61986CJ0064_EN
Parties
Grounds
Decision on costs
Operative part
Parties
IN JOINED CASES 64, 71 TO 73 AND 78/86
GIOVANNI SERGIO, AN OFFICIAL OF THE COMMISSION, REPRESENTED BY ERNEST ARENDT, OF THE LUXEMBOURG BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE LATTER' S CHAMBERS, 34 B RUE PHILIPPE II,
JOSEFA KNAEPEN,
MAURIZIO ZAMPETTI,
MARIA-LUISA MASCARELLO D' ERME,
OFFICIALS OF THE COMMISSION, REPRESENTED BY EDMOND LEBRUN, OF THE BRUSSELS BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF TONY BIEVER, AVOCAT, 83 BOULEVARD GRANDE-DUCHESSE CHARLOTTE, AND
MARIO COSTACURTA, AN OFFICIAL OF THE COMMISSION, REPRESENTED BY NICOLAS DECKER, OF THE LUXEMBOURG BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE LATTER' S CHAMBERS, 16 AVENUE MARIE-THERESE,
APPLICANTS,
V
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, DIMITRIOS GOULOUSSIS, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF G . KREMLIS, A MEMBER OF ITS LEGAL DEPARTMENT, JEAN MONNET BUILDING, KIRCHBERG,
DEFENDANT,
APPLICATION FOR THE ANNULMENT OF THE DECISIONS WHEREBY THE SELECTION BOARD FOR INTERNAL COMPETITION COM/A/8/84 REFUSED TO ALLOW THE APPLICANTS TO TAKE PART IN THE TRAINING STAGE OF THE COMPETITION,
THE COURT ( SECOND CHAMBER )
COMPOSED OF : O . DUE, PRESIDENT OF THE CHAMBER, K . BAHLMANN AND T.F . O' HIGGINS, JUDGES,
ADVOCATE GENERAL : C.O . LENZ
REGISTRAR : D . LOUTERMAN, ADMINISTRATOR
HAVING REGARD TO THE REPORT FOR THE HEARING AND FURTHER TO THE HEARING ON 6 OCTOBER 1987, AT WHICH THE APPLICANTS WERE REPRESENTED BY M . LANNON, E . LEBRUN AND N . DECKER, AND THE DEFENDANT BY D . GOULOUSSIS,
AFTER HEARING THE OPINION OF THE ADVOCATE GENERAL DELIVERED AT THE SITTING ON 17 NOVEMBER 1987,
GIVES THE FOLLOWING
JUDGMENT
Grounds
1 BY APPLICATIONS LODGED AT THE COURT REGISTRY ON 6, 12 AND 13 MARCH 1986, GIOVANNI SERGIO ( CASE 64/86 ), JOSEFA KNAEPEN ( CASE 71/86 ), MAURIZIO ZAMPETTI ( CASE 72/86 ), MARIA-LUISA MASCARELLO D' ERME ( CASE 73/86 ) AND MARIO COSTACURTA ( CASE 78/86 ), OFFICIALS OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, BROUGHT ACTIONS FOR THE ANNULMENT OF THE DECISION WHEREBY THE SELECTION BOARD FOR INTERNAL COMPETITION COM/A/8/84 REFUSED TO ALLOW THEM TO TAKE PART IN THE TRAINING STAGE ENVISAGED FOR THAT COMPETITION .
2 BY AN ORDER OF 15 MAY 1986 THE COURT DECIDED TO JOIN THE CASES FOR THE PURPOSES OF THE WRITTEN AND ORAL PROCEDURE AND THE JUDGMENT .
3 INTERNAL COMPETITION COM/A/8/84, BASED ON QUALIFICATIONS AND TESTS, WHICH WAS THE SUBJECT OF A COMPETITION NOTICE PUBLISHED ON 18 JUNE 1984, WAS ORGANIZED BY THE COMMISSION WITH A VIEW TO CONSTITUTING A RESERVE OF ADMINISTRATORS IN GRADES A 7 AND A 6 . IT WAS OPEN ONLY TO OFFICIALS CLASSIFIED IN GRADES B 3 TO B 1 SINCE 1980 AND WAS DESIGNED TO ENABLE OFFICIALS TO MOVE FROM CATEGORY B TO CATEGORY A . 283 CANDIDATES, INCLUDING THE APPLICANTS, WERE ALLOWED TO PARTICIPATE IN THE COMPETITION .
4 THE COMPETITION WAS DIVIDED INTO THREE STAGES : A PRESELECTION STAGE A TRAINING STAGE, AND LASTLY AN ORAL TEST .
5 DURING THE FIRST STAGE, IT WAS THE TASK OF THE SELECTION BOARD, IN ACCORDANCE WITH THE COMPETITION NOTICE, TO DESIGNATE THE CANDIDATES CONSIDERED BEST QUALIFIED TO PROCEED TO THE NEXT STAGE, ON THE BASIS OF THEIR PERSONAL FILES AND OF THE RESULT OF A WRITTEN PAPER DESIGNED TO TEST GENERAL KNOWLEDGE AND JUDGMENT ( THE TEST TAKING THE FORM OF A SUMMARY OF A CASE STUDY LASTING NOT MORE THAN TWO HOURS ). IT WAS EXPLAINED THAT THE ASSESSMENT WOULD BE AN OVERALL ONE; NONE OF THE ELEMENTS WOULD BE ELIMINATORY IN ITSELF .
6 BY IDENTICALLY WORDED LETTERS OF 12 DECEMBER 1985, 165 CANDIDATES, INCLUDING THE APPLICANTS, WERE INFORMED THAT THEY HAD NOT BEEN ADMITTED TO THE TRAINING STAGE .
7 IN RESPONSE TO THAT LETTER, SOME OF THE APPLICANTS LODGED A COMPLAINT UNDER ARTICLE 90 OF THE STAFF REGULATIONS, WHILST OTHERS REQUESTED FURTHER INFORMATION REGARDING THE SELECTION BOARD' S ASSESSMENT OF THEM .
8 BY A FURTHER IDENTICALLY WORDED LETTER DATED 14 FEBRUARY 1986, THE 165 CANDIDATES WHO HAD NOT BEEN ADMITTED TO THE TRAINING STAGE WERE INFORMED OF THE GENERAL CRITERIA APPLIED BY THE SELECTION BOARD AT THE PRESELECTION STAGE, IN ACCORDANCE WITH THE NOTICE OF COMPETITION .
9 THE SUBMISSIONS WHICH THE APPLICANTS PUT FORWARD IN SUPPORT OF THEIR APPLICATIONS ARE THAT THE NOTICE OF COMPETITION AND THE COMPOSITION OF THE SELECTION BOARD WERE IRREGULAR, THAT THE WRITTEN PAPER DID NOT ACCORD WITH THE NOTICE OF COMPETITION, THAT THERE WAS A LACK OF TRANSPARENCY, PARTICULARLY IN THE EVALUATION OF THE PERSONAL FILES, MANIFEST ERROR, MISUSE OF POWERS AND DISCRIMINATION ON GROUNDS OF NATIONALITY SUCH AS TO VITIATE THE CONTESTED DECISIONS AND, LASTLY, THAT THE REASONS ON WHICH THOSE DECISIONS WERE BASED WERE NOT STATED .
10 REFERENCE IS MADE TO THE REPORT FOR THE HEARING FOR A FULLER ACCOUNT OF THE FACTS OF THE CASE AND THE SUBMISSIONS AND ARGUMENTS OF THE PARTIES, WHICH ARE MENTIONED OR DISCUSSED HEREINAFTER ONLY IN SO FAR AS IS NECESSARY FOR THE REASONING OF THE COURT .
IRREGULARITY OF THE NOTICE OF COMPETITION
11 THE APPLICANTS MAINTAIN THAT BECAUSE IT DOES NOT MENTION THE METHOD FOR MARKING THE WRITTEN PAPER THE NOTICE OF COMPETITION INFRINGES ARTICLE 1 ( 1 ) ( E ) OF ANNEX III TO THE STAFF REGULATIONS, WHICH, IN THE CASE OF COMPETITION BASED ON TESTS, REQUIRES THAT THE NOTICE OF COMPETITION SHOULD SPECIFY HOW THE PROPOSED EXAMINATION PAPERS WILL BE MARKED . THE APPLICANT IN CASE 64/86 FURTHER CLAIMS THAT, BY FAILING TO MENTION THE DIPLOMAS ( OR OTHER QUALIFICATIONS ) AND THE DEGREE OF EXPERIENCE REQUIRED, THE NOTICE OF COMPETITION DOES NOT SATISFY THE EXPRESS REQUIREMENT LAID DOWN IN ARTICLE 1 ( 1 ) ( D ) OF ANNEX III .
12 THE COMMISSION CONTENDS THAT THE SUBMISSIONS REGARDING THE IRREGULARITY OF THE NOTICE OF COMPETITION ARE INADMISSIBLE BECAUSE THEY WERE PUT FORWARD TOO LATE . ACCORDING TO ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS, THE APPLICANTS SHOULD HAVE MADE THOSE COMPLAINTS WITHIN THREE MONTHS OF PUBLICATION OF THE NOTICE OF COMPETITION .
13 AS THE COURT HELD IN ITS JUDGMENT OF 11 MARCH 1986 IN CASE 294/84 ( ADAMS AND OTHERS V COMMISSION (( 1986 )) ECR 977 ), ANY OFFICIAL WHO TAKES THE VIEW THAT THE ILLEGAL CHARACTER OF A NOTICE OF COMPETITION HAS AN ADVERSE EFFECT ON HIM MUST CHALLENGE THAT NOTICE IN GOOD TIME . WERE IT OTHERWISE, IT WOULD BE POSSIBLE TO CHALLENGE A COMPETITION NOTICE LONG AFTER IT HAD BEEN PUBLISHED AND AFTER MOST, OR ALL, OF THE OPERATIONS CARRIED OUT IN CONNECTION WITH THE COMPETITION HAD ALREADY TAKEN PLACE, WHICH WOULD BE CONTRARY TO THE PRINCIPLES OF LEGAL CERTAINTY, LEGITIMATE EXPECTATION AND SOUND ADMINISTRATION .
14 IN THAT REGARD THE APPLICANTS MAINTAIN THAT THE NOTICE OF COMPETITION DID NOT ADVERSELY AFFECT THEM AT THE TIME OF ITS PUBLICATION . THEY WERE NOT SO AFFECTED UNTIL THE ADOPTION OF THE UNFAVOURABLE DECISION OF THE SELECTION BOARD OF 12 DECEMBER 1985, WHICH AROSE OUT OF A NUMBER OF ILLEGAL ACTS BASED ON THE IRREGULARITIES OF THE NOTICE OF COMPETITION .
15 FAILURE TO CHALLENGE A NOTICE OF COMPETITION WITHIN THE TIME-LIMIT LAID DOWN DOES NOT PREVENT AN APPLICANT FROM RELYING ON IRREGULARITIES OCCURRING IN THE COURSE OF THE COMPETITION, EVEN IF THE ORIGIN OF THOSE IRREGULARITIES MAY BE FOUND IN THE WORDING OF THE NOTICE OF COMPETITION . IN THIS CASE, HOWEVER, THE WRITTEN PLEADINGS INDICATE, AND THE ORAL PROCEDURE HAS CONFIRMED, THAT THE TWO SUBMISSIONS IN QUESTION RELATE ONLY TO THE NOTICE OF COMPETITION . SINCE THE APPLICANTS FAILED TO CHALLENGE THAT NOTICE IN GOOD TIME, THOSE SUBMISSIONS MUST BE DISMISSED .
IRREGULAR COMPOSITION OF THE SELECTION BOARD
16 THE APPLICANT IN CASE 64/86 CLAIMS THAT, SINCE THE CHAIRMAN OF THE SELECTION BOARD CEASED TO HAVE THE STATUS OF AN OFFICIAL SHORTLY AFTER THE COMPETITION HAD BEGUN, THE COMPOSITION OF THE SELECTION BOARD WAS NOT IN ACCORDANCE WITH THE THIRD PARAGRAPH OF ARTICLE 3 OF ANNEX III TO THE STAFF REGULATIONS, ACCORDING TO WHICH MEMBERS OF THE SELECTION BOARD MUST BE CHOSEN FROM OFFICIALS WHOSE GRADE IS AT LEAST EQUAL TO THAT OF THE POST TO BE FILLED .
17 IN THIS CONNECTION IT IS SUFFICIENT TO POINT OUT THAT, AS THE COURT HELD IN ITS JUDGMENT OF 16 OCTOBER 1975 IN CASE 90/74 ( DEBOECK V COMMISSION (( 1975 )) ECR 1123 ), ARTICLE 3 SHOULD BE INTERPRETED AS MEANING THAT IF THE MEMBERS OF THE SELECTION BOARD ARE OFFICIALS THEY MUST BE OF A GRADE AT LEAST EQUAL TO THAT OF THE POST TO BE FILLED, WITHOUT, HOWEVER, EITHER THE MEMBERS OR THE CHAIRMAN OF THE SELECTION BOARD HAVING NECESSARILY TO BE OFFICIALS .
18 IT FOLLOWS THAT THIS SUBMISSION MUST BE REJECTED AS UNFOUNDED IN LAW .
INCONSISTENCY BETWEEN THE WRITTEN TEST AND THE NOTICE OF COMPETITION
19 THE APPLICANTS CLAIM THAT THE SUBJECTS FROM WHICH THE CANDIDATES COULD CHOOSE IN THE WRITTEN TEST DID NOT RELATE TO THE CANDIDATES' GENERAL KNOWLEDGE AND JUDGMENT, AS ENVISAGED IN THE COMPETITION NOTICE, BUT PRESUPPOSED SPECIALIZED TECHNICAL KNOWLEDGE, THEREBY PLACING AT AN ADVANTAGE THOSE CANDIDATES WHOSE WORK WAS CONNECTED WITH THE SUBJECTS SET . FURTHERMORE, SEVERAL SUBJECTS WERE NOT ACCOMPANIED BY ANYTHING THAT MIGHT BE DESCRIBED AS A "DOSSIER ".
20 THE COMMISSION OBSERVES THAT THE SELECTION BOARD DECIDED NOT TO SET ONE GENERAL SUBJECT BUT TO GIVE CANDIDATES A CHOICE BETWEEN A NUMBER OF SUBJECTS COVERING A WIDE RANGE OF COMMUNITY ACTIVITIES . THE SELECTION BOARD THUS DEFINED THREE BROAD AREAS, NAMELY INSTITUTIONAL AND ADMINISTRATIVE AFFAIRS ( SUBJECT AREA NO 1 ), ECONOMIC, BUDGETARY AND FINANCIAL AFFAIRS ( SUBJECT AREA NO 2 ) AND COMMUNITY POLICIES AND GENERAL POLITICAL TOPICS OF CURRENT INTEREST ( SUBJECT AREA NO 3 ). IN EACH SUBJECT AREA FOUR SUBJECTS WERE PREPARED . ON THE DAY OF THE TEST THE SELECTION BOARD DREW AT RANDOM TWO SUBJECTS FOR EACH SUBJECT AREA, THEREBY LIMITING THE CHOICE OF EACH CANDIDATE TO SIX SUBJECTS . HAVING BEEN INFORMED OF THE SIX SUBJECTS, EACH OF THE CANDIDATES CHOSE ONE SUBJECT AREA AND RECEIVED THE RELEVANT FILES IN ORDER TO DEAL WITH ONE OF THE TWO SUBJECTS . THE COMMISSION DOES NOT DENY THAT SOME OF THOSE SUBJECTS WERE ACCOMPANIED BY MORE EXTENSIVE FILES THAN OTHERS, BUT IT CONTENDS THAT ALL THE SUBJECTS REQUIRED THE PREPARATION OF A SUMMARY, AS REQUIRED BY THE COMPETITION NOTICE .
21 ON THE BASIS OF THE DOCUMENTS LODGED BY THE COMMISSION AT THE COURT' S REQUEST, THE TOPICS AND WORK REQUIRED FOR THE TWELVE TEST PAPERS CHOSEN BY THE SELECTION BOARD MAY BE BRIEFLY SUMMARIZED AS FOLLOWS :
SUBJECT AREA NO 1
( 1 ) ELECTIONS TO THE EUROPEAN PARLIAMENT : SUMMARY OF THE NATIONAL VOTING SYSTEMS AND DISCUSSION OF THE DIFFICULTIES OF A UNIFORM VOTING SYSTEM AND THE CURRENT NUMBER OF WOMEN MEMBERS;
( 2 ) PROCEDURE FOR DEALING WITH DISPUTES BETWEEN THE EUROPEAN COMMUNITIES AND THEIR OFFICIALS : SUMMARY OF THE PRESENT SYSTEM; DISCUSSION OF A PROPOSAL MADE BY THE COMMISSION TO THE COUNCIL FOR THE SETTING-UP OF AN ADMINISTRATIVE TRIBUNAL;
( 3 ) ADMINISTRATION : SUMMARY BASED ON ACTUAL DOCUMENTATION REGARDING THE INTRODUCTION OF "MANAGEMENT BY OBJECTIVES" IN NATIONAL ADMINISTRATION; DISCUSSION OF THE ADVANTAGES AND DIFFICULTIES WHICH MIGHT ARISE FROM THE INTRODUCTION OF THE SYSTEM AT THE COMMISSION;
( 4 ) RELATIONS BETWEEN COMMUNITY INSTITUTIONS : SUMMARY OF THE BUDGETARY POWERS OF THE EUROPEAN PARLIAMENT; DISCUSSION OF PARTICULAR INTERINSTITUTIONAL RELATIONS;
SUBJECT AREA NO 2
( 5 ) IRON AND STEEL : SUMMARY AND DISCUSSION, BASED ON A TEXT, OF THE PRESENT PROBLEMS OF THE EUROPEAN IRON AND STEEL INDUSTRY;
( 6 ) AGRICULTURE : SUMMARY AND DISCUSSION, BASED ON A TEXT, OF FRENCH AGRICULTURE IN 1965;
( 7 ) ECONOMY : SUMMARY AND DISCUSSION, BASED ON AN EXCERPT FROM A MEMORANDUM FROM THE COMMISSION TO THE COUNCIL, ON THE ECONOMIC AND SOCIAL SITUATION WITHIN THE COMMUNITY;
( 8 ) PUBLIC FINANCE : SUMMARY AND DISCUSSION, BASED ON A TEXT, OF THE IMPLEMENTATION OF COMMUNITY BUDGETS;
SUBJECT AREA NO 3
( 9 ) DEVELOPMENT AID : SUMMARY AND DISCUSSION BASED ON STATISTICS; DISCUSSION OF FOOD AID;
( 10 ) REGIONAL DEVELOPMENT : SUMMARY AND DISCUSSION BASED ON PROVISIONS GOVERNING THE EUROPEAN FUND FOR REGIONAL DEVELOPMENT;
( 11 ) INTERNAL MARKET : SUMMARY AND DISCUSSION BASED ON A TEXT ENTITLED "VERS UN GRAND MARCHE CONTINENTAL" ( MOVING TOWARDS ONE CONTINENTAL MARKET ); DIFFERENCES BETWEEN A FREE-TRADE AREA, A CUSTOMS UNION AND A TRUE INTERNAL MARKET; OBSTACLES TO ACHIEVING SUCH A MARKET;
( 12 ) EUROPEAN INTEGRATION : SUMMARY AND DISCUSSION BASED ON EXTRACTS FROM A SPEECH BY WINSTON CHURCHILL OF 19 SEPTEMBER 1946; THE RELEVANCE OF HIS MESSAGE IN VIEW OF SUBSEQUENT DEVELOPMENTS .
22 IT SHOULD BE EMPHASIZED FIRST OF ALL THAT A SELECTION BOARD MUST BE ALLOWED A BROAD MARGIN OF DISCRETION AS REGARDS THE DETAILS OF THE TESTS TO BE HELD IN A COMPETITION . IT IS NOT FOR THE COURT TO DECLARE THE TEST PAPERS UNLAWFUL UNLESS THEY EXCEED THE LIMITS SET OUT IN THE NOTICE OF COMPETITION OR CONFLICT WITH THE PURPOSE OF THE TESTS OR OF THE COMPETITION .
23 AS REGARDS THE FIRST OF THOSE LIMITS, IT SHOULD BE OBSERVED THAT ALL THE SUBJECTS CHOSEN BY THE SELECTION BOARD ENTAILED, IN ACCORDANCE WITH THE NOTICE OF COMPETITION, THE PREPARATION OF A SUMMARY OF A CASE STUDY ADAPTED TO THE SUBJECT IN QUESTION AND THE SPECIFIC QUESTIONS ASKED . MOREOVER, THOSE QUESTIONS WERE, AS A RULE, FORMULATED BROADLY ENOUGH TO GIVE CANDIDATES THE OPPORTUNITY OF DISPLAYING THEIR GENERAL KNOWLEDGE AND THEIR JUDGMENT . CONSIDERATION OF THE SUBJECTS CHOSEN DOES NOT THEREFORE SUGGEST THAT THEY EXCEEDED THE LIMITS SET OUT IN THE NOTICE OF COMPETITION .
24 AS FAR AS THE AIM OF THE COMPETITION IS CONCERNED, IT SHOULD BE RECALLED THAT IT WAS TO ESTABLISH A RESERVE OF GRADE A OFFICIALS CAPABLE OF PERFORMING FUNCTIONS CORRESPONDING TO THAT GRADE IN ANY OF THE DEPARTMENTS OF THE COMMISSION . ALTHOUGH IT WAS NOT A RECRUITMENT PROCEDURE WITHIN THE MEANING OF ARTICLE 27 OF THE STAFF REGULATIONS, THE COMPETITION WAS INTENDED TO HELP TO ENSURE THAT THE COMMISSION WAS STAFFED BY OFFICIALS OF THE HIGHEST STANDARDS OF ABILITY AND EFFICIENCY . THOSE CONSIDERATIONS AND THE LIMITED NUMBER OF POSTS AVAILABLE IN RELATION TO THE NUMBER OF CANDIDATES JUSTIFIED THE ARRANGEMENT OF THE TESTS IN A WAY WHICH ALLOWED A RIGOROUS SELECTION .
25 SINCE ALL THE CANDIDATES HAD BEEN EMPLOYED BY THE COMMUNITIES FOR A LONG TIME, THE SELECTION BOARD WAS ENTITLED TO EXPECT THOSE CANDIDATES TO HAVE A FAIRLY WIDE GENERAL KNOWLEDGE OF THE WAY IN WHICH THE COMMUNITIES WORK AND OF THE POLICIES WHICH THEY PURSUE . THE SELECTION BOARD CANNOT THEREFORE BE CRITICIZED FOR NOT CHOOSING A SINGLE, QUITE GENERAL SUBJECT BUT A NUMBER OF WIDELY DIFFERENT SUBJECTS WHICH WERE NONE THE LESS ALL RELATED TO THE WORK OF THE COMMUNITIES . THAT CHOICE WAS ALL THE MORE JUSTIFIED BY THE FACT THAT CANDIDATES WHO PASSED THE COMPETITION WOULD BE REQUIRED TO TAKE PART IN THAT WORK WHEN OCCUPYING THE POSTS TO BE FILLED . CONSIDERATION OF THE SUBJECTS CHOSEN DOES NOT SUPPORT THE CONCLUSION THAT IT WAS IMPOSSIBLE FOR A CANDIDATE HAVING THE GENERAL KNOWLEDGE MENTIONED ABOVE TO WRITE A SATISFACTORY PAPER ON EACH OF THE SUBJECTS, ON THE BASIS OF THE QUESTIONS SET AND THE RELEVANT FILE, IF HE DID NOT ALREADY HAVE SPECIALIZED KNOWLEDGE OF THE FIELDS CONCERNED .
26 ADMITTEDLY, IN SOME CASES THE CHOICE OF SUBJECTS CONNECTED WITH THE WORK OF THE COMMUNITIES MAY HAVE PLACED AT AN ADVANTAGE SOME CANDIDATES WHO, OWING TO THEIR PREVIOUS WORK, WERE FAMILIAR WITH THE SPECIFIC ACTIVITIES IN QUESTION, ALTHOUGH THE SELECTION BOARD DID ATTEMPT TO LIMIT THAT RISK BY DRAWING THE SUBJECTS AT RANDOM . NEVERTHELESS, IT SHOULD BE POINTED OUT THAT IT WAS THE DUTY OF THE SELECTION BOARD TO ASSESS THE PAPERS NOT BY REFERENCE TO THE SPECIFIC KNOWLEDGE DEMONSTRATED BUT ON THE BASIS OF THE CRITERIA SET OUT IN THE NOTICE OF COMPETITION, NAMELY THE CANDIDATES' GENERAL KNOWLEDGE AND JUDGMENT .
27 MOREOVER, THE CHOICE OF SIX DIFFERENT SUBJECTS GAVE EACH OF THE CANDIDATES THE OPPORTUNITY OF FINDING THE TOPIC WHICH INTERESTED HIM MOST . IT SEEMS TO THE COURT THAT, THROUGH THE ARRANGEMENTS ADOPTED FOR THE HOLDING OF THE WRITTEN TEST, THE SELECTION BOARD LIMITED THE RISK OF UNFAIRNESS TO THAT GENERALLY INHERENT IN ANY EXAMINATION .
28 IT FOLLOWS FROM ALL THOSE CONSIDERATIONS THAT, IN CHOOSING THE SUBJECTS FOR THE WRITTEN PAPERS AND IN ADOPTING THE ARRANGEMENTS FOR THE HOLDING OF THAT TEST, THE SELECTION BOARD DID NOT EXCEED THE LIMITS OF ITS DISCRETION . THIS SUBMISSION MUST THEREFORE BE REJECTED AS UNFOUNDED .
LACK OF TRANSPARENCY, ESPECIALLY IN THE EVALUATION OF THE PERSONAL FILES
29 THE APPLICANT IN CASE 64/86 CLAIMS THAT THE METHOD LAID DOWN IN THE COMPETITION NOTICE AND USED BY THE SELECTION BOARD, NAMELY AN OVERALL ASSESSMENT, FAILED TO GIVE THE SELECTION PROCEDURE THE NECESSARY TRANSPARENCY . IN PARTICULAR, HE POINTS OUT THAT THE CANDIDATES' PERSONAL FILES, ON WHICH THE SELECTION BOARD WAS TO BASE PART OF ITS ASSESSMENT, CONTAIN CERTAIN SUBJECTIVE ELEMENTS . IN ORDER TO ACHIEVE GREATER OBJECTIVITY, THE SELECTION BOARD SHOULD HAVE CONDUCTED INTERVIEWS, WHICH ARE OPTIONAL UNDER THE NOTICE OF COMPETITION, WITH A REPRESENTATIVE OF THE CANDIDATE' S DIRECTORATE-GENERAL AND WITH THE CANDIDATE HIMSELF . INTERVIEWING THE CANDIDATE IS, MOREOVER, THE ONLY MEANS OF ENSURING THAT HE HAS THE LINGUISTIC KNOWLEDGE REQUIRED BY THE NOTICE OF COMPETITION .
30 AT THE REQUEST OF THE COURT, THE COMMISSION LAID BEFORE IT PART OF THE SELECTION BOARD' S FILE, TOGETHER WITH THE MINUTES OF ITS PROCEEDINGS . THOSE DOCUMENTS SHOW INTER ALIA THE CRITERIA APPLIED IN APPRAISING THE CANDIDATES' PERSONAL FILES, IN MARKING THE WRITTEN PAPERS AND IN REACHING AN OVERALL ASSESSMENT; THEY ALSO SHOW THE APPRAISAL ( IN FIGURES ) AND THE MARKS AWARDED TO EACH CANDIDATE . IN THOSE CIRCUMSTANCES, THE GENERAL COMPLAINT OF LACK OF TRANSPARENCY CEASES TO BE A SEPARATE HEAD OF ARGUMENT AND MERGES INTO THE COMPLAINT CONCERNING THE STATEMENT OF REASONS FOR THE CONTESTED DECISIONS .
31 AS REGARDS THE SPECIFIC COMPLAINT CONCERNING THE APPRAISAL OF THE CANDIDATES' PERSONAL FILES, IT SHOULD BE NOTED THAT THOSE FILES CONTAIN THE CANDIDATES' APPLICATIONS AND ATTACHED DOCUMENTS, SUBMITTED BY THE CANDIDATES THEMSELVES, TOGETHER WITH THEIR PERIODICAL REPORTS CONTAINING THE ASSESSMENTS OF THEM BY THEIR IMMEDIATE SUPERIORS AND, IN SOME CASES, THEIR OBSERVATIONS ON THOSE ASSESSMENTS . FURTHERMORE, IT APPEARS FROM THE MINUTES OF THE MEETINGS OF THE SELECTION BOARD THAT BEFORE APPRAISING THE CANDIDATES' PERSONAL FILES IT DEFINED THE POINTS WHICH MIGHT BE REGARDED AS CHARACTERIZING A "GOOD" FILE AND THE PARTICULAR POINTS WHICH MIGHT PUT THE FILE INTO A HIGHER CATEGORY ALTOGETHER, POSSIBLY JUSTIFYING THE ASSESSMENT "VERY GOOD" OR EVEN "EXCELLENT ".
32 IT IS THUS CLEAR THAT THE CANDIDATES WERE ABLE TO PUT ON THEIR FILES ALL THE INFORMATION WHICH THEY CONSIDERED RELEVANT AND, SECONDLY, THAT THE SELECTION BOARD ENDEAVOURED TO ENSURE THAT THE EVALUATION WHICH IT HAD TO CARRY OUT ON THE BASIS OF THOSE FILES WAS AS OBJECTIVE AS POSSIBLE . IN THOSE CIRCUMSTANCES, THE SELECTION BOARD CANNOT BE CRITICIZED FOR DECIDING, IN THE EXERCISE OF THE DISCRETION EXPRESSLY CONFERRED ON IT BY THE NOTICE OF COMPETITION, THAT IT DID NOT NEED TO HOLD INTERVIEWS .
33 AS FAR AS THE CANDIDATES' KNOWLEDGE OF LANGUAGES IS CONCERNED, IT SHOULD BE OBSERVED THAT THE KNOWLEDGE REQUIRED BY THE NOTICE OF COMPETITION WAS THE SAME AS THAT GENERALLY REQUIRED OF ALL OFFICIALS BY ARTICLE 28 ( F ) OF THE STAFF REGULATIONS . ALTHOUGH IT IS TRUE THAT THOSE REQUIREMENTS HAD TO BE CONSIDERED IN RELATION TO THE DUTIES ATTACHING TO A HIGHER GRADE THAN THE CANDIDATES' GRADE, THE SELECTION BOARD CANNOT BE CRITICIZED FOR DECIDING THAT A SPECIFIC INTERVIEW FOR THAT PURPOSE WAS UNNECESSARY IN AN INTERNAL COMPETITION OPEN ONLY TO OFFICIALS HAVING CONSIDERABLE SENIORITY AND INVOLVING WRITTEN AND ORAL TESTS .
34 IT FOLLOWS THAT THIS SUBMISSION MUST BE REJECTED .
MANIFEST ERROR
35 THE APPLICANTS ARGUE THAT, IN VIEW OF THEIR EXCELLENT PERSONAL FILES, ESPECIALLY THEIR ACADEMIC QUALIFICATIONS AND THE DUTIES THEY PERFORM, THE DECISIONS TAKEN BY THE SELECTION BOARD IN THEIR REGARD MUST NECESSARILY BE BASED ON A MANIFEST ERROR OF ASSESSMENT .
36 THE COMMISSION OBSERVES THAT THE SELECTION BOARD' S DECISIONS ARE BASED ON A COMPARATIVE EXAMINATION OF THE CANDIDATES' PERSONAL FILES AND THE RESULTS OF THE WRITTEN PAPER AND THAT SELECTION WAS NECESSARILY RIGOROUS ON ACCOUNT OF THE LARGE NUMBER OF CANDIDATES AND THE LIMITED NUMBER OF POSTS TO BE FILLED .
37 IT SHOULD BE RECALLED THAT, ACCORDING TO THE WORDING OF THE NOTICE OF COMPETITION ITSELF, THE EVALUATION OF CANDIDATES HAD TO BE THE RESULT OF AN OVERALL ASSESSMENT AND THAT A GOOD PERSONAL FILE MIGHT THEREFORE BE COUNTERBALANCED BY THE RESULT OF THE WRITTEN PAPER . CONSEQUENTLY, IT CANNOT BE CONCLUDED FROM THE FACT THAT A CANDIDATE HAVING A GOOD PERSONAL FILE WAS NOT ADMITTED THAT A MANIFEST ERROR HAD BEEN MADE .
38 THE DOCUMENTS PROVIDED BY THE COMMISSION SHOW, MOREOVER, THAT ALL THE APPLICANTS HAD PERSONAL FILES CONSIDERED "GOOD" BY THE SELECTION BOARD . HOWEVER, ACCORDING TO THE CRITERIA ADOPTED BY THE SELECTION BOARD, ONLY CANDIDATES WHOSE FILES WERE JUDGED "EXCELLENT" WERE ADMITTED TO THE TRAINING STAGE, IRRESPECTIVE OF THE MARK AWARDED FOR THEIR WRITTEN PAPERS . IT IS ALSO CLEAR THAT THE MARKS AWARDED FOR THE APPLICANTS' WRITTEN PAPERS WERE DISTINCTLY LOWER THAN THE MARKS REQUIRED OF CANDIDATES HAVING A "GOOD" OR EVEN "VERY GOOD" FILE . IN THOSE CIRCUMSTANCES, THE POINTS MADE BY THE APPLICANTS DO NOT SUPPORT THE CONCLUSION THAT MANIFEST ERRORS OF ASSESSMENT WERE MADE .
39 IT FOLLOWS THAT THIS SUBMISSION MUST ALSO BE REJECTED .
MISUSE OF POWERS
40 THE APPLICANT IN CASE 78/86 CLAIMS THAT THE DECISION OF THE SELECTION BOARD IS VITIATED BY A MISUSE OF POWERS IN HIS CASE INASMUCH AS ONE OF HIS COLLEAGUES, IDENTIFIED BY NAME, WHO, ACCORDING TO THE APPLICANT, WAS KNOWN NOT TO SATISFY THE LINGUISTIC REQUIREMENTS LAID DOWN IN THE NOTICE OF COMPETITION, WAS ADMITTED TO THE TRAINING STAGE .
41 AS STATED ABOVE, THE SELECTION BOARD CANNOT BE CRITICIZED FOR NOT PROVIDING FOR A SPECIFIC TEST IN THIS REGARD . ON THE OTHER HAND, IT WAS INCUMBENT ON THE SELECTION BOARD, WHEN ASSESSING THE WRITTEN PAPER AND THE ORAL TEST ENVISAGED, TO MAKE SURE THAT THE CANDIDATES HAD THE NECESSARY LINGUISTIC KNOWLEDGE FOR THE POSTS WHICH THE COMPETITION WAS INTENDED TO FILL . AS THE COURT HELD IN ITS JUDGMENT OF 27 MARCH 1985 IN CASE 12/84 ( KYPREOS V COUNCIL (( 1985 )) ECR 1005 ), IT IS NOT, HOWEVER, FOR THE COURT TO REVIEW THE ASSESSMENTS MADE IN COMPLETE INDEPENDENCE BY THE SELECTION BOARD ON THAT SUBJECT . IN ANY EVENT, THE CANDIDATE NAMED BY THE APPLICANT WAS NOT INCLUDED BY THE SELECTION BOARD ON THE LIST OF SUITABLE CANDIDATES .
42 THIS SUBMISSION MUST THEREFORE ALSO BE DISMISSED .
DISCRIMINATION ON GROUNDS OF NATIONALITY
43 THE APPLICANTS IN CASES 64, 72, 73 AND 78/86, WHO HAVE ITALIAN NATIONALITY, MAINTAIN THAT THE SELECTION BOARD' S DECISIONS ARE BASED ON DISCRIMINATION ON GROUNDS OF NATIONALITY, SINCE ONLY 9 OF THE 87 CANDIDATES ADMITTED TO THE TRAINING STAGE WERE OF ITALIAN NATIONALITY, WHEREAS 19 WERE FRENCH . SIMILARILY, THE AVERAGE MARK FOR PAPERS WRITTEN IN ITALIAN WAS MUCH LOWER THAN THE AVERAGE MARK FOR PAPERS WRITTEN IN ENGLISH .
44 IN THIS REGARD, IT IS SUFFICIENT TO POINT OUT THAT THESE APPLICANTS DO NOT ADDUCE ANY SPECIFIC EVIDENCE TO SUBSTANTIATE THEIR ALLEGATION OF DISCRIMINATION AND THAT THE EXISTENCE OF DISCRIMINATION CANNOT BE INFERRED FROM A BREAKDOWN OF CANDIDATES' NATIONALITIES OR THE LANGUAGES USED FOR THE WRITTEN PAPER .
45 IT FOLLOWS THAT THIS SUBMISSION MUST ALSO BE REJECTED .
NO STATEMENT OF REASONS
46 THE APPLICANTS CLAIM THAT THE COMMUNICATION OF 12 DECEMBER 1985 INFORMING THEM OF THE SELECTION BOARD' S DECISION CONTAINED NO STATEMENT OF REASONS AND THAT THE SUBSEQUENT EXPLANATORY LETTER OF 14 FEBRUARY 1986 DID NOT STATE ANY REASONS RELATING TO THE INDIVIDUAL CONCERNED .
47 THE COMMISSION CONTENDS THAT, ACCORDING TO THE NOTICE OF COMPETITION, THE SELECTION BOARD WAS TO MAKE AN OVERALL ASSESSMENT OF EACH CANDIDATE AND THAT IT WAS THEREFORE UNABLE TO PROVIDE A FULLER STATEMENT OF REASONS THAN THE ONE CONTAINED IN THE EXPLANATORY LETTER OF 14 FEBRUARY 1986 .
48 IT SHOULD BE RECALLED FIRST OF ALL THAT THE COURT HAS CONSISTENTLY HELD THAT THE OBLIGATION TO STATE THE REASONS FOR AN ADVERSE DECISION IS MEANT TO ENABLE THE COURT TO REVIEW THE LEGALITY OF THE DECISION AND, SECONDLY, TO PROVIDE THE PERSON CONCERNED WITH THE INFORMATION NEEDED TO DETERMINE WHETHER OR NOT THE DECISION IS WELL FOUNDED . THE DECISION OF A SELECTION BOARD NOT TO ADMIT A CANDIDATE TO THE NEXT STAGE OF A COMPETITION MAY THEREFORE BE SAID TO GIVE ADEQUATE REASONS ONLY IF IT EXPLAINS TO THE PERSON CONCERNED THE REASONS WHY HE DID NOT SATISFY THE SELECTION CRITERIA .
49 THE DIFFICULTIES INHERENT IN ANY COMPARATIVE EXAMINATION CANNOT EXEMPT THE SELECTION BOARD FROM THE OBLIGATION TO PROVIDE SUCH A STATEMENT OF REASONS . LIKEWISE, THE NEED TO MAKE AN OVERALL ASSESSMENT OF THE CANDIDATES DOES NOT PRECLUDE A STATEMENT OF REASONS WHICH MEETS THE CRITERIA LAID DOWN BY THE COURT . THE MINUTES OF THE MEETINGS OF THE SELECTION BOARD FOR THE COMPETITION IN QUESTION, SUBMITTED BY THE COMMISSION AT THE REQUEST OF THE COURT, DEMONSTRATE THAT THE SELECTION BOARD ADOPTED SPECIFIC AND WELL-DEFINED CRITERIA FOR THE SELECTION AND THAT, IN THE CASE OF EACH CANDIDATE, IT GAVE MARKS FOR ITS APPRAISAL OF THE PERSONAL FILE AND THE RESULT OF THE WRITTEN PAPER . THAT MODUS OPERANDI WOULD HAVE MADE IT POSSIBLE TO GIVE REASONS SETTING OUT THOSE CRITERIA AND THE MARKS OBTAINED BY THE CANDIDATE IN QUESTION .
50 IN ITS JUDGMENT OF 9 JUNE 1983 IN CASE 225/82 ( VERZYCK V COMMISSION (( 1983 )) ECR 1991 ) THE COURT DID IN FACT ACCEPT THAT THE SELECTION BOARD FOR A COMPETITION WITH A LARGE NUMBER OF PARTICIPANTS MAY INITIALLY COMMUNICATE TO CANDIDATES MERELY THE CRITERIA FOR AND THE RESULTS OF THE SELECTION AND ONLY LATER PROVIDE INDIVIDUAL EXPLANATIONS TO THOSE CANDIDATES WHO EXPRESSLY REQUEST THEM . HOWEVER, EVEN THE EXPLANATORY LETTER ADDRESSED TO THE APPLICANTS AMONGST OTHERS IS CONFINED TO OUTLINING THE CRITERIA LAID DOWN IN THE NOTICE OF COMPETITION AND STATES NEITHER THE SPECIFIC, WELL-DEFINED CRITERIA ADOPTED BY THE SELECTION BOARD NOR THE FINAL MARKS OBTAINED BY THE APPLICANTS .
51 THE SELECTION BOARD HAS NOT THEREFORE GIVEN ADEQUATE REASONS FOR ITS DECISIONS NOT TO ADMIT THE APPLICANTS TO THE TRAINING STAGE . THE SUBMISSION CONCERNING THE STATEMENT OF REASONS FOR THOSE DECISIONS IS ACCORDINGLY WELL FOUNDED .
52 HOWEVER, AS THE COURT HAS RECOGNIZED IN PREVIOUS JUDGMENTS ( SEE THE JUDGMENT OF 30 MAY 1984 IN CASE 111/83 PICCIOLO V PARLIAMENT (( 1984 )) ECR 2323 AND THE JUDGMENT OF 27 MARCH 1985 IN CASE 12/84 KYPREOS V COUNCIL (( 1985 )) ECR 1005 ), AS A RESULT OF THE EXPLANATIONS GIVEN IN THE COURSE OF THE PROCEEDINGS, THE ARGUMENT THAT INSUFFICIENT REASONS WERE GIVEN MAY, IN EXCEPTIONAL CASES, LOSE ITS PURPOSE AND CEASE TO JUSTIFY THE ANNULMENT OF THE DECISION IN QUESTION .
53 IN THIS CASE, THE COMMISSION SUBMITTED IN THE COURSE OF THE PROCEEDINGS THE MINUTES OF THE MEETINGS OF THE SELECTION BOARD AND PART OF ITS FILE CONTAINING THE CRITERIA ADOPTED FOR APPRAISING THE CANDIDATES' PERSONAL FILES, FOR MARKING THE WRITTEN PAPERS AND FOR THE OVERALL ASSESSMENT, TOGETHER WITH THE FINAL MARKS OBTAINED BY EACH CANDIDATE WHO PARTICIPATED IN THAT STAGE OF THE COMPETITION . THOSE DOCUMENTS ALLOWED THE APPLICANTS TO ACQUAINT THEMSELVES WITH THE REASONS FOR THEIR EXCLUSION AND TO ENLARGE ON THEIR SUBMISSIONS IN THE ORAL PROCEDURE, PARTICULARLY THOSE CONCERNING THE PROCEDURE FOLLOWED BY THE SELECTION BOARD AND THE EXISTENCE OF ERRORS OF ASSESSMENT . THE SAME DOCUMENTS ALSO ENABLED THE COURT TO REVIEW THAT PROCEDURE AND ITS RESULT TO AN EXTENT CONSISTENT WITH THE BROAD DISCRETION ENJOYED BY ANY SELECTION BOARD WHEN MAKING VALUE JUDGMENTS . IN THOSE CIRCUMSTANCES, THE INSUFFICIENT STATEMENT OF THE REASONS FOR THE CONTESTED DECISIONS CAN NO LONGER BE VIEWED AS A BREACH OF AN ESSENTIAL PROCEDURAL REQUIREMENT THAT WOULD IN ITSELF JUSTIFY THE ANNULMENT OF THOSE DECISIONS .
54 CONSEQUENTLY, THE APPLICATIONS MUST BE DISMISSED IN THEIR ENTIRETY .
Decision on costs
COSTS
55 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS; HOWEVER UNDER ARTICLE 70 OF THOSE RULES, INSTITUTIONS ARE REQUIRED TO BEAR THEIR OWN COSTS IN PROCEEDINGS COMMENCED BY OFFICIALS OR OTHER SERVANTS OF THE COMMUNITIES .
56 NEVERTHELESS, IT MUST BE BORNE IN MIND THAT THE SUBMISSION CONCERNING THE INSUFFICIENCY OF THE REASONS GIVEN FOR THE DECISIONS LOST ITS PURPOSE ONLY IN THE COURSE OF THE PROCEEDINGS AND AS A RESULT OF THE
DOCUMENTS SUBMITTED BY THE COMMISSION AT THE REQUEST OF THE COURT . EVEN THOUGH THE APPLICANTS HAVE BEEN UNSUCCESSFUL IN ALL THEIR SUBMISSIONS, THEY SHOULD NOT BE BLAMED FOR HAVING BROUGHT ACTIONS BEFORE THE COURT FOR A REVIEW OF THE LEGALITY OF DECISIONS FOR WHICH SUFFICIENT REASONS WERE NOT GIVEN .
57 IN THOSE CIRCUMSTANCES, THE COURT CONSIDERS THAT ALL THE COSTS, INCLUDING THOSE INCURRED IN THE PROCEEDINGS FOR THE ADOPTION OF INTERIM MEASURES, SHOULD BE BORNE BY THE COMMISSION .
Operative part
ON THOSE GROUNDS,
THE COURT ( SECOND CHAMBER )
HEREBY :
( 1 ) DISMISSES THE APPLICATIONS;
( 2 ) ORDERS THE COMMISSION TO PAY THE COSTS, INCLUDING THOSE RELATING TO THE PROCEEDINGS FOR THE ADOPTION OF INTERIM MEASURES .