Keywords
Summary

Keywords

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1. Officials ° Actions ° Action for damages brought in the absence of a pre-litigation procedure in accordance with the Staff Regulations ° Inadmissibility

(Staff Regulations, Arts 90 and 91)

2. Officials ° Actions ° Judgment annulling a measure ° Effects ° Annulment of a decision of a selection board ° Obligations of the administration ° Changes to the composition of the selection board ° Permissible ° Conditions

(EEC Treaty, Art. 176; Staff Regulations, Annex III)

3. Officials ° Competitions ° Competition based on qualifications and tests ° Refusal to include on the list of suitable candidates ° Decision adversely affecting an official ° Obligation to provide a statement of reasons ° Scope

(Staff Regulations, Art. 25, second para.; Annex III, Art. 5)

4. Officials ° Actions ° Interest in bringing proceedings ° Action for annulment of a decision of a selection board ° Plea alleging absence of a statement of reasons ° Decision not capable of being changed ° Inoperative plea

(Staff Regulations, Art. 91)

Summary

1. In the absence of an act having an adverse effect, the pre-litigation procedure, the purpose of which is to permit and encourage the amicable settlement of differences which have arisen between an official and the administration is, in principle, a two-stage procedure. Under Article 90(1) of the Staff Regulations, any official may submit to the appointing authority a request that it take a decision relating to him. In the event of an unfavourable reply or in the absence of a reply, the person concerned may submit a complaint challenging the express or implied rejection of his request, in accordance with Article 90(2) of the Staff Regulations in order to compel the administration to reconsider its decision in the light of the objections made in the complaint.

As regards the admissibility of a claim for compensation, it is only where there is a direct link between an action for annulment and such a claim that the latter is admissible as ancillary to the action for annulment, without necessarily having to be preceded both by a request from the person concerned to the appointing authority for compensation for the damage allegedly suffered and by a complaint challenging the validity of the implied or express rejection of that request. However, where the damage alleged does not stem from an act whose annulment is sought, but from several wrongful acts or omissions alleged against the administration, it is imperative that the pre-litigation procedure should be initiated by a request that the appointing authority compensate for that damage and continued, where appropriate, by a complaint made against the decision to reject the request.

2. In the event of an act of an institution being annulled by one of the Community courts, it is for the institution, pursuant to Article 176 of the Treaty, to take the necessary measures to comply with the judgment. Where a decision of a selection board has been annulled, for failure to give a statement of reasons and for procedural irregularity, compliance with the judgment involves restoring the situation prevailing prior to the occurrence of the facts found unlawful by the Court. However, where, for reasons beyond its control, it is impossible for the administration to reconstitute the selection board as originally composed, it may, for the sole purpose of ensuring the continuity of the Community civil service, replace certain members, while in so doing maintaining a situation which is as close as possible to the original situation.

3. The purpose of the obligation to state the reasons for an individual decision adopted under the Staff Regulations is to provide the person concerned with sufficient details to allow him to ascertain whether or not the decision is well founded and to make it possible for the decision to be subject to judicial review. As to the statement of reasons for a decision of the selection board not to put the candidate' s name on the list of suitable candidates, the selection board is entitled in certain cases not to send immediately to the applicant the details of the results obtained in the tests, provided that the applicant is informed that those results were not satisfactory and that they will be sent to him if so requested. Where such a request is acted on, it must be considered that the applicants are in a position to assess, in the light of the statement of reasons for the selection board' s decision, the desirability of bringing an action before the Court.

4. Where a candidate has failed the tests for a competition, he has no legitimate interest in obtaining the annulment, on the ground of absence or inadequacy of the reasons on which it is based, of a decision by which the selection board refused to accept him as a successful candidate. The results of tests cannot be changed following annulment of the selection board' s decision, which could thus only be confirmed.