C-117/78
ECLI:EU:C:1979:109
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JUDGMENT OF 5. 4. 1979 — CASE 117/78
in Category B whilst not preventing session of a certificate giving access to the laying down of conditions relating university. Such a requirement must to both educational training and however be apparent from the actual practical experience if the nature of wording of the notice of competition the posts to be filled so requires. since there are a great many different 3. It is permissible for the appointing types of secondary education in the authority to require, for entry to a various Member States, some of competition organized for the which are not preparatory to purpose of filling a Category B post, education at university level and do not only completion of a course of not give automatic access to such education. secondary education but also pos-
In Case 117/78,
Willy ORLANDI , an official of the Commission of the European Communities, residing at 95 Rue de Mamer, Bertrange (Grand Duchy of Luxembourg), represented by Victor Biel, of the Luxembourg Bar, with an address for service in Luxembourg at the Chambers of Mr Biel, 18A Rue des Glacis,
applicant,
v
Commission of the European Communities , represented by Alain Van Solinge, a member of its Legal Department, assisted by Daniel Jacob, of the Brussels Bar, with an address for service in Luxembourg at the office of its Legal Adviser, Mario Cervino, Jean Monnet Building, Kirchberg,
defendant,
APPLICATION for the annulment of the decision of the Selection Board for Competition No COM/B/155 refusing to admit the applicant to the written tests relating to that competition, notice of which was published in Official Journal No C 128 of 1 June 1977, p. 10,
ORLANDI v COMMISSION
THE COURT (Second Chamber)
composed of: Lord Mackenzie Stuart, President of Chamber, M. Sørensen and A. Touffait, Judges,
Advocate General: F. Capotorti Registrar: J. A. Pompe, Deputy Registrar
gives the following
JUDGMENT
Facts and Issues
The facts of the case, the procedure, the No C 223 of 30 September 1975, p. 7) conclusions and the submissions and he was not admitted to the oral test, arguments of the parties may be since he did not obtain the minimum summarized as follows: marks required in the written tests. When he applied to enter the second competition (No COM/B/155, Official Journal No C 128 of 1 June 1977, p. 10), I — Facts and procedure which forms the basis of the present action, he was not admitted to the written tests.
The applicant entered the service of the Commission of the European As special conditions for admission to Communities in 1974. He was the competition Notice of Competition No COM/B/155 laid down that can established in 1975 in Category C, Grade 3. didates were required:
To have completed a course of On two occasions he applied to enter secondary education and received a final open competitions based on tests in certificate (they were informed that the order to constitute a reserve of selection board, in assessing the certi administrative assistants in Category B, ficate, would take into account the Grades 4 and 5. On the first occasion he differing educational systems in the selected the fields "Accounting, public Member States); finance" and "Simple calculations applicable in the domain of statistics" and on the second occasion he selected only the first of those fields. On the closing date for receipt of applications, to have at least one year's When he applied to enter the first practical experience in the field chosen competition (No COM/B/139, notice of after obtaining their educational which was published in Official Journal qualifications.
JUDGMENT OF 5. 4. 1979 — CASE 117/78
The selection board for Competition No Advocate General the Court decided to COM/B/155 considered the applications open the oral procedure without holding from the 2 773 candidates who satisfied any preparatory inquiry. the general conditions laid down in Article 28 (a), (b) and (c) of the Staff Regulations of Officials. 1 287 of them were admitted to the written tests. II — Conclusions of the parties
In his application the applicant claims The applicant was informed by letter of that the Court should: 20 September 1977 that it was not possible to accept his application, since Declare that he was wrongly and his qualifications and certificates had not unlawfully excluded from Competition been judged to be in accordance with the No COM/B/155; qualifications required. Following the submission of a complaint by the Declare that the appointing authority has applicant the chairman of the selection been guilty of a misuse of powers; board on 30 September 1977 upheld the decision which had been adopted. Consequently:
Annul the rejection of the applicant's The applicant possesses a Belgian candidature for the competition in Certificat d'Etudes Moyennes question; Commerciales [intermediate commercial studies certificate] and a "Diplome Annul the express decision rejecting the d'Aide-Comptable" [assistant accountant's complaint lodged by the applicant; certificate], both of which are issued by the Ecole de Commerce de Degré Declare that any appointment made as a Moyen [commercial college] at Tournai, result of that competition, which must be and a "Diplôme des Cours Techniques annulled in its entirety, is illegal and Secondaires Supérieurs, Section accordingly annul it; Comptabilité" [certificate of advanced secondary technical education, accounts] Order the Commission to pay the costs. from the Institut d'Enseignement Technique de l'Etat [national institute In his reply he also claims that the Court for technical education] at Tournai. should declare that the decision of the selection board is unlawful, in that it conflicts with: On 14 December 1977 the applicant submitted to the Commission a Article 25 of the Staff Regulations and complaint through official channels, Article 5 of Annex III thereto; which was however rejected by a letter of 20 March 1978. The facts, inasmuch as the selection board wrongly interpreted the value of The application lodged with the Court the applicant's certificate; on 17 May 1978 seeks the annulment of the decision by which the selection board The principle of the progression of careers; and refused to allow the applicant to take part in the competition. The rule that the conditions governing admission to the competition must be Upon hearing the report of the Judge- communicated in an appropriate form to Rapporteur and the views of the all those concerned;
ORLANDI v COMMISSION
Alternatively: notice of competition the selection board was required in accordance with the Apply Article 69 (3) of the Rules of wording of the notice to take into Procedure of the Court as regards the account the educational systems in the costs. Member States. The applicant therefore The Commission contends that the Court considers that the selection board ought should: to have accepted the certificate of secondary technical education, which is a Dismiss the application as unfounded; qualification accepted by the Secretariat Permanent au Recrutement Belge Order the applicant to pay the costs. [Belgian permanent office for re cruitment] for the purpose of exami nations for posts in Level II, which, the III — Submissions and argu applicant adds, correspond to the posts ments of the parties in Category B with the Communities.
A. Admissibility (b) The Commission replies that even if The Commission has raised, first, a the latter statement were correct the fact question of admissibility, whilst leaving that the applicant's certificate constitutes the matter to the Court. It accepts that a sufficient qualification in Belgium by the application was lodged within the no means obliges the selection board to period laid down by the Staff Regu adopt that criterion for the purposes of lations following the reply to the admission to the competition at issue but complaint through official channels but that having regard to the obligations recalls that in its judgment of 16 March imposed upon it by Article 27 of the 1978 in Case 7/77 von Wüllerstotff und Staff Regulations the Commission may Urbair v Commission ([1978] ECR 769), reasonably fix more rigorous criteria. the Court held that an application The Commission maintains that in directed against the decision of a accordance with the terms of the notice selection board need not necessarily be of competition the selection board was preceded by a complaint through official required to check that the level of the channels within the meaning of Article course taken corresponds to that 90 of the Staff Regulations. It therefore required by the conditions for admission considers that the period for lodging the to the competition and to Article 5 (1) of application must be calculated from the the Staff Regulations. It considers that date of notification of the decision of the the statement that "Candidates must selection board. have completed a course of secondary education and received a final certi The applicant recalls that the ficate" must be understood to mean a Commission replied to his complaint in course covering the complete cycle of due time and considers that he is obliged secondary education and giving access to to observe the procedure laid down in university education. That interpretation Article 91 of the Staff Regulations so is in accordance with the scheme of long as that provision has not been Article 5 (1) of the Staff Regulations. amended. The Commission considers that the certi ficate of "advanced secondary technical B. Substance education" amounts to evidence of attendance at "evening classes" or 1 (a) The applicant maintains that in "courses organized for social purposes" order to judge whether a certificate which, in its opinion, do not constitute satisfies the conditions laid down in the such a cycle.
JUDGMENT OF 5. 4. 1979 — CASE 117/78
2 (a) Secondly the applicant points out experience than corresponds to that level that his certificates were held to be of education. adequate for the purposes of Competition No COM/B/139. 4 (a) The applicant maintains that the fact that the notice of competition did (b) The Commission observes in that not indicate that only certificates giving connexion that although the selection access to university would be considered board makes its appraisal on the basis of satisfactory is also unlawful. In that the file of each candidate the severity of context he refers to the judgment of the that appraisal inevitably varies according Court of 22 March 1972 in Case 78/71, to the quantity and quality of the Costacurta v Commission of the European applications, both of which are increas Communities ([1972] 1 ECR 163). ing year by year. As each competition constitutes a separate procedure a (b) On that point the Commission favourable appraisal made in 1975 can observes that in its judgment of 14 June not constitute a precedent for the selec 1972 in Case 44/71, Marcato v tion board in 1977. Commission of the European Communities ([1972] 1 ECR 427), the Court confirmed the lawful nature of the power 3 (a) The applicant also criticizes the left to the selection board, on the basis selection board for failing to take of a general formula, to assess in each account of his practical experience, case whether the certificate produced which is not only contrary to the conditions laid down in the notice of corresponds to the level required by the Staff Regulations and by the notice of competition but also to the third subpara competition. graph of Article 5 (1) of the Staff Regu lations and Article 1 (1) (d) of Annex III thereto. 5 (a) The applicant then claims that an insufficient statement of reasons was
(b) The Commission replies that the given for the decision of the selection board. In that connexion he refers to the condition relating to practical experience was laid down as an addition rather than aforementioned judgment of 14 June 1972. as an alternative to the requirement relating to educational training, which is perfectly justifiable under the Staff Regu lations. In the Commission's opinion the (b) The Commission refers in that first provision of those regulations regard to the judgment of the Court in referred to by the applicant does not Case 7/77, von Wüllerstorff, from which it is clear that the selection board has seek to establish rigidly the conditions to be satisfied in order to enter Category B given sufficient reasons for its decisions when it has indicated the conditions for but rather to provide a general definition of the minimum level required of an admission which is not fulfilled by the candidate. official in that category. No provision of the Staff Regulations prohibits the Commission from adopting more rigorous criteria for admission to a given 6 (a) The applicant observes, finally, competition, provided that such criteria that in the light of the fact that he has do not require a higher level of performed duties falling within Category attainments than that acquired through B the selection board's decision conflicts secondary education or greater practical with the principle of the progression of
ORLANDI v COMMISSION
service careers laid down by Article 5 (3) IV — Oral procedure of the Staff Regulations.
W. Orlandi, represented by V. Biel, and (b) In its defence theCommission the Commission, represented by points out that the performance of duties D. Jacob, presented oral argument at the attaching to a higher career bracket does hearing on 25 January 1979. not confer the right to be classified in that career bracket, since a change of The Advocate General delivered his career bracket is dependent upon suc opinion at the hearing on 15 March cessful participation in a competition. 1979.
Decision
1 The application, lodged on 17 May 1978, seeks the annulment of a decision adopted by the selection board for Competition No COM/B/155 and notified to the applicant on 26 September 1977, by which the selection board refused to admit him to the tests relating to the competition, as well as of the appointments made in consequence thereof.
2 The competition was organized by the Commission for the purpose of constituting a reserve of administrative assistants in Grades 5 and 4 of Category B.
3 The duties attaching to the posts to be filled were defined in relation to four different areas, one of which was "Accounting and public finance", from amongst which the candidates had to indicate their choice.
4 Under the special conditions for admission the notice of competition provided that the candidates had, first, to have completed a course of secondary education and received a final certificate and, secondly, to have at least one year's practical experience in the field chosen after obtaining their educational qualifications.
5 The applicant, who, in applying for the post, selected the field of accounting and public finance, was refused admission to the competition on the grounds that his qualifications or certificates had not been judged to be in accordance with the qualifications required.
Admissibility
6 The applicant lodged his application with the Court after submitting to the appointing authority on 14 December 1977 a complaint within the meaning
JUDGMENT OF 5. 4. 1979 — CASE 117/78
of Article 90 (2) of the Staff Regulations against the decision of the selection board.
7 The Commission informed the applicant by letter of 20 March 1978 that it was unable to deal favourably with his complaint since it was not empowered to annul or amend the decision of a selection board and there was no factor in the case which could justify a reconsideration by the selection of its decision.
8 Before the Court the Commission raised the question whether, for the purposes of Article 91 (3) of the Staff Regulations, the application is inadmissible on the grounds of late submission, since in circumstances such as those of the present case the period of three months laid down by that provision must be calculated from the date of notification of the decision of the selection board rather than from that of the Commission's reply to the complaint through official channels.
9 It is true that in this respect it is the established case-law of the Court that a reference to the appointing authority of a complaint through official channels against the decision of a selection board for a competition lies outside the scope of the provisions of the Staff Regulations in view of the fact that the appointing authority has no power to annul or amend the decisions of a selection board.
410 If, nevertheless, instead of bringing the matter directly before the Court the person concerned relies on the provisions of the Staff Regulations in order to refer the question to the appointing authority by means of a complaint through official channels the effect of such a step, whatever its legal significance, must not be that the period for bringing the matter to the attention of the Court expires whilst he is awaiting a reply.
11 In fact, such an error as to the inapplicability of Article 90 (2) to the present case is excusable having regard to the present wording of the provisions in question and, in the absence of any imperative reasons to the contrary, it cannot result in the applicant's being time-barred and therefore deprive him of his right to resort to legal proceedings.
12 The application is therefore admissible.
ORLANDI v COMMISSION
Substance
13 The applicant claims that the selection board's decision infringed the notice of competition and the third subparagraph of Article 5 (1) of the Staff Regu lations, since it failed to take account of his practical experience.
14 The provision referred to provides that:
"Category B shall comprise five grades, divided into career brackets ordi narily containing two grades each for staff engaged in executive duties which require an advanced level of secondary education or equivalent professional experience".
15 That provision seeks to provide a general definition of the minimum level required for an official of the category in question whilst not preventing the laying down of conditions relating to both educational training and practical experience if the nature of the posts to be filled so requires, as was the case in the competition in question.
16 Since the notice of competition at issue laid down the condition relating to practical experience in addition to that relating to educational training the selection board was unable to take the former into account if it considered, as in the present case, that the latter was not fulfilled.
17 That submission must therefore be dismissed.
18 The applicant claims, in addition, that the selection board wrongly refused to acknowledge that the certificates which he possesses satisfy the condition laid down in the notice of competition relating to the completion of a course of secondary education.
19 The Commission does not deny that the course completed by the applicant in Belgium is at the level of secondary education but claims that the certificates do not meet the requirements of the notice of competition, since they do not give access to university education.
JUDGMENT OF 5. 4. 1979 — CASE 117/78
20 The notice of competition defines the condition relating to qualifications or certificates by using the term "course of secondary education" and by adding that "the selection board, in assessing the certificate, will take into account the differing educational systems in the Member States".
21 Although the Commission is entitled to draw up the conditions for entry to a competition in terms which are more rigorous than those used in this instance and, in particular, to require possession of a certificate giving access to university such a requirement must be apparent from the actual wording of the notice of competition since there are a great many different types of secondary education in the various Member States, some of which are not preparatory to education at university level and do not give automatic access to such education.
22 Thus, having regard to the wording of the notice of competition in question the selection board was not empowered to refuse the applicant admission on the ground that his certificates did not give access to university education.
23 That is a fortiori true in this instance since the applicant had been considered to fulfil the conditions of an earlier competition (No COM/B/139), which were formulated in identical terms to those used in the notice of competition in question.
24 Since the decision of the selection board must therefore be annulled there is no reason to consider the submission regarding the alleged insufficiency of the statement of reasons on which the decision was based.
25 As this was an open competition to constitute a reserve for future re cruitement, the rights of the applicant will be sufficiently protected if the selection board reconsiders its decision, without its being necessary to question the whole of the results of the competition or to annul appointments made in consequence thereof.
Costs
26 Under Article 69 (2) of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs.
27 As the defendant has failed in its submissions it must be ordered to pay the costs.
ORLANDI v COMMISSION
On those grounds,
THE COURT (Second Chamber)
hereby:
1. Annuls the decision notified to Willy Orlandi by letter of 20 September 1977 by which the Selection Board for Competition No COM/B/155 refused to admit him to the tests relating to that competition;
2. Orders the Commission to pay the costs.
Mackenzie Stuart Sørensen Touffait
Delivered in open court in Luxembourg on 5 April 1979.
A. Van Houtte A. J. Mackenzie Stuart Registrar President of the Second Chamber
OPINION OF MR ADVOCATE GENERAL CAPOTORTI DELIVERED ON 15 MARCH 1979 1
Mr President, constitution of a reserve for future re Members of the Court, cruitment in Category B, but was not admitted to the written tests because the selection board considered that his 1. The present case concerns a Community official (Mr Orlandi) who qualifications did not meet the applied in 1977 to take part in an open requirements stated in the competition notice. competition (COM/B/155) for the
1 — Translated from the Italian.