T-27/92

CAMERA-LAMPITELLI AND OTHERS ν COMMISSION

the selection board's decision, the desir­ ground of absence or inadequacy of the ability of bringing an action before the reasons on which it is based, of a decision Court. by which the selection board refused to accept him as a successful candidate. The results of tests cannot be changed follow­ 4. Where a candidate has failed the tests for ing annulment of the selection board's a competition, he has no legitimate inter­ decision, which could thus only be con­ est in obtaining the annulment, on the firmed.

J U D G M E N T O F T H E C O U R T O F F I R S T I N S T A N C E (Third C h a m b e r ) 15 July 1993

In Case T-27/92,

Maria Camera-Lampitelli, Claudia Castelletti, Yvonne Demory-Thyssens, Bar­ bel Keller, G u d r u n Kreibich, Gerda Lambertz, Madeleine Lutz, Lucia Passera, Marie Seube, A n t o n i e t t a Thielemans, Helga Kottowski, officials of the C o m m i s ­ sion of the E u r o p e a n C o m m u n i t i e s , represented by Marcel Slusny and Olivier- Marie Slusny, of the Brussels Bar, with an address for service in L u x e m b o u r g at the C h a m b e r s of Ernest A r e n d t , 8-10 Rue Mathias H a r d t ,

applicants,

JUDGMENT OF 15. 7. 1993 — CASE T-27/92

THE C O U R T OF FIRST INSTANCE O F T H E EUROPEAN COMMUNITIES (Third Chamber),

composed of: J. Biancarelli, President, B. Vesterdorf and R. García-Valdecasas, Judges,

Registrar: H. Jung,

having regard to the written procedure and further to the hearing on 18 May 1993,

gives the following

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 order to give them the opportunity of making observations on the answers given by their immediate superiors to the questions which the selection board had put to 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. The applicants then brought further proceedings.

4 By judgment of 28 February 1989 in Joined Cases 100/87, 146/87 and 153/87 Bascb and Others ν Commission [1989] ECR 447, the Court of Justice annulled the deci­ sions of the selection board not to admit the applicants to the tests on the grounds that they did not contain an adequate statement of the reasons on which they were based and that the procedure followed by the selection board was irregular.

5 In compliance with that judgment, the Director of Personnel of the Commission decided to call on the selection board to resume its work as from the point where it had been declared irregular by the Court. By a memorandum of 26 June 1989, he informed the applicants of this, stating that the selection board would be reconsti­ tuted with its original members, unless they were 'no longer eligible'.

6 On 7 September 1989 a meeting was held between the Commission, represented by its Director of Personnel, and the representatives of the various trade unions for officials to which the candidates for competition COM/B/2/82 affected by the judgment in Bascb and Others ν Commission were affiliated.

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.

The reference period to be taken into account when considering whether candidates are to be admitted to the competition shall be the period ending on 25 February 1982 or, if considered fair, on the date up to which the performance of other can- didates, who either did not complain or were successful, was assessed.

I have noted the concern of the staff representatives — which I share — that the selection board should resume its work as soon as possible (N. B.: theoretically on 15 September 1989). I will also inform Mr P. of the request submitted for examin- ing the possibility of adjusting the careers of such successful candidates as may be appointed in the future, so that it can be established in good time before a list of successful candidates has been drawn up.'

8 Subsequently, the candidates were again invited to appear before the selection board in October, November and December 1989 in order to be informed of the names of their assessors and of the officials responsible for supervising them. Fur- thermore, the selection board asked whether they wished to have other persons heard who might have assessed their professional abilities and of whom the selec- tion board might not be aware.

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CAMERA-LAMPITELLI AND OTHERS ν COMMISSION

1 3 Those complaints were not given an explicit answer. However, the interdepartmen­ tal group responsible for considering the said complaints noted at its meeting of 6 March 1991 that the candidates had not been informed, before being heard by the selection board, of the content of the opinions expressed by their immediate supe­ riors or the persons whom they had themselves designated to be heard by the selec­ tion board. For that reason, the administration informed the candidates, by letter of 13 March 1991, that they were to be invited to a further interview with the selection board.

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JUDGMENT OF 15. 7. 1993 — CASE T-27/92

14 Those interviews took place in April 1991. Subsequently, the selection board con- firmed the previous admissions to the competition and admitted four new candi- dates to the tests, namely Ms Camera-Lampitelli, Ms Kottowski, Ms Lutz and Ms Seube. The written tests took place on 5 and 6 July 1991. At the end of the tests, out of the applicants, only Ms Keller was placed on the list of successful candidates.

15 The applicants were notified of the result of the competition by letter of 26 July 1991, sent to the applicants on 27 July 1991. That letter reads as follows:

'Following your participation in the written tests in the above competition which took place on 4 and 5 July 1991, I am able to inform you that the selection board has completed its work.

By that letter, the candidates in question were notified that the selection board had completed its work but, in view of their performance, was unable to include them on the list of suitable candidates.

However, it is clear from the case-law of the Court of Justice (Case 108/84 De Santis ν Court of Auditors [1985] ECR 947 and Case 225/82 Versyck ν Commission [1983] ECR 1991) that the Selection Board may "initially send to candidates merely information on the criteria for selection and the result thereof and not give indi­ vidual explanations until later and to those candidates who expressly request them".

Since the applicant did not request individual explanations from the chairman of the selection board, she cannot in this complaint challenge the abovementioned let­ ter on the ground that it did not state the reasons on which it was based. Never­ theless, the details of the applicant's performance in the tests for the competition will be sent to her.'

18 It is against that background that the applicants brought this action on 13 April 1992. By order of 28 April 1993 the Court of First Instance Joined Case T-27/92 to Joined Cases T-17/90, T-28/91 and T-17/92 for the purposes of the oral procedure.

19 Upon hearing the report of the Judge-Rapporteur, the Court of First Instance (Third Chamber) decided to open the oral procedure without anv preparatory inquiry. However, it called on the Commission to supplv certain information regarding the composition of the selection board following the judgment in Basch and Others ν Commission. The Court also requested the Commission to produce certain documents concerning the procedure for admission to the competition. The

2. order the Commission to accord to the applicants appropriate retroactive treat- ment by granting them the same benefits as those candidates appointed, or even promoted, as a result of Competition COM/B/2/82;

3. order the Commission to pay the applicants BFR 200 000, subject to increase in the course of the proceedings, as compensation for material damage;

4. order the Commission to pay the applicants BFR 100 000, subject to increase in the course of the proceedings, as compensation for non-material damage;

5. order the defendant to pay Ms Seube BFR 1 000 000, subject to increase in the course of the proceedings, as compensation for combined material and non- material damage;

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;

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Arguments of the parties

22 The Commission argues that the applicants' claim for compensation for material and non-material damage suffered and default interest thereon as from the date of their first complaint in 1984 is inadmissible. The Commission refers, in that regard, to the order of 6 February 1992 in Case T-29/91 Castelletti and Others ν Com­ mission [1992] ECR ΙΙ-77.

23 The Commission maintains that, since no application for damages or default inter­ est was submitted in compliance with the Staff Regulations, those heads of claim are clearly inadmissible, as was held in the abovementioned order.

24 The applicants state in reply that 'the order of 6 February 1992 is an opinion as against any decision to be referred, even subsequently. Unless it could be demon­ strated, which would seem doubtful, that the defendant could rely upon the prin­ ciple of binding precedent (stare decisis), the applicants would remain entitled to put forward arguments against the order of 6 February 1992. The applicants con­ sider that they may claim that, in so far as it is a new argument, recourse to

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JUDGMENT OF 15. 7. 1993 — CASE T-27/92

26 As regards the third, fourth, fifth and sixth heads of claim put forward by the appli­ cants, it must be pointed 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 principle, a two-stage procedure. As is apparent from Article 90(1), any person to whom the Staff Regulations apply may submit to the appoint­ ing 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 Commission [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).

27 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 t h e C o u r t of Justice, as analysed and elaborated b y t h e C o u r t of First Instance (see Case T-27/90 Latham ν Commission [1991] E C R ΙΙ-35,

28 In this case, the claims for damages put forward by the applicants seek compensa­ tion for the material and non-material damage allegedly caused by the fact that the applicants were not admitted to the tests for a competition until eight years had elapsed and after several court actions, circumstances which caused a delay in the advancement of their careers. T h e action is therefore based not on a single measure whose a n n u l m e n t is requested but on several wrongful acts and omissions alleged against the administration. It was therefore imperative that the administrative p r o ­ cedure preceding the c o m m e n c e m e n t of the action should have been initiated by a request by the persons concerned that the appointing authority c o m p e n s a t e them for that damage (see Castelletti and Others ν Commission [1992] E C R II-77 and Piette de Stachelski ν Commission, cited above) and continued, where appropriate, by a complaint m a d e against the decision to reject the request.

29 However, the m e m o r a n d a which the applicants sent to the appointing authority between 7 and 22 O c t o b e r 1991 were not preceded or followed, in sufficient time, by any other a p p r o a c h t o the administration satisfying the requirements of Article 90 of the Staff Regulations.

3 0 It follows that, even on the assumption that the abovementioned m e m o r a n d a are to be interpreted as complaints within the meaning of the Staff Regulations, it is established that the pre-litigation p r o c e d u r e did not take place in t w o stages in accordance with Article 90 of the Staff Regulations, since those complaints were not preceded by requests. If those m e m o r a n d a are to be construed as requests, it is likewise established that n o complaint was lodged against the decisions to reject them. It clearly follows that the action, in so far as it seeks the award of damages, was not b r o u g h t in the m a n n e r laid d o w n by the Staff Regulations and is thus inadmissible.

Arguments of the parties

33 The applicants claim, first, that the decision of the Director of Personnel, which was communicated to them by his memorandum of 26 June 1989, did not comply with the judgment in Basch and Others ν Commission and that the reconstruction of the selection board announced in the memorandum was in fact impracticable. In the latter regard, the applicants argue that not only the chairman of the selection board, who was in no way prevented from continuing to carry out her duties, but also other members of the selection board were replaced without any of them hav­ ing been 'no longer eligible'. The 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 Commission claims. According to the appli­ cants, she was unjustified in refusing to take on the chairmanship of the selection board, which only she had the capacity to take on. The applicants consider that because 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.

3 5 Secondly, the applicants claim that the training they received by way of prepara­ tion for the written tests was not of the same standard as that which officials pre­ viously admitted t o the tests for the competition had received.

36 T h e C o m m i s s i o n states in this regard that the training p r o g r a m m e in which the applicants participated was of the same standard as that which the o t h e r candidates had followed previously, since the syllabuses were identical. In that connection, the C o m m i s s i o n , at the C o u r t ' s request, p r o d u c e d the syllabuses for the training p r o ­ grammes preparing for the written tests in 1984 and 1991.

37 In reply to a question put by the C o u r t at the hearing, the applicants stated that they could not p r o d u c e specific evidence to substantiate that argument.

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JUDGMENT OF 15. 7. 1993 — CASE T-27/92

38 The applicants argue, thirdly, that the letter of 26 July notifying them of the result of the competition does not contain any statement of reasons for the negative result.

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CAMERA-LAMPITELLIAND OTHERS ν COMMISSION

43 In the case of a competition such as that in issue, where the Court of Justice has annulled a decision taken by the selection board for breach of the obligation to give a statement of reasons and for procedural irregularity, compliance with the judg­ ment involves restoring the situation prevailing prior to the occurrence of the facts found unlawful by the Court.

44 However, it is apparent from the documents before the Court that it was not pos­ sible, in this case, to restore the situation to exactly what it was prior to the decision annulled by the Court of Justice, since certain members of the selection board had resigned in the meantime. In those circumstances, it is necessary to determine whether the changes to the composition of the selection board were such as to make its subsequent work irregular.

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47 It follows from the foregoing considerations that, on the facts of the case, the changes to the composition of the selection board were the result of its being impossible for the administration to reconstitute the said selection board as origi­ nally composed. Those changes were therefore not unlawful, since the administra­ tion acted only in order to ensure the continuity of the Community civil service, and particularly since no misuse of power is alleged.

48 The composition of the selection board, such as it was at the time of the facts in issue, was not therefore such as to invalidate the selection board's work and the first plea must therefore be dismissed.

49 As to the second plea relied upon by the applicants, based on an infringement of the principle of equal treatment, in so far as the standard of the preparatory train­ ing which they received was below that of the training received by other candi­ dates, it is sufficient to note that the applicants have not adduced any evidence in support of their contentions and that from reading the syllabuses on the basis of which the training programmes in question were drawn up there appears to be no appreciable difference in the standard of the training programmes run in 1984 and 1991 respectively.

50 It follows from the foregoing, that the second plea must be dismissed.

52 In the present case, the statement of reasons given in the letter of 26 July 1991 for justifying the selection b o a r d ' s refusal t o pass the applicants in the competition referred to 'results w h i c h ' the applicants had O b t a i n e d ' . Even t h o u g h this was n o longer a competition in which there were a 'large n u m b e r of applicants' within the meaning of the case-law — at the stage in issue, n o m o r e than 11 persons were involved — the selection board was entitled initially not to send t o the applicants the details of the results which they obtained in the written tests, provided that they were informed that those results were not satisfactory and retained the right to request further details from the selection board (see Verzyck ν Commission, cited above). Following their complaints, moreover, the results of the tests were in fact sent to the applicants. T h e applicants were, therefore, in a position, d u r i n g t h e pre- litigation p r o c e d u r e , to k n o w the details of the results they obtained in the written tests and thus able to assess the desirability of bringing an action (see Joined Cases T-160/89 and T-161/89 Kalavros ν Court of Justice [1990] E C R II-871).

53 Moreover, it has been consistently held that an applicant can have n o legitimate interest in obtaining the a n n u l m e n t , on the g r o u n d of the absence or inadequacy of the reasons on which it is based, of a decision which could only be confirmed (see Case 9/76 Morello ν Commission [1976] E C R 1415, Case 117/81 Geist ν Commis­ sion [1983] E C R 2191 and Case 432/85 Souna ν Commission [1987] E C R 2229). In this case, the applicants' results in the tests c a n n o t be changed following a n n u l m e n t of the letter of 26 July 1991, on the g r o u n d of the absence of reasons. In those cir­ cumstances, even if the statement of reasons for the said decision were insufficient, there would be n o need for the C o u r t t o annul it.

56 As regards the complaint put forward by Ms Passera, the Commission explains that during the marking of the tests, it turned out that the over-specific references to the applicant's training and career removed the anonymity needed for marking. Furthermore, the Commission denies that another candidate who passed the com- petition identified himself or herself during the written tests.

57 Ms Demory-Thyssens argues that the training which she received took no account of 'archives', a subject tested in the competition.

58 The Commission has not made any reply to that complaint.

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Findings of the Court

JUDGMENT OF 15. 7. 1993 — CASE T-27/92

Costs

64 In accordance with Article 87(2) of the Rules of Procedure of the Court of First Instance, the unsuccessful party 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 by Community servants the institutions are to bear their own costs.

On those grounds,

THE COURT O F FIRST INSTANCE (Third Chamber)

hereby:

Registrar President

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