JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL (Second Chamber)
2 April 2009 (*)
(Civil service – Officials – Recruitment – Choice of procedure – Head of representation – Vacancy – Secondment in the interests of the service – Lack of competence – Scope of the secondment procedure)
In Case F‑128/07,
ACTION under Articles 236 EC and 152 EA,
Andreas Menidiatis, official of the Commission of the European Communities, residing in Rhode-Saint-Genèse (Belgium), represented by S.A. Pappas, lawyer,
applicant,
v
Commission of the European Communities, represented by G. Berscheid and K. Herrmann, acting as Agents,
defendant,
THE TRIBUNAL (Second Chamber),
composed of H. Kanninen, President, H. Kreppel and S. Van Raepenbusch (Rapporteur), Judges,
Registrar: R. Schiano, Administrator,
having regard to the written procedure and further to the hearing on 9 October 2008,
gives the following
Judgment
1 By application received at the Registry of the Civil Service Tribunal on 31 October 2007 by fax (the original being lodged on 7 November 2007), Mr Menidiatis seeks annulment of the decision of 21 December 2006 rejecting his application for the vacant post of Head of the Representation of the Commission of the European Communities in Athens (Greece) and appointing Mr P. to that post.
Legal context
Secondment in the interests of the service
2 Article 35 of the Staff Regulations of Officials of the European Communities (‘Staff Regulations’) reads:
‘Officials shall be assigned one of the following administrative statuses:
(a) Active employment;
(b) Secondment;
(c) Leave on personal grounds;
(d) Non-active status;
(e) Leave for military service;
(f) Parental leave or family leave.’
3 Article 36 of the Staff Regulations reads:
‘An official having active status is one who is performing the duties pertaining to the post to which he has been appointed or temporarily assigned as provided in Title IV.’
4 Article 37, first paragraph, of the Staff Regulations reads:
‘An official on secondment is an established official who, by decision of the appointing authority:
a) has been directed in the interests of the service:
– to serve temporarily in a post outside his institution;
or
– to assist temporarily a person holding an office provided for in the Treaties or the elected President of one of the institutions or organs of the Communities, or one of the political groups in the European Parliament or the Committee of the Regions [of the European Union], or a group in the European Economic and Social Committee;
– to serve temporarily in a post which is included in the list of posts financed from the research and investment appropriations and which the budgetary authorities have classified as temporary.
…’
5 Article 38 of the Staff Regulations provides:
‘Secondment in the interests of the service shall be governed by the following rules:
a) the decision on secondment shall be taken by the appointing authority after hearing the official concerned;
b) the duration of secondment shall be determined by the appointing authority;
c) at the end of every six months, the official concerned may request that his secondment be terminated;
d) an official on secondment pursuant to the first indent of Article 37 [, first paragraph,] (a) shall be entitled to a salary differential where the total remuneration carried by the post to which he is seconded is less than that carried by his grade and step in his parent institution; he shall likewise be entitled to reimbursement of all additional expenses entailed by his secondment;
e) an official on secondment pursuant to the first indent of Article 37 [, first paragraph,] (a) shall continue to pay pension contributions based on the salary for active employment carried by his grade and step in his parent institution;
f) an official on secondment shall retain his post, his right to advancement to a higher step and his eligibility for promotion;
g) when his secondment ends an official shall at once be reinstated in the post formerly occupied by him.’
6 Lastly, the table of appointing authorities for staff paid from the administrative budget contained in Annex I to the Commission Decision of 16 June 2005, as last amended by Commission Decision C(2006) 2318 of 13 June 2006 on the exercise of powers conferred by the Staff Regulations on the Appointing Authority and by the Conditions of Employment of Other Servants (‘Conditions of Employment’) on the Authority Responsible for Concluding Contracts of Employment (published in Administrative Notices No 47‑2005 of 24 June 2005, ‘the Appointing Authority Decision’), provides, in paragraph 5 of Part III ‘Career’, with regard to secondment in the interests of the service, inter alia:
‘For the Head of Cabinet, deputy Head of Cabinet and Head of Representation: this power [to appoint] is delegated to the Member of the Commission responsible for personnel and administration, in agreement with the President, in the case of secondments to the office of a Member of the Commission. The Directorate-General of origin is informed.’
Decision on middle management staff
7 On 28 April 2004 the Commission adopted Decision C(2004) 1597 on middle management staff, published in Administrative Notices No 73‑2004 of 23 June 2004 (‘the Middle Management Decision’).
8 Article 2(1) of the Middle Management Decision provides:
‘Middle management functions and staff
Middle management functions are those which meet both of the following criteria:
– they involve the permanent and continuous management of an administrative unit;
– they appear in the Commission’s official organisation chart.
A person who satisfies both of these criteria at the same time is thereby a member of the middle management staff.
This means that the functions of head of unit, Head of Delegation…, Head of an Office or Representation in the Member States as well as those of Deputy Head of Delegation at AD 13/AD 14 … level are hereby defined as middle management functions … and are covered by this decision.
These posts shall be filled either at grades AD 9/AD 12 or at AD13/AD 14.’
9 Article 14(2) of the Middle Management Decision provides as follows:
‘Heads of Offices or Representations in the Member States
2.1 Selection
The final interviews, as provided by Articles 8(1.3) and 10(1), shall be carried out by the Director-General for press and information, the Director-General for personnel, the Secretary-General or, at the latter’s request, a designated Rapporteur (see Article 8.[1.]3).
2.2 Appointment
For posts at grade AD 9/AD 12, the appointing authority shall be the Director-General for press and information.
For posts at grade AD 13/AD 14, the appointing authority shall be the Director-General for press and information, in agreement with the President and the Members of the Commission responsible for personnel and for press and information.
…’
10 Paragraph 9.2 of the Administrative Guide of 10 December 2004 on the role, duties and selection and appointment of Commission Middle Managers (A*9/A*12 and A*13/A*14), ‘the Administrative Guide’, reads as follows:
‘Selection: The final interviews of Heads of Offices or Representations in the Member States are to be carried out by the Director-General for Press and Communication, the Director-General of DG ADMIN, the Secretary-General or, at the latter’s request, a designated Rapporteur …
Appointment: For posts at grade AD 9/AD 12, the appointing authority is the Director-General for Press and Communication.
For posts at grade AD 13/AD 14, the appointing authority is the Director-General for Press and Communication, in agreement with the President and the Members of the Commission responsible for personnel and for press and information.’
The decision on the procedure for appointments to the post of head of representation
11 The Commission also adopted, on 7 July 2004, Decision C(2004) 2662 on the procedure for appointments to the post of head of representation (‘the Head of Representation Decision’), Article 1 of which provides:
‘Appointments to the post of head of the Commission’s representation in the Member States shall be made either by secondment of an official (under Article 37 [, first paragraph, (a), second indent,] and Article 38 of the Staff Regulations), or by engagement of a temporary staff member under contract [under Article 2(c)] of the Conditions of Employment, at Grade A*/AD 12.’
12 The procedure applicable to decisions to second an official as a head of representation was laid down by the Director-General of the Directorate-General (DG) for Personnel and Administration by memoranda of 20 April and 26 May 2005. That procedure comprises the following stages:
‘ – Appointment of a rapporteur by DG [Personnel and Administration];
– Applications sent to DG [Communication];
– Pre-selection procedure, adoption of a shortlist;
– Interview with Director-General DG [Communication] and Rapporteur;
– Selection report transmitted to DG [Personnel and Administration; that] report should include pre-selection phase, choice of final shortlist;
– Written procedure of the [Advisory Committee on Appointments];
– Final choice of the Director-General DG [Communication];
– Simplified procedure (agreement of the Cabinets of the President, Vice-President Wallström and Vice-President Kallas);
– Decision of Vice-President Kallas.’
Background to the case
13 On 9 March 2006 the Commission published Vacancy Notice COM/2006/961 for the secondment of an official or the engagement of a temporary staff member to carry out the duties of Head of the Commission’s Representation in Greece.
14 The vacancy notice states inter alia:
‘The post is open to officials and temporary staff in function group A* in active employment at the Commission on the closing date for applications. In order to be admitted, candidates must:
1. have at least ten years’ professional [post-university] experience, preferably in the field of information, communication, media and/or politics and economic affairs, including at least five years in a coordination and/or team management role;
2. possess a thorough knowledge of written and spoken Greek and a satisfactory knowledge of another official language of the European Union. A good command of French and/or English would be an advantage.
The post of Head of the Commission’s Representation will be filled either by secondment of an official (under the second indent of Article 37 [, first paragraph, (a), and Article 38 of the Staff Regulations]) or by engagement of a temporary staff member under contract [under Article 2(c), of the Conditions of Employment] at Grade A*12. The length of the initial appointment … will be three years; it may be renewed once for a maximum period of two years.
If the candidate selected is an official in a substantive grade that is higher than Grade A*12, he/she will be seconded at his/her current grade and step.’
15 The applicant and 11 other candidates submitted applications for the post of Head of the Commission’s Representation in Athens. During the first stage of the selection procedure, after the applications had been considered, a pre-selection panel chose seven of the candidates to be called for pre-selection interviews. The applicant’s name was not among those of the candidates chosen.
16 The preliminary interviews with the pre-selection panel took place on 15 and 18 May 2006. Of the seven candidates interviewed, the panel proposed that the Director-General of DG Communication should call four of them for final interview.
17 The four candidates who were pre-selected were each called for interview with a selection panel made up of Mr Sørensen, Director-General of DG Communication, Mr. K., acting as Rapporteur, and Mr R., acting as Secretary. The interviews took place on 7 July 2006.
18 At the final interview, Mr P. was awarded a mark of 82/100 and the other three candidates were awarded 65/100, 69/100 and 74/100, respectively.
19 The Advisory Committee on Appointments concluded in its opinion of 6 September 2006 that, ‘in the light of each candidate’s application form under Article 37 [, first paragraph, (a), and Article 38 of the Staff Regulations] and of their staff files, … the applications submitted by Messrs Y., K. and P. should be taken into consideration’. However, it considered that ‘Mr P’s application should be given particular consideration’.
20 By decision of the Vice-President of the Commission, Mr Kallas, of 20 December 2006, Mr P. was seconded in the interests of the service to the post of Head of the Commission’s Representation in Athens, with effect from 1 January 2007 for a period of three years. The same decision classified Mr P. in Grade AD 12 for the duration of his secondment.
21 By a memorandum of 21 December 2006 (‘the contested decision’), the applicant was informed that his application had been rejected and that Mr P. had been appointed to the post of Head of the Commission’s Representation in Athens.
22 On 28 February 2007, the applicant lodged a complaint under Article 90(2) of the Staff Regulations against the contested decision with the Director-General of DG Communication. That complaint was forwarded to the relevant service within DG Personnel and Administration and was registered on 17 April 2007.
23 By decision of 25 September 2007, notified to the applicant on 1 October 2007, the Commission dismissed the complaint.
Forms of order sought and procedure
24 The applicant claims that the Tribunal should:
– declare the application admissible and well-founded;
– annul the contested decision;
– order the Commission to pay the costs.
25 The Commission contends that the Tribunal should:
– dismiss the application as unfounded;
– make an appropriate order as to costs.
26 At the end of the hearing the Tribunal requested the Commission to produce factual information indicative of the personal link which, according to the Commission, connects the heads of representation to the Member of the Commission responsible for communication strategy and justifies recourse to Article 37 of the Staff Regulations, as provided in the Head of Representation Decision. The Commission responded to that request in a memorandum of 31 October 2008, received at the Registry of the Tribunal on the same day by fax (the original being lodged on 3 November 2008), and that memorandum was forwarded to the applicant for his observations on 4 November 2008. In a memorandum of 14 November 2008, received at the Registry of the Tribunal on the same day by fax (the original being lodged on 19 November 2008), the applicant submitted written observations. On the latter date the oral procedure was closed and the case entered the deliberation stage.
27 By order of 1 December 2008, the Tribunal reopened the oral procedure and invited the Commission to submit any brief observations it might have on the applicant’s abovementioned memorandum of 14 November 2008. The Commission, in compliance with that request, filed written observations on 15 December 2008.
Law
28 The applicant relies on a number of pleas in law in support of his action: first, that the selection procedure was unlawful and had not been complied with; second, that the vacancy notice was unlawful; third, that the vacancy notice had not been complied with; fourth, that Article 11a of the Staff Regulations had been infringed; fifth, that the downgrading of the post of head of representation in Athens was unlawful as was the Head of Representation Decision; sixth, that the vacancy notice was published out of time; seventh, that the rules concerning the rotation of staff occupying sensitive posts had been infringed; eighth, that there had been a failure to state reasons for the decision refusing access to the documents requested by the applicant in his complaint; and finally, ninth, that there had been a misuse of powers.
29 It is necessary in particular to consider the first plea, alleging that the procedure for selecting the head of representation was unlawful and had not been complied with.
Arguments of the parties
30 The applicant subdivides his first plea into two parts.
31 In the first part the applicant submits that it is unlawful for Members of the Commission to intervene in the procedure for appointing heads of representation. He states that, in the present case, the Head of the Commission’s Representation in Athens was appointed by decision of Vice-President Kallas after obtaining the agreement of the Cabinets of the President of the Commission, of Vice-President Wallström and of Vice-President Kallas.
32 That involvement of Members of the Commission in the selection procedure at issue is not objectively justified, since they have no managerial powers or responsibilities and are not required to have a direct relationship with the heads of representation, who remain in their posts irrespective of the length of the terms of office of Commissioners. Representations constitute decentralised units of DG Communication and have no political status. The choice of heads of representation intuitu personae, according to the same procedure as that used for the selection of members of the Cabinets of Commissioners has no legal basis.
33 In his observations of 14 November 2008, the applicant asserts that secondment in order to ‘assist temporarily a person holding an office’, under the second indent of Article 37, first paragraph, (a), of the Staff Regulations, implies that the official on secondment is to be physically present with that person. In any event, the Commission has not adduced evidence of the existence of frequent, regular and structured contacts attesting to a relationship of trust between heads of representation and specifically the Commissioner responsible for communication strategy. The applicant points in that regard to the organic and hierarchical connection between heads of representation and the services within DG Communication.
34 The Commission replies that in the present case it is not a matter of recruitment but of secondment under the second indent of Article 37, first paragraph, (a), of the Staff Regulations, which is justified by the nature of the post.
35 First of all, on the one hand, the representation has the task of providing information and communicating with the national and regional media and with the general public regarding Commission policy and, on the other hand, it briefs the Commission on the political situation in the Member State concerned. It therefore constitutes a relay point between the Commission and the national, regional and local authorities in the Member State concerned, with the head of representation acting as a spokesperson for the Commission in the Member State concerned, and doing so in close cooperation with the Commissioner responsible for communication.
36 Such functions are undoubtedly of a sensitive political nature, which is why the term of office of a head of representation is limited to three years.
37 In those circumstances, selection of a head of representation cannot be treated in the same way as selection of a head of unit in Grade AD 12 employed in Brussels. It was for that reason that the Commission decided to second heads of representation, in the interests of the service, to assist the Member of the Commission responsible for communication strategy. It is a functional secondment of heads of representation, even though the representations themselves, from the organisational point of view, form part of DG Communication.
38 The Commission adds that the second indent of Article 37, first paragraph, (a), of the Staff Regulations does not require the existence of a specific post, forming part of the Commissioner’s Cabinet and included, from the organisational point of view, in a separate organisation chart from that of the services of the Commission. The terms of that provision expressly emphasise the functions to be carried out, which require, in the present context, the existence of a special link between the official on secondment and the Member of the Commission (see, to that effect, Case T‑162/96 Forcheri v Commission [1998] ECR-SC I‑A‑421 and II‑1203, paragraph 65).
39 The involvement of three Commissioners’ Cabinets in the procedure for seconding an official to perform the duties of head of representation is justified specifically in view of the latter’s particular responsibilities.
40 The fact that the duration of the secondment of the Head of Representation in Athens does not necessarily correspond to the duration of the Commissioner’s term of office is irrelevant since only the appointing authority may decide on the duration of a secondment in the interests of the service (see, to that effect, Case T‑237/00 Reynolds v European Parliament [2002] ECR II‑163, paragraphs 51 to 53, and Case T‑237/00 Reynolds v European Parliament [2005] ECR-SC I‑A‑385 and II‑1731, paragraphs 64 to 66).
41 Lastly, in its observations lodged on 31 October 2008, in response to the question raised by the Tribunal, as stated in paragraph 26 above, the Commission again asserts, in order to justify recourse to Article 37 of the Staff Regulations, that the closeness of the contacts between the Commissioner responsible for communication strategy and heads of representation varies according to political events and the calendar of the College of Commissioners. It is impossible, given the geographical distance between the headquarters of the Commission and the offices of its 27 representations, to hold direct meetings between the Commissioner concerned and the 27 heads of representation on a weekly or even monthly basis. However, the frequency of direct contacts between the person to be assisted through the secondment and the person on secondment do not in themselves constitute a condition for the second indent of Article 37, first paragraph, (a), of the Staff Regulations to apply, since the assessment of whether relationships of mutual trust exist is not necessarily based on quantifiable parameters such as the number of direct meetings or the number of telephone calls. What is important is the content of those relationships which, in most cases, is of a confidential nature.
42 According to the Commission, direct contacts between heads of representation and the Commissioner responsible for communication strategy take various forms. As a rule, these are:
– telephone calls or e-mails between the Commissioner and the members of his Cabinet, on the one hand, and heads of representation, on the other hand; these contacts vary depending on events at national and Community level, and increase before visits by the Commissioner to the Member State concerned;
– visits by the Commissioner to the Member State concerned, during which he is accompanied by the head of representation;
– missions by the head of representation to Brussels, during which a meeting with the Commissioner is obligatory;
– attendance by the Commissioner at meetings of heads of representation in Brussels at least twice a year;
– reports drafted by heads of representation, which are sent direct to the Commissioner.
43 In the second part of his first plea the applicant disputes the authority of the Vice-President of the Commission, Mr Kallas, to act as appointing authority in the case of secondment of an official as a head of representation. He relies, in that regard, on Article 14(2) of the Middle Management Decision, from which it is clear that it is the Director-General of DG Communication who is the appointing authority with regard to the appointment of a head of representation in Grade AD 12. In the present case, that Director-General merely proposed the appointment of Mr P., with the decision to appoint finally being taken by Vice-President Kallas.
44 According to the applicant, the scope of the Middle Management Decision cannot be restricted solely to cases of transfer and appointment under Articles 7 and 29 of the Staff Regulations. That Decision, which concerns all middle management staff and applies, as is apparent from Article 1 of the Decision, to all Commission departments and departments administratively attached to the Commission, is of broad and general scope: it regulates the procedure for the selection and appointment of heads of section and representation irrespective of whether the procedure at issue ‘concerns’ an appointment, a transfer, a promotion or an external selection. Article 2(1) of the Middle Management Decision also states that heads of representation are concerned by the Decision, although it does not specify the procedure for their appointment.
45 In the applicant’s submission, the Head of Representation Decision does not preclude the applicability of the Middle Management Decision. There is no conflict between the two Decisions. The fact that the Head of Representation Decision was adopted after the Middle Management Decision is therefore irrelevant.
46 The applicant points out, moreover, that according to paragraph 9 of the Administrative Guide, which postdates the Head of Representation Decision, the rules for selection and appointment of heads of representation are generally the same as those applying to other middle management posts, although there are some differences with regard to the appointing authority and the involvement of other committees, apart from the Advisory Committee on Appointments intervening by virtue of Article 14(2) of the Middle Management Decision.
47 In addition, point 5 of Part III of the table of appointing authorities for staff paid from the administrative budget contained in Annex I to the Appointing Authority Decision gives no support for the Commission’s view, since it is apparent from that point that the Commissioner responsible for matters of personnel and administration has the role of appointing authority only where the secondment in question is to the office of a Member of the Commission, which is not the case here.
48 Lastly, the applicant notes that the decision dismissing his complaint was adopted by the College of Commissioners, which was not the appointing authority responsible for taking that decision. That irregularity demonstrates the unacceptable politicisation of the entire recruitment procedure for an official deemed to be in Grade AD 12. That infringement of the rules of separation of the powers devolved to the appointing authority infringes the principle of impartiality of the procedure and casts doubt on the existence of a genuine examination of the comparative merits of candidates for a vacant post, whereas it is such an examination which provides a guarantee of equal treatment of officials and of the principle that recruited officials are entitled to reasonable career prospects.
49 The Commission first of all observes that, as stated in its second recital, the Middle Management Decision is based on Articles 2, 4, 5, 7 and 29 of the Staff Regulations and that therefore its scope of application is concerned with appointments to middle management posts by means of transfer in the interests of the service under Article 7 of the Staff Regulations, or by means of appointment of an official under Article 29 of the Staff Regulations. No reference is made to Articles 37 and 38 of the Staff Regulations.
50 Secondly, the Commission states that the procedure at issue cannot be subject to the Middle Management Decision because, according to the table of appointing authorities for staff paid from the administrative budget, annexed to the Administrative Authority Decision, the appointing authority responsible for taking the decision to second an official in the interests of the service in order to carry out the duties of head of representation is the Member of the Commission responsible for personnel and administration. It was therefore necessary to lay down a separate selection procedure, which was done through the adoption of decisions of the Director-General of DG Personnel and Administration of 20 April and 26 May 2005.
51 According to the Commission, the applicant’s argument based on the Administrative Guide and the Middle Management Decision has no bearing in those circumstances, since the Member of the Commission cannot, in any event, ensure compliance with the selection procedure culminating in the adoption of a decision where that Member is not the competent appointing authority.
52 Thirdly, with regard to the applicant’s argument based on the allegedly improper involvement of three Commissioners’ Cabinets in the appointment of the head of representation in Athens, the Commission counters this by saying that the involvement of the Commissioners concerned, at the penultimate stage of the selection procedure, stems from the nature of the functions of a head of representation and Vice-President Kallas’s role as appointing authority in this matter.
53 Lastly, as regards the allegation that the College of Commissioners lacked competence to adopt the decision dismissing the complaint, the Commission points out that the footnote on page 2, relating to point 12 ‘Complaints’ of Part V of the table of appointing authorities for staff paid from the administrative budget, annexed to the Appointing Authority Decision states:
‘… if the contested decision was taken by the Commissioner with responsibility for personnel and administration or by the Commission: the Commission is the Appointing Authority …’
54 Since in this case the contested decision was adopted by the Vice-President of the Commission, Mr Kallas, the response to the complaint made against that decision had to be given by the College of Commissioners.
55 In any event, the Commission considers that the first plea was raised in the interests of the law and is therefore inadmissible.
56 In that connection, so the Commission argues, since the applicant was excluded from the selection procedure at the stage at which the candidates’ files were being examined by the pre-selection panel, the question whether the procedure leading to Mr P.’s secondment should have been followed according to the Middle Management Decision or according to other decisions is not one affecting his personal situation since, even if the Middle Management Decision had applied, the decision taken with regard to the applicant would have been the same, in that the composition of the pre-selection panel would not have been different whichever procedure was followed.
57 At the hearing the Commission raised an objection of inadmissibility against the plea alleging the inapplicability in the present case of the second indent of Article 37, first paragraph, (a), of the Staff Regulations on the ground that it had not been relied upon either in the complaint or in the application, and was relied upon for the first time at the hearing, in response to questions raised by the Tribunal.
58 The Commission also pointed out at the hearing that under Article 38(g) of the Staff Regulations it was possible for the head of representation to be reinstated at once in the post formerly occupied by him, when his secondment ended. That possibility is entirely consistent with the requirements of the post, in view of the personal link between the person concerned and the Member of the Commission responsible for communication strategy, since the end of the latter’s term of office is likely to lead to the end of the secondment. Lastly, the Commission pointed out that it would be difficult to arrange a mobility procedure between Commission representatives in the Member States comparable to that which exists between delegations, in view of the language constraints connected with the post of head of representation, and the fact that the latter is in most cases a national of the host country.
Findings of the Tribunal
59 It is appropriate first of all to consider the admissibility of the complaint alleging the inapplicability of Article 37 of the Staff Regulations, and secondly whether it was lawful for the Commission to apply the provisions of the Staff Regulations relating to secondment in the interests of the service to assist a person holding an office provided for in the Treaties, for the purposes, in the present context, of the recruitment of the head of representation in Athens.
Admissibility of the complaint alleging the inapplicability of Article 37 of the Staff Regulations
60 The Commission raised at the hearing an objection of inadmissibility against the complaint alleging the inapplicability in the present case of the second indent of Article 37, first paragraph, (a), of the Staff Regulations on the ground that that complaint was not raised in the application.
61 This objection cannot be upheld. It was specifically in response to the applicant’s plea alleging the unlawfulness of the selection procedure for the head of representation followed in this case, in the light of Articles 7 and 29 of the Rules of Procedure, and of Article 14(2) of the Middle Management Decision, that the Commission put forward the argument that it had been incumbent on it during that selection procedure to apply the second indent of Article 37, first paragraph, (a), of the Staff Regulations, so that it is in the light of that provision rather than of Articles 7 and 29 of the Staff Regulations that, in the Commission’s view, the legality of the contested selection procedure should be assessed.
62 In those circumstances, examination of the validity of the first plea necessarily requires the Tribunal to examine first of all the applicability in this case of Article 37 of the Staff Regulations.
63 In any event, the applicant’s line of argument amounts to challenging the authority of the Commissioner responsible for personnel and administration to appoint the head of representation in Athens, and the scope of Article 37 of the Staff Regulations, which the Commission applied, and thus constitutes a plea involving matters of public policy which may be raised by the Tribunal of its own motion at any stage of the proceedings before it.
64 The objection of inadmissibility against the complaint alleging the inapplicability of Article 37 of the Staff Regulations must therefore be dismissed.
The merits of the complaint alleging the inapplicability of Article 37 of the Staff Regulations
65 It should be noted first of all that, under Article 35 of the Staff Regulations, officials are assigned one of the following administrative statuses: active employment, secondment, leave on personal grounds, non-active status, leave for military service, parental leave or family leave. It is clear that active employment, which, under Article 36 of the Staff Regulations, is the status of an official ‘who is performing the duties pertaining to the post to which he has been appointed or temporarily assigned under the conditions contained in Title IV [Working Conditions of Officials]’, is the normal status of an official and the other statuses are extraordinary. Moreover, in order to be assigned one of those statuses, an official must meet the specific conditions laid down in that regard in the Staff Regulations.
66 Thus, under the second indent of Article 37, first paragraph, (a), of the Staff Regulations, an official may be seconded in the interests of the service in order to ‘assist temporarily a person holding an office provided for in the Treaties’, such as a Member of the Commission.
67 As the Court held in Case C‑432/04 Commission v Cresson [2006] ECR I‑6387, paragraph 137, the purpose of secondment to assist a Commissioner is, generally, to enable persons who have previously been appointed on the basis of merit, often by competition, and have demonstrated their ability, to make their talents available for the benefit of the Cabinets. The Court also held that those advisers are appointed intuitu personae, that is to say in a manner that is largely discretionary, with those concerned being selected both for their professional and personal qualities and for their ability to adapt to the working methods specific to the Commissioner concerned and those of the Cabinet as a whole (Commission v Cresson, paragraph 130; see also, to that effect, concerning the appointment of legal secretaries to the chambers of judges of the Court of Justice, Case F‑103/07 Duta v Court of Justice [2008] ECR-SC I‑1-A‑0000 and II‑A-1-0000, paragraph 26, which is the subject of an appeal pending before the Court of First Instance of the European Communities in Case T‑475/08 P).
68 The discretion of the person or service to which the person concerned has been seconded, and the mutual trust that must imbue relations between that person or service and the official on secondment throughout the period of secondment, were also highlighted by the Court of Justice and the Court of First Instance in connection with the appointment of an official to a political group in the European Parliament, the appointing authority thereby being enabled to terminate the secondment at any moment where the relationship of mutual trust no longer exists (Case C‑111/02 P European Parliament v Reynolds [2004] ECR I‑5475, paragraphs 54 to 56 and Case T‑237/00 Reynolds v European Parliament, paragraph 66). In the same way, Article 38 of the Staff Regulations allows an official on secondment, at the end of every six months, to request that his secondment be terminated, which demonstrates the instability of the employment relationship between the person concerned and the person to whose office he is seconded.
69 In the present case, the Commission asserts, in the first place, that the very nature of the duties carried out by a head of representation, who provides a relay point between the Commission and the national, regional or local authorities of the host Member State, justifies recourse to secondment in the interests of the service under the second indent of Article 37, first paragraph, (a), of the Staff Regulations.
70 That justification cannot be accepted. The ‘sensitive political nature’, as the Commission puts it, of the duties carried out by the heads of representation, however genuine it may be, is not in itself such as to justify recourse to secondment of an official. Such an interpretation of the second indent of Article 37, first paragraph, (a), of the Staff Regulations would amount to allowing secondment to assist the relevant Commissioners of all officials carrying out ‘sensitive political’ duties within the institution which are normally the responsibility of senior management and would thus undermine the very structure of the European civil service as established in Article 35 of the Staff Regulations, thereby calling into question in particular the clarity of hierarchical relations.
71 However, Article 2(1) of the Middle Management Decision includes heads of representation among middle management staff.
72 Secondly, the Commission asserts that the second indent of Article 37, first paragraph, (a), of the Staff Regulations does not require an official seconded to assist a Member of an institution actually to carry out his duties within that Member’s Cabinet or appear on the latter’s organisation chart.
73 In that regard, it should be noted, as it was in paragraphs 68 and 69 above, that secondment in the interests of the service ‘to assist a person holding an office provided for in the Treaties’ assumes the existence of a relationship of trust intuitu personae between the latter and the official on secondment, and that relationship implies that close direct links may be permanently forged between the persons concerned, based on the particular working methods of the Member concerned and those of the Member’s Cabinet as a whole.
74 Even assuming that physical distance does not, as a matter of principle, make the establishment of personal relationships between heads of representation and the Commissioner responsible for communication strategy impossible or particularly difficult, the fact remains that the Commission has not established in the present case that such relationships exist.
75 On the contrary, it is apparent from the case-file, in particular from the organisation chart of DG Communication, that the people having direct contact with the heads of representation are, primarily, Directorate B (‘Representations’) of that Directorate-General, under the authority of its Director-General. The Commission itself stated in its pleadings that the closeness of contacts with the Commissioner responsible for communication or the members of that Commissioner’s Cabinet varies depending on political events at a given time, such as a visit by the Commissioner to the Member State concerned. The facts that reports drawn up by the head of representation are sent directly to the Commissioner responsible, that telephone contacts, exchanges of e-mails or meetings take place between the head of representation and the Commissioner or members of the Commissioner’s Cabinet, or that the content of such exchanges is confidential, do not in themselves establish that the working relationship between the Commissioner in charge of communication and the head of representation concerned is intuitu personae. Such facts may also characterise relationships forged between a Director-General of the Commission and a Commissioner without the Director-General being seconded to assist the latter in the interests of the service. Moreover, it is apparent from the case-file that heads of representation are in reality required to provide assistance to all Commissioners, in particular where they are travelling within the host Member State.
76 Lastly, although it is true that the term of secondment of the Commission’s head of representation in Athens is limited to three years, as is apparent from the contested vacancy notice , that term, which may be renewed once for a maximum of two years, does not necessarily correspond to the term of office of the Commissioner responsible for communication strategy and it has not been established that on expiry of the latter’s term of office heads of representation normally have their secondment terminated.
77 Thirdly, the Commission has asserted that the rule laid down in Article 38(g) of the Staff Regulations, which states that when his secondment ends an official is at once to be reinstated in the post formerly occupied by him, makes it possible to resolve the difficulties arising as a result of the impossibility of arranging a mobility procedure comparable to that provided for in respect of officials posted to third countries. While there are undoubtedly practical difficulties linked to the mobility of heads of representation, the applicability of the secondment arrangement should not be made dependent on the operational advantage of applying such an arrangement to a certain category of officials. In other words, the applicability of the second indent of Article 37, first paragraph, (a), of the Staff Regulations depends solely on the conditions laid down in that provision, and not at all on the administrative consequences that stem from its application. Any other interpretation would amount to allowing recourse to Article 37 of the Staff Regulations for a purpose other than that for which it was intended and thus legitimise an abuse of process.
78 Fourthly, as the Commission moreover acknowledged at the hearing, the selection procedure for heads of representation seconded to assist the Commissioner responsible for communication strategy, the arrangement for which is set out in the memoranda from the Director-General of DG Personnel and Administration of 20 April and 26 May 2005, is clearly not so different, in terms of its unwieldy structure, from the selection procedure for middle management staff as provided in Articles 8 and 14(2) of the Middle Management Decision, the main difference lying in the designation of the appointing authority. In the first case, as it concerns the appointment of a head of representation in Grade AD 12, the appointing authority is the Commissioner responsible for personnel and administration, in agreement with the President of the Commission and the Commissioner responsible for communication strategy; in the second case, under Article 14(2) of the Middle Management Decision, it is the Director-General for Press and Communication.
79 The systematic organisation of a selection procedure for the secondment of an official to assist a Commissioner, comparable to the one organised to fill middle management posts, is difficult to reconcile with the discretion which, in principle, a Commissioner has in choosing the advisers who are seconded to assist him or her.
80 Fifthly and lastly, the Commission asserts that, in any event, since the applicant was excluded from the selection procedure right from the stage at which the candidates’ files were examined by the pre-selection panel, he has no interest in seeking annulment of the contested decision, given that the composition of the panel would still have been the same if the Middle Management Decision had applied.
81 In that regard, it should be pointed out that the Commission explained, both in its defence and at the hearing, that all the applications were submitted to the Advisory Committee on Appointments and the three Cabinets of the Commissioners concerned, even after the pre-selection and selection panels had finished their work, so that the assessments of those panels could not have prejudged the appointing authority’s final assessment. In those circumstances, the fact that the applicant’s application was eliminated at the pre-selection stage does not deprive the applicant of any interest in challenging the validity of the procedure that followed, since the three Cabinets of Commissioners were involved before the appointment was decided. Furthermore, the applicant retains a legal interest in bringing proceedings in order to prevent the unlawfulness in question recurring in connection with another similar selection procedure (see, to that effect, Case C-362/05 P Wunenburger v Commission [2007] ECR I‑4333, paragraph 50, and Case T-370/03 Wunenburger v Commission [2005] ECR-SC I‑A‑189 and II‑853, paragraph 20).
82 It is apparent from the foregoing, without the need to consider the other complaints covered by the first plea and the other pleas raised by the applicant, that in the present case the Commission unlawfully applied the second indent of Article 37, first paragraph, (a), of the Staff Regulations instead of Articles 7 and 29 of those regulations in respect of the appointment of the head of representation in Athens and hence the contested decision must be annulled because it was adopted on the basis of a procedure which was itself unlawful, in particular, on the ground of lack of competence.
Costs
83 Under Article 122 of the Rules of Procedure of the Tribunal, the provisions of Title 2, Chapter 8, of those rules on costs apply only to cases brought before the Tribunal from the date on which those rules enter into force, namely, 1 November 2007. The relevant provisions of the Rules of Procedure of the Court of First Instance continue to apply mutatis mutandis to cases pending before the Tribunal before that date.
84 Under Article 87(2) of the Rules of Procedure of the Court of First Instance, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. As the Commission has been unsuccessful, it should be ordered to pay all the costs, in accordance with the form of order sought by the applicant.
On those grounds,
THE TRIBUNAL (Second Chamber)
hereby:
1. Annuls the Decision of the Commission of the European Communities of 21 December 2006 rejecting the application of Mr Menidiatis for the vacant post of Head of the Commission’s Representation in Athens (Greece) and appointing Mr P. to the post.
2. Orders the Commission of the European Communities to pay all the costs.
Kanninen | Kreppel | Van Raepenbusch |
Delivered in open court in Luxembourg on 2 April 2009.
The text of the present decision and those of the decisions of the Community Courts cited in it which have not yet been published in the European Court Reports are available on the internet site of the Court of Justice: www.curia.europa.eu