61983J0039

OFFICIALS - RECRUITMENT - COMPETITION - ORGANIZATION - RULES AND CONDITIONS - DETERMINATION - DISCRETION OF THE ADMINISTRATION

THE APPOINTING AUTHORITY ENJOYS A WIDE DISCRETION IN DECIDING UPON THE CRITERIA OF ABILITY REQUIRED FOR THE POSTS TO BE FILLED AND IN DETERMINING THE RULES AND CONDITIONS UNDER WHICH A COMPETITION IS ORGANIZED IN THE LIGHT OF THOSE CRITERIA AND IN THE INTERESTS OF THE SERVICE .

IN CASE 39/83

CORNELIS HENRICK FABIUS , RESIDING IN THE HAGUE , REPRESENTED AND ASSISTED BY ERIC GRABANDT OF THE HAGUE BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF E . ARENDT , CENTRE LOUVIGNY , 34 B/IV RUE PHILIPPE-II ,

APPLICANT ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY HENDRIK VAN LIER , A MEMBER OF ITS LEGAL DEPARTMENT , ACTING AS AGENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ORESTE MONTALTO , A MEMBER OF ITS LEGAL DEPARTMENT , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

APPLICATION FOR THE ANNULMENT OF THE COMMISSION ' S DECISION DATED 22 DECEMBER 1982 CONFIRMING THAT THE APPLICANT WAS NOT ELIGIBLE TO TAKE THE ORAL TEST FOR OPEN COMPETITION NO COM/A/325 ,

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 15 MARCH 1983 , CORNELIS FABIUS BROUGHT AN ACTION AGAINST THE COMMISSION OF THE EUROPEAN COMMUNITIES , IN THE FIRST PLACE , FOR THE ANNULMENT OF THE DECISION CONFIRMING THAT HE WAS INELIGIBLE TO TAKE THE ORAL TESTS FOR COMPETITION NO COM/A / 325 , AND , IN THE SECOND PLACE , FOR AN ORDER THAT THE COMMISSION SHOULD ARRANGE A FRESH TEST IN ORDER TO ASSESS HIS SUITABILITY OR PERMIT HIM TO TAKE PART IN A SUBSEQUENT OPEN COMPETITION AT THE SAME LEVEL , REGARDLESS OF ANY AGE-LIMIT .

2 THE COMPETITION AT ISSUE WAS AN OPEN COMPETITION BASED ON QUALIFICATIONS AND TESTS TO CONSTITUTE A RESERVE OF ADMINISTRATORS IN THE CAREER BRACKET COVERING GRADES 7 AND 6 OF CATEGORY A .

3 THE NOTICE OF COMPETITION , PUBLISHED IN THE OFFICIAL JOURNAL OF THE EUROPEAN COMMUNITIES DATED 12 SEPTEMBER 1981 , PROVIDED AS FOLLOWS IN SECTION V , ENTITLED ' ' WRITTEN TESTS - ADMISSION TO ORAL TESTS ' ' :

' ' 1 . NATURE OF WRITTEN TESTS

( A ) COMPREHENSION AND REASONING TEST TO ASSESS THE CANDIDATE ' S APTITUDE FOR ADMINISTRATIVE , ADVISORY AND SUPERVISORY DUTIES ; THIS TEST WILL NOT REQUIRE ANY SPECIFIC ACADEMIC KNOWLEDGE ( TIME ALLOWED : 2 HOURS ).

( B)TEST TO ASSESS THE CANDIDATE ' S GENERAL APTITUDE FOR WORK IN AN INTERNATIONAL ORGANIZATION . THIS TEST MAY TAKE THE FORM OF A CASE-STUDY ( TIME ALLOWED : 3 HOURS ).

2.MARKING OF WRITTEN TESTS

TEST 1 ( A ) OUT OF 40 .

TEST 1 ( B ) OUT OF 60 .

CANDIDATES WHO OBTAIN LESS THAN 20 MARKS FOR TEST 1 ( A ) OR LESS THAN 30 MARKS FOR TEST 1 ( B ) WILL NOT BE CONSIDERED .

3.ADMISSION TO ORAL TEST

CANDIDATES OBTAINING THE HIGHEST MARKS IN THE WRITTEN TESTS WILL BE ADMITTED TO THE ORAL TEST , PROVIDED THEIR MARKS ARE ABOVE THE MINIMA MENTIONED AT V 2 . ' '

4 THE APPLICANT WAS INVITED TO TAKE PART IN THE COMPETITION AND TOOK THE WRITTEN TESTS ON 28 JUNE 1982 . IN A LETTER DATED 10 NOVEMBER 1982 , THE COMMISSION INFORMED HIM THAT THE SELECTION BOARD CONSIDERED THE MARKS HE HAD OBTAINED IN THE WRITTEN TESTS TO BE INSUFFICIENT TO MAKE HIM ELIGIBLE FOR THE ORAL TESTS IN THE COMPETITION . FOR THE FIRST TEST , ENTITLED ' ' COMPREHENSION AND REASONING ' ' , HE HAD OBTAINED ONLY 13.82 OUT OF 40 MARKS AGAINST A PASS MARK OF 20 .

5 IN A LETTER DATED 28 NOVEMBER 1982 , THE APPLICANT REQUESTED THE COMMISSION TO RECONSIDER HIS CASE , ARGUING , IN PARTICULAR , THAT HE THOUGHT IT UNREASONABLE TO ATTACH SO MUCH IMPORTANCE TO A TEST OF ' ' COMPREHENSION AND REASONING ' ' FOR THE OUTCOME OF THE EXAMINATION . THAT REQUEST WAS REJECTED , IN A DECISION DATED 22 DECEMBER 1982 , BY THE HEAD OF THE COMMISSION ' S RECRUITMENT DIVISION .

6 THAT DECISION IS THE SUBJECT OF THIS APPLICATION TO THE COURT , IN SUPPORT OF WHICH MR FABIUS PUTS FORWARD A SINGLE SUBMISSION RELATING TO A BREACH BY THE COMMISSION OF THE PRINCIPLES OF EQUITY AND ' ' DUE CARE ' ' . MORE SPECIFICALLY , THE APPLICANT COMPLAINS THAT THE COMMISSION ATTACHED DECISIVE IMPORTANCE TO A SINGLE CRITERION OF ASSESSMENT , THAT IT HAS GIVEN TOO MUCH WEIGHT TO AN EVALUATIVE TEST WHICH WAS NOT SUFFICIENTLY RELIABLE , AND FINALLY , THAT IT HAS REFUSED TO ARRANGE A FRESH TEST FOR HIM .

7 IT SHOULD BE RECALLED THAT AS THE COURT HAS ALREADY DECIDED IN A NUMBER OF CASES ( CASE 90/74 F . DEBOECK V COMMISSION ( 1975 ) ECR 1123 ; CASE 67/81 M . H . RUSKE V COMMISSION ( 1982 ) ECR 661 ), THE APPOINTING AUTHORITY ENJOYS A WIDE DISCRETION IN DECIDING UPON THE CRITERIA OF ABILITY REQUIRED FOR THE POSTS TO BE FILLED AND IN DETERMINING THE RULES AND CONDITIONS UNDER WHICH THE COMPETITIONS ARE ORGANIZED IN THE LIGHT OF THOSE CRITERIA AND IN THE INTERESTS OF THE SERVICE .

8 IN THIS CASE IT APPEARS THAT THE COMMISSION , BY PROVIDING , IN A NOTICE OF COMPETITION FOR THE RECRUITMENT OF OFFICIALS IN CATEGORY A FOR ADMINISTRATIVE , ADVISORY AND SUPERVISORY DUTIES , THAT THERE SHOULD BE A TEST FOR COMPREHENSION AND REASONING TO ASSESS THE SUITABILITY OF CANDIDATES FOR THOSE DIFFERENT KINDS OF WORK , AND BY ALLOTTING A PASS MARK OF 20 OUT OF 40 FOR THAT TEST , DID NOT EXCEED THE DISCRETION CONFERRED UPON IT AND DID NOT INFRINGE ANY GENERAL PRINCIPLE OF LAW .

9 IN THOSE CIRCUMSTANCES , THE APPLICANT ' S ARGUMENTS BASED ON THE GOOD MARKS WHICH HE OBTAINED IN THE SECOND WRITTEN TEST , ON THE GENERAL SATISFACTION WITH HIS WORK IN HIS COUNTRY OF ORIGIN AND ON THE LIMITED VALUE ATTACHED TO SUCH TESTS BY CERTAIN AUTHORITIES THERE , DO NOT AFFECT THE LEGALITY OF THE CONTESTED DECISION .

10 ACCORDINGLY , THE SELECTION BOARD , AND SUBSEQUENTLY THE APPOINTING AUTHORITY , WERE JUSTIFIED IN REFUSING TO ADMIT THE APPLICANT TO THE ORAL TESTS FOR THE COMPETITION AND LATER TO ARRANGE A FRESH TEST FOR HIM .

11 THE APPLICATION MUST THEREFORE BE DISMISSED AND THERE ARE NO GROUNDS FOR ADMITTING THE EVIDENCE OFFERED BY THE APPLICANT .

COSTS

12 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE , THE UNSUCCESSFUL PARTY IS REQUIRED TO BEAR THE COSTS .

13 HOWEVER , UNDER ARTICLE 70 OF THOSE RULES , IN PROCEEDINGS BROUGHT BY SERVANTS OF THE COMMUNITIES , INSTITUTIONS ARE TO BEAR THEIR OWN COSTS .

ON THOSE GROUNDS

THE COURT ( THIRD CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION ;

2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .