JUDGMENT OF 12. 12. 1967 — CASE 4/67 MULLER v COMMISSION

In Case 4/67

THE COURT (First Chamber) composed of: A. M. Donner, President of Chamber (Judge-Rapporteur), R. Monaco and J. Mertens de Wilmars, Judges, Advocate-General: K. Roemer Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Summary of the facts

II — Conclusions of the parties

III — Submissions of the parties

A — Admissibility

B — The substance of the case

1. Action for the annulment of the decision of 29 July 1966 to appoint Mrs Graf

2. The request for retroactive appointment

3. The claim for damages

IV — Procedure

Grounds of judgment

Admissibility

Costs

I —. Summary of the facts

1. Mrs Anne Muller-Collignon, 29 years (the applicant),

2. Mrs Marlies Graf, 43 years.

II —. Conclusions of the parties

III —. Submissions of the parties

A —. Admissibility

B —. The substance of the case

1. Action for the annulment of the decision of 29 July 1966 to appoint Mrs Graf

(a). The applicant alleges in the first place that under the Staff Regulations her placing in the competition gave her the right to be chosen in preference to the other candidates and she adds that the appointing authority substantially departed from the result of the competition by appointing Mrs Graf without any good reason, as she was placed second on the list of suitable candidates; the appointing authority thereby infringed Articles 27, 29 and 30 of the Staff Regulations of Officials and in view of this the appointment should be annulled.

(b). The defendant takes the view that in exercising the choice which is conferred upon it by Article 30 of the Staff Regulations the appointing authority has other factors to assess than those taken into account by the Selection Board which ranks the candidates solely in accordance with the results of written and oral tests namely: age, vocational experience, previous assessments of candidates, etc. In the present case it was these other factors which led to the choice and appointment of Mrs Graf, all the more so since, according to the Selection Board's report, she was very close to the applicant's standard. In this connexion the defendant cites Mrs Graf's greater maturity by reason of her age and consequently her greater experience and longer career; the fact that just prior to the competition her grading was higher and her seniority was greater; finally that a comparison between the various assessments made of the two candidates works out in favour of Mrs Graf.

(c). The applicant states that the said appointment was made through a misuse, if not indeed an abuse, of powers since preference was given to Mrs Graf because certain accusations made against the applicant, in particular that she had fraudulendy acquired a prior knowledge of the questions in the written test, had been reported to the President of the High Authority. This presumption is made all the stronger in this case since a member of the Selection Board appears to have mentioned to the Staff Committee certain alleged irregularities and since members of the President's office seem to have discussed these matters. The defendant should have ordered an inquiry in order to establish whether this accusation was well-founded.

2. The request for retroactive appointment

3. The claim for damages

IV —. Procedure

On those grounds, Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties; Upon hearing the opinion of the Advocate-General; Having regard to the Treaty establishing the European Coal and Steel Community, especially Article 40; Having regard to the Protocol on the Statute of the Court of Justice of the European Coal and Steel Community; Having regard to the Staff Regulations of Officials of the European Coal and Steel Community, especially Articles 90 and 91; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, especially Articles 69 and 70; THE COURT (First Chamber) hereby :

1 Dismisses the appeal as inadmissible;

2 Orders the applicant to bear the costs of the proceedings, save those incurred by the defendant.