JUDGMENT OF THE COURT OF FIRST INSTANCE (Fourth Chamber)

10 June 2008

Case T-282/03

Paul Ceuninck

v

Commission of the European Communities

(Civil service – Officials – Appointment – Post of adviser to OLAF – Rejection of candidature – Powers of the Director-General of OLAF – Validity of vacancy notice – Breach of the rules for appointing officials in Grades A4 and A5 – Misuse of powers – Manifest error of assessment)

Application: first, for annulment of Vacancy Notice COM/051/02 and of the entire procedure pursuant to that notice and, second, for annulment of the decision appointing Ms S taken by the appointing authority on 13 September 2002 and of the implied decision rejecting the applicant’s candidature.

Held: The action is dismissed. Mr Paul Ceuninck and the Commission are to bear their own costs.

Summary

1.      European Communities – Community institutions and bodies – Exercise of powers – Delegation

(Staff Regulations, Art. 2(1))

2.      Officials – Actions – Pleas in law

3.      Officials – Recruitment – Vacancy notice – Consideration of applications with regard to conditions laid down – Administration’s discretion – Limits – Observance of the conditions laid down in the vacancy notice – Judicial review – Limits

(Staff Regulations, Art. 7(1))

1.      The European Anti-Fraud Office (OLAF) is incorporated within the Commission’s administrative and budgetary structures and, in so far as the Commission has delegated to the Director-General of OLAF the powers conferred on the appointing authority, he is competent to take decisions on appointments within OLAF.

(see para. 22)

See: C‑15/00 Commission v EIB [2003] ECR I‑7281, para. 106

2.      The concept of misuse of powers implies that an administrative authority uses its powers for a purpose other than that for which they were conferred upon it. A decision is vitiated by misuse of powers only if it appears, on the basis of specific, objective and consistent evidence, to have been taken for purposes other than those stated. It is therefore not sufficient merely to refer to certain facts in support of allegations, there must also be adduced evidence of a specific, objective and consistent nature to support their truth or, at the very least, their probability.

(see para. 48)

See: C‑274/99 P Connolly v Commission [2001] ECR I‑1611, para. 113; T‑111/99 Samper v Parliament [2000] ECR-SC I‑A‑135 and II‑611, para. 64; T‑152/00 E v Commission [2001] ECR-SC I‑A‑179 and II‑813, para. 68; T‑103/01 Cwik v Commission [2002] ECR-SC I‑A‑229 and II‑1137, paras 18 and 29

3.      The latitude available to the appointing authority regarding appointment presupposes that it must examine candidates’ files carefully and impartially and that it must have meticulous regard to the requirements laid down in the vacancy notice, so that it is required to reject any candidate who does not meet those requirements. The vacancy notice constitutes a legal framework which the appointing authority imposes on itself and to which it must have meticulous regard.

With a view to establishing whether the appointing authority exceeded the bounds of that legal framework, the Court must examine what conditions were laid down in the vacancy notice, then verify whether the candidate chosen by the appointing authority to occupy the vacant post actually satisfied those conditions, and lastly consider whether, in the light of the applicant’s abilities, the appointing authority did not commit a manifest error of assessment in giving preference to another candidate. Such an examination must however be limited to the question whether, having regard to the factors on which it based its assessment, the administration remained within reasonable bounds, following a procedure free of irregularities, and did not use its powers in a manifestly incorrect way or for purposes other than those for which they were conferred upon it. The Court cannot substitute its assessment of candidates’ qualifications for that of the appointing authority.

(see paras 65-67)

See: C‑35/92 P Parliament v Frederiksen [1993] ECR I‑991, paras 15 and 16; T‑159/96 Wenk v Commission [1998] ECR-SC I‑A‑193 and II‑593, paras 64 and 72; E v Commission, para. 29; T-174/02 Wieme v Commission [2003] ECR-SC I‑A‑241 and II‑1165, para. 38; T‑137/03 Mancini v Commission [2005] ECR-SC I‑A‑7 and II‑27, para. 92; T‑370/03 Wunenburger v Commission [2005] ECR-SC I‑A‑189 and II‑853, para. 51; T-45/04 Tzirani v Commission [2006] ECR-SC I-A-2-145 and II-A-2-681, paras 46, 48 and 49