C-797/79

T H E C O U R T (Second Chamber)

composed of: P. Pescatore, President of Chamber, A. Touffait and O. Due, Judges,

Advocate General: F. Capotorti Registrar: A. Van Houtte

gives the following

TIBERGHIEN v COMMISSION

JUDGMENT

I — Facts On 14 January 1972 Mrs Tiberghien was promoted to Grade C 2, without any Anne-Marie Tiberghien, née Peuteman, alteration in post, with effect from 1 who is of Belgian nationality and holds a January 1971. Certificat d'Examen de L'Enseignement Technique, Degrés Moyen et Normal, Section Professionnelle [Certificate of On 10 May 1973 Mrs Tiberghien applied Technical Education, Middle and for a posting to the Directorate-General Standard Level, Vocational Section], for Development Aid or to the sec- entered the service of the ECSC retariat of a director or head of division, Commission as a typist in Grade C 4 on that application being "a permanent 16 March 1964, after working as a application until a posting is obtained in secretary in various Belgian firms or one of the desired directorates-general". undertakings from 8 October 1954 to 15 The application produced no results. March 1964. She was established in that post on 14 September 1964 with effect from 1 October 1964. In June 1973 Mrs Tiberghien took part in an in-service training seminar for secretaries organized by the Commission. On 1 March 1965, following a competition, Mrs Tiberghien was appointed as a clerical officer in Grade Early in 1974 the Directorate-General C 3 at the Directorate for the for Budgets offered Mrs Tiberghien the Dissemination of Information with effect job of setting up and maintaining the from 1 February 1965 and on 30 July records of the Accounts Division. She 1965 she was established in that post accepted the offer and thus carried out with effect from 1 August 1965. the duties of a clerical officer from 1 August 1974 (until 30 April 1977). On 28 From 1 January 1965 Mrs Tiberghien October 1974 she therefore asked that was paid the secretarial allowance her previous status be adjusted to make provided for in Article 4a of Annex VII the title of her post correspond to the to the Staff Regulations. duties she had actually performed in the past. That request was supported by a note from the Head of the Accounts and After 15 September 1968 Mrs Tiberghien Management Division, which stated'that carried out the duties of secretary to the "her whole career has been (and

continues to be) a secretarial one". The On 13 June 1978 Mrs Tiberghien was administration informed Mrs Tiberghien given responsibility, within the Direc- that her request could only be granted as torate for Financial Intervention Appro- the outcome of proceedings for the priations, for records and documentation alteration of the post. concerning intervention appropriations in the agricultural, social, regional and environmental spheres and at the same time she also carried out the requisite On 10 October 1975 Mrs Tiberghien secretarial and typing work. Mrs applied for a transfer to the Grade C 2 Tiberghien took up those duties on 1 post advertised in Vacancy Notice July 1978. C O M / 8 5 6 / 7 5 . In her application she made the following observation: "Rectification of status. I have always Subsequently Mrs Tiberghien submitted carried out the duties of a secretary/ an application to participate in an shorthand typist but am classed as a internal competition based on 'clerical officer' ". qualifications and tests, Competition N o C O M / B / 1 / 7 8 , for the constitution of a reserve list for future recruitment of In March and April 1976 Mrs Tiberghien administrative assistants. On 6 November took part in a training course on the 1978 she was informed that the selection theory of record-keeping which was board had not admitted her to the organized within the Commission by the competition because she "lacked the Documentation, Information, Repro- qualifications required in the Notice of duction and Circulation of Documents Competition", more particularly, as Division, in collaboration with the regards level of education, experience, Training Division. diploma or certificate relating to record- keeping and experience in the duties attaching to Category C posts in the field of record-keeping. On 20 December 1976 the Commission decided to transfer Mrs Tiberghien to a post of secretary/shorthand typist within In a letter of 13 November 1978 the Directorate-General for Budgets with addressed to the Head of the Recruit- effect from 1 December 1976. Mrs ment, Appointments and Promotion Tiberghien acknowledged receipt, o n 13 Division Mrs Tiberghien claimed that January 1977, of that notice of transfer she fulfilled the requirements laid down which, she claims, is in contradiction to in the Notice of Competition and that, in the duties actually performed by her and, particular, she had been responsible for as far as the original situation is setting up and maintaining records for concerned, twelve years too late. three years, namely from 1 August 1974 to 30 April 1977, and later from 1 July to 31 December 1978. Following a reorganization of the Direc- torate-General for Budgets it was On 12 December 1978 the Chairman of suggested to Mrs Tiberghien that she the selection board wrote to Mrs carry out the duties of an accounts clerk. Tiberghien confirming the fact that she She accepted, but in a memorandum of 2 did not meet the condition laid down in June 1977 informed the Director- the Notice of Competition requiring, as General of her concern at the zig-zag at 31 December 1978, at least three fashion in which her career was years' experience as a principal clerical continuing to develop. officer or clerical officer or in similar

On 9 January 1979 Mrs Tiberghien drew (A) have completed studies at an the attention of the Chairman of the advanced secondary level evidenced competition selection board to the by a certificate of completion of ambiguity of her position and the ill- studies, possess at least 10 years' effects of the description of her post on experience of Category C duties as the development of her career. an executive secretary, principal secretary or secretary/shorthand In a memorandum of 11 January 1979 typist, or of similar duties, and have addressed to the Head of the Individual been in the service of the Rights and Privileges Division, the Head Communities as an official or other of the Recruitment, Appointments and servant for a total of five years; Promotion Division requested that Mrs Tiberghien be officially informed of the or alteration of her duties from those of a secretary/shorthand typist to those of a (B) have at least 16 years' professional clerical officer. experience of Category C duties as an executive secretary, principal On 28 February 1979 Mrs Tiberghien secretary or secretary/shorthand wrote to the Director-General for typist, or of similar duties, and have Personnel and Administration pointing been in the service of the out that since 1965 she had occupied the Communities as an official or other post of clerical officer when performing servant for a total of 11 years. the duties of a secretary and the post of secretary when performing the duties of On 10 August 1979 Mrs Tiberghien was a clerical officer and asking him to take informed that the selection board was administrative steps to rectify that unable to admit her to the competition situation as soon as possible. because, on the one hand, she had not completed studies at an advanced level of On 17 July 1979 Mrs Tiberghien secondary education evidenced by a submitted to the President of the certificate of completion of studies (the Commission a complaint under Article requirement listed under paragraph 'A' 90 (2) of the Staff Regulations against of the notice of competition), and, on the implied decision rejecting her request the other hand, she did not possess the for a clear statement of the duties experience of at least 16 years required actually carried out by her in the in the notice of competition (the Commission, namely those of secretary/ conditions listed under paragraph 'B'). shorthand typist from 1 February 1965 to 31 July 1974, and those of clerical officer In a memorandum of 22 August 1979 to (in records or accounting) since 1 August the Chairman of the competition 1974. selection board Mrs Tiberghien defended the eligibility of her application by Mrs Tiberghien submitted an application arguing that her duties as a secretary/ to participate in Competition N o C O M / shorthand typist before and after her

On 24 September 1979 Mrs Tiberghien By a decision of the Head of the received confirmation of the decision Specialized Department for Management refusing to admit her to Competition No Organization and Establishment, of 11 COM/BS/4/79 in a memorandum from February 1980, Mrs Tiberghien's C 3/2 the Head of the Recruitment, appointment was amended, with effect Appointments and Promotion Division. from 21 November 1979, as follows: On 21 November 1979 the Director- General for Personnel and Adminis- "Former appointment: secretary/ tration informed Mrs Tiberghien, in shorthand typist; New appointment: reply to her request of 28 February 1979 clerical officer". for a clear statement of her administrative status and to her On 22 February 1980 Mrs Tiberghien complaint of 17 July 1979, that the asked the author of the memorandum of experience she had gained in the 11 February 1980 for the alteration in Commission was that of a secretary/ her appointment to be recognized as shorthand typist from 1 February 1965 to commencing on 1 August 1974. She also 31 July 1974 and that of a clerical officer told him that this memorandum in the records section from 1 August appeared to contradict the letter of 21 1974, apart from the period from 1 May November 1979 from the Director- 1977 to 30 June 1978 during which she General for Personnel and Admin- performed the duties of a clerical officer istration. in the accounting section. On 13 March 1980 the Head of the That change of duties, he stated, meant Specialized Department for Management that Mrs Tiberghien was no longer Organization and Establishment, entitled to receive the secretarial informed Mrs Tiberghien that "the allowance unless it was expressly decision of 11 February 1980 determines requested by her superiors and it could the date from which the C 3/2 post be shown that she did secretarial work which you hold appears in the detailed for at least 50% of her normal working list of posts as 'clerical officer' " — and hours. that the decision gave proper effect to the letter of 21 November 1979. In addition the letter stated: "I am not in a position to guarantee that, Confirmation of this was given to Mrs should you submit an application to Tiberghien in a letter from the Director- participate in a future B or B/S internal General for Personnel and Admin- competition the selection board would istration of 18 March 1980 in which it necessarily recognize the experience was stated that the letter of 11 February referred to above as experience which 1980 was merely intended to make clear may be taken into consideration for the that, as from 21 November 1979, the competition in question." description of her appointment was "officially entered in the detailed list of On 28 November 1979 Mrs Tiberghien posts in accordance with the true acknowledged receipt of the Director- situation" and that it was not intended to General's memorandum of 21 November rectify the description of all the

II — W r i t t e n p r o c e d u r e Preliminary remarks On 9 November 1979 Mrs Tiberghien brought the present action challenging The applicant considers that the selection the decision of 10 August 1979 refusing board, once placed in possession of all to admit her to Internal Competition the requisite documentation,. should have No C O M / B S / 4 / 7 9 . reviewed the position; it should have paid particular attention to the duties The written procedure followed the actually performed by the applicant in normal course. view of the fact that there is no description of the duties of the post of On hearing the report of the Judge- secretary/shorthand typist, and that Rapporteur and the views of the account had to be taken "of at least 16 Advocate General the Court (Second years' professional experience in Cate- Chamber) decided to open the oral gory C duties as an executive secretary, procedure without any preparatory principal secretary or secretary/short- inquiry. It invited the Commission, hand typist or of similar duties". however, to reply at the hearing to a question concerning the difference Had the Commission rectified the between secretarial and administrative applicant's status in time, no misunder- careers and the opportunities for moving standing could have arisen; no difficulty from one to the other. existed with regard to the budget: in that respect the budget includes, under running costs, permanent posts in Category and Grades C 2 and C 3 I I I — C o n c l u s i o n s of t h e p a r t i e s "without distinction between the posts of clerical officer and secretary/shorthand The applicant claims that the Court typist". should: The Commission observes, that the — Annul the Commission's decision of relevant facts concerning the applicant's 10 August 1979 refusing to admit her true administrative situation are to be to International Competition No found in the documents and periodic COM/BS/4/79; reports contained in her personal file, in

the memorandum of 21 November 1979 the requisite experience in the duties of a from the Director-General for Personnel secretary/shorthand typist, the Com- and Administration, in the correspon- mission disregarded the fact that she had dence between basic posts and careers actually been performing such duties in laid down in Article 5 (4) of the Staff its service for nine and a half years, Regulation and Annex I thereto, in the leaving aside the other nine and a half Commission's table giving descriptions of years completed prior to her entry into basic posts, in the general Community that service. Consequently there was an budget and in the Commission's detailed infringement of the first paragraph of list of posts. Thus, for instance, in fixing Article 5 of Annex III to the Staff Regu- the number of posts which may be lations, which provides that: "After remunerated annually from personnel examining these files, the Selection funds the general budget refers to a total Board shall draw up a list of candidates, number of permanent posts in Grade C 3 who meet the requirements set out in the without distinguishing between the posts notice of competition". of clerical officer and secretary/ shorthand typist; the detailed list of posts includes information on basic posts in (b) It may be seen from her file that in Grade C 3 and C 2, namely secretary/ reality the applicant performed the dut- shorthand typist or clerical officer, and ies of a secretary/shorthand typist from on the holder of the post. 1 February 1965 to 31 July 1974, a fact acknowledged by the Commission itself. Moreover, it must not be overlooked that the subject-matter of the application is solely the decision of the selection (c) The Commission must not be board in Competition No COM/BS/ allowed systematically to reject 4/79. In that respect it should be noted applications from an official by relying that the Notice of Competition is on either the duties in fact exercised or binding on the selection board and that the official job description according to in this instance the board found that, as the circumstances. Such conduct has far as the requisite qualifications or prejudicial effects on the progress of the diplomas and working experience are official's career and that is especially so concerned, the applicant did not, on 31 in this case where the applicant has December 1978, satisfy either of the two shown exceptional ability in her work. alternatives laid down in the conditions for admission contained in the Notice of Competition. It is equally not permissible to disregard the duties actually performed. The true duties performed should prevail over an erroneous description of a post. The complaint of error in the statement of reasons upon which the decision is based (d) An official must not be the victim of mistakes made by the Commission. In The applicant claims that the contested the case of the applicant the Commission decision is defective in law because it is failed to observe the principles of good based on erroneous grounds. administration, especially as the applicant had drawn attention to the discrepancy between her real duties and their (a) In refusing the applicant admission description and the Commission did not to the competition because she lacked take diligent steps to regularize the

The Commission acknowledges belat- edly, but without qualification, that the (e) The legality of making a distinction applicant acquired experience as a between the duties of a clerical officer secretary/shorthand typist in its service and those of a secretary/shorthand typist between 1 February 1965 and 31 July may be questioned. Apart from the rule 1974. As a result she has a total laid down in the first subparagraph of experience of 19 years, which exceeds Article 7 (1) that posts must correspond the minimum required for admission to to grades and the reference in Article 5 the competition. The Commission's to the existance of career brackets argument runs counter to its own generally spread over two grades, the admission. Staff Regulations do not define the concept of a post. From that it may be inferred that, having regard to the (g) There remains to be settled the principle of unity of the career structure, question whether the acknowledgment of no distinction should be made between that factual position subsequent to the the duties of a clerical officer and those appointing authority's decision of of a secretary/shorthand typist. The rejection and its confirmation amounts to Commission was therefore wrong in a new factor without knowledge of refusing to take into consideration the which the selection board could duties of shorthand typist performed by reasonably have considered that the the applicant in the post of "clerical applicant lacked the requisite experience. officer" between 1 February 1965 and However, from a number of indications 31 July 1974. and facts it appears that the selection board was perfectly able to assess precisely the applicant's real experience. The selection board was thus at fault in (f) The Commission's argument that excluding the applicant from the list of the two limbs of the heading candidates admitted to the competition. "qualifications or diplomas required and experience" in the conditions for admission to Competition No COM/ In any case, any doubt the selection BS/4/79 are cumulative should not be board might have had is due to the accepted; they are alternatives and the Commission's lack of care and inability applicant based her application on the to achieve correspondence between the conditions appearing under Point B. description of the applicant's post and her real duties, and was not brought about by the applicant herself. Since there is no disagreement either as to a length of service of at least 11 years or as to the fact that the nine and a half (h) The applicant's attitude has always years completed prior to entering the been consistent and logical; she cannot service of the Commission may be be blamed for having attempted to

support her legal position with (b) As to the effect of the reply from arguments which are "not necessarily the Director-General for Personnel and consistent", when that apparent Administration of 21 November 1979, it "inconsistency" is merely a reflection of should be noted that the decision of 11 poor management on the part of the February 1980 by the Head of the administration. Specialized Department for Manage- ment, Organization and Establishment, which gives effect to the former, alters, The Commission contends that the with retroactive effect to 21 November argument based on a supposed error in 1979, the post occupied by the applicant the grounds of the decision is from that of a secretary/shorthand typist unfounded. to that of a clerical officer. However, official documents contained in the personal file or other decisions lawfully adopted on the basis of those documents (a) The refusal to admit the applicant are not altered thereby. to Competition N o C O M / B S / 4 / 7 9 is justified by the fact that she does not meet the conditions laid down in the Notice of Competition regarding the The letter of 21 November 1979 "qualifications or diplomas required and amounts, in essence, to an attempt to experience". As is indicated in the arbitrate which puts an end to the memorandum of 24 September 1979, the difficulties which had arisen concerning assessment carried out in that regard was the applicant's administrative position, based both on the personal file and on without necessarily being binding on Mrs Tiberghien's application form. Only selection boards in competitions in the her experience as a secretary/shorthand future. Nor can it retroactively invalidate typist could be taken into consideration. a decision adopted by a selection board The reference to experience acquired in on the basis of documents contained in the performance "of similar duties" the personal file which it could not, and enabled, on the one hand, former was not intended to, alter. servants of the Joint Research Centre to be admitted and, on the other hand, experience acquired prior to entering the service of the Communities to be taken Infringement of the fourth parapgraph of into consideration in so far as that Article 24 of the Staff Regulations experience was of at least the same level and the same nature as the duties of a secretary/shorthand typist. According to the applicant the decision at issue is also unlawful because it However, the duties performed by the disregards the fourth paragraph of applicant between 16 March 1964 and Article 24 of the Staff Regulations 1 February 1965 do not constitute concerning further training and in- experience as a secretary/shorthand struction. typist; similarly, in all probability, it does not seem that the experience acquired at the start of her career prior to entering the service of the Commission could (a) That provision places an obligation have been at a level comparable to that on the institutions to take further of the duties attaching to Grades C 3 training and instruction into account for and C 2. the progress of an official's career.

Article 24 does not, however, give officials any right which, in a (b) Participation in an internal competition, entitles them to be included competition undoubtedly forms part of on the list of candidates fulfilling the the progress of a career. An official who conditions for admission by way of dero- has participated in further training gation from the qualifications or courses must be able to make use of the diplomas or experience required by the certificate proving completion of such Notice of Competition. additional training and the selection board must take such matters into actual consideration in internal competitions Further vocational training is mentioned based on qualifications. in the periodic reports, which are themselves examined on the occasion of a promotion or internal competition. However, the Commission did not issue any certificate at the end of the training courses followed by the applicant and the competition selection board took no (b) The argument based on parti- account of the further training courses. cipation in some "seminars on secretarial work" is irrelevant: it is not stated in what way that fact alters the conditions for admission to the competition. In this Even though the new procedure making case, no actual breach of any duty it compulsory to mention further training deriving from the fourth paragraph of in periodic reports was not yet in force Article 24 of the Staff Regulations may when the competition selection board be ascribed to the selection board in took its decision, the selection board had Competition N o C O M / B S / 4 / 7 9 or to a legal duty to take a candidate's further the Commission.

On the subject of the difference between secretarial and administrative careers and Owing to that circumstance, the receipt opportunities for moving from one to the or non-receipt of the allowance can other, the Commission explained that a hardly serve as an infallible means of distinction should be made between the drawing a general distinction between legal viewpoint and the factual one. In the duties of a clerical officer and those law, Article 5 (4) of and Annex I to the of a secretary/shorthand typist. Staff Regulations place the basic posts of clerical officer and secretary/shorthand typist under career bracket C 3 / C 2; secretarial and administrative careers are As to whether there are any oppor- therefore one and the same. tunities open to officials whose work includes duties typical of one or other of those kinds of job for transferring between the two careers, it suffices to On the other hand, the table of basic job say that according to Article 5 (4) of and descriptions drawn up under the second Annex I to the Staff Regulations the paragraph of Article 5 (4) of the Staff posts of clerical officer and secretary/ Regulations in fact indicates certain shorthand typist form part of the same criteria for distinguishing, within career career (and correspond to the same bracket C 3/C 2, between the posts of grades, C 2 and C 3). Thus the only secretary/shorthand typist and clerical possibility is of moving from the one post officer. In the case of the post of clerical (job) to the other, and only to the extent officer, neither the heading "description to which the official in question has the of duties" nor the heading "title" refer requisite abilities, namely, in the case of to the performance of typing duties. a change from the post of clerical officer Internal practice places the dividing line to that of secretary/shorthand typist, between the two posts according to the knowledge of shorthand typing carefully amount of typing done. checked by means of tests (which makes that type of transfer relatively rare) and, conversely, in the case of a change from In the present, instance, it is established the post of secretary/shorthand typist to that Mrs Tiberghien has been drawing that of clerical officer, training and the fixed allowance under Article 4 a of qualifications. Annex VII to the Staff Regulations from 1 January 1965 to date; however, according to a decision taken by the The Advocate General delivered his heads of administration in 1965, that opinion at the sitting on 4 December allowance is only granted to officials and 1980.

1. Have completed studies at an advanced secondary level evidenced by a certificate of completion of studies and possess at least 10 years' experience of category C duties as an executive secretary, principal secretary or secretary/shorthand typist, or of similar duties; and

2. Have been in the service of the Communities as an official or other servant for a total of five years.

JUDGMENT OF 18. 12. 1980 — CASE 797/79

OrB:

1. Have at least 16 years' experience of category C duties as an executive secretary, principal secretary, secretary/shorthand typist, or of similar duties; and

2. Have been in the service of the Communities as an official or other servant for a total of 11 years."

6 On 2 August 1979 the competition selection board took its decision holding that of 564 candidates 399 met the conditions laid down by the Notice of Competition and 165 candidates, including the applicant, were eliminated as

JUDGMENT OF 18. 12. 1980 — CASE 797/79

failing to fulfil those conditions. The applicant was notified of that decision on 10 August 1979 in the form of a standard letter informing her that she did not meet the condition which is worded: "Have at least 16 years' experience on 31 December 1978 of category C duties as a secretary/ shorthand typist, or of similar duties".

7 In a letter of 22 August 1979 the applicant asked the selection board to reconsider the position, reminding them that, as was stated on her application form, her experience as a secretary before and after her entry into the service, when added together, totalled more than the minimum 16 years' practical experience required by the Notice of Competition.

8 After reviewing her position the competition selection board decided to confirm its previous decision. It appears from the letter on the matter which was sent to the applicant on 24 September 1979 that the selection board accepted the equivalent value of the applicant's employment prior to her entry into the service of the Community, that is, nine years and six months, but that, of her career subsequent to her entry into the service, it accepted only a period running from 1 February 1976 to 31 December 1978 (that is to say, two years and 11 months) as corresponding to a post of secretary/ shorthand typist.

i2 Therefore the selection board, which was responsible for the management of a competition for which there was a large number of candidates, is not to be criticized for not taking the initiative of clarifying of its own motion an administrative status which had not yet been determined when it made its decision. Nevertheless, since the existence of an error of judgment on its part has been established, the decision in question must be annulled in order to enable the administration to take a fresh decision based on the position finally acknowledged by the appointing authority's decision of 21 November 1979.

Costs

1 3 The question of costs should be settled in the light of the foregoing. Although the applicant has obtained the annulment of the decision of which she complains, it would be inequitable to allow her to place on the Commission the burden of the costs of legal proceedings which she could have avoided by taking care to inform the selection board of the concurrent proceedings she had commenced through official channels in order to have her administrative status rectified. The power given to the Court under the first subparagraph of Article 69 (3) of the Rules of Procedure should therefore be exercised and the parties should be ordered to pay their own costs.

TIBERGHIEN v COMMISSION

On those grounds,

T H E C O U R T (Second Chamber)

O P I N I O N OF MR ADVOCATE GENERAL C A P O T O R T I DELIVERED O N 4 DECEMBER 1980 «

Mr President, consideration a subject which is not new, Members of the Court, namely, the requirements which, if it is to be lawful, must be satisfied by a 1. The action brought by Mrs selection board's decision not to admit Tiberghien by application dated one of the candidates to the tests in a 9 November 1979 raises for your particular competition.

1 — Translated from the Iulian.