61964J0023

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1 . OFFICIALS - RECRUITMENT - GENERAL COMPETITION - RIGHT OF APPEAL OF PARTICIPANTS - CANDIDATES FROM OUTSIDE THE COMMUNITIES

( ECSC, EEC AND EAEC STAFF REGULATIONS, ARTICLES 27 AND 91 )

2 . OFFICIALS - STAFF REGULATIONS - GENERAL PROVISIONS FOR GIVING EFFECT THERETO - DUTY TO ADOPT SUCH PROVISIONS - PROCEDURE RELATING TO COMPETITION

( ECSC STAFF REGULATIONS, ARTICLE 107; EEC AND EAEC STAFF REGULATIONS, ARTICLE 110 )

1 . CANDIDATES IN GENERAL COMPETITIONS, EVEN THOSE FROM OUTSIDE THE COMMUNITIES, MAY INSTITUTE PROCEEDINGS BEFORE THE COURT CONCERNING A POSSIBLE INFRINGEMENT OF THE RULES CONCERNING PROCEDURE RELATING TO COMPETITION .

2 . CF . PARA . 4 OF SUMMARY IN CASE 16/64, ( 1965 ) ECR 135 .

( A ) THE EXPRESSION 'THE GENERAL PROVISIONS FOR GIVING EFFECT TO THESE STAFF REGULATIONS' APPEARING IN ARTICLE 110 OF THE STAFF REGULATIONS OF OFFICIALS OF THE EEC AND THE EAEC REFERS IN THE FIRST INSTANCE TO THE PROVISIONS WHICH EACH INSTITUTION IS OBLIGED TO MAKE IN EXECUTION OF CERTAIN MANDATORY PROVISIONS OF THE REGULATONS, SUCH AS THE FIRST PARAGRAPH OF ARTICLE 2, AND THE SECOND SUBPARAGRAPH OF ARTICLE 5 ( 4 ).

IN THE ABSENCE OF SUCH RULES THE OBLIGATION TO ADOPT 'GENERAL PROVISIONS FOR GIVING EFFECT' TO THE STAFF REGULATIONS CAN BE RECOGNIZED ONLY IN THE CASES IN WHICH THE PROVISIONS OF THE REGULATIONS ARE NOT SUFFICIENTLY EXPLICIT BY THEMSELVES .

( B ) THE PROVISIONS OF THE STAFF REGULATIONS CONCERNING THE PROCEDURE FOR COMPETITIONS ARE SUFFICIENTLY CLEAR BY THEMSELVES .

*/ 664J0016 /*.

IN CASE 23/64

THERESE MARIE-LOUISE VANDEVYVERE, RESIDING AT 9 K.L . LEDEGANCKSTRAAT, GHENT, ASSISTED BY MARCEL SLUSNY, ADVOCATE OF THE COUR D' APPEL, BRUSSELS, LECTURER AT THE FREE UNIVERSITY OF BRUSSELS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE RESIDENCE OF BERNARD SCHMITZ, 6 RUE J.B . ESCH,

APPLICANT,

V

EUROPEAN PARLIAMENT, LUXEMBOURG, REPRESENTED BY ITS SECRETARY-GENERAL HANS ROBERT NORD, ACTING AS AGENT, ASSISTED BY ALEX BONN, ADVOCATE AT THE LUXEMBOURG BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE LATTER'S CHAMBERS, 22 COTE D' ESCH,

DEFENDANT,

APPLICATION FOR THE ANNULMENT OF COMPETITION NO P.E . 1/B AND CERTAIN MEASURES ADOPTED DURING THE COURSE OF THE SAID COMPETITION;

P.163

I - CONCERNING THE OBJECT OF THE PROCEEDINGS

UNDER THE FIRST HEAD OF THE CONCLUSIONS OF THE APPLICATION, THE APPLICANT ASKED FOR THE ANNULMENT OF A DECISION ALLEGED TO HAVE BEEN TAKEN BY THE SELECTION BOARD, BY WHICH SHE WAS ' ELIMINATED FROM THE LIST OF CANDIDATES PROVIDED FOR IN THE FIRST PARAGRAPH OF ARTICLE 5 OF ANNEX III TO THE STAFF REGULATIONS '.

DURING THE ORAL PROCEDURE THE APPLICANT ADMITTED HAVING BEEN THE VICTIM OF AN ERROR OF TERMINOLOGY SINCE THE ONLY DECISION ACTUALLY TAKEN IN RESPECT OF HER WAS TAKEN UNDER THE FOURTH PARAGRAPH OF THE SAID ARTICLE AND CONSISTED OF NOT ADMITTING HER TO THE TESTS .

THE APPLICANT HAVING THUS ABANDONED THE FIRST HEAD OF HER CONCLUSIONS IT IS UNNECESSARY TO DECIDE UPON THE PLEA OF INADMISSIBILITY BASED UPON THE NON-EXISTENCE OF THE DECISION IN QUESTION .

THE SUBJECT OF THE PROCEEDINGS THEREFORE CONSISTS ONLY OF THE DECISION NOT TO ADMIT THE APPLICANT TO THE TESTS .

II - AS TO THE ADMISSIBILITY OF THE APPLICATION

1 . THE DEFENDANT CONSIDERS THE APPLICATION INADMISSIBLE, FOR THE REASON THAT ONLY SERVANTS OF THE COMMUNITY HAVE THE CAPACITY TO MAKE AN APPLICATION UNDER ARTICLE 91 OF THE STAFF REGULATIONS .

ARTICLE 91 GIVES THE RIGHT OF APPEAL TO ' ANY PERSON TO WHOM THESE STAFF REGULATIONS APPLY '.

P.164

ARTICLE 27 OF THE REGULATIONS APPLIES BY IMPLICATION TO CANDIDATES IN GENERAL COMPETITIONS, EVEN THOSE OUTSIDE THE COMMUNITIES .

IN MENTIONING ' CANDIDATES ', ANNEX III TO THE REGULATIONS CLEARLY APPLIES TO ALL THE CANDIDATES TAKING PART IN THE GENERAL COMPETITIONS PROVIDED FOR IN ARTICLE 1(1)(A ) OF THE SAID ANNEX, WHETHER OR NOT THEY ARE SERVANTS OF THE COMMUNITY .

FURTHERMORE, SINCE THE RULES RELATING TO GENERAL COMPETITIONS WERE DRAWN UP FOR THE PROTECTION OF ALL CANDIDATES, THESE CANDIDATES ARE TO BE CONSIDERED AS PERSONS TO WHOM THESE RULES APPLY AND, CONSEQUENTLY, BEING COMPETENT TO BRING A CASE BEFORE THE COURT, IN ACCORDANCE WITH THE PROCEDURE IN ARTICLE 91, FOR A POSSIBLE INFRINGEMENT OF THE SAID RULES .

THIS PLEA OF INADMISSIBILITY MUST THEREFORE BE REJECTED .

2 . THE DEFENDANT CONTENDS THAT THE COURT SHOULD HOLD ' THE MERE ENUMERATION OF PROVISIONS OF THE REGULATIONS ALLEGED TO HAVE BEEN INFRINGED AND OTHER REASONS FOR ANNULMENT...INSUFFICIENT ' AND HOLDING ' FURTHERMORE THAT THE RESERVATION OF THE RIGHT TO PUT FORWARD FURTHER SUBMISSIONS IS INVALID ', TO REGARD ' AS VALID ONLY THE SUBMISSIONS SET OUT IN THE APPLICATION '.

IN RESPECT OF THE FIRST OF THESE OBJECTIONS, IT APPEARS ON READING THE APPLICATION THAT IN ENUMERATING THE PROVISIONS WHICH SHE CONSIDERS TO HAVE BEEN INFRINGED, AS WELL AS THE REASONS FOR ANNULMENT OF THE DISPUTED DECISION, THE APPLICANT DID NOT INTEND TO PUT FORWARD DISTINCT SUBMISSIONS, BUT ONLY TO PRESENT THE THREE SUBMISSIONS ACTUALLY MADE . THE OBJECTIONS IN QUESTION ARE THUS IRRELEVANT ON THIS POINT .

AS TO THE SECOND OF THE SAID OBJECTIONS, IT IS EQUALLY IRRELEVANT AS THE APPLICANT DID NOT PUT FORWARD ANY NEW SUBMISSIONS DURING THE PROCEEDINGS .

IT FOLLOWS FROM ALL THE PRECEDING CONSIDERATIONS THAT THE APPLICATION IS ADMISSIBLE .

III - ON THE SUBSTANCE OF THE CASE

1 . THE FIRST SUBMISSION

THE APPLICANT POINTS OUT THAT CONTRARY TO ARTICLES 107 OF THE ECSC STAFF REGULATIONS AND 110 OF THE EEC AND EAEC STAFF REGULATIONS, THE DEFENDANT HAS FAILED TO LAY DOWN GENERAL PROVISIONS FOR GIVING EFFECT TO THE STAFF REGULATIONS IN RESPECT OF COMPETITIONS, OR ALTERNATIVELY HAS MADE SUCH PROVISIONS WITHOUT CONSULTING THE STAFF COMMITTEE OR THE STAFF REGULATIONS COMMITTEE AND WITHOUT BRINGING THE SAID PROVISIONS TO THE ATTENTIONS OF THE STAFF .

P.165

THE DEFENDANT ASSERTS THAT THIS SUBMISSION IS INADMISSIBLE AS A CANDIDATE WHO IS NOT IN THE SERVICE OF THE COMMUNITY HAS NO INTEREST IN ASSERTING THE POSSIBLE INFRINGEMENT OF THE PROVISIONS IN QUESTION .

THIS PLEA MUST BE REJECTED; IN FACT ' EXTERNAL ' CANDIDATES HAVE, TO THE SAME EXTENT AS CANDIDATES FROM WITHIN THE COMMUNITY, A CLEAR INTEREST IN HAVING THE PROVISIONS OF THE REGULATIONS CORRECTLY APPLIED TO THEM .

THE EXPRESSION ' THE GENERAL PROVISIONS FOR GIVING EFFECT TO THESE STAFF REGULATIONS ' APPEARING IN ARTICLES 107 AND 110 MENTIONED ABOVE REFERS IN THE FIRST INSTANCE TO THE PROVISIONS WHICH EACH INSTITUTION IS OBLIGED TO MAKE IN EXECUTION OF CERTAIN MANDATORY PROVISIONS OF THE REGULATIONS, SUCH AS THE FIRST PARAGRAPH OF ARTICLE 2 AND THE SECOND SUBPARAGRAPH OF ARTICLE 5(4 ). IN THE ABSENCE OF SUCH RULES, THE OBLIGATION TO ADOPT ' GENERAL PROVISIONS FOR GIVING EFFECT ' TO THE STAFF REGULATIONS CAN BE RECOGNIZED ONLY IN THE CASES IN WHICH THE PROVISIONS OF THE REGULATIONS ARE NOT SUFFICIENTLY EXPLICIT BY THEMSELVES .

THE PROVISIONS OF THE REGULATIONS CONCERNING THE PROCEDURE FOR COMPETITIONS NOWHERE PROVIDE THAT THE INSTITUTIONS SHALL ADOPT GENERAL PROVISIONS FOR GIVING EFFECT TO THEM . MOREOVER THE SAID PROVISIONS ARE SUFFICIENT IN THEMSELVES .

THUS IN RELATION TO COMPETITION, THE DEFENDANT WAS NOT OBLIGED TO ADOPT ' GENERAL PROVISIONS FOR GIVING EFFECT ' TO THE RELEVANT REGULATIONS WITHIN THE MEANING OF ARTICLES 107 AND 110 MENTIONED ABOVE . FURTHERMORE THE COURT SEES NO REASON TO DOUBT THE STATEMENT OF THE DEFENDANT TO THE EFFECT THAT IT DID NOT IN FACT TAKE SUCH MEASURES AND THE APPLICANT HAS NOT ALLEGED FACTS CAPABLE OF PROVING THE CONTRARY; THIS SUBMISSION IS THEREFORE UNFOUNDED .

2 . THE SECOND SUBMISSION

THE APPLICANT POINTS OUT THAT THE DECISION NOT TO ADMIT HER TO THE TESTS AFFECTS HER ADVERSELY AND THAT THE REASONS ON WHICH IT WAS BASED SHOULD HAVE BEEN STATED IN ACCORDANCE WITH ARTICLE 25 OF THE STAFF REGULATIONS .

UNDER ARTICLE 6 OF ANNEX III TO THE REGULATIONS THE PROCEEDINGS OF THE SELECTION BOARD SHALL BE SECRET . BY MENTIONING THAT THE SELECTION BOARD PROCEEDED ' TO A FIRST CHOICE OF CANDIDATES WHO CLEARLY HAD THE HIGHEST QUALIFICATIONS ', THE DISPUTED DECISION INDICATES THE REASONS UPON WHICH IT IS BASED WITH AS MUCH CLARITY AS THE SAID ARTICLE 6 WILL PERMIT .

P.166

CONSEQUENTLY THIS SUBMISSION LACKS A BASIS OF FACT .

3 . THE THIRD SUBMISSION

( A ) THE APPLICANT ALLEGES THAT THE DISPUTED DECISION LACKS A BASIS OF FACT AND THAT INDEED SHE HAD THE QUALIFICATIONS REQUIRED BY THE NOTICE OF COMPETITION, AND TO SOME EXTENT EVEN SUPERIOR QUALIFICATIONS .

ACCORDING TO THE WORDING OF THE FOURTH PARAGRAPH OF ARTICLE 5 OF ANNEX III TO THE REGULATIONS, THE SELECTION BOARD SHALL STATE WHICH OF THE CANDIDATES ' ON ' THE LIST, WHO MEET THE REQUIREMENTS SET OUT IN THE NOTICE OF COMPETITION, SHALL BE ADMITTED TO THE TESTS . THEREFORE THE SELECTION BOARD IS ENTITLED TO ALLOW ONLY A LIMITED NUMBER OF THE CANDIDATES ADMITTED TO THE COMPETITION TO TAKE THE TESTS .

THE STATEMENT OF THE APPLICANT IN RESPECT OF HER QUALIFICATIONS IS PERFECTLY CONSISTENT WITH THE COMMUNICATION WHICH SHE RECEIVED AND FROM WHICH IT APPEARS THAT A NUMBER OF CANDIDATES REGARDED AS SUFFICIENT BY THE SELECTION BOARD HAD QUALIFICATIONS SUPERIOR TO HERS .

CONSEQUENTLY THIS STATEMENT IS NOT AN INDICATION THAT THE SELECTION BOARD BASED ITS DECISION ON REASONS WHICH WERE INCORRECT IN LAW .

( B ) THE APPLICANT CLAIMS IN ADDITION THAT ' ACCORDING TO CERTAIN INFORMATION ', THE SELECTION BOARD FIRST PLACED HER AT THE HEAD OF THE ABOVEMENTIONED LIST AND THAT HER NAME DISAPPEARED FROM IT ' FOLLOWING EXTERNAL INTERVENTION '. HOWEVER, THE APPLICANT HAS NOT INDICATED PRECISE FACTS IN SUPPORT OF THIS ASSERTION AND HAS THUS NOT FURNISHED INITIAL EVIDENCE SUFFICIENT TO LEAD THE COURT TO ORDER A PREPARATORY INQUIRY IN THIS RESPECT .

IT FOLLOWS FROM ALL THE PRECEDING CONSIDERATIONS THAT THE PRESENT SUBMISSION IS UNFOUNDED .

4 . CONCERNING THE PREPARATORY INQUIRY REQUESTED BY THE APPLICANT

THE APPLICANT CLAIMS AS A SUBSIDIARY MATTER THAT THE COURT SHOULD DECLARE ' THE MEASURES UNDERTAKEN NULL AND VOID BY REASON OF THE FAILURE OF THE OTHER PARTY TO PRODUCE THE DOCUMENTS IN THE CASE '. SHE CLAIMS, AS A FURTHER SUBSIDIARY MATTER, THAT THE COURT SHOULD ORDER THE DEFENDANT ' TO PRODUCE ALL ITS DOCUMENTS AND PROVIDE ALL THE INFORMATION DECIDED UPON BY THE COURT AND IN PARTICULAR TO PRODUCE ALL THE DOCUMENTS ON THE FILE CONCERNING THE COMPETITION IN QUESTION ', AND ' IF NECESSARY ' THAT THE COURT SHOULD REQUEST ' THE VARIOUS COMMUNITY INSTITUTIONS, NOT BEING PARTIES TO THE CASE, TO SUPPLY ALL NECESSARY INFORMATION, IN PARTICULAR AS TO THE EXISTENCE OF GENERAL PROVISIONS FOR GIVING EFFECT TO THE REQUIREMENTS OF THE REGULATIONS CONCERNING COMPETITIONS AND OF ANNEX III TO THE REGULATIONS '.

THE PROCEEDINGS OF THE SELECTION BOARD ARE SECRET UNDER ARTICLE 6 OF ANNEX III AND THE MINUTES OF THE SELECTION BOARD MUST THEREFORE NOT BE PRODUCED EXCEPT IN ACCORDANCE WITH AN EXPRESS REQUEST FROM THE COURT . THE DEFENDANT HAS STATED THAT IT DOES NOT POSSESS ANY PERSONAL FILE FOR THE APPLICANT AS SHE IS NOT IN ITS SERVICE . THIS STATEMENT IS IN CONFORMITY WITH ARTICLE 26 OF THE STAFF REGULATIONS . CONSEQUENTLY THE PRESENT SUBMISSION IS UNFOUNDED .

FURTHERMORE THE COURT CONSIDERS IT UNNECESSARY TO CARRY OUT THE PREPARATORY INQUIRY REQUESTED BY THE APPLICANT AS THE INFORMATION ALREADY AT ITS DISPOSAL ALLOWS IT TO GIVE JUDGMENT UPON THE PRESENT APPLICATION .

IT FOLLOWS FROM ALL THE PRECEDING CONSIDERATIONS THAT THE PRESENT APPLICATION IS UNFOUNDED .

THE APPLICANT HAS FAILED IN HER APPLICATION . UNDER ARTICLE 69(2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS . HOWEVER UNDER ARTICLE 70 OF THE SAID RULES, INSTITUTIONS SHALL BEAR THEIR OWN COSTS IN CASES OF APPLICATIONS BY SERVANTS OF THE COMMUNITIES . BY ORDER OF 15 NOVEMBER 1964 THE COURT ( SECOND CHAMBER ) REJECTED THE REQUEST OF THE APPLICANT FOR LEGAL AID, RESERVING THE COSTS .

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . REJECTS APPLICATION NO 23/64 AS UNFOUNDED;

2 . ORDERS THE APPLICANT TO PAY THE COSTS, INCLUDING THOSE CONCERNING THE APPLICATION FOR LEGAL AID, WITH THE EXCEPTION OF THE COSTS OF THE DEFENDANT .