61982CJ0225_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 225/82
RUDY VERZYCK, AN ASSISTANT FINANCIAL CONTROLLER IN THE BELGIAN CIVIL SERVICE, RESIDING AT 365 STATIONSTRAAT, 8250 ICHTEGEM ( ERNEGEM ), BELGIUM, ASSISTED AND REPRESENTED BY GEORGES VANDERSANDEN, OF THE BRUSSELS BAR, WHOSE CHAMBERS ARE AT 38 KLAUWAERTS, 1050 BRUSSELS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF J . BIVER,
APPLICANT,
V
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY HENDRIK VAN LIER, A MEMBER OF ITS LEGAL DEPARTMENT, ACTING AS AGENT, ASSISTED BY ROBERT ANDERSEN, OF THE BRUSSELS BAR, WHOSE CHAMBERS ARE AT 214 AVENUE MONTJOIE, 1180 BRUSSELS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ORESTE MONTALTO, A MEMBER OF ITS LEGAL DEPARTMENT, JEAN MONNET BUILDING, KIRCHBERG, LUXEMBOURG,
DEFENDANT,
Subject of the case
APPLICATION FOR :
ANNULMENT OF THE DECISION OF THE COMMISSION OF 28 MAY 1982 NOT TO ADMIT THE APPLICANT TO THE WRITTEN TESTS FOR COMPETITION NO COM/A/325 ;
AN ORDER THAT ALL NECESSARY MEASURES BE ADOPTED BY THE COMMISSION FOR THE ENFORCEMENT OF THE COURT ' S JUDGMENT ;
AN ORDER THAT THE DEFENDANT PAY THE COSTS,
Grounds
1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 25 AUGUST 1982 MR VERZYCK BROUGHT AN ACTION AGAINST THE COMMISSION OF THE EUROPEAN COMMUNITIES FOR ANNULMENT OF THE DECISION OF THE HEAD OF THE PERSONNEL DEPARTMENT OF THE COMMISSION OF 28 MAY 1982 INFORMING HIM THAT THE SELECTION BOARD FOR COMPETITION NO COM/A/325 HAD DECIDED NOT TO ADMIT HIM TO THE WRITTEN TESTS FOR THAT COMPETITION AND ALSO FOR AN ORDER THAT ALL THE NECESSARY MEASURES SHOULD BE ADOPTED BY THE COMMISSION FOR THE ENFORCEMENT OF THE COURT ' S JUDGMENT .
2 THE COMPETITION IN QUESTION WAS AN OPEN COMPETITION BASED ON QUALIFICATIONS AND TESTS TO CONSTITUTE A RESERVE OF ADMINISTRATORS IN THE CAREER BRACKET COVERING GRADES 7 AND 6 OF CATEGORY A . THE NOTICE OF COMPETITION, WHICH WAS PUBLISHED IN THE OFFICIAL JOURNAL OF THE EUROPEAN COMMUNITIES OF 12 SEPTEMBER 1981, REQUIRED CANDIDATES TO HAVE COMPLETED A FULL UNIVERSITY COURSE, WITH DEGREE OR DIPLOMA, IN AN APPROPRIATE FIELD, TO HAVE HAD AT LEAST TWO YEARS '
EXPERIENCE SINCE GRADUATION AND TO HAVE A CERTAIN KNOWLEDGE OF LANGUAGES .
3 ON 30 NOVEMBER 1981 THE APPLICANT SUBMITTED AN APPLICATION TO TAKE PART IN THE COMPETITION, FOR WHICH THE TOTAL NUMBER OF CANDIDATES WAS 2 264, AND SELECTED THE OPTION ' ' PUBLIC FINANCE, ACCOUNTING AND AUDITING ' ' . THE FILE ON MR VERZYCK ' S APPLICATION SHOWS THAT HE PERFORMED THE DUTIES OF ASSISTANT FINANCIAL CONTROLLER IN THE BELGIAN CIVIL SERVICE, HAVING HELD SINCE 1978 VARIOUS RESPONSIBLE POSTS IN A NUMBER OF MINISTRIES, HAD A DEGREE IN LAW AND A DEGREE IN ECONOMICS AND HAD THE KNOWLEDGE OF LANGUAGES PRESCRIBED BY THE COMPETITION NOTICE .
4 NEVERTHELESS THE HEAD OF THE RECRUITMENT DIVISION NOTIFIED THE APPLICANT BY LETTER OF 1 MARCH 1982 THAT ALTHOUGH THE SELECTION BOARD INITIALLY CONSIDERED THAT HE FULFILLED THE REQUIREMENTS LAID DOWN FOR ADMISSION TO THE COMPETITION, IT HAD THEN CARRIED OUT ' ' AN EXAMINATION . . . OF THE QUALIFICATIONS OF THE CANDIDATES ADMITTED TO THE COMPETITION, BASED IN PARTICULAR ON DEGREES AND DIPLOMAS AND PRACTICAL EXPERIENCE RELATING TO THE FIELD COVERED BY THE COMPETITION, WITH A VIEW TO IMPROVING THE GEOGRAPHICAL SPREAD OF NATIONALS OF THE VARIOUS MEMBER STATES ON THE COMMISSION ' S STAFF ' '
AND, FOLLOWING THAT EXAMINATION, THE SELECTION BOARD HAD BEEN UNABLE TO ACCEPT HIS APPLICATION .
5 ON 5 MARCH 1982 THE APPLICANT EXPRESSED HIS SURPRISE TO THE RECRUITMENT DIVISION AT THAT DECISION AND STATED THAT IT WAS IMPOSSIBLE TO DEDUCE FROM THE WORDING OF THE DECISION THE REASONS ON WHICH IT WAS BASED AND HE ASKED IN ADDITION FOR INFORMATION AS TO THE QUALIFICATIONS AND THE DEGREES AND DIPLOMAS OF OTHER CANDIDATES .
6 ON 26 MARCH 1982 THE COMMISSION INFORMED THE APPLICANT THAT THE SELECTION BOARD WOULD RE-EXAMINE HIS QUALIFICATIONS WITH A VIEW TO ADMITTING HIM TO THE TESTS .
7 ON 28 MAY 1982 THE HEAD OF THE PERSONNEL DEPARTMENT OF THE COMMISSION INFORMED THE APPLICANT THAT, AFTER A RE-EXAMINATION OF THE FILE ON HIS APPLICATION, HE HAD NOT BEEN ADMITTED TO THE WRITTEN TESTS . IT IS AGAINST THAT DECISION THAT THESE PROCEEDINGS HAVE BEEN BROUGHT .
THE CLAIM FOR ANNULMENT OF THE DECISION OF 28 MAY 1982
ADMISSIBILITY
8 THE COMMISSION QUESTIONS THE ADMISSIBILITY OF THAT CLAIM AND IN THAT REGARD RELIES UPON THE JUDGMENT OF THE COURT . IT POINTS OUT, ON THE ONE HAND, THAT THE SELECTION BOARD ' S DECISION NOT TO ADMIT THE APPLICANT TO THE WRITTEN TESTS FOR THE COMPETITION WAS NOTIFIED TO HIM BY LETTER OF 1 MARCH 1982, OF WHICH MR VERZYCK ACKNOWLEDGED RECEIPT ON 5 MARCH, AND, ON THE OTHER, THAT THE DECISION OF 28 MAY 1982 CONTESTED BY MR VERZYCK IS IN REALITY OF A PURELY CONFIRMATORY NATURE . CONSEQUENTLY, SINCE THE APPLICATION WAS LODGED ON 25 AUGUST 1982, IT IS OUT OF TIME AND INADMISSIBLE .
9 IN FACT, AS THE COMMISSION ITSELF CONCEDES, THE APPLICANT WAS INFORMED BY LETTER OF 26 MARCH 1982 THAT THE SELECTION BOARD WOULD RE-EXAMINE HIS DEGREES AND CERTIFICATES WITH A VIEW TO ADMITTING HIM TO THE WRITTEN TESTS AND THAT IT WOULD NOTIFY HIM OF ITS NEW DECISION . FURTHERMORE THE FILE SHOWS THAT ON THAT DATE THE SELECTION BOARD HAD DECIDED TO CARRY OUT A COMPLETE RE-EXAMINATION OF MORE THAN 800 APPLICATIONS .
10 CONSEQUENTLY, IT IS CLEAR TO THE COURT THAT THE DECISION OF 28 MAY 1982, WHICH WAS ADOPTED AFTER A COMPLETE RE-EXAMINATION OF THE APPLICANT ' S SITUATION AND OF THAT OF MANY OTHER CANDIDATES, TOTALLY SUPERSEDED THE DECISION OF 1 MARCH 1982 AND CANNOT BE REGARDED AS PURELY CONFIRMATORY .
11 THE DOUBTS RAISED BY THE COMMISSION MUST THEREFORE BE DISREGARDED .
SUBSTANCE OF THE CASE
12 AS REGARDS THE SUBSTANCE OF THE CASE, THE APPLICANT MAKES THREE SUBMISSIONS RELATING RESPECTIVELY TO A FAILURE TO STATE THE REASONS ON WHICH THE CONTESTED DECISION WAS BASED, A BREACH OF THE PRINCIPLE OF EQUALITY AND A MANIFEST ERROR VITIATING THE DECISION OF 28 MAY 1982 .
THE ABSENCE OR INADEQUACY OF THE STATEMENT OF THE REASONS ON WHICH THE DECISION WAS BASED
13 THE CONTESTED DECISION IS WORDED AS FOLLOWS : ' ' AS I MENTIONED IN MY LETTER AT THE END OF MARCH 1982 THE SELECTION BOARD HAS RE-EXAMINED THE FILE ON YOUR APPLICATION . I REGRET TO INFORM YOU THAT, AFTER COMPARING THE CANDIDATES '
DEGREES AND DIPLOMAS, THE SELECTION BOARD HAS DECIDED NOT TO ADMIT YOU TO THE WRITTEN TESTS ' ' .
14 IN ORDER TO JUSTIFY THE CONTESTED DECISION THE COMMISSION RELIES IN THE FIRST PLACE UPON THE NEED TO OBSERVE THE PRINCIPLE OF SECRECY REGARDING THE PROCEEDINGS OF SELECTION BOARDS, BUT IT MUST BE STATED IN REPLY TO THAT ARGUMENT, AS THE COURT HELD IN ITS JUDGMENT OF 28 FEBRUARY 1980 IN CASE 89/79 BONU V COUNCIL OF THE EUROPEAN COMMUNITIES ( 1980 ) ECR 553, THAT ALTHOUGH OBSERVANCE OF THAT PRINCIPLE STANDS IN THE WAY OF DISCLOSURE BOTH OF THE VIEWS TAKEN BY THE INDIVIDUAL MEMBERS OF SELECTION BOARDS AND OF ANY INFORMATION RELATING TO PERSONAL OR COMPARATIVE ASSESSMENTS OF CANDIDATES, IT 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 SUMMARY FORM .
15 IN THE SECOND PLACE, AS THE COURT HELD IN ITS JUDGMENT OF 26 NOVEMBER 1981 IN CASE 195/80 MICHEL V EUROPEAN PARLIAMENT ( 1981 ) ECR 2861, 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 .
16 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 .
17 THE TEXT OF THE CONTESTED DECISION SET OUT ABOVE SHOWS THAT IT DID NOT INFORM THE APPLICANT OF EVEN THE GENERAL CRITERIA ON WHICH THE QUALIFICATIONS OF THE CANDIDATES WERE APPRAISED AND THE SELECTIONS MADE AND DOES NOT CONTAIN ANY STATEMENT, EVEN IN SUMMARY FORM, OF THE REASONS ON WHICH THE DECISION RELATING TO HIM WAS BASED . SUCH A DECISION CANNOT THEREFORE BE REGARDED AS STATING THE REASONS ON WHICH IT IS BASED AND THE ARGUMENTS RELIED UPON BY THE COMMISSION IN ITS DEFENCE, BASED ON THE LARGE NUMBER OF APPLICANTS, THE PHYSICAL IMPOSSIBILITY OF PROVIDING A MORE PRECISE STATEMENT OF THE REASONS FOR THE REFUSALS TO ADMIT CANDIDATES TO THE COMPETITION AND THE FACT THAT MR VERZYCK DID NOT EXPRESSLY REQUEST DISCLOSURE OF THE CRITERIA OF ASSESSMENT ADOPTED BY THE SELECTION BOARD, CANNOT BE ACCEPTED .
18 IT FOLLOWS FROM THE FOREGOING CONSIDERATIONS THAT JUDGMENT SHOULD BE GIVEN IN FAVOUR OF THE APPLICANT AND THAT IT IS UNNECESSARY TO CONSIDER THE OTHER SUBMISSIONS MADE BY HIM .
THE CLAIM THAT THE COURT SHOULD ORDER THE COMMISSION TO ADOPT THE MEASURES NECESSARY FOR THE ENFORCEMENT OF THIS JUDGMENT
19 THE COURT CANNOT, WITHOUT ENCROACHING UPON THE PREROGATIVES OF THE ADMINISTRATION, ORDER A COMMUNITY INSTITUTION TO ADOPT THE MEASURES NECESSARY FOR THE ENFORCEMENT OF A JUDGMENT BY WHICH A DECISION REFUSING TO ADMIT A CANDIDATE TO A COMPETITION IS ANNULLED .
20 CONSEQUENTLY THAT CLAIM IS INADMISSIBLE .
Decision on costs
COSTS
21 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY MUST BE ORDERED TO PAY THE COSTS . SINCE THE COMMISSION HAS BEEN SUBSTANTIALLY UNSUCCESSFUL IN ITS SUBMISSIONS IT MUST BE ORDERED TO PAY THE COSTS .
Operative part
ON THOSE GROUNDS,
THE COURT ( THIRD CHAMBER )
HEREBY :
1 . ANNULS THE DECISION DATED 28 MAY 1982 BY WHICH THE COMMISSION INFORMED MR VERZYCK THAT THE SELECTION BOARD IN OPEN COMPETITION NO COM/A/325 REFUSED TO ADMIT HIM TO THE TESTS IN THE SAID COMPETITION ;
2.DISMISSES THE REMAINDER OF THE APPLICATION :
3.ORDERS THE COMMISSION TO PAY THE COSTS .