Opinion of Mr Advocate General Jacobs delivered on 20 January 1989. - Rosa Basch and others v Commission of the European Communities. - Officials - Competition procedure - Non-admission to tests. - Joined cases 100/87, 146/87 and 153/87.



European Court reports 1989 Page 00447



Opinion of the Advocate-General

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My Lords,

1 . These joined cases involve further litigation over the decisions of the selection board in internal competition COM2/82 . That competition was arranged to provide a reserve list of administrative, secretarial and technical assistants in Grades 5 and 4 of Category B . In Cases 293/84 Sorani and Others v Commission (( 1986 )) ECR 967 and 294/84 Adams and Others v Commission (( 1986 )) ECR 977 the Court annulled the decisions of the selection board in that competition refusing to admit the applicants in those cases to the tests . In Sorani there was a total of 11 applicants and in Adams a total of 53 . The decisions were annulled on the ground that the candidates did not have an opportunity to state their views on the opinions expressed on them by their superiors ( paragraphs 17 to 19 of the judgment in Case 293/84 and paragraphs 22 to 24 of the judgment in Case 294/84 ).

2 . Following those judgments, the selection board resumed the competition procedure in respect of the applicants in those cases at the stage at which the Court held that the board had acted unlawfully . The board first invited each candidate to interviews, held in June and July 1986, at which it asked each candidate the same questions as it had asked the respective superiors . That procedure resulted in a standard letter dated 11 July 1986 informing the candidates that the information provided by them had given the selection board no cause to modify its decision of 15 June 1984 . After complaints from various of the applicants that that was not enough - complaints which were clearly, in my view, well founded - the board invited the candidates to further interviews, held in December 1986, at which it asked the candidates to comment on the views expressed by their superiors . The board thereby sought to comply with the judgments of the Court, but the results were meagre . The applicants in the present cases all received letters in identical terms dated 12 February 1987 stating that the information thus provided had not led the selection board to change its mind, and therefore in effect confirming that they were not to be admitted to the tests . The applicants in these cases all appeal against that decision . There are 26 applicants in Case 100/87 and one applicant in each of Cases 146 and 153/87 .

3 . The first point the Court is called upon to consider is the application, in Case 100/87, for interpretation of the judgments in Cases 293 and 294/84 under Article 40 of the Statute and Article 102 of the Rules of Procedure . It is claimed that the judgments in those cases mean that the applicants should have been admitted to the tests without further ado . But, as I have said, the ground upon which those judgments were based was that the selection board improperly denied the candidates an opportunity to comment on what their superiors had said . It therefore followed that the decision of the selection board was annulled . All the parties agree that the judgments had that effect . There is, to my mind, no ambiguity involved . What is at issue between the parties is the application of the judgments to a given set of facts, in this case the status of the applicants following the judgments . The Court has consistently held that requests for interpretation which in effect concern the execution of a judgment are inadmissible ( see, in particular, Case 110/63 A Williame v Commission (( 1966 )) ECR 287 and Case 206/81 A Alvarez v European Parliament (( 1983 )) ECR 2865 ). As Advocate General VerLoren van Themaat said in the latter case ( at p . 2877 ) "By its nature, the annulment of a ... decision results in the restoration of the status quo ante ". The annulment of the decisions of the selection board in Cases 293 and 294/84 restored the applicants to the position they were in before the decisions were taken, that is to say their candidatures were still under consideration by the selection board . That was also the view of Advocate General Sir Gordon Slynn who said at the end of his Opinion in Case 294/84 : "All the present cases ... must be reviewed ... to see which if any of the candidates should proceed to the tests" ( emphasis added ). No question for interpretation arises and I therefore conclude that the application for interpretation in Case 100/87 should be dismissed as inadmissible .

4 . For the same reasons, I would reject the contentions of the applicants in Cases 146 and 153/87 to the effect that the Commission failed properly to implement the earlier judgments by not admitting those applicants to the tests forthwith .

5 . I now turn to the substance of the case : the applications to annul the decision contained in the letter of 12 February 1987 rejecting the applicants' admission to the tests .

That letter was in the following terms :

"The selection board has considered with the greatest care your views on the comments made by your superiors as well as the other information you gave the board both orally and in writing .

I should remind you that the various interviews which took place are only one of the matters to be taken into consideration in the overall assessment of your candidature .

Having regard to all the factors in its possession, the selection board has decided that there is no cause to modify its earlier decision given on 11 July 1986 ."

That decision, it will be recalled, confirmed the earlier decision of 15 June 1984 .

6 . The applicants in all the cases advance various arguments and I shall deal with them in turn . First, in Cases 100 and 146/87, it is said that there is no or no sufficient reasoning in the letter . It is, of course, a fundamental requirement of Community law that decisions should state the reasons on which they are based . The fundamental principle is exemplified in Article 25 of the Staff Regulations which reads so far as material as follows :

"Officials may submit requests to the appointing authority of their institution .

Any decision relating to a specific individual which is taken under these Staff Regulations shall at once be communicated in writing to the official concerned . Any decision adversely affecting an official shall state the grounds on which it is based ..."

On the application of that principle to decisions excluding candidates from competitions, there is already a substantial body of case-law, going back to 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 . In Joined Cases 4, 19 and 28/78 Salerno and Others v Commission (( 1978 )) ECR 2403, the Court held that a selection board is bound to give reasons for its decisions to reject applications; and that, although it was permissible, having regard to the large number of candidates, to make use of summarized statements of reasons, a mere statement that the candidate did not fulfil a condition made up of several different elements could not satisfy the requirement to state reasons, particularly since such a statement could not provide him with a sufficient indication to enable him to know whether the refusal was well founded . In Case 225/82 Verzyck v Commission (( 1983 )) ECR 1991, the Court, following its decisions in Case 112/78 Kobor v Commission (( 1979 )) ECR 1573 and in Case 89/79 Bonu v Council (( 1980 )) ECR 553, held that the level of reasoning required may vary according to the type and level of competition . In a competition with a very large number of applications, it would put an intolerable burden on the administration to give detailed reasons in every instance and therefore, while there must be a basic statement of reasons, that may be in summary form unless individual explanations are expressly requested . However, the reasons must still be given in summary form, and the decision challenged in that case was annulled on that ground notwithstanding that the applicant did not expressly request reasons . The same principles must apply in the present competition, although there was an exceptionally large number of candidates .

7 . Moreover, in another case arising from this same competition, Case 206/85 Beiten v Commission ( judgment of 16 December 1987 ), the decision not to admit the applicant to the tests was annulled because, despite her specific request, no detailed reasoning was forthcoming . The judgment was given after the decisions criticized in the present case, but it is no more than an application of the previous case-law . As for the earlier two cases arising out of this competition, Adams and Sorani, I note that the point on lack of reasoning was not taken in Adams and the decisions of the selection board were annulled in those cases on a different ground as I have already mentioned . However, it was apparent that those decisions would have been vitiated in any event for lack of reasoning and in Sorani Advocate General Sir Gordon Slynn expressly said so . He said : "As to the lack of reasons, it is to be borne in mind that in a competition of this kind, with so many candidates, general reasons may be sufficient in the first instance . Yet when individuals ask for individual reasons and their cases are re-examined, it is, in my view, incumbent on the board to identify the factors applicable to the individual candidate ...". He added that each candidate was entitled to know which of the qualifications he did not satisfy in order that he could consider whether the board had erred in law in coming to such a conclusion, by for example taking into account wholly irrelevant considerations .

8 . In the light of those remarks, and of the earlier case-law to which I have referred, it ought to have been apparent to the Commission that any future decisions refusing candidates admission to the tests should be accompanied by reasons .

9 . The Commission has not addressed these issues . It argues merely ( its entire argument being limited to a single sentence ) that the decision in the letter is simply a confirmation of an earlier decision, and the only new element to be taken into consideration by the board was the comments made by the candidates on the views expressed by their superiors . The Commission states that it is reasoning enough to say that the single new element did not cause the board to change its mind .

10 . That argument cannot in my view succeed . Leaving aside the fact that, if the decision in the letter of 12 February 1987 was a confirmation of an earlier decision, then the earlier decision itself must be properly reasoned, which it plainly was not, I take the view that, even as a summary, the letter of 12 February 1987 was deficient in reasoning . It contains no indication that the applicants' cases had been considered individually at all . It was the last in a series of standard letters, going back to June 1984, at the end of which none of the applicants has, even now, been informed of the reasons why they were excluded from the tests .

11 . The Commission has not sought to rely on Joined Cases 64, 71 to 73 and 78/86 Sergio and Others v Commission ( judgment of 8 March 1988 ) and those cases would not in my view assist the Commission here . Once again there was a lack of reasoning found by the Court . Nevertheless, in those cases, the Court held that the evidence presented during the case showed that the selection board did carefully consider each candidate - and during the oral procedure each candidate had the opportunity to comment on the procedures followed and assessments made by the board . The Court was able to reassure itself that the board had followed the correct procedures and therefore the lack of reasoning did not, in those cases, hide a defect of procedure justifying annulment of the decisions of the selection board .

12 . In the cases now before the Court, the Commission has produced the minutes of the meeting of the board together with examples of the tables drawn up by the board showing the answers given by the candidates . Those minutes do not provide the same reassurance as in Sergio . The records are incomplete, and so far as they go they provide no indication why the answers given by the candidates were not accepted . And they relate of course only to the final step in the procedure . In those circumstances, I do not consider that one can apply here the very limited exception laid down in Sergio to the general rule .

13 . The decisions are therefore unlawful for lack of reasoning . The applicant in Case 153/87 has not, in her application, expressly invoked lack of reasoning as a specific ground of annulment . However, she annexed to her application, at Annex 6, a copy of a very full request dated 12 December 1987, which was addressed to the chairman and members of the board, and was plainly intended to obtain the reasons why she had been excluded : a request to which she received no effective reply . Accordingly the decisions in all the cases must be annulled on that ground, and I can consider relatively briefly the other grounds relied on by the applicants .

14 . Many criticisms were levelled at the conduct of the competition in Sorani, Adams and Beiten and the applicants in these proceedings repeat a number of those criticisms and raise new ones, as they are entitled to do . The applicants in Case 100/87 challenge the legality of the procedure on the ground that the superiors consulted originally were the assistants to various Directors-General instead of the immediate superior of each candidate . While one can see the apparent advantages of the procedure in a competition attracting 860 candidates, there seems force in the contention that the assistants to the Directors-General could not have a detailed acquaintance with the attainments of all the candidates . However the Commission must be allowed a considerable latitude in the organization of a competition of this kind, and I do not consider that the method used, and expressly foreshadowed in the Notice of Competition, was so unreasonable as to render the competition unlawful .

15 . It is further argued in Cases 100 and 153/87 that the superiors were asked - as were the candidates in the subsequent interviews - whether or not the candidate had undertaken any duties of the B grade and that, since that criterion was not mentioned in the notice of competition nor elsewhere, it was improper to take account of it . That also is an argument I reject since it must be of interest to any selection board in any competition to know whether a particular candidate has in fact carried out the duties of the grade to which he seeks to be promoted . It is therefore implicit in all such competitions as a relevant matter, but not as a necessary condition for promotion . The selection board does not appear to have treated it as a necessary condition .

16 . In Case 146/87, the applicant claims that since, 15 years previously, he was twice placed on the list of suitable candidates to enter a competition for promotion to a category B post, he should have the same right now in the absence of sufficiently clear reasoning for the change . He relies on Case 112/78 Kobor v Commission (( 1979 )) ECR 1573 . Both that case and Case 108/84 De Santis v Court of Auditors (( 1985 )) ECR 947, where the same principle was applied, related to the experience gained by the candidate concerned . In both cases it was held that if a candidate' s experience, whether practical or professional, is considered sufficient to admit him to the tests in one competition, then it should be considered sufficient to admit him to another competition where the same level of experience is required - in the absence of reasons to the contrary . The applicant does not state whether it was purely his experience that admitted him to the earlier tests, but he implies that it was because of the good reports made on him by his superiors . I do not consider, in those circumstances, that a later selection board is bound by reports on a candidate made 15 years and more previously and which were considered good by an earlier selection board . It is the later reports which matter . However, while the applicant' s contentions on this point cannot in my view succeed, those contentions form part of a broader claim that no adequate reasons were given for excluding him from the tests, and that broader claim is in my view well founded for the reasons I have given earlier .

17 . Finally, the applicants in all three cases claim that the selection board would have been unable, in the absence of written memoranda, to remember what had been the views of the candidates' superiors when, some three years later, the board interviewed the candidates on those views . It is claimed that the board should have asked the superiors again for their views so that it would be in full possession of all the facts . The Commission suggests that the members of the board could rely on their own notes of what the superiors had said as well as their memories, and points to the minutes of the meetings of the board which show details of what the superiors had said . In my view, to rely on possibly incomplete personal notes and memories for what had been said three years previously in respect of a large number of candidates was not, perhaps, the best way of proceeding . But I do not consider that it was an improper way of proceeding such as to make it necessary to annul the decision on that ground . However, for the reasons I have already given, the decisions should be annulled in all the cases .

18 . Since the Commission does not appear to have understood the consequences of the earlier decisions of the Court, it may be useful to spell out what are, in my view, the consequences of annulment in these cases . The consequences are that, since the decisions are void for lack of reasoning, the applicants must now be given an individual statement of reasons explaining why, in the case of each candidate, he or she was not admitted to the tests . The explanation must relate to the decision as a whole, and not be confined to the reasons why the additional information subsequently supplied did not lead the board to change its mind . And the explanation must show which condition, in the case of each applicant, the applicant was found not to satisfy .

19 . The applicants in Case 100/87 further claim damages of BFR 200 000 each in respect of the material and non-material damage they claim to have suffered . The applicants in Cases 146 and 153/87 do not claim damages . In my view the claims for damages should be dismissed . I have concluded that the applicants should be given the individual reasons for failure to gain admission to the tests . On the assumption that those reasons are valid, the applicants will have suffered no material damage since they would not have gained admission to the tests in any event . There remains the question of non-material damage; as to that, I consider that the annulment of the decisions constitutes appropriate reparation for any non-material damage which the applicants may have suffered, as it did in Case 128/84 van der Stijl v Commission (( 1985 )) ECR 3281 .

20 . Accordingly, I am of the opinion that :

( 1 ) the decisions of the selection board to refuse each of the applicants admission to the tests should be annulled;

( 2)the Commission should be ordered to pay the costs .

(*) Original language : English .