C-343/87
ECLI:EU:C:1989:342
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CULIN v COMMISSION
OPINION OF MR ADVOCATE GENERAL MISCHO delivered on 26 September 1989 *
Mr President, of his complaint is inseparable from the Members of the Court, action against the act allegedly affecting him adversely. The present case concerns the appointment of Mr Argyris to the post — a 1. In order to fill the post of Head of a decision which implies the rejection of the division of the Directorate-General for applicant's candidature. I can therefore Competition (hereinafter: 'DG I V ) , the confine my views to the claim for Commission — the defendant — published a annulment of the appointment which was vacancy notice on 26 September 1986, as a made. result of which 18 officials presented them- selves as candidates for the post; amongst Infringement of Article 45 of the Staff them was the applicant, Mr Culin, an Regulations official in DG IV who had been acting Head of Division from 12 November 1985 to 11 November 1986. When the 4. The applicant first pleads an Commission decided on 24 November 1986 infringement of Article 45, under which to fill the vacancy by appointing Mr 'promotion shall be exclusively by selection Argyris, who was appointed Head of from among officials who have completed a another division within DG IV with effect minimum period in their grade, after from 4 February 1987, Mr Culin lodged a consideration of the comparative merits of complaint against the decision rejecting his the officials eligible for promotion and of application for the post and against the the reports on them'. According to Mr decision appointing Mr Argyris. The Culin, consideration of the candidates' Commission expressly rejected the comparative merits in this case was vitiated complaint, claiming that the applicant's term by manifest error. In its reply to the of office as acting Head had not been satis- applicant's complaint, the Commission states factory. that:
2. Following that rejection Mr Culin 'The appointing authority took account. . . , brought the present action for the in particular, of the functions as acting annulment of the decision expressly Head taken up by [Mr Culin] from 12 rejecting his complaint, the decision November 1985, and it was this aspect appointing Mr Argyris to the contested post which was not considered satisfactory. and the decision rejecting his candidature Consequently, the Commission decided, on for the post. the expiry of his term as acting Head, to fill the post by appointing another official... Having thus answered the main 3. It is, however, clear from the case-law of argument, the Commission takes the view the Court — and in particular from the that the other arguments put forward by Vainker judgment 1 — that the action [Mr Culin] concerning the appointment of brought by an official against the rejection Mr Argyris become quite irrelevant'.
* Original language: French 1 — Judgment of 17 January 1989 in Case 293/87 Varnker v 5. The applicant was thus officially notified Parlament [1989] ECR 23, paragraphs 7 io 9 by the appointing authority that it had elim-
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inated his candidature on account of the reasons underlying the act in dispute. What allegedly unsatisfactory manner in which he is at issue in this case is the whole function had managed the division. of the pre-litigation procedure in the context of a dispute between an official and the institution employing him. Accordingly, 6. Nevertheless, after the commencement of the Court has repeatedly emphasized the these proceedings the Commission adopted importance of that procedure, and especially an addendum to the reply to Mr Culin's the need for the administration to state the complaint which states that, while he was reasons for a decision rejecting a complaint, acting Head, he even in the context of a contested promotion. 2
'showed all the diligence and ability needed for the temporary performance of the duties of Head of Division, to the complete satis- 9. The importance of doing so is all the faction of his superiors'. greater since the administration is, by contrast, under no obligation to give its reasons for rejecting a candidature. In a dispute regarding promotion, the complaint The Commission went on to state that the and the reply given to it thus afford the only reason why his candidature was unsuc- pre-litigation opportunity enabling the cessful was simply that it did not include official to ascertain whether his rights have been observed and the administration to demonstrate that it has acted in conformity 'all the requisite qualifications to warrant his with the Staff Regulations. inclusion amongst the most suitable candidates for assuming the responsibilities of Head of a division of the size of Division IV/B-2', 10. It is therefore clear that, if it were accepted that the reasons given in reply to the complaint did not need to coincide with but that the fact of his not having been the reasons for the act challenged by that appointed complaint, the entire pre-litigation pro- cedure would become virtually meaningless, since it would no longer enable the official 'did not in any way detract from the to discover the reasons for the act which he excellent assessments which his work has was contesting. always attracted'.
11. Every official must therefore be entitled 7. In the course of the proceedings before the Court the Commission submitted that to proceed on the presumption that the there had been a simple misunderstanding, reasons given in reply to his complaint are which had not arisen until long after the 2 — On this subject, see the judgment of 30 October 1974 in decision and could not affect its validity. Case 188/73 Grassi v Comicl [1974] ECR 1099. The Court has even held that, in the case of an implied decision rejecting a complaint, the statement of reasons is neces- sarily deemed to be the same as the statement of reasons or the absence of reasons for the decision which was the 8. I cannot agree with that view, however. subject of the unanswered complaint (see judgments of 27 When replying to a complaint, the October 1977 in Case 121/76 Moli v Commission [1977] ECR 1971, at p. 1978, and of 13 April 1978 in Case 75/77 Commission is supposed to set out the true Mollet v Commino« [1978] ECR 897, at p. 906).
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indeed those on which the act adversely have been submitted by candidates having a affecting him are based. t h o r o u g h knowledge of competition policy and suitable experience for the duties involved; further, each of the candidates shows the necessary ability for managing a 12. The question arises whether that division. Five persons are then named, but presumption should be considered irre- Mr Culin is not one of them. buttable. That would undoubtedly be going too far. It is, however, my opinion that an institution should not be permitted to overturn the presumption, especially after an 15. The Director-General for Competition action has been commenced, unless it then sets out the criteria on the basis of provides convincing evidence to show that which he proposes to choose from among the contested decision was indeed based on those five candidates, and concludes by a different set of considerations from those proposing the appointment of Mr Argyris cited in reply to the complaint. Such would, and by asking the Director-General for for example, have been the case here if the Personnel and Administration to make the Commission had been able to point to an necessary arrangements to obtain the extract from the Minutes of the Advisory Commission's consent to the proposal. Committee on Appointments to Grades A 2 and A 3 or the Minutes of one of its own meetings disclosing that, despite the wholly 16. Neither in that memorandum nor in the satisfactory manner in which Mr Culin had Minutes of the meeting of 27 October 1986 performed temporarily the duties of Head of the Advisory Committee on Appoint- of Division, the Commission had none the ments to Grades A 2 and A 3, nor in the less reached the conclusion that some other opinion given by the Committee, is any candidate was better suited to taking over mention made of Mr Culin's term as acting those duties on a permanent basis. Head of Division.
Those documents therefore do not demonstrate that no account was taken of Mr Culin's term as acting Head, in any manner unfavourable to 13. In this case the Commission contends him. On the contrary, the fact that Mr that this is precisely what occurred (see p. 2 Culin's name does not appear even on the of the addendum to the reply given to the list of the five officials whom the Advisory complaint), but cannot produce any Committee considered suitable for evidence in support. performing the duties of Head of Division — a list identical to the one contained in the memorandum of the Director-General for Competition — tends
14. It included among the documents to suggest that a negative assessment was before the Court a memorandum of 20 or given of his term as acting Head in the 28 October 1986 (the date is illegible), sent course of the meeting of that Committee. by the Director-General for Competition to the Director-General for Personnel and Administration, via the Member of the Commission responsible for competition 17. The Commission has therefore not matters. The memorandum contains the managed to rebut the presumption in criteria on the basis of which the question by means of any tangible evidence. Director-General considered the 18 Accordingly, there is no alternative but to applications for the post and the staff assume that the appointing authority's reports on the officials in question. It decision was indeed based on the spurious records that five candidatures appear to reason given in the reply to the complaint.
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18. However, if the candidature of one of not have the relevant knowledge, and the officials has been eliminated on the basis indeed could not have acquired it in the of a manifestly mistaken assessment of his course of his career. merits then the entire procedure is vitiated by it, and the appointment which followed it must be annulled. It cannot validly be 21. In that connection the defendant has objected that Mr Culin had no interest in basically recapitulated during the written challenging the appointment of Mr Argyris and oral procedure the assessments because he could not have been sure of contained in the abovementioned memo- being appointed in his stead. The present randum of its Director-General for Compe- situation is not analogous to the Morello tition, dated 20 or 28 October 1986. On case, 3cited by the Commission, in which it page 2 of the memorandum is to be found could be clearly established that, in the light the following statement: of his previous experience, the official was not qualified to carry out the duties for which he had applied. At no time was it contended that Mr Culin did not fulfil the 'Attention should be drawn to the diversity conditions of the vacancy notice. of the industrial sectors falling within the scope of the division, from which it may be concluded that it is not any specific knowledge but rather the individual's open- 19. As every official has a legitimate interest mindedness and organizing ability which in ensuring that the promotion procedures must be regarded as the decisive criteria in in which he participates are conducted the choice of candidate to fill the post in lawfully, the applicant's first submission question.' must be upheld.
Further on, the memorandum recites that Mr Argyris Failure to comply with the terms of the vacancy notice
'has an extensive knowledge and experience not only in matters of State aid but also in 20. In the second place, the applicant industrial matters generally'. asserts that the Commission did not comply with the terms of the vacancy notice for the post. He claims that the appointing That passage, too, must clearly be inter- authority appointed a candidate who did preted as meaning that a more specialized not fulfil all the conditions set out in the knowledge of the sectors listed in the vacancy notice, point 3 of which requires vacancy notice is not an essential condition candidates to be familiar with one or more placed on admission to the vacant post. of the following sectors: textiles, clothing, leather, or other manufacturing industries. According to the applicant, that condition was clear, not open to interpretation, and 22. It is my opinion that, by adopting that approach, the Commission has gone too far. not satisfied by the candidate chosen by the Of course, the institutions are entitled to appointing authority, since he manifestly did appoint as Head of Division a person 3 — Judgment of 29 September 1976 in Case 9/76 Morello v having no very specialized knowledge of a Commission [1976] ECR 1415. particular sector of the economy but having
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an adequate knowledge of a more widely 25. My conclusion therefore is that the d r a w n field. T h e y are also entitled to use as appointing authority has not complied with the decisive criterion the candidates' open- the conditions laid down in Vacancy Notice mindedness, organizing flair or leadership COM/1607/86 and that the decision qualities. In that event, however, they must appointing Mr Argyris to the contested post draft the vacancy notice accordingly and must be annulled on that ground as well. may not require a knowledge of specified sectors. It should be noted, incidentally, that knowledge of that kind may actually be Infringement of the third paragraph of important for the purpose of detecting the Article 27 of the Staff Regulations presence of restrictive practices or, even more importantly, the abuse of a dominant position, because the degree of competition may vary from one sector of the economy 26. The applicant further pleads an to the next. There was therefore probably infringement of the third paragraph of good reason for requiring, in the vacancy Article 27 of the Staff Regulations, under notice, a knowledge of certain sectors. which 'No posts shall be reserved for nationals of any specific Member State'. He maintains that it was 'common knowledge' in DG IV that the post in question was reserved for an official of British nationality. 23. It is, moreover, clear from the case-law He offers to prove the point through the of the Court that: testimony of an official prepared to recount a conversation with a member of a Commis- sioner's cabinet, which would show that a vacant post — not the post at issue in this case — had been reserved for an official on account of his nationality, which proves that 'though the appointing authority has wide posts of Head of Division in DG IV are, as discretion in comparing the candidates' a rule, filled on that basis. merits and reports, especially with a view to the post to be filled, it must exercise it within the self-imposed limits contained in the notice of vacancy'. 4 27. However, it is self-evident that 'grape-vine' rumours and a statement made by the member of a cabinet a number of years previously about a different post cannot serve as proof that the post in dispute was in fact reserved for a British 24. As was noted above, however, the national. That submission cannot therefore 'limits' in this case are narrower than the be accepted. Commission appears to think, since, besides the 'wide-ranging experience relevant to the duties involved' in point 5, the vacancy notice includes point 3, cited above. The Misuse of powers Commission has not demonstrated that the candidate chosen has a specialized knowledge of one or more of the sectors mentioned in the notice. 28. The applicant's last submission concerns the misuse of powers. This misuse of powers 4 — See judgment of 30 October 1974 Grass v Council, cited is, he claims, proved by the fact that the above, at p. 1111 candidate chosen, Mr Argyris, occupied the
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post only very briefly — indeed, not at 31. It must be stressed at this point that the all — and was rapidly transferred to the mistaken assessment is undeniably a service- head of another division, being replaced in related fault and that, during its preparation the contested post by another official who by the Directorate-General for Personnel had not submitted his candidature in reply and Administration and after its distribution to Vacancy Notice COM/1607/86. The for approval to the cabinets of all the applicant asserts that the whole procedure Members of the Commission, the was thus designed solely to ‘facilitate and contentious text received considerable safeguard the access of a specific candidate publicity. Although the memorandum with- to a post declared vacant, whereas that drawing the assessment probably received candidate was in fact intended to occupy virtually the same publicity, the fact remains a different post altogether’. What is in that the addendum, dated 24 May 1988, evidence is therefore, in effect, an operation was not adopted until six and a half months whose only purpose was to enable Mr after Mr Culin had brought the action (5 Argyris to move to Grade A 3, rather than November 1987) and almost 10 months actually to use his appointment to fill the after the reply to the complaint had been vacancy. In support of that claim the notified to him (3 August 1987). In the applicant cites the fact that the new table of meantime, the unfavourable appraisal of Mr posts for the Commission, showing the Culin's abilities in managing an adminis- transfer of Mr Argyris to the post of Head trative unit had been able to spread far of the Transport and Tourism Division, was beyond the circle of those who had been adopted virtually at the same time as Mr able to read the text at issue. Argyris was due to take up his duties in the contested post.
32. In those circumstances, the withdrawal 29. It must be admitted that Mr Culin's of the mistaken comment does not, in itself, explanation is an attractive one. Never- sufficiently redress the non-material damage theless, there is a lack of cogent evidence. It incurred by the applicant, and he should be may be that, at the time of his appointment, awarded the token sum of one franc. Mr Argyris was indeed intended to occupy the post in question but that the appointing authority realized shortly afterwards that it could make better use of his services as 33. The question arises, however, whether Head of another division. I therefore the non-material damage will have been propose that the Court should not accept sufficiently redressed if the Court decides to the submission alleging a misuse of powers. annul the appointment of Mr Argyris. In its judgment of 7 October 1985 in Case 128/84 Van der Stijl v Commission [1985] ECR 3281, at p. 3296, the Court held that the Claim for compensation annulment of the contested appointment decision constituted appropriate reparation for any non-material damage which the 30. The applicant claims that the Court applicant might have suffered. On the other should order the defendant to pay him the hand, that decision was annulled because token sum of one franc as compensation for the Commission had wrongly had recourse the non-material damage which he has to the special procedure under Article 29(2) suffered as a result of the unfavourable and of the Staff Regulations. No offensive mistaken assessment in the reply to his remark about the applicant's abilities had complaint. been made in that case.
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34. In view of that essential difference, I lations, promotion is ‘by selection’. The consider that M r Culin is still entitled to the appointing authority could thus quite legit- token sum of one franc if the Court accepts imately have preferred some candidate other my proposal that it should annul the than Mr Culin, even if it had been aware of appointment of Mr Argyris. his sound career as acting Head. In any event, therefore, Mr Culin could not have 35. As regards the material damage for been certain of the appointment. which the applicant seeks compensation, on the other hand, it must be recalled that, 36. It follows that the applicant has not although an official may be eligible for suffered a 'still subsisting injury' within the promotion, he is not entitled to it. meaning of successive judgments of the According to Article 45 of the Staff Regu- Court. 5
37. In conclusion, I propose that the Court should uphold the first two submissions made by M r Culin, and should accordingly annul the decision of 24 November 1986 appointing M r Argyris to the post of H e a d of Division I V / B - 2 , award the applicant the franc which he has claimed as compensation for non-material d a m a g e , and order the defendant to pay the costs.
5 — See judgments of 9 July 1970 in Case 23/69 Fiehn v Commission [1970] ECR 547, at p . 561, and of 13 July 1972 in Case 79/71 Heinemann v Commission (1972) ECR 579, at p. 589.
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