JUDGMENT OF 1. 6. 1978 — CASE 110/77 MULCAHY v COMMISSION

In Case 110/77

THE COURT (First Chamber) composed of: G. Bosco, President of Chamber, J. Mertens de Wilmars and A. O'Keeffe, Judges, Advocate General: H. Mayras Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts and Issues

I — Facts and written procedure

II — Conclusions of the parties

III — Submissions and arguments of the parties

Decision

Costs

I —. Facts and written procedure

II —. Conclusions of the parties

1. Annul the decision of the defendant taken on or about 22 December 1976 appointing Mr L to the post of Head of Division Technical Aspects of Transport and Traffic (VII C 3) of the Directorate General for Transport;

2. Direct a reconsideration of the appointment to the said post;

3. Grant such further relief as may seem proper to the Court;

4. Award the applicant the whole of his costs.

1. Dismiss the application as unfounded;

2. Order the applicant to pay the costs.

III —. Submissions and arguments of the parties

1. The present application, which was lodged on 6 September 1977, is principally for the annulment of the decision of the Commission of 20 December 1976 appointing Mr L to the post of Head of the Technical Aspects of Transport and Traffic Division of the Directorate General for Transport (DG VII) and in an alternative for the grant to the applicant of such further relief as may seem proper to the Court.

2. The post in question was advertised in Vacancy Notice COM/643/1976 of 4 October 1976, which contained under the heading Nature of duties: to head the administrative unit (and) … to provide the Director General with technical advice ….

3. The qualifications required were as follows:

4. The 14 candidates were interviewed by the Director General of DG VII, the Deputy Director General, and the Director of Directorate C in order to evaluate them as regards both their general suitability for the post and their specialized knowledge as engineers.

5. As none of the officials conducting the interview was a professional engineer a request was made to a group of three engineers of other departments to divide the applications into three categories: those from engineers which were suitable for further consideration, those from engineers which should not be further considered and those from candidates who were not qualified engineers and which it therefore did not seem possible to take into consideration.

6. This group of engineers placed three candidates (including the applicant) in the first category but noted that there was a considerable divergence between the description of the post of Head of Division C 3 and the candidates who have been placed in the first category.

7. It was stated in a memorandum drawn up by the Director General on 6 December 1976 that seven candidates (including the applicant) possessed some of the necessary attributes for the post whilst the other candidates (including Mr L) were judged to be less well qualified.

8. In the Director General's memorandum it was stated that no candidate could be regarded as particularly well qualified and it was suggested that the post be re-advertised and that an internal and, if necessary, an external competition should be held.

9. At its meeting on 20 December 1976 the Commission, after consideration of the files of the 14 candidates and the memorandum by the Director General, decided to appoint Mr L to the vacant post and to promote him to Grade A 3 with effect from 1 January 1977.

10. The candidate appointed, who holds a degree in Economics and Commerce from the University of Genoa, commenced service in 1962 in DG VII where he held various posts in the divisions dealing with General Affairs, with Infrastructure Charging with Air and Sea Transport and, from July 1973 to July 1975, with Technical Aspects.

11. It emerges from the Staff Report for the period from 1 July 1973 to 30 June 1975 that Mr L's training and aptitudes were in perfect conformity with the work assigned to him and that he very rapidly took on the new duties which had been assigned to him in spite of their very technical nature and that he had successfully deputized for his head of division who was often absent for reasons of health.

12. On 10 February 1977 the applicant, who is an official in Division C 2 of DG VII and holds a degree in Civil Engineering from the National University of Ireland, submitted a complaint under Article 90 (2) of the Staff Regulations following the appointment of Mr L.

13. The failure of the Commission to reply to this complaint constituted, as from 10 June 1977, an implied decision rejecting it.

14. In support of his application the applicant maintains that the Commission has infringed the express terms of the vacancy notice in dispute and consequently Article 7 (1) and Article 27 of the Staff Regulations of Officials, and in addition that it has contravened the principle legem patere quam ipse fecisti.

15. Since the defendant has specified the qualifications required for the post in question it is bound to appoint a person having those qualifications.

16. The Commission considered that the candidate selected had obtained practical experience equivalent to the qualification acquired through university studies and evidenced by an engineering degree.

17. Thus the decisive issue in the present case is what may be regarded as equivalent practical experience.

18. Whilst at first sight it is difficult to understand how a person who has never practised as an engineer can be held to have practical experience equivalent to skills of university level evidenced by a degree in civil, mechanical or electrical engineering it must nevertheless be noted that the post to be filled was not specifically an engineering post but rather that of head of a division at which level points of a technical nature were handled.

19. Mr L first worked a number of years in a large transport undertaking and in 1962 he entered the service of the Commission where he was engaged in a number of sectors of the common transport policy, including some highly technical ones.

20. During a period of two years (July 1973 to June 1975), which he spent in the Technical Aspects of Transport and Traffic Division he performed to the complete satisfaction of the director, the duties relating to a post which required technical knowledge to the level of that required for an engineering degree and he frequently deputized for his head of division.

21. The defendant's appraisal that Mr L had practical experience, with regard to the post in question, equivalent to the skills evidenced by an engineering degree is thus well founded.

22. Accordingly the first submission cannot be upheld.

23. The applicant claims furthermore that Article 45 of the Staff Regulations has been infringend and that there has been misuse of powers in that there is an appreciable difference between the merits of the applicant and those of the person appointed.

24. Consideration of the comparative merits of officials eligible for promotion, the method prescribed by the said Article 45, was duly effected at the meeting of the Commission on 20 December 1976 on the basis of the candidates' files and of the memorandum by the Director General after the examination undertaken by the officials with engineering qualifications.

25. This submission is thus unfounded.

26. Thirdly the applicant maintains that the candidate appointed did not have two years' actual seniority in his grade at the time when the vacancy notice was published.

27. Since the person appointed only took up his duties in Grade A 4 on 20 November 1974 Article 3 and Article 45 (2) of the Staff Regulations of Officials have, he submits, been infringed.

28. However, at the date when Mr L was promoted, 20 December 1976, the only relevant date with regard to Article 45 (2), the person concerned had in fact two years' seniority in Grade A 4.

29. The third submission must also be dismissed.

30. Since the alternative application is based on the same submissions as the principal application the foregoing considerations show that both must be dismissed as unfounded.

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

32. Nevertheless, under Article 70 . of the Rules of Procedure, in proceedings brought against them by servants of the Communities, the institutions shall bear their own costs.

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

1 Dismisses the application;

2 Orders the parties to bear their own costs.