Judgment of the Court (Second Chamber) of 27 March 1985. - Ilias Kypreos v Council of the European Communities. - Recruitment competition Refusal to include in the list of suitable candidates. - Case 12/84.



European Court reports 1985 Page 01005



Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

OFFICIALS - RECRUITMENT - COMPETITION - COMPETITION BASED ON TESTS - SELECTION BOARD ' S DISCRETION - JUDICIAL REVIEW - LIMITS

Parties

IN CASE 12/84

ILIAS KYPREOS , RESIDING IN ATHENS , REPRESENTED BY ELENI KOMBOTI , OF THE ATHENS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE HOME OF MRS ELENI ALIMONAKI , 57/59 RUE ANTOINE-MEYER ,

APPLICANT ,

V

COUNCIL OF THE EUROPEAN COMMUNITIES , REPRESENTED BY JOHN CARBERY , ADVISER IN THE LEGAL DEPARTMENT OF THE GENERAL SECRETARIAT , ACTING AS AGENT , ASSISTED BY CHRISTOS MAVRAKOS , A MEMBER OF THE LEGAL DEPARTMENT OF THE GENERAL SECRETARIAT , ACTING AS CO-AGENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF H . J . PABBRUWE , DIRECTOR OF THE LEGAL DEPARTMENT OF THE EUROPEAN INVESTMENT BANK , 100 BOULEVARD KONRAD-ADENAUER ,

DEFENDANT ,

Subject of the case

APPLICATION FOR THE ANNULMENT OF THE COUNCIL ' S REFUSAL TO PLACE THE APPLICANT ON THE LIST OF SUITABLE CANDIDATES ESTABLISHED AS A RESULT OF GENERAL COMPETITION NO C/255 HELD FOR THE PURPOSE OF CONSTITUTING A RESERVE LIST FOR THE RECRUITMENT OF GREEK-LANGUAGE TYPISTS ,

Grounds

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 10 JANUARY 1984 , ILIAS KYPREOS , RESIDING IN ATHENS , BROUGHT AN ACTION AGAINST THE COUNCIL OF THE EUROPEAN COMMUNITIES FOR THE ANNULMENT OF THAT INSTITUTION ' S REFUSAL TO INCLUDE HIM IN THE LIST OF SUITABLE CANDIDATES DRAWN UP AS A RESULT OF OPEN COMPETITION COUNCIL/C/255 HELD FOR THE PURPOSE OF CONSTITUTING A RESERVE LIST FOR THE RECRUITMENT OF GREEK-LANGUAGE TYPISTS ( OFFICIAL JOURNAL , GREEK EDITION , C 8 , 12 JANUARY 1983 ).

2 IN THE NOTICE OF COMPETITION , IT WAS STATED INTER ALIA THAT CANDIDATES WERE REQUIRED ' TO POSSESS THE ABILITIES NECESSARY TO PERFORM THOSE DUTIES , AS WELL AS A THOROUGH KNOWLEDGE OF THE GREEK LANGUAGE AND A SATISFACTORY KNOWLEDGE OF ANOTHER OFFICIAL LANGUAGE OF THE COMMUNITIES ' . IT IS NOT CONTESTED THAT MR KYPREOS INDICATED IN HIS APPLICATION THAT HE HAD A ' GOOD KNOWLEDGE ' OF THE ENGLISH LANGUAGE IN TERMS OF HIS ABILITY TO READ , WRITE AND SPEAK IT .

3 INITIALLY , MR KYPREOS WAS ADMITTED TO THE COMPETITION AND TOOK PART IN THE WRITTEN TESTS , WHICH TOOK PLACE IN ATHENS ON 6 SEPTEMBER 1983 . BY LETTER OF 31 OCTOBER 1983 , HE WAS INFORMED THAT HE HAD BEEN ADMITTED TO THE ORAL TESTS , WHICH TOOK PLACE ON 18 NOVEMBER 1983 , ALSO IN ATHENS . IT EMERGES FROM THE COURT ' S EXAMINATION OF THE CASE THAT , WHEN THE LANGUAGE TEST WAS HELD , THE SELECTION BOARD NOTED THAT MR KYPREOS DISPLAYED A NOTABLE IGNORANCE OF THE ENGLISH LANGUAGE , SINCE HE WAS NOT EVEN ABLE TO UNDERSTAND THE QUESTIONS PUT TO HIM . CONSEQUENTLY , BY A LETTER OF 2 DECEMBER 1983 , WHICH IS THE SUBJECT OF THESE PROCEEDINGS , THE SELECTION BOARD INFORMED MR KYPREOS THAT HE HAD NOT BEEN INCLUDED IN THE LIST OF SUITABLE CANDIDATES . THE COUNCIL ADMITS THAT , AS A RESULT OF AN OVERSIGHT , THE ADMINISTRATION OMITTED TO INFORM THE CANDIDATE IN THAT LETTER OF THE REASON FOR HIS EXCLUSION .

4 ON 10 JANUARY 1984 , MR KYPREOS LODGED AN APPLICATION FOR THE ANNULMENT OF THE SELECTION BOARD ' S DECISION , CLAIMING THAT NO REASONS WHATEVER WERE GIVEN FOR IT AND THAT IN SUBSTANCE IT WAS UNJUSTIFIED . THE APPLICANT ALSO CONSIDERS THAT HE WAS EXCLUDED FROM THE LIST OF SUITABLE CANDIDATES FOR POLITICAL REASONS SINCE HE HAD COME TO PUBLIC NOTICE BY BEING A CANDIDATE IN PARLIAMENTARY ELECTIONS IN GREECE AND , IN 1981 , IN THE ELECTION FOR THE EUROPEAN PARLIAMENT .

5 SINCE THE APPLICATION TO THE COURT HAD THE EFFECT OF DRAWING THE COUNCIL ' S ATTENTION TO THE FACT THAT NO REASONS HAD BEEN GIVEN FOR ITS DECISION , IT EXPLAINED TO THE APPLICANT , BY LETTER OF 22 FEBRUARY 1984 , WHY HE HAD BEEN UNSUCCESSFUL AND OFFERED TO PAY HIS LAWYER ' S FEES IF HE WITHDREW HIS APPLICATION . IN HIS REPLY DATED 28 FEBRUARY 1984 , MR KYPREOS INSISTED HOWEVER THAT HIS CASE BE RECONSIDERED BY THE SELECTION BOARD AND THAT HIS MARKS BE RE-EXAMINED . THE COUNCIL ' S DIRECTOR OF PERSONNEL THEN CONSULTED THE SELECTION BOARD FOR THE COMPETITION AGAIN . AFTER DELIBERATING THE SELECTION BOARD DECIDED UNANIMOUSLY NOT TO CHANGE THE MARKS GIVEN TO MR KYPREOS AND TO MAINTAIN ITS PREVIOUS DECISION . IN HIS LETTER OF 23 MARCH 1984 , THE CHAIRMAN OF THE SELECTION BOARD POINTS OUT THAT THE BOARD CONSIDERED THAT IT HAD ALREADY BEEN TOO GENEROUS IN GIVING MR KYPREOS A MARK OF 5 OUT OF 20 FOR THE ORAL LANGUAGE TEST . BY LETTER OF 29 MARCH 1984 , THE COUNCIL INFORMED THE APPLICANT OF THE SELECTION BOARD ' S DECISION .

6 AFTER RECEIVING THOSE EXPLANATIONS , MR KYPREOS CONTINUED WITH HIS ACTION , CLAIMING THAT THE LANGUAGE TEST HAD ONLY BEEN OPTIONAL , CONTENDING ONCE AGAIN THAT THE SELECTION BOARD ' S ASSESSMENT WAS NOT WELL FOUNDED AND REPEATING HIS ACCUSATION THAT THE REASON FOR HIS EXCLUSION WAS OF A POLITICAL NATURE .

7 SINCE THE APPLICANT DID NOT APPEAR AT THE HEARING , THE COUNCIL LIMITED ITSELF TO CONFIRMING THE ARGUMENTS AND CONCLUSIONS CONTAINED IN ITS PLEADINGS .

8 IT MUST IN THE FIRST PLACE BE STATED THAT THE COUNCIL IS RIGHT IN ITS CONTENTION THAT , AS A RESULT OF THE EXPLANATIONS GIVEN IN THE COURSE OF THE PROCEEDINGS , THE SUBMISSION THAT NO REASONS WERE GIVEN FOR THE DECISION IS NOW DEVOID OF PURPOSE .

9 WITH REGARD TO THE NATURE OF THE TESTS PROVIDED FOR IN THE NOTICE OF COMPETITION , IT MUST BE NOTED THAT , ACCORDING TO THE VERY TERMS OF SECTION IV ( B ) OF THAT NOTICE , THE ORAL LANGUAGE TEST WAS COMPULSORY AND ONLY THE WRITTEN TEST WAS OPTIONAL .

10 WITH REGARD TO THE APPLICANT ' S OBSERVATIONS ON THE RESULT OF HIS ORAL ENGLISH-LANGUAGE TEST , IT MUST BE OBSERVED THAT HE HAS MISUNDERSTOOD THE REQUIREMENTS OF MULTI-LINGUAL SERVICES SUCH AS THOSE OF THE COMMUNITY . THE REQUIREMENT OF A SUFFICIENT KNOWLEDGE OF ONE OF THE COMMUNITY ' S OFFICIAL LANGUAGES , OTHER THAN THE CANDIDATE ' S MOTHER TONGUE , CONSTITUTED A MINIMUM REQUIREMENT WHICH THE SELECTION BOARD FOR THE COMPETITION HAD TO ASSESS WITH THE RIGOUR IMPOSED BY THE NEEDS OF COMMUNICATION WITHIN THE COMMUNITY ADMINISTRATION . IT IS NOT FOR THE COURT TO REVIEW THE ASSESSMENTS WHICH WERE MADE IN COMPLETE INDEPENDENCE BY THE SELECTION BOARD ON THAT SUBJECT AND WHICH DISCLOSE A MANIFEST LACK OF LINGUISTIC ABILITY ON THE PART OF THE CANDIDATE IN QUESTION .

11 FINALLY , THE COMPLAINTS OF A POLITICAL CHARACTER WHICH THE APPLICANT MADE REGARDING THE SELECTION BOARD APPEAR TO BE TOTALLY WITHOUT FOUNDATION .

12 FOR ALL THOSE REASONS THE APPLICATION MUST BE DISMISSED .

Decision on costs

COSTS

13 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE , THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS .

14 HOWEVER , ARTICLE 70 OF THE RULES OF PROCEDURE PROVIDES THAT IN PROCEEDINGS COMMENCED BY SERVANTS OF THE COMMUNITIES , INSTITUTIONS ARE TO BEAR THEIR OWN COSTS . AS A CANDIDATE IN A COMPETITION HELD BY A COMMUNITY INSTITUTION , THE APPLICANT IS ENTITLED TO THE BENEFIT OF THAT PROVISION .

Operative part

ON THOSE GROUNDS ,

THE COURT ( SECOND CHAMBER )

HEREBY :

( 1 ) DISMISSES THE APPLICATION ;

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