C-255/78

JUDGMENT OF THE COURT (FIRST CHAMBER) OF 28 JUNE 1979 <apnote>1</apnote>

Andree Anselme, nee Heirwegh, and Roger Constant v Commission of the European Communities

Case 255/78

Officials — Recruitment — Competition — Notice of Competition — Conditions for admission — Selection board — Decision to exclude a candidate — Reasons based on non-compliance with a condition which has not been expressed — Illegality (Staff Regulations of Officials, Annex III, first paragraph ofArt. 5)

According to the Staff Regulations the interested persons to ascertain that it lays basic function of the notice of down a specific requirement, in so far as competition is to give those interested it does not expressly mention it, the the most accurate information possible exclusion of a candidate by the selection about the conditions of eligibility for the board on the ground that he does not post to enable them to judge whether comply with that requirement amounts they should apply for it. to an infringement of the first paragraph of Article 5 of Annex III to the Staff When even a careful reading of the notice does not make it possible for Regulations.

In Case 255/78,

THE COURT (First Chamber)

composed of : J. Mertens de Wilmars, President of Chamber, A. O'Keeffe and T. Koopmans, Judges,

Advocate General: J.-P. Warner Registrar: J. A. Pompe, Deputy Registrar

gives the following

JUDGMENT

Facts and Issues

(b) photo-engraving or B: 1. At least 9 years' practical experience by 31 December (c) microfilm work and industrial 1977 of duties of a technical photography nature which the Staff Regu­ (d) offset lithography lations classify as Category C standard; (e) type-setting and (f) binding." 2. Entry into the service of the The notice of competition provided that Communities as an official or the candidates were to indicate on their other servant before 1 January application forms for the competition the 1973." field chosen and, if they chose graphics, two specialities from among the six listed. The applicants regarded themselves as satisfying the requirements under B. The applicants applied to take part on the competition. Mrs Anselme chose On 7 February 1978 the Head of the printing and typesetting as her Recruiting, Appointments and specialities whereas Mr Constant chose Promotions Division informed the photo-engraving, as well as microfilm applicants that the selection board had work and industrial photography. rejected their applications on the ground that they did not have at least nine years' Notice of Internal Competition No practical experience of executive duties COM/BT/7/76 laid down the of a technical nature which the Staff conditions for admission to the Regulations classified as of Category C competition in the following terms: standard in two specialities. "Qualifications and practical experience: On 14 February 1978 each of the A: 1. Advanced secondary edu­ applicants requested the chairman of the cation, with certificate; selection board for the competition to

The applicants consider that headings I II — Conclusions of the parties and II of the notice of competition have different objectives. The applicants claim that the Court An examination of the conditions for should: admission as they are laid down in — Annul the decision by which the heading II of the notice of competition Selection Board for Internal shows that under A (which applies to the holders of a certificate of advanced Competition No COM/BT/7/76, intended to constitute a reserve for secondary education) reference is made future recruitment, refused to admit to the requirement of experience in the them to that competition; field chosen by the candidate (and not in two specialities). — Annul Internal Competition No COM/BT/7/76 and the On the other hand, under B (which appointments made in consequence applies to candidates who do not possess thereof; a certificate of advanced secondary education) no specific field of knowledge — Order the defendant to pay the costs. is referred to.

The applicants consider that the selection The defendant contends that the Court board was therefore forbidden to attach should: the requirement of nine years' experience — Dismiss the application as un­ applying under B to any field whatever founded; and, a fortiori, to specialities. Similarly it cannot be maintained that, by analogy, — Order the applicants to pay the costs. points I and II of the notice had to be

ANSELME v COMMISSION

"Nevertheless this procedure is devoid of purpose where a complaint is directed against the decisions of a selection board While no longer insisting on that link in in a competition since the appointing the case of officials who possess a certi­ authority is not empowered to review ficate of advanced secondary education such decisions. the administrative authority maintains it as regards candidates who do not possess such a certificate. Accordingly the general plan both of the administrative procedure and of the court procedure militates against an interpretation of Article 91 (2), which, if In view of the fact that the conditions taken literally, would merely result in a for admission laid down in Notice of futile prolongation of the procedure." Competition No COM/BT/7/76 provided that candidates who possess a (judgment of 16 March 1978, Ritter von certificate of advanced secondary Wüllerstorff und Urban v Commission, education had to have a certain Case 7/77 [1978] ECR 769, paragraphs minimum practical experience in the field 7 and 8). chosen, it must a fortiori be assumed that the practical experience required of the The Commission leaves the question of candidates who do not possess such a the admissibility of the application to the certificate must necessarily also be in the Court. field chosen. In that connexion the Commission refers to the third subpara­ As regards the substance the Commission graph of Article 5 (1) of the Staff Regu­ claims that the selection board rightly lations and claims that a candidate who took the view . that the practical does not possess a certificate of advanced experience required had to have been secondary education and who is acquired in the two specialities chosen by therefore at the outset less well-qualified

cannot enjoy wider conditions for The applicants stress the difference in admission than a candidate who does wording which exists between the possess such a certificate. conditions for admission applicable to the candidates who possess a certificate of advanced secondary education and The Commission contests the argument those applicable to the other candidates. put forward by the applicants to the effect that the selection board could not require candidates, even those holding a To follow the interpretation advocated certificate of advanced secondary by the Commission would mean that the education, to give evidence of practical candidates themselves must interpret the experience in the two specialities chosen. conditions for admission, with the obvious risks of errors which may result. It cannot be conceded that a text whose In accordance with the terms of Article 1 very nature requires it to be clear and (c) of Annex III to the Staff Regulations unambiguous in order to ensure the appointing authority must specify the objectivity and legal certainty should nature of the duties attaching to the have to be interpreted by reference to the posts to be filled. That prerogative also "administrative authority's aim". involves the power to decide that a certain field covered by the competition must be subdivided into various specialities and that each candidate for a The examples given by the defendant of post in Category B must provide the practice followed by the evidence of mastery of two of those administrative authority rather show that specialities. The link between the any link which may be required between practical experience required and the the practical experience of the candidates field chosen must therefore exist in for a competition and a field specified relation to the two specialities chosen. under the heading "Nature of duties" must result from the actual wording of the notice of competition. The applicants are unable to provide evidence of any experience in the second speciality chosen, namely printing in the The applicants maintain that their case of Mrs Anselme and photo­ personal files show that they each possess engraving in the case of Mr Constant. at least nine years' practical experience of duties of a technical nature classified by the Staff Regulations as of Category In their reply the applicants maintain that C standard, in accordance with the the procedure was in no way irregular as conditions for admission laid down in regards Articles 90 and 91 of the Staff the notice of competition. Regulations. It is neither forbidden nor inapposite to acknowledge that following receipt of a complaint the appointing authority has the power, where appro­ Even supposing that it were appropriate priate, to request the selection board for to provide evidence of at least nine years' a competition to reconsider its position. practical experience in the two Far from being unavailing such a specialities chosen, which the applicants procedure is likely to result in a contest, the notice of competition does settlement of the dispute and a decision not specify whether there must be nine to abandon the legal proceedings. years' experience in each of the

specialities in question or, on the had to be in keeping with the nature of contrary, whether experience in each of the duties to be performed. the specialities is to be taken into The Commission maintains that no account cumulatively. The fact that that particular, which is surely essential, is account can be taken of the apparent not clear from the wording of the disparity in the wording in the notice of vacancy notice as it stands shows that competition in question. Having regard that was not the criterion which was to to the provision in the third subpara­ determine the admissibility of the graph of Article 5 (1) of the Staff Regu­ applications for the competition. lations, the condition of practical experience in the field chosen which is In its rejoinder the Commission observes required of candidates who possess a that the judgment in Case 7/77 (Ritter certificate of advanced secondary von Wüllerstorff und Urbair v education must a fortiori be imposed on Commission, [1978] ECR 769) is those candidates who do not possess completely in line with the case-law laid such a certificate. down in the Marcato cases (Case 44/71, Marcato v Commission [1972] 1 ECR Entirely as an alternative the 427, and Case 37/72, Marcato v Commission puts forward the view that if the Court were to think fit to annul Commission [1973] 1 ECR 361) and was confirmed by the judgment in the Salerno the decision by which the Selection case (Joined Cases 4, 19 and 28/78 Board for Competition No COM/BT/ Salemo and Others v Commission [1978] 7/76 refused to admit the applicants to ECR 2403). the tests it would not be appropriate, having regard to the interests of the It claims that the wording of the notice service and the legitimate interests of the of competition must be considered as a successful candidates, to annul the tests whole and that there can be no question relating to that competition or the of taking account of the condition appointments made in consequence relating to practical experience without thereof. having regard to the specialities chosen by the candidates. The notices relating to competitions held IV — Oral procedure prior to the competition in dispute, which are produced by the Commission The parties presented oral argument at in an annex to the rejoinder, show that the hearing on 10 May 1979. the practical experience required of the candidates who do not possess a certi­ The Advocate General delivered his ficate of advanced secondary education opinion at the hearing on 7 June 1979.

4 The defendant has put forward no objection concerning the admissibility of the application and the Court has found no grounds for considering the question of its own motion.

Substance

4 The applicants maintain that the decisions of the selection board infringe the first subparagraph of Article 5 of Annex III to the Staff Regulations in that in order to refuse to admit them to the competition the selection board stated that they did not satisfy certain requirements relating to specific practical experience although those requirements were not required by the notice of competition.

5 Among the five headings in the notice of competition two are of importance as regards the solution of the dispute. The first concerns the nature of the duties to be performed: it indicates that the aim of the competition is to fill posts of a technical nature in four fields, the fourth of which is defined as follows:

"Graphics: (a) printing (b) photo-engraving

ANSELME v COMMISSION

6 The refusal to admit the applicants to the competition was based on the ground that they did not possess at least nine years' practical experience of executive duties of a technical nature classified by the Staff Regulations as of Category C standard in two specialities. The last three words did not appear among the "conditions for admission to the competition" in relation to the candidates who, like the applicants, had not completed an advanced level of secondary education.

7 The defendant has claimed that the applicants ought to have understood that the practical experience required among the other conditions for admission had to be in the field selected by the candidate and that although that link was not expressly mentioned in the wording of the notice of competition it nevertheless follows clearly from the aims of the administrative authority which organized the competition, from a careful reading of the notice of competition as a whole and from a comparison with other notices of competition relating to similar posts.

JUDGMENT OF 28. 6. 1979 — CASE 255/78

8 The Court cannot follow the defendant in that view.

9 According to the Staff Regulations the basic function of the notice of competition is precisely to give those interested the most accurate infor­ mation possible about the conditions of eligibility for the post to enable them to judge whether they should apply for it.

10 That principle does not, however, absolve the officials who are interested from a careful reading of the notice of competition. Although in the present case applicants were able to discover from a careful reading of the notice that the practical experience required had to be in the technical field which they had selected there was, on the other hand, nothing in the notice to indicate to them that the connexion between the practical experience and the field selected was to be interpreted in such a way that the choice of the field of "graphics" would imply the requirement of experience in the two specialities which they had chosen within that field.

15 It must, however, be remembered that Competition No COM/BT/7/76 was intended to constitute a reserve list for future recruitment of technical assistants in Career Bracket B 5/B 4, with the result that the exclusion of the applicants from the list of candidates did not effect the admission to the list of the persons selected by the selection board. It suffices to annul the decisions of the selection board to exclude the applicants from the competition and the decisions by which the board confirmed those refusals. In those circumstances there is no need to annul the selection made by the selection board.

Costs

16 Under Article 69 (2) of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs. As the defendant has failed in its submissions it must be ordered to pay the costs.

OPINION OF MR WARNER — CASE 255/78

On those grounds,

THE COURT (First Chamber)

OPINION OF MR ADVOCATE GENERAL WARNER DELIVERED ON 7 JUNE 1979

My Lords, candidates to an internal competition of which the purpose was to constitute a Introductory reserve of persons available for In this action two C Category officials of appointment as technical assistants in the Commission, Mrs A. Anselme and Grades 5 and 4 of Category B. The Mr R. Constant, challenge decisions of a essential question at issue is whether the Selection Board not to admit them as Selection Board erred in holding that the