C-448/93

COMMISSION ν NOONAN

OPINION OF ADVOCATE GENERAL LÉGER delivered on 17 January 1995 *

1. In order to draw up a reserve list of honours degree in French and Italian Litera- C5/C4 secretaries of English mother tongue ture from University College, Dublin. the Commission held Open Competition No COM/C/741, notice of which was published on 24 December 1991. 1

4. The respondent brought an action chal- lenging that decision before the Court of First Instance on 21 August 1992, claiming that the exclusion of graduates from C com- petitions was incompatible with the Staff Regulations of Officials of the European Communities (‘the Staff Regulations’), the general principle of equal treatment and the 2. Point I I .B. 2 of the notice excluded can- freedom to pursue an occupation. didates possessing a qualification entitling them to participate in A or LA competitions.

5. Before submitting a defence to the action the Commission raised an objection as to admissibility on the ground that the alleged unlawfulness of the competition notice could not be relied upon in order to challenge a selection board's decision if the 3. The Selection Board informed the respon- provisions in the notice which were consid- dent in the appeal by letter of 9 June ered to affect the applicant adversely had not 1992 that it had decided to reject her appli- been challenged in due time. It relied prima- cation on the grounds that she had com- rily on the judgment of the Court of Justice pleted a university course and obtained an in Adams ν Commission, 2 and on that of the

1 — OJ 1991 C 333 A, p. 11 (English edition). 2 — Case 294/84 [1986] ECR 977.

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1. Does the case-law of the Court of Justice since the Adams judgment, which departed and the Court of First Instance permit an from the previous case-law, 'the time-limits action for the annulment of an individual for challenging the alleged illegality of a decision excluding a candidate from a compe­ competition notice cannot be reopened tition to be based on the unlawfulness of the except where the origin of any irregularities conditions laid down in the competition which occur in the course of the conduct of notice? the competition can be found in the wording of the competition notice;' 9

12. The Commission's argument may be summarized as follows: irregularities which occur in the course of the conduct of the competition cannot result from a provision in a competition notice which is clear and not open to any interpre­ tation whatsoever. 1 0 the competition notice is a decision by the appointing authority capable of adversely affecting an individual and of being the subject-matter of an action for annulment under the conditions referred to in Articles 90 and 91 of the Staff Regulations;

13. I have to say at the outset that I cannot discern in the case-law of the Court of Jus­ tice and the Court of First Instance the two trends distinguished by the Commission. On the contrary, I see a progressive refinement the notice of competition ceases to be chal­ of the views of the Community judicature, lengeable 3 months after it has been pub­ which I propose to set out here. lished;

a candidate to whom an individual decision refusing to admit him to a competition has 14. A crucial distinction runs through the been addressed may not seek the annulment case-law. of that decision on the ground that the com­ petition notice was unlawful unless the abovementioned three month time-limit can 8 — Cited above. be made to run anew, which would run 9 — Appeal, p. 8. counter to the principle of legal certainty; 10 — Ibid.

17. May a candidate seek to have a decision refusing to admit him to a competition annulled on the grounds that the compe­ tition notice is unlawful? In other words, 21. Pleas of illegality have been allowed in may he raise a plea of illegality, so to speak, the context of actions between the Commu­ in response to the selection board's decision nity and its servants brought under Article not to admit him to the competition? 179 of the EC Treaty and Article 91 of the Staff Regulations. In Acton ν Commission, 15 where the annulment of individual decisions making deductions from salary for strike

18. The Court has defined such a plea, for 11 — Case 92/78 [1979] ECR 777, para. 39. which provision is made in Article 184 of the 12 — Cited in footnote 11. EC Treaty, as one that 'gives expression to a 13 — Paragraph 40. 14 — Case 21/64 Macchiorlati ν High Authority [1965] ECR 175, general principle conferring upon any party at p. 187 in fine. to proceedings the right to challenge, for the 15 — Joined Cases 44/74, 46/74 and 49/74 [1975] ECR 383.

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22. In my view, between the Court's judg­ ment of 31 March 1965 in Ley ν Commis­ sion 17 and that in Gallone (cited above) the decisions cited by the parties have applied precisely that principle, defining progres­ sively the conditions for implementing it in the particular field with which we are con­ As regards competitions, it should be noted cerned here: that the competition notice is a measure of general scope (which the respondent has compared to a notice of invitation to ten­ der 21) which may only in exceptional cir­ cumstances be the subject-matter of an action for annulment brought by an individ­ (1) The general and impersonal act must ual. Küster ν Parliament 22 is unusual in that be one not open to direct challenge by regard. The notice of internal competition in individuals, or only exceptionally so. As the that case laid down certain language require­ Court stated in Simmenthal, '[the] wide ments as a condition for access to the post, interpretation of Article 184 derives from the need to provide those persons who are 18 — Paragraph 41. 19 — Case C-188/92 [1994] ECR I-833. 20 — Paragraph 24. 16 — Paragraph 7. 21 — Paragraph 3.8 of the Reply. 17 — Joined Cases 12/64 and 29/64 [1965] ECR 107. 22 — Case 79/74 [1975] ECR 725.

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the result of which was to exclude Mr Küster Regulations) must be rejected in so far as it and to damage his chances of promotion. concerns the (failure to indicate) in the com­ petition notice ... the marks to be carried by certain tests, it must still be considered in so far as it concerns the reasons on which the 27 contested decision is based', I should add that in practice competition notices are not challenged before the applica- tions to take part have been submitted; it is the individual decision excluding the candi- date which brings the challenge. It is there- and, even more clearly, in Agazzi Léonard ν fore exceptional, but not impossible, for an 2 Commission: 8 action to challenge directly the notice of competition. 23

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was based primarily on the following two tion with the reasons for the decisions not to complaints. admit (inadequate qualifications and experi­ ence) that the Court rejected them as inad­ missible, pointing out that the challenges to the individual decisions were in fact being used as a means of challenging the lawfulness of the competition notice. 30 25. In the first case, the competition notice violated Article 1(d) of Annex III of the Staff Regulations by failing to specify the diplo­ mas and other evidence of former qualifica­ tions or the degree of experience required for the posts to be filled. The information sup­ plied by letter subsequently was given too late. 29. Consequently, the Court confined its consideration of the substance to the submis­ sions alleging that certain actions of the selection board during the procedure were unlawful. 31

'... any official who takes the view that the illegal character of a notice of competition '... in that case, the pleas based on the unlaw­ has an adverse affect on him must challenge fulness of the competition notice, which that notice in good time. Were it otherwise, were dismissed as inadmissible, were not it would be possible to challenge a compe­ argued by the applicants in relation to the tition notice long after it had been published statement of reasons for the decisions not to and after most, or all, of the operations car­ admit them to the tests, which were at issue ried out in connection with the competition in the application.' 3 2 had already taken place, which would be contrary to the principles of legal certainty, legitimate expectation and sound administra­ tion.' 3 3

32. If, on the contrary, the contested provi­ 35. They add: sions in the notice are those on which the decision not to admit the candidates is based, is the plea of illegality then admissible? Is there the 'direct legal connection' referred to in the decisions of the Court concerning the plea of illegality provided for in Article 184 of the Treaty? 'Failure to challenge a notice of competition within the time-limit ... does not prevent an applicant from relying on irregularities occurring in the course of the competition, even if the origin of those irregularities may be found in the wording of the notice of competition'. 3 4

33. Adams does not supply the answer to 33 _ Joined Cases 64/86, 71/86, 72/86, 73/86 and 78/86 Sergio ν that question. Commission [1988] ECR 1399, para. 13. See also paragraph 15 of Simonella and paragraph 22 of Agazzi Léonard, both cited above. 34 — Sergio, para. 15. See also paragraph 16 of Simonella, para- graph 23 of Agazzi Léonard, and paragraph 20 of the judg- 32 — Paragraph 25 of the judgment appealed against. ment of the Court of First Instance in Gallone, cited above.

39. How does that affect the respondent? The refusal to admit her to the competition 43. There is no indefinite extension of the is directly attributable to the condition time-limit for bringing an action for annul­ regarding the absence of a university qualifi­ ment for the simple reason that in this case cation which appears in the competition the action is not an action for annulment. notice. The plea challenging that condition is directly linked to the reasons for the con­ tested decision, as the Court of First Instance found in paragraph 29 of the judgment.

44. The plea of illegality must not be con­ 35 — Paragraph 27 of the judgment appealed against. fused with such an action, which produces

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different effects. 'The regulation will not be grounds for the individual decision not to annulled erga omnes. It will be declared admit the candidate. inapplicable in so far as it has been applied in the individual decision. The ruling will be effective only as between the parties and does not place the existence of the regulation itself at issue'. 36 A plea of illegality therefore 3. Has the time-limit laid down by the Staff constitutes a challenge to such a measure Regulations been 'unduly extended'? only in a very narrow sense.

45. Furthermore, the clear provisions of the 46. I have already dealt with this third competition notice fall to be debated only in plea, 3 7 which does not call for further dis­ so far as they are directly linked to the cussion.