61975CJ0031_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 31/75
MARIO COSTACURTA, OFFICIAL OF THE EUROPEAN COMMUNITIES, RESIDING AT 24 AVENUE DE L'ARSENAL, LUXEMBOURG, REPRESENTED BY ERNEST ARENDT, ADVOCATE, WITH AN ADDRESS FOR SERVICE AT 34 B/IV, RUE PHILIPPE-II, LUXEMBOURG, APPLICANT,
V
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, THOMAS F . CUSACK, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ITS LEGAL ADVISER, MARIO CERVINO, BATIMENT CFL, PLACE DE LA GARE, DEFENDANT,
Subject of the case
APPLICATION FOR THE ANNULMENT OF THE DECISION OF THE DEFENDANT OF 27 JUNE 1974 REJECTING THE APPLICANT'S CANDIDATURE FOR THE INTERNAL COMPETITION FOR THE RESERVE LIST COM/A/15/73 AND THE DECISION OF REJECTION CONTAINED IN THE LETTER FROM THE DEFENDANT DATED 13 JANUARY 1975 IN RESPECT OF THE ADMINISTRATIVE COMPLAINT MADE BY THE APPLICANT ON 22 AUGUST 1974 .
Grounds
1 THE APPLICATION FILED AT THE COURT REGISTRY ON 18 MARCH 1975 SEEKS THE ANNULMENT OF THE DEFENDANT'S DECISION OF 27 JUNE 1974, CONFIRMED BY LETTER ON THE FOLLOWING 5 AUGUST, INFORMING THE APPLICANT THAT THE SELECTION BOARD HAD EXCLUDED HIM FROM THE COMPETITION COM/A/15/73 ORGANIZED TO DRAW UP A RESERVE LIST OF ADMINISTRATORS IN CAREER BRACKET A 7/A 6 TO FILL POSTS IN THIS CAREER BRACKET IN THE 'PRINTING AND PUBLISHING' FIELD AND THE REJECTION ARISING FROM THE COMMISSION'S LETTER OF 13 JANUARY 1975 OF THE ADMINISTRATIVE COMPLAINT SUBMITTED BY THE APPLICANT ON 22 AUGUST 1974 .
ADMISSIBILITY
2 THE DEFENDANT CONTESTS THE ADMISSIBILITY OF THE APPLICATION ON THE GROUND THAT IT WAS NOT MADE WITHIN THE PERIOD PRESCRIBED BY ARTICLE 91 OF THE STAFF REGULATIONS .
3 THE AMENDMENT OF THE STAFF REGULATIONS IN 1972 DID NOT REVOKE THE RULE THAT THE ONLY RECOURSE WHICH PERSONS CONCERNED HAVE WITH REGARD TO SUCH DECISIONS IS TO BRING THE MATTER BEFORE THE COURT WITHOUT MAKING A PRIOR COMPLAINT TO THE COMMISSION SINCE THE LATTER DOES NOT HAVE THE POWER TO ALTER OR ANNUL A DECISION BY A SELECTION BOARD .
4 REASONS OF FAIRNESS LAID DOWN BY WAY OF EXCEPTION IN PREVIOUS CASES CANNOT PREVAIL WHEN THE SAID RULE IS WELL ESTABLISHED, IF NOT COMMON KNOWLEDGE .
5 HOWEVER SINCE IN THE PRESENT CASE THE EVENTS TOOK PLACE WHEN THE NEW STAFF REGULATIONS WERE APPLICABLE, IT WOULD BE CONTRARY TO THE RULES OF FAIRNESS TO HOLD IT AGAINST THE APPLICANT FOR HAVING FOLLOWED THE PROCEDURE CLEARLY LAID DOWN IN ARTICLES 90 AND 91 AS AMENDED .
6 DURING THE ORAL PROCEDURE THE COMMISSION COMPLAINED THAT THE APPLICANT HAD NOT SUBMITTED HIS COMPLAINT TO IT UNTIL THE SELECTION BOARD, HAVING FINISHED ITS WORK AND SUBMITTED ITS REPORT TO THE APPOINTING AUTHORITY, WAS FUNCTUS OFFICIO .
7 HOWEVER IT WAS FOR THE COMMISSION TO FORWARD TO THE SELECTION BOARD THE FIRST REQUEST FOR AN EXPLANATION SENT TO IT BY THE APPLICANT ON 28 JUNE 1974, THAT IS TO SAY, BEFORE THE TESTS TOOK PLACE .
THE SUBSTANCE OF THE CASE
8 THE APPLICANT CLAIMS THAT IN NOT GIVING A SUFFICIENT STATEMENT OF THE REASONS FOR THE DECISION TO EXCLUDE HIM FROM THE COMPETITION IN QUESTION, THE SELECTION BOARD INFRINGED ARTICLE 25 OF THE STAFF REGULATIONS AND ARTICLE 5 OF ANNEX III .
9 THE REPORT BY THE SELECTION BOARD AND THE LETTER IN CONFIRMATION FROM THE DEFENDANT DATED 5 AUGUST 1974, MENTIONING 'THE LACK OF A UNIVERSITY DEGREE AND EQUIVALENT EXPERIENCE' AND SOME EXPERIENCE APPROPRIATE TO THE DUTIES, WAS SIMPLY REFERRING TO ARTICLE 5 OF THE STAFF REGULATIONS WITHOUT STATING SUFFICIENTLY PRECISE CRITERIA .
10 THE TASK OF THE SELECTION BOARD CONSISTS OF AT LEAST TWO SEPARATE STAGES, THE FIRST BEING AN EXAMINATION OF THE APPLICATIONS IN ORDER TO SELECT THE CANDIDATES ADMITTED TO THE COMPETITION AND THE SECOND BEING AN EXAMINATION OF THE ABILITIES OF THE CANDIDATES FOR THE POSTS TO BE FILLED IN ORDER TO DRAW UP A LIST OF SUITABLE CANDIDATES .
11 WHILST THE SECOND STAGE CONSISTS MAINLY OF COMPARISON, AND IS ACCORDINGLY COVERED BY THE SECRECY INHERENT IN THE TASK OF A SELECTION BOARD, THE FIRST, PARTICULARLY WHERE THE COMPETITION IS BASED ON FORMAL QUALIFICATIONS, ENTAILS THE MATCHING OF THE QUALIFICATIONS OFFERED BY THE CANDIDATES AGAINST THE QUALIFICATIONS REQUIRED BY THE NOTICE OF COMPETITION .
12 SINCE THESE MUST BE MATCHED ON THE BASIS OF OBJECTIVE FACTS WHICH ARE MOREOVER KNOWN TO EACH CANDIDATE IN HIS OWN CASE, THE RESULTS MUST BE SUPPORTED BY SUFFICIENTLY CLEAR REASONS .
13 THIS WAS NOT SO IN THE PRESENT CASE, SINCE THE REPORT BY THE SELECTION BOARD AND THE LETTER FROM THE ADMINISTRATION OF 5 AUGUST 1974 WERE LIMITED TO SAYING 'THE LEVEL OF YOUR EXPERIENCE HAS BEEN ... MEASURED AGAINST THE CRITERION OF THE QUALIFICATIONS OF AN OFFICIAL WHO HAS RECEIVED A UNIVERSITY EDUCATION, SUPPORTED BY A DEGREE, AND IS ENGAGED IN PERFORMING DUTIES APPROPRIATE TO CATEGORY A WITHIN THE MEANING OF ARTICLE 5 OF THE STAFF REGULATIONS '.
14 THE DIFFICULTY INHERENT IN SUCH A COMPARISON CANNOT JUSTIFY THE LACK OF ANY ATTEMPT TO MAKE A MORE PRECISE ANALYSIS NOR THE LACK OF ANY ADDITIONAL CRITERION OF SELECTION .
15 THE COMPETITION COM/A/15/73, HOWEVER, WAS INTENDED TO CONSTITUTE A RESERVE LIST FOR THE RECRUITMENT OF ADMINISTRATORS IN CAREER BRACKET A 7/A 6 .
16 THEREFORE THE EXCLUSION OF THE APPLICANT FROM THE LIST OF CANDIDATES DID NOT AFFECT THE ADMISSION TO THE LIST OF THE PERSONS SELECTED BY THE SELECTION BOARD AS FULFILLING THE CONDITIONS LISTED IN THE NOTICE OF COMPETITION .
17 THE RIGHTS OF THE APPLICANT WILL BE SUFFICIENTLY PROTECTED IF THE SELECTION BOARD RECONSIDERS THE QUESTION OF THE APPLICANT'S SUITABILITY FOR BEING INCLUDED IN THE LIST OF CANDIDATES AND IF SUCH BE THE CASE IT ADMITS HIM TO THE COMPETITION WITHOUT THE SELECTION ALREADY MADE BY THE SELECTION BOARD BEING AFFECTED .
18 IT SUFFICES THEREFORE TO ANNUL THE DECISION OF THE SELECTION BOARD TO EXCLUDE THE APPLICANT FROM THE COMPETITION AND THE COMMISSION'S DECISION REJECTING THE ADMINISTRATIVE COMPLAINT MADE BY THE APPLICANT ON 22 AUGUST 1974 .
19 SINCE THE APPLICANT HAS SUCCEEDED ON THE FIRST SUBMISSION IN THE APPLICATION, IT IS NOT NECESSARY TO EXAMINE THE SECOND .
Decision on costs
20 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .
21 THE COMMISSION HAS FAILED IN ITS SUBMISSION AND MUST THEREFORE PAY THE COSTS .
Operative part
THE COURT ( FIRST CHAMBER )
HEREBY :
( 1 ) ANNULS THE DECISION OF THE SELECTION BOARD IN COMPETITION COM/A/15/73 NOT TO ADMIT THE APPLICANT TO THE COMPETITION AND THE DECISION CONTAINED IN THE COMMISSION'S LETTER OF 13 JANUARY 1975 REJECTING THE APPLICANT'S COMPLAINT;
( 2 ) ORDERS THE COMMISSION TO BEAR THE WHOLE OF THE COSTS .