C-144/82

JUDGMENT OF 14. 7. 1983 — CASE 144/82

lations, from the day on which the that tests which take place simul- decision taken in reply to the taneously in different places are complaint is notified to the person entirely identical and, in addition, concerned. they should receive formal and accurate information as to the result 2. A selection board for a competition of the tests which they have taken. enjoys a wide discretion and the Where irregularities or errors have Court has no jurisdiction to review its occurred in the course of a value judgments. However, the board competition and cannot be rectified must proceed on the basis of objective by a repetition of the tests, with the criteria which are known to each of result that the only alternative is the the candidates and it must state application of a corrective factor in adequately the grounds on which its the assessment of the tests, that factor decision is based. It is for that reason must be applied unequivocally and the that indent (e) of the second sub- person concerned is entitled to be paragraph of Article 1 (1) of Annex informed of the criteria adopted. III to the Staff Regulations provides that the notice of competition, drawn 4. Where, in an open competition for up by the appointing authority, must the purpose of constituting a reserve specify inter alia, where the for future recruitment, the Court competition is on the basis of tests, of annuls the decision of the selection what kind they will be and how they board not to place a candidate on a will be marked. reserve list, the rights of the person 3. In view of the importance for the concerned are adequately protected if subsequent career of officials of re- the board and the appointing cruitment by way of competition, it authority reconsider their decisions must be ensured that criteria for and seek a just solution in his case. It assessment which are objective and is not necessary to call in question the equal for all the candidates are strictly entire result of the competition or to applied. It follows that the candidates annual the appointments which have in a competition are entitled to expect been made as a result thereof.

APPLICATION for the annulment of the decision of the selection board for Competition N o CJ 49/79 not to enter the applicant's name on the reserve list for the recruitment of shorthand-typists in Grade C 3 - C 2 resulting from that competition and for a declaration that the applicant should be appointed to a post in that career bracket with effect from the date of her appointment as a secretary/typist,

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

composed of: P. Pescatore, President of Chamber, O. Due and K. Bahlmann, Judges,

Advocate General: G. F. Mancini Registrar: H . A . Rühi, Principal Administrator

gives the following

JUDGMENT

Court of 11 February 1982, which is not typist. The applicant claims that she was contested on that point, that there were never officially informed of the true certain differences in the procedures in result and therefore that she was entitled the two centres, inasmuch as "only a to believe, at least until July 1981, that part of the text set for the shorthand test she had also passed the shorthand tests was dictated to candidates participating and that, consequently, she was on the in the test in Luxembourg, whereas the resrve list for shorthand-typists. On the text was dictated in its entirety to the other hand, the defendant contends that candidates summoned to Brussels". In the applicant was well aware, at least in other words the text (a total of 240 April 1981, that she had not passed the words in three minutes) was dictated in shorthand test and appeared only on the Brussels with the title (11 words), whilst reserve list for typists. It states that the in Luxembourg the title was omitted. As applicant was notified of that fact during a result, the candidates in Luxembourg a telephone conversation on 8 April had more time to complete the test than 1981, confirmed by letter of the Director those who took it in Brussels. In order to of Administration of 23 April 1981. That compensate for that advantage, the letter which did not refer expressly to the selection board decided to mark the tests results of Competition No CJ 49/79, taken in Luxembourg more severely by informed the applicant that the Court subtracting a number of marks from the was able to offer her a post of French- results obtained. language typist, as a temporary servant in Grade C 4, from 16 June 1981. The applicant accepted the offer on 29 April 1981 and occupied the post in Grade C 4, Step 3, from 1 July 1981.

applicant contested the marks given to the Selection Board for Competition No her by the Selection Board for CJ 49/79 committed a material error in Competition No CJ 49/79 and requested the marking of the shorthand test in "a serious reassessment" of her test. Competition CJ No 49/79 inasmuch as it awarded her only 19.5 marks out of 40, which led to her appointment to a grade which was lower than that which she might have expected at the Court. She also stated that she intended to bring an Her request was founded on the action before the Court for the possibility that the Board might have annulment of the decision whereby the made an error of assessment. Mr Selection Board for Competition No CJ Zwickert, the Director of Ad- 49/79 did not enter her on the list of ministration, therefore asked the suitable candidates for shorthand-typists. members of the Selection Board for By memorandum of 5 November 1981, Competition No CJ 49/79 for a sup- addressed to the appointing authority, plementary report. On 25 September the applicant asked that her 1981, the board sent him a report memorandum of 13 October 1981 be concerning the competition procedure, considered as a complaint within the which concluded that "the board is riot meaning of Article 90 (2) of the Staff in a position to alter the decision taken Regulations, the submissions and in relation to Miss Detti". It would be arguments remaining unchanged. very difficult for it "to give a new decision in respect of one candidate in that competition more than nine months after the submission of its final report". Moreover, it had already taken into consideration in the correction of the On 23 October 1981, the Staff tests the more favourable conditions of Committee sent a memorandum to the the shorthand test in Luxembourg. The Director of Administration informing applicant was informed of the board's him that, in the orinion of the Staff reply by a memorandum from the Registrar, A. Van Houtte, dated 14 Committee, the applicant was entitled to October 1981. be informed of the result of a "second correction" which was alleged to have been effected by the selection board. If the result of • that correction was negative, she was entitled "to expect the members of the Board to provide a detailed and reasoned explanation in On the previous day, 13 October 1981, particular as regards the criteria of the applicant had submitted to the assessment applied in the first correction appointing authority a request pursuant and the criteria applied in the second to Article 90 (1) of the Staff Regulations, correction of the shorthand test". in which she demanded that the decision Following that intervention, the Director of 11 August 1981, appointing her of Administration sent a memorandum secretary/typist in Grade C 4 be set dated 6 November 1981 to the Chairman aside, on the ground that she was of the Selection Board for Competition entitled to obtain a new appointment, as N o CJ 49/79, informing him of the view a secretary shorthand-typist in Grade of the Staff Committee. In its reply, C 3, with retroactive effect to the date of dated 24 November 1981, addressed to the first appointment (11 August 1981). the Director of Administration, the She based her request on the fact that Board again explained, in greater detail,

the method of correction applied by it in on the reserve list of shorthand-typists Competition N o CJ 49/79. According to (C 3 - C 2) and, in the second place, for the board, it corrected the tests of the the appointment of the applicant to a Luxembourg candidates in their entirety post in that career bracket with retro- more severely so as to maintain equality active effect, and in the alternative, for of treatment between the candidates the annulment of the decision rejecting irrespective of where the competition her complaint. took place. In order to do that, the Board "attributed a certain weight to the Upon hearing the report of the Judge- various types of possible mistakes", Rapporteur and the views of the without referring to the candidates' Advocate General, the Court decided to scripts. open the oral procedure without any preparatory inquiry. By decision of 11 February 1982, the President of the Court, acting in his capacity as appointing authority, rejected the applicant's complaint and concluded II — C o n c l u s i o n s of t h e p a r t i e s that although there had been a purely factual error on the part of the selection board, the consequences of that error The applicant claims that the Court were not "so harmful as to vitiate the should: procedure". The selection board had been entitled to decide that, in order to " 1 . Annul the decision of the selection compensate for the slight advantage board not to enter the applicant's given to candidates participating in the name on the reserve list for competition in Luxembourg, it would shorthand-typists in Grade C 3 - C 2 mark "slightly more severely" the texts in Competition No CJ 49/79; which were dictated there, since those candidates had had a longer period available for completing the test than 2. Declare that the applicant is to be those who had taken the test in Brussels. appointed to a post in that career That method of correcting the bracket with effect from the date of consequences of the board's error was her appointment as a secretary/ reasonable and did not result in any typist; unfairness "since several candidates who were called to Luxembourg were placed 3. Annul the decision rejecting her on the reserve list of shorthand-typists as complaint; they had passed the test which the applicant failed". and in the alternative : By decision of 8 March 1982, the applicant was appointed as an established 4. Before taking any other steps in the official from 1 February 1982 as a case order the production of the French-language typist in Grade C 4. report of the selection board, at least as regards the shorthand test and the script submitted by the applicant for By application lodged at the Court that test on the day of the Registry on 10 May 1982, the applicant competition; brought the present action, in the first place, against the decision of the Selection Board for Competition No CJ 5. Order that the test be reconsidered 49/79 not to place the applicant's name by an independent selection board to

be appointed by the Court, or alter- board's decision, the applicant, in natively by a technical expert; accordance with Articles 90 (2) and 91 (2) ought to have submitted a complaint thorugh official channels, but 6. Order the Court to pay the costs." did not do so in respect of the first head of claim. Although the requests of 13 October and 5 November 1981, satisfy The defendant claims that the Court all the procedural requirements for a should: complaint and may therefore be regarded as such, they were not directed against the selection board's decision, but "Dismiss the action as inadmissible; against the appointing authority's decision of 11 August 1981, appointing the applicant as a secretary/typist in Alternatively dismiss it as unfounded; Grade C 4. The subject-matter of the complaint through official channels was therefore different from that of the Award costs in conformity with the action before the Court. The Board's provisions applicable". decision constitutes one element of the complaint submitted, but it is the basis of the complaint, not the subject-matter thereof. Further, even if the complaint of Ill — Submissions and argu- 13 October 1981 is directed against the m e n t s of t h e p a r t i e s selection board's decision, it is out of time, inasmuch as the applicant knew of the decision in Competition N o CJ 49/79 at the latest as from 23 April 1981, A — Admissibility of the action when she received from the Director of Administration at the Court the offer of employment as a typist in Grade C 4, The applicant claims that her action is Step 3. The period of three months admissible inasmuch as all the conditions within which the complaint must be of Articles 90 and 91 of the Staff Regu- made started to run from that date, in lations are satisfied. In particular, it was accordance with the second indent of the introduced within the prescribed period, first subparagraph of Article 90 (2), and which did not expire until 12 May 1982. therefore expired on 23 July 1981. She contends that she was not required to bring the action or initiate the pre- liminary procedure within the three months following the board's decision, In so far as the applicant claims that the on the ground that she was never acknowledgment of the members of the officially informed of the result of the board that they had committed an error competition, which was brought to her constitutes a new material fact, the notice solely by . an unofficial oral defendant contends that there is no such communication. In any event, there was acknowledgment in the memorandum of a new substantive element of fact, 25 September 1981 and denies the namely the board's recognition of its existence of a new fact. own error. The applicant's memorandum of 19 July 1981 should not be regarded as a The defendant considers the action complaint within the meaning of Article inadmissible. As regards her application 90 (2) of the Staff Regulations, inasmuch for the annulment of the selection as it was not addressed to the appointing

In addition, the subject-matter of the complaints of 13 October and 5 The applicant denies that the subject- November 1981 was different from that matter of the preliminary complaint of the action, inasmuch as it was not through official channels differs from directed against the selection board's that of the action before the Court. In so decision but sought to have the far as she requested that the decision appointing authority's decision of 11 Au- relating to her appointment in Grade C 4 gust 1981 set aside. Even the possibility be set aside, she was also contesting, by that the complaint might be considered implication, the decision of the Selection as being directed against the board's Board for Competition No CJ 49/79. decision does not affect the above The Court has repeatedly held that an conlcusion, since it could not be efficient administration must not restrict regarded as a first complaint, as a itself to the actual wording of requests complaint had already been submitted. and complaints but must look behind it Moreover, the applicant ought instead to to the intent. In so far as the applicant have brought an action before the Court. based her claim to a higher post on the errors of the selection board, she was requesting, at the same time, the rectification of the board's report. Finally, the defendant also claims that Moreover, she asked the appointing the action is inadmissible on the ground authority "to consider all the legal that, in the circumstances of the case, the consequences" arising from the selection applicant, by her letter of 23 April 1981, board's mistake. accepted unreservedly the post of typist rather than that of shorthand-typist, that acceptance must be regarded as a waiver of any possible right of action in respect of the selection board's decision and as On the question whether her application an acquiescence therein. That also is out of time. The applicant denies that applies to the second acceptance, also the prescribed period began to run as made without any reservations, of the from 23 April 1981, because the letter same post when she was appointed on from the administration of the Court 11 August 1981. dated 23 April did not contain the slightest mention of the fact that she had not been accepted as a secretary/ shorthand-typist. In any event, there is a Furthermore, the applicant's claim to be new element of 'fact, which was not appointed to a post in Career Bracket known initially and of which she learnt

The applicant concedes that she did not In a second submission, the applicant expressly request the annulment of her claims that the board was not entitled to first appointment, but considers that she abandon the criteria laid down in order was requesting what must necessarily be to "compensate for the advantages" accepted as the equivalent, namely her arising from the test in Luxembourg. In appointment in Career Bracket C 3 - C 2, amending the criteria for the correction which implies the annulment of.her first of the test so as to make up for the appointment. Moreover she emphasizes above-mentioned error, the board disre- that the two decisions are materially garded the criteria which had been laid connected. As the board's decision was down. That practice constitutes an taken as a result of a mistaske, there was infringement of indent (e) of the first an obligation to enter her name on the subparagraph of Article 1 of Annex III to reserve list for Career Bracket C 3 - C 2, the Staff Regulations according to which at least on the basis of the principle of the board must establish in advance how the protection of her legitimate tests are to be marked and may not expectation as against the administration. adopt new criteria during the course of

JUDGMENT OF 14. 7. 1983 — CASE 144/82

The defendant denies moreover that the members of the .selection board In a third submission, the applicant acknowledged that a factual error was claims that the first two submissions committed.òr that there.was ań error in show that there has been a breach of the marking. In their memoranda adressed to principle of the protection of legitimate the Director of Administration, the expectation. Inasmuch as it failed to give members of the Board merely explained the applicant precise information as to how the tests were conducted in Brussels whether she was admitted to the reserve and Luxembourg. Although there were list for typists or to that for shorthand- differences in the texts dictated at the typists, the defendant was giving two centres, the board ensured that the assurances and engendering hopes with candidates were treated equally in­ regard to her career which could not asmuch as it assessed the results of the subsequently be destroyed. That amounts test by "offsetting advantages". The to a wrongful act on the part of the fairness of the system of marking was administration which exposes the confirmed by the fact that several candi­ appointing authority at least to an action dates who took the test in Luxembourg for damages. Any candidate in a were successful. competition of that nature is entitled at least to be assured that the board will not commit an error of which the candidate will have to bear the brunt at a As regards the second submission, the later stage. alleged departure from the criteria laid down, the defendant considers that the applicant is incapable of establishing her complaint or of furnishing any proof. Finally the applicant requests the Court, The board fixed criteria for marking the in accordance with Article 45 (3) of the tests and applied them strictly to the

Moreover, the defendant raises an objection to the applicant's claim that the On the question whether, by way of report of the Selection Board for "offsetting advantages", 11 marks were Competition No CJ 49/79 be produced, subtracted from the results of the can- on the ground that the relevant facts didates in Luxembourg for the omission have been made sufficiently clear by the of the title of the shorthand test, the board's memoranda addressed to the defendant's representative explained, at Director of Adminsitration. Furthermore, the Judge-Rapporteur's request, that it the minutes cannot be produced without was difficult for him to realize how, in revealing numerous facts concerning practice, the board had effected that persons who are strangers to the compensation. However, according to proceedings. the explanations given to the administration, in particular in the board's memorandum of 24 November Finally, the applicant's request to be 1981 to the Director of Administration, appointed to a post as shorthand-typist the board proceded as follows: in Career Bracket C 3 - C 2 with retro- active effect is clearly beyond the Court's jurisdiction to decide on" legality. "The assessments set out in the report take into consideration the fact that the The defendant concludes that all the candidates who took the tests in Luxem- submissions advanced in the action are bourg did not have to take down the title unfounded. of the shorthand test (11 words), although they were allowed the same time as those in Brussels. The board did not penalize them for that omission, but C — Costs in order to ensure that the candidates were treated equally, irrespective of where they took the test, it corrected the The applicant requests that, in any event, test in its entirety more severely." costs be awarded against the defendant, whose "rather strange" attitude has given rise to the proceedings, whilst the The Advocate General delivered his applicant was not at fault. On the other Opinion at the sitting on 30 June 1983.

s The applicant obtained 19.5 marks out of 40 and therefore failed by half a mark to be entered on the list of suitable candidates for the competition for shorthand-typists (C 3 - C 2). Her name was therefore entered only on the reserve list of suitable candidates for appointment as typists (C 5 - C 4).

6 By letter of 27 January 1981, the administration of the Court notified the applicant that her name was entered on the reserve list resulting from the competition. It did not however specify whether she appeared on the list as a shorthand-typist or as a typist and, apparently, it did not give her any details concerning the result of her test.

DETTI v COURT OF JUSTICE

7 Following an offer made by telephone and confirmed by letter from the administration of 23 April 1981, the applicant was employed, from 1 July 1981, as a member of the temporary staff in Grade C 4, and, on 11 August 1981, following a vacancy notice, was appointed with effect from 1 August 1981, as a probationary official in Grade C 4, as a French-language typist.

8 By memorandum dated 19 July 1981, the applicant informed the Registrar that she contested the mark which had been given to her by the selection board and requested a reassessment of the shorthand test.

9 On 14 October 1981, the administration sent to the applicant a sup- plementary report drawn up by the board, dated 25 September 1981, explaining that the board had taken into account in the correction of the tests the conditions in which the shorthand test was conducted in Luxem- bourg and concluding that it was not in a position to alter the decision taken in respect of the applicant.

H According to the defendant, the action is inadmissible on three grounds. First, the applicant did not submit a complaint through official channels in respect of the application for the annulment of the selection board's decision, since her complaint of 5 November 1981 was directed against the appointing authority's decision of 11 August 1981 appointing her as a secretary/typist. Secondly, that complaint was out of time inasmuch as the applicant knew of the board's decision on 23 April 1981 at the latest, so that the period pre- scribed for submission of the complaint expired on 23 July 1981. Thirdly, by accepting unreservedly a post of typist in Grade C 4, the applicant conceded that the administration's view was correct.

is In reply to that objection, the applicant claims that by her complaint through official channels she also contested the selection board's decision, although only by implication, and that, in any event, there was a new element of fact which was brought to her notice only by the selection board's memorandum of 25 September 1981.

i6 As regards the first ground put forward by the defendant, it should be observed, in the first place, as the Court stated in its judgment of 14 June 1972 (Marcato v Commission Case 44/71 [1972] ECR 427), that a complaint directed against a decision of a selection board appears to be pointless, as the institution concerned has no authority to annul or amend the decisions of a selection board, and that therefore the only legal remedy open to those concerned by such a decision lies in a direct application to the Court.

20 For the same reasons, the argument that the applicant acquiesced in the result of the tests must be rejected.

2i It follows that the objection of inadmissibility must be dismissed.

Substance

22 In h e r application, the applicant puts forward three principal claims, first, the a n n u l m e n t of the decision of the Selection Board for Competition N o C J 4 9 / 7 9 , concerning the failure to enter her n a m e on the reserve list for the recruitment of secretary/shorthand-typists in C a r e e r Bracket C 3 - C 2 ; secondly, her appointment to a post in t h a t career bracket with effect from the date of her appointment as a secretary/typist in G r a d e C 4; thirdly the a n n u l m e n t of the decision rejecting her complaint.

23 In support of that claim, the applicant submits that the selection board's action in erroneously regarding as a mistake the omission of the title of the text dictated in the shorthand test in Luxembourg constituted a procedural irregularity; that decision represented a factual error rather than a value judgment. Thus the board infringed indent (e) of the second subparagraph of Article 1 (1) of Annex III to the Staff Regulations by marking that test more severely by way of Offsetting advantages'.

JUDGMENT OF 14. 7. 1983 — CASE 144/82

28 In view of the importance for the subsequent career of officials of re- cruitment by w a y of competition it must be ensured t h a t criteria for assessment which are objective and equal for all the candidates are strictly applied. It follows that the candidates in a competition are entitled t o expect that tests which take place simultaneously in different places are entirely identical a n d , in addition, they should receive formal and accurate infor- m a t i o n as to the result of the tests which they have taken.

DETTI v COURT OF JUSTICE

29 Where irregularities or errors have occurred in the course of a competition and cannot be rectified by a repetition of the tests, with the result that the only alternative is the application of a corrective factor in the assessment of the tests, that factor must be applied unequivocally and the person concerned is entitled to be informed of the criteria adopted.

30 In this instance, it is established that the tests organized in Brussels and Luxembourg were not entirely identical and that, in consequence, the board made compensatory adjustments in marking the scripts. The administration merely declared that the scripts of the candidates who took the test in Luxembourg were marked "more severely" than those in Brussels. It did not however explain what specific criteria were applied in the marking. In those circumstances, the Court cannot check whether objective criteria were applied or, in particular, whether the candidates were treated equally.

3i Moreover, the applicant was never formally notified of the actual result of her test, so that she was entitled to believe, especially in the light of the letter of the Director of Administration of the Court of 27 January 1981, that she had been successful also in the shorthand test.

On those grounds,

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

hereby:

1. Annuls the decision of the Selection Board for Competition No CJ 49/79 not to enter the applicants's name on the reserve list for future recruitment of secretary/shorthandrtypists in Grade C 3 - C 2 ;

2. Orders the Court of Justice to pay the costs.

Pescatore Due Bahlmann