Judgment of the Court (Second Chamber) of 30 November 1978. - Enrico M. Salerno, Xavier Authié and Giuseppe Massangioli v Commission of the European Communities. - Joined cases 4, 19 and 28/78.



European Court reports 1978 Page 02403

Greek special edition Page 00771

Portuguese special edition Page 00853



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

1 . OFFICIALS - APPEAL - DECISION OF A SELECTION BOARD FOR A COMPETITION - PRIOR COMPLAINT - NOT A NECESSARY CONDITION - SUBMISSION - CONSEQUENCES - RIGHT OF APPEAL TO THE COURT UNAFFECTED

( STAFF REGULATIONS , ARTS . 90 AND 91 )

2 . OFFICIALS - RECRUITMENT - COMPETITION - SELECTION BOARD - ASSISTANCE OF EXAMINERS IN AN ADVISORY CAPACITY - CONDITIONS

( STAFF REGULATIONS , ANNEX III , SECOND PARAGRAPH OF ARTICLE 3 )

3 . OFFICIALS - RECRUITMENT - NOTICE OF COMPETITION - CONDITIONS FOR ADMISSION - GENERAL TERMS - SELECTION BOARD - DECISION - REJECTION OF APPLICATION - OBLIGATION TO STATE REASONS - SCOPE

( STAFF REGULATIONS , ANNEX III , ARTS . 1 AND 5 )

Summary

1 . REFERENCE TO THE APPOINTING AUTHORITY OF A COMPLAINT THROUGH OFFICIAL CHANNELS AGAINST THE DECISION OF A SELECTION BOARD FOR A COMPETITON LIES OUTSIDE THE SCOPE OF THE PROVISIONS OF THE STAFF REGULATIONS IN VIEW OF THE FACT THAT THE APPOINTING AUTHORITY HAS NO POWER TO ANNUL OR AMEND THE DECISIONS OF A SELECTION BOARD . IF , NEVERTHELESS , THE PERSON CONCERNED SENDS THE APPOINTING AUTHORITY A COMPLAINT THROUGH OFFICIAL CHANNELS , SUCH A STEP , WHATEVER ITS LEGAL SIGNIFICANCE MAY BE , CANNOT HAVE THE CONSEQUENCE OF DEPRIVING HIM OF HIS RIGHT TO APPLY DIRECTLY TO THE COURT IN VIEW OF THE FACT THAT THIS IS A RIGHT WHICH HE CANNOT RENOUNCE AND WHICH IS THEREFORE NOT CAPABLE OF BEING AFFECTED BY HIS INDIVIDUAL BEHAVIOUR .

2 . THE SECOND PARAGRAPH OF ARTICLE 3 OF ANNEX III CANNOT BE UNDERSTOOD AS ENUMERATING EXHAUSTIVELY THE CASES IN WHICH A SELECTION BOARD MAY LEGITIMATELY HAVE RECOURSE TO THE ASSISTANCE OF EXAMINERS IN AN ADVISORY CAPACITY AND , IN PARTICULAR , DOES NOT PREVENT A SELECTION BOARD FROM HAVING RECOURSE TO SUCH A PROCEDURE IN CASES IN WHICH THE LARGE NUMBER OF CANDIDATES INVOLVED IN A COMPETITION WOULD OTHERWISE PREVENT THE SELECTION BOARD FROM COMPLETING ITS WORK WITHIN A REASONABLE PERIOD . IT IS NECESSARY , HOWEVER , FOR THE SELECTION BOARD TO RETAIN ULTIMATE CONTROL OVER THE PROCEDURES AND ITS DISCRETIONARY POWER .

3 . ALTHOUGH THE USE OF GENERAL FORMULAE TO DEFINE THE CONDITIONS FOR ADMISSION TO A COMPETITION MAY BE ACCEPTED WHEN THE NOTICE OF COMPETITION IS ADDRESSED TO A GROUP OF INDIVIDUALS OF DIFFERING ORIGIN AND EDUCATION , THE COUNTERPART IS THAT THE SELECTION BOARD FOR THE COMPETITION IS BOUND TO GIVE REASONS FOR ITS DECISIONS TO REJECT APPLICATIONS . IN THIS CONNEXION , ALTHOUGH IT IS PERMISSIBLE , HAVING REGARD TO THE LARGE NUMBER OF CANDIDATES , TO MAKE USE OF SUMMARIZED STATEMENTS OF REASONS , A MERE STATEMENT THAT THE CANDIDATE DOES NOT FULFILL A CONDITION MADE UP OF SEVERAL DIFFERENT ELEMENTS CANNOT HOWEVER STATISFY THE REQUIREMENT TO STATE REASONS IN VIEW PARTICULARLY OF THE FACT THAT SUCH A STATEMENT IS NOT CAPABLE OF PROVIDING THE PERSON CONCERNED WITH A SUFFICIENT INDICATION TO ALLOW HIM TO KNOW WHETHER THE REFUSAL IS WELL FOUNDED OR ON THE OTHER HAND WHETHER IT IS VITIATED BY A DEFECT WHICH WOULD MAKE IT POSSIBLE TO CONTEST ITS LEGALITY .

Parties

IN JOINED CASES 4 , 19 AND 28/78

ENRICO M . SALERNO , RESIDING AT 7 SQUARE CHARLES-MAURICE-WISER , ETTERBEEK ( BRUSSELS ), BELGIUM , REPRESENTED BY MARCEL SLUSNY OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF E . ARENDT , CENTRE LOUVIGNY 34 B/IV RUE PHILIPPE II ,

XAVIER AUTHIE , RESIDING AT 15 RUE SEVERIN , PARIS , REPRESENTED BY MARCEL SLUSNY , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG C/O MISS F . FABER , 51 AVENUE DE LA LIBERTE ,

GIUSEPPE MASSANGIOLI , AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , RESIDING AT 185 FRANS VERBEEKSTRAAT , OVERIJSE , BELGIUM , REPRESENTED BY EDMOND LEBRUN OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF TONY BIEVER , 83 BOULEVARD GRANDE-DUCHESSE CHARLOTTE ,

APPLICANTS ,

V

THE COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS PRINCIPAL LEGAL ADVISER , RAYMOND BAEYENS , ACTING AS AGENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ITS LEGAL ADVISER , MARIO CERVINO , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

Subject of the case

APPLICATION FOR THE ANNULMENT OF THE REFUSAL OF THE SELECTION BOARD FOR COMPETITION COM/A/154 TO ADMIT THE APPLICANTS TO THE COMPETITION ,

Grounds

1THE APPLICATIONS IN THESE THREE CASES ARE FOR THE ANNULMENT OF THE REFUSAL OF THE SELECTION BOARD FOR COMPETITION COM/A/154 TO ADMIT THE APPLICANTS TO THE COMPETITION AND FOR THE ANNULMENT OF THE APPOINTMENTS MADE IN CONSEQUENCE OF THE COMPETITION .

2THE CASES WERE JOINED FOR THE PURPOSES OF ORAL PROCEDURE AND SHOULD REMAIN SO FOR THE PURPOSES OF THE JUDGMENT .

3THE COMPETITION IN QUESTION WAS ORGANIZED AS AN OPEN COMPETITION ON THE BASIS OF TESTS TO CONSTITUTE A RESERVE OF ADMINISTRATORS IN THE CAREER BRACKET COVERING GRADES 7 AND 6 OF CATEGORY A .

4THE DUTIES RELATING TO THE POST TO BE FILLED WERE DEFINED IN RELATION TO SIX DIFFERENT FIELDS , INCLUDING EXTERNAL RELATIONS AND FINANCIAL AND BUDGETARY AFFAIRS , AMONGST WHICH CANDIDATES HAD TO EXPRESS A CHOICE .

5UNDER THE HEADING OF ' ' SPECIAL CONDITIONS ' ' , THE NOTICE OF COMPETITION PROVIDED THAT CANDIDATES MUST , ON THE ONE HAND , HAVE COMPLETED UNIVERSITY EDUCATION WITH A DEGREE OR DIPLOMA IN FIELD APPROPRIATE TO THE OPTIONS CHOSEN AND , ON THE OTHER HAND , TO HAVE AT LEAST ONE YEAR ' S PRACTICAL EXPERIENCE , OBTAINED AFTER GRADUATION , RELEVANT TO THE OPTION CHOSEN .

6TWO OF THE APPLICANTS , ONE OF WHOM CHOSE THE FIELD OF EXTERNAL RELATIONS AND THE OTHER FINANCIAL AND BUDGETARY AFFAIRS , WERE REFUSED ADMISSION TO THE COMPETITION ON THE GROUND THAT THEIR EXPERIENCE HAD NOT BEEN REGARDED AS SUFFICIENTLY RELATED TO THE FIELD SELECTED , WHILST THE THIRD CANDIDATE , WHO HAD CHOSEN THE FIELDS OF EXTERNAL RELATIONS , WAS REFUSED ON THE GROUND THAT HIS QUALIFICATIONS AND DEGREES WERE NOT REGARDED AS IN CONFORMITY WITH THE QUALIFICATIONS REQUIRED .

ADMISSIBILITY

7THE APPLICANTS BROUGHT THEIR ACTIONS BEFORE THE COURT AFTER LODGING WITH THE APPOINTING AUTHORITY COMPLAINTS UNDER ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS OF OFFICIALS , BUT WITHOUT AWAITING A REPLY AND WITHOUT ALLOWING THE PRESCRIBED IN THE REGULATIONS FOR A REPLY TO ELAPSE .

8THE QUESTION THUS ARISES WHETHER THE APPLICATIONS ARE ADMISSIBLE FROM THE POINT OF VIEW OF ARTICLE 91 ( 2 ) OF THE STAFF REGULATIONS , WHICH REQUIRES THAT THE PROCEDURE INVOLVING THE SUBMISSION OF A COMPLAINT THROUGH OFFICIAL CHANNELS SHALL FIRST HAVE BEEN COMPLETED .

9IN THIS RESPECT IT IS THE ESTABLISHED CASE-LAW OF THE COURT THAT A REFERENCE TO THE APPOINTING AUTHORITY OF A COMPLAINT THROUGH OFFICIAL CHANNELS AGAINST THE DECISION OF A SELECTION BOARD FOR A COMPETITION LIES OUTSIDE THE SCOPE OF THE PROVISIONS OF THE STAFF REGULATIONS IN VIEW OF THE FACT THAT THE APPOINTING AUTHORITY HAS NO POWER TO ANNUL OR AMEND THE DECISIONS OF A SELECTION BOARD .

10IF , NEVERTHELESS , THE PERSON CONCERNED SENDS THE APPOINTING AUTHORITY A COMPLAINT THROUGH OFFICIAL CHANNELS , SUCH A STEP , WHATEVER ITS LEGAL SIGNIFICANCE MAY BE , CANNOT HAVE THE CONSEQUENCE OF DEPRIVING HIM OF HIS RIGHT TO APPLY DIRECTLY TO THE COURT IN VIEW OF THE FACT THAT THIS IS A RIGHT WHICH HE CONNOT RENOUNCE AND WHICH IS THEREFORE NOT CAPABLE OF BEING AFFECTED BY HIS INDIVIDUAL BEHAVIOUR .

11IT FOLLOWS THAT THE APPLICATIONS ARE ADMISSIBLE .

SUBSTANCE

12 THE ARGUMENTS PUT FORWARD BY THE APPLICANTS IN CONTESTING THE REFUSAL OF THE SELECTION BOARD TO ADMIT THEM TO THE COMPETITION MAY BE CONSIDERED IN SUBSTANCE AS AMOUNTING TO A FIRST SUBMISSION RELATING TO CERTAIN IRREGULARITIES IN THE SELECTION BOARD ' S PROCEDURE , A SECOND SUBMISSION RELATING TO THE INADEQUACY ON THE GROUNDS STATED FOR THE REFUSAL AND A THIRD SUBMISSION RELATING TO THE DISCRIMINATION WHICH THE APPLICANTS CLAIM TO HAVE SUFFERED AS AGAINST OTHER CANDIDATES WHO , LIKE THE APPLICANTS , POSSESSED CERTIFICATES OF ADVANCED EUROPEAN STUDIES FROM THE COLLEGE OF EUROPE IN BRUGES .

FIRST SUBMISSION

13THE APPLICANTS CLAIM , FIRST , THAT THERE HAS BEEN AN INFRINGEMENT OF THE SECOND PARAGRAPH OF ARTICLE 3 OF ANNEX III TO THE STAFF REGULATIONS , INASMUCH AS THE SELECTION BOARD HAD RECOURSE TO EXAMINERS TO ASSESS WHETHER THE CANDIDATES COULD BE ADMITTED TO THE COMPETITION , WHILST THE TERMS OF THAT PROVISION AUTHORIZE THE USE OF EXAMINERS ONLY ' ' FOR CERTAIN TESTS ' ' .

14HOWEVER , THE PROVISION QUOTED , AS THE COURT HAS ALREADY STATED IN ITS JUDGMENT OF 26 OCTOBER 1978 IN CASE 122/77 , CLAES ( NEE AGNEESSENS ) AND OTHERS V THE COMMISSION , CANNOT BE UNDERSTOOD AS ENUMERATING EXHAUSTIVELY THE CASES IN WHICH A SELECTION BOARD MAY LEGITIMATELY HAVE RECOURSE TO THE ASSISTANCE OF EXAMINERS IN AN ADVIORY CAPACITY AND , IN PARTICULAR , DOES NOT PREVENT A SELCTION BOARD FROM HAVING RECOURSE TO SUCH A PROCEDURE IN CASES IN WHICH THE LARGE NUMBER OF CANDIDATES INVOLVED IN A COMPETITION WOULD OTHERWISE PREVENT THE SELECTION BOARD FROM COMPLETING ITS WORK WITHIN A REASONABLE PERIOD .

15IT IS NECESSARY , HOWEVER , FOR THE SELECTION BOARD TO RETAIN ULTIMATE CONTROL OVER THE PROCEDURES AND ITS DISCRETIONARY POWER .

16IN THIS CASE , THE VERY LARGE NUMBER OF CANDIDATES - MORE THAN 4 000 - FULLY JUSTIFIED RECOURSE TO EXAMINERS EVEN AT THE INITIAL STAGE OF THE WORK OF THE SELECTION BOARD .

17ON THE OTHER HAND , AS REGARDS THE PART PLAYED BY THE EXAMINERS , THE FACTS , IN SO FAR AS IT HAS BEEN POSSIBLE FOR THE COURT TO ESTABLISH THEM , MAKE IT APPEAR THAT THIS PART EXCEEDED THE LIMITS OF MERE ASSISTANCE IN AN ADVISORY CAPACITY , AND THAT THE SELECTION BOARD DID NOT HAVE EFFECTIVE CONTROL OF THE PROCEEDINGS .

18IN FACT , THE SELECTION BOARD HAD NOT FIXED IN ADVANCE THE CRITERIA OR DIRECTIVES FOR ASSESSING THE RELATIONSHIPS BETWEEN THE UNIVERSITY QUALIFICATIONS AND THE FIELD SELECTED BY EACH CANDIDATE , OR FOR DETERMINING THE NATURE OF THE POST-GRADUATE EXPERIENCE REQUIRED BY THE NOTICE OF COMPETITION , AND THE ASSESSMENT BY THE EXAMINERS OF INDIVIDUAL CASES WAS NOT CHECKED BY THE SELECTION BOARD , AS A COLLEGIATE BODY , EXCEPT IN THOSE CASES IN WHICH THE EXAMINERS HAD DOUBTS .

19THE COMPLAINT WITH REGARD TO THE PART PLAYED IN THIS CASE BY THE EXAMINERS THEREFORE APPEARS TO BE WELL FOUNDED .

20THE APPLICANTS FURTHER POINT OUT IN CONTESTING THE LEGALITY OF THE PROCEEDINGS OF THE SELECTION BOARD , THAT THE RE-EXAMINATION OF THE CASES IN WHICH COMPLAINTS AGAINST THE REFUSAL OF THE SELECTION BOARD HAD BEEN SUBMITTED WAS ARBITRARY .

21 IN THIS RESPECT IT MUST BE STATED THAT SUCH A RE-EXAMINATION IS NOT PROVIDED FOR BY THE PROVISIONS CONTROLLING THE WORK OF A SELECTION BOARD FOR A COMPETITION .

22ALTHOUGH IN THIS CASE THE SELECTION BOARD NEVERTHELESS UNDERTOOK A FURTHER EXAMINATION OF CERTAIN CASES , THIS WAS FROM A CONCERN TO CORRECT ERRORS WHICH MIGHT HAVE BEEN BROUGHT TO ITS ATTENTION AND NOT WITH A VIEW TO CARRYING OUT A FRESH ASSESSMENT OF THE MATERIAL IN THE FILES .

23THE FACT THAT IN THE MINUTES OF THE SELECTION BOARD ' S MEETING OF 8 JANUARY 1978 TWO CASES IN PARTICULAR WERE MENTIONED IN WHICH THE ORIGINAL DECISION HAD BEEN MAINTAINED DOES NOT MEAN THAT THE SELECTION BOARD WAS IN GENERAL UNABLE TO MAINTAIN ITS ORIGINAL REFUSAL IN ALL THE CASES WHICH IT RE-EXAMINED , EXCEPT FOR FIVE IN WHICH IT WAS POSSIBLE TO TRACE ERRORS .

24THIS PHASE OF THE SELECTION BOARD ' S PROCEEDINGS CANNOT THEREFORE BE CONSIDERED AS VITIATED BY ERRORS .

SECOND SUBMISSION

25THE APPLICANTS CLAIM THAT THE STATEMENT OF THE REASONS ON WHICH THE SELECTION BOARD ' S REFUSAL TO ADMIT THEM TO THE TESTS WAS BASED WAS INSUFFICIENT .

26THE STANDARD LETTER IN WHICH THE REFUSAL OF THE SELECTION BOARD WAS COMMUNICATED TO THE APPLICANTS CONTAINED , AS THE ONLY STATEMENT OF THE REASONS ON WHICH IT WAS BASED , A MERE REFERENCE TO THE CONDITION WHICH WAS NOT FULFILLED .

27EACH OF THE TWO CONDITIONS LAID DOWN BY THE NOTICE OF COMPETITION , WHICH RELATED TO CERTIFICATES AND DIPLOMAS ON THE ONE HAND AND PRACTICAL EXPERIENCE ON THE OTHER , WAS COMPOSED OF SEVERAL ELEMENTS , SO THAT A REFERENCE TO THE CONDITION AS A WHOLE WAS NOT OF SUCH A NATURE AS TO INDICATE WHICH OF THE FACTORS HAD BEEN FOUND TO BE LACKING .

28ALTHOUGH THE USE OF GENERAL FORMULAE TO DEFINE THE CONDITIONS FOR ADMISSION TO A COMPETITION MAY BE ACCEPTED IN CIRCUMSTANCES SUCH AS THOSE IN THE PRESENT CASE , IN WHICH THE NOTICE OF COMPETITION IS ADDRESSED TO A GROUP OF INDIVIDUALS OF DIFFERING ORIGIN AND EDUCATION , THE COUNTERPART IS , AS THE COURT STATED IN ITS JUDGMENT OF 14 JUNE 1972 IN CASE 44/71 , MARCATO V COMMISSION (( 1972 ) ECR 427 ), THAT THE SELECTION BOARD FOR THE COMPETITION IS BOUND TO GIVE REASONS FOR ITS DECISIONS ON THIS POINT .

29ALTHOUGH IT IS PERMISSIBLE , HAVING REGARD TO THE LARGE NUMBER OF CANDIDATES , TO MAKE USE OF SUMMARIZED STATEMENTS OF REASONS , A MERE REFERENCE TO THE CONDITION WHICH WAS NOT FULFILLED CANNOT HOWEVER SATISFY THE REQUIREMENT TO STATE REASONS IN VIEW PARTICULARLY OF THE FACT THAT SUCH A REFERENCE IS NOT CAPABLE OF PROVIDING THE PERSON CONCERNED WITH A SUFFICIENT INDICATION TO ALLOW HIM TO KNOW WHETHER THE REFUSAL IS WELL FOUNDED OR ON THE OTHER HAND WHETHER IT IS VITIATED BY A DEFECT WHICH WOULD MAKE IT POSSIBLE TO CONTEST ITS LEGALITY .

30IT MUST THEREFORE BE CONCLUDED THAT IN THIS CASE THE STATEMENT OF REASONS ON WHICH THE SELECTION BOARD ' S REFUSAL WAS BASED WAS INADEQUATE .

THIRD SUBMISSION

31THE DISCRIMINATION ALLEGED BY THE APPLICANTS CONSISTS IN THE FACT THAT THE CERTIFICATE OF ADVANCED EUROPEAN STUDIES OF THE COLLEGE OF EUROPE WAS NOT RECOGNIZED IN THEIR CASE AS PROVIDING , IN THE WORDS OF THE NOTICE OF COMPETITION , ' ' AT LEAST ONE YEAR ' S PRACTICAL EXPERIENCE , OBTAINED AFTER GRADUATION , RELEVANT TO THE OPTION CHOSEN ' ' , WHEREAS IT WAS RECOGNIZED IN THE CASE OF CERTAIN OTHER CANDIDATES .

32IN REPLY TO THAT ALLEGATION , THE COMMISSION HAS ESTABLISHED , FIRST , THAT IN EACH CASE A COMPARISON WAS MADE OF THE OPTION MENTIONED IN THE CERTIFICATE OF THE COLLEGE OF EUROPE AND THE FIELD CHOSEN IN THE APPLICATION FORM AND , SECONDLY , THAT IN THE CASE OF THE OTHER CANDIDATES TO WHICH THE APPLICANTS REFERRED , OTHER CONSIDERATIONS WERE PRESENT IN ADDITION TO THE CERTIFICATE OF THE COLLEGE OF EUROPE TO PROVIDE EVIDENCE OF THE PRACTICAL EXPERIENCE REQUIRED .

33IN THESE CIRCUMSTANCES , THE SUBMISSION RELATING TO DISCRIMINATION CANNOT BE UPHELD .

34CONSIDERATION OF THE FIRST AND SECOND SUBMISSIONS SHOWS THAT THE REFUSAL OF THE SELECTION BOARD TO ADMIT THE APPLICANTS TO THE COMPETITION IS VITIATED BY DEFECTS AND MUST THEREFORE BE ANNULLED .

35AS THIS WAS AN OPEN COMPETITION TO CONSTITUTE A RESERVE FOR FUTURE RECRUITMENT , THE RIGHTS OF THE APPLICANTS WILL BE SUFFICIENTLY PROTECTED IF THE SELECTION BOARD RECONSIDERS ITS DECISION , WITHOUT ITS BEING NECESSARY TO QUESTION THE WHOLE OF THE RESULTS OF THE COMPETITION OR TO ANNUL APPOINTMENTS MADE IN CONSEQUENCE THEREOF .

Decision on costs

COSTS

36UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE , THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .

37THE DEFENDANT HAS FAILED IN ITS SUBMISSIONS AND MUST THEREFORE PAY THE COSTS .

Operative part

ON THOSE GROUNDS

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . ANNULS THE DECISIONS NOTIFIED TO THE PERSONS CONCERNED BY LETTER OF 5 DECEMBER 1977 , BY WHICH THE SELECTION BOARD IN COMPETITION COM/A/154 REFUSED TO ADMIT ENRICO M . SALERNO , XAVIER AUTHIE AND GUISEPPE MASSANGIOLI TO THE TESTS FOR THE COMPETITION ;

2 . ORDERS THE COMMISSION TO BEAR THE WHOLE OF THE COSTS .