61987J0225

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1 . Officials - Recruitment - Competition - Competition based on qualifications and tests - Non-admission to the tests - Statement of reasons for non-admission - Obligation - Scope

( Staff Regulations, Annex III, Art . 5 )

2 . Officials - Recruitment - Competition - Conditions for admission - Practical experience equivalent to a certificate - Selection Board' s power of appraisal

( Staff Regulations, Art . 5 ( 1 ) )

3 . Officials - Recruitment - Competition - Competition based on qualifications and tests - Consideration of candidates' certificates for the purpose of admission to tests - Different appraisal of same candidate in successive competitions - Permissibility - Conditions

( Staff Regulations, Annex III, Art . 5 )

1 . In order to take account of the practical difficulties which arise in a competition in which there is a very large number of applicants, the Selection Board may initially send to candidates merely information on the criteria for selection and the result thereof, provided that they give individual explanations at a later stage to those candidates who expressly request them .

2 . In defining the conditions for admission to the tests, in particular the condition relating to experience equivalent to a certificate, the competition notice may lawfully merely repeat the general wording of Article 5 ( 1 ) of the Staff Regulations and thus leave it to the Selection Board to decide in each case whether the qualifications and diplomas produced and the relevant experience claimed by each candidate correspond to the level required by the Staff Regulations for the discharge of duties appropriate to the category to which the notice of competition relates .

3 . Where the Selection Board can verify fulfilment of the conditions of the competition notice only by making a partially subjective appraisal, it is free to depart from the appraisal made in that regard by previous Selection Boards, but it must then state the special reasons which justify its decision .

However, the obligation to give reasons for every decision concerning a candidate on the ground that the appraisal relating to him is less favourable than one made about him in a previous competition applies only if the person concerned brought the matter to the attention of the Selection Board . A Selection Board cannot be required to make investigations itself in order to determine whether candidates were admitted to the tests in an earlier competition procedure . It is incumbent on the candidates to provide the Selection Board with all the information they consider pertinent to the appraisal of their applications, even if they have not been formally called on to do so .

In Case 225/87

Patricia Belardinelli and 12 other category C officials of the Court of Justice of the European Communities, represented by Jean-Noeel Louis, of the Brussels Bar, with an address for service in Luxembourg at the Chambers of Yvette Hamilius, 11 Boulevard Royal,

applicants,

v

Court of Justice of the European Communities, represented by Francis Hubeau, Head of Division, assisted by Jean-François Bellis, of the Brussels Bar, with an address for service in Luxembourg at the Court of Justice,

defendant,

APPLICATION for the annulment of the decisions of the Selection Board in competition No CJ 80/86 not to admit the applicants to the tests,

THE COURT ( First Chamber )

composed of : R . Joliet, President of the Chamber, Sir Gordon Slynn and G . C . Rodríguez Iglesias, Judges,

Advocate General : W . Van Gerven

Registrar : J.A . Pompe, Deputy Registrar,

having regard to the Report for the Hearing and further to the hearing on 28 February 1989,

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

gives the following

Judgment

1 By application lodged at the Court Registry on 20 July 1987, Patricia Belardinelli and 12 other category C officials of the Court of Justice of the European Communities brought an action for the annulment of the decisions whereby the Selection Board in competition No CJ 80/86 refused to allow them to take part in the tests for that competition, the purpose of which was to constitute a reserve list for the recruitment of administrative assistants ( career bracket B5-B4 ).

2 According to the terms of the competition notice, candidates were required to hold a certificate of advanced secondary education or to have equivalent relevant experience and to prove relevant experience acquired wholly or partly as officials or members of the temporary staff in an institution of the European Communities carrying out secretarial or clerical duties for at least four years, or engaged in full-time administrative and financial management for at least two years or in documentation for at least two years . The competition notice indicated that a candidate who claimed relevant experience in lieu of a certificate of advanced secondary education could not rely on that same experience in respect of the practical experience required in addition to the certificate .

3 It is apparent from the documents before the Court that the Selection Board considered that eleven of the candidates who have brought the present action did not fulfil the condition of relevant experience equivalent to a certificate of advanced secondary education and that the two others fulfilled that condition but did not have the relevant experience required in addition to the certificate .

4 The applicants base their collective action on four submissions :

( i ) infringement of the second paragraph of Article 25 of the Staff Regulations of Officials of the European Communities in so far as an adequate statement of the reasons on which the Selection Board' s decisions were based was not given;

( ii ) non-compliance with the terms of the competition notice and infringement of the first paragraph of Article 5 of Annex III to the Staff Regulations, in so far as the criteria adopted by the Selection Board for the evaluation of relevant experience equivalent to a certificate of advanced secondary education were vitiated by errors of fact and law;

( iii ) breach of the principle of equality of treatment and non-discrimination as between officials by reason of the application of those criteria;

( iv ) infringement of general principles of law, in so far as the Selection Board did not take account of the fact that certain of the applicants had previously been allowed to take part in similar competitions .

5 Reference is made to the Report for the Hearing for a fuller 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 .

The alleged lack of a statement of reasons

6 According to the applicants, the decision not to admit them to the competition does not contain an adequate statement of the reasons on which it is based since the Selection Board did not provide them with individual explanations enabling them to determine the precise reasons for which their experience had been adjudged unsatisfactory .

7 It should be noted that the Court has consistently held that, in order to take account of the practical difficulties which arise in a competition in which there is a very large number of applicants, the Selection Board may initially send to candidates merely information on the criteria for selection and the result thereof, provided that they give individual explanations at a later stage to those candidates who expressly request them ( judgments in Case 195/80 Michel v Parliament (( 1981 )) ECR 2861; Case 225/82 Verzyck v Commission (( 1983 )) ECR 1991; Joined Cases 64, 71 to 73 and 78/86 Sergio v Commission (( 1988 )) ECR 1399 and Joined Cases 100, 146 and 153/87 Basch v Commission (( 1989 )) ECR 447 ).

8 It is apparent from the documents before the Court that only eight of the 13 applicants made individual requests for information as to the criteria which prompted the Selection Board to adopt the contested decision . The Selection Board did not reply individually to those requests but on 21 May 1987 sent all the persons concerned by the assessment of practical experience, including those candidates who had not asked for explanations, a statement indicating the criteria applied for that purpose .

9 That statement contained details which were, in this case, sufficient to enable each candidate to be apprised, by reference to his study and work record, of the factors on which the Selection Board' s decision in relation to him was based, and to enable the Court to review the grounds on which the decision was taken .

10 Although two of the applicants ( Mrs Cano and Mrs Couve ) approached the Selection Board after receiving the statement of 21 May 1987, their requests were not that the Selection Board should provide additional individual explanations but rather that it should reconsider its decision not to admit them to the competition . Those requests did not therefore place the Selection Board under an obligation to give a more detailed statement of its reasons for the initial decisions . The fact that it did not consider itself obliged to change those decisions is immaterial in that respect .

11 It follows that an adequate statement of the reasons for the contested decisions was given and that the first submission must be dismissed .

The submissions concerning the general criteria determined and applied by the Selection Board

12 It is appropriate to examine together the second and third submissions which relate, in the first place, to the criteria adopted by the Selection Board for evaluation of the length and type of practical experience considered equivalent to a certificate of advanced secondary education and, in the second place, to the inequalities to which the application of those criteria allegedly led .

13 It must be stated in the first place that, in defining the conditions for admission to the competition, in particular the condition relating to experience equivalent to a certificate, the competition notice merely repeated the general wording of the third subparagraph of Article 5 ( 1 ) of the Staff Regulations and thus left it to the Selection Board to decide in each case whether the qualifications and diplomas produced and the relevant experience claimed by each candidate corresponded to the level required by the Staff Regulations for the discharge of duties pertaining to category B .

14 It must be pointed out that the lawfulness of that practice was expressly upheld by the Court in its judgment in Case 44/71 Marcato v Commission (( 1972 )) ECR 427 . Moreover, the applicants did not claim that the competition notice was unlawful or object to the Selection Board' s adoption of general criteria for the assessment of the candidates' practical experience .

15 It follows from the foregoing considerations that it is necessary to decide whether, as claimed by the applicants, the Selection Board, in determining its criteria, failed to comply with the terms of the competition notice or imposed additional conditions going beyond those laid down in the competition notice, having regard to the nature of the duties involved .

16 It must be borne in mind that, in view of the general terms in which the competition notice was framed, the Selection Board enjoyed a wide margin of discretion in defining the criteria according to which the conditions for admission to the competition were to be applied .

17 In exercising that discretion, the Selection Board required, as far as experience equivalent to a certificate of advanced secondary education was concerned, experience acquired in a post normally corresponding to a level of education similar to that of the baccalauréat and considered that the length of that practical experience should considerably exceed the number of years' schooling which it was deemed to replace . On the basis of those criteria the Selection Board drew up a table determining, by reference to each candidate' s level of studies and type of experience, the length of experience needed to take the place of a certificate of advanced secondary education .

18 The criteria thus adopted by the Selection Board appear to be neither arbitrary nor unreasonable having regard to the general terms of the competition notice . It cannot therefore be concluded that the Selection Board failed to comply with the terms of the competition notice or that it imposed additional conditions wider in scope than those laid down for admission in the competition notice, in the light of the duties involved .

19 As regards, finally, the submission based on breach of the principle of equality and of non-discrimination as between officials, the applicants' arguments amount essentially to an objection to the fact that the Selection Board took account of the differences between each of the candidates in terms of practical experience . However, it need merely be pointed out that consideration of those differences was required by the very terms of the competition notice and the Staff Regulations . Moreover, by fixing general criteria in advance and by applying those criteria to all the candidates, the Selection Board in fact eliminated any risk of a breach of the principles of equality and non-discrimination as between officials of the kind alleged by the applicants .

20 It is apparent from the foregoing that the Selection Board did not fail to comply with the terms of the competition notice or with Article 5 of the Staff Regulations or the first paragraph of Article 5 of Annex III to the Staff Regulations or the principles of equality and non-discrimination as between officials . Consequently, the submissions on those matters must be dismissed .

The submission that certain applicants had previously been admitted to the tests in similar competitions

21 The applicants' fourth submission is that the Selection Board should have taken account of the decisions of Selection Boards in previous competitions which, having determined that the practical experience of certain of them was equivalent to a certificate of advanced secondary education, admitted them to the competitions .

22 As the Court held in its judgments in Case 112/7 Kobor v Commission (( 1979 )) ECR 1573, and Case 108/84 De Santis v Court of Auditors (( 1985 )) ECR 947, where the Selection Board can verify fulfilment of the conditions of the competition notice only by making a partially subjective appraisal, it is free to depart from the appraisal made in that regard by previous Selection Boards, but it must then state the special reasons which justify its decision .

23 However, it must also be observed that the obligation to give reasons for every decision concerning a candidate on the ground that the appraisal relating to him is less favourable than one made about him in a previous competition applies only if the person concerned brought the matter to the attention of the Selection Board .

24 A Selection Board cannot be required to make investigations itself in order to determine whether candidates were admitted to the tests in an earlier competition procedure . It is incumbent on the candidates to provide the Selection Board with all the information they consider pertinent to the appraisal of their applications, even if they have not been formally called on to do so .

25 In any event, the applicants could have mentioned that fact, together with any other matter likely to bring about a change in the decision not to admit them, when that decision was notified to them .

26 It is apparent from the documents in the case that, with the exception of Mrs Muller and Mr Mallaby, none of the applicants drew the Selection Board' s attention to the fact that they had been admitted to one or more previous B competitions .

27 Mrs Muller, by memorandum sent to the Selection Board on 26 May 1987, expressly stated that she had been admitted to Competitions Nos CJ 34/80 and 133/81 . It is undisputed that the Selection Board did not give her any individual account of the reasons for which her practical experience had been appraised less favourably in the competition at issue than in previous competitions . Accordingly, the decision not to admit her to the competition must be annulled .

28 Mr Mallaby informed the Selection Board that, in view of his experience, he could be admitted to an external B competition at the Commission of the European Communities . However, he gave no indication on the basis of which his statement could be verified and reasons be given for the less favourable assessment of his practical experience in the competition at issue . Moreover, although the applicants were asked by the Court to specify the competitions to which they had been admitted, Mr Mallaby gave no precise information in that regard .

29 It follows that the fourth submission must be upheld with respect to Mrs Muller and dismissed as far as the other applicants are concerned .

30 It is apparent from the foregoing considerations that the decision of the Selection Board in competition No CJ 80/86 refusing the applicants admission to the tests must be annulled in Mrs Muller' s case . For the rest, the application is to be dismissed .

Costs

31 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 those rules, the costs incurred by the institutions in proceedings by servants of the Communities are to be borne by those institutions .

On those grounds,

THE COURT ( First Chamber ),

hereby :

( 1 ) Annuls the decision of the Selection Board in competition No CJ 80/86 refusing to admit Mrs Muller to the competition;

( 2 ) For the rest, dismisses the application;

( 3 ) Orders the applicants, with the exception of Mrs Muller, to bear their own costs;

4 . Orders the Court of Justice to pay Mrs Muller' s costs, in addition to its own costs .