Court of Justice of the European Communities (including Court of First Instance Decisions)

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1 . OFFICIALS - APPLICATIONS TO THE COURT - GROUNDS - MISUSE OF POWERS - MEANING OF TERM
2 . OFFICIALS - PROMOTION - DISCRETION OF THE ADMINISTRATION - REVIEW BY THE COURT - LIMITS
( STAFF REGULATIONS OF OFFICIALS, ART . 45 ( 1 ) )

1 . A DECISION MAY AMOUNT TO A MISUSE OF POWERS ONLY IF IT APPEARS, ON THE BASIS OF OBJECTIVE, RELEVANT AND CONSISTENT INDICATIONS, TO HAVE BEEN TAKEN FOR PURPOSES OTHER THAN THOSE STATED .
2 . IN EXAMINING THE COMPARATIVE MERITS OF CANDIDATES AS REQUIRED BY ARTICLE 45 ( 1 ) OF THE STAFF REGULATIONS, WHERE IT INTENDS TO FILL A VACANT POST BY WAY OF PROMOTION, THE APPOINTING AUTHORITY HAS A WIDE DISCRETION . IN EXERCISING ITS SUPERVISORY JURISDICTION THE COURT MUST RESTRICT ITSELF TO THE QUESTION WHETHER, HAVING REGARD TO THE CONSIDERATIONS WHICH GUIDED ITS ASSESSMENT, THE ADMINISTRATION KEPT WITHIN REASONABLE BOUNDS AND DID NOT EXERCISE ITS POWER IN A MANIFESTLY ERRONEOUS MANNER .

IN CASE 52/86
TERESA BANNER, AN OFFICIAL OF THE EUROPEAN PARLIAMENT, REPRESENTED BY MARC BADEN, OF THE LUXEMBOURG BAR,
APPLICANT,
V
EUROPEAN PARLIAMENT, REPRESENTED BY FRANCESCO PASETTI BOMBARDELLA, JURISCONSULT, AND MANFRED PETER, HEAD OF DIVISION, ASSISTED BY ALEX BONN, OF THE LUXEMBOURG BAR,
DEFENDANT,
APPLICATION FOR THE ANNULMENT OF THE DECISION OF 17 JULY 1985 OF THE DIRECTOR-GENERAL FOR ADMINISTRATION, PERSONNEL AND FINANCE OF THE EUROPEAN PARLIAMENT FILLING VACANT POST NO V/B/1647 ON THE BASIS OF VACANCY NOTICE NO 4615 .
THE COURT ( THIRD CHAMBER )
COMPOSED OF : Y . GALMOT, PRESIDENT OF THE CHAMBER, U . EVERLING AND J.*C . MOITINHO DE ALMEIDA, JUDGES,
ADVOCATE GENERAL : C . O . LENZ
REGISTRAR : H . A . RUEHL, PRINCIPAL ADMINISTRATOR
HAVING REGARD TO THE REPORT FOR THE HEARING AND FURTHER TO THE HEARING ON 11 DECEMBER 1986,
AFTER HEARING THE OPINION OF THE ADVOCATE GENERAL DELIVERED AT THE SITTING ON 5 FEBRUARY 1987,
GIVES THE FOLLOWING
JUDGMENT

1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 21 FEBRUARY 1986, TERESA BANNER, AN OFFICIAL IN GRADE B 1 IN THE DIRECTORATE-GENERAL FOR RESEARCH AND DOCUMENTATION, LIBRARY DEPARTMENT, OF THE EUROPEAN PARLIAMENT, BROUGHT AN ACTION FOR THE ANNULMENT OF THE DECISION OF 17 JULY 1985 OF THE DIRECTOR-GENERAL FOR ADMINISTRATION, PERSONNEL AND FINANCE APPOINTING ANOTHER OFFICIAL, MR FUMAGALLI, TO POST V/B/1647, A POST OF PRINCIPAL ASSISTANT ( GRADE B 1 ) IN THE HUMAN RIGHTS DEPARTMENT OF THE ABOVEMENTIONED DIRECTORATE .
2 IT APPEARS FROM THE DOCUMENTS BEFORE THE COURT THAT THE POST HAD BEEN OCCUPIED BY MR FUMAGALLI, AN OFFICIAL IN GRADE B 2, ON A PROVISIONAL BASIS SINCE 13 OCTOBER 1984 . BY VACANCY NOTICE NO 4615, DATED 3 JUNE 1985, THE PARLIAMENT INITIATED THE PROCEDURE FOR FILLING THAT POST BY PROMOTION OR TRANSFER . ELEVEN PERSONS, INCLUDING THE APPLICANT, APPLIED FOR THE POST . EIGHT OF THEM WERE CANDIDATES FOR PROMOTION, INCLUDING MR FUMAGALLI, WHO HAD BEEN ON THE LIST OF CANDIDATES FOR PROMOTION SINCE 1984 . ON 20 JUNE 1985 THE LIST OF CANDIDATES WAS SENT TO THE DIRECTOR-GENERAL FOR RESEARCH AND DOCUMENTATION AND ON 4 JULY 1985 HE PROPOSED THE APPOINTMENT OF MR FUMAGALLI, ON THE GROUND THAT HE ALREADY HAD "THE EXPERIENCE AND QUALIFICATIONS REQUIRED FOR THIS POST IN A SPECIFIC FIELD ". BY THE DECISION OF 17 JULY 1985, REFERRED TO ABOVE, MR FUMAGALLI WAS APPOINTED TO THE POST .
3 REFERENCE IS MADE TO THE REPORT FOR THE HEARING FOR THE FACTS AND THE SUBMISSIONS AND ARGUMENTS OF THE PARTIES, WHICH ARE MENTIONED OR DISCUSSED HEREINAFTER ONLY IN SO FAR AS IS NECESSARY FOR THE REASONING OF THE COURT .
4 ACCORDING TO THE APPLICANT, THE DECISION IN QUESTION CONSTITUTES A MISUSE OF POWERS IN SO FAR AS IT SERVED ONLY TO "REGULARIZE" MR FUMAGALLI' S POSITION . SHE POINTS OUT THAT MR FUMAGALLI WAS ASSIGNED TO THE POST IN QUESTION ON 13 OCTOBER 1984 AND THAT THE APPOINTING AUTHORITY DID NOT PUBLISH THE VACANCY NOTICE UNTIL 3 JUNE 1985, MORE THAN SEVEN MONTHS LATER . SHE ALSO REFERS TO STATEMENTS TO THAT EFFECT MADE TO HER BY THE DIRECTOR-GENERAL FOR RESEARCH AND DOCUMENTATION, MR TAYLOR . CONSEQUENTLY, THE APPLICANT CONSIDERS THAT THE APPOINTING AUTHORITY DID NOT CONSIDER THE COMPARATIVE MERITS OF THE CANDIDATES; SUCH CONSIDERATION WOULD HAVE SHOWN THAT SHE HAD THE BEST QUALIFICATIONS FOR THE POST IN QUESTION .
5 THE PARLIAMENT DENIES THAT THERE WAS ANY MISUSE OF POWERS AND OBSERVES THAT THE APPLICANT HAS PUT FORWARD NO EVIDENCE IN SUPPORT OF HER SUBMISSION . IT STATES THAT THE BELATED PUBLICATION OF THE VACANCY NOTICE WAS DUE TO "ADMINISTRATIVE DELAYS ". FINALLY, IT SUBMITS THAT, CONTRARY TO THE APPLICANT' S ASSERTIONS, THE APPOINTING AUTHORITY DID COMPARE THE MERITS OF THE CANDIDATES AND COMPLY WITH THE CONDITIONS LAID DOWN IN THE VACANCY NOTICE .
6 IT SHOULD FIRST BE NOTED THAT, AS THE COURT HAS REPEATEDLY HELD, A DECISION MAY AMOUNT TO A MISUSE OF POWERS ONLY IF IT APPEARS, ON THE BASIS OF OBJECTIVE, RELEVANT AND CONSISTENT INDICATIONS, TO HAVE BEEN TAKEN FOR PURPOSES OTHER THAN THOSE STATED ( SEE IN PARTICULAR THE JUDGMENT OF 21 JUNE 1984 IN CASE 69/83 LUX V COURT OF AUDITORS (( 1984 )) ECR 2447 ).
7 THERE ARE NO SUCH INDICATIONS IN THIS CASE . ALTHOUGH IT WOULD HAVE BEEN PREFERABLE FOR THE VACANCY NOTICE FOR THE POST IN QUESTION TO HAVE BEEN PUBLISHED SOONER, AND ALTHOUGH THE OCCUPATION OF THE POST BY MR FUMAGALLI WAS INDEED LIKELY TO GIVE HIM AN ADVANTAGE IN A SUBSEQUENT PROCEDURE FOR FILLING THE POST, THOSE CIRCUMSTANCES ARE NOT SUFFICIENT TO SHOW THAT THE PARLIAMENT DID IN FACT USE THE PROMOTION PROCEDURE FOR A PURPOSE OTHER THAN THAT OF APPOINTING THE MOST SUITABLE CANDIDATE TO THE VACANT POST .
8 FURTHERMORE, THE STATEMENTS MADE TO THE APPLICANT BY THE FORMER DIRECTOR-GENERAL FOR RESEARCH AND DOCUMENTATION ARE ALSO IRRELEVANT IN THE ABOVE CONTEXT, SINCE THAT OFFICIAL WAS NO LONGER WORKING IN THE RESEARCH AND DOCUMENTATION DIRECTORATE AFTER 1 JANUARY 1985 AND WAS NOT INVOLVED IN THE PROCEDURE FOR FILLING THE POST IN QUESTION .
9 FINALLY, WITH REGARD TO THE ISSUE WHETHER OR NOT THE APPOINTING AUTHORITY EXAMINED THE COMPARATIVE MERITS OF THE CANDIDATES AS REQUIRED BY ARTICLE 45 ( 1 ) OF THE STAFF REGULATIONS, IT MUST BE POINTED OUT THAT THE APPOINTING AUTHORITY HAS A WIDE DISCRETION . IN EXERCISING ITS SUPERVISORY JURISDICTION THE COURT MUST RESTRICT ITSELF TO THE QUESTION WHETHER, HAVING REGARD TO THE CONSIDERATIONS WHICH GUIDED ITS ASSESSMENT, THE ADMINISTRATION KEPT WITHIN REASONABLE BOUNDS AND DID NOT EXERCISE ITS POWER IN A MANIFESTLY ERRONEOUS MANNER ( SEE JUDGMENT OF 12 FEBRUARY 1987 IN CASE 233/85 BONINO V COMMISSION (( 1987 )) ECR 0000 ). THERE IS NO INDICATION IN THE DOCUMENTS BEFORE THE COURT THAT THE APPOINTING AUTHORITY DEPARTED FROM THOSE REQUIREMENTS IN THIS CASE .
10 IN THE LIGHT OF THE FOREGOING CONSIDERATIONS THE ACTION MUST BE DISMISSED, AND THERE IS NO NEED TO RULE ON THE OBJECTION OF INADMISSIBILITY PUT FORWARD BY THE PARLIAMENT .

COSTS
11 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . HOWEVER, UNDER ARTICLE 70 OF THOSE RULES, INSTITUTIONS ARE TO BEAR THEIR OWN COSTS IN PROCEEDINGS BROUGHT BY SERVANTS OF THE COMMUNITIES .

On those grounds,
THE COURT ( Third Chamber )
hereby :
( 1 ) Dismisses the application;
( 2 ) Orders the parties to bear their own costs .