Report for the Hearing delivered in Case 52/86

I — Facts and written procedure

The applicant was first employed by the European Parliament, as a temporary servant in Grade B 4, on 1 September 1973. She was appointed a probationary official in Grade B 1, Step 1, on 31 December 1973. Initially assigned to the Directorate-General for Sessional and General Services, she was transferred to the Directorate-General for Information and Public Relations as from 1 October 1976 and on 17 January 1977 she was posted to the European Parliament's Information Office in London. By a decision of the Secretary-General of 27 October 1981 she was transferred, with effect from 1 October 1981, to post No V/B/1320 in the Directorate-General for Research and Documentation, which has since become the Directorate-General for Research. She is now an official in Grade B 1, Step 7.

By Vacancy Notice No 4615 of 3 June 1985 the European Parliament opened the procedure for filling a post of principal assistant in career bracket B 1 in the Directorate-General for Research and Documentation, Human Rights Department — Post No V/B/1647 —initially by promotion or transfer.

That post had been occupied since 13 October 1984 by Alberto Fumagalli. Mr Fumagalli joined the auxiliary staff of the European Parliament on 6 October 1971 and was appointed an official on 1 May 1973; he was subsequently promoted to Grade B 2. On 13 October 1980 he was seconded in the interests of the service (under Article 37 (1) of the Staff Regulations) to the Group for the Technical Coordination and Defence of Independent Groups and Members, where he acted as Joint Secretary-General of the Group. He remained there until 12 October 1984.

On the termination of his secondment he was reinstated in the General Secretariat of the European Parliament (Article 38 (g) of the Staff Regulations) on 13 October 1984 and was assigned to the abovementioned post No V/B/1647 in the Directorate-General for Research and Doumentation. In the list of posts that post was classified in Grade B 1 and was thus occupied by Mr Fumagalli, who was in Grade B 2, on a provisional basis.

Eleven officials put forward their candidatures for that post, including the applicant, who applied for a transfer. Eight officials applied for promotion and two applications were ruled inadmissible.

By a note dated 4 July 1985 the Director-General for Research and Documentation, Mr Palmer, recommended that the Director-General for Administration, Personnel and Finance should promote Alberto Fumagalli on the ground that he already had the experience and qualifications required for this post, in a specific field. Mr Fumagalli was on the 1984 list ol officials eligible for promotion drawn up by the Advisory Committee on Promotion.

By a decision of the Director-General for Administration, Personnel and Finance of 17 July 1985 Mr Fumagalli was promoted to Grade B 1 in the vacant post.

On 23 August 1985 the applicant was informed that her candidature had not been accepted.

By an undated letter lodged at the European Parliament on 14 August 1985 the applicant submitted a complaint against the abovementioned decision of 17 July 1985. She argued that she fulfilled the conditions laid down regarding qualifications, experience and linguistic knowledge and that the competition had in fact been held only in order to appoint Mr Fumagalli to the post.

By a letter of 4 December 1985 the Director-General for Administration, Personnel and Finance rejected the applicant's complaint on the ground that the contested procedure had complied with the conditions laid down in the vacancy notice and with the provisions of the Staff Regulations.

By an application dated 21 February 1986, which was lodged at the Court Registry on the same day, the applicant brought these proceedings against the decision to appoint Mr Fumagalli to the post in question and against the implied decision rejecting her own candidature..

After 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.

II — Conclusions of the parties

The applicant claims that the Court should:

Make such ruling as it sees fit in the interests of justice on the admissibility of the action for the amendment of the contested decisions;

Declare admissible and uphold the application for the annulment of the contested decisions;

In the alternative, allow the applicant to have witnesses examined, namely Karlheinz Neunreither, John P. S. Taylor, Barry Waters and Roy Cattermole, officials of the European Parliament, in order to show that the procedure initiated by Vacancy Notice No 4615 of 3 June 1985 was carried out for the sole purpose of regularizing the position of Mr Fumagalli and that there was no comparative examination of the merits of the candidates in order to ensure that the most suitable candidate was appointed to the post in question;

Order the European Parliament to pay the costs, or in the alternative make an order for costs in accordance with the law.

The European Parliament claims that the Court should:

Dismiss the application;

Make an order for costs in accordance with the applicable provisions.

III — Submissions and arguments of the parties

A — Admissibility

The applicant submits that the appointing authority misused the procedure for filling a post by transfer or promotion in order to appoint Mr Fumagalli to the post in question and that her candidature was therefore doomed from the outset, since the appointing authority never intended to consider the comparative merits of the candidates.

In so far as such a misuse of powers took place, the applicant considers that the appointment decision is an act adversely affecting her on two grounds, one objective, since it made it possible to make an appointment contrary to Articles 4 and 27 of the Staff Regulations, which require that the best qualified officials should be appointed, and one subjective, since in the absence of any consideration of the comparative merits of the candidates it denied the applicant from the outset any chance of being appointed.

Furthermore, an official's right to prefer a given post to another, even by way of a simple transfer, is a sufficient interest on which to found an action (see the judgments of 13 May 1970 in Case 46/69 Reinarz v Commission; 27 June 1973 in Case 35/72 Kley v Commission; and 16 October 1984 in Case 57/83 Williams v Court of Auditors). In that regard, the applicant denies that the fact that she is already an official in Grade B 1, Step 7, that is to say the highest grade in her category, implies that she has no material or nonmaterial interest in bringing proceedings. She dislikes the working conditions in her present post, and the vacant post, because of its specialized nature, offers her the prospect of greater job satisfaction than her post in the library.

Finally, and in the alternative, the applicant proposes to call four witnesses, all of them officials of the Parliament, in order to show that the vacancy notice was drawn up with a view to placing Mr Fumagalli at an advantage and that there was no comparison of the merits of the candidates for the post.

The Parliament considers that the action is inadmissible on the ground that there is no act adversely affecting the applicant and that she has no interest in bringing proceedings, since she already occupies the highest grade in her category. She cannot show any material interest or reasonably assert that she has any career prospects in the post she applied for. Furthermore, any claim she might make to have nonmaterial interest in obtaining a transfer cannot be accepted, since the assignment of an official by way of transfer may be made only in the interests of the service (Article 7 (1) of the Staff Regulations). The reasons put forward by the applicant in order to obtain her transfer are purely personal in nature, and no reference is made to the interests of the service. The judgments of the Court relied on by the applicant in this regard are not relevant.

Finally, the Parliament argues that the applicant's reasoning, in so far as a misuse of powers has taken place ... it seems clear that there is an act adversely affecting her. The Parliament considers that such reasoning is unacceptable inasmuch as it ties the question of the admissibility of the action to the submissions on which it is based.

B — Substance of the case

The applicant puts forward two submissions in support of her action, first of all that the appointment decision was vitiated by a misuse of powers, and secondly that she was better qualified to occupy the post in question.

1. Misuse of powers

The applicant argues that the sole purpose of the appointment procedure was to regularize the position of a specific official. She refers in that regard to statements to that effect made to her by the former Director-General for Research and Documentation, Mr Taylor, in particular in a letter of 8 July 1985 in which he stated that the post had been allocated in order to regularize the position of a member of the directorate in question but that the appointing authority would conscientiously examine all candidatures.

She also emphasizes that after his secondment in the interests of the service from 13 October 1980 to 12 October 1984 Mr Fumagalli was not reinstated in the post which he had previously occupied, pursuant to Article 8 (g) of the Staff Regulations, but was assigned to a new post, post V/B/1647. It was only after he had occupied that post (a post in grade B 1), for more than seven months that the appointing authority published the vacancy notice of 3 June 1985. That shows, she says, that the vacancy notice procedure was misused. Furthermore, in his note of 4 July 1985 the Director-General for Research and Documentation referred to the experience already acquired by Mr Fumagalli for the post in question. According to the applicant that assertion can only be explained by the fact that Mr Fumagalli was able in that manner, seven months before the publication of the vacancy notice, to acquire such specific experience and qualifications.

The Parliament observes that the staff of the institution were informed of the vacant post by Vacancy Notice No 4615 of 3 June 1985. On the expiry of the application period, the administration drew up a list of candidates and sent it to the Director-General concerned (Mr Palmer). After examining the comparative merits of the candidates, on the basis of their personal files and in particular their periodic reports, Mr Palmer proposed in a memorandum of 4 July 1985 that Mr Fumagalli should be appointed. Mr Fumagalli was appointed by the competent Director-General in accordance with that proposal.

It follows that there is no basis for the allegation of a misuse of powers. On the contrary, the Parliament considers that it correctly applied Articles 4, 20, 27 and 45 of the Staff Regulations in this case. It emphasizes, moreover, that the applicant has put forward no evidence in support of her submissions. There can be no presumption of a misuse of powers; it is for the person making the allegation to substantiate it (see judgment of 5 May 1966 in Joined Cases 18 and 35/65 Gutmann v Commission [1966] ECR 103). The letter of Mr Taylor of 8 July 1985 is not relevant in that regard, since that official was not the appointing authority. Finally, the applicant's offer to call witnesses is also irrelevant.

2. The assertion that the applicant is better qualified for the post in question

The applicant refers on this point to her experience, qualifications, knowledge and abilities. She also argues that the defendant has not shown that it considered the comparative merits of the candidates. In particular, she submits that it does not appear from the note of 4 July 1985 of the Director-General for Research and Documentation that Mr Fumagalli's experience and qualifications were superior to her own. Although she may not be entitled to require the appointing authority to give reasons for the decision rejecting her candidature, she is entitled to require the appointing authority to show that the successful candidate was appointed because he was the best qualified, under Articles 4 and 27 of the Staff Regulations (see the judgments of 5 May 1966 in Joined Cases 18 and 35/65 Gutmann v Commission, 4 December 1975 in Case 31/75 Costacurta v Commission, and 27 January 1983 in Case 263/81 List v Commission).

The Parliament considers that the submission is unfounded. It emphasizes in the first place that only the appointing authority is competent to decide whether it is in the interests of the service that a vacant post should be filled by way of transfer or by promotion. There is no order of priority as between transfer and promotion; those operations are on an equal footing and the appointing authority is free to give preference to a candidate who may be appointed only by way of promotion when it considers him more suitable than the other candidates (see judgment of 3 February 1971 in Case 21/70 Rittweger v Commission [1971] ECR 7).

For that purpose the appointing authority has wide discretion in examining the comparative merits of candidates. It is obliged to exercise that power only within the self-imposed limits set out in the notice of vacancy (see judgment of 30 October 1974 in Case 189/73 Grassi v Council [1974] ECR 1099). It does not appear from the circumstances of this case that the appointing authority failed to observe the conditions laid down in the vacancy notice or that it committed a manifest error in assessing the qualifications of the candidates.

1 Language of the Case: French.