61978C0255
OPINION OF MR ADVOCATE GENERAL WARNER
DELIVERED ON 7 JUNE 1979
My Lords,
Introductory
In this action two C Category officials of the Commission, Mrs A. Anselme and Mr R. Constant, challenge decisions of a Selection Board not to admit them as candidates to an internal competition of which the purpose was to constitute a reserve of persons available for appointment as technical assistants in Grades 5 and 4 of Category B. The essential question at issue is whether the Selection Board erred in holding that the applicants did not satisfy the requirements for eligibility to take part in the competition. A point is also raised by the Commission, but not formally taken, as to the admissibility of the action.
The Notice of Competition (Annex 4 to the Application) bore the number COM/ BT/7/76 and, in accordance with the Commission's practice, was undated. It appears to have been published in September or October 1977. It indicated that the competition was to be based on tests only; and that the reserve list to be constituted as a result of the competition would be ‘valid until 31 December 1978 unless extended’. In answer to a question put by the Court at the close of pleadings the Commission stated that the validity of the list was eventually extended to 30 June 1979. Notice of the appointing authority's decision to that effect was published to the staff on 15 December 1978.
The posts to be filled were described in the Notice of Competition, under the heading ‘I. Nature of duties’, as being ‘in the following fields:
1.
Telecommunications: switchboard, telephone, telex, conference rooms;
2.
Audiovisual techniques;
3.
Electrical engineering (as applied to buildings, graphics, etc.);
4.
Graphics:
(a)
printing,
(b)
photo-engraving,
(c)
microfilm work and industrial photography,
(d)
offset lithography,
(e)
typesetting,
(f)
binding.’
(There was a discrepancy between the English and French texts of the Notice of Competition in that, under 4 (a), the French text had ‘edition’, which I think means ‘publishing’ rather than ‘printing’).
Candidates were requested to state, on their application forms, inter alia_‘the field(s) chosen (and, in the case of graphics, two of the specialities listed)’.
Under the heading ‘II. Eligibility’ the Notice of Competition set out the ‘Qualifications and practical experience’ required of candidates in the following terms:
‘A:
1.
Advanced secondary education, with certificate:
and
2.
‘At least 6 years’ experience by 31 December 1977 in the field chosen by the candidate from among those listed under ‘Nature of duties’;
and
3.
(a)
Entry into the service of the Communities as an official or other servant before 1 January 1973;
or
(b)
At least 15 years' practical experience by 31 December 1977 in the field chosen;
or B:
1.
At least 9 years' practical experience by 31 December 1977 of duties of a technical nature which the Staff Regulations classify as Category C standard;
and
2.
Entry into the service of the Communities as an official or other servant before 1 January 1973.’
Your Lordships see that, whilst under alternative A any experience relied upon by a candidate must be in the ‘field’ chosen by him from among those listed under ‘Nature of duties’, no such requirement was expressed under alternative B. Nor, in the case of graphics, was there any reference, under A or under B, to the ‘specialities’ chosen by the candidate.
Subsequent paragraphs of the Notice dealt with the requirements as to candidates' knowledge of languages, with the nature of the tests, with the marking of the tests, and with certain procedural matters. In none of them was there any express reference to the ‘fields’ chosen by candidates or, in the case of graphics, to the ‘specialities’ chosen by them.
The applicants were among those who applied to take part in the competition. Both chose the field of graphics. Mrs Anselme chose as her specialities ‘(a) printing (or publishing)’ and ‘(e) typesetting’, whilst Mr Constant chose ‘(b) photo-engraving’ and ‘(c) microfilm work and industrial photography’. Neither had a certificate of advanced secondary education, so that both could qualify to take part in the competition only under B. Both had entered into the service of the Commission well before 1 January 1973, so that, as regards their eligibility to take part in the competition, the only question could be, in the case of each of them, whether he or she satisfied the requirements of paragraph B.1. as to practical experience.
The papers put in by Mrs Anselme with her application form (Annex 1 to the Defence) showed that she had some 17 years' experience of typesetting. They did not however show that she had any experience of printing or publishing. Those put in by Mr Constant (Annex 2 to the Defence) showed that he had over 12 years' experience of photography, and in particular of microfilm work, but they did not show that he had any experience of photo-engraving.
On 7 February 1978, Mr Desbois, the Head of the ‘Recruiting, Appointments and Promotions Division’ of the Commission's Directorate-General of Personnel and Administration addressed to Mrs Anselme a letter stating that the Selection Board had rejected her application to take part in the competition on the ground that she did not have at least 9 years' practical experience of duties of a technical nature which the Staff Regulations classified as of Category C standard ‘in two specialities’. On the same day Mr Desbois addressed a letter in the same terms to Mr Constant (Annexes 5 and 6 to the Application).
On 10 February 1978 Mr Constant wrote to Mr Desbois referring to the rejection of his candidature and saying.
‘Pourtant, de mon dossier personnel, il ressort que dans le premier sous-domaine (microfilm et photo industrielle) je possède des connaissances approfondies dans ma spécialité. Ceci étant indiqué sur mes rapports de notation de fonctionnaire. En ce qui concerne le deuxième sous-domaine choisi (photogravure), le rapport de notation du 7 juillet 1971 couvrant la période du 1. 1. 1970 au 30. 6. 1971 atteste que je possède une bonne connaissance de la photo-gravure, ceci étant du au fait que j'ai passé un certain temps dans ce service ce qui m'a permis d'acquérir une experience dans ce domaine.’
He asked that his candidature be reconsidered (Annex 6 to the Application).
Mr Constant's report for the period 1. 1. 1970 to 30. 6. 1971 (Annex 13 to the Application), did indeed, after describing his duties as being ‘tous travaux de photographie — specialise dans le micro-filmage’, refer to him as having also a very good knowledge of photoengraving. That report was not however among the papers that Mr Constant had submitted with his application form for consideration by the Selection Board, nor was there any reference to it in those papers.
On 14 February 1978 Mr Constant wrote formally to the Chairman of the Selection Board asking for his candidature to be reconsidered, but he did not in that letter mention his knowledge of photo-engraving. He merely repeated verbatim the requirements set out under B in part II of the Notice of Competition and asserted that he fulfilled them. (See Annex 7 to the Application).
Mrs Anselme wrote an identical letter on the same day to the Chairman of the Selection Board (Annex 7 to the Application). She followed this up on the following day with a note to Mr Desbois in which she gave an account of her career in the service of the Commission, mentioned her knowledge of languages, and referred to comments contained in her report for the period 1975 to 1977 (Annex 8 to the Application). The contents of that note amply confirm Mrs Anselme's qualifications and experience in the field of typesetting; they do not however suggest that she had any experience of printing or publishing.
On 22 February 1978 Mr Desbois wrote to each of the applicants (Annex 9 to the Application) informing them, in identical terms, that the Selection Board had reconsidered their cases but had come to the conclusion that is must adhere to its previous decision. There is nothing to show whether, on that occasion, the Selection Board took into consideration, in Mr Constant's case, the contents of his report for the period 1. 1. 1970 to 30. 6. 1971. However, Mr Desbois, in each case, added to his letter a P.S. offering the Applicant concerned an interview. It does not appear that either of the applicants took advantage of that invitation.
On 25 April 1978 each of the applicants submitted a formal complaint under Article 90 of the Staff Regulations against the decision excluding him or her from the competition (Annex 10 to the Application).
On 17 May 1978 Mr Rogalla, the Head of the Surf Regulations Division of the Commission's Directorate-General of Personnel and Administration, responded to the applicants' complaints by inviting each of them for an interview (Annex 12 to the Application). Again it does not appear that either of them took advantage of the invitation. There was no further response by or on behalf of the appointing authority to the applicants' complaints.
On 22 November 1978 the applicants commenced the present action before this Court.
Admissibility of the action
I mentioned at the outset that the Commission raised, but did not formally take, a point as to the admissibility of the action. That point was that the action might be time-barred on the ground that it had been brought 9 months after the decision of the Selection Board had been communicated to the applicants. The Commission referred in that connexion to the authorities in this Court according to which the appropriate course for an official to follow, when he wishes to challenge a decision of a selection board, is to bring the matter immediately before the Court, without first submitting a complaint to the appointing authority under Article 90 of the Staff Regulations.
That proposition first saw the light of day in Case 44/71 Marcato v Commission [1972] ECR 427 (‘the second Marcato case’), where the applicant had submitted a formal complaint to the appointing authority against a decision of a selection board excluding him from a competition, and had then appealed to this Court against the implied rejection of that complaint. No question as to the admissibility of the action was raised either by the Commission or by Mr Advocate General Roemer. The Court, however, of its own motion, said this:
‘… it must be observed that a complaint to the Commission through official channels against a decision adopted by a Selection Board appears to be pointless, as the Commission is not competent to annul or amend the decisions of such a board.
Therefore, the only legal remedy open to individuals in relation to such a decision lies in an application to the Court, which alone has jurisdiction to annul such decisions.
The preliminary reference of the matter to the Commission is, however, explained by the practice of officials of never referring directly to the Court those measures which affect them adversely, but of appealing first, even though it be unnecessary to do so.
In the light of the foregoing, the appeal against the implied refusal of the Commission must not be declared inadmissible for this reason but it must be admitted as directed against the decision of the Selection Board and the time-limit for appeals against this decision … must be considered not to have expired.’ (Paragraphs 4 to 9 of the Judgment).
That was followed by Case 37/72 Marcato v Commission [1973] ECR 361 (‘the third Marcato case’). There, on similar facts, the Commission, citing the second Marcato case, took a. stance similar to that which it has taken in the present case. It raised the question of the admissibility of a plea to the validity of the selection board's decision without formally contending that that plea was inadmissible. Mr Advocate General Mayras expressed the opinion that it would be inequitable to hold the plea inadmissible. He also doubted whether it was inadmissible as a matter of law, for was it not, he said, the duty of an appointing authority in receipt of a complaint against a decision of a selection board to forward the complaint to the selection board for consideration? The Court held:
‘The prior approach to the Commission is explained by the officials' custom of not bringing acts adversely affecting them directly before the Court, but of addressing themselves first, even though unnecessarily, to the appointing authority.
In view of this situation, it appears just to accept the plea as admissible.’ (Paragraphs 14 and 15 of the Judgment).
The second and third Marcato cases were decided on facts that had occurred before the amendment of Articles 90 and 91 of the Staff Regulations by Council Regulation (Euratom, ECSC, EEC) No 1473/72 in July 1972. The first relevant case to come before the Court on facts that occurred after that date was Case 31/75 Costacurta v Commission [1975] ECR 1563. There the Commission had in its pleadings again raised the question of the admissibility of the action without formally relying on the point, but it came off the fence at the hearing and then formally claimed that the action was inadmissible. I expressed the opinion that Regulation No 1473/72 had changed the law and made it obligatory in all cases for an official to submit a complaint to the appointing authority before appealing to this Court. I also expressed my agreement with the view of Mr Advocate General Mayras that such a complaint need not be futile. Lastly I said that, at all events, it would be inequitable to hold Mr Costacurta's action inadmissible. The Court held that:
‘… since in the present case the events took place when the new Staff Regulations were applicable, it would be contrary to the rules of fairness to hold it against the applicant for having followed the procedure clearly laid down in Articles 90 and 91 as amended.’
Case 9/76 Morello v Commission [1976] ECR 1415 was the first case in which an official appealed directly to this Court against a decision of a selection board, without first submitting a complaint to the appointing authority. The Commission in its defence pleaded that the action was inadmissible for want of compliance with Article 91; but withdrew that plea in its rejoinder. Mr Advocate General Mayras briefly observed that, as a result of the Marcato and Costacurta cases, an official was not required to lodge a complaint under Article 91 before appealing to the Court against a decision of a selection board. The Court itself did not find it necessary to deal with the point.
In Case 7/77 von Wüllerstorff und Urbair v Commission [1978] ECR 769, where again the official concerned had appealed directly to this Court, the Commission again raised the question of admissibility without formally pleading it. The Commission did so, I think, largely because of what I had said in the Costacurta case and because it considered that, on such a question, it was of paramount importance that the law should be certain. With that view I agreed. The Court held:
‘… Article 91 (2) of the Staff Regulations in fan provides that an appeal to the Court of Justice shall lie only if the person concerned has first availed himself of the administrative procedure laid down in Article 90.
Nevertheless this procedure is devoid of purpose where a complaint is directed against the decisions of a Selection Board in a competition since the appointing authority is not empowered to review such decisions.
Accordingly the general plan both of the administrative procedure and of the court procedure militates against an interpretation of Article 91 (2), which if taken literally, would merely result in a futile prolongation of the procedure.
The applicant thus correctly interpreted the Staff Regulations when he took the view that the condition in Article 91 refers only to measures which the appointing authority can review.’ (Paragraphs 6 to 9 of the Judgment).
In Cases 4, 19 & 28/78 Salerno and others v Commission [1978] ECR 2403, where the officials concerned had submitted complaints under Article 90 but brought their actions in this Court without awaiting the result of those complaints, the Commission raised no point as to that admissibility of the actions. The Court, following the opinion of Mr Advocate General Capotorti, said:
‘The question thus arises whether the applications are admissible from the point of view of Article 91 (2) of the Staff Regulations, which requires that the procedure involving the submission of a complaint through official channels shall first have been completed.
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.
If, nevertheless, the person concerned sends the appointing authority a complaint through official channels, such a step, whatever its legal significance may be, cannot have the consequence of depriving him of his right to apply directly to the Court in view of the fact that this is a right which he cannot renounce and which is therefore not capable of being affected by his individual behaviour. It follows that the applications are admissible.’ (Paragraphs 8 to 11 of the Judgment).
In Case 112/78 Kobor v Commission (5 April 1979, not yet reported) the official concerned, having been informed on 23 September 1977 of a decision of a selection board to exclude her from a competition, and having had that decision confirmed to her by the chairman of the selection board on 7 October 1977, submitted a complaint to the appointing authority on 11 October 1977. That complaint was rejected. The official brought her action in this Court, claiming that the decision of the selection board should be declared void, on 8 May 1978. No-one suggested that the action might be inadmissible.
In Case 117/78 Orlandi v Commission (also 5 April 1979, not yet reported), however, where the facts were similar, the Commission raised the question of the admissibility of the action without formally pleading its inadmissibility. The Court, again following the opinion of Mr Advocate General Capotorti, held that, although, in such circumstances, the complaint to the appointing authority was unnecessary, the fact that the official concerned had submitted it and awaited its outcome, could not result in his action being time-barred.
Thus, whilst there are some minor inconsistencies between certain of the Judgments of the Court forming part of that line of authority, it is, in my opinion, now clearly established that:
(i)
An official who is aggrieved by a decision of a selection board need not submit a complaint to the appointing authority before appealing to this Court against that decision, and he should not normally delay matters' by doing so.
(ii)
None the less, if such an official does make such a complaint, whether or not he awaits its outcome before appealing to the Court, his doing so cannot result in his action becoming time-barred.
I conclude that the present action is admissible; and I express the hope that this will be the last case in the line of authority in question. The law on this vexed topic should, I think, henceforth be regarded as settled.
So I turn to the substance of the present case.
The substance of the case
The main point that was argued was that of interpretation of part II.B.1. of the Notice of Competition. On that point it was submitted on behalf of the applicants that a literal interpretation was appropriate, so that it was enough to render the applicants eligible to take part in the competition that each of them had ‘At least 9 years' practical experience by 31 December 1977 of duties of a technical nature which the Staff Regulations classify as Category C standard’. On behalf of the Commission on the other hand it was submitted that the provisions of the Notice of Competition must be interpreted in the light of their purpose, so that it should be taken to be implicit in part II.B.1 that the ‘practical experience’ there referred to must be in the ‘field’ chosen by the candidate and, in the case of a candidate choosing the field of ‘graphics’, in both the specialities chosen by him.
There are thus two questions:
(i)
Whether the Commission is right in saying that the experience referred to in part II.B.1 must be in the ‘field’ chosen by the candidate; and
(ii)
If so, whether, in the case of graphics, that experience must be in both the specialities chosen by the candidate.
I have, for my part, little difficulty in concluding that on question (i) the Commission is right. To hold otherwise would be to hold, contrary to common sense, that a candidate who had a certificate of advanced secondary education must have experience in the ‘field’ chosen by him (as part II.A. 1 expressly requires) but that a candidate with no such certificate need not.
Why then does part II.B.1. not expressly state that the ‘practical experience’ of a candidate with no certificate of advanced secondary education must be in the field chosen by him? If, as I think, the explanation cannot be that the authors of the Notice of Competition intended that, in the case of such a candidate, experience in any field should suffice, it can only be that they thought the point so obvious that, in their haste, they overlooked the desirability of making it unequivocally clear. For that they are undoubtedly open to criticism, but it would, in my opinion, be perverse to hold them to the literal meaning of their document.
Question (ii) is, to my mind, more difficult. Consideration of it brings out even more starkly the lack of care with which the Notice of Competition was drafted. Although candidates choosing ‘graphics’ as their field were asked to select two ‘specialities’ within that field, there is no mention anywhere in the Notice of Competition of any purpose for which they were asked to do so.
On behalf of the applicants it was argued that the purpose can only have been to ascertain the domains in which the candidates wished to be tested, and perhaps to facilitate the appointing authority's choice, from the list of suitable candidates to be drawn up by the Selection Board, of persons to be appointed to particular posts. That argument seems to me however to contain the seeds of its own destruction. If those were purposes for which ‘graphics’ candidates were asked to select ‘specialities’, why should it not also have been such a purpose to ascertain whether they had the requisite ‘experience’? What, after all, could be the purpose of testing a candidate's ability in a domain in which he claimed no experience?
The lack of any mention of ‘specialities’ in the field of graphics in part II of the Notice of Competition gives rise, however, to a further problem. Paragraph A.2. in that pan refers to ‘6 years' experience’; paragraph A.3.(b) to ‘15 years' practical experience’; and paragraph B.1. (with which we are particularly concerned) to ‘9 years' practical experience’. Does that mean that, under paragraph A.2., a ‘graphics’ candidate must have 6 years' experience in each of his chosen specialities (making a total of 12 years); that under paragraph A.3(b) he must have 15 years' experience in each (making a total of 30 years); and that under paragraph B.1. he must have 9 years' experience in each (making a total of 18 years)? The Commission naturally shrank from so unreasonable an interpretation. It submitted that a total of 6, 15 or 9 years' experience (as the case might be) was enough (as it was for candidates in fields other than graphics) and that it was for the Selection Board to judge, in the case of each ‘graphics’ candidate, whether, within his requisite 6, 15 or 9 years, he had acquired adequate experience in each of his two chosen specialities.
That interpretation involves implying into part II of the Notice of Competition a great deal that is not there expressed, and it involves according to the Selection Board a substantial measure of discretion. I have, however, with some hesitation, come to the conclusion that it is the right interpretation. Any other would stultify the requirement in the Notice of Competition that ‘graphics’ candidates should specify two specialities. Here again, it seems to me, the solution lies in an appeal to common sense. Nor do I forget the point made by the Commission that experience in one only of the specialities of graphics mentioned in the Notice of Competition could hardly justify the promotion of an official from Category C to Category B.
In the result I am of the opinion that the Commission is right on question (ii) also.
There remains the point concerning Mr Constant's knowledge of photoengraving. That point was not much pressed on his behalf; and in my opinion rightly not. Whatever the extent of his knowledge and experience of photoengraving may be (and as to that we know only what was stated in his report for the period 1. 1. 1970 to 30. 6. 1971 and what he told Mr Desbois in his letter of 10 February 1978) the fact is that he omitted to refer to them in his application papers. He did not even refer to them in his letter to the Chairman of the Selection Board of 14 February 1978. He mentioned them only in his letter to Mr Desbois.
We are all aware of the time-consuming nature of the work of selection boards in the Community institutions and of the constant need to streamline their procedures in so far as may be consistent with the fair and efficient discharge by them of their functions. In that situation, it must be incumbent on officials who wish to take part in competitions to take care to include in their application papers all relevant information about their qualifications. It cannot be expected of a selection board that it should hunt through the personal file of each candidate to see whether he has left anything out. Nor can a candidate rely on the personnel department of his institution to pass on to a selection board titbits of information that he has drawn to its attention but not to that of the selection board itself.
I accordingly think that Mr Constant has only himself to blame if his experience of photo-engraving was not adequately taken into account by the Selection Board — all the more so because, seemingly, he availed himself neither of Mr Desbois's nor of Mr Rogalla's offer of an interview.
In the result I am of the opinion that the applicants' claims must fail. I might have reached that conclusion with regret, were it not for the fact that the validity of the reserve list constituted as a result of the competition is due to expire at the end of this month. In view of that, it is difficult to see what useful purpose an order of this Court in favour of the applicants could serve. Perhaps that illustrates the wisdom of the rule, established by the decisions of the Court to which I have referred, that an official who wishes to challenge a decision of a selection board should not delay matters by submitting a complaint to the appointing authority, but should appeal at once to the Court.
Costs
I have considered whether any exception should be made in this case to the general rule derived from Article 70 of the Court's Rules of Procedure that, where an action such as this fails, each side should bear its own costs. The reason why I have done so is that, to a large extent, the Commission caused these proceedings by uttering an illdrafted Notice of Competition. I have, however, come to the conclusion that no such exception should be made, lest it be interpreted as an indication to aggrieved officials that, whenever a Community institution publishes an ambiguous notice of vacancy or notice of competition, they may freely litigate about it at no financial risk to themselves.
Conclusion
I would therefore dismiss this action with the usual result as to costs.