61964CJ0016_EN
Parties
Subject of the case
Grounds
Decision on costs
Endorsements
Operative part
Parties
IN CASE 16/64
GERTRUD RAUCH, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN ECONOMIC COMMUNITY, RESIDING AT 152 AVENUE GRIBAUMONT, WOLUWE-SAINT-LAMBERT, ( BELGIUM ), REPRESENTED BY MARCEL SLUSNY, ADVOCATE AT THE COUR D' APPEL, BRUSSELS, LECTURER AT THE FREE UNIVERSITY OF BRUSSELS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF BERNARD SCHMITZ, 6 RUE J.B . ESCH,
APPLICANT,
V
COMMISSION OF THE EUROPEAN COMMUNITIES, BRUSSELS, REPRESENTED BY ITS LEGAL ADVISER, LOUIS DE LA FONTAINE, ACTING AS AGENT, 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,
Subject of the case
APPLICATION FOR THE ANNULMENT OF CERTAIN MEASURES ADOPTED IN RELATION TO THE PROCEDURE FOR A COMPETITION,
Grounds
P.142
I - THE FIRST SUBMISSION
THE APPLICANT DESCRIBES THE ADMISSION OF MEMBERS OF THE AUXILIARY STAFF TO ' COMPETITIONS INTERNAL TO THE INSTITUTION ' MENTIONED IN ARTICLE 29(1)(B ) OF THE STAFF REGULATIONS AS ILLEGAL .
P.143
1 . ADMISSIBILITY
THE DEFENDANT OBJECTS THAT THIS SUBMISSION IS OUT OF TIME ON THE GROUND THAT THE APPLICANT DID NOT CONTEST AT THE PROPER TIME CERTAIN PREVIOUS DECISIONS ADMITTING AUXILIARY STAFF AS CANDIDATES FOR THE POST CONCERNED, NAMELY VACANCY NO 166 AND NOTICE OF COMPETITION NO 143/B .
SINCE THE RECRUITMENT PROCEDURE CONSISTS OF SEVERAL INTERDEPENDENT MEASURES THIS OBJECTION WOULD BE TANTAMOUNT TO REQUIRING PERSONS CONCERNED TO BRING AS MANY ACTIONS AS THE NUMBER OF ACTS CAPABLE OF ADVERSELY AFFECTING THEM CONTAINED IN THE SAID PROCEDURE .
HAVING REGARD TO THE CLOSE CONNEXION BETWEEN THE DIFFERENT MEASURES COMPRISING THE RECRUITMENT PROCEDURE, IT MUST BE ACCEPTED THAT IN AN ACTION CONTESTING THE LATER STEPS IN SUCH A PROCEDURE, THE APPLICANT MAY CONTEST THE LEGALITY OF EARLIER STEPS WHICH ARE CLOSELY LINKED TO THEM .
THEREFORE, SO AS TO REVIEW THE LEGALITY OF THE APPOINTMENT OF MISS KURZ, WHICH IS THE PRINCIPAL OBJECT OF THE APPEAL, THE COURT MAY TAKE INTO CONSIDERATION THE COMPLAINTS RAISED BY THE APPLICANT AGAINST THE MEASURES PRIOR TO SUCH APPOINTMENT, AND IN PARTICULAR AGAINST THE DISPUTED NOTICES .
2 . THE SUBSTANCE
THE EXPRESSION ' COMPETITION INTERNAL TO THE INSTITUTION ', TAKEN AS IT STANDS, MEANS ANY PERSON EMPLOYED BY THE INSTITUTION, IN WHATEVER CAPACITY .
THIS INTERPRETATION IS CONFIRMED BY THE AIM ASSIGNED TO THE RECRUITMENT PROCEDURE BY ARTICLE 27 OF THE STAFF REGULATIONS NAMELY ' SECURING FOR THE INSTITUTION THE SERVICES OF OFFICIALS OF THE HIGHEST STANDARD OF ABILITY, EFFICIENCY AND INTEGRITY '. THIS AIM INVOLVES THE NECESSITY OF RECRUITING OFFICIALS ON AS BROAD A BASIS AS POSSIBLE .
THE APPLICANT OBJECTS THAT AS THE METHOD OF COMPETITION INTERNAL TO THE INSTITUTION OCCURS BETWEEN TWO SENTENCES WHICH ONLY DEAL WITH OFFICIALS ( ARTICLES 29(1)(A ) AND ( C )), THE STRUCTURE OF THE PROVISION IN QUESTION NECESSARILY GIVES THE IMPRESSION THAT THAT METHOD ALSO APPLIES ONLY TO OFFICIALS . THIS OBJECTION OVERLOOKS SUBPARAGRAPH ( D ) OF ARTICLE 28 OF THE STAFF REGULATIONS IN ACCORDANCE WITH WHICH NO-ONE CAN BE APPOINTED AS AN OFFICIAL WITHOUT HAVING PASSED A COMPETITION . THE EFFECT OF THIS PROVISION IS TO LIMIT THE MOVES CONTEMPLATED IN ARTICLE 29(1)(A ) AND ( C ) TO OFFICIALS ALONE SINCE THESE MOVES DO NOT INVOLVE COMPETITIONS . HOWEVER, SUCH A LIMITATION IS NOT IMPOSED WHERE SUBPARAGRAPH ( B ) IS CONCERNED SINCE IT EXPRESSLY INVOLVES HOLDING A COMPETITION .
P.144
IT IS ALREADY CLEAR FROM THE FOREGOING CONSIDERATIONS THAT THIS SUBMISSION IS UNFOUNDED . THERE IS THEREFORE NO NEED TO GO INTO THE OTHER ARGUMENTS PUT FORWARD BY THE APPLICANT IN SUPPORT OF IT .
II - SECOND SUBMISSION
THIS SUBMISSION DEALS WITH THE FACT THAT THE APPOINTMENT OF MISS KURZ DID NOT TAKE PLACE UNTIL AFTER THE EXPIRY OF THE PERIOD OF ONE YEAR FIXED BY SUBPARAGRAPH ( B ) OF ARTICLE 52 OF THE CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS OF THE COMMUNITIES, AS THE MAXIMUM PERIOD OF EMPLOYMENT OF AUXILIARY STAFF EXCEPT IN THE CIRCUMSTANCES REFERRED TO IN SUBPARAGRAPH ( A ) OF THE SAID ARTICLE .
FOR A PERSON TO BE APPOINTED TO A POST AS A RESULT OF AN INTERNAL COMPETITION IT IS SUFFICIENT THAT HE BE GENUINELY EMPLOYED BY THE INSTITUTION AT THE TIME WHEN THE COMPETITION IS INITIATED . IN THIS CASE IT IS NOT DISPUTED THAT ALL THE MEASURES PRIOR TO THE APPOINTMENT OF MISS KURZ, IN PARTICULAR THE PROCEEDINGS OF THE SELECTION BOARD AND EVEN THE SETTING IN MOTION OF THE WRITTEN PROCEDURE INVITING THE APPROVAL OF THE APPOINTING AUTHORITY TOOK PLACE BEFORE THE EXPIRY OF THE PERIOD MENTIONED ABOVE . THE APPLICANT'S INTERPRETATION OF THE RULES WOULD LEAD TO THE UNACCEPTABLE RESULT THAT A MEMBER OF THE AUXILIARY STAFF, THOUGH PROPERLY ADMITTED TO THE COMPETITION, COULD NOT BE APPOINTED TO THE RELEVANT POST IF THE PROCEDURE WERE TO BE UNEXPECTEDLY PROLONGED .
THEREFORE THIS PLEA MUST BE REJECTED AND IT IS NOT NECESSARY TO CONSIDER WHETHER THE DEFENDANT COULD VALIDLY CONTINUE TO EMPLOY MISS KURZ AFTER THE EXPIRATION OF ONE YEAR .
III - THIRD SUBMISSION
BY THIS SUBMISSION THE APPLICANT ASSERTS THAT THE ' DECISION NOT TO APPOINT HER ' TO THE POST IN QUESTION ADVERSELY AFFECTS HER AND THEREFORE IT SHOULD HAVE STATED THE REASONS ON WHICH IT WAS BASED IN ACCORDANCE WITH ARTICLE 25 OF THE STAFF REGULATIONS .
P.145
HOWEVER, NO FORMAL DECISION ' NOT TO APPOINT ' THE APPLICANT HAS TAKEN PLACE, BUT ONLY A DECISION TO APPOINT MISS KURZ . THIS DECISION DID NOT NEED TO STATE THE REASON ON WHICH IT WAS BASED TO THE PERSON TO WHOM IT WAS ADDRESSED SINCE IT DID NOT ADVERSELY AFFECT HER .
THE APPLICANT'S DEMAND WOULD MEAN THAT THE APPOINTING AUTHORITY WOULD HAVE TO GIVE REASONS FOR NOT HAVING TAKEN ANOTHER DECISION . THE RECRUITING PROCEDURE IS CLEARLY DESIGNED TO MAKE SUCH A STATEMENT OF REASONS UNNECESSARY, AND IN ANY EVENT TO STATE THEM MIGHT WELL BE TO THE DETRIMENT OF THE UNSUCCESSFUL CANDIDATES .
THIS COMPLAINT IS THEREFORE UNFOUNDED .
IV - FOURTH SUBMISSION
HERE THE APPLICANT COMPLAINS THAT THE SELECTION BOARD ACCEPTED MISS KURZ'S APPLICATION ALTHOUGH IT WAS ONLY MADE ON 12 SEPTEMBER 1963, THAT IS, AFTER THE FINAL DATE, FIXED BY THE NOTICE OF COMPETITION AS 9 SEPTEMBER 1963 .
WHILST AGREEING THAT MISS KURZ'S DEPARTMENTAL SUPERIOR LODGED THE APPLICATION ON HER BEHALF THE APPLICANT RAISES DOUBTS AS TO WHETHER IN DOING SO HE COMPLIED WITH THE ABOVEMENTIONED TIME-LIMIT . FURTHERMORE, SHE DRAWS ATTENTION TO THE FACT THAT ACCORDING TO THE TERMS OF THE APPLICATION FORM DRAWN UP BY THE DEFENDANT, AND INTENDED TO BE USED FOR MAKING APPLICATIONS, THE LATTER MUST BE SIGNED BY THE CANDIDATE PERSONALLY .
IT IS NOT DISPUTED THAT MISS KURZ WAS ON HOLIDAY THROUGHOUT ALL THE TIME BETWEEN THE DATE OF PUBLICATION OF THE NOTICE OF COMPETITION AND 9 SEPTEMBER 1963 . IN THESE CIRCUMSTANCES MISS KURZ'S DEPARTMENTAL SUPERIOR COULD VALIDLY ACT ON HER BEHALF PROVIDED THAT HE COMPLIED WITH THE TIME-LIMITS AND CORRECTLY INTERPRETED HER INTENTIONS . HE DID BOTH; THE APPLICATION WAS RECEIVED BY THE DEFENDANT ON 9 SEPTEMBER, AS APPEARS FROM THE DATE-STAMP ON IT, AND WAS CONFIRMED BY MISS KURZ AS EARLY AS 12 SEPTEMBER .
THIS COMPLAINT IS THEREFORE UNFOUNDED .
V - FIFTH SUBMISSION
THE APPLICANT ASSERTS THAT THE DEFENDANT FAILED TO ADOPT GENERAL PROVISIONS FOR GIVING EFFECT TO THE RULES CONCERNING COMPETITIONS AND THUS INFRINGED ARTICLE 110 OF THE STAFF REGULATIONS OR ALTERNATIVELY THAT SUCH GENERAL PROVISIONS WERE ADOPTED WITHOUT CONSULTATION WITH THE STAFF COMMITTEE OR THE STAFF REGULATIONS COMMITTEE .
P.146
1 . ADMISSIBILITY
THE DEFENDANT TAKES THE VIEW THAT THIS SUBMISSION WHICH WAS RAISED FOR THE FIRST TIME IN THE REPLY, IS INADMISSIBLE BECAUSE IT IS OUT OF TIME . HOWEVER, IT WAS ONLY DURING THE COURSE OF THE PRESENT PROCEEDINGS THAT THE APPLICANT LEARNT OF THE EXISTENCE OF DOCUMENT S/01965/63 DATED 21 JUNE 1963 DEALING WITH THE ' COMPOSITION OF SELECTION BOARDS FOR COMPETITIONS '. AS KNOWLEDGE OF THE EXISTENCE OF THIS DOCUMENT MAY WELL HAVE LED HER TO PUT FORWARD THIS SUBMISSION, THE OBJECTION OF INADMISSIBILITY MUST BE REJECTED .
2 . ON THE SUBSTANCE
IT IS ACCORDINGLY NECESSARY TO CONSIDER WHETHER THE SAID DOCUMENT AMOUNTS TO A GENERAL PROVISION FOR GIVING EFFECT TO ANY PROVISIONS OF THE STAFF REGULATIONS WITHIN THE MEANING OF ARTICLE 110 THEREOF .
THE EXPRESSION ' THE GENERAL PROVISIONS FOR GIVING EFFECT TO THESE STAFF REGULATIONS ' APPEARING IN ARTICLE 110 MENTIONED ABOVE REFERS IN THE FIRST INSTANCE TO THE PROVISIONS WHICH EACH INSTITUTION IS OBLIGED TO MAKE IN EXECUTION OF CERTAIN MANDATORY PROVISIONS OF THE REGULATIONS, SUCH AS THE FIRST PARAGRAPH OF ARTICLE 2 AND THE SECOND SUBPARAGRAPH OF ARTICLE 5(4 ).
IN THE ABSENCE OF SUCH RULES, THE OBLIGATIONS TO ADOPT ' GENERAL PROVISIONS FOR GIVING EFFECT ' TO THE STAFF REGULATIONS CAN BE RECOGNIZED ONLY IN THE CASES IN WHICH THE PROVISIONS OF THE REGULATIONS ARE NOT SUFFICIENTLY EXPLICIT BY THEMSELVES .
THE PROVISIONS OF THE REGULATIONS CONCERNING THE PROCEDURE FOR COMPETITIONS NOWHERE PROVIDE THAT THE INSTITUTIONS SHALL ADOPT GENERAL PROVISIONS FOR GIVING EFFECT TO THEM . MOREOVER THE SAID PROVISIONS ARE SUFFICIENT IN THEMSELVES .
THUS IN RELATION TO COMPETITIONS, THE DEFENDANT WAS NOT OBLIGED TO ADOPT ' GENERAL PROVISIONS FOR GIVING EFFECT ' TO THE RELEVANT REGULATIONS WITHIN THE MEANING OF ARTICLE 110 MENTIONED ABOVE . MOREOVER, THE DOCUMENT S/01965/63 MENTIONED ABOVE IS TO BE CONSIDERED AS AN INTERNAL MEASURE WHICH WAS NOT SUBJECT TO THE FORMALITIES SET OUT IN THE SAID ARTICLE .
IT FOLLOWS FROM THE CONSIDERATIONS SET OUT ABOVE THAT THIS SUBMISSION MUST BE REJECTED .
P.147
VI - SIXTH SUBMISSION
IN THIS SUBMISSION THE APPLICANT PUTS FORWARD SEVERAL DISTINCT COMPLAINTS, NAMELY :
' ( A ) ALTHOUGH THE SELECTION BOARD WAS DEALING WITH A COMPETITION ON THE BASIS OF QUALIFICATIONS, IT WENT SO FAR AS TO GIVE REAL TESTS UNDER THE GUISE OF " INTERVIEWS ", AND THE INTERVIEW HELD WITH THE APPLICANT AMOUNTED TO A SERIES OF " TRICK QUESTIONS ";
( B ) THE SELECTION BOARD DID NOT TAKE QUALIFICATIONS INTO ACCOUNT, AS THE MARKS WERE GIVEN FOR KNOWLEDGE OF LANGUAGES AND VOCATIONAL EXPERIENCE; AS FOR KNOWLEDGE OF LANGUAGES IT SHOULD BE NOTED THAT THE SELECTION BOARD TREATED KNOWLEDGE OF ENGLISH AS A DECISIVE CRITERION WHEREAS THE NOTICE OF COMPETITION SPECIFIED " THOROUGH KNOWLEDGE OF ONE OF THE LANGUAGES OF THE COMMUNITY ( PREFERABLY FRENCH ) "; THE APPLICANT POSSESSES AN EXCELLENT KNOWLEDGE OF FRENCH AND, FINALLY, HAS LIVED IN ENGLAND FOR FOURTEEN YEARS WHILE MISS KURZ WAS THERE FOR THE FIRST TIME;
( C ) THE SELECTION BOARD SHOULD NOT HAVE TAKEN INTO ACCOUNT THE VOCATIONAL EXPERIENCE WHICH MISS KURZ ACQUIRED AT THE DEFENDANT'S LONDON OFFICE '.
1 . ADMISSIBILITY
THE DEFENDANT RAISES AN OBJECTION OF INADMISSIBILITY BASED ON THE FACT THAT THIS SUBMISSION WAS ONLY RAISED FOR THE FIRST TIME IN THE REPLY, AND IN THE DEFENDANT'S VIEW IS NOT BASED ON MATTERS OF LAW OR OF FACT WHICH CAME TO LIGHT IN THE COURSE OF THE WRITTEN PROCEDURE .
THIS DEFENCE IS CLEARLY WELL FOUNDED AS REGARDS THE COMPLAINT SET OUT AT ( A ) ABOVE . HOWEVER, IT SHOULD BE REJECTED AS REGARDS THE COMPLAINTS LISTED AT ( B ) AND ( C ) BECAUSE IN THE OPINION OF THE COURT THESE COMPLAINTS ARISE FROM CERTAIN DOCUMENTS FILED BY THE DEFENDANT AS SCHEDULES TO THE STATEMENT OF DEFENCE .
2 . ON THE SUBSTANCE
( A ) AS REGARDS THE COMPLAINT UNDER ( B ), THE APPLICANT HAS NOT ALLEGED ANY PRECISE FACT GIVING GROUNDS FOR THE SUPPOSITION THAT THE SELECTION BOARD DID NOT DULY TAKE THE QUALIFICATIONS OF THE CANDIDATES INTO ACCOUNT .
FURTHERMORE THE NOTICE OF COMPETITION MADE A CLEAR DISTINCTION BETWEEN ' QUALIFICATIONS OR CERTIFICATES ' AND ' VOCATIONAL EXPERIENCE ', SO THAT IT OBVIOUSLY PUT THESE TWO CRITERIA ON AN EQUAL FOOTING .
NEXT, THE SAID NOTICE SPECIFIED ' THOROUGH KNOWLEDGE OF THE ENGLISH LANGUAGE DESIRABLE '. THEREFORE THE SELECTION BOARD WAS WITHIN ITS RIGHTS TO TAKE KNOWLEDGE OF THIS LANGUAGE AS A DECISIVE CRITERION IN SO FAR AS THE CANDIDATE HAD A COMPARABLE KNOWLEDGE OF THE OTHER LANGUAGES CONCERNED .
FINALLY, WHILE IT IS OFTEN TRUE THAT A LONG STAY IN A FOREIGN COUNTRY GIVES THE PERSON CONCERNED A CLEAR SUPERIORITY IN THE LINGUISTIC FIELD, NEVERTHELESS THIS IS NOT NECESSARILY THE CASE .
( B ) AS REGARDS THE COMPLAINT MENTIONED AT ( C ) IT WAS NATURAL FOR THE SELECTION BOARD TO TAKE INTO ACCOUNT VOCATIONAL EXPERIENCE ACQUIRED BY A CANDIDATE IN THE CARRYING OUT OF DUTIES IDENTICAL OR SIMILAR TO THE ONES NEEDED FOR THE POST TO BE FILLED .
IT FOLLOWS FROM THE FOREGOING THAT THIS SUBMISSION MUST BE REJECTED .
VII - SEVENTH SUBMISSION
THE APPLICANT COMPLAINS THAT THE SELECTION BOARD IN ITS ASSESSMENT OF THE CANDIDATES CONSIDERED KNOWLEDGE OF LANGUAGES AND VOCATIONAL EXPERIENCE TOGETHER, INSTEAD OF EVALUATING THEM SEPARATELY .
THERE IS NO RULE FORBIDDING THE SELECTION BOARD TO PROCEED IN THE WAY THUS CRITICIZED UNLESS THE APPOINTING AUTHORITY IS, AS A RESULT, RENDERED INCAPABLE OF TAKING A JUST AND EQUITABLE DECISION . THERE IS NO ELEMENT IN THIS CASE WHICH LENDS ITSELF TO THE SUPPOSITION THAT THIS MAY HAVE BEEN SO HERE .
THIS COMPLAINT IS THEREFORE UNFOUNDED .
SINCE THE APPLICANT HAS NOT SUCCEEDED IN ANY OF HER SUBMISSIONS, HER APPLICATION MUST BE REJECTED AS UNFOUNDED .
Decision on costs
THE APPLICANT HAS FAILED IN HER CASE . IN ACCORDANCE WITH ARTICLE 69(2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS . HOWEVER, UNDER ARTICLE 70 OF THE SAID RULES, EXPENSES INCURRED BY INSTITUTIONS IN PROCEEDINGS BROUGHT BY EMPLOYEES OF THE COMMUNITIES SHALL BE BORNE BY THE INSTITUTIONS THEMSELVES .
BY ORDER DATED 24 JUNE 1964, THE COURT ( SECOND CHAMBER ) REJECTED THE APPLICANT'S REQUEST FOR THE GRANT OF LEGAL AID, RESERVING THE COSTS .
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 PROTOCOL ON THE STATUTE OF THE COURT OF JUSTICE OF THE EUROPEAN ECONOMIC COMMUNITY;
HAVING REGARD TO THE STAFF REGULATIONS OF OFFICIALS OF THE EUROPEAN ECONOMIC COMMUNITY AND THE EUROPEAN ATOMIC ENERGY COMMUNITY;
HAVING REGARD TO THE CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS OF THESE COMMUNITIES;
HAVING REGARD TO THE RULES OF PROCEDURE OF THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES AND IN PARTICULAR ARTICLES 69 AND 70 THEREOF;
Operative part
THE COURT ( SECOND CHAMBER )
HEREBY :
1 . DISMISSES APPLICATION NO 16/64 AS UNFOUNDED;
2 . ORDERS THE APPLICANT TO BEAR THE COSTS INCLUDING THOSE RELATING TO THE REQUEST FOR THE GRANT OF LEGAL AID, BUT NOT INCLUDING THE COSTS INCURRED BY THE DEFENDANT .