C-21/65

Legal nature — Regularity of such proceedings challengeable only by way of an appeal against the decision of appointment

(Staff Regulations of Officials of the European Communities, Articles 29 and 91)

2. Officials — Recruitment — Competition — Holding or reholding of a competition — Exclusive powers of the administration — Limit of the jurisdiction of the Court

(Staff Regulations of Officials of the European Communities, Articles 29 and 91)

3. Officials — Recruitment — Competition — Procedure — Proceedings of the Selec­ tion Board — Formalities — Substantive nature — Purpose — Infringement ad­

versely affects the unsuccessful candidates

six­ th paragraph of Article 5 of Annex the 'list of suitable candidates.

HI to the Staff Regulations of Infringement of this principle ad­

Officials, which states that the re­ versely affects the unsuccessful can­

port sent to the appointing authority didates within the meaning of

by the Selection Board for the com­ Article 91.

In Case 21/65

Nord, acting as Agent, assisted by Alex Bonn of the Luxembourg Bar, with an address for service in Luxembourg at the Chambers of its said counsel, 22 Côte-d'Eich,

defendant,

Application for the annulment of the assessment made by the Selection Board of the candidates for Internal Competition No B 12 and challenging the ap­

pointment of Mr Piraino as a result of the said competition,

THE COURT (Second Chamber)

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

defendant on 17 November 1958 under ted under the new Staff Regulations in a so-called Brussels contract at a salary Grade C3, Step 2, with effect from 1

corresponding, by assimilation to the January 1962. By a decision of the Staff Regulations of the ECSC, to Grade Secretary-General of the same date he C12 (now C3). was promoted to Grade C1, Step 1, with On 1 June 1959 he was promoted to effect from 1 March 1962. Grade C11 in March 1962 2. 19 1965 In- and to By notice of January

MORINA v PARLIAMENT

ternal Competition No B 12 was announ­ II — Conclusions of the

ced to fill a vacant post of administra­ parties

tive assistant (career bracket B5-B4) in Administra­ The in his the Directorate-General of applicant claims application De­ tion, Personnel Division, Accounts that the Court should:

drafting explanatory memoranda; ment of Mr Piraino, all this in con­

preparing statistics; formity with Article 23 of the ECSC —

— collection and filing of information. Treaty and the last paragraph of Article 26 of the Staff Regulations of Officials; II — Competition rule that the application is well founded This competition will be held on the and, consequently, annul the assessment

basis of Qualifications. arising from Internal Competition No B 12 and the decision of the Secretary- III — Qualifications required General of the European Parliament Pir­ Good, education resulting therefrom promoting Mr general, secondary —

assist­ aino to the post of administrative or experience in employment of an ant (B5-B4) with effect from 1 April equivalent level; 1965; —

elementary knowledge of accounting order Internal Competition No B 12 on procedures. he basis of qualifications be reheld, to

By a decision of 10 March 1965, the documents that his qualifications are Piraino.' defendant's Secretary-General appointed superior to those of Mr Rosario Mr Piraino to the relevant post. He repeats his conclusions in his reply 3. On 16 April 1965 the applicant made and adds the following: application, directed the con­ the present against admit also offer or proof . . .

this decision and against the assessment sisting of proving by any means what­

of the candidates made prior to it by ever that the work which he has carried the Selection Board for the competition. out, as evidenced by his immediate

JUDGMENT OF 14. 12. 1965 — CASE 21/65

superiors, is in fact of a higher level in particular by his published works, B5-B4.' than that of Grade written in Italian and translated into The defendant contends in his state­ French, the translation also being ment of defence that the Court should: partly carried out by the applicant

inadmiss­ 'declare that the application is and revised by him; ible under all its different heads; — his six years'

the defendant Parliament, in accordance keeping publications and the corres­

date, as well applicable.'

with the provisions ponding catalogue up to

In its rejoinder the defendant maintains as analysing, distributing and classi­

these conclusions and contends in addi­ fying them; tion that the abovementioned offer of —

during 1962 he was asked to under­

that he has completed his education field of scientific documentation'; the

to secondary level, including a course last words show that in fact the ap­

in accounting, but he has obtained plicant has already undertaken duties the degree of Doctor of Law of a level even higher to those of (Laureato in Giurisprudenza) at career bracket B5-B4; Palermo University with 91 marks — besides Italian, his mother tongue, ne

out of 100; the subjects for the has a good knowledge of French. degree examination included, inter The defendant does not contest the main alia, administrative law; import of these claims, but considers

— he successfully completed a period that the testimonial of 22 November is of training in an advocate's office not sufficient ground for saying that the

from July 1957 to October 1958; applicant has already performed duties —

MORINA v PARLIAMENT

application is inadmissible. It follows against a 'collection of measures'. In any from Article 91 of the Staff Regulations event, the applicant is seeking the an­

that in­ officials may challenge only nulment not of a collection of measures,

dividual acts them but of specific measures which have adversely affecting and not a collection of measures such directly prejudiced him. as a competition. To point (b): (b) In so far as the application objects 1. The argument that the selection 'unfettered' to the assessment made by the Selec­ Board has discretion is an

tion Board, it is inadmissible on two attempt to remove an essential matter de­ grounds: from the Court's power of review, 1. First, it fails to recognize the un­ priving the unsuccessful candidate of

fettered discretion enjoyed by the any possibility of appeal, even where the Board; only the procedure which it Selection Board has been guilty of a adopts, not its assessment of can­ flagrant injustice. Furthermore Article

and shall forward only in exceptional cases. Equally 'this list [the list of suitable candidates] wrong is the applicant's reference to to the appointing authority, together

the third paragraph and the final with a reasoned report'; the Court must

paragraph of Article 5 of Annex III be allowed to determine whether or not

to the Staff Regulations, for the pro­ these provisions have 'been correctly cedures laid down by these provis­ observed.

ions are covered by Article 6 of that 2. It is true that the assessment made

Annex, whereby the proceedings of by the Selection Board does not bind the Selection Board are to be secret. the appointing authority; however it is 2. Secondly, the applicant has no legal precisely the appointment made by the

cision. In fact the applicant himself con­ ity is under a duty to make a careful cedes that the alleged illegality of the examination of comparable files. decision is merely a consequence of the

alleged illegality of the competition. B — The substance of the case

The applicant replies:

To point (a): The defendant has failed (a) Failure to consider the applicant's qualifications to indicate any adequately defined for distinction be­ The applicant claims that 'a competition criteria drawing the

tween 'individual measures'

and a 'col­ on the basis of qualifications amounts

far superior'

to those of Mr Piraino, and ted, was in the forefront of the minds they are also better than those required of members of the Selection Board in the notice of competition, the appli­ for Competition No B 12; cant having had a university education. — that the formula set out in the re­

Consequently, the assessment of can­ port in the present case and stating didates made by the Selection Board and that the Selection Board considered

adopted by the defendant is inequitable; the candidates'

qualifications also

these authorities failed to fulfil their satisfies the preliminary requirement

discretion exercised by the Selection IV — Procedure Board. The procedure followed the normal (b) Infringement of the third and sixth course.

paragraphs of Article 5 of Annex Judge- After hearing the report of the III to the Staff Regulations Rapporteur and the opinion of the Ad­

At the hearing the applicant stated that, vocate-General, the Second Chamber of

as a reading of the report submitted by the Court requested the defendant to

the Selection Board to the appointing produce, before 5 October 1965, the

authority reveals, the former neglected report of the Selection Board in the

his reply. The parties presented oral argument at

The defendant leaves the question of the hearing on 13 October 1965. admissibility of this ground to the The Advocate-General delivered his wisdom of the Court. opinion at the hearing on 10 November On its substance, it objects: 1965.

Grounds of judgment

I —

Admissibility

1. The defendant contends that the application is inadmissible, first, because it challenges the assessment made by the Selection Board and, secondly, because it seeks the annulment of the appointment of Mr Piraino. It considers

The applicant himself, however, has acknowledged this in his application, since he declares that it is directed 'in particular'

against the appointment of

Mr Piraino. The application directed against the appointment is therefore

admissible and the conclusions seeking the annulment of the assessment need only be considered as arguments against the decision making the appointment.

2. The defendant contends that 'inasmuch as the stated object of the applica­

tion is the annulment of the competition', the application is inadmissible, as under Article 91 of the Staff Regulations, officials may challenge only specific actsadversely affecting them, not a collection of measures. This objection need not be examined, the Court's view of the application having been ex­

For this reason, these conclusions are not admissible.

4. The applicant only made his allegation that the procedure followed by the Selection Board infringed the provisions of Article 5 of Annex III to the Staff Regulations at the hearing. The defendant has said that it submits to the

wisdom of the Court the question whether the allegation is admissible.

JUDGMENT OF 14. 12. 1965 — CASE 21/65

The argument is based on the Selection Board's report, which was only placed on the file by the defendant after the applicant's reply.

In view of this the argument, being based on matters of law and fact which came to light in the course of the written procedure, is admissible according to Article 42 (2) of the Rules of Procedure.

Selection Board merely stated that it had been compiled 'after consideration of the qualifications of the candidates relative to the requirements for the

post set out in the competition notice ... in the course of its meeting on 3 March 1965'.

In the circumstances it must be considered that the selection and assessment of the applicants on the list of suitable candidates was not supported by any statement of reasons. More particularly, by failing to set out the criteria

according to which it made its assessment of the qualifications, the Selection Board omitted from its report a factor which was essential to support the statements contained therein; it thereby infringed the provisions in the sixth paragraph of Article 5 of Annex III to the Staff Regulations, which must be considered requirements of substance. The criteria of assessment should be fixed in order to ensure that the qualifications are assessed objectively and

without any possibility of arbitrariness.

'reasoned' In addition, the requirement that the report be enables the ap­

being necessary to examine the remainder of his arguments.

III — Costs

Under the terms of Article 69 (2) of the Rules of Procedure, the unsuccessful

party shall be ordered to pay the costs.

As the defendant has failed in its defence, it must be ordered to pay the costs.

On those grounds,

of administrative assistant (B5-B4);

2. Orders the defendant to pay the costs of the action.

Strauß Donner Monaco

Delivered in open court in Luxembourg on 14 December 1965.

A. Van Houtte W. Strau­ ß Registrar President of the Second Chamber