Opinion of Mr Advocate General Reischl

Mr President,

Members of the Court,

Having been in business as a selfemployed architect from 1957 until I960, the applicant in the case with which we are concerned today entered the service of the Commission of the European Atomic Energy Community in August 1960 and received a remuneration corresponding to a classification in Grade A 7 Step 2. He was first assigned to the Joint Research Centre at Ispra, where he was head of an administrative unit until 1970. In 1963 he was appointed an official in Grade A 6 Step 1 and was later transferred, with effect from 1 October 1970, to the Directorate-General for Development Aid in the single Commission of the three Communities, which had meanwhile been created. There he was first employed in the Technical Operations Division of the Directorate for the European Development Fund. With effect from 9 March 1971, he was assigned to Division III (Construction, Industry, Agriculture, General Infrastructure) and, after being promoted to Grade A4 Step 3 in 1974, was transferred to Division V (Urban works and Social Infrastructure) in Directorate C, where he is head of the section for West Africa, Central Africa, the Pacific and Maghreb and is required to replace the head of division in his absence.

As early as 1975 he took part in Internal Competition No COM/716/75 which was held in order to fill the post of Head of Division C 5. He was not successful but was placed on the list of suitable candidates.

In May 1979, this A 3 post in the Projects Directorate was once again the subject of a vacancy notice (COM/161/79). For a description of the duties attaching to the post and the abilities required, I refer for the time being to Annex I to the defence. It will be necessary to return to this later in another connection. A number of other persons applied for the vacant post, as well as the applicant. In a memorandum from the head of the Directorate-General for development dated 1 June 1979 it was stated that only the applicant and a Mr L. fulfilled the required conditions. In making the appointment, however, Mr L. was to be preferred on account of his experience.

This other candidate was assigned to the European Association for Cooperation from September 1973 to 1976 as a controller of the European Development Fund in central Africa. With effect from 1 June 1976, he was engaged by the Commission as a temporary servant in Grade A 3 Step 2 for two years and appointed Head of the West Africa Division in Directorate B of Directorate-General VIII. After taking part in an internal competition, he was appointed as a probationary official in Grade A 3 Step 3 by a decision of 23 January 1979 and was further assigned to the abovementioned post with effect from 1 January 1979.

That candidate was then also the successful one in the context of Notice of Competition No COM/161/79. Following the Commission's meeting of 13 June 1979, he was appointed Head of Division C 5 in Urban Works and Social Infrastructure, with effect from 1 July 1979, by decision of the President of the Commission of 13 June 1979. He was then established with effect from 1 October 1979 by decision of 11 October 1979.

The applicant was informed that his application was unsuccessful on 5 July 1979. He responded to this by submitting a complaint to the President of the Commission on 10 September 1979 and claimed that the decision appointing Mr L. as Head of Division C 5 should be annulled. That complaint was expressly rejected in a decision of 27 March 1980.

The applicant next submitted an application to the Court, claiming that the decision of 13 June 1979 and the rejection on 27 March 1980 of his complaint should be annulled.

My opinion on those requests is as follows.

1. The applicant founds his application first on the submission that, in filling the vacant post, only those factors which arose out of the vacancy notice and were connected with the post to be filled ought to have been taken into account. In this case, however, the decisive reason for the appointment of Mr L. was an extraneous consideration, as it were, that is to say, requirements which had arisen as a result of the reorganization of several divisions of the Directorate-General for Development. In this regard the applicant refers in particular to memoranda of February and March 1979 (Annexes 6 and 7 to the reply), which show how the detailed list of posts for the Directorate-General for Development was altered at that time. As evidence of the validity of his criticism, he further refers to a letter which was sent in June 1979 by a member of the Commission to the Belgian Foreign Minister, on the latter's intervention on behalf of the applicant, and in which it was stated that Mr L.s transfer met wider requirements as to the reorganization of several divisions of this directorate-general. In a supplementary pleading, he points out that the reorganization of Directorate B of the Directorate-General for Development was decided upon by a decision of 2 July 1980, which entered into force on 1 August 1980, and that Divisions B 2 and B 3 as well as B 1, which was previously headed by Mr L., were thereby abolished because they have scarcely any management and coordinating duties.

2. In connection with the second submission, to which I now turn, the applicant points out that according to Vacancy Notice No COM/161/79 one of the conditions for appointment to the vacant post was thorough knowledge and experience of economic and technical problems in the field of social infrastructures and urban works in the developing countries. A very exacting condition for the admission of applications was thereby laid down. According to the applicant, that may be inferred from the fact that in an earlier notice relating to the same post (COM/716/75) the adjective thorough did not appear, apparently because at that time the duties attaching to the post were narrower in scope and less important. The Commission must, however, be criticized for wrongly assuming, on the basis of the personal file of Mr L. and his previous professional experience, that he fulfilled the requirements stated in the vacancy notice.

3. Finally, in his third submission the applicant alleges that the process of filling the vacant post, in relation to which, according to the documents placed before the Court by the Commission, the only question was whether the applicant or Mr L. ought to be appointed, was in any event carried out incorrectly because in that comparison the applicant's periodic report under Article 43 of the Staff Regulations for the years 1975 to 1977, and thus the last report on the applicant in existence at that time, was missing. In that regard the applicant says that it must not only be borne in mind that, according to case-law, such reports provide the essential grounds for all decisions concerning an official's career. There is no doubt either that consideration of the said report might easily have led to a different result. In fact it not only contains very favourable marks which, on account of an intervening change in criteria, represent an improvement in relation to earlier reports, but in particular it also relates to a period when the applicant's duties were extended and his responsibilities increased, because he was entrusted with the duty of standing in for the head of division.

4. I can therefore only propose that the application should be dismissed as unfounded and that the costs in the proceedings should be determined in accordance with Article 70 of the Rules of Procedure.

1 Translated from the German.