C-316/82

JUDGMENT OF 9. 2. 1984 — JOINED CASES 316/82 AND 40/83

none the less that, in filling a post in accordance with the competition declared vacant, the appointing results and cannot deviate from that authority must proceed with the rule except for weighty reasons, appointment of successful candidates justifying its decision clearly and fully.

In Joined Cases 3 1 6 / 8 2 a n d 4 0 / 8 3

NELLY K O H L E R , an official at t h e C o u r t of Auditors of the E u r o p e a n C o m m u n i t i e s , residing at 34 R u e J.-B. Fresez, L u x e m b o u r g , represented a n d assisted b y Francis H e r b e r t of t h e Brussels Bar, 116 Avenue de Broqueville, 1200 Brussels, with an address for service in L u x e m b o u r g at t h e C h a m b e r s of Nicolas D e c k e r , 16 Avenue M a r i e - T h é r è s e , applicant,

ν

COURT OF AUDITORS O F T H E EUROPEAN COMMUNITIES, represented by J e a n - A i m é Stoli, Secretary of t h e C o u r t of Auditors, assisted b y Alex B o n n of the L u x e m b o u r g Bar, with, an address for service in L u x e m b o u r g at t h e C h a m b e r s of t h e said Alex B o n n , 22 C ô t e d'Eich, defendant,

JUDGMENT

Facts and Issues

The facts of the case, the course of the he notified her orally of his decision not procedure, and the conclusions, sub­ to appoint her to the post in the French missions and arguments of the parties section, in view of her lack of may be summarized as follows: experience.

JUDGMENT OF 9. 2. 1984 — JOINED CASES 316/82 AND 40/83

1982, as inadmissible on the ground that 3. Upon hearing the report of the it had not been preceded by a request. If Judge-Rapporteur and the views of the that were the case, the first complaint Advocate General the Court (Third should be treated as a written request Chamber) decided to open the oral under Article 90 of the Staff Regulations, procedure without any preparatory rejected as such by the appointing auth- inquiry. However, it called upon the ority's decision, mentioned above, of 14 parties to reply to certain questions; the September 1982. The latter decision was parties complied within the permitted challenged by the (second) complaint, of period. 13 December 1982.

9. By a decision of 2 February 1983, I I I — C o n c l u s i o n s of t h e p a r t i e s the appointing authority rejected the fresh complaint as having been brought In Case 316/82, he applicant claims that out of time, arguing in particular that its decision of 14 September 1982 served the Court should : merely to confirm its decision of 21 July 1982, which must be regarded as the 1. Declare the application admissible; decision adversely affecting the appli- cant. The period permitted by Article 90 2. Order the personal appearance of the (2) therefore started to run from 21 July successive appointing authorities in 1982, the date on which all members of office during the recruitment pro- staff were informed by the posting of the cedure which was commenced by memorandum on the notice board. Vacancy Notice No C C / L A / 3 / 8 1 ;

Award costs in accordance with the Furthermore, the appointing authority applicable provisions of the Staff contends that it cannot be accused of Regulations. omitting to take a decision with regard to the applicant, because there is no (b) In Case 40/83 obligation under the regulations to take Make such order as it thinks fit as to such a decision. The appointing auth­ the admissibility of the action; ority is under no obligation to pursue the competition procedure or to fill the Hold the action to be unfounded; vacancy with a candidate whose name is Dismiss the action; on the list of suitable candidates, which the defendant alleges to have been Award costs in accordance with the demonstrated by the Court's judgment of applicable provisions of the Staff 24 June 1969 in Case 26/68 (Fax ν Regulations. Commission [1969] ECR 145). In cancel­ ling the original vacancy notice and In both cases the defendant takes the abandoning the competition procedure, view that the preparatory inquiry sought the appointing authority acted in the by the applicant is pointless, since the interests of the service without taking facts of the case are not in doubt and are any decision with regard to the applicant sufficiently clear in law. or any other step which might be regarded by her as affecting her adversely. IV — Submissions and arguments Admittedly, the applicant could have of t h e p a r t i e s induced the appointing authority to take a decision with regard to her — even a 1. Case 316/82 negative one — by submitting to it a request under Article 90 of the Staff Admissibility Regulations. However, since she had The defendant pleads the inadmissibility failed to do so, the procedure laid clown of the action on two counts; the absence by the regulations was not, in the of a negative decision with regard to the defendant's view, set in motion; hence person concerned, and the absence of the applicant could not postulate the any act adversely affecting her. existence of a written decision stating the grounds on which it was based, rejecting The defendant argues in particular that, her request. The appointing authority under Article 25 of the Staff Regulations, was therefore fully entitled to reject her any decision relating to a specific complaint as inadmissible. individual which is taken under the regu­ lations is to be communicated at once in Lastly the defendant contends that, writing, and any decision adversely whilst it is not essential under the regu­ affecting an official is required to state lations for a complaint to have been the grounds on which it is based. preceded by a request where the Consequently, the absence of any written complaint is directed against an act, in

The applicant claims that the defendant's The applicant further states that if she objection on the grounds of in­ had not lodged the complaint she would admissibility is unfounded and rests on still to this day have not received the an erroneous conception of the communication in writing of the administrative procedure laid down by individual decision informing her that no the regulations. action was to be taken to give effect to the results of Competition N o CC/LA/ She argues that the admissibility of a 12/81. The defendant cannot therefore complaint is not subject to the prior plead in its favour, by way of denying submission of a request. A prior request, that there was any act which prejudiced being designed solely to enable the the applicant, the fact of its own non­ person concerned to induce the compliance with a mandatory provision appointing authority to take a decision, of the Staff Regulations (Article 25), by is indeed superfluous, since the official in analogy with the principle nemo auditur question has had notice of an act on suam propriam turpitudine™ allegans. the part of the appointing authority adversely affecting him, and such an act Furthermore, the defendant's allegation is present in this case. that there is no act adversely affecting an official in the absence of any written decision is viewed by the applicant as Indeed, under Article 90 (2) of the Staff causing the existence of an adverse act to Regulations, an official is enabled to be assimilated to, not to say fused with, lodge a complaint "against an act the validity thereof, which latter, in the adversely affecting him". In the case of an individual decision, is subject applicant's view, the condition involved to compliance with Article 25 of the is a substantive one and not one of form. Staff Regulations. The complaint was therefore admissible, as it is established that it was made, The reasoning expounded by the de­ within the period permitted under the fendant would lead to an absurd result regulations, against "an act adversely inasmuch as the very fact of the affecting" her. objections' .capable of causing the contested act to be annulled would auto­ In this instance, the oral notification to matically make any legal action based on the applicant at the interview of 21 April those objections inadmissible for lack of 1982 that she was not to be appointed to any decision. the post declared vacant amounts to an act adversely affecting her, since it is In reply to that last argument of the capable of directly affecting her legal applicant, the defendant contends in its position in a clear and unconditional rejoinder that the probelm lies in the way, within the meaning of the case-law classification of the act adversely of the Court in Cases 32/68 (judgment affecting an official. If that act were of 10 December 1969, Grasselli ν Com­ constituted by an express individual mission [1969] ECR 505) and 42/72 decision it would have to be in written (judgment of 8 February 1973, Goeth ν form. If it consisted in an implied Commission [1973] ECR 181). The legal decision it would have to be preceded by significance of the oral communication a request. Alternatively, an act adversely

The applicant argues that the defendant's conduct towards her infringes Article 25 Breach of the principle prohibiting the of the Staff Regulations inasmuch as she appointing authority from overturning did not at any time receive written the decision of the selection board notification of the decision which was intimated to her orally at the interview on 21 April 1982. Even the reasons for The applicant maintains that the that decision, subsequently communi­ defendant is in breach of the principle up­ cated to all members of staff, were not held by the case-law of the Court, ac­ addressed to her by individual decision. cording to which the appointing In that connection she refers to the authority may not reverse the selection Court's judgment of 29 October 1981 in board's decisions as regards the Case 125/80 (Anting ν Commission fulfilment of the conditions set out in the [1981] ECR 2539), in which the Court vacancy notice. By admitting the stated that the communication in writing applicant to the competition the selection of an individual decision could not be board had already come to a decision on replaced either by mere publication or by her level of experience, which was

JUDGMENT OF 9. 2. 1984 — JOINED CASES 316/82 AND 40/83

In any case, the defendant's conduct was illegal since it wished either to overturn In her reply the applicant points out the the conditions set out in the vacancy alleged inconsistency of the reasons cited notice or else to modify the post to be to her, which are no more than filled, which similarly amounts to attempted justifications made ex post altering the vacancy notice without facto and adapted to match the notifying the applicant, as required under arguments put forward by the applicant. Article 25 of the Staff Regulations. In particular, whereas the refusal to appoint the applicant was justified at the interview on 21 April 1982 by reference to the inadequacy of her experience and whereas the memorandum of 21 July The defendant observes that there was no 1982 uses the wording “in the light of inconsistency in the reasons given for its certain results of the procedure for filling decisions, because the interests of the the said post” — words which, inci- service which alone dictated the decision dentally, point clearly to a misuse of not to pursue the competition procedure powers — the decision of 14 September were unchanged. It is therefore not a

KOHLER ν COURT OP AUDITORS

The applicant adduces the argument of discrimination which contravenes the Failure to comply with the terms of the principle of equality embodied in Article vacancy notice 5 (3) of the Staff Regulations, in the form of the refusal to appoint her, when, by contrast, the successful candidates in the two other, parallel competitions for the Danish and Italian sections were Inasmuch as the appointing authority appointed to the posts declared vacant. wished to depart from the conditions The applicant claims in this connection regarding experience set out in the that Vacancy Notice No CC/LA/3/81 vacancy notice, the applicant asserts that formed part of a wider recruitment there was an infringement of the duty to procedure. The comprehensive nature of remain within the framework of pro­ that procedure was demonstrated by the cedures and qualifications — a duty identical wording of the vacancy and which the appointing authority had competition notices, by the identical imposed on itself by virtue of the membership of the selection board and vacancy notice. According to the Court by the fact that the appointing auth­ (judgments of 30 October 1974, Case ority's decisions at eveiy stage were 188/73 Grassi ν Council [1974] ECR taken on the same date. This confirms 1099, and of 17 December 1981, Case that, as far as the appointing authority 151/80 De Hoe ν Commission [1981] was concerned, recruitment needs were, ECR 3161), the basic function of a throughout the recruitment procedure, vacancy notice is to give those interested identical in the three translation sections the most accurate information possible involved.

The applicant further adds that the powers, inasmuch as the appointing infringement of Article 5 (3) is all the authority, when taking the decision, was more self-evident inasmuch as, by the not guided by considerations relating to date on which the contested decision was the interests of the service, as Article 7 of notified to her, she had for more than a the Staff Regulations demands that it year been performing duties which should be, but by considerations of the matched the description of the post of respective personalities of the applicant reviser and principal translator. and her colleague, Mr B, a translator in Grade LA 6, Step 1, belonging to the In the defendant's opinion, the different same French translation department, who treatment of the sections is explained by was also a candidate in Internal Com- a different method of organizing the petition N o CC/LA/12/81 but who was French section, which the administration not entered on the list of suitable cand- proposed to improve by annulling a re- idates. cruitment procedure which did not sufficiently take account of the position. By adopting the disputed measure, there- The defendant contends that the fore, the appointing authority pursued a applicant even admitted the difference in goal other than the legal one. structure between the sections con- cerned, by writing that the French section differed from the Danish and In support of that submission the Italian sections in having neither a reviser applicant argues that the defendant has nor a head of section available to it. not established the circumstances justifying its change of mind on 21 April Moreover, the similarity of the pro- 1982, when it abandoned the procedure cedures followed is unimportant. The which it had followed until then.

That was the the first time in order to counter her reason for which the appointing auth- arguments. ority changed its mind. The applicant therefore asserts that is was for the purpose of preserving "his candidate's" Misuse of powers chances of promotion that the President of the Court of Auditors, acting as The applicant states that the contested appointing authority, adopted the decision is vitiated by a misuse of contested decision. The interests of the

service were pleaded only as a last resort, most, that the appointing authority when it became clear, following the ceased overtly favouring its preferred complaint from the applicant, that she candidate after the commencement of was not deluded or unaware that the proceedings, but such was not its aim at decision of the selection board regarding the outset. She further remarks that her experience were unchallengeable and the defendant does not dispute her could not be called in question by the description of Mr B's duties. appointing authority. None the less, according to the It is in that context that an appraisal defendant's explanations in the rejoinder, must be made of the appointing auth­ the memorandum referred to by the ority's organization of a further applicant in her reply constitutes an competition, stipulating conditions which internal organizational measure, adopted are clearly designed to exclude the pending the outcome of the competition applicant whilst admitting her colleague. for filling the post of head of the French The preference for Mr Β was further section, Mr Β being the official with the borne out in so far as, from 21 April greatest seniority in his grade. 1983 onwards, he had enjoyed de facto recognition as reviser and head of the Preparatory inquiry French section, taking part in revisers' meetings and even sitting as a member of a selection board. The applicant adduces The applicant requests that, should the in evidence, annexed to her reply, a Court of Justice take the view that the memorandum dated 21 February 1983 arguments for annulment set out above from the head of the language are not sufficiently substantiated, it department of the Court of Auditors, should summon the successive appointing assigning the duties in question to Mr B. authorities who acted during the recruit­ ment procedure initiated by Vacancy Notice No CC/LA/3/81, namely The defendant strongly denies the William Murphy and Pierre Lelong, to admissibility and basis of that submission appear in person before it. The applicant and protests against the charges brought asks that Mr Murphy should be against it by the applicant. It contends questioned on the conditions set forth that, in taking its decision, it was in that vacancy notice and on their genuinely guided by the interests of the compatibility with the interests of the service aimed at a better organization of service, and that Mr Lelong should be the administration, appraisal of which is questioned on the terms of, and reasons a matter for the appointing authority given for, the decision notified to the alone and not for an official protecting applicant during the interview of 21 her own interests. April 1982.

Infringement of essential procedural The defendant raises a question regarding requirements the admissibility of the application, but leaves the matter in the last resort to the Court; it briefly recalls its view already (a) Incorrect, or at least inadequate, expressed in the decision of 2 February statement of reasons 1983 rejecting the applicant's complaint, namely that the disputed decision which - The applicant points out the contra­ caused the period for lodging a diction between the reasons supplied by complaint to start to run was the the appointing authority, variously decision of 21 July 1982, not that of 14 during the interview of 21 April 1982, in September 1982, which merely served to the decision of 14 September 1982 and in confirm the earlier decision of which the the letter of 2 February 1983. Employing applicant was fully informed on the same a line of argument already summarized day, 21 July 1982. above, she claims, in essence, that the defendant altered the successive statements of reasons provided to explain In the applicant's opinion, the measure its conduct, and that that attitude raises under challenge is the decision of 14 doubts as to the correctness of the September 1982 rejecting her request of reasons given in the decision of 14 24 May 1982, not the staff memorandum September 1982. of 21 July 1982, which does not amount to an individual measure. Thus, the Even if it were true, as the defendant commencement of the period for lodging asserts, that the reasons given were a complaint was 14 September 1982, the actually consistent, the applicant main­ date on which the reasoned individual tains that the reasons stated by the decision on her case was communicated. disputed decision do not satisfy the In that connection she recalls that the requirements of Article 25 of the Staff Court, in its judgment in the Arning case Regulations, because the general (cited above), emphasized that the com­ wording employed in the decision of 14 munication in writing of an individual September 1982 did not give the decision cannot be replaced either by applicant " a n opportunity of com­ mere publication or by any interview menting on the factors which in the final with the applicant's superiors. If the analysis seem decisive", as is demanded decision of 14 September 1982 was " a by the case-law of the Court (judgment confirmatory measure", as the defendant of 30 June 1971, Case 19/70 Almini ν contends, it could serve only to confirm Commission [1971] ECR 623). an earlier individual decision of 21 July 1982, which the defendant denies. In this instance, the fact — pointed out by the The defendant repeats its view expressed defendant institution — that the staff above in Case 316/82, that there has memorandum of 21 July 1982 was been no change in the reasons stated, circulated to all members of staff at the because the interests of the service which Court of Auditors confirms that it alone dictated the decision not to pursue cannot be an individual decision the competition procedure were un-

changed. It is, indeed, a matter of elab­ Misuse of power orating and explaining the reasons already intimated to Mrs Kohler at the In making her submission, the applicant interview of 21 April 1982 with the employs the same arguments as those set appointing authority. forth in Case 316/82, namely that the disputed decision was designed to (b) Communication made out of time eliminate her as a candidate in favour of her colleague, Mr B. The applicant claims that, whatever the true reasons for the contested decision, The defendant, too, refers to its argu­ they were communicated out of time, ments set forth in Case 316/82, whereby that is, six months after the interview of it stated that the decision at issue was 21 April 1982. The defendant, on the not taken against the applicant and was other hand, contends that that was not aimed at her as a candidate. the time at which the conditions in the vacancy notice began to reveal themselves as unsuitable, and that it was nearly ten months after the interview Preparatory inquiries that the overriding urgency of the need to appoint a head of section and reviser As in Case 316/82, the applicant in the French section became apparent. proposes that the successive appointing authorities, namely William Murphy and The defendant considers that the ex­ Pierre Lelong, be examined in person. planations of the approach adopted, The applicant asks that Mr Murphy summarized above, are equally valid to should give evidence on the conditions demonstrate that there can be no set forth in Vacancy Notice No CC/LA/ question of its having communicated the 3/81 and on their compatibility with the reasons out of time. Furthermore, the interests of the service, and that Mr discrepancy in dates pointed out by the Lelong should give evidence on the applicant is explained by the course of wording and reasoning of the decision events and, in particular, by the notified to the applicant by the letter of appointing authority's concern to study 14 September 1982. the arguments put forward by the applicant and to ascertain whether, and The defendant is of the opinion that it is if so to what extent, the path followed by pointless to seek the preparatory inquiry the administration might have proved to requested. be wrong.

2 Simultaneously with the procedure for that competition, two further pro- cedures were commenced for the posts of "reviser/principal translator" in the Danish and Italian sections. The vacancy and competition notices for all three were worded in identical terms. The successful candidates in the competitions for the Danish and Italian sections were appointed by decision of the appointing authority on 21 April 1982. On the same day, however, at an interview with the President of the Court of Auditors, the applicant was refused appointment to the post of "reviser/principal translator" in the French section, which was the subject of Vacancy Notice N o C C / L A / 3 / 8 1 and of Internal Competition N o C C / L A / 1 2 / 8 1 , in which she had suc- cessfully taken part, becoming the only person to be entered on the list of suitable candidates.

3 Her complaint of 24 May 1982 under Article 90 (2) of the Staff Regulations was rejected by a decision dated 14 September 1982 of the President of the Court of Auditors, acting as the appointing authority. The complaint was held to be inadmissible on the grounds that it was not preceded either by a request or by a rejection thereof, and was in any case unfounded.

KOHLER ν COURT OF AUDITORS

4 In the meantime, by a staff memorandum of 21 July 1982, corrected on 23 July 1982, the vacancy referred to by Notice No CC/LA/3/81 was cancelled by the administration, on the grounds that "it has become apparent, especially in the light of certain results of the procedure for filling the said post, that the conditions laid down by the vacancy notice were not in keeping with the needs of the department".

JUDGMENT OF 9. 2. 1984 — JOINED CASES 316/82 AND 40/83

9 The possibility that a legally actionable decision may have oral form is not in principle precluded either by a provision of general scope or by any special provisions in the Staff Regulations.

10 In particular, Article 90 (2) of the Staff Regulations, which provides that officials "may submit to the appointing authority a complaint against an act . . .", does not prevent such an act from being expressed orally.

1 1 Furthermore, the possibility that an act may have oral form is not precluded by Article 25 of the Staff Regulations, which provides that: "Any decision relating to a specific individual . . . shall at once be communicated in writing to the official concerned." The communication is, indeed, an act subsequent to the decision (judgment of 29 October 1981, Case 125/80 Arning [1981] ECR 2539), that decision having been already adopted and having prior existence. The defendant is therefore wrong in interpreting Article 25 of the Staff Regulations as meaning that it calls for writing as a prerequisite for the existence of the act to be communicated.

12 It is common ground that, at the interview on 21 April 1982, the appointing authority expressly intimated its intention not to pursue the procedure by appointing the applicant to the post declared vacant. That oral decision constitutes an act for the purposes of Article 90 of the Staff Regulations.

13 It follows that the defendant's argument as to the absence of any written form for the disputed act is unfounded quite apart from the fact that to accept the arguments of the Court of Auditors would be tantamount to allowing it to take advantage of an infringement, which it has itself committed, of Article 25 of the Staff Regulations so as to deprive the applicant of her right of action.

18 The Court takes the view that, in the first instance, it should consider the argument concerning the inadequacy of the statement of the reasons on which the contested decision was based.

Statement of reasons

19 In this submission, the applicant basically asserts that in spite of the various statements of reasons to which the Court of Auditors has pointed, one after the other, none may be considered to afford a valid basis for the disputed decision.

JUDGMENT OF 9. 2. 1984 — JOINED CASES 316/82 AND 40/83

23 In the present instance there was a special need for such justification, because the Court of Auditors had, simultaneously with the competition at issue, opened two further competitions for filling the posts of "reviser/ principal translator" in the Danish and Italian sections, and had had no difficulty, on 21 April 1982, in appointing the successful candidates in those competitions. It was thus appropriate, in order to preclude any accusation of discrimination, to explain why the same step could not have been taken in

KOHLER ν COURT OH AUDITORS

regard to Mrs Kohler, as the successful candidate in Competition N o CC/ LA/12/81.

24 In that regard, the Court observes that the defendant, at the various stages in the dispute, in the administrative phase and later before the Court, adduced reasons which are hard to reconcile with one another and which, moreover, are not borne out by the documents on the file.

25 Although the reason cited at the interview of 21 April 1982 was the applicant's lack of experience, it should be pointed out that the selection board, which had entered Mrs Kohler on its list of suitable candidates for performing the tasks of reviser and principal translator in the French translation section, had just made an assessment to the contrary, which the administration was not entitled to challenge.

26 Whilst the staff memorandum of 21 July 1982 and the decision dated 14 September 1982 rejecting the applicant's complaint both record the inap­ propriate nature, in terms of the needs of the service, of the conditions laid down by the vacancy notice, it is apparent from the documents on the file that their inappropriate nature was cited "in the light of certain results" of the competition. The inference must be drawn that the administration, in using that formula, still intended to contest Mrs Kohler's ability to perform the duties for which she had recently competed and, acting ultra vires, to challenge the selection board's appraisal of her merits.

Β — Case 40/83

Admissibility

31 The action in this case, brought in the alternative to Case 316/82, is directed against the decision of 14 September 1982 rejecting the applicant's complaint.

32 As has already been demonstrated in the examination of Case 316/82, the decision adversely affecting the applicant is the oral decision communicated to her at the interview on 21 April 1982.

33 Consequently, the decision of 14 September 1982 can be no more than a confirmation of the earlier oral decision.

34 However, being a confirmatory act it cannot be the subject of proceedings before the Court.

hereby:

1. Annuls the decision of the appointing authority of the Court of Auditors of 21 April 1982 not to pursue the procedure for filling the post declared vacant by Vacancy Notice No CC/LA/3/81 by appointing the applicant thereto;

2. Dismisses the application in Case 40/83 as inadmissible;

3. Orders the Court of Auditors to pay the costs.

Galmot Everling Kakouris

Delivered in open court in Luxembourg on 9 February 1984.