JUDGMENT OF 16. 10. 1975 — CASE 90/74 DEBOECK v COMMISSION

In Case 90/74

THE COURT (First Chamber) composed of: J. Mertens de Wilmars (Rapporteur), president of Chamber, R. Monaco and A. O'Keeffe, Judges, Advocate-General: J.-P. Warner Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts

I — Facts and procedure

II — Conclusions of the parties

III — Submissions and arguments of the parties

Law

First submission

Second submission

Third submission

Fourth submission

Fifth and sixth submissions

Costs

I —. Facts and procedure

1. In 1955 the applicant entered the service of the High Authority of the ECSC and on 1 January 1960 transferred to the service of the Commission of the EEC. Since 1 January 1970 she has been at Step 8 in Grade C 1, that is to say, the highest step in that grade.

2. The notice of competition provided for three compulsory and two optional tests. The former consisted of a written test, practical tests and two oral tests. To qualify for the oral tests the candidates had to obtain a minimum of 10 out of 20 marks in the written test and 15 out of 30 marks in the practical tests.

II —. Conclusions of the parties

1. declare null and void the entire procedure of Internal Competition COM/BS/9/73 and consequently the appointments made on the basis of that competition;

2. if appropriate, declare null and void the refusal to allow the applicant to take part in the oral and optional tests;

3. declare null and void the express rejection of the applicant's complaint by the defendant's letter of 21 August 1974;

4. order the defendant to bear the costs and expenses of the proceedings;

5. order the defendant to produce without exception all the documents relating to the abovementioned competition, particularly the decisions of the Council of Ministers, the preparatory documents relating to the decisions taken by the Commission, the said decisions of the Commission, all communications, notices, and in general all publications whatsoever relating to the abovementioned competition which appeared in the Staff Courier or in any other publications addressed to the staff, the minutes of the selection board together with all documents relating to the competition which were submitted .to the selection board and/or to the examiners so that they may calculate the candidates' marks, and in particular all the situations which were the subject of the practical tests; the above list of documents is illustrative and not exhaustive.

III —. Submissions and arguments of the parties

1. A first submission is derived from the fact that contrary to the second paragraph of Article 4 of the Staff Regulations of Officials no vacancy notice was published.

2. The applicant maintains secondly that the fact that the same tests for the two types of post to be filled were prescribed and arranged constitutes an infringement of Article 5 (4) of the Staff Regulations of Officials in that the correspondence between basic posts and career brackets as set out in Annex I to the Staff Regulations of Officials was disregarded, since in Category B the posts of Senior Secretarial Assistant and Secretarial Assistant correspond to two distinct grades.

3. The third submission is based on the fact that the circumstances under which the competition took place give the impression that it was a competition based on tests only, whereas the notice of competition provided for a competition based on qualifications and tests. Under heading V the notice of competition indeed provided for marking for professional experience but it was a mere fiction since regard is had only to seniority in the service without taking into account the importance of the duties according the their specific features. In view of the desired objective of the competition, which was to provide a new career bracket for officials who had some time ago reached a point where they could progress no further in their career bracket, a notice of competition prescribing only relatively short seniority in the service of the Communities, five years, and making the wholly relative consideration of professional experience conditional on prior success in the eliminatory written and practical tests, must be considered as inconsistent and contrary to the principle patere legem quam ipse fecisti.

4. According to the applicant the competition in dispute is also unlawful because, although the chairman of the selection board was an official when he was appointed he was no longer one when he carried out his duties. In accordance with the spirit and the practice of the Staff Regulations the chairman of the selection board must be an official when there is a competition the object of which is the promotion of officials engaged in executive duties.

5. In her fifth submission the applicant criticizes the form in which the practical tests were conceived and the manner in which they were carried out Those tests were organized in a new form which, according to its advocates, was designed so that persons with considerable practical experience as secretaries should not be discouraged from entering a competition which, because it is based on excessively theoretical skills, might seem to them to favour candidates who were less experienced but who had had more recent schooling. The results of the competition indicated that the object in view was not attained: candidates with long secretarial experience, advanced training as high-level secretaries and with good periodical reports were eliminated in favour of candidates without much experience who had often been trained by the former.

6. The applicant finally criticizes the use of private. undertaking both for the choice of tests and their marking. Moreover, since the results were handled by a computer, it was impossible for the selection board to check the tests and the marking.

1. The application lodged at the Court Registry on 21 November 1974 is essentially for the annulment of internal competition COM/BS/9/73 based on qualifications and on tests organized by the Commission and relating to posts of Senior Secretarial Assistant in Grades B 3 - B 2 and Secretarial Assistant in Grades B 5 - B 4 and, consequently, for the annulment of the appointments made following this competition.

2. The applicant relies on various submissions, the first based on the absence of a vacancy notice preceding the notice of competition, and the others based on irregularities allegedly vitiating the organization and the conduct of the tests and on their incompatibility with the objective pursued by the Council of Ministers in adopting Regulation No 1473/72 of 30 June 1972 (OJ L 160 of 16. 7. 1972 p. 1) amending Annex I to the Staff Regulations of Officials by the creation of two new basic posts.

3. The Commission, in order to meet the needs of Executive Secretaries and Principal Secretaries within career bracket C 1 and of Secretary/Shorthand-typists in career bracket C 3 - C 2, who are frequently held back in these grades at the end of their careers and because it considered that about 10 % of these secretaries carry out secretarial duties of category B obtained from the Council the conversion of a certain number of posts previously classified under Category C into posts of Senior Secretarial Assistant within career bracket B 3 - B 2 and of Secretarial Assistant within career bracket B 5 - B 4.

4. Without publishing a vacancy notice, the Commission organized an internal competition based on qualifications and tests, the conditions of which specified, inter alia, that the 40 highest placed candidates, provided that they had obtained a total of 70 marks in the compulsory tests, would be appointed to posts converted to Senior Secretarial Assistant in Grade B 3 and that the next 40 candidates, provided that they had obtained 60 marks, would be appointed to posts of Secretarial Assistant in Grade B 5.

5. This competition, the contents of which were identical for posts of Senior Secretarial Assistant (B 3 - B 2) and of Secretarial Assistant (B 5 - B 4) included, in addition to optional tests, compulsory tests, first written and then practical, and, for the candidates who had passed those tests, an oral test.

6. Lastly, a system of bonus marks was provided for officials with greater seniority in the service of the Communities as a secretary and/or previous professional experience of secretarial work.

7. Thus the competition, without in principle excluding other candidates, clearly favoured secretaries of the Commission in career brackets C 1 and C 3 - C 2.

8. The applicant, an Executive Secretary in Grade C 1, was informed after taking part in the written and practical tests that she had not qualified for the oral tests.

9. Before commencing the examination of the first submission it should be said that there is room for doubt as to the regularity of a procedure for the regrading of certain posts as considered necessary, which results in determining from amongst, a number of posts those which are to be regraded, not in a general and abstract manner in accordance with the nature and the level of the duties which they involve, in accordance with the requirements of Article 5 and of Annex I of the Regulations, but, a posteriori, in accordance with results obtained after a competition between holders, of posts who, furthermore, will continue to carry out duties identical to those which they performed previously.

10. This argument, however, has not been raised and the Court considers that it is not necessary to examine it of its own motion.

11. According to the applicant the competition in question must be annulled because the notice of competition was not preceded by the publication of the vacancy notice which is required by the second paragraph of Article 4 of the Staff Regulations of Officials.

12. This submission, which relates to a condition of form to the fulfilment of which the regularity of the contested measure is subject, is inadmissible because of lack of interest on the part of the applicant.

13. Although the vacancy notice must necessarily precede the notice of competition, failing which there is an infringement of the second and third paragraphs of Article 4 of the Staff Regulations, this is in order to enable the appointing authority to examine, before commencing the procedure for a competition, whether the post should be filled by transfer or promotion.

14. The applicant, however, could not have benefited from either of these two measures since, being an official in Category C, she needed to obtain a post in Category B which, under Article 45 (2) of the Staff Regulations, can take place only on the basis of a competition.

15. Furthermore, that omission could also have adversely affected possible candidates who were thereby prevented from taking part effectively in the competition, but that is not the case as regards the applicant.

16. The submission must be rejected.

17. According to the applicant the contested decision infringes Article 5 of the Staff Regulations of Officials concerning the classification of posts and the description of duties corresponding toe each basic post, in that one and the same competition was organized for different posts corresponding to different grades.

18. The organization of one competition for different posts would be incompatible with Article 5 mentioned above if this were to result in a clear inadequacy in the tests with regard to the evaluation which the selection board must make of the qualifications required to occupy either of the posts to be filled.

19. According to the description of duties laid down by the Decision of the Commission of 28 May 1973, the posts of Senior Secretarial Assistant (B 3 - B 2) and of Secretarial Assistant (B 5 - B 4) involve the performance of very similar duties but with a different level of responsibility, since holders of the former posts have to be capable of carrying out difficult and complex secretarial duties within the framework of general directives whilst holders of the latter must carry out the same duties under supervision.

20. In these circumstances, the organization of a single competition and the provision that the more responsible tasks will be reserved for the highest placed candidates and the tasks requiring less responsibility for those placed below the former, does not infringe Article 5 quoted above.

21. The submission must be rejected.

22. The applicant again claims that although the competition was based on qualifications and tests, the defendant attached too much importance to the tests and insufficient importance to the qualifications of the candidates.

23. In this respect, she refers to the wishes which were expressed by members of the Commission that careen at the top of Category C should be carried forward into a higher category.

24. She asks, for the purpose of providing support for her argument, that the Court should order the production of all documents and minutes of the Commission which led to the publication of the notice of competition.

25. It is established, as was pointed out above, that the aim of the contested competition was to give certain categories of officials held back in grades in Category C, or who might be held back there, the chance of access to grades in Category B.

26. However, neither the Notice to Staff from Mr Coppé, a member of the Commission, dated 6 June 1972 (Schedule V to the reply) nor his communication preceding the notice of competition make it possible to infer that the intention was to organize the competition so as to ensure, in fact, quasi-automatically, prolongation of careers for those with seniority.

27. Furthermore, if such had been the case, the appointing authority would have disregarded Articles 7 and 27 of the Staff Regulations.

28. Consequently the request for production of documents must be rejected.

29. Since a change of category was involved and a competition was consequently indispensable, the Commission enjoyed a wide discretion in deciding upon the criteria of ability required for the newly-created post and, consequently, in deciding upon the rules of the competition in view of these criteria and in the interests of the service.

30. No factor has been put forward to show that the Commission exceeded the limits of the discretion which is granted to it in this respect.

31. The submission must be rejected.

32. The applicant also claims that the competition is irregular because the Selection Board was presided over by a person not having the status of an official.

33. According to Article 3 of Annex III to the Staff Regulations of Officials.

34. The applicant wrongly deduces from this provision, and especially from the third paragraph thereof, that the Selection Board must be officials.

35. It appears clearly both from a comparison of the versions in the various languages and from the relationship between the first and third paragraphs of the said Article 3 that this provision must be interpreted as meaning that if the members of the Selection Board are officials, they must be of a grade at least equal to that of the post to be filled without, however, either the members or the chairman of the Selection Board having necessarily to be officials.

36. The fifth and sixth submissions criticize the organization of certain tests and in particular the intervention, for the practical tests, of a private undertaking working by means of computers.

37. These criticisms relating to the methods used in the tests with varying degrees of success, concern matters of fact which do not bring the legality of the competition into question.

38. On the other hand the intervention of a third party in the organization of the tests is authorized by the second paragraph of Article 3 of Annex III to the Staff Regulations on condition that it is in an advisory capacity and that the Selection Board regains ultimate control over the procedures and its discretionary power.

39. It has not been shown or even alleged that such was not the case.

40. These submissions must be rejected.

41. The applicant has failed in her application.

42. Under Article 69 (2) of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs.

43. Nevertheless, under Article 70 of the Rules of Procedure, in proceedings brought by servants of the Communities, institutions shall bear their own costs.

On those grounds, THE COURT (First Chamber) hereby:

1 Dismisses the application;

2 Orders the parties to bear their own costs.