JUDGMENT OF 21. 4. 1983 — CASE 282/81 RAGUSA v COMMISSION

In Case 282/81,

THE COURT (Third Chamber) composed of: U. Everling, President of Chamber, G. Bosco and Y. Galmot, Judges, Advocate General: Sir Gordon Slynn Registrar: J. A. Pompe, Deputy Registrar

gives the following

JUDGMENT

Facts and Issues

I — Summary of the facts

II — Conclusions of the parties and written procedure

III — Submissions and arguments of the parties during the written procedure

1. Failure to follow the correct procedure

2. Choice of a candidate made in advance

3. Disregard of selection criteria

IV — Answers to questions put by the Court

V — Oral procedure

Decision

Costs

I —. Summary of the facts

1. In May 1980, the post of Head of Division for the Super Sara project in the Projects Directorate of the Ispra branch of the Joint Research Centre was declared vacant by Vacancy Notice No COM/R/522/80. The duties of the post were to include drawing up plans for the execution of the programme, allocation of the necessary resources, management of research contracts, monitoring the technical and financial progress of the research, collecting and checking progress reports and final reports, drafting summaries and proposals, taking charge of relations with other bodies relating to the objective of the programme in question, organizing meetings and the work of committees and groups of experts representing Member States, non-member countries and international organizations and organizing the dissemination and exchange of information. Candidates were required to have qualifications of university level or equivalent practical experience, extensive knowledge in the field of reactor safety, a good general scientific training, preferably multi-disciplinary, good knowledge of the rules of administrative procedure and the ability to direct a major programme and deal with both technical and financial aspects.

2. For the appointment of an official in Grade A 3 at the Ispra establishment, the powers conferred on the appointing authority by the Staff Regulations of Officials are exercised by the Director General of the Joint Research Centre.

3. On 11 June 1980, the applicant was invited to meet the Deputy Director General of the Joint Research Centre, who was also the director of the Ispra establishment, to discuss his application.

4. On 21 November 1980 the applicant made a complaint, pursuant to Article 90 (2) of the Staff Regulations of Officials, against the appointment of Mr Randies, stating that the appointment was vitiated by illegality because the decision had been taken in advance, that that had been done by reason of the nationality of the candidate, and that, furthermore, the recruiting committee's procedure had not been followed.

5. During 1981, the applicant was entrusted with important coordination duties for the accomplishment of the Super Sara project. He drafted several studies on the reliability of the project and on the problems which it raised. In the summer of 1981, an internal task force was established in charge of an official with the rank of director in order to give priority to the Super Sara project and to accelerate its completion as far as possible. Important duties within that administrative unit were entrusted to the applicant.

II —. Conclusions of the parties and written procedure

1. By an application lodged at the Court Registry on 28 October 1981 the applicant brought an action against the Commission. The applicant claims that the Court should :

2. The written procedure followed the normal course.

III —. Submissions and arguments of the parties during the written procedure

1. Failure to follow the correct procedure

(a). The applicant states that the appointment procedure in this case was carried out contrary to the outline procedure laid down for that purpose in the Director General's memorandum of 23 October 1979.

(b). The Commission believes that such a procedure, which is not laid down by the Staff Regulations, can only be regarded as an internal measure which is not in the nature of a strict rule and the failure to abide by which cannot be regarded as the breach of essential procedural requirements as long as there has been no failure to observe the guarantees contained in the Staff Regulations.

2. Choice of a candidate made in advance

(a). According to the applicant, it appears from all the circumstances that the decision to appoint Mr Randies had been taken in advance for political and nationality reasons, and that the only purpose of the selection procedure was to approve that choice.

(b). The Commission denies that the decision to appoint Mr Randies was taken in advance. Any statements made by the Deputy Director General during a private meeting, if they were in fact made, at least in such categorical terms, could only represent an expression of the striclty personal point of view of the person making them. The letter of 12 June 1980 had no binding effect upon the appointing authority. Furthermore, the suggestion of the Deputy Director General that the internal procedure should not be observed was not adopted by the appointing authority.

3. Disregard of selection criteria

(a). According to the applicant the appointing authority placed too much emphasis on the criterion of geographical or national distribution and disregarded the merits and qualifications of the applicant as compared with those of Mr Randies.

(b). The Commission first of all denies that the criterion of geographical distribution played a decisive or important role in this case. It was quite normal for the Deputy Director General, giving his personal opinion in his letter of 12 June 1980, to express his views on all matters concerning both the merits of the various candidates and the requirements and circumstances of the department concerned in general, including its geographical balance.

IV —. Answers to questions put by the Court

V —. Oral procedure

1. By an application lodged at the Court Registry on 28 October 1981, Salvatore Ragusa, an official of the Commission of the European Communities at the Ispra branch of the Joint Research Centre, brought an action seeking the annulment of the appointment of Jack Randies to the newly created post of Head of Division of the Super Sara project.

2. The post in question, which was in Grade A 3, was advertised in Vacancy Notice No COM/R/522/80. Four officials from Ispra and one official from another branch applied for the post. Among the candidates from Ispra were the applicant, of Italian nationality, and Mr Randies, of British nationality.

3. For recruitment procedures within the competence of the local branches amongst the various places of employment of the Joint Research Centre the Director General of the Centre, as the appointing authority, had drawn up a scheme after a meeting with the staff representatives. In a memorandum of 23 October 1979 to the directors of the various branches he stated that under that scheme decisions of the appointing authority were to be taken after consultation with a local recruiting committee. According to that memorandum, at each establishment the committee was to be composed of

4. On 11 and 12 June 1980 the director of the Ispra establishment held interviews with the four candidates from Ispra. In a letter of 12 June 1980 he informed the Director General of the Joint Research Centre that he had not felt obliged to follow the procedure laid down by the memorandum of 23 October 1979. He said that having thus given the candidates an opportunity to give their views unreservedly, having weighed up the technical and political circumstances as a whole and having assessed the candidates on both the technical level (ability and experience) and that of character (personality) he had decided in favour of Mr Randies who he suggested should be appointed to the post in question. Having subsequently learned of the existence of a fifth application, from an external candidate, he also invited that candidate for an interview on 4 July 1980.

5. Following action by the Staff Committee of the Ispra branch, the Director General of the Joint Research Centre reminded the director at Ispra of the need to convene a meeting of the recruiting committee, as provided in his memorandum of 23 October 1979. A recruiting committee was therefore constituted and, having examined the files of the five candidates and taking account of the special requirements of the post in the vacancy notice, decided that Mr Randies and two other candidates (not including the applicant) must be regarded as the most suitable for the post, with a preference for Mr Randies because of his more specific knowledge in the field concerned.

6. The opinion of the recruiting committee with the personal files and applications of each of the candidates was sent to the Director General of the Joint Research Centre who, in a memorandum dated 22 August 1980, appointed Mr Randies to the post in question.

7. The applicant's complaint against that decision pursuant to Article 90 (2) of the Staff Regulations was rejected and he then brought this action.

8. In support of his application he relies on several submissions which are directed on the one hand at the lawfulness of the choice made by the appointing authority and, on the other hand, at the procedure leading to the disputed appointment.

9. Since the case involves a decision to promote an official it must first be emphasized that, in assessing the interests of the service and the qualities to be taken into consideration in the context of the decision referred to in Article 45 of the Staff Regulations, the appointing authority possesses a wide discretion and that, in that connection, the Court must restrict itself to consideration of the question whether, regard being had to the various considerations which have influenced the administration in making its assessment, the latter has remained within reasonable limits and has not used its power in a manifestly incorrect way.

10. In disputing the choice made by the Director General of the Joint Research Centre, the applicant first claims that the decision to appoint Mr Randies had already been taken in advance.

11. On that point it may be observed that, if the director of the Ispra establishment had formed a view before referring the matter to the recruiting committee and before interviewing the fifth candidate of whom he was not aware at that stage, those facts could not affect the validity of the decision taken by the Director General of the Joint Research Centre, who is the appointing authority. He was in no way bound by the views of the director of the establishment. There is nothing in the file to suggest that he did not take his decision in the light of all relevant factors and after a consideration of the comparative merits of the various candidates as provided by Article 45 of the Staff Regulations.

12. The applicant further claims that his abilities and his merits and qualifications are superior to those of Mr Randies as is demonstrated moreover by the fact that subsequently the applicant was called upon to remedy certain problems and inadequacies which appeared in the framework of the project concerned. Mr Randies was preferred to him for political reasons, because of his nationality.

13. In this respect it should be recalled that the Court cannot substitute its assessment of the merits and qualifications of the candidates for that of the appointing authority. Nothing in the file suggests that in assessing the merits and qualifications of the applicant and of the candidate appointed, the Director General of the Joint Research Centre committed a manifest error. Moreover, events subsequent to the disputed appointment cannot be invoked in support of such an allegation.

14. According to the first paragraph of Article 27 of the Staff Regulations, the appointing authority must ensure that recruitment is carried out on as wide a geographical basis as possible amongst nationals of the Member States. However, that objective must be secondary to the requirements of the interests of the service and to consideration of the ability, efficiency and integrity of officials, which are also referred to in that provision. Only where the merits and qualifications of the various candidates are equal may the appointing authority take into consideration the nationality of a candidate as one factor amongst others in its choice. In this case, however, there is nothing to suggest that the Director General of the Joint Research Centre disregarded those principles and gave too much weight to the criterion of the nationality of the candidates.

15. It follows from the foregoing that the submissions relating to the legality of the choice made by the Director General of the Joint Research Centre are unfounded.

16. The applicant further claims that the promotion procedure did not follow the outline procedure laid down for that purpose by the memorandum of the Director General of 23 October 1979.

17. According to the Commission such a procedure, which is not laid down by the Staff Regulations, does not have any legal validity and failure to observe it cannot therefore be regarded as an infringement of an essential procedural requirement.

18. In that respect it should be observed that when, by a decision of an internal nature, the appointing authority voluntarily institutes a compulsory consultative procedure which is not prescribed by the Staff Regulations, it is obliged to abide by such a procedure, which cannot be regarded as lacking any legal validity. However, even though the director of the establishment at Ispra stated in his letter of 12 July 1980 that he did not wish to follow the procedure, the Director General, for his part, expressly insisted on the need to follow it and took his decision after receiving the opinion of the recruiting committee.

19. As to the course of the procedure in this case, the applicant claims that the recruiting committee was not constituted, by analogy with Article 3 of Annex III to the Staff Regulations, of members who were all of a grade equal or superior to that of the post to be filled and that the committee did not subject the candidates to an interview. The applicant further claims that the report of the recruiting committee was not signed by its fourth member, Mr Ardente, and that, contrary to the memorandum of the Director General of the Joint Research Centre of 23 October 1979, the committee was not properly constituted.

20. On this subject it should be pointed out that Article 3 of Annex III to the Staff Regulations, on selection boards, does not apply to a recruiting committee not provided for by the Staff Regulations, whose purely consultative functions are not comparable to those of a selection board for a competition. In view of the fact that the provisions establishing such a recruiting committee do not lay down special requirements for its constitution, the fact that its members did not at least belong to the grade of the post concerned cannot constitute a procedural defect.

21. Since it was not compulsory under the provisions of the memorandum of 23 October 1979 for the candidates to be interviewed, it was for the recruiting committee to assess the need for such an interview, the absence of which cannot therefore constitute a procedural defect either.

22. It is true that a member of the recruiting committee did not sign the committee's report. Regrettable as such an irregularity may be, it does not, however, constitute, in itself, a substantial procedural defect since it is common ground that that member did in fact take part in the deliberations of the committee.

23. The remaining question to be considered is therefore whether the composition of the recruiting committee was in accordance with the memorandum of the Director General of the Joint Research Centre of 23 October 1979, which provided that the committee should be composed, in addition to representatives of the department concerned in which the vacancy had arisen and of the administration, of one independent member (that is, not from the department concerned) and of one member appointed by the local Staff Committee.

24. In this case it appears both from the report of the recruiting committee and from a statement by Mr Ooms and Mr Ardente, submitted to the Court by the Commission after the hearing, that those two members sat on the committee as staff representatives. However, it has not been disputed that Mr Ardente was also qualified to be the independent member of the committee and that consequently a person fulfilling the conditions laid down by the memorandum of 23 October 1979 was present.

25. Regard being had to the purely consultative nature of that committee, the fact that its composition was stated wrongly in the report to the appointing authority does not, in itself, constitute a substantial procedural defect and is not of such a nature as to invalidate the disputed decision of the Director General of the Joint Research Centre.

26. The subsequent statement of Mr Ardente, according to which, in his capacity as a representative of the staff, he confined himself to ensuring that the relevant rules of the Staff Regulations were observed, is not, supposing it to be correct, of such a nature as to vitiate the legality of the opinion given by the recruiting committee. The procedure established by the memorandum of 23 October 1979 does not limit the right either of the staff representative or of any other member of the committee to assess freely all the factors to be taken into consideration in clarifying the choice of the appointing authority. Mr Ardente's error in voluntarily abstaining from expressing his opinion on some of those factors cannot therefore be attributed to the Commission.

27. For those reasons the application must be dismissed.

28. Under Article 69 (2) of the Rules of Procedure the unsuccessful party is to be ordered to pay the costs if they have been asked for in the successful party's pleading. However, pursuant to the second subparagraph of paragraph (3) of that article, the Court may order even a successful party to pay costs which the Court considers that party to have unreasonably or vexatiously caused the opposite party to incur.

29. It follows from the matters set out above relating to the procedure of the recruiting committee that it was vitiated by a number of unfortunate irregularities and ambiguities which, even though they do not constitute sufficient reason for annulling the disputed decision of the Director General of the Joint Research Centre, were of such a nature as to throw serious doubt on that decision and might reasonably induce the applicant to bring this action.

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

1 Dismisses the application;

2 Orders the Commission to pay the costs.