Report for the Hearing delivered in Case 155/85

I — Facts

The applicant, an official of the United Nations at Geneva, was admitted to take the written tests in Competition No PE/27/A organized by the European Parliament.

According to the European Parliament, the tests were initially due to be held on 28 and 29 June 1984 but had to be rescheduled in order to allow several candidates, including the applicant, to take part in the tests of a Commission competition which were to take place on the same dates. The European Parliament does not make it clear whether the dates of 28 and 29 June 1984 were actually notified to the candidates. At a time when the definitive date for the tests was not yet known, the applicant telephoned the Secretariat of the Selection Board to inquire when the tests would be held. He was told that an effort would be made to organize the tests in any event before the summer vacation and that all candidates would be informed of the date in good time.

The applicant contests that version of the facts in two respects. Firstly, he challenges the European Parliament's suggestion that the dates of 28 and 29 June 1984 were communicated to the applicant. In his view, the European Parliament is seeking by those means to create the impression that he must have known that new dates were going to be fixed within a short space of time. Secondly, he claims that the Secretariat of the Selection Board did not state in response to his telephone enquiry that the written tests would take place before the summer vacation. He contends that the only reply he received was that an effort would be made to inform all candidates in good time and, to use the very words employed: ‘We do not yet know the date’.

It is not contested that by letter of 2 July 1984 from the European Parliament all candidates were notified that the written tests would take place on 19 and 20 July 1984. That letter reached the applicant's address on 5 July 1984.

The applicant states that he was absent on that date on three weeks' holiday. When, on his return, he became aware of the date for the written tests, they had already taken place.

On 7 August 1984 the applicant sent a telex message to the President of the European Parliament in which he complained of the excessively short notice that he had been given of the date of the tests. He stated that that period of notice was completely contrary to customary practice at the institutions of the European Communities and was especially inadequate since the notice was given in the summer-holiday period. He asked the President to set a new date for him to take the written tests and threatened to bring an action before the Court of Justice and, if necessary, to claim damages.

By a letter dated 29 August 1984 the Chairman of the Selection Board rejected the applicant's request that a new date be fixed for the written tests. The Chairman gave as his reason for that decision that it was not certain that the applicant had not since learned of the subjects of the tests and that, if new subjects were put forward, it was not certain that they would be of equal difficulty.

On 3 September 1984 the applicant sent a further telex message to the President of the European Parliament, in which he stated on his honour that he had at no time tried to find out the subjects of the tests and that he had not in fact been apprised of them. He repeated his request that a fresh date be set for him to sit the written tests.

At a meeting on 21 September 1984 the Selection Board examined the applicant's two telex messages of 7 August and 3 September 1984 and supported the view expressed in the letter of 29 August 1984 from the Chairman of the Selection Board.

On 4 October 1984 the Chairman of the Selection Board notified the applicant of that decision and stated that it was therefore not possible to set a new date for the written tests.

On 31 October 1984 the applicant brought an action for the annulment of the Selection Board's decision of 21 September 1984 (Case 259/84).

On 2 November 1984 the applicant submitted a complaint to the President of the European Parliament pursuant to Article 90 (2) of the Staff Regulations.

On 28 January 1985 he lodged an application for interim measures whereby he sought authorization to take part, as a conservatory measure, in the tests in Competition No PE/27/A, which were taking place at that time (Case 259/84 R).

By order of 31 January 1985 the Court (First Chamber) declared both the application for annulment and the application for interim measures to be inadmissible on the ground that the applications had not been preceded by a decision on a complaint.

Following the expiry of the four-month period laid down in Article 90 (2) of the Staff Regulations, the complaint of 2 November 1984 was rejected by implication on 2 March 1985.

On 22 May 1985 the applicant brought this application.

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 any preliminary inquiry.

II — Conclusions of the parties

The applicant claims that the Court should:

Annul the decision taken by the Selection Board in Competition No PE/27/A at its meeting on 21 September 1984;

Authorize him to take the written tests in that competition after the date set for those tests;

In the alternative, award him damages in an amount to be fixed by the Court but covering at least the costs and lawyer's fees which he has needlessly had to incur;

Order the European Parliament to pay the costs.

The European Parliament contends that the Court should:

Declare the first head of claim admissible but unfounded;

Declare the second and third heads of claim inadmissible;

Order the applicant to pay the costs.

III — Submissions and arguments of the parties

A — Admissibility

The European Parliament considers that the second head of claim is inadmissible since the Court of Justice has no power to substitute itself for a Selection Board even where a decision of a Selection Board is annulled.

The applicant submits that the second head of claim is admissible but seeks to reformulate it as follows in his reply: ‘Having regard to the Court's view of the law, require the European Parliament to allow him to take the written tests in Parliament Competition No PE/27/A after the date fixed for those tests and to accept his solemn declarations’.

The European Parliament also considers the third head of claim inadmissible. The Court is seised of an action brought under Article 91 of the Staff Regulations and if the applicant is unsuccessful in that action any other claim will be precluded.

The applicant contends that his claim for damages is admissible.

B — The substance

1. Insufficient notice

The applicant contends that the two weeks' notice between the arrival of the letter giving the date of the tests and the tests themselves was totally insufficient. That was evidenced by the fact that of the 362 candidates asked to attend 92 did not turn up. The notice was especially inappropriate in view of the fact that the events in question took place during the summer-holiday period. Furthermore, when the applicant inquired by telephone about the date of the tests before leaving to go on holiday, the Secretariat of the Selection Board assured him that the dates for the tests would be communicated in good time, without making it clear that the tests would take place before the summer holidays. The applicant suggests that his own testimony and that of the personnel of the Selection Board's Secretariat be heard on that point. In any event, such information was much too imprecise for the applicant to derive practical guidance from it.

The European Parliament considers that the contested period of notice was completely adequate. In the absence of any specific provision of the Staff Regulations on that point, it refers to Article 1 of Annex III to the Staff Regulations acccording to which notices of competitions must be published not less than one month before the closing date for applications. In its view, it is possible to infer therefrom that two weeks' notice was sufficient in the circumstances, since the candidates simply had to take the necessary steps in the light of a date which they knew to be imminent. Moreover, the applicant knew that that date would be fixed before the summer holidays and he should have taken the necessary steps by notifying his holiday address or having his mail forwarded. In addition, the applicant had no right to complain of a situation which had arisen because the European Parliament had wished to enable certain candidates, including the applicant, to take part in tests organized by the Commission on the date initially scheduled for the tests of the European Parliament's competition. As for the applicant's suggestion that evidence should be given by oral testimony, that is irrelevant and should be rejected.

2. Infringement of the principle of legitimate expectation

The applicant contends that the contested period of notice completely conflicted with customary practice in the institutions of the European Community and was therefore an infringement of the principle of legitimate expectation. The Community institutions notify candidates of the probable date of the tests at least two months in advance and tell them that the exact dates will be communicated in good time. The applicant produces in that connection a letter from the Commission dated 27 April 1984 relating to the competition organized by that institution in which the applicant took part, from which it is clear that that is in fact the practice followed. He also produces two attestations, one from the Council, the other from the Commission, which confirm that those institutions generally inform candidates of the date of the written tests about four weeks before they are due to take place. In the event that the Court is not sufficiently convinced of the existence of such a practice, the applicant asks it to hear the testimony of the Council and Commission staff responsible for the recruitment procedure.

The European Parliament contends that the applicant has not adduced sufficient proof of the general practice which, in his submission, exists. The documents produced come from two institutions only. Moreover, those documents merely provide evidence of a general rule, which implies that special circumstances may justify a shortening of the period of notice. The European Parliament states that such special circumstances existed in this case, by which it seems to be referring to the need to change the dates initially scheduled for the tests. Finally, the notice given is not criticized on the ground that the applicant did not have the time to prepare himself but because the letter inviting him to the tests did not reach him because he was absent for personal reasons. Accordingly, the complaint is without foundation and the offer of proof by testimony must be rejected.

3. Unlawfulness of the Selection Board's decision of 21 September 1984

The applicant claims that, in view of the irregular nature of the letter asking him to attend the tests, the Selection Board's decision of 21 September 1984 rejecting his request to sit the tests after the date scheduled therefore is unlawful. The applicant points out that he stated under oath on 3 September 1984 that he had at no time tried to find out the subjects of the tests and that he was in fact not aware of them. He states that he is prepared to swear solemnly before the Court that he is still unaware of them. He is quite aware of the disciplinary and criminal-law implications of such declarations. Consequently, there is nothing to prevent him from being admitted to sit the tests at a later date in so far as that is the only adequate way of making good the consequences of the fault committed by the Selection Board when sending out the contested notice.

The European Parliament contends that the Selection Board was right to refuse to fix a new date for the tests and to offer new subjects for the applicant. The Court has stated on several occasions that such a practice is contrary to the principle of equal treatment (judgment of 27 October 1976 in Case 130/75 Prats v Council [1976] ECR 1589; judgment of 14 July 1983 in Case 144/82 Detti v Court of Justice, [1983] ECR 2421). Moreover, it would be contrary to the principle of legal certainty to allow the applicant to take the original subjects tested, notwithstanding his solemn declaration that he is unaware of them. Hence, the Selection Board's decision of 21 September 1984 was lawful.

R. Joliet

Judge-Rapporteur

1 Language of the case: German.