T-17/90

CÁMARA A L L O M O A M ) OTHLKS COMMISSION

4. In the event of an act ot an institution board as onginallv composed, it -παν, ¡or being annulled by one oi the C o m m u n i t y the sole purpose of ensuring the continu- courts, it is for the institution, pursuant to ity ot the C o m m u n i t y civil .service, Article 176 ot the Treatv, to take the nec- replace certain members, while in so essary measures to comply with the judg- doing maintaining a situation which is as ment. Where a decision ot a selection close as possible to the original situation. board has been annulled, tor failure to give a statement ot reasons and for proce- dural irregularity, compliance with the judgment involves restoring the situation 5. The assessments made by a selection prevailing prior to the occurrence of the board when appraising candidates' abili- tacts found unlawful bv the C o u r t . H o w - ties may be subject to review bv the ever, where, for reasons which are bevond C o u r t only where there is a flagrant its control, it is impossible for the admin- breach of the rules governing the selection istration to reconstitute the selection board's work.

J U D G M E N T O F THE COURT O F FIRST INSTANCE (Third Chamber) 15 July 1993

In Joined Cases T-17/90,

Erminia Camara Alloisio and Others

T-28/91,

officials of the Commission of the European Communities, represented by Marcel Slusny and Olivier-Marie Slusny, of the Brussels Bar, with an address for service in Luxembourg at the Chambers of Ernest Arendt, 8-10 Rue Mathias Hardt,

applicants,

ν

Commission of the European Communities, represented by Sean van Raepen- busch and Ana Maria Alves Vieira, of its Legal Service, acting as Agents, with an address for service in Luxembourg at the office of Nicola Annecchino, of its Legal Service, Wagner Centre, Kirchberg,

defendant,

APPLICATIONS for annulment of the decisions of the Commission of 26 June 1989 to re-open the procedure for competition COM/B/2/82, for the annulment of the decision of the selection board not to admit candidates to the tests for the said competition and for an order that the Commission pay damages,

CAMARA ALLOISIO AND OTHERS ν COMMISSION

Judgment

Facts

1 T h e applicants are part of a g r o u p of officials and servants of the C o m m i s s i o n w h o , in D e c e m b e r 1984, lodged applications before the C o u r t of Justice seeking annul­ ment of the decisions of the selection board for internal competition C O M / B / 2 / 8 2 not t o admit them to the tests for that competition, which had been organized for the purposes of drawing up a reserve list of administrative assistants, secretarial assistants and technical assistants for the career-bracket comprising grades 5 and 4 in category B.

2Byt w o judgments of 11 May 1986 in Case 293/84 Sorani and Others ν Commis­ sion [1986] E C R 967 and Case 294/84 Adams and Others ν Commission [1986] E C R 977, the C o u r t annulled the said decisions on the g r o u n d that the applicants had not had the o p p o r t u n i t y of making observations on the opinions expressed to the selection board in their regard by their immediate superiors. Following those judgments, the selection board invited the candidates in question to appear before it in J u n e 1986 so that they could answer the same questions as those which had been raised previously with their immediate superiors. By letters of 11 July 1986, the candidates were informed that the decisions not to admit them to the tests had been confirmed.

3 Following complaints lodged by certain candidates against those decisions of 11 July 1986, the selection board invited them to appear before it a second time in o r d e r to give them the o p p o r t u n i t y of making observations on the answers given by their immediate superiors to the questions which the selection board had put t o them. By letters of 12 February 1987, the officials in question were informed that the selection board considered that there was no need to alter the decision taken in their regard, sent to them on 11 July 1986. T h e applicants then b r o u g h t further proceedings.

In order to comply with the judgment of the Court of Justice dated 28 February 1989, the appointing authority has decided to restart the proceedings of the Selec­ tion Board for the internal competition for advancement from Category C to Cat­ egory Β for which you had applied, at the stage where the procedure followed by the Selection Board with regard to your application was held by the Court to be irregular.

For this purpose, the Selection Board is to be forthwith reconstituted with its orig­ inal members, unless they are no longer eligible, and will resume its proceedings in compliance with the judgment of 28 February 1989.

Those candidates declared admissible to the tests will be notified by the usual administrative channels of the date of the tests.

Those tests, as set forth under Paragraph 111(1 ) of the terms of competition COM/B/2/82, will follow an admission procedure consisting of:

(a) a reexamination of candidates' files as they stood at the time of opening the competition;

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That judgment puts those candidates back in the position they were in at the point of the procedure at which the C o u r t found that it was vitiated (absence of a state- ment of reasons at the time of the decision whether or not to admit applicants).

In those circumstances — of which the 28 candidates and the members of the selec- tion board have been personally informed — the selection board will decide

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JUDGMENT OF 15. 7. 1993 — JOINED CASES T-17/90, T-28/91 AND T-17/92

whether or not to admit candidates to the competition, following interviews with their respective immediate superiors. Moreover, the candidates will have the oppor- tunity of requesting the selection board to hear such other superiors as they may specify. Subsequently, the selection board will hear the candidates themselves at an interview which will also provide it with further material on which to base its decision.

For the purposes of the conditions laid down for the competition, the candidates will be deemed to be in the situation in which they were at the time (as regards, for example, training). In so far as is possible, the selection board will be made up of all its former members, in complete accordance with the practice and case-law in this area.

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CAMARA ALLOISIO AND OTHERS ν COMMISSION

1 1 Before that stage was completed, the President of the U n i o n of E u r o p e a n Civil Servants, on behalf of the candidates in question and as their dulv-appointed rep­ resentative, by m e m o r a n d u m of 18 September 1989 lodged a complaint u n d e r Arti­ cle 90(2) of the Staff Regulations of Officials of the E u r o p e a n C o m m u n i t i e s ('the Staff Regulations'), against the D i r e c t o r of Personnel's m e m o r a n d u m of 26 J u n e 1989 a n n o u n c i n g the resumption of the p r o c e d u r e for internal competition C O M / B / 2 / 8 2 ; the complainants further requested to be admitted to the compe­ tition w i t h o u t further formality and to be awarded compensation for the damage which they considered they had suffered.

12 O n 20 D e c e m b e r 1989, the C o m m i s s i o n rejected those complaints in decisions notified to the complainants by m e m o r a n d a dated 22 D e c e m b e r 1989, which thev received between 8 and 10 January 1990.

1 3 By application lodged at the Registry of the C o u r t of First Instance on 9 April 1990, the complainants b r o u g h t the first of the present actions being considered (Case T-17/90).

1 4 By m e m o r a n d a of 8 August 1990, the future applicants in Case T-28/91 were noti­ fied that they had been refused admission to the tests for the competition.

18 Case T-28/91 was brought on 30 April 1991.

19 By letters of 28 May 1991, the future applicants in Case T-17/92 were informed of the selection board's decision not to admit them to the tests for the competition on the ground that they did not have the 'necessary potential for taking an overall approach and a sufficient sense of initiative'.

20 Between 30 July and 6 August 1991, the persons concerned made complaints against those decisions. In the absence of any reply, those complaints were rejected by implied rejection on the expiry of the time-limit prescribed under Article 90(2) of the Staff Regulations. However, on 14 April 1992 the administration sent a decision explicitly rejecting seven of the complaints.

21 It is against that background that Case T-17/92 was brought on 24 February 1992.

Procedure

22 By order of 6 February 1992, the Court of First Instance joined Cases T-17/90 and T-28/91 for the purposes of the written and oral procedure and the judgment. By

Case T-17/90

25 In this case, the applicants claim that the C o u r t should:

1. declare null and void the decision of M r V, Director of Personnel, of 26 J u n e 1989;

2. declare that the applicants should be admitted to C o m p e t i t i o n C O M / B / 2 / 8 2 with no further formality;

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JUDGMENT OF 15. 7. 1993 —JOINED CASES T-17/90, T-28/91 AND T-17/92

Case T-28/91

27 In this case, the applicants claim that the Court should:

1. declare null and void the decision of Mr V, Director of Personnel, of 26 June 1989;

2. declare that the selection board should not undertake a further examination, including the examination announced in Mr T's letter of 13 March 1991;

3. declare that the applicants should be admitted to Competition COM/B/2/82 with no further formality;

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28 The Commission contends that the Court should:

1. declare the action inadmissible or, at least, unfounded;

2. make an appropriate order as to costs.

Case T-17/92

29 In this case, the applicants claim that the Court should:

1. declare null and void the decision of the selection board for Competition COM/B/2/82 not to admit the applicants to the next stage of the procedure for Competition COM/B/2/82;

6. order the Commission to pay interest at 8% on the damages, as from the first complaint in the procedure with which Case 294/84 was concerned;

7. order the Commission to pay the costs.

30 The Commission contends that the Court should:

1. declare the action unfounded;

2. make an appropriate order as to costs.

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33 The Commission contends, secondly, that where, as in this case, officials seek a decision of the appointing authority relating to them, in this instance a decision to admit them to a competition with no further formality, to undertake to grant them 'the same benefits as those enjoyed by candidates already appointed or promoted' since 1982, and to award them damages for alleged harm to the advancement of their career, the administrative procedure must be initiated by submitting to the appointing authority a request that it take such a decision, pursuant to Article 90(1) of the Staff Regulations. It is only against the decision to reject that request that the parties concerned may, within a further period of three months, submit a com­ plaint to the appointing authority, pursuant to Article 90(2). According to the Commission, the action is also inadmissible in that regard 'for not having been preceded by a complaint against the rejection of the requests set out in the com­ plaints of 22 September 1989'.

34 The Commission pleads, thirdly, that an applicant cannot claim compensation based on the unlawfulness of the institution's decision where the action for annul­ ment against that decision is not admissible: the inadmissibility of the action for

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JUDGMENT OF 15. 7. 1993 —JOINED CASES T-17/90, T-28/91 AND T-17/92

annulment to which the claim for damages is ancillary entails the inadmissibility of the latter claim.

35 The applicants reply, first, that the Director of Personnel's decision of 26 June 1989 constitutes an act adversely affecting them since, as it was impossible to convene the selection board, it was essential to admit them to the competition with no fur­ ther formality. In this regard, the applicants dispute the Commission's interpreta­ tion of the case-law of the Court of Justice and the Court of First Instance. They claim that the acts in issue were not preparatory, but were 'preliminary'.

39 In that regard, it should be noted that, as is apparent from the settled case-law of the Court of Justice and the Court of First Instance, developed in the context of Article 173 of the EEC Treaty, only measures producing binding legal effects of such a kind as to affect the applicant's interests by bringing about a distinct change in his legal position constitute acts against which an action for annulment may be brought (see Case 60/81 IBM ν Commission [1981] ECR 2639 and Joined Cases T-32/89 and T-39/89 Marcopoulos ν Court of Justice [1990] ECR II-281). In the case of acts or decisions adopted by a procedure involving several stages, in par­ ticular where they are the culmination of an internal procedure, it is clear from the same case-law that in principle an act is open to review only if it is a measure definitively laying down the position of an institution on the conclusion of that procedure, and not a provisional measure intended to pave the way for the final decision. Moreover, in staff cases the Court of Justice has consistently held that acts preparatory to a decision do not adversely affect an official within the meaning of Article 90(2) of the Staff Regulations and therefore can be contested only inciden­ tally in an action against measures capable of being annulled (see, for example, Case 11/64 Weighardt ν Commission [1965] ECR 285 and Case 346/87 Bossi ν Commis­ sion [1989] ECR 303).

40 In this instance, it appears from the decision in issue, communicated by memoran­ dum of 26 June 1989, that it merely announces the reopening of the procedure for the competition and the detailed rules directly relating to that resumption. The Court can only find that the decision in issue does not contain any matter of a decisional nature separable from the competition procedure as a whole.

45 As regards the damages sought under the fourth head of claim, the Court points out that, in the absence of an act adversely affecting the official in question, the pre-litigation procedure set up by Article 90 of the Staff Regulations is, in princi­ ple, a two-stage procedure. As is apparent from Article 90(1), any person to whom the Staff Regulations apply may submit to the appointing authority a request that it take a decision relating to him. In the event of an unfavourable reply or in the absence of a reply, the person concerned may submit a complaint to the appointing authority, challenging its express or implied decision in accordance with Article 90(2) of the Staff Regulations. The complaint procedure is intended to compel the authority having control over the official to reconsider its decision in the light of any objections which that official may make (see Case 101/79 Vecchioli ν Commis­ sion [1980] ECR 3069, paragraph 31). The pre-litigation procedure prescribed by Article 90 of the Staff Regulations, as a whole, is intended to permit and encourage the amicable settlement of differences which have arisen between officials and the administration (see Case 142/85 Schwiering ν Court of Auditors [1986] ECR 3177, paragraph 11).

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CÁMARA ALLOISIO ANU OTHŕRS v COMMISSION

46 F u r t h e r m o r e , as regards the admissibility of a claim for compensation, it is appar­ ent from the case-law of the C o u r t of Justice, as analysed and elaborated bv the C o u r t of First Instance (see Case T-27/90 Latham v Commission [1991] E C R 11-35, paragraph 38, and Case T-5/90 Marcato v Commission [1991] E C R 11-731, para­ graph 49) that it is only where there is a direct link between an action for annul­ ment and a claim for compensation that the latter is admissible as incidental to the action for annulment, w i t h o u t necessarily having to be preceded both bv a request from the person concerned to the appointing authority for compensation for the damage allegedly suffered and by a complaint challenging the validity of the implied or express rejection of that request.

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JUDGMENT OF 15. 7. 1993 —JOINED CASES T-17/90, T-28/91 AND T-17/92

as a request, it is likewise established that no complaint was lodged against the decision to reject it. It clearly follows that the action, in so far as it seeks the award of damages, was not brought in the manner laid down by the Staff Regulations and is thus inadmissible.

50 It follows from the foregoing that the action must be dismissed as inadmissible as in its entirety.

Case T-28/91

Admissibility

54 To the extent that the requests sought admission t o the competition with n o fur­ ther formality, receipt of the 'same benefits as those candidates already appointed or p r o m o t e d ' with effect from 1982 and the award of damages, this action — like Case T-17/90 — should have been preceded by b o t h requests and complaints within the meaning of Article 90 of the Staff Regulations. In other words, Case T-28/91, which merely confirms the claims contained in Case T-17/90, could only have been b r o u g h t against a complaint lodged within three m o n t h s of the notifi­ cation of the decisions of 20 D e c e m b e r 1989 dismissing the initial requests already set out in the complaint of 18 September 1989. Since this action was b r o u g h t on 30 April 1991 and was preceded by complaints lodged between 31 O c t o b e r and 6 N o v e m b e r 1990 it is, therefore, inadmissible.

5 5 T h e applicants c o u n t e r by saying, first, that they b r o u g h t a fresh action because they had submitted complaints which they could not a b a n d o n without taking fur­ ther action. T h e y add that it was in their best interests, as long as the defendant considered their first action p r e m a t u r e because it related to a preparatory act, to submit their arguments afresh where the acts alleged to be preparatory were fol­ lowed by acts involving a decision.

56 Secondly, the plea of lis pendens can, according to the applicants, only be relied u p o n 'where there is already a judicial decision in existence, even if it is delivered at o n e and the same time as the decision relating to the lis pendens or to the auth­ ority of res judicata of the decision in the second p r o c e d u r e ' .

60 The second, third and fourth heads of claim may be dismissed as inadmissible for reasons set out in paragraph 44 of this judgment, to which the Court also expressly refers.

61 The claims for damages are inadmissible for identical reasons to those mentioned in paragraphs 45 to 49 above. It is clear from the documents before the Court that the applicants have complied with only one stage of the prior administrative pro- cedure, which, in this case, necessarily results in the claims being inadmissible.

62 It follows that the action is inadmissible in its entirety.

Case T-17/92

Admissibility

63 The Commission has not raised any objection of inadmissibility in connection with this case.

The substance of the first head of claim

A r g u m e n t s of the parties

68 T h e applicants claim, first, that the decision of the D i r e c t o r of Personnel, which was c o m m u n i c a t e d to them by his m e m o r a n d u m of 26 J u n e 1989, did not comply with the j u d g m e n t given by the C o u r t of Justice and that the reconstitution of the selection board announced in that m e m o r a n d u m was in fact impracticable. In the latter regard, the applicants argue that not only the chairman of the selection board, w h o was in n o way prevented from continuing to carry o u t her duties, but also other members of the selection board were replaced w i t h o u t any of them having been ' n o longer eligible'. T h e resignation of the chairman of the selection board was not, according to the applicants, justified by her concern not to damage the work of the selection board, as the C o m m i s s i o n claims. According t o the applicants, she was unjustified in refusing t o take on the chairmanship of the selection board, which only she had the capacity to take on. T h e applicants consider that, because

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JUDGMENT OF 15. 7. 1993 —JOINED CASES T-17/90, T-28/91 AND T-17/92

of its chairman's resignation, the selection board was not able to continue its assignment properly and that it was, therefore, unable to operate. As regards the case-law of the Court of Justice cited by the defendant, the applicants point out that Case 24/78 Martin ν Commission [1979] ECR 603 concerned the absence of a member of the selection board. However, in this case, it was, according to the applicants, still perfectly possible for the selection board to perform its duties; the absence of its chairman is not in any way justified and stems from a purely vol­ untary act on her part. Furthermore, as regards Case 34/80 Authié ν Commission [1981] ECR 665, the applicants point out that in this case the issue is not whether a chairman can sit once again in that capacity, but the fact that, without any valid reason, the chairman did not so do.

70 Secondly, the applicants claim that, contrary to the position adopted by the Direc­ tor of Personnel in his memorandum of 8 September 1989, the selection board did not take account of criteria subsequent to the reference date set by the notice of competition, namely 25 February 1982.

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CAMARA ALLOISIO AND OTHERS ν COMMISSION

71 T h e C o m m i s s i o n points out that the reference period to be taken into consider­ ation by a selection board is imposed by the notice of competition, which states that the reference period expired in February 1982. In this case, the selection board considered correctly that the reference period was that laid d o w n bv the notice of competition and, therefore, did not act in error. T h e C o m m i s s i o n adds that the administration can neither c o m m i t nor, a fortiori, require the selection board t o take into consideration a period subsequent to that laid d o w n bv the notice of competition.

72 Thirdly, the applicants claim that the selection board questioned, in their capacity as immediate superiors, officials w h o m it selected arbitrarily. F u r t h e r m o r e , they allege that no account was taken of the impossibility for the majority of those of their immediate superiors w h o were consulted to recall the facts, having regard to the time which had elapsed. Moreover, the applicants deny that those immediate superiors and the members of the selection board were in a position to rule on their merits and assert that the selection board did not examine all of the observations which they submitted.

' — as regards written expression, his immediate superiors were unaware that the applicant had to compose orders for office supplies (and had done this since mid-1976 for a large division);

— as regards his taking an overall approach, the applicant does not know how his immediate superiors assessed this. The selection board questioned Mr C, who was not his immediate superior at the time and with whom he had had prob­ lems following the period to be taken into consideration. Mr H. made asser­ tions which, first, did not refer to the relevant period and, secondly, were denied by the applicant;

— as regards his ability to organize his work independently, the applicant states that as from 1 July 1979 he has, on his own, been doing the work of three people'.

Mr Michiels argues that:

' — the work carried out by the applicant has, since 1971, always been done by a Category Β (B3 or B2) official, which proves the applicant's ability to draft, to take an overall approach and to express himself in writing'.

76 The Commission states that the complaints put forward by Mr Michiels and Mr Vitale merely make unsupported assertions, without showing that irregularities were actually committed by the selection board.

81 In this regard, it should be pointed o u t at the outset that the w o r k of a selection board in connection with a competition p r o c e d u r e governed by Annex III of the Staff Regulations must take place in such a way as to ensure the p r o p e r operation of recruitment for the C o m m u n i t y civil service. Sometimes, that w o r k is necessar­ ily spread out over a long period, even several years, in particular where one of its decisions is annulled by one of the C o m m u n i t y courts. It is therefore possible that the composition of a selection board may, in such circumstances, evolve over the years, as a result of events b e y o n d the control of the administration. In those

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JUDGMENT OF 15. 7. 1993 —JOINED CASES T-17/90, T-28/91 AND T-17/92

circumstances, the administration should be recognized, for the purposes of ensur- ing the continuity of the Community civil service, as having the power to replace certain members of the selection board, while in so doing maintaining a situation which is as close as possible to the original situation, where it is impossible to reconstitute identically the selection board as originally composed. Such is the case in the event of serious illness, a change of assignment within the administration or the resignation of a member of the selection board, since in that latter case the appointing authority does not have any means of compelling a member of the selec- tion board to sit against his or her will.

82 In this case, it is apparent from the answers supplied by the Commission at the request of the Court that the chairman and a member of the selection board resigned and that the appointing authority subsequently replaced them with two new members.

86 However, the C o u r t notes that the applicants have not put forward anv argument or evidence capable of proving the contention which underpins their arguments, namely that for certain candidates the selection board took into consideration cri- teria subsequent to the abovementioned reference date. It follows that the first argument must be rejected.

87 As to the second argument based on whether the selection board actually ques- tioned the applicants' immediate superiors, it should be pointed out, first, that the applicants have not supplied any evidence in support of their contentions. Sec- ondly, it appears from the documents produced in that context by the Commission at the request of the C o u r t — which have not been disputed by the applicants — that the applicants' immediate superiors were in fact heard by the selection board.

88 As regards the alleged possibility that the immediate superiors might have forgot- ten the relevant facts, it is sufficient in relating that argument to note that the appli- cants' contentions have neither been supported by any evidence whatsoever, nor even been stated in specific terms.

89 As regards the third argument, that the members of the selection board were not in a position to decide on the applicants' merits and did not examine all the observa- tions which the applicants put forward, the C o u r t notes, first, that the applicants have not supported those contentions with any evidence allowing their validity to be assessed. Secondly, it appears from the minutes of the interviews between the

93 It appears from all the foregoing that Case T-17/92 must be dismissed in its entirety and consequently that all three actions must be dismissed.

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CAMARA ALLOISIO AND OTHERS v COMMISSION

Costs

94 In accordance with Article 87(2) of the Rules of Procedure, the unsuccessful partv- is to be ordered to pay the costs, if they have been applied for in the successful party's pleadings. However, under Article 88 of those Rules, in actions brought bv Community servants the institutions are to bear their own costs.

On those grounds,

H.Jung J. Biancarelli

Registrar Presidem

II-871