C-52/86
ECLI:EU:C:1987:72
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BANNER v PARLIAMENT
OPINION OF MR ADVOCATE GENERAL LENZ delivered on 5 February 1987*
Mr President, 4. In June 1985 staff were informed by Members of the Court, Vacancy Notice No 4615 that that post was to be filled by promotion or transfer. Eleven persons, among them the applicant, applied A — Facts for the post; eight were candidates for promotion, including Mr Fumagalli, who had been on the list of officials eligible for promotion since 1984. On 20 June 1985 the 1. The applicant in these proceedings was list of candidates was sent to the first employed by the European Parliament Director-General for Research and Docu in 1973 as a temporary employee in Grade mentation (Mr Palmer has occupied this B 4. From 1977 onwards she worked for post since 1 January 1985) and he was five years in the Information Office in asked to state his views. It was expressly London and since March 1982 she has been noted that 'you may consult the personal employed in the Library Department of the files of the candidates at the Career Directorate-General for Research and Management Division, Personal Files Documentation. At present she is classified Office'. On 4 July 1985 that Director- in Grade B 1. General proposed that Mr Fumagalli should be promoted to fill the post declared vacant, and a decision to that effect was made by the Director-General for Administration 2. The applicant seeks the annulment of a and Personnel of the European Parliament decision for filling a B 1 post in the Human on 17 July 1985, with effect from 1 July Rights Department of the Directorate- 1985. A note was sent to the applicant on 23 General for Research and Documentation, a August 1985 informing her that her post for which she herself was a candidate. application for the post had not been successful.
3. Mr Fumagalli, who was appointed to the post in question by way of promotion, has been employed by the Parliament since 5. Even before that date, however, on 14 October 1971. Initially an auxiliary August 1985, the applicant knew the employee, he became an official in May outcome of the appointment procedure and 1973 and was subsequently, after a submitted a complaint to the appointing promotion, classified in Grade B 2. From authority. In challenging the decision she October 1980 onwards he was seconded argued that she herself fulfilled the pursuant to Article 37 of the Staff Regu conditions laid down in the vacancy notice lations to a political group (as Joint and that it had not been shown that the Secretary-General). Upon the termination official appointed to the post was clearly of his period of secondment (in October better qualified than she was. She had 1984) he was reinstated in the General heard, moreover, that the post had in fact Secretariat of the Parliament where he been reserved for the purpose of 'regula occupied the post referred to above. rizing' the position of Mr Fumagalli. * Translated from the German.
OPINION OF MR LENZ — CASE 52/86
6. That complaint was rejected by a the light of her present classification she has decision of 4 December 1985 of the no material interest (not even in the form of Director-General for Administration, any career prospects associated with the Personnel and Finance, and on 21 February post in question); in so far as the applicant 1986 the applicant therefore brought relies on a non-material interest (that is to proceedings before the Court. She claims say, puts forward personal grounds for a that the Court should: transfer, such as those which may be inferred from the documents attached to her reply), it is clear that such an interest cannot Amend or annul be taken into account for the purposes of Article 91 of the Staff Regulations.
(a) the decision of 17 July 1985 of the Director-General for Administration, 9. The applicant disputes that view of the Personnel and Finance appointing Mr matter. She argues first of all that the Fumagalli to the post advertised in existence of an act adversely affecting her Vacancy Notice No 4615; cannot be denied, since in her submission the act in question constitutes a misuse of the appointment procedure and involved an (b) the decision rejecting the applicant's abuse of discretion. Secondly, she relies on candidature for that post. the right to apply for transfer laid down in Article 7 of the Staff Regulations (in respect of which it must be sufficient that she finds In so far as the application for the her present working conditions unpleasant amendment of that decision is declared and would prefer the duties of the vacant admissible and well founded, order that the post because of their specialized nature), applicant should be appointed to the post in and she points out that the Court has question. frequently held that decisions transferring officials constituted acts adversely affecting them. 7. The European Parliament argues in the first place that the application is inad missible. It further submits that in any event 10. With regard to this issue it can be said it should be dismissed as unfounded. right away that the applicant's first submission is certainly irrelevant. It is not possible to decide the question whether B — The following remarks are in my view there is an act adversely affecting the appropriate applicant on the basis of the submissions contesting the decision in question. It I — Admissibility certainly cannot be said that whenever it is asserted that there has been an abuse of discretion in a particular procedure it must 8. On the issue of admissibility the be concluded that there is an act adversely Parliament expressed the view that the affecting the applicant for the purposes of decision appointing another official to the Article 91 of the Staff Regulations. vacant B 1 post (and thus rejecting the applicant's candidature) cannot be regarded as an act adversely affecting the applicant 11. It must also be acknowledged that the since she is already classified in Grade B 1. case-law relied on by the applicant has no Furthermore, it submits that the applicant direct bearing on this case, since those cases has no interest in bringing proceedings. In all concern the possibility of bringing an
BANNER v PARLIAMENT
action in the event of a transfer against the candidate in a competition contesting a will of the person concerned (see the decision appointing another candidate, and judgments in Joined Cases 18 and 35/65,· thus recognized that he had an interest 1 Case 35/72 and Case 33/79 3). Some protected by law. importance may however be ascribed to the fact that according to the judgment in Case 35/72 reference must be made not only to material interests but also, having regard to 14. Secondly, it may be considered the nature of the duties in question and the significant that Article 7 of the Staff Regu attendant circumstances, to the non-material lations provides for transfer at the request interests and future prospects of the official of the official, from which it may be concerned (see paragraph 4) and that in inferred that persons entitled to apply for Case 33/79 the Court considered it relevant transfer have a legitimate interest. In that that the modification of the duties assigned regard it is difficult to hold, however, that to an official may have an effect on his only material interests are relevant (for future prospects (paragraph 13). Reference example, the interest in obtaining a post may also be made to the judgment in Case which directly ensures access to a specific 46/69, 4 where the Court held that an career bracket). An official may also apply official may have a legitimate interest in for a transfer because his working preferring one post to another and that the conditions are unfavourable (strained Staff Regulations therefore make it possible relations within a department may make for an official to be transferred at his own advancement difficult) or because new request. duties might improve the possibility of promotion to a higher category. Such circumstances can certainly constitute a relevant interest, and it may therefore legit imately be argued that in principle an 12. In my view, therefore, an action such as official whose application for a transfer is the one now before us may be considered rejected should have a right of action admissible on two grounds. against a decision appointing another official to the post applied for.
13. Let me advert first of all to the principle 15. I cannot therefore accept the that every unsuccessful candidate in a Parliament's argument that the action is procedure for filling a post has a right of inadmissible, and I shall thus in any event action without there being any need to go on to deal also with the question consider the nature of his interest. whether the action is well founded. Reference in that regard may be made to the judgment in Case 257/83, 5in which the Court held admissible the action of a
1 — Judgment of 5 May 1966 in Joined Cases 18 and 35/65 II — Substance of the case Gutmann v Commission of theEAEC [1966] ECR 103. 2 — Judgment of 27 June 1973 in Case 35/72 Kley v Commission [1973] ECR 679. 3 — Judgment of 28 May 1980 in Case 33/79 Kuhner v Commission [1980] ECR 1677. 16. The applicant seeks to support the claim 4 — Judgment of 13 May 1970 in Case 46/69 Reinan v as delineated in the conclusions cited above Commission [1970] ECR 275, at paragraphs 5 and 6. by stating that the contested promotion was 5 — Judgment of 16 October 1984 in Case 257/83 Williams v Court ofAuditors [1984] ECR 3537. not made 'in the interest of the service' (as
OPINION OF MR LENZ —CASE 52/86
required by Article 7 of the Staff Regu or discretion, she has put forward no lations), that is to say, to ensure that the evidence of abuse and in any event the post was filled by an official of the highest elements on which she relies do not provide standard of ability, efficiency and integrity a sufficient basis for such a conclusion. (as required by Article 27 of the Staff Regu lations). In fact, she says, it was made in order to 'regularize' the position of an official who had been seconded to a 19. On this issue it is my impression that political group, since upon the termination the Parliament clearly has the sounder of his secondment that official could not be arguments and that the application cannot reinstated under Article 38 (g) of the Staff therefore be considered well founded. Regulations in the post he had previously held in the Directorate-General for Admin istration, Personnel and Finance (that post having in the meantime been transferred to the Human Rights Department). 20. (a) The serious allegation of abuse of discretion may be taken first.
17. The applicant argues that if the The Parliament has correctly emphasized procedure for filling the post had been that the burden of proof lies on the correctly conducted — that is to say, with applicant, and it is equally clear that there is an examination of the comparative merits of no ground for concluding 'on the basis of the candidates, of which there is no objective, relevant and consistent facts' that mention — she herself would certainly have the Parliament used its powers for purposes been appointed to the post since she was the other than those intended (judgment in best qualified candidate from the point of Joined Cases 18 and 35/65 [1966] ECR at view of experience, knowledge and ability. page 117). It is not sufficient in that regard that the vacancy notice was not published until eight months after Mr Fumagalli, following the termination of his secondment, was assigned to the post in question. That delay need not necessarily be 18. The Parliament replied that the ascribed to a desire to allow Mr Fumagalli procedure for filling the post was conducted to obtain relevant experience (which is correctly, since the personal files of all the indeed referred to in the decision appointing candidates and their periodic reports were him); it may equally well be ascribed to carefully examined before the proposal mere 'administrative delays' of the kind for promotion was made by the referred to by the Parliament's represen Director-General for Research and Docu tative at the hearing, which are quite mentation. The Parliament further stated familiar to the Court, whose knowledge of that under the Staff Regulations applicants administrative practices has been gleaned for transfer have no priority over candidates from a series of cases brought before it. for promotion, and emphasized that in assessing the abilities of candidates the appointing authority enjoys wide discretion; consequently, the only ground on which its decision can be challenged is that a manifest 21. Nor is the applicant helped by a error was made. Finally, in so far as the statement by the former Director-General applicant speaks of an abuse of procedure for Research and Documentation, on which
BANNER v PARLIAMENT
she particularly relied, to the effect that the promotion is to be preferred when he is post in question was allocated to the Direc more suitable than other candidates. torate-General for Research and Documen tation only in order to 'regularize' the 23. The Parliament also emphasized that it position of Mr Fumagalli. In a letter of 8 had carried out a thorough examination of July 1985 (submitted to the Court at the the comparative merits of all candidates on hearing) that statement was significantly the basis of their personal files and periodic qualified, and the assurance was also given reports, in order to find the best candidate. 'that the appointing authority will consider Mere mention of the fact that there is no carefully all the applications for the post reference to such examination in the and decide in accordance with the normal contested decision itself (as the Court has rules how the post should be filled'. It must held, grounds need not be stated for a also be recalled that from 1 January 1985 positive decision) is obviously not sufficient onwards the author of that letter and of the in order to cast doubt on that official statement in question was no longer assurance. Director-General for Research and Docu 24. Finally, with regard to the applicant's mentation and had nothing whatsoever to view that she was the better qualified do with the conduct of the procedure for candidate and that in any event it was for filling the post (neither as the person the appointing authority to show that that making the proposal nor as the person was not so and that in fact the successful appointing the successful candidate). candidate was better qualified, it must be stated first of all that a simple assertion of that nature in no way obliges the appointing authority to provide the evidence referred 22. (b) The Parliament also correctly to; it is instead for the person challenging a pointed out that under Article 29 of the decision to show that it is defective. Staff Regulations candidates for promotion Secondly, it must be recalled in this regard and applicants for transfer stand on the that as a matter of principle the Court of same footing. Applicants for transfer are Justice may only review the assessment of entitled to no priority in the filling of posts. the abilities of candidates where manifest As was made clear in the judgment in Case error is shown. No substantial evidence of 21/70, 6 therefore, a candidate for such error has been put forward.
C — Conclusion
25. It is unnecessary, therefore, to hear the witnesses which the applicant has offered to call, and I can only propose that the Court should dismiss the application (rightly to be considered admissible) as unfounded and make an order for costs in accordance with Article 70 of the Rules of Procedure.
6 — Judgment of 3 February 1971 in Case 21/70 Rittweter v Commission [1971] ECR 7.