C-18/83
ECLI:EU:C:1983:362
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JUDGMENT OF 1. 12. 1983 — CASE 18/83
In Case 18/83
DOMENICO MORINA, an official of the European Parliament, of 32 Rue de Kehlen, Mamer, represented by Victor Biel, of the Luxembourg Bar, with an address for service in Luxembourg at the latter's Chambers, 18 A Rue des Glacis, applicant, v
EUROPEAN PARLIAMENT, represented by Manfred Peter, Head of the Legal and Administrative Questions Division, assisted by Alex Bonn, of the Luxem- bourg Bar, with an address for service in Luxembourg at the latter's Chambers, 22 Côte d'Eich, defendant,
APPLICATION for the annulment of a procedure for filling a post of principal administrator (Vacancy Notice N o 3285),
T H E C O U R T (Third Chamber),
composed of: Y. Galmot, President of Chamber, U. Everling and C. Kakouris, Judges,
Advocate General: G. F. Mancini Registrar: J. A. Pompe, Deputy Registrar
gives the following
JUDGMENT
Facts and Issues
The facts of the case, the course of the I — Facts and written procedure procedure and the submissions and arguments of the parties may be 1. By Vacancy Notice No 3285 of summarized as follows: 3 November 1981 the European Par-
MORINA v PARLIAMENT
liament, the defendant in these pro- By letter dated 3 November 1982, which ceedings, commenced the procedure for reached the applicant on 10 November the filling of a post of principal 1982, the President of the European administrator (Career Bracket A 5/A 4) Parliament replied that "this procedure in the Directorate General for Research was interrupted by reason of the transfer and Documentation (post No 1305). The to Directorate General IV of A 5/A 4 vacancy notice indicated that the post post No 1305, which made it impossible was to be filled so far as possible by to proceed with recruitment on the basis transfer or promotion. of the above-mentioned vacancy no- tice . . . the decisions were adopted for The applicant, Domenico Morina, an imperative reasons relating to the service administrator in Grade A 6 in the same and have no personal connection with Directorate General (DG V), who had your application". been eligible within the meaning of Article 45 of the Staff Regulations since 1 January 1979, applied for the vacant 2. This action was brought by an post. application lodged at the Court Registry on 7 February 1983. By memorandum of 6 May 1982 addressed to the Director General for Upon hearing the report of the Judge- Administration, Personnel and Finance, Rapporteur and the views of the the Secretaiy General of the Parliament Advocate General, the Court (Third requested the immediate transfer of Chamber) decided to open the oral A 5/A 4 post No 1305 from the Legal procedure without any preparatory and Budgetary Affairs Division (DG V) inquiry. to the Treasury and Accounts Division (DG IV) and as a result it was impossible to continue with the procedure for filling the vacancy. II — C o n c l u s i o n s of the p a r t i e s The applicant was informed of the canc- ellation of the procedure by a The applicant claims that the Court notification slip from the administration should: to which the words "Procedure cancelled by the appointing authority" were added. Declare that the application is By letter of 28 July 1982, which was admissible; received on 29 July 1982, Mr Morina lodged an objection under Article 90 (2) As to its substance, declare that it is well of the Staff Regulations against the founded; decision cancelling the procedure for filling the post. He claimed that the decision was addressed to him Declare that the decision transferring the personally, since he had a personal and vacant post, during the procedure ful- individual interest in the matter. The filling it, to another Directorate General complaint went on to say that "the is illegal and accordingly annul it; absence of any statement of reasons may oblige me to apply to the Court of Justice to obtain cancellation of a Declare in any case that the interruption decision which manifestly affects me of the procedure is illegal and that the adversely". European Parliament must bring it to a conclusion;
JUDGMENT OF 1. 12. 1983 — CASE 18/83
Remit the case for that purpose to the procedure for filling it. No such claim European Parliament; was made in the complaint. In the third place, the question arises Order the defendant to pay the whole of whether the decision to cancel the the costs. procedure, which was of a general nature, can adversely affect the The European Parliament contends that applicant. In that respect, however, the the Court should: case-law of the Court would appear to show that the implied rejection of an Take note that the defendant leaves to application arising from the cancellation the Court the question of the of a procedure is capable of adversely admissibility of the application; affecting the person concerned. As to its substance, dismiss the The applicant objects that he is suffering application; present damage since he is in a situation protected by law. By submitting his Make an order as to costs in accordance application, he became entitled to rely with the applicable provisions of the upon the lawful completion of the Staff Regulations. procedure and upon the administration's exercising its powers in that respect in accordance with the obligations incumbent upon it. Ill — Submissions and argu- m e n t s of t h e p a r t i e s 2. The substance
1. Admissibility The application is based on the following submissions and arguments: The European Parliament, which leaves (a) infringement of the Staff Regu- to the Court the matter of admissibility, lations, breach of the principle of expresses doubts on three points : good administration and misuse of powers; In the first place, since the applicant obtained satisfaction regarding his (b) breach of the principle of the complaint, there is no longer any ground protection of legitimate expec- for bringing the present action. In his tation; complaint Mr Morina confined himself to requesting clarification regarding the (c) failure to state the grounds on cancellation of the procedure for filling which the measure was based. the post. That clarification was given to him in the reply from the President of (a) Infringement of the Staff Regu- the Parliament, who stated that the lations, breach of the principle of procedure had been cancelled for reasons good administration and misuse of relating to the service, which had no powers connection with the applicant's ap- plication. The applicant states that there is no objective reason based on the interests of In the second place, the application did the service which can justify the transfer not state its true purpose which was to of the post in question during the obtain a declaration of the illegality of, procedure for filling it. The transfer was and to annul, the decision to transfer the decided upon not in the interests of the post which was adopted during the service but in order to eliminate the
MORINA v PARLIAMENT
applicant and favour another official was issued in respect of that post for who had to be "fitted in". In any event, the recruitment of an administrator the interests of the applicant were not responsible for imprest accounts. taken into consideration since the administration had available at least two other posts provided for in the budget, (b) Breach of the principle of the for which there was no vacancy notice. protection of legitimate expectation
By acting in this manner the Parliament The applicant considers that the ad- has caused the applicant present and ministration cannot, as a matter of personal damage. The applicant was principle, withdraw an offer of em- virtually the only candidate eligible for ployment without contravening the promotion to the post in question. principle of the protection of legitimate Moreover, he had been proposed for the expectation. Since the publication of a post by his superiors. vacancy notice under Article 4 of the Staff Regulations should attract the best- The European Parliament replies that placed candidates, those of the candi- whilst Article 29 of the Staff Regulations dates who fulfil the conditions for obliges the appointing authority, before admission have a legitimate expectation commencing any competition, to that they will be appointed to take up the examine the possibilities of promotion duties in question. and transfer within the institution, that obligation relates only to consideration The applicant satisfies all the conditions of the possibilities of appointment and for admission and, moreover, was not to an actual appointment which the proposed for the post by his superiors. In appointing authority is not obliged to those circumstances, his appointment to make (judgment of 31 March 1965 in the post described in the vacancy notice Joined Cases 12 and 29/64 Ley v had become a near certainty which was Commission [1965] ECR 107). It follows tantamount to a genuine vested personal that the applicant can claim no objective right. right to promotion (judgment of 25 November 1976 in Case 30/76 Küster [1976] ECR 1719). That rule applies The European Parliament states by way particularly in this case since there were of reply that there is no foundation for three other candidates for the vacant any allegation of a breach of the post. principle of the protection of legitimate expectation in cases such as this one where the application for appointment to According to the Parliament, the transfer the post was set aside for objective of the vacant post to another Directorate reasons relating to the service. General was decided upon for imperative reasons relating to the service and was wholly unconnected with the applicant's Moreover, according to the judgment of application. The transfer involved a 24 June 1969 (Case 26/68 fux [1969] change in the nature of the duties ECR 145), there is nothing in Article 4 attaching to the post and therefore there or Article 29 of the Staff Regulations to was no point in proceeding with an say that once a recruitment procedure appointment on the basis of the vacancy has been commenced the appointing notice. In fact, the new duties attaching authority is obliged to pursue it by filling to post No 1305 involve accountancy the post which has become vacant, since and, after the transfer, a vacancy notice those provisions are intended merely to
JUDGMENT OF 1. 12. 1983 — CASE 18/83
ensure that the appointing authority Since it is not permissible to remedy the makes only appointments which are in absence of a statement of the reasons on conformity with the rules prescribed by which a measure is based during the law. proceedings before the Court (judgment of 26 November 1981 in Case 195/80 Finally, the appointing authority cannot Michel [1981] ECR 2861), the transfer attach more importance to a contingent decision must be annulled. advantage which an official may obtain According to the European Parliament, in the future from a recruitment the allegation regarding the absence of procedure than to certain and present any statement of reasons is unfounded, needs which, in the interests of the since the applicant was informed as to service, require it to take immediate the outcome of his application. It is measures. apparent from the words "Procedure cancelled by the appointing authority" (c) Failure to state the reasons on which appearing on the notification slip sent by the measure was based the administration to the applicant that The applicant claims that the decision to the procedure was discontinued for a transfer the post does not disclose to him reason relating to the service rather than the reasons on which it was based, since that the application had not been it contains no explanation regarding the accepted. alleged interests of the service. Since the vacant post corresponds in all respects to his activities and experience and since he IV — Oral p r o c e d u r e was the candidate proposed for the post, it was particularly important for the said The parties presented oral argument at decision properly to state the reasons the sitting on 20 October 1983. upon which it was based as far as the The Advocate General delivered his applicant was concerned. opinion at the same sitting.
Decision
1 By application l o d g e d at the C o u r t Registry o n 7 February 1983, D o m e n i c o M o r i n a , an administrator in G r a d e A 6 in the Directorate General for Research and D o c u m e n t a t i o n ( D G V ) of the E u r o p e a n Parliament, b r o u g h t an action r e g a r d i n g the cancellation by the E u r o p e a n Parliament of a p r o c e d u r e to fill the post of a principal administrator (Career Bracket A 5 / A 4 ) in the Legal Affairs Division of that Directorate General (Vacancy N o t i c e N o 3285 of 3 N o v e m b e r 1981).
2 T h e applicant, w h o was eligible for p r o m o t i o n within the m e a n i n g of Article 45 of the Staff Regulations, h a d applied for the vacant post, the vacancy
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notice for which stated that the post would be filled for preference by means of transfer or promotion.
3 By decision of 6 May 1982, the Secretary General of the European Par- liament ordered the immediate transfer of the post to the Treasury and Accounts Division of Directorate General IV. Since that transfer entailed a change in the nature of the duties attaching to the post, the administration cancelled the procedure to fill the post and informed the applicant thereof by means of a notification slip bearing the words "Procedure cancelled by the appointing authority".
4 On 29 July 1982, Mr Morina lodged a complaint against that cancellation under Article 90 (2) of the Staff Regulations and asked to be informed of the reasons therefor. By letter of 3 November 1982 the President of the Par- liament rejected the complaint, stating that the procedure for filling the post had been interrupted because the post had been transferred to Directorate General IV and the transfer had made it impossible for the procedure to continue on the basis of the vacancy notice. The letter added that "the decisions taken were adopted for imperative reasons relating to the service and have no personal connection with your application".
5 This application, which was lodged on 7 February 1983, seeks on the one hand cancellation of the decision transferring the post and, on the other, a finding that the interruption of the procedure for filling the post was unlawful.
Admissibility
6 The European Parliament, without formally raising an objection of inadmissibility, has expressed doubts regarding the admissibility of the application in so far as its subject-matter is different from that of the complaint. The complaint should be regarded, it states, as a mere request for clarification as to the reasons for the cancellation of the procedure for filling the post, whereas the application seeks annulment of the decision transferring the post.
JUDGMENT OF 1. 12. 1983 — CASE 18/83
7 It is apparent from the complaint that, whilst the applicant did in fact ask for information regarding the reasons for cancellation of the procedure for filling the post, he also took care to explain that in the absence of clarifi- cation as to those reasons he would be obliged to bring an action before the Court for annulment of a decision which manifestly affected him adversely. In those circumstances, there is no disparity between the complaint and the application and the application must be considered admissible.
Substance
8 The applicant complains in the first place that the European Parliament breached the principles of the protection of legitimate expectation and good administration by transferring the vacant post during the procedure for filling it and thus withdrawing its offer of employment.
9 As the Court held in its judgment of 24 June 1969 (Case 26/68 Fux [1969] ECR 107), the provisions of the Staff Regulations regarding the filling of vacant posts are intended to provide a guarantee for the person concerned that the appointing authority will make appointments only in conformity with the rules prescribed by law. However, it does not follow from those provisions that once a recruitment procedure has been initiated the said authority is necessarily obliged to pursue it by filling the post which has become vacant. That submission must therefore be rejected.
io The applicant also maintains that the decision transferring the post in question did not sufficiently state the reasons on which it was based in relation to the applicant, since it contained no explanation regarding the alleged interests of the service invoked by the Parliament.
n The statement of the reasons on which a decision adversely affecting an official is based must enable the Court to review the legality thereof and must provide the person concerned with details sufficient to allow him to ascertain whether or not the decision is well founded. The requirement of a statement of reasons must nevertheless be considered in the context of the circumstances of the case, particularly the scope of the measure, the nature of the reasons relied upon and the interest which the addressee may have in receiving an explanation. Particularly in the case of a measure involving the
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organization of the service, it must be emphasized, moreover, that the obligation to give a statement of grounds must be related to the margin of discretion available to the appointing authority in this connection, as the Court held in its judgments of 28 May 1980 (Joined Cases 33 and 75/79 Kuhner [1980] ECR 1677) and of 29 October 1981 (Case 125/80 Anting [1981] ECR 2539).
12 Although, in the present case, the administration initially confined itself to informing the applicant of the fact that the procedure for filling the post had been cancelled, without stating the reasons for so doing, it nevertheless stated, in response to his complaint, that the procedure had been interrupted because of the transfer of the post and that the contested decisions had been adopted for reasons relating to the service which were unconnected with the applicant's application. In this case, a statement of reasons of that kind must be regarded as sufficient to enable the applicant to safeguard his rights. That submission also must therefore be rejected.
1 3 The applicant finally accuses the Parliament of misusing its powers in so far as the transfer was decided upon not in the interests of the service but in order to eliminate the applicant and to favour another official.
1 4 It should be noted in that connection that the applicant has given no details of his complaint and has not adduced any evidence to support such an allegation. Moreover, in view of the explanations given by the European Parliament at the hearing, the interests of the service upon which it relies have been established. This submission must therefore likewise be rejected.
15 Since none of the applicant's submissions has been successful, this action must be dismissed.
Costs
16 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.
OPINION OR MR MANCINI — CASE 18/83
i7 However, by virtue of Article 70 of the Rules of Procedure, the costs incurred by institutions in actions brought by servants of the Communities are to be borne by the institutions.
On those grounds,
T H E C O U R T (Third Chamber)
hereby:
1. Dimisses the application;
2. Orders the parties tö bear their own costs.
Galmot Everling Kakouris
Delivered in open court in Luxembourg on 1 December 1983.
For the Registrar H. A. Rühi Y. Galmot Principal Administrator President of the Third Chamber
O P I N I O N OF M R ADVOCATE GENERAL MANCINI DELIVERED O N 20 OCTOBER 1983 '
Mr President, on a number of claims made against the Members of the Court, Parliament by Domenico Morina, an employee thereof, seeking the annulment 1. The application of 7 February 1983 of two decisions, the first of which giving rise to the present action is based relates to the cancellation of a vacancy
1 — Translated from the Italian.