Judgment of the Court (Second Chamber) of 15 March 1973. - Antonio Marcato v Commission of the European Communities. - Case 37-72.



European Court reports 1973 Page 00361

Greek special edition Page 00503

Portuguese special edition Page 00173



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

++++

OFFICIALS - RECRUITMENT - EXAMINATION OF APPLICATIONS - DUTIES OF THE SELECTION BOARD

( STAFF REGULATIONS OF THE EUROPEAN COMMUNITIES, ANNEX III, ARTICLE 5 )

Summary

THE SELECTION BOARD HAS A DUTY TO GIVE SUFFICIENT REASONS FOR THE RESULTS OF THE MATCHING OF PAPER QUALIFICATIONS PRODUCED BY CANDIDATES WITH THE QUALIFICATIONS REQUIRED BY THE NOTICE OF COMPETITION .

Parties

IN CASE 37/72

ANTONIO MARCATO, OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ME ARENDT, AVOCAT-AVOUE, ASSISTED BY ME TONIA SCHAEFER, AVOCAT-AVOUE, BOTH OF THE LUXEMBOURG BAR, HAVING CHOSEN HIS ADDRESS FOR SERVICE IN LUXEMBOURG IN THE CHAMBERS OF ME ARENDT, 34B, RUE PHILIPPE-II, APPLICANT,

V

COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, PIERRE LAMOUREUX, ACTING AS AGENT, HAVING CHOSEN ITS ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICES OF ITS LEGAL ADVISER, EMILE REUTER, 4, BOULEVARD ROYAL, DEFENDANT,

Subject of the case

APPLICATION FOR ANNULMENT OF THE NOTICE OF COMPETITION COM/184/71 AND CERTAIN SUBSEQUENT DECISIONS,

Grounds

1 THE APPLICATION IS FOR THE ANNULMENT OF THE NOTICE OF COMPETITION COM/184/71, OF THE DECISION OF THE SELECTION BOARD NOT TO ADMIT THE APPLICANT TO THE COMPETITION OF WHICH NOTICE WAS GIVEN, OF THE NEGATIVE DECISION IMPLICIT IN THE SILENCE OBSERVED BY THE COMMISSION ON THE COMPLAINT ON THIS SUBJECT SUBMITTED BY THE APPLICANT ON 23 FEBRUARY 1972, AND OF THE FOUR APPOINTMENTS MADE AS A RESULT OF THE SAID COMPETITION .

ON THE FIRST PLEA

2 THE APPLICANT POINTS OUT THAT THE IMPUGNED COMPETITION NOTICE DID NOT COMPLY WITH THE REQUIREMENTS OF ARTICLE 1 ( 1 ) ( G ) OF ANNEX III OF THE STAFF REGULATIONS AS IT STOOD AT THE TIME OF THE MEASURES IN DISPUTE, IN SO FAR AS IT FIXED NEITHER AN AGE LIMIT NOR AN EXTENSION OF AGE LIMIT APPLICABLE TO STAFF WITH A MINIMUM OF ONE YEAR' S SERVICE WITH THE COMMUNITIES .

3 THE COMMISSION CLAIMS THAT THIS PLEA IS INADMISSIBLE BECAUSE IRRELEVANT .

4 AN AGE LIMIT OF 50 OR 60 YEARS WOULD, ( IT IS CONTENDED ) SCARCELY HAVE ALTERED THE CONDITIONS UNDER WHICH THE COMPETITION WAS HELD, WHEREAS BY SETTLING A MAXIMUM AGE OF 40, THE COMMISSION WOULD HAVE ELIMINATED THE APPLICANT' S CANDIDATURE FROM THE START .

5 BESIDES, IN THE CASE OF AN INTERNAL COMPETITION, THE SETTING OF AN AGE LIMIT WOULD HAVE BEEN CONTRARY TO THE INTEREST OF OFFICIALS MAKING A CAREER .

6 THE SETTING OF AN AGE LIMIT COULD ONLY HAVE RESULTED EITHER IN ELIMINATING THE APPLICANT HIMSELF FROM THE COMPETITION, WHICH WOULD HAVE BEEN DIRECTLY CONTRARY TO HIS INTEREST, OR ELSE IN ELIMINATING OTHER, POSSIBLY QUALIFIED, CANDIDATES, WHICH IN THE CIRCUMSTANCES CANNOT BE RECOGNISED AS A LEGITIMATE INTEREST OF HIS .

7 FURTHER, IT IS APPOSITE TO POINT OUT THAT OWING TO THE ALTERATION INTRODUCED INTO ANNEX III OF THE STAFF REGULATIONS BY REGULATION 1473/72 ( OJ NO L 160, P . 1 ) THE INCLUSION OF AN AGE LIMIT HAS BEEN EXPRESSLY MADE OPTIONAL, SO THAT THE ANNULMENT OF THE COMPETITION NOTICE WOULD NOT GIVE THE APPLICANT SATISFACTION .

8 FOR THESE REASONS THE PLEA IS INADMISSIBLE .

9 AS A CONSEQUENCE THE SUBMISSIONS SEEKING THE ANNULMENT OF COMPETITION NOTICE COM/184/71 MUST BE REJECTED .

ON THE SECOND PLEA

10 THE APPLICANT COMPLAINS THAT THE SELECTION BOARD AND THE COMMISSION DID NOT GIVE REASONS SUFFICIENT IN LAW FOR THE BOARD' S DECISION NOT TO ADMIT HIM TO THE DISPUTED COMPETITION .

11 THE COMMISSION RAISED THE QUESTION OF THE INADMISSIBILITY OF THE PLEA ON THE GROUND OF ITS BEING OUT OF TIME .

12 SINCE THE INSTITUTIONS DO NOT HAVE THE POWER TO ANNUL OR TO MODIFY THE DECISIONS OF A SELECTION BOARD, A COMPLAINT ABOUT SUCH DECISIONS ADDRESSED TO THE APPOINTING AUTHORITY IS DEVOID OF PURPOSE AND CANNOT THEREFORE PRESERVE THE RIGHT TO SUBMIT AN APPLICATION .

13 IF THIS ARGUMENT IS ACCEPTED, IT FOLLOWS THAT AN APPLICATION DIRECTED AGAINST THIS DECISION WHICH WAS COMMUNICATED TO THE APPLICANT BY MEMORANDA OF 17 AND 25 JANUARY 1972, OUGHT TO HAVE BEEN SUBMITTED BY THE END OF APRIL 1972 AT THE LATEST, WHEREAS THIS WAS NOT DONE UNTIL 27 JUNE 1972 .

14 THE PRIOR APPROACH TO THE COMMISSION IS EXPLAINED BY THE OFFICIALS' CUSTOM OF NOT BRINGING ACTS ADVERSELY AFFECTING THEM DIRECTLY BEFORE THE COURT, BUT OF ADDRESSING THEMSELVES FIRST, EVEN THOUGH UNNECESSARILY, TO THE APPOINTING AUTHORITY .

15 IN VIEW OF THIS SITUATION, IT APPEARS JUST TO ACCEPT THE PLEA AS ADMISSIBLE .

16 THE REPORT OF THE SELECTION BOARD APPOINTED FOR INTERNAL COMPETITION ( COM/184/71 OF 16 NOVEMBER AND 10 DECEMBER 1971, STATES THAT AFTER EXAMINING THE APPLICATIONS " THE BOARD FINDS ( A ) THAT THE CANDIDATES WHOSE NAMES FOLLOW DO NOT FULFIL THE CONDITIONS SET BY THE COMPETITION NOTICE AND ARE CONSEQUENTLY NOT ADMITTED TO THE COMPETITION, MORE PARTICULARLY ON THE FOLLOWING GROUNDS : LACK OF ADVANCED SECONDARY EDUCATION EVIDENCED BY A CERTIFICATE OR EQUIVALENT PROFESSIONAL EXPERIENCE ... MARCATO; LACK OF ELEMENTARY KNOWLEDGE OF PROGRAMMING, USE OF COBOL, FORTRAN OR A SIMILAR LANGUAGE ... MARCATO ... ".

17 THE ADMINISTRATION' S MEMORANDUM OF 1 DECEMBER 1971 MERELY INFORMED THE APPLICANT THAT THE SELECTION BOARD HAD NOT ADMITTED HIM TO THE COMPETITION, WHEREAS IN ITS MEMORANDUM OF 25 JANUARY 1972, IN REPLY TO A LETTER FROM THE APPLICANT SEEKING TO KNOW THE GROUNDS OF THIS DECISION, THE ADMINISTRATION CONFINED ITSELF TO REPEATING THE FORMULA APPEARING IN THE BOARD' S REPORT AND REPRODUCED ABOVE .

18 THE TASK OF A SELECTION BOARD IS MADE UP OF AT LEAST TWO SEPARATE STAGES, IN THE FIRST PLACE, AN EXAMINATION OF THE APPLICATIONS IN ORDER TO SELECT THE CANDIDATES ADMITTED TO THE COMPETITION, AND IN THE SECOND PLACE AN EXAMINATION OF THE ABILITIES OF THE CANDIDATES FOR THE POST TO BE FILLED IN ORDER TO DRAW UP A LIST OF SUITABLE CANDIDATES .

19 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 COMPETITION NOTICE;

20 SINCE THESE MUST BE MATCHED ON THE BASIS OF OBJECTIVE FACTS WHICH ARE MOREOVER KNOWN TO EACH CADIDATE IN HIS OWN CASE, THE RESULTS MUST BE SUPPORTED BY SUFFICIENTLY CLEAR REASONS .

21 THIS WAS NOT SO IN THE PRESENT CASE; THE SELECTION BOARD' S REPORT AND THE ADMINISTRATION' S MEMORANDUM OF 25 JANUARY 1972 MERELY INDICATED THE QUALIFICATIONS IN WHICH THE APPLICANT WAS CONSIDERED TO BE DEFICIENT WHEREAS, AT FIRST SIGHT, HIS PRACTICAL EXPERIENCE MIGHT SEEM COMPARABLE TO THAT OF THE OTHER CANDIDATES ADMITTED .

22 ACCORDINGLY, THE SELECTION BOARD' S DECISION NOT TO ADMIT THE APPLICANT TO THE COMPETITION, THE COMMISSION' S IMPLIED DECISION REJECTING THE APPLICANT' S COMPLAINT OF 23 FEBRUARY 1972, AS WELL AS THE FOUR APPOINTMENTS MADE AS A RESULT OF THE COMPETITION IN QUESTION, MUST BE ANNULLED .

23 THE APPLICANT HAVING WON HIS CASE ON THE SECOND PLEA, THERE IS NO NEED TO EXAMINE THE THIRD PLEA .

Decision on costs

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

25 THE COMMISSION HAS SUBSTANTIALLY FAILED IN ITS SUBMISSIONS AND MUST THEREFORE PAY THE COSTS .

Operative part

THE COURT ( SECOND CHAMBER )

HEREBY

1 . ANNULS THE DECISION OF THE SELECTION BOARD IN COMPETITION COM/184/71 NOT TO ADMIT THE APPLICANT TO THE COMPETITION, THE IMPLIED DECISION OF THE COMMISSION REJECTING THE APPLICANT' S COMPLAINT OF 23 FEBRUARY 1972, AND THE FOUR APPOINTMENTS RESULTING FROM THE SAID COMPETITION .

2 . ORDERS THE COMMISSION OF THE EUROPEAN COMMUNITIES TO BEAR THE COSTS OF THE PROCEEDINGS .