II —

Between those two dates of 17 and 25 May there occurred an incident which, according to the applicant, shows that the provisions of Article 6 of Annex III to the Staff Regulations, which provides that ‘the proceedings of the Selection Board shall be secret’ were infringed. For on the morning of 19 May, Mr Costacurta was informed by one of his colleagues that at a private party held on the previous evening a member of the Selection Board had revealed the unfavourable decision already taken with regard to the applicant at the meeting on 17 May. The latter immediately sent a memorandum of protest to the Director of Personnel and Administration. The actual fact of the revelation thus brought to his notice is not substantially contradicted by the Commission. On this point, the latter has confined itself to replying that before the full value of the applicant's allegation can be assessed, it will be essential ‘to name the person who allegedly disregarded the duty of secrecy’ imposed by Article 6 of Annex III to the Staff Regulations. The applicant adds, for his part, that the disclosure of the information concerning the rejection of his application occurred when the members of the Selection Board had not yet either signed the minutes of their proceedings or drawn up their statement of the reasons finally given for the rejection of his application. A distinction must be made between two features of those allegations. First of all the applicant's allegation, to the effect that he learned from a colleague, whose name has been given, of the disclosure of the rejection of his application by a person who had taken part in the meeting of the Selection Board of 17 May 1976, may be taken as very convincing if not actually proven. On this point, moreover, the Commission has left it to the Court to consider the applicant's offer of proof by witnesses. On the other hand, even supposing that at that meeting the Selection Board had not yet drawn up the reasons for its decision in their definitive form, it does not seem to me that this contradicts the fact that as early as 17 May it had adopted a decision of principle as regards Mr Costacurta's entry for the competition. It appears from the very words of the minutes of the meeting held on 25 May that the Selection Board met on that date in order to ‘approve the result of its proceedings’. Those words imply that deliberations took place during the preceding meeting. That fact is confirmed, moreover, by the applicant himself for he complains of the disclosure of a decision of the Selection Board rejecting his entry. If his protest is well founded, it means that the Selection Board had not only deliberated on his case at its initial meeting, but that it had decided not to accept him as a candidate. On 25 May there was nothing more for it to do, after confirming the result of its proceedings, than to put its decision into writing. Therefore, in view of that decision, prior to any disclosure, I am of the opinion that the breach of the secrecy of the proceedings cannot have any effect on the legality of the decision itself. In this respect, I believe I find support in a judgment of the Conseil d'État of France, dated 19 December 1973(Ministre de l'Éducation Nationale v Sieur Chambe), mentioned by the Commission in its rejoinder. That decision rejected the submission based on breach of the secrecy of the proceedings of a Selection Board for a competition, on the ground that the said breach, however regrettable it may have been, did not affect the legality of the tests and the determination of the results thereof, since it occurred before the official announcement of the results, but after the correction of the papers and after the meeting during which the Selection Board had awarded the candidates their marks. Those facts seem to me to be comparable to the situation in the present case, in so far as the decision to reject the applicant's entry for the competition had been drawn up, as to the principle if not as to the reasons, before the breach of the secrecy of the proceedings occurred. At its meeting on 25 May, the Selection Board simply confirmed that decision. Therefore the submission raised cannot be accepted.