JUDGMENT OF 28.6.1972 — CASE 88/71 BRASSEUR v EUROPEAN PARLIAMENT

In Case 88/71,

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

gives the following

JUDGMENT

Issues of fact and of law

I — Summary of facts and procedure

II — Conclusions of the parties

III — Submissions and arguments of the parties

Grounds of judgment

Costs

I —. Summary of facts and procedure

1. On 24 March 1971 the European Parliament published notice of Internal Competition No C/40 with a view to filling a post of clerical officer at the Directorate-General for Administration, classified in career bracket C3-C2.

2. Having heard the report of the Judge-Rapporteur and the views of the Advocate-General, the Court (First Chamber) decided to open the oral procedure without any preparatory inquiry.

II —. Conclusions of the parties

III —. Submissions and arguments of the parties

2. The applicant further alleges that his candidatur ew was obstructed by an opinion given during the competition procedure at the stage of selection of the successful candidate which did not appear on his personal file. By referring in this way to an opinion which does not appear on his file, the Parliament acted improperly and thus took an illegal decision in relation to the second paragraph of Article 26 of the Staff Regulations, which forbids the Administration to cite a document against an official unless it has been communicated to him before it was filed.

1. By an application lodged at the Registry on 25 October 1971, the applicant brought an action for the annulment of the decision of the European Parliament filling the vacant post which was the subject of Notice of Internal Competition No C/40 of 24 March 1971.

2. The applicant asserts first of all that the contested appointment is void for misuse of powers in that it was motivated by the wish of the Administration to transfer Mr Lesire, who had become unable to perform the duties of chauffeur which he had previously discharged, to another post through the expedient of the competition at issue.

3. The fact that the appointing authority wishes to give an official, who has become incapable of performing the duties which he previously discharged, the opportunity of obtaining another post corresponding to his capabilities and qualifications cannot be considered an illegal measure, so long as the provisions of the Staff Regulations relating to the recruitment of officials are observed.

4. The applicant does not contest the legality of the recruitment procedure followed in this case but alleges a number of matters concerned essentially with his qualities and merits as compared with those of his rival.

5. These allegations are not such as to make it appear that the appointing authority in this case pursued an illegal purpose and disregarded the interests of the service.

6. The submission must therefore be rejected.

7. The applicant also asserts that the decision at issue is void for illegality in that the appointing authority made its decision on the basis of an opinion of the Director-General for Administration of 13 July 1971 containing remarks critical of him made by a Member of the European Parliament and by a Head of Division of that institution.

8. Since these remarks were not included in his personal file, reference to them in the competition procedure is said to have been incompatible with Article 26 of the Staff Regulations of Officials.

9. According to subparagraph (a) of the first paragraph of Article 26 of the Staff Regulations of Officials the personal file of an official shall contain, inter laia,all documents concerning his administrative status and all reports relating to his ability, efficiency and conduct.

10. In pursuance of the second paragraph of the same article the aforementioned documents may not be used or cited by the institution against an official unless they were communicated to him before they were filed.

11. The purpose of these provisions is to guarantee an official's right of defence by ensuring that decisions taken by the appointing authority affecting his administrative status and his career are not based on matters concerning his conduct which are not included in his personal file.

12. According to the applicant, the opinion of the Director-General for Administration had a decisive influence on the tenor of the decision adversely affecting him.

13. He asserts, in this connexion, that he was placed first on the list of suitable candidates drawn up by the selection board and was awarded two points more than Mr Lesire.

14. It emerges from the report accompanying that list, and in particular from Annex 3, that in regard to suitability for the performance of the duties Mr Lesire obtained maximum points, 6 points more than the applicant.

15. The latter was able to make up this difference with the points obtained by his inclusion on the lists of suitable candidates in previous competitions and with two extra points for seniority.

16. Although for the purpose of assessing the suitability of each candidate it is necessary to have regard to the total number of points obtained, the importance for this assessment of the qualifications relating to suitability for the performance of the duties must not be disregarded.

17. This being the case, reasons based on the interests of the service sufficiently justify the preference given to the candidate appointed.

18. It does not seem, therefore, that the opinion of the Director-General for Administration of 13 July 1971 had a decisive influence on the choice made by the appointing authority.

19. There is no reason to annul the appointment of Mr Lesire and the application must therefore be dismissed.

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

21. The applicant has failed in his submissions.

22. However, under Article 70 of the Rules of Procedure, in proceedings commenced by servants of the Communities the institutions shall bear their own 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 Staff Regulations of Officials of the European Communities, especially Articles 26 and 29 ; 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, THE COURT (First Chamber) hereby :

1 Dismisses the application;

2 Orders the parties to bear their own costs.