61964CJ0018_EN
Parties
Subject of the case
Grounds
Decision on costs
Endorsements
Operative part
Parties
IN CASE 18/64
FILIPPO ALVINO, ARTIN BARTH, CLAUDE BRUS, ALBERTO DE PASCALE, ROGER DETILLIEU, JEAN ERHARD, GIAN PIETRO FONTANA-RAVA, JEANNE FUX, LEOPOLDO GIUNTI, WILHELM HILBERT, AMBROGIO MATTINO, ALVARO MOZZICAFREDDO, GEORG PAULINI, DIONIGI PIZZUTI, ANDRE SAUDRAY, FR . HORST SCHMIDT, GUSTAV TREIKE, UDO WARTENBERG, JOSEF MOENS,
ALL OFFICIALS OF THE COMMISSION OF THE EUROPEAN ECONOMIC COMMUNITY, REPRESENTED BY MARCEL SLUSNY, ADVOCATE OF THE COUR D' APPEL, BRUSSELS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE RESIDENCE OF BERNARD SCHMITZ, 6 RUE J.B . ESCH,
APPLICANTS,
V
COMMISSION OF THE EUROPEAN ECONOMIC COMMUNITY, REPRESENTED BY ITS LEGAL ADVISER, LOUIS DE LA FONTAINE, ACTING AS AGENT, ASSISTED BY CYR CAMBIER, ADVOCATE OF THE COUR D' APPEL, BRUSSELS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICES OF HENRI MANZANARES, SECRETARY OF THE LEGAL DEPARTMENT OF THE EUROPEAN EXECUTIVES, 2 PLACE DE METZ,
DEFENDANT,
IN CASE 19/64
JACQUELINE BENOIT, PIETRO DEL VAGLIO, ANTONIO GRIPPO,
ALL OFFICIALS OF THE COMMISSION OF THE EUROPEAN ECONOMIC COMMUNITY, REPRESENTED BY MARCEL SLUSNY,
APPLICANTS,
V
COMMISSION OF THE EUROPEAN ECONOMIC COMMUNITY, REPRESENTED BY LOUIS DE LA FONTAINE, ASSISTED BY CYR CAMBIER,
DEFENDANT,
Subject of the case
APPLICATION FOR THE ANNULMENT OF THE RECRUITMENT PROCEDURE ( COMPETITION NO 165-A ) HELD BY THE COMMISSION IN ORDER TO ESTABLISH A RESERVE LIST OF 120 ADMINISTRATORS WHOSE CAREER BRACKETS COVER GRADE 7 AND 6 OF CATEGORY A, AND THE RESULTANT APPOINTMENTS;
Grounds
P.796
THE PRESENT APPLICATIONS ARE MADE AGAINST NOTICE OF INTERNAL COMPETITION NO 165-A AND VARIOUS DECISIONS TAKEN BOTH BY THE COMMISSION AND BY THE SELECTION BOARD DURING THE COMPETITION PROCEDURE, INCLUDING THE DECISIONS OF THE COMMISSION CONSEQUENT THEREON .
THE DEFENDANT MAINTAINS THAT THE APPLICATION IS INADMISSIBLE ON THREE GROUNDS .
BY MEANS OF JOINT APPLICATIONS THE APPLICANTS ARE CONTESTING VARIOUS MEASURES WHICH ARE IN NO WAY OF EQUAL CONCERN TO THEM .
ALTHOUGH IT IS TRUE THAT CERTAIN OF THE ORIGINAL CONCLUSIONS WERE DIRECTED AGAINST VARIOUS SEPARATE MEASURES TAKEN BY THE SELECTION BOARD, THE APPLICANTS AMENDED THEIR CONCLUSIONS IN THE COURSE OF THE PROCEEDINGS WITH THE RESULT THAT THEY REFER ONLY TO IDENTICAL MEASURES OR TO MEASURES WHICH CONCERN THEM ALL EQUALLY .
P.797
IT APPEARS, THEREFORE, THAT THE FIRST SUBMISSION OF INADMISSIBILITY HAS NO FACTUAL BASIS .
AS THE NOTICE OF COMPETITION AND ALL THE MEASURES TAKEN IN THE COMPETITION PROCEDURE WERE PUBLISHED OR COMMUNICATED TO THE APPLICANTS MORE THAN THREE MONTHS BEFORE THE APPLICATIONS WERE LODGED IT IS CLAIMED THAT SUCH APPLICATIONS ARE OUT OF TIME .
HAVING REGARD TO THE CLOSE CONNEXION BETWEEN THE DIFFERENT MEASURES COMPRISING THE RECRUITMENT PROCEDURE, IT MUST BE ACCEPTED THAT IN AN ACTION CONTESTING LATER STEPS IN SUCH A PROCEDURE THE APPLICANTS MAY CONTEST THE LEGALITY OF EARLIER STEPS WHICH ARE CLOSELY LINKED TO THEM .
BOTH THE GROUNDS OF COMPLAINT INVOKED BY THE APPLICANTS AGAINST THE NOTICE OF COMPETITION AND THE IMPLEMENTING MEASURES TAKEN DURING THE COMPETITION PROCEDURE MAY THEREFORE BE TAKEN INTO CONSIDERATION BY THE COURT IN ITS APPRAISAL OF THE LEGALITY OF THE APPOINTMENTS MADE ON THE BASIS OF THIS COMPETITION, WHICH CONSTITUTE THE MAIN SUBJECT MATTER OF THE APPLICATION .
AS REGARDS THESE APPOINTMENTS, THE DEFENDANT COMPLAINS THAT THE APPLICATIONS DO NOT IDENTIFY THE DECISIONS BY WHICH THE COMMISSION ADOPTED THE RESULTS OF THE COMPETITION, THAT IS, THE APPOINTMENTS MADE ON THE BASIS OF THE COMPETITION .
ALTHOUGH IT IS TRUE THAT THEY HAVE FAILED TO IDENTIFY THESE APPOINTMENTS, THE APPLICANTS CANNOT BE CRITICIZED ON THIS GROUND .
IT IS IN THE NATURE OF A COMPETITION HELD TO CONSTITUTE A RESERVE FOR FUTURE RECRUITMENT THAT IT SHOULD BE IMPOSSIBLE TO STATE, FROM THE APPOINTMENTS PUBLISHED, WHICH OF THEM RESULTED FROM COMPETITION NO 165-A .
AS THE APPLICANTS HAVE EXPRESSLY CLAIMED THE ANNULMENT OF THE ABOVE APPOINTMENTS WITHOUT IDENTIFYING THEM AND AS THE DEFENDANT HAS SUBMITTED TO THE COURT A LIST OF THE 55 APPOINTMENTS MADE BEFORE 31 JANUARY 1965 ON THE BASIS OF THE COMPETITION IN DISPUTE, THE SUBJECT - MATTER OF THE ACTION APPEARS TO BE SUFFICIENTLY CLEARLY DEFINED .
FOR ALL THESE REASONS THE OBJECTION OF INADMISSIBILITY MUST BE DISMISSED .
THE SUBSTANCE OF APPLICATION 18/64
IN APPLICATION 18/64 THE APPLICATIONS MAKE SEVERAL SUBMISSIONS FOR THE ANNULMENT OF THE DECISIONS OF THE COMMISSION SANCTIONING THE COMPETITION IN DISPUTE .
P.798
THEY MAINTAIN THAT, INTER ALIA, THE SELECTION BOARD FOR THE COMPETITION FAILED TO APPRECIATE THE REQUIREMENTS LAID DOWN BY THE NOTICE OF COMPETITION IN THAT IT REGARDED ONLY EXPERIENCE OBTAINED IN EMPLOYMENT OVER A PERIOD OF SIX YEARS AS EQUIVALENT TO A QUALIFICATION OBTAINED BY ' UNIVERSITY EDUCATION, SUPPORTED BY A DEGREE '.
IN THIS RESPECT IT IS CLEAR FROM THE REPORT OF THE SELECTION BOARD PRODUCED BY THE DEFENDANT IN A SCHEDULE TO ITS STATEMENT OF DEFENCE THAT IN ORDER TO DETERMINE THE EQUIVALENCE OF THE EXPERIENCE IN EMPLOYMENT OF CANDIDATES NOT POSSESSING A UNIVERSITY DEGREE, THE BOARD DECIDED TO ESTABLISH TWO CRITERIA BASED FIRST ON THE ' DURATION OF EQUIVALENT EXPERIENCE IN EMPLOYMENT ' AND SECONDLY ON THE ' LEVEL OF EQUIVALENT EXPERIENCE IN EMPLOYMENT '.
THE EFFECT OF THESE TWO CRITERIA IS TO BE SEEN CLEARLY IN A LETTER FROM THE DIRECTORATE-GENERAL OF ADMINISTRATION TO SEVERAL CANDIDATES WHO HAD BEEN ELIMINATED AND HAD REQUESTED THE REASONS FOR THEIR ELIMINATION .
THIS LETTER EXPLAINED IN PARTICULAR THAT :
' IN ORDER TO ASSESS THE EQUIVALENCE OF THE EXPERIENCE OF CANDIDATES IN EMPLOYMENT THE SELECTION BOARD CONSIDERED BOTH THEIR ACTIVITIES BEFORE THEIR ENTRY INTO THE SERVICE OF THE INSTITUTION AND THEIR LATER ACTIVITIES WITHIN THE INSTITUTION . EQUIVALENCE WAS DETERMINED ON THE BASIS OF THE LEVEL AND DURATION OF SUCH ACTIVITIES . HAVING TAKEN INTO ACCOUNT THE NORMAL DURATION OF UNIVERSITY STUDIES AND THE PRACTICE FOLLOWED IN OTHER COMPETITIONS FOR CATEGORY A, THE SELECTION BOARD CONSIDERED THAT THE ONLY ACTIVITIES CAPABLE OF BEING REGARDED AS EQUIVALENT TO UNIVERSITY STUDIES WERE THOSE PERFORMED OVER A PERIOD OF AT LEAST SIX YEARS . MOREOVER, THE LEVEL OF THESE ACTIVITIES MUST BE COMPARABLE TO THOSE OF AN OFFICIAL WHO HAS RECEIVED A UNIVERSITY EDUCATION, SUPPORTED BY A DEGREE, AND WHO IS ENGAGED IN PERFORMING DUTIES APPROPRIATE TO CATEGORY A, WITHIN THE MEANING OF ARTICLE 5 OF THE STAFF REGULATIONS '.
IN ACTING IN THIS WAY THE SELECTION BOARD SERIOUSLY FAILED TO APPRECIATE THE TERMS OF THE NOTICE OF COMPETITION AND THE CONCEPT OF EQUIVALENCE .
THE FACT THAT A CANDIDATE PERFORMS ACTIVITIES IN HIS EMPLOYMENT AT A LEVEL COMPARABLE TO THOSE PERFORMED BY AN OFFICIAL WHO HAS RECEIVED A UNIVERSITY EDUCATION, SUPPORTED BY A DEGREE, AND WHO IS ENGAGED IN PERFORMING THE DUTIES APPROPRIATE TO CATEGORY A WITHIN THE MEANING OF THE STAFF REGULATIONS IS IN ITSELF PROOF THAT HAVING ACCEDED TO THESE DUTIES THE OFFICIAL IN QUESTION POSSESSES, AS REGARDS THE REQUIREMENTS OF PUBLIC OFFICE, EXPERIENCE IN EMPLOYMENT EQUIVALENT TO SUCH A LEVEL OF EDUCATION, SUPPORTED BY A DEGREE .
IT IS CLEAR FROM ITS REPORT THAT BY INSISTING THAT THE NECESSARY EXPERIENCE SHOULD HAVE BEEN OBTAINED OVER A PERIOD OF AT LEAST SIX YEARS THE SELECTION BOARD WISHED TO ESTABLISH A CERTAIN BALANCE BETWEEN THIS PERIOD AND THAT REQUIRED FOR UNIVERSITY STUDIES .
ON THE ONE HAND IT IS UNREASONABLE TO TREAT THIS PERIOD AS THE NORMAL DURATION OF UNIVERSITY STUDIES AND ON THE OTHER THE SELECTION BOARD HAS ADOPTED A CRITERION WHICH IS COMPLETELY FOREIGN TO THE PROBLEM TO BE SOLVED .
THIS PROBLEM MAY BE FORMULATED IN THE FOLLOWING WAY : BY WHAT STANDARDS SHOULD EQUIVALENT EXPERIENCE IN EMPLOYMENT BE ASSESSED IN THE CASE OF CANDIDATES WHO DO NOT POSSESS A UNIVERSITY DEGREE?
IT IS SUFFICIENT TO REQUIRE - AS THE SELECTION BOARD HAS IN FACT DONE - EXPERIENCE IN EMPLOYMENT ACQUIRED THROUGH PROMOTION TO ACTIVITIES AND DUTIES NORMALLY RESERVED FOR THE HOLDERS OF UNIVERSITY DEGREES .
ALTHOUGH IT IS ACCEPTABLE TO REQUIRE SUCH EXPERIENCE TO BE SPREAD OVER A CERTAIN PERIOD, THIS REQUIREMENT MUST BE BASED ON MORE APPROPRIATE CRITERIA THAN THE DURATION OF UNIVERSITY STUDIES .
THUS, BY INTRODUCING THE REQUIREMENT IN DISPUTE THE SELECTION BOARD ACTED ULTRA VIRES IN SUCH A WAY AS TO VITIATE THE PREPARATION OF THE LIST OF CANDIDATES ADMITTED TO THE COMPETITION .
THE COMPETITION IS THEREFORE ILLEGAL AND CANNOT PROVIDE A LEGAL BASIS FOR APPOINTMENTS AND PROMOTIONS .
THE APPOINTMENTS MADE BY THE COMMISSION ON THE BASIS OF THE RESULTS OF COMPETITION NO 165-A MUST THEREFORE BE ANNULLED .
APPLICATION 19/64
APPLICATION 19/64 HAS LOST ITS PURPOSE AS A RESULT OF THE OUTCOME OF APPLICATION 18/64 .
Decision on costs
UNDER THE TERMS OF ARTICLE 69(2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .
THE DEFENDANT IN CASE 18/64 HAS FAILED IN ITS PLEAS AND MUST THEREFORE BE ORDERED TO PAY THE COSTS .
UNDER THE TERMS OF ARTICLE 69(5 ) OF THE RULES OF PROCEDURE WHERE A CASE DOES NOT PROCEED TO JUDGMENT THE COSTS SHALL BE IN THE DISCRETION OF THE COURT .
SINCE APPLICATION 19/64 HAS LOST ITS PURPOSE NO DECISION NEED BE MADE ON THE SUBSTANCE .
Endorsements
ON THOSE GROUNDS,
UPON READING THE PLEADINGS;
UPON HEARING THE REPORT OF THE JUDGE - RAPPORTEUR;
UPON HEARING THE PARTIES;
UPON HEARING THE OPINION OF THE ADVOCATE-GENERAL;
HAVING REGARD TO THE TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY;
HAVING REGARD TO THE STAFF REGULATIONS OF OFFICIALS OF THE EUROPEAN ECONOMIC COMMUNITY, ESPECIALLY ARTICLE 91 AND ANNEX III;
HAVING REGARD TO THE RULES OF PROCEDURE OF THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES, ESPECIALLY ARTICLE 69;
Operative part
THE COURT ( SECOND CHAMBER )
HEREBY :
1 . DECLARES THAT APPLICATION 18/64 IS WELL FOUNDED;
2 . ANNULS INTERNAL COMPETITION NO 165-A AND THE APPOINTMENTS MADE BY THE COMMISSION ON THE BASIS THEREOF;
3 . DECLARES THAT NO DECISION NEED BE GIVEN IN APPLICATION 19/64;
4 . ORDERS THE DEFENDANT IN APPLICATION 18/64 TO PAY THE COSTS;
5 . ORDERS THAT THE PARTIES IN APPLICATION 19/64 SHALL BEAR THEIR OWN COSTS .