Judgment of the Court (First Chamber) of 28 June 1979. - Andrée Anselme, née Heirwegh and Roger Constant v Commission of the European Communities. - Case 255/78.



European Court reports 1979 Page 02323

Greek special edition Page 00141



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

OFFICIALS - RECRUITMENT - COMPETITION - NOTICE OF COMPETITION - CONDITIONS FOR ADMISSION - SELECTION BOARD - DECISION TO EXCLUDE A CANDIDATE - REASONS BASED ON NON-COMPLIANCE WITH A CONDITION WHICH HAS NOT BEEN EXPRESSED - ILLEGALITY

( STAFF REGULATIONS OF OFFICIALS , ANNEX III , FIRST PARAGRAPH OF ART . 5 )

Summary

ACCORDING TO THE STAFF REGULATIONS THE BASIC FUNCTION OF THE NOTICE OF COMPETITION IS TO GIVE THOSE INTERESTED THE MOST ACCURATE INFORMATION POSSIBLE ABOUT THE CONDITIONS OF ELIGIBILITY FOR THE POST TO ENABLE THEM TO JUDGE WHETHER THEY SHOULD APPLY FOR IT .

WHEN EVEN A CAREFUL READING OF THE NOTICE DOES NOT MAKE IT POSSIBLE FOR INTERESTED PERSONS TO ASCERTAIN THAT IT LAYS DOWN A SPECIFIC REQUIREMENT , IN SO FAR AS IT DOES NOT EXPRESSLY MENTION IT , THE EXCLUSION OF A CANDIDATE BY THE SELECTION BOARD ON THE GROUND THAT HE DOES NOT COMPLY WITH THAT REQUIREMENT AMOUNTS TO AN INFRINGEMENT OF THE FIRST PARAGRAPH OF ARTICLE 5 OF ANNEX III TO THE STAFF REGULATIONS .

Parties

IN CASE 255/78 ,

ANDREE ANSELME , NEE HEIRWEGH , AND ROGER CONSTANT , BOTH OFFICIALS OF THE EUROPEAN COMMUNITIES , RESIDING IN BRUSSELS , REPRESENTED BY GEORGES VANDERSANDEN , OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT , ADVOCATE , 34 RUE PHILIPPE II ,

APPLICANTS ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY DENISE SORASIO , A MEMBER OF ITS LEGAL DEPARTMENT , ACTING AS AGENT , ASSISTED BY DANIEL JACOB , OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF MARIO CERVINO , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

Subject of the case

APPLICATION FOR THE ANNULMENT OF THE DECISION BY WHICH THE SELECTION BOARD FOR INTERNAL COMPETITION NO COM/BT/7/76 REFUSED TO ADMIT THE APPLICANTS TO THAT COMPETITION , AS WELL AS FOR THE ANNULMENT OF THE COMPETITION ITSELF AND OF THE APPOINTMENTS MADE IN CONSEQUENCE THEREOF ,

Grounds

1 BY AN APPLICATION RECEIVED AT THE REGISTRY ON 22 NOVEMBER 1978 THE APPLICANTS REQUESTED THE COURT TO ANNUL THE DECISIONS BY WHICH THE SELECTION BOARD FOR COMPETITION NO COM/BT/7/76 , WHICH WAS HELD FOR THE PURPOSE OF CONSTITUTING A RESERVE FOR FUTURE RECRUITMENT , REFUSED TO ADMIT THEM TO THAT COMPETITION , AS WELL AS TO ANNUL THE COMPETITION ITSELF AND THE APPOINTMENTS MADE IN CONSEQUENCE THEREOF .

2 THE CONTESTED DECISIONS OF THE SELECTION BOARD FOR THE COMPETITION WERE NOTIFIED TO THE APPLICANTS ON 7 FEBRUARY 1978 . FOLLOWING A REQUEST BY THE APPLICANTS FOR THOSE DECISIONS TO BE RECONSIDERED THEY WERE INFORMED BY THE SELECTION BOARD ON 22 FEBRUARY 1978 THAT IT HAD DECIDED TO ADHERE TO ITS PREVIOUS DECISIONS . ON 25 APRIL 1978 THE APPLICANTS SUBMITTED A COMPLAINT TO THE COMMISSION UNDER ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS , TO WHICH THE COMMISSION MADE NO REPLY WITHIN THE PRESCRIBED PERIOD .

ADMISSIBILITY

3 THE DEFENDANT HAS PUT FORWARD NO OBJECTION CONCERNING THE ADMISSIBILITY OF THE APPLICATION AND THE COURT HAS FOUND NO GROUNDS FOR CONSIDERING THE QUESTION OF ITS OWN MOTION .

SUBSTANCE

4 THE APPLICANTS MAINTAIN THAT THE DECISIONS OF THE SELECTION BOARD INFRINGE THE FIRST SUBPARAGRAPH OF ARTICLE 5 OF ANNEX III TO THE STAFF REGULATIONS IN THAT IN ORDER TO REFUSE TO ADMIT THEM TO THE COMPETITION THE SELECTION BOARD STATED THAT THEY DID NOT SATISFY CERTAIN REQUIREMENTS RELATING TO SPECIFIC PRACTICAL EXPERIENCE ALTHOUGH THOSE REQUIREMENTS WERE NOT REQUIRED BY THE NOTICE OF COMPETITION .

5 AMONG THE FIVE HEADINGS IN THE NOTICE OF COMPETITION TWO ARE OF IMPORTANCE AS REGARDS THE SOLUTION OF THE DISPUTE . THE FIRST CONCERNS THE NATURE OF THE DUTIES TO BE PERFORMED : IT INDICATES THAT THE AIM OF THE COMPETITION IS TO FILL POSTS OF A TECHNICAL NATURE IN FOUR FIELDS , THE FOURTH OF WHICH IS DEFINED AS FOLLOWS :

' ' GRAPHICS : ( A ) PRINTING

( B ) PHOTO-ENGRAVING

( C ) MICROFILM WORK AND INDUSTRIAL PHOTOGRAPHY

( D ) OFFSET LITHOGRAPHY

( E ) TYPE-SETTING

( F ) BINDING . ' '

IF CANDIDATES CHOSE THE FIELD OF GRAPHICS THEY WERE REQUESTED TO OPT FOR TWO SPECIALITIES . THE SECOND HEADING CONCERNS THE CONDITIONS FOR ADMISSION TO THE COMPETITION AND DRAWS A DISTINCTION BETWEEN THOSE CANDIDATES WHO HAVE COMPLETED AN ADVANCED LEVEL OF SECONDARY EDUCATION ( HEADING II A ) AND THOSE WHO HAVE NOT ( HEADING II B ). THE FORMER WERE REQUIRED TO SHOW THAT THEY POSSESSED :

' ' AT LEAST 6 YEARS ' EXPERIENCE . . . IN THE FIELD CHOSEN BY THE CANDIDATE FROM AMONG THOSE LISTED UNDER ' NATURE OF DUTIES ' , ' '

WHILE THE LATTER WERE REQUIRED TO SHOW THAT THEY POSSESSED :

' ' AT LEAST 9 YEARS ' PRACTICAL EXPERIENCE . . . OF DUTIES OF A TECHNICAL NATURE WHICH THE STAFF REGULATIONS CLASSIFY AS CATEGORY C STANDARD ' ' .

6 THE REFUSAL TO ADMIT THE APPLICANTS TO THE COMPETITION WAS BASED ON THE GROUND THAT THEY DID NOT POSSESS AT LEAST NINE YEARS ' PRACTICAL EXPERIENCE OF EXECUTIVE DUTIES OF A TECHNICAL NATURE CLASSIFIED BY THE STAFF REGULATIONS AS OF CATEGORY C STANDARD IN TWO SPECIALITIES . THE LAST THREE WORDS DID NOT APPEAR AMONG THE ' ' CONDITIONS FOR ADMISSION TO THE COMPETITION ' ' IN RELATION TO THE CANDIDATES WHO , LIKE THE APPLICANTS , HAD NOT COMPLETED AN ADVANCED LEVEL OF SECONDARY EDUCATION .

7 THE DEFENDANT HAS CLAIMED THAT THE APPLICANTS OUGHT TO HAVE UNDERSTOOD THAT THE PRACTICAL EXPERIENCE REQUIRED AMONG THE OTHER CONDITIONS FOR ADMISSION HAD TO BE IN THE FIELD SELECTED BY THE CANDIDATE AND THAT ALTHOUGH THAT LINK WAS NOT EXPRESSLY MENTIONED IN THE WORDING OF THE NOTICE OF COMPETITION IT NEVERTHELESS FOLLOWS CLEARLY FROM THE AIMS OF THE ADMINISTRATIVE AUTHORITY WHICH ORGANIZED THE COMPETITION , FROM A CAREFUL READING OF THE NOTICE OF COMPETITION AS A WHOLE AND FROM A COMPARISON WITH OTHER NOTICES OF COMPETITION RELATING TO SIMILAR POSTS .

8 THE COURT CANNOT FOLLOW THE DEFENDANT IN THAT VIEW .

9 ACCORDING TO THE STAFF REGULATIONS THE BASIC FUNCTION OF THE NOTICE OF COMPETITION IS PRECISELY TO GIVE THOSE INTERESTED THE MOST ACCURATE INFORMATION POSSIBLE ABOUT THE CONDITIONS OF ELIGIBILITY FOR THE POST TO ENABLE THEM TO JUDGE WHETHER THEY SHOULD APPLY FOR IT .

10 THAT PRINCIPLE DOES NOT , HOWEVER , ABSOLVE THE OFFICIALS WHO ARE INTERESTED FROM A CAREFUL READING OF THE NOTICE OF COMPETITION . ALTHOUGH IN THE PRESENT CASE APPLICANTS WERE ABLE TO DISCOVER FROM A CAREFUL READING OF THE NOTICE THAT THE PRACTICAL EXPERIENCE REQUIRED HAD TO BE IN THE TECHNICAL FIELD WHICH THEY HAD SELECTED THERE WAS , ON THE OTHER HAND , NOTHING IN THE NOTICE TO INDICATE TO THEM THAT THE CONNEXION BETWEEN THE PRACTICAL EXPERIENCE AND THE FIELD SELECTED WAS TO BE INTERPRETED IN SUCH A WAY THAT THE CHOICE OF THE FIELD OF ' ' GRAPHICS ' ' WOULD IMPLY THE REQUIREMENT OF EXPERIENCE IN THE TWO SPECIALITIES WHICH THEY HAD CHOSEN WITHIN THAT FIELD .

11 IT IS EVIDENT FROM THE DOCUMENTS IN THE FILE THAT EACH OF THE APPLICANTS WAS PREPARED TO PERFORM TASKS OF A TECHNICAL NATURE IN THE TWO SPECIALITIES WHICH THEY HAD CHOSEN , THAT THEY HAD PRACTICAL EXPERIENCE WITH THE MEANING OF THE NOTICE OF COMPETITION IN ONE OF THOSE SPECIALITIES AND THAT ONE OF THEM , MR CONSTANT , ALSO HAD SOME EXPERIENCE , ALTHOUGH OF A LIMITED NATURE , IN THE OTHER SPECIALITY HE HAD CHOSEN . THE DEFENDANT HAS CLAIMED THAT A PERIODIC REPORT CONCERNING THAT APPLICANT REFERRED ONLY TO A CERTAIN ' ' KNOWLEDGE ' ' OF THAT SPECIALITY AND NOT TO ANY ' ' EXPERIENCE ' ' BUT IT HAS NEVERTHELESS NOT DISPUTED HIS ARGUMENT THAT THE KNOWLEDGE IN QUESTION HAD BEEN ACQUIRED AS A RESULT OF PRACTICAL WORK .

12 FURTHERMORE , IT MUST BE OBSERVED THAT MR CONSTANT IMMEDIATELY OBJECTED TO THE REFUSAL OF HIS CANDIDATURE AND , AT THE SAME TIME , INDICATED THAT HE WAS PUTTING INFORMATION CONCERNING HIS PRACTICAL EXPERIENCE IN EACH OF THE TWO SPECIALITIES IN QUESTION AT THE DISPOSAL OF THE SELECTION BOARD FOR THE COMPETITION . THE SELECTION BOARD NEVERTHELESS PERSISTED IN ITS REFUSAL ON THE GROUND THAT THE APPLICANT SHOULD HAVE SUBMITTED HIS QUALIFICATIONS IN THAT RESPECT .

13 IT FOLLOWS FROM THE FOREGOING CONSIDERATIONS THAT AS THE NOTICE OF COMPETITION DID NOT STIPULATE THAT THE PRACTICAL EXPERIENCE REQUIRED WAS TO COVER TWO SPECIALITIES IT CANNOT BE INTERPRETED AS NEVERTHELESS REQUIRING THAT CONDITION TO BE FULFILLED .

14 BY REFUSING TO ADMIT THE APPLICANTS TO THE COMPETITION ON THE GROUND THAT THEY DID NOT POSSESS AT LEAST NINE YEARS ' PRACTICAL EXPERIENCE IN THE TWO SPECIALITIES CHOSEN THE SELECTION BOARD THUS BASED ITS DECISION ON CRITERIA OTHER THAN THOSE LAID DOWN BY THE NOTICE OF COMPETITION , WITH THE RESULT THAT IT INFRINGED THE TERMS OF THE FIRST PARAGRAPH OF ARTICLE 5 OF ANNEX III TO THE STAFF REGULATIONS .

15 IT MUST , HOWEVER , BE REMEMBERED THAT COMPETITION NO COM/BT/7/76 WAS INTENDED TO CONSTITUTE A RESERVE LIST FOR FUTURE RECRUITMENT OF TECHNICAL ASSISTANTS IN CAREER BRACKET B 5/B 4 , WITH THE RESULT THAT THE EXCLUSION OF THE APPLICANTS FROM THE LIST OF CANDIDATES DID NOT EFFECT THE ADMISSION TO THE LIST OF THE PERSONS SELECTED BY THE SELECTION BOARD . IT SUFFICES TO ANNUL THE DECISIONS OF THE SELECTION BOARD TO EXCLUDE THE APPLICANTS FROM THE COMPETITION AND THE DECISIONS BY WHICH THE BOARD CONFIRMED THOSE REFUSALS . IN THOSE CIRCUMSTANCES THERE IS NO NEED TO ANNUL THE SELECTION MADE BY THE SELECTION BOARD .

Decision on costs

COSTS

16 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE , THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS . AS THE DEFENDANT HAS FAILED IN ITS SUBMISSIONS IT MUST BE ORDERED TO PAY THE COSTS .

Operative part

ON THOSE GROUNDS ,

THE COURT ( FIRST CHAMBER )

HEREBY :

1 . ANNULS THE DECISIONS BY WHICH THE SELECTION BOARD FOR COMPETITION NO COM/BT/7/76 REFUSED TO ALLOW THE APPLICANTS TO ENTER THE COMPETITION , AS WELL AS THE DECISIONS BY WHICH IT CONFIRMED THE REFUSALS IN QUESTION ;

2 . ORDERS THE COMMISSION TO PAY ALL THE COSTS .