Contents
In Case 18/83Domenico Morina, an official of the European Parliament, of 32 Rue de Kehlen, Mamer, represented by Victor Biel, of the Luxembourg Bar, with an address for service in Luxembourg at the latter's Chambers, 18 A Rue des Glacis,vEuropean Parliament, represented by Manfred Peter, Head of the Legal and Administrative Questions Division, assisted by Alex Bonn, of the Luxembourg Bar, with an address for service in Luxembourg at the latter's Chambers, 22 Côte d'Eich,THE COURT (Third Chamber),composed of: Y. Galmot, President of Chamber, U. Everling and C. Kakouris, Judges,Advocate General: G. F. ManciniRegistrar: J. A. Pompe, Deputy Registrargives the following
Judgment
Facts and Issues
The facts of the case, the course of the procedure and the submissions and arguments of the parties may be summarized as follows:
I —Facts and written procedure
II —Conclusions of the parties
The applicant claims that the Court should:— Declare that the application is admissible;— As to its substance, declare that it is well founded;— Declare that the decision transferring the vacant post, during the procedure fulfilling it, to another Directorate General is illegal and accordingly annul it;— Declare in any case that the interruption of the procedure is illegal and that the European Parliament must bring it to a conclusion;— Remit the case for that purpose to the European Parliament;— Order the defendant to pay the whole of the costs.The European Parliament contends that the Court should:— Take note that the defendant leaves to the Court the question of the admissibility of the application;— As to its substance, dismiss the application;— Make an order as to costs in accordance with the applicable provisions of the Staff Regulations.
Ill —Submissions and arguments of the parties
1.Admissibility
The European Parliament, which leaves to the Court the matter of admissibility, expresses doubts on three points :In the first place, since the applicant obtained satisfaction regarding his complaint, there is no longer any ground for bringing the present action. In his complaint Mr Morina confined himself to requesting clarification regarding the cancellation of the procedure for filling the post. That clarification was given to him in the reply from the President of the Parliament, who stated that the procedure had been cancelled for reasons relating to the service, which had no connection with the applicant's application.In the second place, the application did not state its true purpose which was to obtain a declaration of the illegality of, and to annul, the decision to transfer the post which was adopted during the procedure for filling it. No such claim was made in the complaint.In the third place, the question arises whether the decision to cancel the procedure, which was of a general nature, can adversely affect the applicant. In that respect, however, the case-law of the Court would appear to show that the implied rejection of an application arising from the cancellation of a procedure is capable of adversely affecting the person concerned.The applicant objects that he is suffering present damage since he is in a situation protected by law. By submitting his application, he became entitled to rely upon the lawful completion of the procedure and upon the administration's exercising its powers in that respect in accordance with the obligations incumbent upon it.
2.The substance
The application is based on the following submissions and arguments:(a) infringement of the Staff Regulations, breach of the principle of good administration and misuse of powers;(b) breach of the principle of the protection of legitimate expectation;(c) failure to state the grounds on which the measure was based.
(a)Infringement of the Staff Regulations, breach of the principle of good administration and misuse of powers
The applicant states that there is no objective reason based on the interests of the service which can justify the transfer of the post in question during the procedure for filling it. The transfer was decided upon not in the interests of the service but in order to eliminate the applicant and favour another official who had to be “fitted in”. In any event, the interests of the applicant were not taken into consideration since the administration had available at least two other posts provided for in the budget, for which there was no vacancy notice.By acting in this manner the Parliament has caused the applicant present and personal damage. The applicant was virtually the only candidate eligible for promotion to the post in question. Moreover, he had been proposed for the post by his superiors.The European Parliament replies that whilst Article 29 of the Staff Regulations obliges the appointing authority, before commencing any competition, to examine the possibilities of promotion and transfer within the institution, that obligation relates only to consideration of the possibilities of appointment and not to an actual appointment which the appointing authority is not obliged to make (judgment of 31 March 1965 in Joined Cases 12 and 29/64 Ley v Commission [1965] ECR 107). It follows that the applicant can claim no objective right to promotion (judgment of 25 November 1976 in Case 30/76 Küster [1976] ECR 1719). That rule applies particularly in this case since there were three other candidates for the vacant post.According to the Parliament, the transfer of the vacant post to another Directorate General was decided upon for imperative reasons relating to the service and was wholly unconnected with the applicant's application. The transfer involved a change in the nature of the duties attaching to the post and therefore there was no point in proceeding with an appointment on the basis of the vacancy notice. In fact, the new duties attaching to post No 1305 involve accountancy and, after the transfer, a vacancy notice was issued in respect of that post for the recruitment of an administrator responsible for imprest accounts.
(b)Breach of the principle of the protection of legitimate expectation
The applicant considers that the administration cannot, as a matter of principle, withdraw an offer of employment without contravening the principle of the protection of legitimate expectation. Since the publication of a vacancy notice under Article 4 of the Staff Regulations should attract the bestplaced candidates, those of the candidates who fulfil the conditions for admission have a legitimate expectation that they will be appointed to take up the duties in question.The applicant satisfies all the conditions for admission and, moreover, was proposed for the post by his superiors. In those circumstances, his appointment to the post described in the vacancy notice had become a near certainty which was tantamount to a genuine vested personal right.The European Parliament states by way of reply that there is no foundation for any allegation of a breach of the principle of the protection of legitimate expectation in cases such as this one where the application for appointment to the post was set aside for objective reasons relating to the service.Moreover, according to the judgment of 24 June 1969 (Case 26/68 fux [1969] ECR 145), there is nothing in Article 4 or Article 29 of the Staff Regulations to say that once a recruitment procedure has been commenced the appointing authority is obliged to pursue it by filling the post which has become vacant, since those provisions are intended merely to ensure that the appointing authority makes only appointments which are in conformity with the rules prescribed by law.Finally, the appointing authority cannot attach more importance to a contingent advantage which an official may obtain in the future from a recruitment procedure than to certain and present needs which, in the interests of the service, require it to take immediate measures.
(c)Failure to state the reasons on which the measure was based
The applicant claims that the decision to transfer the post does not disclose to him the reasons on which it was based, since it contains no explanation regarding the alleged interests of the service.Since the vacant post corresponds in all respects to his activities and experience and since he was the candidate proposed for the post, it was particularly important for the said decision properly to state the reasons upon which it was based as far as the applicant was concerned. Since it is not permissible to remedy the absence of a statement of the reasons on which a measure is based during the proceedings before the Court (judgment of 26 November 1981 in Case 195/80 Michel [1981] ECR 2861), the transfer decision must be annulled.According to the European Parliament, the allegation regarding the absence of any statement of reasons is unfounded, since the applicant was informed as to the outcome of his application. It is apparent from the words “Procedure cancelled by the appointing authority” appearing on the notification slip sent by the administration to the applicant that the procedure was discontinued for a reason relating to the service rather than that the application had not been accepted.
IV —Oral procedure
The parties presented oral argument at the sitting on 20 October 1983.The Advocate General delivered his opinion at the same sitting.
Decision
Admissibility
Substance
Costs
Operative part
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