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

'1 On 15 December 1994 the Commission published a vacancy notice (COM/151/94, the original notice) for the post of Head of the Unitresponsible for negotiating and managing the agreements on textiles, footwear of Directorate D (Sectoral commercial questions) in Directorate General I (External economic relations) (the post at issue). The notice was headed:

COM/151/94 A3/A4/A5 I/D/I Head of the Unit responsible for negotiating and managing the agreements on textiles, footwear.

2 The minimum requirements to be met by candidates wishing to transfer or be promoted to the post were as follows:

- 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.

3 The applicant, an official in grade A 4, applied with six others for the post. The appointing authority appointed Mr X to the post. The applicant was informed that he had not been successful by a note of 28 April 1995. After the complaint he lodged on 25 July 1995 had been rejected he brought on 21 February 1996 an action seeking the annulment of the decisions not to consider him for the post and to appoint Mr X to it and for compensation for material and non-material damage caused by the decisions. The Court of First Instance upheld the application for annulment and dismissed that for compensation by its judgment of 19 March 1997 in Case T-21/96 Giannini v Commission [1997] ECR-SC I-A-69 and II-211 (hereinafter the judgment of 19 March 1997).

4 In that judgment, the Court first reviewed the case-law of the Court of Justice to the effect that the exercise of the discretion which the appointing authority enjoys in the matter of appointments presupposes a meticulous examination of the application files and a careful regard for the requirements set out in the vacancy notice, so that the appointing authority must reject any candidate who does not meet those requirements. In this case, one of those requirements was to have knowledge and experience/abilities appropriate to the tasks to be carried out (third indent of the general conditions), a requirement which had to be assessed in conjunction with the description of the post, namely Head of the Unit responsible for negotiating and managing the agreements on textiles, footwear.

5 The Court went on to find that Mr X manifestly did not meet that requirement, since he did not possess, at the time when he submitted his application for the post, any experience either in the textiles or in the footwear sector, or in the general field represented by the post at issue, namely that of the common commercial policy. It also noted that the Commission had confirmed that the applicant, who had been responsible for negotiating and managing bilateral and multilateral textiles agreements of the Community for some 10 years and had been a principal negotiator of such agreements for a further five years, had good qualifications for the post.

6 The Court concluded that by appointing Mr X to the post when he did not meet one of the minimum requirements set out in the vacancy notice, while rejecting Mr Giannini's application, the Commission had, having regard to the comparative assessments which might have led to its conclusion, manifestly abused its powers and disregarded the interests of the service within the meaning of Article 7 of the Staff Regulations. Consequently, it annulled the contested decisions of the appointing authority.

7 On 10 April 1997 the Commission published a new document annulling vacancy notice COM/151/94 and publishing a new vacancy notice for the post at issue (the new vacancy notice), worded as follows:

COM/062/97 A 3 I/D/I Head of the Unit responsible for negotiating and managing the agreements on textiles; footwear; various. Preference will be given to candidates with proven experience in international negotiation and in the management of a unit.

8 That notice included the same minimum requirements as those of the original notice (see paragraph 2 above).

9 On 7 May 1997 the applicant lodged a complaint against the new notice and the withdrawal of the original notice, and an application for compensation.

10 By decision of 30 May 1997 the defendant re-appointed Mr X to the post at issue.

11 The applicant's complaint of 7 May 1997 was expressly rejected by decision of 24 July 1997, notified on 30 July 1997.

12 On 21 August 1997 the applicant lodged a complaint against the defendant's decision of 30 May 1997 appointing Mr X to the post. That complaint, too, was expressly rejected by a decision adopted by the defendant on 18 December 1997 and notified to the applicant on 6 January 1998.

The contested judgment

- the Commission's annulment of the original notice and thus the elimination of the original applicants for the post despite the fact that, far from criticising that notice, in the judgment of 19 March 1997 the Court had found that Mr X did not meet one of the minimum requirements laid down in that notice for appointment to the post at issue;

- the fact that the only essential difference between the new notice and the original one lay in the addition of two conditions regarding the 'preference to be given when selecting a candidate, which corresponded precisely to the qualifications the Court found that Mr X possessed;

- the re-appointment of Mr X, when seven other officials had applied for the post at issue.

The appeal

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