(3)

I have already referred to a further guarantee of the priority right of transfer which resides in the obligation on the Commission, when the outcome of the consideration does not enable the post to be filled, to provide a detailed statement of reasons showing in what way and how closely the factors put forward were considered. Let me examine, therefore, whether the Commission fulfilled this requirement. Of course, I shall not need to go so far as to require the Commission to adopt a reasoned decision in respect of each of the officials concerned and to notify him of it. In the cases concerning appointment with which the Court has dealt it has never maintained that the administration was obliged to act in this way as regards the unsuccessful candidate; moreover, it cannot be shown that such a requirement must be met as regards the candidates enjoying a priority right. My consideration must therefore concern only the question of what reasons for the adoption of the contested decision were set out in the minutes of the meeting of the Commission and, in accordance with the judgment in the Serio case of 15 December 1966 (Case 62/65, Serio v Commission of the EAEC [1966] E.C.R. 561), how the Cammission attempts to give reasons for its decision before the Court. First, as regards the statement of reasons appearing in the minutes, I can accept the applicant's statement that it contains no concrete elements. We find only the phrase: ‘having considered in the light of their respective files both the university education and training and the experience in appropriate employment of the officials concerned, as well as their general personality’ which means that we are dealing with a stereotyped formula from which it is impossible to pick out the special features of the individual case and do not let us forget that is was necessary to consider three candidates having a priority right. Therefore, if we had to consider this formula alone, the Commission ought to accept without question the criticism that it gave insufficient reasons for its decision. Nor did the earner written procedure before the Court provide further enlightenment. Only in its rejoinder did the Commission provide further details concerning the reasons which had led it to consider that the applicant was unsuitable for the post in question. The considerations which it set out in this document show basically that the applicant's abilities in the field of work safety are primarily of a technical nature, while nothing has been said about him so far as the legal aspects of the post are concerned. This, the Commission says, is the reason why he could not be considered for a post which, according to the vacancy notice, requires a thorough knowledge of the state of the law in the field of work safety. This is unquestionably a fundamental reason affecting the specific case of the official concerned. Our consideration cannot stop there, however; we must rather ask ourselves whether the reasons given appear wholly convincing. No doubt in asking ourselves this question we are touching on the Commission's value-judgment on the applicant's suitability. However, as the object is not to substitute the Commission's value-judgment, but merely to see whether there is any strong evidence to show that it is unsound, there appears to be no doubt that in principle the reasons put forward by the Commission may be reviewed, as was done in the similar situation in Case62/65, Serio v Commission of the EAEC [1966] E.C.R. 561. The explanations which, without being contradicted by the Commission, the applicant himself provided regarding his earlier activities in the field of work safety, constitute the first essential factor in this respect. We learn from the memorandum which he drew up on 24 October 1968 that for several years he directed the central work safety department in a large industrial undertaking. Moreover, he is a member of various committees dealing with questions concerning this sector. He provided instruction for the purposes of vocational training in this field and is the author of publications on the subject. Let me point out in particular in this connexion the thesis which he published in 1958 on the cost and prevention of accidents in the mines of the Ruhr. Problems of work safety were also involved in this employment with the High Authority. We have learned that he was deputy secretary to a group of experts on mine security and that as Head of the Technical Research Division he was involved in several research programmes in the field of work safety and hygiene. For further details I refer to the abovementioned memorandum. It is correct to say that this memorandum is likely to show that although the applicant has extensive experience it is in the field of work safety. The impression obtained from this memorandum is, moreover, confirmed by the fact that the Director-General who is responsible for the post in question, that is, someone who is in a a particularly good position to form an opinion, formally stated when speaking of all the candidates including the applicant that they were ‘in the field’ (‘candidats valables’). The Commisson's only objection to these considerations is that the award of the post was also dependent on the extent and quality of legal knowledge. Whether on these grounds the Commission could fairly come to a decision on suitability clearly unfavourable to the applicant appears doubtful in many respects. First, it is hard to see how the applicant was concerned for several years with work safety without thereby becoming sufficiently familiar with the legal aspects thereof. There is a second significant argument. According to the vacancy notice a ‘training in engineering’ (‘formation d'ingénieur’) was the primary requirement. It is clear that the applicant had such training. Whether the same applies to the candidate who obtained the post and who has a legal training is doubtful, to say the least. The available documents show that at all events it was only on a temporary basis (for reasons of lack of staff) that he was entrusted with the consideration of certain technical questions (this is shown by the report of 1963) or that when necessary he also dealt with the technical aspects of the field of work safety (this is shown by the reports for 1964 and 1965). Of course I do not wish to conclude from these factors that the candidate who was appointed is not suitable for the post entrusted to him (which would require the annulment of his appointment). However, this factor shows none the less that the Commission clearly was not strict in its interpretation of the requirements set out in the vacancy notice. If the Commission considered that it was entitled to be so generous in its assessment when it was required to make a decision on the application of a candidate for promotion, it is undeniable that it had to give specific reasons to explain why it was not appropriate to adopt the same or a more liberal attitude (I am here thinking of the applicant's legal knowledge) in considering his priority right of transfer. In fact, I find no evidence of such an explanation. Taking into account the strict nature or the conditions required by Article 8 of Regulation No 259, I am unable to make any other finding than that the negative opinion of the applicant's suitability for the post advertised is open to criticism and that, at the least, the Commission has failed to provide convincing reasons for its rejection of his application. This is a further ground for the annulment of the contested decision.