C-361/87

1. The actions brought by Mr Caturla-Poch 4. The first paragraph of Article 5 provides: and Mr de la Fuente concern Internal Competition LA/103, held by the European Parliament for the purpose of filling two After examining [the] files, the Selection posts in Grade LA 3. The applicants were Board shall draw up a list of candidates, both candidates for one of those posts, that who meet the requirements set out in the is to say the post of Head of the Spanish notice of competition.' Translation Division. The applicants were excluded from the list of suitable candidates because they did not obtain sufficient points; consequently they submitted 5. The third paragraph provides: complaints pursuant to Article 90(2) of the Staff Regulations on 27 April and 15 April 1987 respectively. Those complaints were rejected by two decisions of the President of 'Where the competition is on the basis of the European Parliament of 8 September qualifications, the Selection Board shall, 1987. after determining how candidates' qualifi­ cations are to be assessed, consider the qualifications of the candidates appearing on the list ... '. 2. The actions brought by the applicants on 4 December 1987 seek primarily the annulment of the decision rejecting their 6. According to the applicants, the Selection candidatures or, in the alternative, the Board was under an obligation first to annulment of all the steps taken in the determine how the candidates' qualifications competition. were to be assessed, and only then to draw up the list of candidates admitted to the competition. However, it is clear from the The main submission wording of the provision in question that the Selection Board must first of all draw up the list, then establish how candidates' qualifications are to be assessed and, finally, 3. With regard to the substance, the it must apply those criteria to assess the applicants submit first that Article 5 of qualifications of the candidates appearing Annex III to the Staff Regulations has been on the list of those who have been admitted infringed. (The application refers to the to the competition, drawn up beforehand. sixth paragraph of the article, the reply The Selection Board's reasoned report, refers to the third paragraph; it is in fact the adduced by the applicants, shows that the

Selection Board followed that procedure to Selection Boards to reverse henceforth the the letter. order of the steps laid down in Article 5 : the Court wished to emphasize that it was not permissible for a selection board to establish the criteria for assessing qualifications on the basis of the qualifications actually 7. However, the applicants refer to the submitted by the various candidates, with 1 judgment in Case 143/84 (Vlachou I ) in the purpose of excluding a part of the which the Court annulled an appointment professional experience which certain after having established not only that the candidates could put forward. criteria used to assess the candidates' quali­ fications were established after the selection board had examined the qualifications in order to check that the candidates had at least six years' professional experience, 9. Can it be said that the Selection Board in which was one of the conditions of Competition LA/103 took a similar admission to the competition, but also that approach? It must be said first of all that, those criteria were established in such a way with regard to the allocation of marks for that the applicant's situation was not professional experience, the reasons for its correctly assessed. The Selection Board took decision are not clear because the Selection the view that the probative value of certain Board neglected to state the number of documents submitted by Mrs Vlachou as points it was going to award for each year proof of the length of her professional of professional experience. Secondly, the experience was open to doubt. It therefore decision is surprising in so far as the fixed the minimum number of points in such Selection Board required a minimum of a way that the years of experience referred only three years' experience specifically in to in those documents could have no the field of translation, even though the bearing on where the candidates were posts in question were for Heads of placed on the list. The Court held that the Division. The question must arise whether, Selection Board ought either to have by adopting a maximum of 12 points for refused to consider those documents or to professional experience, the Selection Board have evaluated them in the same way as the did not intentionally wish to exclude from other qualifications produced by the consideration all experience of more than 12 candidates, but that by adopting, after years. Even if it is assumed that one year of having examined the qualifications of the experience is worth one point, it is difficult candidates, a system of allocating marks for to understand how certain candidates with professional experience which objectively only five or six years of experience (based caused certain certificates produced by one on their step in Grade A 5) were able to of the candidates to be undervalued, the obtain the number of points awarded to Selection Board had acted in breach of the them. general principle that candidates in a competition should be treated equally.

14. The notice of competition made no provision for the verification of the 11. Thus, from the number of points knowledge mentioned under (3) above. obtained by the various candidates it is not Moreover, and in particular, the compe­ possible to deduce a posteriori an objective tition was published as a competition on the criterion which could have been used to basis of qualifications alone. Thus, only (1) award the points. If such a criterion was and (2), with a total of 22 points, could nevertheless used, the Parliament would involve consideration of qualifications surely have made it known during the produced by the candidates. It is common proceedings. As it did not do so, it must be ground that, with regard to (3) and (4), the concluded that the points were awarded Selection Board did not consider qualifi­ arbitrarily and that there was a breach of cations (how could it?), but it evaluated the the general principle that candidates in a candidates' knowledge and organizing competition should be treated equally. ability in an interview lasting between 10 and 15 minutes with each of the candidates. The number of points which could be awarded on the basis of the interview was 12. A second comment must be made with 18 out of a total 40, in other words 45 %. regard to the way in which the Selection Board performed its task of establishing the criteria on which it was to assess the candidates' qualifications (the third paragraph of Article 5 of Annex III). 15. Therefore, the interview assumed the form of an actual oral test and the compe­ tition became a competition on the basis of qualifications and tests. 13. Those criteria provide as follows:

17. By organizing its work in the way it which was not yet available to the members did, the Selection Board did not comply of the Selection Board) shows that for with the notice of competition and 'organizing ability' the applicant received committed a manifest error with regard to the assessment 'good' (which was confirmed the methods of assessment which it used. incidentally by the report of 23 January 1987). Assessments received in reports at the end of the probationary period are graded 18. The applicants point out, moreover, as follows: very good — good — satis­ that the notice of competition also included, factory— insufficient. If those assessments among the qualifications and knowledge are transferred to a scale of 0 to 15 points, required, a heading 'knowledge of it appears that 'good' must be at least equi­ languages' which was not allocated any valent to the average, in other words 7.5 points. The defendant maintains that the points. Therefore, by relying on a short Selection Board had taken knowledge of interview and ignoring the comments in the languages into consideration under the applicant's probationary period report, the headings 'education' and 'professional Selection Board committed a manifest error experience'. It may be considered, in fact, of assessment. that the assessment of qualifications and professional experience specifically in the area of translation enables valid conclusions to be drawn regarding knowledge of languages and it does not seem to me therefore that the Selection Board 22. Mr de la Fuente, for his part, makes the committed, in that regard, a manifest error following points: of a kind which must be condemned by the Court.

25. I have already stated that, in my criteria or the number of points obtained by opinion, the Selection Board's assessment of the applicants. The President of the Mr de la Fuente's professional experience (7 European Parliament simply informed them points out of 12) is evidence of a breach of that 'you have obtained a mark of less than the principle of equal treatment. 24/40, due in particular to your score under criterion number 4'. However, as I mentioned above, there are considerable discrepancies in the number of points 26. The same applicant obtained 5.5 points obtained by the applicants for organizing for his organizing abilities and in that ability and professional experience. respect he was the second highest placed Spanish candidate. The fact remains that Mr de la Fuente has had a great deal of organ­ izing experience acquired during the eight 29. Such grounds must be considered to be years he worked in the social and religious inadequate. As the Court has held, services of an organization for Spanish particularly in its judgment in Case 195/80 immigrants in Germany, and that he was Michel v Parliament [1981] ECR 2861, entrusted with setting up the Spanish section of the European Parliament's Minutes Division and coordinating its work. In view of that experience, explicit reasons should 'the requirement that a decision adversely have been given for the award of a below- affecting a person should state the reasons average mark. However, neither the on which it is based is intended to enable Selection Board's report nor the reply to the the Court to review the legality of the complaint contain any reasons. Nor were decision and to provide the person any reasons given during the proceedings concerned with details sufficient to allow before the Court. him to ascertain whether the decision is well founded or whether it is vitiated by an error which will allow its legality to be contested. It follows that the statement of reasons must 27. More generally, with regard to the in principle be notified to the person absence of reasons, it appears that the concerned at the same time as the decision Selection Board did not inform the adversely affecting him and that a failure to applicants of the reasons why their state the reasons cannot be remedied by the applications were rejected. No document of fact that the person concerned learns the that kind can be found anywhere in the file reasons for the decision during the of the case. proceedings before the Court' (paragraph 22 of the decision).

35. In the alternative, the applicants request the Court to annul all the steps taken in the 31. Finally, the applicants allege that there competition. According to the Parliament, was a misuse of powers. They allege that that request is inadmissible since the they had disputes with a member of the complaints submitted to the President of the Selection Board, that a member of the European Parliament related only to the Selection Board was on questionably applicants' exclusion from the list of suitable familiar terms with another candidate and candidates. That observation is accurate that a more fortunate candidate verbally only in so far as it concerns Mr Caturla. Mr acknowledged that there had been a misuse de la Fuente, on the other hand, requested of powers. 'a review of the procedure with a different Selection Board, which must be composed of independent members'. That is equivalent to an application for the annulment of all 32. However, the Court has consistently the steps in the competition. held that a decision is vitiated by a misuse of powers only if it appears, on the basis of objective, relevant and consistent evidence, to have been taken for purposes other than those stated. 2 36. However, in the second Vlachou case (Case 162/84 Vlachou v Court of Auditors [1986] ECR 481, at p. 491, paragraph 3 of the decision) the Court stated that: 33. In the present case it is impossible not to be surprised by the way in which the Selection Board awarded the points, but there is no sufficiently objective and 'the applicant cannot seek primarily the convincing evidence to support the annulment of a decision not to admit her to conclusion that the Selection Board's a competition and, as an alternative claim, purpose was to exclude the applicants from in the event that her principal claim is the list of suitable candidates at any cost. dismissed, the annulment of the compe­ tition'.