Summary
Parties
Grounds
Decision on costs
Operative part
Keywords
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OFFICIAL - RECRUITMENT - COMPETITION - COMPETITION BASED ON QUALIFICATIONS AND TESTS - TEST PROCEDURES AND CONTENT - SELECTION BOARD' S POWER OF APPRAISAL - REVIEW BY THE COURT - LIMITS
Summary
THE SELECTION BOARD ENJOYS WIDE POWERS OF APPRAISAL REGARDING THE PROCEDURES FOR AND CONTENT OF THE TESTS IN A COMPETITION . THE COURT MAY INVESTIGATE THE PROCEDURES FOR THE CONDUCT OF A TEST ONLY TO THE EXTENT NECESSARY TO ENSURE THAT THE CANDIDATES ARE TREATED EQUALLY AND THAT THE CHOICE OF CANDIDATES IS OBJECTIVE . SIMILARLY, THE COURT MAY NOT INVESTIGATE THE DETAILED CONTENT OF A TEST UNLESS SUCH CONTENT GOES BEYOND THE LIMITS LAID DOWN IN THE COMPETITION NOTICE OR IS NOT CONSONANT WITH THE PURPOSES OF THE TEST OR COMPETITION .
Parties
IN CASE 228/86
JEAN-PIERRE GOOSSENS,
SILVIO MARASCHIN,
WALTER SANDKUHL AND
GERARD DUNNE,
OFFICIALS OF THE COMMISSION IN LUXEMBOURG, REPRESENTED BY VICTOR BIEL, OF THE LUXEMBOURG BAR, WITH AN ADDRESS IN THE LATTER' S CHAMBERS AT 18 A RUE DES GLACIS,
APPLICANTS,
V
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, DIMITRIOS GOULOUSSIS, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF G . KREMLIS, A MEMBER OF THE COMMISSION' S LEGAL DEPARTMENT, JEAN MONNET BUILDING, KIRCHBERG,
DEFENDANT,
APPLICATION FOR THE ANNULMENT OF THE DECISIONS OF THE SELECTION BOARD FOR INTERNAL COMPETITION COM/A/8/84 FOR THE CONSTITUTION OF A RESERVE NOT TO ENTER THE APPLICANTS ON THE LIST OF SUITABLE CANDIDATES AND FOR THE ANNULMENT OF THE APPOINTMENTS MADE CONSEQUENT UPON THE SAID COMPETITION,
THE COURT ( SECOND CHAMBER )
COMPOSED OF : O . DUE, PRESIDENT OF CHAMBER, K . BAHLMANN AND T . F . O' HIGGINS, JUDGES,
ADVOCATE GENERAL : C . O . LENZ
REGISTRAR : D . LOUTERMAN, ADMINISTRATOR
HAVING REGARD TO THE REPORT FOR THE HEARING AND FURTHER TO THE HEARING ON 6 OCTOBER 1987,
AFTER HEARING THE OPINION OF THE ADVOCATE GENERAL DELIVERED AT THE SITTING ON 17 NOVEMBER 1987,
GIVES THE FOLLOWING
JUDGMENT
Grounds
1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 20 AUGUST 1986, JEAN-PIERRE GOOSSENS, SILVIO MARASCHIN, WALTER SANDKUHL AND GERARD DUNNE, OFFICIALS OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, BROUGHT AN ACTION FOR THE ANNULMENT OF THE DECISION OF THE SELECTION BOARD FOR INTERNAL COMPETITION COM/A/8/84 FOR THE CONSTITUTION OF A RESERVE NOT TO ENTER THE APPLICANTS ON THE LIST OF SUITABLE CANDIDATES AND, SO FAR AS MIGHT BE NECESSARY, THE ANNULMENT OF THE APPOINTMENTS MADE CONSEQUENT UPON THE SAID COMPETITION .
2 INTERNAL COMPETITION COM/A/8/84 FOR THE CONSTITUTION OF A RESERVE, BASED ON QUALIFICATIONS AND TESTS, WAS THE SUBJECT OF A COMPETITION NOTICE DATED 18 JUNE 1984 AND WAS ORGANIZED BY THE COMMISSION WITH A VIEW TO CONSTITUTING A RESERVE OF ADMINISTRATORS ( GRADES 7 AND 6 OF CATEGORY A ). IT WAS OPEN ONLY TO CANDIDATES CLASSIFIED IN GRADES B 3 TO B 1 SINCE 1980 AND WAS DESIGNED TO ENABLE OFFICIALS TO MOVE FROM CATEGORY B TO CATEGORY A . 283 CANDIDATES WERE ADMITTED TO THE COMPETITION .
3 THE COMPETITION COMPRISED THREE PHASES : A PRELIMINARY SELECTION STAGE, A TRAINING STAGE AND, FINALLY, AN ORAL TEST .
4 ON COMPLETION OF THE FIRST STAGE, THE SELECTION BOARD NAMED THE CANDIDATES WHOM THEY CONSIDERED THE MOST SUITABLE TO GO ON TO THE NEXT STAGE ON THE BASIS OF THEIR PERSONAL FILES AND THE RESULT OF A WRITTEN PAPER .
5 THE 87 CANDIDATES, INCLUDING THE APPLICANTS, THUS SELECTED FOR THE SECOND STAGE OF THE COMPETITION UNDERWENT COMPULSORY FULL-TIME TRAINING, ORGANIZED AND DEFINED BY THE SELECTION BOARD, FOR A PERIOD OF FOUR WEEKS . THE SELECTION BOARD HAD DECIDED UPON FOUR PRINCIPAL AREAS OF TRAINING, NAMELY COMMUNITY ECONOMICS AND FINANCE, THE COMMUNITY LEGAL ORDER, MODERN MANAGEMENT METHODS AND GENERAL ADMINISTRATIVE TECHNIQUES AND OPERATING PROCEDURES, AT THE RATE OF ONE SUBJECT-AREA EACH WEEK .
6 THE CANDIDATES WHO COMPLETED THE TRAINING STAGE THEN, IN ACCORDANCE WITH THE COMPETITION NOTICE, TOOK PART IN AN ORAL TEST, MARKED OUT OF 50, FOR WHICH A MINIMUM OF 30 POINTS WAS REQUIRED FOR ENTRY ON THE LIST OF SUITABLE CANDIDATES . OF THE 84 CANDIDATES, INCLUDING THE APPLICANTS, WHO TOOK PART IN THE ORAL TEST, 38 WERE ENTERED ON THE LIST OF SUITABLE CANDIDATES .
7 BY LETTERS OF 20 JUNE 1986, THE APPLICANTS WERE INFORMED OF THE NUMBER OF POINTS OBTAINED BY EACH OF THEM AND OF THE FACT THAT, SINCE THEY HAD BEEN AWARDED FEWER THAN 30 POINTS, THE SELECTION BOARD HAD BEEN UNABLE TO INCLUDE THEM ON THE LIST OF SUITABLE CANDIDATES .
8 IN SUPPORT OF THEIR CLAIM THAT THAT DECISION WAS UNLAWFUL, THE APPLICANTS SUBMIT THAT THE ORAL TEST WAS IMPROPERLY CONDUCTED AND OF INAPPROPRIATE CONTENT, AND THAT THERE WAS NO STATEMENT OF THE REASONS ON WHICH THE CONTESTED DECISION WAS BASED .
9 REFERENCE IS MADE TO THE REPORT FOR THE HEARING FOR A FULLER ACCOUNT OF THE FACTS OF THE CASE AND OF THE SUBMISSIONS AND ARGUMENTS OF THE PARTIES, WHICH ARE REFERRED TO OR DISCUSSED HEREINAFTER ONLY IN SO FAR AS IS NECESSARY FOR THE REASONING OF THE COURT .
THE SUBMISSION AS TO IMPROPER CONDUCT OF THE ORAL TEST
10 THE APPLICANTS CLAIM, ESSENTIALLY, THAT BOTH THE CONDUCT AND THE CONTENT OF THE ORAL TEST INFRINGED THE PRINCIPLE OF EQUALITY AS BETWEEN CANDIDATES AND THE PRINCIPLE OF OBJECTIVITY, BOTH OF WHICH ARE ESSENTIAL TO ANY COMPETITION, AND WERE NOT IN CONFORMITY WITH THE FRAMEWORK LAID DOWN FOR THAT TEST IN THE COMPETITION NOTICE . THE VERY LARGE NUMBER OF QUESTIONS, PREPARED AND USED BY THE SELECTION BOARD FOR THAT TEST, IN ITSELF MEANT THAT THE REQUIREMENT OF COMPLETE EQUALITY BETWEEN THE CANDIDATES COULD NOT BE FULFILLED . THE RANDOM SELECTION OF QUESTIONS MEANT THAT CHANCE WAS THE ONLY SELECTION CRITERION . THAT METHOD RULED OUT ANY CONSIDERATION OF THE "PROFILE" OF EACH CANDIDATE, THE ONLY WAY IN WHICH THE SELECTION BOARD COULD HAVE ASSESSED THE EXPERIENCE AND SKILLS AND THE SUITABILITY OF THE CANDIDATES ACCORDING TO OBJECTIVE CRITERIA . THE CONTENT OF THE QUESTIONS ADOPTED BY THE SELECTION BOARD WAS OF UNEQUAL DIFFICULTY AND, IN GENERAL, OF A HIGHER LEVEL THAN WAS APPROPRIATE TO THE POSTS TO BE FILLED . FINALLY, THE QUESTIONS ADOPTED DID NOT RELATE EXCLUSIVELY TO THE MATTERS DEALT WITH IN THE TRAINING COURSES, THUS FRUSTRATING THE LEGITIMATE EXPECTATIONS OF THE CANDIDATES IN THAT RESPECT .
11 THE COMMISSION OBSERVES THAT THE ORAL TEST, IN THE FORM ADOPTED FOR ITS CONDUCT BY THE SELECTION BOARD, COMPRISED FOUR PHASES . THE CANDIDATE FIRST DREW BY RANDOM SELECTION A QUESTION OF A GENERAL NATURE FROM A LIST OF 76 QUESTIONS SET BY THE SELECTION BOARD AND ANSWERED THE QUESTION AFTER 10 MINUTES' PREPARATION ( DURATION : 10 MINUTES, WEIGHTING : 1 ). THE CANDIDATE THEN GAVE AN ACCOUNT OF HIS TRAINING AND PAST AND PRESENT ACTIVITIES ( DURATION : 5 MINUTES, WEIGHTING : 0.5 ), THEN ANSWERED QUESTIONS CONCERNING HIS PRESENT ACTIVITIES IN THE CONTEXT OF ONE OF THE COMMUNITY POLICIES ( DURATION : 10 MINUTES, WEIGHTING : 1.5 ). FINALLY, THE CANDIDATE ANSWERED ONE OF TWO QUESTIONS, CHOSEN IN ROTATION BY ONE OF THE MEMBERS OF THE SELECTION BOARD FROM A LIST OF 75 QUESTIONS RELATING TO COMMUNITY POLICIES, TO THE EXCLUSION OF QUESTIONS RELATING TO THE CANDIDATE' S PRESENT ACTIVITY ( DURATION : 20 MINUTES, WEIGHTING : 2 ).
12 AT THE REQUEST OF THE COURT, THE COMMISSION PRODUCED THE TWO LISTS OF QUESTIONS PREPARED BY THE SELECTION BOARD .
13 THE COMPETITION NOTICE DID NOT LAY DOWN DETAILED ARRANGEMENTS FOR THE CONDUCT OF THE ORAL TEST OR DEFINE ITS CONTENT BUT MERELY STATED THAT THE PURPOSE OF THE TEST WAS TO ENABLE THE SELECTION BOARD TO QUESTION THE CANDIDATES WITH A VIEW TO ASSESSING THEIR EXPERIENCE AND SKILLS AND THEIR SUITABILITY FOR THE PERFORMANCE OF CATEGORY A DUTIES . THE COMPETITION NOTICE THUS LEFT TO THE DISCRETION OF THE SELECTION BOARD THE DETERMINATION OF THOSE ARRANGEMENTS AND OF THE DETAILED CONTENT OF THE TEST .
14 MOREOVER, SELECTION BOARDS MUST BE ACCORDED A WIDE POWER OF APPRAISAL REGARDING THE ARRANGEMENTS FOR AND DETAILED CONTENT OF THE TESTS IN A COMPETITION . THE COURT CANNOT REVIEW THE ARRANGEMENTS FOR THE CONDUCT OF A TEST ADOPTED BY A SELECTION BOARD EXCEPT TO THE EXTENT NECESSARY TO ENSURE THAT THE CANDIDATES WERE TREATED EQUALLY AND THAT THE CHOICE FROM AMONG THEM MADE BY THE SELECTION BOARD WAS OBJECTIVE . IT IS LIKEWISE NOT FOR THE COURT TO CRITICIZE THE DETAILED CONTENT OF A TEST, UNLESS THAT CONTENT IS NOT CONFINED WITHIN THE LIMITS LAID DOWN IN THE COMPETITION NOTICE OR IS NOT CONSONANT WITH THE PURPOSES OF THE TEST OR OF THE COMPETITION .
15 FIRSTLY, AS FAR AS THE COMPLAINTS CONCERNING THE ARRANGEMENTS FOR THE CONDUCT OF THE ORAL TEST ARE CONCERNED, THE SELECTION BOARD CANNOT BE CRITICIZED FOR PREPARING LISTS CONTAINING A NUMBER OF QUESTIONS ALMOST AS LARGE AS THE CONSIDERABLE NUMBER OF CANDIDATES TAKING PART IN THE TESTS OR FOR DECIDING THAT THE QUESTION OF A GENERAL NATURE WAS TO BE CHOSEN AT RANDOM FROM THE LIST PREPARED FOR THAT PURPOSE . PROVIDED THAT ALL THE QUESTIONS ADOPTED DISPLAY SUBSTANTIALLY THE SAME DEGREE OF DIFFICULTY, THAT APPROACH IN FACT REFLECTS A CONCERN TO ENSURE EQUALITY . CONSIDERATION OF THE 76 QUESTIONS OF A GENERAL NATURE AND OF THE 75 QUESTIONS ON COMMUNITY POLICIES HAS NOT DISCLOSED ANY SIGNIFICANT DIFFERENCE BETWEEN THE QUESTIONS IN THAT RESPECT .
16 THE FIRST TWO COMPLAINTS MADE BY THE APPLICANTS REGARDING THE CONDUCT OF THE ORAL TEST ARE THEREFORE UNFOUNDED .
17 AS REGARDS THE THIRD COMPLAINT, CONCERNING THE ALLEGED FAILURE TO TAKE ACCOUNT OF THE "PROFILE" OF EACH CANDIDATE, IT NEED MERELY BE STATED THAT THE SECOND AND THIRD PHASES OF THE TEST, MENTIONED ABOVE, RELATED TO THE INDIVIDUAL ACTIVITIES OF THE CANDIDATES AND THE ROLE OF THOSE ACTIVITIES WITHIN THE COMMUNITY CONTEXT . THAT COMPLAINT IS THEREFORE MANIFESTLY UNFOUNDED .
18 AS REGARDS THE COMPLAINTS CONCERNING THE ACTUAL CONTENT OF THE ORAL TEST, IT SHOULD BE NOTED THAT, ACCORDING TO THE COMPETITION NOTICE, THE TEST WAS TO BE SUCH AS TO ENABLE THE SELECTION BOARD TO ASSESS THE EXPERIENCE AND SKILLS OF THE CANDIDATES AND THEIR ABILITY TO PERFORM CATEGORY A DUTIES . IT APPEARS FROM AN EXAMINATION OF THE 76 QUESTIONS OF A GENERAL NATURE AND THE 75 QUESTIONS ON COMMUNITY POLICIES THAT THE ANSWERS TO THOSE QUESTIONS AND TO THE QUESTIONS CONCERNING CANDIDATES' ACTIVITIES WERE SUCH AS TO PROVIDE THE SELECTION BOARD WITH A SUFFICIENT BASIS FOR THAT ASSESSMENT . IT CANNOT THEREFORE BE CONCLUDED THAT THE CONTENT OF THE TEST WAS NOT CONFINED WITHIN THE LIMITS LAID DOWN IN THE COMPETITION NOTICE .
19 IT MUST BE EMPHASIZED THAT THE PURPOSE OF THE COMPETITION IS TO CREATE A RESERVE OF CATEGORY A OFFICIALS COMPETENT TO PERFORM THE DUTIES PERTAINING TO THAT CATEGORY IN ALL THE DEPARTMENTS OF THE COMMISSION . ALTHOUGH THE PROCEDURE WAS NOT ONE OF RECRUITMENT WITHIN THE MEANING OF ARTICLE 27 OF THE STAFF REGULATIONS, THE COMPETITION WAS DESIGNED TO HELP PROVIDE THE INSTITUTION WITH THE SERVICES OF OFFICIALS OF THE HIGHEST LEVELS OF COMPETENCE AND PERFORMANCE . THOSE CONSIDERATIONS AND THE FACT THAT THE NUMBER OF POSTS WAS MUCH SMALLER THAN THE NUMBER OF CANDIDATES JUSTIFIED MAKING THE TEST SOMEWHAT DIFFICULT SO AS TO ENABLE A RIGOROUS SELECTION TO BE MADE .
20 IN VIEW OF THOSE CONSIDERATIONS, IT DOES NOT APPEAR THAT THE 76 QUESTIONS OF A GENERAL NATURE SET BY THE SELECTION BOARD SURPASSED THE LEVEL OF GENERAL KNOWLEDGE OR INTELLECTUAL CURIOSITY WHICH MIGHT BE EXPECTED OF THE CANDIDATES . IN THE SAME WAY, HAVING REGARD TO THE TRAINING GIVEN AND THE FACT THAT ALL THE CANDIDATES HAD BEEN IN THE SERVICE OF THE COMMISSION FOR A LONG TIME, THE 75 QUESTIONS ON COMMUNITY POLICIES SET BY THE SELECTION BOARD DID NOT SURPASS THE LEVEL OF KNOWLEDGE CONCERNING THE FUNCTIONING OF THE COMMUNITIES AND THE POLICIES PURSUED BY THEM WHICH SHOULD HAVE BEEN ATTAINED BY CANDIDATES PURPORTEDLY CAPABLE OF PERFORMING CATEGORY A DUTIES .
21 THE COMPLAINT MADE BY THE APPLICANTS CONCERNING THE DISPROPORTIONATE AND EXCESSIVELY HIGH LEVEL OF THE QUESTIONS WHICH THE CANDIDATES HAD TO ANSWER IS THEREFORE UNFOUNDED .
22 FINALLY, AS FAR AS THE COMPLAINT CONCERNING QUESTIONS FALLING OUTSIDE THE SUBJECT-AREAS WHICH WERE THE SUBJECT OF INSTRUCTION DURING THE TRAINING COURSE, IT MUST BE STATED THAT THE COMPETITION NOTICE GAVE NO ASSURANCE REGARDING THE CONTENT OF THE ORAL TEST IN THAT RESPECT, AND FURTHERMORE THE APPLICANTS DO NOT REFER TO ANY SPECIFIC FACTOR WHICH COULD HAVE LED TO THE CANDIDATES' ENTERTAINING LEGITIMATE EXPECTATIONS IN THAT RESPECT .
23 AS REGARDS THE QUESTIONS ON COMMUNITY POLICIES, IT MUST HOWEVER BE ACKNOWLEDGED THAT A CANDIDATE OBLIGED TO ANSWER A QUESTION FALLING OUTSIDE THE SUBJECT-AREAS ON WHICH INSTRUCTION HAD BEEN GIVEN DURING THE TRAINING COURSE COULD HAVE BEEN PLACED AT A DISADVANTAGE BY COMPARISON WITH OTHER CANDIDATES, AND, AFTER CONSIDERATION OF ALL THE QUESTIONS SET BY THE SELECTION BOARD, THE POSSIBILITY CANNOT BE EXCLUDED THAT CERTAIN OF THEM MIGHT HAVE BEEN AT LEAST MARGINAL TO THE SUBJECT-AREAS DEALT WITH DURING THE FOUR WEEKS' TRAINING . HOWEVER, THAT PROBLEM RELATES ONLY THE FOURTH PHASE OF THE ORAL TEST AND EACH CANDIDATE HAD A CHOICE BETWEEN TWO QUESTIONS ON COMMUNITY POLICIES . MOREOVER, THE QUESTIONS ADOPTED RELATE TO PROBLEMS WITH WHICH A PERSON INTERESTED IN COMMUNITY POLICIES OUGHT TO BE SUFFICIENTLY FAMILIAR TO BE ABLE TO ANALYSE AND DISCUSS THEM WITH THE MEMBERS OF THE SELECTION BOARD . FURTHERMORE, THE PURPOSE OF THAT PHASE OF THE TEST WAS TO ASSESS THE CAPABILITIES OF THE CANDIDATES IN THAT RESPECT RATHER THAN TO TEST THE KNOWLEDGE ACQUIRED DURING THAT TRAINING . IN THOSE CIRCUMSTANCES, THE RISK THAT THE CHANCES MIGHT BE SLIGHTLY UNEQUAL CANNOT BY ITSELF VITIATE THE RESULT OF THE TEST .
24 IT FOLLOWS THAT THE COMPLAINT THAT CERTAIN QUESTIONS IN THE TEST WENT BEYOND THE SCOPE OF THE TRAINING COURSE IS ALSO UNFOUNDED AND THAT THE SUBMISSION AS TO THE IRREGULAR CONDUCT OF THE ORAL TEST MUST BE REJECTED .
THE SUBMISSION AS TO THE INADEQUACY OF THE STATEMENT OF REASONS
25 THE APPLICANTS CLAIM, ESSENTIALLY, THAT THE CONTESTED DECISION DOES NOT CONTAIN A SUFFICIENT STATEMENT OF THE REASONS ON WHICH IT IS BASED IN SO FAR AS THE SELECTION BOARD DID NOT GIVE THE RESULT OF THE TWO ASSESSMENTS REQUIRED OF IT BY THE COMPETITION NOTICE, NAMELY ASSESSMENT OF EXPERIENCE AND SKILLS AND THE ASSESSMENT OF SUITABILITY FOR CATEGORY A DUTIES .
26 THE COMMISSION CONTENDS THAT THE SELECTION BOARD IS NOT REQUIRED TO EXPRESS ITS VIEWS SEPARATELY ON THE EXPERIENCE AND SKILLS OF THE CANDIDATES, ON THE ONE HAND, AND THEIR SUITABILITY FOR CATEGORY A FUNCTIONS ON THE OTHER . THE SELECTION BOARD MADE ITS ASSESSMENT OF EACH PHASE OF THE TEST IN ORDER TO ARRIVE AT AN OVERALL RESULT .
27 IT NEED MERELY BE STATED THAT IT IS IMPOSSIBLE TO DRAW A CLEAR DISTINCTION BETWEEN THE ASSESSMENT OF THE RELEVANT EXPERIENCE AND SKILLS OF THE CANDIDATES AND AN ASSESSMENT OF THEIR SUITABILITY TO PERFORM THE DUTIES OF AN ADMINISTRATOR IN CATEGORY A WHICH CONSIST, AS STATED IN THE COMPETITION NOTICE, IN PERFORMING IN ACCORDANCE WITH GENERAL GUIDELINES DUTIES OF PLANNING, RESEARCH, ADMINISTRATION AND SUPERVISION .
28 IT FOLLOWS THAT THE APPLICANTS' COMPLAINT AS TO THE INADEQUACY OF THE STATEMENT OF REASONS IS LIKEWISE UNFOUNDED . THE APPLICATION MUST THEREFORE BE DISMISSED IN ITS ENTIRETY .
Decision on costs
COSTS
29 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . HOWEVER, UNDER ARTICLE 70 OF THOSE RULES, INSTITUTIONS ARE TO BEAR THEIR OWN COSTS IN PROCEEDINGS BROUGHT BY SERVANTS OF THE COMMUNITIES .
Operative part
ON THOSE GROUNDS,
THE COURT ( SECOND CHAMBER )
HEREBY :
( 1 ) DISMISSES THE APPLICATION;
( 2 ) ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .
Full & Egal Universal Law Academy