Judgment of the Court (Third Chamber) of 23 October 1986. - Volker Hoyer and others v Court of Auditors of the European Communities. - Refusal to admit candidates to tests - Disagreement between the Selection Board and the Appointing Authority. - Joined cases 322/85 and 323/85.



European Court reports 1986 Page 03215



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

1 . OFFICIALS - RECRUITMENT - COMPETITIONS - SELECTION BOARD - INDEPENDENCE - LIMITS - ADOPTION OF UNLAWFUL DECISIONS - DUTIES OF THE APPOINTING AUTHORITY - REVIEW BY THE COURT

2 . OFFICIALS - RECRUITMENT - COMPETITION - CONDITIONS FOR ADMISSION - KNOWLEDGE OF LANGUAGES - SELECTION BOARD ' S DISCRETION - CONSIDERATION ONLY OF OBJECTIVE FACTORS IN THE FILES

( STAFF REGULATIONS , ANNEX III , ART . 5 )

Summary

1 . IN VIEW OF THE INDEPENDENCE OF SELECTION BOARDS , THE INSTITUTION CONCERNED HAS NO POWER TO ANNUL OR AMEND A DECISION TAKEN BY A SELECTION BOARD . HOWEVER IN EXERCISING ITS OWN POWERS , THE APPOINTING AUTHORITY CANNOT BE BOUND BY A DECISION OF A SELECTION BOARD WHERE THE ILLEGALITY OF THAT DECISION IS LIABLE TO VITIATE ITS OWN DECISIONS . IF IT IS UNABLE TO APPOINT A CANDIDATE BECAUSE IT CONSIDERS THAT THE SELECTION BOARD HAS UNLAWFULLY REFUSED TO ALLOW ONE OR MORE CANDIDATES TO TAKE PART IN THE COMPETITION AND THAT AS A RESULT THE WHOLE COMPETITION IS INVALIDATED , IT IS UNDER A DUTY TO TAKE FORMAL NOTE OF THAT SITUATION BY MEANS OF A REASONED DECISION AND RECOMMENCE THE WHOLE COMPETITION PROCEDURE FOLLOWING PUBLICATION OF A NEW NOTICE AND IF NECESSARY THE APPOINTMENT OF A NEW SELECTION BOARD . WHERE THE APPOINTING AUTHORITY HAS TAKEN NO SUCH DECISION , IT IS FOR THE COURT , ON THE APPLICATION OF THE PARTIES CONCERNED , TO RULE DIRECTLY ON THE LEGALITY OF THE SELECTION BOARD ' S DECISION .

2 . IN VIEW OF THE WORDING OF THE NOTICE OF COMPETITION , THE NATURE OF THE VACANT POST AND THE PLACE OF EMPLOYMENT , A SELECTION BOARD IS PERFECTLY ENTITLED TO DECIDE , WITHIN THE SCOPE OF ITS DISCRETIONARY POWER , THAT A GOOD KNOWLEDGE OF A PARTICULAR LANGUAGE IS ESSENTIAL , EVEN IF THE NOTICE OF COMPETITION DOES NOT CONTAIN ANY INDICATION AS TO THE LEVEL REQUIRED . HOWEVER , WHEN CHECKING THAT CANDIDATES SATISFY THE CONDITIONS FOR ADMISSION WHICH IT HAS SPECIFIED , THE SELECTION BOARD MAY RELY ONLY ON OBJECTIVE CRITERIA , SUCH AS UNIVERSITY DEGREES OR DIPLOMAS , AND NOT ON A PURELY SUBJECTIVE ASSESSMENT GIVEN BY CANDIDATES AS TO THEIR LINGUISTIC KNOWLEDGE , EXCEPT WHERE THEY STATE THAT THEY HAVE NO KNOWLEDGE OF THE LANGUAGE CONSIDERED ESSENTIAL . SUCH CONDUCT IS PARTICULARLY NECESSARY WHERE THE NOTICE OF COMPETITION PROVIDES FOR AN ORAL TEST IN THAT LANGUAGE , THUS ALLOWING THE CANDIDATES ' KNOWLEDGE TO BE DETERMINED ON A CLEARLY OBJECTIVE BASIS .

Parties

IN JOINED CASES 322 AND 323/85

VOLKER HOYER , AN OFFICIAL OF THE COURT OF AUDITORS OF THE EUROPEAN COMMUNITIES , RESIDING AT 2 RUE JEAN-ENGLING , DOMMELDANGE , REPRESENTED BY ERNEST ARENDT , AVOCAT , 34 B RUE PHILIPPE-II , LUXEMBOURG , WITH AN ADDRESS FOR SERVICE AT THE LATTER ' S CHAMBERS , AND

MANFRED NEUMANN , AN OFFICIAL OF THE COURT OF AUDITORS OF THE EUROPEAN COMMUNITIES , RESIDING AT 14 RUE DE LA CHAPELLE , STRASSEN , REPRESENTED BY ERNEST ARENDT , AVOCAT , 34 B RUE PHILIPPE-II , LUXEMBOURG , WITH AN ADDRESS FOR SERVICE AT THE LATTER ' S CHAMBERS ,

APPLICANTS ,

V

COURT OF AUDITORS OF THE EUROPEAN COMMUNITIES , REPRESENTED BY JEAN-AIME STOLL AND MICHAEL BECKER , ACTING AS AGENTS , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT 29 RUE ALDRINGEN ,

DEFENDANT ,

Subject of the case

APPLICATION FOR THE ANNULMENT OF THE DECISIONS OF 2 AUGUST 1985 AND 28 OCTOBER 1985 WHEREBY THE SELECTION BOARD IN COMPETITION NO CC/A/8/85 REFUSED TO ADMIT THE APPLICANTS TO THE TESTS IN THAT COMPETITION ,

Grounds

1 BY APPLICATIONS LODGED AT THE COURT REGISTRY ON 31 OCTOBER 1985 VOLKER HOYER AND MANFRED NEUMANN , BOTH OFFICIALS OF THE COURT OF AUDITORS OF THE EUROPEAN COMMUNITIES , BROUGHT TWO ACTIONS , WHICH WERE JOINED BY AN ORDER OF 9 APRIL 1986 , FOR THE ANNULMENT OF THE DECISIONS OF 2 AUGUST 1985 AND 28 OCTOBER 1985 WHEREBY THE SELECTION BOARD IN COMPETITION NO CC/A/8/85 REFUSED TO ADMIT THEM TO THE TESTS IN THAT COMPETITION .

2 ON 24 JUNE 1985 THE COURT OF AUDITORS PUBLISHED ' NOTICE OF COMPETITION INTERNAL TO THE INSTITUTION NO CC/A/8/85 ' FOR THE PURPOSE OF FILLING A POST OF ADMINISTRATOR IN CAREER BRACKET A 7 - A 6 . THE DUTIES ATTACHING TO THAT POST WERE TO MANAGE , UNDER THE DIRECTION OF A SUPERIOR OFFICIAL , THE ADMINISTRATION DEPARTMENT AND TO UNDERTAKE ADVISORY DUTIES IN THE AREAS FOR WHICH THAT DEPARTMENT WAS RESPONSIBLE .

3 ACCORDING TO PARAGRAPH IV ( 3 ) OF THE NOTICE OF COMPETITION , ONE OF THE REQUIREMENTS FOR ADMISSION TO THE TEST WAS A THOROUGH KNOWLEDGE OF ONE OFFICIAL LANGUAGE OF THE EUROPEAN COMMUNITIES AND SATISFACTORY KNOWLEDGE OF A SECOND OFFICIAL COMMUNITY LANGUAGE ; IT WAS ALSO STATED THAT ' IN VIEW OF THE NATURE OF THE DUTIES , KNOWLEDGE OF FRENCH IS REQUIRED ' . MOREOVER , IN PARAGRAPH V B ( 1 ) ( C ), HEADED ' TESTS ' , IT WAS STATED THAT AN ' ORAL TEST TO ASSESS THE CANDIDATE ' S KNOWLEDGE OF LANGUAGES AS INDICATED UNDER PARAGRAPH IV ( 3 ) ABOVE ' WOULD BE ORGANIZED .

4 IN THEIR APPLICATION FORMS THE APPLICANTS THEMSELVES STATED THAT THEIR KNOWLEDGE OF FRENCH WAS ' GOOD ' AS FAR AS THEIR READING ABILITY WAS CONCERNED , BUT ONLY ' FAIR ' AS REGARDS THEIR ABILITY TO WRITE AND SPEAK THE LANGUAGE .

5 ON THE BASIS OF THE PROVISIONS OF THE NOTICE OF COMPETITION AND HAVING REGARD TO THE NATURE OF THE VACANT POST THE SELECTION BOARD TOOK THE VIEW THAT A ' GOOD ' KNOWLEDGE OF FRENCH WAS ESSENTIAL AND THAT , SPECIFICALLY , CANDIDATES ' READING , WRITING AND SPEAKING ABILITY SHOULD AT LEAST BE ' GOOD ' . THE BOARD THEN EXAMINED THE APPLICATION FORMS AND REJECTED ALL THE CANDIDATES WHO HAD STATED , UNDER ANY ONE OF THOSE HEADINGS , THAT THEIR KNOWLEDGE OF FRENCH WAS ONLY ' FAIR ' AND NOT AT LEAST ' GOOD ' . ON THAT BASIS , FIVE OF THE 14 CANDIDATES , INCLUDING THE APPLICANTS , WERE REFUSED ADMISSION TO THE TESTS .

6 IT WAS IN THOSE CIRCUMSTANCES THAT , BY LETTERS SENT BY THE CHAIRMAN OF THE SELECTION BOARD TO THE APPLICANTS ON 12 AUGUST 1985 , THEY WERE INFORMED THAT THEY HAD NOT BEEN ADMITTED TO THE TESTS . NEVERTHELESS , FOLLOWING A MEETING WITH THE HEAD OF THE PERSONNEL AND ADMINISTRATION DIVISION OF THE COURT OF AUDITORS , THE BOARD DECIDED , PURSUANT TO THE SECOND PARAGRAPH OF ARTICLE 2 OF ANNEX III TO THE STAFF REGULATIONS , TO GIVE ALL THE CANDIDATES IN THE COMPETITION THE OPPORTUNITY TO SUBMIT , NOT LATER THAN 30 SEPTEMBER 1985 , ANY ADDITIONAL OBSERVATIONS WHICH THEY MIGHT WISH TO MAKE IN CONNECTION WITH THE DECISIONS REFUSING TO ADMIT THEM TO THE TESTS . MR HOYER AND MR NEUMANN SUBMITTED THEIR ' ADDITIONAL OBSERVATIONS ' ON 26 SEPTEMBER 1985 .

7 BY A MEMORANDUM OF 4 OCTOBER 1985 THE APPOINTING AUTHORITY INFORMED THE CHAIRMAN OF THE SELECTION BOARD HOW , IN ITS VIEW , THE CONDITIONS FOR ADMISSION TO THE COMPETITION IN QUESTION SHOULD BE APPLIED . AS REGARDS THE REQUIREMENT OF KNOWLEDGE OF FRENCH , THE APPOINTING AUTHORITY STATED THAT :

' ALTHOUGH THAT REQUIREMENT APPEARS UNDER THE HEADING ' ' ELIGIBILITY ' ' , SINCE THE INFORMATION SUPPLIED IN THAT RESPECT BY THE CANDIDATES IS BY DEFINITION SUBJECTIVE , IT IS ESSENTIAL TO VERIFY IT OBJECTIVELY BY MAKING THE CANDIDATES UNDERGO THE LANGUAGE TESTS PROVIDED FOR UNDER B ( 1 ) ( C ) OF THE NOTICE OF COMPETITION . APPLICATIONS MAY NOT BE REJECTED MERELY ON THE BASIS OF CANDIDATES ' SUBJECTIVE STATEMENTS . '

8 NEVERTHELESS , BY CONFIRMATORY DECISIONS OF 28 OCTOBER 1985 , THE BOARD MAINTAINED ITS DECISIONS OF 2 AUGUST 1985 REFUSING TO ADMIT THE APPLICANTS TO THE COMPETITION . THOSE DECISIONS ARE THE SUBJECT OF THESE PROCEEDINGS .

9 THE APPLICANTS CLAIM IN SUBSTANCE THAT BY ALTERING ON ITS OWN INITIATIVE THE ADMISSION CONDITIONS REGARDING THE REQUIRED KNOWLEDGE OF LANGUAGES THE SELECTION BOARD WENT BEYOND THE CONDITIONS LAID DOWN IN THE NOTICE OF COMPETITION AND INTERPRETED THEM ERRONEOUSLY . A KNOWLEDGE OF FRENCH WAS REQUIRED IN VIEW OF THE NATURE OF THE DUTIES , BUT NO SPECIFIC LEVEL WAS INDICATED . THE BOARD THEREFORE TOOK UPON ITSELF THE ADOPTION OF A NEW RULE . MOREOVER , IT HAD COME TO A DECISION WITHOUT ASSESSING THE APPLICANTS ' KNOWLEDGE OF FRENCH , DESPITE THE FACT THAT A LANGUAGE TEST WAS PROVIDED FOR IN THE NOTICE OF COMPETITION FOR THAT VERY PURPOSE .

10 THE COURT OF AUDITORS TAKES THE VIEW THAT THE APPLICATION IS WELL FOUNDED . IN ITS VIEW , THE SELECTION BOARD ' S EXPLANATIONS IN THE LETTERS WHICH IT SENT TO THE APPLICANTS ON 2 AUGUST AND 28 OCTOBER 1985 HAVE NO LEGAL FOUNDATION HAVING REGARD TO THE CONDITIONS LAID DOWN IN THE NOTICE OF COMPETITION , THE APPLICANTS ' LETTERS OF 26 SEPTEMBER 1985 AND THE POSITION CLEARLY ADOPTED BY THE APPOINTING AUTHORITY IN ITS MEMORANDUM OF 4 OCTOBER 1985 .

11 IN ADDITION , THE COURT OF AUDITORS STATES THAT IT CONSIDERED THE POSSIBILITY THAT IT MIGHT ITSELF ANNUL THE SELECTION BOARD ' S DECISIONS REFUSING TO ADMIT THE APPLICANTS TO THE TESTS , WHICH CLEARLY CONTAINED SERIOUS ERRORS , AND ENTRUST THE TASK OF RE-EXAMINING THE CONDITIONS FOR ADMISSION TO A NEW SELECTION BOARD . HOWEVER , IN VIEW OF THE CONSISTENT CASE-LAW OF THE COURT , IT REACHED THE CONCLUSION THAT THE APPOINTING AUTHORITY HAD NO POWER TO ANNUL OR AMEND DECISIONS OF A SELECTION BOARD . IN ITS VIEW , THAT SITUATION IS UNSATISFACTORY .

12 IT MUST BE RECALLED IN THE FIRST PLACE , IN REPLY TO THAT OBSERVATION OF THE COURT OF AUDITORS , THAT , ACCORDING TO A PRINCIPLE CONSISTENTLY UPHELD BY THE COURT , BASED ON THE NEED TO ENSURE THE INDEPENDENCE OF SELECTION BOARDS , THE INSTITUTION CONCERNED HAS NO POWER TO ANNUL OR AMEND A DECISION TAKEN BY A SELECTION BOARD ( JUDGMENT OF 14 JUNE 1972 IN CASE 44/71 MARCATO V COMMISSION ( 1972 ) ECR 427 ; JUDGMENT OF 26 FEBRUARY 1981 IN CASE 34/80 AUTHIE V COMMISSION ( 1981 ) ECR 665 ; AND JUDGMENT OF 14 JULY 1983 IN CASE 144/82 DETTI V COURT OF JUSTICE ( 1983 ) ECR 2421 ).

13 HOWEVER , IN EXERCISING ITS OWN POWERS , THE APPOINTING AUTHORITY IS REQUIRED TO TAKE DECISIONS WHICH ARE FREE OF IRREGULARITIES . IT CANNOT THEREFORE BE BOUND BY DECISIONS OF A SELECTION BOARD WHERE THE ILLEGALITY OF THOSE DECISIONS IS LIABLE TO VITIATE ITS OWN DECISIONS .

14 IT IS FOR THAT REASON THAT , WHERE THE APPOINTING AUTHORITY CONSIDERS , AS IN THIS CASE , THAT ONE OR MORE OF THE SELECTION BOARD ' S DECISIONS REFUSING TO ADMIT CANDIDATES TO THE COMPETITION ARE ILLEGAL AND THAT AS A RESULT THE WHOLE COMPETITION IS INVALIDATED , IT CANNOT MAKE AN APPOINTMENT . IT IS THEN UNDER THE DUTY TO TAKE FORMAL NOTE OF THAT SITUATION BY MEANS OF A REASONED DECISION AND RECOMMENCE THE WHOLE COMPETITION PROCEDURE FOLLOWING PUBLICATION OF A NEW NOTICE AND IF NECESSARY THE APPOINTMENT OF A NEW SELECTION BOARD . WHERE THE APPOINTING AUTHORITY HAS TAKEN NO SUCH DECISION , IT IS FOR THE COURT , ON THE APPLICATION OF THE PARTIES CONCERNED , TO RULE DIRECTLY ON THE LEGALITY OF THE SELECTION BOARD ' S DECISION .

15 AS REGARDS THE LEGALITY OF THE DECISION REFUSING TO ADMIT THE APPLICANTS TO THE COMPETITION , IT SHOULD BE NOTED THAT , IN VIEW OF THE WORDING OF THE NOTICE OF COMPETITION , THE NATURE OF THE VACANT POST AND THE PLACE OF EMPLOYMENT , THE SELECTION BOARD WAS PERFECTLY ENTITLED TO DECIDE , WITHIN THE SCOPE OF ITS DISCRETIONARY POWER , THAT A ' GOOD ' KNOWLEDGE OF FRENCH WAS ESSENTIAL , EVEN IF THE NOTICE OF COMPETITION DID NOT CONTAIN ANY INDICATION AS TO THE LEVEL REQUIRED .

16 HOWEVER , ALTHOUGH IT WAS THE SELECTION BOARD ' S DUTY TO MAKE SURE THAT THE CANDIDATES SATISFIED THE CONDITIONS FOR ADMISSION WHICH IT HAD DETERMINED , IT COULD EXERCISE THAT POWER ONLY ON THE BASIS OF OBJECTIVE CRITERIA , SUCH AS UNIVERSITY DEGREES OR DIPLOMAS , AND NOT , AS IT DID IN THIS INSTANCE , ON THE BASIS OF A PURELY SUBJECTIVE ASSESSMENT GIVEN BY THE CANDIDATES AS TO THEIR KNOWLEDGE OF FRENCH , EXCEPT WHERE CANDIDATES STATED THAT THEY HAD NO KNOWLEDGE OF THAT LANGUAGE .

17 THE SELECTION BOARD ' S CONDUCT IN THAT RESPECT WAS EVEN MORE REPREHENSIBLE BECAUSE AN ORAL TEST OF FRENCH WAS PROVIDED FOR IN THE NOTICE OF COMPETITION , ON THE BASIS OF WHICH IT WOULD HAVE BEEN POSSIBLE TO CARRY OUT A CLEARLY OBJECTIVE ASSESSMENT OF THE CANDIDATES ' KNOWLEDGE OF FRENCH .

18 IT FOLLOWS FROM THE FOREGOING THAT THE DECISIONS OF 2 AUGUST AND 28 OCTOBER 1985 REFUSING TO ADMIT THE APPLICANTS TO THE TESTS DO NOT CONFORM TO THE PROVISIONS OF THE NOTICE OF COMPETITION OR TO THE SCHEME OF THE TESTS FOR WHICH IT PROVIDES . THEY MUST THEREFORE BE ANNULLED .

Decision on costs

COSTS

19 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . IN THE CIRCUMSTANCES OF THE CASE AND ALTHOUGH IT SUBMITTED THAT THE COURT SHOULD ALLOW THE APPLICATION , THE COURT OF AUDITORS MUST BE ORDERED TO PAY THE COSTS .

Operative part

ON THOSE GROUNDS ,

THE COURT ( THIRD CHAMBER )

HEREBY :

( 1 ) ANNULS THE DECISIONS OF 2 AUGUST AND 28 OCTOBER 1985 WHEREBY THE SELECTION BOARD IN COMPETITION NO CC/A/8/85 REFUSED TO ADMIT MR HOYER AND MR NEUMANN TO THE TESTS IN THAT COMPETITION ;

( 2 ) ORDERS THE COURT OF AUDITORS TO PAY ALL THE COSTS OF THE PROCEEDINGS .