61978CJ0117_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 117/78,
WILLY ORLANDI, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, RESIDING AT 95 RUE DE MAMER, BERTRANGE ( GRAND DUCHY OF LUXEMBOURG ), REPRESENTED BY VICTOR BIEL, OF THE LUXEMBOURG BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF MR BIEL, 18A RUE DES GLACIS,
APPLICANT,
V
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ALAIN VAN SOLINGE, A MEMBER OF ITS LEGAL DEPARTMENT, ASSISTED BY DANIEL JACOB, OF THE BRUSSELS BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ITS LEGAL ADVISER, MARIO CERVINO, JEAN MONNET BUILDING, KIRCHBERG,
DEFENDANT,
Subject of the case
APPLICATION FOR THE ANNULMENT OF THE DECISION OF THE SELECTION BOARD FOR COMPETITION NO COM/B/155 REFUSING TO ADMIT THE APPLICANT TO THE WRITTEN TESTS RELATING TO THAT COMPETITION, NOTICE OF WHICH WAS PUBLISHED IN OFFICIAL JOURNAL NO C 128 OF 1 JUNE 1977, P.10,
Grounds
1THE APPLICATION, LODGED ON 17 MAY 1978, SEEKS THE ANNULMENT OF A DECISION ADOPTED BY THE SELECTION BOARD FOR COMPETITION NO COM/B/155 AND NOTIFIED TO THE APPLICANT ON 26 SEPTEMBER 1977, BY WHICH THE SELECTION BOARD REFUSED TO ADMIT HIM TO THE TESTS RELATING TO THE COMPETITION, AS WELL AS OF THE APPOINTMENTS MADE IN CONSEQUENCE THEREOF .
2THE COMPETITION WAS ORGANIZED BY THE COMMISSION FOR THE PURPOSE OF CONSTITUTING A RESERVE OF ADMINISTRATIVE ASSISTANTS IN GRADES 5 AND 4 OF CATEGORY B .
3THE DUTIES ATTACHING TO THE POSTS TO BE FILLED WERE DEFINED IN RELATION TO FOUR DIFFERENT AREAS, ONE OF WHICH WAS ' ' ACCOUNTING AND PUBLIC FINANCE ' ', FROM AMONGST WHICH THE CANDIDATES HAD TO INDICATE THEIR CHOICE .
4UNDER THE SPECIAL CONDITIONS FOR ADMISSION THE NOTICE OF COMPETITION PROVIDED THAT THE CANDIDATES HAD, FIRST, TO HAVE COMPLETED A COURSE OF SECONDARY EDUCATION AND RECEIVED A FINAL CERTIFICATE AND, SECONDLY, TO HAVE AT LEAST ONE YEAR ' S PRACTICAL EXPERIENCE IN THE FIELD CHOSEN AFTER OBTAINING THEIR EDUCATIONAL QUALIFICATIONS .
5THE APPLICANT, WHO, IN APPLYING FOR THE POST, SELECTED THE FIELD OF ACCOUNTING AND PUBLIC FINANCE, WAS REFUSED ADMISSION TO THE COMPETITION ON THE GROUNDS THAT HIS QUALIFICATIONS OR CERTIFICATES HAD NOT BEEN JUDGED TO BE IN ACCORDANCE WITH THE QUALIFICATIONS REQUIRED .
ADMISSIBILITY
6THE APPLICANT LODGED HIS APPLICATION WITH THE COURT AFTER SUBMITTING TO THE APPOINTING AUTHORITY ON 14 DECEMBER 1977 A COMPLAINT WITHIN THE MEANING OF ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS AGAINST THE DECISION OF THE SELECTION BOARD .
7THE COMMISSION INFORMED THE APPLICANT BY LETTER OF 20 MARCH 1978 THAT IT WAS UNABLE TO DEAL FAVOURABLY WITH HIS COMPLAINT SINCE IT WAS NOT EMPOWERED TO ANNUL OR AMEND THE DECISION OF A SELECTION BOARD AND THERE WAS NO FACTOR IN THE CASE WHICH COULD JUSTIFY A RECONSIDERATION BY THE SELECTION OF ITS DECISION .
8BEFORE THE COURT THE COMMISSION RAISED THE QUESTION WHETHER, FOR THE PURPOSES OF ARTICLE 91 ( 3 ) OF THE STAFF REGULATIONS, THE APPLICATION IS INADMISSIBLE ON THE GROUNDS OF LATE SUBMISSION, SINCE IN CIRCUMSTANCES SUCH AS THOSE OF THE PRESENT CASE THE PERIOD OF THREE MONTHS LAID DOWN BY THAT PROVISION MUST BE CALCULATED FROM THE DATE OF NOTIFICATION OF THE DECISION OF THE SELECTION BOARD RATHER THAN FROM THAT OF THE COMMISSION ' S REPLY TO THE COMPLAINT THROUGH OFFICIAL CHANNELS .
9IT IS TRUE THAT IN THIS RESPECT IT IS THE ESTABLISHED CASE-LAW OF THE COURT THAT A REFERENCE TO THE APPOINTING AUTHORITY OF A COMPLAINT THROUGH OFFICIAL CHANNELS AGAINST THE DECISION OF A SELECTION BOARD FOR A COMPETITION LIES OUTSIDE THE SCOPE OF THE PROVISIONS OF THE STAFF REGULATIONS IN VIEW OF THE FACT THAT THE APPOINTING AUTHORITY HAS NO POWER TO ANNUL OR AMEND THE DECISIONS OF A SELECTION BOARD .
10IF, NEVERTHELESS, INSTEAD OF BRINGING THE MATTER DIRECTLY BEFORE THE COURT THE PERSON CONCERNED RELIES ON THE PROVISIONS OF THE STAFF REGULATIONS IN ORDER TO REFER THE QUESTION TO THE APPOINTING AUTHORITY BY MEANS OF A COMPLAINT THROUGH OFFICIAL CHANNELS THE EFFECT OF SUCH A STEP, WHATEVER ITS LEGAL SIGNIFICANCE, MUST NOT BE THAT THE PERIOD FOR BRINGING THE MATTER TO THE ATTENTION OF THE COURT EXPIRES WHILST HE IS AWAITING A REPLY .
11IN FACT, SUCH AN ERROR AS TO THE INAPPLICABILITY OF ARTICLE 90 ( 2 ) TO THE PRESENT CASE IS EXCUSABLE HAVING REGARD TO THE PRESENT WORDING OF THE PROVISIONS IN QUESTION AND, IN THE ABSENCE OF ANY IMPERATIVE REASONS TO THE CONTRARY, IT CANNOT RESULT IN THE APPLICANT ' S BEING TIME-BARRED AND THEREFORE DEPRIVE HIM OF HIS RIGHT TO RESORT TO LEGAL PROCEEDINGS .
12THE APPLICATION IS THEREFORE ADMISSIBLE .
SUBSTANCE
13THE APPLICANT CLAIMS THAT THE SELECTION BOARD ' S DECISION INFRINGED THE NOTICE OF COMPETITION AND THE THIRD SUBPARAGRAPH OF ARTICLE 5 ( 1 ) OF THE STAFF REGULATIONS, SINCE IT FAILED TO TAKE ACCOUNT OF HIS PRACTICAL EXPERIENCE .
14THE PROVISION REFERRED TO PROVIDES THAT :
' ' CATEGORY B SHALL COMPRISE FIVE GRADES, DIVIDED INTO CAREER BRACKETS ORDINARILY CONTAINING TWO GRADES EACH FOR STAFF ENGAGED IN EXECUTIVE DUTIES WHICH REQUIRE AN ADVANCED LEVEL OF SECONDARY EDUCATION OR EQUIVALENT PROFESSIONAL EXPERIENCE ' ' .
15THAT PROVISION SEEKS TO PROVIDE A GENERAL DEFINITION OF THE MINIMUM LEVEL REQUIRED FOR AN OFFICIAL OF THE CATEGORY IN QUESTION WHILST NOT PREVENTING THE LAYING DOWN OF CONDITIONS RELATING TO BOTH EDUCATIONAL TRAINING AND PRACTICAL EXPERIENCE IF THE NATURE OF THE POSTS TO BE FILLED SO REQUIRES, AS WAS THE CASE IN THE COMPETITION IN QUESTION .
16SINCE THE NOTICE OF COMPETITION AT ISSUE LAID DOWN THE CONDITION RELATING TO PRACTICAL EXPERIENCE IN ADDITION TO THAT RELATING TO EDUCATIONAL TRAINING THE SELECTION BOARD WAS UNABLE TO TAKE THE FORMER INTO ACCOUNT IF IT CONSIDERED, AS IN THE PRESENT CASE, THAT THE LATTER WAS NOT FULFILLED .
17THAT SUBMISSION MUST THEREFORE BE DISMISSED .
18THE APPLICANT CLAIMS, IN ADDITION, THAT THE SELECTION BOARD WRONGLY REFUSED TO ACKNOWLEDGE THAT THE CERTIFICATES WHICH HE POSSESSES SATISFY THE CONDITION LAID DOWN IN THE NOTICE OF COMPETITION RELATING TO THE COMPLETION OF A COURSE OF SECONDARY EDUCATION .
19THE COMMISSION DOES NOT DENY THAT THE COURSE COMPLETED BY THE APPLICANT IN BELGIUM IS AT THE LEVEL OF SECONDARY EDUCATION BUT CLAIMS THAT THE CERTIFICATES DO NOT MEET THE REQUIREMENTS OF THE NOTICE OF COMPETITION, SINCE THEY DO NOT GIVE ACCESS TO UNIVERSITY EDUCATION .
20THE NOTICE OF COMPETITION DEFINES THE CONDITION RELATING TO QUALIFICATIONS OR CERTIFICATES BY USING THE TERM ' ' COURSE OF SECONDARY EDUCATION ' '
AND BY ADDING THAT ' ' THE SELECTION BOARD, IN ASSESSING THE CERTIFICATE, WILL TAKE INTO ACCOUNT THE DIFFERING EDUCATIONAL SYSTEMS IN THE MEMBER STATES ' ' .
21ALTHOUGH THE COMMISSION IS ENTITLED TO DRAW UP THE CONDITIONS FOR ENTRY TO A COMPETITION IN TERMS WHICH ARE MORE RIGOROUS THAN THOSE USED IN THIS INSTANCE AND, IN PARTICULAR, TO REQUIRE POSSESSION OF A CERTIFICATE GIVING ACCESS TO UNIVERSITY SUCH A REQUIREMENT MUST BE APPARENT FROM THE ACTUAL WORDING OF THE NOTICE OF COMPETITION SINCE THERE ARE A GREAT MANY DIFFERENT TYPES OF SECONDARY EDUCATION IN THE VARIOUS MEMBER STATES, SOME OF WHICH ARE NOT PREPARATORY TO EDUCATION AT UNIVERSITY LEVEL AND DO NOT GIVE AUTOMATIC ACCESS TO SUCH EDUCATION .
22THUS, HAVING REGARD TO THE WORDING OF THE NOTICE OF COMPETITION IN QUESTION THE SELECTION BOARD WAS NOT EMPOWERED TO REFUSE THE APPLICANT ADMISSION ON THE GROUND THAT HIS CERTIFICATES DID NOT GIVE ACCESS TO UNIVERSITY EDUCATION .
23THAT IS A FORTIORI TRUE IN THIS INSTANCE SINCE THE APPLICANT HAD BEEN CONSIDERED TO FULFIL THE CONDITIONS OF AN EARLIER COMPETITION ( NO COM/B/139 ), WHICH WERE FORMULATED IN IDENTICAL TERMS TO THOSE USED IN THE NOTICE OF COMPETITION IN QUESTION .
24SINCE THE DECISION OF THE SELECTION BOARD MUST THEREFORE BE ANNULLED THERE IS NO REASON TO CONSIDER THE SUBMISSION REGARDING THE ALLEGED INSUFFICIENCY OF THE STATEMENT OF REASONS ON WHICH THE DECISION WAS BASED .
25AS THIS WAS AN OPEN COMPETITION TO CONSTITUTE A RESERVE FOR FUTURE RECRUITEMENT, THE RIGHTS OF THE APPLICANT WILL BE SUFFICIENTLY PROTECTED IF THE SELECTION BOARD RECONSIDERS ITS DECISION, WITHOUT ITS BEING NECESSARY TO QUESTION THE WHOLE OF THE RESULTS OF THE COMPETITION OR TO ANNUL APPOINTMENTS MADE IN CONSEQUENCE THEREOF .
Decision on costs
COSTS
26UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .
27AS THE DEFENDANT HAS FAILED IN ITS SUBMISSIONS IT MUST BE ORDERED TO PAY THE COSTS .
Operative part
ON THOSE GROUNDS,
THE COURT ( SECOND CHAMBER )
HEREBY :
1 . ANNULS THE DECISION NOTIFIED TO WILLY ORLANDI BY LETTER OF 20 SEPTEMBER 1977 BY WHICH THE SELECTION BOARD FOR COMPETITION NO COM/B/155 REFUSED TO ADMIT HIM TO THE TESTS RELATING TO THAT COMPETITION ;
2 . ORDERS THE COMMISSION TO PAY THE COSTS .