61998CO0435_EN
Parties
Grounds
Decision on costs
Operative part
Parties
In Case C-435/98 P,
Sari Kristiina Jouhki, nurse, residing at Pyhäjärvi (Finland), represented by H. Ojala, of the Oulu Bar,
appellant,
APPEAL against the judgment of the Court of First Instance of the European Communities (Fourth Chamber) of 16 September 1998 in Case T-215/97 Jouhki v Commission ([1998] ECR-SC I-A-503 and II-1513), seeking to have that judgment set aside,
the other party to the proceedings being:
Commission of the European Communities, represented by E. Paasivirta and F. Duvieusart-Clotuche, members of the Legal Service, acting as Agents, with an address for service in Luxembourg at the office of C. Gómez de la Cruz, of the same service, Wagner Centre, Kirchberg,
defendant at first instance,
THE COURT (Second Chamber),
composed of: R. Schintgen (Rapporteur), President of the Chamber, G. Hirsch and V. Skouris, Judges,
Advocate General: G. Cosmas,
Registrar: R. Grass,
after hearing the Opinion of the Advocate General,
makes the following
Order
Grounds
1 By application lodged at the Court Registry on 30 November 1998, Ms Jouhki brought an appeal under Article 49 of the EC Statute and the corresponding provisions of the ECSC and EAEC Statutes of the Court of Justice against the judgment delivered on 16 December 1998 by the Court of First Instance in Jouhki v Commission (Case T-215/97 [1998] ECR-SC I-A-503 and II-1513, hereinafter the contested judgment), in which the Court of First Instance dismissed her application for the annulment of the decision of the selection board not to admit her to competition COM/B/973.
2 The facts of the case, according to the contested judgment, can be summarised as follows.
3 Ms Jouhki was a candidate in competition COM/B/973, notice of which was published in the Official Journal of the European Communities of 2 February 1996 (OJ 1996 C 29 A) (hereinafter the notice of competition). The aim of that competition was to draw up a reserve list for recruitment of assistants (grade B 5/B 4 - nurses) of Austrian, Finnish or Swedish nationality. The time-limit for the submission of applications was set as 22 March 1996.
4 Under paragraph III.B.2(a) of the notice of competition, entitled Eligibility, Special Conditions - Qualifications and experience required:
As at the date prescribed for the submission of applications, candidates must: (a) have completed a course of advanced secondary education and obtained a final certificate or diploma, and have completed a course of nursing training and obtained a certificate or diploma recognised by a competent authority. The selection board will allow for differences between education systems.
5 Paragraph IV.3 of the notice of competition provides:
Before candidates are admitted to the competition, their qualifications will be checked to ensure they correspond to the conditions specified in the competition notice. This check will be based on the information provided by the candidates in their application form and the requisite attached supporting documents.
6 Paragraph IV.4 of the notice of competition also states:
Candidates failing to use the application form or to sign it will not be admitted to the competition. Candidates failing to supply all the necessary supporting documents before 22 March 1996 shall also be excluded.
7 Paragraph XI.1 of the notice of competition adds:
The application form ... must be accompanied by photocopies of the documents showing that the candidate satisfies the special requirements of eligibility so that the selection board can check that they correspond to the information on that candidate's application form.
8 Paragraph B.3 of the guide annexed to the notice of competition states:
Candidates must supply all supporting documents and other necessary information before the deadline for applications set out in the notice of competition.
9 It is established that Ms Jouhki submitted her application within the prescribed time-limit and that she attached to her application form a copy of the diploma obtained by her on completion of her course of nursing training.
10 By letter of 20 June 1996, Mr Lennon, an Administrator in Directorate-General IX of the Commission, informed Ms Jouhki that she could not be admitted to the competition because she had not provided, within the prescribed time-limit, documents certifying her training. On 5 September 1996, the selection board re-examined the applications of candidates who had been refused admission to the competition and confirmed its decision not to admit her. She was informed of that decision by a letter from the Commission of 26 September 1996 which stated that her application could not be accepted because her file did not contain any document certifying the successful completion of a course of advanced secondary education. Following an exchange of correspondence, Ms Jouhki sent an e-mail to the recruitment unit of DG IX on 25 October 1996 reiterating her request to be admitted to the competition. On 8 November 1996, the recruitment unit replied that the selection board for the competition had completed its work and that its decision not to allow her to take part in the competition was final. That decision was based on the fact that Ms Jouhki's application did not contain a photocopy of a certificate of completion of a course of advanced secondary education.
11 On 12 December 1996 Ms Jouhki submitted a complaint under Article 90(2) of [the Staff Regulations, as laid down by] Regulation (EEC, Euratom, ECSC) No 259/68 of the Council of 29 February 1968 laying down the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Communities and instituting special measures temporarily applicable to officials of the Commission (OJ, English Special Edition 1968 (I), p. 30), as amended by Regulation (Euratom, ECSC, EEC) No 1473/72 of the Council of 30 June 1972 (OJ, English Special Edition 1972 (III), p. 703), against the decision to reject her application and requested the re-examination of that rejection. By letter of 23 December 1996, Ms Jouhki again disputed the decision to reject her application to take part in competition COM/B/973 and annexed to that letter a copy of her secondary school certificate and a copy of her Baccalauréat certificate.
12 On 16 April 1997, a DG IX official questioned the Finnish National Education Minister as to whether the diploma awarded on completion of nursing training is comparable to a certificate of advanced secondary education. Following the response to that question, the Assistant Director General of DG IX informed Ms Jouhki by letter of 3 July 1997 that he had requested the selection board for the competition to reconsider her application form.
13 By letter dated 31 July 1997, Ms Jouhki was informed that following a meeting of 17 July 1997, the selection board for the competition had maintained its initial decision to reject her application.
14 On 14 July 1997, Ms Jouhki brought an action before the Court of First Instance, alleging, in support of her application for annulment, breach of the terms of the notice of competition and breach of the principle of equal treatment.
15 By the contested judgment, the Court of First Instance dismissed her action as unfounded.
The contested judgment
16 At paragraphs 51 and 52 of the contested judgment, the Court of First Instance, after having analysed paragraphs III.B.2(a), IV.3, IV.4 and XI.1 of the notice of competition, held that it appeared from that notice of competition that two of the special conditions for admission to the competition were that the candidates must hold a certificate of advanced secondary education and a diploma certifying completion of a course of nursing training.
17 At paragraph 53 of the contested judgment, the Court of First Instance held that the notice of competition unambiguously required candidates, on pain of being refused admission to the competition, to forward to the competition selection board, before 22 March 1996, documents showing the successful completion by them of, first, a course of advanced secondary education and, second, a course of nursing training. Since the Court of First Instance considered that the terms of the notice of competition were clear, it did not accept Ms Jouhki's argument that where the wording of a text is ambiguous it should be interpreted in the reader's favour. It also rejected her argument concerning the alleged difference between the notice of competition published in the Official Journal of the European Communities and the notice of competition published in the Finnish national newspaper Helsingin Sanomat, finding that only the notice of competition published in The Official Journal of the European Communities was authentic.
18 The Court of First Instance rejected, at paragraphs 54 to 56 of the contested judgment, the arguments put forward by Ms Jouhki in order to prove that she fulfilled the eligibility requirements for the competition.
19 The Court of First Instance first declared, at paragraph 54 of the contested judgment, that it was established that Ms Jouhki had not forwarded to the competition selection board by the deadline of 22 March 1996 a copy of her certificate of advanced secondary education.
20 The Court of First Instance then rejected, at paragraph 55 of the contested judgment, Ms Jouhki's contention that, by attaching her curriculum vitae to her application form, she had proved that she had successfully completed a course of advanced secondary education. According to the Court of First Instance, a curriculum vitae is a document without any evidential weight which cannot be considered to be a supporting document within the meaning of the notice of competition.
21 Finally, at paragraph 56 of the contested judgment, the Court of First Instance rejected Ms Jouhki's argument that since in Finland the diploma awarded on completion of a course of nursing training is also a certificate of advanced secondary education, she was not obliged to attach to her application form another document certifying that she had successfully completed a course of advanced secondary education. The Court of First Instance declared that, in Finland, the nursing diploma can be obtained without having completed a course of advanced secondary education and that, since paragraph III.B.2(a) of the notice of competition provides that competition candidates must hold two distinct certificates - a certificate of advanced secondary education and a nursing diploma - the Commission clearly intended to recruit, by that notice of competition, a certain category of nurses, namely those who had successfully completed a course of advanced secondary education before beginning nursing training.
22 The Court of First Instance stated, at paragraph 57 of the contested judgment, that Ms Jouhki did not send a copy, before the time-limit of 22 March 1996, of any document proving that she held a separate certificate of advanced secondary education and, therefore, her application was incomplete at that date. In those circumstances, the Court ruled that the selection board, by its decision not to admit her to the competition, had abided in full by the terms of the notice of competition, and especially paragraph IV.4 thereof.
The appeal
23 By her appeal, which may be divided into four pleas in law, Ms Jouhki requests the Court to annul the contested judgment and the decision of the selection board for Open Competition COM/B/973 of 5 September 1996, to confirm that she was entitled to take part in Open Competition COM/B/973 and to decide on the costs in accordance with its Rules of Procedure.
24 By application lodged with the Court Registry on 8 March 1999, Ms Jouhki applied for legal aid pursuant to Article 76 of the Rules of Procedure.
25 The Commission requests the Court to dismiss the appeal as clearly inadmissible or, in any event, clearly unfounded and to order the appellant to pay the costs.
Findings of the Court
26 Article 119 of the Rules of Procedure of the Court of Justice provides that where an appeal is clearly inadmissible or clearly unfounded, the Court may at any time dismiss it by reasoned order without opening the oral procedure.
27 It must first be noted that Article 168a of the EC Treaty (now Article 225 EC) and the first paragraph of Article 51 of the EC Statute of the Court of Justice state that an appeal is to be limited to points of law and must be based on the grounds of lack of competence of the Court of First Instance, breach of procedure before it which adversely affects the interests of the appellant or infringement of Community law by the Court of First Instance (see especially Case C-8/95 P New Holland Ford v Commission [1998] ECR I-3175, paragraph 22).
28 Article 112(1)(c) of the Rules of Procedure of the Court of Justice provides that an appeal must contain the pleas in law and legal arguments relied on.
29 It follows from those provisions that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal (see especially New Holland Ford, cited above, paragraph 24).
The first plea in law
30 By the first plea in law, the appellant submits that the Court of First Instance misinterpreted the terms of the notice of competition and consequently infringed Community law by holding, at paragraphs 53 and 56 of the contested judgment, that the Commission clearly intended by its notice of competition to recruit people who had successfully completed a course of advanced secondary education before beginning nursing training, so that the notice of competition required candidates to send to the selection board by 22 March 1996 copies of two separate certificates, certifying successful completion of a course of advanced secondary education as well as of a course of nursing training.
31 According to the appellant, the notice of competition did not require the course of study to have been successfully completed, that is to say, according to her interpretation of that term, that high marks must have been achieved. Neither did it require two separate stages of study or, consequently, the production of two separate certificates where, as in Finland, the course of nursing training was in itself a course of advanced secondary education and the nursing diploma provided was proof both of completion of a course of advanced secondary education and of nursing qualifications. Finally, the notice of competition did not stipulate that the stages of study mentioned must have been completed in a particular order.
32 As the Commission notes, an appeal which confines itself to repeating or reproducing word for word the pleas in law and arguments previously submitted to the Court of First Instance must be dismissed as clearly inadmissible (see especially Case C-19/95 San Marco v Commission [1996] ECR I-4435, paragraph 38). That is not, however, the case with the first plea in law, which constitutes a criticism of the Court of First Instance's interpretation of the notice of competition. Therefore it must be declared admissible.
33 In that respect, it must first be noted that the Court of First Instance duly observed, at paragraphs 51 and 52 of the contested judgment, that paragraph III.B.2(a) of the notice of competition indicates that candidates must hold a certificate of advanced secondary education and a nursing diploma, and paragraph XI.1 of the notice indicates that photocopies of documents certifying that the candidate has satisfied the eligibility requirements for the competition must be attached to the application form so that the selection board can check that they correspond to the information provided by the candidate on the application form. In those circumstances the Court of First Instance rightly concluded, at paragraphs 53 and 56 of the contested judgment, that candidates had to show that they had successfully completed both a course of nursing training and a separate course of advanced secondary education and accordingly provide two separate certificates in order to prove that they had fulfilled the required conditions even if the course of nursing training was in itself a course of advanced secondary education.
34 Secondly, it must be noted that by using, at paragraph 53 of the contested judgment, the expression successfully completed a course of study the Court of First Instance was in no way claiming that the notice of competition required candidates to have achieved particularly brilliant results in their final examinations, but simply to have passed those examinations.
35 Finally, the question of whether the course of advanced secondary education should have been completed before or after the course of nursing training cannot affect the findings of the Court of First Instance as the appellant had not sent to the selection board, before the time-limit of 22 March 1996, any document proving that she held a separate certificate of advanced secondary education, since it was on the basis of that fact that the Court of First Instance concluded that the selection board had not erred in rejecting the appellant's application.
36 It follows that the first plea must be dismissed as clearly unfounded.
The second plea in law
37 By the second plea in law, the appellant criticises the Court of First Instance for rejecting, at paragraph 53 of the contested judgment, the argument based on the alleged difference between the notice of competition published in the Official Journal of the European Communities and the notice of competition published in the Finnish national newspaper Helsingin Sanomat.
38 However, the appellant, who merely claims that a comparison of the wording of the texts appearing in the two publications clearly shows that they differ, does not show in what respect the Court of First Instance has infringed Community law by rejecting the argument in question on the basis that only the notice of competition published in the Official Journal of the European Communities is authentic.
39 In those circumstances the second plea must be dismissed as clearly unfounded.
The third plea in law
40 By the third plea in law, the appellant contends that the Court of First Instance incorrectly stated, at paragraph 54 of the contested judgment, that it was established that the appellant had not forwarded to the selection board, before the deadline of 22 March 1996, a copy of her certificate of advanced secondary education. In Finland, the nursing diploma is a certificate of advanced secondary education and it was not disputed that she had forwarded her nursing diploma to the Commission's recruitment unit within the time-limit specified by the notice of competition.
41 It is clear that that plea is based on a misreading of paragraph 54 of the contested judgment.
42 After stating in paragraph 53 that the notice of competition required candidates to provide documents certifying that they had successfully completed both a course of nursing training and a course of advanced secondary education, the Court of First Instance went on to consider whether the appellant had, as she claims to have, provided proof of completion of such courses. However, in stating that it was established that the appellant had not forwarded her diploma of advanced secondary education, the Court of First Instance was clearly referring to a certificate of advanced secondary education other than nursing training, such as, for example, the Baccalauréat which, as it appears from paragraph 42 of the contested judgment, the appellant claims to have obtained on 31 May 1977. The Court of First Instance was, therefore, not referring to the nursing diploma, and nowhere in the contested judgment is it stated that that diploma was not, in Finland, a certificate of advanced secondary education.
43 The third plea is therefore clearly unfounded.
The fourth plea in law
44 By her fourth plea in law, the appellant criticises the Court of First Instance of having erred in stating, at paragraph 56 of the contested judgment, that both parties acknowledged at the hearing that the nursing diploma in Finland [could] be obtained without having completed a course of advanced secondary education, whereas at the hearing it was only stated that the nursing diploma could be obtained without having taken the Baccalauréat examination. That error directly influenced, to the detriment of the appellant, the Court of First Instance's analysis and its final decision and constitutes a breach of procedure.
45 In that regard, it appears from reading the contested judgment that the alleged error, assuming it to be true, has in any case no bearing on the reasoning of the Court of First Instance. As the appellant herself points out, the fact that a nursing diploma can be obtained without having the Baccalauréat does not mean that the nursing diploma is not in itself a certificate of advanced secondary education. However, it is apparent from reading the contested judgment that the Court of First Instance never considered the nursing diploma not to be a certificate of advanced secondary education, but interpreted the notice of competition as requiring the possession and production of two separate certificates, one certifying completion of a course of nursing training and the other certifying completion of a course of advanced secondary education, even if the course of nursing training is itself considered, within the education system in which it was completed, as a course of advanced secondary education.
46 Therefore, the fourth plea must be dismissed as clearly unfounded.
47 It follows from all of the above considerations that the pleas in law put forward by the appellant in support of her appeal are either clearly inadmissible or clearly unfounded. The appeal must therefore be dismissed in accordance with Article 119 of the Rules of Procedure.
48 In those circumstances there is no need to grant Ms Jouhki's request for legal aid under Article 76 of the Rules of Procedure, applicable to the appeal procedure under Article 118.
Decision on costs
Costs
49 Under Article 69(2) of the Rules of Procedure, applicable to the procedure on appeal by virtue of Article 118, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Article 70 of those Rules provides that in proceedings between the Communities and their servants the institutions are to bear their own costs. However, by virtue of the second paragraph of Article 122 of those rules, Article 70 is not to apply to appeals brought by officials or other servants of the institutions. Since the Commission has applied for costs and the appellant has been unsuccessful, the appellant must be ordered to pay the costs.
Operative part
On those grounds,
THE COURT (Second Chamber)
hereby orders:
(1) The appeal is dismissed.
(2) Ms Jouhki is ordered to pay the costs.