Judgment of the Court (Second Chamber) 1 April 1971 Dietrich Rabe v Commission of the European Communities

In Case 76/69

THE COURT (Second Chamber) composed of: A. Trabucchi, President of Chamber, P. Pescatore and H. Kutscher (Rapporteur), Judges, Advocate-General: A. Dutheillet de Lamothe Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Facts

Nature of duties: Head of Division

Qualifications required:

II — Procedure

III — Conclusions of the parties

IV — Submissions and arguments of the parties

Grounds of judgment

Costs

I —. Facts

1. The applicant, who was established in 1964 as an official in Grade A 4, was first Head of the Structure and Rules of the Market Branch at the Directorate-General for Steel of the former High Authority of the ECSC. In 1966 he was appointed temporary Chief Executive Assistant to a Member of the High Authority. In 1967 he was appointed temporary Head of Division. In 1968 he was assigned to a post in the Directorate-General for General Research and Technology.

2. In June 1968 the defendant published Vacancy Notice COM/75 relating to the Grade A 3 post of Head of Division III—B-3 (Rules of the market—inspection reports) within the Directorate for Steel under the Directorate-General for Industrial affairs. This notice contained in particular the following information:

II —. Procedure

1. Why did Mr Toffanin, a member of the selection board, continue to have reservations regarding the contents of the applicant's personal file when the parties seem to agree that the document which Mr Toffanin stated to be missing (the applicant's degree in business studies) had been added immediately to the file held by the selection board?

2. Why, in this case, did the Commission not stop at the promotion/transfer stage (Article 29 (1) (a) of the Staff Regulations) rather than going on to hold an internal competition?

III —. Conclusions of the parties

IV —. Submissions and arguments of the parties

1. The selection board for the competition made its decision under irregular circumstances since one of its members, Mr Desbois, was not present at the meeting when the decision was taken to propose to the Commission the appointment of Mr Peters. Since there is nothing to show what majority was obtained, the possibility cannot be ruled out that if Mr Desbois had participated in the meeting the selection board would have arrived at a different decision.

2. The applicant claims that the procedure followed for the competition shows a misuse of powers or of procedure. It appears from the facts in the case as a whole that this procedure was adopted solely for the purpose of appointing Mr Peters to the post in question, in order to reward him for services he had rendered to the Private Offices of Members of the Commission:

1. The presence of Mr Desbois would not have resulted in a different decision, since he later made it known that he agreed with the conclusions of the selection board and signed the report. It is in conformity both with the requirements of law and of practical necessity that the results of a competition should be determined by the members of the selection board present.

2. The allegation of misuse of power or of procedure is unfounded:

1. Since Mr Desbois did not participate in the second meeting of the selection board—where the candidates were interviewed and the list of those suitable decided upon—he was not entitled to sign the report. Moreover, at the first meeting, at which Mr Desbois was present, the applicant's file was not complete. If, even though inadequately informed as to the applicant, Mr Desbois agreed with the conclusions of the selection board, this merely affords additional evidence of the fact that the choice of Mr Peters had been made beforehand.

2. If the competition in dispute had taken the proper course, the applicant would necessarily have been successful. In support of this assertion the applicant sets out in detail his administrative career and his qualifications.

1. The fact that Mr Desbois signed the report of the selection board does indeed constitute an error, but Mr Desbois was convinced of the excellent qualities of Mr Peters. It emerges from the minutes of the 76th meeting of the Commission that the latter, contrary to the applicant's allegations, was accurately informed as to the significance of Mr Desbois's absence.

2. The periodic report made with regard to Mr Peters was signed, first, by a Member of the Commission and, secondly, by the Assistant Director-General for Industrial Affairs. In addition, it contains the following note: Mr Peters has been with Directorate-General III since May 1969.

1. This application is for the annulment of the decision of the Commission of 30 April 1969 appointing Mr Peters to the post of Head of Division III-B-3 which was the subject matter of Notice of Internal Competition COM/75, and for the annulment of the competition itself, including the notice of competition.

2. (1) The applicant considers that the said decision is illegal by reason of the fact that a member of the selection board for the competition, Mr Toffanin, added to the final report of the selection board comments to the effect that he considered, contrary to the opinion of the majority of the selection board, that two other candidates should have been placed jointly second with the applicant on the said list, without removing my reservations as to the latter with regard to the contents of his personal file.

3. On 10 March 1969 the administration invited the applicant to complete his application form by producing the degree in business studies referred to in the form, as well as testimonials issued by previous employers.

4. It emerges from the explanations of the parties that although the applicant acceded to this request on 18 March 1969, the administratioin did not send the documents in question to the selection board, with the result that the latter did not possess them either at its first meeting on 19 March 1969 or even at its second and final meeting on 28 March 1969, during which it drew up the list of suitable candidates as prescribed by Article 30 of the Staff Regulations.

5. Under the terms of Notice of Competition COM/75 this competition was in principle to be conducted on the basis of qualifications, the candidates having to show university education confirmed by a degree or equivalent experience.

6. For this reason, the existence and production of degrees and testimonials such as those in question might have great importance for the purpose of drawing up the list of suitable candidates and making the final appointment.

7. The fact that the selection board could not examine the documents in question is not the fault of the applicant but of the administration.

8. In these circumstances, the absence of the said documents constitutes a procedural defect on which the applicant is entitled to rely in this application.

9. (2) The applicant claims that the competition procedure is also vitiated by the fact, which is uncontested, that another member of the selection board, Mr Desbois, although not present at the meeting of the selection board of 28 March 1969, nevertheless signed its report and declared himself to be in agreement with the conclusions of the selection board.

10. This meeting was designed in particular to enable the members of the selection board, by means of an interview with candidates which was intended to examine references regarding their employment, to come to a clear conclusion as to the qualifications and personality of each of them. In these circumstances, by agreeing expressly with the conclusions of the selection board, Mr Desbois gave the impression of being as well informed about each of the candidates as the other members of the selection board, whereas in reality he was not present at the interview which, in the mind of the selection board, was an important factor in assessing the candidates.

11. Because of this fact also, the conduct of the competition in question was illegal.

12. The possibility cannot be ruled out that if all the illegal acts mentioned above had not been committed the selection board, as well as the appointing authority, might have come to a different decision.

13. Internal Competition COM/75 and the decision appointing Mr Peters to the post in dispute must therefore be annulled on the ground of infringement of essential procedural requirements, there being no need to examine whether the further submissions advanced by the applicant are well-founded.

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

15. The defendant has failed in its submissions.

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 Protocols on the Statute of the Court of Justice; Having regard to the Staff Regulations; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, especially Article 69, THE COURT (Second Chamber) hereby:

1 Annuls Internal Competition COM/75 and the decision of the Commission of 30 April 1969 appointing Mr Peters to the post of Head of Division III-B-3;

2 Orders the defendant to bear the costs of the action.

1 Language of the Case: French.