JUDGMENT OF 9. 2. 1984 — CASE 39/83 FABIUS v COMMISSION

In Case 39/83

THE COURT (Third Chamber) composed of: Y. Galmot, President of Chamber, U. Everling and C. Kakouris, Judges, Advocate General: Sir Gordon Slynn Registrar: J. A. Pompe, Deputy Registrar

gives the following

JUDGMENT

Facts and Issues

I — Facts

II — Written procedure and conclusions of the parties

III — Submissions and arguments of the parties

1. The applicant

2. The Commission

IV — Oral procedure

Decision

Costs

I —. Facts

1. In a Notice of Open Competition (No COM/A/325, Official Journal of the European Communities, C 233 of 12 September 1981, p. 21), the Commission of the European Communities, (the defendant) announced an open competition, based on qualifications and tests, to constitute a reserve of administrators in the career bracket covering Grades 7 and 6 of Category A.

2. The relevant provisions of Section V of the notice of competition entitled Written Tests — Admission to Oral Tests are worded as follows:

3. The applicant, Cornells Fabius, who was born on 5 June 1950, applied to take part in Competition No COM/A/325, selecting External relations as his option, and was invited to take the written tests.

II —. Written procedure and conclusions of the parties

(a). annul the Commission's decision confirming that the applicant was ineligible to take the oral test for Open Competition No COM/A/325, which was notified to him by the Head of the Recruitment Division in a letter dated 22 December 1982;

(b). order the Commission, within a period of three months from the date of the Courťs judgment, to undertake a thorough inquiry into the applicant's suitability or at least give the applicant an opportunity to take part in a subsequent open competition for the recruitment of administrators in Grades 7 and 6 of Category A, regardless of the age-limit to be fixed in the notice of competition, subject always to the principles laid down by the Court;

(c). order the defendant to pay the costs.

(a). declare the application unfounded and consequently dismiss it;

(b). order the applicant to pay the costs.

1. Annul the Commission's decision notified in the letter of 16 March 1983 or declare that the Commission had failed to take a decision as requested in the applicant's letter of 20 February 1983;

2. Order the Commission to reconsider the applicant's suitability to take part in the competition.

III —. Submissions and arguments of the parties

1. The applicant

(a). The allegation that the Commission has attached decisive importance to a single criterion of assessment

(b). The allegation that the Commission attached decisive importance to an insufficiently reliable test

(c). The allegation that the Commission wrongly refused to arrange a new test for the applicant

(d). In addition, the candidate offers evidence :

(e). Finally, the applicant argues that he has a special concern in bringing proceedings.

2. The Commission

(a). The argument relating to the decisive importance attached to a single criterion of assessment

(b). The argument that decisive importance was attached to an evaluative test which was not sufficiently reliable

(c). The argument relating to the refusal to arrange a fresh test for the applicant

(d). In conclusion, the Commission submits that the evidence produced by the applicant should be rejected.

IV —. Oral procedure

1. By application lodged at the Court Registry on 15 March 1983, Cornells Fabius brought an action against - the Commission- of the; European Communities, in the first place, for the annulment of the decision confirming that he was ineligible to take the oral tests for Competition No COM/A/325, and, in the second place, for an order that the Commission should arrange a fresh test in order to assess his suitability or permit him to take part in a subsequent open competition at the same level, regardless of any age-limit.

2. The competition at issue was an open competition based on qualifications and tests to constitute a reserve of administrators in the career bracket covering Grades 7 and 6 of Category A.

3. The notice of competition, published in the Official Journal of the European Communities dated 12 September 1981, provided as follows in Section V, entitled Written Tests — Admission to Oral Tests:

4. The applicant was invited to take part in the competition and took the written tests on 28 June 1982. In a letter dated 10 November 1982, the Commission informed him that the selection board considered the marks he had obtained in the written tests to be insufficient to make him eligible for the oral tests in the competition. For the first test, entitled Comprehension and reasoning, he had obtained only 13.82 out of 40 marks against a pass mark of 20.

5. In a letter dated 28 November 1982, the applicant requested the Commission to reconsider his case, arguing, in particular, that he thought it unreasonable to attach so much importance to a test of comprehension and reasoning for the outcome of the examination. That request was rejected, in a decision dated 22 December 1982, by the Head of the Commission's Recruitment Division.

6. That decision is the subject of this application to the Court, in support of which Mr Fabius puts forward a single submission relating to a breach by the Commission of the principles of equity and due care. More specifically, the applicant complains that the Commission attached decisive importance to a single criterion of assessment, that it has given too much weight to an evaluative test which was not sufficiently reliable, and finally, that it has refused to arrange a fresh test for him.

7. It should be recalled that as the Court has already decided in a number of cases (Case 90/74 F Deboeck v Commission [1975] ECR 1123; Case 67/81 M. H. Ruske v Commission [1982] ECR 661), the appointing authority enjoys a wide discretion in deciding upon the criteria of ability required for the posts to be filled and in determining the rules and conditions under which the competitions are organized in the light of those criteria and in the interests of the service.

8. In this case it appears that the Commission, by providing, in a notice of competition for the recruitment of officials in Category A for administrative, advisory and supervisory duties, that there should be a test for comprehension and reasoning to assess the suitability of candidates for those different kinds of work, and by allotting a pass mark of 20 out of 40 for that test, did not exceed the discretion conferred upon it and did not infringe any general principle of law

9. In those circumstances, the applicant's arguments based on the good marks which he obtained in the second written test, on the general satisfaction with his work in his country of origin and on the limited value attached to such tests by certain authorities there, do not affect the legality of the contested decision.

10. Accordingly, the selection board, and subsequently the appointing authority, were justified in refusing to admit the applicant to the oral tests for the competition and later to arrange a fresh test for him.

11. The application must therefore be dismissed and there are no grounds for admitting the evidence offered by the applicant.

12. Under Article 69 (2) of the Rules of Procedure, the unsuccessful party is required to bear the costs.

13. However, under Article 70 of those rules, in proceedings brought by servants of the Communities, institutions are to bear their own costs.

On those grounds THE COURT (Third Chamber) hereby:

1 Dismisses the application;

2 Orders the parties to bear their own costs.