JUDGMENT OF 10. 12. 1969 — CASE 12/69 WONNERTH v COMMISSION

In Case 12/69

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

gives the following

JUDGMENT

Issues of fact and of law

1 — Facts

II— Conclusion of the parties

III— Submissions and arguments of the parties

A — Admissibility

B — Substance

1. Legality of the Commission's decision of 18 December 1968

2. Alternative submissions

IV — Procedure

Grounds of judgment

The substance of the case

Costs

1. — Facts

II—. Conclusion of the parties

(a). In his application the applicant claims that the Court should:

(1). Principally

(2). In the alternative

(3). To the extent necessary:

(4). Declare that Mr Gunter Arning must intervene in the action so that joint judgment may be given;

(5). Order the defendant to pay the costs of the action.

III—. Submissions and arguments of the parties

A —. Admissibility

1. The defendant considers that the application is inadmissible inasmuch as it refers to the Commission's refusal to appoint the applicant to the post referred to in Vacancy Notice No COM/ 161.

2. The defendant considers that in any event the conclusions set out by the applicant in his reply under (2) are inadmissible, as in violation of Article 38 (1)(d) of the Rules of Procedure, they are set out for the first time in the reply and, in addition, as their purpose is to compel the Commission, through the Court, to take action incompatible with Article 176 of the Treaty.

3. Finally, the defendant considers that the conclusions claiming the intervention of Mr Arning are inadmissible on the ground that the Rules of Procedure do not recognize a concept of compulsory intervention.

B —. Substance

1. Legality of the Commission's decision of 18 December 1968

(a). The applicant claims that when the administration is dealing with an application from an official who has accepted transfer under Article 8(1) and who is invoking the priority right conferred on him by paragraph (2) of the same Article, the only criterion which it may take into consideration is the suitability of such official to hold the post in question. If the reply to this question is in the affirmative, the authority is no longer entitled to refuse to appoint the candidate.

(b). The applicant then maintains that the statement of reasons with which the Commission justifies its view that none of the officials in A3 was suitable for the vacant post, does not satisfy the requirements of a lawful statement of reasons for an act adversely affecting an official. On this point the applicant refers to the Judgments in Serio of 15 December 1966, Case 62/65 [1966] E.C.A. 561 and Gutmann of 5 May 1966, Joined Cases 18 and 35/65 [1966] E.C.R. 166.

(c). Finally, the applicant contends that the contested decision is illegal in that it distorts the meaning of the words is suitable by failing to take into account the parity of the qualifications required by Vacancy Notice No COM/161 and those of the applicant.

2. Alternative submissions

IV —. Procedure

1. The main purpose of the application is the annulment of the decision of the Commission appointing Mr Arning to the post of Head of the Work Safety Division which forms part of the Directorate-General for Social Affairs, and rejecting the candidature of the applicant for that post.

2. The defendant considers that the application is inadmissible to the extent to which it relates to the refusal of the Commission to appoint the applicant.

3. The appointment of Mr Arning necessarily implies a refusal to apply to the applicant in this instance the benefit of Article 8(2) of Regulation No 259/ 68, with the result that this decision affects him adversely.

4. The application for annulment is admissible.

5. The applicant requests the Court to give rulings on certain points.

6. The purpose of his seeking these rulings is either to obtain acceptance of the validity of certain of the submissions put forward in support of the application for annulment, or to induce the Court at this stage to give instructions to the authority responsible for enforcing the judgment to be delivered in this instance.

7. As regards these different points, the application must be declared inadmissible.

8. Finally, the application is also inadmissible to the extent to which it seeks the compulsory intervention of Mr Arning, as this form of legal action is not provided for in the Rules of Procedure.

9. The applicant alleges that the contested decision was taken in violation of Article 8(2) of Regulation No 259/68, whereby officials who, within the context of the merger of the Executives, have accepted transfer to a post corresponding to the career bracket immediately below that applicable to their grade, have a priority right of transfer to any post corresponding to their grade which may fall vacant or be created provided that they are suitable for the post in question.

10. He maintains, first, that once it had been shown that he was suitable for the vacant post, he had a right to be appointed thereto without any need for his merits to be compared with those of the candidates not having a priority right.

11. He states that the Commission was therefore required first to consider separately the suitability of the candidates entitled to the priority right provided for in Article 8(2).

12. The parties acknowledge that, when a candidate who has this right demonstrates he is suitable, he must be appointed in preference to candidates not having a priority right, although the administration may still choose between the various priority candidates who are acknowledged to be suitable.

13. The Commission maintains that it gave preliminary and separate consideration to the priority candidates.

14. It states that although it is true that this consideration was given within the framework of a recruitment procedure concerning both these candidates and their competitors who had no priority right, this method of proceeding is normal in such cases and is justified by the desire not to encumber the recruitment formalities.

15. As a result of this consideration, the Commission took the view that none of the three officials who had priority rights and who had applied for the post was suitable and that this assessment falls within the area of its sole discretionary power.

16. The voluntary acceptance by certain servants of transfer under Article 8(1) of Regulation No 259/68 constitutes an essentially temporary measure which is justified by the short-term requirements of the service following the merger of the Executives and cannot be prolonged to the detriment of the official concerned.

17. In view of the quite exceptional and temporary nature of such transfer, and in order not to compromise the reality of the obligations arising under Article 8(2), it is necessary to provide the officials concerned with strict guarantees regarding their priority right.

18. The implementation of such guarantees requires inter alia that the suitability of the candidates having priority be considered independently of any reference to the possible merits of those who have no such right.

19. The minutes of the meeting of the Commission of 18 December 1968 in fact state that the Commission first considered the possibility of three officials benefiting from the abovementioned priority right.

20. However, the same minutes show that this consideration was preceded by a detailed statement by the Commissioner concerned regarding the qualifications of all the candidates without distinction and that the opinion of the Director-General, which also dealt with all the candidates, had previously been considered. Moreover, the reports of all the candidates without distinction were known to the members of the Commission, who had also had a previous opportunity to study the files of both the non-priority and the priority candidates.

21. This method of procedure, which leads to comparisons between categories of servants, who, in this instance, could not compete with each other, does not fully guarantee to the officials who had voluntarily accepted provisional transfer under Article 8(1) the full benefit of the priority right conferred on them by Article 8.

22. Moreover, by reason of the priority to which such officials are entitled, a consideration of their abilities must be based on concrete factors which are capable of review, to the extent to which such a consideration might result in their being excluded in favour of candidates not entitled to such priority.

23. Such factors must only concern the qualifications required by the Vacancy Notice and must appear in the minutes of the Commission.

24. In this connexion, the minutes of the meeting of the Commission of 18 December 1968 only contain considerations which are so general that they do not satisfy the requirements indicated above.

25. For these reasons the decision infringes Article 8(2) and must be annulled.

26. Under the terms of Article 69(2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs.

27. As the defendant has failed in its submissions, it must be ordered to pay the costs.

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 Economic Community, especially Article 173; Having regard to the Protocol on the Statute of the Court of Justice of the European Economic Community; Having regard to the Rules of Procedure of the Court of Justice of the European Communities; Having regard to the Staff Regulations of Officials of the European Communities, especially Articles 25 and 91; Having regard to Article 8 of Regulation No 259/68; THE COURT (First Chamber) hereby:

I Annuls the decision of the Commission of 18 December 1968 appointing Mr Arning as Head of the Division for Work Safety;

2 Orders the Commission of the European Communities to pay the costs of the action.