JUDGMENT OF 14. 7. 1983 — CASE 9/82 ØHRGAARD AND DELVAUX v COMMISSION

In Case 9/82

THE COURT (Second Chamber) composed of: P. Pescatore, President of Chamber, O. Due and K. Bahlmann, Judges, Advocate General: P. VerLoren van Themaat Registrar: H. A. Rühl, Principal Administrator

gives the following

JUDGMENT

Facts and Issues

I — Facts and written procedure

II — Conclusions of the parties

III — Submissions and arguments of the parties

IV — Replies given by the Commission to the written questions put to it by the Court

V — Oral procedure

Decision

The first submission

The second submission

Costs

I —. Facts and written procedure

(a). Both of the applicants in these proceedings had obtained a university degree before passing the open competition for the Community and also had long experience. They were both recruited in 1974, Øhrgaard to Grade L/A 7 and Delvaux to Grade L/A 8, and were promoted to Grade L/A 6 on 1 January 1979. In the intervening period they were granted leave on personal grounds for erne year and seven months which they used to continue their studies in i;he interests of the service.

(b). Tilly Bye Rasmussen holds a Højere Handelseksamen [Secondary School Certificate in Commercial Studies] and a diploma as a trilingual commercial correspondent. From 1966 to 1973 she worked as foreign languages correspondent, multilingual secretary and taught French at evening classes. During the same period she obtained an erhvervssproglige afgangseksamen [Final Diploma in Language and Business Studies] in 1971. She also worked as a freelance translator for the Commission and the Parliament and followed a training course with the Commission's joint interpretation and conference division. She was recruited as an assistant translator in Grade L/A 7, step 1 in 1974 and was promoted to Grade L/A 6 on 1 February 1978 and to Grade L/A 5 on 1 March 1981.

(c). Anker Rasmussen holds a handelsvidenskabelig afgangseksamen (HA) [Final Diploma in Business Studies], a Diploma in French commercial correspondence from the handelshøjskole [College of Commerce], both obtained in 1973, and the erhvervsøkonomiske kandidatseksamen [Higher Diploma in Economics] awarded by the same college in 1979. He was recruited as an assistant translator in Grade L/A7, step 1, in 1974 and promoted to Grade L/A6 on 1 June 1978 and to Grade L/A 5 on 1 March 1981.

1. Is the requirement laid down in the second subparagraph of Article 5 (1) of the Staff Regulations of Officials, namely university education or equivalent professional experience, interpreted or applied any differently in the case of Category A officials and in the case of officials in the Language Service?

2. How does the Commission combine in practice the first two qualifications mentioned in the vacancy notice, particularly where a candidate's qualifications are based on professional experience rather than on a university degree?

II —. Conclusions of the parties

(1). Annul the rejection, notified by the defendant in the letter of 3 April 1981, of the applicants' candidatures for the post of principal translator (COM/1134-1140/80);

(2). Order the defendant to appoint the applicants to the post of principal translator, with seniority calculated from 1 March 1981, either by the permanent creation of two new posts of principal translator or by annulling the appointment of Tilly Bye Rasmussen and Anker Rasmussen and appointing the applicants to those posts;

(3). Order the defendant to pay the costs.

III —. Submissions and arguments of the parties

IV —. Replies given by the Commission to the written questions put to it by the Court

V —. Oral procedure

1. By application lodged at the Court Registry on 8 January 1982, Lene Øhrgaard and Jean-Louis Delvaux, both officials in Grade L/A 6 in the Danish translation division of the Commission of the European Communities, brought an action, first, for the annulment of the Commission's decision, notified by letter dated 3 April 1981, rejecting their candidatures for posts of principal translator in Grade L/A 5 submitted pursuant to Vacancy Notice COM/1134-1140/80 and, secondly, for an order compelling the Commission to appoint them to such posts either by means of the creation of two new posts of principal translator or of the annulment of the appointment of two officials who were appointed and whose qualifications they challenge.

2. In the abovementioned Vacancy Notice COM/1134-1140/80 the qualifications required included the following:

3. It is not disputed that the applicants fulfilled the conditions for promotion to Grade L/A 5. However they were not selected and on 1 March 1981 the Commission appointed the two officials whose appointments have been contested.

4. The applicants submitted complaints to the appointing authority under Article 90 of the Staff Regulations and subsequently brought this action which was originally based on two principal submissions. The first is that the two officials promoted by the Commission do not fulfill all the conditions set out in the vacancy notice and that by appointing them the Commission was guilty of a manifest error. The second is that the posts in question should have been assigned to the applicants, primarily on the ground that they possess better qualifications.

5. In their reply the applicants further claim that the Commission has misused its powers as is shown by new information produced by the Commission in its defence.

6. The Commission maintains that the latter submission should be rejected as inadmissible under Article 42 (2) of the Rules of Procedure. However, before examining the Commission's objection that that third submission was raised at too late a stage, the following observations should be made on the first two submissions.

7. The applicants base their first submission essentially on the fact that in their view, since professional experience can be counted only after the requisite diploma is obtained, the two main conditions in the vacancy notice, namely a university degree and professional experience, are cumulative. They submit that in this instance neither of the two persons promoted fulfilled the two conditions. One did not have a university degree and therefore could not have any professional experience either while the other obtained his university degree only in 1979 and thus had only two years' seniority when he was promoted, which cannot constitute long experience.

8. As the Commission has rightly observed, the vacancy notice, by using the word or, clearly indicates that the conditions are alternative. It is thus necessary, but it is also enough, to possess either a university degree or equivalent professional experience and this also follows from Article 5 (1) and (2) of the Staff Regulations according to which, inter alia, the duties of staff in the category L/A require university education or equivalent professional experience.

9. It is sufficient to note in this respect that the two officials in question passed a competition held in 1974 to enter the service of the Communities and that the appointing authority had at that time considered that they possessed equivalent professional experience; both officials therefore undeniably satisfy the first condition in the vacancy notice.

10. In those circumstances, the two officials, who have been working as translators for the Commission since 1974, undeniably possess long experience of translation and thus also fulfil the second requirement in the vacancy notice.

11. The first submission must therefore be rejected.

12. The applicants submit that even if it is accepted that the two officials whose appointment they dispute had the qualifications required in the vacancy notice, the appointing authority should nevertheless have appointed the applicants not only because they satisfy all the conditions required but also because the Commission committed a manifest error in not appointing them since, particularly in view of their university education, they were better qualified than the two persons who were promoted.

13. The Commission rejects the applicants' arguments which, it claims, are in contradiction with Article 45 of the Staff Regulations under which promotion is to be effected after consideration of the comparative merits of the candidates and not merely on the basis of university qualifications.

14. Since what is at issue is a decision on promotion, it should first be pointed out that the appointing authority has a wide discretion in evaluating the interests of the service and the merits to be taken into consideration in the context of a decision under Article 45 of the Staff Regulations and that in regard to those matters the Court must confine itself to the question whether the administration kept within proper bounds and did not exercise its power in a manifestly erroneous manner.

15. In this case there is nothing in the documents before the Court to show that the appointing authority failed to make a proper assessment of the qualifications and merits of the various candidates, including those of the applicants.

16. Regarding in particular the question of the diplomas referred to by the applicants, it should be borne in mind that as the Court stated in its judgment of 17 March 1983 (Case 280/81 Hoffmann v Commission [1983] ECR 889) in the case of promotion other factors must be taken into account when the merits of officials eligible for promotion are compared, in particular the general standard of the work which they have performed in carrying out their duties.

17. Consequently the applicants cannot complain that, in the exercise of its discretion, the appointing authority did not take into account solely the candidates' diplomas and chose to promote two persons whose diplomas were of a lower level than those of the applicants.

18. The applicants have further submitted that the leave on personal grounds granted to them for the period from 1 January 1976 to 1 July 1977 in fact prevented them from being promoted by interrupting their seniority although the leave was granted to them in the interests of the service.

19. In this connection it should be observed, on the one hand, that seniority is merely one of a number of criteria of assessment and can never take precedence over the merits of candidates and, on the other hand, that Article 40 (3) of the Staff Regulations states that during leave on personal grounds an official shall not be entitled to advancement to a higher step or promotion in grade. Accordingly the appointing authority cannot be criticized for having regarded the applicants' seniority as interrupted during the period of their leave. Furthermore there is nothing in the documents before the Court to show that seniority was a decisive factor, in the appointments at issue.

20. Since the applicants have produced no other evidence that the appointing authority exceeded its discretion by giving its preference to other candidates in the matter of promotion, the second submission must also be rejected.

21. It follows that the submission of misuse of powers is unfounded and must also be rejected.

22. Consequently the application for annulment of the defendant's decision must be dismissed. As regards the request that the Court should order the Commission to appoint the two applicants, it is sufficient to state that in any event the Court has no jurisdiction to entertain such a request.

23. Under Article 69 (2) of the Rules of Procedure the unsuccessful party is to be ordered to pay the costs. However, under Article 70 of the Rules of Procedure, the institutions are to bear their own costs incurred in proceedings brought by servants of the Communities.

On those grounds, THE COURT (Second Chamber) hereby

1 Dismisses the application;

2 Orders the parties to bear their own costs.