Avis juridique important

61981J0067

European Court reports 1982 Page 00661

Summary

OFFICIALS - RECRUITMENT - COMPETITION - NOTICE OF COMPETITION - REQUIREMENTS FOR ELIGIBILITY - SELECTION BOARD - DECISION NOT TO ACCEPT AN APPLICATION - GROUNDS BASED ON FAILURE TO FULFIL A REQUIREMENT WHICH HAS NOT BEEN EXPRESSLY SPECIFIED - ILLEGALITY ( STAFF REGULATIONS , ANNEX III , ART . 5 , FIRST PARAGRAPH )

ALTHOUGH THE APPOINTING AUTHORITY ENJOYS A WIDE DISCRETION TO DETERMINE THE CONDITIONS GOVERNING A COMPETITION , THE SELECTION BOARD IS BOUND BY THE TEXT OF THE NOTICE OF COMPETITION AS PUBLISHED . ACCORDING TO THE STAFF REGULATIONS THE BASIC FUNCTION OF THE NOTICE OF COMPETITION IS PRECISELY TO GIVE THOSE INTERESTED THE MOST ACCURATE INFORMATION POSSIBLE ABOUT THE CONDITIONS OF ELIGIBILITY FOR THE POST TO ENABLE THEM TO JUDGE WHETHER THEY SHOULD APPLY FOR IT .

WHERE EVEN A CAREFUL READING OF THE NOTICE DOES NOT ENABLE THOSE INTERESTED TO LEARN THAT IT LAYS DOWN A SPECIFIC REQUIREMENT , IN SO FAR AS IT DOES NOT REFER TO IT EXPRESSLY , THE SELECTION BOARD ' S DECISION NOT TO ADMIT A CANDIDATE ON THE GROUND THAT HE FAILS TO FULFIL THAT REQUIREMENT CONSTITUTES A BREACH OF THE FIRST PARAGRAPH OF ARTICLE 5 OF ANNEX III TO THE STAFF REGULATIONS OF OFFICIALS.

Parties

IN CASE 67/81

MARIE HELENE RUSKE , AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , RESIDING IN BRUSSELS , REPRESENTED BY JEAN-NOEL LOUIS OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF NICOLAS DECKER , 16 AVENUE MARIE-THERESE ,

APPLICANT ,

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY JORN PIPKORN , A MEMBER OF ITS LEGAL DEPARTMENT , ACTING AS AGENT , ASSISTED BY R . ANDERSEN OF BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ORESTE MONTALTO , A MEMBER OF THE COMMISSION ' S LEGAL DEPARTMENT , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

Subject of the case

APPLICATION FOR THE ANNULMENT OF THE DECISION OF THE SELECTION BOARD FOR INTERNAL COMPETITION NO COM/B/4/80 OF 25 SEPTEMBER 1980 NOT TO ADMIT THE APPLICANT TO THE TESTS FOR THAT COMPETITION AND , IN THE ALTERNATIVE , FOR THE ANNULMENT OF THE IMPLIED DECISION OF THE COMMISSION REJECTING THE APPLICANT ' S COMPLAINT AGAINST THE DECISION OF THE SAID SELECTION BOARD ,

Grounds

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 2 APRIL 1981 , MRS M . H . RUSKE , AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , BROUGHT AN ACTION UNDER ARTICLE 91 OF THE STAFF REGULATIONS FOR THE ANNULMENT OF THE DECISION OF THE SELECTION BOARD FOR INTERNAL COMPETITION NO COM/B/4/80 OF 25 SEPTEMBER 1980 NOT TO ADMIT HER TO THE TESTS .

2 THE APPLICANT HAS PERFORMED HER DUTIES IN THE FIELD OF RECORDS AND LIBRARY WORK SINCE 1 JANUARY 1971 IN THE CAPACITY OF PRINCIPAL CLERICAL OFFICER IN GRADE C 1 . IN SEPTEMBER 1980 , SHE SUBMITTED HER APPLICATION TO TAKE PART IN INTERNAL COMPETITION NO COM/B/4/80 WHICH WAS ORGANIZED IN ORDER TO CONSTITUTE A RESERVE OF ADMINISTRATIVE ASSISTANTS IN THE FIELD OF RECORDS AND LIBRARY WORK IN THE CAREER BRACKET COVERING GRADES 5 AND 4 OF CATEGORY B .

3 THE SELECTION BOARD FOR THE COMPETITION DECIDED NOT TO ADMIT THE APPLICANT TO THE TESTS ON THE GROUND THAT SHE FAILED TO SATISFY THE CONDITIONS LAID DOWN IN POINTS II.1.A.1 AND II.1.B.2 OF THE NOTICE OF COMPETITION .

4 HEADING II.1 OF THE NOTICE OF COMPETITION , ENTITLED ' ' CERTIFICATES , DIPLOMAS , ETC . AND PRACTICAL EXPERIENCE ' ' , LAID DOWN THE FOLLOWING REQUIREMENTS WHICH CANDIDATES FOR THE COMPETITION HAD TO SATISFY :

' ' EITHER

AND

AND

OR

AND

AND

AND

OR

C .. . . ' '

5 THE APPLICANT ACKNOWLEDGES THAT SHE DID NOT BASE HER APPLICATION ON THE REQUIREMENTS SET OUT AT POINT A . OF HEADING II.1 OF THE NOTICE OF COMPETITION BUT MAINTAINS THAT SHE SATISFIED ALL THE REQUIREMENTS STIPULATED AT POINT B . INCLUDING THAT AT POINT B.2 . IN HER SECOND SUBMISSION , SHE CONTENDS THAT THE DECISION OF THE SELECTION BOARD IS BASED ON AN INCORRECT ASSESSMENT OF THAT REQUIREMENT .

6 IT IS APPARENT FROM THE DOCUMENTS IN THE FILE ON THE CASE THAT THE SELECTION BOARD TOOK THE VIEW THAT EXERCISE OF THE DUTIES OF A RECORDS CLERK OR LIBRARY ASSISTANT AT THE LEVEL OF CATEGORY B REQUIRED SPECIALIZED BASIC TRAINING OF A THEORETICAL NATURE . THAT REQUIREMENT WAS ADOPTED BY THE JOINT COMMITTEE WHEN IT APPROVED NOTICE OF COMPETITION NO COM/B/4/80 AND , SUBSEQUENTLY , BY THE APPOINTING AUTHORITY . THE REQUIREMENT IN QUESTION IS SET OUT AT POINT B.2 OF THE NOTICE OF COMPETITION .

7 THE APPLICANT MAINTAINS THAT POINT B.2 DOES NOT EXCLUDE ANY TYPE OF CERTIFICATE OR STATEMENT OF QUALIFICATION AS A RECORDS CLERK OR LIBRARY ASSISTANT , OR BOTH . THE SELECTION BOARD HAS THEREFORE DISREGARDED THE NOTICE OF COMPETITION BY NOT ADMITTING CANDIDATES , INCLUDING THE APPLICANT , WHO PRODUCED A CERTIFICATE OR STATEMENT OF QUALIFICATION ISSUED BY AN EMPLOYER OR A SUPERIOR ATTESTING THE CANDIDATE ' S EXPERIENCE IN THE FIELD IN QUESTION .

8 THE COMMISSION HAS DEFENDED THE SELECTION BOARD ' S DECISION BY CONTENDING , IN THE FIRST PLACE , THAT THE APPOINTING AUTHORITY ENJOYS A WIDE DISCRETION FOR THE PURPOSE OF DETERMINING THE CRITERIA AS TO ABILITY REQUIRED IN THE CASE OF NEWLY-CREATED POSTS AND TO ESTABLISH , ON THE BASIS OF THOSE CRITERIA , THE CONDITIONS GOVERNING THE COMPETITION AND , SECONDLY , THAT SPECIALIZED THEORETICAL TRAINING WAS REQUIRED BY POINT B.2 OF THE NOTICE OF COMPETITION SINCE EXPERIENCE WAS ALREADY COVERED BY POINT B.3 .

9 IT SHOULD BE EMPHASIZED IN THE FIRST PLACE THAT ALTHOUGH THE APPOINTING AUTHORITY ENJOYS A WIDE DISCRETION TO DETERMINE THE CONDITIONS GOVERNING A COMPETITION , THE SELECTION BOARD IS BOUND BY THE TEXT OF THE NOTICE OF COMPETITION AS PUBLISHED . ACCORDING TO THE STAFF REGULATIONS THE BASIC FUNCTION OF THE NOTICE OF COMPETITION IS PRECISELY TO GIVE THOSE INTERESTED THE MOST ACCURATE INFORMATION POSSIBLE ABOUT THE CONDITIONS OF ELIGIBILITY FOR THE POST TO ENABLE THEM TO JUDGE WHETHER THEY SHOULD APPLY FOR IT .

10 THAT PRINCIPLE DOES NOT ABSOLVE THE OFFICIALS WHO ARE INTERESTED FROM A CAREFUL READING OF THE NOTICE OF COMPETITION . ALTHOUGH IN THE PRESENT CASE THE APPLICANT WAS ABLE TO DISCOVER FROM A CAREFUL READING OF THE NOTICE THAT THE CERTIFICATE OR STATEMENT OF QUALIFICATION REQUIRED HAD TO BE RELATED TO HER TRAINING AS A RECORDS CLERK OR LIBRARY ASSISTANT , THERE WAS NOTHING IN THE NOTICE TO INDICATE TO HER THAT SUCH TRAINING HAD TO BE THEORETICAL . ON THE OTHER HAND , A COMPARISON OF THE REQUIREMENT RELATING TO THE POSSESSION OF A ' ' DIPLOMA ' ' , STIPULATED AT POINT A.2 , WITH THAT CONCERNING THE POSSESSION OF A ' ' CERTIFICATE ' ' OR ' ' STATEMENT OF QUALIFICATION ' ' , STIPULATED AT POINT B.2 , MIGHT HAVE LED HER TO BELIEVE THAT THE TRAINING AS A RECORDS CLERK OR LIBRARY ASSISTANT REQUIRED UNDER HEADING B . OF THE NOTICE OF COMPETITION DID NOT NECESSARILY HAVE TO BE SPECIALIZED OR THEORETICAL IN NATURE .

11 IT FOLLOWS FROM THIS THAT THE NOTICE OF COMPETITION , WHICH MAKES NO MENTION OF ANY REQUIREMENT AS TO THEORETICAL TRAINING UNDER HEADING B ., MAY NOT BE INTERPRETED AS LAYING DOWN A CONDITION TO THAT EFFECT .

12 ACCORDINGLY , THE SELECTION BOARD BASED ITS DECISION ON CRITERIA OTHER THAN THOSE LAID DOWN BY THE NOTICE OF COMPETITION AND HAS THEREFORE INFRINGED THE FIRST PARAGRAPH OF ARTICLE 5 OF ANNEX III TO THE STAFF REGULATIONS .

13 THEREFORE , SINCE THE COURT ACCEPTS THE APPLICANT ' S SECOND SUBMISSION , THE SELECTION BOARD ' S DECISION NOT TO ADMIT THE APPLICANT TO THE TESTS MUST BE ANNULLED WITHOUT ITS BEING NECESSARY TO EXAMINE THE OTHER SUBMISSIONS PUT FORWARD BY THE APPLICANT . IN VIEW OF THE FACT THAT THE PURPOSE OF THE COMPETITION IN QUESTION WAS TO CONSTITUTE A RESERVE FOR FUTURE RECRUITMENT , THE COMPETITION WILL HAVE TO BE REOPENED IN RELATION TO THE APPLICANT .

Decision on costs

COSTS

14 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE , THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . AS THE DEFENDANT HAS FAILED , IT MUST BE ORDERED TO PAY THE COSTS .

Operative part

ON THOSE GROUNDS ,

THE COURT ( FIRST CHAMBER ) HEREBY :

1 . ANNULS THE DECISION OF THE SELECTION BOARD FOR INTERNAL COMPETITION NO COM/B/4/80 OF 25 SEPTEMBER 1980 NOT TO ADMIT THE APPLICANT TO THE TESTS ;