JUDGMENT OF 16. 10. 1984 — CASE 257/83 JUDGMENT OF THE COURT (THIRD CHAMBER)
In Case 257/83
THE COURT (Third Chamber) composed of: C. Kakouris, President of Chamber, U. Everling and Y. Galmot, Judges, Advocate General: M. Darmon Registrar: J. A. Pompe, Deputy Registrar
gives the following
JUDGMENT
Facts and Issues
I — Facts and written procedure
II — Written procedure and conclusions of the parties
A — The applicant claims that the Court should:
B — The Court of Auditors contends that the Court should :
III — Submissions and arguments of the parties
A — Admissibility of the application
(a) The application is out of time
(b) The applicant has no interest in bringing the proceedings
B — The claims for annulment
C — The claims for damages
IV — Answers to the questions put to the Court of Auditors by the Court of Justice
1. First question
2. Second question
3. As requested by the Court of Justice, the Court of Auditors has laid before it:
V — Oral procedure
Decision
The claims for the annulment of the decision appointing Mr Schwiering and the decision rejecting the applicant's complaint
The first submission
The claim for the annulment of the proceedings of the competition in so far as they resulted in the selection of Mr Schwiering as the successful candidate
The claim for compensation
Costs
I —. Facts and written procedure
1. On 1 October 1982, the Court of Auditors decided to organize an internal competition (Competition No CC/A/17/82) to fill a post for a principal administrator in Career Bracket A 5/A 4 responsible for carrying out advisory duties relating to internal administration and budgetary matters.
2. The notice of competition provides in paragraph III:
3. Summary of the events following the publication of the notice of competition:
II —. Written procedure and conclusions of the parties
A —. The applicant claims that the Court should:
1. Order the Court of Auditors to lay before the Court of Justice the selection board's report or reports and the record of the Court of Auditors' deliberations on the overruling of the Financial Controller's refusal of approval;
2. Declare the application admissible;
3. Declare it well founded, and consequently declare that Mr Schwiering was wrongly admitted to the competition;
4. In consequence, annul the proceedings of the competition as regards the selection of Mr Schwiering as the successful candidate; declare that his appointment must be annulled;
5. Annul the decision rejecting the applicant's complaint;
6. Refer the case to the appointing authority of the Court of Auditors to implement the judgment to be given on this application;
7. Order the defendant to pay the costs in their entirety;
8. Award the applicant ex aequo et bono compensation for nonmaterial damage and the sum of LFR 500000 for material damage, such sum not to be payable in the event of the applicant's appointment to the post in question.
B —. The Court of Auditors contends that the Court should :
1. Declare the application inadmissible and unfounded;
2. In the alternative, if the Court should declare it admissible, declare it unfounded;
3. Declare the part of the application relating to the award of damages unfounded;
4. Order the applicant to pay the costs.
III —. Submissions and arguments of the parties
A —. Admissibility of the application
1. The Court of Auditors objects that the application is inadmissible on two, grounds
(a). The application is out of time
(b). The applicant has no interest in bringing the proceedings
2. Mr Williams contends that on the contrary his application is wholly admissible
B —. The claims for annulment
1. As to the submission alleging failure to observe the terms of the notice of competition: Mr Schwiering did not meet the conditions for admission to the tests in the competition
2. The submission alleging that the organization of the tests in the competition disclosed a failure to observe the principle of equal treatment of candidates
3. The submission alleging misuse of powers
C —. The claims for damages
1. The applicant framed his request for damages solely in the alternative, in the event that he should not be appointed to the post in question as a result of the Court's judgment in the action. In his reply, he adds that he does not press that claim, which he submits to the discretion of the Court.
2. The Court of Auditors argues that the applicant cannot point to any real and present adverse effect actually suffered by him and that in any event if he were placed at the head of the list of suitable candidates that fact alone could not give him an automatic right to appointment.
IV —. Answers to the questions put to the Court of Auditors by the Court of Justice
1. First question
(i). The selection board took into account the fact that Mr Schwiering had attended courses in law at Bonn University until 1 January 1974, the date from which he was employed by Mr Leicht, for a period of 27 months; it treated those successfully completed studies (evidenced by three certificates) as a part of the professional experience required, on the ground that if, instead of taking up a course of study, Mr Schwiering had immediately started work, there would have been no difficulty in his being given credit for equivalent experience in accordance with the Court of Auditors' practice in its assessment of all the staff recruited before that date. In the selection board's view, a higher education attested by good intermediate results constitutes an activity which is at least as equivalent to graduate-level as the exercise of a profession in which high-level work is more difficult to establish.
(ii). The selection board took the view that Mr Schwiering's duties as a personal assistant to Mr Leicht, the chairman of the Federal German Parliamentary Budget Committee, from 1 January 1974 to 30 November 1977 (47 months), constituted high-level service. Out of those 47 months, the selection board accordingly decided to credit the 21 months which Mr Schwiering needed to make up the 48 months professional experience required instead of a university degree. The selection board thus came to the conclusion that those 48 months expired theoretically on 1 October 1975.
(iii). After that, the selection board had no difficulty in finding that Mr Schwiering's subsequent professional experience from 1 October 1975 to 15 October 1982 (that is, the balance of his experience as a personal assistant to Mr Leicht together with the professional experience properly so-called acquired in his employment with the Court of Auditors) was sufficient to meet the requirement of six years' professional experience at a responsible level in duties relevant to the nature of the post, contained in paragraph III (2) of the notice of competition.
2. Second question
3. As requested by the Court of Justice, the Court of Auditors has laid before it:
V —. Oral procedure
1. By an application lodged at the Court Registry on 18 November 1983, Mr Calvin Williams brought an action against the Court of Auditors of the European Communities seeking primarily the annulment of Mr Schwiering's appointment pursuant to the proceedings of Competition No CC/A/17/82 and the annulment of the proceedings of the competition inasmuch as they led to the selection of Mr Schwiering as the successful candidate, and alternatively an award of compensation against the Court of Auditors for the damage suffered by him.
2. The competition at issue was an internal competition organized by the Court of Auditors in October 1982 to fill a post of principal administrator in Career Bracket A 5/A 4 whose task it would be to carry out advisory duties relating to internal administration and budgetary matters.
3. On 8 December 1982, the President of the Court of Auditors notified staff of the list of suitable candidates drawn up by the selection board, in which the names, in order of merit, were those of Mr Schwiering, Mr Williams and Mr Kilb. On 17 December 1982, the Court of Auditors decided to appoint the successful candidate, Mr Schwiering.
4. However, that decision was blocked by the Financial Controller's refusal of approval on 5 January 1983. The reason given for the refusal was that Mr Schwiering did not satisfy the requirements relating to diplomas and professional experience laid down for admission to the tests by the notice of competition.
5. Nevertheless, the decision to appoint Mr Schwiering was confirmed by the Court of Auditors on 1 February 1983. The Financial Controller again withheld his approval on 28 February 1983. On 24 March 1983, the Court of Auditors decided to overrule the Financial Controller's refusal of approval and-confirmed the appointment of Mr Schwiering as a probationary official in Grade A 5, on the ground that Mr Schwiering fully satisfied the requirements of the notice of competition in respect of professional experience.
6. On 5 May 1983, the applicant lodged a complaint under Article 90 (2) of the Staff Regulations asking for the annulment of Mr Schwiering's appointment on two grounds, namely that Mr Schwiering did not meet the requirements laid down by the notice of competition, and that he had been given an unfair advantage by the questions set by the selection board. Mr Williams concluded that he was the best-placed eligible candidate on the list and that the post to be filled by means of the competition should have been awarded to him.
7. On 5 September 1983, the appointing authority dismissed his complaint on the ground that it was not competent either to inquire into the merits of the selection board's decision to admit Mr Schwiering to the competition or to assess the results of a selection board's deliberations.
8. Those are the facts which led Mr Williams to bring this action, in which he claims:
9. The Court of Auditors maintains in the first place that the application is out of time and therefore inadmissible. It argues in support of that submission that the application is in reality directed against the selection board's decision and that consequently the time for bringing the action began to run from the date of publication of the list of suitable candidates, that is, from 8 December 1982. It adds that Mr Schwiering's appointment was merely the automatic consequence of the publication of the list of suitable candidates on 8 December 1982, and that as such the decision constituted a purely confirmatory measure devoid of independent legal effect and incapable of adversely affecting an official.
10. That argument must be rejected. First, it is clear from the terms of the application that it seeks the annulment of the decision appointing Mr Schwiering. However, the earliest possible date for the decision finally appointing Mr Schwiering was 1 February 1983, so that, in view of the fact that the Court of Auditors neither established nor even alleged that Mr Williams had knowledge of that decision before 5 February 1983, his complaint against the appointment was lodged within the period prescribed by Article 90 (2) of the Staff Regulations, just as this action was brought within the period laid down by Article 91 (3) of the Staff Regulations. Secondly, the decision appointing Mr Schwiering concluded the competition procedure, produced legal consequences and cannot be regarded as merely confirming the selection board's decision establishing the list of suitable candidates. In the circumstances, the heads of claim contesting the appointment of Mr Schwiering cannot be regarded as being out of time.
11. The Court of Auditors' second argument is that the application is inadmissible on the ground that the applicant has no interest in bringing the proceedings. That objection of inadmissibility must likewise be rejected. As the Court has repeatedly held, a candidate in a competition may bring an action contesting a decision appointing another candidate to the post to be filled (see the judgments in Case 11/65 Morina w European Parliament [1965] ECR 1017; Case 21/70 Rittwegerv Commission [1971] ECR 7; Case 252/81 Macevičius v European Parliament [1983] ECR 867).
12. It follows that the claims examined above are admissible.
13. Mr Williams put forward three submissions in suport of his claims for the annulment of the decision appointing Mr Schwiering:
14. The applicant maintains that Mr Schwiering did not meet the requirements laid down by the notice of competition relating to the possession of a university degree and proof of professional experience.
15. Paragraph III of the notice of competition provides:
16. It is established that at the date of the competition Mr Schwiering could only show that he had :
17. The Court of Auditors stated finally that the grounds on which it based the contested measure were those adopted by the chairman of the selection board, as set out in the answers to the questions put by the Court of Justice.
18. Those grounds were that Mr Schwiering was able to establish that he had high-level professional experience of more than 10 years, by taking the eight years and eleven months' professional experience mentioned above together with the 27 months of university studies with no degree.
19. For that purpose the selection board treated the successfully completed stages of Mr Schwiering's law course as part of the professional experience required, on the grounds, first, that if, instead of taking up a course of study, Mr Schwiering had immediately started work, there would have been no difficulty in his being given credit for equivalent experience in accordance with the Court of Auditors' practice in its assessment of all the staff recruited before that date, and, secondly, that a higher education attested by good intermediate results constitutes an activity which is at least as equivalent to graduate-level as the exercise of a profession in which high-level work is more difficult to establish.
20. That argument cannot be accepted. Paragraph III (1) of the notice of competition draws a clear distinction between a university education-attested by a recognized degree or diploma, on the one hand, and equivalent professional experience on the other. That being the case, it cannot be said that a period of university study not attested by a recognized diploma may be credited as a period of equivalent professional experience. Furthermore, such an interpretation would be directly contrary to the requirement laid down in paragraph III (1) (b) of the notice of competition, which permits only an occupation normally requiring a university degree to be treated as equivalent professional experience, which is not the case in this instance.
21. It follows that at the date of the contested competition, although Mr Schwiering could establish that he had professional experience of eight years and eleven months and therefore satisfied the requirements of paragraph III (2), he could not claim either to hold a recognized university degree or diploma or to have equivalent professional experience, one of which was required by paragraph III (1).
22. In those circumstances, and in view of the fact that it is clear from the terms of the notice of competition itself that candidates without a university degree were required to have 10 years' professional experience at least, Mr Schwiering was wrongly admitted to the tests in the competition.
23. Consequently, without there being any need to examine the other submissions put forward in support of the applicant's claims for annulment, the decision appointing Mr Schwiering and the decision rejecting the applicant's complaint must be annulled.
24. It follows from the aforegoing that the decision appointing Mr Schwiering must, as a consequence of its annulment, be treated as if it had never been taken and that the Court of Auditors may not reappoint him on the basis of the results of the contested competition.
25. The applicant has thus obtained full satisfaction. Accordingly, the abovementioned claims are no longer necessary and require no decision on their merits, nor is it necessary for the Court to rule on the objection by the Court of Auditors that those claims are inadmissible.
26. The applicant's claim for damages was submitted solely in the alternative, in the event that he should not be appointed to the post in question as a consequence of the Court's judgment. In his reply he states that he does not press the claim for damages, which he submits to the discretion of the Court.
27. The Court of Auditors takes the view that the applicant cannot point to any real and present adverse effect actually suffered by him, and that in any event he could not gain an automatic right to appointment merely by being placed at the head of the list of suitable candidates.
28. It must be noted that the applicant's claim, even had he persisted in maintaining it, is conditional and dependent on the action to be taken by the Court of Auditors after this judgment has been given. Since the allegation of damage relates to a mere possibility, this head of claim must in any event be rejected.
29. Under Article 69 (2) of the Rules Procedure the unsuccessful party is required to pay the costs. Since the defendant has failed in its principal submissions, it must be ordered to pay the costs.
On those grounds, THE COURT (Third Chamber) hereby:
1 Annuls the decisions of the Court of Auditors of 24 March 1983, appointing Mr Schwiering pursuant to the proceedings of Competition No CC/A/17/82, and of 5 September 1983, rejecting Mr Williams' complaint;
2 Declares that it is unnecessary to give a decision upon the applicant's claim for the partial annulment of the proceedings of the competition;
3 Dismisses the remainder of the application;
4 Orders the defendant to pay the costs.