C-306/85

HUYBRECHTS v COMMISSION

OPINION OF MR ADVOCATE GENERAL DARMON delivered on 9 December 1986*

Mr President, What is important is that it is absolutely Members of the Court, clear both from Notice No 48/84 issued by the Advisory Committee on Appointments to Grades A 2 and A 3, which carried out the first selection, and from Special Minutes 1. Mr Huybrechts, a Commission official No 763 of 19 December 1984 concerning who was deputy head, and subsequently the meeting at which the appointing acting head, of the 'Energy, Mining and authority adopted its decision, both of Industry* Division from 1 September 1983 which documents were produced by the to 31 December 1984 is challenging the Commission at the request of the Court, decision of 19 December 1984 whereby the that the relevant documents from the Commission made a definitive appointment personal files of all the candidates and, in to that post, for which the applicant had particular, their staff reports were examined. applied, and awarded it to one of his colleagues, Mr Delorme, by way of promotion. From 1 December 1982 to the end of 1984, Mr Delorme had worked for Mr Pisani, who was then the Commissioner The first submission cannot therefore be responsible for development, in the capacity upheld. of member of his cabinet, deputy chef de cabinet and chef de cabinet.

There is nothing unusual about that. As the reasons, in so far as it was adopted after 'a Court has stated, the appointing authority very careful review' of the applicant's situation 'compared with that of Mr Delorme', having regard, 'in particular, to 'is not obliged to give reasons for promotion the information' furnished by the applicant. decisions in so far as they affect candidates who have not been promoted; a statement of these reasons might harm some, if not all, unsuccessful candidates'. 1 Those considerations are sufficient for the second submission to be rejected; it is not necessary to consider whether, as he claims, Mr Huybrechts was a more appropriate As regards the decision rejecting the candidate for promotion than the candidate complaint made against the promotion who was appointed, in so far as that decision, the Court held that argument was intended solely to justify the applicant's insistence upon a deuiled sutement of reasons, which the Commission 'as ... in the words of Article 45 of the Staff was not obliged to provide. Regulations, promotion shall be "by selection", the reasons to be given will be concerned only with fulfilment of the legal conditions on which, under the Staff Regu- Nevertheless, it is relevant to point out that lations, the validity of the promotion 2 in similar cases the Court has consistently depends'. held that

Those dieu are fully justified. Any promotion decided upon after 'con- 'in evaluating the interests of the service and sideration of the comparative merits' and of the merits to be considered for the purposes the staff reports of candidates must be of the decision provided for in Article 45 of 'exclusively by selection', to use the wording the Suff Regulations, the appointing of Article 45 (1) of the Staff Regulations. It authority enjoys a wide margin of is therefore based on a value judgment discretion' which, if expounded upon in deuil in the appointment decision, might, to the detriment of the future career of those involved, highlight the reasons for which the appointing authority did not appoint them so that to the post.

The Court cannot substitute its own He then refers, inter alia, to a trade union assessment for that of the appointing circular dated 7 November 1984 which authority in order to determine whether the announced the forthcoming appointment of 5 latter'sdecision is justified. Even if a a candidate whose identity could only be comparison of the merits of the two that of Mr Delorme. candidates involved were to show certain objective differences favouring the applicant, those differences would still be This second item of information cannot be the subject of a value judgment, and that is accepted as proving the applicant's a matter reserved to the appointing complaint. The accuracy of the forecast may authority. be pure chance, or indeed confirmation of nothing more than an intuitive guess. It cannot, alone, substantiate the allegation of Having regard to the qualifications called misuse of power. for in the competition notice, it does not appear that, in considering suitability to manage an administrative unit and relevant Finally, the applicant perceives further experience or service record, the evidence in the Commission's delay in Commission exceeded its power of publishing the vacancy notice. The applicant appraisal. Finally, it is important to note maintains that the delay is indicative of an that the appointing authority's discretionary attempt, with a view to Mr Pisani's power is based on the interests of the impending departure, to reserve the post for service — which cannot be overridden by the candidate who was ultimately appointed. the interests of candidates — so that the complaint as to breach of the duty to have regard to the applicant's interests is It is not disputed that the vacancy notice irrelevant in the present case. was published more than a year after the post was vacated by its previous holder, that is to say at a time very close to Mr Pisani's departure. 4. The last submission in support of the application for annulment is based on misuse of powers. In the applicant's view, in In that connection, as the applicant himself adopting the contested decision the conceded at the hearing, in so far as the Commission sought not to appoint the legal requirements of Article 45 of the Staff official most capable of discharging the Regulations were complied with, the fact duties of Head of Division but to make sure that one of the candidates came from the that there was a 'landing place' — hence the cabinet of a Member of the Commission applicant's reference to the successful cannot of itself substantiate the existence of candidate's being 'parachuted' — for an misuse of powers. On the other hand, if it assistant of a Member of the Commission, were to be found that the Commission who, at the end of 1984, took up other knowingly delayed publication of the duties. vacancy notice in order to be able to recruit a particular candidate, that would be a factor to be considered in support of the In support of this allegation, Mr Huybrechts complaint made by the applicant. relies in the first place on the absence of a statement of reasons. I have already said that that submission cannot be upheld. But that is not what happened. The Commission stated that the post in question 5 — Caw 282/81 Ragusa[1983] ECR 1245, paragraph 13. could not be declared vacant immediately