Judgment of the Court (Fourth Chamber) of 28 February 1989. - Rosa Basch and others v Commission of the European Communities. - Officials - Competition procedure - Non-admission to tests. - Joined cases 100/87, 146/87 and 153/87.



European Court reports 1989 Page 00447



Summary

Parties

Grounds

Decision on costs

Operative part



Keywords

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1 . Officials - Recruitment - Competition - Competition based on qualifications and tests - Refusal to admit a candidate to the tests - Statement of reasons - Duty - Scope

( Staff Regulations of Officials, Annex III, Art . 5 )

2 . Officials - Recruitment - Competition - Assessment of candidates' merits - Review of applications in implementation of a judgment of the Court - Obligations of the selection board

( Staff Regulations of Officials, Annex III, Art . 5 )

Summary

1 . In order to make allowance for the practical difficulties which arise in a competition for which there is a very large number of applications, the selection board for such a competition may initially send to a candidate not admitted to the tests merely information on the criteria for selection and the result thereof and not give individual explanations until later, to those candidates who expressly request them .

That requirement is not met where, in a letter to the candidate not admitted to the tests in reply to his request for an explanation, the selection board does not specify what elements of his personal file constituted the reason for the refusal to admit him to the tests .

2 . When a selection board reviews applications in implementation of a judgment of the Court it must do so with the required diligence and with particular care .

Reliance on the notes and personal recollections of the members of the selection board, which are liable to be incomplete and inaccurate, in order to reconstruct opinions expressed several years earlier by the superiors of a very large number of candidates constitutes a serious irregularity of such a kind as to justify the annulment of the decisions by which the selection board refused to admit the candidates concerned to the tests .

Parties

In Joined Cases 100, 146 and 153/87

Rosa Basch and Others, officials and members of the temporary staff of the Commission of the European Communities, represented by Marcel Slusny, of the Brussels Bar, with an address for service in Luxembourg at the home of Catherine Brandenbourger, née Wolter, 4 rue Lemire,

and

Giuseppe D' Elicio, an official of the Commission of the European Communities, represented by Victor Biel, of the Luxembourg Bar, with an address for service at the latter' s Chambers, 18 A rue des Glacis,

and

Hélène Goyens de Heusch, an official of the Commission of the European Communities, represented by Jean-Noël Louis, of the Brussels Bar, with an address for service in Luxembourg at the Chambers of Yvette Hamilius, 11 boulevard Royal,

applicants,

against

Commission of the European Communities, represented by its Legal Adviser, Dimitrios Gouloussis, acting as Agent, with an address for service in Luxembourg at the office of Georgios Kremlis, Wagner Centre, Kirchberg, defendant,

APPLICATION for the annulment of the decision of the selection board for Competition No COM2/82 refusing to allow the applicants to take part in the tests for that competition and, in Case 100/87, for interpretation of the judgments of the Court of 11 March 1986 in Cases 293 and 294/84 ( (( 1986 )) ECR 967 and 977 ),

THE COURT ( Fourth Chamber )

composed of : T . Koopmans, President of Chamber, C . N . Kakouris and M . Díez de Velasco, Judges,

Advocate General : F . G . Jacobs

Registrar : H . A . Ruhl, Principal Administrator

having regard to the Report for the Hearing and further to the hearing on 1 December 1988,

after hearing the Opinion of the Advocate General delivered at the sitting on 20 January 1989,

gives the following

Judgment

Grounds

1 By applications lodged at the Court Registry on 3 April, 8 May and 14 May 1987, Rosa Basch and 27 other officials in Category C employed by the Commission of the European Communities brought actions for the annulment of the decisions notified to them on 12 February 1987 whereby the selection board for Internal Competition COM2/82 based on qualifications and tests for the constitution of a reserve list of administrative assistants, secretarial assistants and technical assistants did not admit them to the tests for that competition . The applicants in Case 100/87 also claim BFR 200 000 damages each in respect of the non-material and material damage suffered by them as a result of those decisions .

2 In the course of its examination of the applications the selection board for the competition in question talked to the candidates' superiors but did not allow the officials concerned to comment on the opinions thus expressed about them . In two judgments of 11 March 1986 ( Case 293/84 Sorani and Others v Commission (( 1986 )) ECR 967 and Case 294/84 Adams and Others v Commission (( 1986 )) ECR 977 ) the Court annulled the selection board' s decisions not to admit the applicants in those cases to the tests on the ground that they did not have an opportunity to state their views on the opinions expressed by their superiors .

3 Having regard to those judgments, the selection board called the applicants concerned to interviews in June 1986 so that they could answer the same questions as had previously been put to their superiors . By letter of 11 July 1986, the candidates were then informed that the decision of June 1984 not to admit them to the tests had been confirmed .

4 Following complaints made by certain candidates against the July 1986 decision, the selection board called them together a second time to enable them to express their views on the replies given by their superiors to the questions put to them by the selection board . By letter of 12 February 1987, the officials concerned were informed that the selection board considered that there were no grounds for reconsidering the decision taken with respect to them which was notified to them on 11 July 1986 .

5 Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the course of the procedure and the submissions and arguments of the parties, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court .

The claims for annulment

6 The applicants put forward the following submissions :

( i ) the reasons for the decisions were not stated adequately or at all;

( ii ) incorrect implementation of the judgments in Cases 293 and 294/84, inasmuch as the applicants should have been deemed to have been admitted to the competition and the opinions disclosed to the candidates were unverifiable and incorrect;

( iii ) the procedure followed by the selection board was illegal inasmuch as the board consulted the assistants of the various Directors-General and not the immediate superiors of each of the candidates;

( iv ) infringement of the conditions for admission to the tests, inasmuch as the selection board treated the performance of duties corresponding to Grade B as an essential requirement .

7 In support of their first submission, the applicants claim that the selection board' s decision notified to them on 12 February 1987 gives no reason for its view that it should not alter its decision notified on 11 July 1986 . Consequently, even now the applicants do not know what elements of their personal files constituted the reason for the refusal to admit them to the tests .

8 The Commission replies that the decision in question is no more than a confirmation of a previous decision and that in those circumstances the only new factor to be taken into account by the selection board was the candidates' views on the opinions expressed by their superiors . According to the Commission, the contested decision contains an adequate statement of the grounds on which it was based in so far as it states expressly that the selection board considered those views and that, having regard to all the information before it, it concluded that there was no reason to alter its previous decision .

9 It appears from the documents before the Court that in a first letter of June 1984 informing the applicants that they had not been included on the list of candidates admitted to the tests the selection board indicated the general criteria which it had adopted . By a letter of 7 September 1984 sent in identical terms to all the candidates who, like the applicants, asked for their applications to be reviewed, the selection board confirmed its June 1984 decision, without giving any clarification regarding the manner in which the criteria were applied to each application . Following the first interview arranged after the delivery of the abovementioned judgments of the Court, the applicants received a further standard letter on 11 July 1986, in which the selection board stated that they had not produced any information which would lead it to alter its decision of June 1984 . Finally, the letter of 12 February 1987 confirmed, in the same terms, the decision notified to the candidates on 11 July 1986, without any explanation concerning their individual cases .

10 The Court has consistently held ( most recently in Case 206/85 Beiten v Commission (( 1987 )) ECR 5301 ) that in order to make allowance for the practical difficulties which arise in a competition for which there is a very large number of applications, the selection board for such a competition may initially send to a candidate not admitted to the tests merely information on the criteria for selection and the result thereof and not give individual explanations until later, to those candidates who expressly request them .

11 In the present case the applicants were never given individual explanations . On the contrary, although they asked to be told the specific reasons for which each was refused they received only standard letters giving no detailed information as to the reasons for the rejection of their applications . It follows that the decision notified by letter of 12 February 1987, the last in a series of standard letters sent to the candidates, cannot be regarded as a decision containing a proper statement of the reasons on which it was based . The first submission must therefore be upheld .

12 The second submission has two aspects . A first argument, put forward in Case 100/87 as a request for interpretation of the judgments given in Cases 293 and 294/84, is that the Commission failed correctly to implement those judgments, whose effect was that the applicants should have been admitted to the written tests without further formality . A second argument relates to the irregularity of the procedure followed by the selection board with a view to enabling the candidates to comment on the opinions of their superiors . Since there were no written records, the selection board reconstructed them from the personal notes and recollections of its members; in those circumstances, the authenticity of the opinions placed before the candidates was very dubious .

13 The Commission contends that the selection board correctly implemented the Court' s judgments, by repeating the competition procedure from the point at which it had been vitiated by an irregularity . The Commission also considers that the procedure for reconstructing the opinions of the candidates' superiors was a proper one .

14 In Cases 293 and 294/84, the Commission had informed the Court that no minutes had been taken recording the opinions expressed by the candidates' superiors during interviews in 1983 . It was not until after judgment had been given by the Court in those cases that the selection board reconstructed those opinions on the basis of the personal notes and recollections of its members .

15 The annulment of the decisions of the selection board in Cases 293 and 294/84 restored the applicants to the situation in which they had been before those decisions were adopted . Consequently, it was necessary to review their cases in the light of the judgments of the Court in order to determine whether each candidate could be admitted to the tests .

16 However, when a selection board carries out such a review of applications, in particular in order to remedy a serious irregularity, it must do so with the required diligence and with particular care . In the present case the selection board relied on the notes and personal recollections of its members, which were liable to be incomplete and inaccurate, in order to reconstruct opinions expressed some three years earlier regarding a very large number of candidates . It is also apparent from the documents before the Court that a number of opinions thus reconstructed directly conflict with other documents, including, for example, periodic reports, concerning the manner in which certain candidates discharged their duties . By acting in that way the selection board committed a serious irregularity and therefore the contested decisions must be annulled .

17 It follows from the foregoing, without its being necessary to consider the other submissions and arguments put forward by the applicants, that the decision of the selection board for Competition COM2/82 not to admit the applicants to the tests for that competition must be annulled on the grounds that it did not contain an adequate statement of the reasons on which it was based and that the procedure followed by the selection board was irregular .

The claims for damages

18 The annulment of the contested decision in itself adequately redresses any non-material damage which the applicants may have suffered in the present case . Since the applicants have not succeeded in establishing the existence of any separate material damage the claim for damages is devoid of purpose . It is therefore unnecessary to rule on that issue .

Decision on costs

Costs

19 Under Article 69(2 ) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs . Since the Commission has failed in its submissions it must be ordered to pay the costs .

Operative part

On those grounds,

THE COURT ( Fourth Chamber )

hereby :

( 1 ) Annuls the decision of the selection board for Competition COM2/82, contained in the letter sent in identical terms to all the applicants on 12 February 1987, not to admit them to the tests for the competition;

( 2 ) Orders the Commission to pay the costs .