JUDGMENT OF 26. 10. 1978 — CASE 122/77 CLAES v COMMISSION

In Case 122/77

THE COURT (Second Chamber) composed of: Lord Mackenzie Smart, President of Chamber, M. Sørensen and A. Touffait, Judges, Advocate General: G. Reischl Acting Registrar: F. Kohl

gives the following

JUDGMENT

Facts and Issues

I — Facts and procedure

II — Conclusions of the parties

III — Submissions and arguments of the parties

1. Facts

2. Admissibility

A. The first submission of the applicants

B. The second submission of the applicants

C. The third submission of the applicants

Decision

First submission

Second submission

Third submission

Costs

I —. Facts and procedure

1. Advanced secondary education, with certificate, and at least six years' experience of Category C duties in the fields described under Nature of Duties as executive secretary, principal secretary or shorthandtypist or in some other similar capacity appropriate to those duties and

2. A total of five years' service with the Communities as an official or other servant or

3. At least 15 years' practical experience in the fields described under Nature of Duties.

1. At least 12 years' practical experience of Category C duties as executive secretary, principal secretary or shorthand typin or in some other similar capacity appropriate to the duties described under Nature of Dudes' and

2. A total of 11 years' service with the Communities as an official or other servant.

II —. Conclusions of the parties

1. The applicants claim that the Court should:

2. The Commission contends that the Court should :

III —. Submissions and arguments of the parties

1. Facts

(a). The applicants observe that it was the examiners who determined the combination of the so-called objective criteria. This appears from Annex II to the report of 2 December 1976 which the examiners made to the selection board regarding the execution of their instructions.

(b). In the Commission's view it is apparent from the examiners' report to the selection board and the annex thereto that the examiners confined themselves to proposing to the selection board guidelines which the selection board approved, since it then invited the examiners to continue their work by taking into account the other criteria set out in their instructions.

2. Admissibility

(a). The Commission points out that one of the applicants, Mrs Scheffelaar, was not admitted to the competition and she was informed of this by letter dated 26 October 1976Because the admissions stage could not be questioned any annulment could apply only to matten subsequent thereto. Accordingly Mrs Scheffelaar has no interest in the action since the contested decisions do not adversely affect her.

(b). Mrs Scheffelaar observes that she lodged a preliminary complaint to which the Commission replied without mentioning the fact that she had been excluded from the competition. On the contrary, her complaint was dismissed on the ground that in allotting the vacant B posts it was necessary to choose 114 candidates from among a total of 550 who had the qualifications referred to in the notice of competition. The applicant could thus infer that she was included in the list of eligible candidates. The Commission must show that it was not so by producing the said list. Even if the Commission does provide such proof the applicant has been misled and the Commission ought therefore to be ordered to pay the costs of her application.

A. The first submission of the applicants

1. The fint submission is that the decisions which the applicants are seeking to have annulled violate the general principles on the methods by which a selection board for a competition based on qualifications reaches its verdict and the first paragraph of Article 30 of the Staff Regulations, and that there was an incorrect application of the second paragraph of Anide 3 of Annex III to the Staff Regulations.

2. The Commission fint of all stresses the fact that the applicants have not shown evidence that the use of examiners adversely affected the objectivity of the competition. The fact that the examinen were chosen equally from staff and administration is on the contrary such as to offer the candidates guarantees comparable to those offered by the selection board itself.

3. The applicants in reply say that it is irrelevant whether recourse to examinen could have adversely affected the objectivity of the competition. The Commission overlooks the fact that disregard of essential procedural requirements leads to the annulment of the consequent decisions. The applicants do not know, moreover, whether there has been a misuse of powen, since the whole file has not been produced.

4. The Commission alleges in its rejoinder that it is not possible to infer from the judgment of the Court in Case 90/74 Deboeck that it is improper to have recourse to examiners in all cases other than those expressly provided for in the second paragraph of Article 3 of Annex III to the Staff Regulations.

B. The second submission of the applicants

1. The submission here is that there has been an infringement both of the general principle of the equality of candidates admitted to a competition and of the first paragraph of Article 30 and Article 6 of Annex III to the Staff Regulations. The infringements are alleged to be that the selection board first of all drew up a provisional list of suitable candidates on the basis of socalled objective criteria and then submitted that list for comment to the Directorates General. The applicants consider that all the candidates admitted to a competition based on qualifications should be treated in the same way. The secret nature and independence of the deliberations of a selection board moreover prevent it from seeking at such time and on the basis of a preliminary selection the opinion of the Directorates General.

2. Regarding the alleged violation of the general principle of the equality of candidates, the Commission refers to the facts of the case. In particular it stresses that the merits stricto sensu of the candidates, namely the staff reports in particular, were considered in the case of all eligible candidates.

3. In their reply the applicants claim further unfairness in that the candidates who did not satisfy the objective criteria were chosen according to another criterion, namely their exceptional merit. These candidates do not satisfy all the conditions since they do not fulfil the objective criteria.

4. The Commission takes the view that to require candidates who did not satisfy the objective criteria to show especially high qualifications in relation to the other criteria in order to be included in the list of suitable candidates was simply the effect of a reasonable weighting made by the selection board as between the various criteria used for consideration of the qualifications.

C. The third submission of the applicants

1. The applicants submit here that the second paragraph of Article 30 and the fifth paragraph of Article 5 of Annex III to the Staff Regulations have been infringed in the first place because the selection board drew up a list of suitable candidates containing 114 names, whereas such a list ought to contain at least twice as many names as the number of posts to be filled. The fan that a provisional list containing 250 names was drawn up shows that it was possible to draw up a list containing twice as many names of successful candidates. In acting thus the selection board deprived the appointing authority of its discretion and exceeded its powers.

2. The Commission considers mat it is apparent from reading the provisions of the Staff Regulations cited in support of the third submission that the selection board is under no obligation in respect of the number to be included in the list of suitable candidates: the sole effect of the second paragraph of Article 30 is to require the appointing authority to fill the vacant posts exclusively from the list of suitable candidates; the wording of the fifth paragraph of Article 5 of Annex III to the Staff Regulations makes it clear that the selection board is not bound to any specific number in drawing up the list of suitable candidates: it is simply requested wherever possible to include at least twice as many names as the number of posts to be filled. Mandatory rules in the matter are not consistent with the principle of the independence of the selection board and its necessary freedom of judgment.

3. In reply, the applicants sute that the ratio legis of the fifth paragraph of Article 5 of Annex III to the Staff Regulations is to prevent the selection board from taking the place of the appointing authority by drawing up a list of successful candidates equal, or approximately equal, to the number of vacant posts. It is for the selection board to show that the qualifications of the candidates were insufficient, so that it was impossible to draw up a longer list; this was not done.

4. In its rejoinder, the Commission observes that it is incorrect to claim that the appointing authority required the selection board to include in the list of suitable candidates a number roughly equal to that thought to be allowed for in the budget. Assuming, however, for the sake of argument that such mandatory instructions had been given to the selection board they would not have been bound by it and consequently would not have been capable of vitiating the competition. It is apparent, on the other hand, from the notice of competition that two kinds of solution were contemplated by the appointing authority, namely, on the one hand, the case where the selection board would draw up a list of candidates exceeding by 30 % the number of posts available in the budget, and, on the other hand, the case where consideration of the qualifications would produce a list smaller in number.

1. The application is essentially for the annulment of the decision of the selection board for Internal Competition No COM/BS/14/75, concerning the drawing-up and the contents of a list of 114 suitable candidates and the annulment of the appointments made consequent upon that competition.

2. The competition in question was organized as an internal competition based on qualifications and possibly on tests to constitute a reserve of secretarial assistants in grades 5 and 4 of Category B following the reclassification of some 100 posts previously classified in Category C.

3. The list of candidates drawn up by the appointing authority and forwarded to the chairman of the selection board in accordance with Article 4 of Annex III to the Staff Regulations contained 775 names, from which the selection board selected 550 candidates as fulfilling the conditions defined in the notice of competition in respect of qualifications and vocational experience.

4. All the applicants save one are among the candidates so admitted.

5. After having recourse to the assistance of a board of examiners the selection board at the end of its proceedings drew up a list of suitable candidates containing 114 names which did not include those of the applicants.

6. Finally, 109 candidates from those 114 were appointed to the posts in question.

7. The applicants claim, in the first place, that the first paragraph of Article 30 of the Staff Regulations was infringed because the selection board called upon examiners to draw up the list of suitable candidates, whereas the second paragraph of Article 3 of Annex III to the Staff Regulations authorizes recourse to examiners only for certain tests and in so doing provides in addition that such examiners shall serve only in an advisory capacity.

8. The second paragraph of Article 3 of Annex III cannot, however, be understood as enumerating exhaustively the cases in which a selection board may legitimately have recourse to the assistance of examiners in an advisory capacity and, in particular, does not prevent a selection board from having recourse to such a procedure in cases where the large number of candidates involved in a competition would otherwise prevent the selection board from completing its work within a reasonable period.

9. It is necessary, however, for the selection board to retain ultimate control over the procedures and its discretionary power.

10. That condition has been satisfied in the present case.

11. It is apparent from the particulars supplied during the course of the proceedings that the selection board not only controlled the establishment of the criteria according to which the matters to be taken into account in accordance with the notice of competition were to be assessed, but also followed the work of the examiners at all stages in order, on the basis of the proposals submitted by the examiners, itself finally to draw up the list of suitable candidates to be submitted to the appointing authority.

12. This submission therefore cannot be accepted.

13. The applicants further daim that the general principle of the equality of candidates admitted to a competition as well as Article 6 of Annex III to the Staff Regulations, according to which the proceedings of the selection board are to be secret, were infringed by the fact that a provisional list of suitable candidates was submitted, to obtain their opinion, to the departments and Directorates General to which the candidates belonged.

14. It is apparent, however, from the explanations given to the Court that each department or Directorate General was questioned by the selection board about all the candidates admitted to the competition who were in the service of the department or Directorate General in question, and not merely, as the applicants appear to imagine, about the candidates who were included in a provisional list because they satisfied certain criteria for the purpose of a preliminary selection.

15. That procedure therefore respected the principle of the equality of candidates in a competition.

16. It further appears that the purpose of seeking the opinion of the departments and Directorates General was to provide the selection board with additional information regarding the candidates and that the opinions sought related only to those who were in the service of each department or Directorate General in question.

17. The departments and Directorates General were thus not in a position to influence improperly the proceedings of the selection board or to have knowledge of those proceedings in a way likely to breach their secrecy.

18. This submission must also be rejected.

19. Finally, the applicants claim that the second paragraph of Article 30 of the Staff Regulations and the fifth paragraph of Article 5 of Annex III were infringed in that the selection board drew up a list of suitable candidates containing only 114 names, that is to say a number of candidates which exceeded only slightly the number of vacant posts, although such a list ought if possible to have contained at least twice as many names as the number of posts to be filled by the competition.

20. In this respect it hai not been shown, as the applicants allege, that the appointing authority required the selection board to limit the list of suitable candidates to a number not appreciably in excess of the available budgetary resources.

21. If, nevertheless, the selection board decided to restrict the list of suitable candidates in such manner this cannot vitiate the result of its proceedings.

22. The fifth paragraph of Article 5 of Annex III is only a recommendation to the selection board, intended to facilitate the decisions of the appointing authority, and whether or not it is followed depends on the nature and circumstances of the competition, the number of candidates and their qualifications.

23. In the present case the manner in which the selection board drew up the list of suitable candidates was justified by the nature of the competition and the very large number of posts to which the competition related.

24. This submission must therefore also be rejected.

25. The application must therefore be dismissed as unfounded.

26. In these circumstances it is unnecessary to consider the objection made by the Commission to the admissibility of the application regarding one of the 15 applicants.

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

28. The applicants have failed in their submissions.

29. However, according to Article 70 of the Rules of Procedure, the costs incurred by the institutions in actions brought by servants of the Communities are not recoverable.

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

1 Dismisses the application.

2 Orders the parties to bear their own costs.