JUDGMENT OF 29. 9. 1976 — CASE 105/75 GIUFFRIDA v COUNCIL

In Case 105/75

THE COURT (First Chamber) composed of: A. O'Keeffe, President of Chamber, A. M. Donner and F. Capotorti, Judges, Advocate-General: J.-P. Warner 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

(1) Non-compliance with the decision of the Council of 21 March 1973

(2) Disregard of the principle of equal treatment

(3) Infringement of the terms of Article 29 (1) (a) and (b) of the Staff Regulations

(4) Infringement of the terms of Articles 7 and 27 of the Staff Regulations and misuse of powers

IV — Oral procedure

Law

Costs

I —. Facts and written procedure

1. By Notice No 11/75-I of 18 February 1975 the Secretariat-General of the Council drew the attention of the staff to Notice of Internal Competition No Council/A/108. The competition was to be held on the basis of qualifications and concerned a vacant post of principal administrator in career bracket A 5/A 4, to be filled in Grade A 4.

2. The written procedure followed the normal course.

II —. Conclusions of the parties

1. Annul the decision of the defendant published on 20 May 1975 appointing Emilio Martino to thepost of principal administrator in career bracket A 5/A 4, in Grade A 4, which was the subject of Notice of Internal Competition No Council/A/108;

2. Annul all decisions prior to and/or concomitant with the decision of appointment referred to at 1. above, in particular, the decision not to have recourse for the purpose of filling the vacancy in question to the procedure of promotion and the decision to organize Internal Competition No Council/A/108 on the basis of qualifications;

3. Annul the express decision rejecting the applicant's complaint lodged on 30 May 1975;

4. Order the defendant to bear the costs.

III —. Submissions and arguments of the parties

(1). Non-compliance with the decision of the Council of 21 March 1973

(2). Disregard of the principle of equal treatment

(3). Infringement of the terms of Article 29 (1) (a) and (b) of the Staff Regulations

(4). Infringement of the terms of Articles 7 and 27 of the Staff Regulations and misuse of powers

IV —. Oral procedure

1. In an application brought on 3 October 1975 the applicant, an official of the Council of the European Communities, requests the annulment of the decision of the Council appointing Emilio Martino to the post of principal administrator at the Directorate-General for Regional Policy.

2. In support of his application the applicant maintains that the contested decision was adopted following an internal competition which was organized for the sole purpose of appointing to the vacant post the candidate who was in fact successful.

3. For this reason, the decision in question is alleged to be contrary to the provisions of the Staff Regulations and to constitute a misuse of powers.

4. The decision making the appointment in question was adopted following Internal Competition on the Basis of Qualifications No A/ 108, the notice of competition for which was published on 18 February 1975 in Communication No 11/75-I from the Secretary-General.

5. Under the terms of the first paragraph of Article 27 of the Staff Regulations Recruitment shall be directed to securing for the institution the services of officials of the highest standard of ability, efficiency and integrity …

6. In addition, Article 29 of the Staff Regulations lays down the necessary recruitment procedures — which, in paragraph 1 (b), include the internal competition — so that vacant posts may be filled by officials chosen on the basis of objective criteria and only in the interests of the service.

7. In his note of 14 November 1974, in which he replied to the criticisms made by the Amalgamated European Public Service Union in its Bulletin of 7 November 1974, the Secretary-General stated that:

—. The question of the transfer of an official in Grade L/A 4 to Grade A 4 as a result of a competition arose out of a desire to mitigate an anomalous situation which has already lasted for some years and which came into existence as the result of excessive leniency on the part of the administration.

—. It will be impossible for such a situation to arise in future. Measures will be adopted to ensure that in the near future the tasks performed by each official are those of his category or service.

8. The defendant has not contested the pertinence in this case of these statements and, during the written and oral procedure, has admitted that the situation which has already lasted for some years to which the Secretary General referred was that of Mr Martino who was classified in Grade L/A 4 but who had for a considerable time been assigned to a post which was identical to the post in question.

9. In its rejoinder the defendant stated that as such a situation was anomalous it was appropriate … to remedy it by means of the opportunity presented by Competition No A/ 108.

10. It is clear from the abovementioned note and from the foregoing statements that Internal Competition No A/108 was organized by the appointing authority for the sole purpose of remedying the anomalous administrative status of a specific official and of appointing that same official to the post declared vacant.

11. The pursuit of such a specific objective is contrary to the aims of any recruitment procedure, including the internal competition procedure, and thus constitutes a misuse of powers.

12. The existence of misuse of powers in this instance is moreover confirmed by the fact that one of the conditions for admission to the competition was that the successful candidate must have held the secretariat for meetings of Council working parties or committees on regional policy for at least four years.

13. It is not disputed that such a restrictive condition corresponds exactly to the duties performed by Emilio Martino in his previous post.

14. Furthermore, none of the information provided by the defendant shows why it was necessary in the interests of the service to lay down such a specific condition as regards the duration of the duties referred to.

15. Furthermore, in a memorandum dated 21 March 1973 which was drawn up after agreement with the staff representatives, the Secretary-General of the Council had given the Directorate for Administration certain directives in relation to internal competitions (section III).

16. The memorandum provided, in particular, that in order to ensure the equal treatment of all officials internal competitions will take place on the basis of qualifications and tests offering the same guarantees of selection as open competitions although adapted to the internal nature of the competition and the types of post to be filled.

17. Whether or not the memorandum in question was at that time in the nature of a decision, the fact remains that, in the interests of proper administration and in so far as an internal competition may result in transfer or promotion into a higher category or into the Language Service, the appointing authority should have regarded itself as under a moral obligation to comply with it and, therefore, to organize the competition in question on the basis not only of qualifications but of tests also.

18. On these grounds it must be concluded that the decision to make the appointment in question involves a misuse of powers and must therefore be annulled.

19. Under the terms of Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs.

20. The defendant has failed in his submissions.

21. The defendant must therefore be ordered to pay the costs of the action.

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

1 Annuls the contested decision;

2 Orders the defendant to pay the costs of the action.