C-159/82

JUDGMENT OF THE COURT ( THIRD CHAMBER ) 22 SEPTEMBER 1983

Angélique Verli-Wallace v Commission of the European Communities

(Official — Admission to a competition)

Case 159/82

Measures adopted by the institutions — Withdrawal — Conditions

The retroactive withdrawal of a legal rights or similar benefits is contrary to measure which has conferred individual the general principles of law.

1 — Language of the Case: French.

JUDGMENT OF 22. 9. 1983 — CASE 159/82

APPLICATION for annulment of the decision taken by the Selection Board for Competition COM / B / 328 to annul its own deemon admitting the applicant to the said competition and, so far as necessary, or the annulmen oftheTmplied rejection by the Comm.ssion of the applicant's complaint against the decision,

THE COURT (Third Chamber)

composed of: U. Everling, President of Chamber, Y. Galmot and C. Kakouris, Judges,

Advocate General: Sir Gordon Slynn Registrar: H . A. Rühi, Principal Administrator

13 July 1981 she stated in answer to a Legal studies at the National University question put to her by the chairman of of Athens are organized in such a way the selection board that she would be that at the end of the fourth year, in able to obtain in Greece a university contrast to the first to third years, degree at the end of 1981 at least on students do not have to take written condition that her employment left her examinations on the material covered time to prepare for the examinations. during the final year, but are auto­ matically, and without having to renew their enrolment as students, allowed to Following that meeting the chairman of present themselves during as many the selection board informed the ap­ sessions as they wish for the oral exam­ plicant on 28 August 1981 that the inations on the material covered duriig selection board had found that she did the four years' study for the degree. not satisfy the conditions for admission to the competition and that her ad­ mission must consequently be annulled. The substance of that meeting was 2. On 27 October 1981 the applicant confirmed by letter from the head of the lodged a complaint under Article 90 (2) Commission's recruitment division dated of the Staff Regulations against tiie 7 September 1981 containing the decision of the selection board annulling following passage: her admission to the competition. As she received no reply within the period pre­ scribed, she brought this action which was lodged at the Court Registry on " On learning during the oral tests for 26 May 1982. the competition to which you were invited that you would be in a position to finish your studies in October 1981 and thus to obtain a university degree, the selection board found that you were not entitled to enter the competition. II — Conclusions of the parties The notice of competition published in Official Journal C 24 of 4 February 1981 stated at paragraph III 2 (b) that ap­ plicants in their last year of a long course The applicant claims that the Court of study at university level were not should: allowed to compete. The selection board has therefore felt compelled to annul your admission to the competition." 1. Primarily:

III — Submissions and argu­ More particularly the applicant claims ments of the parties that the decision, of the selection board to admit her to the competition was taken in accordance with the conditions laid down in the notice of competition. 1. Admissibility In those circumstances the judgment of the Court of 22 March 1961 in Joined Cases 42 and 49/59 [1961] ECR 53 is The Commission accepts the admissibility relevant where it states "The retroactive of the application in so far as it is withdrawal of a legal measure which has directed against the decision of the conferred individual rights or similar selection board annulling the applicant's benefits is contrary to the general admission to the competition. It never­ principles of law." Withdrawal would theless contests admissibility in so far as have been unlawful even if the original the application is directed against the decision of the selection board had been implied rejection by the Commission of irregular, which the applicant denies. In the complaint. The case-law of the Court that respect the case-law of the Court shows that a purely confirmatory (Joined Cases 7/56 and 3 to 7/57 Algera decision to reject a complaint cannot be and Others v Common Assembly of the the subject of an action. ECSC [1957 and 1958] ECR 39) whilst accepting the principle that unlawful measures may be revoked, recognized The applicant on the other hand, while that unduly late withdrawal may con­ admitting that the implied rejection of stitute abuse of powers. her complaint in fact only confirms the

That is the position in the present case, power to amend its decision. The fact for the applicant fully and clearly filled that the letter of 7 September 1981 from in her form of application for the the administration uses the word "annul" competition in good faith so that the and not "withdraw" is irrelevant in view selection board, on reading it, could take of the case-law of the Court which has cognizance of her university education always refused to regard itself bound by and decide immediately whether or not what a measure is called or by its she could be admitted to the com­ external form. petition. In any event the admission could no longer be withdrawn after the applicant had prepared herself and taken part in all the written and oral tests for the competition, which she had moreover passed. Further the selection board had (b) Wrong assessment of the applicant's no power to "annul" its own measure university status since the principles of administrative law require the annulment to be pronounced by an authority other than the author of the measure. The applicant maintains in that respect that she has not been enrolled in the faculty since 1975 and was thus no longer in the final year of a long course of studies at university level when she The Commission objects that the applied to take part in the competition. applicant was admitted by mistake to Although she had taken part in several take part in the competition, contrary to examination sessions between 1975 and the conditions set out in the notice of 1981 and the university still recognized competition. In those circumstances the her as being entitled to take exam­ original decision of the selection board inations to obtain a final degree, was irregular and cannot thereby create nevertheless as a matter of fact it has any vested right or give rise to any been impossible for her since taking up legitimate expectation that it will not be her duties with the Commission in withdrawn. The Commission adds in the February 1981 to take the said exam­ alternative that even assuming that the inations. The notice of competition is not original decision to admit the applicant intended to exclude students who have had given her personal rights, its decided not to take the examinations or withdrawal was lawful since it had been who are unable to pass them. done within a reasonable period within the meaning of the case-law of the Court.

what the applicant contends the question applicant differed from that made on the is not what her chances of obtaining a occasion of the previous competition. degree may be. Moreover the applicant once again entered her name for the examinations subsequent to the oral tests for the competition at issue. A liberal interpretation of the objective conditions for admission to the com­ petition is all the more necessary since the Commission's recruitment policy is The Commission explains in this context inconsistent. A subsequent notice of its recruitment policy which is to recruit a competition organized by the within Category B officials who do not Commission to constitute a reserve for have university degrees and are not likely future recruitment of administrative as­ to get them within a short period. That sistants did not exclude applicants policy aims on the one hand to prevent possessing a university degree or in their any reduction in the chances of ap­ final year of a long course of university plicants who have only a secondary studies. school leaving certificate and further to avoid the problems relating to the career prospects of "over-qualified" officials. The Commission denies first of all that the applicant's argument based on her admission to a previous competition con­ (c) Wrong assessment of the objective stitutes a valid submission unless based conditions for admission to the on a breach of a provision of a regu­ competition lation or a general principle of law. In that respect it states that selection boards are fully independent and cannot be bound either by a stipulation laid down by the appointing authority or by an In this respect the applicant points out attitude adopted by another selection that she was previously entered on the board. list of suitable candidates for another competition the notice for which laid down the same conditions for admission as the competition at issue regarding applicants' university qualifications. The Further the argument that the statement Court recognized in its judgment of of the reasons on which the contested 5 April 1979 (Case 112/78 Kobor v decision is based is unsufficient must be Commission [1979] ECR 1573) that "it left out of discussion pursuant to Article cannot be accepted that the objective 42 (2) of the Rules of Procedure since it requirements for admission to the tests, was raised for the first time in the reply. which are formulated in identical terms, In any event that argument is without should be given a different interpretation foundation since the reason for ex­ from one competition to another . . . cluding the applicant from the unless the statement of the reasons on competition is clearly apparent from the which the decision is based clearly wording of the letter from the justifies such a difference of appraisal." administration of 7 September 1981 In this case the statement of the reasons which also explains the different on which the selection board's disputed treatment as compared with the view decision was based does not show the taken at the time by the selection board grounds on which the appraisal of the for the previous competition.

2 The notice announcing the said competition, organized by the Commission to constitute a reserve for the future recruitment of senior assistants (B 3/B 2) of Greek nationality mentioned, inter alia, that applications could not be accepted from persons who had a degree received after a long course (three years or more) of studies at university level or were in the final year of such a course.

JUDGMENT OF 22. 9. 1983 — CASE 159/82

3 The selection board for the competition had originally allowed the applicant to compete and she did in fact take part in all the tests for the competition. Her admission was however subsequently withdrawn on the ground that she had stated at the oral tests on 13 July 1981 that it was possible for her at least theoretically to obtain a university degree at the end of the year and in those circumstances the selection board took the view that she was in the final year of a long course of university studies within the meaning of the notice of competition.

4 On 27 October 1981 the applicant made a complaint under Article 90 (2) of the Staff Regulations against the decision of the selection board annulling her admission to the competition. Since she received no answer within the prescribed period she brought this action.

s It appears from the file that from 1968 the applicant successfully attended the first three years of legal studies at the University of Athens and that she was enrolled in the fourth and final year in 1974/75. Since then she has taken part in several examination sessions without however being enrolled in the faculty. Nevertheless to obtain a degree at the end of her studies she must still pass examinations in three main subjects.

10 In the special circumstances of this case the Court considers that the admission to the competition was lawful. The selection board was entitled to regard the applicant as not being in the final year of a long course of university studies within the meaning of the notice of competition. Although the university authorities still recognized her right to take her final exam­ inations without having to renew her enrolment in the faculty, it is nevertheless true that such a possibility was purely theoretical in view of the situation of the applicant who, as the selection board knew, had entered employment shortly before with the Commission and whose employment left her no real opportunity to finish her studies and to obtain a university degree within a short period.

1 1 It follows that the applicant's original admission to the competition could not be withdrawn so that the contested decision must be annulled.

12 Since the Commission is required to take the necessary measures to comply with this judgment, there is no need to arrive at a decision on the claim that the applicant's name should be included in the list of suitable candidates.

Costs

13 Under Article 69 (2) of the Rules of Procedure the unsuccessful party is to be ordered to pay the costs. Since the Commission has failed in the essential part of its submissions it must be ordered to pay the costs.

OPINION OF SIR GORDON SLYNN — CASE 159/82

Everling Galmot Kakouris

Delivered in open court in Luxembourg on 22 September 1983.

P. Heim U. Everling

Registrar President of the Third Chamber

OPINION OF ADVOCATE GENERAL SIR GORDON SLYNN DELIVERED ON 14 JULY 1983

My Lords, B 2 and B 3. The conditions of the competition stated that certain candi­ On the 4 February 1981 notice was given dates would be excluded, namely those of a competition for Assistants in Grades who possessed a diploma following a