C-23/64

1. Candidates in general competitions, cerning procedure relating to com­ even those from outside the Com­ petitions. munities, may institute proceedings before the Court concerning a poss­ 2. Cf. para. 4 of summary in Case ible infringement of the rules con­ 16/64.

In Case 23/64

THÉRÈSE 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 Côte-d'Eich,

Advocate-General: M. Lagrange Registrar: A.Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Facts 'I should like to inform you that … the competition is based on qualifica­ The facts may be summarized as fol­ tions and tests. The Selection Board lows : therefore not only had to eliminate 1. In the Official Journal of 2 December those candidates whose qualifications did 1963, pp. 2807 et seq., the defendant not correspond to the requirements laid published the Notice of General Com­ down in the advertisement of the com­ petition No P.E. 1/B, to be conducted petition, but was also entitled to make on the basis of qualifications and tests, a first choice of candidates who clearly for the recruitment of an assistant (car­ had the highest qualifications. eer bracket B 3-B 2) 'in the Directorate- I informed the Selection Board of your General of Parliamentary Documenta­ letter at its meeting on Thursday 5 tion and Information, Library Service'. March 1964. After discussion, the Selec­ 2. Having submitted her application, the tion Board decided to confirm the choice applicant received on 27 February 1964 of candidates selected for admission to a letter from the Secretary of the Selec­ the tests made at its meeting on 25 tion Board written in Dutch, and stating February 1964.' that the Selection Board, at its meeting 5. On 26 May 1964 the applicant lodged on 25 February 1964, did not consider her application at the Registry. that it should include the name of the applicant on the list of candidates 'die aan het examen kunnen deelnemen' II — Conclusions of the

for future recruitment and any ap­ Justice of the EEC, Article 22 of the Protocol on the Statute of the Court of pointments made following this com­ petition on the basis of the results; Justice of the EAEC and Article 24 of the Protocol on the Statute of the Court 4. So far as necessary, declare null and of Justice of the ECSC, order the other void the decisions of the European party to produce all its documents and Parliament ratifying the results of provide all the information decided upon the competition; by the Court and in particular to pro­ 5. Order the opposing party to pay the duce all the documents on the file con­ costs in full.' cerning the competition in question; The defendant, in its statement of de­ if necessary request the various Com­ fence, contends that the Court should: munity institutions not being parties to '1. Place it upon record that it requests the case to supply all necessary infor­ the Court in its discretion to decide mation, in particular as to the existence upon the admissibility of the appli­ of general provisions for giving effect to cation and the jurisdiction of the the requirements of the Regulations con­ Court of Justice of the European cerning competitions and of Annex III Communities; to the Regulations.' 2. Hold that the mere enumeration of The defendant, in its rejoinder, con­ provisions of the Regulations alleged tends that the Court should: to have been infringed and other 'Reject the submissions and conclusions reasons for annulment are insufficient of the statement in reply and accept the within the terms of the Rules of conclusions of the defendant in its state­ Procedure; hold furthermore that the ment of defence.' reservation of the right to put for­ ward further submissions is invalid; and regard as valid only the sub­ III — Submissions and argu­ mission set out in the application; ments of the parties 3. On the substance of the matter, re­ gard the said submissions as inad­ The principal submissions and argu­ missible if not unfounded and reject ments of the parties may be summarized the application; as follows: 4. Make an order as to costs in accord­ The applicant refers in a general man­ ance with the appropriate provisions.' ner to infringement of the Staff Regu­ The applicant in her reply claims that lations, lack of competence, infringe­ the Court should: ment of an essential procedural require­ 'Place it upon record that the applicant ment 'and (or)' misuse of powers.

1. Admissibility nullity does not meet the requirements of the Rules of Procedure; these sub­ A — Is Article 91 of the Staff Regula­ missions are admissible only to the ex­ tions applicable to candidates for tent to which they are fully elaborated. entry to the service of the Com­ The applicant restricts herself to stating munities? that even on the admission of the de­ fendant the 'reference to various pro­ The defendant whilst relying on the discretion of the Court considers that visions of the Regulations is accompan­ ied by sufficient explanations in the the answer is in the negative; it claims application'. in particular: — that the title and the wording of the C — The inadmissible nature of the Regulations indicate that these refer reservation allowing fresh issues to to officials and servants of the Com­ be raised in the course of pro­ munities; — that the EEC and EAEC Treaties ceedings; the requirement for the applicant to limit her action to acts confer on the Court only jurisdiction adversely affecting her in any dispute 'between the Com­ munity and its servants'; The applicant in her application states — that the difference in terminology be­ that she must 'reserve the right to raise tween Articles 90 and 91 of the other issues relating not only to the Regulations ('any official', 'any per­ regularity of the procedure followed con­ son to whom these Staff Regulations cerning the preparation of the Notice of apply') is explicable by the fact that Competition but also to the regularity the latter provision takes account also of the composition of the Selection of persons such as retired officials; Board and the procedure followed by the — that Article 91 gives a right of appeal latter, the regularity and the legality of only against acts 'adversely affecting' the decisions taken in respect of her a person and Regulations do not by the Selection Board and ratified by create rights in favour of outsiders; the Secretariat of the European Parlia­ — that the provisions of the Regulations ment, until the documents relating to the concerning recruitment have not been competition have been produced by the adopted in the interests of third other party'. parties. The defendant replies that the applicant The applicant for her part states: must limit her action to the acts ad­ — that in view of the provisions of the versely affecting her. The issues which Regulations concerning recruitment, she reserves the right to raise concern even outside candidates are certainly the procedure of the competition as a persons 'to whom these Staff Regu­ whole and not only the decisions con­ lations apply'; cerning the applicant individually; fur­ — that these candidates have an obvious thermore they are not elaborated. interest in the proper conduct of the competition; 2. On the substance of the case — that the difference in terminology between Articles 90 and 91 is sig­ A — Infringement of Articles 110 of the nificant. EEC and EAEC Staff Regulations and of 107 of the ECSC Staff B — Inadequacy of submissions Regulations The defendant considers that the general The applicant complains of the fact that enumeration of the provisions alleged to the Notice of Competition was pub­ have been infringed and of reasons for lished, and the competition organized,

without the prior adoption of general in the first paragraph of Article 5 of provisions for giving effect to the Staff Annex III to the Staff Regulations and Regulations; and in particular that such the decision taken either at the time or provisions were not adopted after con­ subsequently not to put her on the list sultation with the Staff Committee and of candidates to be admitted to the the Staff Regulations Committee or tests' should have stated the reasons on brought to the attention of the staff. which it was based (Article 25 of the In order that general provisions for giv­ Regulations). ing effect to the Staff Regulations should The Raponi Judgment (Rec. 1964, pp. be adopted, it is not necessary for the 247 et seq.), which dealt with the state­ Regulations to provide expressly for ment of reasons in connexion with pro­ this; it is enough that the provisions of motion, cannot be relied on to show the the Regulations are not sufficiently clear, opposite. In fact the situation of a re­ as is the case in respect of competitions. jected candidate, who 'has nothing more The Commission of the EEC did in fact to lose', is entirely different. adopt provisions concerning the com­ The fact that the work of the Selection position of the Selection Board. Board is secret does not prevent the In order that the applicant should be in latter from informing the candidate 'even a position to criticize these illegalities, it if this is done in general terms' of the suffices that the disputed measures reason for his rejection. should affect her adversely. There can be National and Community case-law show no necessity for her to prove—as would (Mirossevich Case, Rec. 1955-1956, pp. indeed be impossible—that but for the 365 et seq.) that the Court is competent illegalities in question the measures to review the true reasons for the de­ adopted would have been different. cision of the Selection Board. Conse­ The defendant states, first, that a sub­ quently, 'in every case reasons must be mission by a person outside an institu­ given in broad terms'. tion that the provisions in question have The defendant replies that Article 25 of been infringed is inadmissible for lack the Regulations applies only to officials. of legal interest. The argument that the Selection Board Only the institution is competent to de­ need not give reasons for its decisions cide upon the advisability of adopting may be based on Article 5 of Annex HI provisions for giving effect to Staff to the Regulations, and is confirmed by Regulations. In the present case the Article 6 which states that the proceed­ institution considered it unnecessary as ings of the Selection Board shall be the relevant provisions of the Regula­ secret.

and in part qualifications even higher up until after the tests in which she was than those. For the same reasons 'the not allowed to take part. decision not to put her on the list of The defendant protests against the asser candidates admitted to the tests' is tion that the applicant was the victim vitiated. of external intervention. The defendant replies that this sub mission is inadmissible as not being 3. Production of documents based on fact, since the applicant is disputing a decision which was never The applicant refers to a letter of 2

place; vision (stating which of the candidates (2) the minutes of the Selection Board; 'shall be admitted to the tests'). (3) the file of his client if she was given Next, the Selection Board, as appears from the above mentioned letters, had a personal file by the European Parliament or by the Selection duly taken the qualifications of the Board. applicant into account. Lastly, the Selection Board was required By letter of 16 July 1964 addressed to to exercise its own unfettered judgment the said counsel, the Secretary-General regarding the qualities of the candidates. refused to produce the documents in The applicant replies that the question question. whether she misunderstood the letter of The applicant wonders whether this re 27 February 1964 'is of no interest now' fusal—which is contrary to Article 23 of the Protocol on the Statute of the since she is disputing both the decision Court of Justice of the ECSC—does not not to put her on the admission list provided for in the first paragraph of ipso facto involve the nullity of the Article 5, and not to put her on the measures adopted, since it allows 'it to list of suitable candidates. The Court be considered that the reasoning is either non-existent, vitiated by error, or viti has the right to review the reasoning ated by abuse of power'. adopted by the Selection Board. The defendant considers that the appli 'Furthermore, the applicant has every cation is inadmissible and in any case reason to believe—and the production unfounded. of the file and the minutes would allow Article 23 of the Protocol on the Statute the Court also to be convinced in this of the Court of Justice of the European respect—that she was put on the admis Coal and Steel Community relates to sion list provided for in Article 5 of applications provided for in the ECSC Annex III, that she was even placed Treaty, which does not refer to appli first and that it was following external cations by natural persons; furthermore intervention that she was finally struck the Statutes of the Court of Justice of from the list.'

VANDEVYVERE V PARLIAMENT

file only applies to applications by IV — Procedure officials. The first two documents demanded are By Order of 15 November 1964, the unconnected with the applicant. As to Court (Second Chamber) rejected the the third document, there is no file of request of the applicant for legal aid, the applicant other than the documents while reserving the costs. produced by one side or the other. On the report of the Judge-Rapporteur The minutes of the Selection Board are and after hearing the Advocate-General, secret (Article 6 of Annex III to the the Court (Second Chamber) decided Staff Regulations). As to the report of that it was not necessary to hold a the Selection Board which is required preparatory inquiry. to accompany the fist of suitable can­ The public hearing took place on 25 didates, the confidential nature of this January 1965. document, which includes the marks The Advocate-General delivered his obtained by the candidates, is obvious. opinion on 10 February 1965.

Grounds of judgment

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.

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 Commu­ nity.

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 applica­ tion 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.

tions 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.

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 competitions, 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.

(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.

It follows from all the preceding considerations that the present application is unfounded.

IV — Costs

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.

On these grounds,

Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties; Upon hearing the opinion of the Advocate-General; Having regard to the respective Protocols on the Statutes of the Court of Justice of the ECSC, the EEC and tie EAEC; Having regard to the Staff Regulations of the ECSC, the EEC and the EAEC; Having regard to the relevant Regulations applicable to the other servants of those Communities; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, especially Articles 69 and 70;

OPINION OF MR GAND—CASE 23/64

A. Van Houtte A. M. Donner Registrar President of the Second Chamber

OPINION OF MR ADVOCATE-GENERAL GAND DELIVERED ON 10 FEBRUARY 1965<appnote>1</appnote>

Mr President, whether this letter was not based on an Members of the Court, error, the Chairman of the Selection Board replied that the latter had, after On 2 December 1963, the Official discussion, confirmed on 5 March 1964 Journal of the European Communities the selection of candidates made on the published a notice of a general competi­ previous 25 February. tion based on qualifications and tests for These are the decisions which Miss recruitment by the European Parliament Vandevyvere disputes before you. But of an assistant in the Directorate-Gen­ before discussing her conclusions and eral of Parliamentary Documentation the submissions by which she supports and Information, Library Service them in more detail, it is appropriate to (Grades B 3-B 2). decide upon the most delicate question Miss Vandevyvere, a Belgian national, involved in her application, that is to who until then had had no connexion say its admissibility. with the Parliament or any other Com­ munity institution, submitted her can­ I — Admissibility didature. She was informed on 27 February 1964, in terms of whose mean­ While accepting that this is a matter for ing I shall have occasion to return, that the Court, the defendant institution the Selection Board did not consider argues in favour of a negative reply to that it should put her name on the list this question. The defendant relies first of candidates allowed to participate in on the fact that your jurisdiction is the tests. Following her request which specific and is exercised under Article was made with a view to finding 179 of the EEC Treaty (or 152 of the