Report for the Hearing delivered in Case 324/85

I — Summary of the facts

1. Yves Bouteiller, a French national, has been in the service of the Commission in the Directorate-General for Competition since 1959. Since 1965 he has been in Grade A 4. From 1968 he was assigned to the Energy Division of the Directorate for Cartels and Monopolies, Dumping and Private Discrimination in the Directorate-General for Competition. As part of the reorganization of the Directorate-General for Competition, Mr Bouteiller was assigned with effect from 1 October 1984 to the Division for Energy (Other than Coal), Chemicals, Agricultural Products and Foodstuffs in the Directorate for Restrictive Practices and Abuse of Dominant Positions II. Since he was the most senior official in that division, he carried out the duties of the head of that division, in accordance with a Note issued by the Director of the Directorate concerned dated 1 October 1984, until the new holder of the post was appointed.

2. The applications for the post in question were examined by the Advisory Committee entrusted by the Commission with giving an opinion on applications for posts in Grades A 2 and A 3 as regards the competence and ability of the candidates.

4. The applicant was informed in a note of 5 February 1985 that his application for the post of Head of Division had not been successful and he learned that Mr Mensching had been appointed to that post.

II — Procedure and conclusions of the parties

1. By an application lodged at the Court Registry on 4 November 1985, the applicant brought the present action.

2. The Commission claims that the Court should :

3. Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court (Third Chamber) decided to open the oral procedure without any preparatory inquiry.

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

1. In his first submission, the applicant daims that the Commission was not, at the time of the contested decision, validly constituted within the meaning of the fourth subparagraph of Article 10 (1) of the Treaty establishing a Single Council and a Single Commission of the European Communities, since at that time it no longer had any French Members, owing to the resignation of Mr Ortoli and Mr Pisani. It was therefore not, as constituted, entided to decide on applications by French officials and to take important decisions, such as that concerning the appointment in question, which were not of an urgent nature. According to the applicant, the Commission acted precipitously in order to appoint a member of the private office of one of the Members of the Commission, in order to prevent the new Commission, which was taking up its duties on 5 January 1985, from having an opportunity of considering that question. In that connection the applicant questions whether the minutes of the Council meetings on 6 December and 11 December 1985 whose production he claims that the Court should order, concerning the Council's decision not to replace the two French Members of the Commission who had resigned, did not provide for restrictions on the Commission's powers.

2. In his second submission, the applicant claims that the Commission, on grounds of nationality, appointed to the post in question a candidate who did not satisfy the requirements laid down in the vacancy notice, in breach of Article 7 (1) of the Staff Regulations of Officials. He claims that Mr Mensching could not, from his previous activities, have acquired the experience necessary, namely knowledge of one or more of the competition sectors concerned as required by the vacancy notice; that is in his view demonstrated by the successive organization plans of the Commission from 1970 to 1984, from which it is clear that Mr Haferkamp, for whom he was working, was concerned only with questions which had nothing to to with competition, such as energy policy and the creation of an internal market through harmonization of laws. Furthermore, while he was assisting the Director-General for Competition, Mr Mensching was concerned in particular with administrative and personnel matters and problems concerning aid. It would appear that he spent only about 2% of his time dealing with individual cases on the application of Articles 85 and 86 of the EEC Treaty in the sectors concerned. In order to verify whether the Commission used its discretion correctly in that regard, it is necessary to ascertain the content of Mr Mensching's periodic reports, whose production the applicant requests. Unlike Mr Mensching, the applicant clearly satisfied the requirements laid down in the vacancy notice, as is shown by his flattering periodic reports and by the fact that he was entrusted with the duties of the head of the division in question. In that regard, the applicant is particularly critical of the fact that the note of 1 October 1984 entrusting him with those duties was not submitted to the Commission when it decided on the contested appointment.

3. In his third submission, the applicant claims that the Commission did not itself consider the comparative merits of the candidates, in breach of Article 45 of the Staff Regulations of Officials. In his view the Commission based itself solely on the examination of the applications by the Directorate-General for Personnel and Administration and on the opinion of the Advisory Committee on appointments to Grades A 2 and A 3, a committee whose functioning is contrary to Article 45 of the Staff Regulations. Furthermore, the applications were considered on an erroneous basis in so far as his file did not state that he had been entrusted with the duties in question and that he was therefore the only candidate who had already performed those duties. Lastly, on 19 December 1985 the Commission did not yet have at its disposal the periodic report for 1983 to 1985.

4. In his fourth submission, the applicant claims that the Commission misused its powers by seeking to give preference to someone who had worked for a Member of the Commission rather than a career official. Such practices on the part of the Commission give rise to widespread ill-feeling amongst the staff. In this case, the fact that there was a misuse of powers is established by a collection of presumptions and circumstances. In that regard, the applicant refers in particular to the exceptional haste with which the Commission acted, in the absence of any French Members, when the new Commission was to take up its duties on 5 January 1985. The promotion of a person working in the priyate office of a Member of the Commission is in itself suspect; it was part of a package deal intended to reward various assistants of Members of the Commission. At the same meeting on 19 December 1984 the Commission also adopted a decision to appoint another official which it subsequently had to revoke because it had been adopted erroneously. The predetermined candidate who was assigned to the post did not satisfy the requirement laid down.

1 Language of the Case: French.