61977CJ0074_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 74/77
MAGDALENA ALLGAYER ( NEE PARZINGER ), AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN ECONOMIC COMMUNITIES, RESIDING AT 1, RUE D ' ETALLE, LUXEMBOURG, REPRESENTED AND ASSISTED BY MR KRATZ, ADVOCATE OF THE MERZIG BAR,
APPLICANT,
V
EUROPEAN PARLIAMENT, REPRESENTED BY ITS SECRETARY GENERAL, HANS-ROBERT NORD, ASSISTED BY ALEX BONN, ADVOCATE OF THE LUXEMBOURG BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF MR BONN, 22 RUE DE LA COTE D ' EICH,
DEFENDANT,
Subject of the case
APPLICATION FOR THE ANNULMENT OF A DECISION OF THE DEFENDANT REFUSING TO ALLOW THE APPLICANT, HAVING REGARD TO HER QUALIFICATIONS, TO TAKE THE WRITTEN TEST OF COMPETITION PE/19/A ( GERMAN-LANGUAGE ADMINISTRATORS ) AND FOR AN ORDER REQUIRING THE DEFENDANT TO TAKE ANOTHER DECISION HAVING REGARD TO ALL THE APPLICANT ' S QUALIFICATIONS,
Grounds
1BY AN APPLICATION LODGED ON 29 JUNE 1977 THE APPLICANT ASKED THE COURT FIRST TO ANNUL THE DEFENDANT ' S DECISION OF 3 JUNE 1977 REFUSING TO ALLOW HER TO TAKE THE WRITTEN TEST OF OPEN COMPETITION PE/19/A INTENDED FOR THE DRAWING UP OF A RESERVE LIST FOR THE RECRUITMENT OF GERMAN-LANGUAGE ADMINISTRATORS IN GRADES 7 AND 6 OF CATEGORY A AND SECONDLY TO REQUIRE THE DEFENDANT TO ASK FOR ALL THE APPLICANT ' S QUALIFICATIONS AND, AFTER ASSESSING THEM, TO TAKE A NEW DECISION WITH REGARD TO HER .
2THE DEFENDANT CONTENDS THAT THE COURT SHOULD DISMISS THE APPLICATION AS INADMISSIBLE AND IN ANY EVENT AS UNFOUNDED .
ADMISSIBILITY
3THE DEFENDANT POINTS OUT THAT THE APPLICANT, CONTRARY TO THE SPECIFIC INSTRUCTIONS CONTAINED IN THE NOTICE OF COMPETITION, SENT A PHOTOCOPY OF HER UNIVERSITY DEGREE WHICH HAD NOT BEEN CERTIFIED AS A TRUE COPY BY A PERSON AUTHORIZED TO DO SO AND OMITTED TO ENCLOSE HER CURRICULUM VITAE WITH HER APPLICATION FORM .
THE DEFENDANT CLAIMS THAT THESE FACTS SHOULD HAVE LED THE SELECTION BOARD TO REFUSE THE APPLICANT ' S APPLICATION FOR THE OPEN COMPETITION AND THAT A JUDICIAL REVIEW OF THE FORMAL LEGALITY OF THE COMPETITION PROCEDURE WOULD LEAD TO THE EXCLUSION OF THE CANDIDATE ON THE BASIS OF THAT OMISSION, HER APPEAL BECOMING FOR THAT REASON INADMISSIBLE .
4THE INSTRUCTIONS FOR FILING APPLICATIONS CONTAINED IN THE NOTICE OF OPEN COMPETITION MERELY LAY DOWN THAT ' ' DOCUMENTARY EVIDENCE OF THEIR EDUCATION ' '
SHOULD BE PRODUCED .
THE INSTRUCTIONS CONTAINED IN THE NOTICE OF COMPETITION PROPERLY SO-CALLED, THAT CERTIFIED TRUE COPIES OF DIPLOMAS OR OTHER ACADEMIC QUALIFICATIONS SHOULD BE SENT, ONLY AMOUNT TO PRACTICAL ADVICE TO CANDIDATES, TO WHOM ANY DOCUMENTS PRODUCED ARE NOT RETURNED .
IT IS THEREFORE FOR THE SELECTION BOARD TO DETERMINE WHETHER THE DOCUMENTS PRODUCED BY A CANDIDATE ARE SUCH AS TO JUSTIFY THAT CANDIDATE ' S BEING ALLOWED TO ENTER FOR THE COMPETITION TO BE HELD .
IN THIS CASE THE SELECTION BOARD EXPRESSLY AUTHORIZED THE APPLICANT ( WITH WHOSE CURRICULUM VITAE IT WAS FAMILIAR SINCE SHE WAS AN OFFICIAL OF THE COMMISSION OF THE EEC ) TO TAKE PART IN THE COMPETITION, HAVING REGARD TO THE DOCUMENTS WHICH SHE HAD SUPPLIED .
IT THEREFORE TOOK THE VIEW THAT ANY DEFECTS WHICH MIGHT INVALIDATE THE APPLICATION FORM WERE NOT MATERIAL FOR THE PURPOSES OF THE COMPETITION PROCEDURE AND DECIDED THAT THE APPLICANT FULFILLED THE CONDITIONS OF ELIGIBILITY FOR THE SAID COMPETITION .
IT THEREBY WAIVED, IN THE EXERCISE OF ITS DISCRETION, ANY IRREGULARITIES IN THE APPLICATION FORM .
5THE PLEA OF INADMISSIBILITY CANNOT THEREFORE BE UPHELD .
THE SUBSTANCE
6THE APPLICANT ' S CASE RESTS ON TWO SUBMISSIONS :
( 1 ) HAVING BEEN ACCEPTED AS ELIGIBLE FOR THE COMPETITION BASED ON QUALIFICATIONS AND TESTS HELD BY THE DEFENDANT SHE WAS EXCLUDED THEREFROM AT THE STAGE OF THE COMPETITION BASED ON QUALIFICATIONS, EVEN THOUGH IT WAS THE FIRST TIME THAT AN OPEN COMPETITION INCLUDING A WRITTEN AND ORAL EXAMINATION HAD BEEN ENLARGED INTO A COMPETITION INCLUDING IN ITS FIRST STAGE THE ELIMINATION OF CANDIDATES ON THE BASIS OF QUALIFICATIONS .
7AS PROVIDED FOR IN THE FOURTH PARAGRAPH OF ARTICLE 5 OF ANNEX III TO THE STAFF REGULATIONS OF OFFICIALS OF THE EUROPEAN COMMUNITIES, THE SELECTION BOARD SHALL STATE WHICH OF THE CANDIDATES ON THE LIST OF CANDIDATES WHO MEET THE REQUIREMENTS SET OUT IN THE NOTICE OF COMPETITION SHALL BE ADMITTED TO THE TESTS .
IT IS CLEAR FROM THE CASE-LAW OF THE COURT ( JUDGMENT OF 13 MARCH 1965 IN CASE 23/64, VANDEVYVERE V EUROPEAN PARLIAMENT ( 1965 ) ECR 157 ) THAT IN THE CASE OF SUCH OPEN COMPETITIONS THERE HAS ALREADY BEEN A SELECTION BASED ON QUALIFICATIONS PRIOR TO THE WRITTEN AND ORAL TESTS .
THEREFORE THIS SUBMISSION MUST BE REJECTED .
8(2 ) THE APPLICANT RAISES THE OBJECTION THAT THE NOTICE OF COMPETITION WAS LIABLE TO GIVE RISE TO MISUNDERSTANDING AND WAS EVEN UNINTELLIGIBLE .
SHE BASES HER ARGUMENT ON TWO PASSAGES IN THE NOTICE OF COMPETITION, THE FIRST BEING THE FOLLOWING WORDS IN SECTION III OF THE GENERAL PROVISIONS GOVERNING OPEN COMPETITIONS ENTITLED ' ' APPLICATIONS ' ' : ' ' ONLY COPIES OF DEGREES OR DIPLOMAS OR OTHER EVIDENCE OF QUALIFICATIONS CORRESPONDING TO THE HIGHEST LEVEL OF STUDIES COMPLETED BY THE CANDIDATE NEED BE SENT ' ', THE OTHER BEING CONTAINED IN THE ACTUAL NOTICE OF COMPETITION UNDER HEADING III 1 . ' ' DEGREES, DIPLOMAS ETC . REQUIRED, ' '
INCLUDING THE FOLLOWING WORDS : ' ' UNIVERSITY DEGREES IN :
( A ) LAW ;
( B ) POLITICAL SCIENCE ;
( C ) SOCIAL SCIENCES ;
( D ) ECONOMICS ;
( E ) THE ARTS ;
( F ) A COMPARABLE DISCIPLINE,
OR EQUIVALENT PROFESSIONAL EXPERIENCE . ' '
THAT WORDING DID NOT ENTITLE HER TO CONCLUDE THAT SHE HAD TO ENCLOSE IMMEDIATELY WITH HER APPLICATION FORM CERTIFICATES OTHER THAN HER UNIVERSITY DEGREE WHICH COULD PROVE THAT SHE HAD THE NECESSARY QUALIFICATIONS .
SHE THEREFORE DID NOT DO SO, ALTHOUGH SHE WAS IN A POSITION TO PRODUCE OTHER DOCUMENTS, WHICH SHE SENT IN AFTER THE DATE BY WHICH APPLICATIONS HAD TO BE LODGED, FOR EXAMPLE, CERTIFICATES RELATING TO HER KNOWLEDGE OF LANGUAGES, TO THE COMPLETION OF A PERIOD OF TEACHER TRAINING AND TO A PROBATIONARY PERIOD SPENT WITH THE COMMISSION, SINCE SHE THOUGHT THAT PURSUANT TO THE SECOND PARAGRAPH OF ARTICLE 2 OF ANNEX III TO THE STAFF REGULATIONS OF OFFICIALS OF THE EUROPEAN COMMUNITIES THE DEFENDANT WOULD REQUIRE HER TO PRODUCE THEM BEFORE MAKING A SELECTION BASED ON QUALIFICATIONS .
9UNDER HEADING III ' ' COMPETITION ' '
- OF THE ACTUAL NOTICE OF COMPETITION - THE WORDS ' ' UNIVERSITY DEGREE ' ', TOGETHER WITH THE AGE LIMIT OF NOT MORE THAN 33 YEARS OF AGE, THE REQUISITE KNOWLEDGE OF LANGUAGES AND COMPLIANCE WITH ARTICLE 28 ( A ), ( B ) AND ( C ) OF THE STAFF REGULATIONS OF OFFICIALS OF THE EUROPEAN COMMUNITIES, CONSTITUTE ONE OF THE MINIMUM CONDITIONS OF ELIGIBILITY FOR THE COMPETITION PROPERLY SO-CALLED .
THUS THE CANDIDATE WAS FULLY INFORMED OF THE FACT THAT THE DEGREES OR DIPLOMAS REQUIRED OF HER WOULD BE ASSESSED ONLY IF SHE FULFILLED THE CONDITIONS REFERRED TO ABOVE FOR ELIGIBILITY FOR THE COMPETITION, BASED FIRST ON QUALIFICATIONS AND THEN ON TESTS .
ON THE OTHER HAND, IN SECTION III OF THE GENERAL PROVISIONS GOVERNING OPEN COMPETITIONS HEADED ' ' APPLICATIONS ' '
APPLICANTS ARE REQUESTED TO SEND, IN RELATION TO THE DIPLOMAS OR OTHER EVIDENCE OF FORMAL QUALIFICATIONS AND IN ADDITION TO THOSE CORRESPONDING TO THE HIGHEST LEVEL OF STUDIES COMPLETED BY CANDIDATES, ' ' DOCUMENTS RELATING TO ACADEMIC QUALIFICATIONS ' ', WHICH EXPRESSION CLEARLY REFERS TO STUDIES COMPLETED IN A BRANCH OTHER THAN THAT FOR WHICH THE HIGHEST DIPLOMA WAS AWARDED .
THE APPLICANT UNDERSTOOD THAT SHE HAD TO LODGE A FULL APPLICATION AND THUS ENCLOSED SUPERFLUOUS DOCUMENTS SUCH AS A COPY OF HER SCHOOL-LEAVING CERTIFICATE AND OF HER JUNIOR HIGH SCHOOL DIPLOMA, WHICH SHE OBVIOUSLY POSSESSED IN VIEW OF HER UNIVERSITY DEGREE .
IN THE CASE OF A COMPETITION BASED ON QUALIFICATIONS, OWING TO THE NATURE OF SUCH A COMPETITION, THE EVIDENCE OF CANDIDATES '
QUALIFICATIONS MUST BE ENCLOSED WITH THE APPLICATION FORM, WITHOUT ITS BEING NECESSARY FOR THE SELECTION BOARD TO CALL UPON CANDIDATES TO PRODUCE SUCH EVIDENCE .
THE APPLICANT HAS ONLY HERSELF TO BLAME FOR NOT HAVING ENCLOSED WITH HER APPLICATION FORM THE CERTIFICATES WHICH SHE FORWARDED LATER AND SHE MUST SUFFER THE CONSEQUENCES .
IT IS, MOREOVER, NECESSARY TO POINT OUT THAT ACCORDING TO THE OBJECTIVE CRITERIA ON WHICH THE SELECTION BOARD DECIDED TO BASE ITS ASSESSMENT OF THE QUALIFICATIONS OF CANDIDATES, THOSE CERTIFICATES WOULD NOT HAVE BEEN TAKEN INTO CONSIDERATION .
ONCE AGAIN, THIS SUBMISSION MUST THEREFORE BE REJECTED .
Decision on costs
COSTS
10UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .
THE APPLICANT HAS FAILED IN HER SUBMISSIONS .
HOWEVER, UNDER ARTICLE 70 OF THE RULES OF PROCEDURE THE COSTS INCURRED BY THE INSTITUTIONS IN ACTIONS BROUGHT BY SERVANTS OF THE COMMUNITIES ARE TO BE BORNE BY THE INSTITUTIONS .
Operative part
ON THOSE GROUNDS,
THE COURT ( SECOND CHAMBER )
HEREBY :
1 . DISMISSES THE APPLICATION ;
2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .