C-9/82

JUDGMENT OF 14. 7. 1983 — CASE 9/82

discretion, the appointing authority 3. For the purpose of promotion, did not take into account solely the seniority is merely one of a number of candidates' diplomas and chose to criteria of assessment and it can never promote a person whose diplomas take precedence over the merits of were of a lower level than his. candidates.

In Case 9 / 8 2

L E N E Ø H R G A A R D AND J E A N - L O U I S DELVAUX, officials of t h e C o m m i s s i o n of t h e E u r o p e a n C o m m u n i t i e s , b o t h residing at 11 A Avenue C h a m p e l , B-1650 R h o d e St. G e n e s e , Belgium, assisted a n d represented by Jytte T h o r b e k , of the C o p e n h a g e n Bar, with an address for service in L u x e m b o u r g at t h e Chambers of Jacques Loesch, 2 R u e G o e t h e , applicants,

v

COMMISSION O F T H E EUROPEAN COMMUNITIES, r e p r e s e n t e d b y J o h a n n e s Føns Buhl, Legal Adviser, acting as Agent, with an address for service in L u x e m b o u r g at t h e office of Oreste M o n t a k o , a m e m b e r of its Legal D e p a r t m e n t , J e a n M o n n e t Building, Plateau d e Kirchberg,

JUDGMENT

Facts and Issues

The facts of the case and the submissions degree before passing the open and arguments of the parties may be competition for the Community and summarized as follows: also had long experience. They were both recruited in 1974, Øhrgaard to Grade L/A 7 and Delvaux to Grade L/A 8, and were promoted to Grade I — Facts and w r i t t e n p r o c e d u r e L/A 6 on 1 January 1979. In the intervening period they were granted leave on personal grounds for erne In Vacancy Notice COM/1134- year and seven months which they 1140/80, published in Vacant Posts No used to continue their studies in i;he 49, the Commission announced that six interests of the service. posts of principal translator in Grade L/A 5-4 would be filled as and when (b) Tilly Bye Rasmussen holds a Højere posts became available in the budget. Handelseksamen [Secondary School Certificate in Commercial Studies] The necessary qualifications for the post and a diploma as a trilingual com- were as follows: mercial correspondent. From 1966 to 1973 she worked as foreign languages correspondent, multi- "University education attested by a lingual secretary and taught French diploma, or equivalent professional at evening classes. During the same experience; period she obtained an erhvervs- sproglige afgangseksamen [Final Long experience of translation; Diploma in Language and Business experience of revision; Studies] in 1971. She also worked as a free-lance translator for the 'Commission and the Parliament and Proven active command of language and followed a training course with the a sound style." Commission's joint interpretation and conference division. She was recruited as an assistant translator Thirteen applications were submitted in Grade L/A 7, step 1 in 1974 and within the time limit set by the vacancy was promoted to Grade L/A 6 on notice, including those of the two 1 February 1978 and to Grade L/A 5 applicants and of Tilly Bye Rasmussen on 1 March 1981. and Anker Rasmussen.

and the erhvervsøkonomiske kandi- qualifications are based on pro- datseksamen [Higher Diploma in fessional experience rather than on a • Economics] awarded by the same university degree? college in 1979. He was recruited as an assistant translator in Grade L / A 7 , step 1, in 1974 and promoted II — C o n c l u s i o n s of t h e p a r t i e s to Grade L / A 6 on 1 June 1978 and to Grade L/A 5 on 1 March 1981. The applicants claim that the Court should: The Commission thus appointed Tilly "(1) Annul the rejection, notified by the Bye Rasmussen and Anker Rasmussen to defendant in the letter of 3 April posts of principal translator on 1 March 1981, of the applicants' candi- 1981 and on 3 April 1981 rejected the datures for the post of principal candidatures submitted by the two translator (COM/1134-1140/80); applicants who lodged complaints against that rejection under Article .90 (2) of the (2) Order the defendant to appoint the Staff Regulations on 3 June and 15 May applicants to the post of principal 1981 respectively. The Commission re- translator, with seniority calculated jected those complaints by decisions from 1 March 1981, either by the dated 1 December 1981 and the appli- permanent creation of two new cants on 22 December 1981 brought the posts of principal translator or present application which was received at by annulling the appointment of the Court of Justice on 8 January 1982. Tilly Bye Rasmussen and Anker Rasmussen and appointing the applicants to those posts; Upon hearing the report of the Judge- Rapporteur and the . views of the (3) Order the defendant to pay the Advocate General, the Court (Second costs." Chamber) decided to open the oral procedure without holding any prepara- tory inquiry but asked the Commission In its defence the Commission claims that to furnish replies to the following the Court should: questions before 5 March 1983: "Declare the applicants' conclusions inadmissible or, in the alternative, reject 1. Is the requirement laid down in the them as unfounded; second subparagraph of Article 5 (1) of the Staff Regulations of Officials, Order the applicants to pay the costs." namely university education or equivalent professional experience, In its rejoinder it further claims that the interpreted or applied any differently Court should: in the case of Category A officials and in the case of officials in the "Declare inadmissible the raising by the Language Service? applicants of fresh issues based on matters of fact and of law which are said to have come to light and, in the 2. How does the Commission combine alternative, reject the applicants' claim in practice the first two qualifications that the Commission was guilty of mentioned in the vacancy notice, misuse of powers in filling the posts particularly where a candidate's COM/1134-1140/80."

In its defence the Commission contends As to the possibility of annulling the principally that the application should be appointments of Tilly Bye Rasmussen dismissed. It maintains that there are no and Anker Rasmussen, the Commission grounds for annulling the Commission's maintains that the former's qualifications decision of rejection since the appointing consisted of a combination of pro- authority enjoys a wide discretion in fessional experience and formal edu- comparing the merits of candidates and cation covering studies "that should be since appointments made on the basis of treated as being of university level", and general assessments can be called in that the latter's education was question only if there has been a interrupted in 1974 but culminated in manifest error which is not the case here. a university degree in June 1979. Furthermore the Court has no power to Furthermore, before completing his issue an order to an institution and education, Anker Rasmussen worked as cannot therefore direct that the a full-time translator. applicants be appointed to a post of principal translator. Furthermore in the Commission's view the applicants' submission must be based In the alternative, the Commission takes on Article 45 (1) of the Staff Regu- the view that even if the applicants' lations. The applicants are misconstruing conclusions were examined, it would that provision of the Staff Regulations have to be pointed out in the first place since promotion is made on the basis of a that the applicants have not alleged that general assessment of the merits of the appointing authority has committed a officials and comparison of diplomas is

not a decisive factor. The applicants' as Tilly Bye Rasmussen and Anker arguments are therefore not supported Rasmussen. by the Staff Regulations. As regards submissions on matters of In their reply, the applicants, before law, the applicants consider in the first examining the legal arguments raised, place that by appointing persons who did make a number of observations on points not meet the qualifications required in of fact. the vacancy notice, the appointing authority was guilty of a manifest error. They draw particular attention to the Furthermore, even if the two persons assessments in their periodic reports for appointed did not possess the required the period from 1 July 1977 to 30 June qualifications, the Commission was still 1979, submitting that those assessments manifestly in error since the qualifi- are confirmed by the subsequent periodic cations of the two applicants are clearly reports and that they contradict those better than those of the two officials expressed in the note dated 18 February appointed.

dispensed with. They make the point that Mr Ciancio's assessment is also at Since the appointing authority wrongly variance with the observations made rejected the candidatures of the two regarding the applicants by the qualified officials and appointed instead Commission in Case 10/82. two other officials who did not fulfil the The applicants further express their requirements in the vacancy notice or surprise that candidates who do not even who are in any event clearly less meet the conditions set out in the qualified, it automatically follows that vacancy notice should come within the the appointing authority should make exceptional provision relating to a "rapid good the damage caused to the career"; in the applicants' view such applicants by assigning two L/A 5 posts conduct on the part of the administration to them.

The applicants ØHRGAARD AND DELVAUX v COMMISSION

The applicants state that they have never In its rejoinder the Commission claimed that they should be entitled to maintains, as regards the applicants' promotion. On the other hand, they promotion prospects, that the appointing consider that they have been "leap- authority has never stated that the frogged" in this instance by two candi- applicants are not eligible for promotion dates who do not fulfil the required in the department in which they are now conditions. Such a situation differs from employed. According to the Commission the one envisaged by the defendant and this is confirmed by the fact that Jean- is also contrary to Article 27 of the Staff Louis Delvaux was proposed for Regulations under which the best promotion in 1981. His position on the qualified of the candidates fulfilling the list by no means implies that his candi- minimum requirements must be dature was improperly rejected since the appointed. The applicants further submit list was not confined solely to the Danish that in so far as it was the appointing translation division. authority itself which laid down the conditions in the vacancy notice, it is bound by those conditions and thus may The reply does not, in the Commission's no longer rely on Article 45 since any view, appear to contain any matters derogation from the conditions formally which differ from those on which it has laid down in the vacancy notice already expressed its views in its defence constitutes a misuse of powers. in relation to the requirements con- cerning the qualifications of the candidates for the posts of principal In this respect, the appointing authority's translator. The applicants repeat "the error in appointing officials who do not conclusion which is the leitmotiv of their satisfy the conditions stipulated in the action, namely that the decisive factor vacancy notice shows furthermore that for promotion is university education the appointing authority "is pursuing evidenced by a diploma". However the interests other than those legally vacancy notice expressly stipulates the permissible" and so the applicants are alternative of "equivalent professional justified in alleging misuse of powers in experience" and thus the applicants' this respect too. In the applicants' view reference to a diploma as the sole that submission is admissible although it criterion for promotion is at variance was raised only in the reply since it is with the qualifications set out in the based on new information contained in vacancy notice. The appointing authority the defence. decides on promotions, in accordance with the criteria set out in Article 45 of the Staff Regulations, following a The applicants express, in addition, very comparative examination of the candi- strong reservations regarding their sub- dates' merits, and not just on the basis of sequent promotion prospects, pointing university qualifications. Furthermore, out that in the 1981 promotion preference cannot be given to candidates procedure Jean-Louis Delvaux was with qualifications in foreign languages

and literature over those whose contained in their personal files. The theoretical and practical linguistic studies Commission therefore cannot accept the are geared to the needs of business. The applicants' request that those alleged Gommission does not accept such a parallel files be produced. limitation of the appointing authority's power to appoint its staff. Finally the Commission considers that the submission of misuse of powers, Turning to the question of calculating which was raised only in the reply, seniority, the Commission points out that should be declared inadmissible pursuant Article 24 of the Staff Regulations does to Article 42 (2) of the Rules of not require leave on personal grounds Procedure since no matters of fact or for the purposes of further vocational law such as to justify the raising of a training to be taken into account in fresh issue have come to light in the calculating seniority. It stresses in that course of the written procedure. regard that it is possible for such training to take place while an official is in active

affecting Jean-Louis Delvaux has been between recruitment to Category A and corrected. In its view such errors are recruitment to Category L/A is not unfortunately always possible but Article based on a different interpretation of 26 of the Staff Regulations, which Article 5 of the Staff Regulations but provides that all documents must be is attributable merely to the different communicated to the official, affords an factual circumstances applying to the two adequate guarantee against such errors categories. finding their way into the official's personal file to the detriment of his

assessment of the merits and the work of Føns Buhl, acting as Agent, then the official presented oral argument and replied to questions put by the Court. V — Oral procedure In the course of the oral procedure the applicants admitted that the point at At the sitting on 21 April 1983, Torben issue was a promotion decision under Rode, an expert appearing on behalf of Article 45 of the Staff Regulations the applicants, explained what the raising the problem of the appointing different courses of Danish higher authority's discretion in making an education entailed. The applicants, appointment following a vacancy notice. represented by Jytte Thorbek, and the Commission of the European The Advocate General delivered his Communities, represented by Johannes opinion at the sitting on 19 May 1983.

Decision

1 By application lodged at the Court Registry on 8 January 1982, Lene Øhrgaard and Jean-Louis Delvaux, both officials in Grade L/A 6 in the Danish translation division of the Commission of the European Communities, brought an action, first, for the annulment of the Commission's decision, notified by letter dated 3 April 1981, rejecting their candidatures for posts of principal translator in Grade L/A 5 submitted pursuant to Vacancy Notice COM/1134-1140/80 and, secondly, for an order compelling the Commission to appoint them to such posts either by means of the creation of two new posts of principal translator or of the annulment of the appointment of two officials who were appointed and whose qualifications they challenge.

2 In the above-mentioned Vacancy Notice COM/1134-1140/80 the "quali- fications required" included the following:

s In their reply the applicants further claim that the Commission has misused its powers as is shown by new information produced by the Commission in its defence.

6 The Commission maintains that the latter submission should be rejected as inadmissible under Article 42 (2) of the Rules of Procedure. However, before examining the Commission's objection that that third submission was raised at too late a stage, the following observations should be made on the first two submissions.

T h e first s u b m i s s i o n

7 The applicants base their first submission essentially on the fact that in their view, since professional experience can be counted only after the requisite diploma is obtained, the two main conditions in the vacancy notice, namely a university degree and professional experience, are cumulative. They submit that in this instance neither of the two persons promoted fulfilled the two conditions. One did not have a university degree and therefore could not have any professional experience either while the other obtained his university degree only in 1979 and thus had only two years' seniority when he was promoted, which cannot constitute "long experience".

ØHRGAARD AND DELVAUX v COMMISSION

s As the Commission has rightly observed, the vacancy notice, by using the word "or", clearly indicates that the conditions are alternative. It is thus necessary, but it is also enough, to possess either a university degree or equivalent professional experience and this also follows from Article 5 (1) and (2) of the Staff Regulations according to which, inter alia, the duties of staff in the category L/A "require university education or equivalent pro- fessional experience".

JUDGMENT OF 14. 7. 1983 — CASE 9/82

i4 Since what is at issue is a decision on promotion, it should first be pointed out that the appointing authority has a wide discretion in evaluating the interests of the service and the merits to be taken into consideration in the context of a decision under Article 45 of the Staff Regulations and that in regard to those matters the Court must confine itself to the question whether the administration kept within proper bounds and did not exercise its power in a manifestly erroneous manner.

is In this case there is nothing in the documents before the Court to show that the appointing authority failed to make a proper assessment of the qualifications and merits of the various candidates, including those of the applicants.

i6 Regarding in particular the question of the diplomas referred to by the applicants, it should be borne in mind that as the Court stated in its judgment of 17 March 1983 (Case 280/81 Hoffmann v Commission [1983] ECR 889) in the case of promotion other factors must be taken into account when the merits of officials eligible for promotion are compared, in particular the general standard of the work which they have performed in carrying out their duties.

i7 Consequently the applicants cannot complain that, in the exercise of its discretion, the appointing authority did not take into account solely the candidates' diplomas and chose to promote two persons whose diplomas were of a lower level than those of the applicants.

is The applicants have further submitted that the leave on personal grounds granted to them for the period from 1 January 1976 to 1 July 1977 in fact prevented them from being promoted by interrupting their seniority although the leave was granted to them in the interests of the service.

23 Under Article 69 (2) of the Rules of Procedure the unsuccessful party is to be ordered to pay the costs. However, under Article 70 of the Rules of Procedure, the institutions are to bear their own costs incurred in proceedings brought by servants of the Communities.

On those grounds,

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

hereby

1. Dismisses the application;

O P I N I O N O F MR V E R L O R E N VAN THEMAAT — CASE 9/82

1 — Translated from the Dutch.