Judgment of the Court (Second Chamber) of 18 December 1980. - Anne-Marie Tiberghien, née Peuteman, v Commission of the European Communities. - Staff regulations of officials - Rules relating to competitions. - Case 797/79.



European Court reports 1980 Page 03921

Greek special edition Page 00565



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

1 . OFFICIALS - RECRUITMENT - COMPETITION - SELECTION BOARD - REFUSAL TO ADMIT TO A COMPETITION - INACCURATE ASSESSMENT OF A DOUBTFUL ADMINISTRATIVE SITUATION - DUTY OF THE SELECTION BOARD TO INVESTIGATE OF ITS OWN MOTION - ABSENCE - UNLAWFULNESS OF THE DECISION

( STAFF REGULATIONS , ANNEX III , ART . 5 )

2 . PROCEDURE - COSTS - EACH PARTY TO PAY ITS OWN COSTS - EXCEPTIONAL CIRCUMSTANCE

( RULES OF PROCEDURE , ART . 69 ( 3 ), FIRST SUBPARAGRAPH )

Summary

1 . WHILST A SELECTION BOARD RESPONSIBLE FOR THE MANAGEMENT OF A COMPETITION FOR WHICH THERE IS A LARGE NUMBER OF CANDIDATES CANNOT BE CRITICIZED FOR NOT TAKING THE INITIATIVE OF CLARIFYING OF ITS OWN MOTION THE ADMINISTRATIVE SITUATION , NOT YET DETERMINED WHEN IT MADE ITS DECISION , OF A CANDIDATE WHOM IT REFUSED TO ADMIT , WHERE IT IS ESTABLISHED THAT THERE HAS BEEN AN ERROR IN ITS ASSESSMENT THE DECISION IN QUESTION MUST BE ANNULLED IN ORDER TO ENABLE THE ADMINISTRATION TO TAKE A FRESH DECISION WHICH ACCORDS WITH THE CANDIDATE ' S SITUATION AS SUBSEQUENTLY ACKNOWLEDGED BY IT .

2 . IT WOULD BE INEQUITABLE TO ALLOW AN OFFICIAL WHO HAS OBTAINED THE ANNULMENT OF A DECISION OF A SELECTION BOARD REFUSING TO ADMIT HIM TO A COMPETITION TO BURDEN THE INSTITUTION IN QUESTION WITH THE COSTS OF LEGAL PROCEEDINGS WHICH HE COULD HAVE AVOIDED BY CARE TO INFORM THE SELECTION BOARD , WHICH GAVE ITS DECISION ON THE BASIS OF AN ADMINISTRATIVE SITUATION NOT THEN DETERMINED , OF CONCURRENT PROCEEDINGS COMMENCED BY HIM THROUGH OFFICIAL CHANNELS IN ORDER TO OBTAIN RECTIFICATION OF THAT SITUATION . THE POWER GIVEN TO THE COURT UNDER THE FIRST SUBPARAGRAPH OF ARTICLE 69 ( 3 ) OF THE RULES OF PROCEDURE SHOULD BE EXERCISED AND THE PARTIES SHOULD BE ORDERED TO PAY THEIR OWN COSTS .

Parties

IN CASE 797/79

ANNE-MARIE TIBERGHIEN , NEE PEUTEMAN , AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , RESIDING IN SINT-PIETERS-LEEUW ( BELGIUM ), REPRESENTED BY GEORGES VANDERSANDEN , OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF NICO EDON , 2 RUE GOETHE ,

APPLICANT ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY RAYMOND BAEYENS , PRINCIPAL LEGAL ADVISER , ACTING AS AGENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICES OF ITS LEGAL ADVISER , MARIO CERVINO , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

Subject of the case

APPLICATION FOR THE ANNULMENT OF THE DECISION OF THE SELECTION BOARD REFUSING TO ADMIT MRS TIBERGHIEN TO COMPETITION NO COM/BS/4/79 ,

Grounds

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 9 NOVEMBER 1979 MRS ANNE-MARIE TIBERGHIEN , NEE PEUTEMAN , AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES IN GRADE C 2 , SEEKS THE ANNULMENT OF THE DECISION OF THE SELECTION BOARD REFUSING TO ADMIT HER TO COMPETITION NO COM / BS/4/79 .

2 FROM THE FILE IT APPEARS THAT , AFTER BEING EMPLOYED AS A SECRETARY BY VARIOUS PRIVATE UNDERTAKINGS FROM 1954 TO 1964 , THE APPLICANT ENTERED THE SERVICE OF THE COMMISSION ON 16 MARCH 1964 AS A TYPIST IN GRADE C 4 . SHE WAS APPOINTED TO THE POST OF CLERICAL OFFICER IN GRADE C 3 WITH EFFECT FROM 1 FEBRUARY 1965 AND WAS SUBSEQUENTLY PROMOTED TO GRADE C 2 WITHOUT ANY ALTERATION OF POST . IT IS NOT DISPUTED THAT SHE RETAINED THAT DESIGNATION FOR THE GREATER PART OF HER CAREER , THE ISSUE BEING WHETHER THE TITLE OF THE POST CORRESPONDS TO THE DUTIES WHICH SHE IN FACT PERFORMED DURING THAT PERIOD .

3 IN APRIL 1979 THE APPLICANT ENTERED INTERNAL COMPETITION NO COM/BS/4/79 ORGANIZED FOR THE PURPOSE OF CONSTITUTING A RESERVE LIST FOR FUTURE RECRUITMENT OF SECRETARIAL ASSISTANTS IN CAREER BRACKET B 5/4 . SO FAR AS THE QUALIFICATIONS OR DIPLOMAS REQUIRED AND EXPERIENCE WERE CONCERED , THE CONDITIONS FOR ADMISSION TO THAT COMPETITION READ AS FOLLOWS :

' ' EITHER A :

1 . HAVE COMPLETED STUDIES AT AN ADVANCED SECONDARY LEVEL EVIDENCED BY A CERTIFICATE OF COMPLETION OF STUDIES AND POSSESS AT LEAST 10 YEARS ' EXPERIENCE OF CATEGORY C DUTIES AS AN EXECUTIVE SECRETARY , PRINCIPAL SECRETARY OR SECRETARY/SHORTHAND TYPIST , OR OF SIMILAR DUTIES ; AND

2.HAVE BEEN IN THE SERVICE OF THE COMMUNITIES AS AN OFFICIAL OR OTHER SERVANT FOR A TOTAL OF FIVE YEARS .

OR B :

1.HAVE AT LEAST 16 YEARS ' EXPERIENCE OF CATEGORY C DUTIES AS AN EXECUTIVE SECRETARY , PRINCIPAL SECRETARY , SECRETARY/SHORTHAND TYPIST , OR OF SIMILAR DUTIES ; AND

2.HAVE BEEN IN THE SERVICE OF THE COMMUNITIES AS AN OFFICIAL OR OTHER SERVANT FOR A TOTAL OF 11 YEARS . ' '

IT IS NOT DISPUTED THAT THE APPLICANT ENTERED THE COMPETITION ON THE BASIS OF THE CONDITIONS MENTIONED UNDER B .

4 IN HER APPLICATION FORM THE APPLICANT POINTED OUT THAT THE DUTIES SHE HAD PERFORMED DURING THE PERIOD BETWEEN 1965 AND 1974 WERE , IN FACT , THOSE OF A SECRETARY AND NOT THOSE CORRESPONDING TO THE TITLE OF HER POST AS A ' ' CLERICAL OFFICER ' ' . FROM HER PERSONAL FILE IT APPEARS THAT AS EARLY AS 1974 THE APPLICANT DREW THE ATTENTION OF THE ADMINISTRATION TO THE DISCREPANCY BETWEEN HER STATUS UNDER THE STAFF REGULATIONS AND THE DUTIES SHE WAS IN FACT PERFORMING . ON 28 FEBRUARY 1979 SHE SENT A FORMAL REQUEST TO THE DIRECTOR-GENERAL FOR ADMINISTRATION UNDER ARTICLE 25 OF THE STAFF REGULATIONS IN ORDER TO HAVE HER ADMINISTRATIVE STATUS DETERMINED . IN THAT COMMUNICATION SHE SOUGHT RECOGNITION OF THE FACT THAT SHE HAD PERFORMED THE DUTIES OF A SECRETARY/SHORTHAND TYPIST FROM 1 FEBRUARY 1965 TO 31 JULY 1974 AND SHE CONCLUDED AS FOLLOWS :

' ' I REQUEST YOU TO TAKE ADMINISTRATIVE STEPS TO RECTIFY THIS SITUATION AS SOON AS POSSIBLE IN ORDER TO MAKE IT CLEAR , ONCE AND FOR ALL , THAT I MAY OFFICIALLY PURSUE MY CAREER AS A CLERICAL OFFICER CONCERNED WITH RECORDS WITHOUT THEREBY LOSING THE BENEFIT OF MY EARLIER CAREER AS A SECRETARY/SHORTHAND TYPIST ( WHICH ENABLES ME TO TAKE PART IN BS COMPETITIONS ). ' '

5 THAT REQUEST WENT UNANSWERED AND ON 17 JULY 1979 - THAT IS , A DATE WHEN THE SELECTION BOARD WAS STILL AT WORK - THE APPLICANT SUBMITTED TO THE APPOINTING AUTHORITY A FORMAL COMPLAINT UNDER ARTICLE 90 OF THE STAFF REGULATIONS SEEKING RECTIFICATION OF HER ADMINISTRATIVE STATUS .

6 ON 2 AUGUST 1979 THE COMPETITION SELECTION BOARD TOOK ITS DECISION HOLDING THAT OF 564 CANDIDATES 399 MET THE CONDITIONS LAID DOWN BY THE NOTICE OF COMPETITION AND 165 CANDIDATES , INCLUDING THE APPLICANT , WERE ELIMINATED AS FAILING TO FULFIL THOSE CONDITIONS . THE APPLICANT WAS NOTIFIED OF THAT DECISION ON 10 AUGUST 1979 IN THE FORM OF A STANDARD LETTER INFORMING HER THAT SHE DID NOT MEET THE CONDITION WHICH IS WORDED : ' ' HAVE AT LEAST 16 YEARS ' EXPERIENCE ON 31 DECEMBER 1978 OF CATEGORY C DUTIES AS A SECRETARY/SHORTHAND TYPIST , OR OF SIMILAR DUTIES ' ' .

7 IN A LETTER OF 22 AUGUST 1979 THE APPLICANT ASKED THE SELECTION BOARD TO RECONSIDER THE POSITION , REMINDING THEM THAT , AS WAS STATED ON HER APPLICATION FORM , HER EXPERIENCE AS A SECRETARY BEFORE AND AFTER HER ENTRY INTO THE SERVICE , WHEN ADDED TOGETHER , TOTALLED MORE THAN THE MINIMUM 16 YEARS ' PRACTICAL EXPERIENCE REQUIRED BY THE NOTICE OF COMPETITION .

8 AFTER REVIEWING HER POSITION THE COMPETITION SELECTION BOARD DECIDED TO CONFIRM ITS PREVIOUS DECISION . IT APPEARS FROM THE LETTER ON THE MATTER WHICH WAS SENT TO THE APPLICANT ON 24 SEPTEMBER 1979 THAT THE SELECTION BOARD ACCEPTED THE EQUIVALENT VALUE OF THE APPLICANT ' S EMPLOYMENT PRIOR TO HER ENTRY INTO THE SERVICE OF THE COMMUNITY , THAT IS , NINE YEARS AND SIX MONTHS , BUT THAT , OF HER CAREER SUBSEQUENT TO HER ENTRY INTO THE SERVICE , IT ACCEPTED ONLY A PERIOD RUNNING FROM 1 FEBRUARY 1976 TO 31 DECEMBER 1978 ( THAT IS TO SAY , TWO YEARS AND 11 MONTHS ) AS CORRESPONDING TO A POST OF SECRETARY/SHORTHAND TYPIST .

9 ON 9 NOVEMBER 1979 THE APPLICANT BROUGHT THIS ACTION . ON 21 NOVEMBER THE DIRECTOR-GENERAL FOR PERSONNEL SENT HER A LETTER IN REPLY TO HER REQUEST OF 28 FEBRUARY 1979 AND HER COMPLAINT OF 16 JULY 1979 , WHEREBY HE AGREED TO THE RECTIFICATION OF THE ADMINISTRATIVE STATUS AS SUGGESTED . IN PARTICULAR , THE DIRECTOR-GENERAL ACKNOWLEDGED IN THAT LETTER THAT THE APPLICANT HAD ACQUIRED EXPERIENCE AS A SECRETARY/SHORTHAND TYPIST WITH THE COMMISSION FROM 1 FEBRUARY 1965 UNTIL 31 JULY 1974 , THAT IS TO SAY , A PERIOD OF NINE YEARS AND SIX MONTHS .

10 ON A COMPARISON OF THE TERMS OF THE FINAL DECISION OF THE COMPETITION SELECTION BOARD REJECTING HER CANDIDACY ON 24 SEPTEMBER 1979 WITH THE DECISION OF THE APPOINTING AUTHORITY OF 21 NOVEMBER 1979 IT THEREFORE APPEARS THAT , OBJECTIVELY , THE APPLICANT HAS AN EXPERIENCE OF SECRETARIAL WORK THE DURATION OF WHICH SATISFIES THAT REQUIRED IN THE NOTICE OF COMPETITION . IT SHOULD ALSO BE BORNE IN MIND THAT THE STATEMENTS MADE BY THE APPLICANT ON HER APPLICATION FORM FOR COMPETITION NO COM/BS74/79 , AND THE TEXT OF HER COMPLAINT OF 22 AUGUST 1979 REPRESENTED THAT SITUATION CORRECTLY .

11 IT MUST THEREFORE BE HELD THAT THE COMPETITION SELECTION BOARD MADE ITS DECISION ON THE BASIS OF AN ASSESSMENT OF THE APPLICANT ' S ADMINISTRATIVE STATUS WHICH WAS OBJECTIVELY INACCURATE . NEVERTHELESS , THE FACT REMAINS THAT FOR HER PART THE APPLICANT DID NOT DO HER UTMOST TO INFORM THE SELECTION BOARD OF THE STEPS SHE HAD TAKEN IN ORDER TO HAVE HER EMPLOYMENT STATUS CORRECTED . IN HER APPLICATION FORM SHE DID NOT MENTION THE REQUEST SHE HAD SUBMITTED ON 28 FEBRUARY 1979 UNDER ARTICLE 25 OF THE STAFF REGULATIONS , AND IN HER COMPLAINT OF 22 AUGUST 1979 SHE DID NOT MENTION THE COMPLAINT UNDER ARTICLE 90 OF THE STAFF REGULATIONS SUBMITTED TO THE APPOINTING AUTHORITY ON 17 JULY 1979 .

12 THEREFORE THE SELECTION BOARD , WHICH WAS RESPONSIBLE FOR THE MANAGEMENT OF A COMPETITION FOR WHICH THERE WAS A LARGE NUMBER OF CANDIDATES , IS NOT TO BE CRITICIZED FOR NOT TAKING THE INITIATIVE OF CLARIFYING OF ITS OWN MOTION AN ADMINISTRATIVE STATUS WHICH HAD NOT YET BEEN DETERMINED WHEN IT MADE ITS DECISION . NEVERTHELESS , SINCE THE EXISTENCE OF AN ERROR OF JUDGMENT ON ITS PART HAS BEEN ESTABLISHED , THE DECISION IN QUESTION MUST BE ANNULLED IN ORDER TO ENABLE THE ADMINISTRATION TO TAKE A FRESH DECISION BASED ON THE POSITION FINALLY ACKNOWLEDGED BY THE APPOINTING AUTHORITY ' S DECISION OF 21 NOVEMBER 1979 .

Decision on costs

13 THE QUESTION OF COSTS SHOULD BE SETTLED IN THE LIGHT OF THE FOREGOING . ALTHOUGH THE APPLICANT HAS OBTAINED THE ANNULMENT OF THE DECISION OF WHICH SHE COMPLAINS , IT WOULD BE INEQUITABLE TO ALLOW HER TO PLACE ON THE COMMISSION THE BURDEN OF THE COSTS OF LEGAL PROCEEDINGS WHICH SHE COULD HAVE AVOIDED BY TAKING CARE TO INFORM THE SELECTION BOARD OF THE CONCURRENT PROCEEDINGS SHE HAD COMMENCED THROUGH OFFICIAL CHANNELS IN ORDER TO HAVE HER ADMINISTRATIVE STATUS RECTIFIED . THE POWER GIVEN TO THE COURT UNDER THE FIRST SUBPARAGRAPH OF ARTICLE 69 ( 3 ) OF THE RULES OF PROCEDURE SHOULD THEREFORE BE EXERCISED AND THE PARTIES SHOULD BE ORDERED TO PAY THEIR OWN COSTS .

Operative part

ON THOSE GROUNDS ,

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . ANNULS THE DECISION OF THE SELECTION BOARD IN INTERNAL COMPETITION NO COM/BS/4/79 OF 24 SEPTEMBER 1979 REFUSING TO ADMIT THE APPLICANT TO THE SAID COMPETITION ;

2.ORDERS THE PARTIES TO PAY THEIR OWN COSTS .