Avis juridique important

Order of the President of the Court of 15 September 1995. - European Parliament v Angelo Innamorati. - Appeal - Officials - Competition - Rejection of candidature - Statement of reasons for the decision of the selection board in a general competition - Suspension of the effects of the judgement of the Court of First Instance. - Case C-254/95 P-R. European Court reports 1995 Page I-02707

Summary Parties Grounds Operative part

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Officials ° Actions ° Judgment annulling a decision ° Effects ° Annulment of the decision of the selection board in an open competition awarding an eliminatory mark to a candidate ° Duties of the selection board and the appointing authority

(Staff Regulations, Art. 91)

Where the Court of First Instance has annulled the decision of a selection board in an open competition awarding the applicant a lower mark for one of the tests than the minimum required and thereby excluded him from the other tests, it is for the selection board and the appointing authority to seek a just solution in the case of the person concerned, which will adequately protect his rights without the need to call in question the entire results of the competition or to annul the appointments which have been made as a result thereof. It is not for the court hearing the application for interim measures to specify detailed methods of giving effect to the judgment of the Court of First Instance annulling the decision.

In Case C-254/95 P-R,

European Parliament, represented by Manfred Peter, Head of Division, and José Luis Rufas Quintana, Principal Administrator in its Legal Service, acting as Agents, with an address for service in Luxembourg at the Secretariat of the European Parliament, Kirchberg,

appellant,

APPLICATION for suspension of the effects of the judgment of the Court of First Instance of the European Communities (Third Chamber) of 30 May 1995 in Case T-289/94 Innamorati v Parliament ([1995] ECR-SC I-A 123),

the other party to the proceedings being:

Angelo Innamorati, a former member of the auxiliary staff of the Commission of the European Communities, a candidate in Open Competition PE/59/A, residing in Rome, represented by Jean-Noël Louis, of the Brussels Bar, with an address for service in Luxembourg at the offices of Fiduciaire Myson SARL, 1 Rue Glesener,

THE PRESIDENT OF THE COURT

makes the following

Order

1 By application lodged at the Registry of the Court of First Instance on 24 July 1995, the European Parliament brought an appeal under Article 49 of the Statute of the Court of Justice of the EC and the corresponding provisions of the ECSC and EAEC Statutes against the judgment of the Court of First Instance in Case T-289/94 Innamorati v Parliament [1995] ECR-SC I-A 123 in which the Court of First Instance annulled the decision by which the Selection Board in Open Competition PE/59/A awarded Mr Innamorati a mark lower than the minimum required and refused to admit him to the other tests in the competition.

2 By separate document, lodged at the Registry of the Court of Justice on the same day, the Parliament also made an application, under Article 53 of the EC Statute and the corresponding provisions of the ECSC and EAEC Statutes and Articles 83 and 118 of the Rules of Procedure, for interim measures seeking primarily to have the effects of the contested judgment suspended.

3 Mr Innamorati submitted written observations on the application for interim measures on 31 August 1995. Since the documents submitted by the parties supply all the information which the Court needs in order to give a ruling on the application for interim measures, it has not been deemed necessary to hear the oral arguments of the parties.

4 It is necessary, first of all, to recall the history of the dispute, as set out in the judgment appealed against:

"(1) The applicant, a member of the auxiliary staff (Category A, Group II, Step 2) of the Commission, took part in an open competition (PE/59/A) held for the purpose of drawing up a reserve list of Italian-language administrators for the Secretariat of the European Parliament.

(2) Part III.B.1 of the notice of competition, published on 23 October 1992 (OJ 1992 C 275 A, p. 8), stated that the candidates were to take six eliminatory written tests. It gave the following details of Test 1(c):

' (c) Summarizing a 2-3 page document, reducing it to a tenth of its length with a maximum tolerance of 10%, in order to assess the candidate' s analytical and summarizing abilities, objectivity and accuracy.

Maximum time allowed for the test: 45 minutes

Marks: from 0 to 20

Candidates obtaining a mark of less than 10 will be eliminated.'

(3) On 20 April 1994 the chairman of the Selection Board informed the applicant that he had obtained a mark for the summarizing test 1(c) which was lower than the minimum required and that, consequently, the Selection Board could not mark his other written tests.

(4) By letter of 25 May 1994 the applicant asked that his test be reconsidered and that he be told the reasons for the marks awarded him for test 1(c) by the Selection Board.

(5) In a letter of 13 June 1994 addressed to the chairman of the Selection Board, the applicant' s legal adviser claimed that the examiners for Test 1(c) had not eliminated candidates who failed to observe the maximum number of words allowed. He also asked the chairman of the Selection Board to explain to him, first, the criteria adopted by the Board in considering whether candidates satisfied the conditions set out in the notice of competition and in evaluating their tests, including the instructions given to the examiners with regard to compliance with the particular conditions of Test 1(c) and, secondly, the measures taken to ensure that candidates remained anonymous.

(6) By letter of 14 June 1994 the chairman of the Selection Board gave the applicant confirmation of the Board' s decision in the following terms:

' On the basis of the parameters adopted and the strict criteria decided on by the selection board before marking ° taking into account a number of factors set out moreover in the notice of competition ° I regret to confirm that your mark in Test 1(c) is lower than that required in order to go through to the next stage. As a matter of fact, you obtained 8.33 marks (minimum required 10 marks).'

(7) In a letter of 4 July 1994 to the chairman of the Selection Board, the applicant' s legal adviser repeated his request of 13 June 1994 and noted that the letter of 14 June 1994 from the chairman of the Selection Board contained no statement of the reasons for the Board' s decision. He also stated that he intended to bring an action before the Court of First Instance if he was not given the information which he had requested.

(8) In a letter of even date, the Head of the Competitions Unit of the Parliament answered the letter of 13 June 1994 from the applicant' s legal adviser, telling him that as soon as the Board' s report had been signed, the Parliament would be 'in a position to give (him) the information sought, within the limits which the Court of Justice ... has set on the duty to state the reasons for the decisions of Selection Boards having regard to the secrecy of the proceedings' .

(9) By letter of 19 July 1994, the Head of the Competitions Unit of the Parliament gave the applicant' s legal adviser the following information:

' ° All marking of the written tests in the competition concerned was done anonymously. Even though the candidates had to put their names on the answer sheets, the subsequent allocation of a secret code number and the blacking out of the writer' s personal details ensured that the marking was anonymous.

° Tests 1(c)(1) (objective tests) and 1(c)(2) (cultural tests) were marked by optical scanner under the supervision of the Selection Board. All the other tests were communicated to the seven members of the Board and marked by at least three of them.

° Mr Innamorati has asked for his tests to be reconsidered. The Selection Board undertook that reconsideration, checking that no error had crept into the marking. It thus confirmed its original decision. The marking criteria used by the members of the Selection Board had been defined prior to marking and were complied with in accordance with the terms of the notice of competition' ."

5 By application lodged at the Registry of the Court of First Instance on 15 September 1994, Mr Innamorati thereupon brought an action for annulment of the Selection Board decision awarding him a mark for the summarizing test lower than the minimum required and refusing to admit him to the other tests in the competition.

6 In its judgment, the Court of First Instance observed (paragraph 17) that the applicant put forward two pleas in law. The first alleged breach of the principle of equal treatment, failure to comply with the notice of competition and failure to state reasons for the challenged decision. The second plea alleged an error of assessment, non-impartiality and breach of the principles governing the workings of the selection board. However, since the applicant withdrew the second plea at the hearing, the Court considered that there was no need to give a decision on it (paragraph 18).

7 With regard to breach of the principle of equality and failure to comply with the notice of competition, the Court of First Instance found that the applicant had adduced no factual evidence in support of his assertion that the Selection Board had not eliminated other candidates from the competition at issue who had not kept within the limits set on the length of the summary in Test 1(c). Since there was nothing in the file to justify such a finding, the Court dismissed the first part of the first plea (paragraph 23).

8 With regard to the second part of the first plea alleging failure to state reasons for the decision of the selection board, the Court of First Instance recalled (paragraph 26) that it is settled case-law that the purpose of the obligation to state the reasons for any decision adversely affecting an official or other servant is to provide the person concerned with sufficient details to allow him to ascertain whether or not the decision is well founded and to make it possible for the decision to be the subject of judicial review. The Court also pointed out (paragraph 27) that where there is a large number of candidates in a competition, it has consistently been held that the selection board may initially merely notify candidates of the criteria and of the result of the selection process and to provide additional individual explanations only at a later stage to those candidates who expressly ask for an explanation.

9 In the present case, the Court of First Instance found that such explanations were expressly requested on several occasions by Mr Innamorati, in his letter of 25 May 1994, or by his legal adviser in letters of 13 June and 4 July 1994, and that the defendant' s replies did not state any reasons for the disputed decision of the selection board and did not specify the previously defined marking criteria allegedly complied with by the Board (paragraph 28 and 29).

10 The Court of First Instance concluded (paragraph 30) that before the action was brought, the Parliament had provided no reasons which would have allowed the applicant to determine whether the rejection of his candidature was well founded or enabled the Court to exercise its power of review.

11 The the Court of First Instance also held that the total absence of a statement of reasons could not be remedied by explanations provided by the Parliament after the action was started, in its defence and at the hearing, since at that stage such explanations no longer fulfilled their function (paragraph 31).

12 Furthermore, the the Court of First Instance stated (paragraph 32) that "the mere assertion in the defence that the applicant' s failure was due to the 'poor quality of the summary' could not be considered to be a sufficient statement of reasons. That assertion did not give even the briefest of explanations either of the reasons which led the Selection Board to that conclusion or of the relationship between the criteria adopted by the Board, which are not specified, and the marking at issue. Similarly, the unsubstantiated reference made by the defendant' s agent at the oral procedure to certain criteria adopted by the Board in marking Test 1(c) was too vague to be able to remedy the absence of reasons for the challenged decision".

13 Consequently, the Court of First Instance annulled the disputed decision because of the absence of a statement of reasons.

14 As regards the present application for suspension, it should be noted that under Article 53 of the EC Statute and the corresponding provisions of the ECSC and EAEC Statutes an appeal against a judgment of the Court of First Instance does not as a rule have suspensory effect. Pursuant to Articles 185 and 186 of the EC Treaty and the corresponding provisions of the ECSC and EAEC Treaties, however, the Court of Justice may, if it considers that circumstances so require, suspend the effects of the judgment appealed against.

15 By virtue of Article 83(2) of the Rules of Procedure, an order for the suspension of operation or enforcement, pursuant to the abovementioned provisions, is subject to the condition that there be circumstances giving rise to urgency and pleas of fact and law establishing a prima facie case for granting suspension.

16 It is settled case-law that urgency must be assessed in relation to the necessity for an order granting interim relief in order to prevent serious and irreparable damage to the party requesting the interim measures.

17 With respect to the condition concerning urgency, the Parliament claims that giving effect to the judgment would cause considerable damage to its interests and those of third parties, without substantial gain to Mr Innamorati. In support of that argument, it maintains that if effect were given to the judgment the applicant would be admitted to other written tests from which he was excluded by the annulled decision of the selection board and the institution would be obliged to organize another open competition procedure in order to ensure that the applicant and the other candidates received equal treatment, since the reserve list already drawn up would no longer be valid. The Parliament adds that there is no certainty that Mr Innamorati would pass and eventually be placed on a reserve list. In those circumstances, it claims that the Court of First Instance failed to weigh Mr Innamorati' s personal interests against the interests of the candidates who were successful in the competition and those of the institution.

18 It is not for the court hearing the application for interim measures to specify detailed methods of giving effect to the judgment of the Court of First Instance. It is sufficient to note that, in accordance with the settled case-law of the Court of Justice, it is for the selection board and the appointing authority to seek a just solution in Mr Innamorati' s case, which will adequately protect his rights without the need to call in question the entire results of the competition or to annul the appointments which have been made as a result thereof (see, in particular, Case C-242/90 P Commission v Albani [1993] ECR I-3839, paragraphs 13 and 14).

19 It follows from the foregoing that the condition of urgency required by Article 83(2) of the Rules of Procedure has not been satisfied. It would, therefore, be otiose to consider whether the pleas of fact and law put forward by the Parliament can establish a prima facie case for granting the suspension applied for.

20 In the alternative, the Parliament seeks leave to pay the amount of costs claimed at first instance into a blocked interest-bearing account until the Court of Justice has given its judgment. In that connection, it points to hypothetical difficulties in recovering costs as a result of Mr Innamorati' s move to Rome.

21 That application must be dismissed. It contains no line of argument capable of establishing that there is, in the light of the circumstances of this case, a risk of serious and irreparable damage to the Parliament if the interim relief applied for is not granted, even if the judgment under appeal were to be quashed in the main proceedings.

22 It follows that the application for interim relief must be dismissed.

On those grounds,

THE PRESIDENT OF THE COURT

hereby orders:

1. The application for interim relief is dismissed.

2. Costs are reserved.

Luxembourg, 15 September 1995.