JUDGMENT OF 23. 1. 1975 — CASE 29/74 DE DAPPER v PARLIAMENT

In Case 29/74

THE COURT (First Chamber) composed of: J. Mertens de Wilmars, President of Chamber (Rapporteur), A. M. Donner and R. Monaco, Judges, Advocate-General: J.-P. Warner 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

(a) The submission that the appointments in question do not constitute promotions but mere transfers

(b) The submission regarding the (alleged) infringement by the appointing authority of Article 45 of the Staff Regulations

(c) The submission that, for the purposes of the consideration of the comparative merits of the candidates, the personal files did not contain the last periodic report

(d) The submission alleging misuse of powers, or alternatively of procedure

Law

Costs

I —. Facts and procedure

II —. Conclusions of the parties

III —. Submissions and arguments of the parties

(a). The submission that the appointments in question do not constitute promotions but mere transfers

(b). The submission regarding the (alleged) infringement by the appointing authority of Article 45 of the Staff Regulations

(c). The submission that, for the purposes of the consideration of the comparative merits of the candidates, the personal files did not contain the last periodic report

(d). The submission alleging misuse of powers, or alternatively of procedure

1. The application lodged at the Registry of the Court of Justice on 8 May 1974 seeks the annulment of the decision by the European Parliament of 21 May 1975 appointing by way of promotion three translators of the Dutch division to posts of reviser, these having been the subject of Vacancy Notice No 707.

2. The applicant considers in the first place that in maintaining the promoted officials in Grade L/A 5 of career bracket L/A 5-4 when previously they had the same grade in career bracket L/A 6-5, the contested decision infringed Article 45 (1) of the Staff Regulations according to which promotion shall be effected by appointment of the official to the next higher grade in the category or service to which he belongs.

3. The appointments in question, according to the applicant, should have been made by way of transfer.

4. Such a submission can only be relied upon by those adversely affected by the illegality of the decision, assuming that this were proved, in the present case only the officials promoted.

5. The submission must be rejected.

6. In the applicant's view Article 45 of the Staff Regulations has also been infringed in that the defendant did not consider the comparative merits of each candidate on an equal basis and in the light of comparable information and data, since only the seniority of grade and of service was considered.

7. It is apparent from the note which on 9 May 1973 the competent Director addressed to the Director-General for Administration, Personnel and Finance, that the various applications had been the subject of a careful consideration of the comparative merits of the various candidates and that in taking into account also seniority in grade and service, the appointment of the three successful candidates was proposed.

8. The submission is unfounded in fact and must be rejected.

9. The applicant further argues that the file prepared with a view to a consideration of the comparative merits of the candidates did not in his case contain the periodic report for the years 1971 and 1972.

10. In so far as the first comparative examination undertaken in January 1973 is concerned, the defendant does not dispute this fact which, according to it, was due to difficulties arising from the recruitment of additional staff, which became necessary by reason of the accession of the new Member States.

11. It points out that the periodic report files of the other candidates had been subject to the same delay so that in relation to each other the individual candidates were not adversely affected.

12. The defendant nevertheless pointed out that at the time of the final comparative consideration which took place during the months of April and May 1973 all the reports had been either placed in the personal files or drawn up in such a way that the appointing authority was able to take cognizance of them in its comparative consideration.

13. Nevertheless it is established that the periodic report relating to the applicant was only drawn up on 21 December 1973 and accordingly it could not have been known to the authority in question.

14. In any event even if it had existed in draft form at that time, it could not have been taken into consideration unless it had previously been communicated, in accordance with Article 43 of the Staff Regulations, to the applicant so as to allow him to make any comments thereon which he considered relevant.

15. Consideration of the merits of candidates whose periodic reports had already been drawn up under Article 43 and of others in whose case this had not yet been done fails to meet the requirements of Article 45 with regard to consideration of the comparative merits of officials.

16. Thus the contested decision infringes Article 45 and must be annulled.

17. Under Article 69 (2) of the Rules of Procedure, the unsuccessful party must bear the costs.

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

On those grounds THE COURT (First Chamber) hereby:

1 Annuls the decision of the European Parliament of 21 May 1973 appointing three translators of the Dutch Language Division to posts of reviser;

2 Orders the European Parliament to pay the costs.