Report of the Judge-Rapporteur in Case C-242/90 P
I — Facts and procedure before the Court of First Instance
According to the judgment of the Court of First Instance of 12 July 1990 in Case T-35/89 Albani and Others v Conmission [1990] ECR II-395:
In those circumstances, by an application lodged at the Court Registry on 25 May 1988, the original applicants brought an action against the decisions adopted by the selection board in competition COM/A/482. By order of 15 November 1989, the Court of Justice referred the case to the Court of First Instance pursuant to Article 14 of Council Decision 88/591/ECSC, EEC, Euratom establishing a Court of First Instance of the European Communities (OJ 1988 L 319, p. 1).
The original applicants claimed that the Court of First Instance should:
The Commission contended that the Court of First Instance should:
The Syndicat des Fonctionnaires Internationaux et Européens and the Union Syndicale were granted leave to intervene in support of the forms of order sought by the applicants.
In support of their application, the original applicants alleged, first, breach of the rules for the holding of the second written test and of the principles of equal treatment, objectivity and protection of legitimate expectations. They stated that, the selection board, after deciding to allow candidates a limited time, imposed a maximum number of words (800), obliging them to count them themselves, and then departed from its instructions and asked the markers not to correct tests containing more than 1200 words. By so doing, the selection board required the markers to take account of tests of candidates who had deliberately disregarded those instructions. Secondly, the original applicants considered that the Commission had adduced no evidence as to the number of candidates who had exceeded the limit imposed or the number of words used in excess of that limit. By doing so, the Commission did not allow the Court of First Instance or the applicants to verify whether the contested decisions resulted in distortion of the comparative examination of the candidates' merits.
In response to a request from the Court of First Instance to produce extracts from the files concerning the second written test of the 67 successful candidates or any other relevant information which might prove the number of words used by those candidates in their written answer in the second written test, failing which to produce evidence that only five persons exceeded the limit of 800 words (comprising one with 810, two between 820 and 830 and two others with between 840 and 850 words) and to show that the five abovementioned candidates do not appear on the list of suitable candidates, the Commission stated that it was physically impossible for it to produce the written tests because they had been destroyed, despite instructions to the contrary given by Mr Kalbe, head of the Recruitment Division, at the time of his transfer.
When heard as a witness on the facts concerning correction of the second written test and the outcome of the tests after completion of the competition concerned, Mr Kalbe told the Court of First Instance that
The Court of First Instance stated, in the judgment under appeal:
The Court of First Instance decided, on those grounds, to annul the decision of the Selection Board in Competition COM/A/482 concerning the marking of the second written test, and the subsequent acts in the competition procedure and ordered the Commission to pay the costs.
II — Subject-matter and relief sought in the appeal
1. By a document lodged at the Registry of the Court of Justice on 7 August 1990, the Commission appealed against the abovementioned judgment of the Court of First Instance, which had been notified to it on 13 July 1990, on the ground that it was delivered in breach of Community law.
2. By a separate document lodged at the Registry of the Court of Justice on 9 August 1990, the Commission also applied for interim measures suspending enforcement of the contested judgment in so far as, in its view, it obliged it to cancel the appointments of 38 officials following the annulment of the second written test in competition COM/A/482.
3. By applications lodged at the Registry of the Court of First Instance on 4 and 8 October 1990, the interveners Acasibar Zubizarreta and Others and Buggenhout and Others submitted applications initiating third-party proceedings against the judgment of the Court of First Instance of 12 July 1990 under Article 39 of the Protocol on the Statute of the Court of Justice of the EEC and Article 97(1) of the Rules of Procedure of the Court of Justice, which are applicable mutatis mutandis to proceedings before the Court of First Instance.
4. On 26 July 1991 the Commission caused to be published in the Official Journal a notice as to the reopening of competition COM/A/482 for those candidates who had passed the first written test and had not yet been appointed officials (OJ 1991 C 197, p. 14).
III — Summary of the parties' pleas in law and arguments
1. The Commission states at the outset that the contested judgment is not under appeal because it annuls the marking of the second written test in competition COM/A/482. For the Commission that judgment is res judicata. The judgment is submitted to the Court of Justice for review in so far as it does not limit the consequences of such annulment to reinstatement of the rights of the original applicants but must be read as extending them to the acts of the subsequent procedure, in particular by rendering invalid the list of suitable candidates and the appointments made from that list.
(a) Breach of the principle of legal certainty
As regard the legal position of the latter candidates, the Commission points out that inclusion on the list of suitable candidates, although not conferring any right to be appointed an official, is a preliminary to appointment, being an essential precondition. The annulment of that list thus definitively affects any chance which the successful candidates might have had of being appointed.
According to the Commission, the Court of First Instance did not, as it should, weigh the personal interest of the four original applicants in seeking annulment of the entire procedure against the legitimate expectations of the successful candidates.
As far as the personal interest of the four original applicants is concerned, the Commission observes that the percentage of vacant posts (as a result of transfer, reassignment, ordinary cessation of service, and so on) within DG VI, the Agriculture Directorate, as compared with the total number of staff in category A (some 350 posts) is permanently between 6 and 9%. Thus, at present the number of vacant posts to which the candidates who pass a competition like the one at issue could be appointed is 27 (disregarding the posts left vacant as a result of the redeployment policy, which are essentially filled by internal reassignments). Because of this quasi-permanent stock of posts, the lists of suitable candidates in open competitions (which are not yet held with sufficient frequency) are extensively used. Consequently, had it been necessary to reorganize the disputed tests solely for the four applicants, there is nothing to say that their possible subsequent inclusion on the present list, which would of course have been extended by the Commission, would have been to no avail. Moreover, the Commission had stopped recruiting from the present list until completion of the tests organized for the four applicants in order to preserve equality of opportunity between the suitable candidates.
As far as the legitimate expectations of the suitable candidates is concerned, the Commission states that proof of the central issue in the proceedings before the Court of First Instance, establishing beyond dispute that the fault committed by the selection board could not vitiate the results of the competition — that is to say proof of the fact that only five candidates had exceeded the limit and that they did not appear on the list of suitable candidates — could not be produced on conclusion of the procedure owing to the fact that the tests were destroyed in error. The judgment delivered in favour of the four unfortunate candidates who had a personal interest in calling for their tests to be marked, could not however detract from the legitimate interest of the suitable candidates in having the list of suitable candidates maintained since they were each convinced that they had kept within the limit of 800 words. It is common ground that the material impossibility, criticized by the Court of First Instance, of proving that the results of the competition were not distorted by the selection board's decision does not in itself prove that the results of the competition were in fact distorted. In the Commission's opinion, it would be contrary to the principle of the protection of legitimate expectations — which is an aspect of the principle of legal certainty — to make suitable candidates who had acted in good faith and had been able to demonstrate their considerable qualifications and professional worth, bear the burden of proving that they in fact observed the limit of 800 words, having regard to the fact that the personal interests of the four original applicants would be substantially protected by the organization of fresh tests specially for them.
(b) Breach of the principle of proportionality
According to the Commission, the same considerations are conducive to the view that there was a breach of the principle of proportionality.
The Commission observes in that connection that the Court of First Instance annulled the decision of the selection board concerning the marking of the second written test because it was unable to determine whether the principle that candidates must be treated equally was observed in the marking of that test or whether that irregularity may have distorted the final outcome of the competition. In other words, it is an irregularity, namely the fact that the selection board, after the conduct of the second written test but before it was marked, gave instructions not to mark papers that were clearly much too long, and thereby departed from the limits imposed, which has not been shown to have actually distorted the final outcome of the competition, which justified the annulment by the Court of First Instance of the results of the competition and the serious consequences therefore for the suitable candidates.
However, in the Commission's view, the Court of First Instance could have reasonably deduced from the statements of the witnesses, particularly Mr Benda and Mr Kalbe, that all, or nearly all, the suitable candidates had kept within the number of words imposed. In those circumstances, the principle of proportionality justified annulment only of the decisions of the selection board concerning marking of the papers of the four original applicants in the second written test. The consequential annulment of all the subsequent acts could only have been justified if it had been positively established, by any legal means, that the suitable candidates had likewise not kept within the limit of the maximum number of words.
In conclusion, the Commission considers that the contested judgment lacks proportionality in that it did not consider it sufficient, having regard to all the legitimate interests involved, to reinstate the rights of the four original applicants as a necessary and sufficient consequence of that annulment.
(c) Breach of the principle that judgment must indicate the grounds on which they are based
The Commission considers, finally, that by annulling the results of the competition and the appointments made following it without giving the reasons for the change in direction of the case-law resulting from its judgment, having regard in particular to the principles of legal certainty and proportionality, the Court of First Instance failed in its obligation to indicate the grounds for its judgments.
2. The interveners, Allen and Others and Alberai Anchia and Others, all of whom are officials appointed following their success in competition COM/A/482, contend primarily that the contested judgment does not entail the annulment of their appointments. In the alternative, they consider that the general principles of nondiscrimination, legal certainty, protection of legitimate expectations and proportionality preclude any effect on their appointments.
3. The interveners Acasibar Zubizarreta and Others, successful candidates in competition COM/A/482 who, when the contested judgment was delivered, had not yet been appointed, observe, as a preliminary point, that that judgment should not be interpreted as establishing a distinction between the candidates appointed and those who were not yet appointed (but in many cases were on the point of being appointed). Either the list of suitable candidates is void, so that the appointments made on the basis of that list are necessarily so as well, by reason of the retroactive effect of the annulment (see inter alia Joined Cases 97/86, 193/86, 99/86 and 215/86 Asteris v Commission [1988] ECR 2181, paragraphs 29 and 30) or else the Court of First Instance limited the annulment so as not to invalidate the list of suitable candidates, in which case the successful candidates in the competition can all be appointed. The latter hypothesis is all the more plausible since the possibility of the annulling judgment being made effective erga omnes — contrary to the settled case-law of the Court of Justice — was not even discussed before the Court of First Instance.
4. The Federation de L Fonction Publique Européenne (FFPE) supports the forms of order sought by the Commission and draws attention in particular to the principles of appointment for life and protection of career rights. In this case, those principles would be contravened if the appointments made before 12 July 1990, the date of the judgment of the Court of First Instance, were now put in question.
5. Mr Albani and Others and Union Syndicale — Bruxelles observe, first, that annulment of the marking of the second written test in the competition automatically involves annulment of all consequential acts in so far as they derive exclusively from the annulled act, which provides their only basis and raison d'être. Since the Commission has not attacked the decision concerning marking of the second written test in the competition, it has no grounds for attacking the consequential acts following that decision. The appeal should therefore be declared inadmissible or at least unfounded.
1 Language of the case: French.