Keywords

Summary



Keywords

++++

1. Officials - Actions - Request pursuant to Article 90(1) of the Staff Regulations - Concept - Application for a vacant post - Included

(Staff Regulations of Officials, Art. 90(1))

2. Officials - Actions - Interest in bringing an action - Action against the rejection of an application for a vacant post - Transfer of the person concerned to another institution - Admissibility

(Staff Regulations of Officials, Art. 91)

3. Officials - Promotion - Minimum period required in a grade - Calculation - Starting point - Establishment

(Staff Regulations of Officials, Art. 45(1))

4. Officials - Temporary posting - Designation of the official called on to occupy a post temporarily - Recourse to a selection procedure - Consequences with regard to the acquisition of the status of an official who is eligible for promotion - None

5. Officials - Recruitment - Competition - Appointment of a successful candidate to a post which does not correspond to the competition notice - Not permissible

(Staff Regulations of Officials, first para. of Art. 27 and Art. 29(1))

6. Officials - Promotion - Promises - Infringement of the provisions of the Staff Regulations - Legitimate expectations - None

(Staff Regulations of Officials, Art. 45)

7. Measures adopted by the Community institutions - Presumption of validity - Non-existent act - Concept

8. Officials - Recruitment - Competitions - Selection board - Composition - Discretion of the appointing authority and the Staff Committee with regard to the choice of members - Judicial review - Limits

(Staff Regulation of Officials, Annex III, Art. 3)

9. Officials - Recruitment - Competitions - Competition based on qualifications and tests - Possibility of a member of the selection board penetrating the anonymity of the tests - Consequences

(Staff Regulations of Officials, Annex III)

10. Officials - Recruitment - Competitions - Competition based on qualifications and tests - Content of the tests - Discretion of the selection board - Judicial review - Limits

11. Officials - Recruitment - Competitions - Competition based on qualifications and tests - Decision not to include a candidate on the list of suitable candidates - Obligation to state reasons - Scope with regard to the requirement that the proceedings of the selection board should be secret - Inadequate statement of reasons - Regularization during the procedure before the Court

(Staff Regulations of Officials, Annex III, Art. 6)

12. Officials - Actions - Action for damages - Application for a declaration that a service-related fault was committed - Admissibility - Fault committed at the request of the applicant - Irrelevant

(Staff Regulations of Officials, Arts 90 and 91)

13. Officials - Actions - Action for compensation for damage - Pleas in law - Unlawfulness of a decision of the appointing authority which was not contested within the prescribed time-limit - Inadmissibility

(Staff Regulations of Officials, Arts 90 and 91)

14. Officials - Actions - Object - Directions to the administration - Inadmissibility

(Staff Regulations of Officials, Arts 90 and 91)

Summary

1. An official' s application for a vacant post amounts to a request within the meaning of Article 90(1) of the Staff Regulations since it requests the appointing authority to adopt a decision in his regard.

2. An action for the annulment of a decision rejecting an official' s application to be appointed to a vacant post by way of promotion is not inadmissible, on the ground that the official has no interest in bringing an action, solely because he has been transferred in the mean time to another institution, since such a transfer does not make it impossible to comply with any judgment declaring void an act of the institution.

3. The minimum period in a grade required under Article 45(1) of the Staff Regulations in order for an official to be eligible for promotion is calculated, in the case of the first promotion after recruitment, from the establishment of the official.

4. The Staff Regulations do not prescribe how the appointing authority is to choose the officials called upon to occupy temporarily posts in a higher career bracket. Nor, on the other hand, do they contain any provision according to which a selection procedure held for that purpose is capable of producing legal effects in relation to the promotion of the officials in question. Consequently, the effects of such a procedure cannot be deemed to be the same as those of a competition with regard to the possibility of promoting officials who have not completed the minimum period in their grade required under Article 45(1) of the Staff Regulations.

5. It is true that when the appointing authority adopts a decision concerning the filling of posts for which a competition has been held, it is required to take into account the results of that competition. However, those results do not permit the appointing authority to go on to appoint one of the successful candidates in that competition to a post which the competition was not held to fill.

Such an appointment, which would give no-one else an opportunity of proving in a new competition that he had the qualifications necessary to fill one of the posts in question, would be manifestly contrary to the purpose of the first paragraph of Article 27 and Article 29(1) of the Staff Regulations, namely the recruitment of officials of the highest standards of ability.

6. With regard to the promotion of officials, the appointing authority must comply with Article 45 of the Staff Regulations. Promises which do not take account of the provisions of the Staff Regulations cannot give rise to a legitimate expectation on the part of the person to whom they are made.

7. In exceptional circumstances, a measure may be deemed to be non-existent if it exhibits particularly serious and manifest defects.

For an act to be thus deprived of the presumption of validity which the Treaties attach, for obvious reasons of legal certainty, even to irregular acts of the institutions, the irregularity must be so gross and so obvious that it goes far beyond a "normal" irregularity resulting from an erroneous assessment of the facts or from a breach of the law.

8. In order to be constituted in accordance with the provisions of the Staff Regulations and Article 3 of Annex III thereto, the selection board in a competition on the basis of qualifications and tests must be composed in such a way as to guarantee an objective assessment by the selection board of the candidates' professional qualities in their performance in the tests. The appointing authority and the Staff Committee have a wide discretion in assessing the abilities of the persons whom they are called on to appoint as members of the selection board and it is not for the Court to criticize their choice unless the limits of that discretion have not been observed.

The fact that one of the members of the selection board is a member of the temporary staff is not such as to render the composition of the selection board irregular since Article 3 of Annex III to the Staff Regulations does not require that the members of a selection board must necessarily be officials.

9. The anonymity of the candidates does not appear among the detailed rules of procedure for competitions laid down in Annex III to the Staff Regulation. Consequently, the mere possibility that a member of the selection board might have been in a position to identify the candidates from their handwriting and their language combinations is not sufficient to lead the Court to find that the composition of the Selection Board was unlawful or that it was not such as to guarantee an objective assessment of the professional abilities of the candidates in the competition.

10. The selection board in a competition has a wide discretion with regard to the content of the tests and it is not for the Community court to criticize the selection board' s choice of tests unless that choice is not confined within the limits laid down in the competition notice or is not consonant with the purposes of the test or of the competition. The Court cannot substitute its own judgment for that of the selection board as regards the degree of difficulty of the tests. Nevertheless, it is for the Selection Board, in exercising its discretion, to ensure that the tests display substantially the same degree of difficulty for all the candidates.

11. The selection board' s obligation to provide a statement of reasons for the decision not to include a candidate on the list of suitable candidates is not incompatible with the requirement, laid down in Article 6 of Annex III to the Staff Regulations, that the proceedings of the selection board should be secret. That requirement precludes disclosure of the views of the individual members of selection boards and revelation of the factors relating to individual or comparative assessments of candidates. It does not preclude, however, each candidate from being notified of the marks which he personally was awarded in the appraisal of his qualifications or after his participation in the tests. A general reference to the results of the tests in the decision communicated to the applicant does not on its own constitute an adequate statement of reasons.

However, that irregularity may be covered by the notification to the applicant, in the course of the proceedings before the Court, of the marks obtained in the various tests, since an annulment based solely on that procedural defect could only result in the adoption of a fresh decision which would be identical in substance to the annulled decision.

12. In the context of a claim for damages, an official' s application for a declaration that the defendant institution committed a service-related fault cannot be declared inadmissible solely because a request of the official concerned was the origin of the alleged fault.

13. An official who does not contest, within the time-limits laid down in Articles 90 and 91 of the Staff Regulations, a decision of the appointing authority which adversely affects him, cannot rely on the alleged unlawfulness of that decision in an action for damages.

14. The Community court may not give directions to a Community institution without encroaching upon the powers of the administration. That principle not only renders inadmissible, in an action for annulment, heads of claim seeking an order requiring a Community institution to adopt the measures necessary for the enforcement of a judgment by which a decision is annulled, but it is also applicable, in principle, in proceedings in which the Court has unlimited jurisdiction. It follows that an applicant may not, in an action for damages, ask the Court to order the defendant institution to adopt specific measures to make good the alleged damage.