Judgment of the Court (First Chamber) of 27 November 1986. - Dieter Strack v European Parliament. - Refusal to permit a candidate to take the written tests in a competition after the date set for them. - Case 155/85.



European Court reports 1986 Page 03561



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

OFFICIALS - RECRUITMENT - COMPETITION - NOTICE TO ATTEND TESTS - REASONABLE NOTICE - DUTY OF CARE INCUMBENT ON CANDIDATES - SCOPE

( STAFF REGULATIONS , ANNEX III , ART . 1 ( 2 ))

Summary

ALTHOUGH ARTICLE 1 ( 2 ) OF ANNEX III TO THE STAFF REGULATIONS PROVIDES THAT ' NOTICE OF OPEN COMPETITIONS SHALL BE PUBLISHED IN THE OFFICIAL JOURNAL OF THE EUROPEAN COMMUNITIES NOT LESS THAN ONE MONTH BEFORE THE CLOSING DATE FOR APPLICATIONS AND , WHERE APPLICABLE , NOT LESS THAN TWO MONTHS BEFORE THE DATE OF THE TESTS ' , NO PROVISION OF THE STAFF REGULATIONS REQUIRES THE INSTITUTIONS TO GIVE THE CANDIDATES IN A COMPETITION A SPECIFIC PERIOD OF NOTICE . HOWEVER , THE PERIOD OF NOTICE MUST BE REASONABLE AND MUST SATISFY THE REQUIREMENTS OF SOUND ADMINISTRATION .

SINCE AN INVITATION TO TAKE PART IN A COMPETITION IS SOLELY DESIGNED TO ENABLE CANDIDATES TO ATTEND THE TESTS THE DUTY OF CARE INCUMBENT ON EACH CANDIDATE REQUIRES HIM TO TAKE THE NECESSARY STEPS TO ENSURE THAT HE IS APPRISED OF IT IN GOOD TIME .

Parties

IN CASE 155/85

DIETER STRACK , AN OFFICIAL OF THE UNITED NATIONS , RESIDING AT VULBENS , FRANCE , REPRESENTED BY ANGELIKA SCHRODER-EISING AND SABINE GUMBERT-DRAFZ , RECHTSANWALTINNEN AT RECKLINGSHAUSEN , FEDERAL REPUBLIC OF GERMANY , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF MESSRS BIEVER AND SCHILTZ , 83 BOULEVARD GRANDE-DUCHESSE CHARLOTTE ,

APPLICANT ,

V

EUROPEAN PARLIAMENT , REPRESENTED BY H.-J . OPITZ , SECRETARY GENERAL , AND M . PETER , HEAD OF DIVISION , BOTH RESIDING IN LUXEMBOURG , ASSISTED BY A . BONN OF THE LUXEMBOURG BAR , WITH AN ADDRESS FOR SERVICE AT THE LATTER ' S CHAMBERS , 22 COTE D ' EICH ,

DEFENDANT ,

Subject of the case

APPLICATION FOR THE ANNULMENT OF THE DECISION OF 21 SEPTEMBER 1984 BY WHICH THE SELECTION BOARD IN COMPETITION NO PE/27/A REFUSED TO PERMIT THE APPLICANT TO TAKE THE WRITTEN TESTS IN THAT COMPETITION AFTER THE DATE SET FOR THEM ,

Grounds

1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 22 MAY 1985 DIETER STRACK , AN OFFICIAL OF THE UNITED NATIONS , BROUGHT AN ACTION FOR THE ANNULMENT OF THE DECISION BY WHICH THE SELECTION BOARD IN COMPETITION NO PE/27/A ORGANIZED BY THE EUROPEAN PARLIAMENT ( OFFICIAL JOURNAL , C 355 OF 30 DECEMBER 1983 , P . 16 ) REFUSED TO PERMIT HIM TO TAKE THE WRITTEN TESTS IN THAT COMPETITION AFTER THE DATE SET FOR THOSE TESTS . THE APPLICANT ALSO CLAIMS THAT , AS COMPENSATION FOR THE DAMAGE WHICH HE CONSIDERS HIMSELF TO HAVE SUFFERED , THE EUROPEAN PARLIAMENT BE ORDERED EITHER TO PERMIT HIM TO TAKE THE TESTS IN THE COMPETITION AFTER THE DATE SET FOR THE TESTS OR , IN THE ALTERNATIVE , TO PAY HIM DAMAGES .

2 REFERENCE IS MADE TO THE REPORT FOR THE HEARING FOR 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 .

3 BY A LETTER DATED 2 JULY 1984 FROM THE CHAIRMAN OF THE SELECTION BOARD MR STRACK WAS INVITED TO ATTEND THE WRITTEN TESTS IN OPEN COMPETITION NO PE/27/A ON 19 AND 20 JULY 1984 . THAT LETTER ARRIVED AT MR STRACK ' S RESIDENCE ON 5 JULY 1984 WHEN HE WAS AWAY ON THREE WEEKS ' HOLIDAY . WHEN , ON RETURNING FROM HOLIDAY , HE LEARNED OF THE DATE FIXED FOR THE TESTS , THE TESTS HAD ALREADY TAKEN PLACE .

4 MR STRACK THEN ASKED THE PRESIDENT OF THE EUROPEAN PARLIAMENT FOR AUTHORIZATION TO TAKE THE TESTS AFTER THE EVENT AND HE STATED ON HIS HONOUR THAT HE WAS NOT AWARE OF THE SUBJECTS OF THE TESTS .

5 THAT REQUEST WAS FORWARDED TO THE SELECTION BOARD , WHICH REJECTED IT BY DECISION OF 21 SEPTEMBER 1984 , COMMUNICATED TO MR STRACK ON 4 OCTOBER 1984 .

6 IN SUPPORT OF HIS APPLICATION FOR THE ANNULMENT OF THE SELECTION BOARD ' S DECISION , MR STRACK SUBMITS THAT THE TWO WEEKS ' NOTICE BETWEEN THE INVITATION TO ATTEND THE TESTS AND THE DATE OF THE TESTS WAS INSUFFICIENT . IT WAS INSUFFICIENT BEARING IN MIND THAT THE COUNCIL AND THE COMMISSION CUSTOMARILY GIVE FOUR WEEKS ' NOTICE . MR STRACK STATES THAT HE RELIED ON THAT PRACTICE . HE MAINTAINS THAT IN THIS CASE TWO WEEKS ' NOTICE WAS PARTICULARLY INAPPROPRIATE BECAUSE IT FELL DURING THE SUMMER- HOLIDAY PERIOD . CONSEQUENTLY THE DECISION BY WHICH THE SELECTION BOARD REFUSED HIM PERMISSION TO TAKE THE WRITTEN TESTS AFTER THE EVENT WAS ILLEGAL , ESPECIALLY SINCE HE DECLARED ON HIS HONOUR THAT HE WAS UNAWARE OF THE SUBJECTS OF THE COMPETITION .

7 IT MUST BE OBSERVED THAT NO PROVISION OF THE STAFF REGULATIONS REQUIRES THE INSTITUTIONS TO GIVE THE CANDIDATES IN A COMPETITION A SPECIFIC PERIOD OF NOTICE . ARTICLE 1 ( 2 ) OF ANNEX III TO THE STAFF REGULATIONS SIMPLY PROVIDES THAT ' NOTICE OF OPEN COMPETITIONS SHALL BE PUBLISHED IN THE OFFICIAL JOURNAL OF THE EUROPEAN COMMUNITIES NOT LESS THAN ONE MONTH BEFORE THE CLOSING DATE FOR APPLICATIONS AND , WHERE APPLICABLE , NOT LESS THAN TWO MONTHS BEFORE THE DATE OF THE TESTS ' . SINCE IT TAKES A CERTAIN AMOUNT OF TIME TO VERIFY WHETHER APPLICANTS ARE ELIGIBLE AND TO SEND OUT INVITATIONS TO ATTEND THE TESTS , IT APPEARS FROM THAT PROVISION THAT AN INVITATION TO ATTEND A COMPETITION WHICH REACHES A CANDIDATE LESS THAN ONE MONTH BEFORE THE DATE OF THE TESTS IS NOT UNLAWFUL FOR THAT REASON . AS FOR THE PRACTICE OBSERVED BY THE COUNCIL AND THE COMMISSION , IT CANNOT BIND THE EUROPEAN PARLIAMENT , ESPECIALLY SINCE IT APPEARS FROM THE STATEMENTS SUBMITTED TO THE COURT THAT THOSE TWO INSTITUTIONS THEMSELVES CONSIDER THAT THE FOUR-WEEK PERIOD OF NOTICE WHICH THEY GIVE IS PURELY INDICATIVE IN NATURE .

8 ALTHOUGH THE EUROPEAN PARLIAMENT WAS THUS NOT OBLIGED TO OBSERVE A SPECIFIC PERIOD OF NOTICE , IT MUST NEVERTHELESS BE CONSIDERED WHETHER THE PERIOD OF NOTICE GIVEN IN THIS CASE WAS REASONABLE AND SATISFIED THE REQUIREMENTS OF SOUND ADMINISTRATION . IT MUST BE OBSERVED THAT TWO WEEKS ' NOTICE IS NOT UNREASONABLE IN THE CIRCUMSTANCES OF THE CASE , EVEN IF IT WAS GIVEN IN THE SUMMER-HOLIDAY PERIOD . AN INVITATION TO TAKE PART IN A COMPETITION IS SOLELY DESIGNED TO ENABLE CANDIDATES TO ATTEND THE TESTS . CONSEQUENTLY , THE DUTY OF CARE INCUMBENT ON ANY CANDIDATE IN A COMPETITION REQUIRED MR STRACK TO TAKE ALL THE NECESSARY STEPS TO ENSURE THAT THE INVITATION TO TAKE PART IN THE COMPETITION ACTUALLY ARRIVED AT THE PLACE WHERE HE WAS STAYING OR TO ENABLE HIM TO BE APPRISED OF IT IN GOOD TIME . IT WAS BECAUSE OF HIS FAILURE TO TAKE THOSE PRECAUTIONARY STEPS AND NOT BECAUSE OF THE SHORTNESS OF THE PERIOD OF NOTICE THAT MR STRACK WAS UNABLE TO TAKE PART IN THE WRITTEN TESTS IN COMPETITION NO PE/27/A .

9 SINCE THE PERIOD OF NOTICE OBSERVED BY THE EUROPEAN PARLIAMENT IS NOT OPEN TO CRITICISM , THE SELECTION BOARD LEGITIMATELY REFUSED TO PERMIT MR STRACK TO TAKE THE TESTS AFTER THE DATE SET FOR THEM . CONSEQUENTLY , THE APPLICATION FOR THE ANNULMENT OF THE SELECTION BOARD ' S DECISION MUST BE DISMISSED .

10 SINCE THE CLAIMS RELATING TO COMPENSATION FOR DAMAGE ARE BASED ON THE SAME SUBMISSIONS AND ARGUMENTS AS THOSE ADVANCED AGAINST THE VALIDITY OF THE CONTESTED DECISION , WHICH THIS JUDGMENT HOLDS TO BE LAWFUL , THOSE CLAIMS , ASSUMING THEM TO BE ADMISSIBLE , ARE NECESSARILY UNFOUNDED . AS A RESULT , THOSE CLAIMS MUST ALSO BE DISMISSED .

Decision on costs

COSTS

11 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE , THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . HOWEVER , UNDER ARTICLE 70 OF THE RULES OF PROCEDURE , IN PROCEEDINGS BROUGHT BY SERVANTS OF THE COMMUNITY , THE INSTITUTIONS ARE TO BEAR THEIR OWN COSTS .

Operative part

ON THOSE GROUNDS ,

THE COURT ( FIRST CHAMBER )

HEREBY :

( 1 ) DISMISSES THE APPLICATION ;

( 2 ) ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .