Opinion of Mr Advocate General Lenz delivered on 5 May 1988. - Luciano Simonella v Commission of the European Communities. - Officials - Internal competition. - Case 164/87.



European Court reports 1988 Page 03807



Opinion of the Advocate-General

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Mr President

Members of the Court,

1 . My Opinion on the action brought by Mr Simonella against the Commission concerning Internal Competition No COM/A/8/84, with which the Court will be familiar from other cases ( 64/86, 71 to 73/86 and 78/86 ) and which was open to officials in Category B wishing to be promoted to Category A, is as follows .

2 . 1 . Like the Commission I consider that the application, which is primarily for the annulment of the said internal competition, is inadmissible .

3 . We know that the applicant passed all the stages of the competition and that he failed only in the final oral test, whose result alone was determinative for inclusion in the reserve list and in which he did not obtain the minimum number of marks required . Accordingly it may be said that he has no interest in the complete annulment of the competition and that he may be entitled only to a review by the Court of the last step in the competition . If he is successful on that point, there is no reason, in my view, to declare all the results of the competition invalid . As far as the applicant' s interests are concerned, it would be sufficient for the refusal to include him in the reserve list to be annulled with the consequence that he would have to repeat, if necessary, the oral test ( which is what the applicant claims in the alternative ).

4 . 2 . As the Court is aware, the applicant' s first submission is that the notice of competition does not mention the marks to be awarded for qualifications, the written test and further training, which, in his view, is contrary to Article 1 of Annex III to the Staff Regulations, according to which the notice of competition should specify inter alia the kind of test and how it is to be assessed .

5 . In that respect I must first cite the case-law of the Court, according to which an action challenging an allegedly defective notice of competition which has not been directly challenged ( which presupposes a prior administrative complaint ) is no longer admissible if it is brought subsequently in connection with the criticism of steps taken pursuant to the notice ( see the judgment in Case 294/84 ( 1 )and most recently the judgment in Joined Cases 64/86, 71 to 73/86 and 78/86 ). ( 2 ) Moreover, the applicant has obviously no interest in pursuing that objection since the three matters relate to stages in which the applicant was successful and accordingly there is no act which adversely affects him .

6 . The same considerations apply to the argument that no indication was given of the way in which the written test and the qualifications were marked ( that is to say, the criteria which were determinative in that regard ) if by that argument the applicant means that no reasons were stated for the acts in question or that reasons should have been given in the notice sent to the applicant on 17 June 1986 ( informing him of the final result ). Since they were acts relating to earlier stages in which the applicant was successful, there was certainly no reason to state particular reasons for them since the Staff Regulations ( Article 25 ) require grounds to be stated only where a decision adversely affects an official .

7 . 3 . Accordingly, all that remains of the first submission is the argument that the criteria for assessing the oral test were not stated which, since it was expressly stated in the notice of competition that there would be a maximum of 50 marks for the oral test, amounts to saying that insufficient reasons were given in the contested notice .

8 . In my opinion, that argument cannot succeed either . The first important point in this regard is that the applicant was informed of his marks for the oral test ( his marks were such that he did not attain the requisite minimum laid down in the notice of competition ). The second important point is that the test papers which the defendant has produced show in detail how the oral test was conducted and how the various stages were marked ( in that respect I refer to my Opinion in Case 228/86 at paragraph 41 and the judgment of 24 March 1988 ( ECR 1819 ) at paragraph 53 ). Nevertheless, the applicant has not been able to show how the Selection Board infringed the applicable rules in assessing the oral test . Accordingly, it does not appear justified to declare the decision of 17 June 1986 void for lack of reasons .

9 . 4 . I can be similarly brief with regard to the second submission according to which extraneous considerations played a part in determining the result of the oral test and thus in determining the reserve list and the Selection Board was not concerned solely with selecting candidates of the highest standard as required by Article 27 of the Staff Regulations .

10 . That claim is not in fact supported by any "objective, relevant and consistent evidence" which the case-law ( see the judgment in Case 69/83 ) ( 3 )requires in such a case, that is to say when misuse of powers is alleged .

11 . That is certainly true of the applicant' s doubts about the Selection Board' s impartiality which he expresses when pointing out that the proportions of candidates from Luxembourg and Brussels on the reserve list was the same as the proportions emerging after the first stage of the competition ( examination of qualifications and written tests ). In regard to that argument and the allegation that the candidates' place of work was highly relevant in determining the reserve list, it must be remembered that when the written tests were marked the candidates' names were not known so that at that stage there could certainly not have been a deliberate selection according to the candidates' place of work . If the proportions of candidates from Luxembourg and Brussels who passed the oral test remained the same, it may be a pure coincidence, especially since it is hardly conceivable that a Selection Board comprising representatives of the Staff Committee could, as a body, have manipulated the results in the way suggested by the applicant .

12 . The same is true of the applicant' s observation that although six applicants from the Publications Office were admitted to the interviews, none of them had their names put on the reserve list . That fact in no way justifies the assumption that those candidates were excluded for irrelevant reasons, supported by the suspicion that the Selection Board may have been annoyed that three other officials from the Publications Office had brought court proceedings . The fact is that at the time when the interviews were concluded ( they went on until 6 June 1986 ) most of the actions brought in connection with the competition were brought by officials who had nothing to do with the Publications Office . The much more likely explanation is therefore that staff from the Publications Office ( in so far as they belong to Category B ) are less well prepared by the nature of their work and the experience they acquire there for promotion to Category A than staff from other fields .

13 . None of the applicant' s submissions can therefore be upheld . All things considered, I am led to the conclusion that the action brought by Mr Simonella should be dismissed, in part as inadmissible and in part as unfounded, and that an order for costs should be made in accordance with Article 70 of the Rules of Procedure .

(*) Translated from the German .

( 1 ) Judgment of the Court of 11 March 1986 in Case 294/84, Hermanus Adams and Others v Commission of the European Communities (( 1986 )) ECR 984 .

( 2 ) Judgment of the Court of 8 March 1988 in Joined Cases 64/86, 71 to 73 and 78/86 Giovanni Sergio and Others v Commission of the European Communities (( 1988 )) ECR 1399 .

( 3 ) Judgment of the Court of 21 June 1984 in Case 69/83 Charles Lux v Court of Auditors of the European Communities (( 1984 )) ECR 2447 .