C-324/85

OPINION OF MR VILAÇA —CASE 324/85

OPINION OF MR ADVOCATE GENERAL DA CRUZ VILAÇA delivered on 10 December 1986*

Mr President, of the Commission, Mr Ortoli and Mr Members of the Court, Pisani, no longer held office.

The Council had decided, at its meetings on 1. The applicant, Yves Bouteiller, who has 6 November and 11 December 1984, not to been an official of the European replace them because the new Commission Communities since 1959, seeks the was to take up its duties on 5 January 1985. annulment of the Commission's decision of 19 December 1984 appointing Jürgen Mensching Head of the Division for Energy The complaint and appeal were lodged (other than Coal), Chemicals, Agricultural within the prescribed periods in accordance Products and Foodstuffs in the Directorate- with Articles 90 and 91 of the Staff Regu­ General for Competition. lations of Officials.

Furthermore, as the Commission contends improperly constituted and, consequently, in its defence, the rule in Article 10 of the had the power to take valid decisions. Merger Treaty could not by itself impede the functioning of the Commission, in view of the general principle that there should be continuity in the public service. Moreover, that submission appears to be less than self-sufficient in so far as the applicant, both in the written procedure and The same applies in other cases of force in unequivocal terms at the hearing, linked majeure, for example where a Member of the argument concerning the improper the Commission dies and there is no other constitution of the Commission with the member of the same nationality. allegation that the Commission acted precipitately or in haste, which in his view constituted a misuse of powers. Furthermore, since the applicant has not disputed the presence of the quorum required by Article 17 of the Merger Treaty The first submission relied upon by the for the Commission's meetings to be valid, it applicant thus merges into his fourth must be concluded that the decision to submission and I shall therefore examine the appoint Mr Mensching cannot be chal­ other aspects of it when I consider the lenged on the ground that the Commission fourth submission. was not competent to adopt it.

That was the view expressed by the Furthermore, the applicant's other Commission and the Council in their replies arguments lead on to the fourth submission, to Written Questions Nos 1941/84 and in so far as they all include the allegation 1942/84 from the European Parliament, in that the Commission misused its powers. which they stated expressly and without reservation that, since its membership was at all times consistent with the rules in force, However, I shall examine them separately to the Community was fully able to discharge the extent to which they are specific and its duties and the measures adopted by it independent. during that period were entirely valid.

The applicant maintains that that is an inde­ sectors but also regarding matters within the pendent ground for annulment, wholly scope of the duties of the Members of the unconnected with his next submission based Commission and those arising from the on Article 45 (1) of the Staff Regulations, collegiate nature of the Commission's which applies to promotion. responsibilities, which oblige officials working in their private offices to follow all the activities of the institution. It is difficult in the circumstances of the present case to regard the breach of Article At the same time, as Deputy Head of Mr 7 as an independent ground for annulment Haferkamp's private office Mr Mensching that is distinct from the alleged misuse of had for almost four years been in charge of powers or from the argument based on competition policy (DG IV) and the Article 45 (1). Commission states that his periodic reports refer to his activities as an adviser in every area of competition policy between 1971 and 1981. Assuming, however, that it is, let us see whether the applicant's argument is tenable. At the hearing the applicant asserted in particular that Mr Mensching's career could not have provided him with one of the The Commission accounts for its rejection qualifications required by the vacancy of the applicant's argument by giving a notice, namely 'knowledge of one or more description of Mr Mensching's career. of the sectors in question'.

BOUTEILLER v COMMISSION

It is true that, as the Commission concedes tration in making its assessment, the latter in its defence, Mr Bouteiller's career as an has remained within reasonable limits and official in the Directorate-General for has not used its power in a manifestly Competition since 1959 also enables him to incorrect way". fulfil the conditions set out in the vacancy notice. 'In particular, the Court cannot substitute its However, the Commission also states that assessment of the merits and qualifications the applicant's periodic reports were unequi­ of the candidates for that of the appointing vocally favourable only between 1959 and authority where there is nothing in the file 1978. to suggest that, in assessing the merits and qualifications of the applicants, the appointing authority has committed a Consequently, the appointing authority was manifest error'. 3 entitled to use its discretion in assessing the candidates' ability to carry out new duties in the interests of the service. No such error has been committed in the present case: no evidence has been adduced It exercised its discretion taking account of to show that, by promoting Mr Menching the opinion of the Advisory Committee on and not Mr Bouteiller or some other Appointments, which chose from among all candidate, the appointing authority ex­ the applicants five candidates of different ceeded the limits of the wide discretion nationalities whom it considered to be most which the Court has recognized that it has suitable to fill the post in question. Mr or made a manifestly erroneous assessment Mensching was one of the candidates of the qualifications of the candidates. chosen but Mr Bouteiller was not.

1 — Judgment of 27 June 1973 in Case 35/72 Ktty v Commission [1973] ECR 679, at p. 690, paragraph 29. 2 — See, for example, judgments of 30 October 1974 in Case However, it is clear from all the foregoing 188/73 Grass, v Council [1974] ECR 1099, at p. 1109, considerations that the appointment of Mr paragraph 26; of 3 December 1981 in Case 280/80 Bokkt- D'Aloya v Coimri/[1981] ECR 2887, especially at p. 2898, Mensching was, in the light of the contents paragraph 10; of 21 April 1983 in Case 282/81 Ragusa v Commission [1983] ECR 1245, especially pp. 1256 and 3 2 rap 1 57,parag hs 9 and 13; of 14 July 1983 in Case 176/82 — Sec judgment of 21 April 1983 in Ragusa, loc. cit., Nebe v Commission [1983] ECR 2475, especially p. 2486, summary and paragraph 13. paragraph 18; of 23 October 1986 in Case 26/85 Vaysse v 4 — Judgment in Crassi, loc. cit., paragraph 12 at p. 1108. Commission [1986] ECR 3131, paragraphs 26 and 27. 5 — See judgment in Grassi, loc. cit.

OPINION OF MR VILAÇA — CASE 324/85

of his personal file, fully in conformity with ability, efficiency and conduct in the the conditions set out in the vacancy notice. service of each of the candidates.

6 judgment of 1 July 1976 in Case 62/75, the appointing authority 'has power under The applications were not examined by the the Staff Regulations when deciding on Commission itself, which merely relied promotions to make a choice on the basis of on the examination undertaken by the a consideration carried out in the manner Director-General for Personnel and Admin which it considers to be the most appro istration and the opinion of the Advisory priate of the comparative merits of the Committee on Appointments in Grades A 2 candidates eligible for promotion and of the

p. 1176. Competition, who appeared before the 7 See, for example, judgments of 17 March 1983 in Case committee; 280/81 Hoffmann v Commission [1983] ECR 889 et stq., especially paragraph 9 at p. 901; of 24 March 1983 in Case 298/81 Coltasi v Parliament [19831 ECR 1131 er seq., especially paragraph 22 at p. 1142; of 14 July 1983 in Case (d) The Commission considered the 9 / 82 Ohrgaard and Delvaux v Commission, [1983] ECR 2379 set seq* especially paragraph 17 at p. 2390. comparative merits of the candidates, in 8 See, for example, judgment of 17 December 1981 in Case the light of the nature of the post to be 151/80 De Hoei Commission [1981] ECR 3161, especially filled, and examined the reports on paragraph 16 at p. 3175.

In his reply the applicant also expresses doubt as to the legality of the composition and functioning of the Advisory Committee As regards the argument based by the on Appointments, stating that it is applicant on the fact that the Commission impossible to determine whether the legal stated in its defence that it had no requirements were complied with and ques­ knowledge of the note of 1 October 1984 tioning whether or not the committee by which he was appointed temporarily to complied with Article 45 (1) of the Staff perform the duties of the Head of Division, Regulations 'which confers power to decide the Commission satisfactorily explained that on promotions on the appointing authority that did not constitute a temporary posting alone'. pursuant to Article 7 (2) of the Staff Regu­ lations — which would require a decision of the appointing authority, that would have to be placed in the personal file pursuant to Article 26 — but was merely the provisional In that connection it should be recalled that replacement of the Head of Division by the the Advisory Committee on Appointments senior official in the highest grade pending was created by a Decision of 23 July 1980, the appointment of the new holder of the which defined its composition, procedure post. It was therefore a measure concerning and powers. the internal organization of the services of DG IV, which automatically followed from Article 26 of the Internal Rules of the Commission and of which the Commission was not necessarily bound to be aware. In It is clear from that decision that the any event the fact that the applicant carried committee has consultative powers and is out such duties for just over two months composed of members appointed in a could not compel the Commission to alter personal capacity, its function being to assist its view as to the merits of the candidates.

Finally, I also consider that the applicant misuse of powers, is based on the applicant's cannot complain about the fact that the view that Mr Mensching's appointment had contested decision was adopted on 19 been decided upon in advance. February 1985, at a time when the Commission did not have at its disposal the However, the information before the Court most recent periodic reports (the applicant's does not seem to me to justify that report for 1983 to 1985 was drawn up in conclusion. February 1986). At the hearing the Commission maintained, without being challenged by the applicant, The Commission has informed the Court that the period which normally elapses that at the time of the appointment it had at between the receipt of applications and the its disposal the most recent reports Commission's decision is two or three concerning both the applicant and Mr weeks. In the case at issue, almost a month Mensching, which were drawn up in 1984 elapsed, which means that the procedure for the period from 1981 to 1983. Besides, followed a normal course and the allegation the report on the applicant from 1983 to that the Commission acted in haste or 1985 proved merely to confirm his previous precipitately is thus less credible. report. Furthermore, the post in question was of recent creation and it is not surprising that For all those reasons, therefore, it must efforts should be made to fill it promptly. once again be concluded that this argument put forward by the applicant cannot In his reply the applicant referred to an succeed. alleged desire to favour an official of German nationality as part of the Commission's policy of maintaining an (iii) The applicant makes one final internal balance. By way of proof he submission in support of his application referred specifically to the fact that there and — as I have already pointed out — all was only one advisory committee for the others are in some way integral parts of Grades A 2 and A 3. it. He claims that the Commission was guilty of misuse of power (and also or alter­ The Commission explained that there was natively, misuse of procedure), in so far as it only one committee because the appointing chose a person working for a Member of authority — namely the Commission — was the Commission rather than an official who the same for both grades and, in any event, was pursuing a normal career. Germans were overrepresented in DG IV, which detracted from the argument regarding balance. Let me now examine those of the applicant's arguments which have not already been considered and shown to be unfounded. Furthermore, at the hearing the applicant sought to considerably reduce the scope of that argument and eventually stated Mr Mensching's nationality was not relevant to The applicant attaches great importance to the basis of his application. the extraordinary haste with which, in his view, the Commission adopted the decision appointing Mr Mensching. That allegation The applicant also recognized at the hearing of haste, being one of a collection of that the nationality of those Members of the presumptions sufficient to demonstrate a Commission who resigned was not ulti-

Accordingly, since none of the arguments relied on by the applicant has been successful, I consider that his application must be dismissed, and the parties should pay their own costs in accordance with Article 70 of the Rules of Procedure.

1 — See,for example, judgment of 21 June 1984 in Case 69/83 Lux v Court ofAuditors [1984] ECR 2447 et seq., especially paragraph 30 at p. 2465.