C-107/90

HOCHBAUM » COMMISSION

OPINION OF MR ADVOCATE GENERAL TESAURO delivered on 15 October 1991*

Mr President, 2. Mr Hochbaum's appeal relates only to Members of the Court, the part of the judgment in which the Court of First Instance dismissed his third plea in law (paragraphs 21 to 26), based on misuse of powers. 1 In that plea, the then applicant had essentially contended that the Commission annulled ab initio the procedure declared partly invalid by the 1. By judgment of 9 July 1987, ' upholding Court of Justice and decided to publish a an application by Mr Hochbaum, this Court fresh vacancy notice (COM/83/87) not in annulled the appointment of Mr Water­ the general interest but purely in order to schoot as Head of Division in DG IV by legitimize the already certain appointment reason of the fan that the Advisory of Mr Waterschoot. And in fact the latter, Committee for appointments to grades A2 who at the time of the first procedure did and A3 had not been consulted on the basis not — according to the appellant—fulfil of complete candidates' files. Following that the requirements as to relevant experience judgment, the Commission decided to annul laid down by the vacancy notice, only vacancy notice COM/902/84, on the basis fulfilled those requirements subsequently, of which Mr Waterschoot had been specifically because of the work done by appointed; it therefore initiated a new him following the appointment which was procedure (by notice COM/83/87), at the later held to be unlawful. In support of his end of which the appointing authority reap­ allegation of misuse of powers, Mr pointed Mr Waterschoot. It should be noted Hochbaum referred to the failure to fulfil that both vacancy notices were drafted in the requirements laid down for the original identical terms. procedure.

with any objective in mind other than the It should be remembered, for the purposes interests of the service (paragraphs 25 and of this case, that Article 45 of the Staff 26). Regulations provides that 'Promotion shall be exclusively by selection from among officials who have completed a minimum period in their grade, after consideration of In his appeal, the appellant contends that the comparative merits of the officials the Court of First Instance rejected the plea eligible for promotion and of the reports as to misuse of power and thereby itself not on them'. That wording shows that the only committed a misuse of powers but, appointing authority enjoys a wide even before that, an infringement of Article discretion, which, of course, must be 45 of the Staff Regulations. The exercised within the limits laid down by that Commission has raised an objection of inad- provision. In particular, the officials missibility because, in its view, the concerned must fulfil the requirements to be appellant's pleas are intended to bring about promoted and therefore must fulfil, inter alia a discussion of the findings of fact made by the requirements laid down in the vacancy the Court of First Instance, which is not notice. available in appeal proceedings before the Court of Justice.

In Mr Hochbaum's opinion, different limits apply to the review by the Court of the discretionary power granted by Article 45 to the appointing authority: the Court of First The Court of Justice has also made clear Instance should have considered whether that 'While the appointing authority enjoys the candidate chosen by the appointing wide discretion in this matter, there is ipso authority fulfilled all the requirements of facto an assumption that the exercise of this vacancy notice COM/902/84. By so discretion will include careful examination alleging, Mr Hochbaum essentially chal- of the files and meticulous regard to the lenges the Court of First Instance's interpre- tation of Article 45 of the Staff Regulations 4 — Judgment in Case 52/86 Banner v Parliament [1987] ECR as regards the limits of the discretionary 979, paragraph 9. See also, among others, the judgment in Case 26/85 Waysse v Commission [1986] ECR 3131, power vested in the appointing authority paragraph 26; judgment ¡n Case 306/85 Huybrechts v and of the review of that power by the Commission [1987] ECR 629, paragraph 9; and judgment in Case 111/86 Delauche v Commission [1987] ECR 5345, Court. paragraph 18.

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requirements laid down in the notice of choose from among candidates eligible for vacancy*.5 In short, the appointing authority promotion the one who, in view of his is required to exercise that discretion 'within qualifications and the duties he will be the self-imposed limits contained in the required to carry out, is the most suitable notice of vacancy*;6 failure to observe the person for the vacant post. That conclusion conditions laid down in that notice would in has been confirmed by the Court of Justice fact entail annulment of the appointment which, on several occasions, has stated that made by the appointing authority since the it 'cannot substitute its assessment of the latter thereby 'breached the self-imposed merits and qualifications of the candidates legal limits contained in that notice.'7 for that of the appointing authority'.9

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OPINION OF MR ADVOCATE GENERAL TESAURO—CASE C-107/90 P

That statement gives the impression that the with the plea in law alleging misuse of Court of First Instance, relying on the infor- powers and that — essentially — it came to mation in the documents before it and the the conclusion that that plea could not be lack of any indications to the contrary, upheld even if it were shown that Mr reached the conclusion that Mr Water- Waterschoot had not, at the time of the schoot submitted a valid application in first vacancy notice, submitted a valid response to the first vacancy notice. In the application, I consider that the criticism abstract, I can agree with the view that the under review is not decisive in those circum- precise and specific objections made by the stances and, in any event, is subsumed by appellant regarding the fact that at the time the second plea in law. of the first vacancy notice, Mr Waterschoot did not fulfil all the requirements laid down in that notice, deserved a more detailed statement of reasons.

In view of the fact that the Court of First 10 — Judgment in G u t 52/86, cited a b o « , paragraph 6; tee ako the judgment in Caie 135/87 VUchou v Court of Instance adopted that reasoning in dealing Auditors [1988] ECR 2091, paragraph 27.

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new competition procedure was adopted for At this point, I shall merely observe that the a purpose other than that of appointing the statement made by the Court of First most suitable candidate to the vacant post, Instance in paragraph 25 of its judgment is in particular in order to take account of the not incorrect. The case for a misuse of experience acquired by Mr Waterschoot in powers cannot be based on the mere fact the meantime. that account was taken of experience acquired as a result of an unlawful appointment, —such a case can only be made out if there are a number of objective and relevant indications that the However, as is apparent from the judgment Commission, in the present case, annulled appealed against, the Court of First Instance the initial procedure and published a second found that 'the proof required to establish a vacancy notice for the sole purpose of taking misuse of powers on the part of the account of such experience, which had not defendant has not been adduced' (paragraph been acquired at the time of the first 26). In particular, as has been seen, the only vacancy notice. argument relied on by the appellant, namely the fact that Mr Waterschoot did not fulfil the requirements of the first vacancy notice, was dismissed by the Court of First Instance However, the Court of Furst Instance speci- because there were no objective indications fically found, in the judgment appealed that Mr Waterschoot did not fulfil those against (paragraph 26), that there were no requirements (second sentence of paragraph indications that that aim was pursued by the 24); and that, in any event, acceptance of Commission in opening a new competition the experience acquired following an procedure. appointment subsequently declared unlawful was not sufficient to prove that, by annulling the initial decision and publishing a new vacancy notice, the Commission The second plea in law should therefore misused its powers (paragraph 25). also be rejerted.