C-90/74

JUDGMENT OF 16. 10. 1975 — CASE 90/74

in deciding upon the rules of the the post to be filled without, however, competition in view of these criteria either the members or the president and in the interests of the service. of the Selection Board having 4. It appears clearly both from a necessarily to be officials. comparison of the versions in the 5. The intervention of a third party in various languages and from the the organization of the competition relationship between the first and tests is authorized by the second third paragraphs of Article 3 of Annex paragraph of Article 3 of Annex HI to III to the Staff Regulations of Officials the Staff Regulations on condition that this provision must be interpreted that it is in an advisory capacity and as meaning that if the members of the that the Selection Board retains Selection Board are officials they must ultimate control over the procedures be of a grade at least equal to that of and its discretionary power.

In Case 90/74

Francine Gelders (née Deboeck), an official of the Commission of the European Communities, residing at 2 Stobbaertsdreef, Overijse (Belgium), represented by Marcel Slusny, Advocate at the Cour d'appel, Brussels, with an address for service in Luxembourg at the Chambers of Ernest Arendt, Centre Louvigny, 34 B IV, rue Philippe-II,

applicant, v

Commission of the European Communities, represented by its Legal Adviser, Thomas F. Cusack, acting as Agent, with an address for service in Luxembourg at the offices of Mario Cervino, Legal Adviser to the Commission, Place de la Gare, defendant,

JUDGMENT

Facts

The facts and arguments of the parties 2. The notice of competition provided expounded in the course of the oral for three compulsory and two optional procedure may be summarized as tests. The former consisted of a written follows: test, practical tests and two oral tests. To qualify for the oral tests the candidates had to obtain a minimum of 10 out of 20 I — Facts and procedure marks in the written test and 15 out of 30 marks in the practical tests. 1. In 1955 the applicant entered the service of the High Authority of the The applicant took part in the written ECSC and on 1 January 1960 transferred and practical tests but she was notified by to the service of the Commission of the letter of 5 December 1973 that on the EEC. Since 1 January 1970 she has been basis of the results obtained she had not at Step 8 in Grade C 1, that is to say, the been admitted to the oral tests. The highest step in that grade. marks which she had obtained were communicated to her by letter of 13 December 1973. On 1 March 1974 the Regulation No 1473/72 of the Council of 30 June 1972 (OJ 1972, L 160 of 16. 7. applicant lodged a complaint under 1972), amending the Staff Regulations of Article 90 of the Staff Regulations of Officials, created the new basic posts of Officials with the object of having all the Senior Secretarial Assistant and tests held again. This complaint was Secretarial Assistant classified in rejected by letter of 21 August 1974. Category B and coming within career brackets B3-B2 and B5-B4 The present application, dated 20 respectively. November 1974, was lodged at the Court Registry on 21 November 1974. After In this connexion the Council decided to hearing the report of the Judge- convert 45 C 1 posts into 45 B 3 posts, Rapporteur and the views of the Advocate-General, the Court decided to 23 C 2 posts into 30 B 4 posts and 22 C 3 posts into 15 B 5 posts. open the oral procedure without any preparatory inquiry.

take part in the oral and optional Regulations of Officials no vacancy tests; notice was published. 3. declare null and void the express rejection of the applicant's complaint The Commission considers that this by the defendant's letter of 21 August submission is unfounded because the 1974; obligation to publish a vacancy notice 4. order the defendant to bear the costs only exists under the second paragraph and expenses of the proceedings; of Article 4, once 'the appointing Alternatively: authority decides that the vacancy is to 5. order the defendant to produce be filled'.

which were the subject of the practical The line of argument based oh the tests; the above list of documents is conversion of the post confuses illustrative and not exhaustive. considerations relating solely to the budget with the question of the vacancy. The defendant contends that the Court The argument relating to the 'elevation' should: of the post contradicts the definition of — declare inadmissible the submissions duties adopted by the decision of the put forward by the applicant under Commission which appeared in Staff Sections IV and V of her application Courier No 272 of 4 September 1973 and accordingly dismiss them; and with the classification of the posts in — declare that all the applicant's categories according to their nature and submissions which constitute her to the duties attaching to them, which application are inadmissible and appears in Article 5 of the Staff consequently dismiss it; Regulations of Officials.

DEBOECK v COMMISSION

She considers authority may decide not to proceed by that it is precisely the level of way of promotion or transfer but to hold responsibility placed on officials in an internal competition. In those Grades B 2 - B 3 which distinguishes circumstances it is no longer necessary to them from the officials in B 4 - B 5. The publish a vacancy notice since the concept of overlapping employed by the authority has completely fulfilled its defendant is only appropriate to grades obligations to the staff through its in the same career bracket. notification to the staff and the notice of competition. Finally, the applicant has In its rejoinder the defendant concedes not been adversely affected since she that the organization of a single took part in the competition. competition for two career brackets coming under different categories (A, B,

However, distinct grades. according to the definition of duties, the The defendant replies that, even if it secretarial assistant performs under were conceded that holding a single supervision the same work as that which the senior secretarial assistant carries out competition to fill posts of completely different natures and levels conflicts with on her own responsibility. the spirit of Article 5, this is not so 3. The third submission is based on the when, as in the present case, fact that the circumstances under which appointments are to be made to two types of post which overlap and which the competition took place give the are moreover identical in their duties, the impression that it was a competition only difference between them relating to based on tests only, whereas the notice of the level of responsibility on which the competition provided for a competition duties are to be performed. Furthermore based on qualifications and tests.

JUDGMENT OF 16. 10. 1975 — CASE 90/74

career bracket for officials who had some open a new career bracket to officials time ago reached a point where they with considerable seniority. On the could progress no further in their career contrary, the intention was to fill the new bracket, a notice of competition posts with the best of those eligible for prescribing only relatively short seniority them whilst at the same time favouring in the service of the Communities, five to some extent candidates with seniority years, and making the wholly relative in the profession of secretary and in the consideration of professional experience service of the Communities. In view of conditional on prior success in the this information the criticism relating to eliminatory written and practical tests, the requirement of 5 years' service in must be considered as inconsistent and the Communities becomes irrelevant. contrary to the principle patere legem Consultation and examination of the quam ipse fecisti. candidates' personal files advocated by the applicant would, because these files In its statement of defence the are built up from different sources, Commission observes that in the 'Notice conflict with the fundamental concept of to the Staff dated 16 April 1973 it had a competition involving tests, namely already notified the candidates that their impartial consideration of the per­ experience would be appraised by formances of all the candidates by a submitting them to appropriate tests. single body applying the same criteria to Furthermore, in addition to the everyone. Moreover, the criticisms requirement of 5 years' service in the relating to the efficacy of one type of Communities the notice of competition tests in relation to another concerns their also called for professional experience of appropriateness and does not fall within at least 9 years in secretarial work. the Court's jurisdiction.

DEBOECK v COMMISSION

competition. This point of view accords seem to them to favour candidates who with the prevalent methods in the were less experienced but who had had national laws on the public service. more recent schooling'. The results of the competition indicated that the object With regard to the objections of in view was not attained: candidates with inadmissibility the applicant replies that, long secretarial experience, advanced by virtue of the principle iura novit training as high-level secretaries and with curia and because the Court applies the good periodical reports were eliminated law and not its letter, the applicant is not in favour of candidates without much required to indicate . any specific experience who had often been trained provision either of the Treaty or of the by the former. document on which she relies. Furthermore a submission outlined in the application may be developed in the The applicant complains that the tests were carried out in a manner other than reply, and even in the course of the oral that announced in the Notice to the Staff

officials. The fact that the first paragraph applicant passed. The submission is thus of that article provides that one member inadmissible since she has no legal of the selection board shall be 'an official interest The applicant's exclusion from appointed by the Staff Committee' does the oral tests was, inaccordance with the not allow any conclusions to be drawn as provisions of the notice of competition, to the other members of the Board. The based on her failure in the written test Commission points out that the which she does not criticize. applicant has not suggested that she has been adversely affected in any way by the fact that the chairman of the selection With regard to the substance of the case, board was a former official. the Commission replies that it was by no means intended systematically to weight

JUDGMENT OF 16. 10. 1975 — CASE 90/74

there was a disparity between the 6. The applicant finally criticizes the Information Booklet and the adminis­ use of private. undertaking both for the tration of the test which, far from being a choice of tests and their marking. 'psychotechnical test', was in fact a Moreover, since the results were handled practical test intended to facilitate by a computer, it was impossible for the appraisal of the candidates' personal and selection board to check the tests and the professional capacities. marking.

fecisti. Annex III to the Staff Regulations of Officials requires that the proceedings of the selection board shall be secret, the The applicant requests the Court to minutes of the latter will be produced verify whether the manner in which the only if they are specifically requested by competition was conceived and carried the Court. The applicant has failed to out corresponds to the stated intentions produce any evidence whatsoever to of the defendant in the form in which justify her claims. they can be inferred from the wording of the minutes of the Commission and from the preparatory documents, and as In her reply, the applicant repeats her they appear in any event from a perusal request for production of the minutes of the Notice to the Staff. She also asks which alone make it possible to check the truth of the Commission's the Court to verify whether the selection of certain tests and the manner in which declarations. The principle laid down in Article 6 of Annex III to the Staff they were conducted is in accordance with the provisions binding the Regulations of Officials must yield to the defendant. public interest when the latter is concerned. With regard to the evidence required by the Commission, the In its rejoinder the Commission replies applicant observes that officials have no that, with regard to infringement of the access to any of the evidence and can general principles of law, the applicant only make allegations. Consequently the has provided no evidence of divergence Court ought to order production of the between its stated intentions with regard documents relating to the dispute, under to the subject-matter of the test and the the powers which it possesses, in manner in which it was conducted. The particular under Article 21 of the applicant's criticisms relating to the Protocol on the Statute of the Court of effectiveness of the practical test alone Justice of the EEC and wider the are concerned with its appropriateness provision in Article 23 of the Protocol on and effectiveness and not with its the Statute of the Court of Justice of the legality. ECSC.

3 The Commission, in order to meet the needs of Executive Secretaries and Principal Secretaries within career bracket C 1 and of Secretary/Shorthand- typists in career bracket C 3 - C 2, who are frequently held back in these grades at the end of their careers and because it considered 'that about 10 % of these secretaries carry out secretarial duties of category B' obtained from the Council the conversion of a certain number of posts previously classified under Category C into posts of Senior Secretarial Assistant within career bracket B 3 - B 2 and of Secretarial Assistant within career bracket B 5 - B 4.

4 Without publishing a vacancy notice, the Commission organized an internal competition based on qualifications and tests, the conditions of which specified, inter alia, that the 40 highest placed candidates, provided that they

JUDGMENT OF 16. 10. 1975 — CASE 90/74

had obtained a total of 70 marks in the compulsory tests, would be appointed to posts converted to Senior Secretarial Assistant in Grade В 3 and that the next 40 candidates, provided that they had obtained 60 marks, would be appointed to posts of Secretarial Assistant in Grade B 5.

5 This competition, the contents of which were identical for posts of Senior Secretarial Assistant (B 3 - B 2) and of Secretarial Assistant (B 5 - B 4) included, in addition to optional tests, compulsory tests, first written and then practical, and, for the candidates who had passed those tests, an oral test.

6 Lastly, a system of bonus marks was provided for officials with greater seniority in the service of the Communities as a secretary and/or previous professional experience of secretarial work.

11 According to the applicant the competition in question must be annulled because the notice of competition was not preceded by the publication of the vacancy notice which is required by the second paragraph of Article 4 of the Staff Regulations of Officials.

12 This submission, which relates to a condition of form to the fulfilment of which the regularity of the contested measure is subject, is inadmissible because of lack of interest on the part of the applicant.

и Although the vacancy notice must necessarily precede the notice of competition, failing which there is an infringement of the second and third paragraphs of Article 4 of the Staff Regulations, this is in order to enable the appointing authority to examine, before commencing the procedure for a competition, whether the post should be filled by transfer or promotion.

14 The applicant, however, could not have benefited from either of these two measures since, being an official in Category C, she needed to obtain a post in Category B which, under Article 45 (2) of the Staff Regulations, can take place only on the basis of a competition.

15 Furthermore, that omission could also have adversely affected possible candidates who were thereby prevented from taking part effectively in the competition, but that is not the case as regards the applicant.

16 The submission must be rejected.

21 The submission must be rejected.

Third submission

22 The applicant again claims that although the competition was based on qualifications and tests, the defendant attached too much importance to the tests and insufficient importance to the qualifications of the candidates.

23 In this respect, she refers to the wishes which were expressed by members of the Commission that careen at the top of Category C should be carried forward into a higher category.

24 She asks, for the purpose of providing support for her argument, that the Court should order the production of all documents and minutes of the Commission which led to the publication of the notice of competition.

25 It is established, as was pointed out above, that the aim of the contested competition was to give certain categories of officials held back in grades in

30 No factor has been put forward to show that the Commission exceeded the limits of the discretion which is granted to it in this respect.

31 The submission must be rejected.

Fourth submission

32 The applicant also claims that the competition is irregular because the Selection Board was presided over by a person not having the status of an official.

33 According to Article 3 of Annex III to the Staff Regulations of Officials.

The Selection Board shall consist of a chairman, one or more persons appointed by the appointing authority and an official appointed by the Staff Committee.

36 The fifth and sixth submissions criticize the organization of certain tests and in particular the intervention, for the practical tests, of a private undertaking working by means of computers.

37 These criticisms relating to the methods used in the tests with varying degrees of success, concern matters of fact which do not bring the legality of the competition into question.

38 On the other hand the intervention of a third party in the organization of the tests is authorized by the second paragraph of Article 3 of Annex III to the Staff Regulations on condition that it is in an advisory capacity and that the Selection Board regains ultimate control over the procedures and its discretionary power.

39 It has not been shown or even alleged that such was not the case.

40 These submissions must be rejected.

DEBOECK v COMMISSION

hereby:

1. Dismisses the application;

2. Orders the parties to bear their own costs.

Monaco Mertens de Wilmars O'Keeffe

Delivered in open court in Luxembourg on 16 October 1975.

A. Van Houtte R. Monaco