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Judgment of the Court (Third Chamber) of 26 November 1981. - Bernard Michel v European Parliament. - Official - Non-admission to the tests for a competition. - Case 195/80. European Court reports 1981 Page 02861

Summary Parties Subject of the case Grounds Decision on costs Operative part

1 . OFFICIALS - APPLICATION TO THE COURT - PRIOR COMPLAINT THROUGH OFFICIAL CHANNELS - TIME-LIMITS - LATE RECEIPT OF AN UNREGISTERED LETTER BY THE OFFICIAL TO WHOM IT IS ADDRESSED - ONUS OF PROOF OF THE DELAY

( STAFF REGULATIONS OF OFFICIALS , ART . 90 ( 2 ))

2 . OFFICIALS - DECISION ADVERSELY AFFECTING AN OFFICIAL - DUTY TO STATE GROUNDS ON WHICH BASED - REMEDYING FAILURE TO STATE GROUNDS DURING PROCEDURE BEFORE THE COURT - NOT PERMISSIBLE

( STAFF REGULATIONS OF OFFICIALS , ART . 25 )

3 . OFFICIALS - RECRUITMENT - COMPETITION - SELECTION BOARD - REFUSAL TO ADMIT TO COMPETITION - DUTY TO STATE GROUNDS ON WHICH BASED - SCOPE - COMPETITION WITH MANY ENTRANTS

( STAFF REGULATIONS OF OFFICIALS , ANNEX III , ART . 5 )

1 . AN OFFICIAL TO WHOM AN UNREGISTERED LETTER HAS BEEN SENT BY THE ADMINISTRATION IS NOT REQUIRED TO SHOW THE REASONS FOR ANY DELAY IN ITS DELIVERY .

2 . THE REQUIREMENT THAT A DECISION ADVERSELY AFFECTING A PERSON SHOULD STATE THE REASONS ON WHICH IT IS BASED IS INTENDED TO ENABLE THE COURT TO REVIEW THE LEGALITY OF THE DECISION AND TO PROVIDE THE PERSON CONCERNED WITH DETAILS SUFFICIENT TO ALLOW HIM TO ASCERTAIN WHETHER THE DECISION IS WELL FOUNDED OR WHETHER IT IS VITIATED BY AN ERROR WHICH WILL ALLOW ITS LEGALITY TO BE CONTESTED . IT FOLLOWS THAT THE STATEMENT OF REASONS MUST IN PRINCIPLE BE NOTIFIED TO THE PERSON CONCERNED AT THE SAME TIME AS THE DECISION ADVERSELY AFFECTING HIM AND THAT A FAILURE TO STATE THE REASONS CANNOT BE REMEDIED BY THE FACT THAT THE PERSON CONCERNED LEARNS THE REASONS FOR THE DECISION DURING THE PROCEEDINGS BEFORE THE COURT .

3 . THE SECRECY OF THE PROCEEDINGS OF THE SELECTION BOARD CANNOT ABSOLVE A SELECTION BOARD FOR A COMPETITION FROM ITS OBLIGATION TO INFORM A CANDIDATE WHO IS REJECTED AT THE STAGE OF THE SELECTION ON THE BASIS OF QUALIFICATIONS OF THE REASONS FOR THAT DECISION , AT LEAST IN SUMMARIZED FORM . THAT REQUIREMENT TO GIVE A STATEMENT OF REASONS MUST HOWEVER BE EVALUATED HAVING REGARD TO THE DIFFERENT LEVELS AND TYPES OF COMPETITION AND , MORE PARTICULARLY , TO THE NUMBER OF CANDIDATES COMPETING IN EACH OF THEM . IN THE CASE OF COMPETITIONS WHERE THE CANDIDATES ARE MORE NUMEROUS , THE STATEMENT OF THE REASONS FOR THE REJECTION OF APPLICATIONS MUST NOT BE SO VOLUMINOUS AS TO PLACE AN INTOLERABLE BURDEN ON THE PROCEEDINGS OF THE SELECTION BOARDS AND THE WORK OF THE PERSONNEL ADMINISTRATION .

IN ORDER TO MAKE ALLOWANCE FOR THE PRACTICAL DIFFICULTIES CONFRONTING A SELECTION BOARD FOR A COMPETITION FOR WHICH THERE IS A VERY LARGE NUMBER OF APPLICATIONS , IT MAY BE ACCEPTED THAT THE SELECTION BOARD MAY INITIALLY SEND TO CANDIDATES MERELY INFORMATION ON THE CRITERIA FOR SELECTION AND THE RESULT THEREOF AND NOT GIVE INDIVIDUAL EXPLANATIONS UNTIL LATER AND TO THOSE CANDIDATES WHO EXPRESSLY REQUEST THEM , ON CONDITION , HOWEVER , THAT THOSE INDIVIDUAL DETAILS ARE SENT BY THE SELECTION BOARD BEFORE THE EXPIRY OF THE PERIOD LAID DOWN BY ARTICLES 90 AND 91 OF THE STAFF REGULATIONS , SO THAT THE RECIPIENTS MAY , IF THEY THINK FIT , AVAIL THEMSELVES OF THEIR RIGHTS .

IN CASE 195/80

BERNARD MICHEL , AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , RESIDING AT 95/45 BOULEVARD METTEWIS , BRUSSELS , REPRESENTED BY VICTOR BIEL OF THE LUXEMBOURG BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT HIS CHAMBERS , 18A RUE DES GLACIS ,

APPLICANT ,

V

EUROPEAN PARLIAMENT , REPRESENTED BY F . PASETTI-BOMBARDELLA , ACTING AS AGENT , KIRCHBERG , LUXEMBOURG , ASSISTED BY A . BONN OF THE LUXEMBOURG BAR ,

DEFENDANT ,

APPLICATION FOR THE ANNULMENT OF A DECISION NOT TO ADMIT THE APPLICANT TO THE TESTS FOR AN OPEN COMPETITION ,

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 6 OCTOBER 1980 , BERNARD MICHEL BROUGHT AN ACTION AGAINST THE EUROPEAN PARLIAMENT , ON THE ONE HAND , FOR THE ANNULMENT OF THE DECISION OF THE SELECTION BOARD FOR COMPETITION NO PE/21/A REFUSING TO ADMIT HIM TO THE TESTS FOR THE COMPETITION AND FOR THE COMPLETE ANNULMENT OF THE COMPETITION AND , ON THE OTHER HAND , FOR AN ORDER THAT THE PARLIAMENT SHOULD PAY DAMAGES FOR THE NON-MATERIAL AND MATERIAL INJURY SUSTAINED AS A RESULT OF HIS NON-ADMISSION TO THE TESTS FOR THE COMPETITION .

2 THE COMPETITION IN QUESTION WAS AN OPEN COMPETITION BASED ON QUALIFICATIONS AND TESTS ORGANIZED FOR THE PURPOSE OF DRAWING UP A RESERVE LIST FOR THE RECRUITMENT OF FRENCH-LANGUAGE AND DUTCH-LANGUAGE ADMINISTRATORS IN GRADES A 7 AND A 6 . THE NOTICE OF COMPETITION , WHICH WAS PUBLISHED IN THE OFFICIAL JOURNAL OF THE EUROPEAN COMMUNITIES OF 6 JUNE 1979 , REQUIRED A UNIVERSITY DEGREE OR EQUIVALENT EXPERIENCE AND STATED THAT ONLY THOSE CANDIDATES WOULD BE ADMITTED TO THE TESTS WHO OBTAINED THE NECESSARY NUMBER OF MARKS WHEN THE SELECTION BOARD , AFTER DECIDING UPON THE CRITERIA FOR SELECTION , PROCEEDED TO ASSESS THEIR QUALIFICATIONS .

3 THE APPLICANT SUBMITTED AN APPLICATION FOR THE COMPETITION , FOR WHICH A TOTAL OF 2 140 CANDIDATES ENTERED . IT WAS CLEAR FROM HIS APPLICATION THAT SINCE 1975 HE HAD BEEN AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES IN CATEGORY B AFTER WORKING FOR NINE YEARS IN THE PRIVATE SECTOR , THAT HE HELD A DEGREE IN COMMERCIAL AND CONSULAR SCIENCES AND WAS AN AGREGE DE L ' ENSEIGNEMENT SUPERIEUR POUR LES SCIENCES COMMERCIALES , QUALIFICATIONS WHICH HE HAD OBTAINED IN 1977 AT THE INSTITUT D ' ENSEIGNEMENT SUPERIEUR LUCIEN COOREMANS , IN BRUSSELS , AND THAT FROM 1978 TO 1979 HE HAD ATTENDED COURSES AT THE INSTITUT D ' ETUDES EUROPEENNES IN BRUSSELS .

5 BY A REGISTERED LETTER OF 2 JUNE 1980 , WHICH WAS RECORDED BY THE PARLIAMENT ' S MAIL DEPARTMENT ON 4 JUNE 1980 , THE APPLICANT LODGED A COMPLAINT PURSUANT TO ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS AGAINST THE REFUSAL TO ADMIT HIM TO THE TESTS FOR THE COMPETITION IN QUESTION . SINCE HE RECEIVED NO REPLY TO THAT COMPLAINT , HE BROUGHT THIS ACTION .

ADMISSIBILITY

6 THE PARLIAMENT FIRST RAISED AN OBJECTION OF INADMISSIBILITY , CONTENDING THAT THE APPLICANT HAD FAILED TO COMPLY WITH THE TIME-LIMITS LAID DOWN BY ARTICLES 90 AND 91 OF THE STAFF REGULATIONS .

7 THE APPLICATION IN THIS CASE CONCERNS THE DECISION OF A SELECTION BOARD AND IT WAS THEREFORE UNNECESSARY FOR THE PURPOSES OF ADMISSIBILITY THAT IT SHOULD HAVE BEEN PRECEDED BY THE SUBMISSION OF A COMPLAINT . HOWEVER , SINCE THE APPLICANT AVAILED HIMSELF OF THE RIGHT CONFERRED BY ARTICLE 90 OF THE STAFF REGULATIONS TO BRING THE MATTER FIRST TO THE ATTENTION OF THE APPOINTING AUTHORITY , HIS APPLICATION IS ADMISSIBLE UNDER ARTICLE 91 ( 2 ) AND ( 3 ) OF THE STAFF REGULATIONS ON CONDITION THAT THE COMPLAINT ADDRESSED TO THE APPOINTING AUTHORITY WAS LODGED WITHIN THE PERIOD LAID DOWN BY ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS . THAT THREE-MONTH PERIOD STARTS TO RUN ON THE DATE OF NOTIFICATION OF THE DECISION TO THE PERSON CONCERNED , BUT IN ANY CASE NO LATER THAN THE DATE ON WHICH THE LATTER RECEIVED SUCH NOTIFICATION , IF THE MEASURE AFFECTS A SPECIFIED PERSON .

9 THE PARLIAMENT SUBMITS THAT THE PERIOD FOR LODGING A COMPLAINT BEGAN TO RUN AT THE LATEST ON 25 FEBRUARY 1980 BECAUSE IT MAY BE ASSUMED THAT THE LETTER OF 21 FEBRUARY 1980 FROM THE CHAIRMAN OF THE SELECTION BOARD , WHICH HAD BEEN POSTED IN LUXEMBOURG ON THE SAME DAY , WAS DELIVERED TO THE APPLICANT ' S ADDRESS IN BRUSSELS NO LATER THAN ON THE FOLLOWING MONDAY , THAT IS TO SAY ON 25 FEBRUARY 1980 , AS THE APPLICANT HAS PUT FORWARD NO REASON FOR THE ALLEGED LATE RECEIPT OF THE LETTER .

10 THE APPLICANT MAINTAINS , HOWEVER , THAT HE DID NOT RECEIVE THE LETTER OF 21 FEBRUARY 1980 UNTIL 3 MARCH 1980 AND THAT THEREFORE THE PERIOD FOR LODGING A COMPLAINT BEGAN TO RUN ON THAT DATE .

12 CONSEQUENTLY , IT IS EVIDENT THAT THE PERIOD LAID DOWN BY ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS BEGAN TO RUN ON 3 MARCH 1980 AND THAT THE COMPLAINT HAD TO BE LODGED NO LATER THAN 3 JUNE 1980 .

14 IT FOLLOWS THAT THE OBJECTION BASED ON A FAILURE TO ADHERE TO THE PERIODS LAID DOWN BY ARTICLES 90 AND 91 OF THE STAFF REGULATIONS IS UNFOUNDED .

15 THE PARLIAMENT MAINTAINS FURTHER , IN ORDER TO CONTEST THE ADMISSIBILITY OF THE APPLICATION , THAT THE APPLICANT HAS NO INTEREST IN BRINGING THE ACTION BECAUSE THE TESTS FOR THE COMPETITION HAVE ALREADY BEEN HELD .

16 HOWEVER , IF THE SELECTION BOARD ' S DECISION REFUSING TO ADMIT THE APPLICANT TO THE TESTS IS ANNULLED , THE PARLIAMENT WILL BE REQUIRED UNDER ARTICLE 176 OF THE EEC TREATY TO TAKE THE NECESSARY MEASURES TO COMPLY WITH THIS JUDGMENT . CONSEQUENTLY , THE APPLICANT ' S INTEREST IN BRINGING THE ACTION CANNOT BE CONTESTED .

17 IT FOLLOWS FROM ALL THE ABOVE CONSIDERATIONS THAT THE APPLICATION IS ADMISSIBLE .

SUBSTANCE

18 THE APPLICANT CLAIMS FIRST THAT THE SELECTION BOARD ' S DECISION NOT TO ADMIT HIM TO THE TESTS FOR THE COMPETITION IS NULL AND VOID BECAUSE IT INFRINGES AN ESSENTIAL PROCEDURAL REQUIREMENT INASMUCH AS IT FAILS TO SET OUT ADEQUATELY THE REASONS ON WHICH IT IS BASED .

19 IN THAT REGARD , IT SHOULD BE MENTIONED THAT THE LETTER OF 21 FEBRUARY 1980 INFORMED THE APPLICANT THAT CANDIDATES HAD BEEN SELECTED FOR ADMISSION TO THE TESTS BY THE AWARD OF MARKS FOR THEIR QUALIFICATIONS ON THE BASIS OF THE SUPPORTING DOCUMENTS SUPPLIED , THAT IN THE AWARD OF THOSE MARKS ACCOUNT HAD BEEN TAKEN OF UNIVERSITY QUALIFICATIONS OBTAINED , OF THEIR NATURE AND LEVEL , OF PERIODS OF POST-GRADUATE TRAINING AND OF APPROPRIATE PRACTICAL EXPERIENCE ACQUIRED , AND THAT AFTER THE MARKS HAD BEEN AWARDED THE APPLICANT HAD NOT OBTAINED THE REQUIRED MINIMUM OF 24 MARKS . IT WAS STATED IN THAT LETTER THAT THE SELECTION BOARD WOULD REPLY TO ANY REQUEST FOR FURTHER EXPLANATION OF THAT SELECTION . THE APPLICANT SENT SUCH A REQUEST TO THE SELECTION BOARD AND THE CHAIRMAN OF THE SELECTION BOARD INFORMED HIM BY A LETTER DATED 9 JUNE 1980 THAT HE HAD NOT BEEN ADMITTED TO THE TESTS BECAUSE OF THE INADEQUACY OF THE PRACTICAL EXPERIENCE TO WHICH HE HAD REFERRED IN HIS APPLICATION AND THAT SINCE THE CHAIRMAN WAS BOUND TO RESPECT THE CONFIDENTIALITY OF THE SELECTION BOARD ' S DELIBERATIONS , HE WAS UNABLE TO GIVE HIM ANY FURTHER INFORMATION .

29 IT MUST THEREFORE BE CONCLUDED THAT IN THIS CASE THE SELECTION BOARD ' S REFUSAL DID NOT ADEQUATELY STATE THE REASONS ON WHICH IT WAS BASED .

30 IN HIS REPLY , THE APPLICANT ALSO CLAIMED THAT THE PARLIAMENT ENCOURAGED A LARGE NUMBER OF APPLICATIONS ON THE BASIS OF MISLEADING AND FALLACIOUS PROMISES WHICH COULD NOT BE FULFILLED AND THAT THAT JUSTIFIED THE ANNULMENT OF THE ENTIRE COMPETITION .

31 HOWEVER , THE APPLICANT HAS PUT FORWARD NO SERIOUS CONSIDERATION WHICH WOULD SUPPORT SUCH AN ALLEGATION . IT IS THEREFORE UNNECESSARY TO DECIDE WHETHER THE APPLICANT IS ENTITLED TO PUT FORWARD IN HIS REPLY FRESH CONCLUSIONS OF THAT NATURE SUPPORTED BY A FURTHER SUBMISSION .

32 THE APPLICANT ALSO CLAIMED THAT THE PARLIAMENT SHOULD BE ORDERED TO PAY DAMAGES AS COMPENSATION FOR THE INJURY SUSTAINED AS A RESULT OF THE REFUSAL TO ADMIT HIM TO THE TESTS FOR THE COMPETITION .

33 HOWEVER , ON THE BASIS OF THE DOCUMENTS AT PRESENT BEFORE THE COURT IT CANNOT BE STATED POSITIVELY EITHER THAT THE APPLICANT SHOULD HAVE BEEN ADMITTED TO THE TESTS OR THAT HE WAS CERTAIN SUBSEQUENTLY TO BE PLACED ON THE LIST OF SUITABLE CANDIDATES AND TO BE APPOINTED TO A VACANT POST . THE APPLICANT HAS THEREFORE ADDUCED NO EVIDENCE OF SUCH A NATURE AS TO PROVE THAT HE HAS ACTUALLY SUSTAINED MATERIAL OR NON-MATERIAL DAMAGE .

34 IT FOLLOWS FROM THE FOREGOING THAT THE CONTESTED DECISION OF THE SELECTION BOARD NOT TO ADMIT THE APPLICANT TO THE TESTS MUST BE ANNULLED AND THAT THE REMAINDER OF THE APPLICATION MUST BE DISMISSED .

35 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . SINCE THE PARLIAMENT HAS FAILED IN THE MAJOR PART OF ITS SUBMISSIONS , IT MUST BE ORDERED TO PAY THE COSTS .

ON THOSE GROUNDS ,

THE COURT ( THIRD CHAMBER )

HEREBY :

1 . ANNULS THE DECISION WHEREBY THE SELECTION BOARD FOR OPEN COMPETITION NO PE/21/A ( FRENCH-LANGUAGE AND DUTCH-LANGUAGE ADMINISTRATORS ) REFUSED TO ADMIT THE APPLICANT TO THE TESTS FOR THAT COMPETITION ;

2 . DISMISSES THE REMAINDER OF THE APPLICATION ;

3 . ORDERS THE PARLIAMENT TO PAY THE COSTS .