JUDGMENT OF 18. 12. 1980 — CASE 797/79 TIBERGHIEN v COMMISSION

In Case 797/79

THE COURT (Second Chamber)

gives the following

JUDGMENT

Facts and Issues

I — Facts

II — Written procedure

III — Conclusions of the parties

IV — Submissions and arguments of the parties during the written procedure

Preliminary remarks

The complaint of error in the statement of reasons upon which the decision is based

Infringement of the fourth parapgraph of Article 24 of the Staff Regulations

V — Oral procedure

Decision

Costs

I —. Facts

II —. Written procedure

III —. Conclusions of the parties

IV —. Submissions and arguments of the parties during the written procedure

(a). In refusing the applicant admission to the competition because she lacked the requisite experience in the duties of a secretary/shorthand typist, the Commission disregarded the fact that she had actually been performing such duties in its service for nine and a half years, leaving aside the other nine and a half years completed prior to her entry into that service. Consequently there was an infringement of the first paragraph of Article 5 of Annex III to the Staff Regulations, which provides that: After examining these files, the Selection Board shall draw up a list of candidates, who meet the requirements set out in the notice of competition.

(b). It may be seen from her file that in reality the applicant performed the duties of a secretary/shorthand typist from 1 February 1965 to 31 July 1974, a fact acknowledged by the Commission itself.

(c). The Commission must not be allowed systematically to reject applications from an official by relying on either the duties in fact exercised or the official job description according to the circumstances. Such conduct has prejudicial effects on the progress of the official's career and that is especially so in this case where the applicant has shown exceptional ability in her work.

(d). An official must not be the victim of mistakes made by the Commission. In the case of the applicant the Commission failed to observe the principles of good administration, especially as the applicant had drawn attention to the discrepancy between her real duties and their description and the Commission did not take diligent steps to regularize the situation. No blame may attach to the applicant, for she made every attempt to have her situation regularized. She should not be prevented from pursuing a career that matches her ambitions and her capabilities.

(e). The legality of making a distinction between the duties of a clerical officer and those of a secretary/shorthand typist may be questioned. Apart from the rule laid down in the first subparagraph of Article 7 (1) that posts must correspond to grades and the reference in Article 5 to the existance of career brackets generally spread over two grades, the Staff Regulations do not define the concept of a post. From that it may be inferred that, having regard to the principle of unity of the career structure, no distinction should be made between the duties of a clerical officer and those of a secretary/shorthand typist. The Commission was therefore wrong in refusing to take into consideration the duties of shorthand typist performed by the applicant in the post of clerical officer between 1 February 1965 and 31 July 1974.

(f). The Commission's argument that the two limbs of the heading qualifications or diplomas required and experience in the conditions for admission to Competition No COM/BS/4/79 are cumulative should not be accepted; they are alternatives and the applicant based her application on the conditions appearing under Point B.

(g). There remains to be settled the question whether the acknowledgment of that factual position subsequent to the appointing authority's decision of rejection and its confirmation amounts to a new factor without knowledge of which the selection board could reasonably have considered that the applicant lacked the requisite experience. However, from a number of indications and facts it appears that the selection board was perfectly able to assess precisely the applicant's real experience. The selection board was thus at fault in excluding the applicant from the list of candidates admitted to the competition.

(h). The applicant's attitude has always been consistent and logical; she cannot be blamed for having attempted to support her legal position with arguments which are not necessarily consistent, when that apparent inconsistency is merely a reflection of poor management on the part of the administration.

(a). The refusal to admit the applicant to Competition No COM/BS/4/79 is justified by the fact that she does not meet the conditions laid down in the Notice of Competition regarding the qualifications or diplomas required and experience. As is indicated in the memorandum of 24 September 1979, the assessment carried out in that regard was based both on the personal file and on Mrs Tiberghien's application form. Only her experience as a secretary/shorthand typist could be taken into consideration. The reference to experience acquired in the performance of similar duties enabled, on the one hand, former servants of the Joint Research Centre to be admitted and, on the other hand, experience acquired prior to entering the service of the Communities to be taken into consideration in so far as that experience was of at least the same level and the same nature as the duties of a secretary/shorthand typist.

(b). As to the effect of the reply from the Director-General for Personnel and Administration of 21 November 1979, it should be noted that the decision of 11 February 1980 by the Head of the Specialized Department for Management, Organization and Establishment, which gives effect to the former, alters, with retroactive effect to 21 November 1979, the post occupied by the applicant from that of a secretary/shorthand typist to that of a clerical officer. However, official documents contained in the personal file or other decisions lawfully adopted on the basis of those documents are not altered thereby.

(a). That provision places an obligation on the institutions to take further training and instruction into account for the progress of an official's career.

(b). Participation in an internal competition undoubtedly forms part of the progress of a career. An official who has participated in further training courses must be able to make use of the certificate proving completion of such additional training and the selection board must take such matters into actual consideration in internal competitions based on qualifications.

(a). The taking into account of further training constitutes a guideline, a general principle, to be observed as part of a personnel management policy.

(b). The argument based on participation in some seminars on secretarial work is irrelevant: it is not stated in what way that fact alters the conditions for admission to the competition. In this case, no actual breach of any duty deriving from the fourth paragraph of Article 24 of the Staff Regulations may be ascribed to the selection board in Competition No COM/BS/4/79 or to the Commission.

V —. Oral procedure

1. By application lodged at the Court Registry on 9 November 1979 Mrs Anne-Marie Tiberghien, née Peuteman, an official of the Commission of the European Communities in Grade C 2, seeks the annulment of the decision of the selection board refusing to admit her to Competition No COM/BS/4/79.

2. From the file it appears that, after being employed as a secretary by various private undertakings from 1954 to 1964, the applicant entered the service of the Commission on 16 March 1964 as a typist in Grade C 4. She was appointed to the post of clerical officer in Grade C 3 with effect from 1 February 1965 and was subsequently promoted to Grade C 2 without any alteration of post. It is not disputed that she retained that designation for the greater part of her career, the issue being whether the title of the post corresponds to the duties which she in fact performed during that period.

3. In April 1979 the applicant entered Internal Competition No COM/BS/4/79 organized for the purpose of constituting a reserve list for future recruitment of secretarial assistants in career bracket B 5/4. So far as the qualifications or diplomas required and experience were concered, the conditions for admission to that competition read as follows :

4. In her application form the applicant pointed out that the duties she had performed during the period between 1965 and 1974 were, in fact, those of a secretary and not those corresponding to the title of her post as a clerical officer. From her personal file it appears that as early as 1974 the applicant drew the attention of the administration to the discrepancy between her status under the Staff Regulations and the duties she was in fact performing. On 28 February 1979 she sent a formal request to the Director-General for Administration under Article 25 of the Staff Regulations in order to have her administrative status determined. In that communication she sought recognition of the fact that she had performed the duties of a secretary/shorthand typist from 1 February 1965 to 31 July 1974 and she concluded as follows :

5. That request went unanswered and on 17 July 1979 — that is, a date when the selection board was still at work — the applicant submitted to the appointing authority a formal complaint under Article 90 of the Staff Regulations seeking rectification of her administrative status.

6. On 2 August 1979 the competition selection board took its decision holding that of 564 candidates 399 met the conditions laid down by the Notice of Competition and 165 candidates, including the applicant, were eliminated as failing to fulfil those conditions. The applicant was notified of that decision on 10 August 1979 in the form of a standard letter informing her that she did not meet the condition which is worded: Have at least 16 years' experience on 31 December 1978 of category C duties as a secretary/shorthand typist, or of similar duties.

7. In a letter of 22 August 1979 the applicant asked the selection board to reconsider the position, reminding them that, as was stated on her application form, her experience as a secretary before and after her entry into the service, when added together, totalled more than the minimum 16 years' practical experience required by the Notice of Competition.

8. After reviewing her position the competition selection board decided to confirm its previous decision. It appears from the letter on the matter which was sent to the applicant on 24 September 1979 that the selection board accepted the equivalent value of the applicant's employment prior to her entry into the service of the Community, that is, nine years and six months, but that, of her career subsequent to her entry into the service, it accepted only a period running from 1 February 1976 to 31 December 1978 (that is to say, two years and 11 months) as corresponding to a post of secretary/shorthand typist.

9. On 9 November 1979 the applicant brought this action. On 21 November the Director-General for Personnel sent her a letter in reply to her request of 28 February 1979 and her complaint of 16 July 1979, whereby he agreed to the rectification of the administrative status as suggested. In particular, the Director-General acknowledged in that letter that the applicant had acquired experience as a secretary/shorthand typist with the Commission from 1 February 1965 until 31 July 1974, that is to say, a period of nine years and six months.

10. On a comparison of the terms of the final decision of the competition selection board rejecting her candidacy on 24 September 1979 with the decision of the appointing authority of 21 November 1979 it therefore appears that, objectively, the applicant has an experience of secretarial work the duration of which satisfies that required in the notice of competition. It should also be borne in mind that the statements made by the applicant on her application form for Competition No COM/BS74/79, and the text of her complaint of 22 August 1979 represented that situation correctly.

11. It must therefore be held that the competition selection board made its decision on the basis of an assessment of the applicant's administrative status which was objectively inaccurate. Nevertheless, the fact remains that for her part the applicant did not do her utmost to inform the selection board of the steps she had taken in order to have her employment status corrected. In her application form she did not mention the request she had submitted on 28 February 1979 under Article 25 of the Staff Regulations, and in her complaint of 22 August 1979 she did not mention the complaint under Article 90 of the Staff Regulations submitted to the appointing authority on 17 July 1979.

12. Therefore the selection board, which was responsible for the management of a competition for which there was a large number of candidates, is not to be criticized for not taking the initiative of clarifying of its own motion an administrative status which had not yet been determined when it made its decision. Nevertheless, since the existence of an error of judgment on its part has been established, the decision in question must be annulled in order to enable the administration to take a fresh decision based on the position finally acknowledged by the appointing authority's decision of 21 November 1979.

13. The question of costs should be settled in the light of the foregoing. Although the applicant has obtained the annulment of the decision of which she complains, it would be inequitable to allow her to place on the Commission the burden of the costs of legal proceedings which she could have avoided by taking care to inform the selection board of the concurrent proceedings she had commenced through official channels in order to have her administrative status rectified. The power given to the Court under the first subparagraph of Article 69 (3) of the Rules of Procedure should therefore be exercised and the parties should be ordered to pay their own costs.

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

1 Annuls the decision of the selection board in Internal Competition No COM/BS/4/79 of 24 September 1979 refusing to admit the applicant to the said competition;

2 Orders the parties to pay their own costs.