C-293/87

VAINKER V PARLIAMENT

OPINION OF MR ADVOCATE GENERAL MISCHO delivered on 30 November 1988 *

two of the persons promoted under the Mr President, contested decisions took effect. Such a Members of the Court, decision would confer upon him not only entitlement to the payment of salary arrears but also greater seniority with a view to future promotion to A 3. 1. On 30 October 1986 the Secretary- General of the European Parliament, acting as the appointing authority, adopted three decisions promoting nine officials to Grade 4. Let us therefore examine the applicant's A 4. François Vainker, a Parliament official complaints. Mr Vainker claims (a claim in Grade A 5, seeks the annulment of those which is not challenged — see page 5 of the decisions on the ground that they were defence) that the appointing authority did adopted in breach of the Staff Regulations not undertake a comparative examination of of Officials of the European Communities, the merits of the officials eligible for in particular Article 45. That article provides promotion as it ought to have done, ' but as follows: merely promoted the officials appearing on a list of nine names drawn up by the Advisory Committee on Promotions.

'Promotion shall be exclusively by selection from among officials who have completed a minimum period in their grade, after 5. Nor is it disputed that the Promotions consideration of the comparative merits of Committee for its part drew up that list on the officials eligible for promotion and of the basis of the rules appearing in an the reports on them.' agreement concluded, it appears, at the beginning of 1986 between the Director-General for Personnel, Budget and Finance and the representatives of the Staff 2. In its rejoinder the Parliament submitted Committee. That agreement lays down that the applicant no longer had any interest numerical criteria which must be applied in in challenging the decisions of 30 October drawing up the list of officials to be 1986 since he had been promoted to Grade promoted. A 4 with effect from 1 January 1987 by a decision of 10 December 1987.

candidates, for which they may receive a certainly does not mean that an advisory maximum of 12 marks. committee cannot take into account numerical criteria in order to establish a provisional ranking, the appointing authority must none the less not put itself in 7. The applicant considers that that method a position where it must automatically of selection infringes Article 45 by giving promote officials whose names are priority to seniority when that provision submitted to it on the basis of such a clearly gives precedence to merit as a method. criterion for promotion. According to the applicant, proof that the promotion decisions adopted on the basis of that 11. The Court's case-law is moreover method constitute an unreasonable and perfectly clear on this matter. It is true that improper exercise of the appointing the Court acknowledged that: authority's powers is provided in particular by the fact that the applicant, who obtained 11 marks for merit, and another official 'in order to evaluate the interests of the who obtained 12, were not promoted, service together with the merits which must whereas, for example, an official who had be taken into account in the context of the only received 8 marks for merit was decision provided for by Article 45 of the promoted. Staff Regulations, the appointing authority has a wide margin of discretion and that, in that sphere, the Court must restrict itself to the question whether, regard being had to 8. The European Parliament, on the other the methods and means which may have led hand, considers that the promotion method to the assessment made by the adminis­ in question takes due account of the merit tration, the latter remained within bounds of candidates and that the requirements of which are not open to criticism and did not the Staff Regulations are satisfied where use its power in a manifestly incorrect their case has been given attentive and manner' (judgment of 24 March 1983 in impartial treatment and there has been no Case 298/81 Colussi v Parliament [1983] manifest error. 1131, paragraph 20 at p. 1142).

five years' eligibility for promotion will, on not, essentially, on the basis of their that account alone, receive 15 points and seniority. thereby take priority over a candidate newly eligible for promotion but with maximum points for merit'. 17. It follows from the foregoing that the decisions of the Secretary-General of the European Parliament of 30 October 1986 were adopted without a comparative exam­ ination on his part of the merits of all the 14. The Parliament's argument that the officials and on the basis of an 'automatic' applicant's case has been the subject of method under which the seniority of attentive and impartial treatment is not such candidates takes precedence over their as to call in question that conclusion. A merit. Those decisions were therefore method which is incompatible with the Staff adopted in breach of Article 45 of the Staff Regulations does not become lawful merely Regulations and must be annulled. because it is applied in an attentive and impartial manner to each candidate's case.

19. I have, it is true, found a decision in which the Court annulled not only the contested act, namely a staff report, but also the Commission's express decision rejecting 16. The Parliament also contends that the the applicant's complaint concerning that Directors-General carry out a prior selection report (judgment of 6 February 1986 in of candidates and propose for promotion Joined Cases 173/82, 157/83 and 186/84 only those whom they consider to be of Castrile v Commission [1986] ECR 497, at sufficient merit. However, that did not p. 527). However, in the case of Razzouk v happen in this case. Moreover, although Commission (judgment of 20 March 1984 in such a prior selection may perhaps allow the Joined Cases 75 and 117/82 [1984] ECR rejection of candidates who are clearly not 1509, at pp. 1527 and 1531), in which the of sufficient merit, it does not guarantee applicant had brought an action solely that the promotion of the other candidates against the decision rejecting his complaint, will be made on the basis of their merit and the Court stated as follows:

OPINION OF MR MISCHO — CASE 293/87

21. Thirdly, the applicant asks the Court to 25. The institutions must therefore seek a order the defendant to produce certain method which allows that concern to be documents. As those documents were reconciled with the terms of Article 45. It is produced as an annex to the defence there significant that Article 45 of the Staff Regu­ is no need to rule on this claim either. lations mentions two distinct criteria, namely the 'merits' of officials and the 'reports on them'. That seems to indicate that the findings made in the reports and 22. I propose that the defendant be ordered the marks awarded do not necessarily to pay the costs. constitute the only factors in the assessment of the merits of a candidate. The question therefore arises whether services performed 23. Having thus taken a clear position on the particular promotion method adopted by 2 — See paragraph 22 of the Colassi judgment, cited above.

VAINKER v PARLIAMENT

in an entirely satisfactory manner for a rela­ differences are offset in this manner. In tively long period of time might not be order to prevent seniority from generally taken into account by way of merits. taking precedence over merit, the marks which can be awarded for seniority should 26. Alternatively, one might also ask represent only a small percentage of the whether it should not be acknowledged that total marks provided for by the system the ranking resulting from the marks (between one fifth and one quarter for obtained by officials on the basis of their example). Final discretion should of course merits may be modified slightly by the always be retained by the appointing marks obtained by those officials for authority, since according to Article 45 seniority, provided that only small promotion is to be 'exclusively by selection'.