61985J0417

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OFFICIALS - RECRUITMENT - COMPETITION - CONDITIONS OF ADMISSION - SUPPORTING DOCUMENTS - INADEQUACY - SELECTION BOARD' S REFUSAL TO ALLOW ADDITIONAL DOCUMENTS TO BE FURNISHED - DUTY TO LOOK AFTER THE WELL-BEING OF OFFICIALS

( STAFF REGULATIONS, ANNEX III, ART . 2, SECOND PARAGRAPH )

THE DUTY OF THE ADMINISTRATION TO LOOK AFTER THE WELL-BEING OF ITS OFFICIALS, WHICH ALSO APPLIES TO SELECTION BOARDS, REFLECTS THE BALANCE OF THE RECIPROCAL RIGHTS AND OBLIGATIONS ESTABLISHED BY THE STAFF REGULATIONS IN THE RELATIONSHIP BETWEEN THE OFFICIAL AUTHORITY AND THE CIVIL SERVANTS . A PARTICULAR CONSEQUENCE OF THIS DUTY AND THE PRINCIPLE OF GOOD ADMINISTRATION IS THAT WHEN THE AUTHORITY TAKES A DECISION CONCERNING THE SITUATION OF AN OFFICIAL IT SHOULD TAKE INTO CONSIDERATION ALL THE FACTORS WHICH MAY AFFECT ITS DECISION AND THAT WHEN DOING SO IT SHOULD TAKE INTO ACCOUNT NOT ONLY THE INTERESTS OF THE SERVICE BUT ALSO THOSE OF THE OFFICIAL CONCERNED .

ALTHOUGH IN PRINCIPLE A CANDIDATE IN A COMPETITION MUST SUPPLY THE SELECTION BOARD WITH ALL INFORMATION AND DOCUMENTS TO ENABLE IT TO DETERMINE WHETHER HE SATISFIES THE CONDITIONS LAID DOWN IN THE NOTICE OF COMPETITION, WHEN THE SELECTION BOARD CONSIDERS IT NECESSARY TO HAVE RECOURSE TO THE PROCEDURE OF THE SECOND PARAGRAPH OF ARTICLE 2 OF ANNEX III TO THE STAFF REGULATIONS, IT CANNOT, WITHOUT DISREGARDING THE AFORESAID PRINCIPLES, DISALLOW THE PRODUCTION OF FURTHER DOCUMENTS . THAT REASONING IS ESPECIALLY APPLICABLE WHERE THE COMPETITION IS ONE IN WHICH A RESTRICTED NUMBER OF CANDIDATES IS TAKING PART AND THE SOLE OBJECT OF THE PRODUCTION OF FURTHER DOCUMENTS IS TO CLARIFY MATTERS IN ANSWER TO OBSERVATIONS MADE BY THE SELECTION BOARD ITSELF .

IN CASE 417/85

HENRI MAURISSEN, AN OFFICIAL OF THE COURT OF AUDITORS OF THE EUROPEAN COMMUNITIES, RESIDING AT 41 ALLEE SCHEFFER, LUXEMBOURG 2520, REPRESENTED BY JEAN-NOEL LOUIS, OF THE BRUSSELS BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ALEX SCHMITT, 13 BOULEVARD ROYAL, L-2035

APPLICANT,

V

COURT OF AUDITORS OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS SECRETARY, JEAN-AIME STOLL, AND MICHAEL BECKER, ACTING AS JOINT AGENTS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT 29 RUE ALDRINGEN,

DEFENDANT,

APPLICATION FOR THE ANNULMENT OF THE DECISIONS OF 2 AUGUST AND 28 OCTOBER 1985 BY WHICH THE SELECTION BOARD FOR INTERNAL COMPETITION NO CC/A/8/85 REFUSED TO ADMIT THE APPLICANT TO THE TESTS FOR THE SAID COMPETITION,

THE COURT ( THIRD CHAMBER )

COMPOSED OF : Y . GALMOT, PRESIDENT OF CHAMBER, U . EVERLING AND J . C . MOITINHO DE ALMEIDA, JUDGES,

ADVOCATE GENERAL : M . DARMON

REGISTRAR : D . LOUTERMAN, ADMINISTRATOR

HAVING REGARD TO THE REPORT FOR THE HEARING AND FURTHER TO THE HEARING ON 23 OCTOBER 1986,

UPON HEARING THE OPINION OF THE ADVOCATE GENERAL DELIVERED AT THE SITTING ON 11 DECEMBER 1986,

GIVES THE FOLLOWING

JUDGMENT

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 13 DECEMBER 1985 HENRI MAURISSEN, AN OFFICIAL OF THE COURT OF AUDITORS OF THE EUROPEAN COMMUNITIES, BROUGHT AN ACTION FOR THE ANNULMENT OF THE DECISIONS OF 2 AUGUST AND 28 OCTOBER 1985 BY WHICH THE SELECTION BOARD FOR INTERNAL COMPETITION NO CC/A/8/85 REFUSED TO ADMIT HIM TO THE TESTS FOR THAT COMPETITION .

2 REFERENCE IS MADE TO THE REPORT FOR THE HEARING FOR THE TERMS OF THE NOTICE OF COMPETITION NO CC/A/8/85 AND THE SUBMISSIONS AND ARGUMENTS OF THE PARTIES WHICH ARE REPRODUCED BELOW ONLY IN SO FAR AS IS NECESSARY FOR THE REASONING OF THE COURT .

3 THE CASE RELATES TO THE NATURE AND DURATION OF MR MAURISSEN' S EXPERIENCE WHICH, IN THE ABSENCE OF UNIVERSITY STUDIES ATTESTED BY A RECOGNIZED DIPLOMA, HAD TO BE "EQUIVALENT PROFESSIONAL EXPERIENCE" WITHIN THE MEANING OF POINT IV.1(B ) OF THE NOTICE OF COMPETITION, THAT IS TO SAY EXPERIENCE ACQUIRED IN A FULL-TIME OCCUPATION WHICH NORMALLY REQUIRES A UNIVERSITY DEGREE OR DIPLOMA AND FOR A PERIOD WHICH THE SELECTION BOARD ITSELF FIXED AT A MINIMUM OF THREE YEARS .

4 THE APPLICANT CLAIMED MORE THAN 20 YEARS' EXPERIENCE . HIS CURRICULUM VITAE, ANNEXED TO HIS APPLICATION FORM, SHOWED INTER ALIA THAT HE HAD BEEN EMPLOYED BY IBM FROM JANUARY 1973 UNTIL HE ENTERED THE SERVICE OF THE COURT OF AUDITORS IN 1983 . IT STATED THAT HE HAD SUCCESSIVELY HELD THE POSTS OF "FINANCIAL ANALYST ASSOCIATE" FROM 1976 TO 1981 AND "PRODUCTIVITY PROJECT ANALYST" FROM 1981 TO 1983 . MR MAURISSEN POINTED TO THE HIGH LEVEL OF RESPONSIBILITY WHICH HIS DUTIES IN THOSE TWO POSTS INVOLVED AND ENCLOSED DESCRIPTIONS OF THE NATURE OF THE TWO POSTS DRAWN UP BY IBM . HOWEVER, ONLY THE PARTICULARS RELATING TO THE POST OF PRODUCTIVITY PROJECT ANALYST SPECIFICALLY MENTIONED "UNIVERSITY OR EQUIVALENT" UNDER THE HEADING "LEVEL OF STUDIES ".

5 BY LETTER DATED 2 AUGUST 1985, THE CHAIRMAN OF THE SELECTION BOARD INFORMED THE APPLICANT THAT HE COULD NOT BE ADMITTED TO THE COMPETITION ON THE GROUND THAT THE CERTIFICATES INCLUDED WITH HIS APPLICATION FORM DID NOT ALLOW THE SELECTION BOARD TO DETERMINE WHETHER HE HAD PERFORMED THE DUTIES OF PRODUCTIVITY PROJECT ANALYST FOR AT LEAST THREE YEARS .

6 SUBSEQUENTLY THE CHAIRMAN OF THE SELECTION BOARD SENT MR MAURISSEN, AND ALL THE OTHER APPLICANTS, A LETTER DATED 12 AUGUST 1985 IN WHICH, PURSUANT TO THE SECOND PARAGRAPH OF ARTICLE 2 OF ANNEX III TO THE STAFF REGULATIONS, THE BOARD GRANTED HIM A PERIOD EXPIRING ON 30 SEPTEMBER 1985 TO LODGE ANY ADDITIONAL OBSERVATIONS; HOWEVER, HE WAS NOT TO SUBMIT ADDITIONAL DOCUMENTS WHICH HAD NOT BEEN INCLUDED WITH THE ORIGINAL APPLICATION FORM .

7 THE APPLICANT THEN SENT THE CHAIRMAN OF THE SELECTION BOARD A MEMORANDUM DATED 30 SEPTEMBER 1985 INFORMING HIM THAT HE CONSIDERED THAT THE PERIOD DURING WHICH HE HAD PERFORMED FULL-TIME DUTIES NORMALLY REQUIRING A UNIVERSITY DIPLOMA WAS MUCH LONGER THAN THAT REQUIRED AT POINT IV.1(B ) OF THE NOTICE OF COMPETITION AS WAS ATTESTED BY THE DESCRIPTIONS OF NATURE OF THE POST WHICH HE HAD INCLUDED WITH HIS APPLICATION FORM . HE ENCLOSED WITH THE MEMORANDUM TWO NEW DOCUMENTS FOR THE INFORMATION OF THE SELECTION BOARD : ( I ) A CERTIFICATE ISSUED BY IBM ON 20 AUGUST 1985 CERTIFYING THAT "MR MAURISSEN ENTERED OUR EMPLOYMENT ON 29 JANUARY 1973; HE WORKED AS 'FINANCIAL ANALYST ASSOCIATE' ; AT THE TIME OF HIS DEPARTURE HE WAS WORKING AS 'PRODUCTIVITY PROJECT ANALYST' ; THAT IMPLIES A UNIVERSITY LEVEL OF EDUCATION . HE LEFT US ON 30 JUNE 1983"; ( II ) A TELEX MESSAGE OF 27 SEPTEMBER 1985 FROM IBM STATING THAT "THE TWO POSTS OF 'FINANCIAL ANALYST ASSOCIATE' AND 'PRODUCTIVITY PROJECT ANALYST' IMPLY A UNIVERSITY EDUCATION AS CERTIFIED IN OUR LETTER OF 20 AUGUST 1985 ".

8 BY A DECISION OF 28 OCTOBER 1985 THE SELECTION BOARD REAFFIRMED ITS DECISION TO REFUSE TO ADMIT MR MAURISSEN TO THE COMPETITION . IT IS APPARENT FROM CONSIDERATION OF THE FINAL DECISION OF THE SELECTION BOARD AND THE MINUTES OF ITS DELIBERATIONS THAT THE APPLICANT WAS REFUSED ENTRY ON TWO GROUNDS : ( I ) THE SELECTION BOARD WAS UNABLE TO TAKE INTO ACCOUNT THE ADDITIONAL DOCUMENTS PRODUCED AFTER THE ORIGINAL APPLICATION FORM WAS LODGED; AND ( II ) IT WAS UNABLE, EVEN IN VIEW OF THE ADDITIONAL DOCUMENTS, TO DETERMINE HIS RELEVANT EXPERIENCE .

9 THE APPLICANT CHALLENGES THE TWO GROUNDS ON WHICH THE SELECTION BOARD BASED THE CONTESTED DECISION . HE STATES ESSENTIALLY THAT THE DURATION OF HIS EXPERIENCE AT A UNIVERSITY LEVEL WAS FAR LONGER THAN THREE YEARS AND THAT THE SELECTION BOARD HAD ALL THE PARTICULARS IT NEEDED TO ASSESS THE LEVEL AND DURATION OF HIS EXPERIENCE . IF THE SELECTION BOARD HAD THE SLIGHTEST DOUBT ABOUT THE LEVEL OF HIS RESPONSIBILITIES IN THE VARIOUS JOBS REFERRED TO, IT IS PARTICULARLY INCOMPREHENSIBLE THAT IT TOOK NO ACCOUNT OF THE MEMORANDUM OF 30 SEPTEMBER 1985 AND THE ATTACHED DOCUMENTS .

10 THE COURT OF AUDITORS CONTENDS THAT THE FIRST DECISION TO REFUSE THE APPLICANT ADMISSION TO THE COMPETITION CANNOT BE CRITICIZED SINCE THE DOCUMENTS ORIGINALLY FORWARDED BY THE APPLICANT IN THE ANNEXES TO HIS APPLICATION FORM, DID NOT ENABLE THE BOARD TO DETERMINE WHETHER THE POST OF "FINANCIAL ANALYST ASSOCIATE" COULD BE REGARDED AS EQUIVALENT TO A POST REQUIRING A UNIVERSITY DIPLOMA OR WHETHER THE POST OF "PRODUCTIVITY PROJECT ANALYST" HAD BEEN HELD FOR AT LEAST THREE YEARS . THE POSITION WAS THE SAME REGARDING THE SECOND DECISION OF 28 OCTOBER 1985 SINCE THE PRODUCTION OF ADDITIONAL DOCUMENTS WAS NOT ALLOWED AT THAT STAGE OF THE PROCEDURE AND FURTHERMORE, THE ADDITIONAL DOCUMENTS PRODUCED BY THE APPLICANT DID NOT IN ANY EVENT ALLOW THE SELECTION BOARD TO DETERMINE THE DURATION OF THE APPLICANT' S EXPERIENCE AT A UNIVERSITY LEVEL .

11 IN THOSE CIRCUMSTANCES IT IS NECESSARY TO CONSIDER THE LAWFULNESS OF THE TWO REASONS ON WHICH THE CONTESTED DECISION IS BASED .

THE LAWFULNESS OF THE GROUND BASED ON THE IMPOSSIBILITY OF TAKING INTO ACCOUNT ADDITIONAL DOCUMENTS

12 IT IS APPROPRIATE TO RECALL THAT, AS THE COURT HELD IN ITS JUDGMENT OF 23 OCTOBER 1986 ( CASE 321/85 SCHWIERING V COURT OF AUDITORS (( 1986 )) ECR 3199 ), ALTHOUGH NOT MENTIONED IN THE STAFF REGULATIONS, THE DUTY OF THE ADMINISTRATION TO LOOK AFTER THE WELL-BEING OF ITS OFFICIALS, WHICH ALSO APPLIES TO SELECTION BOARDS, REFLECTS THE BALANCE OF THE RECIPROCAL RIGHTS AND OBLIGATIONS ESTABLISHED BY THE STAFF REGULATIONS IN THE RELATIONSHIP BETWEEN THE OFFICIAL AUTHORITY AND THE CIVIL SERVANTS . A PARTICULAR CONSEQUENCE OF THIS DUTY AND OF THE PRINCIPLE OF GOOD ADMINISTRATION IS THAT WHEN THE AUTHORITY TAKES A DECISION CONCERNING THE SITUATION OF AN OFFICIAL IT SHOULD TAKE INTO CONSIDERATION ALL THE FACTORS WHICH MAY AFFECT ITS DECISION AND THAT WHEN DOING SO IT SHOULD TAKE ACCOUNT OF NOT ONLY THE INTERESTS OF THE SERVICE BUT THOSE OF THE OFFICIAL CONCERNED .

13 ALTHOUGH IN PRINCIPLE A CANDIDATE IN A COMPETITION MUST SUPPLY THE SELECTION BOARD WITH ALL INFORMATION AND DOCUMENTS TO ENABLE IT TO DETERMINE WHETHER HE SATISFIES THE CONDITIONS LAID DOWN IN THE NOTICE OF COMPETITION, WHEN THE SELECTION BOARD CONSIDERS IT NECESSARY TO HAVE RECOURSE TO THE PROCEDURE OF THE SECOND PARAGRAPH OF ARTICLE 2 OF ANNEX III TO THE STAFF REGULATIONS, IT CANNOT, WITHOUT DISREGARDING THE AFORESAID PRINCIPLES, DISALLOW THE PRODUCTION OF FURTHER DOCUMENTS . THAT REASONING IS ESPECIALLY APPLICABLE WHERE, AS IN THE PRESENT CASE, THE COMPETITION IS ONE IN WHICH A RESTRICTED NUMBER OF CANDIDATES IS TAKING PART AND THE SOLE OBJECT OF THE PRODUCTION OF FURTHER DOCUMENTS IS TO CLARIFY MATTERS IN ANSWER TO OBSERVATIONS MADE BY THE SELECTION BOARD ITSELF . THE SELECTION BOARD COULD NOT THEREFORE LAWFULLY DISREGARD THE ADDITIONAL DOCUMENTS PRODUCED BY THE APPLICANT ON 30 SEPTEMBER 1985 .

THE LAWFULNESS OF THE GROUND BASED ON THE IMPOSSIBILITY OF ASSESSING THE APPLICANT' S EXPERIENCE

14 IT IS CLEAR FROM THE DOCUMENTS BEFORE THE COURT THAT, CONTRARY TO WHAT IS STATED IN THE DECISION OF 28 OCTOBER 1985, WHEN IT ADOPTED THAT DECISION THE SELECTION BOARD HAD ALL THE RELEVANT PARTICULARS FOR DETERMINING BOTH THE DURATION AND LEVEL OF THE APPLICANT' S EXPERIENCE . MORE PARTICULARLY, TAKEN TOGETHER, THE DOCUMENTS PRODUCED BY THE APPLICANT ENABLED THE SELECTION BOARD TO DETERMINE THAT HIS FULL-TIME EXPERIENCE FROM 1976 TO 1983, THUS A PERIOD OF FAR MORE THAN THREE YEARS, WAS OF A SUFFICIENT LEVEL TO BE REGARDED AS "EQUIVALENT PROFESSIONAL EXPERIENCE" WITHIN THE MEANING OF POINT IV.1(B ) OF THE NOTICE OF COMPETITION . CONSEQUENTLY IN TAKING THE VIEW THAT IT WAS NOT ABLE TO DETERMINE THAT QUESTION, THE SELECTION BOARD COMMITTED AN OBVIOUS ERROR OF JUDGMENT .

15 ACCORDINGLY, AND WITHOUT IT BEING NECESSARY TO EXAMINE THE OTHER ARGUMENTS PUT FORWARD BY THE APPLICANT, THE DECISIONS OF THE SELECTION BOARD OF 2 AUGUST AND 28 OCTOBER 1985 MUST BE ANNULLED .

COSTS

16 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . SINCE THE COURT OF AUDITORS HAS FAILED IN ITS SUBMISSIONS, IT MUST BE ORDERED TO PAY THE COSTS .

On those grounds,

THE COURT ( Third Chamber )

hereby :

( 1 ) Annuls the Decisions of 2 August and 28 October 1985 of the Selection Board for Competition No CC/A/8/85 refusing to admit Mr Maurissen to that competition .

( 2 ) Orders the Court of Auditors to pay the costs .