JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(Second Chamber)

2 April 2009

Case F-129/07

Georges-Stravros Kremlis

v

Commission of the European Communities

(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)

Application: brought under Articles 236 EC and 152 EA, in which Mr Kremlis seeks annulment of the decision of 21 December 2006 rejecting his application for the vacant post of Head of the Commission’s Representation in Athens (Greece) and appointing Mr P. to that post.

Held: There is no need to adjudicate on the claim for annulment of the Commission’s decision of 21 December 2006 in so far as it appoints Mr P. to the vacant post of Head of the Commission’s Representation in Athens (Greece). The Commission’s decision of 21 December 2006 is annulled in so far as it rejects the applicant’s application for the vacant post of Head of the Commission’s Representation in Athens. The Commission is ordered to pay all the costs.

Summary

1.      Officials – Secondment in the interests of the service

(Staff Regulations, Art. 37, first para., (a), second indent)

2.      Officials – Actions – Interest in bringing proceedings – Action brought against the rejection of an application for a post of Head of Representation at the Commission – Application rejected on the basis of an inappropriate procedure – Admissibility

1.      The ‘sensitive political nature’ of the duties carried out by the Commission’s heads of representation is not in itself sufficient 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.

Furthermore, 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. The facts that reports drawn up by a head of representation are sent directly to the Commissioner responsible, that telephone contacts, exchanges of emails 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 and the head of representation concerned is intuitu personae.

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.

(see paras 74, 77, 79, 81)

2.      For posts of head of representation at the Commission, the power to appoint is held by the Commission’s Director-General for Communication, while for the same posts, where the head of representation is seconded to the office of a Member of the Commission, the power to appoint belongs to the Member of the Commission responsible for personnel and administration, in agreement with the Commission President, in accordance with the decision of the appointing authority. Since that distinction is in itself likely to influence the outcome of any appointment procedure, an applicant whose application should have been assessed as part of one of those procedures and was rejected on the basis of the other retains a legal interest in bringing proceedings in order to prevent the unlawfulness in question recurring in connection with another similar selection procedure.

(see para. 85)

See:

C-362/05 P Wunenburger v Commission [2007] ECR I‑4333, para. 50

T-370/03 Wunenburger v Commission [2005] ECR-SC I‑A‑189 and II‑853, para. 20