JUDGMENT OF THE COURT OF FIRST INSTANCE (Third Chamber)

7 February 2007

Joined Cases T-118/04 and T-134/04

Giuseppe Caló

v

Commission of the European Communities

(Officials – Reassignment of a Director as a Principal Adviser – Interest of the service – Equivalence of posts – Reorganisation of Eurostat – Appointment to a position as Director – Notice of vacancy – Duty to state reasons – Assessment of the candidates’ merits – Action for annulment – Action for damages)

Application: first, for annulment of the Commission’s decision of 9 July 2003 to reassign the applicant from a post as Director to a post as Principal Adviser and of the Commission’s decision of 1 October 2003 reorganising Eurostat, in so far as it confirms the applicant’s reassignment, and for compensation for the non-material harm allegedly suffered by the applicant; and, secondly, annulment of the Commission’s decision of 30 March 2004 appointing Mr N to the post of Director of the Eurostat directorate ‘Agriculture, fisheries, structural funds and environment statistics’ and rejecting the applicant’s candidature for that post.

Held: In Case T‑118/04, the Commission is ordered to pay the applicant the sum of EUR 1 by way of damages for breach of administrative duty. In Case T-134/04, the Commission is ordered to pay the applicant the sum of EUR 5 000 by way of damages for breach of administrative duty. The actions are dismissed as to the remainder. In Case T‑118/04, the Commission is ordered to bear its own costs inclusive of those of the proceedings for interim relief before the Court of First Instance, and one fifth of the costs incurred by the applicant inclusive of those of the proceedings for interim relief before the Court of First Instance. In Case T‑118/04, the applicant is ordered to bear four fifths of its own costs inclusive of those of the proceedings for interim relief before the Court of First Instance. In Case T-134/04, the Commission is ordered to pay all of the costs inclusive of those of the proceedings for interim relief before the Court of First Instance.

Summary

1.      Officials – Transfer – Reassignment – Difference

(Staff Regulations, Arts 4, 7(1) and 29)

2.      Officials – Appointing authority – Exercise of powers

(Staff Regulations, Art. 2(1))

3.      Officials – Organisation of departments – Assignment of staff

(Staff Regulations, Art. 7(1))

4.      Officials – Organisation of departments – Assignment of staff

(Staff Regulations, Art. 7(1))

5.      Officials – Organisation of departments – Assignment of staff

(Staff Regulations, Art. 7(1))

6.      Officials – Non-contractual liability of the institutions – Breach of administrative duty

7.      Officials – Notice of vacancy – Subject-matter

(Staff Regulations, Art. 29(1))

8.      Officials – Vacancy – Consideration of candidates’ comparative merits

(Staff Regulations, Art. 29(1))

9.      Officials – Recruitment – Post for which college of Commissioners has power of appointment

(Staff Regulations, Art. 14)

10.    Officials – Decision adversely affecting an official – Rejection of an application

(Staff Regulations, Arts 90(2) and 91(2) and (4))

1.      It is clear from the general scheme of the Staff Regulations that there is a transfer in the strict sense of the term only where an official is transferred to a vacant post. It follows that any transfer, properly so-called, is subject to the formalities prescribed by Articles 4 and 29 of the Staff Regulations. In contrast, these formalities do not apply when an official is reassigned with his post, because such a transfer does not give rise to a vacant post.

However, decisions to reassign are subject, like transfers, as regards the protection of the rights and legitimate interests of the officials concerned, to the rules of Article 7(1) of the Staff Regulations inasmuch as, inter alia, the reassignment of officials may take place only in the interests of the service and in conformity with the principle of equivalence of posts.

(see paras 49, 53, 99)

See: 161/80 and 162/80 Carbognani and Coda Zabetta v Commission [1981] ECR 543, para. 21; 19/87 Hecq v Commission [1988] ECR 1681, para. 6; C‑116/88 and C‑149/88 Hecq v Commission [1990] ECR I‑599, para. 11; C‑398/93 P Rasmussen v Commission [1994] ECR I‑4043, para. 11; T-98/96 Costacurta v Commission [1998] ECR-SC I‑A‑21 and II‑49, para. 36; T‑23/96 De Persio v Commission [1998] ECR-SC I‑A‑483 and II‑1413, para. 79; T‑100/00 Campoli v Commission [2001] ECR-SC I‑A‑71 and II‑347, para. 29; T‑103/01 Cwik v Commission [2002] ECR-SC I‑A‑229 and II‑1137, para. 30

2.      A sub-delegation or deviation from the criteria for division of the powers conferred by the Staff Regulations on the appointing authority cannot render void an act done by the administration unless such sub-delegation or deviation involves the possibility of adversely affecting one of the guarantees given to officials by the Staff Regulations or the principles of good administration in staff management.

Therefore, the fact that, in a particular situation where there are presumed to have been serious irregularities within the administration, a decision to reassign an official was taken by the college of Commissioners, whereas the institution had delegated that power to the director-general of the official concerned pursuant to Article 2 of the Staff Regulations, is not such as to render that decision void. In such a situation, the fact that the decision was taken by the delegating authority which originally held that power must be regarded as providing greater protection for the interests of the reassigned official. Moreover, it is consistent with the principle of good administration for one single authority to take both the administrative measures needed to respond to the seriousness of the situation and the staff management decisions which it deems necessary. Finally, special circumstances such as a situation of presumed management irregularities entirely justify an exceptional departure from the aim of sound administrative management and rational use of human resources pursued by the delegation of powers under Article 2 of the Staff Regulations, which promotes the movement of responsibility towards levels more directly involved in the management of requirements.

(see paras 66-68, 70-71)

See: 46/72 De Greef v Commission [1973] ECR 543, paras 18 and 21; 49/72 Drescig v Commission [1973] ECR 565, paras 10 and 13; De Persio v Commission, paras 110 to 112

3.      Where it becomes apparent that irregularities have been committed within a directorate-general, the administration does not commit a manifest error of assessment in considering that it is justified in the interest of the service to withdraw all the directors from their management duties and to reassign them to positions as principal advisers in order to ensure that the inquiries into those irregularities, and particularly the investigations to assess any part they may have played in those irregularities, are conducted impartially and properly. It makes no difference in that respect, given that the objective is not to punish the directors or to prevent the irregularities from continuing, that the inquiries showed that a director was not found to have committed any breach of obligations, since that fact cannot, in any event, be reasonably relied on by the director against the decision to reassign him, which must be assessed in the light of matters of law and of fact which existed on the date when that decision was taken.

That assessment is not called into question by the allegation that the Commission and, more particularly, some of its Members had their own interest in the matter and were guilty of not taking the necessary measures in good time after having been informed that there were serious suspicions of irregularities in the management of the directorate-general in question, since provided that a decision has not been judged to be contrary to the interests of the service, there can be no question of any misuse of power.

(see paras 108, 110-111, 114-115)

See: T‑59/91 and T‑79/91 Eppe v Commission [1992] ECR II‑2061, para. 57; T‑73/96 Forcat Icardo v Commission [1997] ECR-SC I‑A‑159 and II‑485, para. 39; Campoli v Commission, para. 63; T‑124/01 and T‑320/01 Del Vaglio v Commission [2003] ECR-SC I‑A‑157 and II‑767, para. 77

4.      The lawfulness of a reassignment decision taken in accordance with the interest of the service is not, in itself, affected by the fact that its disclosure to the public by the administration might have wrongly given the impression that the reassigned official might be guilty or, at the very least, suspected of having been involved in irregularities. That fact may nevertheless be a relevant factor in the consideration of a claim for compensation brought by the official concerned.

(see paras 120-121)

5.      Provided that a mere measure of internal organisation taken in the interest of the service, such as a reassignment, does not affect the official’s position under the Staff Regulations or infringe the principle that the post to which he is assigned should correspond to his grade, it need be neither preceded by a hearing of the official concerned nor accompanied by a statement of reasons.

(see paras 122, 126, 142)

See: C-116/88 and C-149/88 Hecq v Commission, para. 14; Cwik v Commission, para. 62

6.      The administration commits a breach of administrative duty which gives rise to its liability where it gives the impression, in a press release freely available to the public, that an official who is being reassigned in the interest of the service was involved in certain irregularities, even if that reassignment decision is not, in itself, unlawful. Such a breach causes non-material harm to the official in question in that he is placed in the situation of having continually to justify himself to his colleagues and to persons outside the department.

(see paras 155-157)

7.      Although notices of vacancy must inform those concerned as precisely as possible of the type of conditions required to occupy the post in question, a notice of vacancy relating to a grade A 2 post may, in laying down those conditions, leave the appointing authority a certain discretion in view of the importance of the position to be filled. It follows that, provided that a notice of vacancy for a grade A 2 director’s post lists sufficiently specific requirements to enable the appointing authority to assess the comparative merits of the various candidates, the fact that it was worded in exactly the same terms as other notices published on the same day for other posts at the same grade, but with different responsibilities, does not constitute evidence that it is unlawful.

(see paras 180-181, 183)

See: T‑178/95 and T‑179/95 Picciolo and Caló v Committee of the Regions [1997] ECR-SC I‑A‑51 and II‑155, para. 87; T‑95/01 Coget and Others v Court of Auditors [2001] ECR-SC I‑A‑191 and II‑879, para. 67

8.      As regards the determination of any error in the choice of an official for a grade A 2 post, which entails considerable responsibilities, such an error must be manifest and must exceed the wide discretion enjoyed by the appointing authority in comparing the merits of candidates and in assessing the interests of the service. The Court’s review must be confined to the question whether, having regard to the considerations which influenced that authority in making its assessment, the latter remained within reasonable bounds and did not use its power in a manifestly incorrect way or for purposes other than those for which that power was conferred on it. The Court cannot therefore substitute its assessment of the merits and qualifications of the candidates for that of the appointing authority where there is nothing in the file to suggest that, in assessing those merits and qualifications, the authority in question committed a manifest error.

Those principles apply particularly where the Court is required to verify that the candidate selected to fill the vacant post did in fact satisfy the conditions laid down in the notice of vacancy and, in particular, that he possesses professional experience corresponding to the level required by the notice of vacancy. In that respect, the fact that the applicant satisfied those conditions does not in itself prove that the appointing authority committed a manifest error of assessment in appointing another candidate to the post in question, nor does the fact that the applicant’s professional experience was greater than that of the candidate selected constitute such proof.

In particular, the appointing authority does not exceed its wide discretion where it considers that a candidate who has been chef de cabinet for a Member of the Commission, because of his experience in that post and given that a cabinet is an administrative unit of around 10 staff, fulfils the condition that he must have the recognised ability to run a major administrative unit, since that condition refers not to the actual running of such an entity, but to the recognised ability to run it, which may result from experience and factors which do not necessarily consist in having led a large number of staff.

(see paras 205, 209, 212-213)

See: Picciolo and Caló v Committee of the Regions, para. 85; T‑6/96 Contargyris v Council [1997] ECR-SC I‑A‑119 and II‑357, para. 120; Coget and Others v Court of Auditors, paras 92 and 124; T‑158/01 Tilgenkamp v Commission [2002] ECR-SC I‑A‑111 and II‑595, para. 59; T‑240/01 Cougnon v Court of Justice [2003] ECR-SC I‑A‑263 and II‑1283, para. 97

9.      It is not an infringement of Article 14 of the Staff Regulations if a chef de cabinet of a Member of the Commission who is a candidate for a post to which the college of Commissioners has the power of appointment does not attend the meeting of the group of chefs de cabinet which is to prepare for the taking of that decision and is replaced by another member of the same cabinet. Neither Article 14 of the Staff Regulations nor any other rule of law requires that, where an official refrains from deciding on a matter in the handling or outcome of which he has a personal interest, all the officials under his hierarchical authority must also refrain from doing so. Moreover, the mere fact that that official belonged to a body involved in the preparation of the decision to appoint is not relevant and does not permit the inference that he was ‘called upon’, within the meaning of Article 14 of the Staff Regulations, to take a position on the adoption of that decision, when he did not take part in its preparation and it was, in any event, taken definitively by the college of Commissioners.

(see paras 246-248)

10.    In a situation where an appeal is lodged on the basis of Article 91(4) of the Staff Regulations against a decision to reject a candidature without a statement of reasons, the appointing authority, in order to remedy that omission, may provide a statement of reasons for the decision after the appeal is lodged as long as the appeal is suspended until such time as an express or implied decision rejecting the complaint is taken. However, at the end of the period of four months from the lodging of the complaint, provided for in Article 90(2) of the Staff Regulations, which marks the point at which an implied decision rejecting the complaint is deemed to have been taken and the proceedings before the Community judicature are resumed, the absence of a statement of reasons can no longer be covered by explanations provided by the appointing authority.

In fact, at the end of the period referred to, the applicant is in exactly the same situation as he would have been had he not availed himself of the possibility provided for in Article 91(4), but had contested that implied decision rejecting his complaint, pursuant to Article 91(2) of the Staff Regulations, on the day when it was taken, in which case the response to the complaint, received after the lodging of the appeal, would not have remedied the absence of a statement of reasons. An interpretation that, in the case of an appeal on the basis of Article 91(4) of the Staff Regulations, the appointing authority might provide a statement of reasons not only after the appeal has been filed, but even after the expiry of the period of four months after the complaint has been lodged, would place the administration in a more favourable position than in the case of an appeal under Article 91(2). In addition to the fact that Article 91(4) makes no provision at all for that possibility, there is no objective reason that would justify that difference. On the contrary, where the appointing authority is informed that an official has availed himself of the possibility provided for in Article 91(4) and that an appeal is pending before the Community judicature, it must be very strictly required to provide a statement of reasons for the contested decision in good time.

(see paras 272-274)

See: 195/80 Michel v Parliament [1981] ECR 2861, para. 22; C‑115/92 P Parliament v Volger [1993] ECR I‑6549, para. 23; C‑150/03 P Hectors v Parliament [2004] ECR I‑8691, para. 50; T‑25/92 Vela Palacios v ESC [1993] ECR II‑201, para. 25; T-351/99 Brumter v Commission [2001] ECR-SC I‑A‑165 and II‑757, para. 33; T‑117/01 Roman Parra v Commission [2002] ECR-SC I‑A‑27 and II‑121, para. 26; T‑281/01 Huygens v Commission [2004] ECR-SC I‑A‑203 and II‑903, para. 108