C-304/97

— very good knowledge of European issues; 3. O n 10 January 1994, the European Parlia- ment published Notice of Vacancy N o 7424 in respect of post III/A/2743, Head of Divi- sion at the Information Office in Madrid, with a view to filling the post by promotion — a thorough knowledge of one of the official languages of the European Com- * Original language: English. munities and a very good knowledge

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of another. For practical reasons, a thor- 5. The appellant participated in the competi- ough knowledge of Spanish is required. tion and was placed second by the selection Knowledge of other official languages of board in the list of suitable candidates. The the European Communities will be taken Director-General of the Directorate-General into account.' for Information interviewed the first three on the list; taking account in particular of the results of the competition and of the experi- ence of each candidate in the field of informa- tion activities and of management, he pro- posed that the appellant be appointed to 4. Neither of the candidates who applied for post III/A/2743. By note of 30 January 1995, the post was considered to have the relevant the Secretary-General proposed to the experience. On 9 March 1994, the European appointing authority, the President of the Parliament published Notice of Competition European Parliament, that another candidate Internal to the Institution A/88 (hereinafter (hereinafter ' M r X ' ) , who had been placed 'Notice A/88'). The conditions for admission first in the list of suitable candidates, be to the competition were fixed as follows: appointed. By decision of 21 February 1995, the President appointed Mr X to the post.

CARBAJO FERRERÒ v PARLIAMENT

grounds were dealt with by the Court of First have 'proven experience in public relations Instance. and journalism', was able to take part in the competition.

8. I should state at the outset, as a point of general application, that the European Parlia- 10. The findings of the Court of First Instance ment has made far too liberal use of the argu- in response to this argument arc set out in ment, in respect of all the grounds of appeal, paragraphs 45 to 60 of its judgment. 2 The that they arc inadmissible because they simply central points may be summarised as follows: repeat arguments made before the Court of First Instance. It is clear that this argument is not applicable in any case. The appeal identi- fies, in respect of each ground of appeal, those elements of the contested judgment of the Court of First Instance with which the appel- lant takes issue, and outlines his reasons for — the conditions in Notice A/88 could law- doing so. His arguments are, of course, based fully have been confined to those speci- on arguments first submitted before the Court fied in Article 5(1) of the Staff Regula- of First Instance. They would be inadmissible tions, namely a university education or if they were not, pursuant to Article 113(2) of equivalent professional experience. Thus, the Rules of Procedure of the Court of Jus- the Notice had undoubtedly set out with tice. sufficient precision the conditions for occu- pying the post; compliance with these conditions could be assessed by the selec- tion board (paragraphs 48 and 49); 3

— in any event, Notice A/88 was not modi­ fied in such a way as to prejudice the right of members of staff of the institution to — the organisation of an internal competi- apply and, hence, did not favour external tion was of benefit to the appellant, as he candidates (paragraph 52). The European was not qualified to apply for promotion Parliament had contended that the rea­ to the post (paragraph 56). soning in Van der Stijl did not apply where the interests of internal candidates were not prejudiced vis-à-vis external candi- dates;

— the appellant had not contradicted the 11. The appellant argues that the case-law assertion of the European Parliament that, cited by the Court of First Instance is irrel- in accordance with the decision of the evant, as his complaint refers only to the appointment to a single post, and not several posts, as in Marcato, 5 or the establishment of 4 — Case T-140/94 Gutiérrez v European Parliament [1996] ECR-SC II-689, paragraph 43; Joined Cases 341/85, 251/86, 258/86, 259/86, 262/86, 266/86, 222/87 and 232/87 Van der Stilland Others w Commission [1989] ECR511 (hereinafter 'Van der Stijl'). 5 — Loc. cit.

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(c) what applications for transfer have been made by officials of other institutions of the three European Communities;

12. The European Parliament contends that this ground is unfounded, as nothing in the Staff Regulations justifies a distinction between and then follow the procedure for competi- recruitment procedures, or requires a greater tions on the basis cither of qualifications or or lesser precision in the drafting of the Notice of tests, or of both qualifications and tests. of Competition, depending on the number of Annex III lays down the competition proce- posts available. dure.

6 — Loc. cit. 8 — It is clear from both the remainder of the text anil the other ląnguągc versions of this provision that the singular 'institu­ 7 — Casc C-81/88 Müllers v ESC [1990] ECR 1-249. tion' is intended.

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15. It follows from the general scheme of the Staff Regulations that whenever an institution opts to fill a vacant post by promotion, in accordance with Article 29(l)(a), Article 45(1) applies concurrently. 1 0 In Grassi v Council, 16. In Van der Stijl,13 the Commission had the Court established that, wherever an insti­ decided to organise an open competition on tution decides to appoint an official to a post the basis of a Notice of Competition estab­ by promotion, it enjoys a wide discretion, in lishing requirements for the post which were particular as to the assessment of the respec­ significantly less strict than those in the orig­ tive merits of the candidates, but 'there is ipso inal Notice of Vacancy. The Court held that, facto an assumption that the exercise of this though the principles laid down in Grassi discretion will include careful examination of were 'enunciated with regard to an internal the files and meticulous regard to the require­ promotion procedure, they are to be applied ments laid down in the Notice of Vacancy'. u all the more strictly where the correspondence This discretion must, however, be exercised between a notice of vacancy and a notice of 'within the self-imposed limits contained in competition is concerned ... [and that a]ny the Notice of Vacancy'. As the basic function other interpretation would deprive Article 29 of the Staff Regulations of its effect, that pro­ vision requiring the institutions to consider whether a post can be filled internally before 9 — Case 176/73 Van Belle v Council [1974] E C R 1361, para­ 14 graphs 5 and 6. In fact, the recourse to open competitions they organise an open competition'. mentioned at the end of the first sentence of paragraph 1 is a fourth possibility. 10 — This view was espoused by the Court of First Instance in Case T-506/93 Moat v Commission [1995] ECR-SC 11-147, paragraph 37. 12 — Grassi, Ioc. cit., paragraphs 38 to 43; sec also Picciolo, loc. 11 — Case 188/73 [1974] E C R 1099 (hereinafter 'Grassi'), para­ graphs 26 and 38; see also Joined Cases T-178/95 and cit., paragraph 87. Ť-179/95 Picciolo and Calò v Committee of the Regions 13 — Loc. cit. [1997] ECR-SC II-155 (hereinafter 'Picciolo'), paragraph 85. 14 — Ibid., paragraph 52, emphasis added.

17. In the present casc, the European Parlia­ to the holding of an internal competition, it ment, having failed to fill the post by promo­ would thereby exclude from promotion or tion or transfer within the institution, was transfer those officials of the institution in entitled to pass to the stage of organising an question who could have complied with the internal competition. The question which less strict conditions defined in the Notice of arises is whether it was entitled to base the Competition. Such officials would, of course, competition on conditions which were dif­ be entitled to apply at the stage of the internal ferent from and less exacting than those competition, but that is not relevant; Arti­ defined in the Notice of Vacancy. cle 29(1) is designed to bestow on them the right to have their candidatures taken into consideration before the institution can decide to hold an internal competition. Furthermore, by relaxing the conditions in the Notice of Competition, the institution may admit to the competition officials who do not possess the qualifications for the post which the insti­ 18. It seems to me to be clear, on the basis tution itself has fixed as being necessary in both of the scheme and wording of Arti­ the interests of the service. cle 29(1) and of the case-law of the Court, that the institution may not, in a Notice of Competition Internal to the Institution, modify the conditions already established by the Notice of Vacancy. The Article is designed to give precedence, in a graduated scries of steps, to those already serving in the institu­ tion in question (first two steps) or in the institutions generally (third step). The proce­ dure established by this provision must be followed where the institution intends to fill a vacant post; each successive step designed to 20. The problems to which such an approach fill the vacancy must take place with refer­ to Article 29(1) gives rise do not stop there. ence to that post, as already designated. The For example, should the institution decide Notice of Vacancy sets the basic parameters that neither promotion or transfer nor an of the procedure, in particular by defining the internal competition was 'capable of leading nature of the 'vacant post'; any subsequent to the appointment of a person of the highest modification of the conditions modifies the standard of ability, efficiency and integrity', nature of the vacant post and hence distorts which is the basic objective of that provi­ the entire procedure. So to act would be to sion, , 5 it would be entitled to take account of 'move the goalposts'. applications for a transfer between the insti­ tutions, in accordance with subparagraph (c). However, the question would then arise as to whether this decision must be taken in the light of the vacant post as defined in the original Notice of Vacancy, or as defined in

22. In paragraphs 48 and 49 of its judgment, the Court of First Instance held, on the basis of Marcato and Be^dinelli, that it would '[w]hen the appointing authority has to fill a have been sufficient for the Notice of Com- post, it must, when drawing up the Notice of petition to fix, as conditions of admission, the Vacancy, take account of the special condi- minimum conditions established by Arti- tions of eligibility required of the holder; it cle 5(1), second subparagraph, of the Staff does not satisfy the provisions of the Staff Regulations. I do not see the pertinence of Regulations if the authority decides what these these judgments to this aspect of the present conditions should be only after the Notice proceedings. In Marcato, the four vacancies at has been published.' 1 6 issue were announced in the Notice of Com- petition, which was issued at the same time as the Notice of Vacancy; 18 no question of an inconsistency between them could or did arise. The dispute in Belardinelli concerned the con- ditions of admission to an internal

I might add that in the circumstances of Grassi no question of favouring external candidates 17 — Loc. cit., paragraph 52. 18 — Thus the applicant's first submission was described as con- cerning 'Notice of Competition No COM 484 to 487/70'; the Court's conclusion was that 'in so far as it refers to the notice of vacancy, the application must be dismissed' (para- 16 — Loc. cit., paragraph 39. graph 16).

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23. The Court of First Instance appears to assume that the institution can supplement any discrepancy between the Notice of Vacancy and the Notice of Competition by applying the conditions laid down in the 25. In paragraph 56 of its judgment, the former in carrying out the tests required by Court of First Instance stated, correctly, that the latter (paragraphs 51 and 52). However, the organisation of an internal competition Article 5 of Annex III to the Staff Regulations benefited the appellant, who had been ineli- provides that the selection board of an insti- gible to apply for appointment by promotion tution holding a competition must first 'draw or transfer. However, it is clear that that docs up a list of candidates who meet the require- not meet the appellant's argument, which is ments set out in the notice of competition' that a candidate was admitted who would not before proceeding to the tests themselves. The have been admitted to a competition organ- ised in accordance with the Notice of Vacancy. stage at which a criterion is applied, and the The legitimacy of that type of argument is strictness with which it is applied at that stage, fully recognised in the case-law, , 9 may produce different results. It cannot be said to be irrelevant whether a particular cri- terion is used as a (strict) condition of par- ticipation in a competition or as a (less strict) guideline to the conduct of the competition by the selection board. By way of illustration, the appellant states that the European Parlia- ment argued before the Court of First Instance 26. The Court of First Instance relics, in that, had it maintained as conditions of admis- paragraph 53 of its judgment, on a decision sion in the Notice of Competition the condi- tions specified in the Notice of Vacancy, then Mr X would have been unable to participate 19 — Sec, for example, the summary by Advocate General Jacobs in the competition, as he did not have, at in Van der Stijl, loc. cit., paragraph 28.

28. The appellant has sought to rely on the irregularities of the Notice of Competition as indicia of a misuse of powers, in casu the use of the recruitment procedure with a view to appointing a pre-selected candidate who does 30. In the light of the foregoing, I am of the not possess the capacities to occupy the post. opinion that the judgment of the Court of The Court must accept, and I see no reason First Instance, in so far as it rejects the com- to question, the Court of First Instance's plaint of the appellant concerning the modi- finding of fact that the appellant had not pro- fication by the European Parliament of duced objective, relevant and consistent evi- the conditions for appointment to dence that the appointment was made, or the post III/A/2743, Head of Division at the competition organised, for purposes other Information Office in Madrid, in Notice of than those for which the power of recruit- Internal Competition A/88, should be ment was conferred on the appointing authority. 20 — Article 37 of the EC Statute of the Court of Justice, extended to the Court of First Instance by Article 46 of that Statute. 21 — Case T-1/90 Pérez-Mínguez Casariego v Commission [1991] ECR II-143 (hereinafter 'Pérez-Minguen), paragraph 43. 22 — Case 12/69 Wonnerth v Commission [1969] ECR 577, para- graph 8; Case 184/80 Van Zaanen v Court of Auditors [1981] ECR 1951, paragraph 13; Pérez-Mínguez, loc. cit., para- graph 43; sec also the Opinion of Advocate General Sir 29. However, the irregularity in the setting of Gordon Slynn in Van Zaanen, loc. cit., p. 1971. the conditions in the Notice of Competition 23 — Pérez-Mínguez, loc. cit., paragraph 42.

31. This ground of appeal consists of a criti- cism of the Court of First Instance for its rejection of the appellant's complaint of a violation of the Notice of Competition by way of discriminatory conduct by the selec- tion board of the language tests. In essence, that Court considered that this complaint had 33. The first point to make about the com- been advanced for the first time at the oral plaint as thus formulated is that, as pointed hearing. A brief review of the history of this out by the European Parliament in its defence, complaint is thus necessary, It is important to and upheld by the Court of First Instance, recall that the outcome of the language tests the Notice of Competition, para- appears to have played a crucial, possibly graph III. B.2. c, provided for 'conversation decisive, role in the ultimate choice of Mr X with the selection board to enable it to assess in preference to the appellant. As the appel- the candidates' knowledge of languages other lant seems to have known from the outset, at than their main language'. The Court of First the end of the tests only one point separated Instance thus held that the selection board these two candidates and this difference was had not gone outside the framework of the attributable to the language tests, where Mr X Notice of Competition in assessing candi- obtained five points and the appellant four. dates' knowledge of a third or fourth lan- The Director-General recommended the guage. This finding has not been challenged appellant on the basis of his superior experi- on the appeal. It remains to consider the ence in public relations. The Secretary- appellant's claim of discrimination in that General, noting, however, that the choice was Mr X was treated more favourably by being extremely difficult, recommended adherence questioned in other languages, whereas the to the conclusions of the selection board, appellant was not. The first problem relates which resulted in the decision of the to the formulation of the discrimination claim appointing authority in favour of Mr X. as summarised in the preceding paragraph.

34. At the time of his application to the Court language tests 'if he had been questioned in of First Instance, the appellant was neces- the same manner as [Mr X] on his knowledge sarily aware, as the European Parliament has of a third or fourth language — quod non'. pointed out, of the facts of his own inter- He did not clarify whether he was now views by the selection board and, in particular, claiming that he had not been questioned at whether he was questioned in a third or all in a third or fourth language. Again his fourth language. H e was also aware and alleged allegation was ambiguous, where there was in the application that the single point which no justification for ambiguity. separated Mr X from him arose from the lan- guage tests. H e limited himself, however, to claiming the legitimate right to pay no par- ticular attention to such questions. This is quite different from his current claim that he was not, himself, so questioned. In my view, the allegation made in the application was not independent of his then current, though incor- rect, claim that third or fourth languages could not be considered. In view of the cen- 36. Prior to the oral hearing, the Court of tral role played by the language tests, I would First Instance requested the production by have been sympathetic to the appellant on the European Parliament of certain docu- this issue, if he had made his position clear. ments. Among these was the report of the However, the allegation made in the applica- selection board and a table in an Annex (No 5) tion is at best ambiguous. If anything, it thereto showing the points received by the implies that he was questioned in a third or candidates in the tests. The appellant relied fourth language, but that, for claimed legiti- on this document at the hearing (see para- mate reasons, he was unprepared. In the con- graph 62 of the judgment) to support his case text, there can be no reasonable excuse for his of unequal treatment. Mr X received three failure to state, if it be the case, that he was points for Italian and one each for French not so questioned. and English, whereas the appellant received three points for French and one for English. He relied on the fact that the relevant box contained only a dash to show that he was not questioned in other languages, viz. Italian and Portuguese, of which he had claimed knowledge in his application.

38. The claim of the appellant at this stage is that the Court of First Instance was wrong in holding that he had advanced this claim for the first time at the oral hearing. He states for the first time explicitly that he was not ques- tioned in a third or fourth language. I would dismiss this ground of appeal. Firstly, the Court of First Instance had the opportunity 39. The appellant argued in his application to to hear the arguments and assertions of the the Court of First Instance that it was normal parties at the oral hearing regarding the inter- practice for the appointing authority to act in pretation to be given to the table in Annex 5. accordance with the recommendation of the This is an assessment of fact which cannot be Director-General of the Directorate-General reviewed on appeal. In reaching its conclu- for Information, and that the appointing sion, it was entitled to take into account the authority should not have departed from it history of the appellant's pleadings and in without furnishing special reasons for having particular the fact that the complaint had not done so. Even though the European Parlia- been made in the original application. Sec- ment did not deny the existence of such a ondly, in holding that the matter was intro- practice, the Court of First Instance stated duced for the first time at the oral hearing, that neither the Staff Regulations nor any the Court of First Instance overlooked the other measure required that the appointing reference in the reply to alleged different authority request, let alone follow, the advice treatment vis-à-vis Mr X. However, the alle- of the relevant Director-General (para- gation there made was, as I have said, ambig- graph 76). Article 30 of the Staff Regulations uous. In any event, it was already inadmis- gave the appointing authority the right to sible for failure to make it in the application. decide amongst those on the list of suitable Thirdly, the references to a third and fourth candidates drawn up by the selection board. language made by the appellant consistently If the appointing authority could decide to prior to the hearing involved counting Spanish depart from the selection board's order of as the first. It transpires from Annex 5 that preference, he could, a fortiori, do so in respect

of a purely consultative recommendation, not the response to the appellant's complaint, for provided for in the Staff Regulations, which appointing the successful candidate rather than was provided after the selection board's list the appellant to the disputed post was the had been drawn up (paragraph 77). appointing authority's desire to observe the order of preference in the list of suitable can- didates prepared by the selection board (para- graph 85). This reasoning appeared to the Court of First Instance to be sufficient.

41. The fourth ground of appeal relates to the candidates had already been ranked in the appellant's more general argument before order of merit by the selection board, and the Court of First Instance regarding breach that there could be no additional obligation of the requirement that grounds be given for to give reasons where the appointing authority any decision adversely affecting an official, chose to adhere to the ranking submitted by pursuant to Article 25, second indent, of the that body (paragraph 88). Staff Regulations. The Court of First Instance observed that the appointing authority is obliged to give reasons when he rejects a complaint by a candidate against a decision not to appoint him to a post. 25 The suffi- ciency of the reasons given had to be judged in the light of concrete circumstances, such as the content of the decision, the reasons cited and the interest of the addressee in receiving an explanation. 26 The reason given, in

In par- lant appear, however, in paragraph 35. ticular, he should have been informed of the 25 — Paragraph 83 of the contested judgment; Pierrat, loc. cit., paragraph 30. decisive character of the linguistic tests, in 26 — Paragraph 82 of the contested judgment; Case T-280/94 order to enable him to detect the alleged dis- Lopes v Court of Justice [1996] ECR-SC 11-239, para- graph 148. criminatory treatment regarding his third

44. The decision in Pierrat concerned a con- sultative committee which was not provided for in the Staff Regulations but which was The fifth ground of appeal specifically established to assist the appointing authority with appointments, in the absence of any similar statutory body. 2S The position of such committees cannot, in my view, be compared with that of a senior official, such as the relevant Director-General, who was consulted as a matter of course by the appointing authority but who provided advice in the context of a competition for which a 46. The appellant submitted to the Court of selection board had been established under First Instance that the decision to appoint the the Staff Regulations themselves. Where the successful candidate constituted a violation of appointing authority prefers to adhere to the the principles of good administration and of ranking chosen by the selection board, there the interest of the service, as well as amounting is, thus, no need to provide any additional to a manifest error of appreciation. He argued, justification, beyond the normal statement of in particular, that the selection board could reasons, for his failure to accept advice solic- not validly have admitted to the competition, ited from other sources outside the require- and given first place to, a candidate who did ments of the Staff Regulations. not have the requisite qualifications and expe- rience for the post in question, that the lin- guistic tests should not have been decisive given that they gave rise to a maximum of 27 — Sec the second ground of appeal discussed above. five marks out of a potential total of 105, and 28 — Sec also Joined Cases 44/85, 77/85, 294/85 and 295/85 Hoch- that the Italian language was not indispens- bttum and Rawcs v Commission [1987] ECR 3259 and Case T-25/90 Schönhm v ESC [1992] ECR 11-63. able to the post in question. The appointing

authority should, instead, have followed the 48. The appellant submits, on appeal, that the advice of the Director-General of the Court of First Instance failed to take into Directorate-General for Information. account the advice given to the appointing authority by the relevant Director-General, which emphasised, in particular, the experi- ence and proven competence of the appellant and recommended his appointment to the post. However, as the Court of First Instance pointed out, it was not part of its task to sub- stitute its assessment of the candidates for that of the appointing authority 47. The Court of First Instance rejected the (paragraph 99). The Court of First Instance argument based on the principle of good found that there was nothing to indicate that administration because there was no sugges- the successful candidate was manifestly tion that the selection board was not quali- unqualified to be appointed to the post at fied to assess the candidates for the post at issue. This finding is not undermined by the issue. 29 As regards the interest of the service, evidence of the Director-General's high it said that, in the light of the scope of the opinion of the appellant. In any event, the discretion which the appointing authority has Director-General was not a party to the tests in evaluating that interest, the review to be administered by the selection board, which undertaken by the Court of First Instance were an essential part of the procedure for was confined to the question whether the the assessment of candidates provided for in authority remained within the bounds of that the Notice of Competition. Therefore, there discretion and did not exercise it in a manner are no grounds for concluding that the which was manifestly incorrect. 30 Further- appointing authority failed to observe the more, the work of the selection board was principle of the interest of the service, or comparative in nature, was based on the per- committed a manifest error of appreciation, formance of candidates in the competition in adhering to the ranking set out in the list tests, and could be reviewed by the Commu- of suitable candidates prepared by the selec- nity judicature only in the case of a manifest tion board. I would, therefore, reject this breach of the rules governing its work (para- ground of appeal. graph 101). O n the facts of the case, having examined the successful candidate's applica- tion for the competition and his curriculum vitae, the Court of First Instance concluded that he was not manifestly unqualified to take up the post at issue. The fact that the selec- tion board had given him marks equal to those The sixth ground of appeal awarded to the appellant in all tests other than the linguistic tests indicated that he had demonstrated his ability to exercise the func- tions entailed by the post (paragraph 103).

52. The appellant has been successful, in my view, in respect of one of his grounds of appeal. Furthermore, the Court is able to give final judgment on the ground in question and 5 1 . 1 agree with the appellant that his decla- to grant the orders sought, without referring rations regarding the existence of the letter the case back to the Court of First Instance. 31 cannot be set aside because of his inability to The Court must, therefore, make a decision produce a document which would, in any as to costs. 32 Equity docs not require in the event, have been in the possession of the present case that the costs of the proceedings opposing party. None the less, I recommend be shared between the parties. " Thus, the that this ground be rejected as unfounded, European Parliament should be ordered to because the allegation of bias has not, in any pay all the costs of the proceedings. 34 event, been substantiated. The appellant was, apparently, asked to explain the proposed application of funds to a body associated with a person bearing his family name. The corre- 31 — Article 54, EC Statute of the Court of Justice. spondence of names was, apparently, a simple 32 — Article 122, first subparagraph, Rules of Procedure of the Court of Justice. coincidence. The appellant docs not suggest 33 — Article 122, second subparagraph, second indent, Rules of that he was unable to furnish this explanation Procedure of the Court of Justice. 34 — Article 69(2), Rules of Procedure of the Court of Justice.

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Conclusion

53. In the light of the foregoing, I recommend that the Court: