C-67/81

composed of: G. Bosco, President of Chamber, A. O'Keeffe and T. Koopmans, Judges,

Advocate General: G. Reischl Registrar: H . A. Rühl, Principal Administrator

gives the following

RUSKE v COMMISSION

JUDGMENT

Facts and Issues

and and

JUDGMENT OF 18. 2. 1982 — CASE 67/81

RUSKE v COMMISSION

By a note dated 2 October 1980, Mr 3. On 28 October 1980, the applicant Desbois replied that in order to perform lodged a complaint under Article 90 (2) the duties of a records clerk or library of the Staff Regulations of Officials assistant at the level of Category B, against the decision not to admit her to specialized basic training of a theoretical Competition N o C O M / B / 4 / 8 0 . nature was required in accordance with a decision taken by the joint committee convened to approve Notice of In view of the appointing authority's Competition N o C O M / B / 4 / 8 0 and by failure to convey to the applicant a the appointing authority. The Selection reasoned decision within the prescribed Board examined the candidates' files on period of four months, the applicant that basis and took a decision regarding brought the present application which Mrs Ruske's application which was quite was received at the Court Registry on 2 justified. Furthermore, he saw no April 1981. objection to his notes being forwarded by Mr Mulfinger to Mrs Ruske by way of reply to her note of 1 October 1980. By decision of 23 April 1981, the Commission rejected the applicant's complaint. On 10 October 1980, Mr Mulfinger sent Mr Desbois a second note in which he pointed first to the difference between Upon hearing the report of the Judge- the competition in point and certain Rapporteur and the views of the previous competitions as regards the Advocate General, the Court (First criteria for admission, in particular as Chamber) decided to open the oral regards the requirement of a "statement procedure without any preparatory of qualification" ("sonstiger Befähigungs- inquiry. nachweis") as a records clerk or library assistant, or both, as well as experience attested by periodic reports and, secondly, he referred to the absence of any theoretical training course for II — C o n c l u s i o n s of t h e p a r t i e s records clerks.

III — Submissions and argu- Furthermore, the Selection Board took m e n t s of t h e p a r t i e s no action on the note which the applicant sent to its Chairman, M r Desbois, on 1 October 1980. In support of her application, the applicant relies upon the following submissions: inadequate statement of the As regards the assessment of the grounds on which the contested decision conditions for admission, the applicant is based; mistake in the assessment of the observes that the notice of competition conditions for admission; misuse of did not expressly exclude any specific powers, and discrimination by com- type of certificate or statement of parison with the conditions for admission qualification as a records clerk or library to Open Competition N o C O M / B / 1 8 5 . assistant, or both. The Selection Board had therefore disregarded the require- ments at points II.1.B.2 and C.1 of the As regards the statement of the reasons notice of competition by excluding can- for the decision of the Selection Board, didates who produced a certificate or the applicant points out that a mere statement of qualification issued by an reference to the conditions for admission employer or superior, or both, attesting which were not fulfilled by her "is not their experience in the field concerned capable of providing the person but who were unable to produce a concerned with a sufficient indication to diploma, certificate or statement of allow [her] to know whether the refusal qualification relating to theoretical is well founded or on the other hand training issued by an educational whether it is vitiated by a defect which establishment. Moreover, the effect of would make it possible to contest its that restrictive approach adopted by the legality" (see judgment of the Court of Selection Board was to neutralize the 30 November 1978 in Joined Cases 4, 19 individual efforts of certain officials to and 28/78 Salerna and Others v acquire training in fields in which no Commission [1978] ECR 2403). courses have been provided for several years in the Commission's training programme. In her application form and in the certi- ficates annexed thereto, the applicant provided the Selection Board with all the Next, the applicant claims that the information it required to enable it to Selection Board deliberately excluded establish that she actually fulfilled the from the competition officials in requirements set out at points B and C Category C who were unable to produce

The Commission considers that the In fact, the condition relating to theoretical training as a records clerk or applicant, by taking note of the letter of library assistant, or both, was only sub- 25 September 1980 and of the notice of sequently imposed in order to justify the competition attached thereto, was duly decision not to admit 39 candidates to notified of the reasons for the Selection the competition. Board's decision not to admit her to the competition. In any event, she was fully informed of the decision both by the That practice constitutes a misuse of communication to her of the corre- powers, as is confirmed by the minutes spondence exchanged between Mr of the discussions between certain Mulfinger, Assistant to the Director- colleagues of the applicant on the one General of Directorate-General III and hand and Mr Gaskell, Head of the Mr Desbois, head of the Recruitment Library, and Mr Desbois on the other, Division, who was also Chairman of the from which it is apparent that the last of Selection Board, and by the latter's the three internal training courses for explanations furnished in the course of a which provision was made in 1975/76 at discussion with the applicant on 16 the insistence of the Head of the Library October 1980. Besides, the note sent as to offset the lack of training of the early as 1 October 1980 by the applicant members of staff in his department never to the Chairman of the Selection Board took place for fear that the participants shows that she was fully aware of the might consider the courses as an open reasons for the Selection Board's door to Category B. decision not to admit her to the competition. Finally the applicant maintains that the Selection Board applied the conditions for admission to Internal Competition Furthermore, the aforesaid judgment of N o C O M / B / 4 / 8 0 in a discriminatory 30 November 1978 was concerned with a fashion by comparison with the con- reference to the conditions for admission ditions applicable to Open Competition which was too general whereas in the N o C O M / B / 1 8 5 . The only evidence present case the various requirements which candidates for the open compe- which were not fulfilled were specified tition were required to provide was that with precision. The reference to the they had completed a course of advanced condition set out in point B.2 necessarily secondary education with a final diploma applied to point C.1 also. or certificate and had two years' practical work experience relevant to the option selected, whereas according to the As regards the assessment of the interpretation of the Selection Board, the conditions for admission, the defendant notice of internal competition also recalls in the first place that the principle requires evidence of theoretical training according to which the main purpose of as a records clerk or library assistant, or the notice of competition is to provide both. those concerned with information does not absolve, them from a careful reading of such notices. The defendant maintains The applicant also contends that, on the that in this case it becomes immediately basis of a comparison with the other apparent on reading the notice of

The requirement as to specialized As regards the alleged discrimination, the theoretical training is in no way arbitrary Commission replies in the first place that and the periodic reports can be no sub- the successful candidate in the internal stitute for a diploma, certificate or competition satisfied all the conditions statement of qualification issued by an for admission. It questions the interest educational establishment which provides of the applicant in formulating this such training. They merely make it submission in so far as it relates to the possible to ascertain whether a candidate conditions of the open competition. She satisfies the condition relating to would have an interest, in the experience. Commission's view, only if she satisfied the condition relating to the possession of a certificate of advanced secondary education required for admission to the open competition. In order to refute the applicant's argument concerning a misuse of powers, the defendant emphasizes that the joint committee had unanimously recommended — and its recommen- Furthermore, the comparison should dation was accepted by the appointing focus on all the conditions laid down for authority — that the competition in both the open and the internal question should be organized and had competition. The notice of internal made it quite clear that candidates were competition does not require possession required to produce a statement of of a certificate of advanced secondary qualification issued by a specialized education. Thus, although the internal educational establishment. That was an competition lays down conditions which objective condition and had, moreover, are less strict as regards general training, been satisfied by a number of candidates. that difference is offset by the conditions

concerning specialized training, experi- Finally, she recalls the Opinion delivered ence and seniority. by Mr Advocate General Roemer in Case 44/71 Marcato v Commission [1972] In her reply, the applicant points out that ECR 427 in which he pointed out that according to Article 1(1)(d) of Annex III the experience acquired by an to the Staff Regulations, the notice unqualified official in Category C in a of competition must specify "the post in Category B was the decisive diplomas and other evidence of formal factor in comparing his candidacy with qualifications or the degree of experience that of qualified candidates. In that required for the posts to be filled". A regard, he referred to Article 5 of the careful reading of the requirements set Staff Regulations in which reference is out under headings B. and C. in Notice made, in the case of Category B, to of Internal Competition No C O M / B / experience of a level equivalent to 4/80 does not reveal any requirement secondary education. relating to theoretical training as a records clerk or library assistant, or both. In its rejoinder, the Commission replies that the experience required by the conditions set out at points B.3 or C.2 Next, she contends that the conditions must have been acquired as a records set out at points B.3 and C.2 in the clerk or library assistant, or both. notice of competition do not necessarily require specific experience in the field in question. It explains that a distinction is drawn in the notice of competition between a final diploma or certificate issued on com- Since the conditions set out under pletion of advanced secondary education heading A. in the notice of competition and a certificate of attendance of do not require any experience compar- courses, precisely in order to take into able to that required under headings B. account the differences between the or C . , a requirement of specialized types of theoretical instruction given in theoretical training under heading A. the Member States. would appear to be normal. It observes in conclusion that Article 5 of It is clear, in the applicant's opinion, that the Staff Regulations is not concerned by the conditions set out under headings B. the conditions for recruitment. The latter and C. of the notice of competition have are governed by the provisions of Article as their purpose to offset the absence 29 of and Annex III to the Staff Regu- of theoretical training in secondary lations (see judgment of the Court of 2 education and of specialized training in October 1979 in Case 178/78 Szemerey v the field in question by the possession of Commission [1979] ECR 2855). relevant experience.

4 Heading II.1 of the notice of competition, entitled "Certificates, diplomas, etc. and practical experience", laid down the following requirements which candidates for the competition had to satisfy:

"Either

A.1 : Advanced secondary education with final diploma or certificate

and

A.2: Diploma as a records clerk and/or library assistant

and

and

B.3: At least three years' experience on 30 June 1980, not necessarily in the service of the Communities, in Category C duties (as principal clerical officer or clerical officer, but not as clerical assistant) or of similar duties relating to the field specified at I. Nature of duties.

and

B.4: A total of four years' service with the Communities on 30 June 1980 as an official or other servant.

or

C. . . ."

9 It should be emphasized in the first place that although the appointing authority enjoys a wide discretion to determine the conditions governing a competition, the Selection Board is bound by the text of the notice of competition as published. According to the Staff Regulations the basic function of the notice of competition is precisely to give those interested the most accurate information possible about the conditions of eligibility for the post to enable them to judge whether they should apply for it.

10 That principle does not absolve the officials who are interested from a careful reading of the notice of competition. Although in the present case the applicant was able to discover from a careful reading of the notice that the certificate or statement of qualification required had to be related to her training as a records clerk or library assistant, there was nothing in the notice to indicate to her that such training had to be theoretical. On the other hand, a comparison of the requirement relating to the possession of a "diploma", stipulated at point A.2, with that concerning the possession of a "certificate" or "statement of qualification", stipulated at point B.2, might have led her to believe that the training as a records clerk or library assistant required under heading B. of the notice of competition did not necessarily have to be specialized or theoretical in nature.

1 1 It follows from this that the notice of competition, which makes no mention of any requirement as to theoretical training under heading B., may not be interpreted as laying down a condition to that effect.

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

hereby:

1. Annuls the decision of the Selection Board for Internal Competition No COM/B/4/80 of 25 September 1980 not to admit the applicant to the tests;

2. Orders the Commission to pay the costs.

Bosco O'Keeffe Koopmans

Delivered in open court in Luxembourg on 18 February 1982.