Opinion of Mr Advocate General Lenz delivered on 8 March 1988. - Gert Muysers and Walter Tülp v Court of Auditors of the European Communities. - Officials - Refusal to admit candidates to tests. - Case 161/87.



European Court reports 1988 Page 03037



Opinion of the Advocate-General

++++

Mr President,

Members of the Court,

A - Facts

1 . The proceedings on which I am now to give my opinion relate to an internal competition ( No CC/A/8/85 ) published in June 1985 . Since that competition has already been the subject of Cases 321, 322 and 323/85 and 417/85, ( 1 ) I can confine my description of the facts to a few significant points .

2 . The competition was organized in order to fill a post in career bracket A 7/A 6 . There were applications from 14 persons, including the applicants in these proceedings . The Selection Board did not see fit to admit any of them to the written tests . The reasons for this were notified to the applicants in these proceedings in a communication dated 2 August 1985; Mr Muysers was informed that his professional experience was not relevant to the duties attaching to the vacant post ( and hence the requirement laid down in point IV.2 of the notice of competition had not been satisfied ), and Mr Tuelp that his Verwaltungsdiplom ( diploma in administration ) was not sufficient to grant him access to Category A ( therefore the requirement set out in point IV.1 ( a ) of the notice of competition had not been satisfied ).

3 . Since the Head of the Personnel Division of the Court of Auditors expressed the view to the Chairman of the Selection Board that it was not correct to reject several candidates, all applicants were given the opportunity to submit, no later than 30 September 1985, any additional observations . However, after that had been done the Selection Board still maintained its original assessment and on 28 October 1985 confirmed its decisions of 2 August 1985 rejecting the candidates, even though the Appointing Authority informed the Chairman of the Selection Board in a letter dated 4 October 1985 how a number of conditions for admission to the competition should, in its view, be applied ( as regards the assessment of candidates' knowledge of languages and the possibility of producing original documents or certified copies at a later stage ).

4 . The Appointing Authority considered that the Selection Board' s overall assessment was unjustified ( as a result of which it was subsequently to state that several candidates' applications - namely those in Cases 321, and Joined Cases 322 and 323/85 - were well founded ) and therefore, on 30 October 1985, it informed all the candidates that the competition procedure had been suspended "en attente d' éventuels recours" ( pending the possible institution of Court proceedings ). On that date the President of the Court of Auditors, in answer to an enquiry from a number of candidates regarding the running of the period for bringing an action, stated that the Court of Justice would decide of its own motion whether the time-limits had been complied with, that an opinion expressed by the Appointing Authority would therefore constitute, at best, no more than the provision of information, and that a complaint directed against a decision of a Selection Board appeared to be pointless as the institution concerned had no authority to annul or amend the decisions of a Selection Board .

5 . Nevertheless on 30 October 1985 Mr Muysers lodged a complaint against the decision refusing to allow him to take part in the competition, although, admittedly, he did not pursue it any further .

6 . In contrast, four other candidates ( not Mr Tuelp ) brought actions before the Court of Justice in the proceedings referred to earlier . What is more they were successful : the decisions refusing to admit them to the written tests were annulled, on the grounds that the Selection Board refused to allow originals or certified copies of documents to be produced to supplement the application ( judgment of 23 October 1986 in Case 321/85 ), that the Board based itself, as to the candidates' knowledge of French, only on the candidate' s subjective data ( judgment of 23 October 1986 in Joined Cases 322 and 323/85 ), and that the Board disallowed the production of further documents enabling it to be determined that the candidate had equivalent professional experience within the meaning of point IV.1 ( b ) of the notice of competition ( Judgment of 4 February 1987 in Case 417/85 ).

7 . Consequently - as a result, it seems, of a decision of the Appointing Authority of 30 March 1987 - the competition procedure was resumed, although it was confined to the four candidates who had been successful in the proceedings before the Court . Since two members of the Board wished to be released from their duties, they were at that juncture replaced by two new members .

8 . When the applicants in the present proceedings learned of those events, they submitted a request on 31 March 1987 to the President of the Court of Auditors to the effect that their candidatures should also be considered in the resumed competition procedure . That request was rejected by a letter of the President of the Court of Auditors dated 29 April 1987, on the ground that the Selection Board' s decisions of 28 October 1985 were no longer open to challenge and the judgments in the three cases referred to above could not be regarded as new facts since they were concerned with different points at issue in connection with the competition procedure from those affecting the applicants in this case .

9 . Since matters remained in that state even after the lodging of a complaint, ( 2 ) on 1 June 1987 the applicants brought an action before the Court for the annulment of the rejection of their candidatures .

10 . I would further mention that the applicants also brought an application for the suspension of the competition procedure . However, that application was dismissed by order of 3 June 1987 of the President of the Second Chamber ( who reserved the order as to costs for the judgment in the main action ). Lastly, it should also be observed that the Court was informed in the oral proceedings that the competition has since been brought to a conclusion and the applicant in Case 321/85, who came out at the head of the reserve list, has been appointed to the vacant post .

B - Opinion

My opinion with regard to this case is as follows .

11 . The crux of this dispute is plainly whether the action is admissible or whether it must be held to be inadmissible on account of the failure to bring the question of the applicants' exclusion from the competition procedure before the Court immediately after the Selection Board confirmed its initial decision rejecting their candidatures ( that is to say, after 28 October 1985 ).

12 . The view taken by the Court of Auditors is clear from the description of the facts . It considers primarily that, in view of the consistent case-law of the Court, the requests made by the applicants on 31 March 1987 to the President of the Court of Auditors could not start time running again with regard to the matter decided by the decision of 28 October 1985, namely whether the applicants had been lawfully excluded from the written tests . Neither can it be accepted that those requests were justified on account of new facts . The judgments in the three cases referred to can by no means be regarded as new facts, since they relate to other facts ( requirements set out in other points of the notice of competition ); moreover, the Court of Auditors expressly stated with regard to two of the applicants - but not with regard to the applicants in this case - that the Selection Board' s assessment was unjustified .

13 . In contrast, the applicants do not accept the view that their application is time-barred on account of their failure to bring an action before the Court within the prescribed period . In that regard, their representative argued in the oral proceedings primarily that the applicants were not challenging a Selection Board decision of October 1985 but the Appointing Authority' s decision of 30 March 1987 by which the competition procedure was resumed while limiting its scope to four candidates who had been successful in the aforementioned proceedings before the Court, and that in that connection it was relevant above all that the complaints lodged by the applicants against the decision of 29 April 1987 were expressly rejected .

14 . It was further argued that time had not started running on 28 October 1985 since the Appointing Authority had informed all candidates on 30 October 1985 that the procedure had been suspended . As a result, the Selection Board' s decision refusing to allow the applicants to take part in the competition had been suspended and its operation had been declared to be suspended . It was also relevant that the judgments in Case 321 and in Joined Cases 322 and 323/85 had declared the whole competition procedure invalid and hence the decisions taken by the Selection Board could not be regarded as having any validity .

15 . Lastly, it was argued that new facts within the meaning of the relevant case-law had arisen justifying the applicants' request of 31 March 1987 . The appointment of a new Selection Board was in itself a new fact . The delivery of the judgment in Case 417/85 on 4 February 1987 was also to be regarded as a new fact, since what was held in that judgment was also relevant to the applicants, that is to say that the refusal to allow additional documents to be submitted showing that the applicants fulfilled the requirements of the notice of the competition was unlawful .

16 . May I say forthwith that the view taken by the Court of Auditors in this dispute appears to me to be much more convincing than the applicants' arguments .

17 . According to the main claim in the application, the subject of the proceedings is the applicants' exclusion from the competition referred to earlier . On a proper interpretation, the applicants were excluded by decisions of 2 August 1985 of the Selection Board, which were confirmed on 28 October 1985 . In principle, therefore, proceedings should have been initiated in time against those decisions, either by instituting proceedings in the Court of Justice directly or by bringing an action in the Court after first lodging a complaint; this, however, manifestly was not done .

18 . In comparison, when seen in its proper light the Appointing Authority' s decision of 30 March 1987, on which the applicants are now relying ( and which, moreover, has not been submitted to the Court ), contributes nothing new which is conclusive as regards the central question in these proceedings ( the rejection of the plaintiffs' applications ). Its aim was solely the resumption of the competition procedure which had been interrupted by the decision of 30 October 1985 . It was based, as far as the applicants admitted to the tests were concerned, simply on the earlier decisions of the Selection Board, where necessary in conjunction with the Court judgments annulling those decisions . However, that decision certainly did not constitute an actual determination as far as the applicants admitted in the subsequent phase of the procedure were concerned and therefore in that regard could not constitute the basis for a new right of action . Consequently, the applicants' reference to the express rejection of their complaint by decision of 26 May 1987 also fails, and it must not be overlooked in that connection that their complaint was confined to an opinion concerning the admissibility of the request of 31 March 1987 in which it was held, by express reference to the validity of the decisions of 28 October 1985, that that request was inadmissible .

19 . Furthermore it cannot be claimed that the Selection Board' s decisions of 28October 1985 were invalidated by the Appointing Authority' s decision of 30 October 1985 or by the aforementioned judgments of the Court .

20 . It can certainly not be inferred from the Appointing Authority' s decision of 30 October 1985 that the validity of all of the Selection Board' s decisions were suspended . It was notified only that the competition procedure was suspended pending the institution of possible Court proceedings ( in order, moreover, to clear up the issues which had emerged in connection therewith ). It was therefore made plain that once the matters had been cleared up the competition procedure would be resumed on the basis, in principle, of the stage reached on 28 October 1985 .

21 . For their part, the judgments are plainly confined to the decisions refusing to admit the applicants in those cases to the written tests ( this is made clear by the last paragraph of each judgment - paragraph 21 or 18, depending on the case ). It can in no way be inferred from the judgments that the whole competition procedure was held to be invalid . In particular, that cannot be inferred from paragraph 13 ( or 14 ), which reads as follows :

"It is for that reason that, where the Appointing Authority considers, as in this case, that one or more of the Selection Board' s decisions refusing to admit candidates to the competition are illegal and that as a result the whole competition is invalidated, it cannot make an appointment . It is then under the duty to take formal note of that situation by means of a reasoned decision and recommence the whole competition procedure following publication of a new notice and if necessary the appointment of a new Selection Board ."

22 . Immediately afterwards it is stated that "where the Appointing Authority has taken no such decision, it is for the Court, on the application of the parties concerned, to rule directly on the legality of the Selection Board' s decision ". However, this was precisely the position then; in other words, there was in fact no decision of the Appointing Authority holding the whole competition to be invalid and hence the decisions of the Selection Board at issue in those cases had to be annulled .

23 . Finally, neither can this case be said to involve the only circumstances which, according to the case-law, can justify going back on the basis of a subsequent request to the content of a previous decision which was not challenged in time and requesting a review, that is to say the existence of new facts . ( 3 )

24 . The change in the composition of the Selection Board can certainly not be said to constitute the existence of new facts . In fact, that did not amount to the appointment of a new Selection Board as part of a new competition procedure ( in the sense of paragraph 14 of the judgment in Joined Cases 322 and 323/85 ). All that was involved was the replacement of the Selection Board members initially appointed by the Administration who wished to be released from their duties following the delivery of the aforementioned judgments . That appears in fact to raise no particular problems in the context of the resumed competition procedure, in that it was clear even on 30 October 1985 that the procedure might be resumed when the Court had clarified certain points in dispute .

25 . Neither can the judgments in Case 321/85 and Joined Cases 322 and 323/85 be said to constitute new facts . In that regard it is relevant on the one hand that an absolute duty to recommence the whole competition procedure cannot be inferred from the passage quoted earlier ( which begins "it is for that reason that where the Appointing Authority considers ..."). This refers only to where the Appointing Authority takes a decision entailing the invalidation of the whole competition . That, however, did not occur and hence the Court, as stated in the last sentence of that passage quoted from the judgment, had to rule on the legality of the Selection Board' s decisions which were challenged before it . It is also material that the decided cases were concerned with matters which are of no relevance to the applicants in these cases ( I would refer to the description I gave of them in the opening part of the Opinion ).

26 . Neither does the judgment in Case 417/85 constitute a new fact . In that case, as has already been pointed out, the complaint was that the Selection Board refused to allow the production of additional documents ( showing that the applicant had had equivalent professional experience for a sufficiently long period as stipulated in the notice of competition ). Contrary to what the applicants' representative maintained in the oral proceedings, it cannot be held that that sort of problem was relevant to the applicants' case and that, therefore, following the delivery of the judgment in that case, it was necessary also to treat the applicants accordingly on grounds of equal treatment . I have already mentioned the grounds for the applicants' exclusion from the competition procedure : Mr Tuelp was rejected because he did not have a university degree but only a diploma from a Verwaltungsakademie ( Civil Service Academy ) and had not shown that he had equivalent professional experience; Mr Muysers was not admitted to the written tests because, in the Selection Board' s view, he had not had the relevant professional experience for the vacant post . Consequently, it was immaterial to them whether they were entitled subsequently to submit additional evidence in support of their view that they fulfilled the requirements set out in the notice of competition . The only matter at issue was the correct assessment of the information put forward by them ( the standing of a Verwaltungsdiplom; employment with the Orient-Institut der deutschen morgenlaendischen Gesellschaft and with the Verband der deutschen Schiffbauindustrie ). This is clear, moreover, also from the complaint lodged by Mr Muysers on 30 October 1985 against the decision refusing to admit him to the tests, since in it he does not complain, for instance, that he was not permitted subsequently to submit further evidence that he had the relevant professional experience, but only that it had been decided with regard to his professional experience, which was known to the Selection Board, that it was not sufficiently relevant to the vacant post .

27 . Consequently, it is possible only to follow the view taken by the Court of Auditors and hold that the applicants' claims must be dismissed as inadmissible because they were brought before the Court too late .

28 . In view of that clear outcome I consider it inappropriate to consider the substance of the action further . Moreover, as it was rightly remarked in the course of the oral proceedings, the applicants themselves have provided hardly any arguments in support of their claims .

29 . However, a few words are still required with regard to the order as to costs . The Court of Auditors considers that the applicants, to whom it gave sufficient advice, should be ordered to pay all the costs on the ground that their action was manifestly inadmissible . The applicants' representative strongly opposed that claim, and contested whether such legal advice had been given . I would consider that the Court should not follow the Court of Auditors on this point . The question of the legal advice can be left open . It must be admitted in fact that at first glance it can be inferred from the judgments in Case 321/85 and Joined Cases 322 and 323/85 ( 4 ) that the Court of Auditors was urged to recommence the whole competition procedure and hence it is doubtless not possible to hold that the proceedings were vexatious . In those circumstances I consider it to be appropriate to apply the rule laid down in Article 70 of the Rules of Procedure, also as regards the costs of the proceedings for the adoption of interim measures .

C - Conclusion

In conclusion, therefore, I propose that the Court should reach the following decision :

30 . The action should be dismissed as inadmissible and each party should bear its own costs .

(*) Translated from the German .

( 1 ) See the judgment of 23 October 1986 in Case 321/85 Schwiering v Court of Auditors (( 1986 )) ECR 3199, the judgment of 23 October 1986 in Joined Cases 322 and 323/85 Hoyer and Others v Court of Auditors (( 1986 )) ECR 3215, and the judgment of 4 February 1987 in Case 417/85 Maurissen v Court of Auditors (( 1987 )) ECR 551 .

( 2 ) See the decision of 26 May 1987 relating to the complaint of 14 May 1987 .

( 3 ) See the judgment of 15 May 1985 in Case 127/84 Esly v Commission (( 1985 )) ECR 1437 .

( 4 ) See paragraph 13 or 14 as the case may be .