Avis juridique important

61971J0088

European Court reports 1972 Page 00499 Danish special edition Page 00131 Portuguese special edition Page 00173

Summary

1 . THE FACT THAT THE APPOINTING AUTHORITY WISHES TO GIVE AN OFFICIAL, WHO HAS BECOME INCAPABLE OF PERFORMING THE DUTIES HE PREVIOUSLY DISCHARGED, THE OPPORTUNITY OF OBTAINING ANOTHER POST CORRESPONDING TO HIS CAPABILITIES AND QUALIFICATIONS, CANNOT BE CONSIDERED AN ILLEGAL MEASURE SO LONG AS THE PROVISIONS OF THE STAFF REGULATIONS RELATING TO THE RECRUITMENT OF OFFICIALS ARE OBSERVED .

2 . PERSONAL FILES ARE KEPT IN ORDER TO GUARANTEE AN OFFICIAL' S RIGHT OF DEFENCE BY ENSURING THAT DECISIONS TAKEN BY THE APPOINTING AUTHORITY AFFECTING HIS ADMINISTRATIVE STATUS AND HIS CAREER ARE NOT BASED ON MATTERS CONCERNING HIS CONDUCT WHICH ARE NOT INCLUDED IN HIS PERSONAL FILE .

3 . ALTHOUGH FOR THE PURPOSE OF ASSESSING THE SUITABILITY OF EACH CANDIDATE IT IS NECESSARY TO HAVE REGARD TO THE TOTAL NUMBER OF POINTS OBTAINED, THE IMPORTANCE FOR THIS ASSESSMENT OF THE QUALIFICATIONS RELATING TO SUITABILITY FOR THE PERFORMANCE OF THE DUTIES MUST NOT BE DISREGARDED .

PREFERENCE GIVEN TO A CANDIDATE WHO IS NOT FIRST ON THE LIST OF SUITABLE CANDIDATES DRAWN UP BY THE SELECTION BOARD BUT WHO OBTAINED A GREATER NUMBER OF POINTS FOR SUITABILITY FOR THE PERFORMANCE OF THE DUTIES MAY BE JUSTIFIED IN THE INTERESTS OF THE SERVICE .

Parties

IN CASE 88/71, HENRI BRASSEUR, AN OFFICIAL OF THE EUROPEAN PARLIAMENT, REPRESENTED BY VICTOR BIEL, ADVOCATE AT THE COUR SUPERIEURE DE JUSTICE, LUXEMBOURG, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE LATTER' S CHAMBERS, 71 RUE DES GLACIS, APPLICANT, V EUROPEAN PARLIAMENT, REPRESENTED BY ITS SECRETARY-GENERAL, HANS ROBERT NORD, ACTING AS AGENT, ASSISTED BY ALEX BONN, OF THE LUXEMBOURG BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE LATTER' S CHAMBERS, 22 COTE-D' EICH, DEFENDANT,

Subject of the case

APPLICATION FOR THE ANNULMENT OF THE DECISION OF THE EUROPEAN PARLIAMENT FILLING THE POST REFERRED TO IN NOTICE OF INTERNAL COMPETITION NO C/40, OF 24 MARCH 1971,

Grounds

1 BY AN APPLICATION LODGED AT THE REGISTRY ON 25 OCTOBER 1971, THE APPLICANT BROUGHT AN ACTION FOR THE ANNULMENT OF THE DECISION OF THE EUROPEAN PARLIAMENT FILLING THE VACANT POST WHICH WAS THE SUBJECT OF NOTICE OF INTERNAL COMPETITION NO C/40 OF 24 MARCH 1971 .

2 THE APPLICANT ASSERTS FIRST OF ALL THAT THE CONTESTED APPOINTMENT IS VOID FOR MISUSE OF POWERS IN THAT IT WAS MOTIVATED BY THE WISH OF THE ADMINISTRATION TO TRANSFER MR LESIRE, WHO HAD BECOME UNABLE TO PERFORM THE DUTIES OF CHAUFFEUR WHICH HE HAD PREVIOUSLY DISCHARGED, TO ANOTHER POST THROUGH THE EXPEDIENT OF THE COMPETITION AT ISSUE .

3 THE FACT THAT THE APPOINTING AUTHORITY WISHES TO GIVE AN OFFICIAL, WHO HAS BECOME INCAPABLE OF PERFORMING THE DUTIES WHICH HE PREVIOUSLY DISCHARGED, THE OPPORTUNITY OF OBTAINING ANOTHER POST CORRESPONDING TO HIS CAPABILITIES AND QUALIFICATIONS CANNOT BE CONSIDERED AN ILLEGAL MEASURE, SO LONG AS THE PROVISIONS OF THE STAFF REGULATIONS RELATING TO THE RECRUITMENT OF OFFICIALS ARE OBSERVED .

4 THE APPLICANT DOES NOT CONTEST THE LEGALITY OF THE RECRUITMENT PROCEDURE FOLLOWED IN THIS CASE BUT ALLEGES A NUMBER OF MATTERS CONCERNED ESSENTIALLY WITH HIS QUALITIES AND MERITS AS COMPARED WITH THOSE OF HIS RIVAL .

5 THESE ALLEGATIONS ARE NOT SUCH AS TO MAKE IT APPEAR THAT THE APPOINTING AUTHORITY IN THIS CASE PURSUED AN ILLEGAL PURPOSE AND DISREGARDED THE INTERESTS OF THE SERVICE .

6 THE SUBMISSION MUST THEREFORE BE REJECTED .

7 THE APPLICANT ALSO ASSERTS THAT THE DECISION AT ISSUE IS VOID FOR ILLEGALITY IN THAT THE APPOINTING AUTHORITY MADE ITS DECISION ON THE BASIS OF AN OPINION OF THE DIRECTOR-GENERAL FOR ADMINISTRATION OF 13 JULY 1971 CONTAINING REMARKS CRITICAL OF HIM MADE BY A MEMBER OF THE EUROPEAN PARLIAMENT AND BY A HEAD OF DIVISION OF THAT INSTITUTION .

8 SINCE THESE REMARKS WERE NOT INCLUDED IN HIS PERSONAL FILE, REFERENCE TO THEM IN THE COMPETITION PROCEDURE IS SAID TO HAVE BEEN INCOMPATIBLE WITH ARTICLE 26 OF THE STAFF REGULATIONS OF OFFICIALS .

9 ACCORDING TO SUBPARAGRAPH ( A ) OF THE FIRST PARAGRAPH OF ARTICLE 26 OF THE STAFF REGULATIONS OF OFFICIALS THE PERSONAL FILE OF AN OFFICIAL SHALL CONTAIN, INTER ALIA, " ALL DOCUMENTS CONCERNING HIS ADMINISTRATIVE STATUS AND ALL REPORTS RELATING TO HIS ABILITY, EFFICIENCY AND CONDUCT ".

10 IN PURSUANCE OF THE SECOND PARAGRAPH OF THE SAME ARTICLE THE AFOREMENTIONED DOCUMENTS MAY NOT BE USED OR CITED BY THE INSTITUTION AGAINST AN OFFICIAL UNLESS THEY WERE COMMUNICATED TO HIM BEFORE THEY WERE FILED .

11 THE PURPOSE OF THESE PROVISIONS IS TO GUARANTEE AN OFFICIAL' S RIGHT OF DEFENCE BY ENSURING THAT DECISIONS TAKEN BY THE APPOINTING AUTHORITY AFFECTING HIS ADMINISTRATIVE STATUS AND HIS CAREER ARE NOT BASED ON MATTERS CONCERNING HIS CONDUCT WHICH ARE NOT INCLUDED IN HIS PERSONAL FILE .

12 ACCORDING TO THE APPLICANT, THE OPINION OF THE DIRECTOR-GENERAL FOR ADMINISTRATION HAD A DECISIVE INFLUENCE ON THE TENOR OF THE DECISION ADVERSELY AFFECTING HIM .

13 HE ASSERTS, IN THIS CONNEXION, THAT HE WAS PLACED FIRST ON THE LIST OF SUITABLE CANDIDATES DRAWN UP BY THE SELECTION BOARD AND WAS AWARDED TWO POINTS MORE THAN MR LESIRE .

14 IT EMERGES FROM THE REPORT ACCOMPANYING THAT LIST, AND IN PARTICULAR FROM ANNEX 3, THAT IN REGARD TO " SUITABILITY FOR THE PERFORMANCE OF THE DUTIES " MR LESIRE OBTAINED MAXIMUM POINTS, 6 POINTS MORE THAN THE APPLICANT .

15 THE LATTER WAS ABLE TO MAKE UP THIS DIFFERENCE WITH THE POINTS OBTAINED BY HIS INCLUSION ON THE LISTS OF SUITABLE CANDIDATES IN PREVIOUS COMPETITIONS AND WITH TWO EXTRA POINTS FOR SENIORITY .

16 ALTHOUGH FOR THE PURPOSE OF ASSESSING THE SUITABILITY OF EACH CANDIDATE IT IS NECESSARY TO HAVE REGARD TO THE TOTAL NUMBER OF POINTS OBTAINED, THE IMPORTANCE FOR THIS ASSESSMENT OF THE QUALIFICATIONS RELATING TO SUITABILITY FOR THE PERFORMANCE OF THE DUTIES MUST NOT BE DISREGARDED .

17 THIS BEING THE CASE, REASONS BASED ON THE INTERESTS OF THE SERVICE SUFFICIENTLY JUSTIFY THE PREFERENCE GIVEN TO THE CANDIDATE APPOINTED .

18 IT DOES NOT SEEM, THEREFORE, THAT THE OPINION OF THE DIRECTOR-GENERAL FOR ADMINISTRATION OF 13 JULY 1971 HAD A DECISIVE INFLUENCE ON THE CHOICE MADE BY THE APPOINTING AUTHORITY .

19 THERE IS NO REASON TO ANNUL THE APPOINTMENT OF MR LESIRE AND THE APPLICATION MUST THEREFORE BE DISMISSED .

Decision on costs

20 ACCORDING TO ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .

21 THE APPLICANT HAS FAILED IN HIS SUBMISSIONS .

22 HOWEVER, UNDER ARTICLE 70 OF THE RULES OF PROCEDURE, IN PROCEEDINGS COMMENCED BY SERVANTS OF THE COMMUNITIES THE INSTITUTIONS SHALL BEAR THEIR OWN COSTS .

Operative part

THE COURT ( FIRST CHAMBER ) HEREBY :

1 . DISMISSES THE APPLICATION;

2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .