JUDGMENT OF 5. 12. 1974 — CASE 176/73 VAN BELLE v COUNCIL

In Case 176/73

THE COURT (First Chamber) composed of: C. Ó Dálaigh, President, R. Monaco and J. Mertens de Wilmars (Rapporteur), Judges, Advocate-General: G. Reischl, Registrar: A. Van Houtte,

gives the following

JUDGMENT

Facts

I — Facts and procedure

II — Conclusions of the parties

III — Submissions and arguments of the parties

Law

Costs

I —. Facts and procedure

1. The applicant is an official in Grade B3 with the Secretariat-General of the Council.

2. By letter of 29 March 1973 the applicant lodged a complaint within the meaning of Article 90 (2) of the Staff Regulations, requesting that the decisions of 22 December 1972 be withdrawn and that the procedure for appointment to the vacant posts concerned be reopened. By letter of 12 June 1973 this complaint was withdrawn in so far as it concerned the decision to appoint Roger Brisaer, whose death had occurred meanwhile. Since, for the rest, the complaint remained unanswered, Miss Van Belle lodged the present application against the decision appointing Charles Goetz and against all earlier and accompanying decisions, in particular the decision not to make use of the competition procedure and to apply Article 29 (2) of the Staff Regualtions, and against the implied decision rejecting the complaint of 29 March 1973. This application, dated 22 October 1973, was registered at the Court on 24 October 1973.

II —. Conclusions of the parties

1. Annul the defendant's Decision of 22 December 1972, published on 3 January 1973, appointing Charles Goetz to one of the posts forming the subject-matter of Vacancy Notice Council No 84/72;

2. Annul all decisions prior to and/or accompanying this decision of appointment and which are connected therewith, in particular the decision not to fill the vacant post in issue by means of the competition procedure, as well as the decision to apply Article 29 (2) of the Staff Regulations;

3. Annul the implied decision rejecting the applicant's complaint of 29 March 1973, in so far as it concerns the decision to appoint Charles Goetz;

4. Order the defendant to pay all the costs of the proceedings.

III —. Submissions and arguments of the parties

A —. The first submission in the application is based upon the infringement of Articles 29 (1) and (2) and 45 (2) of the Staff Regulations. The appointment of Charles Goetz, an official in Grade B1, to a post in Grade A6, in the absence of a competition, is alleged to be in violation of Article 29 (1), according to which, unless a vacant post can be filled by promotion or transfer within the institution or from other institutions, the competition procedure must be followed.

B —. As a subsidiary matter the applicant makes a second submission based upon the infringement of Article 29 (2) of the Staff Regulations. In the event of the latter's being held to be applicable, even in cases of internal recruitment and notwithstanding Article 45 (2) of the Staff Regulations, its application presupposes that certain formal and substantive conditions have been fulfilled, which was not and is not so in this case.

1. The proceedings instituted by application of 22 October 1973, lodged at the Court on 24 October 1973, are concerned, in essence, with the annulment of the Council decision of 22 December 1972 appointing Charles Goetz, an official with the Council in Grade B1, to a post as administrator in Grade A6.

2. This appointment was made in application of Article 29 (2) of the Staff Regulations of Officials, according to which a recruitment procedure other than that of a competition may be adopted, in exceptional cases, for posts which require special qualifications.

3. The applicant claims, first, that the contested decision could not have been taken in application of the said paragraph (2) because that provision is concerned only with the recruitment of persons not yet in the service of the Communities and cannot be used where, for the purpose of filling a vacant post, servants already in office are to be considered.

4. Article 29, which forms part of the chapter in the Staff Regulations devoted to recruitment, governs the various means of filling a vacant post.

5. It lays down, for this purpose, that examination shall be made, in order of preference, first of the possibilities of filling the post by promotion or transfer within the institution where the vacancy has occurred, next of the possibility of holding competitions internal to that institution, and, thirdly, of applications for transfer made by officials of other institutions.

6. It is only if these possibilities are seen to be inadequate that the procedure for competitions on the basis either of qualifications or of tests or of both qualifications and tests may be followed.

7. In this case, as appears from Article 29 of the Staff Regulations read in conjunction with Article 1 (1) (a) of Annex III thereto, this amounts either to inter-institutional competitions or to open competitions.

8. The Staff Regulations do not therefore distinguish between internal competitions and external competitions, but between internal competitions and open competitions, these last being those to which both candidates from outside the institutions and others, already having the status of official or servant, are admitted.

9. It follows that where, under certain conditions and in exceptional circumstances, Article 29 (2) allows the substitution of a different recruitment procedure for inter-institutional or open competitions, this procedure must be capable of application, without distinction, to all those who would have been eligible to enter those competitions.

10. It is neither just nor in the interest of the service that the said procedure should be applied only in respect of candidates who are not officials, in view of the fact that it is substituted for a competition from which candidates who are also officials could not have been excluded.

11. The applicant objects that it is illogical to apply Article 29 (2) to servants already in office because the decision to have recourse to this provision necessarily implies a prior decision not to hold an internal competition to fill the post at issue.

12. In her opinion, it cannot be accepted that the appointing authority can at one and the same time be of the opinion that there is no call to hold a competition internal to the institution because it is already recognized that the persons eligible to participate therein do not fulfil the conditions necessary to fill the vacant post, and yet, on the basis of Article 29 (2), appoint a person who, because he was already in the service of the institution, should have entered the said competition.

13. The skills required of the occupant of a post requiring special qualifications may be of a kind such that, in exceptional cases, the competition procedure, whether for internal or open competitions, is inappropriate for the assessment of those skills.

14. No doubt such circumstances only occur, as moreover is indicated by paragraph (2) of Article 29, in exceptional cases, such that the application of this provision is subject to very strict conditions of form and of substance; it cannot however be discounted.

15. Moreover, although it may be accepted that an open competition may, in certain circumstances, appear inappropriate for the purpose of filling a vacant post, there is no reason why the same might not possibly be true in the case of an internal competition, especially as the detailed rules for these two types of competition are identical.

16. It may therefore be concluded that by applying Article 29 (2) in respect of a servant already in office the defendant did not infringe this provision.

17. The applicant claims, secondly, that in any case Article 45 (2) of the Staff Regulations does not allow recourse to be had to Article 29 (2) for the purpose of the promotion of an official from one category to another.

18. According to Article 45 (1) of the Staff Regulations: Promotion shall be by decision of the appointing authority. It shall be effected by appointment of the official to the next higher grade in the category or service to which he belongs. Promotion shall be exclusively by selection from among officials who have completed a minimum period in their grade, after consideration of the comparative merits of the officials eligible for promotion and of the reports on them.

19. According to Article 45 (2): An official may be transferred from one service to another or promoted from one category to another only on the basis of a competition.

20. In the defendant's view, this latter provision merely rules out the possibility of promotion where a vacant post is filled by the movement of an official from one category to another, but refers, in respect of other cases, to the different recruitment possibilities provided for by Article 29, in both paragraph (2) and paragraph (1).

21. Article 45 (2) does not have the purely negative scope attributed to it by the defendant, but, on the contrary, formulates a fundamental rule corresponding to the organization of the Community public service into different categories requiring distinct qualifications.

22. The very words only on the basis of a competition indicate not only that promotion is not possible but that only a competition is admissible.

23. Moreover, if the provision at issue were concerned only to exclude promotion, while leaving open the possibility of other methods of recruitment, it would be superfluous, since promotion is already ruled out for the purposes of movement between categories by Article 45 (1).

24. Moreover, Article 29 (2), by reason of its exceptional character, must be strictly interpreted and cannot take precedence over the rule formulated, in a general and unconditional manner, in Article 45 (2).

25. The submission is well founded and the contested decision must be annulled.

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

27. The defendant has failed in its submissions and must therefore be ordered to pay the costs.

On those grounds, THE COURT, First Chamber, hereby:

1 Annuls the Decision of the Council of 22 December 1972 appointing Charles Goetz to a post as administrator in Grade A6;

2 Orders the defendant to bear the costs.