Judgment of the Court (Third Chamber) of 13 July 1989. - Luis Caturla-Poch and Félix de la Fuente Pascual v European Parliament. - Officials - Exclusion from an internal competition. - Joined cases 361/87 and 362/87.



European Court reports 1989 Page 02471



Summary

Parties

Grounds

Decision on costs

Operative part



Keywords

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1 . Officials - Actions - Submissions - Misuse of powers - Concept

2 . Officials - Recruitment - Competitions - Selection board - Reasoned report to be drawn up - Subject-matter

( Staff Regulations of Officials, Annex III, Art . 5, sixth paragraph )

Summary

1 . A decision is vitiated by a misuse of powers only if it appears, on the basis of objective, relevant and consistent evidence, to have been taken for purposes other than those stated .

2 . The requirement laid down in the sixth paragraph of Article 5 of Annex III to the Staff Regulations that selection boards in competitions draw up a reasoned report to be forwarded to the appointing authority with the list of suitable candidates, is intended to enable the appointing authority to exercise its discretion with judgment, which means that it needs to be informed both of the general criteria employed by the selection board and of the manner in which they were applied by the board to the persons appearing on the list of suitable candidates .

Parties

In Joined Cases 361 and 362/87

Luis Carturla-Poch and Félix de la Fuente Pascual, officials of the European Parliament, represented by Aloyse May, of the Luxembourg Bar, assisted by Victor Biel, of the Luxembourg Bar, with an address for service in Luxembourg at the Chambers of Aloyse May, 31 Grand-Rue,

applicants,

v

European Parliament, represented by Francesco Pasetti Bombardella, Jurisconsult, and Manfred Peter, Head of Division, acting as Agents, assisted by Alex Bonn, of the Luxembourg Bar, with an address for service in Luxembourg at the Chambers of Alex Bonn, 22 côte d' Eich,

defendant,

APPLICATION for the annulment of the decision of the Selection Board in Internal Competition on the basis of qualifications No LA/103, held for the purpose of filling the posts of Heads of the Portuguese and Spanish Translation Divisions, which excluded them from the list of suitable candidates, or in the alternative for the annulment of all the steps taken in the competition in question,

THE COURT ( Third Chamber )

composed of F . Grévisse, President of the Chamber, J . C . Moitinho de Almeida and M . Zuleeg, Judges,

Advocate General : J . Mischo

Registrar : H . A . Ruehl, Principal Administrator

having regard to the Report for the Hearing and further to the hearing on

2 March 1989,

after hearing the Opinion of the Advocate General delivered at the sitting on 18 April 1989,

gives the following

Judgment

Grounds

1 By applications lodged at the Court Registry on 4 December 1987, Luis Caturla-Poch and Félix de la Fuente Pascual, officials of the European Parliament, brought actions seeking the annulment of the decisions which were notified to them on 27 January 1987 and by which the Selection Board in Internal Competition on the basis of qualifications No LA/103, held for the purpose of filling the posts of Heads of the Spanish and Portuguese Translation Divisions, excluded the applicants from the list of suitable candidates, or in the alternative, the annulment of all the steps taken in the competition in question .

2 The applicants submitted complaints against those decisions on 27 April 1987 and 15 April 1987 respectively . The complaints were rejected by letters of 8 September 1987 from the President of the European Parliament . The President of the Parliament indicated the various criteria used by the Selection Board for the purpose of assessing the candidates' qualifications and stated that at the conclusion of that assessment the applicants had obtained a mark of less than 24 out of 40, due in particular to the mark which they had been awarded for "organizing abilities ".

3 Reference is made to the Report for the Hearing for an account of the facts of the case, the course of the procedure 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 .

4 In support of their applications, the applicants rely on four submissions : infringement of the procedure laid down in the sixth paragraph of Article 5 of Annex III to the Staff Regulations, breach of the principle of equal treatment, misuse of powers and failure to state the reasons for the contested decision .

5 At the hearing the applicants also submitted that the assessment criteria published in the notice of competition did not correspond to the assessment criteria used by the Selection Board . Article 42(2 ) of the Rules of Procedure provides that no fresh issue may be raised in the course of proceedings . There is therefore no need to rule on that submission .

The first submission

6 The applicants claim that the Selection Board determined how candidates' qualifications were to be assessed after drawing up the list of candidates admitted to the competition, infringing the sixth paragraph of Article 5 of Annex III to the Staff Regulations .

7 The first paragraph of Article 5 provides that "after examining (( the )) files, the Selection Board shall draw up a list of candidates, who meet the requirements set out in the notice of competition"; the third paragraph of the same article states that "where the competition is on the basis of qualifications, the Selection Board shall, after determining how candidates' qualifications are to be assessed, consider the qualifications of the candidates appearing on the list ".

8 It follows from those provisions that the Selection Board must first of all draw up the list of candidates admitted to the competition . It then determines how the candidates' qualifications are to be assessed and on the basis of the criteria chosen it assesses the qualifications of the candidates admitted to the competition . It must be stated that the Selection Board complied with those requirements .

9 Finally, it must be pointed out that the judgment in Case 143/84 Vlachou v Court of Auditors (( 1986 )) ECR 459 cited by the applicants in support of that submission relates to a situation which is different from the situation in the present case . The applicants do not maintain that the Selection Board decided how the candidates' qualifications were to be assessed on the basis of the candidates' qualifications so as to treat certain candidates favourably and others unfavourably, which would have constituted a breach of the principle of equal treatment .

10 It follows from the above considerations that the first submission must be rejected .

The second submission

11 The applicants claim that the Selection Board breached the principle of equal treatment when it assessed the qualifications and experience of the candidates admitted to the competition .

12 Mr Caturla-Poch claims that he obtained 12 points for more than 18 years of professional experience . It follows that 0.67 points were given for each year of experience and that, consequently, the successful candidate, who had considerably less experience than the applicant, could not have achieved the 11 points he was awarded . The applicant points out, moreover, that his organizing abilities were considered to be good in two probationary reports and that he was entrusted with setting up the documentation service of the Spanish Translation Division . Taking those factors into consideration, the Selection Board could not have awarded him only a single point for his organizing abilities .

13 Mr de la Fuente claims that as he was placed first in Competition No 84/0341/01, the tests for which were held in 1985, his exclusion from the list of suitable candidates of the competition in question can only be attributed to the Selection Board' s assessing candidates' qualifications on different criteria . He states that it is difficult to understand how an official who spent eight years directing the social and religious services of an institution for Spanish immigrants in Germany and was entrusted with setting up and coordinating the work of the Spanish section of the Minutes Division could receive only 5.5 points for his organizing abilities .

14 It must be stated with regard to "specific professional experience" that the Selection Board could, on the basis of the information obtained from assessing qualifications and from the interviews with the candidates, for which the notice of vacancy makes provision, take into consideration not only the number of years of employment, but also the nature of that employment . For example, experience translating Community documents could have been considered as experience which was more appropriate to the performance of the duties in question than experience which was of a longer duration but which was confined to subjects which did not have the same close relationship with the work of the European Parliament .

15 It follows that the applicants' arguments based on a comparison between the length of their professional experience and the length of the experience of other candidates, cannot be accepted .

16 With regard to "organizing abilities", it must be stated that according to the notice of competition, the duties of the Head of the Spanish Translation Division include the management of the translators and of the secretarial staff, the planning and allocation of work and the practical organization of the service . Those duties require organizing abilities which are different from those required for translating or revising, or for any of the tasks performed by the applicants, that is to say the setting up of a documentation service such as the Spanish Translation Division' s documentation service, and the coordination of a section of the Minutes Division .

17 With regard to Mr Caturla-Poch, it is true that he was awarded only one point on a scale from zero to 15 for his organizing abilities . However, taking into account the reasons given above and the information obtained during the interview, the Selection Board did not commit a manifest error by considering that he did not have all the qualities required to fill the post in question despite the qualifications he produced .

18 With regard to Mr de la Fuente, it must also be accepted that, taking into consideration the abovementioned reasons, a slightly below-average mark is not sufficient evidence that the Selection Board has committed an error of assessment .

19 The Court' s consideration of the documents before it has not disclosed a manifest error of appraisal by the Selection Board giving rise to unequal treatment of the candidates . It follows that the second submission must also be rejected .

The third submission

20 As evidence of a misuse of powers, Mr Caturla-Poch alleges that he obtained 23 points, which was one point less than the minimum required to be included on the list of suitable candidates . Mr de la Fuente points out that the successful candidate did not even take part in the competition on the basis of qualifications and tests in which he himself was placed first . Moreover, the successful candidate verbally acknowledged that there had been a misuse of powers .

21 The Court has consistently held ( see inter alia the judgment in Case 69/83 Lux v Court of Auditors (( 1984 )) ECR 2447 ) that a decision is vitiated by a misuse of powers only if it appears, on the basis of objective, relevant and consistent evidence, to have been taken for purposes other than those stated .

22 The circumstances relied on by the applicants do not show that the Selection Board' s aim was anything other than legitimate . Consequently, the submission that there was a misuse of powers must also be rejected .

The fourth submission

23 It must be pointed out first of all that the fourth submission is not that the Selection Board' s decision did not contain a statement of reasons for the applicants, but only that it did not contain one for the appointing authority .

24 As the Court held in its judgment in Case 21/65 Morina v Parliament (( 1965 )) ECR 1033, the requirement that the report be reasoned, laid down in Article 5 of Annex III to the Staff Regulations, is intended to enable the appointing authority to exercise its discretion with due judgment, which means that it needs to be informed of both the general criteria employed by the selection board and the manner in which they were applied by the board to the persons appearing on the list of suitable candidates .

25 It must be pointed out that the Selection Board' s report indicated, in the present case, the points obtained by the candidates for each of the assessment criteria .

26 It follows that the submission based on a failure to provide a statement of reasons must be rejected, and that therefore the applications must be rejected in their entirety .

Decision on costs

Costs

27 Under 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 servants of the Communities .

Operative part

On those grounds,

THE COURT ( Third Chamber )

hereby :

( 1 ) Dismisses the applications;

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