C-16/64

THE COURT (Second Chamber)

composed of: A. M. Donner, President of Chamber, W. Strauß (Rap­ porteur) and R. Monaco, Judges,

Advocate-General: J. Gand Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

the vacancy of a post in Grade B8 (the 2. Annul so far as necessary the de­ future B3) in the Press and Information cision of the appointing authority to Department of the European Commun­ accept this list of suitable candidates ities' London office. as it stood, without checking the The applicant applied for the post. right of Miss Gertrud Kurz to take However the defendant took the view part in the competition; that the applications received did not 3. Annul the decision of the appointing meet the required conditions and could authority to choose Miss Gertrud not therefore be considered at the stage Kurz and to appoint her to the post of the recruitment procedure laid down advertised in Vacancy Notice No 166 in Article 29 (1) (a) of the Staff Regu­ and in the Notice of Competition lations. No 143/B; 3. By Notice of Competition No EEC/­ 4. Order the defendant to bear the 143/B published in the said Bulletin, whole costs of the present proceed­ No 48 dated 16 August 1963, it was ings; brought to The attention of the staff that a competition internal to the institution 5. Place it on record that the applicant reserves the right, after production was being held in order to fill the post concerned. It was stated that the Com­ by the defendant of its documents petition was open both to officials and and after the presentation of its sub­ to auxiliary staff. The applicant and four missions, to raise any submissions other persons, including Miss Kurz, who contesting in particular the validity had been engaged as an auxiliary as of the competition procedure, both as from 15 February 1963, applied for the regards the composition of the Selec­ tion Board and the conduct of the post. 4. By letter dated 4 December 1963 competition having regard to the pro­ each of these two candidates was in­ visions of the Staff Regulations, par­ formed that her name had been placed ticularly Annex III, and to provisions oh the list of suitable candidates. laid down by the Commission itself 5. Miss Kurz was placed first on the relating to the composition of Selec­ tion Boards.' list and the applicant second and on 20 February 1964 the Committee of In her reply the applicant further claims Chairmen decided to appoint Miss Kurz that the Court should: to the post. By letter dated 11 March 'Alternatively: 1964 the administration informed the Annul Competition 143/B; applicant that she had not been chosen. as additional minor points: 6. On 29 April 1964 the defendant Order the defendant to produce: started the present proceedings. (a) the documents relating to the con­ sultation with the Joint Committee and the head of the department II — Conclusions of the concerned, as provided in Article 1 parties (1) of Annex III to the Staff Regu­ lations; In her application the applicant claims (b) the document S/01965/, dated 21 that the Court should: June 1963, of the executive secre­ '1. Annul the decision of 'the Selection tariat containing the provisions re­ Board for the competition to admit lating to competitions; Miss Gertrud Kurz to Competition i(c) the detailed rules for the applica­ No 143/B, and to place her name tion of Article 11 of the Commis­ on the list of suitable candidates: sion's Internal Regulations.'

In its statement of defence and rejoinder a submission such as this one is out of the defendant contends that the Court time. should: The defendant's view would expose the 'Dismiss the appeal as inadmissible and institutions to interminable cascades of unfounded on all points, and make an litigation. It is logical to be able to order as to costs in accordance with the contest an original measure at the same relevant provisions.' time as the definitive one if the former has not created an irreversible situation, which is not the case here. III — Submissions and argu­ The defendant replies that the judgment ments of the Parties in the case of Wollast, nee Schmitz, settled a different question. In the pres­ The main submissions and arguments of ent case the defendant does not intend the parties may be summarized as fol­ to claim acquiescence on the part of the lows: applicant. (Only the first three submissions set out Besides, the Court has agreed that the below appeared in the application. The Vacancy Notice and Notice of Competi­ other submissions were put forward only tion are measures which are severable in the reply as the applicant stated that from the recruitment procedure. their necessity only became apparent in the light of the documents annexed to B — The Substance the statement of defence and of a letter sent by the defendant's Agent to the The applicant points out that Article applicant's legal adviser.) 29 (1) (b) of the Staff Regulations comes between two provisions which apply only 1. First submission: Infringement of to officials. Article 1 (1) (a) of Annex Article 29 and of Annex III to the HI groups the various sorts of competi­ Staff Regulations tion together. Thus the proposition of According to the applicant, auxiliary the defendant would lead logically to staff recruited after 1 January 1962 admitting auxiliary staff, even to com­ cannot be admitted to competitions in­ petitions internal to the three Communi­ ternal to the institution for which pro­ ties, which is a position that no institu­ vision is made in Article 29 (1) (b) of tion has adopted. Furthermore, the result of this view would be that, in the Staff Regulations. order to be appointed to one and the A — Admissibility same post, an official would have to submit himself to two competitions The defendant takes the view that this (initial recruitment and promotion), submission is out of time as the meas­ whilst a member of the auxiliary staff ures in dispute were based on former would only have to undergo one (pro­ decisions, in particular Vacancy Notice motion). No 166 and Notice of Competition No The argument that the conditions of 143/B. These two notices expressly in­ employment of auxiliary staff are in vited all auxiliary staff to apply. There­ many respects similar to those of officials fore it is against these notices that the is not relevant. It would apply a fortiori applicant ought to have drawn up the to temporary staff whom, however, the present complaint. defendant has never admitted to internal The applicant takes the view that in an competitions. analogous case (Wollast, nee Schmitz The defendant cannot base an argument Rec. 1964, pp. 169 et seq.) the Court on the judgment in the case of Wollast, had already rejected the argument that nee Schmitz, (loc. cit.). This judgment

admits by implication that 'false' auxili the defendant was required to allow ary staff—those recruited before the Mrs Wollast to take part in a given Staff Regulations came into force— competition. Her position was, as from could be accepted for internal competi 1 January 1962, governed by a new tions. It follows that the problem of contract coming under the Conditions 'genuine' auxiliary staff has remained of Employment. So there was no dif open. ference between that position and the In any case, even supposing that auxili positions of those whom the applicant ary staff may take part in internal com labels as 'genuine' auxiliary staff. petitions, this rule does not, it is asser The defendant agrees with the applicant ted, apply to Miss Kurz, who is in fact to the extent that the defendant has temporary. never denied that it is possible to let The applicant sets out this argument in auxiliary staff from other institutions detail. take part in competitions internal to the The defendant takes the view that the Communities, or that it is possible to concept of 'competition internal to the let temporary staff do so.

Not only are pro Regulations. motion or transfer only conceivable for officials, but the phases of procedure set 2. Second submission: Infringement of out in subparagraphs (a) and (c) amount subparagraph (b) of Article 52 of the to recruiting operations without a com Conditions of Employment petition, whereas according to subpara graph (d) of Article 28 no-one may be The applicant asserts that according to appointed as an official unless he has the above provision the period of em passed a competition. Moreover the ad ployment of a member of the auxiliary mission of auxiliary staff corresponds to staff shall not exceed one year.

locus standi to pray it in aid. ship between such staff and the institu This provision has only a relative tion is one of public law; their position validity. Its essential purpose is to refuse is in many respects governed by Regu to members of the auxiliary staff the lations. right to remain in office for longer than The judgment in the case of Wollast, one year. On the other hand, it does not nee Schmitz, supports the defendant's include an obligation for the institution

JUDGMENT OF 31. 3. 1965 — CASE 16/64

have proved himself. Competition No 143/B'. Moreover all the moves leading up to 4. Fourth submission: That Miss Kurz's the appointment of Miss Kurz took place before 15 February 1964. In par application was out of time ticular the written procedure asking for The applicant states that according to the approval of the Committee of Chair the terms of the Notice of Competition men was initiated on 13 February 1964. applications had to reach the Recruit It would not be right to make Miss ment Division before 9 September 1963 Kurz suffer the consequences of a mini at the latest. But Miss Kurz's applica- mal delay which was not her fault. ition is dated 12 September 1963.

The de as Schedule II to the letter addressed cision in the Raponi case (Rec. 1964, to the applicant's legal adviser by the pp. 249 et. seq.), according to which an (defendant's Agent is illegible). While explicit statement of reasons where pro this letter bears the stamp of the divis motion is concerned might go against ion dated 9 September it should never the interests of those not promoted, can theless be noted that: not be cited to the contrary.

In order not Article 30 of the Staff Regulations an to deprive Miss Kurz improperly of her

rights the defendant had to accept the 6. Sixth submission: Illegalities in the application put forward by her superior procedure followed by the Selection and also the application which she per Board sonally made, even though it was late. The applicant points out that although 5. Fifth submission: Failure by the it was dealing with a competition on the defendant to have adopted the de basis of qualifications, the Selection tailed arrangements for giving effect Board proceeded to carry out actual tests to the provisions concerning the pro which it referred to as 'interviews'.

63 dated 21 June 1963). It therefore been put to a person competing for a recognized that the provisions in ques Category B post. tion do not of themselves suffice. While agreeing that it is not for the In accordance with Article 110 of the Court to replace the Selection Board Staff Regulations the general measures the applicant thinks that it must review for giving effect to the Regulations must the way in which the Selection Board be adopted after consulting the Staff formed its views. Therefore, in order Committee and the Staff Regulations to be sure that there was no partiality Committee. These formalities were not on the part of the Selection Board the complied with. Court must be in a position to estab The defendant considers this submission lish whether both the candidates had to be inadmissible because it is not equally difficult questions to answer. based on points which emerged during Again, in order to decide how much the written procedure. According to the weight the Selection Board gave to terms of Article 110 the general pro linguistic knowledge, the Court must be visions for giving effect to the Regula able to check whether the same strict tions referred to in that Article must be ness was applied to the two candidates. brought to the attention of the Staff. 'Prima facie this is not the case because The applicant knew at the time of lodg Miss Kurz, who has never previously ing her application that such general lived in England, was given higher provisions had not been brought to her marks than the applicant who had lived attention and therefore did not exist. there for 14 years.' In any event the submission has no Furthermore it seems 'that the interest substance, for the provisions in question of the Selection Board was directed only do not give rise to difficulties of inter to knowledge of English, whereas the pretation such that their applicability Notice of Competition stated: would be irregular in the absence of thorough knowledge of one of the lan general provisions for giving effect to guages of the Communities (preferably them. the French language)'

and the applicant has an excellent the assessment of the comparative knowledge of that language'. merits of the candidates. The Select­ 'Finally, it seems that the Selection ion Board was entitled to take account of Board must have taken into considera­ the vocational experience acquired by tion the vocational experience which Miss Kurz in the London office. Miss Kurz had acquired on a temporary basis at the Office of the Press and 7. Seventh submission: Failure by the Selection Board to state the marks Information Department in London. Yet in order that candidates at a competition obtained by each of the two candi­ dates as regards knowledge of lang­ may be on an equal footing this is a matter which should not be taken into uages and vocational experience account.' The applicant states that for want of The defendant replies that the submis­ this information the Court cannot sion is inadmissible because it is not possibly review the manner in which based on points which became clear the Selection Board formed its during the written procedure. opinions. In any event the submission is un­ The defendant replies that it appears founded. Having found that the two from the minutes of the selection Board candidates possessed the qualifications that the Board decided 'to use the required, the Selection Board put both following criteria to assess the candi­ of them on the list of suitable can­ dates during the interview: Knowledge didates. 'But the Selection Board was of languages and vocational experience also able to determine that the quali­ (aggregated and marked out of ten)'. fications of the persons concerned were There was nothing to require the Selec­ substantially of equal worth. Even tion Board to mark these two criteria though, in conformity with the Notice seperately. of Competition, it was anxious to give the candidates an interview, this was IV—Procedure not in the nature of a real test. The in­ tention of the interviews was only to By an order dated 24 June 1964 the check the truth of statements contained Court (Second Chamber) rejected the in documents produced by the persons applicant's request for free legal aid. concerned and filed with the application Upon hearing the report of the Judge- forms and to get an idea of the can­ Rapporteur and the Advocate-Gen­ didates' qualifications such as knowledge eral, the Court (Second Chamber) of languages, knowledge of the working decided that no preparatory inquiry and the tasks of the Communities, and was necessary. However, the Court knowledge of English affairs—facts invited the defendant to produce which could not be assessed simply on certain documents and the defendant the basis of the application files.' complied with this invitation. Furthermore, the choice of the ques­ The public hearing took place on 25 tions put to the candidates was a matter February 1965. On February 16 1965 for the Selection Board to decide in its the Advocate-General delivered his discretion. The same is true as regards opinion.

The defendant objects that this submission is out of time on the ground that the applicant did not contest at the proper time certain previous decisions admitting auxiliary staff as candidates for the post concerned, namely Vacancy No 166 and Notice of Competition No 143/B.

Since the recruitment procedure consists of several interdependent measures this objection would be tantamount to requiring persons concerned to bring as many actions as the number of acts capable of adversely affecting them contained in the said procedure.

Having regard to the close connexion between the different measures com­ prising the recruitment procedure, it must be accepted that in an action contesting the later steps in such a procedure, the applicant may contest the legality of earlier steps which are closely linked to them.

Therefore, so as to review the legality of the appointment of Miss Kurz, which is the principal object of the appeal, the Court may take into con­ sideration the complaints raised by the applicant against the measures prior to such appointment, and in particular against the disputed notices.

2. The substance

The expression 'competition internal to the institution', taken as it stands, means any person employed by the institution, in whatever capacity.

This submission deals with the fact that the appointment of Miss Kurz did not take place until after the expiry of the period of one year fixed by sub­ paragraph (b) of Article 52 of the Conditions of Employment of Other Servants of the Communities, as the maximum period of employment of auxiliary staff except in the circumstances referred to in subparagraph (a) of the said Article.

For a person to be appointed to a post as a result of an internal competition it is sufficient that he be genuinely employed by the institution at the time when the competition is initiated. In this case it is not disputed that all the measures prior to the appointment of Miss Kurz, in particular the proceed­ ings of the Selection Board and even the setting in motion of the written procedure inviting the approval of the appointing authority took place before the expiry of the period mentioned above. The applicant's interpretation of the rules would lead to the unacceptable result that a member of the auxiliary staff, though properly admitted to the competition, could not be appointed to the relevant post if the procedure were to be unexpectedly prolonged.

Therefore this plea must be rejected and it is not necessary to consider whether the defendant could validly continue to employ Miss Kurz after the expiration of one year.

III — Third submission

By this submission the applicant asserts that the 'decision not to appoint her' to the post in question adversely affects her and therefore it should have stated the reasons on which it was based in accordance with Article 25 of the Staff Regulations.

Whilst agreeing that Miss Kurz's departmental superior lodged the applica­ tion on her behalf the applicant raises doubts as to whether in doing so he complied with the abovementioned time-limit. Furthermore, she draws atten­ tion to the fact that according to the terms of the application form drawn up by the defendant, and intended to be used for making applications, the latter must be signed by the candidate personally.

It is not disputed that Miss Kurz was on holiday throughout all the time between the date of publication of the Notice of Competition and 9 Sep­ tember 1963. In these circumstances Miss Kurz's departmental superior could validly act on her behalf provided that he complied with the time-limits and correctly interpreted her intentions. He did both; the application was received by the defendant on 9 September, as appears from the date-stamp on it, and was confirmed by Miss Kurz as early as 12 September.

This complaint is therefore unfounded.

V — Fifth submission

The applicant asserts that the defendant failed to adopt general provisions for giving effect to the rules concerning competitions and thus infringed Article 110 of the Staff Regulations or alternatively that such general provisions were adopted without consultation with the Staff Committee or the Staff Regula­ tions Committee.

JUDGMENT OF 31. 3. 1965 — CASE 16/64

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 them­ selves.

Thus in relation to competitions, the defendant was not obliged to adopt 'general provisions for giving effect' to the relevant Regulations within the meaning of Article 110 mentioned above. Moreover, the document S/01965/­ 63 mentioned above is to be considered as an internal measure which was not subject to the formalities set out in the said Article.

It follows from the considerations set out above that this submission must be rejected.

RAUCH v COMMISSION

VI — Sixth submission

In this submission the applicant puts forward several distinct complaints, namely:

2. On the substance

(a) As regards the complaint under (b), the applicant has not alleged any precise fact giving grounds for the supposition that the Selection Board did not duly take the qualifications of the candidates into account.

JUDGMENT OF 31. 3. 1965 — CASE 16/64

Furthermore the Notice of Competition made a clear distinction between 'qualifications or certificates' and 'vocational experience', so that it obviously put these two criteria on an equal footing.

Next, the said notice specified 'thorough knowledge of the English language desirable'. Therefore the Selection Board was within its rights to take know­ ledge of this language as a decisive criterion in so far as the candidate had a comparable knowledge of the other languages concerned.

Finally, while it is often true that a long stay in a foreign country gives the person concerned a clear superiority in the linguistic field, nevertheless this is not necessarily the case.

Since the applicant has not succeeded in any of her submissions, her applica­ tion must be rejected as unfounded.

VIII — Costs

The applicant has failed in her case. In accordance with 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, expenses incurred by institutions in proceedings brought by employees of the Communities shall be borne by the institutions themselves.

RAUCH v COMMISSION

By order dated 24 June 1964, the Court (Second Chamber) rejected the applicant's request for the grant of legal aid, reserving the costs.

On those grounds,

Delivered in open court in Luxembourg on 31 March 1965.

A. Van Houtte A. M. Donner

Registrar President of the Second Chamber

OPINION OF MR ADVOCATE-GENERAL GAND

16 FEBRUARY 1965 <apnote>1</apnote>

Mr President, dated 16 August 1963, announced to Members of the Court, persons interested that a competition internal to the institution was to be held A notice 143/B, published in the EEC on the basis of qualifications for a post Commission Staff Information Bulletin as an assistant B3/B2 at the London