JUDGMENT OF 14. 7. 1965 — JOINED CASES 18 AND 19/64 ALVINO v COMMISSION

In Case 18/64

THE COURT (Second Chamber) composed of: A. M.Donner (Rapporteur), President of Chamber, W. Strauß and R. Monaco, Judges, Advocate-General: J. Gand Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Facts

I — Nature of duties : Administrators

II — Competition :

1. Necessary qualifications and experience:

2. Knowledge of languages:

3. Age:

II — Conclusions of the parties

As a subsidiary matter:

III — Submissions and arguments of the parties

Admissibility

The substance of the case

IV — Procedure

Grounds of judgment

The substance of Application 18/64

Application 19/64

Costs

I —. Facts

I —. Nature of duties : Administrators

II —. Competition :

1. Necessary qualifications and experience:

(a). Qualifications:

(b). Experience:

2. Knowledge of languages:

3. Age:

II —. Conclusions of the parties

1. Declare null and void Notice of Internal Competition No 165-A and, to the extent necessary, the decisions taken to hold this competition and to publish the abovementioned announcement which forms the basis of the Notice of Competition;

2. Declare null and void the decision of 19 June 1963, taken by the Commission at its 232nd meeting, concerning the composition of Selection Boards in competitions (Executive Secretariat S/01965/63) (memorandum of 21 June 1963);

3. In any event, declare null and void Internal Competition No 165-A by reason of both the irregular composition of the Selection Board and the irregular procedure followed, and for the reasons set out in the application, with all the consequences that this entails both in fact and in law, in particular as regards the appointments made on the basis of the competition in dispute;

4. Declare null and void the inclusion in the list of suitable candidates of auxiliary staff recruited after 1 January 1962;

5. To the extent necessary and as the Court shall see fit, declare null and void the express or implied decisions of .the Commission adopting the results of the competition and the lists drawn up in consequence thereof;

6. Order the defendant to pay all the costs of the proceedings.

1. on the reasons why the Selection Board in Competition No 164-B (a competition held in order to establish a reserve list for future recruitment for posts in Category B) considers itself unable to fulfil its task;

2. on the vacant posts which Competition No 165-A was intended to fill:

3. on the appointments made on the basis of the said competition.

III —. Submissions and arguments of the parties

(A). the collective nature of the applications;

(B). their introduction out of time;

(C). the lack of purpose, or of purpose recognized by law, in the applications.

(A). The defendant observes that by means of joint applications a group of applicants is requesting the annulment of a series of measures which are in no way of equal concern to them. They base their claims on situations which can only be personal to each of them and the irregularities referred to in the proceedings of the Selection Board could only apply individually to each candidature and to the information thereon.

(B). The defendant claims that the applications are out of time since their object is the annulment of Notice of Competition No 165-A, published in Bulletin No 48 of 16 August 1963 and no application has been lodged against this notice in the three months following its publication.

(C). According to the defendant the applications are inadmissible on the grounds of lack of purpose and lack of identification or of the unlawful nature of such purpose. The applications contain several submissions in favour of the annulment of unidentified express or implied decisions of the Commission adopting the results of the competition, as well as the lists drawn up and appointments made on the basis thereof.

(A). The notice of competition was published and the competition organized without the preliminary preparation of implementing provisions in accordance with Article 110 of the Staff Regulations. These provisions were not drawn up after consulting the Staff Committee and the Staff Regulations Committee as laid down in Article 110 and in addition they were not brought to the notice of the staff.

(B). As the competition was intended to recruit administrators for all the departments of the Commission the notice of competition ought to have been drawn up after the heads of departments concerned had been consulted; this was not done, and thus Article 1 of Annex III to the Staff Regulations of Officials is infringed.

(C). (In Case 18/64) By requiring that candidates possess experience equivalent to a university education, supported by a degree, the notice of competition strained the meaning of the second subparagraph of Article 5 (1) of the Staff Regulations which, when prescribing that Category A shall comprise eight grades, divided into career brackets ordinarily containing two grades each for staff engaged in administrative and advisory duties which require university education or equivalent experience in employment, laid down no such requirement.

(D). By providing that candidates will be required to attend an interview with the Selection Board in order to demonstrate that they possess the knowledge of languages and other skills necessary for the post, the notice of competition contradicts the very concept of a competition on the basis of qualifications, since any test of the candidates on their linguistic or other abilities could only take place within the context of a competition on the basis of tests and according to the conditions laid down for this type of competition by Annex III.

(E). By allowing competitions to be held for the purpose of constituting a reserve for future recruitment, Article 29 only intended to refer to open competitions for recruitment to minor posts.

(F). The directives concerning the composition of Selection Boards in competitions, drawn up by the Commission on 19 June 1963 during its 232nd meeting and given on 21 June 1963, were not observed as regards the composition of the Selection Board for this competition. Thus, applying the rule patere legem quam ipse fecisti, the composition of the Selection Board was irregular for the following reasons:

(G). (In Case 18/64) By regarding experience in employment over a period of six years as not equivalent to university education, supported by a degree the Selection Board introduced an additional criterion.

(H). The Board also took into account reports appearing in the personal files of the candidates, that is, it considered a factor which, not being mentioned in the notice of competition, could not validly be considered.

(I). Since the decisions of the Selection Board for the competition not to include the applicants in the list provided for in the first subparagraph of Article 5 of Annex III to the Staff Regulations of Officials constituted decisions adversely affecting the parties concerned, they should have been notified to the candidates according to Article 25 of the Staff Regulations; no such notification took place.

IV —. Procedure

On those grounds, Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties; Upon hearing the opinion of the Advocate-General; Having regard to the Treaty establishing the European Economic Community; Having regard to the Staff Regulations of Officials of the European Economic Community, especially Article 91 and Annex III; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, especially Article 69; THE COURT (Second Chamber) hereby :

1 Declares that Application 18/64 is well founded;

2 Annuls Internal Competition No 165-A and the appointments mad by the Commission on the basis thereof;

3 Declares that no decision need be given in Applications 19/64;

4 Orders the defendant in Application 18/64 to pay the costs;

5 Orders that the parties in Application 19/64 shall bear their own costs.