Judgment of the Court (Second Chamber) of 26 October 1978. - Augusta Agneessens and others v Commission of the European Communities. - Case 122/77.



European Court reports 1978 Page 02085

Greek special edition Page 00633

Portuguese special edition Page 00689



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

1 . OFFICIALS - RECRUITMENT - COMPETITION - SELECTION BOARD - ASSISTANCE OF EXAMINERS IN AN ADVISORY CAPACITY - CONDITIONS

( STAFF REGULATIONS , SECOND PARAGRAPH OF ARTICLE 3 OF ANNEX III )

2 . OFFICIALS - RECRUITMENT - COMPETITION - SELECTION BOARD - DRAWING UP A LIST OF SUITABLE CANDIDATES - NUMBER OF CANDIDATES TO BE INCLUDED

( STAFF REGULATIONS , PARAGRAPH 5 OF ARTICLE 5 OF ANNEX III )

Summary

1 . THE SECOND PARAGRAPH OF ARTICLE 3 OF ANNEX III CANNOT BE UNDERSTOOD AS ENUMERATING EXHAUSTIVELY THE CASES IN WHICH A SELECTION BOARD MAY LEGITIMATELY HAVE RECOURSE TO THE ASSISTANCE OF EXAMINERS IN AN ADVISORY CAPACITY AND , IN PARTICULAR , DOES NOT PREVENT A SELECTION BOARD FROM HAVING RECOURSE TO SUCH A PROCEDURE IN CASES WHERE THE LARGE NUMBER OF CANDIDATES INVOLVED IN A COMPETITION WOULD OTHERWISE PREVENT THE SELECTION BOARD FROM COMPLETING ITS WORK WITHIN A REASONABLE PERIOD . IT IS NECESSARY , HOWEVER , FOR THE SELECTION BOARD TO RETAIN ULTIMATE CONTROL OVER THE PROCEDURES AND ITS DISCRETIONARY POWER .

2 . THE STIPULATION IN THE FIFTH PARAGRAPH OF ARTICLE 5 OF ANNEX III THAT THE LIST OF SUITABLE CANDIDATES SHALL WHEREVER POSSIBLE CONTAIN AT LEAST TWICE AS MANY NAMES AS THE NUMBER OF POSTS TO BE FILLED IS ONLY A RECOMMENDATION TO THE SELECTION BOARD , INTENDED TO FACILITATE DECISIONS OF THE APPOINTING AUTHORITY , AND WHETHER OR NOT IT IS FOLLOWED DEPENDS ON THE NATURE AND CIRCUMSTANCES OF THE COMPETITION , THE NUMBER OF CANDIDATES AND THEIR QUALIFICATIONS .

Parties

IN CASE 122/77

AUGUSTA CLAES ( NEE AGNEESSENS ) RESIDING AT 18 AVENUE BANEIK , WEZEMBEEK- OPPEM ( BELGIUM ),

ANDREE OP DE BEECK ( NEE DEWEER ) RESIDING AT 166 LANGUE LOZENASTRAAT , ANTWERP ( BELGIUM ),

HELGA KOTTOWISKI ( NEE DUMENIL ) RESIDING AT VIA BURGHIERA , LAVENO- MOMBELLO ( ITALY ),

VIOLETTA FERRARI , RESIDING AT 35 RUE FROISSART , BRUSSELS ( BELGIUM ),

MARCELLE MONFORT , RESIDING AT 5 AVENUE BELLE ETOILE , LA HULPE ( BELGIUM ),

CHRISTEL MONTAG , RESIDING AT 2/20 VIA ESPERIA , ISPRA ( ITALY ),

MARYSE NICAISE , RESIDING AT 19 AVENUE DES NENUPHARS ( BTE 23 ), BRUSSELS ( BELGIUM ),

MATHILDE OBERT , RESIDING AT 1 VIA ESPERIA , ISPRA ( ITALY ),

MAGGY PEREIRA , RESIDING AT 2 RUE KLEINDAL , LINKEBEEK ( BELGIUM ),

ANGELA SALMOIRAGHI , RESIDING AT 22 SQUARE HOEDEMAEKERS , BRUSSELS ( BELGIUM ),

WILHELMINA SCHEFFELAAR , RESIDING AT 16 RUE WILLEMS , APP . 113 , BRUSSELS ( BELGIUM ),

GABRIELLA VAN AALST , RESIDING AT 3 AVENUE E . DE THIBAULT , BRUSSELS ( BELGIUM ),

SIMONE NAGELS ( NEE VAN DE RUTTE ) RESIDING AT 77 MAURICE DESPRETLAAN , STERREBEEK ( BELGIUM ),

SIMONE VAN DOESELAER , RESIDING AT 35 RUE SCAILQUIN ( BTE 67 ), BRUSSELS ( BELGIUM ),

IRENE VAN DOOREN , RESIDING AT 158 STEENWEG OP EDINGEN , ASSE ( BELGIUM ),

OFFICIALS OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY JACQUES PUTZEYS AND XAVIER LEURQUIN , ADVOCATES AT THE COUR D ' APPEL , BRUSSELS , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF G . NICKTS , HUISSIER DE JUSTICE , 17 BOULEVARD ROYAL ,

APPLICANTS ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY DENISE SORASIO- ALLO , A MEMBER OF ITS LEGAL DEPARTMENT , ACTING AS AGENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ITS LEGAL ADVISER , MARIO CERVINO , JEAN MONNET BUILDING , PLATEAU DE KIRCHBERG ,

DEFENDANT

Subject of the case

APPLICATION FOR THE ANNULMENT OF THE DECISION OF THE SELECTION BOARD IN INTERNAL COMPETITION NO COM/BS/14/75 CONCERNING THE DRAWING-UP OF A LIST OF 114 SUITABLE CANDIDATES AND THE ANNULMENT OF THE DECISION OF THE APPOINTING AUTHORITY PURSUANT TO THAT COMPETITION ,

Grounds

1THE APPLICATION IS ESSENTIALLY FOR THE ANNULMENT OF THE DECISION OF THE SELECTION BOARD FOR INTERNAL COMPETITION NO COM/BS/14/75 , CONCERNING THE DRAWING-UP AND THE CONTENTS OF A LIST OF 114 SUITABLE CANDIDATES AND THE ANNULMENT OF THE APPOINTMENTS MADE CONSEQUENT UPON THAT COMPETITION .

2THE COMPETITION IN QUESTION WAS ORGANIZED AS AN INTERNAL COMPETITION BASED ON QUALIFICATIONS AND POSSIBLY ON TESTS TO CONSTITUTE A RESERVE OF SECRETARIAL ASSISTANTS IN GRADES 5 AND 4 OF CATEGORY B FOLLOWING THE RECLASSIFICATION OF SOME 100 POSTS PREVIOUSLY CLASSIFIED IN CATEGORY C .

3THE LIST OF CANDIDATES DRAWN UP BY THE APPOINTING AUTHORITY AND FORWARDED TO THE CHAIRMAN OF THE SELECTION BOARD IN ACCORDANCE WITH ARTICLE 4 OF ANNEX III TO THE STAFF REGULATIONS CONTAINED 775 NAMES , FROM WHICH THE SELECTION BOARD SELECTED 550 CANDIDATES AS FULFILLING THE CONDITIONS DEFINED IN THE NOTICE OF COMPETITION IN RESPECT OF QUALIFICATIONS AND VOCATIONAL EXPERIENCE .

4ALL THE APPLICANTS SAVE ONE ARE AMONG THE CANDIDATES SO ADMITTED .

5AFTER HAVING RECOURSE TO THE ASSISTANCE OF A BOARD OF EXAMINERS THE SELECTION BOARD AT THE END OF ITS PROCEEDINGS DREW UP A LIST OF SUITABLE CANDIDATES CONTAINING 114 NAMES WHICH DID NOT INCLUDE THOSE OF THE APPLICANTS .

6FINALLY , 109 CANDIDATES FROM THOSE 114 WERE APPOINTED TO THE POSTS IN QUESTION .

FIRST SUBMISSION

7THE APPLICANTS CLAIM , IN THE FIRST PLACE , THAT THE FIRST PARAGRAPH OF ARTICLE 30 OF THE STAFF REGULATIONS WAS INFRINGED BECAUSE THE SELECTION BOARD CALLED UPON EXAMINERS TO DRAW UP THE LIST OF SUITABLE CANDIDATES , WHEREAS THE SECOND PARAGRAPH OF ARTICLE 3 OF ANNEX III TO THE STAFF REGULATIONS AUTHORIZES RECOURSE TO EXAMINERS ONLY FOR CERTAIN TESTS AND IN SO DOING PROVIDES IN ADDITION THAT SUCH EXAMINERS SHALL SERVE ONLY IN AN ADVISORY CAPACITY .

8THE SECOND PARAGRAPH OF ARTICLE 3 OF ANNEX III CANNOT , HOWEVER , BE UNDERSTOOD AS ENUMERATING EXHAUSTIVELY THE CASES IN WHICH A SELECTION BOARD MAY LEGITIMATELY HAVE RECOURSE TO THE ASSISTANCE OF EXAMINERS IN AN ADVISORY CAPACITY AND , IN PARTICULAR , DOES NOT PREVENT A SELECTION BOARD FROM HAVING RECOURSE TO SUCH A PROCEDURE IN CASES WHERE THE LARGE NUMBER OF CANDIDATES INVOLVED IN A COMPETITION WOULD OTHERWISE PREVENT THE SELECTION BOARD FROM COMPLETING ITS WORK WITHIN A REASONABLE PERIOD .

9IT IS NECESSARY , HOWEVER , FOR THE SELECTION BOARD TO RETAIN ULTIMATE CONTROL OVER THE PROCEDURES AND ITS DISCRETIONARY POWER .

10THAT CONDITION HAS BEEN SATISFIED IN THE PRESENT CASE .

11IT IS APPARENT FROM THE PARTICULARS SUPPLIED DURING THE COURSE OF THE PROCEEDINGS THAT THE SELECTION BOARD NOT ONLY CONTROLLED THE ESTABLISHMENT OF THE CRITERIA ACCORDING TO WHICH THE MATTERS TO BE TAKEN INTO ACCOUNT IN ACCORDANCE WITH THE NOTICE OF COMPETITION WERE TO BE ASSESSED , BUT ALSO FOLLOWED THE WORK OF THE EXAMINERS AT ALL STAGES IN ORDER , ON THE BASIS OF THE PROPOSALS SUBMITTED BY THE EXAMINERS , ITSELF FINALLY TO DRAW UP THE LIST OF SUITABLE CANDIDATES TO BE SUBMITTED TO THE APPOINTING AUTHORITY .

12THIS SUBMISSION THEREFORE CANNOT BE ACCEPTED .

SECOND SUBMISSION

13THE APPLICANTS FURTHER CLAIM THAT THE GENERAL PRINCIPLE OF THE EQUALITY OF CANDIDATES ADMITTED TO A COMPETITION AS WELL AS ARTICLE 6 OF ANNEX III TO THE STAFF REGULATIONS , ACCORDING TO WHICH THE PROCEEDINGS OF THE SELECTION BOARD ARE TO BE SECRET , WERE INFRINGED BY THE FACT THAT A PROVISIONAL LIST OF SUITABLE CANDIDATES WAS SUBMITTED , TO OBTAIN THEIR OPINION , TO THE DEPARTMENTS AND DIRECTORATES GENERAL TO WHICH THE CANDIDATES BELONGED .

14IT IS APPARENT , HOWEVER , FROM THE EXPLANATIONS GIVEN TO THE COURT THAT EACH DEPARTMENT OR DIRECTORATE GENERAL WAS QUESTIONED BY THE SELECTION BOARD ABOUT ALL THE CANDIDATES ADMITTED TO THE COMPETITION WHO WERE IN THE SERVICE OF THE DEPARTMENT OR DIRECTORATE GENERAL IN QUESTION , AND NOT MERELY , AS THE APPLICANTS APPEAR TO IMAGINE , ABOUT THE CANDIDATES WHO WERE INCLUDED IN A PROVISIONAL LIST BECAUSE THEY SATISFIED CERTAIN CRITERIA FOR THE PURPOSE OF A PRELIMINARY SELECTION .

15THAT PROCEDURE THEREFORE RESPECTED THE PRINCIPLE OF THE EQUALITY OF CANDIDATES IN A COMPETITION .

16IT FURTHER APPEARS THAT THE PURPOSE OF SEEKING THE OPINION OF THE DEPARTMENTS AND DIRECTORATES GENERAL WAS TO PROVIDE THE SELECTION BOARD WITH ADDITIONAL INFORMATION REGARDING THE CANDIDATES AND THAT THE OPINIONS SOUGHT RELATED ONLY TO THOSE WHO WERE IN THE SERVICE OF EACH DEPARTMENT OR DIRECTORATE GENERAL IN QUESTION .

17THE DEPARTMENTS AND DIRECTORATES GENERAL WERE THUS NOT IN A POSITION TO INFLUENCE IMPROPERLY THE PROCEEDINGS OF THE SELECTION BOARD OR TO HAVE KNOWLEDGE OF THOSE PROCEEDINGS IN A WAY LIKELY TO BREACH THEIR SECRECY .

18THIS SUBMISSION MUST ALSO BE REJECTED .

THIRD SUBMISSION

19FINALLY , THE APPLICANTS CLAIM THAT THE SECOND PARAGRAPH OF ARTICLE 30 OF THE STAFF REGULATIONS AND THE FIFTH PARAGRAPH OF ARTICLE 5 OF ANNEX III WERE INFRINGED IN THAT THE SELECTION BOARD DREW UP A LIST OF SUITABLE CANDIDATES CONTAINING ONLY 114 NAMES , THAT IS TO SAY A NUMBER OF CANDIDATES WHICH EXCEEDED ONLY SLIGHTLY THE NUMBER OF VACANT POSTS , ALTHOUGH SUCH A LIST OUGHT IF POSSIBLE TO HAVE CONTAINED AT LEAST TWICE AS MANY NAMES AS THE NUMBER OF POSTS TO BE FILLED BY THE COMPETITION .

20IN THIS RESPECT IT HAS NOT BEEN SHOWN , AS THE APPLICANTS ALLEGE , THAT THE APPOINTING AUTHORITY REQUIRED THE SELECTION BOARD TO LIMIT THE LIST OF SUITABLE CANDIDATES TO A NUMBER NOT APPRECIABLY IN EXCESS OF THE AVAILABLE BUDGETARY RESOURCES .

21IF , NEVERTHELESS , THE SELECTION BOARD DECIDED TO RESTRICT THE LIST OF SUITABLE CANDIDATES IN SUCH MANNER THIS CANNOT VITIATE THE RESULT OF ITS PROCEEDINGS .

22THE FIFTH PARAGRAPH OF ARTICLE 5 OF ANNEX III IS ONLY A RECOMMENDATION TO THE SELECTION BOARD , INTENDED TO FACILITATE THE DECISIONS OF THE APPOINTING AUTHORITY , AND WHETHER OR NOT IT IS FOLLOWED DEPENDS ON THE NATURE AND CIRCUMSTANCES OF THE COMPETITION , THE NUMBER OF CANDIDATES AND THEIR QUALIFICATIONS .

23IN THE PRESENT CASE THE MANNER IN WHICH THE SELECTION BOARD DREW UP THE LIST OF SUITABLE CANDIDATES WAS JUSTIFIED BY THE NATURE OF THE COMPETITION AND THE VERY LARGE NUMBER OF POSTS TO WHICH THE COMPETITION RELATED .

24THIS SUBMISSION MUST THEREFORE ALSO BE REJECTED .

25THE APPLICATION MUST THEREFORE BE DISMISSED AS UNFOUNDED .

26IN THESE CIRCUMSTANCES IT IS UNNECESSARY TO CONSIDER THE OBJECTION MADE BY THE COMMISSION TO THE ADMISSIBILITY OF THE APPLICATION REGARDING ONE OF THE 15 APPLICANTS .

Decision on costs

COSTS

27ACCORDING TO ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE , THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .

28THE APPLICANTS HAVE FAILED IN THEIR SUBMISSIONS .

29HOWEVER , ACCORDING TO ARTICLE 70 OF THE RULES OF PROCEDURE , THE COSTS INCURRED BY THE INSTITUTIONS IN ACTIONS BROUGHT BY SERVANTS OF THE COMMUNITIES ARE NOT RECOVERABLE .

Operative part

ON THOSE GROUNDS ,

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION .

2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .