C-195/80

EUROPEAN PARLIAMENT, represented by F. Pasetti-Bombardella, acting as Agent, Kirchberg, Luxembourg, assisted by A. Bonn of the Luxembourg Bar, defendant,

APPLICATION for the annulment of a decision not to admit the applicant to the tests for an open' competition,

MICHEL ν PARLIAMENT

T H E COURT (Third Chamber)

composed of: A. Touffait, President of Chamber, Lord Mackenzie Stuart and U. Everling, Judges

Advocate General: Sir Gordon Slynn Registrar: J. A. Pompe, Deputy Registrar

1. In the Official Journal of the European Communities of 6 June 1979 "The competition will be based on (C 141, p. 10), the European Parliament, qualifications and tests. the defendant, published Notice of Open Competition No PE/21/A for an "open competition based on qualifications and Candidates who meet the following tests for the purpose of drawing up a requirements and whose applications are reserve list for the recruitment of accepted by the Selection Board will be French-language administrators and admitted. Only those who have been Dutch-language administrators in Grades invited to attend may take part". 7 and 6 of Category A". The Notice of Competition stated that the competition was being held "to fill vacancies in the The Notice of Competition then stated institution's departments and to establish that a university degree was required in a reserve list with a view to filling any one of a number of specified subjects, posts in the abovementioned career including economics, and added:

JUDGMENT OF 26. 11. 1981 — CASE 195/80

Since 1975 the applicant has been an official of the Commission of the The Selection Board then proceeded to European Communities, where he make a selection on the basis of initially held a post of administrative qualifications. It emerges from the assistant in Grade Β 4 in the Directorate- reasoned report drawn up by the General for Transport. By decision of 14 Selection Board on the progress of its September 1979 he was promoted to work, which the Parliament submitted as senior administrative assistant in Grade an annex to its defence, that the Β 3 and works at present in the Selection Board decided as a general Individual Rights and Privileges Division principle to admit to the stage of the of the Commission's Directorate-General tests only those candidates who could for Personnel. Before entering the service demonstrate that they had "the record of the Commission the applicant had of an Outstanding young university worked for nine years in the private graduate' and in addition a certain sector, including six years as an assistant minimum of specialization, work or in the export department of a large phar­ practical experience" and that the maceutical undertaking. Selection Board adopted for that purpose a number of criteria, awarding a maximum of 22 marks for the university In addition to his practical experience, first degree, depending on its source and the applicant had attended courses at the the class obtained, between 1 and 3 Institut d'Enseignement Supérieur Lucien marks for further university qualifi- Cooremans, in Brussels, which in 1977 cations, between 1 and 3 marks for

special post-graduate courses, periods of 4. By a letter dated 21 February 1980 practical training, similar experience with from the Chairman of the Selection a European aspect or having been placed Board the applicant was informed of the on the list of suitable candidates in Board's decision not to admit him to the competitions for Category A officials tests in the following terms: organized by the Communities and between 1 and 12 marks for practical experience. With regard to practical "With reference to your application, I experience, the Selection Board's report am writing to let you know that the states that it was assessed in accordance Selection Board of which I am Chairman with the following criteria: decided to admit you to the above- mentioned competition. Consequently, in accordance with the provisions of " — Experience at executive level (junior Heading IV of the Notice of Com­ administrator) in the public or petition, it proceeded to award marks for private sector, similar experience or your qualifications on the basis of the supporting documents which you were teaching experience at university good enough to supply. level only (in the service of the Communities: Grade Β 1 and above and all L/A grades); That selection on the basis of qualifications takes account of university — Experience in a field related to the qualifications obtained, of their nature work of the institution. and level, of periods of post-graduate training and of suitable practical experience acquired by candidates. After the marks had been awarded you had Marking will be at the rate of 2 marks not obtained 60 % of the marks (24 out for each of the first two years and 1 of 40) as required by the Notice of mark for each additional year, to a Competition. Under those circumstances, maximum of 12 marks. the Selection Board was obliged to decide not to admit you to the next stage of the competition, that is to say to the Aggregation with any practical tests." experience proffered as an alternative to a degree in order to gain admission to the competition will not be acceptable." The form of letter was identical to those sent to all the candidates who were not admitted to the tests. It contained the When the marking took place, the following postscript: Selection Board awarded the applicant 22 marks for his university first degrees but no marks for the other criteria. Since "The Selection Board will answer any the applicant had not attained the requests for further explanation of the minimum of 24 marks, he was placed by points set out above." the Selection Board amongst the 1 455 candidates who were not admitted to the stage of the tests. On 4 March 1980 the applicant, referring to that letter, requested the Selection Board to inform him of the The tests for the competition took place criteria on which the Board had based its on 7 March 1980. assessment of the candidates' quali-

fications and of the results which he In his application, the applicant claims personally had obtained for each of that the Court should: those criteria. In Brussels on Monday, 2 June 1980, the — Declare that the implied rejection of applicant posted a registered letter his complaint is unjustified and addressed to the President of the consequently annul it; European Parliament lodging a complaint under Article 90 (2) of the Staff Regulations against the refusal to — Declare that his application for admit him to the tests for the admission to the tests for competition in question. In that letter the Competition No PE/21/A was applicant stated that he had no wrongly rejected and consequently knowledge of the letter of 21 February declare that the applicant fulfils the 1980 from the Selection Board until 3 conditions for admission to the tests March 1980. The letter of 2 June 1980 for that competition; was registered by the Parliament's Mail Department on 4 June 1980. — Declare that the Parliament is liable The applicant received no reply to that for its wrongful act or omission and complaint. consequently award the applicant damages of BFR 50 000 for non- By letter of 9 June 1980 the Selection material damage and of BFR 40 000 Board replied to the applicant's letter of for material damage, that is to say 4 March 1980 in the following terms: BFR 90 000 in total, with interest at "Please accept my apologies for the 6 % per annum from the date of this delay in replying to your letter of 4 application until final settlement; March of this year; this was due to the exceptional work-load with which the — Order the Parliament to pay the Selection Board had to contend. costs. The reason for your exclusion from the stage of the tests was the inadequacy of the practical experience to which you In his reply, which was lodged on 14 refer in your application. January 1981, the applicant claims Since I am bound to respect the further that the Court should : confidentiality of the Selection Board's deliberations, I cannot give you any — Annul completely and in its entirety further information." Competition No PE/21/A and all the 142 candidates who were not admitted consequences thereof. to the written tests requested further information and, like the applicant, The Parliament contends that the Court received a standard reply which gave no should: individual details.

1. Admissibility The Parliament, in its rejoinder, contends that the applicant is bound at least to (a) Failure to comply with the time-limit state the apparent reason for the alleged for lodging a complaint delay in the receipt of the letter of 21 February 1980. The fact that 31 May and 1 June fell at a weekend is of no consequence. Article 80 (2) of the Rules According to the Parliament, the of Procedure is inapplicable since it complaint through official channels was envisages the case where a period ends not lodged within the period required by on a Sunday or on an official holiday. the Staff Regulations. In view of the completely uniform methods of work employed in the Mail Department, it is certain that the Luxembourg postal auth­ (b) Lack of legal interest in pursuing the orities received the letter of 21 February action 1980 on the same day and it may be assumed that it was delivered to the applicant's address in Brussels on According to the Parliament, the Monday, 25 February 1980. Even if it applicant has no interest in pursuing the were accepted that the period for action because he has meanwhile been lodging a complaint ran from the date notified of the reasons on which the on which the applicant claimed to have decision refusing to admit him to the received notification of the Selection tests was based. The failure to give a Board's decision, that is to say from 3 statement of reasons constituted the March 1980, the complaint would still be ground relied on by the applicant. out of time because it reached the Moreover, the tests have already taken Parliament on 4 June 1980. place. What the applicant is seeking is therefore the recognition by the Court of a purely theoretical right. The applicant, in his reply, states that he did not receive the letter of 21 February 1980 until 3 March 1980. Such a delay in The applicant claims that in any the delivery of the letter might easily be competition candidates who have already explained by an error on the part of the taken part in a competition for the same postal authorities. In order to avoid such category have an advantage which may irregularities the Selection Board should be worth several marks and be decisive.

(c) The barring of further submissions The Parliament contends, in its defence, that the reasons for the Selection Board's With regard to the claim made by the unfavourable decision were stated since applicant in his reply that the the letter of 21 February 1980 indicated competition should be annulled in its not only the result of the selection but entirety, the applicant states that he also the manner in which it had been realized the full extent of the errors made. That statement of reasons was made only on reading the defence and sufficient because it was supplemented by the minutes of the Selection Board and the letter of 9 June 1980, which adds that the Court should reach such a contained a further statement of reasons decision of its own motion even without already offered in the first letter. The conclusions to that effect. two letters of 21 February and 9 June must be considered together. The letter of 21 February gave a summary of the basic criteria; the letter of 9 June added The Parliament, in its rejoinder, contends that the applicant's qualifications had that the further conclusions are been considered to be insufficient in inadmissible because the defence did not respect of his practical experience. His disclose any matters of law or fact which request to be informed of the results would justify further submissions on the which he personally had obtained for part of the applicant. Still less can the each of the criteria went beyond the applicant be permitted to change the principles laid down in the case-law. The object of his action. large number of candidates forced the Selection Board to organize its work in such a way as to enable it to contend with it and it would have constituted an 2. Substance overwhelming burden to supply each candidate eliminated with individual information. (a) Failure of the Selection Board to state the reasons on which its decision was based The applicant, in his reply, claims that by virtue of Article 25 of the Staff Regu- lations the Selection Board's decision The applicant, in his application, claims and the reasons on which it was based that the Selection Board's decision did should have been communicated to him not contain the statement of reasons at once. It would seem that the Selection required according to the case-law of the Board omitted to inform him in order to Court, and in particular its judgment of avoid legal proceedings. The additional

The applicant, in his application, maintains that under the terms of the Notice of Competition the Selection Board was not entitled to concern itself The Selection Board applied the criteria with a candidate's practical experience in a discriminatory manner because it where he possessed the required degree. admitted another candidate, Mr The requirements of a degree and of Neijman, even though that candidate practical experience were not cumulative. possessed the same degrees and had In view of the age-limit of 33 years practical experience in the private sector imposed it is, moreover, difficult to see covering a shorter period and at a lower how a candidate could have practical level. In order to prove that, the experience equivalent to a full university applicant requests the Court to order the degree. production of the file on his application as well as that of Mr Neijman. The applicant adds that he was unaware of those facts at the time when he brought his action. The Parliament, in its defence, contends that the applicant's reasoning is based on a confusion of the various stages of the competition. Whereas at the stage of admission to the competition no practical The criterion of practical experience experience was required on the part of applied by the Selection Board led, candidates who possessed the necessary- moreover, to the automatic exclusion degrees, at the stage of the selection on from the tests of any candidate who did the basis of qualifications, the Selection not have a university education but had Board was entitled to assess inter alia equivalent practical experience; this was candidates' practical experience in contrary to the terms of the Notice of accordance with the criteria which the Competition which required that they be Board itself had drawn up. admitted.

In general, the Selection Board the file of a person who is not a party to performed its work both superficially the proceedings is inadmissible. and too hastily, it committed glaring errors of substance, the applications were examined in an incorrect and disor- (c) Error vitiating the entire competition ganized manner and Mr Michel's application was not subjected to objective examination. The applicant, in his reply, ' points out that in its defence the Parliament stated that the purpose of the competition was The Parliament, in its rejoinder, contends merely to draw up "a reserve list for re- that the allocation of marks for the cruitment". He refers to the Notice of applicant's qualifications in accordance Competition, which stated that the with the various criteria of the Selection competition was also being held to fill Board, and in particular with that of vacancies in the institution's departments practical experience, was a matter which and concludes that the Parliament fell within the Board's discretion. The encouraged a large number of Selection Board examined the qualifi- applications on the basis of promises cations relied upon and assessed them which, in the case of persons seeking with reference to the requirements of the immediate employment, were misleading competition. The applicant was not and fallacious and could not be fulfilled. entitled to any marks other than those There is therefore justification for the which he received. annulment, even of the Court's own motion, of the entire open competition. Only on reading the defence did the applicant realize the full extent of the There are no grounds for the assertion errors committed which justify that that the Selection Board departed from claim. the objective and impartial approach required in order to assess the hundreds of applications submitted. The Parlia- The Parliament, in its rejoinder, refers ment rejects the applicant's insinuations to the wording of the Notice of regarding the Selection Board's work. Competition and states that in the case Moreover, they were contained in of a competition held for the purpose of further submissions which were lodged drawing up a reserve list for recruitment, out of time. persons are drawn from the reserve list as soon as posts become vacant. The applicant's claims on this matter amount merely to inadmissible suppositions and The further submission based on alleged insinuations. discrimination, concerning the admissi- bility of which the applicant himself has doubts, can relate only to the assessment of qualifications, a matter which falls (d) Damage sustained by the applicant within the Selection Board's discretion. The documentation of the case is complete, in so far as the applicant's In his application, the applicant states application form, the documents annexed that if the complete annulment of the thereto and the marks which he obtained competition were to be regarded as a are concerned, since the relevant penalty too severe for the irregularity documents have been submitted to the committed, he nevertheless sustained Court. A request for the production of serious damage of both a non-material

In his reply the applicant claims that he In reply to that request, the Parliament could legitimately assume that there was stated that the applicant's letter, which a vacant post. The non-material damage was addressed to the President of the which he has suffered would not be Parliament, had been transmitted by the remedied merely by the annulment of the Parliament's Mail Department directly to decision rejecting his application but the President's office in accordance with only if the entire competition were instructions received. There it was annulled. The estimate of BFR 40 000 opened and was subsequently returned to for material damage is modest in view of the Mail Department for the purpose of the opportunities which the applicant registration. It seems that the exceptional would have had and of the fact that the result of that procedure was that the difference between the salary of an letter was registered by the Mail official in Grade B 3 and that of an Department on the day following the official in Grade A 7 amounts to BFR day on which it was actually received. 5 218 per month. The Parliament expressed its regret that this internal instruction, which is intended to ensure that the post addressed to the President is sent to her office, should have caused incorrect IV — Oral procedure information to be given during legal proceedings.

The applicant, represented by Victor Biel, of the Luxembourg Bar, and the Under Article 61 of the Rules of European Parliament, represented by Procedure the Court (Third Chamber), Alex Bonn, of the Luxembourg Bar, after hearing the views of the Advocate presented oral argument at the sitting on General, ordered the re-opening of the 25 June 1981. oral procedure on that point.

MICHEL ν PARLIAMENT

which he had obtained in 1977 at the Institut d'Enseignement Supérieur Lucien Cooremans, in Brussels, and that from 1978 to 1979 he had attended courses at the Institut d'Études Européennes in Brussels.

4 Although he fulfilled the conditions for admission to the competition, Mr Michel's application — like those of 1 455 out of 1 740 candidates who satisfied those conditions — was rejected at the stage of the selection on the basis of qualifications, because the Selection Board did not award him the required number of marks. The applicant was informed of that decision by a letter dated 21 February 1980 from the Chairman of the Selection Board. It was a standard letter identical in wording to those sent to all the candidates who were not admitted to the tests.

5 By a registered letter of 2 June 1980, which was recorded by the Parliament's Mail Department on 4 June 1980, the applicant lodged a complaint pursuant to Article 90 (2) of the Staff Regulations against the refusal to admit him to the tests for the competition in question. Since he received no reply to that complaint, he brought this action.

Admissibility

6 The Parliament first raised an objection of inadmissibility, contending that the applicant had failed to comply with the time-limits laid down by Articles 90 and 91 of the Staff Regulations.

10 The applicant maintains, however, that he did not receive the letter of 21 February 1980 until 3 March 1980 and that therefore the period for lodging a complaint began to run on that date.

1 1 The Parliament, for its part, has adduced no evidence to prove that the letter of 21 February 1980 reached the applicant before the date on which he claims to have received it and noted its contents. The addressee of an unregistered letter is not required to show the reasons for any delay in its delivery.

12 Consequently, it is evident that the period laid down by Article 90 (2) of the Staff Regulations began to run on 3 March 1980 and that the complaint had to be lodged no later than 3 June 1980.

1 3 The complaint reached the Parliament on 3 June 1980. It was therefore lodged before the expiration of the prescribed period.

MICHEL ν PARLIAMENT

14 It follows that the objection based on a failure to adhere to the periods laid down by Articles 90 and 91 of the Staff Regulations is unfounded.

19 In that regard, it should be mentioned that the letter of 21 February 1980 informed the applicant that candidates had been selected for admission to the tests by the award of marks for their qualifications on the basis of the sup­ porting documents supplied, that in the award of those marks account had been taken of university qualifications obtained, of their nature and level, of periods of post-graduate training and of appropriate practical experience acquired, and that after the marks had been awarded the applicant had not obtained the required minimum of 24 marks. It was stated in that letter that the Selection Board would reply to any request for further explanation of that selection. The applicant sent such a request to the Selection Board and the Chairman of the Selection Board informed him by a letter dated 9 June 1980 that he had not been admitted to the tests because of the inadequacy of the practical experience to which he had referred in his application and that

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since the Chairman was bound to respect the confidentiality of the Selection Board's deliberations, he was unable to give him any further information.

22 However, it must be remembered in that regard that the requirement that a decision adversely affecting a person should state the reasons on which it is based is intended to enable the Court to review the legality of the decision and to provide the person concerned with details sufficient to allow him to

MICHEL ν PARLIAMENT

ascertain whether the decision is well founded or whether it is vitiated by an error which will allow its legality to be contested. It follows that the statement of reasons must in principle be notified to the person concerned at the same time as the decision adversely affecting him and that a failure to state the reasons cannot be remedied by the fact that the person concerned learns the reasons for the decision during the proceedings before the Court.

23 The Parliament maintains next that the statement of reasons which the applicant received in the letter of 21 February 1980 and, in any event, in the letter of 9 June 1980, satisfied all the requirements.

24 It must be emphasized first that the secrecy of the proceedings of the Selection Board prescribed by Article 6 of Annex III to the Staff Regulations of Officials cannot absolve a selection board from its obligation to inform a candidate w h o is rejected at the stage of the selection on the basis of qualifications of the reasons for that decision, at least in summarized form.

25 T h a t requirement t o give a statement of reasons must however be evaluated having regard to the different levels and types of competition and, more particularly, to the number of candidates competing in each of them. In the case of competitions such as the present, where the candidates are more numerous, the statement of the reasons for the rejection of applications must not be so voluminous as to place an intolerable burden on the proceedings of the selection boards and the work of the personnel administration.

30 In his reply, the applicant also claimed that the Parliament encouraged a large number of applications on the basis of misleading and fallacious promises which could not be fulfilled and that that justified the annulment of the entire competition.

31 However, the applicant has put forward no serious consideration which would support such an allegation. It is therefore unnecessary to decide whether the applicant is entitled to put forward in his reply fresh conclusions of that nature supported by a further submission.

32 The applicant also claimed that the Parliament should be ordered to pay damages as compensation for the injury sustained as a result of the refusal to admit him to the tests for the competition.

33 However, on the basis of the documents at present before the Court it cannot be stated positively either that the applicant should have been admitted to the tests or that he was certain subsequently to be placed on the list of suitable candidates and to be appointed to a vacant post. The applicant has therefore adduced no evidence of such a nature as to prove that he has actually sustained material or non-material damage.

MICHEL ν PARLIAMENT

34 It follows from t h e foregoing that t h e contested decision of t h e Selection Board n o t t o admit t h e applicant t o the tests must be annulled a n d that t h e remainder of t h e application must be dismissed.

2. Dismisses the remainder of the application;

3. Orders the Parliament to pay the costs.

Touffait Mackenzie Stuart Everling

Delivered in open court in Luxembourg on 26 November 1981.

J. A. Pompe A. Touffait Deputy Registrar President of the Third Chamber