C-153/99

COMMISSION V GIANNINI

OPINION OF ADVOCATE GENERAL JACOBS delivered on 25 November 1999 *

1. This is an appeal brought by die Com- Directorate D (Sectoral commercial ques- mission against a judgment of the Court of tions) in Directorate-General I (External First Instance annulling certain decisions economic relations). To that end it pub- taken in the course of a procedure for lished a vacancy notice on 15 December filling a staff vacancy, on the ground that 1994, for which the minimum requirements they pursued an objective other than that of were: complying in good faith with a previous judgment of that Court annulling similar decisions taken in the course of an earlier procedure to fill the same vacancy. '— being in the same category/service/ career-bracket as the COM 2(internal transfer);

The judgment under appeal — being in the career-bracket below that of the COM (promotion, in accordance with Article 45 of the Staff Regula- tions); 2. The factual and procedural background to the case, as it appears from the judgment under appeal, 1 may be summarised as follows. — knowledge and experience/abilities appropriate to the tasks to be carried out;

3. In 1994, the Commission sought to fill the vacant post of Head of Unit 1 (Nego- tiation and management of textile agree- ments; footwear and other industries) of — for posts requiring particular qualifica- tions: thorough knowledge and experi-

* Original language: English. 1 — Joined Cases T-282/97 and T-57/98 Giannum v Commission 2 — Namely, i twould appear, the post advertised in the vacancy [1999] ECR-SC II-151. notice.

7. In that judgment, the Court of First Instance granted M r Giannini's applica- tions for annulment on the ground that 5. The Court held that the appointing the contested measures had been adopted in authority had imposed a legal framework pursuance of an objective other than that of on itself by the terms of the vacancy notice complying in good faith with the first and was required to reject any candidate judgment and had even compromised its not meeting the requirements thereof. It proper implementation. It found that the found that M r X had, at the time of his Commission had failed to fulfil its obliga- application, no experience in the fields of tions under Article 176 of the EC Treaty textiles, footwear or even the common (now Article 233 EC), which requires an commercial policy, whereas M r Giannini institution whose act has been declared possessed considerable relevant experience; void to 'take the necessary measures to the decisions not to appoint M r Giannini comply with the judgment of the Court', and to appoint M r X despite his failure to and had misused its powers. meet one of the minimum requirements for the post thus constituted a manifestly incorrect use of the Commission's powers and disregarded the interest of the service.

The appeal

6. The Commission did not seek to appeal against that judgment but, on 10 April 8. In a single ground of appeal, the Com- 3 — In Case T-21/96 Giannini v Commission [1997] ECR-SC mission claims that the Court of First II-211. Instance erred in law in holding that its

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9. On the contrary, the Commission con- 11. First, with regard to the duty of insti- siders, it was fully entitled to take those tutions to comply with judgments annulling steps following the partial annulment of the their acts, whilst it is clear that the Com- initial appointment procedure, the decision munity judicature is not entitled, when to do so being a proper exercise of its exercising judicial review of legality, to discretion, as is clear from the case-law of issue directions to the institutions, even as the Court of First Instance itself. It is for the to the manner in which its judgments arc to appointing authority to determine the qua- be complied with, 4the Court has none the lifications necessary for each post in the less consistently held that: interest of the service and, if the require- ments initially expressed are discovered to be inappropriate, an uncompleted appoint- ment procedure may be cancelled and a new one initiated with new requirements, even after partial annulment of the first procedure by a Court judgment. The fact '[I]n order to comply with the judgment that the additional preference expressed in and to implement it fully, the institution is the new vacancy notice corresponded to required to have regard not only to the qualities found in the first judgment to be operative part of the judgment but also to possessed by Mr X did not constitute the grounds which led to the judgment and conclusive evidence of a misuse of powers constitute its essential basis, in so far as aimed at circumventing the effects of that they are necessary to determine the exact judgment; for that, it would have been meaning of what is stated in the operative necessary to find that the additional pre- part. It is those grounds which, on the one ference was not relevant to the post to be hand, identify the precise provision held to filled. Finally, it cannot be considered that be illegal and, on the other, indicate the the first judgment comprised any instruc- specific reasons which underlie the finding tion to the Commission as to the conduct it of illegality contained in the operative part was to adopt following the annulment of and which the institution concerned must the decisions in question; any such instruc- tion would have been contrary to the allocation of powers under Article 176 of 4 — See, for example, the order ID Joined Cases C-199/94 P and C-200/94 P Pevasa and lmpesca v Commission [1995] ECR the Treaty. I .1709, paragraph 24.

12. Thus, the first judgment could not impose the adoption of any specific mea- sure or measures to cure the illegality found to have vitiated the original appointment procedure. The Commission was, however, obliged to take full account of the grounds of that judgment when choosing the course of action necessary to comply with it, and one such course of action could have been to resume the procedure at the stage of the 15. For example, Article 7(1) provides: examination of the original candidatures. 'The appointing authority shall, acting solely in the interest of the service and without regard to nationality, assign each official by appointment or transfer to a post in his category or service which corre- sponds to his grade.' Under Article 27, 13. Second, two competing considerations recruitment is to be directed to 'securing should be borne in mind with regard to for the institution the services of officials of procedures for appointments to vacant the highest standard of ability, efficiency posts. and integrity, recruited on the broadest possible geographical basis' among Com- munity nationals, without reference to race, creed, sex or nationality. Article 29(1) lays down a series of steps to be taken in 14. The Staff Regulations 6 contain a series mandatory order when filling a vacant of provisions with the thoroughly desirable post, 7and Article 45 specifies that promo- aim of guarding against nepotism, favour- tion is to take place only 'after considera- itism, string-pulling and subjective prefer- tion of the comparative merits of the ences of all kinds in the recruitment, officials eligible for promotion and of the reports on them'. All those provisions have consistently been interpreted and applied 5 — See Case C-415/96 Spain v Commission [1998] ECR 1-6993, by the Court in such a way as to emphasise paragraph 31 of the judgment, and the precedents cited the duty of impartiality incumbent on the there. 6 — Staff Regulations of Officials of the European Communities, introduced by Regulation (EEC, Euratom, ECSC) No 259/68 of the Council of 29 February 1968 laying down Staff Regulations of Officials and the Conditions of 7 — The appointing authority must first consider (a) whether the Employment of Other Servants of the European Commu- post can be filled by promotion or transfer within the nities and instituting special measures temporarily applic-. institution, then (b) whether to hold an internal competition able to Officials of the Commission, OJ, English Special and (c) what applications for transfer have been made by Edition 1968(1), p. 30, since amended on numerous officials of other Community institutions, before it may occasions. finally hold an open competition.

16. However, there is also an important public interest in giving the institutions 18. Third, this case concerns a situation in sufficient flexibility to appoint the right which an initial appointment procedure has person; accordingly, the Court has consis- been annulled as illegal and the subsequent tently recognised that the institutions have procedure has led to the appointment of the a broad discretion to organise their depart- same candidate as the first. It is obviously ments to suit the tasks entrusted to them easy, particularly for unsuccessful candi- and to assign the staff available to them in dates, to suspect foul play in the light of the light of such tasks. 9 such an outcome and, if foul play has occurred, the institution in question must be censured and any illegal measures annulled. 11 However, it would be unac- ceptable if annulment of an official's appointment on the ground of illegality in one procedure were to preclude his re- appointment to the same post even as a 17. Both before the Court of First Instance result of a subsequent scrupulously lawful and in its submissions on appeal, the procedure. Such cases therefore require a Commission has laid considerable empha- particularly thorough verification of the sis on the discretion which it enjoys. facts in order to avoid injustice. However, that discretion is not absolute; in particular, it presupposes a careful and impartial examination of each case and a meticulous regard to the requirements laid down in the vacancy notice. 10 And whilst review by the Court of decisions taken in the course of an appointment procedure may normally be confined, as the Commis- 19. Finally, it is a feature— albeit a sion argues, to verifying whether they regrettable one — of the procedure in such remained within proper or reasonable cases that any judgment annulling an appointment on grounds of illegality is likely to be given some appreciable time 8 — With reference to candidates selected in advance on the basis of their nationality, see for example Case T-58/91 Bnoss and Vtscber v Commission (1993] ECU II-147. 9 — See, for example. Case C-294/95 P Ojha V Commission 11 — Instances of such cases have been found — see, for 119961 ECR 1-5863, paragraph 40 of the jud g ment. example, loined Cases 141/85, 251/86, 258/86, 259/86, 10 — See, for example, Case C-35/92 P Parliament v Frederiksen 262/86, 266/86, 222/87 and 232/87 Van der .Sí,,/ and [19931 ECR 1-991, paragraph 15 of the jud g ment. Another v Commission [1989] ECU 511.

21. Although the Commission relies on a single ground of appeal, two separate 23. Moreover, the sole essential difference points arise: first, whether the Court of between the new and the original vacancy First Instance correctly found a misuse of notice was the addition, in the new notice powers, and secondly whether it correctly of vacancy, of the preference for candidates I - 2898

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with proven experience in international the Court of First Instance did not consider negotiation and in the management of a that the Commission was bound to resume unit: those two preferences correspond the original procedure: it was influenced, as precisely to the qualifications which the the judgment makes clear, by the Commis- first judgment had found Mr X to possess. sion's failure to explain why it embarked on a new procedure. Moreover, the Court of First Instance rightly, in my view, attached weight to the new preferences added to the vacancy notice which appeared designed to favour Mr X. 24. Those two elements — the failure to resume the initial examination of the candidates and the addition of the two preferences favourable to Mr X — were regarded by the Court of First Instance as sufficient evidence of the Commission's 27. Accordingly, in respect of the finding intention and as constituting a misuse of by the Court of First Instance of a misuse of powers, which was corroborated by the powers the appeal of the Commission must fact that the Commission's acts led again to be rejected as inadmissible. the appointment of Mr X: see paragraphs 29 to 32 of the judgment.

— The initiation of a new procedure 32. In the judgment under appeal, the Court of First Instance referred to Hoch- baum —· though not to Moat — but dis- tinguished it on the ground that it had involved a procedural defect. In drawing that distinction, the Court stated that the Commission was clearly entitled to reap- 30. The first question to be addressed is point the same person once that procedural whether, in the light of the first judgment, defect had been cured. 16 Implicit in that the Commission was entitled to terminate statement would appear to be the assump- the initial procedure without making an tion that a substantive defect, such as the appointment and simultaneously to initiate fact that the candidate appointed did not a new procedure for appointment to the meet the requirements of the vacancy same post. notice, either cannot be cured or acts as an absolute bar to subsequent reappoint- ment.

31. It is settled law that in general an appointing authority may terminate an appointment procedure before it is com- pleted. 12 That entitlement has been recog- 33. Such an assumption cannot be valid in nised by the Court of First Instance in two such general terms, as I have stated above. cases in which — as here — the original It is, on the other hand, perfectly valid in procedure had been partially annulled by a the context of a given appointment proce- Court judgment. In both Hochbaum 13 and dure. In the present case, for as long as the Moat, 14 the illegality giving rise to the procedure was implemented on the basis of the original vacancy notice, it was not

34. However, what is in issue here is not Mr X's reappointment on the basis of the original vacancy notice but the withdrawal 36. Those considerations appear equally of that notice — the termination of the first applicable in the present case. It seems appointment procedure before it had been consistent with the interest of sound admin- completed — and the initiation of a new istration, when an appointment has been procedure on the basis of a new notice. annulled some considerable time (in this That was the context in which the Com- case about two years) after the original mission invoked Hochbaum, 17 and it is a procedure, to 'wipe the slate clean' and context in which I find it more difficult to commence afresh. Circumstances will have distinguish that judgment. changed; if nothing else, some of the original candidates may no longer be interested or available and new potential candidates may have become so. In some cases, the annulment may leave only one or two valid candidatures in the original procedure, whereas a wider field of choice would be preferable. With regard to such considerations, the appointing authority 35. In Hochbaum, the Court of First must enjoy a discretion to choose, in the Instance did not explicitly base its conclu- interest of the service, between resuming sion on the fact that the original appoint- the original procedure as from the point at ment had been annulled as a result of a which it was annulled or terminating it and procedural, rather than a substantive, commencing a new one. defect. It considered simply 18 that, although the validity of the original vacancy notice had been neither challenged nor affected, the Commission's duty to comply with the previous judgment by remedying the flaws which had vitiated 37. I should like to add here a parenthesis the procedure leading to the annulled concerning the authority of the ruling in appointment in no way affected its discre- tionary power to extend its field of choice 19 — This approach lias recently been confirmed, obiter by the Court of First Instance in Case T-48/97 Frederiksen vParliament,judge 1999, paragraph 17 — Sec paragraph 23 of the judgment under appeal. 104. 18 — See paragraphs 13 to 16 of the judgment. 20 — At paragraph 39 of the judgment.

Hochbaum and Moat that the appointing candidate) in the course of the original authority's right to terminate a procedure procedure. at any point extends to cases where that procedure has been partially annulled by a Court judgment. Although there was an appeal in Hochbaum, 21 this issue was not raised there, and the ruling has not yet been endorsed by the Court of Justice. The — The amendment of the terms of the authority cited by the Court of First vacancy notice Instance in Hochbaum 22 is that of para- graphs 23 to 25 of the judgment in Vlacbou.23 In fact, it is not clear that a new procedure was engaged ab initio in Vlachou; it may be that the appointing authority was repeating a stage, or passing 39. The next issue is whether the appoint- on to a new stage, in the sequence laid ing authority was entitled to amend the down by Article 29(1) of the Staff Regula- terms of the notice. tions. 24 I none the less consider that the ruling in Hochbaum and Moat is correct, for the reasons stated in the preceding paragraph, and that the Court of Justice should take this opportunity of confirming it. 40. At first sight, it might appear obvious that it was. If the appointing authority may commence a new procedure, it must surely be free to decide the terms on which that procedure is to be conducted. 25 The requirements of the relevant administrative unit may well have evolved. It may also have become apparent, with hindsight, that the terms of the original vacancy notice were inadequate. If the appointing author- ity may take such a course where there is no 38. Returning to my main line of reason- irregularity in the original procedure, 26 ing, I therefore take the view that the then surely it need not remain automati- Commission was not automatically preclu- cally saddled with the terms of a vacancy ded from withdrawing the original vacancy notice which are no longer — or have notice and commencing a new procedure proved never to have been — appropriate, on the basis of a new notice, as long as that and have to carry the procedure through to step did not in itself perpetuate or repro- a conclusion, simply because there has been duce the unlawful advantage accorded to Mr X over Mr Giannini (or any other 25 — The situation here, where a new procedure is started afresh, is to be distinguished from that in cases such as Van der Stijl, cited in note 11, or Case C-304/97 P Carbajo 21 — Case C-107/90 P Hochbaum v Commission [1992] ECR Ferrerov Parliament [1999] ECR 1-1749, paragraph 33, in I-157. which it has been held that the conditions may not be modified from one stage to the next in the sequence laid 22 — At paragraph 15 of the judgment. down in Article 29(1) of the Staff Regulations, in the 23 — Cited in note 12. context of a single, continuing procedure. 24 — See above, note 7. 26 — As was the case, for example, in Fux, cited in note 12.

44. It is noteworthy in that context that whilst the Court has held that an appoint- ing authority may always cancel an 42. The appointing authority may lawfully appointment procedure and commence a terminate an uncompleted appointment new one in order to extend its field of procedure. It may also withdraw a vacancy choice in the interests of the service, there notice and replace it with another if it has been no ruling as to whether it may do transpires that the original conditions were so in order to limit its field of choice. This unnecessarily exacting in view of the needs apparent lacuna may be due simply to the of the service. 27 fact that in practice the aim will usually be to extend the field of choice where none of the original candidates seems appropriate for the job; there is generally no need to limit the field of choice, because less suitable candidates will be eliminated dur- 43. But was the Commission entitled, hav- ing the selection process. It may, however, ing regard to the grounds of the first be desirable to affirm the distinction judgment, to add a new preference? here — where a procedure has been par- Clearly, it is not acceptable for the appoint- tially annulled on the ground that one ing authority to determine in advance the candidate was improperly selected in pre- ference to another — because a move to limit the field of choice might represent an 27 — S e c Case 188/73 Grassi v Council [1974] ECR 1099, paragraph 43 of the judgment, and Carbajo Ferrero, cited attempt to favour the former or exclude the in note 25. latter from consideration.

(1) dismiss the appeal;

(2) order the Commission to pay the costs.

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