Report for the Hearing delivered in Joined Cases 100, 146 and 153/87

I — Facts and procedure

1. Background to the dispute

By applications lodged at the Court Registry in December 1984, Vincenzo Sorani and 10 other officials of the Commission and Hermanus Adams and 52 other officials brought two actions seeking the annulment of the decision of the selection board for Internal Competition No COM/B/2/82 not to admit them to the tests for that competition (Cases 293 and 294/84).

The relevant notice of competition related to the establishment of a reserve list of administrative assistants, secretarial assistants and technical assistants in Grades 5 and 4 of Category B. Applications had to be made on a ‘single application form’ and a special annex in which the candidate had to state his education and any diplomas he had obtained, the posts he had held, with his experience in them, and his knowledge of shorthand-typing in the various languages.

In addition, provision was made for candidates who satisfied the conditions for admission to the competition to be interviewed whenever the selection board considered such an interview was necessary to assist the board in judging the candidates' ability to carry out duties in a higher category, and for the candidates' superiors to be interviewed (normally at the level of assistants to the Director-General) to collect information and opinions about the candidates' ability to perform duties at the level of Category B. The selection board was required to decide which candidates should be admitted to the tests on the basis of that information. Once it had commenced its task the board decided to interview the superiors of all candidates, of whom there were 820 at that stage. For that purpose it drew up a questionnaire which was submitted to an assistant in each Directorate-General in respect of the candidates in that Directorate-General. However, many of the assistants refused to fill in the questionnaire and, consequently, the board decided to consult them orally. The questionnaires which had already been filled in were returned to the assistants or destroyed. In March 1984 the board decided, on the basis of the material before it, that it appeared unnecessary to interview any of the candidates.

In June 1984 the applicants in Cases 293 and 294/84 were informed by the head of the Commission's Recruitment Division that the selection board for the competition, after a comparative examination of the applications and basing its assessment on a number of factors such as professional experience before and after recruitment, general or specialized education, further training, the periodic assessments of the candidates made by their superiors, the duties performed at the date on which the applications were submitted and mobility, considered that it could not place their names on the list of candidates admitted to the tests.

That communication led the applicants in the two cases to request the selection board to reconsider their applications and, in those cases where it decided to maintain its previous decision not to admit them to the tests, to state in each case which condition of admission had not been satisfied.

By letter of 7 September 1984 addressed to each of the candidates and drafted in the same terms, the head of the Commission's Recruitment Division informed them that the selection board had reconsidered their applications and had decided to confirm its decision since no additional factor had emerged to enable it to alter its previous view. He also pointed out that only candidates already performing duties at the level of Category B or who had all the qualifications required to perform such duties had been admitted to the tests. The applicants' action was directed against that decision. They contended before the Court, in particular, that the selection board infringed their right to be heard by refusing to allow them to comment on the opinions expressed in their regard by their superiors.

In that respect the Court took the view that ‘in the context of a competition the selection board is called upon to assess factors known to the candidates, whether it be qualifications which they hold, tests which they have undergone or periodic reports of which they are aware and on which they have had an opportunity to comment. That constitutes a guarantee that the competition will be properly conducted and a protection against arbitrariness, inasmuch as the candidates are aware of all the factors which entered into the selection board's assessment and are therefore well placed to contest that assessment if they consider that it is wrong. If, on the other hand, the selection board bases its decision at least in part, as it did in this case, on factors such as information supplied by, and the opinions of, the candidates' superiors, of which the candidates concerned have no knowledge, they have no opportunity to defend themselves against statements made by third parties which, though they may well be perfectly correct, may also be incorrect for one reason or another’. The fact that the applicants did not have an opportunity to state their views on the opinions expressed in their regard by their superiors thus constituted, in the Court's view, a breach of a principle which the selection board ought to have respected. Consequently, by two judgments of 11 March 1986, the First Chamber of the Court annulled the contested decision (Case 293/84 Sorani v Commission [1986] ECR 967 and Case 294/84 Adams v Commission [1986] ECR 977).

As a result of those two judgments the selection board decided to resume the procedure at the point at which it should have respected the principle referred to in the Court's judgments and to put the same questions to the candidates as had been put to their superiors. The board considered that in that manner it would have a range of additional information gathered from the candidates and from their superiors. As regards the replies given by those superiors who had been questioned, the selection board decided to reconstruct the tenor of those replies by reference to the individual notes taken by each member of the board during the interviews with them. The interviews with the applicants took place in June 1986.

By letter of 11 June 1986, Mr Junior, head of the Commission's Recruitment Division, informed the applicants that following the interviews the selection board had concluded that they had not submitted any information capable of altering the decision adopted in June 1984.

On 17 November 1986, in view of a number of complaints lodged by some of the applicants against that decision, Mr Junior issued invitations to attend a further meeting with the selection board in order to give the applicants an opportunity to express their views on the opinions given by their superiors. That further meeting took place in December 1986. By letter of 12 February 1987, the applicants were informed that, on the basis of all the information in its possession, the selection board did not consider that there were any grounds for reconsidering the decision which it had adopted in regard to them and which had been communicated to them on 11 July 1986.

The present applications are directed against that decision of 12 February 1987.

2. Procedure

The application submitted by Mrs Basch and Others was lodged at the Court Registry on 3 April 1987 (Case 100/87), that of Mr D'Elicio on 8 May 1987 (Case 146/87) and that of Mrs Goyens de Heusch on 14 May 1987 (Case 153/87).

By order of 2 July 1987, the Court (First Chamber) joined the three cases for the purposes of the written procedure, the oral procedure and judgment.

Mrs Basch and the other applicants in Case 100/87 and Mrs Goyens de Heusch lodged statements in reply. No reply was lodged by Mr D'Elicio.

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 preparatory inquiry.

On 24 October 1988 the President of the Court reassigned the joined cases to the Fourth Chamber under Article 95 of the Rules of Procedure.

II — Conclusions of the parties

Mrs Basch and Others, the applicants in Case 100/87, claim that the Court should:

1) interpret paragraph 1 of the operative part of the judgments of 11 March 1986 in Cases 293 and 294/84;

2) confirm the applicants' view that that paragraph implies that they should be regarded as admitted to the tests for the competition;

3) declare void and of no effect the decision of the selection board as set out by the administration in Mr Junior's letter of 12 February 1987, according to which the board decided that there were no grounds for reconsidering the decision which it had adopted in regard to each of them individually and which had been communicated to them on 11 July 1986;

4) in any event, order the Commission to pay each applicant the sum of BFR 200000 by way of damages for material and non-material damage;

5) order the Commission to pay the costs;

6) in the alternative, order the Commission to produce all the documents on the file, including the minutes of the selection board, in particular those preceding the dispatch of Mr Junior's letter of 12 February 1987.

Mr D'Elicio, the applicant in Case 146/87, claims that the Court should:

1) declare the present action admissible;

2) hold that it is well founded, and therefore :

3) declare that the Commission has infringed Article 176 of the EEC Treaty by failing to comply properly with the Court's judgment of 11 March 1986;

4) declare that there is no statement of reasons in the decision of 12 February 1987 and therefore declare that it is void and of no effect;

5) declare further that the selection board has failed to justify the differences in assessment between previous competitions and the present one and therefore annul the decision in question;

6) order the Commission to pay the costs.

Mrs Goyens de Heusch, the applicant in Case 153/87, claims that the Court should:

1) annul the decision of the selection board for Competition No COM/B/2/82 refusing to allow the applicant to take part in the tests for that competition, being the fresh decision contained in Mr G. Junior's letter of 12 February 1987;

2) order the defendant to pay the costs pursuant to Article 69 (2) or the second paragraph of Article 69 (3) of the Rules of Procedure and the expenses necessarily incurred for the purpose of the proceedings, in particular the costs relating to the address for service, travel and subsistence expenses and lawyers' fees, pursuant to Article 73 (b) of those rules.

The Commission, the defendant, contends that the Court should:

1) dismiss the applications as unfounded;

2) make an appropriate order as to costs, subject to all reservations.

III — Submissions and arguments of the parties

1. Interpretation of the judgments of 11 March 1986

The applicants in Case 100/87 seek an interpretation of the judgments of 11 March 1986 in Cases 293/84 Sorani and Others v Commission and 294/84 Adams and Others v Commission, cited above, under Article 102 of the Rules of Procedure. They state that, in their view, the wording of paragraph 1 of the operative part of the judgments implies that they should be regarded as having been admitted to the tests for the competition.

The Commission takes the view that there is nothing which requires to be interpreted since the judgments in question are perfectly clear. Furthermore, it considers that the selection board properly complied with the judgments by resuming the competition procedure at the point at which the Court annulled the contested measure in Cases 293 and 294/84: the board corrected the error found by the Court and then adopted a fresh decision.

2. Annulment of the decision communicated to the applicants by letter of 12 February 1987

The arguments put forward by the applicants with regard to annulment of the contested decision may be summarized as follows :

a) The applicants in Cases 100 and 146/87 consider that the statement of the reasons on which the decision is based is insufficient. It does not indicate the basis on which the selection board considered that there were no grounds for reconsidering its decision of 11 July 1986. In particular, even now the applicants are still uncertain which aspect of their individual files constituted the true reason for the refusal to admit them to the tests. The Commission contends that the statement of reasons is sufficient, in view of the fact that the selection board's only obligation was to state the reasons for its fresh decision with regard solely to the candidates' comments on the opinions expressed in their regard by the assistants.

b) Mr D'Elicio and Mrs Goyens de Heusch contend that the Commission infringed Article 176 of the EEC Treaty by failing to comply properly with the judgments in Cases 293 and 294/84. Mr D'Elicio considers that the judgments imply that he should be admitted to the tests for the competition. Mrs Goyens de Heusch maintains that the fresh procedure followed by the selection board is vitiated on the same ground as the first, namely the failure to respect the right to be heard (see infra, section (c), for further details). It is evident from the observations submitted by the Commission and summarized under heading 1, above, that in its view the selection board properly complied with the judgment in question.

c) Some of the arguments put forward by the applicants are based on the fact that the written text of the replies to the questions put to the candidates' superiors was not available to the selection board. In Case 294/84 the Commission itself stated that the opinions of the candidates' superiors and the information on the basis of which the selection board considered that the applicants did not satisfy the requirements for performing duties in Category B were not recorded in the minutes. That information and the fact that the selection board refused to allow the applicant in Case 153/87 to examine any notes drawn up in that regard by the members of the board led the applicants to think that the replies given by the candidates' superiors were reconstructed according to the recollections of one or other member of the board. In those circumstances it is impossible to review the validity of the opinions expressed by the candidates' superiors; replies reconstructed in that manner are no longer worthy of credence. According to the applicants in Case 100/87 the entire procedure is vitiated by a misuse of powers or of procedure or both, as is shown by the fact that none of the candidates who reappeared before the selection board was admitted to the tests. What the board should have done was consult the candidates' superiors a second time. Furthermore, the applicants consider that the board should have consulted the candidates' immediate superiors rather than the assistants of a Director-General, who generally do not know the officials concerned. The Commission observes that the replies given by the assistants were recorded in the minutes of the meetings of the selection board held after judgment had been given in Cases 293 and 294/84. Consequently, the members of the board were in a position to reconstruct the assistants' opinions. It is therefore not impossible to review the validity of those opinions and the interpretation put on them by the board. The Commission adds that the fact that none of the candidates who reappeared before the board was admitted to the tests is in no way surprising; the second meeting evidently did not cause the board to modify its original assessment. Finally, the Commission considers it perfectly logical to consult the assistants because it is they who are entrusted for the most pan with administrative duties the performance of which gives them the opportunity of becoming acquainted with all the officials working in the Directorate-General.

d) According to the applicants in Cases 100 and 153/87 it follows inter alia from the questions originally put to their superiors and subsequently to the applicants themselves that the selection board considered the question whether or not the candidate had performed duties at the level of Category B to be an essential factor throughout the procedure. The board thereby added a further requirement to those laid down for the selection procedure, and one which was not contained in the competition notice. The applicants also state that it would be unlawful to require, as a condition for admission to the tests for a competition, that an official should have performed duties which corresponded neither to his grade nor to his post. The Commission contends that the mobility of officials was an essential criterion in examining the files of the candidates in the present competition; it was quite right for the selection board to take that factor into account. It was certainly not a supplementary criterion added by the board.

e) Finally, Mr D'Elicio contends that 15 years ago his name was included in the list of suitable candidates in Category B competitions on two occasions. In that connection he refers to the Court's case-law according to which ‘a candidate cannot form the subject of a less favourable appraisal than that made of him in a previous competition, unless the statement of the reasons on which the decision is based clearly justifies such a difference of appraisal’ (judgment of 5 April 1979 in Case 112/78 Kobor v Commission [1979] ECR 1573). In this case no one has explained to him the reasons for the difference of appraisal. The Commission considers that the selection board for a competition can hardly be bound by the appraisal of a candidate made by another board 15 years previously.

3. Damages

The applicants in Case 100/87 consider that they have suffered both material and non-material damage. In the first place the procedure followed by the selection board caused inconvenience: it took up a lot of time and effort on the part of the applicants, who were compelled to submit an increasing number of memoranda, letters and replies to questions put by the board. In the second place the entire procedure constituted a significant check on their career and had a negative effect on their professional reputation. Consequently, the applicants seek the payment of BFR 200000 per person by way of cumulative damages for material and non-material damage.

The Commission maintains that the claim for damages is unfounded if the Court dismisses the principal claim for interpretation and annulment.

T. Koopmans

Judge-Rapporteur

1 Language of the case: French.