Judgment of the Court (Third Chamber) of 23 October 1986. - Hartmut Schwiering v Court of Auditors of the European Communities. - Refusal to admit candidates to tests - Disagreement between the Selection Board and the Appointing Authority. - Case 321/85.



European Court reports 1986 Page 03199



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

1 . OFFICIALS - RECRUITMENT - COMPETITIONS - SELECTION BOARD - INDEPENDENCE - LIMITS - ADOPTION OF UNLAWFUL DECISIONS - DUTIES OF THE APPOINTING AUTHORITY - REVIEW BY THE COURT

2 . OFFICIALS - RECRUITMENT - COMPETITIONS - CONDITIONS OF ADMISSION - SUPPORTING DOCUMENTS - INSUFFICIENT - REFUSAL OF THE SELECTION BOARD TO ALLOW ADDITIONAL DOCUMENTS TO BE PRODUCED - DISREGARD OF THE DUTY TO HAVE REGARD TO THE INTERESTS OF OFFICIALS .

( STAFF REGULATIONS , ANNEX III , ART . 2 , PARA . 2 )

Summary

1 . IN VIEW OF THE INDEPENDENCE OF SELECTION BOARDS , THE INSTITUTION CONCERNED HAS NO POWER TO ANNUL OR AMEND A DECISION TAKEN BY A SELECTION BOARD . HOWEVER , IN EXERCISING ITS OWN POWERS , THE APPOINTING AUTHORITY CANNOT BE BOUND BY A DECISION OF A SELECTION BOARD WHERE THE ILLEGALITY OF THAT DECISION IS LIABLE TO VITIATE ITS OWN DECISIONS . IF IT IS UNABLE TO APPOINT A CANDIDATE BECAUSE IT CONSIDERS THAT THE SELECTION BOARD HAS UNLAWFULLY REFUSED TO ALLOW ONE OR MORE CANDIDATES TO TAKE PART IN THE COMPETITION AND THAT AS A RESULT THE WHOLE COMPETITION IS INVALIDATED , IT IS UNDER A 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 . 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 .

2 . THE DUTY OF THE ADMINISTRATION TO LOOK AFTER THE WELL-BEING OF ITS OFFICIALS REFLECTS THE BALANCE OF THE RECIPROCAL RIGHTS AND OBLIGATIONS ESTABLISHED BY THE STAFF REGULATIONS IN THE RELATIONSHIP BETWEEN THE OFFICIAL AUTHORITY AND THE CIVIL SERVANTS . A PARTICULAR CONSEQUENCE OF THIS BALANCE IS THAT WHEN THE OFFICIAL AUTHORITY TAKES A DECISION CONCERNING THE SITUATION OF AN OFFICIAL , IT SHOULD TAKE INTO CONSIDERATION ALL THE FACTORS WHICH MAY AFFECT ITS DECISIONS AND THAT WHEN DOING SO IT SHOULD TAKE INTO ACCOUNT NOT ONLY THE INTERESTS OF THE SERVICE BUT ALSO THOSE OF THE OFFICIAL CONCERNED . A SELECTION BOARD IS ALSO SUBJECT TO THAT DUTY FOR , ALTHOUGH IN THE ABSENCE OF DETAILS IN THE NOTICE OF COMPETITION IT MAY REQUIRE CANDIDATES TO PRODUCE ANY DOCUMENT IT CONSIDERS NECESSARY AND IN WHATEVER FORM IT CONSIDERS APPROPRIATE , IT CANNOT REJECT AN APPLICATION WITHOUT GIVING THE APPLICANT THE OPPORTUNITY TO PRODUCE ADDITIONAL DOCUMENTS CAPABLE OF REGULARIZING HIS APPLICATION . THAT REASONING IS ESPECIALLY APPLICABLE WHERE IT IS A QUESTION OF AN INTERNAL COMPETITION INVOLVING A LIMITED NUMBER OF CANDIDATES .

Parties

IN CASE 321/85

HARTMUT SCHWIERING , A MEMBER OF THE TEMPORARY STAFF OF THE COURT OF AUDITORS OF THE EUROPEAN COMMUNITIES , RESIDING AT 5 NACHTIGALLENWEG , 5503 KONZ , FEDERAL REPUBLIC OF GERMANY , REPRESENTED BY DIETER ROGALLA , RECHTSANWALT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT , 34 B RUE PHILIPPE-II ,

APPLICANT ,

V

COURT OF AUDITORS OF THE EUROPEAN COMMUNITIES , REPRESENTED BY JEAN-AIME STOLL AND MICHAEL BECKER , ACTING AS AGENTS , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT 29 RUE ALDRINGEN ,

DEFENDANT ,

Subject of the case

APPLICATION FOR THE ANNULMENT OF THE DECISION OF 2 AUGUST 1985 BY WHICH THE SELECTION BOARD IN INTERNAL COMPETITION NO CC/A/8/85 REFUSED TO ADMIT THE APPLICANT TO THE TESTS IN THAT COMPETITION ,

Grounds

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 31 OCTOBER 1985 HARMUT SCHWIERING , A MEMBER OF THE TEMPORARY STAFF OF THE COURT OF AUDITORS OF THE EUROPEAN COMMUNITIES , BROUGHT AN ACTION FOR THE ANNULMENT OF THE DECISION OF 2 AUGUST 1985 BY WHICH THE SELECTION BOARD FOR INTERNAL COMPETITION NO CC/A/8/85 REFUSED TO ALLOW HIM TO TAKE PART IN THE TESTS IN THAT COMPETITION .

2 ON 24 JUNE 1985 THE COURT OF AUDITORS PUBLISHED A NOTICE OF INTERNAL COMPETITION NO CC/A/8/85 TO FILL A VACANCY FOR AN ADMINISTRATOR IN CAREER BRACKET A 7/A 6 . THE NATURE OF THE DUTIES WERE , UNDER THE DIRECTION OF A SUPERIOR OFFICIAL , TO MANAGE THE ADMINISTRATION DEPARTMENT AND TO PERFORM ADVISORY DUTIES IN THE AREAS FOR WHICH THAT DEPARTMENT WAS RESPONSIBLE .

3 PART VII OF THE NOTICE OF COMPETITION STATES THAT APPLICATIONS SHOULD BE SENT TO THE PERSONNEL DEPARTMENT ACCOMPANIED BY DOCUMENTS ATTESTING TO THE CANDIDATE ' S EDUCATION AND PROFESSIONAL EXPERIENCE . WITHIN THE PERIOD LAID DOWN THE APPLICANT FORWARDED HIS APPLICATION ACCOMPANIED BY PHOTOCOPIES OF THE DOCUMENTS ATTESTING TO HIS QUALIFICATIONS CONTAINED IN HIS PERSONAL FILE .

4 BY A LETTER DATED 2 AUGUST 1985 THE CHAIRMAN OF THE SELECTION BOARD INFORMED THE APPLICANT THAT THE SELECTION BOARD HAD NOT FOUND IT POSSIBLE TO ALLOW HIM TO TAKE PART IN THE TESTS IN THE COMPETITION BECAUSE HIS APPLICATION DID NOT COMPLY WITH THE PROVISIONS OF PART VII OF THE NOTICE OF COMPETITION . ' ATTESTING DOCUMENTS ' MEANT EITHER AN ORIGINAL OR A COPY OF AN ORIGINAL DOCUMENT CERTIFIED AS SUCH BY THE RELEVANT AUTHORITY . NONE OF THE DOCUMENTS ENCLOSED WITH THE APPLICATION SATISFIED THAT CONDITION .

5 AFTER THE HEAD OF THE PERSONNEL DIVISION OF THE COURT OF AUDITORS HAD POINTED OUT TO THE CHAIRMAN OF THE SELECTION BOARD THAT SEVERAL OF THE DECISIONS TO REFUSE ADMISSION TO THE TESTS APPEARED TO HIM TO BE OPEN TO CHALLENGE IN VIEW OF THE CONDITIONS LAID DOWN IN THE NOTICE OF COMPETITION , THE CHAIRMAN OF THE SELECTION BOARD , BY A LETTER DATED 12 AUGUST 1985 , INFORMED MR SCHWIERING , AS WELL AS THE 13 OTHER CANDIDATES EXCLUDED FROM THE COMPETITION , THAT HE MIGHT SUBMIT BEFORE 30 SEPTEMBER 1985 PURSUANT TO ARTICLE 2 OF ANNEX III TO THE STAFF REGULATIONS ANY OBSERVATIONS ON THE DECISION NOT TO ADMIT HIM . THE LETTER STATED THAT IT WAS NOT POSSIBLE TO SUBMIT FURTHER DOCUMENTS .

6 BY A MEMORANDUM DATED 4 OCTOBER 1985 THE APPOINTING AUTHORITIY INFORMED THE SELECTION BOARD OF ITS INTERPRETATION OF ' ATTESTING DOCUMENTS ' :

' AS REGARDS ATTESTING DOCUMENTS , THE SECOND PARAGRAPH OF ARTICLE 2 OF ANNEX III TO THE STAFF REGULATIONS GIVES THE SELECTION BOARD THE POWER TO REQUIRE CANDIDATES , IN CASE OF DOUBT , TO FURNISH ADDITIONAL DOCUMENTS OR INFORMATION . SINCE THE PRESENT CASE CONCERNS AN INTERNAL COMPETITION IN WHICH THERE IS A LIMITED NUMBER OF CANDIDATES ( 14 ), SOME OF WHOM ARE ESTABLISHED OFFICIALS , THE DUTY TO HAVE REGARD TO THEIR INTERESTS REQUIRES THE SELECTION BOARD TO APPLY THAT PROVISION . MOREOVER , UNLIKE NOTICES OF OPEN COMPETITIONS , THE TERMS OF THE NOTICE OF COMPETITION IN QUESTION DO NOT REQUIRE THE PRODUCTION AT THIS STAGE OF THE PROCEDURE OF ORIGINAL DOCUMENTS OR CERTIFIED COPIES . '

7 IN SPITE OF THAT MEMORANDUM AND A REQUEST MADE ON 22 AUGUST 1985 BY MR SCHWIERING TO THE CHAIRMAN OF THE SELECTION BOARD ASKING HIM TO RECONSIDER THE DECISION TO REFUSE HIM ADMISSION TO THE COMPETITION , THE SELECTION BOARD , BY DECISION OF 28 OCTOBER 1985 , CONFIRMED ON THE SAME GROUNDS ITS DECISION OF 2 AUGUST 1985 REFUSING TO ALLOW MR SCHWIERING TO TAKE PART IN THE COMPETITION . THAT DECISION IS THE SUBJECT OF THE PRESENT APPLICATION .

8 THE APPLICANT CLAIMS THAT HE SATISFIES ALL THE CONDITIONS FOR ADMISSION TO THE COMPETITION AND THAT THE SELECTION BOARD REJECTED HIS APPLICATION AFTER WRONGLY INTERPRETING THE WORDS ' ATTESTING DOCUMENTS ' - WHICH IS NOT , MOREOVER , A TERM USED IN CIVIL SERVICE LAW - AS MEANING AN ' ORIGINAL ' OR A ' CERTIFIED COPY ' . CONSEQUENTLY , THE SELECTION BOARD DISREGARDED ITS DUTY TO HAVE REGARD TO THE INTERESTS OF MEMBERS OF STAFF OF THE INSTITUTION SINCE ARTICLE 2 OF ANNEX III TO THE STAFF REGULATIONS ALLOWED THE SELECTION BOARD IN CASE OF DOUBT TO REQUIRE THAT THE PHOTOCOPIES THAT HE HAD PRODUCED SHOULD BE CERTIFIED AS TRUE COPIES OF THE ORIGINALS . THEREFORE , IN ITS DECISION OF 28 OCTOBER 1985 , THE SELECTION BOARD WRONGLY FAILED TO AMEND ITS ORIGINAL DECISION OF 2 AUGUST 1985 , IN SPITE OF THE OBSERVATIONS MADE BY THE APPLICANT IN HIS LETTER OF 22 AUGUST 1985 AND THE INFORMATION PROVIDED BY THE APPOINTING AUTHORITY .

9 THE COURT OF AUDITORS TAKES THE VIEW THAT THE APPLICATION IS WELL FOUNDED . IN ITS VIEW , THE SELECTION BOARD ' S EXPLANATIONS CONTAINED IN THE LETTERS WHICH IT SENT TO THE APPLICANT ON 2 AUGUST AND 28 OCTOBER 1985 HAVE NO LEGAL FOUNDATION HAVING REGARD TO THE CONDITIONS LAID DOWN IN THE NOTICE OF COMPETITION , THE APPLICANT ' S LETTER OF 22 AUGUST 1985 AND THE POSITION CLEARLY EXPRESSED BY THE APPOINTING AUTHORITY IN ITS MEMORANDUM OF 4 OCTOBER 1985 .

10 IN ADDITION , THE COURT OF AUDITORS STATES THAT IT CONSIDERED THE POSSIBILITY OF ITSELF ANNULLING THE DECISIONS REFUSING ADMISSION TO THE COMPETITION , WHICH CLEARLY CONTAINED SERIOUS ERRORS , AND OF APPOINTING A NEW SELECTION BOARD TO RECONSIDER THE CONDITIONS FOR ADMISSION . HOWEVER , IN VIEW OF THE ESTABLISHED CASE-LAW OF THE COURT , IT REACHED THE CONCLUSION THAT THE APPOINTING AUTHORITY HAD NO POWER TO ANNUL OR AMEND DECISIONS OF A SELECTION BOARD . IN ITS VIEW , THAT SITUATION IS UNSATISFACTORY .

11 IT MUST BE RECALLED IN THE FIRST PLACE , IN REPLY TO THAT OBSERVATION OF THE COURT OF AUDITORS , THAT ACCORDING TO A PRINCIPLE CONSISTENTLY UPHELD BY THE COURT , BASED ON THE NEED TO ENSURE THE INDEPENDENCE OF SELECTION BOARDS , THE INSTITUTION CONCERNED HAS NO POWER TO ANNUL OR AMEND A DECISION TAKEN BY A SELECTION BOARD ( JUDGMENT OF 14 JUNE 1972 IN CASE 44/71 MARCATO V COMMISSION ( 1972 ) ECR 427 ; JUDGMENT OF 26 FEBRUARY 1981 IN CASE 34/80 AUTHIE V COMMISSION ( 1981 ) ECR 655 ; JUDGMENT OF 14 JULY 1983 IN CASE 144/82 DETTI V COURT OF JUSTICE ( 1983 ) ECR 2421 ).

12 HOWEVER , IN EXERCISING ITS OWN POWERS , THE APPOINTING AUTHORITY IS REQUIRED TO TAKE DECISIONS WHICH ARE FREE OF IRREGULARITIES . IT CANNOT THEREFORE BE BOUND BY DECISIONS OF A SELECTION BOARD WHERE THE ILLEGALITY OF THOSE DECISIONS IS LIABLE TO VITIATE ITS OWN DECISIONS .

13 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 NECESSSARY THE APPOINTMENT OF A NEW SELECTION BOARD . 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 .

14 AS REGARDS THE LEGALITY OF THE DECISION REFUSING ADMISSION TO THE COMPETITION ADOPTED IN THE PRESENT CASE BY THE SELECTION BOARD , IT SHOULD BE NOTED THAT PART VII OF THE NOTICE OF INTERNAL COMPETITION NO CC/A/8/85 STATES THAT : ' APPLICATIONS WILL BE CONSIDERED ONLY IF THEY . . . ARE ACCOMPANIED BY DOCUMENTS ATTESTING TO THE CANDIDATE ' S EDUCATION AND PROFESSIONAL EXPERIENCE . . . ' .

15 IN APPLYING THOSE PROVISIONS THE SELECTION BOARD TOOK THE VIEW THAT THE ' DOCUMENTS ATTESTING TO THE CANDIDATE ' S EDUCATION AND PROFESSIONAL EXPERIENCE ' COULD ONLY BE ORIGINALS OR COPIES OF THE ORIGINALS CERTIFIED BY THE APPROPRIATE AUTHORITY AS TRUE COPIES AND THAT IT WAS NOT POSSIBLE TO REQUEST THE APPLICANT TO COMPLETE HIS APPLICATION BY PRODUCING SUCH DOCUMENTS AFTER HIS APPLICATION HAD BEEN LODGED .

16 AS FAR AS THE FIRST POINT IS CONCERNED , THE SELECTION BOARD WAS ENTITLED , IN ORDER TO AVOID ANY RISK OF DECEPTION , TO REQUIRE THAT CANDIDATES ' CLAIMS AS TO THEIR EDUCATION OR PROFESSIONAL EXPERIENCE SHOULD BE SUPPORTED BY ORIGINAL DOCUMENTS OR CERTIFIED COPIES .

17 ON THE OTHER HAND , THERE IS NO JUSTIFICATION FOR REFUSING TO ALLOW A CANDIDATE TO SUPPLEMENT HIS APPLICATION BY PRODUCING THE ORIGINALS OR CERTIFIED COPIES OF THE PHOTOCOPIES WHICH ORIGINALLY ACCOMPANIED HIS APPLICATION .

18 AS THE COURT HELD IN ITS JUDGMENT OF 28 MAY 1980 IN JOINED CASES 33 AND 75/79 KUHNER V COMMISSION ( 1980 ) ECR 1677 AND ITS JUDGMENT OF 9 DECEMBER 1982 IN CASE 191/81 PLUG V COMMISSION ( 1982 ) ECR 4229 , ALTHOUGH THE DUTY OF THE ADMINISTRATION TO LOOK AFTER THE WELL-BEING OF ITS OFFICIALS , WHICH ALSO APPLIES TO SELECTION BOARDS , IS NOT MENTIONED IN THE STAFF REGULATIONS , IT REFLECTS THE BALANCE OF THE RECIPROCAL RIGHTS AND OBLIGATIONS ESTABLISHED BY THE STAFF REGULATIONS IN THE RELATIONSHIP BETWEEN THE OFFICIAL AUTHORITY AND THE CIVIL SERVANTS . A PARTICULAR CONSEQUENCE OF THIS DUTY AND OF ITS PRINCIPLE OF GOOD ADMINISTRATION IS THAT WHEN THE OFFICIAL AUTHORITY TAKES A DECISION CONCERNING THE SITUATION OF AN OFFICIAL IT SHOULD TAKE INTO CONSIDERATION ALL THE FACTORS WHICH MAY AFFECT ITS DECISION AND THAT WHEN DOING SO IT SHOULD TAKE INTO ACCOUNT NOT ONLY THE INTERESTS OF THE SERVICE BUT ALSO THOSE OF THE OFFICIAL CONCERNED .

19 THE SECOND PARAGRAPH OF ARTICLE 2 OF ANNEX III ( ' COMPETITIONS ' ) TO THE STAFF REGULATIONS , WHICH STATES THAT CANDIDATES ' MAY BE REQUIRED TO FURNISH ADDITIONAL DOCUMENTS OR INFORMATION ' , DOES IN FACT ENABLE THE SELECTION BOARD , WHEN IN DOUBT , TO REQUIRE THE PRODUCTION OF ANY DOCUMENT WHICH IT CONSIDERS NECESSARY AND IN WHATEVER FORM IT APPEARS APPROPRIATE .

20 IT FOLLOWS THAT WHERE A NOTICE OF COMPETITION REFERS TO THE PRODUCTION OF SUPPORTING DOCUMENTS WITHOUT SPECIFYING THEM , AND THE SELECTION BOARD INTERPRETS THOSE WORDS STRICTLY AS MEANING AN ORIGINAL OR A CERTIFIED PHOTOCOPY , IT CANNOT , WITHOUT DISREGARDING THE PRINCIPLES STATED ABOVE , REJECT AN APPLICATION WITHOUT GIVING THE APPLICANT THE OPPORTUNITY TO PRODUCE ADDITIONAL DOCUMENTS CAPABLE OF REGULARIZING HIS APPLICATION . THAT REASONING IS ESPECIALLY APPLICABLE WHERE IT IS A QUESTION , AS IN THE PRESENT CASE , OF AN INTERNAL COMPETITION INVOLVING A LIMITED NUMBER OF CANDIDATES .

21 CONSEQUENTLY , THE DECISIONS OF 2 AUGUST AND 28 OCTOBER 1985 REFUSING TO ALLOW THE APPLICANT TO TAKE PART IN THE COMPETITION MUST BE ANNULLED .

Decision on costs

COSTS

22 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . IN THE CIRCUMSTANCES OF THE CASE AND ALTHOUGH THE COURT OF AUDITORS SUBMITTED THAT THE COURT OF JUSTICE SHOULD ALLOW THE APPLICATION , IT MUST BE ORDERED TO PAY THE COSTS .

Operative part

ON THOSE GROUNDS ,

THE COURT ( THIRD CHAMBER )

HEREBY :

( 1 ) ANNULS THE DECISIONS OF 2 AUGUST AND 28 OCTOBER 1985 WHEREBY THE SELECTION BOARD IN COMPETITION NO CC/A/8/85 REFUSED TO ADMIT MR SCHWIERING TO THE TESTS IN THAT COMPETITION ;

( 2)ORDERS THE COURT OF AUDITORS TO PAY ALL THE COSTS OF THE PROCEEDINGS .