JUDGMENT OF 22. 9. 1983 — CASE 159/82 VERLI-WALLACE v COMMISSION

In Case 159/82

THE COURT (Third Chamber) composed of: U. Everling, President of Chamber, Y. Galmot and C. Kakouris, Judges, Advocate General: Sir Gordon Slynn Registrar: H. A. Rühi, Principal Administrator

gives the following

JUDGMENT

Facts and Issues

I — Facts and written procedure

II — Conclusions of the parties

III — Submissions and arguments of the parties

1. Admissibility

2. Substance

(a) Disregard of legitimate expectation, vested rights and the principles of administrative law

(b) Wrong assessment of the applicant's university status

(c) Wrong assessment of the objective conditions for admission to the competition

3. The conclusions contained in the application

IV — Oral procedure

Decision

Costs

I —. Facts and written procedure

1. The applicant, Mrs Verli-Wallace, an administrative assistant in Grade B 4 at the Commission of the European Communities since 25 February 1981, made application to take part in the open competition based on qualifications and tests to constitute a reserve for future recruitment of senior assistants (Grades B 3 and B 2) of Greek nationality (COM/B/328) organized by the Commission during 1981. The notice of competition stipulated inter alia:

2. On 27 October 1981 the applicant lodged a complaint under Article 90 (2) of the Staff Regulations against tiie decision of the selection board annulling her admission to the competition. As she received no reply within the period prescribed, she brought this action which was lodged at the Court Registry on 26 May 1982.

II —. Conclusions of the parties

1. Primarily:

2. So far as necessary:

3. In any event order the defendant to pay the costs.

III —. Submissions and arguments of the parties

1. Admissibility

2. Substance

(a). Disregard of legitimate expectation, vested rights and the principles of administrative law

(b). Wrong assessment of the applicant's university status

(c). Wrong assessment of the objective conditions for admission to the competition

3. The conclusions contained in the application

IV —. Oral procedure

1. By application received at the Court Registry on 26 May 1982 Mrs Verli-Wallace, an administrative assistant in Grade B 4 with the Commission of the European Communities since February 1981, brought an action seeking in substance on the one hand the annulment of the decision of the Selection Board for Competition No COM/B/328 to annul its own decision admitting her to the competition and on the other hand the inclusion of her name in the list of suitable candidates for that competition.

2. The notice announcing the said competition, organized by the Commission to constitute a reserve for the future recruitment of senior assistants (B 3/B 2) of Greek nationality mentioned, inter alia, that applications could not be accepted from persons who had a degree received after a long course (three years or more) of studies at university level or were in the final year of such a course.

3. The selection board for the competition had originally allowed the applicant to compete and she did in fact take part in all the tests for the competition. Her admission was however subsequently withdrawn on the ground that she had stated at the oral tests on 13 July 1981 that it was possible for her at least theoretically to obtain a university degree at the end of the year and in those circumstances the selection board took the view that she was in the final year of a long course of university studies within the meaning of the notice of competition.

4. On 27 October 1981 the applicant made a complaint under Article 90 (2) of the Staff Regulations against the decision of the selection board annulling her admission to the competition. Since she received no answer within the prescribed period she brought this action.

5. It appears from the file that from 1968 the applicant successfully attended the first three years of legal studies at the University of Athens and that she was enrolled in the fourth and final year in 1974/75. Since then she has taken part in several examination sessions without however being enrolled in the faculty. Nevertheless to obtain a degree at the end of her studies she must still pass examinations in three main subjects.

6. The applicant alleges in support of her application that she was not in the final year of a course of university studies within the meaning of the notice of competition since it has been practically impossible for her since taking up her duties with the Commission in February 1981 to take the final examinations. Consequently the original decision of the selection board to admit her to the competition was lawful and for that reason could not be withdrawn.

7. On the other hand the Commission claims that the applicant was allowed by mistake to compete, contrary to the conditions set out in the notice of competition. It alleges that an unlawful decision cannot create a vested right or give rise to a legitimate expectation of such as kind as to prevent its withdrawal.

8. As the Court held in the judgment of 22 March 1961 in Joined Cases 42 and 49/59 Société Nouvelle des Usines de Pontlieue v High Authority [1961] ECR 53, the retroactive withdrawal of a legal measure which has conferred individual rights or similar benefits is contrary to the general principles of law.

9. In this case the original admission of the applicant to the competition at issue gave her a personal right to take part in the tests for the competition, to receive marks awarded on the basis of the results obtained and, if successful, to have her name entered in the list of suitable candidates.

10. In the special circumstances of this case the Court considers that the admission to the competition was lawful. The selection board was entitled to regard the applicant as not being in the final year of a long course of university studies within the meaning of the notice of competition. Although the university authorities still recognized her right to take her final examinations without having to renew her enrolment in the faculty, it is nevertheless true that such a possibility was purely theoretical in view of the situation of the applicant who, as the selection board knew, had entered employment shortly before with the Commission and whose employment left her no real opportunity to finish her studies and to obtain a university degree within a short period.

11. It follows that the applicant's original admission to the competition could not be withdrawn so that the contested decision must be annulled.

12. Since the Commission is required to take the necessary measures to comply with this judgment, there is no need to arrive at a decision on the claim that the applicant's name should be included in the list of suitable candidates.

13. Under Article 69 (2) of the Rules of Procedure the unsuccessful party is to be ordered to pay the costs. Since the Commission has failed in the essential part of its submissions it must be ordered to pay the costs.

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

1 Annuls the decision of the Selection Board for Competition No COM/B/328 to annul its own decision admitting the applicant to the tests for the competition;

2 Dismisses the remainder of the application;

3 Orders the Commission to pay the costs.