Avis juridique important

Order of the Court (Fourth Chamber) of 28 November 1996. - Susan Ryan-Sheridan v European Foundation for the Improvement of Living and Working Conditions. - Appeal - Officials - Employees of the European Foundation for the Improvement of Living and Working Conditions - Recruitment procedure - Rejection of an internal candidate. - Case C-119/96 P. European Court reports 1996 Page I-06151

Summary Parties Grounds Decision on costs Operative part

Officials ° Competitions ° Competition notices ° Purpose

(Staff Regulations of Officials, Annex III, Art. 1(1))

The basic function of a competition notice is to give those interested the most accurate information possible on the conditions of eligibility for the post to be filled, in order to enable them to determine whether they should apply for it.

In Case C-119/96 P,

Susan Ryan-Sheridan, an employee of the European Foundation for the Improvement of Living and Working Conditions, represented by Marc-Albert Lucas, of the Liège Bar, with an address for service in Luxembourg at the Chambers of Évelyne Korn, 21 Rue de Nassau,

appellant,

APPEAL against the judgment of the Court of First Instance of the European Communities (Third Chamber) of 15 February 1996 in Case T-589/93 Ryan-Sheridan v European Foundation for the Improvement of Living and Working Conditions [1996] ECR-SC II-0000, seeking to have that judgment set aside,

the other party to the proceedings being:

European Foundation for the Improvement of Living and Working Conditions, represented by Clive Purkiss, Director at the Foundation, and Terry Sheehan, Head of Administration at the Foundation, acting as Agents, assisted by Denis Waelbroeck, of the Brussels Bar, with an address for service in Luxembourg at the office of Carlos Gómez de la Cruz, of the Legal Service of the Commission of the European Communities, Wagner Centre, Kirchberg,

THE COURT (Fourth Chamber),

composed of: J.L. Murray, President of the Chamber, P.J.G. Kapteyn (Rapporteur) and H. Ragnemalm, Judges,

Advocate General: C.O. Lenz,

Registrar: R. Grass,

after hearing the Advocate General,

makes the following

Order

1 By application lodged at the Registry of the Court of Justice on 15 April 1996, Susan Ryan-Sheridan brought an appeal against the judgment of the Court of First Instance (Third Chamber) of 15 February 1996 in Case T-589/93 Ryan-Sheridan v European Foundation for the Improvement of Living and Working Conditions [1996] ECR-SC II-0000 ("the contested judgment"), in which it dismissed as unfounded the action for, first, the annulment of the vacancy notice of 25 August 1993 concerning a post as Publications Programme Manager to be filled in the Foundation, the notice of restricted competition with a view to filling that post, the memorandum of the Recruitment Committee of 5 November 1993, and the decision of 22 November 1993 of the Director of the Foundation rejecting the appellant' s candidature for that post, and second, an order requiring the Foundation to pay BFR 75 000 by way of damages.

2 The Court of First Instance made the following findings with regard to the facts giving rise to the action before it:

"1 Ms Sheridan has worked since 1979 for the European Foundation for the Improvement of Living and Working Conditions (hereinafter 'the Foundation' ) where, since 1983, she has held the post of Publications Officer in Category B. She was promoted from Grade B 3 to B 2 in January 1991 and was proposed for promotion to B 1 in the 1994 promotion procedure.

2 It appears from her staff report for the period 1 January 1990 to 31 December 1992 that she is 'responsible for the overall administration and management (including financial) of the Foundation' s publications programme' , under the authority of N.W., Head of the Documentation, Information and Dissemination section.

3 The applicant' s duties, as described in the staff report, are as follows:

' ° drawing up publication schedules, where feasible, and ensuring that these are effectively carried through;

° Secretary to the Publications Task Group (taking a proactive role in ensuring that relevant topics are fully discussed and discussion papers are made available);

° Close liaison with authors, research managers, translators, etc., to develop the products required for the various audiences;

° Overall quality control of Foundation publications by means of:

° supervising the production process of the Foundation publications, including the language versions that follow;

° design, illustration, typesetting and proof-reading of the documents for publication;

° final checking of all material (typeset or typewritten) before it goes for printing;

° Print buying, by means of:

° supplying in-house print room with reports for printing;

° supervising the choice of external printers, setting up contracts and supervising external print production through to completion;

° responsibility for the financial control of the publications budget and all associated administrative activities (visa commitments, tendering, quotations, invoices, etc.);

° responsibility for the allocation of work, supervision and training of staff working in the publications area' .

4 On 19 August 1993 the Director of the Foundation wrote a memorandum to N.W. informing him that a competition was to be organized shortly with a view to recruiting a Programme Manager in Category A 7/A 6, whose duties were described as follows:

' To be responsible for the formulation and development of policy and for a publication' s programme and its planning, organization and management, this to include:

° identifying needs for specific types of publication (paper, electronic, etc.) and, in collaboration with colleagues from information and research, contributing to the marketing and presentation of Foundation research and information in a format appropriate to the Foundation' s target audiences;

° ensuring that publications can be 'out-sourced' and marketed by such means as contractual co-publishing, publishing by licence, etc., and developing such mechanisms as an integral part of the Foundation' s publication programme in association with the services of the Office for Official Publications in Luxembourg;

° controlling quality and applying standards for the production of originals (paper, electronic, optical, etc.);

° in conjunction with colleagues, building an in-house 'resource' database of Foundation produced information, using relevant standards and protocols to allow for post editing and downloading into various formats, and seeking ways and enacting procedures for capturing existing Foundation information products;

° developing and applying systems of information control such as indexing and classification of knowledge, thesaurus building and maintenance, to enhance user access to information;

° staff management and financial budgeting for a unit of 6 to 8 staff.'

5 The memorandum referred to a competition which would initially be restricted to officials and other servants of the Community, but a general competition would also be prepared which could be held at once, if necessary. The competition was to be based on candidates' qualifications and an interview.

6 In order to be eligible, candidates were specifically required to have a university education, attested by a relevant degree or diploma, a minimum of five years' relevant practical experience, fluency in a Community language and knowledge of at least another Community language. Finally, the Recruitment Committee was to consider candidatures submitted by members of staff of other Community bodies before candidatures to take part in the general competition.

7 On 25 August 1993 the Foundation published a vacancy notice addressed to all its Category A officials eligible for transfer to the vacant post. The description of the duties relating to the vacant post repeated in its entirety that set out in the memorandum of 19 August 1993 but the vacancy notice did not require internal candidates to meet any particular conditions of eligibility. It is not a matter of dispute that no candidatures were submitted.

8 On 28 September 1993 the Foundation published a notice identical with the first, but this time addressed to all its members of staff.

9 The Foundation also published on 28 September 1993 a notice of restricted competition addressed to employees of other Community bodies. That notice described the duties relating to the vacant post as follows:

' The formulation and development of policy and strategy for a publications programme and its planning, organization and management. This will include identification of market needs for specific types of products in electronic and paper formats and developing 'in-house' or 'out-sourcing' programmes of action (including database on-line and off-line products) to meet the needs of the market.'

10 The notice of restricted competition required, moreover, that candidates should have a university education, attested by a degree or diploma relevant to the specialization, a minimum of five years' appropriate experience after graduation, a thorough knowledge of English or French and a satisfactory knowledge of a second Community language. Further details and application forms were available on request from the Secretariat of the Recruitment Committee.

11 The applicant submitted her candidature for the vacant post on 20 October 1993.

12 In a memorandum of 5 November 1993, which it sent to the Director and to the Deputy Director of the Foundation, concerning the 'results of the internal and restricted competitions' , the Recruitment Committee pointed out that it had examined, in the first place, three internal candidatures, one of which was the applicant' s, and that it had unanimously found that none of the three candidates was sufficiently qualified or experienced in the various specific areas covered by the duties described to warrant being called for interview. The Committee also pointed out that it had examined, in the second place, the external candidatures but had agreed not to continue the procedure and organize interviews but to propose instead that a general competition be held.

13 By letter of 22 November 1993, the Director of the Foundation informed the applicant that her candidature for the vacant post had been unsuccessful on the ground that the Recruitment Committee had not considered her sufficiently qualified or experienced in the various specific areas covered by the vacant post to warrant her being called for interview."

3 On 22 December 1993, the appellant lodged a complaint with the Foundation against that decision (paragraph 14 of the contested judgment).

4 It was in those circumstances that, on 28 December 1993, the appellant brought an action before the Court of First Instance together with an application for interim relief (paragraph 15).

5 By decision of 25 March 1994, the Foundation rejected the complaint (paragraph 17).

The contested judgment

6 In support of her action before the Court of First Instance, the appellant relied on eleven pleas in law which were considered in the following order:

7 First, the appellant claimed that the Foundation had infringed Article 29 of the Staff Regulations of Officials of the European Communities by not considering the possibility of filling the vacant post by way of transfer or internal promotion which could have been to her advantage.

8 Second, the principle of equal treatment was infringed since the internal notice was drafted in more specific terms than the notice of restricted competition.

9 Third, the internal notice was unlawful because the conditions for filling the vacant post were not set out accurately.

10 Fourth, the internal notice was infringed. Since the notice did not lay down any particular condition of eligibility, the Foundation could not refuse to take into consideration the appellant' s candidature on the basis of that notice.

11 Fifth, the Foundation committed a manifest error of assessment by considering that she did not possess all the abilities required for the post to be filled.

12 Sixth, the memorandum of the Recruitment Committee of 5 November 1993 and the decision rejecting the appellant' s candidature did not fulfil the obligation to state reasons.

13 Seventh, the appellant pointed out that her immediate superior, with whom she had had a personal disagreement in February 1992, was a member of the Recruitment Committee, contrary to Article 10 of Council Regulation (ECSC, EEC, Euratom) No 1860/76 of 29 June 1976 laying down the Conditions of Employment of Staff of the European Foundation for the Improvement of Living and Working Conditions (OJ 1976 L 214, p. 24).

14 Eighth, the Foundation was guilty of a misuse of powers and abuse of process inasmuch as it had given preference to an external candidate, whereas, under Article 23 of Regulation No 1860/76, the engagement of staff must be carried out in the interests of the service.

15 Ninth, the principle of the protection of legitimate expectations and the appellant' s right to have her qualifications genuinely taken into consideration were contravened.

16 Tenth, the duty to have regard for the welfare of officials was not observed since the post to be filled essentially involved duties which she had already been carrying out for many years and the contested acts were therefore likely to deprive her of her duties.

17 Finally, since the acts in question were unlawful, each subsequent stage of the competition was also unlawful.

18 In the contested judgment, the Court of First Instance dismissed the action as unfounded.

The appeal

19 In her appeal, the appellant claims that the Court should, first, set aside the contested judgment, second, itself give a decision on the dispute and annul the decisions challenged in the action before the Court of First Instance on the basis of the pleas in law and documents relied upon by her at first instance, third, order the defendant to pay to her BFR 500 000 by way of damages and, fourth, order the defendant to pay the costs of both proceedings, including those of the proceedings for interim relief.

20 The appellant alleges in the first place that the objectives pursued during the recruitment procedure were unlawful (misuse of powers or, at the very least, lack of formal impartiality of the Recruitment Committee, and abuse of process), further, that the irregularities in the recruitment procedure reflected the unlawfulness of those objectives (unlawfulness of the internal notice and breach of the principle of equal treatment), and, finally, that this resulted in a manifest error of assessment and breach of the duty to have regard for the welfare of officials.

21 Under Article 119 of the Rules of Procedure of the Court of Justice, the Court may at any time, by reasoned order, dismiss an appeal where it is clearly inadmissible or clearly unfounded, without opening the oral procedure.

The first plea in law

22 In her first plea, the appellant claims that the objectives pursued during the recruitment procedure were unlawful.

The first part of the first plea in law

23 In the first part of the first plea in law, the appellant criticizes paragraph 107 of the contested judgment which states:

"The Court finds, in addition, that although it was the administration' s duty to ensure the impartiality of the Recruitment Committee, the assessment made in the staff report, referred to at paragraph 2 above, by N.W. of the applicant' s professional ability, while it contained comments which were critical of her, was none the less reasoned, moderate and free of any element of such a kind as to suggest the existence of any animosity incompatible with the duty of impartiality incumbent upon the members of a recruitment committee."

24 According to the appellant, the Court of First Instance did not state to the requisite legal standard the reasons on which its decision was based since it did not explain in what way the factual evidence of misuse of powers to which she referred in the context of the plea relating to the absence of impartiality on the part of the Recruitment Committee did not appear to it to be relevant.

25 The first part of the first plea is based on a manifestly erroneous reading of the contested judgment.

26 At paragraph 106 of the judgment, the Court of First Instance considered that it was objectively appropriate for N.W. to sit on the Recruitment Committee in his dual capacity as head of the service concerned and as the immediate superior of the future incumbent of the post to be filled. At paragraph 107, the Court found that the assessment made in the staff report by N.W. of the appellant' s professional ability, while it contained comments which were critical of her, was none the less reasoned, moderate and free of any element of such a kind as to suggest the existence of any animosity incompatible with the duty of impartiality incumbent upon the members of a recruitment committee. Moreover, at paragraph 108, the Court of First Instance observed that the three members of the Recruitment Committee, one of whom represented the staff committee, were unanimous in their opinion. Finally, at paragraph 109, it concluded that it did not appear that N.W.' s presence as a member of the Recruitment Committee could have been such as to affect the objectivity of its deliberations.

27 It follows that the Court of First Instance has stated to the requisite legal standard the reasons for rejecting the plea relating to the objectivity of the deliberations of the Recruitment Committee.

28 The first part of the first plea in law must therefore be rejected as clearly unfounded.

The second part of the first plea in law

29 The second part of the first plea in law relates to paragraph 118 of the contested judgment, which states:

"In the present case, the Court finds that it does not appear either from the documents before it or from the foregoing arguments that the defendant sought to give preference to an external candidate from the outset."

30 According to the appellant, the Court of First Instance did not state to the requisite legal standard the reasons on which it based its decision to reject the plea in law alleging abuse of process. In that regard, the appellant has produced a number of documents providing objective evidence of such abuse of process, including the memorandum of 19 August 1993 from the Director of the Foundation, which she claims were not all examined by the Court.

31 The second part of the first plea in law is also based on a manifestly erroneous reading of the contested judgment.

32 After recalling at paragraph 117 the case-law of the Court of Justice and the Court of First Instance on misuse of powers, the Court expressly referred at paragraph 118 of the contested judgment to "the documents in the case-file", and found at paragraph 119 that it was not apparent, in particular, contrary to the appellant' s contention, that the Recruitment Committee had considered external candidatures submitted in response to the notice of restricted competition before the candidatures submitted by members of the Foundation' s staff.

33 Finally, the Court of First Instance found, at paragraph 120 of the contested judgment, that, in view of the foregoing and, in particular, of the conclusions at which it had arrived following consideration of the plea relating to the absence of formal impartiality on the part of the Recruitment Committee, it was not apparent that the appellant' s candidature had been rejected as a result of the personal disagreement between her and N.W.

34 It follows that the Court of First Instance has stated to the requisite legal standard the reasons for rejecting the plea alleging abuse of process.

35 The second part of the first plea in law must therefore be rejected as clearly unfounded.

The second plea in law

36 In her second plea, the appellant claims that the recruitment procedure is vitiated by various irregularities. That plea is in two parts.

The first part of the second plea in law

37 The first part of the second plea in law, relating to the alleged unlawfulness of the internal notice, consists of four limbs.

38 The first limb concerns paragraph 55 of the contested judgment, worded as follows:

"The Court finds that the applicant has no interest in relying on any inaccuracy in the internal notice, irrespective of whether its exact legal nature is that of a vacancy notice or a competition notice. The alleged inaccuracy, assuming it were proved, does not adversely affect her, since she was able to submit her application for the vacant post."

39 The appellant instead takes the view that she had an interest in the internal notice, irrespective of its nature, setting forth as accurately as possible the conditions of eligibility for the disputed post, even if she was able to apply for it.

40 The second limb of the first part of the second plea in law concerns paragraphs 56 and 57 of the contested judgment, which are as follows:

"56 Moreover, the Court finds that the internal notice fulfils the conditions laid down in the case-law for vacancy notices and competition notices (T-16/94 Benecos v Commission [1995] ECR-SC II-335, paragraph 18, and Seghers v Council, cited above, paragraph 34) since it in fact informed the applicant of the nature of the conditions of eligibility for the post to be filled and enabled her to determine whether she should apply for it.

57 Furthermore, the applicant herself admitted that the internal notice fulfilled its purpose since she claimed in the fifth plea in law that, by reason of her professional experience and her academic qualifications, she possessed all the qualities required for the post to be filled, as described in the internal notice."

41 The appellant claims that the Court of First Instance disregarded the credence to be attributed to her pleadings, since the plea alleging a manifest error of assessment was ancillary to her plea that no conditions of eligibility were laid down in the competition notice. Even if she considered herself capable of carrying out the duties attaching to the post to be filled, she could have been misled in that regard by the lack of any indication in the notice of any conditions of eligibility or, at the very least, of any sufficiently precise conditions.

42 The third limb of the first part of the second plea in law relates to paragraphs 61 and 62 of the contested judgment which are worded as follows:

"61 It appears from the case-file (see paragraph 13 above and paragraph 84 below) that the defendant considered that the applicant was not sufficiently qualified or experienced in the various specific areas covered by the duties described in the internal notice.

62 To that extent, the decision to reject her candidature was not based on conditions which were not expressly set out in that notice."

43 According to the appellant, it is apparent from those paragraphs that the Court of First Instance considered that the internal notice laid down a condition of eligibility requiring the candidate to be sufficiently qualified or experienced in the various specific areas covered by the duties described in the internal notice. The existence of that condition appears to have been deduced merely from the description of duties, even though the description of duties and the suitability to carry them out are distinct concepts which cannot be confused.

44 The fourth limb of the first part of the second plea in law relates to paragraphs 91, 93, 94, 96 and 97 of the contested judgment. After recalling the settled case-law regarding the statement of reasons for a decision that adversely affects an official (paragraph 90), the Court of First Instance considered in paragraph 91 of the contested judgment that:

"It is apparent from the foregoing arguments that the statement of reasons for the decision rejecting the applicant' s candidature itself enabled her to challenge its substance since she was able in practice to bring an action as from 28 December 1993, that is to say, prior to the Foundation' s decision of 25 March 1994 rejecting her complaint, claiming, in support of the plea in law alleging a manifest error of assessment, that the post to be filled corresponds by and large to the duties which she has already been carrying out within the Foundation for many years."

45 In paragraph 93 of the contested judgment, the Court of First Instance considered that the statement of reasons for the decision rejecting the appellant' s candidature had, in itself, also enabled the Court to find that the Foundation could not be criticized for any manifest error of assessment. The Court further considered in paragraph 94 that, since the statement of reasons for the decision rejecting the appellant' s candidature essentially reproduced that on which the Recruitment Committee' s opinion was based, that opinion should also be regarded as providing an adequate statement of reasons. At paragraph 96, the Court of First Instance concluded that examination of the fifth plea had revealed that the appellant was perfectly well aware that, at the very least, she was not sufficiently experienced or qualified with regard to the entire range of duties relating to the post to be filled. Finally, at paragraph 97 of the contested judgment, the Court found that in any event the decision rejecting the appellant' s complaint stated sufficiently clearly and precisely the differences in nature and level between her post and the post to be filled.

46 The appellant maintains that, in the absence of any indication in the notice of any conditions of eligibility or, at the very least, of any sufficiently precise conditions of eligibility, it was not possible for the defendant to give reasons for its decisions in a manner which satisfied the requirements laid down in the case-law, namely to enable the appellant accurately to determine whether she should bring an action against the decision and the Court of First Instance to exercise its power of review in regard to it.

48 In that regard, it is settled case-law that the basic function of a competition notice is to give those interested the most accurate information possible on the conditions of eligibility for the post to be filled, in order to enable them to determine whether they should apply for it (Case 255/78 Anselme and Constant v Commission [1979] ECR 2323, paragraph 9, and Case 67/81 Ruske v Commission [1982] ECR 661, paragraph 9; see also Case T-16/94 Benecos v Commission [1995] ECR-SC II-335, paragraph 18, and Case T-69/92 Seghers v Council [1993] ECR II-651, paragraph 34).

49 In paragraph 56 of the contested judgment, the Court of First Instance found that the internal notice had in fact informed the appellant of the nature of the conditions of eligibility for the post to be filled and had enabled her to determine whether she should apply for it.

50 From this finding of fact, which is a matter for the Court of First Instance (see, in particular, Case C-283/90 P Vidrányi v Commission [1991] ECR I-4339, paragraph 12), the Court was able rightly to conclude that the internal notice fulfilled the conditions laid down in the case-law.

51 It follows from the foregoing considerations that the first part of the second plea in law must be rejected as clearly unfounded.

The second part of the second plea in law

52 The second part of the second plea in law relating to an alleged breach of the principle of equal treatment is divided into two limbs.

53 The first concerns paragraph 41 of the contested judgment which states as follows:

"The Court observes that since she was able to apply for the vacant post, the applicant does not, in any event, have any interest in claiming that, unlike the internal notice, the notice of restricted competition laid down specific conditions of eligibility which enabled the staff of other Community bodies to decide whether they should submit an application."

54 The appellant merely states on this point that she established, in the first limb of the first part of her second plea in law, that she had an interest in being able to determine as accurately as possible whether she should apply, even if, in the event, notwithstanding the inaccuracy of the internal notice, she was able to do so.

55 In this regard, it is sufficient to state that the reasoning to which the appellant refers has been rejected at paragraph 50 of the present judgment as clearly unfounded.

56 The second limb of the second part of the second plea in law concerns paragraph 43 of the contested judgment, in which the Court of First Instance considered that:

"First, it appears from paragraph 9 above that the notice of restricted competition essentially constituted merely a summary of the various conditions relating to professional experience laid down in the internal notice."

57 The appellant maintains that, since the description of the duties attaching to the post did not appear in the notice of restricted competition as such but in another document which was transmitted to the external candidates only on request, that description could not be considered such as to enable candidates to assess their suitability for the post in question.

58 It should be noted in this regard that, in paragraph 43 of the contested judgment, the Court of First Instance explains paragraph 42 in which it stated that the second plea was factually incorrect in so far as the appellant alleged that the conditions for filling the vacant post were more exacting for the staff of the Foundation than for the staff of other Community bodies.

59 Since it concerns facts which fall to the Court of First Instance alone to assess, the second limb of the second part of the second plea in law must be rejected as clearly inadmissible.

The third plea in law

60 The third plea in law alleges, first, manifest error of assessment and, second, breach of the duty to have regard for the welfare of officials.

The first limb of the first part of the third plea in law

61 The first limb of the first part of the third plea in law relating to a manifest error of assessment concerns paragraphs 76 to 78 of the contested judgment, which are worded as follows:

"76 It appears from the case-file, from the description of the applicant' s duties in paragraphs 2 and 3 above, which has not been challenged by the official, and from her memorandum of 11 March 1991, cited above, that she manages the Foundation' s publications and is responsible for each stage of the production process and for the general supervision of the presentation of the Foundation' s publications.

77 However, it appears from the internal notice that the duties relating to the vacant post of programme manager actually relate to the design and management of the Foundation' s publications strategy. Those duties involve the definition, development and coordination of the Foundation' s publishing policy as a whole.

78 On that basis, they include, in particular, controlling the content of the material for publication and identifying, first, new publications designed to fill the gaps in the Foundation' s programme and, second, needs for certain new publication techniques, in particular electronic publication."

62 The appellant maintains that, in her reply, she had explained, by means of various documents which she had produced, in what way she considered the correspondence between the two posts to have been established. In her view, the Court of First Instance could not simply decide that such correspondence did not exist and that the duties which she carried out were restricted to the areas of management, production and the presentation of documents covered by the publication programmes, without countering the appellant' s precise arguments to the contrary.

63 That argument cannot be accepted. It follows from a mere perusal of paragraphs 76 to 78 of the contested judgment that the Court of First Instance took into consideration all the relevant facts at issue and that it stated to the requisite legal standard the reasons for the conclusion at which it arrived. The first limb of the first part of the third plea in law is therefore clearly unfounded.

The second limb of the first part of the third plea in law

64 The second limb of the first part of the third plea in law concerns paragraphs 83 and 84 of the contested judgment in which the Court of First Instance considered that the appellant, who bore the burden of proof, had not been able to demonstrate to the requisite legal standard the alleged correspondence between the duties relating to her post and those attaching to the post to be filled (paragraph 83), and that the Foundation was able to regard the appellant as not sufficiently qualified or experienced in the various areas covered by the duties described in the internal notice without thereby committing a manifest error of assessment in that respect (paragraph 84).

65 According to the appellant, the Court of First Instance was wrong to base its reasoning on the premiss that her intention was to demonstrate that her duties corresponded entirely to those attaching to the post to be filled, or else that it could find that a manifest error of assessment had been committed by the defendant only if such correspondence was shown to exist. In that regard, moreover, the fact that the Court of First Instance found that the duties involved did not correspond in their entirety did not justify in law its conclusion that the defendant had not committed a manifest error of assessment.

66 That limb is based on a manifestly erroneous reading of the contested judgment.

67 In paragraph 65, the Court of First Instance recalls the appellant' s argument that the post to be filled, as described in the notice published on 28 September 1993, corresponds by and large to the duties which she has been carrying out within the Foundation for many years and that, in any event, it incorporates her current duties. The Court of First Instance replied to the appellant' s argument, as set out in paragraph 65, when it considered in paragraph 83 of the contested judgment that the appellant had not been able to establish to the requisite legal standard the alleged correspondence between the duties relating to her post and those attaching to the post to be filled.

68 The second limb of the first part of the third plea in law is therefore clearly unfounded.

The second part of the third plea in law

69 The second part of the third plea, relating to a breach of the duty to have regard for the welfare of officials, is directed against paragraph 131 of the contested judgment in which the Court of First Instance considered that the appellant could not usefully rely on that principle since she had not been able to establish to the requisite legal standard the alleged correspondence between the duties relating to her post and those attaching to the vacant post.

70 The appellant claims that she had argued primarily that her duties and those attaching to the post to be filled did correspond and, in the alternative, that her duties were at the very least incorporated in that post, so that, in either case, those duties would disappear if she was not appointed to the post to be filled, with serious and obvious disadvantages to her, since the change affected a structure which had existed for very many years. By not taking into account that alternative argument, the Court of First Instance had disregarded the credence to be attributed to the appellant' s pleadings and did not state to the requisite legal standard the reasons on which its decision was based.

71 That limb is based on a manifestly erroneous reading of the contested judgment.

72 It appears from paragraphs 76 and 77 of the contested judgment, set out in paragraph 60 of the present judgment, that the Court of First Instance clearly distinguished between the description of the appellant' s duties and that of the duties relating to the vacant post of "Programme Manager". Moreover, in paragraph 80 of the contested judgment, the Court of First Instance found that it was apparent from the oral argument presented at the hearing in the proceedings for interim relief on 4 March 1994 that, at the very least, the appellant' s current duties did not entirely correspond to those attaching to the post to be filled since the latter involved, in certain respects, the development of the Foundation' s publication policy, in particular the identification of new means of electronic publication. The Court of First Instance observed, moreover, that the evolution of that activity was such that counsel for the appellant had been able to state at that hearing that "no one is qualified as yet because it is too recent".

73 The Court of First Instance was therefore right, for that reason, to consider that the appellant could not rely on the plea alleging breach of the duty to have regard for the welfare of officials.

74 The second part of the third plea in law must therefore be rejected as clearly unfounded.

75 It appears from all the foregoing considerations that the pleas in law put forward by the appellant in support of her appeal are either clearly inadmissible or clearly unfounded and must therefore be rejected pursuant to Article 119 of the Rules of Procedure.

Costs

76 Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party' s pleadings. Article 70 of those Rules provides that in proceedings between the Communities and their servants, the institutions are to bear their own costs. However, by virtue of Article 122 of those Rules, Article 70 does not apply to appeals brought by an official or other servant of an institution against the latter. Since the appellant has been unsuccessful, she must be ordered to pay the costs.

On those grounds,

THE COURT (Fourth Chamber)

hereby:

1. Dismisses the appeal;

2. Orders the appellant to pay the costs.

Luxembourg, 28 November 1996.