C-10/82

defendant,

A P P L I C A T I O N in the terms of the conclusions set out in the application,

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

composed of: P. P e s c a t o r e , President of Chamber, O. Due and K. Bahlmann, J u d g e s ,

Advocate G e n e r a l : P. V e r L o r e n van T h e m a a t Registrar: H . A. Rühi, Principal Administrator

gives the following

" 1 . University education, attested by a 13 June 1980: note from the Head of the diploma, or equivalent professional Recruiting, Appointments and Pro- experience; motion Division, Mr Debois, addressed to the Head of the Translation, Documentation, Reproduction and 2. Long experience of translation; Library Directorate, Mr Ciancio, asking experience of revision; the latter's opinion regarding Mr Hagelin's application; it is appropriate to 3. Proven active command of language cite the last paragraph of that note: and a sound style." "Should the answer prove to be It is not disputed that the applicants all favourable, a vacancy for an L/A 5- have university degrees and professional L/A 4 post will have to be advertised experience extending over a number of and, after rejection of any applications years. The periodic reports on the four from within the Commission, the post applicants show that they all have many will have to be advertised in the other years' experience of translation and have institutions (Article 29 (1) (c) of the Staff all carried out revision work. Each of Regulations)". them has received very favourable periodic repons. 19 December 1980: the date on which the vacancy notice relating to the post of It is therefore common ground that the reviser was posted up in the Commission. four applicants satisfied the requirements set out in the vacancy notice. They 12 January 1981: second letter to Mr allege, however, that the post of reviser Baxter from Mr Hagelin, in which the in question was reserved in advance for latter applied for the post of reviser, and

28 April 1981: the Commission sent 1 December 1981: by four letters bearing identical letters to the other European the same date the Commission rejected institutions asking them to publish the four complaints. Vacancy Notice COM/1144/80. 18 December 1981: the Commission 29 April 1981: further meeting of the adopted the decision to appoint Mr Brussels contact group at which one of Hagelin to the post of reviser with effect the four applicants, Mr Mogensen, from 1 January 1982. stated that the post of reviser should be assigned to one of the internal candi- 22 December 1981: date borne by the dates to which Mr Baxter replied that it application addressed by the four was for the department in question to applicants to the Court of Justice.

MOGENSEN v COMMISSION

8 January 1982: application registered at "(a) Annul the decisions of the the Registry of the Court of Justice. defendant contained in its letters of 28 April 1981 according to which Upon hearing the report of the Judge- the post of reviser (COM/1144/80) Rapporteur and the views of the was not to be assigned to any of the Advocate General, the Court (Second four applicants; Chamber) decided to open the oral procedure without any preparatory inquiry but asked the Commission to (b) Order the defendant to appoint the reply to the following questions by 5 best-qualified of the four applicants March 1983: to the above-mentioned post;

1. The Commission is requested to (c) Order the defendant to pay the inform the Court of its practice costs." regarding promotion in the language service : As a rule, is promotion granted (or In its defence, the Commission contends has it been granted in the past) to that the Court should : officials with the minimum seniority in their grade? Or is promotion only granted at a "Reject the claims made by the later stage? applicants in their conclusions in this case; 2. Would the Commission inform the Court of the documents on which it Order the applicants to pay the costs." relied when appointing Mr Hagelin and explain to the Court the factors that prompted its officers to propose In its rejoinder the Commission further on 20 February 1981 that Mr Hagelin contends that the Court should: be appointed by transfer?

tution before holding any competition posts of principal translator and reviser internal to the institution; furthermore, it are the same. Although the work in both is only as a third step that the appointing cases is similar and neither of the two authority may examine applications for posts is superior or inferior to the other, transfer from officials of other insti- it should, however, be stressed that tutions of the European Communities. certain tasks carried out by a reviser call for abilities which differ from those of principal translators. In this case the Commission refused to appoint one of the four applicants although all four possessed the qualifi- The Commission points out that Mr cations required for the post of reviser. Hagelin holds a Higher Diploma in The appointing authority has therefore commercial language studies (cand. ling, failed to comply with the procedural mere), the languages which he studied rules of Article 29 of the Staff Regu- being German and English.

In the of August 1981 and that it was left Commission's view, v. therefore, . Mr. vacant until 1 January 1982 since Mr Hagelin possesses all the necessary Hagelin could not come until that date. qualifications for the post of reviser Thus phase (c) of the procedure under COM/1144/80. As regards the Article 29 (1) was commenced even applicants, on the other hand, the before phase (a) was completed. Commission refers to the note of 18 March 1981 stating that two of them have recently been promoted to a post in The applicants further submit that the career bracket L/A 5-4 as principal transr Commission cannot rely on Article 27 as lators. As to the other two, Lene justification for the appointment of Mr Øhrgaard and Jean-Louis Delvaux, "the Hagelin since "that provision is in the Head of the Translation Directorate did nature of a provision setting out general not consider that they possessed the aims" whereas Article 29 is "in the necessary experience for the post of nature of a special provision compared reviser". with Article 17" and therefore prevails over the latter. Replying to the allegation that it failed to follow the promotion procedure laid Finally, the applicants ask the Com- down in Article 29 of the Staff Regu- mission to explain its interpretation of lations, the defendant takes the view Article 27 of the Staff Regulations with that the appointing authority is indeed regard, first, to its previous practice and, required to consider first the possibilities secondly, to promotion in the Danish under Article 29 (1) (a) but points out Translation Division. that the carefully shaded wording of Article 29 shows clearly that the ap- pointing authority has a wide discretion In its defence, the Commission notes first in this respect: that fundamental that the qualifications required for the principle has been confirmed in several

judgments of the Court of Justice. ' If, The Commission expresses some reser- therefore, having examined the candi- vations regarding the way in which the datures from within the institutions, the notes and letters annexed to the appointing authority finds that application came into the applicants' promotion or transfer within the possession and it refers in this respect to institution is not possible, it is quite at a judgment of the Court of 17 December liberty either to organize an internal 1981 (Cases 197 to 200, 243, 245 and competition or to arrange a transfer 247/80 Ludwigsha/ener Walzmühle v

for that decision. The appointing auth- ority's obligation is to secure for the institution the services of officials of the highest standard of ability, efficiency and The Commission submits that posts integrity whilst avoiding any discrimi- should be filled primarily having regard nation. In any event, in the present case to the interests of the service and that it is wrong to state, as the applicants therefore the appointing authority must have done, that the appointing authority verify that the possibilities offered by decided in advance to appoint Mr Article 29 do indeed result in the Hagelin because when it declined to fill appointment of a person of the highest the post of reviser by promotion within standard of ability, efficiency and the institution on 18 February 1981, the

promotion. Turning to the applicants' qualifications, the defendant observes in the first place that officials have no right to promotion even if they satisfy the conditions for 1 — Sec judgment of 31 March 1965 ¡n Joined Cases 12 promotion since each post has to be and 29/64 Ley v Commission [1965] ECR 107 and judgment of 25 November 1976, Case 123/75 Küster v filled primarily in the interests of the Parliament [\976] ECR 1701. service, as is clear from Article 27.

JUDGMENT OF 14. 7. 1983 — CASE 10/82

Finally, the defendant submits that the The chronological order of the facts applicants' claim that the Court should show that stage (c) of the procedure compel the Commission to appoint the under Article 29 (1) was commenced best qualified of the applicants to the even before stage (a) had been post of reviser is clearly inadmissible completed. Furthermore the vacancy since the Court cannot issue orders to an notice was not posted in the other institution. institutions, which suggests that the

MOGENSEN v COMMISSION

transfer was to be kept as quiet as Article 29, and constitutes a misuse of possible. powers.

As regards the interpretation of Article Since Mr Hagelin's personal file was not 27, the applicants .do not object to an in the possession of the Commission, the interpretation of that provision to the appointing authority could not have effect that the appointment must be compared his qualifications with those of made in the interests of the service, on the applicants, unless parallel files existed the assumption, however, that that in which case they should be produced concept finds concrete expression in by the Commission. Article 29, that is to say that qualified candidates in an institution are to be preferred to those from outside.

JUDGMENT OF 14. 7. 1983 — CASE 10/82

The applicants maintain finally that in The Commission ephasizes in addition their application they argued, inter alia, that there is nothing unusual in the fact that the defendant was guilty of a misuse that the person in charge of the of powers. That has been largely Commission's Translation Directorate confirmed by Annexes 2 to 12 produced kept himself informed of suitable candi- by the Commission and also by the dates both within the Commission and content of the defence. elsewhere and that he took account, in the course of the assessments he made in February to April 1981, of the fact that a After citing all the requests made in the better-qualified candidate could be reply, the applicants further ask the recruited by transfer from another Court, pursuant to the last paragraph of institution of the European Com- Article 26 of the Staff Regulations, to munities. order that Mr Hagelin's personal file be produced together with any parallel files on Mr Hagelin or the applicants, or The Commission sees no point in both, and for the Head of Division, producing to the Court the alleged Mr Marstrand, and for the Director, parallel files, assuming that they exist, Mr Ciancio, to be heard as witnesses. and reserves its position regarding the use of internal documents by its officials since "it is not prepared to accept that In its rejoinder, the Commission replies the anonymous communication of first to the factual arguments put internal documents referred to in the forward by the applicants : reply (page 11) can be treated in the same way as lawful communication of documents". The explanation of the term "experience regarded as indispensable for the post of reviser" is obvious in the sense that the appointing authority has a wide The Commission repeats and enlarges discretion regarding candidates' quali- upon the legal arguments set out in its fications. defence.

fact such as to justify the applicants' to apply Article 29 (1) (c) of the raising a fresh issue in their reply. Staff Regulations; (e) Communication of 3 June 1981 to Mr Ciancio of the fact that the only IV — Commission's replies to candidature received was that of Mr the written questions put Hagelin; by the C o u r t (see p . 2 4 0 1 supra) (f) Letter of application from Mr Hagelin dated 12 January 1981 Question 1 which was not taken into account at that time during the procedure under . The Commission states that it is Article 29 (1) (a) but was regarded as exceptional for an official to be valid for the procedure under Article promoted immediately on reaching the 29 (1) (c); minimum seniority under Article 45 (1). In 1981, for example, the average (g) Reply dated 19 June 1981 from Mr seniority of officials promoted to Grade Ciancio to the communication L/A 5 was four years and seven months, referred to in (e) asking that the the minimum seniority being two years transfer procedure be opened; and nine months. (h) Mr Hagelin's request for a transfer, sent to the Secretary General of the Council of 6 August 1981; Question 2 (i) The reply to that request dated 16 The Commission states that the October 1981. documents leading up to Mr Hagelin's appointment were as follows: The Commission adds that it did not (a) The eight candidatures from within propose on 20 February 1981 that Mr the Commission transmitted for the Hagelin be appointed by means of a opinion of the director concerned, transfer; the note in question was merely Mr Ciancio; a technical opinion from the relevant directorate and not a proposal submitted (b) Mr Ciancio's opinion proposing that to the appointing authority. the applicants from within the Commission should be rejected and Question 3 reserving the possibility of a proposal to fill the post by transfer; With regard to Annex 12 to the (c) A supplementary note dated 17 application, the Commission submits that March 1981 setting out the reasons Mr Desbois asked Mr Ciancio for his for rejecting the eight candidatures opinion on Mr Hagelin's candidature from within the Commission; and informed Mr Ciancio of the various stages of the procedure which would (d) The decision of 8 May 1981 by enable Mr Hagelin to be transferred. Mr O'Kennedy, Member of the Commission, the appointing auth- With regard to Annex 13 to the ority in this instance: application, the Commission submits that Mr Pignot informed Mr Baxter on 20 not to fill the post under Article 29 February 1981 that Mr Hagelin was a (1) (a) of the Staff regulations, candidate for the post of reviser and not to hold an internal competition. made a proposal that the latter be

Long experience of translation; experience of revision;

Proven active command of language and a sound style."

MOGENSEN v COMMISSION

3 It is common ground that each of the four applicants had all the qualifications stipulated in the vacancy notice. However their applications, which were submitted within the framework of the procedure under Article 29 (1) (a) of the Staff Regulations, were rejected and an official of the Council of the European Communities, who was already working as a reviser in Grade L/A 5 at the Council, was appointed under Article 29 (1) (c) of the Staff Regulations.

4 The applicants submitted to the appointing authority a complaint under Article 90 of the Staff Regulations and then brought the present action which is founded on two principal submissions. The first is that Article 29 (1) of the Staff Regulations has been infringed and the second is founded on the applicants' allegation that the post of reviser in question was reserved in advance for the Council official, as is evidenced, according to them, by all the notes and letters from the relevant departments of the Commission.

s In their reply, the applicants further claim, largely on the basis of the arguments adduced in support of their second submission, that the Commission misused its powers.

29 (1) (a), the carefully shaded wording of Article 29 clearly shows that the authority has a wide discretion in this respect. Thus where the appointing authority finds, as it did in the case in point, that promotion within the institution is not possible, it is quite at liberty either to hold an internal competition (stage (b)) or to arrange for a transfer (stage (c)). An internal competition would have served no purpose in this case since there could not have been any candidates within the institution who were more suitable than those rejected under stage (a), and that was why the Commission passed straight on to stage (c). The Commission considers, moreover, that posts should be filled having regard first and foremost to Article 27, that is to say with a view "to securing for the institution the services of officials of the highest standard of ability, efficiency and integrity". Consequently the appointing authority is not obliged to adopt the method of promotion within the institution, particularly since the decision not to fill a vacant post is a matter for the appointing authority's discretion.

s It should be noted first that the applicants' interpretation to the effect that the appointing authority should have appointed one of them to the vacant post is in contradiction with the fact that Article 29 (1) (a) requires the authority only to consider whether the post can be filled by promotion.

9 The use of the word "can" clearly shows that the appointing authority is under no absolute obligation to promote an official but merely has to consider, in each case, whether promotion is capable of leading to the appointment of a person of the highest standard of ability, efficiency and integrity as required by Article 27 of the Staff Regulations.

1 3 The applicants base their second submission on the assertion that the Commission deliberately reserved the post to be filled for the official from the Council. They submit that the department concerned proposed starting the procedure for transferring that official even before the qualifications of the internal candidates were known. They base their allegation essentially on notes exchanged between the departments of the Commission, and in particular on the note dated 13 June 1980 from the Head of the Recruiting, Appointments and Promotion Division indicating the course to be followed if that official was to be appointed, the note of 18 February 1981 rejecting the candidatures from within the Commission and proposing to fill the post by wa y . o r . transfer and the note dated.20..February 1981 proposing that the official in question be. transferred.

H The Commission states that it is wrong to maintain that the post was reserved in advance for the official from the Council, since on 18 February it did not yet have in its possession the documents relating to that official. In its rejoinder the Commission further points out that its choice was dictated by the desire to choose the best candidate and that it was quite normal for the Commission to keep itself informed of highly qualified candidates from outside the institution and for it to have accordingly taken account of the existence of such a candidate when considering the internal candidates.

is By thus expressly recognizing that it took account of the qualifications of that official from the Council, the Commission is in effect admitting that the Head of the translation department in question wished, even before the vacancy notice was put up, to propose that that official be appointed to the post of reviser. Such an attitude raises the question whether the post of

is In this case there is nothing in the documents before the Court to show that the appointing authority did not in fact consider the qualifications and merits of the internal candidates. It should be noted in this respect, in the first place, that two of the four applicants (Øhrgaard and Delvaux) had only two years' seniority in Grade L/A 6 which is admittedly the minimum seniority required for promotion but is far below the average recorded in 1981 of four years and seven months and that the appointing authority was therefore perfectly entitled to consider that their experience was inadequate. It should also be noted that the other two applicants had also applied for posts of principal translator in Grade L/A 5 (Vacancy Notice COM/1134-1140/80) and were moreover promoted to such posts on 1 March 1981, even before the official from the Council was appointed to the post of reviser. This clearly indicates that, having regard to their files, the appointing authority decided that those two candidates could be appointed to the post of principal translator but not to that of reviser.

i9 Furthermore, neither the allegations made by the applicants nor the documents before the Court justify the conclusion that by appointing a third party, the defendant exercised its discretion in a way that was manifestly erroneous.

MOGENSEN v COMMISSION

20 It is common ground that the official who was in fact appointed had worked as a translator for more than a year for the Commission, then served as a reviser in Grade L/A 5 at the Council as from 1975 and thus had six years' experience in the post to be filled whereas the applicants had served as trans- lators in Grade L/A 6 for little more than two years and were only incidentally engaged in revision.

OPINION OF MR VERLOREN VAN THEMAAT — CASE 10/82

On those grounds,

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

hereby:

1. Dismisses the application;

2. Orders the parties to bear their own costs.

I — Translated from the Dutch.