2.

It might be questioned whether a complaint raised for the first time on the reply is admissible. Article 42 (2) of the Rules of Procedure provides that: ‘No fresh issue may be raised in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the written procedure’. The second subparagraph of Article 42 (2) adds that: ‘If in the course of the written procedure one of the parties raises a fresh issue which is so based, the President may, even after the expiry of the normal procedural time-limits, … allow the other party time to answer on that issue’. At first sight it would seem that these provisions must be interpreted as meaning that the prohibition imposed by the first subparagraph must be applied without derogation save in the exceptional cases expressly mentioned. But it must be remembered that the rule in question has a specific function, which emerges clearly from the second subparagraph quoted above: to avoid one party being denied the opportunity to reply to the new complaint during the written procedure (cf. the opinion of Mr Advocate General Warner to that effect in Case 46/75 IBC v Commission [1976] ECR at p. 89). Therefore too rigid an interpretation of Article 42 (2) does not seem justified: the important point is to establish whether the party against whom the new complaint has been raised has been handicapped in resisting it as a result of the other party's conduct of the procedure. In the present case the Commission, in its defence (bottom of p. 6), was the first to raise the question of the adequacy of the statement of reasons on which the decision in dispute was based, maintaining that the unfavourable decision of the selection board was sufficiently reasoned. Later, in the course of the oral procedure, the Commission's representative examined that aspect of the dispute, expressly stating that it was not his intention to plead the inadmissibility of the complaint. So, not only must we accept that the Commission was not denied the opportunity to defend itself, but on the contrary the question of the formal requirements of the decision in question was raised by the Commission itself. Besides, it must be remembered that the subject of the new complaint was the insufficiency of the statement of reasons on which the decision was based. It is well established that the requirements that the decision reasoned is laid down not only to pro tea the persons to whom it must apply, but also to place the Court in a position to exercise fully the judicial review which the Treaty entrusts to it. It follows that the Court must always be able to raise of its own motion the question of a defect in the statement of reasons. Such was the import of the view expressed by the Court in the judgment of 20 March 1959 in Case 18/57, Nold v High Authority [1959] ECR 41. As regards questions of substance, the factor to be borne in mind is this: the selection board's decision was notified to the person concerned by means of a standard letter which contained a list of four reasons for not admitting a candidate to the tests, an X being marked in the box placed beside the third reason (‘insufficient practical experience’). As I have already had occasion to point out in a similar case (opinion of 16 November 1978 in Joined Cases 4, 19 and 28/78, Salerno, Authié and Massangioli v Commission [1978] ECR 2403) the statement of the reasons on which the decisions of selection boards on the admission of candidates to tests are based cannot be considered appropriate and sufficient when it merely indicates in a general way the failure to satisfy one of the requirements stated in the announcement. Therefore I shall simply repeat my view, which was shared by the Court in the judgment of 30 November 1978 in the joined cases cited above: in my opinion it is essential that the statement of reasons given to the candidates should be drafted in such a way as to enable them to understand precisely why they have been excluded and to facilitate the task of reviewing the legality of such decisions. The expression ‘insufficient practical experience’ is ambiguous to say the least: the insufficiency may be qualitative in nature, or it may be due to the short duration of the experience or imply that that experience was not related to the field chosen. The letter, formulated in general terms which I have mentioned, does not allow one to ascertain the specific deficiency on account of which the candidate was not admitted to the written tests. As for the difficulties due to the large number of candidates, I do not believe that they were sufficient to justify an incomplete statement of reasons. I have already said in the Salerno case and in others that ‘the unfortunate effects of the excess numbers must not be visited upon the candidates’ and that, in order to avoid such a consequence, ‘the authority organizing a competition is bound to make preparations so that it can carry out its task in complete conformity with the rules even if there are thousands of candidates’. I would recall that the Court has already held that decisions of selection boards for competitions must be accompanied by an adequate statement of reasons. This may be seen in the judgments in Case 44/71 Marcato v Commission [1972] ECR 427, Case 37/72 Marcato v Commission [1973] ECR 361, and Case 31/75 Costacurta v Commission [1975] ECR 1563, as well as in Joined Cases 4, 19 and 28/78 Salerno and Others v Commission [1978] ECR 2403 which I have already cited. I do not see any reason to depart from that line in the present case.