C-121/01

OPINION OF MR GEELHOED — CASE C-121/01 P

O P I N I O N O F ADVOCATE GENERAL GEELHOED delivered on 19 September 2002 1

I — Introduction eral for Personnel, the Budget and Finance was split in order to create a Directorate General for Finance and Financial Control and a Directorate General for Personnel a 1. In this appeal Mr O'Hannrachain seeks vacancy arose for a Director General for annulment of the judgment delivered on Finance and Financial Control. Initially, it 16 January 2001 by the Court of First was decided to invite applications under Instance in Joined Cases T-97/99 and Article 29(1)(a) of the Staff Regulations. T-99/99 Charnier and O'Hannrachain v The vacancy notice required candidates to Parliament [2001] ECR-SC I-A-1 and II-1 demonstrate inter alia specific expertise in (the judgment appealed against). The judg- financial matters. Both Mr O'Hannrachain ment appealed against dismissed, inter alia, and Mr Lopez Veiga, as well as four other the claim for annulment of the decision of candidates, applied for this post. Together the appointing authority to appoint Mr with one other candidate Mr Lopez Veiga, Lopez Veiga as Director General of the who was at that time a Commission official Directorate General for Finance and Finan- seconded to the Parliament as the Presi- cial Control. dent's chef de cabinet, did not come within the category of persons eligible under Article 29(1)(a) of the Staff Regulations to be considered for appointment to the above post. None the less, he did apply in view of the possibility that the appointing authority might decide to extend the recruitment I I — Facts and procedure procedure under Article 29(2) of the Staff Regulations. It was in fact so decided. Shortly thereafter Mr Lopez Veiga was appointed to that post. Mr O'Hannrachain 2. For a more detailed account of the facts lodged a complaint against that appoint- and procedure before the Court of First ment decision which was unsuccessful, and, Instance I refer to the judgment appealed subsequently, brought an action. against.

setting aside of the judgment appealed 7. Mr O'Hannrachain submits that the against, the upholding of his pleas at first Court of First Instance misconstrued instance and finally an order that the Article 29 of the Staff Regulations by defendant should pay the costs. taking the view that the appointing auth- ority may have recourse to the procedure referred to in Article 29(2) of the Staff Regulations after initiating a recruitment procedure under Article 29(1) of the Staff Regulations without first carrying out an examination of the comparative merits of the eligible candidates under Article 29(1) III — Appeal with a view to verifying whether they meet the requirements of the vacancy notice. By acting in that way, the appointing authority failed to examine whether, in the present 5. Mr O'Hannrachain raises six pleas on case and in accordance with Article 29 of appeal. The first concerns infringement of the Staff Regulations, the promotion/ Article 29 of the Staff Regulations of transfer procedure was likely to result in Officials. Secondly, the Court of First the appointment of a person possessing the Instance disregarded the principle of legal- highest levels of ability, efficiency and ity, the duty to provide a statement of integrity. reasons and the audi alteram partem rule. Thirdly, it disregarded the effects attaching to a vacancy notice. Fourthly, there was a misinterpretation of the concept of the misuse of powers. Fifthly, there was a 8. Furthermore, at paragraph 37 of its failure to have regard to Articles 7 and 27 judgment the Court of First Instance rec- of the Staff Regulations and to the principle ognized that the candidatures were of 'a of non-discrimination. Finally, there was a priori' significance without providing failure to have regard to the principle of further reasoning or justification in sup- sound management and proper adminis- port. According to Mr O'Hannrachain that tration, and breach of the obligation to amounts to an acknowledgement that there provide a statement of reasons. was a deliberate and predetermined inten- tion on the part of the Parliament to appoint Mr Lopez Veiga in breach of the procedures existing for that purpose.

a result of improper recourse being had to Instance was able to base itself on settled the procedure under Article 29(2) of the case-law. For it has been held that use of Staff Regulations; to the failure to conduct the term 'whether' in Article 29 of the Staff a comparative examination of the merits of Regulations demonstrates that the appoint- candidates whose applications were ing authority is not bound absolutely to admissible under Article 29(1) of the Staff adopt those measures, but merely to con- Regulations; to the precipitate decision by sider in each case whether they are capable the Bureau on a barely reasoned proposal of resulting in the appointment of an from the Secretary General; to the absence official of the highest standard of ability, of discussion of the candidatures finally efficiency and integrity. 2The Court of First accepted and of reasoning enabling apprai- Instance was entitled to infer therefrom sal of the reasons why preference was given that the appointing authority is not bound to Mr Lopez Veiga. to follow, in the order indicated, the various stages of procedure set out in Article 29(1) of the Staff Regulations. 3 Under that decision it is also the case that the appointing authority is not obliged to 10. The Parliament contends that the first carry through a recruitment procedure once plea is inadmissible since it concerns a it has been initiated 4 but possesses dis- factual assessment and that the plea is in cretionary power to extend its field of any event unfounded since the Court of choice 5in the interests of the service and First Instance in forming its view based thus to avail itself of its power under itself on settled case-law concerning the Article 29(2) of the Staff Regulations. It is procedure under Article 29(2) of the Staff also settled case-law that a decision to Regulations. Moreover, the appellant mis- make use of the possibility provided for in interpreted the term 'a priori' in paragraph Article 29(2) of the Staff Regulations does 37 of the judgment appealed against. not necessarily have to be taken at the time of publication of the vacancy notice and that application of Article 29(2) of the Staff Regulations is not subject to a specific publication requirement. 6 The only rel- evant factor is whether the recruitment is Appraisal of the first plea of Grade Al or A2 officials or to posts for which special qualifications are required.

12. Thus, on the basis of existing case-law, appealed against the Court of First Instance to which reference was also made in the infringed the principle of legality, the duty judgment appealed against, the Court of to provide a statement of reasons and the First Instance was entitled to conclude that principle of the right to be heard by the appointing authority had competence accepting production by the Parliament at to decide to continue the recruitment first instance of documents drawn up after procedure under Article 29(2) of the Staff adoption of the decision to appoint Mr Regulations and also, in the context of the Lopez Veiga. extended field of choice in question, to include in its appraisal the two candida- tures which were not able to be taken into consideration under the initial recruitment 16. Essentially Mr O'Hannrachain con- procedure under Article 29(1)(a) of the siders that the legality of a decision must Staff Regulations. be appraised at the time when the decision was adopted without regard being had to information becoming available at a sub- sequent stage owing to the fact that such information was not known when the 13. As to Mr O'Hannrachain's view in decision was adopted. The reasoning must relation to use of the term 'a priori' in therefore also be founded on verifiable paragraph 37 of the judgment appealed grounds which must be ascertainable from against I would point out that the Court of the file established for the purposes of the First Instance plainly meant in this con- decision-making process. Moreover, it is nection that the two candidatures sub- said to be contrary to the principle of the mitted after initiation of the procedure right to be heard to have regard, as the under Article 29(2) of the Staff Regulations Court of First Instance did in the judgment were at first sight ('a priori') important in appealed against, to documents drawn up order to ensure that the available vacancy after adoption of the contested decision in was correctly filled. order to justify that decision.

21. The Court of First Instance sub- sequently inquired as to whether Mr Lopez 19. For there is a difference between, on Veiga satisfied the requirements laid down the one hand, documents which form the in the vacancy notice. Since the applicants basis of a decision and, on the other, at first instance stated that Mr Lopez Veiga documents produced in exercise of the did not hold a university degree in econ- rights of the defence which serve to support omics or finance and did not have equiv- justification of the decision adopted. alent professional experience and was also said to have no detailed knowledge of the specific rules, in particular the financial regulations applicable to the Community 20. In that connection it should be noted institutions, the Court of First Instance that at paragraphs 56 and 57 of the judg- went into these aspects particularly exten- ment appealed against the Court of First sively. In that connection the Court of First Instance recalls that, in accordance with Instance took Mr Lopez Veiga's curriculum settled case-law, the exercise of the dis- vitae as the point of departure. After cretion which the appointing authority requesting the Parliament for an official enjoys in the matter of appointments pre- copy of the relevant degree and a list of the supposes a meticulous examination of the courses followed in that connection, the application files and a careful regard for the Court of First Instance subsequently con- requirements set out in the vacancy notice, cluded that Mr Lopez Veiga possessed a so that the appointing authority is required degree qualification in economics. It to reject any candidate who does not meet further found that on the basis of the those requirements. The vacancy notice curriculum vitae and the documents constitutes a legal framework which the annexed by the Parliament to its defence appointing authority imposes on itself and that Mr Lopez Veiga also possessed the which it must meticulously respect. The requisite knowledge concerning the rules Court of First Instance goes on to recall and regulations applicable to the institu- that, for the purpose of verifying whether tions. the appointing authority has not acted outside the bounds of that legal framework and has acted in the interest of the service, the Court of First Instance must first establish what were the requisite conditions in order subsequently to verify whether the 22. These documents produced by the chosen candidate satisfies those conditions. Parliament are challenged by Mr O'Hann- Finally, the Court of First Instance notes rachain. In his view the Court of First that such a review does not, however, mean Instance should not have admitted them in evidence. It should be noted that in this case they constitute further substantiation 7 — Joined Cases 15/76 and 16/76 France v Commission [1979] of the information given in the curriculum ECR 321. vitae of Mr Lopez Veiga and that those I - 5546

(1) Third plea: non-observance of the duty to provide a statement of reasons and disregard of the effects attaching to a vacancy notice 26. Nor, it is submitted, does the decision appointing Mr Lopez Veiga to the post of director general contain any reasoning from which it might be inferred that he 24. This plea is directed against paragraphs satisfies the requirements laid down. In that 62 to 66 of the judgment appealed against. regard the Court of First Instance is said to In that part of the judgment appealed have been satisfied by statements by the against the Court of First Instance forms Parliament. Moreover, the Court is said to the view that the appointing authority did have taken over a task of the appointing

I - 5547

OPINION OF MR GEELHOED — CASE C-121/01 P

30. Finally, the Court of First Instance is said to have dismissed a number of those 28. This plea is directed against the view matters as immaterial without examination formed by the Court of First Instance at or adequate examination. I - 5548

O'HANNRACHAIN v PARLIAMENT

31. The Parliament asserts that the Court 35. At paragraph 87 of the judgment of First Instance concluded on proper appealed against the Court of First Instance grounds that there was no misuse of is said to have misconstrued the term 'in the powers, and that this plea must therefore interest of the service' because responsibil- also be rejected. ities of a general and political nature cannot replace the specific expertise required for the function in question.

I - 5549

OPINION OF MR GEELHOED — CASE C-121/01 P

38. The Parliament states that Mr O'Hann- ments drawn up pursuant to the rights of rachain merely recalls the context in which the defence. Mr Lopez Veiga was appointed and his dissatisfaction with the interpretation of the facts by the Court of First Instance. Such a criticism is not a plea which is admissible on appeal. Accordingly, the plea concerning the alleged breach of the prin- 42. Also in the context of the inquiry into ciple of sound management and non-com- whether the appointing authority did not pliance with the duty to provide a state- exceed the limits of its discretionary power ment of reasons must be dismissed. and observed the requirements laid down in the vacancy notice, the Court of First Instance established on review that Mr Lopez Veiga satisfied all the requirements of the vacancy notice and concluded that the appointing authority could properly (5) Appraisal of the other pleas come to the decision which it adopted.

O'HANNRACHAIN v PARLIAMENT

44. In regard to the argument that the misuse of power was established, must be Court of First Instance ought to have taken rejected as inadmissible. 9 account of the context in which the vacancy arose (the background of a new directorate general and the specific expert- ise and experience to head it), I would additionally point out that it may be assumed that in the determination of the requirements of the post account was taken of those matters. Accordingly, a review of whether those requirements of the post were satisfied is sufficient.

I - 5551

OPINION OF MR GEELHOED — CASE C-121/01 P

47. Nor therefore can the sixth plea based D — Compensation on the factual view that Mr Lopez Veiga does not satisfy the requirements laid down, which was dismissed as unfounded by the Court of First Instance, be upheld 48. Since it follows from the foregoing that since it is manifestly inadmissible. none of the pleas can succeed, it is not necessary to deal with the claim for pay- ment of compensation.

IV — Conclusion

49. In light of the foregoing I suggest that the Court of Justice:

(1) dismiss the appeal; and