61987J0164

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1 . Officials - Action - Interest in bringing proceedings - Action for the annulment of all the steps in a competition - Candidate admitted to the tests but whose name was not placed on the list of suitable candidates - Admissible only in regard to the final decision adversely affecting him

( Staff Regulations of Officials, Art . 91 )

2 . Officials - Action - Action brought against a decision of a selection board - Submissions alleging irregularities in the competition notice not contested in good time - Inadmissible

( Staff Regulations of Officials, Art . 91 )

1 . If a competition consists of a series of separate operations giving rise to measures which may be contested separately, a candidate may challenge only the decisions adversely affecting him and where he was eliminated only at the final stage when the list of suitable candidates was drawn up, he cannot seek the annulment of all the steps in the competition .

2 . An official may not, in support of an action brought against a decision of a selection board, rely on submissions alleging irregularities in the competition notice if he did not challenge in good time the provisions of a competition notice which, in his view, adversely affects him . Were it otherwise, it would be possible to challenge a competition notice long after it had been published and after most, or all, of the operations carried out in connection with the competition had already taken place, and that would be contrary to the principles of legal certainty, legitimate expectation and sound administration .

The situation of an applicant who relies on irregularities the origin of which may be found in the wording of the competition notice but which occurred in the course of the competition is different .

In Case 164/87

Luciano Simonella, an official of the Commission, represented by Carlo Revoldini, of the Luxembourg Bar, with an address for service in Luxembourg at the latter' s Chambers, 21 rue Aldringen,

applicant,

v

Commission of the European Communities, represented by its Legal Adviser, Peter Kalbe, acting as agent, with an address for service in Luxembourg at the office of G . Kremlis, a member of the Commission' s Legal Department, Jean Monnet Building, Kirchberg,

defendant,

APPLICATION for the annulment of the decision of the Selection Board in Internal Competition No COM/A/8/84 not to place the applicant' s name on the list of suitable candidates,

THE COURT ( Second Chamber )

composed of : O . Due, President of the Chamber, K . Bahlmann, and T . F . O' Higgins, Judges,

Advocate General : C . O . Lenz

Registrar : D . Louterman, Administrator

having regard to the Report for the Hearing and further to the hearing on 19 April 1988,

after hearing the Opinion of the Advocate General delivered at the sitting on 5 May 1988,

gives the following

Judgment

1 By an application lodged at the Court Registry on 4 June 1987, Luciano Simonella, an official in Grade B 3 of the Commission of the European Communities, brought an action for the annulment of Internal Competition No COM/A/8/84 or, in the alternative, for the annulment of the decision of the Selection Board in that competition not to place his name on the list of suitable candidates .

2 Internal Competition No COM/A/8/84, held on the basis of qualifications and tests, was organized by the Commission for the purpose of constituting a reserve of administrators ( Grades A 7 and A 6 ). Only officials classified in Grades B 3 to B 1 since 1980 were eligible to take part since the purpose of the competition was to enable officials in Category B to be appointed to Category A . 283 candidates were admitted to the competition .

3 The competition took place in three stages : a pre-selection stage, a training stage and, finally, an oral test .

4 At the end of the first stage, the Selection Board designated the candidates best qualified to be admitted to the following stage on the basis of the candidates' individual files and the result of a written paper .

5 The 87 candidates permitted to proceed to the second stage of the competition, of which the applicant was one, took part in a compulsory training course, organized and defined by the Selection Board, which took place over a period of four weeks .

6 Once the candidates had completed that training programme, they were given an interview, which, according to the competition notice, was to enable the Selection Board to assess their qualifications and their ability to carry out Category A duties . The interview was marked out of 50, a minimum of 30 marks being required for inclusion on the list of suitable candidates . Of the 84 candidates, including the applicant, who were interviewed, the names of 38 were placed on the list of suitable candidates .

7 By a letter of 17 June 1986, the applicant was informed that his name had not been placed on the list of suitable candidates since he had obtained only 24.7 marks .

8 On 10 September 1986, the applicant submitted a complaint against that decision under Article 90 ( 2 ) of the Staff Regulations . On 9 March 1987, the Commission' s decision rejecting that complaint was communicated to him .

9 Reference is made to the Report for the Hearing for a fuller account of the facts of the case 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 .

Admissibility

10 The Commission claims that the application is inadmissible in so far as it is for the annulment of Competition No COM/A/8/84 .

11 In that regard, it must be pointed out that a competition, and in particular the competition involved in this case, consists of a series of separate operations giving rise to measures which may be contested separately .

12 Since the applicant passed the first two stages of the competition in question, the principle of which he does not contest, all the steps in the competition are not of such a nature as to adversely affect him . The applicant cannot therefore be justified, under Article 91 ( 1 ) of the Staff Regulations, in seeking a general and indefinite annulment of all the steps in the competition .

13 It follows that the application is admissible only in so far as an alternative claim is made for the annulment of the decision of the Selection Board not to place the applicant' s name on the list of suitable candidates .

14 The Commission also contends that the submissions put forward by the applicant contesting the competition notice are inadmissible on the ground that they are out of time .

15 In that regard, it should be borne in mind that, according to the Court' s case-law ( see the judgment of 11 March 1986 in Case 294/84 Adams and Others v Commission (( 1986 )) ECR 977 ), an official must challenge in good time a competition notice which, in his view, adversely affects him on the ground that it is irregular . Were it otherwise, it would be possible to challenge a competition notice long after it had been published and after most or all of the operations carried out in connection with the competition had already taken place, and that would be contrary to the principles of legal certainty, legitimate expectation and sound administration .

16 However, it also follows from the Court' s case-law ( see the judgment of 8 March 1988 in Joined Cases 64, 71 to 73 and 78/86 Sergio and Others v Commission (( 1988 )) ECR 1399 ) that the failure to challenge a competition notice within the time-limit laid down does not prevent an applicant from relying on irregularities occurring in the course of the competition, even if the origin of those irregularities may be found in the wording of the competition notice .

17 It follows that whilst those submissions must be rejected in so far as they relate to the irregularity of the competition notice as such, they must be considered in relation to the substance of the case in so far as they relate to irregularities vitiating the conduct of the competition itself .

Substance of the case

18 In his first submission, the applicant maintains essentially that, contrary to Article 1 ( 1 ) ( e ) of Annex III to the Staff Regulations, the competition notice failed to specify the marks carried by the candidates' qualifications, the written paper and the training period, the decision of the Selection Board being based solely on the result of the final oral test, which was the only test for which the marking is laid down in the competition notice .

19 It follows from the considerations set out above with regard to admissibility that whilst this submission must be rejected in so far as it concerns the non-indication in the competition notice of the marks to be carried by certain tests, it must still be considered in so far as it concerns the reasons on which the contested decision is based .

20 In that regard it is sufficient to point out that the competition in question involved three distinct stages, consisting of a preliminary selection stage to enable the Selection Board to choose the candidates which it regarded as being best qualified to proceed to the following stage, a compulsory training stage not involving any assessment of the candidates and, finally, an oral test marked out of 50 meant to enable the Selection Board to assess the candidates' qualifications and their ability to carry out Category A duties .

21 It follows that the stages of the competition which preceded the oral test were solely intended to select and prepare candidates for that test and that the decision whether or not to enter an official' s name on the list of suitable candidates could be formed only on the basis of the assessment made at the interview . The applicant' s complaint is therefore manifestly irrelevant in regard to the contested decision .

22 In his second submission, the applicant essentially claims that in drawing up the list of suitable candidates the Selection Board applied criteria which have no relation to the competition . In that regard, the applicant points out that, contrary to all probability, the proportion of candidates from departments based in Luxembourg ( 26 %) and from those based in Brussels ( 74 %) remained exactly the same in the case of both candidates admitted to the interview and candidates whose names were placed on the list of suitable candidates . The applicant also points out that, contrary to all mathematical probability, none of the candidates belonging, like him, to the Office for Official Publications of the European Communities had their names entered on the list, although 6 of the 23 candidates based in Luxembourg who were admitted to the interview were from that Office . The applicant concludes that the Selection Board discriminated against candidates employed at the Publications Office or, at the very least, arranged the interview in such a way as not to eliminate inequalities due solely to the candidates' different places of employment .

23 The Commission contends that the decisions of the Selection Board were taken independently and impartially by applying selection criteria provided for in the competition notice without taking account of any geographical considerations or of candidates' belonging to a particular Commission department .

24 With regard to the complaint that the Selection Board applied a criterion based on the place of candidates' employment, it should be pointed out that, in the absence of firm evidence, the mere fact that the relevant statistics for two stages of the competition coincide is not sufficient to prove that the Selection Board applied such a criterion .

25 With regard to the complaint that candidates belonging to a particular Commission department were discriminated against, it is also sufficient to point out that, in the absence of firm evidence, it cannot be concluded merely from the fact that the successful candidates belonged to certain Commission departments that such discrimination existed .

26 Finally, as regards the complaint that candidates' chances were not equal owing to their different places of employment, it should be pointed out that the competition in question was intended to establish a reserve of officials in Category A qualified to perform the duties corresponding to that category in all of the Commission' s departments .

27 It should also be pointed out that, according to the competition notice, the purpose of the interview was to enable the Selection Board to assess the candidates' qualifications and their ability to carry out Category A duties .

28 It can be seen from the documents concerning the Selection Board' s work, submitted by the Commission at the Court' s request, that the oral test involved four stages . The candidates first replied to a general question drawn by lot . They then spoke about their training and their past and present work . Next, they were asked about the role of their present work within the context of one of the Community' s policies . Finally, candidates replied to a question concerning Community policies other than the one to which their present work related . It must be acknowledged that in principle such a procedure is capable of ensuring equal opportunity for all candidates .

29 On the other hand, it cannot be denied that the more or less specialized nature of the duties performed by the candidates in their present posts could influence their ability to perform Category A duties . However, the training programme provided for as part of the competition was of such a nature as to remedy such inequalities . In any event, it was not for the Selection Board to eliminate such inequalities at the oral test, the purpose of which was precisely to assess the ability of the candidates to perform Category A duties .

30 It follows that this complaint is also without foundation and that, consequently, the application must 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, Article 70 of those Rules provides that institutions are to bear their own costs in proceedings brought by officials or servants of the European Communities .

On those grounds,

THE COURT ( Second Chamber )

hereby :

( 1 ) Dismisses the application;

( 2 ) Orders the parties to bear their own costs .