C-24/78
ECLI:EU:C:1979:37
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JUDGMENT OF THE COURT (SECOND CHAMBER) OF 13 FEBRUARY 1979<appnote>1</appnote>
Hélène Martin
v Commission of the European Communities
Case 24/78
1. Officials — Recruitment — Competition — Selection board — Proceedings — Absence of a member — Competition procedure — Validity — Conditions (Staff Regulations of Officials, Annex III, Art. 3)
2. Officials — Recruitment — Competition based on tests — Written test — Choice of subject — Unfair advantage of one candidate — Principle of equality of treatment — Infringement
1. Although in principle a selection competition is an infringement of the board cannot validly perform its principle of the equality of treatment duties when one of its members is of the candidates such as to vitiate
absent, the need to ensure the the subsequent procedure in the continuity of the public sen ice may competition. This is so where the however justify relaxing this principle concrete way in which the subject is if it proves impossible to ensure defined enables a candidate to profit otherwise that the selection board from the special experience he has functions. acquired in the performance, as a 2. The fact that one candidate is put at member of the temporary staff, of the an unfair advantage by the choice of duties relating to the post put up for the subject for the written test in a competition.
In Case 24/78
Hélène MARTIN, residing at 210 Avenue Molière, Brussels, an official of the Commission of the European Communities, represented by Marcel Grégoire and Edmond Lebrun, Advocates at the Brussels Bar, with an address for service in Luxembourg at the Chambers of Tony Biever, 83 Boulevard Grande-Duchesse Charlotte,
applicant,
1 — Language of the Case: French.
JUDGMENT OF 13. 2. 1979 — CASE 24/78
V
Commission of the European COMMUNITIES, represented by its Principal Legal Adviser, Raymond Baeyens, acting as Agent, with an address for service in Luxembourg at the offices of its Legal Adviser, Mario Cervino, Jean Monnet Building, Kirchberg,
defendant,
APPLICATION for the annulment of the decision by which the selection board for Internal Competition COM/680/75 refused to admit Mrs Martin to the oral tests in that competition and consequently for the annulment of the subsequent procedure in that competition and of the appointment which was made as a result of it,
THE COURT (Second Chamber)
composed of: Lord Mackenzie Stuart, President of Chamber, M. Sørensen and A. Touffait, Judges,
Advocate General: F. Capotorti Registrar: A. Van Houtte
gives the following
JUDGMENT
Facts and Issues
The facts of the case, procedure, a post of principal administrator at the conclusions and submissions and Directorate General for External
arguments of the parties may be Relations, Relations with countries of summarized as follows: Northern, Central and Southern Europe Directorate, Relations with the countries of Southern Europe; co-ordination with the Directorate General for Development I — Facts and procedure and Co-operation concerning overall problems relating to the Mediterranean 1. Vacancy Notice COM/1440/74, area; Portugal, Spain, Malta, Greece, published in September 1974, concerned Turkey, Yugoslavia and Cyprus Division.
MARTIN COMMISSION
The nature of the duties relating to that 4. Mr Angel Alonso, who was post was described as follows in the appointed by the Staff Committee to sit vacancy notice: on the selection board for that
"Administrative, advisory or supervisory competition, handed to the selection duties in connexion with the problems board at the first meeting a written note relating to relations between the dated 26 September 1977 and worded as follows: Community and the Mediterranean countries." "The local Staff Committee in Brussels,
The qualifications required were confirming the appointment of Mr Angel described as follows: Alonso as staff representative on the selection board for Competition COM/- "— University education, with degree or 680/75, instructs him to refrain from diploma, or equivalent practical taking any part in the work of that experience. selection board. In this connexion, the — A good knowledge of the economic Staff Committee recalls Opinions Nos 1 and political problems arising in and 3/74 delivered by the Joint relations between the Community Committee. The latter opinion, which and the above-mentioned countries. was approved unanimously by the — Very good knowledge of econ- members of the Joint Committee, omics, in particular in the field of specifies, as regards individual com- external relations. petitions in particular, that in view of the difficulties which have been discovered — Ability to represent the Commission and the resulting discontent it is in internal and external meetings. necessary to abolish them in the future. — Wide experience relevant to the The Staff Committee also recalls that post." Competition COM/680/75 gave rise to an unfavourable opinion from the Joint The applicant in this case, Mrs Hélène Committee. In these circumstances, Mr Martin, applied for this post. Angel Alonso will not actually be able to take part." 2. The vacancy notice however was annulled and the annulment was A postscript to the note stated as follows: published in March 1975. The same post "According to the information of the was the subject of Vacancy Notice localStaff Committee in Brussels, Mr COM/680/75 published in July 1975 but F. Ferrandi will be the successful
this procedure was not continued. On applicant and will be appointed to the the other hand, the post was the subject- post to be filled as a result of the matter of Notice of Internal Competition competition." COM/680/75 based on qualifications and tests which bore the same number
but was not published until August 1977.
3. Point III of the latter notice
provided for a written test "on a subject relating to the Mediterranean countries". Seven applications were passed on to the selection board for the competition; of these seven, the selection board decided at its first meeting to accept for the purposes of the written test the applications of Mr François Fer- randi and Mrs Hélène Martin.
JUDGMENT OF 13. 2. 1979 — CASE 24/78
5. At its second meeting, in the absence Reconstruction and Development in of the Staff Committee's representative, Washington from 1972 and was taken on the selection board fixed the subject of by the Commission as a member of the the written test as follows: "Community temporary staff in Grade A 5 from May relations with the Mediterranean 1975 to occupy the post in question in countries: association or non-preferential this case. He is especially responsible for system". Mr Ferrandi and Mrs Martin matters connected with Turkey and took part in that test. On the basis of the Yugoslavia. His contract of employment marks which those two candidates as a member of the temporary staff was obtained, the selection board decided to extended successively until May 1978. admit only Mr Ferrandi to the oral tests. After the oral tests, the selection board 9. The present application for the put only Mr Ferrandi's name on the list annulment of the refusal by the selection of suitable candidates. In January 1978 board to admit Mrs Martin to the oral
the latter was appointed a probationer in tests in Competition COM/680/75 was the post put up for competition and was lodged on 27 February 1978. classified in Grade A 5. After hearing the report of the Judge- Rapporteur and the views of the 6. On 7 December 1977 Mrs Martin Advocate General the Court (Second submitted a complaint under Article 90 Chamber) decided to open the oral (2) of the Staff Regulations of Officials procedure without any preparatory against the decision notified on 1 inquiry. December 1977 by which the selection board refused to admit her to the oral
tests for the competition. By II — Conclusions of the parties memorandum from the Commission of 9 March 1978 this complaint was 1. The applicant claims that the Court rejected. should:
7. Mrs Martin, who has a bachelor's — Declare that the application is admissible and well founded; degree in Politics and Diplomacy (sciences politiques et diplomatiques) from — Annul the decision of the selection
the University of Brussels (1963), was board for Internal Competition assigned to the Directorate General COM/680/75 refusing to admit her for Overseas Development of the to the oral tests for that competition Commission from November 1963, first and consequently annul all the sub- as a trainee and then as a member of the sequent procedure in that auxiliary staff. In July 1967 Mrs Martin competition and the appointment was appointed a probationer in Grade made as a result of it; A 7 in the post of administrator in the — Order the Commission to pay the same Directorate General, General costs.
Affairs Directorate, Fundamental and Legal Problems and Right of Establishment Division. She was
established in February 1968. She was promoted to Grade A 6 as from 1 January 1971.
8. Mr Ferrandi is a Doctor of
Economics of the University of Paris I, Panthéon, Sorbonne (1971). He was an official at the International Bank for
MARTIN v COMMISSION
2. The Commission contends that the at 305, that this viewpoint is confirmed Court should: by the case-law of certain Member States. This opinion is, according to the — Dismiss the application as un- founded; applicant, supported in addition by A. Plantey in "Traité Pratique de la — Order the applicant to pay the costs. Fonction Publique" (Practical Treatise on the Pubic Service), Second Edition. According to L. Dubouis, in the "Revue III — Submissions and argu- Trimestrielle du Droit Européen" ments of the parties (Quarterly European Law Review) 1972, p. 384, the Court, in its judgment of A — The first submission of the applicant 1 April 1971 in the above-mentioned case ([1971] ECR 297) adopted this case- 1. This submission is based on the law. The applicant finally points out that infringement of the Staff Regulations of the participation of all the members of Officials, in particular of Article 3 of the selection board in the deliberations Annex III thereof, the infringement of constitutes an indispensable guarantee of essential procedural requirements, lack objectivity for the applicants. of competence, violation of legal principles and abuse of powers in that b. The applicant observes with regard the member of the selection board to point (b) above that in any case the appointed by the Staff Committee did absence of the member of the selection not take part in the work of the selection board for the competition appointed by board. the Staff Committee constitutes by itself Within the context of this submission the a cause of illegality. The result of this applicant first considers three matters, absence is in fact that the selection board each of which is subsidiary to the is not composed both of members previous one: appointed by the appointing authority (a) the absence of a member of the and of a member appointed by the Staff selection board from the work of Committee, as intended by the that board; legislature.
(b) the member of the selection board is c. The applicant claims as regards point the one appointed by the Staff (c) above that in the present case the Commitee; absence of the member of the selection (c) the effect which the absence of the board appointed by the Staff Committee member of the selection board has had an effect on the course of the appointed by the Staff Committee procedure in the competition: this may have had in the present case. member was absent from all the work of the selection board; the selection board The applicant then deals with the reasons chose a subject for the written test which for and the circumstances surrounding one of the applicants had already dealt that absence. with in his post; the member of the selection board appointed by the Staff a. With regard to point (a) above, the Committee would have taken particular applicant points out that the fact that a care that this did not happen; one of the member of the selection board has not prime concerns of the Staff Committee is taken part in any of its work is by itself in fact that the principle of equality of such as to vitiate the competition for treatment should be observed especially illegality: it follows from the opinion of on the occasion of a competition in the Advocate General in Case 76/69, which a member of the temporary staff Dietrich Rabe v Commission of the occupying the post to be filled is taking European Communities [1971] ECR 297 part.
JUDGMENT OF 13. 2. 1979 — CASE 24/78
d. The applicant then retraces the function in accordance with Article 3(1) history of the procedure followed for the of Annex III to the Staff Regulations it purpose of filling the post in question cannot, according to the applicant, be and emphasizes in particular in this heard to claim that the irregularity of respect the following points: the that functioning must be justified on the Commission did not explain the reasons basis of the principle of the continuity of for the annulment of Vacancy Notice the public services. In fact since the COM/1440/74; it is necessary to decision not to take part in the work of consider that by the annulment of that the selection board comes from a body vacancy notice the Commission decided, within the Commission and is, moreover, albeit for the time being, not to fill the duly reasoned, the Commission is, post in question; Mr Ferrandi was according to the applicant, obliged to do however assigned to that post two everything in its power so that the months after that annulment and before selection board can function. The Vacancy Notice COM/680/75 had even applicant adds that it is clear that the been published whereas the post had not Staff Committee did not intend in the
been declared vacant, contrary to Article present case to waive a safeguard which 9 of the Conditions of Employment of it considers to be essential. Article 3 (1) Other Servants of the European of Annex III to the Staff Regulations on Communities; the Commission should the composition of the selection board explain the reasons which led it to re- for a competition is moreover, according publish the vacancy notice in the above- to the applicant, a provision of public mentioned circumstances; the vacancy policy and any waiver of such a notice was published again right in the provision is null and void. middle of the holiday period but the period within which applications had to 2. The Commission claims that the non-
be lodged was nevertheless the participation of the staff representative customary one of two weeks; for when that representative had been unknown reasons the promotion/transfer formally requested to take part in the work of the selection board does not procedure initiated by Vacancy Notice COM/680/75 was not continued; two have the effect of making the course of years later the notice of internal the competition procedure irregular. The competition was published bearing the principle of the continuity of the public same number, but whereas the vacancy service in fact prevents such procedures notice required "thorough knowledge of of organized obstruction from preventing the commercial, financial and political the normal performance of tasks of the administration. In this case if it were problems arising in relations between the Community and the countries in question", the notice of competition no longer required more than mere "knowledge" in this respect. The applicant concludes that the decision of the Staff Committee to instruct its representative on the selection board to refrain from taking part in the work of the selection board comes within the
context which she has just stated which shows the Commission's concern to
reserve the post in question for Mr Ferrandi.
Since the Commission has done nothing to try to make the selection board
MARTIN v COMMISSION
necessary to consider that the actual The Commission then emphasizes that participation of a staff representative was the publication of a vacancy notice is essential for the regularity of the course required for a vacant post which the of a competition the administration appointing authority decides to fill would find it impossible to fill any vacant permanently. The publication of Vacancy post. Notice COM/680/75 must be under-
The applicant is relying in vain upon the stood to this effect.
judgment and the opinion of the The Commission finally observes that the Advocate General in Case 76/69, slight differences noted by the applicant Dietrich Rabe v Commission of the between the text of Vacancy Notice European Communities: the situation COM/680/75 and that of Notice of which has arisen in this case is not Internal Competition COM/680/75 comparable with the irregularities noted correspond to amendments suggested in in the internal competition annulled by the opinion on this competition delivered that judgment. Moreover, according to by the Joint Committee. the Commission, A. Plantey considers, in his "Traité Pratique de la Fonction Publique", Third Edition, that "where a — The second submission of the member of the selection board fails to applicant appear, the administration must replace 1. This submission is based, in the alter- him if it has the time to do so ... If not, native, on the violation of the principles the competition will take place before an incomplete selection board." of natural justice, equality of treatment, distributive justice and good ad- In the present case the staff re- ministration and on abuse of powers. presentative deliberately abstained so that the appointing authority was, The applicant considers that the according to the Commission, unable to principles relied upon in the submission replace him and was obliged to carry out require that in a competition in which a the competition procedures with a member of the temporary staff who selection board reduced in number already performs the tasks of the post although regularly constituted. put up for competition takes part the subject of the written test should not be The Commission moreover emphasizes that the rule according to which a staff chosen from the subjects which that representative must take part in a member of the temporary staff has dealt selection board for an internal with in the performance of his duties. competition has been laid down prin- In the opinion of the applicant it was cipally in favour of the staff. Therefore necessary, in order to ensure equal oppor- by waiving that principle the staff cannot tunity, to choose a subject which Mr subsequently avail themselves thereof so Ferrandi had not yet dealt with. as to attack the regularity of the The applicant adds that the Commission competition procedures in that respect. desires a policy of mobility for its staff The Commission observes moreover that which implies that an official performs Article 3 of Annex III to the Staff Regu- during the course of his career various lations does not mention that the structure of the selection board must be
such that it is composed both of members appointed by the appointing authority and of members appointed by the Staff Committee as is the case with regard to the Joint Committee under Article 2 and the second paragraph of Article 3 of Annex II.
609.
JUDGMENT OF 13. 2. 1979 — CASE 24/78
duties sometimes in fields very different the member of the temporary staff who from one another. Such mobility could was occupying the post had acquired not actually be achieved if in order to some experience in it. She emphasizes in obtain a post it were necessary to be able this respect that Mr Ferrandi could not to discuss the subject in the same way as take part in the promotion/transfer a person who has already performed the procedure initiated by the vacancy duties relating to that post. notice. She then refers to the difference
between those two notices as regards the 2. The Commission considers that the qualifications required to which she has subject chosen for the written test by the already referred in her first submission. selection board is justified having regard She adds that, as regards the knowledge to the wording of the point entitled in the field of external economic
"written test" and of the point entitled relations, the requirements in Notice "nature of the duties" in the notice of of Competition COM/680/75 (good competition. The choice of such a knowledge) are lower than those general and topical subject could not as contained in Vacancy Notice COM/- such prejudice the applicant's application 1440/74 (very good knowledge). The in relation to that of Mr Ferrandi. applicant then refers in this context to the negative opinion delivered by the Joint Committee as regards the pub- C — The third submission of the lication of that notice of competition, to applicant the instructions given by the Staff 1. This submission is based, as a further Committee to the member of the
alternative, on the infringement of the selection board appointed by it to refrain Staff Regulations, particularly of Article from taking part in the work of the 7(1) thereof, and on misuse of powers in selection board and to the choice, for the that the objective pursued was not the written test, of a subject with which one interests of the service but the of the applicants had been dealing for appointment of the person who already two years.
occupied the post put up for competition as a member of the temporary staff. 2. In the opinion of the Commission there is no proof of misuse of powers in According to the applicant, it follows the present case. The Commission recalls from the judgment of the Court of 29 that the appointment of a member of the September 1976 in Case 105/75, Franco temporary staff occupying a permanent Giuffrida v Council of the European post at the conclusion of an internal Communities [1976] ECR 1395, that the competition based on qualifications and pursuit of such an objective implies a tests organized so as to fill that post does misuse of powers. not by virtue of that alone involve a According to the applicant, the objective misuse of powers. The applicant is pursued results from the historical moreover wrongly attempting to context of the procedure followed for the purpose of filling the post in question. She points out in particular in this respect that Notice of Competition COM/680/75 was drafted to fit Mr
Ferrandi. She claims that the period of two years which elapsed between Vacancy Notice and Notice of Competition COM/680/75 is explained by the concern of the Commission not to put the post up for competition before
MARTIN v COMMISSION
compare the present case and the larity of competition procedures, whilst Giuffrida case, Case 105/75. being, with justification, cautious in The Commission then recalls that the deciding that special circumstances change in the notice of competition of alleged constitute evidence of a misuse of certain references to the knowledge powers. required which had appeared previously in the vacancy notice relating to the post were made by the appointing authority at IV — Oral Procedure the express request of the Joint Committee.
The Commission, in another connexion, At the hearing on 16 November 1978 does no more than recall the judgment Mrs Hélène Martin, represented by of the Court in Case 105/75, the E. Lebrun, and the Commission, Giuffrida case, and the judgment of 16 represented by its Principal Legal March 1978 in Case 7/77, Bernhard Adviser, R. Baeyens, acting as Agent, Liether Ritter von Wüllerstorff und presented oral argument. Urbair v Commission of the European The Advocate General delivered his Communities [1978] ECR 769 to show the wide powers of review which the opinion at the hearing on 11 January Court of Justice exercises over the regu- 1979.
Decision
1 The application, which was lodged on 7 December 1977, is for the annulment of the decision of the selection board for Competition COM/- 680/75 communicated to the applicant on 1 December 1977 in which the selection board refused to admit her to the oral tests in the competition and for the annulment of the susequent procedure in that competition and of the appointment made as a result thereof.
2 Notice of Internal Competition COM/680/75 based on qualifications and tests, which was published in August 1977, aimed to fill a post in category and career bracket Grade A 5 — A4, coming within the Relations with the Countries of Southern Europe Division of the Directorate General for External Relations.
3 The notice provided for a written test involving "a paper on a subject selected by the selection board relating to the Mediterranean countries".
4 The applicant was admitted to the written test as well as a candidate who had occupied the post in question as a member of the temporary staff since May 1975.
5 The other candidate, after being admitted to the oral tests, was the only one put on the list of suitable candidates and was subsequently appointed to the post put up for competition.
JUDGMENT OF 13. 2. 1979 — CASE 24/78
First submission
6 The applicant claims first that the decision of the selection board is vitiated for illegality because it was taken in the absence of the member of the selection board appointed by the Staff Committee under Article 3 of Annex III to the Staff Regulations of Officials.
7 In this respect, it is not in issue that at the first meeting of the selection board the member of the selection board appointed by the Staff Committee handed in a note from the Staff Committee according to which the Committee, confirming his appointment, "instructs him to refrain from taking any part in the work of that selection board".
8 In this context the note recalls the viewpoint adopted by the Joint Committee with regard to individual competitions declaring that it is desirable to abolish them.
9 The member appointed by the Staff Committee in fact refrained from taking any part in the work of the selection board so that the selection board, composed of the other two members alone, continued with its work and performed its task.
10 Although it is true that in principle a selection board cannot validly perform its duties when one of its members is absent, the need to ensure the continuity of the public service may however justify relaxing this principle if it proves impossible to ensure otherwise that the selection board functions.
11 In the present case the absence of one of the members of the selection board was the result of a general viewpoint adopted by the Staff Committee as a protest against a practice adopted by the Commission in relation to individual competitions.
12 The Commission was thus prevented from setting up and making function a selection board the composition of which was legal in relation to Article 3 of Annex III to the Staff Regulations, according to which one of the members must be appointed by the Staff Committee.
MARTIN COMMISSION
13 Since vacant posts cannot be left unoccupied for an indeterminate period of time the Commission was therefore justified to proceed on the basis of the work of the selection board as performed without the participation of the absent member.
14 This submission cannot therefore be accepted.
Second submission
15 The applicant claims in the alternative that the principle of the equality of treatment of the candidates in a competition has been violated because the subject of the written test was chosen from the subjects which one of the candidates had dealt with in the performance of his duties as a member of the temporary staff occupying the post put up for competition.
16 The selection board chose as the subject for the written test "Community relations with the Mediterranean countries: association or non-preferential system".
17 The applicant occupied a post in Grade A 6 in the Directorate General for Overseas Development, Directorate D (Operations), Division 4 (Training) within which she had taken part in particular in the drawing-up of certain multi-annual training programmes and certain specific training schemes and had carried out for this purpose several fact-finding missions for training schemes in three African, Caribbean and Pacific countries.
18 the other candidate admitted to the written test had been responsible, in the performance of his duties as a member of the temporary staff in the post to be filled, for matters connected with Turkey and Yugoslavia.
19 These two countries may be considered as being typical countries benefiting one from a system of association and the other from a non-preferential system.
JUDGMENT OF 13. 2. 1979 — CASE 24/78
20 It is therefore clear that the other candidate was put at an unfair advantage by the choice of the subject for the written test since the concrete way in which that subject was defined enabled him to profit from the special experience acquired in the performance of his duties in the post put up for competition.
21 This infringement of the principle of equality of treatment of the candidates in a competition is such as to vitiate both the decision in question adopted by the selection board for the competition and the subsequent procedure.
22 In these circumstances it is not necessary to examine the submission put forward by the applicant as a further alternative concerning the infringement of the Staff Regulations of Officials, in particular Article 7(1) thereof ("the interests of the service") and misuse of powers.
23 It is therefore necessary to annul both the decision by which the selection board for Competition COM/680/75 refused to admit the applicant to the oral tests and the subsequent procedure in the competition and the appointment made as a result thereof.
Costs
24 Under Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs.
25 As the defendant has failed in its submissions, it is necessary to order it to pay the costs.
MARTIN COMMISSION
On those grounds,
THE COURT (Second Chamber)
hereby:
1. Annuls both the decision of the selection board for Competition COM/680/75 by which the selection board refused to admit the applicant to the oral tests and the subsequent procedure in the competition and the appointment made as a result thereof;
2. Orders the Commission to pay all the costs.
Mackenzie Stuart Sørensen Touffait
Delivered in open court in Luxembourg on 13 February 1979.
A. Van Houtte A. J. Mackenzie Stuart
Registrar President of the Second Chamber