C-122/77

JUDGMENT OF THE COURT (SECOND CHAMBER) OF 26 OCTOBER 1978 <apnote>1</apnote>

Augusta Claes (née Agneessens) and Others v. Commission of the European Communities

Case 122/77

1. Officials — Recruitment — Competition — Selection Board — Assistance of examiners in an advisory capacity — Conditions (Staff Regulations, second paragraph ofArticle 3 ofAnnex III)

2. Officials — Recruitment — Competition — Selection Board — Drawing up a list of suitable candidates — Number of candidates to be included (Staff Regulations, paragraph 5 ofArticle 5 ofAnnex III)

JUDGMENT OF 26. 10. 1978 — CASE 122/77

VIOLETTA FERRARI, residing at 35 Rue Froissart, Brussels (Belgium), Marcelle MONFORT, residing at 5 Avenue Belle Étoile, La Hulpe (Belgium), CHRISTEL MONTAG, residing at 2/20 Via Esperia, Ispra (Italy), Maryse NICAISE, residing at 19 Avenue des Nenuphars (Bte 23), Brussels (Belgium),

Mathilde OBERT, residing at 1 Via Esperia, Ispra (Italy), Maggy PEREIRA, residing at 2 Rue Kleindal, Linkebeek (Belgium), Angela SALMOIRAGHI, residing at 22 Square Hoedemaekers, Brussels (Belgium), WILHELMINA SCHEFFELAAR, residing at 16 Rue Willems, app. 113, Brussels (Belgium), GABRIELLA VAN AALST, residing at 3 Avenue E. de Thibault, Brussels (Belgium),

Simone NAGLES (nee VAN de RUTTE) residing at 77 Maurice Despretaan, Sterrebeek (Belgium),

SIMONE VAN DOESELAER, residing at 35 Rue Scailquin (Bte 67), Brussels (Belgium), IRENE VAN DOOREN, residing at 158 Steenweg op Edingen, Asse (Belgium),

Officials of the Commission of the European Communities, represented by Jacques Putzeys and Xavier Leurquin, Advocates at the Cour d'Appel, Brussels, with an address for service in Luxembourg at the Chambers of G. Nickts, Huissier de justice, 17 Boulevard Royal,

Advocate General: G. Reischl Acting Registrar: F. Kohl

gives the following

JUDGMENT

Facts and Issues

The facts, the procedure and the of secretarial assistants in career bracket conclusions and submissions and B 5/B 4. arguments of the parties may be sum­ At point II (1) the notice specified the marized as follows: conditions of admission to the competition relating to qualifications and practical experience as follows: I — Facts and procedure "Certificates, diplomas, etc. and Regulation No 1473/72 of the Council practical experience of 30 June 1972 (Official Journal, Either A: English Special Edition 1972 (III), p. 1. Advanced secondary education, with 703) created new basic posts of senior certificate, and at least six years' secretarial assistant and secretarial experience of Category C duties in assistant classified under Category B the fields described under 'Nature of and relating respectively to career Duties' as executive secretary, brackets B 3/B 2 and B 5/B 4. At the principal secretary or shorthand­ same time a certain number of posts in typist or in some other similar Category C were reclassified under capacity appropriate to those duties Category B and a competition was and organized in 1973 to fill the new posts. 2. A total of five years' service with the The subsequent reclassification of C Communities as an official or other posts to B posts resulted in a further servant or

competition organized in 1976. On 19 July 1976 the Commission drew up the 3. At least 15 years' practical experience in the fields described under 'Nature notice of Internal Competition No of Duties'. COM/BS/14/75, the text of which was published in Administrative information Or B: No 106 of 27 July 1976. It announced a competition on the basis of 1. At least 12 years' practical experience qualifications and possibly on tests for of Category C duties as executive the purpose of drawing up a reserve list secretary, principal secretary or

"Where possible, the selection board reports and any other matten which the will mention on the list of candidates examinen shall properly be able to take satisfying the requirements set out in into account for the purpose of drawing this notice those whose qualifications up its draft list." they consider to be the ben, having In order to determine these guidelines regard for this purpose to the candi­ the selection board and the examinen date's individual file (general and held a joint meeting on 15 October specialized training, age, length and 1976. The examinen then proceeded nature of practical experience, staff initially to make a provisional selection reports, etc.). solely on the basis of so-called In the event of the number of can­ "objective" criteria, with reference to didates eligible by virtue of their the grade, age, length of service and qualifications exceeding the number of seniority and the certificates of the candi­ dates. At the end of this selection the posts available by 30% or more, the selection board may decide to examiners drew up a list of 247 candi­ submit the listed candidates to the dates. At the beginning of November the selection board was informed of this following tests in order to reduce their number:..." result and of the combination of the criteria on which it was based. The A list of 775 candidates was drawn up selection board then invited the by the appointing authority in examinen to pursue their work by accordance with Article 4 of Annex III considering the vocational qualities of to the Staff Regulations. The selection the candidates. They considered the board first met on 29 September 1976 personal files of all the eligible candi­ to decide which of the candidates could dates and requested the Directorates be admitted on the basis of the General and departments concerned to conditions set out in point II (1) of the check the objective facts taken into notice of competition. That first stage account at the stage prior to selection of the work of the selection board was and to give an assessment of the candi­ completed on 13 October 1976 when a dates. On 2 December 1976 they list of 550 eligible candidates was drawn submitted a repon to the selection up, which, according to the board relating to the execution of its Commission, included all the applicants instructions, together with a list of can­ save Mrs Scheffelaar. didates considered the most deserving At the same time the selection board of appointment to the posts in question. appointed a board of examiners Annex II to the repon indicates the so­ comprising a chairman and 10 members called "objective" criteria and shows drawn equally from representatives of that the candidates fulfilling the the administration and the staff and conditions for admission to the

(a) The applicants observe that it was II — Conclusions of the parties the examiners who determined the combination of the so-called "objective" 1. The applicants claim that the Court criteria. This appears from Annex II to should: the report of 2 December 1976 which the examiners made to the selection — Annul the Commission's decision, board regarding the execution of their notified by letters of 12 July 1977, instructions. rejecting the applicants' complaint submitted under Article 90 (2) of the The Directorates General were asked to

Staff Regulations; give an assessment only in relation to — Annul the decision of the selection the candidates meeting the so-called "objective" criteria. This is apparent board for Internal Competition No from Annex II to the repon of 2 COM/BS/14 /75 concerning the December 1976 of the examiners to the drawing-up and the contents of a list selectionboard and from the infor­ of 114 suitable candidates; mation bulletin of the Staff Committee — Annul the decision of the appointing of 25 February 1977. authority to make appointments It is not moreover possible in the consequent upon that competition; present state of the file to know with — Order the opposite party to pay the certainty whether the examiners costs. considered the personal files of all the

JUDGMENT OF 26. 10. 1978 — CASE 122/77

2. Admissibility (b) In the Commission's view it is (л) The Commission points out that apparent from the examiners' report to one of the applicants, Mrs Scheffelaar, the selection board and the annex was not admitted to the competition thereto that the examiners confined and she was informed of this by letter themselves to proposing to the selection dated 26 October 1976. Because the board guidelines which the selection admissions stage could not be board approved, since it then invited the questioned any annulment could apply examiners to continue their work by only to matten subsequent thereto. taking into account the other criteria set Accordingly Mrs Scheffelaar has no out in their instructions. interest in the action since the contested decisions do not adversely affect her. The opinion of the Directorates General was sought in respect of all candidates (b) Mrs Scheffelaar observes that she admitted to the competition.

report. Mention is made therein of and the Commission ought therefore to "exceptions, unanimously agreed by the be ordered to pay the costs of her examiners, relating to specially qualified application. and deserving officials who have performed or are performing secretarial A. The first submission of the duties of undoubtedly heavy applicants responsiblity". Those "exceptions" related to candidates whom the 1. The fint submission is that the examinen proposed to the selection decisions which theare applicants board to include in the list of suitable seeking to have annulled violate the candidates although from the point of general principles on the methods by view of the so-called "objective" criteria which a selection board for a

competition based on qualifications prohibition, the selection board is at reaches its verdict and the first liberty to have recourse to examinen. paragraph of Article 30 of the Staff The first paragraph of Article 30 of the Regulations, and that there was an Staff Regulations has no special incorrect application of the second provision on this issue. paragraph of Anide 3 of Annex III to the Staff Regulations. The second paragraph of Article 3 of This irregularity consisted principally in Annex III to the Staff Regulations the selection board's considering the should not be interpreted as prohibiting drawing-up of the list of suitable candi­ the appointment of examinen at the dates in the presence of a group of stage when the qualifications of the examinen. Since it was a competition candidates are being considered. Fint of based on qualifications only the all, the general principle of the freedom selection board provided for in the first of the selection board in the organi­ paragraph of Article 30 of the Staff zation of its work is scarcely compatible with restrictions on such freedom based Regulations was entitled to consider the verdict. According to the second on an argument a contrana. Moreover, paragraph of Article 3 of Annex III to the ration legis would also appear to be the Staff Regulations examinen may be opposed to a restrictive interpretation: appointed only where there is a the provision in question satisfies the competition based on tests. need of allowing the selection board in the most frequent case (namely that of a There was, moreover, further iregu­ competition based on qualifications and larity in the fact that the selection board tests) to receive assistance at the considered it necessary to appoint examinen to determine the criteria to materially most onerous and crucial suge, that of the tests. It was at that be applied for comparing the same suge of the comparative qualifications acquired in the various consideration of the merits of the candi­ Member States. A selection board dates that the examinen were involved cannot thus delegate powers and by the same token restrict its own. in the competition in question. The criterion, according to the case-law 2. The Commission fint of all stresses of the Court, is that the selection board the fact that the applicants have not should retain "ultimate control over the shown evidence that the use of procedures and its discretionary examiners adversely affected the power": Case 90/74, Deboeck v the objectivity of the competition. The fact Commission ([1975] ECR 1123). The that the examinen were chosen equally facts show that this was the position in from staff and administration is on the the present case. contrary such as to offer the candidates guarantees comparable to those offered 3. The applicants in reply say that it is by the selection board itself. irrelevant whether recourse to

They refer to the fact that the selection question that selection, it therefore board alone decided on the admission delegated one of its essential powers: to decide between the candidates chosen at of candidates to the competition on the basis of the conditions contained in the time of the preliminary selection and also to take into account those who point II (1) of the notice of competition. It cannot be alleged that without the were not selected at that suge but who assistance of third persons the selection had exceptional merit or who had board encountered insurmountable exercised special responsibilities. obstacles in fulfilling its taks. Another sub-delegation of powers lay in The ratio legis of the second paragraph the assessment sought from Directorates of Article 3 of Annex IIΙ to the Staff General. This classification was Regulations arises from the necessity to probably used to draw up the list derogate from the rigidity of the general proposed to the selection board by the principle so that the selection board examiners on 2 December 1976. The may receive assistance at the materially minutes of the meetings of the selection most onerous stage. That exceptional board on 6, 7 and 8 December 1976 do power is exercisable only in respect of not show what consideration was written tests and practical tasks, such as undertaken during those meetings or marking. whether all the qualifications of all the The judgment of the Court in Case candidates were reconsidered. The 90/74 Deboeck does not support the applicants allege, finally, in this respect Commission's view because the that in answer to their complaint the competition in question in that case was Commission replied that it was based on qualifications and tests. necessary to appoint examiners to The applicants allege further that the determine the criteria to be applied to selection board was not able to retain ensure a fair comparison of the ultimate control over the procedures qualifications obtained in the various Member States. and its discretionary power, contrary to the aforementioned judgment. 4. The Commission alleges in its There was a first misuse of powers in the fan that the board of examiners was rejoinder that it is not possible to infer from the judgment of the Court in Case instructed to take into account any other matters which it considered 90/74 Deboeck that it is improper to have recourse to examiners in all cases relevant for the purpose of drawing up its draft list. It is not apparent from the other than those expressly provided for file whether these were mandatory in the second paragraph of Article 3 of criteria imposed on it or guidelines Annex III to the Staff Regulations. leaving it complete freedom. There is no justification for saying that On the other hand, it appears that that article is limited to authorizing without having been empowered to do recourse to examiners for written tests. so the examiners decided: to relate the To say that the marking of written tests so-called "objective" criteria to the is a practical task is an abuse of the criteria considered to be subjective; to language, since it is a complex matter make a preliminary selection on the leading to a subjective assessment.

Reference to the fact that the selection such time and on the basis of a pre board was able on its own to consider liminary selection the opinion of the the case of the 775 candidates to decide Directorates General. as to their admission is irrelevant: it is apparent from the notice of competition 2. Regarding the alleged violation of that that task was less complex than the general principle of the equality of consideration of the qualifications. candidates, the Commission refers to the Nor can the Commission accept the facts of the case. In particular it stresses that the merits stricto sensu of the candi argument that if the selection board was able to retain charge and control of the dates, namely the staff reports in work of the examiners it could have particular, were considered in the case dispensed with them. of all eligible candidates. Regarding the powers of the examiners The procedure of consulting the Direc torates General was conceived in such a the applicants are confusing the concept of a decision with that of a proposal. way that each representative of a The Commission, moreover, does not department was required to give an consider itself authorized to reveal parti opinion only of eligible candidates in culars of the work of the selection the particular department.

to exercise its powers. The same argument is also valid regarding the provisions contained on this subject in intervention of the Directorates point II (3) of the notice of competition. General. 3. In their reply the applicants claim further unfairness in that the candidates B. The second submission of the who did not satisfy the objective criteria applicants were chosen according to another 1. The submission here is that there criterion, namely their exceptional has been an infringement both of the merit. These candidates do not satisfy general principle of the equality of all the conditions since they do not fulfil the objective criteria. candidates admitted to a competition and of the first paragraph of Article 30 Regarding the secrecy of the work of and Article 6 of Annex III to the Staff the selection board the applicants in Regulations.

JUDGMENT OF 26. 10. 1978 — CASE 122/77

was known. Classification by order of the views of the Directorates General merit was undertaken within the Direc were to have similar information on all torates General so that it was not the candidates in order to be better able necessary to have global picture of the to assess their qualifications. competition in order to have, in The applicants' claim that the number advance, a virtually certain knowledge of candidates to be selected in each of the chances of candidates according Directorate General was known is to their position in the classification of disproved by the results of the the first group drawn up by each Direc competition, which show that there is torate General. no regular correlation between the Regarding the necessary independence number of candidates admitted by each Directorate General and the

4. The Commission takes the view that candidates containing 114 names, to require candidates who did not whereas such a list ought to contain at satisfy the objective criteria to show least twice as many names as the especially high qualifications in relation number of posts to be filled. The fan to the other criteria in order to be that a provisional list containing 250 included in the list of suitable candi names was drawn up shows that it was dates was simply the effect of a possible to draw up a list containing reasonable weighting made by the twice as many names of successful candi selection board as between the various dates. In acting thus the selection board criteria used for consideration of the deprived the appointing authority of its qualifications. discretion and exceeded its powers.

The applicants in any event have no 2. The Commission considers mat it is legitimate interest to pursue on this apparent from reading the provisions of issue: the candidates in the competition the Staff Regulations cited in support of would have obtained no additional the third submission that the selection guarantee if the selection board had board is under no obligation in respect extended the list of suitable candidates. of the number to be included in the list of suitable candidates: the sole effect of 3. In reply, the applicants sute that the the second paragraph of Article 30 is to ratio legis of the fifth paragraph of require the appointing authority to fill Article 5 of Annex III to the Staff Regu­ the vacant posts exclusively from the list lations is to prevent the selection board of suitable candidates; the wording of from taking the place of the appointing the fifth paragraph of Article 5 of authority by drawing up a list of suc­ Annex III to the Staff Regulations cessful candidates equal, or approxi­ makes it clear that the selection board is mately equal, to the number of vacant not bound to any specific number in posts. It is for the selection board to drawing up the list of suitable candi­ show that the qualifications of the candi­ dates: it is simply requested "wherever dates were insufficient, so that it was possible" to include at least twice as impossible to draw up a longer list; this many names as the number of posts to was not done. be filled. Mandatory rules in the matter are not consistent with the principle of 4. In its rejoinder, the Commission the independence of the selection board observes that it is incorrect to claim that and its necessary freedom of judgment. the appointing authority required the Moreover, there is nothing to show that selection board to include in the list of the selection board was able to include suitable candidates a number roughly a larger number in the list of suitable equal to that thought to be allowed for candidates. The Commission considers in the budget. Assuming, however, for this issue to be outside the jurisdiction the sake of argument that such of the Court. The only fact which the mandatory instructions had been given applicants rely on is that "a provisional to the selection board they would not list containing 250 names was drawn have been bound by it and consequently up". This argument is reasonable only if would not have been capable of vitiating the selection board had drawn up a pre­ the competition. It is apparent, on the liminary provisional list based on all the other hand, from the notice of criteria contained in point II (3) of the competition that two kinds of solution notice of competition and then, by were contemplated by the appointing raising the requirements based on those authority, namely, on the one hand, the

4 All the applicants save one are among the candidates so admitted.

5 After having recourse to the assistance of a board of examiners the selection board at the end of its proceedings drew up a list of suitable candidates containing 114 names which did not include those of the applicants.

CLAES v COMMISSION

6 Finally, 109 candidates from those 114 were appointed to the posts in question.

First submission

7 The applicants claim, in the first place, that the first paragraph of Article 30 of the Staff Regulations was infringed because the selection board called upon examiners to draw up the list of suitable candidates, whereas the second paragraph of Article 3 of Annex III to the Staff Regulations auth­ orizes recourse to examiners only for certain tests and in so doing provides in addition that such examiners shall serve only in an advisory capacity.

Second submission

13 The applicants further daim that the general principle of the equality of candidates admitted to a competition as well as Article 6 of Annex III to the Staff Regulations, according to which the proceedings of the selection board are to be secret, were infringed by the fact that a provisional list of suitable candidates was submitted, to obtain their opinion, to the departments and Directorates General to which the candidates belonged.

14 It is apparent, however, from the explanations given to the Court that each department or Directorate General was questioned by the selection board about all the candidates admitted to the competition who were in the service of the department or Directorate General in question, and not merely, as the applicants appear to imagine, about the candidates who were included in a provisional list because they satisfied certain criteria for the purpose of a preliminary selection.

15 That procedure therefore respected the principle of the equality of candi­ dates in a competition.

16 It further appears that the purpose of seeking the opinion of the departments and Directorates General was to provide the selection board with additional information regarding the candidates and that the opinions sought related only to those who were in the service of each department or Directorate General in question.

17 The departments and Directorates General were thus not in a position to influence improperly the proceedings of the selection board or to have knowledge of those proceedings in a way likely to breach their secrecy.

22 The fifth paragraph of Article 5 of Annex III is only a recommendation to the selection board, intended to facilitate the decisions of the appointing authority, and whether or not it is followed depends on the nature and circumstances of the competition, the number of candidates and their qualifications.

23 In the present case the manner in which the selection board drew up the list of suitable candidates was justified by the nature of the competition and the very large number of posts to which the competition related.

24 This submission must therefore also be rejected.

25 The application must therefore be dismissed as unfounded.

26 In these circumstances it is unnecessary to consider the objection made by the Commission to the admissibility of the application regarding one of the 15 applicants.

Costs

hereby:

1. Dismisses the application.

2. Orders the parties to bear their own costs.

Mackenzie Stuart Sørensen Touffait

Delivered in open court in Luxembourg on 26 October 1978.

A. Van Houtte Mackenzie Stuart