C-345/90

8. On 6 October 1987 Mr Hanning took the tests for the competition. On 29 October 1987 he was informed that he appeared on the list of four candidates 4. On 5 December 1986 the European considered by the Selection Board suitable Parliament commenced a competition based for the post in question. on qualifications and tests for the recruitment of a Head of Division to be in 3 — Under the heading Applications it was stated: This charge of the London Information Office application form, together with the supporting documents (Competition No PE/41/A). concerning both education and professional experience, must be sent... not later than 19 January 1987 . . . Candidates, including officials and other servants of the European Community, who fail to forward * Original language: French. application forms and all supporting documents within the 1 _ T-37/89 [1990] ECR II-463. prescribed time-limit will not be admitted to the compe- 2 _ C-345/90 P-R [1991] ECR 1-231. tition.'

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OPINION OF MR DARMON —CASE C-345/90 P

12. Meanwhile, Mr Elphic and Mr Morris, 17. Pursuant to Article 90(2) of the Staff as well as Mr Trowbridge, who had been Regulations of Officials of the European admitted to the competition but omitted Communities (hereinafter referred to as 'the from the list of suitable candidates, had Staff Regulations') Mr Hanning submitted a each submitted complaints to the complaint against that decision, claiming in Parliament. particular that he was the 'successful candidate' within the meaning of the first paragraph of Article 33 of the Staff Regu- lations. He applied for the annulment of the 13. On 8 December 1987 the Director of decision of 6 April 1988 and the recognition the Private Office of the President of the of his right to be appointed to the post in Parliament asked the Legal Department to question. advise on whether a decision to appoint made on the basis of the results of that competition was likely to be annulled following an action brought by an unsuc- cessful candidate. 18. On 30 March 1988, the Parliament published a notice of a new open compe- tition (Competition No PE/40a/A) to fill the same post. Mr Hanning took part in 14. After having considered the complaints that competition. The following candidates made by Mr Trowbridge, Mr Elphic and appeared on the list of suitable candidates Mr Morris, the Legal Department stated in drawn up by the Selection Board: Mr Bond, an opinion dated 9 February 1988 that the with 80.5 points, Mr Hanning, with 73 two latter candidates had been wrongfully points, Mr Holdsworth, with 72 points, and admitted to the competition and came to the Mr Wood, with 70.5 points. Mr Tate, with conclusion that the appointing authority was 66 points, was once again in fifth position entitled to disregard the results of the and was not included in the list. Mr Bond competition and to initiate a new one. was appointed to the post in question.

19. On 24 May 1989, Mr Hanning to which the appointing authority has no submitted a second complaint, challenging power to annul or amend a decision taken the appointment of Mr Bond. by a selection board. It observed that the appointing authority was, however, required to take decisions which are free of irregu­ 20. Following the rejection of that larities; that it was therefore not bound by complaint, Mr Hanning brought an action illegal decisions of a selection board and before the Court of Justice on 29 June 1988 that it was then under the duty to for the annulment of the decision to appoint recommence the whole competition Mr Bond and a declaration that he was procedure with a new notice of compe­ entitled to be appointed to the post in tition. 9 question. He also claimed compensation for material and non-material damage. 25. However, the Court of First Instance considered that since the irregularities 21. By order of the President of the Third concerned solely the admission of Mr Chamber of the Court of Justice dated 11 Spence and Mr Waters to the competition, July 1988, 4 an application for an interim they were severable 1 0 from the rest of the order suspending the operation of the competition procedure and that the decision of 6 April 1988 5 was dismissed. appointing authority was only obliged to abstain from appointing those two candidates and to consider the possibility of 22. By order of the Court of 15 November appointing the two persons remaining on 1989, the case was referred to the Court of the list, namely Mr Hanning and Mrs Beck. First Instance. It considered that the case in point could not be compared to the judgments referred to concerning candidates who had 23. In its judgment, the Court of First unlawfully not been admitted to a compe­ Instance considered that the Parliament's tition, n The decision of 6 April 1988 is decision not to continue with the procedure therefore, in the view of the Court of First of the first competition did not contain an Instance, vitiated by an error of law adequate statement of the reasons on which inasmuch as the appointing authority failed, it was based, in so far as it referred merely before organizing a new competition, to to 'irregularities during the procedure'. 6 consider the possibility of appointing Mr However, it considered whether the Hanning or Mrs Beck after having satisfied inadequate statement of reasons could be itself that there were no reasons connected remedied by the arguments put forward by with the interest of the service which might the Parliament during the proceedings. It justify the appointment of Mr T a t e . 1 2 was in this way that the Court of First Instance confirmed the view of the 26. Consequently the Court of First Parliament's Legal Service that the Instance annulled the Parliament's decision procedure of the first competition was not to continue the procedure of the first irregular. 7 competition and to begin a second one.

27. In support of its appeal the Parliament appointing one of the other two relies on a plea based on the infringement of candidates by comparing their merits Community law, set out in two limbs: the with those of Mr Tate, who, wrongfully, first concerns the appointing authority's had not been included on the list duty to establish the proper conduct of the because of the irregularities affecting the competition, and the second, in the alter- competition (paragraph 73 of the native, concerns its discretionary power judgment); regarding the appointment of persons appearing on the list of suitable candidates. — only if Mr Tate had been preferred to the candidates validly included on the list or, if after considering their 28. With regard to the first limb, it states applications it was not possible to that a list reduced to two names instead of appoint either of them, was it possible four is unlawful. It notes more particularly for the Parliament to institute a new that Mr Tate, the fifth successful candidate, competition by adopting a reasoned could not have been included on that list, decision (paragraph 74 of the judgment). whereas he would have been entitled to have been included if the competition had been properly conducted. 31. It should be noted that the list of suitable candidates on which only two names were validly included complies with 29. It is common ground that the Selection the requirements both of the fifth paragraph Board wrongly included Mr Spence and Mr of Article 5 of Annex III to the Staff Regu- Waters on the list of suitable candidates. In lations (under which the list is to contain at relying principally on that fact to decide least twice as many names as the number of that the procedure of Competition No posts to be filled) and the notice of compe- PE/41/A was wholly vitiated and that a tition (stating that the list could not contain new competition was justified, has the more than four candidates). Parliament adduced a fair and sufficient reason or has it committed an error of law, as the Court of First Instance considered? 32. It should, however, be noted that, pursuant to Article 30 of the Staff Regu- lations, the appointing authority chooses from the list of suitable candidates arising 30. The analysis of the Court of First out of the competition those candidates Instance is as follows: which it appoints to the vacant posts.

35. That validity is to be considered not ' . . . the appointing authority is required to only with respect to the choice open to the take decisions which are free of irregu- appointing authority, but also, and in my larities. It cannot therefore be bound by opinion principally, with respect to the decisions of a selection board where the principle of the equal treatment of illegality of those decisions is liable to vitiate candidates. It must be remembered that Mr its own decisions. Tate had obtained the marks required for inclusion on the list and that only the irregular inclusion of Mr Spence and Mr Waters had prevented him from being It is for that reason that, where the included. 13 appointing authority considers, as in this case, that one or more of the selection board's decisions refusing to admit candidates to the competition are illegal and 36. It is clear that, as the list of suitable that as a result the whole competition is candidates contained only two valid names, invalidated, it cannot make an appointment. Mr Tate's interests were severely prejudiced It is then under the duty to take formal note and that the principle of the equal treatment of that situation by means of a reasoned of candidates in a competition was infringed decision and recommence the whole compe- to his detriment. tition procedure following publication of a new notice and if necessary the appointment of a new selection board'. 15

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OPINION OF MR DARMON —CASE C-345/90 P

41. The judgment in Hoyer v Court of appointment of successful candidates in Auditors concerned candidates who had accordance with the competition results and been wrongfully excluded not from the list cannot deviate from that rule except for of suitable candidates but from the compe­ weighty reasons, justifying its decision tition itself. The solution adopted by that clearly and fully. 18

judgment — the annulment of the compe­ t i t i o n — preserves the interests of the excluded candidate. The damage suffered 44. In that case the list of suitable by the candidate irregularly excluded from candidates was not vitiated by any irregu- the list of suitable candidates is at least as hńty and the appointing authority had great — in so far as he loses the possibility refused to proceed with the competition of being appointed — as that suffered by the without giving any convincing reasons. That candidate irregularly excluded from the case therefore bears no relation to the case competition itself. where an appointing authority refuses to pursue the competition to its conclusion for a proper reason, such as the fact that the list 42. It therefore seems to me logical to of suitable candidates has been drawn up transpose the reasoning adopted in the irregularly. judgment in Hoyer v Court of Auditors to the case where a candidate has been excluded from the list of suitable 45. As the Court took pains to emphasize in candidates: such an irregularity vitiates the its judgment in Hoyer v Court of Auditors: competition.

I-976

PARLIAMENT v HANNING

appointing authority, and with the principle questions of law could be considered for the of the equal treatment of candidates. first time by the Court of Justice, which here fulfils its role of ensuring the uniform application and interpretation of Community law. 20 In such a case, the Court 48. I therefore propose that the Court merely anticipates the role it would play if, annul the contested judgment of the Court after referring the case back to the Court of First Instance, a second appeal were of First Instance. brought. On the other hand, an examination of the facts ought to be performed by the proper court, the Court of First Instance, which is the sole judge thereof. 49. Before the Court of First Instance Mr Hanning relied on five pleas in support of his action. Only that based on the lack of the reasons for the decision was considered 54. For the state of the proceedings to by the Court of First Instance. permit judgment to be given, in my opinion the Court of Justice's consideration of the pleas not examined at first instance must not result in findings of fact being made by it. 50. If, as I have proposed, the Court of Justice annuls the contested judgment, ought the case to be referred back to the Court of First Instance or may the Court of 55. It is clear, in this case, that Justice give final judgment in the matter by consideration of the other pleas relied on considering the other pleas submitted at first requires findings of fact 21 which the Court instance? of First Instance has not made.

56. The case should therefore be referred 51. Pursuant to the first paragraph of back to the Court of First Instance for that Article 54 of the Statute of the Court of purpose. Justice of the EEC, 'if the appeal is well- founded, the Court of Justice shall quash the decision of the Court of First Instance. It may itself give final judgment in the 57. The first paragraph of Article 122 of the matter, where the state of the proceedings Rules of Procedure does not require the so permits, or refer the case back to the Court of Justice to make a decision as to Court of First Instance for judgment'. costs, which should be reserved.

3. Order that costs be reserved.

I-978