C-233/85

Mr President, later date, from the Head of the Directorate Members of the Court, for Personnel, Administration and Trans­ lation, the decisive factor in the choice of Mr Tutzschky was his 'managerial' qualities 1. In order to select the heads of the trans­ in regard to the section concerned, which lation sections set up within each language were considered superior to those shown by division under the decision to restructure its Mrs Bonino. departments taken on 23 February 1983, the Commission of the European Communities decided, in regard to the departments estab­ 2. In support of her application for lished in Luxembourg, to apply a system of annulment of the appointment of Mr 'rotation of heads of section... on an Tutzschky, Mrs Bonino puts forward essen­ experimental basis'. tially two series of submissions, the first alleging a breach of essential procedural requirements and the second alleging that An invitation to submit candidatures the decision adopted by the Commission in permitted each head of division to its capacity as appointing authority is determine those among the revisers and without foundation. principal translators (the post of head of section being at their level) who would be Before considering those submissions, it called upon to undergo a trial period of six must be borne in mind that, for the months. purposes of filling a vacant post, the appointing authority has a wide discretion In the Economics and Finance Section of in evaluating both the interests of the service the Italian Language Division, only the and the merits of the various candidates. applicant, Mrs Bonino, and Mr Tutzschky That solution, adopted essentially in regard underwent the trial period, performing the to decisions on promotion and frequently duties of head of section in turn between 1 reaffirmed in the Court's case-law,1'appears June 1983 and 31 May 1984. to be applicable to transfers when, as in this case, they involve a comparative consideration of the merits of the various Naturally, both submitted their candidatures candidates. following the publication in June 1984 of the vacancy notice for that post, which The Court's review must therefore be included among the qualifications required: confined, as the Court pointed out in its recent decision in Vaysse, '2. A thorough knowledge of the problems concerning the management of the work 'to the question whether, regard being had of a translation team'. to the bases and procedures available to the administration for its assessment, it remained within the proper bounds and did As can be seen both from the memorandum not use its authority in a manifestly from the Head of the Italian Language Division of 12 July 1984 and from that, of a 1 — See, mon recently, the judgment of 23 October 1986 in Case 26/85 Vaytie v Commiuion [1986] ECR 3131, * Translated from the French. paragraph 26.

(i) the propriety of the procedure which has led to the contested decision; 'The appointing authority is not obliged to give reasons for promotion decisions in so far as they affect candidates who have not (ii) the material accuracy of the facts on been promoted; a statement of these reasons which the administration based its might harm some if not all unsuccessful assessment and whether its assessment candidates'. 3 of the facts was manifestly incorrect; The appointing authority's discretion implies that: (iii) and finally the existence of any error of law or misuse of power. 'The factors on which this assessment is based, covering not only the efficiency and It is in that context that the applicant's vocational aptitude of the applicants but submissions must be considered. also their character, behaviour and general personality, are ill-suited for inclusion in a statement of reasons and were they so Form included the statements might well prove prejudicial to the interests of the unsuc­ 4 cessful candidates.' 3. In essence, Mrs Bonino claims that, having regard to the 'surprising' nature of the appointment of Mr Tutzschky and the The same principle must apply to decisions under-representation of female staff in posts on transfers, adopted after consideration of of responsibility of the kind at issue, the the comparative merits of the various appointing authority's decision required a candidates. 'particularly detailed' statement of the reasons on which it was based. However, a Thus, without there being any need to statement of the reasons for the appointing consider whether the statement of reasons authority's choice, and in particular the must be detailed, the applicant's first aforementioned memorandum of 12 July complaint must be rejected. 1984, was not officially communicated to her. The assessment contained therein may not be used against her because it was 4. The argument alleging that the not previously communicated to her in appointing authority may not use the accordance with the provisions of Articles 26 and 43 of the Staff Regulations. 3 — Case 188/73 Grassiv Council[1974] ECR 1099, paragraph

As Mr Advocate General Dutheillet de 'The personal file of an official shall Lamothe observed in his opinion in that case, contain:

'if ... for a promotion or a transfer it is not (a) all documents concerning his adminis­ the reports which have properly been trative status and all reports relating to credited to officials and of which they are his ability, efficiency and conduct; aware which are taken into account, but different and secret assessments, the guarantee which the authors of the Staff Regulations wished to afford to servants by (b) any comments by the official on such Article 43 completely disappears'. 6

documents.' As the Court stated in its decision in Brasseur, referring to Article 26: It adds that 'The purpose of these provisions is to guarantee an official's right of defence by 'the documents referred to in subparagraph ensuring that decisions taken by the (a) may not be used or cited by the institution against an official unless they 5 — Case 21 21//70 Rittweger v Commission [1971 1971]] ECR 7, were communicated to him before they seq.. paragraph 35 et seq were filed'. 6 — Case 21/70 21/70,, cited above above,, p. 21 21..

BONINO v COMMISSION

As far as the assessment of their individual performances made by their superior at the end of the trial Unless the requirements of Article 26 and period were concerned, this was not those, obviously linked therewith, of Article communicated to them. Although the 43 are to be deprived of all meaning, trans- appointing authority was entitled to recruit parency is essential in such matters. The a head of the Economics and Finance appointing authority is clearly not required Section exclusively on the basis of their to communicate the contents and result of personal files and, in particular, their peri the comparative assessment of the suitability odical reports, without making them of the various candidates which it carried undergo the trial period, once each of the out before arriving at its choice. That value two candidates had in turn actually judgment is the very expression of the performed the duties, it was obliged to discretion conferred on it in such matters include, as part of this unusual procedure and the communication thereof to unsuc designed to provide a clear basis for its later cessful candidates might, as I have pointed choice, a written assessment of the out, be damaging to them. On the other performance of each candidate.

OPINION OF MR DARMON —CASE 233/85

requirements of Articles 26 and 43 of the It does not appear to me that her argument, Staff Regulations, which clearly require a which she considers to be reinforced by the formal exchange of information in writing. offer which was made to her to become head of another section, can be accepted. I have already emphasized that, according to established case-law, the appointing By not complying with the essential authority has a wide discretion in assessing principle of communicating to the official the suitability of the various candidates for a concerned, before the commencement of the vacant post. Even if, as the Commission recruitment procedure, the assessment of admitted at the hearing, an objective her performance as head of section during comparison of the merits of the two the six-month trial period, the appointing candidates involved reveals certain authority has committed a procedural irreg­ differences in the applicant's favour, it is for ularity which renders the contested decision the appointing authority and the appointing unlawful. That decision must therefore be authority alone to assess the value of those annulled. differences, that is to say, to weigh up the factors in favour of and against each candidate in order to determine its choice in the interests of the service. It is thus only by way of alternative that I will consider the submissions adduced by the applicant and the intervener in support of their claim that the contested decision is not well founded. By ultimately according decisive importance to the ability to manage such a section — a criterion of selection implicitly accepted by the applicant, who took part in the Substance rotation — it does not appear that the appointing authority exceeded its discretion, since that criterion expressly appears among the qualifications set out in the vacancy 6. The applicant makes three complaints notice. The offer made to her to manage alleging a manifest error, breach of the prin­ another section is in fact evidence of the ciples of equality of the sexes and of the appointing authority's concern to appoint as protection of legitimate expectations. Head of the Economics and Finance Section the candidate most suitable to that post.

7. The applicant's last two complaints concern the appointing authority's failure to respect, when it excluded Mrs Bonino (that 'Submissions made in an application to is to say, a female official), the general intervene shall be limited to supporting the principle of equality of the sexes in the submissions of one of the parties.' Community public service and the under­ takings given in that regard by the Commission, which thus disappointed the Article 42 (2) of the Rules of Procedure legitimate expectations of the applicant. provides that: Although those complaints raise a question of principle, both must be rejected.

Consequently, I conclude that:

(i) the appointment of Mr Tutzschky should be annulled since it is based on an error of procedure;

(ii) the Commission should be ordered to pay the costs, except those of the intervener, which should be ordered to bear its own costs.