C-257/83

J U D G M E N T OF T H E C O U R T (THIRD CHAMBER) 16 OCTOBER 1984 '

Calvin E. Williams v Court of Auditors of the European Communities

(Public service — Competition — Claim for the annulment of the decision appointing the successful candidate — Admission to the competition)

Case 257/83

1. Officials — Applications to the Court — Measure adversely affecting an official — Decision to appoint the successful candidate in a competition — Not a measure merely confirming the selection hoard's decision — Period for commencing proceedings — Point from which time runs (Staff Regulations, Arts 90 (2) and 91 (3))

2. Officials — Applications to the Court — Interest in bringing proceedings — Candidate in a competition — Application for annulment of another candidate's appointment — Admissibility (Staff Regulations, Arts 90 and 91)

APPLICATION for:

The annulment of the proceedings of Competition N o C C / A / 1 7 / 8 2 , in so far as they resulted in the selection of Mr Schwiering as the successful candidate;

The annulment of the decision appointing Mr Schwiering;

The annulment of the decision rejecting the applicant's complaint;

An order that the Court of Auditors take the necessary measures to comply with the judgment of the Court of Justice;

An order that the Court of Auditors pay the applicant the sum of LFR 500 000 as compensation for the damage sustained by him, such sum not to be payable in the event of the applicant's appointment to the post in question; and

JUDGMENT

Facts and Issues

The facts of the case, the course of of a duration at least equal to that the procedure, and the conclusions, necessary for the completion of submissions and arguments of the parties the full period of studies required may be summarized as follows: to obtain a recognized university- level diploma in one of the subjects referred to in paragraph (a); I — Facts and written p r o c e d u r e

2. Have professional experience of a 1. On 1 October 1982, the Court of minimum duration of six years at a Auditors decided to organize an internal responsible level in duties relevant to competition (Competition No C C / A / the nature of the post. Credit shall be 17/82) to fill a post for a principal given for professional experience administrator in Career Bracket A 5/A 4 gained after the award of a university responsible for carrying out advisory degree. In the case of a candidate duties relating to internal administration without a university degree, the six and budgetary matters. years' experience must be additional to the professional experience required to compensate for the 2. The notice of competition provides in absence of a degree . . . " . paragraph III:

"In order to be admitted to the 3. Summary of the events following the competition, candidates must publication of the notice of competition:

name appeared in first place, as the for which the competition was organized applicant, who was placed second, had should have been assigned to him. predicted. On 5 September 1983, the appointing authority dismissed that complaint on the On 17 December 1982, the Court of ground that, as the appointing authority, Auditors decided to appoint the suc- it was not competent either to inquire cessful candidate, Mr Schwiering. into the merits of the selection board's decision to admit Mr Schwiering to the competition or to assess the results of a The decision was blocked, however, by selection board's deliberations. the Financial Controller's refusal of approval dated 5 January 1983. The reason given for the refusal was that Mr Mr Williams thereupon brought this Schwiering did not meet the require- action, which was filed at the Court ments of the notice of competition, Registry on 18 November 1983, against regarding diplomas and professional the Court of Auditors. experience, for admission to the tests.

Nevertheless, the decision to appoint Mr II — W r i t t e n procedure and Schwiering was confirmed by the Court c o n c l u s i o n s of t h e p a r t i e s of Auditors on 1 February 1983.

The Financial Controller again withheld A — The applicant claims that the his approval on 28 February 1983. Court should:

Finally, on 24 March 1983, the Court " 1 . Order the Court of Auditors to lay of Auditors decided to overrule the before the Court of Justice the Financial Controller's refusal of approval selection board's report or reports and the record of the Court of and confirmed Mr Schwiering's ap- Auditors' deliberations on the pointment as a probationary official in overruling of the Financial Con- Grade-A 5. troller's refusal of approval;

6. Refer the case to the appointing A — Admissibility of the application authority of the Court of Auditors to implement the judgment to be given on this application; 1. The Court of Auditors objects that the application is inadmissible on two , grounds 7. Order the defendant to pay the costs in their entirety; (a) The application is out of time 8. Award the applicant ex aequo et bono compensation for non-material The Court of Auditors takes the view damage and the sum of LFR 500 000 that it is clear from the very wording of for material damage, such sum not the part of the application setting out its to be payable in the event of the purpose that it is directed, not against a applicant's appointment to the post decision of the appointing authority, but in question." in fact against the selection board's decision. Consequently, the period for B — The Court of Auditors contends lodging the application began to run that the Court should : from the date of publication of the list of suitable candidates, that is, from 8 December 1982; the application is " 1 . Declare the application inadmissible therefore out of time. and unfounded; (The application is out of time whether it 2. In the alternative, if the Court is based on the second paragraph of should declare it admissible, declare Article 173 of the EEC Treaty, since the it unfounded; action was brought eleven months and ten days after that date and the time- 3. Declare the part of the application limit of two months was clearly relating to the award of damages exceeded; or on Articles 90 and 91 unfounded; of the Staff Regulations, since the applicant's prior complaint was submitted 4. Order the applicant to pay the to the appointing authority nearly five costs." months after the date of publication of the list of suitable candidates, that is, after the expiry of the period of three Upon hearing the report of the Judge- months prescribed by Article 90 (2).) Rapporteur and the views of the Advocate General, the Court decided to The Court of Auditors maintains that open the oral procedure without any Mr Schwiering's appointment was merely preparatory inquiry. However, it re- the automatic consequence of the pub-

lication of the list of suitable candidates The Court of Auditors adds that the on 8 December 1982. As such, it was purpose of the application "is not to purely a confirmatory measure devoid of ensure compliance with the law but to independent legal consequences and pursue a personal interest, namely to incapable of adversely affecting any achieve promotion by means of a court official. That measure did not entitle the action." applicant "to renew without justification the time-limit for instituting pro- ceedings." 2. Mr Williams contends that on the contrary his application is wholly admissible (b) The applicant has no interest in bringing the proceedings (a) It is not out of time, because the date from which the time for bringing this action begins to run is not 8 December 1982, the date on which the The Court of Auditors submits that if the list of suitable candidates, which does purpose of the application is to have the not constitute a decision, was published, proceedings of the competition annulled, but 24 March 1983. Until that date, the applicant has no interest in bringing when Mr Schwiering's appointment was the proceedings, since the only possible finally confirmed by the Court of consequence of success in his application Auditors, the applicant had suffered no would be the annulment of the com- adverse effect and could legitimately petition procedure in its entirety, in view expect to be appointed to the post to be of the fact that such a procedure forms filled himself, and did not have the an indivisible whole. evidence required to prove that Mr Schwiering did not meet the conditions for admission to the disputed com- It also argues that in so far as the petition. application contests the legality of the proceedings of the competition at issue, it can only bring about the annulment (b) The applicant also submits that of the whole of the proceedings of the his application calls essentially for competition, which are indivisible. In the annulment of Mr Schwiering's consequence, the applicant has no appointment, and" "he' refers to the interest in bringing the proceedings. case-law of the Court of Justice to the effect that the various acts which make up the recruitment procedure form a Further, it takes the view that if the whole, and that in the case of an action purpose of the application is to have Mr contesting the final stages in such a Schwiering's appointment annulled, and procedure the applicant may rely upon having regard to the fact that the Court the illegality of previous acts with which of Auditors has no jurisdiction either to they have a close connection. make appointments, which fall within the sole competence of the appointing authority, or to give the latter in- (c) Finally, his interest in bringing the structions to that effect, the applicant has proceedings is clear, for if the terms of no interest in bringing the proceedings the notice of competition had been because in any event "he will not be observed he would have been the suc- appointed in Mr Schwiering's place". cessful candidate in the competition.

It is common ground that Mr Schwiering was unable to show that he held a university degree at the date of the tests (b) The Court of Auditors, in its in the competition but had merely been principal submission, takes the view that eligible to take the first State exami- it was not competent to assess the nation after attending university courses propriety of the selection board's in the Federal Republic of Germany for deliberations. It therefore submits that five terms. point to the discretion of the Court. However, "as an additional infor- mation", it states that it endorses the selection board's decision as regards Consequently, by virtue of the afore- Mr Schwiering's submission to the mentioned provisions of paragraph III competition, on the following grounds: (1) (b) and (2) of the notice of competition, he was required to establish that he had, on the one hand, equivalent professional experience (of a duration of Initially, the Court of Auditors took the at least four years, the same period as view that Mr Schwiering was eligible to that necessary to obtain the first State take the "first State examination", examination), and, on the other hand, having received a four-year university professional experience of a minimum education, and was thus able to establish duration of six years at a responsible that he had high-level professional level in an occupation relevant to the experience of more than 10 years by nature of the post. Thus 10 years' taking into account, in addition to the experience was required in all. aforementioned eight years and eleven months of professional experience, which must be regarded as Category A service, the years spent in university studies, even However, the sum total of the experience though no degree was awarded for them. that Mr Schwiering could show he had Thus, in its decision of 24 March 1983 came only to eight years and eleven overruling the Financial Controller's months: three years and eleven months refusal of approval, the Court of as a personal assistant to a Member of Auditors relied on the reasoning that "in

that the questions set gave a clear 2. The submission alleging that the advantage to a candidate "selected in organization of the tests in the advance"; .;. competition disclosed a failure to observe the principle of equal treatment of candidates that the competition was "prearranged", as is evidenced by the documents lodged with the notary and included in the Court file; (a) The applicant maintains that the questions set in the written tests were that the appointing authority maintained deliberately chosen so as to favour the its decision in spite of the Financial successful candidate. Thus certain tests Controller's two successive refusals of allowed Mr Schwiering to take ad- approvals; vantage of his personal experience. that Mr Schwiering was a subject of favouritism and support in high places at (b) The Court of Auditors relies chiefly the Court of Auditors; on the argument that the appointing authority is not entitled to interfere in that Mr Williams is persona non grata the administration of the tests in the with the appointing authority, parti- competition, which falls within the sole cularly after the judgment of the Court competence of the selection board. of Justice of 6 October 1982.

WILLIAMS v COURT OF AUDITORS

Was it that in addition to the eight years On the other hand, the selection board and eleven months' professional ex- decided that Mr Schwiering had pro- perience proper, credit was given for a fessional experience equivalent to uni- period of university study even though it versity studies of at least 48 months, was not attested by a diploma, so that in addition to six years' professional Mr Schwiering was regarded as having experience at a responsible level.

JUDGMENT OF 16. 10. 1984 — CASE 257/83

WILLIAMS v COURT OF AUDITORS

Against that background, selection competitions organized by the Court of boards have found it necessary to take Auditors. uncompleted studies into account as one factor in the assessment of some candi- ' 3. As requested by the Court of Justice, the dates' ability to carry out duties in a Court of Auditors has laid before it: higher category than that to which their university education alone would have given them access, where those The file of the competition, complete; incomplete studies were complemented The record of the Court of Auditors' by professional experience giving further deliberations on the basis of which it evidence of such candidates' endeavours adopted its Decision N o 2583 of 24 to obtain qualifications. Even though March 1983; that practice has been adopted most frequently in the recruitment of auditors, Decision N o 81-5 of the Court of it would have been contrary to the Auditors of 3 December 1981, to which principle of equal treatment not to have the Financial Controller's two refusals of followed it when, as in this case, an approval refer. administrative post was to be filled, particularly as auditors may take part in those competitions, for reasons of staff V — Oral procedure mobility. By way of illustration, the Court of At the sitting on 21 June 1984, Calvin Auditors lists five cases in which E. Williams, represented by Victor Biel, incomplete studies were taken into of the Luxembourg Bar, and the Court account in order to establish the of Auditors, represented by J.-A. Stoll, eligibility of candidates precisely where acting as Agent, and L. Defalque, avocat, their professional experience was in- presented oral argument. sufficient. The Advocate General delivered his It concludes that this is a long- opinion at the sitting on 27 September established practice of selection boards in 1984.

4 However, that decision was blocked by the Financial Controller's refusal of approval on 5 January 1983. The reason given for the refusal was that Mr Schwiering did not satisfy the requirements relating to diplomas and professional experience laid down for admission to the tests by the notice of competition.

s Nevertheless, the decision to appoint Mr Schwiering was confirmed by the Court of Auditors on 1 February 1983. The Financial Controller again withheld his approval on 28 February 1983. On 24 March 1983, the Court of Auditors decided to overrule the Financial Controller's refusal of approval and-confirmed-the appointment of--Mr-Schwiering-as..a_probationary;official in Grade A 5, on the ground that Mr Schwiering fully satisfied the requirements of the notice of competition in respect of professional experience.

6 On 5 May 1983, the applicant lodged a complaint under Article 90 (2) of the Staff Regulations asking for the annulment of Mr Schwiering's appointment on two grounds, namely that Mr Schwiering did not meet the requirements laid down by the notice of competition, and that he had been given an unfair advantage by the questions set by the selection board. Mr Williams concluded that he was the best-placed eligible candidate on the list and that the post to be filled by means of the competition should have been awarded to him.

WILLIAMS v COURT OF AUDITORS

7 On 5 September 1983, the appointing authority dismissed his complaint on the ground that it was not competent either to inquire into the merits of the selection board's decision to admit Mr Schwiering to the competition or to assess the results of a selection board's deliberations. .

io That argument must be rejected. First, it is clear from the terms of the application that it seeks the annulment of the decision appointing Mr Schwiering. However, the earliest possible date for the decision finally appointing Mr Schwiering was 1 February 1983, so that, in view of the fact that the Court of Auditors neither established nor even alleged that Mr Williams had knowledge of that decision before 5 February 1983, his

JUDGMENT OF 16. 10. 1984 — CASE 257/83

complaint against the appointment was lodged within the period prescribed by Article 90 (2) of the Staff Regulations, just as this action was brought within the period laid down by Article 91 (3) of the Staff Regulations. Secondly, the decision appointing Mr Schwiering concluded the competition procedure, produced legal consequences and cannot be regarded as merely confirming the selection board's decision establishing the list of suitable cand­ idates. In the circumstances, the heads of claim contesting the appointment of Mr Schwiering cannot be regarded as being out of time.

n The Court of Auditors' second argument is that the application is inadmissible on the ground that the applicant has no interest in bringing the proceedings. That objection of inadmissibility must likewise be rejected. As the Court has repeatedly held, a candidate in a competition may bring an action contesting a decision appointing another candidate to the post to be filled (see the judgments in Case 11/65 Morina w European Parliament [1965] ECR 1017; Case 21/70 Rittwegerv Commission [1971] E C R 7; Case 252/81 Macevičius v European Parliament [1983] ECR 867).

T h e first s u b m i s s i o n

H The applicant maintains that Mr Schwiering did not meet the requirements laid down by the notice of competition relating to the possession of a university degree and proof of professional experience.

is Paragraph III of the notice of competition provides:

"In order to be admitted to the competition, candidates must

1. (a) Have received a university education attested by a recognized degree or diploma in one or more of the following subjects: law, political science, finance, economics, accountancy, business studies, ad- ministration; or (b) Have proven equivalent professional experience. Equivalent prof- essional experience shall be defined as experience acquired in a full- time occupation normally requiring a university degree and of a duration at least equal to that necessary for the completion of the full period of studies required to obtain a recognized univesity-level diploma in one of the subjects referred to in paragraph (a);

2. Have professional experience of a minimum duration of six years at a responsible level in duties relevant to the nature of the post. Credit shall be given for professional experience gained after the award of a university degree. In the case of a candidate without a university degree, the six years' experience must be additional to the professional experience required to compensate for the absence of a degree . . .".

is Those grounds were that Mr Schwiering was able to establish that he had high-level professional experience of more than 10 years, by taking the eight years and eleven months' professional experience mentioned above together with the 27 months of university studies with no degree.

i9 For that purpose the selection board treated the successfully completed stages of Mr Schwiering's law course as part of the professional experience required, on the grounds, first, that "if, instead of taking up a course of study, Mr Schwiering had immediately started work, there would have been no difficulty in his being given credit for equivalent experience in accordance with the Court of Auditors' practice in its assessment of all the staff recruited before that date", and, secondly, that "a higher education attested by good intermediate results constitutes an activity which is at least as equivalent to graduate-level as the exercise of a profession in which high-level work is more difficult to establish."

20 That argument cannot be accepted. Paragraph III (1) of the notice of competition draws a clear distinction between a-university- education-attested by a recognized degree or diploma, on the one hand, and equivalent prof- essional experience on the other. That being the case, it cannot be said that a period of university study not attested by a recognized diploma may be credited as a period of equivalent professional experience. Furthermore, such an interpretation would be directly contrary to the requirement laid down in paragraph III (1) (b) of the notice of competition, which permits only an "occupation normally requiring a university degree" to be treated as equivalent professional experience, which is not the case in this instance.

24 It follows from the aforegoing that the decision appointing M r Schwiering must, as a consequence of its a n n u l m e n t , be treated as if it h a d never been t a k e n and that the C o u r t of Auditors m a y n o t re-appoint him o n the basis of the results of the contested competition.

25 The applicant has thus obtained full satisfaction. Accordingly, the above- mentioned claims are no longer necessary and require no decision on their merits, nor is it necessary for the Court to rule on the objection by the Court of Auditors that those claims are inadmissible.

T h e claim for c o m p e n s a t i o n

26 The applicant's claim for damages was submitted solely in the alternative, in the event that he should not be appointed to the post in question as a consequence of the Court's judgment. In his reply he states that "he does not press the claim for damages, which he submits to the discretion of the Court".

JUDGMENT OF 16. 10. 1984 — CASE 257/83

27 The Court of Auditors takes the view that the applicant cannot point to any real and present adverse effect actually suffered by him, and that in any event he could not gain an automatic right to appointment merely by being placed at the head of the list of suitable candidates.

1. Annuls the decisions of the Court of Auditors of 24 March 1983, appointing Mr Schwiering pursuant to the proceedings of Competition No CC/A/17/82, and of 5 September 1983, rejecting Mr Williams' complaint;

2. Declares that it is unnecessary to give a decision upon the applicant's claim for the partial annulment of the proceedings of the competition;

WILLIAMS v COURT OF AUDITORS

3. Dismisses the remainder of the application;

4. Orders the defendant to pay the costs.

Kakouris Everling Galmot