C-161/87
ECLI:EU:C:1988:139
- Súd
- Súdny dvor Európskej únie
- IČS
- 61987CC0161
- Zdroj
- eur-lex.europa.eu ↗
MUYSERS AND TULP v COURT OF AUDITORS
OPINION OF MR ADVOCATE GENERAL LENZ delivered on 8 March 1988 *
Mr President, tungsdiplom (diploma in administration) Members of the Court, was not sufficient to grant him access to Category A (therefore the requirement set out in point IV. 1 (a) of the notice of competition had not been satisfied).
A — Facts
3. Since the Head of the Personnel Division of the Court of Auditors expressed the view to the Chairman of the Selection Board that 1. The proceedings on which I am now to it was not correct to reject several give my opinion relate to an internal compe candidates, all applicants were given the tition (No CC / A / 8 / 85 ) published in June opportunity to submit, no later than 30 1985. Since that competition has already September 1985, any additional obser been the subject of Cases 321, 322 and vations. However, after that had been done 323/85 and 417/85, 1 I can confine my the Selection Board still maintained its description of the facts to a few significant original assessment and on 28 October 1985 points. confirmed its decisions of 2 August 1985 rejecting the candidates, even though the Appointing Authority informed the Chairman of the Selection Board in a letter dated 4 October 1985 how a number of conditions for admission to the competition 2. The competition was organized in order should, in its view, be applied (as regards to fill a post in career bracket A 7/A 6. the assessment of candidates' knowledge of There were applications from 14 persons, languages and the possibility of producing including the applicants in these original documents or certified copies at a proceedings. The Selection Board did not later stage). see fit to admit any of them to the written tests. The reasons for this were notified to the applicants in these proceedings in a communication dated 2 August 1985; Mr Muysers was informed that his professional experience was not relevant to the duties 4. The Appointing Authority considered attaching to the vacant post (and hence the that the Selection Board's overall assessment requirement laid down in point IV.2 of the was unjustified (as a result of which it was notice of competition had not been subsequently to state that several candidates' satisfied), and Mr Tülp that his Verwal applications — namely those in Cases 321, and Joined Cases 322 and 323/85 — were * Translated from the German. well founded) and therefore, on 30 October 1 — See the judgment of 23 October 1986 in Case 321/85 1985, it informed all the candidates that the Schwiering v Court of Auditors [1986] ECR 3199, the judgment of 23 October 1986 in Joined Cases 322 and competition procedure had been suspended 323/85 Hoyer and Others v Court of Auditors [1986] ECR 'en attente d'éventuels recours' (pending the 3215, and the judgment of 4 February 1987 in Case 417/85 Maurissen v Court of Auditors [1987] ECR 551. possible institution of Court proceedings).
OPINION OF MR LENZ —CASE 161/87
On that date the President of the Court of was resumed, although it was confined to Auditors, in answer to an enquiry from a the four candidates who had been successful number of candidates regarding the running in the proceedings before the Court. Since of the period for bringing an action, stated two members of the Board wished to be that the Court of Justice would decide of its released from their duties, they were at that own motion whether the time-limits had juncture replaced by two new members. been complied with, that an opinion expressed by the Appointing Authority would therefore constitute, at best, no more than the provision of information, and that a complaint directed against a decision of a Selection Board appeared to be pointless as 8. When the applicants in the present the institution concerned had no authority proceedings learned of those events, they to annul or amend the decisions of a submitted a request on 31 March 1987 to Selection Board. the President of the Court of Auditors to the effect that their candidatures should also be considered in the resumed competition 5. Nevertheless on 30 October 1985 Mr procedure. That request was rejected by a Muysers lodged a complaint against the letter of the President of the Court of decision refusing to allow him to take part Auditors dated 29 April 1987, on the in the competition, although, admittedly, he ground that the Selection Board's decisions did not pursue it any further. of 28 October 1985 were no longer open to challenge and the judgments in the three cases referred to above could not be regarded as new facts since they were 6. In contrast, four other candidates (not concerned with different points at issue in Mr Tülp) brought actions before the Court connection with the competition procedure of Justice in the proceedings referred to from those affecting the applicants in this earlier. What is more they were successful: case. the decisions refusing to admit them to the written tests were annulled, on the grounds that the Selection Board refused to allow originals or certified copies of documents to be produced to supplement the application (judgment of 23 October 1986 in Case 321/85), that the Board based itself, as to 9. Since matters remained in that state even the candidates' knowledge of French, only after the lodging of a complaint, 2on 1 June on the candidate's subjective data (judgment 1987 the applicants brought an action of 23 October 1986 in Joined Cases 322 and before the Court for the annulment of the 323/85), and that the Board disallowed the rejection of their candidatures. production of further documents enabling it to be determined that the candidate had equivalent professional experience within the meaning of point IV. 1 (b) of the notice of competition (Judgment of 4 February 1987 in Case 417/85). 10. I would further mention that the applicants also brought an application for the suspension of the competition procedure. However, that application was 7. Consequently — as a result, it seems, of a decision of the Appointing Authority of 30 2 — See the decision of 26 May 1987 relating to the complaint March 1987 — the competition procedure of 14 May 1987.
MUYSERS AND TÜLP v COURT OF AUDITORS
dismissed by order of 3 June 1987 of the justified on account of new facts. The President of the Second Chamber (who judgments in the three cases referred to can reserved the order as to costs for the by no means be regarded as new facts, since judgment in the main action). Lastly, it they relate to other facts (requirements set should also be observed that the Court was out in other points of the notice of compe informed in the oral proceedings that the tition); moreover, the Court of Auditors competition has since been brought to a expressly stated with regard to two of the conclusion and the applicant in Case applicants — but not with regard to the 321/85, who came out at the head of the applicants in this case — that the Selection reserve list, has been appointed to the Board's assessment was unjustified. vacant post.
13. In contrast, the applicants do not accept B — Opinion the view that their application is time-barred on account of their failure to bring an action before the Court within the prescribed period. In that regard, their representative argued in the oral My opinion with regard to this case is as proceedings primarily that the applicants follows. were not challenging a Selection Board decision of October 1985 but the Appointing Authority's decision of 30 March 1987 by which the competition 11. The crux of this dispute is plainly procedure was resumed while limiting its whether the action is admissible or whether scope to four candidates who had been it must be held to be inadmissible on successful in the aforementioned account of the failure to bring the question proceedings before the Court, and that in of the applicants' exclusion from the compe that connection it was relevant above all tition procedure before the Court that the complaints lodged by the applicants immediately after the Selection Board against the decision of 29 April 1987 were confirmed its initial decision rejecting their expressly rejected. candidatures (that is to say, after 28 October 1985).
14. It was further argued that time had not started running on 28 October 1985 since 12. The view taken by the Court of the Appointing Authority had informed all Auditors is clear from the description of the candidates on 30 October 1985 that the facts. It considers primarily that, in view of procedure had been suspended. As a result, the consistent case-law of the Court, the the Selection Board's decision refusing to requests made by the applicants on 31 allow the applicants to take part in the March 1987 to the President of the Court competition had been suspended and its of Auditors could not start time running operation had been declared to be again with regard to the matter decided by suspended. It was also relevant that the the decision of 28 October 1985, namely judgments in Case 321/85 and in Joined whether the applicants had been lawfully Cases 322 and 323/85 had declared the excluded from the written tests. Neither can whole competition procedure invalid and it be accepted that those requests were hence the decisions taken by the Selection
OPINION OF MR LENZ —CASE 161/87
Board could not be regarded as having any (the rejection of the plaintiffs' applications). validity. Its aim was solely the resumption of the competition procedure which had been interrupted by the decision of 30 October 1985. It was based, as far as the applicants 15. Lastly, it was argued that new facts admitted to the tests were concerned, simply within the meaning of the relevant case-law on the earlier decisions of the Selection had arisen justifying the applicants' request Board, where necessary in conjunction with of 31 March 1987. The appointment of a the Court judgments annulling those new Selection Board was in itself a new decisions. However, that decision certainly fact. The delivery of the judgment in Case did not constitute an actual determination 417/85 on 4 February 1987 was also to be as far as the applicants admitted in the regarded as a new fact, since what was held subsequent phase of the procedure were in that judgment was also relevant to the concerned and therefore in that regard applicants, that is to say that the refusal to could not constitute the basis for a new allow additional documents to be submitted right of action. Consequently, the showing that the applicants fulfilled the applicants' reference to the express rejection requirements of the notice of the compe of their complaint by decision of 26 May tition was unlawful. 1987 also fails, and it must not be over looked in that connection that their complaint was confined to an opinion 16. May I say forthwith that the view taken concerning the admissibility of the request by the Court of Auditors in this dispute of 31 March 1987 in which it was held, by appears to me to be much more convincing express reference to the validity of the than the applicants' arguments. decisions of 28 October 1985, that that request was inadmissible.
17. According to the main claim in the application, the subject of the proceedings is 19. Furthermore it cannot be claimed that the applicants' exclusion from the compe the Selection Board's decisions of tition referred to earlier. On a proper inter 28 October 1985 were invalidated by the pretation, the applicants were excluded by Appointing Authority's decision of 30 decisions of 2 August 1985 of the Selection October 1985 or by the aforementioned Board, which were confirmed on 28 judgments of the Court. October 1985. In principle, therefore, proceedings should have been initiated in time against those decisions, either by insti 20. It can certainly not be inferred from the tuting proceedings in the Court of Justice Appointing Authority's decision of 30 directly or by bringing an action in the October 1985 that the validity of all of the Court after first lodging a complaint; this, Selection Board's decisions were suspended. however, manifestly was not done. It was notified only that the competition procedure was suspended pending the institution of possible Court proceedings (in 18. In comparison, when seen in its proper order, moreover, to clear up the issues light the Appointing Authority's decision of which had emerged in connection 30 March 1987, on which the applicants are therewith). It was therefore made plain that now relying (and which, moreover, has not once the matters had been cleared up the been submitted to the Court), contributes competition procedure would be resumed nothing new which is conclusive as regards on the basis, in principle, of the stage the central question in these proceedings reached on 28 October 1985.
MUYSERS AND TULP v COURT OF AUDITORS
21. For their part, the judgments are plainly 23. Finally, neither can this case be said to confined to the decisions refusing to admit involve the only circumstances which, the applicants in those cases to the written according to the case-law, can justify going tests (this is made clear by the last back on the basis of a subsequent request to paragraph of each judgment — paragraph the content of a previous decision which 21 or 18, depending on the case). It can in was not challenged in time and requesting a no way be inferred from the judgments that review, that is to say the existence of new the whole competition procedure was held facts. 3 to be invalid. In particular, that cannot be inferred from paragraph 13 (or 14), which reads as follows:
24. The change in the composition of the Selection Board can certainly not be said to constitute the existence of new facts. In fact, that did not amount to the appointment of a new Selection Board as part of a new competition procedure (in the sense of 'It is for that reason that, where the paragraph 14 of the judgment in Joined Appointing Authority considers, as in this Cases 322 and 323/85). All that was case, that one or more of the Selection involved was the replacement of the Board's decisions refusing to admit Selection Board members initially appointed candidates to the competition are illegal and by the Administration who wished to be that as a result the whole competition is released from their duties following the invalidated, it cannot make an appointment. delivery of the aforementioned judgments. It is then under the duty to take formal note That appears in fact to raise no particular of that situation by means of a reasoned problems in the context of the resumed decision and recommence the whole compe competition procedure, in that it was clear tition procedure following publication of a even on 30 October 1985 that the procedure new notice and if necessary the appointment might be resumed when the Court had of a new Selection Board.' clarified certain points in dispute.
25. Neither can the judgments in Case 321/85 and Joined Cases 322 and 323/85 be said to constitute new facts. In that 22. Immediately afterwards it is stated that regard it is relevant on the one hand that an 'where the Appointing Authority has taken absolute duty to recommence the whole no such decision, it is for the Court, on the competition procedure cannot be inferred application of the parties concerned, to rule from the passage quoted earlier (which directly on the legality of the Selection begins 'it is for that reason that where the Board's decision'. However, this was Appointing Authority considers ... ' ). This precisely the position then; in other words, refers only to where the Appointing there was in fact no decision of the Authority takes a decision entailing the Appointing Authority holding the whole invalidation of the whole competition. That, competition to be invalid and hence the decisions of the Selection Board at issue in 3 — See the judgment of 15 May 1985 in Cise 127/84 Elly v those cases had to be annulled. Commission [1985] ECR 1437.
OPINION OF MR LENZ —CASE 161/87
however, did not occur and hence the that they fulfilled the requirements set out Court, as stated in the last sentence of that in the notice of competition. The only passage quoted from the judgment, had to matter at issue was the correct assessment of rule on the legality of the Selection Board's the information put forward by them (the decisions which were challenged before it. It standing of a Verwaltungsdiplom; is also material that the decided cases were employment with the Orient-Institut der concerned with matters which are of no deutschen morgenländischen Gesellschaft relevance to the applicants in these cases (I and with the Verband der deutschen Schiff would refer to the description I gave of bauindustrie). This is clear, moreover, also them in the opening part of the Opinion). from the complaint lodged by Mr Muysers on 30 October 1985 against the decision refusing to admit him to the tests, since in it he does not complain, for instance, that he was not permitted subsequently to submit further evidence that he had the relevant professional experience, but only that it had been decided with regard to his professional experience, which was known to the Selection Board, that it was not sufficiently relevant to the vacant post. 26. Neither does the judgment in Case 417 / 85 constitute a new fact. In that case, as has already been pointed out, the complaint was that the Selection Board refused to allow the production of additional documents (showing that the applicant had had equivalent professional experience for a sufficiently long period as stipulated in the notice of competition). Contrary to what the applicants' represen 27. Consequently, it is possible only to tative maintained in the oral proceedings, it follow the view taken by the Court of cannot be held that that sort of problem was Auditors and hold that the applicants' claims relevant to the applicants' case and that, must be dismissed as inadmissible because therefore, following the delivery of the they were brought before the Court too judgment in that case, it was necessary also late. to treat the applicants accordingly on grounds of equal treatment. I have already mentioned the grounds for the applicants' exclusion from the competition procedure: Mr Tülp was rejected because he did not have a university degree but only a diploma from a Verwaltungsakademie (Civil Service Academy) and had not shown that he had equivalent professional experience; Mr Muysers was not admitted to the written 28. In view of that clear outcome I consider tests because, in the Selection Board's view, it inappropriate to consider the substance of he had not had the relevant professional the action further. Moreover, as it was experience for the vacant post. Conse rightly remarked in the course of the oral quently, it was immaterial to them whether proceedings, the applicants themselves have they were entitled subsequently to submit provided hardly any arguments in support additional evidence in support of their view of their claims.
MUYSERS AND TULP v COURT OF AUDITORS
29. However, a few words are still required that at first glance it can be inferred from with regard to the order as to costs. The the judgments in Case 321/85 and Joined Court of Auditors considers that the Cases 322 and 323/85 4that the Court of applicants, to whom it gave sufficient Auditors was urged to recommence the advice, should be ordered to pay all the whole competition procedure and hence it is costs on the ground that their action was doubtless not possible to hold that the manifestly inadmissible. The applicants' proceedings were vexatious. In those representative strongly opposed that claim, circumstances I consider it to be appropriate and contested whether such legal advice had to apply the rule laid down in Article 70 of been given. I would consider that the Court the Rules of Procedure, also as regards the should not follow the Court of Auditors on costs of the proceedings for the adoption of this point. The question of the legal advice interim measures. can be left open. It must be admitted in fact
C — Conclusion
In conclusion, therefore, I propose that the Court should reach the following decision :
30. The action should be dismissed as inadmissible and each party should bear its own costs.
4 — See paragraph 13 or 14 as the case may be.