Avis juridique important

Order of the President of the Court of 27 November 1990. - Commission of the European Communities v Alessandro Albani and others. - Appeal - Suspension of the implementation of a judgment - Absence of purpose. - Case C-242/90 P-R. European Court reports 1990 Page I-04329

Summary Parties Grounds Operative part

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Officials - Actions - Judgment annulling a measure - Effects - Annulment of the marking of tests in an open competition and of the acts in the subsequent procedure - Effect on the validity of appointments made

( Staff Regulations of Officials, Art . 91 )

The annulment by the Court of First Instance of the decision by a competition selection board concerning the marking of a written test and the subsequent acts in the competition procedure because of an irregularity such as might place in question compliance with the principle of equality between candidates does not, in the case of an open competition for the purpose of constituting a reserve for future recruitment, automatically invalidate appointments made on the basis of the list of successful candidates adopted by the selection board .

In Case C-242/90 P-R,

Commission of the European Communities, represented by its Principal Legal Adviser, Henri Étienne, and by Sean Van Raepenbusch, a member of its Legal Department, acting as Agents, with an address for service in Luxembourg at the office of Guido Berardis, also a member of the Commission' s Legal Department, Wagner Centre, Kirchberg,

applicant,

supported by

John Allen, Balthasar Benz, Ludger Blasig, Martin Dihm, Agnès Guillaud, Chantal Hebberecht, Gerard Kiely, Dirk Lange, Michèle Lemasson, Frédérique Lorenzi, Josefine Loriz-Hoffmann, Christian Rambaud and Hermann Spitz, officials of the Commission of the European Communities, represented by John E . Pheasant, solicitor, Brussels, assisted by Me Mercadé-Choquet, with an address for service in Luxembourg at the Chambers of Messrs Loesch & Wolter, 8 rue Zithe, and

Purification Alberdi Anchia, Arnaud Bordes, Aldo Longo, Felix Lozano Gallego, F . Javier Maetzu, Jens A . Munch, Adriaan H . Van Der Meer, Rudy Van Der Stappen, Robert Vanhoorde and Jesus Zorrilla Torras, officials of the Commission of the European Communities, represented by G . Vandersanden and S . Dubois, of the Brussels Bar, with an address for service in Luxembourg at the Chambers of A . Schmidt, 62 avenue Guillaume, and

Georges-Marc André, Jean-Louis Chomel, David Daly, Marc Debois, Bertrand Delpeuch, Donatella Diane, Evangelos Divaris, Michael Gowen, Anastassios Haniotis, Jill Hanna, Jacques Humières, Guy Ledoux, James Russel and Gerrit Verhelst, officials of the Commission of the European Communities, represented by John E . Pheasant, solicitor, Brussels, with an address for service in Luxembourg at the Chambers of Messrs Loesch & Wolter, 8 rue Zithe, and

Fédération de la fonction publique européenne ( European Civil Service Federation ), represented by François Jongen, of the Brussels Bar, with an address for service in Luxembourg at the Chambers of A . Schmitt, 62 avenue Guillaume,

APPLICATION for the suspension of the implementation of the judgment delivered on 12 July 1990 by the Court of First Instance in Case T-35/89 between Alessandro Albani, Alberto Caferri, Claudio Caruso and Bruno Buffaria, supported by the Syndicat des fonctionnaires internationaux et européens ( Union of International and European Civil Servants ) and Union syndicale ( European Public Service Union ), and the Commission of the European Communities,

the other parties to the proceedings being :

Alessandro Albani, Alberto Caferri, Claudio Caruso and Bruno Buffaria, represented by Gérard Collin, of the Brussels Bar, with an address for service in Luxembourg at the offices of Fiduciaire Myson SARL, 6-8 rue Origer,

Syndicat des fonctionnaires internationaux et européens,

Union syndicale, represented by J.-N . Louis, of the Brussels Bar, with an address for service in Luxembourg at the offices of Fiduciaire Myson SARL, 6-8 rue Origer,

THE PRESIDENT OF THE COURT OF JUSTICE

OF THE EUROPEAN COMMUNITIES

makes the following

Order

1 By application lodged at the Court Registry on 7 August 1990 the Commission appealed under Article 49 of the Statute of the Court of Justice of the EEC and the corresponding provisions of the Statutes of the Court of Justice of the ECSC and the EAEC against the judgment delivered on 12 July 1990 in which the Court of First Instance annulled the decision of the selection board in Competition COM/A/482 concerning the marking of the second written test, together with the subsequent acts in the competition .

2 In its appeal the Commission requests that that judgment be set aside inasmuch as it annuls all the acts in the procedure in Competition COM/A/482 from the marking of the second written test and does not limit the consequences of that annulment merely to restoring the rights of the applicants before the Court of First Instance .

3 By a separate document, lodged at the Court Registry on 9 August 1990, the Commission also applied, pursuant to Article 53 of the Statute of the Court of Justice of the EEC and the corresponding provisions of the Statutes of the Court of Justice of the ECSC and the EAEC, and Article 83 of the Rules of Procedure, for the adoption of interim measures suspending the implementation of the contested judgment, in so far as that judgment requires the Commission to cancel the appointments of 38 officials as a result of the annulment of the second written test in Competition COM/A/482 .

4 The applicants before the Court of First Instance and Union syndicale submitted written observations on 19 and 10 September 1990 respectively .

5 By orders of 10 October 1990 Mr Allen and others, Mrs Alberdi Anchia and others and Mr André and others, all officials appointed as successful candidates in Competition COM/A/482, were granted leave to intervene in support of the Commission in the proceedings for interim measures . By order of the same day the Fédération de la fonction publique européenne was also granted leave to intervene in the present proceedings . The interveners submitted their written observations on 18 October 1990 .

6 The Commission, the applicants before the Court of First Instance and Union syndicale, together with the interveners in the present proceedings, presented oral argument on 22 October 1990 .

7 It is first of all necessary to recall to mind the proceedings before the Court of First Instance and, as they emerge from the contested judgment, the circumstances which led that court to annul the decision of the selection board concerning the marking of the second written test and the subsequent acts in the competition procedure .

8 The competition in dispute, which was an open competition based on qualifications and tests, was organized by the Commission in 1987 for the purpose of constituting a reserve for future recruitment of administrators at Grades 7 and 6 in Category A for a number of specified spheres of activity . There were 877 candidates admitted to the competition .

9 According to the Notice of Competition, the second written test was to be a practical drafting test designed to assess candidates' analytical ability and their experience in dealing with case studies .

10 In this second written test, the selection board asked candidates to draft a memorandum summarizing the case in question and giving the candidates' own views on the problem dealt with therein . The length of the memorandum was limited to a maximum of 800 words and candidates were required to count the number of words used and enter that number on their script . Failure to observe the limit on words would result in the paper' s not being marked .

11 After that test had been held, however, the selection board instructed markers to refrain from marking only those papers which were obviously too long, that is to say, in excess of 1 200 words .

12 The applicants before the Court of First Instance failed the second written test and the selection board decided not to admit them to the oral test in the competition .

13 On 25 May 1988 they brought an action against that decision, being of the view that the selection board, through its instructions to the markers, had altered the conditions which it had itself laid down for the second written test and thus allowed candidates who had failed to comply with those conditions to obtain an advantage over other candidates, thereby infringing the principles of equal treatment, objectivity and protection of legitimate expectations .

14 In their action, the applicants before the Court of First Instance claimed that that court should annul the marking of the written tests in the competition in its entirety or at least annul the decision of the selection board not to admit them to the oral test .

15 In its judgment the Court of First Instance held that the failure by the selection board to comply with the limit of 800 words laid down for the second written test constituted a substantial irregularity of such a kind as to vitiate both the contested decision of the selection board and the remainder of the procedure .

16 The Court of First Instance also pointed out, however, that in an open competition consisting of a number of stages, an irregularity in one stage was a ground for the annulment of the contested decision only if such an irregularity distorted the outcome of the competition .

17 The Commission contended before the Court of First Instance that such was not the case, since only five out of the 172 candidates admitted to the oral tests had exceeded the limit of 800 words and none of these had been included on the list of suitable candidates drawn up on 26 May 1988 .

18 However, it emerges from the judgment of the Court of First Instance that in this regard the Commission was unable to substantiate its contention, since the written tests in the competition had been inadvertently destroyed . Nor did the examination of witnesses by the Court of First Instance enable the facts alleged by the Commission to be established .

19 In those circumstances, the Court of First Instance took the view that it was not in a position to determine whether the principle that candidates must be treated equally had been observed during the marking of the second written test or whether that irregularity might have distorted the final outcome of the competition .

20 The Court of First Instance concluded from this that the submissions of the applicants before it had to be upheld and that it was necessary to annul "the decision of the selection board in Competition COM/A/482 concerning the marking of the second written test, and the subsequent acts in the competition procedure ".

21 It should be pointed out at this stage that neither the proceedings before the Court of First Instance nor the operative part of its judgment were or are directed at appointments which have already been made as a result of the competition in dispute .

22 The competition procedure, as laid down in Annex III to the Staff Regulations, is completed by the drawing up of a list of suitable candidates and the forwarding of that list to the appointing authority, together with the reasoned report of the selection board . The annulment by the Court of First Instance of the subsequent acts in the competition procedure can therefore, apart from the annulment of the decision by the selection board concerning the marking of the second written test, entail at most only the annulment of the list of suitable candidates .

23 It is also clear from the decided case-law of the Court ( see the judgment in Case 144/82 Armelle Detti v Court of Justice [1983] ECR 2421 ) that even an irregularity in the course of a competition such as may place in question compliance with the principle of equality between candidates does not automatically invalidate appointments made as a result, in cases, such as the present one, concerning an open competition for the purpose of constituting a reserve for future recruitment .

24 For those reasons it must be held that, pending the decision of the Court of Justice on the appeal, the Commission is not obliged to cancel the appointments made prior to the date of the judgment by the Court of First Instance .

25 The application for interim measures brought by the Commission seeks a suspension of the implementation of the contested judgment only in so far as it implies such an obligation . In view of the fact that there is no such obligation, the application for suspension serves no purpose and must consequently be dismissed .

On those grounds,

THE PRESIDENT

hereby orders as follows :

( 1 ) The application for interim measures is dismissed .

( 2 ) The costs are reserved .

Luxembourg, 27 November 1990 .