61984CJ0294_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 294/84
HERMANUS ADAMS AND 52 OTHER OFFICIALS AND SERVANTS OF THE COMMISSION OF THE EUROPEAN COMMUNITITES, REPRESENTED BY MARCEL SLUSNY, OF THE BRUSSELS BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT, CENTRE LOUVIGNY, 34 B IV RUE PHILIPPE-II,
APPLICANTS,
V
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, DIMITRIOS GOULOUSSIS, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF GEORGIOS KREMLIS, A MEMBER OF ITS LEGAL DEPARTMENT, JEAN MONNET BUILDING, KIRCHBERG,
DEFENDANT,
Subject of the case
APPLICATION FOR THE ANNULMENT OF ( I ) COMPETITION NO COM/B/2/82, AN INTERNAL COMPETITION FOR THE CONSTITUTION OF A RESERVE LIST, TOGETHER WITH ALL THE OPERATIONS CARRIED OUT OR TO BE CARRIED OUT IN CONNECTION WITH THAT COMPETITION, AND ( II ) THE DECISIONS TAKEN WITH REGARD TO EACH OF THE APPLICANTS NOT TO ADMIT THEM TO THE TESTS,
Grounds
1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 10 DECEMBER 1984, HERMANUS ADAMS AND 52 OTHER OFFICIALS IN CATEGORY C IN THE SERVICE OF THE COMMISSION OF THE EUROPEAN COMMUNITIES BROUGHT AN ACTION FOR THE ANNULMENT OF THE DECISION OF THE SELECTION BOARD FOR COMPETITION NO COM/B/2/82, AN INTERNAL COMPETITION FOR THE CONSTITUTION OF A RESERVE LIST OF ADMINISTRATIVE ASSISTANTS, SECRETARIAL ASSISTANTS AND TECHNICAL ASSISTANTS, NOT TO ADMIT THEM TO THE TESTS FOR THAT COMPETITION .
2 THE ACTION SEEKS ALSO THE ANNULMENT OF COMPETITION NO COM/B/2/82 TOGETHER WITH ALL THE OPERATIONS CARRIED OUT IN CONNECTION THEREWITH ON THE GROUNDS THAT CERTAIN PROVISIONS OF THE NOTICE OF COMPETITION WERE INVALID AND THAT THE CONTESTED DECISION WAS THEREFORE ADOPTED FOLLOWING A PROCEDURE WHICH WAS VOID AB INITIO .
3 IN JUNE 1984, THE APPLICANTS WERE INFORMED BY THE HEAD OF THE COMMISSION ' S RECRUITMENT DIVISION THAT THE SELECTION BOARD FOR THE COMPETITION, AFTER A COMPARATIVE EXAMINATION OF THE APPLICATIONS AND BASING ITS ASSESSMENT ON A NUMBER OF FACTORS SUCH AS PROFESSIONAL EXPERIENCE BEFORE AND AFTER RECRUITMENT, GENERAL OR SPECIALIZED EDUCATION, FURTHER TRAINING, THE PERIODIC ASSESSMENTS OF THE CANDIDATES MADE BY THEIR SUPERIORS, THE DUTIES PERFORMED AT THE DATE ON WHICH THE APPLICATIONS WERE SUBMITTED AND MOBILITY, CONSIDERED THAT IT COULD NOT PLACE THEIR NAMES ON THE LIST OF CANDIDATES ADMITTED TO THE TESTS .
4 ON RECEIPT OF THAT LETTER THREE OF THE PERSONS CONCERNED, NAMELY MME BASCH, MME SEUBE AND MR PELLICCIONE, SUBMITTED COMPLAINTS UNDER ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS OF OFFICIALS . THE OTHER CANDIDATES MERELY ASKED THE SELECTION BOARD TO RECONSIDER THEIR APPLICATIONS AND IF IT DECIDED TO MAINTAIN ITS PREVIOUS DECISION, TO STATE IN EACH CASE THE CONDITIONS REQUIRED FOR ADMISSION TO THE TESTS WHICH HAD NOT BEEN FULFILLED .
5 IN A LETTER OF 7 SEPTEMBER 1984, ADDRESSED TO EACH OF THE CANDIDATES AND DRAFTED IN THE SAME TERMS, THE HEAD OF THE COMMISSION ' S RECRUITMENT DIVISION INFORMED THEM THAT THE SELECTION BOARD HAD RECONSIDERED THEIR APPLICATIONS AND HAD DECIDED TO CONFIRM ITS DECISION SINCE NO ADDITIONAL FACTOR HAD EMERGED TO ALTER ITS PREVIOUS VIEW . IT ALSO POINTED OUT THAT ONLY CANDIDATES ALREADY PERFORMING DUTIES AT THE LEVEL OF CATEGORY B OR WHO HAD ALL THE QUALIFICATIONS REQUIRED TO PERFORM THEM HAD BEEN ADMITTED TO THE TESTS .
6 THE APPLICANTS '
ACTION IS DIRECTED AGAINST THE DECISION CONTAINED IN THAT LETTER, WHICH THEY REGARD AS THE ACT ADVERSELY AFFECTING THEM WITHIN THE MEANING OF ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS .
7 THE DEFENDANT, THE COMMISSION, CONTENDS FIRST OF ALL THAT THE ACTION IS INADMISSIBLE ON THE GROUND THAT IT WAS BROUGHT ONLY ON 10 DECEMBER 1984 WHEREAS THE PERIOD LAID DOWN IN ARTICLE 91 ( 3 ) OF THE STAFF REGULATIONS STARTED TO RUN FROM JUNE 1984, WHEN THE APPLICANTS WERE INFORMED OF THE DECISION NOT TO ADMIT THEM TO THE TESTS, AND NOT FROM 7 SEPTEMBER 1984, THE DATE ON WHICH THE APPLICANTS WERE NOTIFIED OF THE SECOND DECISION, WHICH MERELY CONFIRMED THE FIRST . SINCE THE ACTION WAS BROUGHT OUTSIDE THE THREE MONTH TIME-LIMIT LAID DOWN IN THE STAFF REGULATIONS, IT IS INADMISSIBLE .
8 WITH REGARD TO THOSE APPLICANTS WHO HAD ALREADY SUBMITTED A COMPLAINT AGAINST THE DECISION OF WHICH THEY WERE INFORMED IN JUNE 1984, THE COMMISSION ACCEPTS THAT AN OBJECTION OF INADMISSIBILITY CANNOT BE RAISED IN THE SAME WAY IN THEIR CASE, BUT IT RELIES ON THE WISDOM OF THE COURT IN THE MATTER, POINTING OUT THAT THE COURT MUST DECIDE WHETHER AN ACTION BROUGHT AFTER THE SUBMISSION OF A COMPLAINT AND WITHIN THE THREE MONTH TIME-LIMIT CALCULATED FROM THE DATE OF THE EXPRESS OR IMPLIED REPLY TO THAT COMPLAINT IS ADMISSIBLE, WHEREAS, ACCORDING TO SETTLED CASE-LAW, THE DECISION OF A SELECTION BOARD FOR A COMPETITION MAY BE CHALLENGED DIRECTLY BEFORE THE COURT .
9 FINALLY, THE COMMISSION CONSIDERS THAT THE SUBMISSIONS ALLEGING THAT THE COMPETITION NOTICE IS INVALID MUST IN ANY EVENT BE REGARDED AS OUT OF TIME BECAUSE THE APPLICANTS OUGHT TO HAVE CHALLENGED THE NOTICE AT THE TIME OF ITS PUBLICATION AND MAY NOT NOW DO SO BY WAY OF AN ACTION DIRECTED AGAINST A SUBSEQUENT MEASURE .
10 FOR THEIR PART, THE APPLICANTS CLAIM THAT THE REQUESTS FOR RECONSIDERATION SUBMITTED BY THEM MUST BE REGARDED AS REQUESTS WITHIN THE MEANING OF ARTICLE 90 ( 1 ) OF THE STAFF REGULATIONS, WITH THE EFFECT THAT THE PERIOD FOR BRINGING AN ACTION ONLY BEGAN TO RUN FROM THE DATE OF THE EXPRESS OR IMPLIED DECISION ADOPTED BY THE ADMINISTRATIVE AUTHORITIES IN REPLY TO THOSE REQUESTS, WHICH IN THIS CASE OCCURRED ON 7 SEPTEMBER 1984 .
11 IN ANY EVENT, EVEN IF THE PERIOD FOR BRINGING AN ACTION IS REGARDED AS HAVING COMMENCED WHEN THE APPLICANTS RECEIVED NOTICE OF THE FIRST DECISION, THE APPLICANTS TAKE THE VIEW THAT THE DECISION CONTAINED IN THE LETTER OF 7 SEPTEMBER 1984 IS NOT A CONFIRMATION OF THAT NOTIFIED TO THE APPLICANTS IN JUNE 1984 : SINCE IT WAS ADOPTED FOLLOWING A RECONSIDERATION OF THE APPLICATIONS, IT IS IN FACT A DECISION WHICH COMPLETELY REPLACES THE PREVIOUS DECISION AND CONSTITUTES THE ACT ADVERSELY AFFECTING THE APPLICANTS .
12 WITH REGARD TO THE ADMISSIBILITY OF THE SUBMISSIONS CONCERNING THE COMPETITION NOTICE, THE APPLICANTS OBSERVE THAT WHEN, IN THE CONTEXT OF A COMPETITION PROCEDURE, AN ACT OCCURS AT THE END OF A SERIES OF ACTS OF WHICH THE LAST ADVERSELY AFFECTS A CANDIDATE, THAT CANDIDATE IS NOT REQUIRED TO CHALLENGE THE PREVIOUS ACTS SEPARATELY, AND IN PARTICULAR HE IS NOT REQUIRED TO CHALLENGE THE ACT WHICH INITIATED THE PROCEDURE .
13 THE APPLICANTS '
ARGUMENT TO THE EFFECT THAT THE SUBMISSION OF A REQUEST FOR RECONSIDERATION PREVENTS TIME RUNNING CANNOT BE ACCEPTED . IF SUCH AN ARGUMENT WERE ACCEPTED, ANY OFFICIAL COULD, BY THE REPEATED SUBMISSION OF REQUESTS OF THAT SORT, INDEFINITELY EXTEND THE TIME-LIMIT FOR BRINGING AN ACTION AGAINST AN ACT ADVERSELY AFFECTING HIM, AND THAT WOULD BE INCOMPATIBLE WITH THE SYSTEM OF REMEDIES INSTITUTED BY THE STAFF REGULATIONS AND WITH THE PRINCIPLE OF LEGAL CERTAINTY .
14 WITH REGARD TO THE APPLICANTS '
SECOND ARGUMENT, THERE IS NO DOUBT THAT THE DECISION CONTAINED IN THE LETTER OF 7 SEPTEMBER 1984 WAS ADOPTED FOLLOWING A RECONSIDERATION OF THE PREVIOUS DECISION NOT TO ADMIT THE APPLICANTS TO THE TESTS, WHICH THE SELECTION BOARD CARRIED OUT AT THE APPLICANTS '
REQUEST .
15 NOT ONLY DOES THE TEXT OF THAT LETTER EXPRESSLY MENTION A ' RECONSIDERATION '
OF THE APPLICATIONS, BUT THE FACT THAT 18 CANDIDATES WHO HAD BEEN INITIALLY EXCLUDED WERE LATER ADMITTED TO THE TESTS ALSO SHOWS THAT THAT RECONSIDERATION DID TAKE PLACE AND WAS CARRIED OUT IN A THOROUGH MANNER .
16 IN THE LIGHT OF THE FOREGOING CONSIDERATIONS, IT MUST THEREFORE BE HELD THAT THE DECISION CONTAINED IN THE LETTER OF 7 SEPTEMBER 1984 REPLACED THE PREVIOUS DECISION AND CANNOT BE REGARDED AS MERELY CONFIRMING IT . THE ACTION IS THEREFORE ADMISSIBLE .
17 THE ADMISSIBILITY OF THE ACTION DOES NOT, HOWEVER, ENTAIL THE ADMISSIBILITY OF THE SUBMISSIONS ALLEGING THE IRREGULARITY OF THE COMPETITION NOTICE . THE APPLICANTS SHOULD HAVE CHALLENGED IN GOOD TIME THE PROVISIONS OF THAT NOTICE WHICH, IN THEIR VIEW, ADVERSELY AFFECTED THEM . WERE IT OTHERWISE, IT WOULD BE POSSIBLE TO CHALLENGE A COMPETITION NOTICE LONG AFTER IT HAD BEEN PUBLISHED AND AFTER MOST OR ALL OF THE OPERATIONS CARRIED OUT IN CONNECTION WITH THE COMPETITION HAD ALREADY TAKEN PLACE, AND THAT WOULD BE CONTRARY TO THE PRINCIPLES OF LEGAL CERTAINTY, LEGITIMATE EXPECTATION AND SOUND ADMINISTRATION .
18 THE ONLY SUBMISSIONS TO BE TAKEN INTO CONSIDERATION AS REGARDS THE SUBSTANCE OF THE CASE ARE THEREFORE THOSE WHICH CONCERN THE ANNULMENT OF THE CONTESTED DECISION ON THE BASIS OF THE UNLAWFULNESS OF CERTAIN ACTS OF THE SELECTION BOARD DURING THE PROCEDURE . THE SUBMISSIONS IN QUESTION ARE THOSE ALLEGING, FIRST, THAT THE SELECTION BOARD SYSTEMATICALLY CONSULTED THE CANDIDATES '
SUPERIORS ALTHOUGH THE COMPETITION NOTICE MERELY PROVIDED FOR THE POSSIBILITY OF SUCH AN INTERVIEW ; SECONDLY, THE SELECTION BOARD DID NOT CALL THE CANDIDATES FOR INTERVIEW, SOMETHING WHICH THE COMPETITION NOTICE ALSO PROVIDED FOR AS A POSSIBILITY, EVEN THOUGH THE OPINION OF EACH CANDIDATE ' S SUPERIOR WAS HEARD ; THIRDLY, THE SELECTION BOARD WAS GUILTY OF A MISUSE OF POWERS BY DIVIDING THE CANDIDATES INTO TWO GROUPS ( THOSE WHO WERE ALREADY PERFORMING DUTIES AT THE LEVEL OF CATEGORY B/BS/BT OR WHO WERE REGARDED AS POSSESSING ALL THE QUALIFICATIONS REQUIRED TO PERFORM THEM AND THOSE WHO, IN THE SELECTION BOARD ' S VIEW, DID NOT POSSESS THOSE QUALIFICATIONS ) IN ORDER TO PERMIT THE APPOINTMENT OF PARTICULAR OFFICIALS .
19 IN THE FIRST OF THEIR SUBMISSIONS, THE APPLICANTS STATE THAT THEY CONTEST THE INTERVIEW WHICH TOOK PLACE BETWEEN THEIR SUPERIORS AND THE SELECTION BOARD ESSENTIALLY ON THE GROUND THAT THE LATTER DID NOT ALSO INTERVIEW THE CANDIDATES IN ORDER TO PERMIT THEM TO COMMENT ON THE OPINION EXPRESSED ON THEM BY THEIR SUPERIORS, AN OMISSION WHICH CONSTITUTES A BREACH OF THE PRINCIPLE OF LEGITIMATE EXPECTATION AND OF THEIR RIGHT OF REPLY . THAT BEING SO, THE SUBMISSION CONCERNING THE INTERVIEW WITH THE CANDIDATES '
SUPERIORS OVERLAPS THE SECOND SUBMISSION ALLEGING THAT THE SELECTION BOARD DID NOT GIVE THE CANDIDATES A HEARING, AND FOR THAT REASON THEY MAY BE CONSIDERED TOGETHER .
20 ACCORDING TO THE APPLICANTS, ONCE THEIR SUPERIORS, IN THE PERSON OF THE ASSISTANTS TO THE DIRECTOR-GENERAL OF EACH OF THE DIRECTORATES-GENERAL TO WHICH THE CANDIDATES WERE ASSIGNED, WERE CALLED UPON TO SUBMIT AN OPINION LIKELY TO HAVE SERIOUS CONSEQUENCES FOR THE APPLICANTS '
CANDIDATURES, THEIR RIGHT OF REPLY, A SUPERIOR PRINCIPLE OF LAW, REQUIRED THAT THEY BE PERMITTED TO EXPRESS THEIR VIEWS .
21 THE COMMISSION REPLIES THAT THE ASSISTANTS TO THE DIRECTORS-GENERAL WERE NEITHER THE COMPETITORS NOR THE ADVERSARIES OF THE CANDIDATES AND THAT THEY ARE NOT THEREFORE ENTITLED TO RELY ON A RIGHT OF REPLY . FURTHERMORE, THE INTERVIEW WITH THE ASSISTANTS WAS MERELY ONE OF THE FACTORS TAKEN INTO ACCOUNT IN ANALYSING EACH CANDIDATE ' S APPLICATION AND THE ASSISTANTS '
OPINION WAS NOT DECISIVE .
22 FOR THE PURPOSES OF CONSIDERING THIS SUBMISSION, IT MUST BE OBSERVED THAT IN THE CONTEXT OF A COMPETITION THE SELECTION BOARD IS CALLED UPON TO ASSESS FACTORS KNOWN TO THE CANDIDATES, WHETHER IT BE QUALIFICATIONS WHICH THEY HOLD, TESTS WHICH THEY HAVE UNDERGONE OR PERIODIC REPORTS OF WHICH THEY ARE AWARE AND ON WHICH THEY HAVE HAD AN OPPORTUNITY TO COMMENT . THAT CONSTITUTES A GUARANTEE THAT THE COMPETITION WILL BE PROPERLY CONDUCTED AND A PROTECTION AGAINST ARBITRARINESS, INASMUCH AS THE CANDIDATES ARE AWARE OF ALL THE FACTORS WHICH ENTERED INTO THE SELECTION BOARD ' S ASSESSMENT AND ARE THEREFORE WELL PLACED TO CONTEST THAT ASSESSMENT IF THEY CONSIDER THAT IT IS WRONG .
23 IF, ON THE OTHER HAND, THE SELECTION BOARD BASES ITS DECISION AT LEAST IN PART, AS IT DID IN THIS CASE, ON FACTORS SUCH AS INFORMATION SUPPLIED BY, AND THE OPINIONS OF, THE CANDIDATES '
SUPERIORS, OF WHICH THE CANDIDATES CONCERNED HAVE NO KNOWLEDGE, THEY HAVE NO OPPORTUNITY TO DEFEND THEMSELVES AGAINST STATEMENTS MADE BY THIRD PARTIES WHICH, THOUGH THEY MAY WELL BE PERFECTLY CORRECT, MAY ALSO BE INCORRECT FOR ONE REASON OR ANOTHER .
24 THE FACT THAT THE CANDIDATES DID NOT HAVE AN OPPORTUNITY TO STATE THEIR VIEWS ON THE OPINIONS EXPRESSED ON THEM BY THEIR SUPERIORS THUS CONSTITUTES A BREACH OF THE PRINCIPLE WHICH THE SELECTION BOARD OUGHT TO HAVE RESPECTED AND VITIATES THE PROCEDURE WHICH LED TO THE DECISION NOT TO ADMIT THE APPLICANTS TO THE TESTS FOR THE COMPETITION IN QUESTION .
25 THE DECISION OF THE SELECTION BOARD FOR COMPETITION NO COM/B/2/82 NOT TO ADMIT THE APPLICANTS TO THE TESTS FOR THAT COMPETITION MUST THEREFORE BE ANNULLED .
Decision on costs
COSTS
26 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS IF THEY HAVE BEEN ASKED FOR IN THE SUCCESSFUL PARTY ' S PLEADING . SINCE THE COMMISSION HAS BEEN UNSUCCESSFUL IN ITS SUBMISSIONS, IT MUST BE ORDERED TO PAY THE COSTS .
Operative part
ON THOSE GROUNDS,
THE COURT ( FIRST CHAMBER )
HEREBY :
( 1 ) ANNULS THE DECISION OF THE SELECTION BOARD FOR COMPETITION NO COM/B/2/82 CONTAINED IN THE LETTERS DRAFTED IN IDENTICAL TERMS SENT TO EACH OF THE APPLICANTS ON 7 SEPTEMBER 1984 REFUSING TO ADMIT THEM TO THE TESTS FOR THAT COMPETITION ;
( 2)ORDERS THE COMMISSION TO PAY THE COSTS .