JUDGMENT OF 3. 2. 1971—CASE 21/70 RITTWEGER v COMMISSION

In Case 21/70

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

II — Conclusions of the parties

III — Procedure

IV — Summary of the submissions and arguments of the parties

First submission: Infringement of the third paragraph of Article 4 of the Staff Regulations

Second submission: Disregard of the Vacancy Notice No COM/102/69

Third submission: Irregularity of the procedure

Grounds of judgment

The first submission

The second submission

The third submission

Costs

I —. Facts

1. The applicant, a German national, entered the service of the former High Authority of the ECSC in June 1953 as a multi-lingual shorthand typist and in November 1957, following a competition, was appointed -translator in German and promoted to Grade 5 of Category L/A in January 1963.

2. In March 1969 the Commission published Vacancy Notice No COM/102/69 concerning a post of reviser (career brackets LA 5-L/A 4) in the Directorate-General of Personnel and Administration, Directorate of Publications, Translation Division. The notice contained in particular the following information:

3. After several officials including the applicant put forward their candidature for the vacant post, the defendant decided on 1 October 1969 to appoint Mr Lenoch, who is also a German national.

4. On 26 January 1970, the applicant submitted a complaint under Article 90 of the Staff Regulations of Officials, in which she asked the appointing authority to reconsider all the files put forward and to review the procedure followed in order to set aside the candidate who was finally appointed and who does not fulfil the conditions of the published vacancy notice.

5. On 19 May 1970 the applicant lodged the present application.

II —. Conclusions of the parties

(1). declare the information notified to the applicant on 2 April 1970 rejecting her complaint on the basis of Article 90 of the Staff Regulations of Officials to be null and void,

(2). rule that the decision promoting Mr Lenoch to the post of reviser, vacant according to Vacancy Notice No COM/102/69, is illegal,

III —. Procedure

IV —. Summary of the submissions and arguments of the parties

1. The application seeks the annulment of the decision of the Commission of 1 October 1969 appointing Mr Lenoch to the post of reviser which was the subject of Vacancy Notice No COM/102/69, and of the decision of the President of the Commission of 23 March 1970 rejecting the applicant's complaint of 26 January 1970 against the said appointment.

2. The applicant considers that the appointment of Mr Lenoch is vitiated by illegality by reason of the fact that the person concerned could have acceded to the disputed post only by way of promotion, whilst the other candidates and particularly the applicant could have been appointed simply by transfer.

3. The third paragraph of Article 4 of the Staff Regulations of Officials, confirmed in this connexion by considerations of a budgetary nature, requires the institutions to give preference to transfer.

4. According to the wording of the provision quoted If the vacancy cannot be filled by transfer, promotion or an internal competition, it shall be notified to the staff or the three European Communities.

5. This provision lays down but a single rule of priority, that is to say, that which must be observed between transfer, promotion or internal competition on the one hand and external competition on the other, the first-mentioned operations being put on an equal footing among themselves.

6. The administration therefore remains free to give preference to a candidate capable of being appointed by means of promotion alone when it regards him more suitable than his competitors.

7. It is not possible in regard to the wording of the abovementioned provisions to raise considerations of a budgetary nature, no trace of which is shown by these provisions.

8. This submission must therefore be rejected.

9. The applicant claims that by appointing Mr Lenoch to the post in question the defendant did not conform to the conditions laid down in Vacancy Notice No COM/102/69.

10. The applicant alleges that, as Mr Lenoch carried out the duties not of a translator but of a terminologist with the Commission, he did not have wide experience of translation.

11. Furthermore, according to his application form, Mr Lenoch himself described his knowledge of French, Italian and Dutch as good to very good', whilst the vacancy notice had required very good knowledge of two languages of the Community other than German.

12. Lastly, it appears on reading the letter from the President of the Commission of 23 March 1970 that the defendant accepted Mr Lenoch's university education as a decisive criterion, whilst according to the wording of the vacancy notice university education with a degree should not have prevailed over equivalent professional experience which the applicant considers that she possesses.

13. By a decision of the President of the High Authority of the ECSC of 22 April 1964, Mr Lenoch was appointed translator, classified in Grade 6 … of Category L/A—that is to say, of the Language Service in accordance with the wording of Annex I to the Staff Regulations of Officials—and posted in that capacity to the terminology section of the translation division of the Directorate-General of Administration and Finance.

14. Since then and until his appointment to the disputed post Mr Lenoch carried out terminological and lexicographical duties which included in particular the preparation of multi-lingual glossaries providing the exact translation of highly technical terms or expressions, likely to cause difficulty in current translation.

15. In those circumstances the defendant could properly consider that the person concerned had wide experience of translation.

16. With regard to linguistic knowledge, Mr Lenoch's superiors classified this as very good.

17. Lastly the letter of the President of the Commission of 23 March 1970 states that close examination of the candidature files has led to the conclusion that among all the candidates Mr Lenoch is the most fitted to carry out the duties attaching to the post in question, based upon his university education and his professional experience.

18. As professional experience is thus mentioned under the same heading as university education, it is not possible to deduce from this letter that the defendant chose Mr Lenoch for the sole reason that he had a university education.

19. Nevertheless nothing prevented the defendant from choosing the candidate whom it considered to have, possibly owing to his university studies, the highest intellectual level, considered in relation to the requirements of the post to be filled.

20. It follows from all the foregoing that the submission must be rejected.

21. The applicant alleges further that for several reasons the procedure which led to the appointment of Mr Lenoch is vitiated by illegality.

22. 1. The applicant points out first of all that the Members of the Commission came to their decision on the basis of incomplete information.

23. With regard to the seniority of each candidate they were informed only of that of Mr Lenoch, to the exclusion of the seniority of the other candidates including the applicant.

24. It is true that the memorandum for the Members of the Commission prepared by the Secretariat of that institution and dated 3 July 1969 mentioned only Mr Lenoch's seniority.

25. However, that fact is easily explained in that, as Mr Lenoch was the only candidate who could have acceded to the disputed post solely by promotion, it appeared proper to specify that he had the minimum seniority in his grade required for the purpose of promotion by the second subparagraph of Article 45 (1) of the Staff Regulations of Officials.

26. Further, the abovementioned memorandum indicated that the personal files of all the candidates are held at the disposal of the Members of the Commission by the Directorate-General of Personnel and Administration.

27. Consequently, as the said files showed the seniority of each candidate, it cannot be claimed that the administration had made it impossible for the appointing authority to take this factor into account.

28. This complaint must therefore be rejected.

29. 2. The applicant complains of the fact that the disputed decisions were adopted in particular on the basis of scanty and inexact assessments contained, in respect of each of the candidates, in a telex message sent by the departments of the Commission in Luxembourg and communicated to the Commission through the Directorate-General of Personnel.

30. She claims that as the said telex message was not brought to the knowledge of those concerned and particularly of the applicant its use is incompatible with Article 26 of the Staff Regulations of Officials.

31. The defendant disputes the existence of a relationship of cause and effect between the disputed telex message and the adoption of the contested decisions.

32. That objection cannot be accepted.

33. According to the wording of the memorandum for the Members of the Commission drafted by the Secretariat-General of that institution and dated 2 October 1969, the procedure relating to the filling of the post in question was suspended at the request of the competent Member of the Commission, and the suspension was able to be lifted following additional information received by that member.

34. It appears from the file that the information provided in the abovementioned telex message consituted an essential part of the said additional information.

35. It must be accepted, therefore, that the said telex message exercised a decisive influence on the content of the disputed decisions.

36. Under Article 26 of the Staff Regulations of Officials, The personal file of an official shall contain:

37. According to the wording of Article 43 of those Regulations The ability, efficiency and conduct in the service of each official… shall be the subject of a periodical, report which shall be communicated to the official who shall be entitled to make any comments thereon which he considers relevant.

38. The procedure which led to the adoption of the disputed decisions disregarded the abovementioned provisions.

39. The abovementioned telex message contained assessments concerning the competence of the applicant, assessments which were neither inserted in her personal file nor brought to her knowledge.

40. These assessments which were unfavourable to the applicant differ strikingly from the opinion which appears from the periodical report on her.

41. In these circumstances, because they occurred following a procedure vitiated by illegality the decisions in question must be annulled.

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 Staff Regulations of Officials, especially Articles 4, 26 and 43; Having regard to the Protocols on the Statute of the Court of Justice; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, especially Article 69, THE COURT (Second Chamber) hereby :

I Annuls the decision of the Commission of 1 October 1969 appointing Mr Lenoch to the post of reviser, which was the subject of Vacancy Notice No COM/102/69, and the decision of the President of the Commission of 23 March 1970 rejecting the complaint made by the applicant against the said appointment;

2 Orders the defendant to pay the costs.