61986J0149

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OFFICIALS - RECRUITMENT - COMPETITIONS - COMPETITION BASED ON QUALIFICATIONS AND TESTS - CRITERIA FOR SELECTING CANDIDATES - RELATIVE IMPORTANCE OF THE PERSONAL FILE AND THE RESULTS OF THE TESTS - DISCRETION ENJOYED BY THE SELECTION BOARD WITHIN THE LIMITS LAID DOWN BY THE NOTICE OF COMPETITION - APPRAISAL OF THE PERSONAL FILE - ACCOUNT TAKEN ONLY OF THE DOCUMENTS INCLUDED IN A CANDIDATE' S FILE .

IN CASE 149/86

GIOVANNI SANTARELLI, AN OFFICIAL OF THE COMMISSION IN BRUSSELS, ASSISTED AND REPRESENTED BY P.-P . VAN GEHUCHTEN, OF THE BRUSSELS BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF J . LOESCH, 2 RUE GOETHE,

APPLICANT,

V

COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, M . WOLFCARIUS, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF G . KREMLIS, A MEMBER OF ITS 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 REFUSING TO ADMIT THE APPLICANT TO THE TRAINING STAGE IN THAT COMPETITION,

THE COURT ( SECOND CHAMBER )

COMPOSED OF : O . DUE, PRESIDENT OF 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 6 OCTOBER 1987,

AFTER HEARING THE OPINION OF THE ADVOCATE GENERAL DELIVERED AT THE SITTING ON 17 NOVEMBER 1987,

GIVES THE FOLLOWING

JUDGMENT

1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 24 JUNE 1986, GIOVANNI SANTARELLI, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, BROUGHT AN ACTION FOR THE ANNULMENT OF THE DECISION WHEREBY THE SELECTION BOARD FOR INTERNAL COMPETITION COM/A/8/84 REFUSED TO ALLOW HIM TO TAKE PART IN THE TRAINING STAGE ENVISAGED FOR THAT COMPETITION .

2 INTERNAL COMPETITION COM/A/8/84, BASED ON QUALIFICATIONS AND TESTS, WHICH WAS THE SUBJECT OF A NOTICE OF COMPETITION PUBLISHED ON 18 JUNE 1984, WAS ORGANIZED BY THE COMMISSION WITH A VIEW TO CONSTITUTING A RESERVE OF ADMINISTRATORS IN GRADES A 7 AND A 6 . IT WAS OPEN ONLY TO OFFICIALS CLASSIFIED IN GRADES B 3 TO B 1 SINCE 1980 AND WAS DESIGNED TO ENABLE OFFICIALS TO MOVE FROM CATEGORY B TO CATEGORY A . 283 CANDIDATES, INCLUDING THE APPLICANT, WERE ALLOWED TO PARTICIPATE IN THE COMPETITION .

3 THE COMPETITION WAS DIVIDED INTO THREE STAGES : A PRE-SELECTION STAGE, A TRAINING STAGE, AND LASTLY AN ORAL TEST .

4 DURING THE FIRST STAGE, IT WAS THE TASK OF THE SELECTION BOARD, IN ACCORDANCE WITH THE NOTICE OF COMPETITION, TO DESIGNATE THE CANDIDATES CONSIDERED BEST QUALIFIED TO PROCEED TO THE NEXT STAGE OF THE COMPETITION, ON THE BASIS OF THEIR PERSONAL FILES ( IN PARTICULAR, GENERAL AND SPECIALIZED TRAINING AND PREVIOUS PRACTICAL EXPERIENCE ) AND THEIR APPLICATION FORMS, AND ALSO THE RESULT OF A WRITTEN TEST . IT WAS EXPLAINED THAT THE ASSESSMENT WOULD BE AN OVERALL ONE; NONE OF THE ABOVE ELEMENTS WOULD BE ELIMINATORY IN ITSELF, AND THE NUMBER OF CANDIDATES SELECTED WOULD NOT EXCEED BY MORE THAN 50% THE NUMBER OF POSTS TO BE FILLED, WHICH WAS ESTIMATED AT 40 .

5 BY LETTERS OF 12 DECEMBER 1985, 165 CANDIDATES, INCLUDING THE APPLICANT, WERE INFORMED THAT THEY HAD NOT BEEN ADMITTED TO THE TRAINING STAGE, AND WERE SUBSEQUENTLY INFORMED BY LETTERS DATED 14 FEBRUARY 1986 OF THE GENERAL CRITERIA APPLIED BY THE SELECTION BOARD AT THE PRE-SELECTION STAGE .

6 THE SUBMISSIONS WHICH THE APPLICANT PUTS FORWARD IN SUPPORT OF HIS APPLICATION, LODGED AS A RESULT OF THE IMPLIED REJECTION OF A COMPLAINT, ARE THAT THE SELECTION BOARD DISREGARDED THE PROVISIONS OF THE NOTICE OF COMPETITION AND THEREBY EXCEEDED ITS POWERS, THAT IT ASSESSED INCORRECTLY THE APPLICANT' S PERSONAL FILE, IN PARTICULAR INASMUCH AS IT FAILED TO OBSERVE THE PRINCIPLE OF EQUALITY BETWEEN CANDIDATES AND BASED ITS DECISION ON SUBJECTIVE CRITERIA ALIEN TO THE COMPETITION AND, LASTLY, THAT THE CONTESTED DECISION INFRINGED ARTICLE 24 OF THE STAFF REGULATIONS .

7 REFERENCE IS MADE TO THE REPORT FOR THE HEARING FOR A FULLER ACCOUNT OF 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 .

THE SUBMISSION ALLEGING DISREGARD OF THE PROVISIONS OF THE NOTICE OF COMPETITION

8 THE APPLICANT' S FIRST ARGUMENT IS THAT BY ATTACHING PREPONDERANT WEIGHT TO THE WRITTEN TEST THE SELECTION BOARD MADE IT INTO AN ELIMINATORY TEST, WHICH WAS EXPRESSLY RULED OUT BY THE NOTICE OF COMPETITION .

9 THE COMMISSION OBSERVES THAT THE SELECTION BOARD DECIDED TO ATTACH PREPONDERENT WEIGHT TO THE RESULT OF THE WRITTEN TEST AS COMPARED WITH THE RESULT OF THE EXAMINATION OF THE CANDIDATE' S PERSONAL FILE, BUT DID NOT THEREBY MAKE IT INTO AN ELIMINATORY TEST . THE SELECTION BOARD LAID DOWN FIVE CATEGORIES FOR THE RESULTS OF THE ASSESSMENTS OF THE PERSONAL FILES, NAMELY : EXCELLENT, VERY GOOD, GOOD, FAIR AND POOR . HAVING SEEN THE PAPERS SUBMITTED IN THE WRITTEN TESTS, CORRECTED AND MARKED SEPARATELY BY TWO EXAMINERS FROM 0 TO 60, THE SELECTION BOARD LAID DOWN THREE CATEGORIES, NAMELY : GOOD ( 36 TO 48 MARKS ), AVERAGE ( 21 TO 35 MARKS ) AND POOR ( 2 TO 20 MARKS ). IT DECIDED TO PASS THE 60 CANDIDATES WHOSE WRITTEN PAPERS OR PERSONAL FILES PLACED THEM IN THE HIGHEST CATEGORY, TOGETHER WITH THE 14 CANDIDATES HAVING A "VERY GOOD" PERSONAL FILE AND OBTAINING 30 TO 35 MARKS IN THE WRITTEN TEST, THE 11 CANDIDATES HAVING A "GOOD" PERSONAL FILE AND OBTAINING 33 TO 35 MARKS IN THE WRITTEN PAPER AND, LASTLY, THE TWO CANDIDATES HAVING A "FAIR" PERSONAL FILE WHO OBTAINED 34 AND 35 MARKS RESPECTIVELY IN THE WRITTEN TEST .

10 IT SHOULD FIRST BE NOTED THAT THE NOTICE OF COMPETITION DOES NOT LAY DOWN ANY PRECISE WEIGHTING AS BETWEEN THE TWO ELEMENTS ON WHICH THE SELECTION BOARD HAD TO BASE ITSELF, BUT CONFINES ITSELF TO STATING THAT NEITHER ELEMENT IS ELIMINATORY . THE NOTICE OF COMPETITION THEREFORE ALLOWS THE SELECTION BOARD, SUBJECT TO THAT PROVISO, TO DETERMINE AT ITS DISCRETION THE WEIGHTING AS BETWEEN THE TWO ELEMENTS .

11 NEXT, IT SHOULD BE OBSERVED THAT OUT OF THE 87 CANDIDATES ADMITTED TO THE SUBSEQUENT STAGE OF THE COMPETITION, 60 WERE SELECTED BECAUSE THE ASSESSMENT OF EITHER THEIR PERSONAL FILE OR THEIR WRITTEN PAPER PLACED THEM IN THE HIGHEST CATEGORY, THAT IS TO SAY, IN PARTICULAR, THOSE CANDIDATES WHO, IRRESPECTIVE OF THE RESULT OF THEIR WRITTEN TEST, HAD SUBMITTED AN "EXCELLENT" PERSONAL FILE .

12 THE CONCLUSION TO BE DRAWN IS THAT THE WRITTEN TEST WAS NOT ELIMINATORY AND, THEREFORE, THAT THE APPLICANT' S COMPLAINT IS UNFOUNDED .

13 IN THE SECOND PLACE, THE APPLICANT MAINTAINS THAT, CONTRARY TO THE FIFTH PARAGRAPH OF ARTICLE 5 OF ANNEX III TO THE STAFF REGULATIONS, THE NOTICE OF COMPETITION STATED THE NUMBER OF CANDIDATES CAPABLE OF BEING ADMITTED AS BEING EQUAL TO THE NUMBER OF AVAILABLE POSTS, INCREASED BY 50 %. ACTING ON ITS OWN INITIATIVE, THE SELECTION BOARD INCREASED THAT NUMBER TO TWICE THE NUMBER OF AVAILABLE POSTS, AS IS REQUIRED BY ARTICLE 5 . THE APPLICANT TAKES THE VIEW THAT THE SELECTION BOARD WAS UNABLE TO REMEDY THE ILLEGALITY OF THE NOTICE OF COMPETITION AND THAT, IN SPITE OF THE AMENDMENT, WHICH IT APPROVED AFTER THE MARKING OF THE WRITTEN TESTS, THE ILLEGAL FORMULATION OF THE NOTICE WAS LIKELY TO HAVE AFFECTED ADVERSELY THE "MARGINAL" CANDIDATES, THE ASSESSMENT OF WHOM MAY HAVE BEEN STRICTER THAN WAS NECESSARY .

14 THE COMMISSION ARGUES THAT THE SELECTION BOARD CANNOT BE CRITICIZED FOR ADMITTING A NUMBER OF CANDIDATES WHICH WAS IN ACCORDANCE WITH THE PROVISIONS OF THE STAFF REGULATIONS, AND THAT THE NUMBER OF CANDIDATES TO BE ADMITTED HAD NO EFFECT ON THE MARKING OF THE WRITTEN TESTS, DONE SEPARATELY BY TWO EXAMINERS, THE IDENTITY OF THE CANDIDATES BEING UNDISCLOSED .

15 THE FIFTH PARAGRAPH OF ARTICLE 5 OF ANNEX III TO THE STAFF REGULATIONS PROVIDES THAT THE LIST OF SUITABLE CANDIDATES MUST WHEREVER POSSIBLE CONTAIN AT LEAST TWICE AS MANY NAMES AS THE NUMBER OF POSTS TO BE FILLED .

16 IT SHOULD BE STATED THAT THE NUMBER OF CANDIDATES ADMITTED BY THE SELECTION BOARD TO THE NEXT STAGE OF THE COMPETITION SATISFIED THE REQUIREMENT UNDER ARTICLE 5 AND THAT THE APPLICANT FAILED TO CONTEST IN GOOD TIME THE PROVISIONS OF THE NOTICE OF COMPETITION WHICH CONFLICTED WITH THAT REQUIREMENT .

17 FURTHERMORE, THE SEPARATE MARKING OF THE PAPERS BY TWO EXAMINERS WITHOUT THE DISCLOSURE OF THE CANDIDATES' IDENTITY MEANT THAT THE INDIVIDUAL ASSESSMENT OF THE PAPERS COULD NOT HAVE BEEN INFLUENCED BY THE STRINGENCY OF THE SUBSEQUENT SELECTION PROCESS . IT FOLLOWS THAT THE CONTENTION IN QUESTION IS UNFOUNDED .

SUBMISSION ALLEGING IMPROPER ASSESSMENT OF THE CANDIDATE' S PERSONAL FILE

18 THE APPLICANT CLAIMS, IN ESSENCE, THAT IN ASSESSING HIS PERSONAL FILE THE SELECTION BOARD TOOK INTO CONSIDERATION FACTORS WHICH SHOULD HAVE BEEN DISREGARDED, NAMELY HIS STAFF REPORTS, AND FAILED TO TAKE ACCOUNT OF RELEVANT FACTORS, NAMELY THE NUMBER OF COMPETITIONS FOR CATEGORY A POSTS IN WHICH THE APPLICANT HAD BEEN SUCCESSFUL AND A COMPLAINT SUBMITTED BY HIM ( AND SUBSEQUENTLY WITHDRAWN ), CONCERNING THE DUTIES ASSIGNED TO HIM . THE APPLICANT ALSO MAINTAINS THAT THE PROCEDURES CHOSEN BY THE SELECTION BOARD FOR ASSESSING THE PERSONAL FILES DID NOT IN HIS CASE ENSURE ANONYMITY, OWING TO HIS LENGTH OF SERVICE AND TO THE MANY COMPETITIONS IN WHICH HE HAD BEEN SUCCESSFUL, AND HE CLAIMS THAT AN UNFAVOURABLE ASSESSMENT OF HIS PERSONAL FILE MUST NECESSARILY BE DUE EITHER TO SUBJECTIVE FACTORS ALIEN TO THE COMPETITION OR TO A MISTAKE .

19 THE COMMISSION OBSERVES THAT, WHEN EXAMINING THE PERSONAL FILES, THE SELECTION BOARD TOOK ACCOUNT OF NO OTHER DOCUMENTS - APART FROM THE APPLICATION FORMS AND SPECIAL ANNEXES THERETO - THAN THOSE INCLUDED IN THE FILES OF THE OFFICIALS WHO HAD APPLIED . THE SELECTION BOARD DECIDED ON A PROCEDURE FOR EXAMINING THE FILES WHICH WOULD ENSURE THE CANDIDATES' ANONYMITY, INASMUCH AS THE CHAIRMAN WOULD READ OUT ALL THE DOCUMENTS AND INFORMATION RELEVANT TO AN ASSESSMENT . THE NAME OF THE CANDIDATE WAS NOT REVEALED UNTIL AFTER THE SELECTION BOARD HAD ENTERED HIM ON A SCALE OF MERIT, BY REFERENCE TO AN "AVERAGE PROFILE" CONSIDERED TO REFLECT THE CHARACTERISTICS OF A "GOOD" PERSONAL FILE .

20 IT SHOULD FIRST BE RECALLED THAT ACCORDING TO ARTICLE 26 OF THE STAFF REGULATIONS THE PERSONAL FILE OF AN OFFICIAL, ON WHICH THE SELECTION BOARD MUST IN PART BASE ITS ASSESSMENT, MUST CONTAIN ALL DOCUMENTS CONCERNING HIS ADMINISTRATIVE STATUS AND ALL THE REPORTS RELATING TO HIS ABILITY, EFFICIENCY AND CONDUCT, TOGETHER WITH ANY COMMENTS BY THE OFFICIAL ON SUCH DOCUMENTS . ARTICLE 26 ALSO REQUIRES THAT DOCUMENTS INCLUDED ON THE PERSONAL FILE OF AN OFFICIAL SHALL HAVE BEEN COMMUNICATED TO HIM BEFORE THEY ARE FILED .

21 THE NEXT POINT TO BE NOTED IS THAT THE APPLICATION FORM AND ITS SPECIAL ANNEX, ON WHICH THE SELECTION BOARD ALSO HAD TO BASE ITS ASSESSMENT, WERE INTENDED FOR SUCH INFORMATION AS A CANDIDATE SAW FIT TO SET OUT REGARDING IN PARTICULAR HIS TRAINING AND EXPERIENCE, INCLUDING A MENTION OF ANY COMPETITION IN WHICH HE HAD BEEN SUCCESSFUL .

22 IN THOSE CIRCUMSTANCES, IT MUST BE CONCLUDED THAT THE APPLICANT' S CONTENTIONS CONCERNING THE REGARD HAD TO HIS STAFF REPORTS AND THE ABSENCE OF INFORMATION ON THE COMPETITIONS IN WHICH HE SUCCESSFULLY PARTICIPATED ARE MANIFESTLY UNFOUNDED .

23 AS REGARDS THE CONTENTION THAT NO ACCOUNT WAS TAKEN OF A COMPLAINT SUBMITTED, AND SUBSEQUENTLY WITHDRAWN, BY THE APPLICANT CONCERNING THE TASKS ASSIGNED TO HIM, IT MUST BE POINTED OUT THAT, HAD HE TAKEN THE VIEW THAT HIS STAFF REPORTS WERE DEFICIENT ON THAT GROUND, HE WAS ENTITLED UNDER THE SECOND PARAGRAPH OF ARTICLE 43 OF THE STAFF REGULATIONS AND AS PART OF THE PROCEDURE GOVERNING PERIODICAL REPORTS, TO MAKE ANY COMMENTS THEREON WHICH HE CONSIDERED RELEVANT; THOSE COMMENTS WOULD THEN HAVE BEEN INCLUDED IN HIS PERSONAL FILE .

24 THE APPLICANT MADE NO SUCH COMMENTS, AND SINCE HE HAD IN ANY CASE WITHDRAWN HIS COMPLAINT, THE CONTENT OF THAT COMPLAINT COULD NOT BE INCLUDED AMONG THE ELEMENTS ON WHICH, IN ACCORDANCE WITH THE NOTICE OF COMPETITION, THE SELECTION BOARD HAD TO BASE ITS ASSESSMENT . IT FOLLOWS THAT THE CONTENTION IS UNFOUNDED .

25 AS FOR THE CONTENTION REGARDING THE LOSS OF ANONYMITY DURING THE ASSESSMENT OF HIS PERSONAL FILE, IT IS SUFFICIENT TO OBSERVE THAT THE PROCEDURE FOLLOWED BY THE SELECTION BOARD ENSURED, AS FAR AS IT WAS POSSIBLE TO DO SO, THAT THE CANDIDATES REMAINED ANONYMOUS .

26 AS REGARDS, LASTLY, THE CONTENTION THAT THE ASSESSMENT MADE OF THE APPLICANT' S PERSONAL FILE WAS DUE EITHER TO FACTORS ALIEN TO THE COMPETITION OR TO A MISTAKE, IT SHOULD BE BORNE IN MIND THAT THE DECISION OF THE SELECTION BOARD NOT TO ADMIT A CANDIDATE TO THE NEXT STAGE HAD, IN ACCORDANCE WITH THE NOTICE OF COMPETITION, TO BE BASED ON AN OVERALL APPRAISAL OF THAT CANDIDATE, AND THAT A GOOD PERSONAL FILE COULD BE OFFSET BY THE RESULT OF THE WRITTEN TEST . CONSEQUENTLY, IT CANNOT BE INFERRED FROM THE EXCLUSION OF A CANDIDATE WHO HAD SUBMITTED A GOOD PERSONAL FILE THAT THE ASSESSMENT OF THAT FILE WAS MISTAKEN OR VITIATED BY FACTORS ALIEN TO THE COMPETITION .

27 MOREOVER, THE APPLICANT ADDUCES NO CONCRETE EVIDENCE SUGGESTING THAT THE ASSESSMENT OF HIS PERSONAL FILE WAS MISTAKEN OR OTHERWISE VITIATED . IT FOLLOWS THAT THIS CONTENTION, TOO, IS UNFOUNDED .

SUBMISSION ALLEGING THE INFRINGEMENT OF ARTICLE 24 OF THE STAFF REGULATIONS

28 THE APPLICANT CLAIMS THAT THE DECISION OF THE SELECTION BOARD NOT TO ADMIT HIM TO THE TRAINING STAGE ENVISAGED BY THE COMPETITION INFRINGES THE THIRD PARAGRAPH OF ARTICLE 24 OF THE STAFF REGULATIONS, WHICH PROVIDES THAT THE COMMUNITIES MUST FACILITATE THE FURTHER TRAINING AND INSTRUCTION OF OFFICIALS .

29 IN THAT CONNECTION IT IS SUFFICIENT TO POINT OUT THAT A REQUIREMENT REGARDING THE TRAINING OF OFFICIALS CANNOT IMPOSE ANY OBLIGATION WHATSOEVER ON A SELECTION BOARD FOR AN INTERNAL COMPETITION, SINCE A COMPETITION PROCEDURE IS DESIGNED TO FILL VACANT POSTS .

30 IT FOLLOWS THAT THIS CONTENTION CLEARLY HAS NO FOUNDATION IN LAW .

31 AS NONE OF THE APPLICANT' S CONTENTIONS IS WELL FOUNDED, THE APPLICATION MUST BE DISMISSED .

COSTS

32 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . HOWEVER, UNDER ARTICLE 70 OF THE RULES OF PROCEDURE, INSTITUTIONS ARE TO BEAR THEIR OWN COSTS IN PROCEEDINGS BROUGHT BY SERVANTS OF THE COMMUNITIES .

ON THOSE GROUNDS,

THE COURT ( SECOND CHAMBER )

HEREBY :

( 1 ) DISMISSES THE APPLICATION;

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