C-268/80

J U D G M E N T O F T H E C O U R T (THIRD CHAMBER) 1 OCTOBER 1981 1

Anna Guglielmi ν European Parliament

(Official — Annulment of a competition)

Case 268/80

Officials — Recruitment — Competition based on tests — Written test — Choice of subject — Observance of criteria mentioned in the notice of competition — No breach of the principle of equal treatment of candidates — Consideration of the degree of difficulty of the test on marking — Assessment by the Selection Board — Review by the Court — Limits

In Case 268/80

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

Advocate General: F. Capotorti Registrar: J. A. Pompe, Deputy Registrar

gives the following

JUDGMENT

Facts and Issues

The facts and the arguments put forward — Notice No A/65 of 25 June 1979 for by the parties during the written the post in Paris; procedure may be summarized as follows : — Notice No A/66 of 25 June 1979 for the post in Rome;

The applicant obtained 15 marks for that — Thorough knowledge of the structure test. She was therefore eliminated from and activities of the European subsequent tests. Community."

After the first test of the competition and before learning that she had been The compulsory written tests consisted eliminated, the applicant, along with two of an "essay on a general subject bearing candidates for the posts in Brussels and directly on the duties involved", lasting Paris, sent a letter on 26 March 1980 to four hours and marked out of 30 (any the official who presided over the mark lower than 18 resulting in competitions in question claiming that elimination from the test) and, the the subject proposed for the first test was "drafting of a statement, press release or inappropriate and bore no relation to article on the basis of documents information, save in so far as it had to be supplied to the candidate". in the form of an article for a magazine having a large circulation. By letter dated 8 April 1980 the chairman of the Selection Board answered that the The applicant, Mrs Anna Guglielmi, who proceedings of the Selection Board were since 1954 had been an official in confidential and that he could therefore Category B, at present Grade Β 1, in the not give particulars of the way in which European Parliament and employed in the Board had discharged its functions. the Information Office in Rome since its creation in 1967, applied to take part in Competition No A/66 in relation to the post in the Information Office in Rome. By letter dated 18 April 1980 the applicant and the two other above- mentioned candidates, who had in the meantime been informed of their For that competition there were seven elimination from the competition, asked applicants, including one from Category the Selection Board for a detailed expla­ A, four from Category L/A and two nation for their exclusion. By letter dated

In her application the applicant maintains II — Written procedure and that Competitions A/65, A/66, A/67 and conclusions of the parties A/68 practically amounted to "four versions of one and the same competition". The Selection Board for By application lodged on 3 December all the competitions was the same, the 1980 the applicant brought an action chairman and members of the Board against the Parliament claiming that the were the same, the tests took place on Court should: the same day and the subject to be discussed was the same. Candidates not — Declare that the selection procedure, only in Grade Β 1 but also in Grades that is to say, the competition as a A 3, A 5 and A 6 competed. whole, is vitiated and consequently annul it together with all its sub­ An Irish candidate in this "competition sequent effects; with four versions" had written a monograph published by the Direc­ — Determine ex aequo et bono the torate-General for Research and Docu­ damages to which the applicant is mentation in June 1979 under the title: entitled and order the European Par­ "The effects on Ireland of membership liament to pay the amount in of the European Communities". question together with interest at 6% from the date of the application In its defence the Parliament states that initiating the proceedings; the four competitions in question were in fact separate. The Selection Board was — Order the defendant to pay the composed only partly of the same whole of the costs. members and met on different dates. The Parliament states the names of the members of the Selection Boards for the The European Parliament contends that competition in question (A/66) and for the Court should dismiss the applicant's competition A/68 for the post in Dublin, claims and the action and make an order from which it appears that apart from

(a) Frustration of legitimate expectation In her reply the applicant stresses that one of the candidates in the competition for the post in Rome, the successful candidate moreover, had been in Grade A 6 as from 1 October 1979 and was The applicant alleges that the legitimate therefore in that grade when the expectation of candidates from Category Selection Board first met. Β was frustrated inasmuch as the question set for the first test went beyond the level stated in the notice of competition and the nature of duties for the post in question. It is not a general 2. Admissibility question, but one of a political, economic and social nature of the highest level which may be put only to The Parliament considers that the people who have taken part in research application is admissible only in so far as in those fields. The question is tailored it is directed against Competition A/66 to the requirements of candidates who in which the applicant was a candidate. are already in Category A and have The applicant cannot have been ad­ sufficient documentation at their versely affected by the other compe­ disposal. Since it was necessary to titions, and submissions made against the answer it without the aid of statistics or regularity of those competitions are economic studies, it was a question inadmissible. specifically designed for certain candi­ dates.

The applicant concedes that she can claim annulment only of Competition A/66 for the post in Rome and that the The duties in question relate to providing admission of candidates in Grades A/3 information under a head of division and and A/5 for the posts in Dublin and involve contacts with the press and Paris does not adversely affect her. She specialist circles but not research stresses, however, that those facts convey requiring the ability to answer a question the "flavour" of the proceedings and of the kind put in the test. They do not help to depict the "background" which require the official in question to be able the Court must examine, since the at any time to write an essay on the various measures comprising the re­ advantages and disadvantages of a cruitment procedure for the various country's belonging to the Common Information Offices make up one whole. Market.

The Parliament contends that the candidates were adversely affected by the question set for the first test perfectly high level of the work done by the can­ corresponds to the qualifications didates of high grades: one of them had required and the nature of the duties to even done specialist research on the be performed. It is a classical and ideal subject of the effect on his country question for an Information Office. The (Ireland) of joining the Communities and duties of officials in Category A involve the candidate in Grade A 6 for the post administrative and advisory duties, and in Rome had come from the Parliament's not just clerical duties. Committee on Budgets where his work had given him a broad view of the position of the various Member States, for that committee was the ideal place for analysing the economic, financial and political problems of the Community. Any notion of breach of the principle of The applicant seeks to show by an the protection of legitimate expectation inquiry that the candidate had taken part must be dismissed. The complaint made in studies on the advantages and disad­ by the applicant that the Selection Board vantages for Italy of belonging to the had chosen a subject inconsistent with Community and that therefore as a result the notice of competition has nothing to the Selection Board had not observed the do with the concept of legitimate principle of equality of treatment. expectation, which relates only to the appointing authority. The Selection Board for a competition has a power of appraisal. There is no evidence that that power was exceeded or misused in the present case. The Parliament stresses that the only candidate from Category A admitted to the tests for the competition in question for the post in Italy did not come from a higher grade. It would have been impossible to exclude from a competition for Career Bracket A 7/A 6 a candidate (b) Equality of treatment who was in that very career bracket when the competition was proceeding. Moreover, a Selection Board has no right to exclude from a competition officials of higher grades since a competition cannot be restricted to certain officials. The applicant alleges that the admission to a competition of candidates from appreciably higher grades lessens the chances of candidates seeking promotion from Category Β to Category A, such as a competition of that kind ought normally to allow. No one has the right The criticism that a candidate was to take part in a competition for a grade favoured in the written tests by the lower than his own. Nevertheless the choice of the subject cannot be accepted successful candidate for the Rome post as regards a question phrased in such was in Grade A 6 when admitted to the general terms. In a political institution competition. The chances of the other such as the Parliament it would be

The Parliament repeats that the question put for the first written test was appro­ priate to the qualifications required. The work of the Selection Board was aimed (c) Misuse of power only at recruiting the best qualified officials solely in the interests of the service. The Parliament denies that there was a misuse of powers in admitting to the competition officials whose only interest was to return to their place of The applicant alleges that the origin. Moreover, the applicant's argu­ competition in question was organized ment confuses once again the various with the intention of reserving the competitions. vacancies for certain candidates, namely those from Category A. It is apparent from consideration of the "background" provided by all the competitions and the objective evidence from the circum­ stances of the present case that the competitions, and in particular the first question, served purposes other than that IV — Oral procedure of filling posts in information and public relations. The reason why certain officials in higher grades took part was so that they might return to their place of origin. The Staff Regulations make no provision for a retrogressive career and the sole aim of a competition is to allow At the hearing on 25 June 1981 the the promotion of the most meritorious applicant, represented by Victor Biel of officials. There is moreover a problem of the Luxembourg Bar, and the European classifying candidates from higher grades Parliament, represented by Alex Bonn of since the second paragraph of Article 46 the Luxembourg Bar, presented oral of the Staff Regulations does not apply argument. to such situations. In disregard of the interests of the service the Selection Board had eliminated candidates with experience in the field of public relations and had not even given them an oppor­ tunity of proving their ability in the The Advocate General delivered his second test which specifically concerned opinion on 16 July 1981.

4 On 1 July 1980 the applicant made a complaint under Article 90 of the Staff Regulations against her rejection as a candidate. That complaint remained unanswered and the applicant then brought the present action.

GUGLIELMI ν PARLIAMENT

5 The applicant's first submission alleges a breach of the principle of legitimate expectation. The applicant thereby claims in substance that the subject chosen for the first test was inappropriate because it bore no relation to the nature of the duties attached to the post in question and went beyond its level. Those duties, which principally involve contacts with the press and specialist circles under the authority of a head of division, do not require the ability to answer a question of that kind at any time without the aid of documentation.

6 It must be observed that according to the second paragraph of Article 5(1) of the Staff Regulations posts in Category A, with which the present case is concerned, involve administrative and advisory duties which require university education or equivalent experience. Among the requisite qualifications and experience Notice of Competition No A/66 demanded "a thorough knowledge of the operation of the information media and of the parliamentary systems in Italy" and a "thorough knowledge of the structure and activities of the European Community".

7 An essay on the advantages and disadvantages for Italy of belonging to the Community required knowledge both of Community problems and political problems of Italy. The fact that the essay took the form of an article for a magazine with a wide circulation, apart from requiring a certain level of knowledge in the field of information, showed that in order to deal with the subject it was not necessary to have available detailed documentation or statistics. Therefore an essay on the subject chosen by the Selection Board for the competition constituted, both in content and in form, the appropriate means of testing whether the candidates in the competition possessed the necessary knowledge in the requisite fields.

12 The competition for the post in Dublin was distinct from the competition in issue. The fact that one of the candidates in that competition was the author of a specialist study on the subject in question and may thus have been especially well prepared for the first test in the competition is not capable of adversely affecting the applicant, who was not a candidate in that competition.

1 3 The applicant has therefore adduced no evidence to show that certain can- didates in the competition in question were given an unfair advantage in relation to herself by virtue of the choice of the subject for the first test.

1 4 The applicant alleges further that certain of the candidates admitted to the competition had come from higher grades than that for which the competition in question was intended. In this respect the applicant maintains

GUGLIELMI ν PARLIAMENT

that a candidate in the competition for the post in Rome was in Grade A 6 at the time of the test and that the above-mentioned candidate in the competition for the post in Dublin was in Grade A 4.

15 Since Competition No A/66 was for a post of administrator in Career Bracket A 7/A 6 there can be no objection to the Selection Board's admitting to that competition a candidate who was in Grade A 7 at the time of his application and in Career Bracket A 7/A 6 when the selection procedure was under way. The fact that a candidate of Grade A 4 took part in the competition for the post in Dublin cannot adversely affect the applicant and it is therefore unnecessary to give a ruling on his admission to that competition.

On those grounds,

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

hereby:

1. Dismisses the application;

2. Orders the parties to bear their own costs.

Mackenzie Stuart Touffait Everling