Judgment of the Court (Second Chamber) of 1 April 1971. - Dietrich Rabe v Commission of the European Communities. - Case 76-69.



European Court reports 1971 Page 00297

Danish special edition Page 00069

Greek special edition Page 00747

Portuguese special edition Page 00103



Parties

Subject of the case

Grounds

Decision on costs

Operative part



Parties

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IN CASE 76/69

DIETRICH RABE, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, RESIDING AT 13 ALBERTLAAN, TERVUEREN, REPRESENTED BY PHILIPPE WAQUET, ADVOCATE AT THE CONSEIL D' ETAT AND THE COUR DE CASSATION OF FRANCE, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT, 34/B/IV RUE PHILIPPE-II, APPLICANT,

V

COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, PIERRE LAMOUREUX, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ITS LEGAL ADVISER, EMILE REUTER, 4 BOULEVARD ROYAL, DEFENDANT,

Subject of the case

APPLICATION FOR THE ANNULMENT OF INTERNAL COMPETITION NO COM/75 AND OF THE APPOINTMENT OF MR PETERS FOLLOWING THAT COMPETITION,

Grounds

1 THIS APPLICATION IS FOR THE ANNULMENT OF THE DECISION OF THE COMMISSION OF 30 APRIL 1969 APPOINTING MR PETERS TO THE POST OF HEAD OF DIVISION III-B-3 WHICH WAS THE SUBJECT MATTER OF NOTICE OF INTERNAL COMPETITION COM/75, AND FOR THE ANNULMENT OF THE COMPETITION ITSELF, INCLUDING THE NOTICE OF COMPETITION .

2 ( 1 ) THE APPLICANT CONSIDERS THAT THE SAID DECISION IS ILLEGAL BY REASON OF THE FACT THAT A MEMBER OF THE SELECTION BOARD FOR THE COMPETITION, MR TOFFANIN, ADDED TO THE FINAL REPORT OF THE SELECTION BOARD COMMENTS TO THE EFFECT THAT HE CONSIDERED, CONTRARY TO THE OPINION OF THE MAJORITY OF THE SELECTION BOARD, THAT TWO OTHER CANDIDATES SHOULD HAVE BEEN PLACED JOINTLY SECOND WITH THE APPLICANT ON THE SAID LIST, " WITHOUT REMOVING MY RESERVATIONS AS TO THE LATTER WITH REGARD TO THE CONTENTS OF HIS PERSONAL FILE ".

3 ON 10 MARCH 1969 THE ADMINISTRATION INVITED THE APPLICANT TO COMPLETE HIS APPLICATION FORM BY PRODUCING THE DEGREE IN BUSINESS STUDIES REFERRED TO IN THE FORM, AS WELL AS TESTIMONIALS ISSUED BY PREVIOUS EMPLOYERS .

4 IT EMERGES FROM THE EXPLANATIONS OF THE PARTIES THAT ALTHOUGH THE APPLICANT ACCEDED TO THIS REQUEST ON 18 MARCH 1969, THE ADMINISTRATION DID NOT SEND THE DOCUMENTS IN QUESTION TO THE SELECTION BOARD, WITH THE RESULT THAT THE LATTER DID NOT POSSESS THEM EITHER AT ITS FIRST MEETING ON 19 MARCH 1969 OR EVEN AT ITS SECOND AND FINAL MEETING ON 28 MARCH 1969, DURING WHICH IT DREW UP THE LIST OF SUITABLE CANDIDATES AS PRESCRIBED BY ARTICLE 30 OF THE STAFF REGULATIONS .

5 UNDER THE TERMS OF NOTICE OF COMPETITION COM/75 THIS COMPETITION WAS IN PRINCIPLE TO BE CONDUCTED " ON THE BASIS OF QUALIFICATIONS ", THE CANDIDATES HAVING TO SHOW " UNIVERSITY EDUCATION CONFIRMED BY A DEGREE " OR " EQUIVALENT EXPERIENCE ".

6 FOR THIS REASON, THE EXISTENCE AND PRODUCTION OF DEGREES AND TESTIMONIALS SUCH AS THOSE IN QUESTION MIGHT HAVE GREAT IMPORTANCE FOR THE PURPOSE OF DRAWING UP THE LIST OF SUITABLE CANDIDATES AND MAKING THE FINAL APPOINTMENT .

7 THE FACT THAT THE SELECTION BOARD COULD NOT EXAMINE THE DOCUMENTS IN QUESTION IS NOT THE FAULT OF THE APPLICANT BUT OF THE ADMINISTRATION .

8 IN THESE CIRCUMSTANCES, THE ABSENCE OF THE SAID DOCUMENTS CONSTITUTES A PROCEDURAL DEFECT ON WHICH THE APPLICANT IS ENTITLED TO RELY IN THIS APPLICATION .

9 ( 2 ) THE APPLICANT CLAIMS THAT THE COMPETITION PROCEDURE IS ALSO VITIATED BY THE FACT, WHICH IS UNCONTESTED, THAT ANOTHER MEMBER OF THE SELECTION BOARD, MR DESBOIS, ALTHOUGH NOT PRESENT AT THE MEETING OF THE SELECTION BOARD OF 28 MARCH 1969, NEVERTHELESS SIGNED ITS REPORT AND DECLARED HIMSELF TO BE IN AGREEMENT WITH THE CONCLUSIONS OF THE SELECTION BOARD .

10 THIS MEETING WAS DESIGNED IN PARTICULAR TO ENABLE THE MEMBERS OF THE SELECTION BOARD, BY MEANS OF AN INTERVIEW WITH CANDIDATES WHICH WAS INTENDED TO " EXAMINE REFERENCES REGARDING THEIR EMPLOYMENT ", TO COME TO A CLEAR CONCLUSION AS TO THE QUALIFICATIONS AND PERSONALITY OF EACH OF THEM . IN THESE CIRCUMSTANCES, BY AGREEING EXPRESSLY WITH THE CONCLUSIONS OF THE SELECTION BOARD, MR DESBOIS GAVE THE IMPRESSION OF BEING AS WELL INFORMED ABOUT EACH OF THE CANDIDATES AS THE OTHER MEMBERS OF THE SELECTION BOARD, WHEREAS IN REALITY HE WAS NOT PRESENT AT THE INTERVIEW WHICH, IN THE MIND OF THE SELECTION BOARD, WAS AN IMPORTANT FACTOR IN ASSESSING THE CANDIDATES .

11 BECAUSE OF THIS FACT ALSO, THE CONDUCT OF THE COMPETITION IN QUESTION WAS ILLEGAL .

12 THE POSSIBILITY CANNOT BE RULED OUT THAT IF ALL THE ILLEGAL ACTS MENTIONED ABOVE HAD NOT BEEN COMMITTED THE SELECTION BOARD, AS WELL AS THE APPOINTING AUTHORITY, MIGHT HAVE COME TO A DIFFERENT DECISION .

13 INTERNAL COMPETITION COM/75 AND THE DECISION APPOINTING MR PETERS TO THE POST IN DISPUTE MUST THEREFORE BE ANNULLED ON THE GROUND OF INFRINGEMENT OF ESSENTIAL PROCEDURAL REQUIREMENTS, THERE BEING NO NEED TO EXAMINE WHETHER THE FURTHER SUBMISSIONS ADVANCED BY THE APPLICANT ARE WELL-FOUNDED .

Decision on costs

14 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .

15 THE DEFENDANT HAS FAILED IN ITS SUBMISSIONS .

Operative part

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . ANNULS INTERNAL COMPETITION COM/75 AND THE DECISION OF THE COMMISSION OF 30 APRIL 1969 APPOINTING MR PETERS TO THE POST OF HEAD OF DIVISION III-B-3;

2 . ORDERS THE DEFENDANT TO BEAR THE COSTS OF THE ACTION .