1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 18 NOVEMBER 1983 , MR CALVIN WILLIAMS BROUGHT AN ACTION AGAINST THE COURT OF AUDITORS OF THE EUROPEAN COMMUNITIES SEEKING PRIMARILY THE ANNULMENT OF MR SCHWIERING ' S APPOINTMENT PURSUANT TO THE PROCEEDINGS OF COMPETITION NO CC/A/17/82 AND THE ANNULMENT OF THE PROCEEDINGS OF THE COMPETITION INASMUCH AS THEY LED TO THE SELECTION OF MR SCHWIERING AS THE SUCCESSFUL CANDIDATE , AND ALTER- NATIVELY AN AWARD OF COMPENSATION AGAINST THE COURT OF AUDITORS FOR THE DAMAGE SUFFERED BY HIM .
2 THE COMPETITION AT ISSUE WAS AN INTERNAL COMPETITION ORGANIZED BY THE COURT OF AUDITORS IN OCTOBER 1982 TO FILL A POST OF PRINCIPAL ADMINISTRATOR IN CAREER BRACKET A 5/A 4 WHOSE TASK IT WOULD BE TO CARRY OUT ADVISORY DUTIES RELATING TO INTERNAL ADMINISTRATION AND BUDGETARY MATTERS .
3 ON 8 DECEMBER 1982 , THE PRESIDENT OF THE COURT OF AUDITORS NOTIFIED STAFF OF THE LIST OF SUITABLE CANDIDATES DRAWN UP BY THE SELECTION BOARD , IN WHICH THE NAMES , IN ORDER OF MERIT , WERE THOSE OF MR SCHWIERING , MR WILLIAMS AND MR KILB . ON 17 DECEMBER 1982 , THE COURT OF AUDITORS DECIDED TO APPOINT THE SUCCESSFUL CANDIDATE , MR SCHWIERING .
4 HOWEVER , THAT DECISION WAS BLOCKED BY THE FINANCIAL CONTROLLER ' S REFUSAL OF APPROVAL ON 5 JANUARY 1983 . THE REASON GIVEN FOR THE REFUSAL WAS THAT MR SCHWIERING DID NOT SATISFY THE REQUIREMENTS RELATING TO DIPLOMAS AND PROFESSIONAL EXPERIENCE LAID DOWN FOR ADMISSION TO THE TESTS BY THE NOTICE OF COMPETITION .
5 NEVERTHELESS , THE DECISION TO APPOINT MR SCHWIERING WAS CONFIRMED BY THE COURT OF AUDITORS ON 1 FEBRUARY 1983 . THE FINANCIAL CONTROLLER AGAIN WITHHELD HIS APPROVAL ON 28 FEBRUARY 1983 . ON 24 MARCH 1983 , THE COURT OF AUDITORS DECIDED TO OVERRULE THE FINANCIAL CONTROLLER ' S REFUSAL OF APPROVAL AND CONFIRMED THE APPOINTMENT OF MR SCHWIERING AS A PROBATIONARY OFFICIAL IN GRADE A 5 , ON THE GROUND THAT MR SCHWIERING FULLY SATISFIED THE REQUIREMENTS OF THE NOTICE OF COMPETITION IN RESPECT OF PROFESSIONAL EXPERIENCE .
6 ON 5 MAY 1983 , THE APPLICANT LODGED A COMPLAINT UNDER ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS ASKING FOR THE ANNULMENT OF MR SCHWIERING ' S APPOINTMENT ON TWO GROUNDS , NAMELY THAT MR SCHWIERING DID NOT MEET THE REQUIREMENTS LAID DOWN BY THE NOTICE OF COMPETITION , AND THAT HE HAD BEEN GIVEN AN UNFAIR ADVANTAGE BY THE QUESTIONS SET BY THE SELECTION BOARD . MR WILLIAMS CONCLUDED THAT HE WAS THE BEST-PLACED ELIGIBLE CANDIDATE ON THE LIST AND THAT THE POST TO BE FILLED BY MEANS OF THE COMPETITION SHOULD HAVE BEEN AWARDED TO HIM .
7 ON 5 SEPTEMBER 1983 , THE APPOINTING AUTHORITY DISMISSED HIS COMPLAINT ON THE GROUND THAT IT WAS NOT COMPETENT EITHER TO INQUIRE INTO THE MERITS OF THE SELECTION BOARD ' S DECISION TO ADMIT MR SCHWIERING TO THE COMPETITION OR TO ASSESS THE RESULTS OF A SELECTION BOARD ' S DELIBERATIONS .
8 THOSE ARE THE FACTS WHICH LED MR WILLIAMS TO BRING THIS ACTION , IN WHICH HE CLAIMS :
THAT THE DECISION APPOINTING MR SCHWIERING AND THE DECISION REJECTING HIS OWN COMPLAINT SHOULD BE ANNULLED ;
THAT THE PROCEEDINGS OF THE COMPETITION SHOULD BE ANNULLED INASMUCH AS THEY LED TO THE SELECTION OF MR SCHWIERING AS THE SUCCESSFUL CANDIDATE ;
FINALLY , THAT THE COURT OF AUDITORS SHOULD BE ORDERED TO PAY HIM COMPENSATION OF LFR 500 000 , ' ' SUCH SUM NOT TO BE PAYABLE IN THE EVENT OF THE APPLICANT ' S APPOINTMENT TO THE POST IN QUESTION . ' '
THE CLAIMS FOR THE ANNULMENT OF THE DECISION APPOINTING MR SCHWIERING AND THE DECISION REJECTING THE APPLICANT ' S COMPLAINT
9 THE COURT OF AUDITORS MAINTAINS IN THE FIRST PLACE THAT THE APPLICATION IS OUT OF TIME AND THEREFORE INADMISSIBLE . IT ARGUES IN SUPPORT OF THAT SUBMISSION THAT THE APPLICATION IS IN REALITY DIRECTED AGAINST THE SELECTION BOARD ' S DECISION AND THAT CONSEQUENTLY THE TIME FOR BRINGING THE ACTION BEGAN TO RUN FROM THE DATE OF PUBLICATION OF THE LIST OF SUITABLE CANDIDATES , THAT IS , FROM 8 DECEMBER 1982 . IT ADDS THAT MR SCHWIERING ' S APPOINTMENT WAS MERELY THE AUTOMATIC CONSEQUENCE OF THE PUBLICATION OF THE LIST OF SUITABLE CANDIDATES ON 8 DECEMBER 1982 , AND THAT AS SUCH THE DECISION CONSTITUTED A PURELY CONFIRMATORY MEASURE DEVOID OF INDEPENDENT LEGAL EFFECT AND INCAPABLE OF ADVERSELY AFFECTING AN OFFICIAL .
10 THAT ARGUMENT MUST BE REJECTED . FIRST , IT IS CLEAR FROM THE TERMS OF THE APPLICATION THAT IT SEEKS THE ANNULMENT OF THE DECISION APPOINTING MR SCHWIERING . HOWEVER , THE EARLIEST POSSIBLE DATE FOR THE DECISION FINALLY APPOINTING MR SCHWIERING WAS 1 FEBRUARY 1983 , SO THAT , IN VIEW OF THE FACT THAT THE COURT OF AUDITORS NEITHER ESTABLISHED NOR EVEN ALLEGED THAT MR WILLIAMS HAD KNOWLEDGE OF THAT DECISION BEFORE 5 FEBRUARY 1983 , HIS COMPLAINT AGAINST THE APPOINTMENT WAS LODGED WITHIN THE PERIOD PRESCRIBED BY ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS , JUST AS THIS ACTION WAS BROUGHT WITHIN THE PERIOD LAID DOWN BY ARTICLE 91 ( 3 ) OF THE STAFF REGULATIONS . SECONDLY , THE DECISION APPOINTING MR SCHWIERING CONCLUDED THE COMPETITION PROCEDURE , PRODUCED LEGAL CONSEQUENCES AND CANNOT BE REGARDED AS MERELY CONFIRMING THE SELECTION BOARD ' S DECISION ESTABLISHING THE LIST OF SUITABLE CANDIDATES . IN THE CIRCUMSTANCES , THE HEADS OF CLAIM CONTESTING THE APPOINTMENT OF MR SCHWIERING CANNOT BE REGARDED AS BEING OUT OF TIME .
11 THE COURT OF AUDITORS ' SECOND ARGUMENT IS THAT THE APPLICATION IS INADMISSIBLE ON THE GROUND THAT THE APPLICANT HAS NO INTEREST IN BRINGING THE PROCEEDINGS . THAT OBJECTION OF INADMISSIBILITY MUST LIKEWISE BE REJECTED . AS THE COURT HAS REPEATEDLY HELD , A CANDIDATE IN A COMPETITION MAY BRING AN ACTION CONTESTING A DECISION APPOINTING ANOTHER CANDIDATE TO THE POST TO BE FILLED ( SEE THE JUDGMENTS IN CASE 11/65 MORINA V EUROPEAN PARLIAMENT ( 1965 ) ECR 1017 ; CASE 21/70 RITTWEGER V COMMISSION ( 1971 ) ECR 7 ; CASE 252/81 MACEVICIUS V EUROPEAN PARLIAMENT ( 1983 ) ECR 867 ).
12 IT FOLLOWS THAT THE CLAIMS EXAMINED ABOVE ARE ADMISSIBLE .
13 MR WILLIAMS PUT FORWARD THREE SUBMISSIONS IN SUPORT OF HIS CLAIMS FOR THE ANNULMENT OF THE DECISION APPOINTING MR SCHWIERING :
FAILURE TO OBSERVE THE TERMS OF THE NOTICE OF COMPETITION INASMUCH AS MR SCHWIERING DID NOT SATISFY THE CONDITIONS FOR ADMISSION TO THE TESTS IN THE COMPETITION ;
FAILURE TO OBSERVE THE PRINCIPLE OF EQUAL TREATMENT OF CANDIDATES AS SHOWN BY THE MANNER IN WHICH THE TESTS IN THE COMPETITION WERE ORGANIZED ;
MISUSE OF POWERS .
THE FIRST SUBMISSION
14 THE APPLICANT MAINTAINS THAT MR SCHWIERING DID NOT MEET THE REQUIREMENTS LAID DOWN BY THE NOTICE OF COMPETITION RELATING TO THE POSSESSION OF A UNIVERSITY DEGREE AND PROOF OF PROFESSIONAL EXPERIENCE .
15 PARAGRAPH III OF THE NOTICE OF COMPETITION PROVIDES :
' ' IN ORDER TO BE ADMITTED TO THE COMPETITION , CANDIDATES MUST
1 . ( A ) HAVE RECEIVED A UNIVERSITY EDUCATION ATTESTED BY A RECOGNIZED DEGREE OR DIPLOMA IN ONE OR MORE OF THE FOLLOWING SUBJECTS : LAW , POLITICAL SCIENCE , FINANCE , ECONOMICS , ACCOUNTANCY , BUSINESS STUDIES , ADMINISTRATION ;
OR
( B)HAVE PROVEN EQUIVALENT PROFESSIONAL EXPERIENCE . EQUIVALENT PROFESSIONAL EXPERIENCE SHALL BE DEFINED AS EXPERIENCE ACQUIRED IN A FULL-TIME OCCUPATION NORMALLY REQUIRING A UNIVERSITY DEGREE AND OF A DURATION AT LEAST EQUAL TO THAT NECESSARY FOR THE COMPLETION OF THE FULL PERIOD OF STUDIES REQUIRED TO OBTAIN A RECOGNIZED UNIVESITY-LEVEL DIPLOMA IN ONE OF THE SUBJECTS REFERRED TO IN PARAGRAPH ( A );
2.HAVE PROFESSIONAL EXPERIENCE OF A MINIMUM DURATION OF SIX YEARS AT A RESPONSIBLE LEVEL IN DUTIES RELEVANT TO THE NATURE OF THE POST . CREDIT SHALL BE GIVEN FOR PROFESSIONAL EXPERIENCE GAINED AFTER THE AWARD OF A UNIVERSITY DEGREE . IN THE CASE OF A CANDIDATE WITHOUT A UNIVERSITY DEGREE , THE SIX YEARS ' EXPERIENCE MUST BE ADDITIONAL TO THE PROFESSIONAL EXPERIENCE REQUIRED TO COMPENSATE FOR THE ABSENCE OF A DEGREE . . . ' ' .
16 IT IS ESTABLISHED THAT AT THE DATE OF THE COMPETITION MR SCHWIERING COULD ONLY SHOW THAT HE HAD :
27 MONTHS ' LEGAL STUDIES AT BONN UNIVERSITY , FROM OCTOBER 1971 TO 1 JANUARY 1974 , ATTESTED ONLY BY THREE CERTIFICATES AND NOT BY THE AWARD OF A UNIVERSITY DEGREE ;
THREE YEARS AND 11 MONTHS ' PROFESSIONAL EXPERIENCE IN THE FEDERAL REPUBLIC OF GERMANY AS A PERSONAL ASSISTANT TO THE CHAIRMAN OF THE FEDERAL GERMAN PARLIAMENTARY BUDGET COMMITTEE , FROM 1 JANUARY 1974 TO 30 NOVEMBER 1977 ;
FIVE YEARS ' SERVICE AT THE COURT OF AUDITORS AS CHEF DE CABINET TO A MEMBER OF THE COURT , FROM 1 DECEMBER 1977 TO 17 NOVEMBER 1982 .
17 THE COURT OF AUDITORS STATED FINALLY THAT THE GROUNDS ON WHICH IT BASED THE CONTESTED MEASURE WERE THOSE ADOPTED BY THE CHAIRMAN OF THE SELECTION BOARD , AS SET OUT IN THE ANSWERS TO THE QUESTIONS PUT BY THE COURT OF JUSTICE .
18 THOSE GROUNDS WERE THAT MR SCHWIERING WAS ABLE TO ESTABLISH THAT HE HAD HIGH-LEVEL PROFESSIONAL EXPERIENCE OF MORE THAN 10 YEARS , BY TAKING THE EIGHT YEARS AND ELEVEN MONTHS ' PROFESSIONAL EXPERIENCE MENTIONED ABOVE TOGETHER WITH THE 27 MONTHS OF UNIVERSITY STUDIES WITH NO DEGREE .
19 FOR THAT PURPOSE THE SELECTION BOARD TREATED THE SUCCESSFULLY COMPLETED STAGES OF MR SCHWIERING ' S LAW COURSE AS PART OF THE PROFESSIONAL EXPERIENCE REQUIRED , ON THE GROUNDS , FIRST , THAT ' ' IF , INSTEAD OF TAKING UP A COURSE OF STUDY , MR SCHWIERING HAD IMMEDIATELY STARTED WORK , THERE WOULD HAVE BEEN NO DIFFICULTY IN HIS BEING GIVEN CREDIT FOR EQUIVALENT EXPERIENCE IN ACCORDANCE WITH THE COURT OF AUDITORS ' PRACTICE IN ITS ASSESSMENT OF ALL THE STAFF RECRUITED BEFORE THAT DATE ' ' , AND , SECONDLY , THAT ' ' A HIGHER EDUCATION ATTESTED BY GOOD INTERMEDIATE RESULTS CONSTITUTES AN ACTIVITY WHICH IS AT LEAST AS EQUIVALENT TO GRADUATE-LEVEL AS THE EXERCISE OF A PROFESSION IN WHICH HIGH-LEVEL WORK IS MORE DIFFICULT TO ESTABLISH . ' '
20 THAT ARGUMENT CANNOT BE ACCEPTED . PARAGRAPH III ( 1 ) OF THE NOTICE OF COMPETITION DRAWS A CLEAR DISTINCTION BETWEEN A UNIVERSITY EDUCATION ATTESTED BY A RECOGNIZED DEGREE OR DIPLOMA , ON THE ONE HAND , AND EQUIVALENT PROFESSIONAL EXPERIENCE ON THE OTHER . THAT BEING THE CASE , IT CANNOT BE SAID THAT A PERIOD OF UNIVERSITY STUDY NOT ATTESTED BY A RECOGNIZED DIPLOMA MAY BE CREDITED AS A PERIOD OF EQUIVALENT PROFESSIONAL EXPERIENCE . FURTHERMORE , SUCH AN INTERPRETATION WOULD BE DIRECTLY CONTRARY TO THE REQUIREMENT LAID DOWN IN PARAGRAPH III ( 1 ) ( B ) OF THE NOTICE OF COMPETITION , WHICH PERMITS ONLY AN ' ' OCCUPATION NORMALLY REQUIRING A UNIVERSITY DEGREE ' ' TO BE TREATED AS EQUIVALENT PROFESSIONAL EXPERIENCE , WHICH IS NOT THE CASE IN THIS INSTANCE .
21 IT FOLLOWS THAT AT THE DATE OF THE CONTESTED COMPETITION , ALTHOUGH MR SCHWIERING COULD ESTABLISH THAT HE HAD PROFESSIONAL EXPERIENCE OF EIGHT YEARS AND ELEVEN MONTHS AND THEREFORE SATISFIED THE REQUIREMENTS OF PARAGRAPH III ( 2 ), HE COULD NOT CLAIM EITHER TO HOLD A RECOGNIZED UNIVERSITY DEGREE OR DIPLOMA OR TO HAVE EQUIVALENT PROFESSIONAL EXPERIENCE , ONE OF WHICH WAS REQUIRED BY PARAGRAPH III ( 1 ).
22 IN THOSE CIRCUMSTANCES , AND IN VIEW OF THE FACT THAT IT IS CLEAR FROM THE TERMS OF THE NOTICE OF COMPETITION ITSELF THAT CANDIDATES WITHOUT A UNIVERSITY DEGREE WERE REQUIRED TO HAVE 10 YEARS ' PROFESSIONAL EXPERIENCE AT LEAST , MR SCHWIERING WAS WRONGLY ADMITTED TO THE TESTS IN THE COMPETITION .
23 CONSEQUENTLY , WITHOUT THERE BEING ANY NEED TO EXAMINE THE OTHER SUBMISSIONS PUT FORWARD IN SUPPORT OF THE APPLICANT ' S CLAIMS FOR ANNULMENT , THE DECISION APPOINTING MR SCHWIERING AND THE DECISION REJECTING THE APPLICANT ' S COMPLAINT MUST BE ANNULLED .
THE CLAIM FOR THE ANNULMENT OF THE PROCEEDINGS OF THE COMPETITION IN SO FAR AS THEY RESULTED IN THE SELECTION OF MR SCHWIERING AS THE SUCCESSFUL CANDIDATE
24 IT FOLLOWS FROM THE AFOREGOING THAT THE DECISION APPOINTING MR SCHWIERING MUST , AS A CONSEQUENCE OF ITS ANNULMENT , BE TREATED AS IF IT HAD NEVER BEEN TAKEN AND THAT THE COURT OF AUDITORS MAY NOT RE-APPOINT HIM ON THE BASIS OF THE RESULTS OF THE CONTESTED COMPETITION .
25 THE APPLICANT HAS THUS OBTAINED FULL SATISFACTION . ACCORDINGLY , THE ABOVE-MENTIONED CLAIMS ARE NO LONGER NECESSARY AND REQUIRE NO DECISION ON THEIR MERITS , NOR IS IT NECESSARY FOR THE COURT TO RULE ON THE OBJECTION BY THE COURT OF AUDITORS THAT THOSE CLAIMS ARE INADMISSIBLE .
THE CLAIM FOR COMPENSATION
26 THE APPLICANT ' S CLAIM FOR DAMAGES WAS SUBMITTED SOLELY IN THE ALTERNATIVE , IN THE EVENT THAT HE SHOULD NOT BE APPOINTED TO THE POST IN QUESTION AS A CONSEQUENCE OF THE COURT ' S JUDGMENT . IN HIS REPLY HE STATES THAT ' ' HE DOES NOT PRESS THE CLAIM FOR DAMAGES , WHICH HE SUBMITS TO THE DISCRETION OF THE COURT ' ' .
27 THE COURT OF AUDITORS TAKES THE VIEW THAT THE APPLICANT CANNOT POINT TO ANY REAL AND PRESENT ADVERSE EFFECT ACTUALLY SUFFERED BY HIM , AND THAT IN ANY EVENT HE COULD NOT GAIN AN AUTOMATIC RIGHT TO APPOINTMENT MERELY BY BEING PLACED AT THE HEAD OF THE LIST OF SUITABLE CANDIDATES .
28 IT MUST BE NOTED THAT THE APPLICANT ' S CLAIM , EVEN HAD HE PERSISTED IN MAINTAINING IT , IS CONDITIONAL AND DEPENDENT ON THE ACTION TO BE TAKEN BY THE COURT OF AUDITORS AFTER THIS JUDGMENT HAS BEEN GIVEN . SINCE THE ALLEGATION OF DAMAGE RELATES TO A MERE POSSIBILITY , THIS HEAD OF CLAIM MUST IN ANY EVENT BE REJECTED .
COSTS
29 UNDER ARTICLE 69 ( 2 ) OF THE RULES PROCEDURE THE UNSUCCESSFUL PARTY IS REQUIRED TO PAY THE COSTS . SINCE THE DEFENDANT HAS FAILED IN ITS PRINCIPAL SUBMISSIONS , IT MUST BE ORDERED TO PAY THE COSTS .
ON THOSE GROUNDS ,
THE COURT ( THIRD CHAMBER )
HEREBY :
1 . ANNULS THE DECISIONS OF THE COURT OF AUDITORS OF 24 MARCH 1983 , APPOINTING MR SCHWIERING PURSUANT TO THE PROCEEDINGS OF COMPETITION NO CC/A/17/82 , AND OF 5 SEPTEMBER 1983 , REJECTING MR WILLIAMS ' COMPLAINT ;
2 . DECLARES THAT IT IS UNNECESSARY TO GIVE A DECISION UPON THE APPLICANT ' S CLAIM FOR THE PARTIAL ANNULMENT OF THE PROCEEDINGS OF THE COMPETITION ;
3 . DISMISSES THE REMAINDER OF THE APPLICATION ;
4 . ORDERS THE DEFENDANT TO PAY THE COSTS .
