Judgment of the Court (Third Chamber) of 1 October 1981. - Anna Guglielmi v European Parliament. - Official - Annulment of a competition. - Case 268/80.



European Court reports 1981 Page 02295



Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

OFFICIALS - RECRUITMENT - COMPETITION BASED ON TESTS - WRITTEN TEST - CHOICE OF SUBJECT - OBSERVANCE OF CRITERIA MENTIONED IN THE NOTICE OF COMPETITION - NO BREACH OF THE PRINCIPLE OF EQUAL TREATMENT OF CANDIDATES - CONSIDERATION OF THE DEGREE OF DIFFICULTY OF THE TEST ON MARKING - ASSESSMENT BY THE SELECTION BOARD - REVIEW BY THE COURT - LIMITS

Parties

IN CASE 268/80

ANNA GUGLIELMI , AN OFFICIAL OF THE EUROPEAN PARLIAMENT , OF 21 VIA ADDA , ROME , REPRESENTED BY VICTOR BIEL OF THE LUXEMBOURG BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE LATTER ' S CHAMBERS , 18A RUE DES GLACIS ,

APPLICANT ,

V

EUROPEAN PARLIAMENT , REPRESENTED BY M . SCHMIDT , DIRECTOR FOR PERSONNEL AND SOCIAL AFFAIRS , ACTING AS AGENT , ASSISTED BY ALEX BONN OF THE LUXEMBOURG BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF THE SAID ALEX BONN , 22 COTE D ' EICH ,

DEFENDANT ,

Subject of the case

APPLICATION FOR THE ANNULMENT OF A COMPETITION ,

Grounds

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 3 DECEMBER 1980 MRS ANNA GUGLIELMI , AN OFFICIAL OF THE EUROPEAN PARLIAMENT , BROUGHT AN ACTION FOR THE ANNULMENT OF THE SELECTION PROCEDURE IN INTERNAL COMPETITION NO A/66 BASED ON QUALIFICATIONS AND TESTS FOR A POST OF ADMINISTRATOR ( CAREER BRACKET A 7/A 6 ) IN THE INFORMATION OFFICE OF THE EUROPEAN PARLIAMENT IN ROME , OR FOR THE ANNULMENT OF THE COMPETITION AS A WHOLE , AND AN ORDER REQUIRING THE PARLIAMENT TO PAY COMPENSATION FOR THE DAMAGE CAUSED TO THE APPLICANT BY HER FAILURE IN THE COMPETITION .

2 THE ABOVE-MENTIONED COMPETITION , FOR WHICH THE NOTICE HAD BEEN PUBLISHED ON 25 JULY 1979 , WAS ONE OF FOUR COMPETITIONS RELATING TO POSTS IN THE INFORMATION OFFICES OF THE EUROPEAN PARLIAMENT IN ROME , PARIS , BRUSSELS AND DUBLIN FOR WHICH THE WORK OF SELECTION TOOK PLACE SIMULTANEOUSLY FOLLOWING FOUR NOTICES OF INTERNAL COMPETITION ON QUALIFICATIONS AND TESTS WORDED IN ALMOST IDENTICAL TERMS . THE APPLICANT , WHO WAS AN OFFICIAL IN GRADE B 1 , LAST STEP , EMPLOYED SINCE 1967 IN THE INFORMATION OFFICE IN ROME , ENTERED COMPETITION A/66 IN RELATION TO THE POST IN ROME . AFTER CONSIDERATION OF HER QUALIFICATIONS SHE WAS ADMITTED TO THE TESTS .

3 IN THE FOUR ABOVE-MENTIONED NOTICES OF COMPETITION THE FIRST TEST OF THE COMPETITION WAS DESCRIBED IN THE NOTICES AS AN ' ' ESSAY ON A GENERAL SUBJECT BEARING DIRECTLY ON THE DUTIES INVOLVED ' ' ; ANY CANDIDATE OBTAINING LESS THAN 18 MARKS OUT OF 30 WOULD BE ELIMINATED . FOR THAT TEST THE SELECTION BOARDS GAVE THE CANDIDATES THE FOLLOWING SUBJECT : ' ' DESCRIBE IN THE FORM OF AN ARTICLE FOR A MAGAZINE HAVING A WIDE CIRCULATION THE ADVANTAGES OR DISADVANTAGES OF YOUR COUNTRY ' S BELONGING TO THE COMMUNITY ' ' . THE APPLICANT DID NOT OBTAIN THE NECESSARY MARKS IN THAT TEST AND WAS CONSEQUENTLY ELIMINATED FROM FURTHER TESTS FOR THE COMPETITION .

4 ON 1 JULY 1980 THE APPLICANT MADE A COMPLAINT UNDER ARTICLE 90 OF THE STAFF REGULATIONS AGAINST HER REJECTION AS A CANDIDATE . THAT COMPLAINT REMAINED UNANSWERED AND THE APPLICANT THEN BROUGHT THE PRESENT ACTION .

5 THE APPLICANT ' S FIRST SUBMISSION ALLEGES A BREACH OF THE PRINCIPLE OF LEGITIMATE EXPECTATION . THE APPLICANT THEREBY CLAIMS IN SUBSTANCE THAT THE SUBJECT CHOSEN FOR THE FIRST TEST WAS INAPPROPRIATE BECAUSE IT BORE NO RELATION TO THE NATURE OF THE DUTIES ATTACHED TO THE POST IN QUESTION AND WENT BEYOND ITS LEVEL . THOSE DUTIES , WHICH PRINCIPALLY INVOLVE CONTACTS WITH THE PRESS AND SPECIALIST CIRCLES UNDER THE AUTHORITY OF A HEAD OF DIVISION , DO NOT REQUIRE THE ABILITY TO ANSWER A QUESTION OF THAT KIND AT ANY TIME WITHOUT THE AID OF DOCUMENTATION .

6 IT MUST BE OBSERVED THAT ACCORDING TO THE SECOND PARAGRAPH OF ARTICLE 5 ( 1 ) OF THE STAFF REGULATIONS POSTS IN CATEGORY A , WITH WHICH THE PRESENT CASE IS CONCERNED , INVOLVE ADMINISTRATIVE AND ADVISORY DUTIES WHICH REQUIRE UNIVERSITY EDUCATION OR EQUIVALENT EXPERIENCE . AMONG THE REQUISITE QUALIFICATIONS AND EXPERIENCE NOTICE OF COMPETITION NO A/66 DEMANDED ' ' A THOROUGH KNOWLEDGE OF THE OPERATION OF THE INFORMATION MEDIA AND OF THE PARLIAMENTARY SYSTEMS IN ITALY ' ' AND A ' ' THOROUGH KNOWLEDGE OF THE STRUCTURE AND ACTIVITIES OF THE EUROPEAN COMMUNITY ' ' .

7 AN ESSAY ON THE ADVANTAGES AND DISADVANTAGES FOR ITALY OF BELONGING TO THE COMMUNITY REQUIRED KNOWLEDGE BOTH OF COMMUNITY PROBLEMS AND POLITICAL PROBLEMS OF ITALY . THE FACT THAT THE ESSAY TOOK THE FORM OF AN ARTICLE FOR A MAGAZINE WITH A WIDE CIRCULATION , APART FROM REQUIRING A CERTAIN LEVEL OF KNOWLEDGE IN THE FIELD OF INFORMATION , SHOWED THAT IN ORDER TO DEAL WITH THE SUBJECT IT WAS NOT NECESSARY TO HAVE AVAILABLE DETAILED DOCUMENTATION OR STATISTICS . THEREFORE AN ESSAY ON THE SUBJECT CHOSEN BY THE SELECTION BOARD FOR THE COMPETITION CONSTITUTED , BOTH IN CONTENT AND IN FORM , THE APPROPRIATE MEANS OF TESTING WHETHER THE CANDIDATES IN THE COMPETITION POSSESSED THE NECESSARY KNOWLEDGE IN THE REQUISITE FIELDS .

8 THE DIFFICULTY OF THE SUBJECT WAS NOT SO GREAT AS TO EXCEED THE BOUNDS INDICATED BY THE REQUIREMENT OF A THOROUGH KNOWLEDGE ATTAINING UNIVERSITY LEVEL IN THE FIELDS IN QUESTION . MOREOVER , THE COURT CANNOT SUBSTITUTE ITS OWN JUDGMENT FOR THAT OF THE SELECTION BOARD AS REGARDS THE DEGREE OF DIFFICULTY TO BE TAKEN INTO ACCOUNT IN MARKING THE TESTS .

9 THUS , IN ITS CHOICE OF SUBJECT FOR THE FIRST TEST OF THE COMPETITION , THE SELECTION BOARD MAY NOT BE ACCUSED OF STEPPING OUTSIDE THE CONFINES OF THE CRITERIA INDICATED OR OF MANIFESTLY ABUSING ITS DISCRETION .

10 THE SECOND SUBMISSION IS CONCERNED WITH THE PRINCIPLE OF EQUAL TREATMENT FOR ALL CANDIDATES . THE APPLICANT ALLEGES THAT THE CHOICE OF SUBJECT GAVE AN UNFAIR ADVANTAGE TO CERTAIN CANDIDATES WHO HAD PREVIOUSLY MADE SPECIAL STUDIES OF THAT SAME QUESTION . IN THIS RESPECT THE APPLICANT REFERS TO THE FACT THAT ONE OF THE CANDIDATES HAD COME FROM THE PARLIAMENT ' S COMMITTEE ON BUDGETS WHERE HE HAD TAKEN PART IN STUDIES RELATING TO SUCH PROBLEMS IN THE COURSE OF HIS WORK ; IT IS ALSO ALLEGED THAT A CANDIDATE IN THE COMPETITION FOR THE POST IN DUBLIN IS THE AUTHOR OF A SPECIALIST STUDY ON THE ADVANTAGES FOR HIS COUNTRY ( IRELAND ), OF BELONGING TO THE COMMUNITY .

11 BY VIRTUE OF ITS GENERAL NATURE THE SUBJECT IN QUESTION DOES NOT INVOLVE PROBLEMS REQUIRING SPECIAL KNOWLEDGE OR SPECIFIC AND SPECIALIST EXPERIENCE . SUITABLE KNOWLEDGE AND EXPERIENCE FOR TACKLING SUCH A SUBJECT MAY BE ACQUIRED IN THE COURSE OF PERFORMING ALL KINDS OF DUTIES IN A COMMUNITY INSTITUTION . IF ONE OF THE CANDIDATES IN COMPETITION NO A/66 HAD IN FACT HAD AN OPPORTUNITY TO ACQUIRE SUCH KNOWLEDGE OR EXPERIENCE IN THE COURSE OF HIS WORK FOR THE PARLIAMENT ' S COMMITTEE ON BUDGETS , IT MIGHT WELL HAVE BEEN THE SAME FOR THE APPLICANT IN THE COURSE OF HER LONG PERIOD OF WORK FOR THE INFORMATION OFFICE IN ROME .

12 THE COMPETITION FOR THE POST IN DUBLIN WAS DISTINCT FROM THE COMPETITION IN ISSUE . THE FACT THAT ONE OF THE CANDIDATES IN THAT COMPETITION WAS THE AUTHOR OF A SPECIALIST STUDY ON THE SUBJECT IN QUESTION AND MAY THUS HAVE BEEN ESPECIALLY WELL PREPARED FOR THE FIRST TEST IN THE COMPETITION IS NOT CAPABLE OF ADVERSELY AFFECTING THE APPLICANT , WHO WAS NOT A CANDIDATE IN THAT COMPETITION .

13 THE APPLICANT HAS THEREFORE ADDUCED NO EVIDENCE TO SHOW THAT CERTAIN CANDIDATES IN THE COMPETITION IN QUESTION WERE GIVEN AN UNFAIR ADVANTAGE IN RELATION TO HERSELF BY VIRTUE OF THE CHOICE OF THE SUBJECT FOR THE FIRST TEST .

14 THE APPLICANT ALLEGES FURTHER THAT CERTAIN OF THE CANDIDATES ADMITTED TO THE COMPETITION HAD COME FROM HIGHER GRADES THAN THAT FOR WHICH THE COMPETITION IN QUESTION WAS INTENDED . IN THIS RESPECT THE APPLICANT MAINTAINS THAT A CANDIDATE IN THE COMPETITION FOR THE POST IN ROME WAS IN GRADE A 6 AT THE TIME OF THE TEST AND THAT THE ABOVE-MENTIONED CANDIDATE IN THE COMPETITION FOR THE POST IN DUBLIN WAS IN GRADE A 4 .

15 SINCE COMPETITION NO A/66 WAS FOR A POST OF ADMINISTRATOR IN CAREER BRACKET A 7/A 6 THERE CAN BE NO OBJECTION TO THE SELECTION BOARD ' S ADMITTING TO THAT COMPETITION A CANDIDATE WHO WAS IN GRADE A 7 AT THE TIME OF HIS APPLICATION AND IN CAREER BRACKET A 7/A 6 WHEN THE SELECTION PROCEDURE WAS UNDER WAY . THE FACT THAT A CANDIDATE OF GRADE A 4 TOOK PART IN THE COMPETITION FOR THE POST IN DUBLIN CANNOT ADVERSELY AFFECT THE APPLICANT AND IT IS THEREFORE UNNECESSARY TO GIVE A RULING ON HIS ADMISSION TO THAT COMPETITION .

16 THE APPLICANT ' S THIRD SUBMISSION ALLEGES MISUSE OF POWERS . SHE MAINTAINS THAT IT IS APPARENT FROM THE CIRCUMSTANCES OF THE CASE THAT THE VARIOUS COMPETITIONS FOR THE POSTS IN THE INFORMATION OFFICES OF THE PARLIAMENT HAD BEEN ORGANIZED WITH THE INTENTION OF RESERVING THE POSTS IN QUESTION FOR CERTAIN CANDIDATES ; THE COMPETITIONS HAD BEEN INTENDED TO ALLOW CANDIDATES FROM HIGHER GRADES , WHO ENJOYED AN ADVANTAGE BY VIRTUE OF THE SUBJECT CHOSEN FOR THE FIRST TEST , TO RETURN TO THEIR COUNTRIES OF ORIGIN .

17 THERE IS NO EVIDENCE BEFORE THE COURT TO SUPPORT THE CONCLUSION THAT EITHER THE APPOINTING AUTHORITY OR THE SELECTION BOARD FOR COMPETITION NO A/66 PURSUED ANY AIM BY MEANS OF THAT COMPETITION OTHER THAN THAT OF FINDING THE BEST QUALIFIED CANDIDATE FOR THE POST IN QUESTION . EVEN IF IT IS ASSUMED THAT ONE OR MORE CANDIDATES IN THE COMPETITION IN QUESTION TOOK PART FOR THE SOLE PURPOSE OF BEING ABLE TO RETURN TO HIS COUNTRY OF ORIGIN , ANY SUCH REASON PERSONAL TO THE CANDIDATE OR CANDIDATES CANNOT VITIATE THE COMPETITION PROCEDURE .

18 THE ACTION MUST THEREFORE BE DISMISSED AS UNFOUNDED .

Decision on costs

COSTS

19 ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE PROVIDES THAT THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . NEVERTHELESS , PURSUANT TO ARTICLE 70 OF THE SAID RULES THE INSTITUTIONS ARE TO BEAR THEIR OWN COSTS IN ACTIONS BROUGHT AGAINST THEM BY OFFICIALS OF THE COMMUNITIES .

Operative part

ON THOSE GROUNDS ,

THE COURT ( THIRD CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION ;

2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .