C-34/80

JUDGMENT OF 26. 2. 1981 — CASE 34/80

period for taking legal action 3. A selection board for a competition, following the said decision. whose previous decision to reject an application has been annulled by the 2. In the first phase of the competition Court, cannot be criticized for failing procedure, at the stage of the review to take a new decision with a of eligibility, it is sufficient for the different membership, since that selection board to consider whether would amount to disregarding not candidates fulfil prima facie and as a only the nature of selection boards, whole the conditions laid down in the which are collégial bodies operating notice of competition. A selection in complete independence, but also to board cannot be criticized for the system of legal redress instituted excluding the holder of a degree by the EEC Treaty, Article 176 of which very clearly relates on the face which provides that where the act of of it to a main field of study which an institution has been declared void, has no particular relevance to the the body concerned shall be required sphere of activity of the posts to be to take the necessary measures to filled. comply with the Court's judgment.

In Case 34/80

XAVIER AUTHIÉ, a graduate in economics, resident in Paris, represented by Marcel Slusny of the Brussels Bar, with an address for service in Luxem- bourg at the Chambers of Ernest Arendt, 34 Rue Philippe II,

applicant, v

COMMISSION OF THE EUROPEAN COMMUNITIES, represented by Raymond Baeyens, Principal Legal Adviser, acting as Agent, with an address for service in Luxembourg at the office of its Legal Adviser, Mario Cervino, Jean Monnet Building, Kirchberg,

gives the following

JUDGMENT

Facts and Issues

The facts of the case, the course of the A/154 on the basis of tests (Official procedure and the conclusions and Journal 1977, C 213, p. 9) held by the arguments of the parties may be Commission to constitute a reserve of summarized as follows: candidates for appointment as adminis- trators in Career Bracket A 7/A 6, in various fields including that of external I — Summary of the facts relations, chosen by Mr Authié.

Board in examining applications and the The written procedure followed the inadequacy of the reasons given for the normal course. disputed decisions. Upon hearing the report of the Judge- Following that judgment the Selection Rapporteur and the views of the Board for Competition COM/A/154 Advocate General the Court (Second met again on 9 January 1979 and carried Chamber) decided to open the oral out a review of the material contained in procedure without any preparatory Mr Authié's file having regard to the inquiry. entry requirements set out in the notice of competition. The assessment of these requirements was made as at 10 October 1977, the closing date for all I I I — C o n c l u s i o n s of the p a r t i e s applications. The result of the meeting was set out in the Board's report dated The applicant claims that the Court 11 January 1979. The Board arrived at should: the following conclusions: 1. Principally: The material contained in the candidate's file shows that Mr Authié's university Declare null and void the decision studies are not relevant to the field of taken by the Selection Board for external relations as regards Open Competition COM/A/154 on 9 Competition COM/A/154, since they January 1979 not to admit the demonstrate knowledge acquired essen- applicant to the said competition; tially in economics with a specialization Declare and order that the in econometrics. competition should be recommenced as far as the applicant is concerned; The Selection Board therefore decided not to admit Mr Authié to the written 2. As far as may be necessary, declare tests for the competition. null and void the express rejection of That decision was communicated to Mr the applicant's complaint by the Authié by letter dated 15 January 1979 Commission in its letter dated 23 signed by an official of the Recruiting, October 1979; Appointments and Promotion Division. 3. In the alternative give judgment as far On 13 April 1979, by his counsel, Mr as may be necessary on the new Authié sent a complaint to the alternative submission made by the Commission under Article 90 (2) of the applicant in the reply and annul the Staff Regulations, requesting withdrawal acts challenged on this additional of the decision which had been ground; communicated to him on 15 January and a fresh examination by the Board. 4. Order the opposite party to pay the costs. By letter dated 23 October 1979 the responsible Member of the Commission informed Mr Authié that his complaint The Commission contends that the Court had been rejected. should:

IV — Submissions and arguments Regulations to make a complaint even if of the parties during the it is superfluous; his mistake is excusable written procedure in view of the way in which the provisions are drafted and does not deprive him of his right to apply to the A — Admissibility of the application Court. The Commission submits that the application is out of time and therefore Moreover, the question arises whether inadmissible: it was made only on 25 the solutions arrived at by the Court January 1980 whereas the decision must be applied to all decisions of challenged was communicated to him on selection boards or whether it is not 15 January 1979. appropriate to make a distinction between those decisions which have an The complaint made by the applicant on administrative nature and those which 13 April 1979 could not prevent the concern the merits of candidates whether application from being time-barred: it in the written or in the oral tests; only had no legal effects. The case-law of the latter lie within the sole discretion of the Court shows that the filing of a the Board. complaint through official channels with the appointing authority under Article 90 The application is wholly admissible (2) against a decision of the Selection under the system set out in Articles 90 Board for a competition goes beyond the and 91 of the Staff Regulations. limits of the provisions of the Staff Regu- lations of Officials inasmuch as that authority does not have the power to set B — Substance aside or to amend the decision of the Selection Board acting within the limits of its discretionary powers. The applicant criticizes the decision challenged on the ground that it is inad- equately reasoned, that it is based on The applicant has committed an inex- reasons which are erroneous, that it is cusable error as to the applicability of vitiated by misuse of powers, that it Article 90 (2) of the regulations; he must disregards the notice of competition, that have been aware that his step had no it is in breach of the principle of equality legal significance. and of non-discrimination and that it was taken by an irregularly constituted The applicant joins issue with the Com- selection board. mission's objection of inadmissibility.

There is no item in the file which shows The applicant submits that the statement that the Selection Board has seriously of the reasons on which the decision is reconsidered the applicant's position — based is not only inadequate but also rather the reverse. The Board merely wholly erroneous. endorsed the unjustified preconception of its chairman, to the effect that the study of economics was incompatible with the option "external relations". The notice of competition does not exclude any particular subject of study in relation to any option at all. The Board has no doubt certain powers to The Commission stresses that the reason determine, subject to review by the for the Selection Board's refusal to admit Court, whether the qualifications, the applicant was the fact that a degrees and experience of candidates are candidate who has a degree in economics relevant to the various options; but when with a specialization in econometrics and doing so, it must take into account the a certificate of Advanced European different educational systems existing in Studies with a specialization in Member States and the purpose of the economics is unable to show that he has notice of competition. completed a course of university studies relevant to the field of external relations and therefore does not comply with the conditions of admission set out in the In French universities the study of notice of competition. economics includes common basic courses of lectures covering external relations; this teaching, completed by that obtained at the Institut d'Études It appears from the minutes signed by Politiques, includes numerous links with the three members of the Selection questions of external relations.

It is also appropriate to take account of 3. Submission of misuse of power the fact that Directorate-General I of the Commission, External Relations, includes a number of branches dealing According to the applicant, the refusal to with economic, financial or commer- admit him to the competition is to be cial questions; moreover, Directorate- explained by the deliberate intention of General II, Economic and Financial the chairman of the Selection Board to Affairs, includes branches dealing with exclude economists from the competition external relations and Directorate- as far as possible. His objective was to General VIII, Development, included by establish a sort of general rule taking definition a series of branches dealing account of a series of successive com- with international economic relations. petitions. This conduct is in contradic- tion with the notice of competition: it tends to favour candidates who have followed a particular type of course of The Commission takes the view that the study. There is therefore a genuine fact that the course of studies followed misuse of power in this case. by the applicant included three series of lectures which were not totally unconnected with external relations does not change the fact that his university The Commission takes the view that this education, in so far as it is complete and allegation is not concerned with the evidenced by a degree, is clearly in the present dispute and that no evidence field of economics with moreover a has been adduced in support of the specialization in econometrics, an area allegation that the chairman of the which can hardly be considered identical Selection Board, by excluding candidates with that of external relations. who had studied economics, intended to carry out a scheme which was all his own and which allegedly was to set up an imaginary general rule praeter legem. The argument based on the Com- mission's detailed list of posts is not relevant either. The competition was held in order to constitute a reserve of administrators and the vacant posts were 4. The submission that the notice of not specified in accordance with the competition was disregarded specific needs of particular directorates- general or other departments of the Commission. The fact that directorates- The applicant submits that the notice of general which have external relations as competition was disregarded from two their central field of activity also deal points of view: on the one hand, the with certain economic or financial Selection Board considered the training aspects of question of external relations as econometrist as a basic training, does not appear to be a point whereas it was only a final specialization constituting an error in the objective and the basic training was far more judgment made by the Selection Board general, and on the other hand the for the competition, based on the Selection Board took experience into

The real problem is to analyse the In refutation of the decision under behaviour of the Board. In this respect it appeal, the applicant relies upon the fact should be remarked that the decision by that certain candidates who had followed the chairman of the Board to exclude courses of studies related to economics candidates who had studied economics (courses in business studies or in political for the option "external relations" was economy) were admitted to the not the subject of a general instruction competition although these studies were and was applied with total inconsistency, less advanced than his own university in particular in a much more rigorous studies in economics. The applicant was way for French-speaking candidates than therefore penalized for having pursued for German-speaking candidates. In this his education further than other candi- way the irregularities referred to by the dates. applicant appear as cumulative: the absence of general instructions is the cause of the inconsistencies in the Selection Board's decisions; for this The breach of the principle of equality reason the decisions taken are arbitrary. between officials is accompanied in this case with a failure to respect the notice of competition inasmuch as the latter provided for the different educational According to the Commission a mere systems existing in the Member States to comparison between the final university be taken into consideration. degrees without taking account of the

AUTHIÉ v COMMISSION

With regard to the "behaviour of the As to the submission concerning the Board" in its activities, it should be constitution of the Board, the applicant noted that at its meeting of 9 January took the view that it was contrary to a 1979 it deliberated without examiners for general principle of law that the same whom criteria or instructions would have Board with an identical membership been necessary and that the Board should decide a second time on the same carried out a complete review of the file in the absence of any new factor. three candidates' files which had given The Commission for its part was of the rise to the judgment of annulment of 30 opinion that consideration of Mr November 1978; this was done in the Authié's application could only return light of the notice of competition issued to the same Selection Board, better by the Commission. informed, and that a modification of the membership of the Board would have been liable to raise doubts as to the regu- larity of the proceedings. 6. The submission of irregular constitution of the Selection Board

The Advocate General delivered his The applicant in his reply submits that opinion at the sitting held on 5 February the disputed decision was also irregular 1981.

JUDGMENT OF 26. 2. 1981 — CASE 34/80

Decision

1 By application lodged at the Court Registry on 25 January 1980 Mr Authié brought an action for annulment of a decision of the Selection Board in Competition COM/A/154 (Official Journal, C 213, p. 9) refusing to admit him to the tests.

2 It should be recalled that the applicant took part in this competition held to constitute a reserve of administrators for Category A 7/A 6 in 1977. Since he was not at that time included on the list of candidates admitted to the written tests he,brought an action as a result of which he obtained by judgment of the Second Chamber of 30 November 1980 {Salerno, Authié and Massangioli v Commission, Joined Cases 4, 19 and 28/78, [1978] ECR 2403) the annulment of the decision of the Selection Board on two grounds: the lack of sufficient supervision by the Selection Board over the activities of examiners who had assisted the Board because of the large number of can- didates, and the excessive succinctness of the statement of the reasons on which the disputed decision was based.

(ii) had followed the second year of studies of the Institut d'Études Politiques, Paris, (1974/75).

The applicant has moreover been admitted to carry out a period of training within the Commission as from 16 September 1977. The information contained in the candidate's file shows that Mr Authié's university studies are not relevant to the field of external relations in respect of Open Competition COM/A/154 inasmuch as they demonstrate knowledge acquired essentially in economics with a specialization in econometrics."

4 On 13 April 1979 the applicant made a complaint to the Commission signed by his counsel, under Article 90 of the Staff Regulations. By letter dated 23 October 1979 the responsible member of the Commission confirmed the reason for the refusal to the applicant and observed in conclusion that "the Commission has of course no power to set aside or to amend the decision of the Selection Board for a competition".

5 The application is made both against that letter from the Commission and the decision of the Selection Board.

Admissibility

6 The Commission has contended that the application is inadmissible because it was not made, within the prescribed period, against the decision of the Selection Board — which is the only act adversely affecting the applicant in this case — but only against a letter from the Commission explaining a decision which the Commission did not have the power to amend because of the independence of the Selection Board. The Commission's Agent has,

T h e a s s e s s m e n t of the a p p l i c a n t ' s d e g r e e

10 In the terms of the notice of competition, Section III, B 2, first paragraph, candidates should show "university education, with degree or diploma in a field appropriate to the option chosen (see Section I). The Selection Board

AUTHIÉ v COMMISSION

will allow for differences in national education systems". The applicant chose the option "external relations", so that the degree should be assessed in relation to that field.

1 1 It is common ground that among the various qualifications which the applicant relied upon in his application, only the degree granted on 12 May 1976 by the Faculty of Law and Economics of Orléans is relevant to the requirement of the notice of competition quoted above. The degree certifies that Mr Authié "passed the fourth year examination of the degree in economics 'specialization in econometrics' of the said Faculty on 29 June 1973 with the mark 'passable', entitling him to the degree of Graduate in Economics"; it should be further understood that the Certificate of the College of Europe was considered as equivalent to "practical experience obtained after graduation" according to the notice of competition, and the year of study at the Institut d'Études Politiques in Paris was ignored since it was not evidenced by any degree or certificate.

12 The applicant submits in essence that the Selection Board exceeded its authority, as set out in the particulars of the notice of competition, by excluding in advance graduates in economics and moreover that the Selection Board failed to appreciate the true significance of his degree, ignoring the structure of the French educational system. The applicant further alleges that the Selection Board for the competition acted in pursuance of a prejudice against economists; in this respect he refers to certain statements of the chairman of the Selection Board when giving evidence in the first case before the Court, from which it appears that the Board considered that candidates who had a training in economics could appropriately take part in competitions held periodically by the Commission to recruit economists but that that training did not correspond to the needs of external relations.

16 The criticisms of the applicant set requirements for the Selection Board which go beyond the scope of the review of eligibility which forms the first phase of the competition procedure. At that stage it was sufficient for the Selection Board to consider whether the candidates fulfilled prima facie and as a whole the conditions laid down in the notice of competition. A Selection Board cannot therefore be criticized for excluding the holder of a degree which very clearly relates on the face of it to a main field of study which has no particular relevance to external relations.

AUTHIÉ v COMMISSION

17 It follows from the foregoing that the Selection Board cannot be held to have exceeded its discretion or have made any mistake in the assessment of the degree submitted by the applicant.

T h e s u b m i s s i o n of lack of an a d e q u a t e s t a t e m e n t of r e a s o n s

18 Having referred to the fact that the first decision of the Selection Board was set aside for lack of an adequate statement of the reasons on which it was based, the applicant raises the same submission in respect of the second decision communicated by letter of 15 January 1979.

19 It may be seen from the foregoing that the Selection Board's decision cannot in itself be criticized for excluding the candidate because of the nature of his university degree. In the letter of 15 January 1979 the Board explained the essential reason for its decision namely the fact that the candidate's course of studies at university inasmuch as it demonstrated knowledge acquired essentially in economics with a specialization in econometrics, was not sufficiently relevant to the field of external relations. Since this was the decisive reason in view of the criteria which the Selection Board for the competition had legitimately set up, the decision cannot be criticized for want of a sufficient statement of reasons.

24 This submission must therefore be rejected.

The submission of irregular constitution of the Selection Board

25 Finally the applicant submits that following the annulment by the Court of the first decision not to admit him, the new decision should have been taken by a differently constituted board since the Board which had taken the first decision was biased against him. Relying on the maxim nemo judex in re sua he challenges in particular the right of the chairman of the Selection Board to take part in the new decision. Whilst stating that he does not wish to cast doubt on the "intellectual probity" of the chairman of the Board, the applicant complains that he wished to follow his "idée fixe" of excluding economists from this competition.

AUTHIÉ v COMMISSION

26 The applicant's criticisms fail to appreciate on this point not only the nature of selection boards, which are collégial bodies operating in complete independence, but also the system of legal redress instituted by the Treaty. Article 176 of the EEC Treaty in fact provides that where the act of an institution has been declared void, the body concerned shall be required to take the necessary measures to comply with the Court's judgment. In this case, following the judgment of 30 November 1978, the case could only be remitted to the Selection Board whose decision had been annulled.

27 It should moreover be emphasized that the first decision of the Selection Board was annulled only for a procedural flaw and for lack of adequate statement of reasons. The Selection Board therefore remained entirely free in its assessment on the actual question of the eligibility of the applicant to take the written tests. It follows from the above that the Selection Board cannot be criticized in any way as concerns the substance of its decision or of the statement of the reasons on which it was based. It is therefore clear that the objectivity of the decision taken cannot be called in question.

On those grounds,

T H E COURT (Second Chamber)

hereby:

1. Dismisses the application;

2. Orders the parties to bear their own costs.

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