JUDGMENT OF 13. 2. 1979 — CASE 24/78 MARTIN v COMMISSION

In Case 24/78

THE COURT (Second Chamber) composed of: Lord Mackenzie Stuart, President of Chamber, M. Sørensen and A. Touffait, Judges, Advocate General: F. Capotorti Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts and Issues

I — Facts and procedure

II — Conclusions of the parties

III — Submissions and arguments of the parties

A — The first submission of the applicant

B — The second submission of the applicant

C — The third submission of the applicant

IV — Oral Procedure

Decision

First submission

Second submission

Costs

I —. Facts and procedure

1. Vacancy Notice COM/1440/74, published in September 1974, concerned a post of principal administrator at the Directorate General for External Relations, Relations with countries of Northern, Central and Southern Europe Directorate, Relations with the countries of Southern Europe; co-ordination with the Directorate General for Development and Co-operation concerning overall problems relating to the Mediterranean area; Portugal, Spain, Malta, Greece, Turkey, Yugoslavia and Cyprus Division.

2. The vacancy notice however was annulled and the annulment was published in March 1975. The same post was the subject of Vacancy Notice COM/680/75 published in July 1975 but this procedure was not continued. On the other hand, the post was the subjectmatter of Notice of Internal Competition COM/680/75 based on qualifications and tests which bore the same number but was not published until August 1977.

3. Point III of the latter notice provided for a written test on a subject relating to the Mediterranean countries. Seven applications were passed on to the selection board for the competition; of these seven, the selection board decided at its first meeting to accept for the purposes of the written test the applications of Mr François Ferrandi and Mrs Hélène Martin.

4. Mr Angel Alonso, who was appointed by the Staff Committee to sit on the selection board for that competition, handed to the selection board at the first meeting a written note dated 26 September 1977 and worded as follows:

5. At its second meeting, in the absence of the Staff Committee's representative, the selection board fixed the subject of the written test as follows: Community relations with the Mediterranean countries: association or non-preferential system. Mr Ferrandi and Mrs Martin took part in that test. On the basis of the marks which those two candidates obtained, the selection board decided to admit only Mr Ferrandi to the oral tests. After the oral tests, the selection board put only Mr Ferrandi's name on the list of suitable candidates. In January 1978 the latter was appointed a probationer in the post put up for competition and was classified in Grade A 5.

6. On 7 December 1977 Mrs Martin submitted a complaint under Article 90 (2) of the Staff Regulations of Officials against the decision notified on 1 December 1977 by which the selection board refused to admit her to the oral tests for the competition. By memorandum from the Commission of 9 March 1978 this complaint was rejected.

7. Mrs Martin, who has a bachelor's degree in Politics and Diplomacy (sciences politiques et diplomatiques) from the University of Brussels (1963), was assigned to the Directorate General for Overseas Development of the Commission from November 1963, first as a trainee and then as a member of the auxiliary staff. In July 1967 Mrs Martin was appointed a probationer in Grade A 7 in the post of administrator in the same Directorate General, General Affairs Directorate, Fundamental and Legal Problems and Right of Establishment Division. She was established in February 1968. She was promoted to Grade A 6 as from 1 January 1971.

8. Mr Ferrandi is a Doctor of Economics of the University of Paris I, Panthéon, Sorbonne (1971). He was an official at the International Bank for Reconstruction and Development in Washington from 1972 and was taken on by the Commission as a member of the temporary staff in Grade A 5 from May 1975 to occupy the post in question in this case. He is especially responsible for matters connected with Turkey and Yugoslavia. His contract of employment as a member of the temporary staff was extended successively until May 1978.

9. The present application for the annulment of the refusal by the selection board to admit Mrs Martin to the oral tests in Competition COM/680/75 was lodged on 27 February 1978.

II —. Conclusions of the parties

1. The applicant claims that the Court should:

2. The Commission contends that the Court should:

III —. Submissions and arguments of the parties

A —. The first submission of the applicant

1. This submission is based on the infringement of the Staff Regulations of Officials, in particular of Article 3 of Annex III thereof, the infringement of essential procedural requirements, lack of competence, violation of legal principles and abuse of powers in that the member of the selection board appointed by the Staff Committee did not take part in the work of the selection board.

2. The Commission claims that the non-participation of the staff representative when that representative had been formally requested to take part in the work of the selection board does not have the effect of making the course of the competition procedure irregular. The principle of the continuity of the public service in fact prevents such procedures of organized obstruction from preventing the normal performance of tasks of the administration. In this case if it were necessary to consider that the actual participation of a staff representative was essential for the regularity of the course of a competition the administration would find it impossible to fill any vacant post.

B —. The second submission of the applicant

1. This submission is based, in the alternative, on the violation of the principles of natural justice, equality of treatment, distributive justice and good administration and on abuse of powers.

2. The Commission considers that the subject chosen for the written test by the selection board is justified having regard to the wording of the point entitled written test and of the point entitled nature of the duties in the notice of competition. The choice of such a general and topical subject could not as such prejudice the applicant's application in relation to that of Mr Ferrandi.

C —. The third submission of the applicant

1. This submission is based, as a further alternative, on the infringement of the Staff Regulations, particularly of Article 7(1) thereof, and on misuse of powers in that the objective pursued was not the interests of the service but the appointment of the person who already occupied the post put up for competition as a member of the temporary staff.

2. In the opinion of the Commission there is no proof of misuse of powers in the present case. The Commission recalls that the appointment of a member of the temporary staff occupying a permanent post at the conclusion of an internal competition based on qualifications and tests organized so as to fill that post does not by virtue of that alone involve a misuse of powers. The applicant is moreover wrongly attempting to compare the present case and the Giuffrida case, Case 105/75.

IV —. Oral Procedure

1. The application, which was lodged on 7 December 1977, is for the annulment of the decision of the selection board for Competition COM/680/75 communicated to the applicant on 1 December 1977 in which the selection board refused to admit her to the oral tests in the competition and for the annulment of the susequent procedure in that competition and of the appointment made as a result thereof.

2. Notice of Internal Competition COM/680/75 based on qualifications and tests, which was published in August 1977, aimed to fill a post in category and career bracket Grade A 5 — A4, coming within the Relations with the Countries of Southern Europe Division of the Directorate General for External Relations.

3. The notice provided for a written test involving a paper on a subject selected by the selection board relating to the Mediterranean countries.

4. The applicant was admitted to the written test as well as a candidate who had occupied the post in question as a member of the temporary staff since May 1975.

5. The other candidate, after being admitted to the oral tests, was the only one put on the list of suitable candidates and was subsequently appointed to the post put up for competition.

6. The applicant claims first that the decision of the selection board is vitiated for illegality because it was taken in the absence of the member of the selection board appointed by the Staff Committee under Article 3 of Annex III to the Staff Regulations of Officials.

7. In this respect, it is not in issue that at the first meeting of the selection board the member of the selection board appointed by the Staff Committee handed in a note from the Staff Committee according to which the Committee, confirming his appointment, instructs him to refrain from taking any part in the work of that selection board.

8. In this context the note recalls the viewpoint adopted by the Joint Committee with regard to individual competitions declaring that it is desirable to abolish them.

9. The member appointed by the Staff Committee in fact refrained from taking any part in the work of the selection board so that the selection board, composed of the other two members alone, continued with its work and performed its task.

10. Although it is true that in principle a selection board cannot validly perform its duties when one of its members is absent, the need to ensure the continuity of the public service may however justify relaxing this principle if it proves impossible to ensure otherwise that the selection board functions.

11. In the present case the absence of one of the members of the selection board was the result of a general viewpoint adopted by the Staff Committee as a protest against a practice adopted by the Commission in relation to individual competitions.

12. The Commission was thus prevented from setting up and making function a selection board the composition of which was legal in relation to Article 3 of Annex III to the Staff Regulations, according to which one of the members must be appointed by the Staff Committee.

13. Since vacant posts cannot be left unoccupied for an indeterminate period of time the Commission was therefore justified to proceed on the basis of the work of the selection board as performed without the participation of the absent member.

14. This submission cannot therefore be accepted.

15. The applicant claims in the alternative that the principle of the equality of treatment of the candidates in a competition has been violated because the subject of the written test was chosen from the subjects which one of the candidates had dealt with in the performance of his duties as a member of the temporary staff occupying the post put up for competition.

16. The selection board chose as the subject for the written test Community relations with the Mediterranean countries: association or non-preferential system.

17. The applicant occupied a post in Grade A 6 in the Directorate General for Overseas Development, Directorate D (Operations), Division 4 (Training) within which she had taken part in particular in the drawing-up of certain multi-annual training programmes and certain specific training schemes and had carried out for this purpose several fact-finding missions for training schemes in three African, Caribbean and Pacific countries.

18. the other candidate admitted to the written test had been responsible, in the performance of his duties as a member of the temporary staff in the post to be filled, for matters connected with Turkey and Yugoslavia.

19. These two countries may be considered as being typical countries benefiting one from a system of association and the other from a non-preferential system.

20. It is therefore clear that the other candidate was put at an unfair advantage by the choice of the subject for the written test since the concrete way in which that subject was defined enabled him to profit from the special experience acquired in the performance of his duties in the post put up for competition.

21. This infringement of the principle of equality of treatment of the candidates in a competition is such as to vitiate both the decision in question adopted by the selection board for the competition and the subsequent procedure.

22. In these circumstances it is not necessary to examine the submission put forward by the applicant as a further alternative concerning the infringement of the Staff Regulations of Officials, in particular Article 7(1) thereof (the interests of the service) and misuse of powers.

23. It is therefore necessary to annul both the decision by which the selection board for Competition COM/680/75 refused to admit the applicant to the oral tests and the subsequent procedure in the competition and the appointment made as a result thereof.

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

25. As the defendant has failed in its submissions, it is necessary to order it to pay the costs.

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

1 Annuls both the decision of the selection board for Competition COM/680/75 by which the selection board refused to admit the applicant to the oral tests and the subsequent procedure in the competition and the appointment made as a result thereof;

2 Orders the Commission to pay all the costs.