially by promotion or transfer, seven been a reviser in Grade L/A 4 since posts of Linguistic Advisers in Grade 1 July 1973, applied for the post in the L/A 3, one of which was in the Italian Italian Translation Division. Translation Division. Two other officials of Grade L/A 4, one The duties attached to the post were of whom was Mrs Cattarino, submitted described as being those of: applications for the post.

discriminatory as against him. He implied rejection of his request of requested that a decision be taken, in I October 1980. He maintained that the accordance with Article 90 (1) of the successful candidate should have been Staff Regulations, based on an actual selected on the basis of a competition, comparison of qualifications and merits that there had been a misuse of power and on the basis of a vacancy notice because the post had been reserved for drawn up in less conventional terms, in the oldest officials, and that the other words, on the basis of a vacancy comparative merits of the candidates had notice excluding any discrimination or not been properly examined. uncertainty. That complaint was rejected by decision of the President of the Parliament of 4. By a memorandum of 8 October 4 September 1981. 1980, the Head of the Italian Translation Division, Mr Fua, informed the Director of Translation and Terminology of the II — Written procedure and conclusion which he had reached on the conclusions of the parties basis of his consideration of the applications and recommended the promotion of Mrs Cattarino, in view of 1. By application lodged at the Court the fact that, although she and the Registry on 27 November 1981, the applicant both had excellent reports, Mrs applicant brought this action. He claims Cattarino, who had for years regularly that the Court should: replaced the head of the division in his Declare that the President's decision to absence, was older and had greater appoint Mrs Cattarino as Linguistic seniority in the grade and in the service. Adviser to the Italian Division is null and void; By decision of 1 December 1980, the President of the Parliament, acting as the Declare so far as necessary that the appointing authority, promoted Mrs express rejection on 4 September 1981 of Cattarino to the post of Linguistic the applicant's complaint is null and Adviser Grade L/A 3 in accordance with void; Vacancy Notice No 2690 with effect from 1 October 1980. and Order the opposite party to pay the The applicant learnt of that decision costs. when it was subsequently displayed for the information of the staff. 2. In his reply, the applicant claims in addition that the Court should: By letter of 28 January 1981, the applicant was informed that his So far as necessary annul Vacancy application for the post had not been Notice No 2690. successful. 3. The Parliament claims that the 5. By letter of 15 April 1981, registered Court should: on 21 April 1981, the applicant submitted Dismiss the action; a complaint within the meaning of Article 90 (2) of the Staff Regulations, and against the decision not to appoint him Linguistic Adviser, and against the Order the applicant to pay the costs.

4. The written procedure followed the The Parliament points out in the first normal course. place that the above submission according to which the vacancy notice is Upon hearing the report of the Judge- void, is inadmissible inasmuch as the Rapporteur and the views of the applicant did not claim it to be void in Advocate General, the Court (Third the conclusions'set out in his application. Chamber) decided to open the oral procedure without any preparatory In addition, the Parliament emphasizes

the administration has an exclusive course of the written discretion as regards the description of procedure the nature of the duties relating to a vacant post. The Parliament raises no objection to the admissibility of the action but it considers In his second submission, the applicant that, in accordance with the Rules of maintains that it is not established that Procedure, the applicant cannot be the President of the Parliament was allowed to make good in his reply a empowered to act as appointing deficiency in the conclusions formulated authority in the circumstances of the in the application. case. The appointment of the President as appointing authority made by In his first submission, the applicant points Decision No 175/62 of the Bureau of out that it was impossible for the the Parliament on 12 December 1962, in appointing authority to consider the the form of a sub-delegation, is not valid comparative merits of the officials because the Bureau itself had no eligible for promotion without organ- authority so to act.

been performed by officials in Grade institution itself, namely the Parliament, L/A 4. In the absence of any frame of which should have designated the reference and in view of the novelty of appointing authority according to Article the post, it was not possible to make a 2 of the Staff Regulations. In the absence decision solely on the basis of the of such a decision, only the Parliament periodic report because that report could itself is empowered to act as the not contain any information relating to appointing authority. those duties, which moreover were not described in a precise manner in the The Parliament states that the disputed vacancy notice. The vacancy notice is decision was adopted on the basis of therefore void.

JUDGMENT OF 24. 3. 1983 — CASE 298/81

"Having regard to Article 2 of the Staff 2. The Secretary General shall head a Regulations of Officials . . . secretariat the composition and organization of which shall be determined by the Bureau. Decides that the powers conferred by the Staff Regulations of Officials on the 3. The Bureau, after consulting the appointing authority . . . shall be appropriate committee of Par- exercised : liament, shall decide the number of staff and lay down regulations (i) . . . relating to their administrative and financial situation."

(c) by the President, on the proposal of the Secretary General : The Bureau was therefore empowered to designate the appointing authority in For the application of the provisions accordance with the Staff Regulations. of Articles . . . , 29, . . . 45, to officials of Category A, Grades 1 to 7 In his third submission, the applicant inclusive, and of the languages, staff, maintains that the above-mentioned Grades 1 to 6 inclusive . . .; however, decision of the Bureau was not observed advance notification shall be given to because, in this case, the Bureau was not the Bureau of decisions in connection informed in advance. The applicant with the filling of posts in Category considers that the distinction made by A: the decision of the Bureau between officials of Categories A and L/A is explained as a clerical error.

COLOSSI V PARLIAMENT

It is for the applicant to establish the According to the Parliament, that contrary, and there is absolutely no submission must fail because it questions evidence to that effect. the discretionary power of the appointing authority. The applicant's qualities were noted in his periodic In his fifth submission, the applicant report and taken into consideration as maintains that it has not been established part of the examination of merits, as is that the appointing authority undertook also shown by Mr Fua's memorandum. a genuine examination of the merits of the candidates and their periodic reports and that it did not merely consider Mr The applicant's seventh submission alleges Fua's memorandum of 8 October 1980 misuse of power. The appointing in which the decisive factors were authority did not expressly refute the presented incompletely and inaccurately. allegation made by the applicant in his request of 1 October 1980 and in his complaint of 19 April 1981 that the posts The Parliament replies by referring to the in question had been reserved for the absence of any evidence and points out

candidate. It did not take into account actually reserved in advance for the the degrees and certificates, in particular oldest candidates, which constitutes a in law, which he held in addition to the misuse of power. two theses on subjects relating to economics which he completed in the The Parliament disputes the assertion course of his studies. Those facts that the posts concerned were reserved in appeared in his file and he drew advance for the oldest official or the one attention to them again at the time of his with the greatest seniority in each application for the post. Mrs Cattarino division.

JUDGMENT OF 24. 3. 1983 — CASE 298/81

In his eighth submission, the applicant her periodic reports together with the maintains that the fact that the President documents to which, in addition to Mr of the Parliament adjudicated on both Fua's memorandum of 8 October 1980, the promotion and the complaint the President of the Parliament must constituted a breach of the principle have had access. The applicant has nemo judex in re sua. The decision on the therefore asked the Court to request the complaint should have been taken by the Parliament to submit those documents. Bureau of the Parliament. The Parliament replies that it has provided the applicant's file and has The Parliament replies to that submission included necessary or helpful documents that the principles which govern legal in the annex to its defence. The affairs cannot be applied to the applicant's request for supplementary administrative procedure, instituted by information, in particular as regards the Article 90 of the Staff Regulations, request for the production of the which in no way has the character of personal file of an official who is not a proceedings before a court of law. party to the action, is not justified.

As regards the evidence in support of the various submissions, the applicant IV — O r a l p r o c e d u r e considers that the Parliament should complete the file by submitting all the At the sitting on 27 January 1983, the necessary papers, and in particular those applicant, represented by M. Slusny, and relating to the description of the duties the Parliament, represented by A. Bonn, of Linguistic Adviser, the way in which presented oral argument. the vacancy notice was drafted and settled, the choice of the procedure In the course of that sitting, the applicant provided for in Article 29 (1) (a) of withdrew his third submission. the Staff Regulations, the training, qualifications and merits of Mrs The Advocate General delivered her Cattarino including her personal file and opinion at the sitting on 3 March 1983.

5 By a memorandum of 8 October 1980, the Head of the Italian Translation Divison informed the Director of Translation and Terminology of the result of his consideration of the applications. He proposed the promotion of Mrs Cattarino in view of the fact that although she and the applicant both had excellent reports, Mrs Cattarino, who had for years regularly replaced the Head of Division when he was absent, was the older and had greater seniority in the grade and in the service.

6 On 1 December 1980, the President of the Parliament, acting as the appointing authority, promoted Mrs Cattarino to be Linguistic Adviser in Grade L/A 3.

7 The complaint within the meaning of Article 90 (2) of the Staff Regulations, which the applicant submitted against the decision not to appoint him Linguistic Adviser and against the implied rejection of the request which accompanied his application for the post was rejected by decision of the President of the Parliament on 4 December 1981 and the applicant consequently brought the present action.

8 In support of his action, the applicant puts forward a series of submissions some of which relate to questions of form and procedure and others to the substance of the disputed decision.

JUDGMENT OF 24. 3. 1983 — CASE 298/81

S u b m i s s i o n s r e l a t i n g to form a n d p r o c e d u r e

COĹUSSI V PARLIAMENT

i3 Finally the applicant claims that the President of the Parliament did not himself decide on the appointment to be made. That is shown by the wording of his decision rejecting the applicant's complaint, which referred to a thorough investigation undertaken by his staff.

u In that respect it should be noted that the appointing authority may enlist the services of administrative staff for the accomplishment of its task. In this case the decision was signed by the President of the Parliament, and there is no reason to suppose that the decision was not taken by that authority in person, even if his staff participated in the preparation.

is The applicant's submissions relating to form and procedure are therefore unfounded.

T h e s u b m i s s i o n s as t o s u b s t a n c e

i6 The applicant maintains in the first place that the vacancy notice on the basis of which the disputed decision was adopted is void on the ground that it did not provide for the organization of an internal competition despite the fact that because of the novelty of the post a competition would have been the sole means of evaluating the candidates' qualifications.

21 In this case there is no single factor in the papers on the case which makes it possible to state that the President of the Parliament did not actually assess the qualifications and merits of the various candidates. In particular, the applicant has not established that the President of the Parliament had decided from the outset to select the oldest candidate irrespective of the merits and qualifications of the various candidates. Indeed the appointments made in some other divisions disprove that allegation.

22 In view of the fact that the officials involved had lengthy experience, the appointing authority was entitled to take into account, in order to assess their qualifications for the post in question, in addition to the number and the nature of the degrees held by the applicant and Mrs Canarino, the competence and efficiency which they had shown in the service. Moreover, it cannot be suggested that it was a misuse of the power of discretion to take into account, in conjunction with other factors, the age of candidates and their seniority in the grade or service. Indeed, the qualifications and merits of the candidates being equal, those matters may even constitute a decisive factor in the appointing authority's decision.

COLUSSI V PARLIAMENT

23 It follows that the submissions relating to the substance of the disputed decision must also be rejected and the action must therefore be dismissed as unfounded.

Costs

24 Under the terms of Article 69 (2) of the Rules of Procedure the unsuccessful party is to be ordered to pay the costs. Nevertheless, pursuant to Article 70 of the Rules of Procedure costs incurred by the institutions in proceedings brought by servants of the Communities are to be borne by those institutions.

Delivered in open court in Luxembourg on 24 March 1983.

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