Court of Justice of the European Communities (including Court of First Instance Decisions)

1 . OFFICIALS - RECRUITMENT - COMPETITION - SELECTION BOARD - PROCEEDINGS - ABSENCE OF A MEMBER - COMPETITION PROCEDURE - VALIDITY - CONDITIONS
( STAFF REGULATIONS OF OFFICIALS , ANNEX III , ART . 3 )
2 . OFFICIALS - RECRUITMENT - COMPETITION BASED ON TESTS - WRITTEN TEST - CHOICE OF SUBJECT - UNFAIR ADVANTAGE OF ONE CANDIDATE - PRINCIPLE OF EQUALITY OF TREATMENT - INFRINGEMENT

1 . ALTHOUGH IN PRINCIPLE A SELECTION BOARD CANNOT VALIDLY PERFORM ITS DUTIES WHEN ONE OF ITS MEMBERS IS ABSENT , THE NEED TO ENSURE THE CONTINUITY OF THE PUBLIC SERVICE MAY HOWEVER JUSTIFY RELAXING THIS PRINCIPLE IF IT PROVES IMPOSSIBLE TO ENSURE OTHERWISE THAT THE SELECTION BOARD FUNCTIONS .

2 . THE FACT THAT ONE CANDIDATE IS PUT AT AN UNFAIR ADVANTAGE BY THE CHOICE OF THE SUBJECT FOR THE WRITTEN TEST IN A COMPETITION IS AN INFRINGEMENT OF THE PRINCIPLE OF THE EQUALITY OF TREATMENT OF THE CANDIDATES SUCH AS TO VITIATE THE SUBSEQUENT PROCEDURE IN THE COMPETITION . THIS IS SO WHERE THE CONCRETE WAY IN WHICH THE SUBJECT IS DEFINED ENABLES A CANDIDATE TO PROFIT FROM THE SPECIAL EXPERIENCE HE HAS ACQUIRED IN THE PERFORMANCE , AS A MEMBER OF THE TEMPORARY STAFF , OF THE DUTIES RELATING TO THE POST PUT UP FOR COMPETITION .

IN CASE 24/78
HELENE MARTIN , RESIDING AT 210 AVENUE MOLIERE , BRUSSELS , AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY MARCEL GREGOIRE AND EDMOND LEBRUN , ADVOCATES AT THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF TONY BIEVER , 83 BOULEVARD GRANDE-DUCHESSE CHARLOTTE ,
APPLICANT ,
V
COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS PRINCIPAL LEGAL ADVISER , RAYMOND BAEYENS , ACTING AS AGENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICES OF ITS LEGAL ADVISER , MARIO CERVINO , JEAN MONNET BUILDING , KIRCHBERG ,
DEFENDANT ,

APPLICATION FOR THE ANNULMENT OF THE DECISION BY WHICH THE SELECTION BOARD FOR INTERNAL COMPETITION COM/680/75 REFUSED TO ADMIT MRS MARTIN TO THE ORAL TESTS IN THAT COMPETITION AND CONSEQUENTLY FOR THE ANNULMENT OF THE SUBSEQUENT PROCEDURE IN THAT COMPETITION AND OF THE APPOINTMENT WHICH WAS MADE AS A RESULT OF IT ,

1THE APPLICATION , WHICH WAS LODGED ON 7 DECEMBER 1977 , IS FOR THE ANNULMENT OF THE DECISION OF THE SELECTION BOARD FOR COMPETITION COM/680/75 COMMUNICATED TO THE APPLICANT ON 1 DECEMBER 1977 IN WHICH THE SELECTION BOARD REFUSED TO ADMIT HER TO THE ORAL TESTS IN THE COMPETITION AND FOR THE ANNULMENT OF THE SUSEQUENT PROCEDURE IN THAT COMPETITION AND OF THE APPOINTMENT MADE AS A RESULT THEREOF .

2NOTICE OF INTERNAL COMPETITION COM/680/75 BASED ON QUALIFICATIONS AND TESTS , WHICH WAS PUBLISHED IN AUGUST 1977 , AIMED TO FILL A POST IN CATEGORY AND CAREER BRACKET GRADE A 5 - A 4 , COMING WITHIN THE RELATIONS WITH THE COUNTRIES OF SOUTHERN EUROPE DIVISION OF THE DIRECTORATE GENERAL FOR EXTERNAL RELATIONS .

3THE NOTICE PROVIDED FOR A WRITTEN TEST INVOLVING ' ' A PAPER ON A SUBJECT SELECTED BY THE SELECTION BOARD RELATING TO THE MEDITERRANEAN COUNTRIES ' ' .

4THE APPLICANT WAS ADMITTED TO THE WRITTEN TEST AS WELL AS A CANDIDATE WHO HAD OCCUPIED THE POST IN QUESTION AS A MEMBER OF THE TEMPORARY STAFF SINCE MAY 1975 .
5THE OTHER CANDIDATE , AFTER BEING ADMITTED TO THE ORAL TESTS , WAS THE ONLY ONE PUT ON THE LIST OF SUITABLE CANDIDATES AND WAS SUBSEQUENTLY APPOINTED TO THE POST PUT UP FOR COMPETITION .

FIRST SUBMISSION
6THE APPLICANT CLAIMS FIRST THAT THE DECISION OF THE SELECTION BOARD IS VITIATED FOR ILLEGALITY BECAUSE IT WAS TAKEN IN THE ABSENCE OF THE MEMBER OF THE SELECTION BOARD APPOINTED BY THE STAFF COMMITTEE UNDER ARTICLE 3 OF ANNEX III TO THE STAFF REGULATIONS OF OFFICIALS .

7IN THIS RESPECT , IT IS NOT IN ISSUE THAT AT THE FIRST MEETING OF THE SELECTION BOARD THE MEMBER OF THE SELECTION BOARD APPOINTED BY THE STAFF COMMITTEE HANDED IN A NOTE FROM THE STAFF COMMITTEE ACCORDING TO WHICH THE COMMITTEE , CONFIRMING HIS APPOINTMENT , ' ' INSTRUCTS HIM TO REFRAIN FROM TAKING ANY PART IN THE WORK OF THAT SELECTION BOARD ' ' .

8IN THIS CONTEXT THE NOTE RECALLS THE VIEWPOINT ADOPTED BY THE JOINT COMMITTEE WITH REGARD TO INDIVIDUAL COMPETITIONS DECLARING THAT IT IS DESIRABLE TO ABOLISH THEM .

9THE MEMBER APPOINTED BY THE STAFF COMMITTEE IN FACT REFRAINED FROM TAKING ANY PART IN THE WORK OF THE SELECTION BOARD SO THAT THE SELECTION BOARD , COMPOSED OF THE OTHER TWO MEMBERS ALONE , CONTINUED WITH ITS WORK AND PERFORMED ITS TASK .

10ALTHOUGH IT IS TRUE THAT IN PRINCIPLE A SELECTION BOARD CANNOT VALIDLY PERFORM ITS DUTIES WHEN ONE OF ITS MEMBERS IS ABSENT , THE NEED TO ENSURE THE CONTINUITY OF THE PUBLIC SERVICE MAY HOWEVER JUSTIFY RELAXING THIS PRINCIPLE IF IT PROVES IMPOSSIBLE TO ENSURE OTHERWISE THAT THE SELECTION BOARD FUNCTIONS .

11IN THE PRESENT CASE THE ABSENCE OF ONE OF THE MEMBERS OF THE SELECTION BOARD WAS THE RESULT OF A GENERAL VIEWPOINT ADOPTED BY THE STAFF COMMITTEE AS A PROTEST AGAINST A PRACTICE ADOPTED BY THE COMMISSION IN RELATION TO INDIVIDUAL COMPETITIONS .

12THE COMMISSION WAS THUS PREVENTED FROM SETTING UP AND MAKING FUNCTION A SELECTION BOARD THE COMPOSITION OF WHICH WAS LEGAL IN RELATION TO ARTICLE 3 OF ANNEX III TO THE STAFF REGULATIONS , ACCORDING TO WHICH ONE OF THE MEMBERS MUST BE APPOINTED BY THE STAFF COMMITTEE .

13SINCE VACANT POSTS CANNOT BE LEFT UNOCCUPIED FOR AN INDETERMINATE PERIOD OF TIME THE COMMISSION WAS THEREFORE JUSTIFIED TO PROCEED ON THE BASIS OF THE WORK OF THE SELECTION BOARD AS PERFORMED WITHOUT THE PARTICIPATION OF THE ABSENT MEMBER .

14THIS SUBMISSION CANNOT THEREFORE BE ACCEPTED .

SECOND SUBMISSION
15THE APPLICANT CLAIMS IN THE ALTERNATIVE THAT THE PRINCIPLE OF THE EQUALITY OF TREATMENT OF THE CANDIDATES IN A COMPETITION HAS BEEN VIOLATED BECAUSE THE SUBJECT OF THE WRITTEN TEST WAS CHOSEN FROM THE SUBJECTS WHICH ONE OF THE CANDIDATES HAD DEALT WITH IN THE PERFORMANCE OF HIS DUTIES AS A MEMBER OF THE TEMPORARY STAFF OCCUPYING THE POST PUT UP FOR COMPETITION .

16THE SELECTION BOARD CHOSE AS THE SUBJECT FOR THE WRITTEN TEST ' ' COMMUNITY RELATIONS WITH THE MEDITERRANEAN COUNTRIES : ASSOCIATION OR NON-PREFERENTIAL SYSTEM ' ' .

17THE APPLICANT OCCUPIED A POST IN GRADE A 6 IN THE DIRECTORATE GENERAL FOR OVERSEAS DEVELOPMENT , DIRECTORATE D ( OPERATIONS ), DIVISION 4 ( TRAINING ) WITHIN WHICH SHE HAD TAKEN PART IN PARTICULAR IN THE DRAWING-UP OF CERTAIN MULTI-ANNUAL TRAINING PROGRAMMES AND CERTAIN SPECIFIC TRAINING SCHEMES AND HAD CARRIED OUT FOR THIS PURPOSE SEVERAL FACT-FINDING MISSIONS FOR TRAINING SCHEMES IN THREE AFRICAN , CARIBBEAN AND PACIFIC COUNTRIES .

18THE OTHER CANDIDATE ADMITTED TO THE WRITTEN TEST HAD BEEN RESPONSIBLE , IN THE PERFORMANCE OF HIS DUTIES AS A MEMBER OF THE TEMPORARY STAFF IN THE POST TO BE FILLED , FOR MATTERS CONNECTED WITH TURKEY AND YUGOSLAVIA .

19THESE TWO COUNTRIES MAY BE CONSIDERED AS BEING TYPICAL COUNTRIES BENEFITING ONE FROM A SYSTEM OF ASSOCIATION AND THE OTHER FROM A NON-PREFERENTIAL SYSTEM .

20IT IS THEREFORE CLEAR THAT THE OTHER CANDIDATE WAS PUT AT AN UNFAIR ADVANTAGE BY THE CHOICE OF THE SUBJECT FOR THE WRITTEN TEST SINCE THE CONCRETE WAY IN WHICH THAT SUBJECT WAS DEFINED ENABLED HIM TO PROFIT FROM THE SPECIAL EXPERIENCE ACQUIRED IN THE PERFORMANCE OF HIS DUTIES IN THE POST PUT UP FOR COMPETITION .

21THIS INFRINGEMENT OF THE PRINCIPLE OF EQUALITY OF TREATMENT OF THE CANDIDATES IN A COMPETITION IS SUCH AS TO VITIATE BOTH THE DECISION IN QUESTION ADOPTED BY THE SELECTION BOARD FOR THE COMPETITION AND THE SUBSEQUENT PROCEDURE .

22IN THESE CIRCUMSTANCES IT IS NOT NECESSARY TO EXAMINE THE SUBMISSION PUT FORWARD BY THE APPLICANT AS A FURTHER ALTERNATIVE CONCERNING THE INFRINGEMENT OF THE STAFF REGULATIONS OF OFFICIALS , IN PARTICULAR ARTICLE 7 ( 1 ) THEREOF ( ' ' THE INTERESTS OF THE SERVICE ' ' ) AND MISUSE OF POWERS .

23IT IS THEREFORE NECESSARY TO ANNUL BOTH THE DECISION BY WHICH THE SELECTION BOARD FOR COMPETITION COM/680/75 REFUSED TO ADMIT THE APPLICANT TO THE ORAL TESTS AND THE SUBSEQUENT PROCEDURE IN THE COMPETITION AND THE APPOINTMENT MADE AS A RESULT THEREOF .

COSTS
24UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .

25AS THE DEFENDANT HAS FAILED IN ITS SUBMISSIONS , IT IS NECESSARY TO ORDER IT TO PAY THE COSTS .

ON THOSE GROUNDS ,
THE COURT ( SECOND CHAMBER )
HEREBY :
1 . ANNULS BOTH THE DECISION OF THE SELECTION BOARD FOR COMPETITION COM/680/75 BY WHICH THE SELECTION BOARD REFUSED TO ADMIT THE APPLICANT TO THE ORAL TESTS AND THE SUBSEQUENT PROCEDURE IN THE COMPETITION AND THE APPOINTMENT MADE AS A RESULT THEREOF ;

2 . ORDERS THE COMMISSION TO PAY ALL THE COSTS .