Achim Kratz contra Comisión de las Comunidades Europeas.

• Jurisdiction: European Union
• Celex Number: 61994TJ0010
• ECLI: ECLI:EU:T:1995:87
• Date: 17 May 1995
• Docket Number: T-10/94
• Procedure Type: Recurso de funcionarios - fundado
• Court: General Court (European Union)

Avis juridique important

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61994A0010

Judgment of the Court of First Instance (Fourth Chamber) of 17 May 1995. - Achim Kratz v Commission of the European Communities. - Vacancy notice - Level of the post to be filled - Set by the appointing authority after consulting the Advisory Committee on Appointments - Rejection of candidatures. - Case T-10/94.

European Court reports 1995 Page II-01455
Page IA-00099
Page II-00315

Summary
Parties
Grounds
Decision on costs
Operative part

Keywords

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Officials ° Organization of departments ° Determination of the level at which a post is to be filled ° Heads of units ° Discretion of the administration ° Publication of an A 3/A 4/A /5 vacancy notice and setting of the level at which the post was to be filled after the candidatures had been received ° Unlawful

(Staff Regulations, Arts 29(1)(a) and 45(1))

Summary

Since Article 7 of the Staff Regulations and Annex I thereto do not require posts of head of unit necessarily to be filled at Grade A 3 and since the requirement that the post must correspond to the grade does not mean that the institutions are obliged to define the duties attaching to each basic post in the same terms, there is nothing to prevent posts of head of unit from being filled at Grade A 3, A 4 or A 5, depending on the importance of the tasks entrusted to the unit concerned.

However, a procedure for filling head of unit posts which consists of publishing an A 3/A 4/A /5 vacancy notice and deciding the level at which the post in question is to be filled after the candidatures have been received and once the authority which is to take that decision is thus already acquainted with both the identities and files of the various candidates is illegal. Such a procedure runs counter to the requirement that the level at which a post is to be filled should be set objectively, having regard solely to the interests of the service, by reference to its importance, irrespective of the qualifications of the candidate or candidates. It may also lead to the rejection of a candidate, once the level of the post has been fixed, without any examination of his merits, simply because in the light of his grade he cannot seek to be appointed, whereas the notice of vacancy gave him that opportunity. By virtue of Articles 29(1)(a) and 45(1) of the Staff Regulations, the appointing authority is obliged to consider the comparative merits of the candidates within the self-imposed limits of legality set by the vacancy notice.

Parties

In Case T-10/94,

Achim Kratz, an official of the Commission of the European Communities, residing in Tervuren (Belgium), represented by Nicholas Lhoëst, of the Brussels Bar, with an address for service in Luxembourg at the Chambers of Fiduciaire Myson S.à.r.l., 1 Rue Glesener,

applicant,

v

Commission of the European Communities, represented by Joseph Griesmar, Legal Adviser, acting as Agent, and, in the oral procedure, by Gianluigi Valsesia, Principal Legal Adviser, acting as Agent, with an address for service in Luxembourg at the office of Georgios Kremlis, of its Legal Service, Wagner Centre, Kirchberg,

defendant,

APPLICATION for annulment of the decision of the Commission of 3 May 1993 not to accept the applicant' s candidature for the post of Head of the Unit "Health and Aids programmes",

THE COURT OF FIRST INSTANCE

OF THE EUROPEAN COMMUNITIES (Fourth Chamber),

composed of: K. Lenaerts, President, R. Schintgen and P. Lindh, Judges,

Registrar: B. Pastor, Administrator,

having regard to the written procedure and further to the hearing on 15 March 1995

gives the following

Judgment

Grounds

Facts

1 On 21 January 1993 a notice that a management post was vacant was published in respect of the post of Head of the Unit "Health and cancer programmes" ("the vacancy notice"). On 28 January 1993 it was rectified in order to replace the word "cancer" with the word "Aids". That vacancy notice contained a single specification: "COM/003/93 A 3/A 4/A 5 VIII.8 BRU Head of the Unit 'Health and Aids programmes' , with responsibility for directing and coordinating the work". It was preceded by a standard text which reads:

"In accordance with the procedure for filling posts published in Administrative Notices No 556 of 18. 4. 1988 and No 578 of 5. 12. 1988

Minimum qualifications required in order to apply for internal transfer/promotion:

° being in the same category/service/career-bracket as the COM (internal transfer);

° being in the career-bracket below that of the COM (promotion, in accordance with Article 45 of the Staff Regulations);

° knowledge and experience/abilities appropriate to the tasks to be carried out;

° for posts requiring particular qualifications: thorough knowledge and experience of/connected with the relevant sector".

2 The applicant, who is an official in Grade A 3, applied for that post, as did another official in Grade A 3, two officials in Grade A 5 and one official in Grade A 6.

3 On 18 March 1993 the Advisory Committee on Appointments ("ACA") gave its opinion in four sections. In the first, it took formal notice of the fact that "five candidates have applied under Article 29(1)(a) of the Staff Regulations, namely ..." It then goes on to state that "the committee has examined the application of each candidate under Article 29(1)(a) of the Staff Regulations and their personal files". In the second section, it states that "the committee then heard the views of Mr Pooley, Deputy Director-General for Development, at the meeting on 18 March 1993. He said that the post to be filled should be at A 5/A 4 level and, on the basis of the vacancy notice, specified the qualifications required for the post". The third section notes: "First of all the committee examined the level at which the post should be filled, having regard to the particular importance of the unit in terms of its tasks and size, and reached the conclusion that the level ought to be A 5/A 4". The fourth section states: "Having regard to those views, the committee examined the candidatures of Mrs Dellicour and Mr Sweet and came to the conclusion that Mrs Dellicour' s candidature should be considered".

4 By letter of 24 March 1993, the secretary of the ACA informed the applicant as follows:

"Following publication of the post of Head of Unit COM/003/93, five candidatures were submitted under Article 29(1)(a) of the Staff Regulations.

At its meeting on 18 March 1993, the Advisory Committee on Appointments considered the level at which the post should be filled and the qualifications necessary for the post; it then examined all the candidatures and went on to hear the views of Mr Pooley, Deputy Director-General for Development.

On completion of those proceedings, the committee reached the following conclusion:

° the post of Head of the Unit 'Health and Aids programmes' should be filled at A 5/A 4 level;

° your candidature could not therefore be taken into consideration on this occasion".

5 By decision of 27 April 1993, the appointing authority appointed Mrs Dellicour to the post of Head of the Unit "Health and Aids programmes" by way of internal transfer.

6 By memorandum dated 3 May 1993, the applicant was informed that "the appointing authority was unable to accept (his) candidature for the post to be filled".

7 On 18 May 1993 the applicant submitted a complaint seeking in the first place "the annulment of the decision of the Advisory Committee on Appointments adopted on 24 March 1993 and of the decision of the appointing authority adopted on 3 May 1993 rejecting (his) candidature"; "in addition, the annulment of any decision appointing an official taken by the appointing authority or by the Advisory Committee on Appointments as a result of Vacancy Notice COM/003/93 of 21 January 1993 concerning the post at issue"; "to have his candidature for the post at issue reconsidered on the basis of the same criteria as those set out in Vacancy Notice COM/003/93 of 21 January 1993". In support of his complaint, the applicant claimed, first, that the ACA was not empowered to take a decision rejecting his candidature since it is, by definition, a consultative body and, secondly, that the ACA had unlawfully amended the qualifications originally required...