C-164/87
ECLI:EU:C:1988:237
- Súd
- Súdny dvor Európskej únie
- IČS
- 61987CC0164
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- eur-lex.europa.eu ↗
OPINION OF MR LENZ — CASE 164/87
OPINION OF MR ADVOCATE GENERAL LENZ delivered on 5 May 1988 *
Mr President, the reserve list to be annulled with the Members of the Court, consequence that he would have to repeat, if necessary, the oral test (which is what the applicant claims in the alternative).
1. My Opinion on the action brought by Mr Simonella against the Commission concerning Internal Competition No 4. 2. As the Court is aware, the applicant's COM / A / 8 / 84 , with which the Court will first submission is that the notice of compe be familiar from other cases (64/86, 71 to tition does not mention the marks to be 73/86 and 78/86) and which was open to awarded for qualifications, the written test officials in Category B wishing to be and further training, which, in his view, is promoted to Category A, is as follows. contrary to Article 1 of Annex III to the Staff Regulations, according to which the notice of competition should specify inter alia the kind of test and how it is to be assessed. 2. 1. Like the Commission I consider that the application, which is primarily for the annulment of the said internal competition, is inadmissible. 5. In that respect I must first cite the case-law of the Court, according to which an action challenging an allegedly defective notice of competition which has not been 3. We know that the applicant passed all directly challenged (which presupposes a the stages of the competition and that he prior administrative complaint) is no longer failed only in the final oral test, whose admissible if it is brought subsequently in result alone was determinative for inclusion connection with the criticism of steps taken in the reserve list and in which he did not pursuant to the notice (see the judgment in obtain the minimum number of marks Case 294/84 1 and most recently the required. Accordingly it may be said that he judgment in Joined Cases 64/86, 71 to has no interest in the complete annulment of 73/86 and 78/86). 2Moreover, the applicant the competition and that he may be entitled has obviously no interest in pursuing that only to a review by the Court of the last objection since the three matters relate to step in the competition. If he is successful stages in which the applicant was successful on that point, there is no reason, in my and accordingly there is no act which view, to declare all the results of the compe adversely affects him. tition invalid. As far as the applicant's 1 — Judgment of the Court of 11 March 1986 in Case 294/84 interests are concerned, it would be Hermanus Adams and Others v Commission [1986] ECR sufficient for the refusal to include him in 984. 2 — Judgment of the Court of 8 March 1988 in Joined Cases 64/86, 71 to 73 and 78/86 Giovanni Sergio and Others v * Translated from the German. Commission [1988] ECR 1399.
SIMONELLA v COMMISSION
6. The same considerations apply to the to my Opinion in Case 228/86 at paragraph argument that no indication was given of 41 and the judgment of 24 March 1988 at the way in which the written test and the paragraph 11, [1988) ECR 1819). Never qualifications were marked (that is to say, theless, the applicant has not been able to the criteria which were determinative in that show how the Selection Board infringed the regard) if by that argument the applicant applicable rules in assessing the oral test. means that no reasons were stated for the Accordingly, it does not appear justified to acts in question or that reasons should have declare the decision of 17 June 1986 void been given in the notice sent to the for lack of reasons. applicant on 17 June 1986 (informing him of the final result). Since they were acts relating to earlier stages in which the applicant was successful, there was certainly no reason to state particular reasons for them since the Staff Regulations (Article 25) 9. 4. I can be similarly brief with regard to require grounds to be stated only where a the second submission according to which decision adversely affects an official. extraneous considerations played a part in determining the result of the oral test and thus in determining the reserve list and the Selection Board was not concerned solely with selecting candidates of the highest standard as required by Article 27 of the Staff Regulations.
7. 3. Accordingly, all that remains of the first submission is the argument that the criteria for assessing the oral test were not stated which, since it was expressly stated in 10. That claim is not in fact supported by the notice of competition that there would any 'objective, relevant and consistent be a maximum of 50 marks for the oral test, evidence' which the case-law (see the amounts to saying that insufficient reasons 3 judgment in Case 69/83) requires in such a were given in the contested notice. case, that is to say when misuse of powers is alleged.
11. That is certainly true of the applicant's 8. In my opinion, that argument cannot doubts about the Selection Board's impar succeed either. The first important point in tiality which he expresses when pointing out this regard is that the applicant was that the proportions of candidates from informed of his marks for the oral test (his Luxembourg and Brussels on the reserve list marks were such that he did not attain the was the same as the proportions emerging requisite minimum laid down in the notice after the first stage of the competition of competition). The second important point (examination of qualifications and written is that the test papers which the defendant tests). In regard to that argument and the has produced show in detail how the oral allegation that the candidates' place of work test was conducted and how the various 3 — Judgment of the Court of 21 June 1984 in Case 69/83 stages were marked (in that respect I refer Charles Lux v Court ofAuditors [1984] ECR 2447.
OPINION OF MR LENZ — CASE 164/87
was highly relevant in determining the names put on the reserve list. That fact in reserve list, it must be remembered that no way justifies the assumption that those when the written tests were marked the candidates were excluded for irrelevant candidates' names were not known so that reasons, supported by the suspicion that the at that stage there could certainly not have Selection Board may have been annoyed been a deliberate selection according to the that three other officials from the Publi candidates' place of work. If the proportions cations Office had brought court of candidates from Luxembourg and proceedings. The fact is that at the time Brussels who passed the oral test remained when the interviews were concluded (they the same, it may be a pure coincidence, went on until 6 June 1986) most of the especially since it is hardly conceivable that actions brought in connection with the a Selection Board comprising representatives competition were brought by officials who of the Staff Committee could, as a body, had nothing to do with the Publications have manipulated the results in the way Office. The much more likely explanation is suggested by the applicant. therefore that staff from the Publications Office (in so far as they belong to Category 12. The same is true of the applicant's B) are less well prepared by the nature of observation that although six applicants their work and the experience they acquire from the Publications Office were admitted there for promotion to Category A than to the interviews, none of them had their staff from other fields.
13. None of the applicant's submissions can therefore be upheld. All things considered, I am led to the conclusion that the action brought by Mr Simonella should be dismissed, in part as inadmissible and in part as unrounded, and that an order for costs should be made in accordance with Article 70 of the Rules of Procedure.