Opinion of Mr Advocate General Reischl

Mr President,

Members of the Court,

In 1981 two new posts of director were added to the list of posts of the Council of Ministers. The Council allotted one of the posts to its Directorate General A for the newly created post of Director of the Budget and Staff Regulations.

The staff of the Council were informed of the existence of that post by a notice of 17 June 1981. The conditions for applying and the closing date for applications which appeared in that notice were subsequently altered on 24 June and 6 July 1981.

Before the expiry of the closing date on 22 July 1981 17 Grade A3 officials of the Council, including the applicant in the present proceedings, submitted applications for the vacant post. They were all unsuccessful, as was another candidate who had submitted his application after the closing date. 17 of the candidates were notified of their failure in identical letters of 31 July 1981, which included the following conclusive sentence: en effet, pour l'occupation de ce poste, je suis tenu de prendre en considération non seulement les connaissances et expériences professionnelles requises pour ce poste de direction mais aussi le maintien d'un équlibre géographique approprié [in order to fill this post, I am obliged to take into account not only the knowledge and experience required for this management post but also the need to maintain an appropriate geographical balance]. On the same date a Luxembourg applicant employed by the Council was sent a similarly negative response, in which it was stated:

By a decision of the Secretary General of the Council of 11 September 1981 a Luxembourg national, J. J. Kasel, was appointed to the post advertised. He had applied on 9 July, as the Court heard in the course of the proceedings, and had been a temporary servant in Grade A 3 as assistant Chef de Cabinet of the President of the Commission of the European Communities since 6 January 1981.

On 12 October 1981 12 Grade A3 officials of the Council submitted to the appointing authority essentially identical complaints against that decision; the applicant's complaint contained various special supplements and annexes. The complaints were rejected by decision of 18 December 1981. In addition to an assurance that the complaints had been fully considered, it was stated :

In connection with that last sentence another memorandum was issued by the Secretary General on 15 February 1981 explaining that the sentence was merely a commentary on the decision contained in the first sentence et en conséquence elle ne fait pas partie de cette décision à proprement parler. Vous pouvez donc la considérer comme étant sans objet [And in consequence it cannot strictly be said to form part of that decision. You may therefore disregard it]. In that memorandum it was also stated: pour l'avenir je puis vous assurer,... que pour la période de mon mandat de secrétaire général, je n'ai aucunement l'intention de dévier des procédures qui sont à suivre dans le cas des nominations des fonctionnaires au grade A 2 [As far as the future is concerned, I can assure you... that for the period of my term of office as Secretary General, I in no way intend to depart from the normal procedure for the appointment of officials to posts in Grade A 2].

Thereupon, one of the unsuccessful candidates, a council official, Mr Schloh, brought an action before the Court of Justice on 10 March 1982, claiming that the Court should :

In support of his claim, the applicant states that the vacancy was not brought to the notice of staff in other Community institutions and that no applications for transfer were considered. In his view that constitutes an infringement of Article 29 (1) (c) and the third paragraph of Article 4 of the Staff Regulations. He also claims that Article 29 (2) of the Staff Regulations was infringed, inasmuch as a person from outside the Communities (Personne extérieure aux Communautés), who lacked the special qualifications required, was appointed to the post advertised. Moreove the post was reserved for a national of a specific Member State, which is prohibited under Article 27 of the Staff Regulations. In addition the fact that the post had already been reserved for a specific person before the initiation of the appointment procedure constitutes a misuse of power; finally the decision rejecting his complaint amounts to an infringement of the second paragraph of Article 25 of the Staff Regulations inasmuch as it fails to give sufficient grounds for the rejection.

My opinion on those facts is as follows:

I — First submission

In the first place the Council has raised an objection of inadmissibility. It contends that the provisions relied on by the applicant, Article 29 (1) (c) and the third paragraph of Article 4 of the Staff Regulations, are intended to protect the interests of officials of other institutions. Any failure to comply with those provisions does not therefore adversely affect the applicant. It follows that he has no interest in making the submission as is shown in particular by the fact that even if a new procedure were opened and those conditions were strictly observed, the applicant would certainly not benefit.

According to the decisions of the Court in cases on corresponding facts, that is undoubtedly correct. For example, I would remind the Court of the judgment in Case 37/72 in which it was held that the applicant had no legitimate interest in claiming that a vacancy notice made no provisions for an upper age-limit, on the ground that the important point was whether the annulment of the disputed measure sought by the applicant was likely to benefit him. Further, according to the judgment in Case 29/74 the question is whether an alleged illegality adversely affects the applicant or only other officials. In the judgment in Joined Cases 81 to 88/74 it was emphasized that the applicant must have a recognizable personal interest in the annulment of the contested measure. Finally, according to the judgment in Case 124/75 the relevant question is whether the applicant has been adversely affected by an alleged irregularity and whether, after it has been established that the procedure was illegal, it is recommenced.

I agree with the Council that there should be no deviation from those principles. In particular, the applicant's submission that the provisions on which he relies do not only protect the officials of other institutions but were adopted in the public interest provide no grounds for such a course. In that respect the Council put forward detailed arguments citing case-law and academic writings showing that this is not possible in national law. Equally in Community law it would not seem to be justified to allow officials who bring actions to do so with a view to enforcing compliance with the law generally, that is to say, to insitute proceedings dans l'intérêt de la loi [in the interests of the law] as it were. It is thus unnecessary to decide whether the requirement in Article 29 (1) that applications for transfer from officials in other institutions of the Communities must be considered before the commencement of selection procedures — which may be disregarded only for the filling of posts in Grades A 1 and A 2 — in fact includes the duty to give formal notification of such posts to the staff of other institutions. It is also unnecessary to determine whether the Council in fact complied with that requirement by sending the vacancy notice (83/81) including all amendments thereto, as it stated in its replies to the questions put by the Court of Justice, to the heads of administration in other institutions, which in its view was a sufficient compliance with the requirement of notification.

It is however significant that in fact no complaints or actions by officials in other institutions against the disputed appointment have come to notice. That would surely not have been the case if there had been officials in other institutions who were genuinely interested and who were of the opinion that the Council had committed a serious breach of procedure.

II — Second submission

The applicant objects that the Council appointed a person from outside the Communities to the vacant post. According to the observations in his reply a person from outside the Communities is to be interpreted as meaning that the person appointed was not an official of the Communities and that he lacked the status necessary for the post.

In his complaint, which is expressly referred to in the application, a proposition is advanced in that connection to the effect that, if I have understood it correctly, recourse to Article 29 (2) is not automatically possible even for posts in Grade A 2. On the contrary, it is a condition that there must be special requirements as regards exceptional knowledge, experience and qualifications, so that that provision may in any case be applied only if there are no prospects of filling the post by the normal method.

In the application, then, stress was clearly laid on the fact that the successful candidate lacked the necessary qualifications. On the basis of the consideration that it had not been possible for the Council to accept qualifications to be found amongst the officials in Grade A 3 who were in the service of the Council, the applicant thought he could deduce in the light of the information published by the Council administration on 10 September 1981 relating to the successful candidate that he lacked the special knowledge of law in connection with the Budget and the Staff Regulations on which the disputed appointment apparently depended in the first place according to the description of the nature of the duties in the vacancy notice, and secondly according to the explanation given in the letter informing the Luxembourg candidate from the Council staff of the decision.

1. As regards that line of argument, two observations should immediately be made:

2. In connection with the question of qualifications, which — as was made clear in the oral procedure — is clearly central to this submission, the Council's representative rightly pointed out by way of principle that a discretion is of course vested in the appointing authority as regards the assessment of the individual qualities of candidates. He emphasized, again correctly, that it cannot be the duty of the Court of Justice to review such value judgments or in any way decide between the qualities of various candidates in place of the administration. In such cases the Court of Justice may — as is repeatedly emphasized in the case-law — only establish the existence of manifest irregularities.

3. Under those circumstances it is difficult to consider the applicant's criticism of Mr Kasel's appointment justified; in any case there is no manifest error in the manner in which his qualities were assessed.

4. I am therefore of the opinion that the second submission of the applicant's claim must also fail.

III — Third submission

The third submission, as we know, concerns an alleged infringement of Article 27 of the Staff Regulations, according to which no posts are to be reserved for nationals of any specific Member State.

Thus the applicant referred in his complaint to the judgment in Case 15/63 which emphasized the importance of that principle and stated, in addition, that only where the qualifications of the various candidates are equal can nationality be decisive in the interest of restoring a geographical balance. The applicant then appears to suggest that that consideration — the need to redress the geographical balance — can have been of no significance in the present case, since reference is made to the fact that Luxembourg nationals in other Community institutions (the Commission, the Economic and Social Committee) occupy even high-level posts in sufficient numbers. Moreover the applicant submits that, in any event, this case is not genuinely one in which nationality was a decisive factor by reason of the equality of the candidates' qualifications since it must be accepted that the successful candidate lacked the special knowledge required for the vacant post and therefore that he could not be included in the group of eligible candidates or in the comparison of qualifications which, according to the case-law, is required. In his reply the applicant further pointed out with special emphasis that Article 29 (1) (a) provides that consideration must first be given to the question whether the post may be filled by promotion or transfer within the institution, the purpose being to give a certain priority to candidates who are already in the service of the institution in which the post is available, that is, in the present case, Council officials in Grade A 3. At that stage of the procedure, however, Mr Kasel had not participated at all. It follows, the applicant claims, that nationality could not in this case have been decisive in the sense established by the case-law to which I have referred, but that it must rather be assumed that in that context the nationality of the candidates eligible for promotion was a ground for excluding them which is certainly improper. That conclusion is further confirmed, it is alleged, by the fact that there is absolutely no documentary evidence relating to the consideration of the qualifications of the eligible candidates. Finally the applicant maintains that an indication of the correctness of his view and the justification of his complaint may be seen in the resolution of the Council of September 1980 which was adopted after the departure of the former Luxembourg Secretary General and after the appointment of his Danish successor. That resolution states:

[The Council recognizes that the appointment of the new Secretary General entails a change in the structure and an additional regional imbalance in the regional imbalance in the distribution of posts for senior officials in the General Secretariat which, regard being had to the need to maintain the standard of qualifications, ought, in so far as possible, to be redressed in the immediate future].

The present Secretary General, as a former member of the Council, was aware of that resolution and it is difficult to escape the conclusion, the applicant states, that the measure now in dispute was adopted by him essentially in compliance with that resolution.

1. As far as that submission is concerned, in the first place there can be no doubt that, in connection with the filling of the post in question, it was correct to make efforts to take into account the geographical balance from the point of view of an appropriate participation of Luxembourg nationals in the Council. In that respect the proportion of Luxembourg officials in other institutions of the Community is completely irrelevant. According to the wording and sense of Article 27 of the Staff Regulations, the requirement that officials be recruited on the broadest possible geographical basis from among nationals of Member States of the Communities applies to each Community institution. There was no such balance in the Council after the departure of the Luxembourg Secretary General in October 1980, as the applicant himself acknowledged in his complaint. That was again made clear in the oral procedure by his answers to the relevant questions of the Council's representative.

2. I do not moreover consider that the legality of the appointment which is the subject of this case may be questioned on the ground that nationality may only be relevant — according to the case-law quoted -— in cases in which the qualifications of several candidates are equal and that in any case that precondition was not fulfilled since the qualifications of the successful candidate were not equal to those of the candidates from the staff of the Council.

3. Further, as regards the various steps for filling a post provided for in Article 29 of the Staff Regulations, I do not think that there are grounds for suggesting that Article 29 (1) (a) — consideration of the question whether the post may be filled by promotion — was not complied with. The letters which communicated the rejection of applications from the Council officials expressly refer to the fact that the Secretary General had to take into consideration the knowledge and experience of the candidates. Without any clear indication to the contrary we must therefore accept that such an examination was conducted. In view in particular of the assurance that all the applications which had been received at that date were examined on 15 July 1981 in the presence of the Director General of Administration and the Director of Personnel, that statement cannot be called in question merely on the ground that there is no written record of that examination.

4. Finally in that connection, the applicant's reference to the Council's resolution of September 1980 can, I think, avail him nothing. It states only one fact — that after the departure of the Luxembourg Secretaiy General, nationals of that State were no longer represented in sufficient number in the senior ranks of the Council. And it adds the conclusion that the balance should be redressed, though not unconditionally, but dans la mesure du possible (in so far as possible) and en respectant la qualification (regard being had to the need to maintain the standard of qualifications). That merely expresses what according to Article 27 of the Staff Regulations is, in any case, a binding principle for rilling posts. In any case there is nothing to show that the Council was committing itself to an irregular appointment and it cannot therefore be proved that the Secretaiy General of the Council infringed the Staff Regulations by seeking to give effect at the first available opportunity to the wish expressed in the Council resolution.

5. The applicant's third submission is therefore also incapable of establishing his claim.

IV — Fourth submission

In the fourth submission the applicant claims that the disputed appointment constitutes a misuse of power. He states that the vacant post had been reserved for a specific person before the initiation of the procedure for filling it and that the notice had been drawn up merely for the sake of appearances.

In his complaint the applicant relied principally on the Council meeting of September 1980, to which I luve referred, at which a Dane was appointed successor to the Secretary General of Luxembourg nationality. On that occasion the Luxembourg Member of the Council, seeking compensation, obtained the promise that a Grade A 2 post would be filled by a Luxembourg national. It was therefore made clear t.nat the possibility of appointing a person from outside the Communities and thus not a Council official was to be considered. That fact is said to establish that the Luxembourg Government came to an agreement with the appointing authority of the Council as to the appointment of a specific person. That view is, moreover, supported, it is alleged, by a series of facts which the applicant set out in his complaint. In both the written and the oral procedure the applicant referred to additional points which he claims confirm his theory.

In that connection, it must first be recalled, and here I agree with the Council, that it is possible to speak of a misuse o/power in the filling of a post only when it is clear that an objective has been pursued which has nothing to do with the interest of the service, which in this case is to be understood as the selection of a sufficiently well-qualified candidate, regard being had to the need to maintain the geographical balance. It is clearly not sufficient to base such a claim on speculation or even on establishing a certain probability. It must instead be proved to the Court's satisfaction that the interests of the service have only apparently been pursued.

In the light of all the material submitted to the Court in these proceeding. I cannot accept that the serious allegation made by the applicant is indeed well founded.

1. A whole series of the large number of arguments put before the Court may be distinguished from the outset inasmuch as they cannot be regarded, with the best will in the world, as having evidential value and therefore require no special comments.

2. Other arguments too which were raised by the applicant before and in the course of the proceedings before the Court are not in my view sufficient to compel the view that there has been a misuse of power in the sense alleged by him.

3. The fourth submission too, therefore, fails to provide sufficient basis for allowing the application.

V — Fifth submission

Finally I must consider the allegation that the rejection of the applicant's complaint did not state sufficient grounds for that rejection and that it must, at least on that ground, be annulled. (The application does not refer to the infringement of basic rights which is alleged in the complaint.)

In answer to that I can be comparatively brief.

Article 25 of the Staff Regulations provides that a decision adversely affecting an official must state the grounds on which it is based. Such decisions are, according to the system laid down by the Staff Regulations (cf. Article 90 (2)), decisions against which a complaint is lodged, in the present case therefore the rejection of the applicant's candidature and the appointment of another applicant. On the other hand a decision regarding a complaint, at least when no new arguments are advanced, — as is the case here — is merely a measure confirming the actual decision which gave rise to the complaint. We must therefore conclude that Article 25 does not in principle refer to decisions on complaints. Whether in this respect, that is in relation to the second clause of the second indent of Article 91(3) the basis is provided for a sort of nobile officium is another question which we need not consider here. To take a different view would be to hold that each implied rejection of a complaint which naturally is accompanied by no statement of grounds, may be annulled on that ground alone which would appear unreasonable in the context of the system laid down by the Staff Regulation.

Moreover the Council is certainly right in thinking that it cannot be required to give detailed explanations for the rejection of each argument contained in a complaint. We are concerned essentially only with the grounds for a decision to appoint as the rejections of other applications are merely inevitable consequences thereof. Therefore in the light of the case-law on the duty to state grounds, which is limited in this respect, it is possible to agree with the Council that in the present case, where the decision involved relates to applications for a post in Grade A2, it was sufficient for the purposes of the statement of the essential grounds on which the decision of rejection was based to quote the two principles which were contained in the decision on the complaint.

Therefore the application must also fail in respect of the reference to Article 25 of the Staff Regulations.

VI — The decision on costs

In conclusion I must add a final word on the applicant's request that in the event of the rejection of the application the costs of the proceedings be awarded against the Council.

According to the Rules of Procedure, that possibility may only be considered if it must be accepted that the Council which in my view is successful has unreasonably or vexatiously caused the applicant to incur costs (the second subparagraph of Article 69 (3) of the Rules of Procedure) — if, that is to say, it had caused the application to be brought. I can find no evidence of such a state of affairs, or of the exceptional circumstances within the meaning of the first paragraph of Article 69 (3) of the Rules of Procedure, which would justify a decision to order the parties to bear their own costs in whole or in part. Costs must therefore remain to be decided in accordance with the provision in Article 70 of the Rules of Procedure under which each party must bear its own costs.

VII — In conclusion I propose that the application be dismissed as unfounded and that the costs of the proceedings be decided in accordance with Article 70 of the Rules of Procedure.

1 Translated from the German.

2 Judgment of 15 March 1973 in Case 37/72 Antonio Marcato v Commission of the European Communities [1973] ECR 361.

3 Judgment of 23 January 1975 in Case 29/74 Raphael ile Dappcri European Parliament [1975] ECR 35.

4 Judgment of 29 October 1975 in Jincd Cases 81 to 88/74 Gitiliano Malenco and Others v Commission of the European Communities, [1975] ECR 1247.

5 Judgment of 16 December 1976 in Case 124/75 Letizia Perinciolo v Council of the European Communities, [1976] ECR 1953.

6 Judgment of 4 March 1964 in Case 15/63 Claude Lasalle v European Parliament [1964] ECR 31.