61982CJ0144_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 144/82
ARMELLE DETTI, OF 2 RUE LOUIS-XIV, LUXEMBOURG, REPRESENTED BY VICTOR BIEL, OF THE LUXEMBOURG BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE LATTER ' S CHAMBERS, 18 A RUE DES GLACIS,
APPLICANT,
V
COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES, REPRESENTED BY FRANCOIS XAVIER ZWICKERT, DIRECTOR OF ADMINISTRATION, ACTING AS AGENT, ASSISTED BY
ALEX BONN, OF THE LUXEMBOURG BAR, WITH AN ADDRESS FOR SERVICE AT THE LATTER ' S CHAMBERS, 22 COTE D ' EICH,
DEFENDANT,
Subject of the case
APPLICATION FOR THE ANNULMENT OF THE DECISION OF THE SELECTION BOARD FOR COMPETITION NO CJ 49/79 NOT TO ENTER THE APPLICANT ' S NAME ON THE RESERVE LIST FOR THE RECRUITMENT OF SHORTHAND-TYPISTS IN GRADE C 3 - C 2 RESULTING FROM THAT COMPETITION AND FOR A DECLARATION THAT THE APPLICANT SHOULD BE APPOINTED TO A POST IN THAT CAREER BRACKET WITH EFFECT FROM THE DATE OF HER APPOINTMENT AS A SECRETARY/TYPIST,
Grounds
1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 10 MAY 1982, ARMELLE DETTI, AN ESTABLISHED OFFICIAL IN GRADE C 4 AT THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES, BROUGHT AN ACTION PRIMARILY FOR THE ANNULMENT OF THE DECISION OF THE SELECTION BOARD FOR OPEN COMPETITION NO CJ 49/79 NOT TO ENTER THE APPLICANT ' S NAME ON THE RESERVE LIST FOR THE RECRUITMENT OF FRENCH-LANGUAGE SECRETARY/SHORTHAND-TYPISTS IN CAREER BRACKET C 3 - C 2 .
2 IN 1980 THE APPLICANT TOOK PART, IN LUXEMBOURG, IN THE TESTS FOR THAT COMPETITION WHICH WERE ALSO CONDUCTED SIMULTANEOUSLY IN BRUSSELS .
3 IN BRUSSELS THE TEXT SET FOR THE SHORTHAND TEST WAS DICTATED TOGETHER WITH THE TITLE ( 11 WORDS ) WHILST IN LUXEMBOURG THE TITLE WAS NOT DICTATED .
4 THE SELECTION BOARD TOOK THE VIEW THAT THE CANDIDATES IN LUXEMBOURG HAD THUS BEEN PLACED AT AN ADVANTAGE AS COMPARED WITH THOSE IN BRUSSELS . IT THEREFORE DECIDED, BY WAY OF ' ' OFFSETTING ADVANTAGES ' '
TO CORRECT MORE SEVERELY THE TESTS HELD IN LUXEMBOURG IN THEIR ENTIRETY .
5 THE APPLICANT OBTAINED 19.5 MARKS OUT OF 40 AND THEREFORE FAILED BY HALF A MARK TO BE ENTERED ON THE LIST OF SUITABLE CANDIDATES FOR THE COMPETITION FOR SHORTHAND-TYPISTS ( C 3 - C 2 ). HER NAME WAS THEREFORE ENTERED ONLY ON THE RESERVE LIST OF SUITABLE CANDIDATES FOR APPOINTMENT AS TYPISTS ( C 5 - C 4 ).
6 BY LETTER OF 27 JANUARY 1981, THE ADMINISTRATION OF THE COURT NOTIFIED THE APPLICANT THAT HER NAME WAS ENTERED ON THE RESERVE LIST RESULTING FROM THE COMPETITION . IT DID NOT HOWEVER SPECIFY WHETHER SHE APPEARED ON THE LIST AS A SHORTHAND-TYPIST OR AS A TYPIST AND, APPARENTLY, IT DID NOT GIVE HER ANY DETAILS CONCERNING THE RESULT OF HER TEST .
7 FOLLOWING AN OFFER MADE BY TELEPHONE AND CONFIRMED BY LETTER FROM THE ADMINISTRATION OF 23 APRIL 1981, THE APPLICANT WAS EMPLOYED, FROM 1 JULY 1981, AS A MEMBER OF THE TEMPORARY STAFF IN GRADE C 4, AND, ON 11 AUGUST 1981, FOLLOWING A VACANCY NOTICE, WAS APPOINTED WITH EFFECT FROM 1 AUGUST 1981, AS A PROBATIONARY OFFICIAL IN GRADE C 4, AS A FRENCH-LANGUAGE TYPIST .
8 BY MEMORANDUM DATED 19 JULY 1981, THE APPLICANT INFORMED THE REGISTRAR THAT SHE CONTESTED THE MARK WHICH HAD BEEN GIVEN TO HER BY THE SELECTION BOARD AND REQUESTED A REASSESSMENT OF THE SHORTHAND TEST .
9 ON 14 OCTOBER 1981, THE ADMINISTRATION SENT TO THE APPLICANT A SUPPLEMENTARY REPORT DRAWN UP BY THE BOARD, DATED 25 SEPTEMBER 1981, EXPLAINING THAT THE BOARD HAD TAKEN INTO ACCOUNT IN THE CORRECTION OF THE TESTS THE CONDITIONS IN WHICH THE SHORTHAND TEST WAS CONDUCTED IN LUXEMBOURG AND CONCLUDING THAT IT WAS NOT IN A POSITION TO ALTER THE DECISION TAKEN IN RESPECT OF THE APPLICANT .
10 ON 13 OCTOBER 1981, THE APPLICANT SUBMITTED A REQUEST WITHIN THE MEANING OF ARTICLE 90 ( 1 ) OF THE STAFF REGULATIONS TO THE EFFECT THAT THE DECISION OF 11 AUGUST 1981 APPOINTING HER AS A SECRETARY/TYPIST IN GRADE C 4 SHOULD BE SET ASIDE, AND SEEKING HER APPOINTMENT AS A SECRETARY/SHORTHAND-TYPIST IN GRADE C 3 . ON 5 NOVEMBER SHE ASKED THE ADMINISTRATION TO REGARD THAT REQUEST AS A COMPLAINT WITHIN THE MEANING OF ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS .
11 FOLLOWING THE INTERVENTION OF THE STAFF COMMITTEE, THE BOARD SENT THE ADMINISTRATION A SECOND REPORT, DATED 24 NOVEMBER 1981 .
12 BY DECISION OF 11 FEBRUARY 1982, THE PRESIDENT OF THE COURT, ACTING IN HIS CAPACITY AS APPOINTING AUTHORITY, DISMISSED THE COMPLAINT AND CONFIRMED THAT THE BOARD ' S ACTION IN CORRECTING ' ' SLIGHTLY MORE SEVERELY ' '
THE SCRIPTS OF THE CANDIDATES WHO TOOK THE COMPETITION IN LUXEMBOURG DID NOT COMPROMISE THE LEGALITY OF THE PROCEDURE .
13 ON 10 MAY 1982 THE APPLICANT BROUGHT THIS ACTION AGAINST WHICH THE DEFENDANT HAS RAISED, IN THE FIRST PLACE, AN OBJECTION OF INADMISSIBILITY .
ADMISSIBILITY
14 ACCORDING TO THE DEFENDANT, THE ACTION IS INADMISSIBLE ON THREE GROUNDS . FIRST, THE APPLICANT DID NOT SUBMIT A COMPLAINT THROUGH OFFICIAL CHANNELS IN RESPECT OF THE APPLICATION FOR THE ANNULMENT OF THE SELECTION BOARD ' S DECISION, SINCE HER COMPLAINT OF 5 NOVEMBER 1981 WAS DIRECTED AGAINST THE APPOINTING AUTHORITY ' S DECISION OF 11 AUGUST 1981 APPOINTING HER AS A SECRETARY/TYPIST . SECONDLY, THAT COMPLAINT WAS OUT OF TIME INASMUCH AS THE APPLICANT KNEW OF THE BOARD ' S DECISION ON 23 APRIL 1981 AT THE LATEST, SO THAT THE PERIOD PRESCRIBED FOR SUBMISSION OF THE COMPLAINT EXPIRED ON 23 JULY 1981 . THIRDLY, BY ACCEPTING UNRESERVEDLY A POST OF TYPIST IN GRADE C 4, THE APPLICANT CONCEDED THAT THE ADMINISTRATION ' S VIEW WAS CORRECT .
15 IN REPLY TO THAT OBJECTION, THE APPLICANT CLAIMS THAT BY HER COMPLAINT THROUGH OFFICIAL CHANNELS SHE ALSO CONTESTED THE SELECTION BOARD ' S DECISION, ALTHOUGH ONLY BY IMPLICATION, AND THAT, IN ANY EVENT, THERE WAS A NEW ELEMENT OF FACT WHICH WAS BROUGHT TO HER NOTICE ONLY BY THE SELECTION BOARD ' S MEMORANDUM OF 25 SEPTEMBER 1981 .
16 AS REGARDS THE FIRST GROUND PUT FORWARD BY THE DEFENDANT, IT SHOULD BE OBSERVED, IN THE FIRST PLACE, AS THE COURT STATED IN ITS JUDGMENT OF 14 JUNE 1972 ( MARCATO V COMMISSION CASE 44/71 ( 1972 ) ECR 427 ), THAT A COMPLAINT DIRECTED AGAINST A DECISION OF A SELECTION BOARD APPEARS TO BE POINTLESS, AS THE INSTITUTION CONCERNED HAS NO AUTHORITY TO ANNUL OR AMEND THE DECISIONS OF A SELECTION BOARD, AND THAT THEREFORE THE ONLY LEGAL REMEDY OPEN TO THOSE CONCERNED BY SUCH A DECISION LIES IN A DIRECT APPLICATION TO THE COURT .
17 IN THE LIGHT OF THAT SITUATION, IT SHOULD BE STATED THAT THE APPLICANT WAS NOT REQUIRED TO LODGE A COMPLAINT AGAINST THE SELECTION BOARD ' S DECISION AS A PRELIMINARY TO BRINGING AN ACTION BEFORE THE COURT . HOWEVER, INASMUCH AS A COMPLAINT WAS NEVERTHELESS SUBMITTED, THE PRESCRIBED PERIOD BEGAN TO RUN, IN ACCORDANCE WITH ARTICLE 91 OF THE STAFF REGULATIONS, FROM THE DAY ON WHICH THE DECISION TAKEN IN REPLY TO THE COMPLAINT WAS NOTIFIED TO THE APPLICANT .
18 IN THE SECOND PLACE, IT SHOULD BE NOTED THAT IT APPEARS FROM THE PAPERS IN THE CASE THAN WHEN, BY HER COMPLAINT OF 5 NOVEMBER 1981, THE APPLICANT REQUESTED THAT THE DECISION OF 11 AUGUST 1981 APPOINTING HER AS A TYPIST IN
GRADE C 4 BE SET ASIDE, SHE CALLED IN QUESTION AT THE SAME TIME THE SELECTION BOARD ' S DECISION IN COMPETITION NO CJ 49/79 RELATING TO THE FAILURE TO ENTER HER NAME ON THE RESERVE LIST OF SECRETARY/SHORTHAND-TYPISTS IN CAREER BRACKET C 3 - C 2 . CONSEQUENTLY HER COMPLAINT DIRECTED AGAINST THE APPOINTING AUTHORITY ' S DECISION OF 11 AUGUST 1981 WAS ALSO INTENDED TO SECURE THE ANNULMENT OF THE SELECTION BOARD ' S DECISION . IT FOLLOWS THAT THE COMPLAINT ALSO COVERED HER REQUEST FOR APPOINTMENT TO GRADE C 3 .
19 AS REGARDS THE ALLEGATION THAT THE ACTION IS OUT OF TIME, IT SHOULD BE NOTED THAT THE APPLICANT WAS NEVER FORMALLY INFORMED OF THE ACTUAL RESULT OF HER TEST AND ABOVE ALL THAT SHE WAS INFORMED OF THE PROCESS OF ' ' OFFSETTING ADVANTAGES ' '
ONLY BY THE SELECTION BOARD ' S MEMORANDUM OF 25 SEPTEMBER 1981 . THE ADMINISTRATION IS THEREFORE NOT ENTITLED TO RAISE AN OBJECTION TO A DELAY WHICH IS A RESULT OF ITS OWN CONDUCT .
20 FOR THE SAME REASONS, THE ARGUMENT THAT THE APPLICANT ACQUIESCED IN THE RESULT OF THE TESTS MUST BE REJECTED .
21 IT FOLLOWS THAT THE OBJECTION OF INADMISSIBILITY MUST BE DISMISSED .
SUBSTANCE
22 IN HER APPLICATION, THE APPLICANT PUTS FORWARD THREE PRINCIPAL CLAIMS, FIRST, THE ANNULMENT OF THE DECISION OF THE SELECTION BOARD FOR COMPETITION NO CJ 49/79, CONCERNING THE FAILURE TO ENTER HER NAME ON THE RESERVE LIST FOR THE RECRUITMENT OF SECRETARY/SHORTHAND-TYPISTS IN CAREER BRACKET C 3 - C 2 ; SECONDLY, HER APPOINTMENT TO A POST IN THAT CAREER BRACKET WITH EFFECT FROM THE DATE OF HER APPOINTMENT AS A SECRETARY/TYPIST IN GRADE C 4 ; THIRDLY THE ANNULMENT OF THE DECISION REJECTING HER COMPLAINT .
23 IN SUPPORT OF THAT CLAIM, THE APPLICANT SUBMITS THAT THE SELECTION BOARD ' S ACTION IN ERRONEOUSLY REGARDING AS A MISTAKE THE OMISSION OF THE TITLE OF THE TEXT DICTATED IN THE SHORTHAND TEST IN LUXEMBOURG CONSTITUTED A PROCEDURAL IRREGULARITY ; THAT DECISION REPRESENTED A FACTUAL ERROR RATHER THAN A VALUE JUDGMENT . THUS THE BOARD INFRINGED INDENT ( E ) OF THE SECOND SUBPARAGRAPH OF ARTICLE 1 ( 1 ) OF ANNEX III TO THE STAFF REGULATIONS BY MARKING THAT TEST MORE SEVERELY BY WAY OF ' OFFSETTING ADVANTAGES ' .
24 SHE CLAIMS MOREOVER THAT INASMUCH AS THE DEFENDANT INSTITUTION FAILED TO INFORM HER UNEQUIVOCALLY THAT SHE HAD NOT BEEN ADMITTED TO THE RESERVE LIST FOR SHORTHAND-TYPISTS, IT WAS GIVING ASSURANCES AND ENGENDERING HOPES WITH REGARD TO HER CAREER WHICH MUST BE TAKEN INTO CONSIDERATION IN ACCORDANCE WITH THE PRINCIPLE OF THE PROTECTION OF LEGITIMATE EXPECTATION .
25 THE DEFENDANT OBJECTS THAT THE SELECTION BOARD ' S ASSESSMENT OF THE TESTS REPRESENTS A VALUE JUDGMENT WHICH CANNOT BE REVIEWED BY THE COURT SINCE ITS JURISDICTION EXTENDS ONLY TO CHECKING THE LEGALITY OF THE PROCEDURE ADOPTED . IN ANY EVENT, IT DENIES THAT THE SELECTION BOARD COMMITTED A FACTURAL ERROR . MOREOVER, IT OBSERVES THAT THE BOARD APPLIED PURELY OBJECTIVE CRITERIA .
26 AS REGARDS THE PRINCIPLE OF THE PROTECTION OF LEGITIMATE EXPECTATION, ON WHICH THE APPLICANT RELIES, THE DEFENDANT CONTENDS THAT NEITHER THE CONDITIONS OF THE COMPETITION, NOR THE CIRCUMSTANCES IN WHICH IT WAS HELD, NOR THE SUBSEQUENT CONDUCT OF THE APPLICANT JUSTIFY THE APPLICATION OF THAT PRINCIPLE SINCE THE RESULT OF HER TEST WAS BROUGHT TO HER NOTICE AT THE LATEST IN THE COURSE OF HER TELEPHONE CONVERSATION OF 8 APRIL 1981 WITH THE ADMINISTRATION .
27 IT IS CLEAR FROM THE ESTABLISHED CASE-LAW OF THE COURT THAT A SELECTION BOARD FOR A COMPETITION ENJOYS A WIDE DISCRETION AND THAT THE COURT HAS NO JURISDICTION TO REVIEW ITS VALUE JUDGMENTS . HOWEVER, THE BOARD MUST PROCEED ON THE BASIS OF OBJECTIVE CRITERIA WHICH ARE KNOWN TO EACH OF THE CANDIDATES AND IT MUST STATE ADEQUATELY THE GROUNDS ON WHICH ITS DECISION IS BASED . IT IS FOR THAT REASON THAT INDENT ( E ) OF THE SECOND SUBPARAGRAPH OF ARTICLE 1 ( 1 ) OF ANNEX III TO THE STAFF REGULATIONS PROVIDES THAT THE NOTICE OF COMPETITION, DRAWN UP BY THE APPOINTING AUTHORITY, MUST SPECIFY, INTER ALIA, WHERE THE COMPETITION IS ON THE BASIS OF TESTS, OF WHAT KIND THEY WILL BE AND HOW THEY WILL BE MARKED .
28 IN VIEW OF THE IMPORTANCE FOR THE SUBSEQUENT CAREER OF OFFICIALS OF RECRUITMENT BY WAY OF COMPETITION IT MUST BE ENSURED THAT CRITERIA FOR ASSESSMENT WHICH ARE OBJECTIVE AND EQUAL FOR ALL THE CANDIDATES ARE STRICTLY APPLIED . IT FOLLOWS THAT THE CANDIDATES IN A COMPETITION ARE ENTITLED TO EXPECT THAT TESTS WHICH TAKE PLACE SIMULTANEOUSLY IN DIFFERENT PLACES ARE ENTIRELY IDENTICAL AND, IN ADDITION, THEY SHOULD RECEIVE FORMAL AND ACCURATE INFORMATION AS TO THE RESULT OF THE TESTS WHICH THEY HAVE TAKEN .
29 WHERE IRREGULARITIES OR ERRORS HAVE OCCURRED IN THE COURSE OF A COMPETITION AND CANNOT BE RECTIFIED BY A REPETITION OF THE TESTS, WITH THE RESULT THAT THE ONLY ALTERNATIVE IS THE APPLICATION OF A CORRECTIVE FACTOR IN THE ASSESSMENT OF THE TESTS, THAT FACTOR MUST BE APPLIED UNEQUIVOCALLY AND THE PERSON CONCERNED IS ENTITLED TO BE INFORMED OF THE CRITERIA ADOPTED .
30 IN THIS INSTANCE, IT IS ESTABLISHED THAT THE TESTS ORGANIZED IN BRUSSELS AND LUXEMBOURG WERE NOT ENTIRELY IDENTICAL AND THAT, IN CONSEQUENCE, THE BOARD MADE COMPENSATORY ADJUSTMENTS IN MARKING THE SCRIPTS . THE ADMINISTRATION MERELY DECLARED THAT THE SCRIPTS OF THE CANDIDATES WHO TOOK THE TEST IN LUXEMBOURG WERE MARKED ' ' MORE SEVERELY ' '
THAN THOSE IN BRUSSELS . IT DID NOT HOWEVER EXPLAIN WHAT SPECIFIC CRITERIA WERE APPLIED IN THE MARKING . IN THOSE CIRCUMSTANCES, THE COURT CANNOT CHECK WHETHER OBJECTIVE CRITERIA WERE APPLIED OR, IN PARTICULAR, WHETHER THE CANDIDATES WERE TREATED EQUALLY .
31 MOREOVER, THE APPLICANT WAS NEVER FORMALLY NOTIFIED OF THE ACTUAL RESULT OF HER TEST, SO THAT SHE WAS ENTITLED TO BELIEVE, ESPECIALLY IN THE LIGHT OF THE LETTER OF THE DIRECTOR OF ADMINISTRATION OF THE COURT OF 27 JANUARY 1981, THAT SHE HAD BEEN SUCCESSFUL ALSO IN THE SHORTHAND TEST .
32 CONSEQUENTLY THE DECISION OF THE SELECTION BOARD FOR COMPETITION NO CJ 49/79, PLACING THE APPLICANT ' S NAME ON THE LIST OF SUITABLE CANDIDATES FOR THE POST OF TYPIST IN CAREER BRACKET C 5-C 4 INFRINGES THE ABOVE-MENTIONED PRINCIPLES AND RULES GOVERNING COMPETITIONS AND MUST THEREFORE BE ANNULLED .
33 SINCE THE COMPETITION IN QUESTION WAS AN OPEN COMPETITION FOR THE PURPOSE OF CONSTITUTING A RESERVE FOR FUTURE RECRUITMENT, THE APPLICANT ' S RIGHTS WILL BE ADEQUATELY PROTECTED IF THE BOARD AND THE APPOINTING AUTHORITY RECONSIDER THEIR DECISIONS AND SEEK A JUST SOLUTION IN HER CASE, IN THE LIGHT OF THE CONSIDERATIONS SET OUT ABOVE . IT WILL NOT BE NECESSARY TO CALL IN QUESTION THE
ENTIRE RESULTS OF THE COMPETITION OR TO ANNUL THE APPOINTMENTS WHICH HAVE BEEN MADE AS A RESULT THEREOF . IN THOSE CIRCUMSTANCES, THE APPLICANT ' S OTHER CLAIMS HAVE BECOME DEVOID OF PURPOSE .
Decision on costs
COSTS
34 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO BEAR THE COSTS . SINCE THE DEFENDANT HAS SUBSTANTIALLY 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 OF THE SELECTION BOARD FOR COMPETITION NO CJ 49/79 NOT TO ENTER THE APPLICANTS ' S NAME ON THE RESERVE LIST FOR FUTURE RECRUITMENT OF SECRETARY/SHORTHAND-TYPISTS IN GRADE C 3 - C 2 ;
2 . ORDERS THE COURT OF JUSTICE TO PAY THE COSTS .