Opinion of the Advocate-General
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Mr President,
Members of the Court,
1. In this appeal the European Parliament asks the Court to consider the judgment given on 20 September 1990 (1) by the Court of First Instance of the European Communities in Mr Hanning' s action. That judgment annuls the Parliament' s decision to disregard the results of Competition No PE/41/A and to open Competition No PE/41a/A.
2. The Parliament made a separate application for an interim order suspending the implementation of the judgment in question. That application was granted by order of 31 January 1991. (2)
3. The facts giving rise to the case are summarized below.
4. On 5 December 1986 the European Parliament commenced a competition based on qualifications and tests for the recruitment of a Head of Division to be in charge of the London Information Office (Competition No PE/41/A).
5. The notice of competition set strict conditions regarding the submission of documents evidencing academic qualifications and professional experience. (3)
6. Mr Hanning was admitted to the competition, but the Selection Board initially rejected, amongst others, the applications of Mr Spence and Mr Waters, officials of the Parliament, and those of Mr Elphic and Morris precisely on the grounds that they had failed to submit or only submitted insufficient supporting documents. The Selection Board' s decision was contested by those persons.
7. After considering the matter, the Selection Board eventually admitted Mr Spence and Mr Waters to the competition on the ground that, even though not produced within the time required, the necessary supporting documents were contained in their own personal files held by the appointing authority.
8. On 6 October 1987 Mr Hanning took the tests for the competition. On 29 October 1987 he was informed that he appeared on the list of four candidates considered by the Selection Board suitable for the post in question.
9. The list of suitable candidates contained the following candidates: Mr Hanning with 72 points, Mrs Beck with 69 points and Mr Spence and Mr Waters, each with 63 points.
10. A fifth candidate, Mr Tate, had obtained 58 points, the minimum necessary to be included on the list. However, as the list could not comprise more than four successful candidates, Mr Tate was not included on it.
11. On 30 November 1987 Mr Hanning underwent a medical examination with a view to his recruitment. On that date he was informed of the conditions of employment.
12. Meanwhile, Mr Elphic and Mr Morris, as well as Mr Trowbridge, who had been admitted to the competition but omitted from the list of suitable candidates, had each submitted complaints to the Parliament.
13. On 8 December 1987 the Director of the Private Office of the President of the Parliament asked the Legal Department to advise on whether a decision to appoint made on the basis of the results of that competition was likely to be annulled following an action brought by an unsuccessful candidate.
14. After having considered the complaints made by Mr Trowbridge, Mr Elphic and Mr Morris, the Legal Department stated in an opinion dated 9 February 1988 that the two latter candidates had been wrongfully admitted to the competition and came to the conclusion that the appointing authority was entitled to disregard the results of the competition and to initiate a new one.
15. In February 1988 the President of the Parliament decided, on the basis of the opinion and having regard to the case-law on the matter, to disregard the results of the competition and to begin the entire competition procedure again.
16. Mr Hanning was informed on 6 April 1988, by a letter signed by the Head of the Personnel Division, that since the Parliament "had noted irregularities in the competition procedure" it "deemed it appropriate not to make an appointment and instead to open a fresh recruitment procedure based on qualifications and tests".
17. Pursuant to Article 90(2) of the Staff Regulations of Officials of the European Communities (hereinafter referred to as "the Staff Regulations") Mr Hanning submitted a complaint against that decision, claiming in particular that he was the "successful candidate" within the meaning of the first paragraph of Article 33 of the Staff Regulations. He applied for the annulment of the decision of 6 April 1988 and the recognition of his right to be appointed to the post in question.
18. On 30 March 1988, the Parliament published a notice of a new open competition (Competition No PE/40a/A) to fill the same post. Mr Hanning took part in that competition. The following candidates appeared on the list of suitable candidates drawn up by the Selection Board: Mr Bond, with 80.5 points, Mr Hanning, with 73 points, Mr Holdsworth, with 72 points, and Mr Wood, with 70.5 points. Mr Tate, with 66 points, was once again in fifth position and was not included in the list. Mr Bond was appointed to the post in question.
19. On 24 May 1989, Mr Hanning submitted a second complaint, challenging the appointment of Mr Bond.
20. Following the rejection of that complaint, Mr Hanning brought an action before the Court of Justice on 29 June 1988 for the annulment of the decision to appoint Mr Bond and a declaration that he was entitled to be appointed to the post in question. He also claimed compensation for material and non-material damage.
21. By order of the President of the Third Chamber of the Court of Justice dated 11 July 1988, (4) an application for an interim order suspending the operation of the decision of 6 April 1988 (5) was dismissed.
22. By order of the Court of 15 November 1989, the case was referred to the Court of First Instance.
23. In its judgment, the Court of First Instance considered that the Parliament' s decision not to continue with the procedure of the first competition did not contain an adequate statement of the reasons on which it was based, in so far as it referred merely to "irregularities during the procedure". (6) However, it considered whether the inadequate statement of reasons could be remedied by the arguments put forward by the Parliament during the proceedings. It was in this way that the Court of First Instance confirmed the view of the Parliament' s Legal Service that the procedure of the first competition was irregular. (7)
24. The Court of First Instance cited the case-law of the Court of Justice according to which the appointing authority has no power to annul or amend a decision taken by a selection board. (8) It observed that the appointing authority was, however, required to take decisions which are free of irregularities; that it was therefore not bound by illegal decisions of a selection board and that it was then under the duty to recommence the whole competition procedure with a new notice of competition. (9)
25. However, the Court of First Instance considered that since the irregularities concerned solely the admission of Mr Spence and Mr Waters to the competition, they were severable (10) from the rest of the competition procedure and that the appointing authority was only obliged to abstain from appointing those two candidates and to consider the possibility of appointing the two persons remaining on the list, namely Mr Hanning and Mrs Beck. It considered that the case in point could not be compared to the judgments referred to concerning candidates who had unlawfully not been admitted to a competition. (11) The decision of 6 April 1988 is therefore, in the view of the Court of First Instance, vitiated by an error of law inasmuch as the appointing authority failed, before organizing a new competition, to consider the possibility of appointing Mr Hanning or Mrs Beck after having satisfied itself that there were no reasons connected with the interest of the service which might justify the appointment of Mr Tate. (12)
26. Consequently the Court of First Instance annulled the Parliament' s decision not to continue the procedure of the first competition and to begin a second one.
27. In support of its appeal the Parliament relies on a plea based on the infringement of Community law, set out in two limbs: the first concerns the appointing authority' s duty to establish the proper conduct of the competition, and the second, in the alternative, concerns its discretionary power regarding the appointment of persons appearing on the list of suitable candidates.
28. With regard to the first limb, it states that a list reduced to two names instead of four is unlawful. It notes more particularly that Mr Tate, the fifth successful candidate, could not have been included on that list, whereas he would have been entitled to have been included if the competition had been properly conducted.
29. It is common ground that the Selection Board wrongly included Mr Spence and Mr Waters on the list of suitable candidates. In relying principally on that fact to decide that the procedure of Competition No PE/41/A was wholly vitiated and that a new competition was justified, has the Parliament adduced a fair and sufficient reason or has it committed an error of law, as the Court of First Instance considered?
30. The analysis of the Court of First Instance is as follows:
- the appointing authority was only prohibited from appointing one of the two candidates wrongly included on the list of suitable candidates (paragraph 71 of the judgment);
- the appointing authority ought then to have considered the possibility of appointing one of the other two candidates by comparing their merits with those of Mr Tate, who, wrongfully, had not been included on the list because of the irregularities affecting the competition (paragraph 73 of the judgment);
- only if Mr Tate had been preferred to the candidates validly included on the list or, if after considering their applications it was not possible to appoint either of them, was it possible for the Parliament to institute a new competition by adopting a reasoned decision (paragraph 74 of the judgment).
31. It should be noted that the list of suitable candidates on which only two names were validly included complies with the requirements both of the fifth paragraph of Article 5 of Annex III to the Staff Regulations (under which the list is to contain at least twice as many names as the number of posts to be filled) and the notice of competition (stating that the list could not contain more than four candidates).
32. It should, however, be noted that, pursuant to Article 30 of the Staff Regulations, the appointing authority chooses from the list of suitable candidates arising out of the competition those candidates which it appoints to the vacant posts.
33. The irregularities which occurred had the effect of reducing the number of valid candidates to two, whereas, if the list had been validly drawn up, the inclusion of Mr Tate would have widened the appointing authority' s choice.
34. Does such a reduction affect the validity of the competition?
35. That validity is to be considered not only with respect to the choice open to the appointing authority, but also, and in my opinion principally, with respect to the principle of the equal treatment of candidates. It must be remembered that Mr Tate had obtained the marks required for inclusion on the list and that only the irregular inclusion of Mr Spence and Mr Waters had prevented him from being included. (13)
36. It is clear that, as the list of suitable candidates contained only two valid names, Mr Tate' s interests were severely prejudiced and that the principle of the equal treatment of candidates in a competition was infringed to his detriment.
37. His position may be compared with that of the two applicants in the case Hoyer v Court of Auditors. (14) They contested the decision by a competition selection board to exclude them solely on the ground that they had themselves stated in their application forms that their knowledge of French was only "fair", without an objective assessment of their linguistic abilities having been made.
38. The Selection Board' s decisions refusing to admit them were wholly annulled by the Court of Justice on the ground that
"... the appointing authority is required to take decisions which are free of irregularities. It cannot therefore be bound by decisions of a selection board where the illegality of those decisions is liable to vitiate its own decisions.
It is for that reason that, where the appointing authority considers, as in this case, that one or more of the selection board' s decisions refusing to admit candidates to the competition are illegal and that as a result the whole competition is invalidated, it cannot make an appointment. It is then under the duty to take formal note of that situation by means of a reasoned decision and recommence the whole competition procedure following publication of a new notice and if necessary the appointment of a new selection board". (15)
39. The Court of First Instance deduced from that decision that when candidates are invalidly excluded from a competition, the whole of the procedure is vitiated, but that where candidates have been wrongfully included on the list of suitable candidates, as in this case, the competition can be continued to its conclusion on the basis of a list "of which the parts which are irregular may be severed from those which are not". (16)
40. That reasoning is not convincing. Placed behind those candidates wrongfully included on the list, there are necessarily candidates wrongfully excluded from it when they satisfy the conditions for inclusion. Mr Tate found himself precisely in that position. To put it plainly, Mr Tate was deprived of any chance of appearing on the list because of the invalid inclusion of Mr Spence and Mr Waters.
41. The judgment in Hoyer v Court of Auditors concerned candidates who had been wrongfully excluded not from the list of suitable candidates but from the competition itself. The solution adopted by that judgment - the annulment of the competition - preserves the interests of the excluded candidate. The damage suffered by the candidate irregularly excluded from the list of suitable candidates is at least as great - in so far as he loses the possibility of being appointed - as that suffered by the candidate irregularly excluded from the competition itself.
42. It therefore seems to me logical to transpose the reasoning adopted in the judgment in Hoyer v Court of Auditors to the case where a candidate has been excluded from the list of suitable candidates: such an irregularity vitiates the competition.
43. Finally, it seems to me that the judgment in Kohler v Court of Auditors (17) provides no guidance with regard to Competition No PE/41/A. In that case the applicant had successfully taken part in a competition organized by the Court of Auditors to fill a vacancy for a revisor/principal translator and was the only person entered on the list of suitable candidates. The appointing authority had nevertheless decided not to appoint her despite the fact that the reasons given by the Court of Auditors did not justify its decision. The Court held that:
"whilst ... the Staff Regulations do not place the appointing authority under an obligation to pursue a recruitment procedure once it has begun, by filling the vacancy concerned, the rule is none the less that, in filling a post declared vacant, the appointing authority must proceed with the appointment of successful candidates in accordance with the competition results and cannot deviate from that rule except for weighty reasons, justifying its decision clearly and fully". (18)
44. In that case the list of suitable candidates was not vitiated by any irregularity and the appointing authority had refused to proceed with the competition without giving any convincing reasons. That case therefore bears no relation to the case where an appointing authority refuses to pursue the competition to its conclusion for a proper reason, such as the fact that the list of suitable candidates has been drawn up irregularly.
45. As the Court took pains to emphasize in its judgment in Hoyer v Court of Auditors:
"In exercising its own powers, the appointing authority is required to take decisions which are free of irregularities". (19)
46. It has been seen that the solution whereby the choice of the appointing authority is limited to only two names validly entered on the list of suitable candidates does not remove all irregularities from Competition No PE/41/A so long as the principle of the equal treatment of candidates continues to be infringed.
47. The Parliament therefore justifiably decided not to make an appointment on the basis of that competition and to open another recruitment procedure. Its decision was adopted in conformity with Article 30 of the Staff Regulations, which divides powers between the selection board and the appointing authority, and with the principle of the equal treatment of candidates.
48. I therefore propose that the Court annul the contested judgment of the Court of First Instance.
49. Before the Court of First Instance Mr Hanning relied on five pleas in support of his action. Only that based on the lack of the reasons for the decision was considered by the Court of First Instance.
50. If, as I have proposed, the Court of Justice annuls the contested judgment, ought the case to be referred back to the Court of First Instance or may the Court of Justice give final judgment in the matter by considering the other pleas submitted at first instance?
51. Pursuant to the first paragraph of Article 54 of the Statute of the Court of Justice of the EEC, "if the appeal is well-founded, the Court of Justice shall quash the decision of the Court of First Instance. It may itself give final judgment in the matter, where the state of the proceedings so permits, or refer the case back to the Court of First Instance for judgment".
52. A ruling by the Court giving final judgment in the case is not obligatory but is an option exercisable at its entire discretion.
53. Where matters on which the Court of First Instance has not ruled are concerned, questions of law could be considered for the first time by the Court of Justice, which here fulfils its role of ensuring the uniform application and interpretation of Community law. (20) In such a case, the Court merely anticipates the role it would play if, after referring the case back to the Court of First Instance, a second appeal were brought. On the other hand, an examination of the facts ought to be performed by the proper court, the Court of First Instance, which is the sole judge thereof.
54. For the state of the proceedings to permit judgment to be given, in my opinion the Court of Justice' s consideration of the pleas not examined at first instance must not result in findings of fact being made by it.
55. It is clear, in this case, that consideration of the other pleas relied on requires findings of fact (21) which the Court of First Instance has not made.
56. The case should therefore be referred back to the Court of First Instance for that purpose.
57. The first paragraph of Article 122 of the Rules of Procedure does not require the Court of Justice to make a decision as to costs, which should be reserved.
58. I therefore propose that the Court should:
1. Annul Judgment T-37/89 delivered on 20 September 1990 by the Court of First Instance of the European Communities;
2. Refer the case and the parties back to the Court of First Instance;
3. Order that costs be reserved.
(*) Original language: French.
(1) - T-37/89 [1990] ECR II-463.
(2) - C-345/90 P-R [1991] ECR I-231.
(3) - Under the heading Applications it was stated: This application form, together with the supporting documents concerning both education and professional experience, must be sent ... not later than 19 January 1987 ... Candidates, including officials and other servants of the European Community, who fail to forward application forms and all supporting documents within the prescribed time-limit will not be admitted to the competition .
(4) - Case 176/88 R Hanning v Parliament [1988] ECR 3915.
(5) - See point 16, above.
(6) - At paragraph 40.
(7) - At paragraph 55.
(8) - Judgments in Case 44/71 Marcato v Commission [1972] ECR 427; Case 34/80 Authié v Commission [1981] ECR 665 and Case 144/82 Detti v Court of Justice [1983] ECR 2421.
(9) - Judgment in Case 321/85 Schwiering v Court of Auditors [1986] ECR 3199.
(10) - See paragraph 70, penultimate sentence.
(11) - Paragraphs 70 and 71.
(12) - Paragraphs 72 to 74.
(13) - In this respect the remarks of the Parliament' s Legal Department should be noted: With regard to the candidates admitted to the competition, their chances were reduced by increasing the competitive element, since the list of suitable candidates was limited from the outset to four places and the candidates who had been given a second chance were on it. It must be pointed out that according to the marks contained in the Selection Board' s report, there is at least one candidate who obtained the minimum number of points necessary but who cannot be included on the list of suitable candidates. The appointing authority may not therefore consider appointing a person who has succeeded in the competition but whose inclusion on the list of suitable candidates is barred because of candidates who ought not to appear on it (Opinion of 9 February 1988, p. 15).
(14) - Judgment in Joined Cases 322 and 323/85 [1986] ECR 3215.
(15) - At paragraphs 13 and 14.
(16) - See paragraph 70 of the judgment.
(17) - Joined Cases 316/82 and 40/83 [1984] ECR 641.
(18) - At paragraph 22.
(19) - Cited above; see also the judgment in Case 321/85 Schwiering v Court of Auditors, cited above.
(20) - See in this sense the opinion of Mr Advocate General Van Gerven in Case C-145/90 P Costacurta [1991] ECR I-5449, point 3: The Court' s powers of review on appeal are intended to ensure the uniformity of Community law ; see also the fifth recital of the Council Decision of 24 October 1988 establishing a Court of First Instance of the European Communities: It is necessary, in order to maintain the quality and effectiveness of judicial review in the Community legal order, to enable the Court to concentrate its activities on its fundamental task of ensuring uniform interpretation of Community law (Decision 88/591/ECSC, EEC, Euratom, Official Journal 1989 C 215, p. 1, my emphasis).
(21) - For example regarding the circumstances in which Mr Hanning was asked to have a medical examination.
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