Judgment of the Court (First Chamber) of 9 October 1974. - Anna-Maria Campogrande and others v Commission of the European Communities. - Joined cases 112, 144 and 145-73.



European Court reports 1974 Page 00957

Greek special edition Page 00427

Portuguese special edition Page 00447



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

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1 . OFFICIALS - APPLICATIONS - PLURALITY - IDENTICAL ACTS CHALLENGED - LARGELY IDENTICAL SUBMISSIONS - SINGLE JUDGMENT

( STAFF REGULATIONS, ARTICLE 91 )

2 . OFFICIALS - RECRUITMENT - RESERVE LIST - CONSTITUTION OF - VACANCIES RELATING TO THE SAME POST AND CAREER BRACKET - DIFFERENT COMPETITIONS - HARMONIZATION - SELECTION BOARDS - OBLIGATIONS

( STAFF REGULATIONS, ARTICLE 29 ( 1 ))

3 . OFFICIALS - RECRUITMENT - CANDIDATES' ABILITIES - DELIBERATIONS OF THE SELECTION BOARD - EXAMINATION - COMPARATIVE NATURE - CONTROL BY THE COURT

( STAFF REGULATIONS, ANNEX III, ARTICLE 5 )

4 . OFFICIALS - RECRUITMENT - COMPETITION ORGANIZATION - LEGAL AND FINAL FORM - NOTICE OF COMPETITION - DELIBERATIONS OF THE COMPETENT ORGAN - INFLUENCE

( STAFF REGULATIONS, ARTICLE 29 )

Summary

1 . IT IS APPROPRIATE TO DEAL IN THE SAME JUDGMENT WITH APPLICATIONS RELATING TO THE SAME FACTS AND SUPPORTED BY IDENTICAL SUBMISSIONS .

2 . WHERE THE CONSTITUTION OF A RESERVE AIMS AT PROVIDING FOR VACANCIES RELATING TO THE SAME POST AND CAREER BRACKET, BUT INVOLVING THE PERFORMANCE OF DIFFERENT DUTIES, IT CAN BE ACHIEVED BY MEANS OF SEVERAL COMPETITIONS LEADING TO DIFFERENT LISTS OF SUITABLE CANDIDATES TO MEET THE REQUIREMENT TO PROVIDE FOR DIFFERENT DUTIES, SUBJECT NEVERTHELESS TO THE CONDITION THAT ONLY OFFICIALS WHO HAVE BEEN SUCCESSFUL AT A COMPETITION IN A SPHERE RELATING TO THE DUTIES TO BE PERFORMED MAY AS A RESULT BE PROMOTED .

IF THE NECESSITY FOR SUCH CORRESPONDENCE HAS BEEN DISREGARDED, IT IS NOT THE LEGALITY OF THE COMPETITIONS BUT THE REGULARITY OF THE PROMOTIONS WHICH IS OPEN TO QUESTION .

THE SELECTION BOARD OF EACH COMPETITION HAS THEREFORE TO RECONCILE THE ADVISABILITY OF HARMONIZING TO A CERTAIN EXTENT THE TEST CONDITIONS AND THE NECESSITY OF JUDGING, ACCORDING TO THE APPROPRIATE CRITERIA, THE EXPERIENCE OF THE CANDIDATES FOR THE PURPOSE OF PERFORMING THE DUTIES FOR WHICH SUCCESS AT THE COMPETITION SELECTED MARKS THEM OUT .

SUCH RECONCILIATION IS, UNDER THE TERMS OF THE NOTICE OF COMPETITION, THE RESPONSIBILITY OF EACH SELECTION BOARD AND IS GUARANTEED BY ITS INDEPENDENCE AND THE SECRECY OF THE PROCEEDINGS LAID DOWN BY THE REGULATIONS .

3 . THE EXAMINATION OF ABILITY WHICH SELECTION BOARDS MUST UNDERTAKE IS ABOVE ALL OF A COMPARATIVE NATURE AND, FOR THIS REASON, COVERED BY THE CLOAK OF SECRECY INHERENT IN SUCH DELIBERATIONS, SO THAT THEY CANNOT BE SUBJECTED TO CONTROL BY THE COURT EXCEPT IN THE EVENT OF OBVIOUS INFRINGEMENT OF THE RULES WHICH GOVERN THE PROCEEDINGS OF SELECTION BOARDS .

4 . THE DECISION ON THE ORGANIZATION OF THE COMPETITION TAKES ITS LEGAL AND FINAL FORM FROM THE NOTICES OF COMPETITION BROUGHT TO THE NOTICE OF THE PERSONNEL .

THE DELIBERATIONS OF THE COMPETENT BODY AS THEY APPEAR FROM THE MINUTES CANNOT OVERRIDE THE CLEAR WORDING OF THE DECISION IN QUESTION UNLESS THEY OBVIOUSLY SHOW THAT THE FORM OF DECISION IS NOT IN ACCORD WITH WAS IN FACT LAID DOWN AT THE END OF THE DELIBERATIONS .

Parties

IN CASES 112, 144 AND 145/73

ANNA MARIA CAMPOGRANDE, OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, LIVING AT 19, AVENUE DE L'OREE, BRUSSELS,

ALFRED DE VLEESCHAUWER, OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, LIVING AT 65, AVENUE F . LEEMANS, AUDERGHEM, 1160 BRUSSELS,

AND

JEANNE-MARIE BOUYSSOU, OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, LIVING AT 10, DREVE ST . MICHEL, KRAAINEM, 1950 BRUSSELS,

ALL REPRESENTED BY MARCEL SLUSNY, ADVOCATE WITH THE COURT OF APPEAL AT BRUSSELS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT, AVOCAT AVOUE, CENTRE LOUVIGNY, 34 B IV, RUE PHILIPPE II, APPLICANTS,

V

THE COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISERS, PIERRE LAMOUREUX AND GIORGIO PINCHERLE, ACTING AS CO-AGENTS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF PIERRE LAMOUREUX, 14, BOULEVARD ROYAL, DEFENDANT,

Subject of the case

APPLICATION FOR THE ANNULMENT OF COMPETITIONS COM/A/264 TO COM/A/268 AND THE RESULTING APPOINTMENTS,

Grounds

1 THE MAIN OBJECT OF THE APPLICANTS IS TO OBTAIN ANNULMENT OF COMPETITIONS COM/A/264, COM/A/265 AND, INSOFAR AS IS NECESSARY, COMPETITIONS COM/A/266, COM/A/267 AND COM/A/268 AND OF THE APPOINTMENTS MADE AS A RESULT OF THESE COMPETITIONS .

2 ALTERNATIVELY THEY SEEK AN INJUNCTION FROM THE COURT THAT THE COMMISSION SHOULD REOPEN THE COMPETITIONS FOR WHICH THE APPLICANTS WERE ENROLLED, INSOFAR AS THEY ARE CONCERNED .

3 FURTHER, CASE 112/73 SEEKS THE ANNULMENT OF THE LETTER SENT ON 11 JULY 1972 BY A MEMBER OF THE COMMISSION REFUSING TO TAKE ACCOUNT OF THE COMPLAINTS OF THE FIRST APPLICANT AS REGARDS THE ORGANIZATION OF THE COMPETITIONS IN QUESTION .

4 THIS CLAIM IS COMPLETELY COVERED BY THE MAIN OBJECT OF THE APPLICATIONS .

5 SINCE THESE APPLICATIONS RELATE, TO A LARGE EXTENT, TO THE SAME FACTS AND ARE SUPPORTED BY IDENTICAL SUBMISSIONS, IT IS APPROPRIATE TO DEAL WITH THEM IN A SINGLE JUDGMENT .

6 AT ITS SESSION ON 22 JULY 1971 THE COMMISSION DISCUSSED, FOR THE PURPOSE OF CONSTITUTING A RESERVE FOR FUTURE RECRUITMENT TO POSTS IN THE CAREER BRACKET A7/A6, THE ORGANIZATION OF INTERNAL COMPETITIONS ON THE BASIS OF QUALIFICATIONS AND TESTS, WHEREBY THOSE ENTERED ON A LIST OF SUCCESSFUL CANDIDATES - ACCORDING TO THE APPLICANTS - OR ON SEVERAL SUCH LISTS - ACCORDING TO THE DEFENDANT - WOULD BE ENTITLED TO BE APPOINTED TO VACANT ADMINISTRATIVE POSTS AND THEREBY MOVE TO ANOTHER GRADE .

7 THE MINUTES OF THIS MEETING MENTIONED, INTER ALIA, THAT THEY WERE 'PROMOTION COMPETITIONS FOR OFFICIALS IN CATEGORY B', THAT SIX COMPETITIONS, SPECIALIZED ACCORDING TO SUBJECT, WOULD BE ORGANIZED TO COVER ALL THE DIFFERENT SECTIONS OF THE COMMISSION AND THAT PROCEDURE WOULD BE LAID DOWN ENSURING THE HARMONIZATION OF THE CRITERIA TO BE FOLLOWED BY THE VARIOUS SELECTION BOARDS .

8 ON 3 NOVEMBER 1971 THE COMMISSION PUBLISHED FIVE NOTICES OF COMPETITION, RELATING TO FIVE DIFFERENT SPHERES, THAT IS : COM/A/264 LEGAL AND ADMINISTRATIVE, COM/A/265 ECONOMIC, COM/A/266 FINANCE AND ACCOUNTING, COM/A/267 SOCIAL AND COM/A/268 AGRICULTURAL AND TECHNICAL, EACH OF THEM MOREOVER CONTAINING DIFFERENT OPTIONS .

9 THESE NOTICES OF COMPETITION DID NOT STATE AN AGE LIMIT .

10 ADMISSION TO THE TESTS WAS NOT LIMITED ONLY TO EMPLOYEES OF CATEGORY B; OFFICIALS OF GRADES LA AND C TOOK PART IN THE TESTS .

11 THE FIRST APPLICANT ENROLLED FOR COMPETITION COM/A/264 ( LEGAL AND ADMINISTRATIVE ) AND OPTED FOR 'INSTITUTIONAL QUESTIONS ON THE COMMUNITIES'; THE THIRD APPLICANT ENTERED THE SAME COMPETITION AND OPTED FOR 'RULES OF COMPETITION' AND THE SECOND APPLICANT ENTERED COMPETITION COM/A/265 ( ECONOMICS ) AND OPTED FOR 'INTERNATIONAL TRADE '.

12 ON 15 JUNE 1972 EACH WAS INFORMED THAT HAVING REGARD TO THE RESULT OF THE TESTS IT HAD NOT BEEN POSSIBLE TO INCLUDE HIM OR HER ON THE LIST OF SUITABLE CANDIDATES .

13 THE APPLICANTS, APART FROM CERTAIN SUBMISSIONS SPECIAL TO THEIR OWN CASE, DIRECT THEIR ARGUMENTS IN PARTICULAR TO FOUR SUBMISSIONS, THE FIRST THREE RELATING TO THE REGULARITY OF THE ORGANIZATION OF COMPETITIONS FOR THE PURPOSE OF DRAWING UP A RESERVE FOR FUTURE RECRUITMENT AND THE FOURTH RELATING TO THE INFRINGEMENT OF ARTICLE 1 ( G ) OF ANNEX III TO THE STAFF REGULATIONS RELATING TO THE REQUIREMENT TO STATE AN AGE LIMIT IN NOTICES OF COMPETITION .

14 IT IS PROPER TO CONSIDER THESE SUBMISSIONS FIRST .

I - SUBMISSIONS COMMON TO THE THREE APPLICATIONS

15 THE APPLICANTS STATE IN THE FIRST PLACE THAT ALL THE COMPETITIONS IN DISPUTE ARE VITIATED BY ILLEGALITY BY REASON OF THE FACT THAT THE COMMISSION DID NOT HARMONIZE THE CRITERIA TO BE USED BY THE VARIOUS SELECTION BOARDS AND THE CONDITIONS OF THE TESTS, AS IT OUGHT TO HAVE DONE, HAVING REGARD TO THE FACT THAT IT WAS REALLY A SINGLE COMPETITION OR AT LEAST THE COMPETITIONS WERE TO RESULT IN A SINGLE LIST OF SUITABLE CANDIDATES, SINCE IT WAS INTENDED TO CONSTITUTE A SINGLE RESERVE FOR FUTURE RECRUITMENT .

16 DISCRIMINATION HAD THEREFORE ARISEN, IN PARTICULAR TO THE DETRIMENT OF THE APPLICANTS, BETWEEN CANDIDATES IN CERTAIN COMPETITIONS IN RELATION TO CANDIDATES ENROLLED IN OTHERS .

17 FURTHER, AS REGARDS THEIR LEGALITY, THESE COMPETITIONS MUST, FOR THE SAME REASONS, BE DEALT WITH AS A WHOLE, SO THAT IRREGULARITY IN ONE - TO THE ADVANTAGE OF CERTAIN CANDIDATES - WOULD INVOLVE THE ILLEGALITY OF ALL .

18 UNDER ARTICLE 45 ( 2 ) OF THE STAFF REGULATIONS; 'AN OFFICIAL MAY BE TRANSFERRED FROM ONE SERVICE TO ANOTHER OR PROMOTED FROM ONE CATEGORY TO ANOTHER ONLY ON THE BASIS OF A COMPETITION '.

19 MOREOVER, RECRUITMENT BY MEANS OF COMPETITION FOR THE PURPOSE OF CONSTITUTING A RESERVE FOR FUTURE RECRUITMENT IS EXPRESSLY PROVIDED FOR IN ARTICLE 29 ( 1 ) OF THE SAME REGULATIONS .

20 THE COMBINATION OF THESE PROVISIONS UNQUESTIONABLY PERMITS THE ORGANIZATION OF COMPETITIONS AIMED AT CONSTITUTING A RESERVE FOR FUTURE RECRUITMENT OF SUCCESSFUL CANDIDATES BELONGING TO A LOWER CATEGORY WHO ARE INTENDED TO BE APPOINTED SUBSEQUENTLY, ACCORDING TO THE REQUIREMENTS OF THE SERVICE, TO ADMINISTRATIVE POSTS IN THE CAREER BRACKET A7/A6 .

21 SINCE THE CONSTITUTION OF SUCH A RESERVE AIMS, BY REASON OF ITS GENERAL NATURE, AT PROVIDING FOR VACANCIES RELATING TO THE SAME POST AND CAREER BRACKET, BUT COMPRISING THE PERFORMANCE OF DIFFERENT DUTIES, IT CAN BE ACHIEVED BY MEANS OF SEVERAL COMPETITIONS WHICH ARE HARMONIZED TO A CERTAIN DEGREE .

22 THIS HARMONIZATION, WHICH THE COMMISSION SOUGHT, WAS ACHIEVED FIRST BY THE ORGANIZATION OF COMMON TESTS OF A GENERAL NATURE AND THEN COMPLETED BY DIFFERENT TESTS RELATING TO SPHERES OF SPECIFIC KNOWLEDGE .

23 FINALLY IT FOUND EXPRESSION IN THE CONSTITUTION OF A COMMITTEE COMPOSED OF MEMBERS OF THE VARIOUS SELECTION BOARDS, WHICH MET TWICE BEFORE THE TESTS TOOK PLACE FOR THE PURPOSE OF PLANNING THE WORK OF THE SELECTION BOARDS AND ONCE AFTERWARDS TO HARMONIZE THE MARKS TO A CERTAIN EXTENT, OF A WORKING PARTY WHICH LAID DOWN INSTRUCTIONS TO BE GIVEN TO THE MARKERS, ALL FOR THE PURPOSE OF ACHIEVING, WHILE RESPECTING THE INDEPENDENCE OF THE SELECTION BOARDS, LISTS OF SUITABLE CANDIDATES 'OF COMPARABLE QUALITY '.

24 THE COMMISSION, WHILE SEEKING TO HARMONIZE TO A CERTAIN EXTENT THE TESTS IN QUESTION, WAS ENTITLED, AS IT HAS DONE, TO ORGANIZE DIFFERENT COMPETITIONS LEADING TO DIFFERENT LISTS OF SUITABLE CANDIDATES TO MEET THE REQUIREMENTS TO PROVIDE FOR DIFFERENT DUTIES, ALTHOUGH ALL RELATING TO THE POST OF ADMINISTRATOR, SUBJECT NEVERTHELESS TO THE CONDITION THAT ONLY OFFICIALS WHO HAD BEEN SUCCESSFUL AT A COMPETITION IN A SPHERE RELATING TO THE DUTIES TO BE PERFORMED WOULD AS A RESULT BE PROMOTED .

25 IT APPEARS FROM A COMPARISON OF THE SUBJECTS CHOSEN BY THE CANDIDATES WITH THE NOTICES OF VACANCIES TO WHICH THEY HAVE SUBSEQUENTLY BEEN PROMOTED THAT SUCH WAS THE CASE, AT LEAST IN THE GREAT MAJORITY OF CASES .

26 IF IN CERTAIN CASES THE NECESSITY FOR SUCH CORRESPONDENCE HAS BEEN DISREGARDED, IT DOES NOT FOLLOW THAT THE COMPETITIONS ARE ILLEGAL BUT ONLY THAT THE REGULARITY OF THESE PROMOTIONS WOULD BE DOUBTFUL .

27 THE SELECTION BOARD OF EACH COMPETITION THEREFORE HAD TO RECONCILE THE ADVISABILITY OF HARMONIZING TO A CERTAIN EXTENT THE TEST CONDITIONS AND THE NECESSITY TO JUDGE, ACCORDING TO THE APPROPRIATE CRITERIA, THE EXPERIENCE OF THE CANDIDATES FOR THE PURPOSE OF PERFORMING THE DUTIES FOR WHICH SUCCESS AT THE COMPETITION SELECTED MARKED THEM OUT .

28 SUCH RECONCILIATION IS, UNDER THE TERMS OF THE NOTICE OF COMPETITION, THE RESPONSIBILITY OF EACH SELECTION BOARD AND IS GUARANTEED BY ITS INDEPENDENCE AND THE SECRECY OF THE PROCEEDINGS LAID DOWN BY THE REGULATIONS .

29 THUS DIFFERENCES IN ASSESSMENT FROM ONE COMPETITION TO ANOTHER ARE NOT ONLY INEVITABLE BUT PROPER, EVEN AS REGARDS THE COMMON TESTS, SINCE THE ASSESSMENT OF THE IMPORTANCE OF THESE LATTER MAY VARY IN THE EYES OF THE DIFFERENT SELECTION BOARDS IN RELATION TO THE VARIOUS ABILITIES WHICH THE PERFORMANCE OF DIFFERENT DUTIES REQUIRES .

30 NO PURPOSE IS SERVED BY THE APPLICANTS, CITING IN SUPPORT OF THEIR POINT OF VIEW THAT IT WAS IN TRUTH A SINGLE COMPETITION, THE FACT THAT IN THE STAFF COURIER NO 216, OF 26 JUNE 1972, THE COMMISSION PUBLISHED A SINGLE LIST OF SUITABLE CANDIDATES COMPRISING ALL THE CANDIDATES .

31 THIS PUBLICATION COMPRISES THE ALPHABETICAL LIST OF ALL THE CANDIDATES WHO CONSTITUTE THE RESERVE FOR FUTURE RECRUITMENT TO THE COMPILATION OF WHICH EACH OF THE DIFFERENT COMPETITIONS HAD TO CONTRIBUTE, BUT BESIDE THE NAME OF EACH OFFICIAL THERE IS NOTED THE COMPETITION IN WHICH HE TOOK PART AND, MOREOVER, LISTS OF SUITABLE CANDIDATES IN RELATION TO EACH COMPETITION WERE TRANSMITTED BY THE SELECTION BOARDS TO THE COMMISSION .

32 SINCE, THEREFORE, IT IS ESTABLISHED IN THE PRESENT CASE THAT THERE WERE SEPARATE COMPETITIONS, THE TESTS FOR WHICH WERE JUDGED BY SEPARATE SELECTION BOARDS, THE APPLICANTS CANNOT COMPLAIN OF DIFFERENCES BETWEEN THE CONDITIONS OF THE COMPETITION IN WHICH EACH OF THEM PARTICIPATED AND THE OTHERS .

33 THEIR INDICATION OF EVIDENCE IN THIS RESPECT MUST THEREFORE BE REJECTED AS IRRELEVANT TO THE CASE .

34 THE APPLICANTS ALLEGE IN THE SECOND PLACE THAT THE COMPETITIONS WERE CONCEIVED AND ORGANIZED, NOT IN THE INTERESTS OF THE SERVICE, BUT FOR THE PURPOSE OF ADVANCING CERTAIN SPECIFIC CANDIDATES .

35 IN SPITE OF THE SERIOUSNESS OF THIS ALLEGATION, THERE HAS BEEN NO EVIDENCE NOR INDICATION OF EVIDENCE IN SUPPORT OF IT AND THEREFORE IT MUST BE REJECTED .

36 THE APPLICANTS FURTHER STATE THAT THE COMPETITIONS ARE VITIATED BY MISUSE OF POWERS IN THAT, ALTHOUGH THEY WERE CONCEIVED AS 'PROMOTION COMPETITIONS' MAINLY TO OPEN ADMISSION TO CATEGORY A FOR OFFICIALS OF CATEGORY B, PRESSURE WAS SUBSEQUENTLY EXERTED ON THE SELECTION BOARDS TO INDUCE THEM TO BE MORE SEVERE SO AS TO RESTRICT THE NUMBER OF SUCCESSFUL CANDIDATES AND THUS MAKE POSSIBLE A LARGER RECRUITMENT BY MEANS OF EXTERNAL COMPETITIONS .

37 THE PROVISION OFRESERVES FOR FUTURE RECRUITMENT IS A FACTOR IN THE RECRUITMENT POLICY OF THE APPOINTING AUTHORITY .

38 IT IS ESTABLISHED THAT THE COMMISSION, BEFORE THE ENLARGEMENT OF THE COMMUNITY BY THE ACCESSION OF THE NEW MEMBER STATES, INTENDED BY THIS MEANS TO OPEN UP TO EXPERIENCED OFFICIALS IN CATEGORY B WHO GAVE PROOF OF THEIR ABILITY, ACCESS TO POSTS IN CATEGORY A, THE NUMBER OF WHICH WAS ABOUT TO BE INCREASED .

39 HOWEVER, FROM 22 JULY 1971, PARALLEL WITH THE ORGANIZATION OF INTERNAL COMPETITIONS IN OCTOBER 1971, IT HAD PROVIDED FOR THE ORGANIZATION BEFORE THE END OF 1971 OF EXTERNAL COMPETITIONS FOR THE PURPOSE OF FILLING THE SAME POSTS .

40 HAVING DECIDED TO COMBINE THE TWO METHODS FOR THE ADDITIONAL RECRUITMENTS IN CATEGORY A, IN THE LIGHT OF THE ENLARGEMENT OF THE COMMUNITY, THE COMMISSION WAS JUSTIFIED IN ASKING THE SELECTION BOARDS TO HAVE REGARD, IN THEIR ASSESSMENT CRITERIA, TO THE NATURE AND OBJECTIVES OF THE RECRUITMENT ENVISAGED, WHILE NEVERTHELESS RESPECTING THE INDEPENDENCE OF THE SAID SELECTION BOARDS .

41 THE COMMISSION COULD THEREFORE ASK THE SELECTION BOARDS TO HAVE REGARD TO THE APPROXIMATE NUMBER OF POSTS IN THE CAREER BRACKET A7/A6 WHICH IT ANTICIPATED FILLING FROM THE RESERVE FOR FUTURE RECRUITMENT TO BE CONSTITUTED .

42 THE APPLICANTS PUT FORWARD THE FACT THAT, FIRST, THE MINUTES OF THE MEETINGS OF THE SELECTION BOARD FOR COMPETITION COM/A/268 SHOW THAT THE MEMBERS OF THIS SELECTION BOARD REFUSED TO FOLLOW A SUGGESTION BY THE CHAIRMAN TO REDUCE EN BLOC ALL THE MARKS LESS THAN 53 TO LESS THAN 48 POINTS - THE LIMIT FOR ENTRY ON THE LIST OF SUITABLE CANDIDATES - AND THAT, SECONDLY, THE PROPORTION OF CANDIDATES ENTERED ON THE LIST OF SUITABLE CANDIDATES FROM THIS COMPETITION IS MUCH HIGHER THAN IN THE OTHERS .

43 THEY INFER THAT THE SELECTION BOARDS IN THE OTHER COMPETITIONS AND IN PARTICULAR THOSE IN THE COMPETITIONS IN WHICH THEY PARTICIPATED, COMPLYING WITH THE DIRECTIONS, ALTERED THE MARKS .

44 IN SUPPORT OF THIS ALLEGATION THE THIRD APPLICANT STATED THAT A MEMBER OF THE SELECTION BOARD COM/A/264 TOLD A THIRD PERSON THAT THE APPLICANT HAD BEEN SUCCESSFUL IN THE COMPETITION, WHEREAS IT APPEARED SUBSEQUENTLY THAT HER MARK WAS 47 .

45 THE FIRST APPLICANT STATES FOR HER PART THAT HER MARKS WERE REDUCED FROM 52 TO 47 BY THE SELECTION BOARD COM/A/264 .

46 THE APPLICANTS INDICATE ORAL TESTIMONY OF THE FACTS WHICH THEY STATE .

47 IT APPEARS FROM A COMPARATIVE EXAMINATION OF THE RESULTS OF THE DIFFERENT COMPETITIONS THAT THE PROPORTION OF SUCCESSFUL CANDIDATES MAY BE SET OUT IN A DECREASING ORDER AS FOLLOWS : 55 PER CENT ( COM/A/268 : 28 OUT OF 51 ); 30.9 PER CENT ( COM/A/264 : 17 OUT OF 55 ); 21.2 PER CENT ( COM/A/266 : 12 OUT OF 44 ); 20.5 PER CENT ( COM/A/267 : 8 OUT OF 39 ) AND 15.7 PER CENT ( COM/A/265 : 10 OUT OF 64 ).

48 ALTHOUGH THESE FIGURES CERTAINLY REVEAL MARKED DIFFERENCES CAPABLE OF BEING EXPLAINED EITHER BY THE DIFFICULTY OF THE SUBJECTS, OR BY THE SEVERITY OF THE SELECTION BOARDS OR THE STATE OF PREPARATION OF THE CANDIDATES, THEY DO NOT IN ANY WAY SHOW A SHARP DIVISION BETWEEN THE COMPETITION COM/A/268 ON THE ONE HAND AND ALL THE OTHER COMPETITIONS ON THE OTHER, AND DO NOT IN ANY WAY SUPPORT THE PRESUMPTION THAT THE SELECTION BOARDS OF THE OTHER COMPETITIONS HAD YIELDED TO PRESSURE OR CONSIDERATIONS ALIEN TO THEIR TASK, WHICH THE SELECTION BOARD COM/A/268 HAS RESISTED .

49 FURTHER IT APPEARS FROM THE FILE THAT IN THEIR CONTACTS WITH THE DEPARTMENT ENTRUSTED WITH THE ORGANIZATION OF THE COMPETITIONS, THE SELECTION BOARDS DID NOT CEASE TO ASSERT THEIR INDEPENDENCE TO REJECT THE SUGGESTIONS WHICH THE COMMISSION HAD MADE .

50 FINALLY IT APPEARS FROM THE LETTER WRITTEN, IN TEMPORE NON SUSPECTO, BY MR KRAUSS, CHAIRMAN OF THE SELECTION BOARD COM/A/268, THAT 'WHEN THERE WERE SIGNS THAT THE SELECTION BOARDS WERE NOT HAVING REGARD TO THE FIGURES ASSESSED BY MR COPPE, THERE WAS ANOTHER MEETING, WHICH FAILED TO INFLUENCE THE SELECTION BOARDS, WHO INSISTED ON THEIR INDEPENDENCE' AND THAT 'THERE WAS NO NUMERUS CLAUSUS AND THAT MOREOVER THE SELECTION BOARDS ACTED IN THE INDEPENDENCE WHICH IS NOT ONLY GUARANTEED THEM BUT IMPOSED UPON THEM BY THE REGULATIONS '.

51 IN THESE CIRCUMSTANCES, INDICATION OF EVIDENCE TO SHOW EVEN AN EXCEPTIONAL SEVERITY ON THE PART OF CERTAIN SELECTION BOARDS IN RELATION TO OTHERS CANNOT LEAD TO FINDING THAT THE COMPETITION IN QUESTION IS VITIATED BY ILLEGALITY BY REASON OF THIS, SINCE IT APPEARS FROM THE FILE THAT THIS SEVERITY WAS NOT THE RESULT EITHER OF EXTERNAL PRESSURE OR OF CONSIDERATIONS ALIEN TO THE PROPER FUNCTIONING OF THE SERVICE .

52 THE SAME WOULD APPLY TO THE FACT, IF IT WERE ESTABLISHED, THAT THE MARKS OF CERTAIN CANDIDATES HAD BEEN REDUCED DURING THE DELIBERATIONS .

53 MOREOVER, THE EXAMINATION OF ABILITY WHICH SELECTION BOARDS MUST UNDERTAKE IS ABOVE ALL OF A COMPARATIVE NATURE AND, FOR THIS REASON, COVERED BY THE CLOAK OF SECRECY INHERENT IN SUCH DELIBERATIONS, SO THAT THEY CANNOT BE SUBJECTED TO CONTROL BY THE COURT EXCEPT IN THE EVENT OF OBVIOUS INFRINGEMENT OF THE RULES WHICH GOVERN THE PROCEEDINGS OF SELECTION BOARDS .

54 SINCE THIS IS NOT SO IN THE PRESENT CASE THE SUBMISSION MUST BE REJECTED .

55 THE APPLICANTS ALSO MAINTAIN THAT THE PROCEDURES OF COMPETITION WERE IRREGULAR BY REASON OF THE FACT THAT, IN INFRINGEMENT OF ARTICLE 1 ( G ) OF ANNEX III OF THE STAFF REGULATIONS 1968, THE NOTICES OF COMPETITION DATED 3 NOVEMBER 1971 DO NOT CONTAIN AN AGE LIMIT .

56 THIS PROVISION, AS IT STOOD BEFORE ITS AMENDMENT BY ARTICLE 48 OF REGULATION NO 1473/72 OF 30 JUNE 1972, ( OJ L 160 OF 16 . 7 . 1972, P . 10 ), REQUIRED THE MENTION, IN THE NOTICE OF COMPETITION, OF THE AGE LIMIT AS WELL AS THE EXTENSION OF THIS LIMIT AS REGARDS OFFICIALS WHO HAVE COMPLETED NOT LESS THAN ONE YEAR'S SERVICE .

57 THE COMMISSION, WHICH WAS COMPETENT TO ISSUE THESE NOTICES, HAD INTERPRETED THIS PROVISION AS DISPENSING IT FROM MENTIONING AN AGE LIMIT WHEN IT DID NOT INTEND TO IMPOSE ONE .

58 IN THE PRESENT CASE, HAVING REGARD TO THE NATURE OF THE COMPETITIONS IN QUESTION AND IN PARTICULAR THE FACT THAT INTERNAL COMPETITIONS WERE INVOLVED, WHICH WERE INTENDED TO PROVIDE A RESERVE FOR FUTURE RECRUITMENT OF A LIMITED PERIOD OF VALIDITY, THE COMMISSION CONSIDERED, AS IT COULD WELL DO, THAT AN AGE LIMIT WAS NOT REQUIRED IN THE INTEREST OF THE SERVICE .

59 FOLLOWING THE JUDGMENT OF THIS COURT, FIRST CHAMBER, OF 22 MARCH 1972, IN CASE 78/71 ( COSTACURTA ), ACCORDING TO WHICH THIS DECISION MUST BE EXPRESSLY STATED, IT FORMALLY GAVE NOTICE OF THE DECISION WHICH IT HAD TAKEN IN THIS RESPECT IN THE STAFF COURIER OF 29 MARCH 1972, AT A TIME WHEN THE PROCEDURES OF COMPETITION HAD ALREADY BEEN INITIATED .

60 THIS NOTICE, ALTHOUGH LATE, NEVERTHELESS SATISFIES, IN THE CIRCUMSTANCES OF THE CASE, THE REQUIREMENTS OF ARTICLE 1 OF ANNEX III, THE OBJECTIVE OF WHICH IT REALIZED BY PRECLUDING THE ELIMINATION OF CANDIDATES BY REASON OF THEIR AGE .

61 IT IS ESTABLISHED THAT NEITHER AT THE STAGE OF ADMISSION TO THE TESTS, NOR AT ANY STAGE IN THE PROCEDURE OF THE COMPETITION OR THE SUBSEQUENT PROCEDURES OF PROMOTION, HAS AN OFFICIAL BEEN EXCLUDED ON THE GROUNDS OF AGE .

62 THE SUBMISSION MUST THEREFORE BE REJECTED .

63 FOLLOWING THE PRODUCTION, DURING THE ORAL PROCEDURE, OF THE MINUTES OF THE MEETING OF 22 JULY 1972, AT WHICH THE ORGANIZATION OF THE COMPETITIONS IN QUESTION WERE BEING CONSIDERED BY THE COMMISSION, THE APPLICANTS PUT FORWARD ADDITIONAL CONSIDERATIONS AMONG WHICH IT IS POSSIBLE TO DISCERN THREE NEW SUBMISSIONS .

64 THEY STATE THAT AT THE MEETING REFERENCE IS MADE TO SIX COMPETITIONS WHEREAS ONLY FIVE WERE ORGANIZED, THAT IT INDICATES THAT THE COMPETITIONS WERE TO BE RESERVED FOR OFFICIALS OF CATEGORY B WHEREAS OFFICIALS OF THE LA SERVICE TOOK PART, AND FINALLY THAT EACH CANDIDATE WAS TO HAVE A CARD GIVING HIS PARTICULARS WHICH WAS TO BE MADE OUT BY THE ADMINISTRATION AND NOT BY THE CANDIDATES, AS WAS THE CASE .

65 ACCORDING TO THE APPLICANTS THIS INVOLVED IRREGULARITIES VITIATING THE LEGALITY OF THE COMPETITIONS IN QUESTION .

66 WITHOUT DEALING WITH THE QUESTION OF WHETHER, AT THIS STAGE OF THE PROCEDURE, THE PRODUCTION OF NEW SUBMISSIONS IS ADMISSIBLE, IT IS RIGHT IN THE FIRST PLACE TO OBSERVE THAT THE DECISION ON THE ORGANIZATION OF THE COMPETITION TAKES ITS LEGAL AND FINAL FORM FROM THE NOTICES OF COMPETITION BROUGHT TO THE NOTICE OF THE PERSONNEL .

67 THE DELIBERATIONS OF THE COMPETENT BODY AS THEY APPEAR FROM THE MINUTES CANNOT OVERRIDE THE CLEAR WORDING OF THE DECISION IN QUESTION UNLESS THEY OBVIOUSLY SHOW THAT THE FORMAL DECISION IS NOT IN ACCORD WITH WHAT WAS IN FACT LAID DOWN AT THE END OF THE DELIBERATIONS .

68 THIS IS NOT SO IN THE PRESENT CASE .

69 THE FILE SHOWS THAT THE FACT SIX COMPETITIONS WERE PROVIDED FOR AND ONLY FIVE ORGANIZED AROSE BECAUSE COMPETITION COM/A/268 COMBINED TESTS RELATING ON THE ONE HAND TO AGRICULTURAL SUBJECTS AND ON THE OTHER HAND TO DATA PROCESSING .

70 ALTHOUGH THIS FACT DOES NOT REVEAL A PUNCTILIOUS METHOD OF PROCEEDING, IT IS NEVERTHELESS IN NO WAY SUCH AS TO VITIATE THE LEGALITY OF THE ACTS CHALLENGED .

71 FURTHER, ALTHOUGH IT IS ESTABLISHED THAT THE COMPETITIONS IN QUESTION WERE CERTAINLY INTENDED TO ENABLE OFFICIALS IN CATEGORY B TO ADVANCE TO CATEGORY A, NEITHER THE WORDING NOR THE SPIRIT OF THE MINUTES PROVIDES ANY BASIS FOR THE CONCLUSION THAT THEY WERE TO BE LIMITED EXCLUSIVELY TO OFFICIALS IN THIS CATEGORY .

72 ON THE CONTRARY, GIVEN THE FACT OF PROVIDING A GENERAL RESERVE, HAVING REGARD TO THE ARRIVAL OF OFFICIALS FROM THE NEW MEMBER STATES, DISCRIMINATION AGAINST THE OFFICIALS OF OTHER CATEGORIES, FULFILLING THE CONDITIONS OF ADMISSIBILITY, WOULD HAVE BEEN OBJECTIONABLE .

73 THE MINUTES CONTAIN NO REFERENCE ENABLING THE CONCLUSION TO BE DRAWN THAT THE CARDS WITH THE PARTICULARS OF THE CANDIDATES COULD NOT BE COMPLETED BY THE CANDIDATES .

74 THE SUBMISSIONS MUST THEREFORE IN ANY EVENT BE REJECTED .

II - SUBMISSIONS SPECIAL TO THE VARIOUS APPLICATIONS

APPLICATION 112/73, CAMPOGRANDE

75 MISS CAMPOGRANDE, WHO AT FIRST WAS NOT ACCEPTED AS A CANDIDATE FOR COMPETITION COM/A/264, WAS ADVISED ON 22 MARCH 1972 THAT SHE WAS ADMITTED TO THE TESTS .

76 SHE IS THUS SAID TO HAVE BEEN THE VICTIM OF DISCRIMINATION, FIRST BECAUSE THE WRITTEN TESTS BEGAN THE FOLLOWING DAY, 23 MARCH 1972, AND SECONDLY, BECAUSE SHE WAS ACCORDINGLY UNABLE TO ACQUAINT HERSELF WITH THE DOCUMENTATION SENT WITH THE LETTER OF ADMISSION TO THE TESTS UNTIL 12 DAYS LATER THAN THE OTHER CANDIDATES .

77 ACCORDING TO THE NOTICE OF COMPETITION COM/A/264 THE WRITTEN TEST COMPRISED 'THE DRAFTING OF A DEPARTMENTAL NOTE OR MINUTES OF A MEETING ON SUBJECTS TO BE DETERMINED BY THE SELECTION BOARD '.

78 A TEST OF THIS NATURE DOES NOT PRESUPPOSE ON THE PART OF THE CANDIDATES ANY PREPARATION IN A PARTICULAR SUBJECT .

79 FURTHER, THE NATURE OF THIS TEST WAS MADE PUBLIC AS FROM 3 NOVEMBER 1971 BY A NOTICE IN THE STAFF COURIER OF THAT DATE .

80 FURTHER, THE DOCUMENTATION COMMUNICATED BY THE LETTER OF ACCEPTANCE FOR THE TESTS CONCERNED ONLY THE ORAL TESTS WHICH TOOK PLACE FROM 10 TO 28 APRIL 1972 .

81 THE REFUSAL WITH WHICH SHE WAS AT FIRST CONFRONTED HAVING BEEN WITHDRAWN AT HER REQUEST, THE APPLICANT IS NO LONGER ENTITLED TO CHALLENGE UNDER THIS HEADING THE LEGALITY OF THE COMPETITION IN WHICH SHE VOLUNTARILY TOOK PART .

APPLICATIONS 112 AND 145/73, CAMPOGRANDE AND BOUYSSOU

82 THE APPLICANTS CAMPOGRANDE AND BOUYSSOU STATE, AND INDICATE EVIDENCE, THAT A CANDIDATE IN COMPETITION COM/A/264 WAS ABLE TO TAKE THE LANGUAGE TEST IN ENGLISH .

83 EVEN IF THIS IS SO IT DOES NOT APPEAR THAT IT WAS TAKEN INTO ACCOUNT BY THE SELECTION BOARD IN ITS COMPARATIVE ASSESSMENT, SINCE THE CANDIDATE IN QUESTION WAS NOT ENTERED ON THE LIST OF SUITABLE CANDIDATES .

APPLICATIONS 144/73 AND 145/73, DE VLEESCHAUWER AND BOUYSSOU

84 ACCORDING TO THE APPLICANTS DE VLEESCHAUWER AND BOUYSSOU THE WRITTEN TEST DID NOT CORRESPOND WITH THE DESCRIPTION WHICH WAS GIVEN OF IT IN THE NOTICE OF COMPETITION .

85 IT IS ALLEGED THAT IT WAS STATED ORALLY TO THE CANDIDATES AT THE BEGINNING OF THE TEST THAT THE TEST WOULD COMPRISE, IN ADDITION TO THE MEMORANDUM, A CRITICAL ASSESSMENT, WHEREAS THE NOTICE OF COMPETITION PROVIDED FOR THE 'DRAFTING' OF A STAFF MEMORANDUM OR MINUTES OF A MEETING, ON SUBJECTS TO BE DETERMINED BY THE SELECTION BOARD .

86 THIS FACT, IT IS CLAIMED, LED TO DISCRIMINATION BETWEEN CANDIDATES, SINCE THE ORAL INSTRUCTIONS WERE VARIOUSLY TRANSLATED AND UNDERSTOOD .

87 A COMPETITION WAS INVOLVED, THE SUCCESSFUL CANDIDATES IN WHICH WOULD BE CALLED UPON TO BE APPOINTED TO ADMINISTRATIVE POSTS IN THE CAREER BRACKET A7/A6 .

88 UNDER ARTICLE 5 OF THE STAFF REGULATIONS THIS CATEGORY COMPRISES CAREER BRACKETS 'CONTAINING ... STAFF ENGAGED IN ADMINISTRATIVE AND ADVISORY DUTIES '.

89 ALTHOUGH THE 'DRAFTING' OF A STAFF MEMORANDUM OR MINUTES OF A MEETING DOES NOT NECESSARILY INVOLVE A CRITICAL ASSESSMENT, IT DOES NOT HOWEVER EXCLUDE IT, AND A CALL UPON THE CRITICAL FACULTY OF CANDIDATES FOR A POST IN CATEGORY A SHOULD NOT SO SURPRISE THEM AS TO CONSTITUTE AN IRREGULARITY INVOLVING THE ANNULMENT OF THE COMPETITION .

APPLICATION 144/73, DE VLEESCHAUWER

90 THE SECOND APPLICANT NOTES FURTHER A SERIES OF POINTS OF DETAIL RELATING TO THE PREPARATION OF COMPETITION COM/A/265 OR TO THE CONDUCT OF THE TESTS .

91 HE REFERS TO THE INCLUSION, SUBSEQUENT TO THE NOTICE OF COMPETITION, OF AN ADDITIONAL OPTION RELATING TO THE USE OF ENERGY, TO IRREGULARITIES IN THE PROVISION OF INFORMATION AS TO THE BIBLIOGRAPHY TO BE CONSULTED BY CANDIDATES AND TO DIFFERENCES OF A LINGUISTIC NATURE IN THE COURSE OF TESTS .

92 THE LATE INCLUSION OF A NEW OPTION CANNOT BE DISCRIMINATORY EXCEPT AS REGARDS CANDIDATES WHO HAVE CHOSEN THIS OPTION, WHICH IS NOT THE CASE WITH THE APPLICANT .

93 THE IRREGULARITY IN THE INFORMATION AS TO THE BIBLIOGRAPHY CONSISTS IN THE FACT THAT THERE WAS REFERENCE TO AN INTERNAL DOCUMENT OF THE COMMISSION WHICH EXISTS ONLY IN FRENCH AND GERMAN .

94 ALTHOUGH THE APPLICANT, WHO HAD CHOSEN DUTCH FOR THE TESTS, IS ENTITLED TO HAVE THEM CONDUCTED IN THAT LANGUAGE AS FAR AS HE IS CONCERNED, THERE IS NO DISCRIMINATION WITH REGARD TO THE DIFFERENT CANDIDATES IN REFERRING FROM AMONG THE TEXTS AND WORKS INTENDED TO FACILITATE THE PREPARATION OF THE COMPETITION, INTER ALIA, TO TEXTS AND WORKS WRITTEN IN LANGUAGES DIFFERENT FROM THAT WHICH THEY HAVE SELECTED FOR THE TESTS .

95 FINALLY THE SECOND APPLICANT COMPLAINS OF HAVING BEEN THE VICTIM OF DISCRIMINATION IN THAT, HAVING CHOSEN, ALLEGEDLY AS A RESULT OF A WRONG INTERPRETATION OF THE PHRASE 'MOTHER TONGUE' IN THE NOTICE OF COMPETITION, TO DO THE TESTS IN DUTCH, HE WAS REQUIRED TO TRANSLATE INTO THAT LANGUAGE, WHEREAS FRENCH IS HIS MAIN WORKING LANGUAGE .

96 IT IS THE RULE IN LANGUAGE TESTS TO REQUIRE TRANSLATION INTO THE LANGUAGE CHOSEN BY THE CANDIDATE IN WHICH TO TAKE THE TEST AND THIS RULE HAS BEEN OBSERVED IN THE CASE OF THE SECOND APPLICANT .

97 THESE VARIOUS COMPLAINTS CANNOT BE UPHELD .

98 THE APPLICATIONS MUST THEREFORE BE REJECTED .

Decision on costs

99 THE APPLICANTS HAVE FAILED IN THEIR APPLICATIONS .

100 BY ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS IF THEY HAVE BEEN ASKED FOR IN THE SUCCESSFUL PARTY'S PLEADING .

101 NEVERTHELESS, UNDER ARTICLE 70 OF THE RULES OF PROCEDURE, IN PROCEEDINGS BROUGHT BY SERVANTS OF THE COMMUNITIES, INSTITUTIONS SHALL BEAR THEIR OWN COSTS .

Operative part

ON THOSE GROUNDS,

THE COURT ( FIRST CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATIONS .

2 . ORDERS EACH PARTY TO BEAR ITS OWN COSTS .