Opinion of Mr Advocate General Mancini

Mr President,

Members of the Court,

1. By an application lodged on 22 January 1985 Messrs Rihoux, Derungs, Van Sinay and Raatz, Community officials in Category B, asked the Court to annul (a) the written and oral tests in competition COM/A/390 and (b) the decision of the Selection Board not to include'them in the list of suitable candidates.

2. In support of their applications they make two main submissions:

3. The Commission's argument raises an old problem which has not yet been resolved: the relationship between the complaint and the application to the Court when the proceedings concern a decision of a body such as, in this case, a selection board, which arrives at its decisions quite independently and is not subject to the control of the appointing authority. The Court has already held on several occasions that in such cases a complaint to the Commission through official channels ... appears to be pointless ... and the only legal remedy open to those concerned by such a decision lies in a direct application to the Court. But, as the Court has also pointed out, it may happen that the official submits the complaint and waits for a decision on the part of the appointing authority; in such cases his action, even though redundant from the administrative point of view, does not result in the forfeiture of his right to bring proceedings before the Court but has the effect of extending the time-limit for bringing such proceedings.

4. As the Court is aware, Article 179 of the EEC Treaty gives the Court jurisdiction in disputes between the Community and its employees within the limits and under the conditions laid down in the Staff Regulation. Article 91 of the Staff Regulations provides that the Court has jurisdiction to hear an application only if the official has previously submitted a complaint and that complaint has been rejected. In the absence of an express derogation it must be concluded that that provision applies to all disputes, including those concerning the decision of a selection board. I admit that where the appointing authority cannot modify such a decision, to submit a complaint and wait for a decision on it (without which no action will lie) may be superfluous and simply delay the resolution of the case. That is not always the case, however, and it is not always true that the complaint is pointless.

5. Having established that even in cases such as this the submission of a complaint through administrative channels is preliminary to, rather than independent of, an application to the Court, we must now determine to what extent the applicant is bound, in making his application to the Court, by the terms of his complaint.

6. That complaint is based on three grounds. The applicants assert first of all that at the beginning of the written test they were made to undergo a psychological test consisting of logical problems and mathematical exercises. That test was intended to permit the Board not to assess the candidates' knowledge of the subject-matter of the competiton but to determine their psychological profile. In any event, the notice of competition did not provide for such a test, and the result was that the duration of the actual written test itself was reduced from the two hours originally envisaged to 95 minutes. The conditions set out in the notice of competition were therefore not respected, contrary to article 1 (e) of Annex III to the Staff Regulations.

7. In view of the foregoing considerations I propose that the Court dismiss the application brought on 22 January 1985 by Messrs Rihoux, Derungs, Van Sinay and Raatz against the Commission of the European Communities, and order that the parties bear their own costs, in accordance with Article 70 of the Rules of Procedure.

1 Translated from the Italian.