JUDGMENT OF 10. 7. 1975 — CASE 77/74 KÜSTER v PARLIAMENT

In Case 77/74

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

gives the following

JUDGMENT

Facts

I — Facts and written procedure

II — Conclusions of the parties

III — Submissions and arguments of the parties

IV — Oral procedure

Law

Costs

I —. Facts and written procedure

1. By Notice of Vacancy No 892 of 28 September 1973 a post of Head of Division in the Directorate-General Research and Documentation was declared vacant as at 1 January 1974. The wording of the notice stated that the post in question was in the first instance to be filled by way of promotion or transfer within the institution.

2. On hearing the report of the Judge-Rapporteur and the views of the Advocate-General, the Court (First Chamber) decided to hear Mr Hans Joachim Opitz, Director-General at the European Parliament, as a witness in his capacity as chairman of the Selection Board in internal competition A/45 on two questions relating to the marks awarded by this Selection Board under criteria 7 and 12.

II —. Conclusions of the parties

(1). Before proceeding further, order the Parliament to produce all papers, documents and minutes relating to competition A/45 in order to allow a complete and factual examination of the Selection Board's proposals to take place.

(2). Record that the applicant reserves the right in due course to present all other submissions in support of his application and to submit such offer of proof as may be appropriate.

(3). Rule that the present appeal is admissible in its form and presented within the appropriate time-limit.

(4). Accordingly, rule that the implied rejection of the applicant's complaint to the President of the European Parliament of 17 March 1974. is null and void.

(5). Rule that the promotion which took place on the basis of competition A/45 is irregular and illegal and accordingly annul the same.

(6). Order the Parliament to pay all the costs and expenses of the proceedings.

III —. Submissions and arguments of the parties

(1). Under the provisions of Article 29 of the Staff Regulations the appointing authority is obliged, before opening an internal competition, to state its inability to fill the vacant post by way of promotion or transfer within the institution. Yet the notice of competition merely states that the appointing authority had decided to fill the post by way of competition and makes not the slightest reference to the grounds on which no promotion is possible in the present case. In these circumstances the opening of the competition in question is irregular: the competition was organized with a view to appointing a specific candidate, .even if he were the last in the list of suitable candidates, and therefore involves a misuse of powers.

(2). The Selection Board in the present case was appointed by the Secretary-General when in fact, under the provisions which were notified to the staff in 1962, only the president of Parliament can appoint selection boards in respect of competitions in Category A. As regards the decision of the Bureau of Parliament of 7 and 8 October 1971 which, in respect of grades other than Al and A 2, delegates this competence to the Seretary-General, it was never brought to the notice of the staff and cannot for that reason be used against it.

(3). Contrary to the terms of the notice of competition, according to which the competition would be on the basis of qualifications; the Selection Board in fact held oral tests which were the subject of marks. This amounted to an arbitrary alteration of the structure of the competition set out in the aforementioned notice, which rendered the competition procedure null and void.

(4). The applicant points to the absence, amongst the criteria for selection adopted by the Selection Board, of that of experience acquired in the post to be filled (as regards these criteria. cf. Annex 2 to the statement of defence). He finds moreover that the Selection Board had committed several irregularities in marking. It appears in particular, that in the course of the selection procedure, which was done simultaneously by the same Selection Board in respect of the two competitions A/43 and A/45, Mr Gérard Kieffer had in respect of the same criterion (No 12) obtained three more points in Competition A/45 than in Competition A/43, whilst the applicant had obtained three more points in Competition A/43 than in Competition A/45. Moreover, it seems inexplicable how a candidate who at the time of the competitions was a temporary servant could have obtained five points under Criterion No 2, in respect of seniority acquired in the career next below that corresponding to the post to be filled, and seven points under Criterion No 7 (general reports …), when he had never in fact been the subject of a periodical report. In support of these allegations the applicant requires the production of every paper, document and minute relating to Competition A/45, including the personal file of Mr Gérard Kieffer.

IV —. Oral procedure

1. By action brought on 16 October 1974 under Article 91 of the Staff Regulations, the applicant asks the Court to annul the implied rejection by the European Parliament of his complaint of 17 March 1974 and consequently to annul the appointment of Mr Gérard Kieffer which took place on 14 February 1974 as a result of Competition A/45.

2. In support of his conclusions he submits inter alia that the criticized appointment is irregular since the Selection Board in relation to the competition had, under the heading General reports and professional assessments within the Community institutions attributed points to the appointed candidate, for whom no periodic report in fact existed.

3. It is not denied that the appointed candidate was at the time of his appointment a temporary servant and that he had not, by reason of this fact, been the subject of a report.

4. Nevertheless it is shown by the details which were furnished by the chairman of the Selection Board in the course of the oral procedure that the Selection Board had, on the basis of the aforementioned criterion of selection, accorded this candidate seven points out of ten.

5. Whilst there is nothing to prevent the admission of temporary servants to internal competitions, it is not correct to attribute to them fictitious marks when, by reason of their legal position they do not comply with one of the criteria of selection applied.

6. Besides, whilst it is true that the heading under which the marks in question were granted is not only that of general reports but also that of professional assessments within the Community institutions, it nonetheless remains a fact that the conditions which the Staff Regulations place upon the preparation of the periodic report exclude the possibility of this being replaced by the judgment made by a selection board.

7. Moreover, it is shown by the information supplied at the hearing that the number of points attributed under this heading expresses an arithmetic value and at the same time a global assessment of the individual qualities of the candidate, very different from that which forms the basis of the periodic report.

8. In these circumstances this marking must be considered irregular from the point of view of the Staff Regulations and of such a kind as to involve the annulment of the appointment.

9. As is shown by the Selection Board's report annexed to the statement of defence, the appointed candidate could not, in the absence of the marking in question, have achieved the number of points treated as the minimum for inclusion in the list of suitable candidates.

10. Thus the irregularity referred to, which, affects the validity of the appointment in question, causes prejudice to the applicant.

11. There being no need to examine the other claims in the action, the appointment of Mr Gérard Kieffer resulting form Competition A/45 must therefore be annulled.

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

13. The defendant has failed in its plea.

14. The defendant must therefore be ordered to pay the costs of the proceedings.

On those grounds, THE COURT (First Chamber) hereby

1 Annuls the appointment of Mr Gérard Kieffer resulting from Competition A/45;

2 Orders the defendant to pay the costs.