Andrée Heinwegh and Roger Constant v European Commission (255/78)

Contents

In Case 255/78,ANDRÉE ANSELME, NEE HEIRWEGH, AND ROGER CONSTANT, both officials of the European Communities, residing in Brussels, represented by Georges Vander-sanden, of the Brussels Bar, with an address for service in Luxembourg at the Chambers of Ernest Arendt, Advocate, 34 Rue Philippe II,vCOMMISSION OF THE EUROPEAN COMMUNITIES, represented by Denise Sorasio, a member of its Legal Department, acting as Agent, assisted by Daniel Jacob, of the Brussels Bar, with an address for service in Luxembourg at the office of Mario Cervino, Jean Monnet Building, Kirchberg,THE COURT (First Chamber)composed of: J. Mertens de Wilmars, President of Chamber, A. O'Keeffe and T. Koopmans, Judges,Advocate General: J.-P. WarnerRegistrar: J. A. Pompe, Deputy Registrargives the following

Judgment

Facts and Issues

The facts of the case, the procedure, the conclusions and the submissions and arguments of the parties may be summarized as follows:

I —Facts and procedure

At the end of 1977 the Commission organized Internal Competition No COM/BT/7/76 on the basis of tests for the purpose of constituting a reserve for future recruitment of technical assistants in Grades 5 and 4 of Category B.Notice of Internal Competition No COM/BT/7/76 described the nature of the duties to be performed in the following terms:‘Official engaged in executive duties:— Responsible for the performance under supervision of difficult and complex duties of a technical nature;— If appropriate, responsible for carrying out supervisory tasks as a technician,in the following fields:1. Telecommunications: switchboard, telephone, telex, conference rooms;2. Audio-visual techniques;3. Electrical engineering (as applied to buildings, graphics, etc.);4. Graphics:(a) printing(b) photo-engraving(c) microfilm work and industrial photography(d) offset lithography(e) type-setting(f) binding.’The notice of competition provided that the candidates were to indicate on their application forms for the competition the field chosen and, if they chose graphics, two specialities from among the six listed.The applicants applied to take part on the competition. Mrs Anselme chose printing and typesetting as her specialities whereas Mr Constant chose photo-engraving, as well as microfilm work and industrial photography.Notice of Internal Competition No COM/BT/7/76 laid down the conditions for admission to the competition in the following terms:‘Qualifications and practical experience:A:1. Advanced secondary education, with certificate;and2. At least 6 years experience by 31 December 1977 in the field chosen by the candidate from among those listed under “Nature of duties”;and3.(a) Entry into the service of the Communities as an official or other servant before 1 January 1973;or(b) At least 15 years' practical experience by 31 December 1977 in the field chosen;or B:1. At least 9 years' practical experience by 31 December 1977 of duties of a technical nature which the Staff Regulations classify as Category C standard;and2. Entry into the service of the Communities as an official or other servant before 1 January 1973’The applicants regarded themselves as satisfying the requirements under B.On 7 February 1978 the Head of the Recruiting, Appointments and Promotions Division informed the applicants that the selection board had rejected their applications on the ground that they did not have at least nine years' practical experience of executive duties of a technical nature which the Staff Regulations classified as of Category C standard in two specialities.On 14 February 1978 each of the applicants requested the chairman of the selection board for the competition to reconsider their candidatures. Following that request they were informed on 22 February 1978 that after re-examination of their file the selection board had decided that it must adhere to its previous decision refusing to admit them to the tests.On 25 April 1978 each of the applicants submitted to the President of the Commission a reasoned complaint under Article 90 (2) of the Staff Regulations. As the applicants did not receive any reply from the appointing authority within the period prescribed by Article 90 (2) of the Staff Regulations they lodged the present application which was received on 22 November 1978.Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General the Court (First Chamber) decided to open the oral procedure without holding any preparatory inquiry.

II —Conclusions of the parties

The applicants claim that the Court should:— Annul the decision by which the Selection Board for Internal Competition No COM/BT/7/76, intended to constitute a reserve for future recruitment, refused to admit them to that competition;— Annul Internal Competition No COM/BT/7/76 and the appointments made in consequence thereof;— Order the defendant to pay the costs.The defendant contends that the Court should:— Dismiss the application as unfounded;— Order the applicants to pay the costs.

III —Submissions and arguments of the parties.

The applicants emphasize first, that they duly followed the procedure for appeals laid down in Articles 90 and 91 of the Staff Regulations and that the application is therefore admissible.As regards the substance they maintain that the requirement of specific experience in two specialities was not set out in the notice of competition under heading II (eligibility).They state that reference was made only to the choice of two specialities under heading I of the notice of competition (nature of duties) in order to ascertain the field in which the candidates wished to be tested. In no case is the selection board for the competition entitled to depart from the conditions for admission to the point of adding new ones which are not expressly provided for.The applicants consider that headings I and II of the notice of competition have different objectives.An examination of the conditions for admission as they are laid down in heading II of the notice of competition shows that under A (which applies to the holders of a certificate of advanced secondary education) reference is made to the requirement of experience in the field chosen by the candidate (and not in two specialities).On the other hand, under B (which applies to candidates who do not possess a certificate of advanced secondary education) no specific field of knowledge is referred to.The applicants consider that the selection board was therefore forbidden to attach the requirement of nine years' experience applying under B to any field whatever and, a fortiori, to specialities. Similarly it cannot be maintained that, by analogy, points I and II of the notice had to be limited so as to add conditions for admission which were not expressly provided for.By acting in that manner the selection board infringed the first paragraph of Article 5 of Annex III to the Staff Regulations and based its decision on a ground which is legally incorrect.The applicants observe in the alternative that it emerges from their personal files and, in particular, from their periodic reports, that they each have at least nine years' practical experience in at least one of the specialities chosen by them.The Commission recalls, first of all, that when considering the question whether it is expedient to submit a complaint before an application is lodged the Court held that:‘Nevertheless this procedure is devoid of purpose where a complaint is directed against the decisions of a selection board in a competition since the appointing authority is not empowered to review such decisions.Accordingly the general plan both of the administrative procedure and of the court procedure militates against an interpretation of Article 91 (2), which, if taken literally, would merely result in a futile prolongation of the procedure.’(judgment of 16 March 1978, Ritter von Wüllerstorff und Urban v Commission, Case 7/77 [1978] ECR 769, paragraphs 7 and 8).The Commission leaves the question of the admissibility of the application to the Court.As regards the substance the Commission claims that the selection board rightly took the view . that the practical experience required had to have been acquired in the two specialities chosen by the candidates. It considers that the notice of competition must not be given an expository or even a grammatical interpretation but that, on the contrary, account must be taken of the administrative authority's aim in drawing up notices of competition, which is to do everything to ensure that the posts available are awarded to officials who possess an academic or practical training which is in keeping with them.The Commission's practice as regards notices of competition shows that under the heading ‘Qualifications and practical experience’ the conditions for admission to the competition provide that the practical experience must have been acquired in the performance of duties in the field specified under the heading ‘Nature of duties’.While no longer insisting on that link in the case of officials who possess a certificate of advanced secondary education the administrative authority maintains it as regards candidates who do not possess such a certificate.In view of the fact that the conditions for admission laid down in Notice of Competition No COM/BT/7/76 provided that candidates who possess a certificate of advanced secondary education had to have a certain minimum practical experience in the field chosen, it must a fortiori be assumed that the practical experience required of the candidates who do not possess such a certificate must necessarily also be in the field chosen. In that connexion the Commission refers to the third subparagraph of Article 5 (1) of the Staff Regulations and claims that a candidate who does not possess a certificate of advanced secondary education and who is therefore at the outset less well-qualified cannot enjoy wider conditions for admission than a candidate who does possess such a certificate.The Commission contests the argument put forward by the applicants to the effect that the selection board could not require candidates, even those holding a certificate of advanced secondary education, to give evidence of practical experience in the two specialities chosen.In accordance with the terms of Article 1 (c) of Annex III to the Staff Regulations the appointing authority must specify the nature of the duties attaching to the posts to be filled. That prerogative also involves the power to decide that a certain field covered by the competition must be subdivided into various specialities and that each candidate for a post in Category B must provide evidence of mastery of two of those specialities. The link between the practical experience required and the field chosen must therefore exist in relation to the two specialities chosen.The applicants are unable to provide evidence of any experience in the second speciality chosen, namely printing in the case of Mrs Anselme and photoengraving in the case of Mr Constant.In their reply the applicants maintain that the procedure was in no way irregular as regards Articles 90 and 91 of the Staff Regulations. It is neither forbidden nor inapposite to acknowledge that following receipt of a complaint the appointing authority has the power, where appropriate, to request the selection board for a competition to reconsider its position. Far from being unavailing such a procedure is likely to result in a settlement of the dispute and a decision to abandon the legal proceedings.The applicants stress the difference in wording which exists between the conditions for admission applicable to the candidates who possess a certificate of advanced secondary education and those applicable to the other candidates.To follow the interpretation advocated by the Commission would mean that the candidates themselves must interpret the conditions for admission, with the obvious risks of errors which may result. It cannot be conceded that a text whose very nature requires it to be clear and unambiguous in order to ensure objectivity and legal certainty should have to be interpreted by reference to the ‘administrative authority's aim’.The examples given by the defendant of the practice followed by the administrative authority rather show that any link which may be required between the practical experience of the candidates for a competition and a field specified under the heading ‘Nature of duties’ must result from the actual wording of the notice of competition.The applicants maintain that their personal files show that they each possess at least nine years' practical experience of duties of a technical nature classified by the Staff Regulations as of Category C standard, in accordance with the conditions for admission laid down in the notice of competition.Even supposing that it were appropriate to provide evidence of at least nine years' practical experience in the two specialities chosen, which the applicants contest, the notice of competition does not specify whether there must be nine years' experience in each of the specialities in question or, on the contrary, whether experience in each of the specialities is to be taken into account cumulatively. The fact that that particular, which is surely essential, is not clear from the wording of the vacancy notice as it stands shows that that was not the criterion which was to determine the admissibility of the applications for the competition.In its rejoinder the Commission observes that the judgment in Case 7/77 (Ritter von Wüllerstorff und Urbair v Commission, [1978] ECR 769) is completely in line with the case-law laid down in the Marcato cases (Case 44/71, Marcato v Commission [1972] 1 ECR 427, and Case 37/72, Marcato v Commission [1973] 1 ECR 361) and was confirmed by the judgment in the Salerno case (Joined Cases 4, 19 and 28/78 Salemo and Others v Commission [1978] ECR 2403).It claims that the wording of the notice of competition must be considered as a whole and that there can be no question of taking account of the condition relating to practical experience without having regard to the specialities chosen by the candidates.The notices relating to competitions held prior to the competition in dispute, which are produced by the Commission in an annex to the rejoinder, show that the practical experience required of the candidates who do not possess a certificate of advanced secondary education had to be in keeping with the nature of the duties to be performed.The Commission maintains that no account can be taken of the apparent disparity in the wording in the notice of competition in question. Having regard to the provision in the third subparagraph of Article 5 (1) of the Staff Regulations, the condition of practical experience in the field chosen which is required of candidates who possess a certificate of advanced secondary education must a fortiori be imposed on those candidates who do not possess such a certificate.Entirely as an alternative the Commission puts forward the view that if the Court were to think fit to annul the decision by which the Selection Board for Competition No COM/BT/ 7/76 refused to admit the applicants to the tests it would not be appropriate, having regard to the interests of the service and the legitimate interests of the successful candidates, to annul the tests relating to that competition or the appointments made in consequence thereof.

IV —Oral procedure

The parties presented oral argument at the hearing on 10 May 1979.The Advocate General delivered his opinion at the hearing on 7 June 1979.

Decision

1By an application received at the Registry on 22 November 1978 the applicants requested the Court to annul the decisions by which the Selection

2The contested decisions of the selection board for the competition were notified to the applicants on 7 February 1978. Following a request by the applicants for those decisions to be reconsidered they were informed by the selection board on 22 February 1978 that it had decided to adhere to its previous decisions. On 25 April 1978 the applicants submitted a complaint to the Commission under Article 90 (2) of the Staff Regulations, to which the Commission made no reply within the prescribed period.

Admissibility

4The defendant has put forward no objection concerning the admissibility of the application and the Court has found no grounds for considering the question of its own motion.

Substance

4The applicants maintain that the decisions of the selection board infringe the first subparagraph of Article 5 of Annex III to the Staff Regulations in that in order to refuse to admit them to the competition the selection board stated that they did not satisfy certain requirements relating to specific practical experience although those requirements were not required by the notice of competition.

5Among the five headings in the notice of competition two are of importance as regards the solution of the dispute. The first concerns the nature of the duties to be performed: it indicates that the aim of the competition is to fill posts of a technical nature in four fields, the fourth of which is defined as follows:

6The refusal to admit the applicants to the competition was based on the ground that they did not possess at least nine years' practical experience of executive duties of a technical nature classified by the Staff Regulations as of Category C standard in two specialities. The last three words did not appear among the ‘conditions for admission to the competition’ in relation to the candidates who, like the applicants, had not completed an advanced level of secondary education.

7The defendant has claimed that the applicants ought to have understood that the practical experience required among the other conditions for admission had to be in the field selected by the candidate and that although that link was not expressly mentioned in the wording of the notice of competition it nevertheless follows clearly from the aims of the administrative authority which organized the competition, from a careful reading of the notice of competition as a whole and from a comparison with other notices of competition relating to similar posts.

8The Court cannot follow the defendant in that view.

9According 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.

10That principle does not, however, absolve the officials who are interested from a careful reading of the notice of competition. Although in the present case applicants were able to discover from a careful reading of the notice that the practical experience required had to be in the technical field which they had selected there was, on the other hand, nothing in the notice to indicate to them that the connexion between the practical experience and the field selected was to be interpreted in such a way that the choice of the field of ‘graphics’ would imply the requirement of experience in the two specialities which they had chosen within that field.

11It is evident from the documents in the file that each of the applicants was prepared to perform tasks of a technical nature in the two specialities which they had chosen, that they had practical experience with the meaning of the notice of competition in one of those specialities and that one of them, Mr Constant, also had some experience, although of a limited nature, in the other speciality he had chosen. The defendant has claimed that a periodic report concerning that applicant referred only to a certain ‘knowledge’ of that speciality and not to any ‘experience’ but it has nevertheless not disputed his argument that the knowledge in question had been acquired as a result of practical work.

12Furthermore, it must be observed that Mr Constant immediately objected to the refusal of his candidature and, at the same time, indicated that he was putting information concerning his practical experience in each of the two specialities in question at the disposal of the selection board for the competition. The selection board nevertheless persisted in its refusal on the ground that the applicant should have submitted his qualifications in that respect.

13It follows from the foregoing considerations that as the notice of competition did not stipulate that the practical experience required was to cover two specialities it cannot be interpreted as nevertheless requiring that condition to be fulfilled.

14By refusing to admit the applicants to the competition on the ground that they did not possess at least nine years' practical experience in the two specialities chosen the selection board thus based its decision on criteria other than those laid down by the notice of competition, with the result that it infringed the terms of the first paragraph of Article 5 of Annex III to the Staff Regulations.

15It must, however, be remembered that Competition No COM/BT/7/76 was intended to constitute a reserve list for future recruitment of technical assistants in Career Bracket B 5/B 4, with the result that the exclusion of the applicants from the list of candidates did not effect the admission to the list of the persons selected by the selection board. It suffices to annul the decisions of the selection board to exclude the applicants from the competition and the decisions by which the board confirmed those refusals. In those circumstances there is no need to annul the selection made by the selection board.

‘Graphics(a) printing(b) photo-engraving(c) microfilm work and industrial photography(d) offset lithography(e) type-setting(f) binding.’If candidates chose the field of graphics they were requested to opt for two specialities. The second heading concerns the conditions for admission to the competition and draws a distinction between those candidates who have completed an advanced level of secondary education (heading II A) and those who have not (heading II B). The former were required to show that they possessed:‘At least 6 years' experience … in the field chosen by the candidate from among those listed under “Nature of duties”,’while the latter were required to show that they possessed:‘At least 9 years' practical experience … of duties of a technical nature which the Staff Regulations classify as Category C standard’.

Costs

16Under Article 69 (2) of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs. As the defendant has failed in its submissions it must be ordered to pay the costs.

Board for Competition No COM/BT/7/76, which was held for the purpose of constituting a reserve for future recruitment, refused to admit them to that competition, as well as to annul the competition itself and the appointments made in consequence thereof.

Operative part

THE COURT (First Chamber)hereby:

1.Annuls the decisions by which the Selection Board for Competition No COM/BT /7/76 refused to allow the applicants to enter the competition, as well as the decisions by which it confirmed the refusals in question;

2.Orders the Commission to pay all the costs.

Delivered in open court in Luxembourg on 28 June 1979.