C-184/01

HIRSCHFELDT v EEA

OPINION OF ADVOCATE GENERAL JACOBS delivered on 25 April 2002 1

1. In the present case the appellant, Mr The relevant legislative provisions Hirschfeldt, asks the Court of Justice to annul the judgment in Case T-166/00 2(the judgment under appeal) and the two decisions of the European Environment Agency (the EEA) which were at issue in 3. The Staff Regulations 3lay down general that case. provisions for the recruitment and transfer of officials.

4. Article 8 of the Staff Regulations pro- vides:

If the decision granting the application (b) whether to hold competitions internal involves establishment in a grade higher to the institution; than that occupied in the parent institution, this shall count as promotion; such decision may be taken only in accordance with the terms of Article 45.'

(c) what applications for transfer have 5. According to the first paragraph of been made by officials of other institu- Article 27 of the Staff Regulations: tions of the three European Commu- nities;

'Recruitment shall be directed to securing for the institution the services of officials of the highest standard of ability, efficiency and integrity, recruited on the broadest possible geographical basis from among nationals of Member States of the Com- and then follow the procedure for compe- munities.' titions on the basis either of qualifications or of tests, or of both qualifications and tests. Annex III lays down the competition procedure.

6. Article 29(1) of the Staff Regulations provides:

'1. Before filling a vacant post in an The procedure may likewise be followed institution, the appointing authority shall for the purpose of constituting a reserve for first consider: future recruitment.'

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10. In a letter of 22 September 1999 to the Executive Director of the EEA, Mr Jimé- nez-Beltrán, the Director of Directorate A (Staff Policy) of Directorate General IX (now Directorate General Personnel and

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Si toutefois vous préfériez continuer dans la 12. The appellant then asked to be trans- voie du concours interne, la DG [IX] se ferred from the Commission to the EEA, verrait au regret de ne pas s'associer à ce pursuant to Article 8 of the Staff Regu- dernier ni à aucun de ceux que vous seriez lations, on 27 October 1999. By letter of amenés à organiser dans le futur pour 6 December 1999 the Commission pourvoir vos autres emplois permanents. informed him of its approval of the Elle devrait également renoncer définitive- transfer. In that letter it stated that the ment pour l'avenir à l'utilisation des trans- appellant was an official of Grade A 5 ferts au profit de l'[AEE].' (since 1 April 1996), step 3 (since 1 August 1996). By decision of 13 December 1999 the appellant was transferred to the EEA with effect from 1 November 1999 (here- inafter 'the second contested decision'). By that decision, he was categorised as an official of Grade A 5, step 3.

11. On 24 September 1999, the EEA announced its decision to cancel Compe- tition EEA/T/99/1 (hereinafter 'the first contested decision'). Mr Jiménez-Beltrán communicated that decision to the appel- lant by letter dated 27 September 1999. In that letter he stated, inter alia: 13. The appellant made formal complaints against the two contested decisions pur- suant to Article 90(2) of the Staff Regu- lations. Those complaints were rejected by the appointing authority of the EEA.

15. With regard to the first contested 18. With regard to the first contested decision, he relied on a single plea in law decision, the Court of First Instance based on Article 27 of the Staff Regu- recalled that it is settled case-law 4that lations. Referring to the letter by Mr the appointing authority is not obliged to Bisarre of 22 September 1999, he con- carry through a recruitment procedure tended that it was owing to an 'inter- initiated pursuant to Article 29 of the Staff institutional agreement' that the EEA had Regulations. 5 Since, according to the Court chosen to fill the post of Director of the of First Instance, it follows from that Finance Department by transfer rather than case-law that the appointing authority has by the organisation of an internal compe- a discretionary power to decide whether to tition. The choice of recruitment procedure carry through a recruitment procedure, it is had, therefore, not been determined by the entitled to cancel a competition where the needs of the service, as required by lawfulness of filling a post by the holding of Article 27 of the Staff Regulations, but by a competition is in doubt. 6The fact that a policy imposed by the Commission. Being the doubts had in this case been raised by a contrary to the Staff Regulations, the third party, namely the Commission, could decision to cancel Competition EEA/T/99/1 not be considered equivalent to an 'inter- was thus unlawful. institutional agreement', nor did it vitiate the appointing authority's exercise of its discretionary power. 7

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tition would therefore not necessarily have necessarily entail his establishment in a been appointed in Grade A 4. higher grade than the one he held at the Commission. 15

21. On those grounds, the Court of First Instance dismissed Mr Hirschfeldt's appli- cation as unfounded. 20. With regard to the second contested decision, the Court of First Instance noted that since Mr Hirschfeldt was transferred at his own request, it followed from the second paragraph of Article 8 of the Staff Regulations that he was deemed to have The appeal served his entire service career in the Community in the EEA. 9However, the Court held that — as Mr Hirschfeldt had himself accepted at the hearing — an auto- 22. In the appeal, the appellant claims that matic right to promotion in connection the Court of Justice should: with a transfer could not be derived from the third paragraph of Article 8 of the Staff regulations. 10 Nor could the argument that the EEA should have examined the possi- bility of promoting Mr Hirschfeldt be — annul the judgment of the Court of upheld: 1 1promotion of an official under First Instance; the third paragraph of Article 8 of the Staff Regulations is possible only where (i) the transfer of the official necessarily entails his establishment in a higher grade and (ii) the promotion complies with the conditions — annul the first contested decision; laid down in Article 45 of the Staff Regu- lations. 12 In the case of Mr Hirschfeldt, the first condition was not fulfilled. Although he had been appointed temporary agent of Grade A 4 at the EEA, he had remained — — annul the second contested decision in in accordance with the rules on second- so far as it categorised him as an ment 13 — an official of Grade A 5 at the official of Grade A 5, step 3, with Commission. 1 4His transfer to a post of effect from 1 November 1999; and Grade A 5/A 4 at the EEA therefore did not

— Admissibility

26. It is, as the EEA points out, clear that the comments set out in paragraph 27 of the judgment under appeal — to the effect that Mr Hirschfeldt did not have a legal 24. The appellant submits that the Court of First Instance erred in law by stating — in paragraph 27 of the judgment under 16 — The appellant refers in that regard to Case T-17/95 appeal — that he lacked an interest in the Alexopoulon v Commission [1995] ECR-SC 11-683. annulment of the first contested decision. 17 — It refers in that regard to the Order of the Court of First Instance in Case '1-128/96 Lebedef v Commission (1996) He argues that if he had succeeded in the ECR-SC 11-1679, paragraphs 19 to 21.

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interest in the annulment of the first con- ber 1999, in which it expressed its doubts tested decision — were obiter dicta. That about the lawfulness and appropriateness is confirmed by the wording of the judg- of Competition EEA/T/99/1, was not equiv- ment ('En outre et en tout état de cause') alent to an 'inter-institutional agreement' and by the fact that the Court of First and did not vitiate the appointing auth- Instance declared the claim unfounded, not ority's exercise of its discretionary powers inadmissible. It is therefore not necessary under the first paragraph of Article 27 of for the Court of Justice to rule in the the Staff Regulations. present case on whether the view taken by the Court of First Instance on the question of legal interest is erroneous in law.

— Substance

30. The EEA resists those arguments. 28. The appellant contends that the Court of First Instance erred in law in considering that the Commission's letter of 22 Septem- 18 — Cited above in paragraph 11.

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31. It argues, first of all, that the appel- 34. It appears from the judgment under lant's plea is inadmissible because it con- appeal that the Court of First Instance cerns findings of fact, or the assessment of considered that the EEA cancelled Compe- facts, set out in the judgment under appeal. tition EEA/T/99/1 because it had doubts In its view, the question whether the doubts about its lawfulness in the light of the about the planned competition, expressed Court's case-law about competitions aimed by the Commission in its letter of 22 Sep- essentially at establishing a particular can- tember 1999, vitiated the appointing auth- didate in a vacant position. That aspect of ority's exercise of its discretion is not a the judgment under appeal — which is question of law which may be reviewed by consistent with the reasons set out in the the Court of Justice under Article 225 EC decision of the appointing authority of the and Article 51 of the Statute. EEA rejecting the appellants's complaint pursuant to Article 90(2) of the Staff Regu- lations 20 — is, in my view, a finding of fact which cannot be reviewed by this Court.

32. According to the EEA, the appellant's plea is also unfounded. It points out that the Court of First Instance found that the 35. I thus conclude that the appellant's first EEA decided to cancel Competition plea should be dismissed as inadmissible. EEA/T/99/1 because that competition had — contrary to settled case-law19 — been organised for the sole purpose of remedying the anomalous administrative status of a specific official and of appoint- ing that official to the post declared vacant. In those circumstances, it would clearly not have been in the interest of the service to carry through the competition and the EEA The second contested decision was thus entitled to cancel it.

37. First, he submits that the Court of First transferred — that the appointing auth- Instance erred in law in ruling that pro- ority of the EEA was obliged, when it motion of an official under the third approved his transfer, to examine whether paragraph of Article 8 of the Staff Regu- his career had been properly 'reconstructed' lations is possible only where the transfer and in that context to consider the possi- of the official necessarily entails his estab- bility of promoting him. In that context, he lishment in a higher grade and that that refers to a letter of 26 April 1999 in which condition was not fulfilled in his case. In his the Executive Director of the EEA encour- view, the second contested decision should aged the appellant to seek a transfer and in not be considered as a decision to transfer which he stated that 'your present category him from the Commission to a vacant post and grade A 4 would be confirmed and of category A 5/A 4 at the EEA, but as a your years of service with the European decision to establish him in the post at the Environment Agency recognised'. By omit- EEA which he held as a temporary agent of ting to examine whether the EEA had in Grade A 4. In that regard he points out that fact reconstructed his career properly (and it was in his capacity as a temporary agent examined possibilities of promotion) and at the EEA of Grade A 4 that he applied for by omitting to respond to his arguments in transfer, and he submits that it follows that regard, the Court of First Instance from the principles of legitimate expec- erred in law and failed to provide adequate tation and legal certainty that an official reasons for its ruling. who is transferred following a secondment (and at his own request) must be estab- lished in the post and grade which he held in the institution to which he was seconded as a temporary agent. That interpretation is, according to the appellant, supported by the wording of the third paragraph of Article 8 which refers to the 'establishment' of officials who are transferred at their own 39. The EEA contests both of those argu- request. ments.

who is transferred normally maintains the graph of Article 8 of the Staff Regu- grade which he holds, at the time of the lations — to the effect that the Court of transfer, in the institution from which he is First Instance should have verified whether transferred. The possibility of establish- the appointing authority of the EEA exam- ment in a higher grade envisaged in the ined the possibilities of promotion in con- third paragraph of Article 8 exists, as the nection with the transfer. While it follows Court of First Instance held in the judgment from that provision that the appointing under appeal, only where, by way of authority of the EEA must consider the derogation from the normal situation, the whole of the appellant's career within the decision granting the transfer necessarily Community service as if it had been com- involves establishment in a grade higher pleted at the EEA in the course of the than that occupied by the official in the promotion exercises to be held in the years institution from which he is transferred. following his transfer, that provision does Where that occurs the transfer must be not oblige the appointing authority to carry regarded as a promotion and is therefore out, at the time of the transfer, a separate according to the third paragraph of examination of the appellant's specific Article 8 subject to the conditions laid situation with a view to promoting him. down in Article 45 of the Staff Regu- As regards the appellant, the EEA has lations. 21 complied with its obligations under the second paragraph of Article 8 since it con- sidered the appellant's situation in the course of the promotion exercise for the year 2000 and added his name to the list of official eligible for promotion. 41. However, the appellant applied for a transfer from a post as an official of Grade A 5 at the Commission to a position of Grade A 5/A 4 at the EEA, and the transfer thus did not necessitate his establishment in a higher grade. The Court of First Instance thus did not err in law in rejecting his submission that he had a right to be 43. It follows, according to the EEA, that established in the post at the EEA which the Court of First Instance did not err in he held as a temporary agent of Grade A 4. law in rejecting the appellant's submission that the EEA should have examined the possibilities of promoting him and that it adequately met the appellant's arguments.

46. It is clear from, in particular, the 48. It follows, in my view, that Article 8 of second paragraph of Article 8 that the the Staff Regulations cannot be interpreted system of transfers is based on the principle in such a way as to require an official's of continuity in the careers of Community promotion on the occasion of a transfer, or officials. On the one hand, the rights of an even to require his consideration for pro- official who has been transferred are not to motion outside the framework of the be affected adversely: the official is deemed regular procedures governed, in particular, to have served his entire service career in by Article 45. The second paragraph of the Community in the institution to which Article 8 guarantees that he suffers no he has been transferred. On the other hand, disadvantage in terms of promotion on a transfer does not normally entail an the occasion of his transfer, whereas the upgrading of the official concerned. An third paragraph merely allows his pro- official who is transferred stays in the grade motion, exceptionally, in those circum- held at the time of the transfer in the stances — whether as a consequence of institution from which he is transferred (the actual administrative necessity or for some parent institution). Any establishment in a other reason connected, for example, with higher grade is exceptional and must the organisation of the relevant service —

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50. Finally, I cannot accept the appellant's contention that the Court of First Instance failed to consider his arguments based on the second paragraph of Article 8 of the Staff Regulation and that the judgment under appeal does not provide adequate reasons.

52. I would thus dismiss the appellant's second plea as unfounded.

51. While it is true that the Court of First Instance did not explicitly rule on the 22 — Paragraph 43 of the judgment under appeal.

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Conclusion