C-39/83

J U D G M E N T O F T H E C O U R T (THIRD CHAMBER) 9 FEBRUARY 1984 »

Cornells Henrick Fabius ν Commission of the European Communities

(Official — Non-admission to oral tests in an open competition)

Case 39/83

Officials — Recruitment — Competition — Organization — Rules and conditions — Determination — Discretion of the administration

The appointing authority enjoys a wide conditions under which a competition is discretion in deciding upon the criteria organized in the light of those criteria of ability required for the posts to be and in the interests of the service. filled and in determining the rules and

A P P L I C A T I O N for the a n n u l m e n t of the Commission's decision dated 22 D e c e m b e r 1982 confirming t h a t the applicant was n o t eligible to take the oral test for O p e n Competition N o C O M / A / 3 2 5 ,

T H E C O U R T (Third C h a m b e r )

composed of: Y. G a l m o t , President of Chamber, U . Everling and C. K a k o u r i s , Judges,

Advocate G e n e r a l : Sir G o r d o n Slynn Registrar: J. A. P o m p e , D e p u t y Registrar

gives the following

JUDGMENT

(a) Comprehension and reasoning In fact he had obtained 13.82 out of 40 test to assess the candidate's marks in the first test (“Comprehension aptitude for administrative, ad­ and reasoning”), whereas the pass mark visory and supervisory duties; was 20. this test will not require any specific academic knowledge By contrast, Mr Fabius had obtained 46 (time allowed: 2 hours). marks out of 60 in the second test. (b) Test to assess the candidate's general aptitude for work in an In a letter dated 18 November 1982, the international organization. This applicant requested the Commission test may take the form of a case- to reconsider his case, arguing, in par­ study (time allowed: 3 hours). ticular, that he thought it unreasonable to attach so much importance to the test of “comprehension and reasoning” for 2. Marking of written tests success in the examination. Test 1 (a) out of 40. That request was rejected, in a decision Test 1 (b) out of 60. dated 22 December 1982, by the Head of the Commission's Recruitment Divi­ sion, who pointed out to the applicant Candidates who obtain less than 20 marks for Test 1 (a) or less than 30 that his complaints were directed not so marks for Test 1 (b) will not be much against the selection board's considered. decision as against the general provisions relating to the competition, which had been accepted by both the candidate and 3. Admission to oral test the selection board.

(a) annul the Commission's decision 2. Order the Commission to reconsider confirming that the applicant was the applicant's suitability to take part ineligible to take the oral test for in the competition. Open Competition N o COM/A/ 325, which was notified to him by the Head of the Recruitment After considering the Commission's Division in a letter dated 22 De­ defence, from which it appears to the cember 1982; applicant that the Commission regards its letter dated 16 March 1983 purely as a confirmation of the decision of 22 (b) order the Commission, within a December 1982, the applicant expressly period of three months from the declares, in his reply registered on 19 date of the Courťs judgment, to May 1983, that he withdraws his sup­ undertake a thorough inquiry into plementary application for the sake of the applicant's suitability or at least the efficient use of legal procedure. give the applicant an opportunity to take part in a subsequent open Finally, in an application for the competition for the recruitment of adoption of an interim measure lodged administrators in Grades 7 and 6 of at the Court Registry on 20 April 1983, Category A, regardless of the age- the applicant claimed that the President limit to be fixed in the notice of of the Court should : competition, subject always to the principles laid down by the Court; "Order the Commission, as an interim measure, to authorize the applicant to (c) order the defendant to pay the costs. take part in the remainder of Open Competition N o COM/A/325 until judgment has been given on the substance of the case, or, at least, to The Commission contends that the order the Commission, as an interim Court should: measure, to instruct the Selection Board for Open Competition N o COM/A/325 to authorize the applicant to take part in the remainder of Open Competition N o (a) declare the application unfounded COM/A/325 until judgment has been and consequently dismiss it; given on the substance of the case, subject to the proviso that if the applicant is successful in the oral test, his (b) order the applicant to pay the costs. name is to be included in the reserve list

1. The applicant In that letter, Mr Fabius laid particular stress on the fact that in order to have taken the second written test and The applicant makes a single submission against the decision at issue, relating to a obtained the sort of mark that was breach of the principles of equity and awarded to him, he must necessarily "due care". have been adept at "comprehension and reasoning", and that that could not be determined by an intelligence test alone. Mr Fabius presents three arguments in support of this submission. H e complains that the Commission has attached The applicant submits in conclusion that decisive importance to a single criterion the decision at issue is contrary to equity of assessment, that it has given decisive and the principle of "due care", because importance to an evaluative test which is decisive importance was automatically not sufficiently reliable and, lastly, that it attached to the only criterion of assess­ has refused to arrange a fresh test for ment provided, without any allowance him. being made for the possibility of a more thorough test on special grounds. (a) The allegation that the Commission has attached decisive importance to a single criterion of assessment (b) The allegation that the Commission attached decisive importance to an insufficiently reliable test The applicant submits that he has not been permitted to take part in the next stage of the competition solely on the The applicant maintains that the disputed ground that the marks which he obtained decision is contrary to the principle in the test of comprehension and of "due care" inasmuch as decisive reasoning were insufficient, whereas his importance has been given to a test

which is not sufficiently reliable to (c) The allegation that the Commission govern the admission of candidates. wrongly refused to arrange a new test for the applicant In support of this point he submits a letter dated 26 November 1982 from the Mr Fabius maintains that the contested Rijks Psychologische Dienst [National decision is contrary to the principle of Psychology Department] of the Nether- "due care" inasmuch as the Commission lands, which shows, on the one hand, refused to undertake a more thorough that intelligence tests cannot be inquiry into his capacities when it was considered a sufficiently reliable criterion informed of the fully-documented of assessment, in particular because an complaints which he submitted in his individual's performance in examination letter of 28 November 1982. conditions may be considerably worse than it would be in other conditions, and, on the other hand, that the The Commission never expressed a view National Psychology Department once on the validity of the applicant's came to an unfavourable opinion regard- reasoning, either in the exchange of ing the recruitment of the applicant in its correspondence mentioned above, or in national administration, and in spite of its defence. that his work has been found wholly satisfactory. (d) In addition, the candidate offers evidence : The applicant also submits letters from the Ministry of Foreign Affairs and from the Ministry of the Interior of the that his present employer (Ministry Kingdom of the Netherlands, which of Transport, Water Control and show that the assessments of psycho- Construction) is satisfied with his logists have no conclusive importance work, as was his previous employer and that selection procedures based on (Ministry of Foreign Affairs) ; them are considered with a certain amount of disquiet. that there are differences of opinion between the Commission and the Netherlands authorities with regard The applicant adds that in the to the selection criteria for recruit- Netherlands intelligence tests have not in ment applied by the Commission. the last few years been generally accorded such absolute value in re- cruitment for government service. (e) Finally, the applicant argues that he has a special concern in bringing Finally, he argues that in the assessment proceedings. of intelligence tests the findings of the Commission differ from results recorded in the Netherlands, which has therefore Since he is now 32 years of age, he can insisted that the procedure for recruit- no longer comply with the age-limit laid ment and selection should be changed. down for candidates wishing to take part in subsequent competitions.

should, within a period of three months (b) The argument that decisive import­ following the judgment, undertake a ance was attached to an evaluative more thorough inquiry into his suitability test which was not sufficiently and that it should at least give him a reliable fresh opportunity to take part in a sub­ sequent open competition, subject always to the principles laid down by the Court. The Commission points out that the test entitled "Comprehension and reasoning" itself contained a number of questions (it consisted partly of a multi-choice test 2. The Commission and partly of a constructive interpolation test), that the pass mark for that test was not very high and that the Commission has long relied on the "battery of tests" (a) The argument relating to the decisive used in Competition No COM/A/325. importance attached to a single criterion of assessment The Commission also considers that the documents submitted by the applicant in The Commission recalls that, according this connection have no relevance for to the case-law of the Court, it has wide this case, since the individuals or organ­ discretionary powers in laying down all izations which produced them could the rules governing competition (Case not have had enough information on 90/74) Deboeck ν Commission [1975] the subject of the comprehension and ECR 1123; Case 178/78 Szemerey ν reasoning test in Competition No C O M / Commission [1979] ECR 2855). A/325, which moreover must not be assumed to be a psychological/technical test as the writers of the documents produced seem to suppose. Since the disputed provision in the notice of competition was clearly laid down in the interests of the service, the defendant The Commission adds, in the alternative, did not exceed the limits of its discretion. that the documents produced by the applicant do not bear the construction that he places on them. The Commission observes that the selection board complied with the rules laid down for the organization of the Finally, the Commission considers that in competition, so that no complaint can be any event it enjoys a discretion as levelled against it. regards the choice of tests and the way in which the answers are to be marked.

2 The competition at issue was an open competition based on qualifications and tests to constitute a reserve of administrators in the career bracket covering Grades 7 and 6 of Category A.

3 The notice of competition, published in the Official Journal of the European Communities dated 12 September 1981, provided as follows in Section V, entitled "Written Tests — Admission to Oral Tests" :

" 1 . Nature of written tests

(a) Comprehension and reasoning test to assess the candidate's aptitude for administrative, advisory and supervisory duties; this test will not require any specific academic knowledge (time allowed: 2 hours).

FABIUS ν COMMISSION

(b) Test to assess the candidate's general aptitude for work in an inter­ national organization. This test may take the form of a case-study (time allowed: 3 hours).

JUDGMENT OF 9. 2. 1984 — CASE 39/83

evaluative test which was not sufficiently reliable, and finally, that it has refused to arrange a fresh test for him.

7 It should be recalled that as the Court has already decided in a number of cases (Case 90/74 F Deboeck ν Commission [1975] ECR 1123; Case 67/81 M. H. Ruske ν Commission [1982] ECR 661), the appointing authority enjoys a wide discretion in deciding upon the criteria of ability required for the posts to be filled and in determining the rules and conditions under which the competitions are organized in the light of those criteria and in the interests of the service.

8 In this case it appears that the Commission, by providing, in a notice of competition for the recruitment of officials in Category A for administrative, advisory and supervisory duties, that there should be a test for comprehension and reasoning to assess the suitability of candidates for those different kinds of work, and by allotting a pass mark of 20 out of 40 for that test, did not exceed the discretion conferred upon it and did not infringe any general principle of law

9 In those circumstances, the applicant's arguments based on the good marks which he obtained in the second written test, on the general satisfaction with his work in his country of origin and on the limited value attached to such tests by certain authorities there, do not affect the legality of the contested decision.

10 Accordingly, the selection board, and subsequently the appointing authority, were justified in refusing to admit the applicant to the oral tests for the competition and later to arrange a fresh test for him.

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

hereby:

1. Dismisses the application;

2. Orders the parties to bear their own costs.

Galmot Everling Kakouris

Delivered in open court in Luxembourg on 9 February 1984.