Judgment of the Court (Second Chamber) of 6 July 1988. - Marie-Élizabeth Agazzi Léonard v Commission of the European Communities. - Officials - Internal competition. - Case 181/87.



European Court reports 1988 Page 03823



Summary

Parties

Grounds

Decision on costs

Operative part



Keywords

++++

1 . Officials - Action - Action brought against a decision of a selection board - Submissions alleging irregularities in the competition notice not contested in good time - Inadmissible

( Staff Regulations of Officials, Art . 91 )

2 . Officials - Recruitment - Competition - Competition based on qualifications and tests - Organization of the tests - Organization in the light of recruitment needs and not of the specific training and abilities of the candidates

( Staff Regulations of Officials, Art . 29 ( 1 ) )

Summary

1 . An official may not, in support of an action brought against a decision of a selection board, rely on submissions alleging irregularities in the competition notice if he did not challenge in good time the provisions of a competition notice which, in his view, adversely affects him . Were

it otherwise, it would be possible to challenge a competition notice long after it had been published and after most, or all, of the operations carried out in connection with the competition had already taken place, and that would be contrary to the principles of legal certainty, legitimate expectation and sound administration .

The situation of an applicant who relies on irregularities the origin of which may be found in the wording of the competition notice but which occurred in the course of the competition is different .

2 . The purpose of the competition procedure provided for in Article 29 ( 1 ) cannot be other than to fill vacant posts by ensuring that candidates most suitable for the posts to be filled are selected .

It follows that the tests must be organized in the light of the requirements of the posts to be filled and not of the candidates' specific training and professional abilities .

Parties

In Case 181/87

Marie Elisabeth Agazzi Léonard, an official of the Commission, represented by Giuseppe Marchesini, Avvocato with the right of audience before the Corte de Cassazione of the Italian Republic, Milan, with an address for service in Luxembourg at the Chambers of Victor Biel, 18A rue des Glacis,

applicant,

v

Commission of the European Communities, represented by Marie Wolfcarius, a member of its Legal Department, acting as Agent, with an address for service in Luxembourg at the office of G . Kremlis, also a member of the Commission' s Legal Department, Jean Monnet Building, Kirchberg,

defendant,

APPLICATION for the annulment of the decision of the Selection Board in internal competition COM/A/8/84 not to place the applicant' s name on the list of suitable candidates,

THE COURT ( Second Chamber )

composed of : O . Due, President of the Chamber, K . Bahlmann and T . F . O' Higgins, Judges,

Advocate General : C . O . Lenz

Registrar : D . Louterman, Administrator

having regard to the Report for the Hearing and further to the hearing on 19 April 1988,

after hearing the opinion of the Advocate General delivered at the sitting on 5 May 1988,

gives the following

Judgment

Grounds

1 By an application lodged at the Court Registry on 10 June 1987, Marie Elisabeth Agazzi Léonard, an official in Grade B 2 of the Commission of the European Communities, brought an action for the annulment of the decision of the Selection Board in internal competition COM/A/8/84 not to place her name on the list of suitable candidates .

2 According to the documents before the Court, the applicant has been an official of the Commission since 1966 and is assigned to a post in the medical service of the Joint Research Centre of Ispra .

3 In 1978, the applicant obtained a degree in bio-medical technology from the University of Louvain .

4 Article 45 ( 2 ) of the Staff Regulations provides that an official may be transferred from one service to another or promoted from one category to another only on the basis of a competition . However, under the second paragraph of Article 98 of the Staff Regulations, that provision does not apply to officials who occupy a post calling for scientific or technical qualifications and who are paid from appropriations in the research and investment budget .

5 Officials in the scientific or technical services may be transferred from Category B to Category A in accordance with procedural rules laid down by the Commission .

6 In its judgment of 20 October 1977 in Case 5/76 ( Jaensch v Commission (( 1977 )) ECR 1817 ) the Court held that the limitation of that possibility of changing category without a competition to officials paid from appropriations in the research and investment budget did not constitute a breach of the principle of equal treatment of officials owing, in particular, to the insecurity of posts in research programmes .

7 It is also apparent from the documents before the Court that the post occupied by the applicant in the medical service at Ispra is a post which calls for scientific or technical qualifications and which was, until 1 January 1973, paid from appropriations in the research and investment budget .

8 With effect from the abovementioned date, the medical service at Ispra was, like the other medical services of the Commission, attached to the Directorate-General for Personnel and Administration and, for that reason, the officials assigned to that service have since been paid from appropriations in the operating budget .

9 Claiming that that administrative reorganization deprived her of the opportunity to change category in accordance with the procedure for officials in the scientific or technical services, the applicant, on 9 January 1979, submitted a request under Article 90 ( 1 ) of the Staff Regulations for the holding of a competition or for her transfer to a post paid from appropriations in the research and investment budget . By letter of 26 February 1979, the Commission rejected that request .

10 On several subsequent occasions, the applicant applied for a change of category under the procedure adopted by the Commission for officials in the scientific or technical services; her application was never taken into consideration . Finally, encouraged by her superiors, she applied on 31 July 1984 to take part in internal competition COM/A/8/84 organized for officials paid out of the operating budget .

11 Internal competition COM/A/8/84, held on the basis of qualifications and tests, was organized by the Commission for the purpose of constituting a reserve of administrators ( Grades A 7 and A 6 ). Only officials classified in Grades B 3 to B 1 since 1980 were eligible to take part, since the purpose of the competition was to enable officials in Category B to be appointed to Category A .

12 The competition comprised three stages : a preliminary selection stage, a training stage and, finally, an oral test .

13 At the end of the first stage, the Selection Board named the candidates considered the most suitable to go on to the next stage on the basis of the candidates' personal files and the result of a written paper designed to test their general knowledge and judgment .

14 The candidates permitted to proceed to the second stage of the competition took part in a compulsory training course, organized and defined by the Selection Board, which took place over a period of four weeks and dealt with Community economics and finances, modern management methods and operating procedures and general administrative techniques and operating procedures .

15 The candidates who had completed the training stage then took part in an oral test which, according to the competition notice, was to enable the Selection Board to assess their qualifications and their ability to carry out Category A duties . The test was marked out of 50, for which a minimum of 30 marks was required for inclusion on the list of suitable candidates .

16 By letter of 17 June 1986, the applicant was informed that her name had not been placed on the list of suitable candidates since she had obtained only 26.2 marks .

17 On 15 September 1986, the applicant submitted a complaint against that decision under Article 90 ( 2 ) of the Staff Regulations . The Commission rejected that complaint in a letter of 27 February 1987 .

18 Reference is made to the Report for the Hearing for a fuller account of the facts of the case 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 .

Admissibility

19 The Commission considers that the applicant' s submissions are inadmissible inasmuch as they are based on a situation arising from the transfer of her post to the operating budget . The consequences for her career of that transfer constitute the act adversely affecting her on which is based her request of 9 January 1979, rejected by the Commission . Since she did not at that time submit a complaint, she cannot now raise the same issue again .

20 It is sufficient to note in that regard that, on the one hand, the subject-matter of these proceedings is quite different from that of the request submitted by the applicant in 1979 and, on the other, that there is no reason why the situation which underlay that request should not be relied upon against a further measure that is open to challenge .

21 The Commission also contends that the applicant' s submissions are inadmissible inasmuch as they relate to the detailed arrangements for the conduct of the competition as set out in the competition notice, since the applicant did not contest that notice in good time .

22 In that regard, it should be borne in mind that, according to the Court' s case-law ( see the judgment of 11 March 1986 in Case 294/84 Adams and Others v Commission (( 1986 )) ECR 977 ), an official must challenge in good time the provisions of a competition notice which in his view, adversely affects him on the ground that it is irregular . Were it otherwise, it would be possible to challenge a competition notice long after it had been published and after most or all of the operations carried out in connection with the competition had already taken place, and that would be contrary to the principles of legal certainty, legitimate expectation and sound administration .

23 However, it also follows from the Court' s case-law ( see the judgment of 8 March 1988 in Joined Cases 64, 71 to 73 and 78/86 Sergio and Others v Commission (( 1988 )) ECR 1399 ) that failure to challenge a competition notice within the time-limit laid down does not prevent an applicant from relying on irregularities occurring in the course of the competition, even if the origin of those irregularities may be found in the wording of the competition notice .

24 It follows that whilst those submissions must be rejected in so far as they relate to the irregularity of the competition notice as such, they must be considered in relation to the substance of the case in so far as they relate to irregularities vitiating the conduct of the competition itself .

Substance of the case

25 In her first submission, the applicant claims that the competition infringed the principle of sound administration and the duty to have regard to the interests of officials since the way in which it was organized did not take account of the fact that candidates with scientific training performing duties of a scientific nature were taking part . That should have been done because the purpose of an internal competition such as the one in this case is to offer reasonable career prospects to officials stuck in Category B and because officials in the scientific service paid willy-nilly out of the operating budget are precisely in such a situation .

26 The Commission contends that the purpose of an internal competition is not to unblock careers but to fill posts and that in this case the competition was intended to constitute a reserve of administrators for all of the Commission' s departments .

27 With regard to this first submission, it is sufficient to point out that, in accordance with Article 29 ( 1 ) of the Staff Regulations, the purpose of an internal competition procedure cannot be other than to fill vacant posts in an institution and that, consequently, that procedure must ensure that candidates most suitable for the posts to be filled are selected . It follows that the specific training of certain candidates and their ability to perform the duties to which they are assigned are in themselves irrelevant to the way in which the competition must be organized . It is an established and undisputed fact that the competition in question was held to constitute a reserve of administrators whose duties, according to the competition notice, would be the carrying out, on the basis of general guidelines, of administrative, advisory and supervisory duties relating to the Commission' s activities and it is not contested that the competition was arranged in such a way as to enable the candidates' abilities to perform such duties to be assessed . That submission must therefore be rejected .

28 In her second submission, the applicant claims that the interview held in connection with the competition infringed the principle of non-discrimination since the way in which it was arranged suited candidates with administrative training . Candidates with scientific training were therefore placed at an unfair disadvantage .

29 The Commission points out that the interview involved four stages . The candidate first replied to a general question, drawn by lot . The applicant drew a question entitled "The conquest of space ". The candidate then explained his training and his past and present work and then replied to questions on the role of his work within the Community context . Those two stages should have allowed the applicant to display her specific qualifications . Finally, the candidate replied to one or two questions put by members of the Selection Board in turn; those questions related to Community policies but excluded questions concerning the candidate' s field of work . The applicant had to choose between a question entitled "The role of the European Investment Bank" and a question entitled "Surpluses in the common agricultural policy" and chose to reply to the first question .

30 With regard to the second submission, it must be pointed out that, according to the competition notice, the interview was intended to enable the Selection Board to assess the candidates' qualifications and their ability to perform duties Category A duties which, as indicated, consisted of the performance, on the basis of general guidelines, of administrative, advisory and supervisory duties relating to the Commission' s activities .

31 Under those circumstances, it cannot be objected that the Selection Board for the competition organized the oral test especially in order to be able to assess the ability of the candidates to perform administrative duties . It was not open to the Selection Board to take account of the specific qualifications of a particular candidate in a field not related to administration . This submission is also therefore unfounded .

32 In her third submission, the applicant claims that the Selection Board infringed Article 27 of the Staff Regulations, according to which recruitment is to be directed to securing for the institution the services of officials of the highest standard of ability . By failing to take account of the scientific abilities of some of the candidates, the Selection Board overlooked the fact that certain posts in Category A require such qualifications .

33 In that regard, it is sufficient to observe that the competition in question was a general competition intended to permit the constitution of a reserve of administrators capable of performing Category A duties in any of the Commission' s departments . It was not therefore for the Selection Board to take account of the specific qualifications necessary for specific posts . That submission must therefore be rejected as well .

34 Finally, in her fourth submission, the applicant claims that the contested decision infringed her legitimate expectation regarding the problem of her classification .

35 On that point, it must be admitted that the applicant may have reasons for considering herself the victim of an unsatisfactory administrative situation . Her participation in the procedures for transfer to Category A provided for in regard to officials occupying posts similar to hers was made impossible only by the transfer in 1973 of her post to the operating budget . However, it was only in 1978 that she obtained the qualifications that she needed in order to be able to take part in those procedures . Consequently, she could not have held any reasonable hopes of being transferred to Category A without taking part in a competition .

36 As regards the competition in question, it should be pointed out that since it was a general competition for the purpose of filling posts in all of the Commission' s departments, the encouragement to take part in the competition which she received from her superiors could not give rise to a legitimate expectation that her scientific qualifications would be taken into account by the Selection Board . Therefore the submission based on legitimate expectation is also without foundation .

Decision on costs

Costs

37 Under the terms of Article 69 ( 2 ) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs . However, Article 70 of those Rules provides that institutions are to bear their own costs in proceedings brought by officials or servants of the European Communities .

Operative part

On those grounds,

THE COURT ( Second Chamber )

hereby :

( 1 ) Dismisses the application;

( 2 ) Orders the parties to bear their own costs .