Judgment of the Court (Second Chamber) of 14 June 1977. - Mario Costacurta v Commission of the European Communities. - Case 73-76.



European Court reports 1977 Page 01163

Greek special edition Page 00357

Portuguese special edition Page 00419



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

1 . OFFICIALS - RECRUITMENT - COMPETITION - SELECTION BOARD - SECRECY OF PROCEEDINGS - BREACH - EFFECTS

( STAFF REGULATIONS OF OFFICIALS , ANNEX III , ARTICLE 6 )

2 . OFFICIALS - RECRUITMENT - COMPETITION - CANDIDATE - EXPERIENCE - EQUIVALENT TO UNIVERSITY DEGREE - ASSESSMENT BY SELECTION BOARD - CRITERIA

( STAFF REGULATIONS OF OFFICIALS , ANNEX III , ARTICLE 5 )

Summary

1 . AN UNAUTHORIZED DISCLOSURE OF THE DECISION OF A SELECTION BOARD DOES NOT CONSTITUTE A SUFFICIENT REASON FOR ANNULLING THAT DECISION IF IT IS NOT CAPABLE OF AFFECTING THE GUARANTEES AS TO THE REGULARITY OF THE PROCEEDINGS OF THE BOARD . IN ANY EVENT IF THE SECRECY IS ONLY VIOLATED AT A MOMENT WHEN THE DECISION OF THE BOARD HAS BEEN TAKEN , SUCH A FAILURE TO COMPLY WITH THE PROVISIONS OF THE STAFF REGULATIONS CANNOT THROW DOUBT ON THE REGULARITY OF THE DECISION .

2 . IN CONSIDERING WHETHER A CANDIDATE POSSESSES EXPERIENCE EQUIVALENT TO A UNIVERSITY DEGREE THE SELECTION BOARD MUST BASE ITS ASSESSMENT ON OBJECTIVE FACTS SUCH AS THE NATURE OF THE APPLICANT ' S DUTIES AND THE LENGTH OF TIME DURING WHICH HE HAS PERFORMED THEM .

Parties

IN CASE 73/76

MARIO COSTACURTA , AN OFFICIAL OF THE EUROPEAN COMMUNITIES , RESIDING AT 12 MONTEE DE LA PETRUSSE , LUXEMBOURG , REPRESENTED BY ERNEST ARENDT , OF THE LUXEMBOURG BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT 34 B/IV , RUE PHILIPPE II ,

APPLICANT ,

V COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , SERGIO FABRO , ACTING AS AGENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ITS LEGAL ADVISER , MARIO CERVINO , JEAN MONNET BUILDING , PLATEAU DE KIRCHBERG ,

DEFENDANT ,

Subject of the case

APPLICATION FOR THE ANNULMENT OF THE DECISION OF THE SELECTION BOARD FOR COMPETITION COM/A/15/73 NOT TO ADMIT THE APPLICANT TO THAT COMPETITION ,

Grounds

1 THE APPLICATION , LODGED ON 23 JULY 1976 , IS FOR THE ANNULMENT OF THE DECISION OF THE SELECTION BOARD FOR COMPETITION COM/A/15/73 , COMMUNICATED TO THE APPLICANT BY LETTER OF 26 MAY 1976 , REJECTING HIS APPLICATION TO BE ADMITTED TO THE COMPETITION .

2 THE CONTESTED DECISION WAS ADOPTED SUBSEQUENT TO THE JUDGMENT OF THE COURT ( FIRST CHAMBER ) OF 4 DECEMBER 1975 IN CASE 31/75 (( 1975 ) ECR 1563 ), WHICH HAD ANNULLED AN EARLIER DECISION OF THE SELECTION BOARD TO THE SAME EFFECT ON THE GROUND THAT INSUFFICIENT REASONS HAD BEEN STATED .

3 THE APPLICANT ARGUES , FIRST , THAT ARTICLE 6 OF ANNEX III TO THE STAFF REGULATIONS OF OFFICIALS , WHICH PROVIDES THAT THE PROCEEDINGS OF SELECTION BOARDS SHALL BE SECRET , HAS BEEN INFRINGED BECAUSE THE DECISION OF THE SELECTION BOARD WAS REVEALED TO SOME OF HIS COLLEAGUES AT A TIME 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 FOR WHICH HIS APPLICATION HAD BEEN REJECTED .

4 THE COMMISSION DOES NOT CONTEST THE FACTS THUS ALLEGED .

5 HOWEVER , IT DOES NOT NECESSARILY FOLLOW THAT THIS BREACH OF THE SECRECY OF THE PROCEEDINGS OF THE SELECTION BOARD , HOWEVER REGRETTABLE IT MAY BE AND HOWEVER OFFENSIVE THE APPLICANT MAY HAVE FELT IT TO BE , CONSTITUTES A SUFFICIENT REASON FOR ANNULLING THE DECISION THUS DIVULGED .

6 IT IS NECESSARY TO EXAMINE WHETHER THE UNAUTHORIZED DISCLOSURE OF THE DECISION WAS CAPABLE OF AFFECTING THE GUARANTEES AS TO THE REGULARITY OF THE PROCEEDINGS OF THE SELECTION BOARD , AMONGST WHICH THE PROVISION AS TO SECRECY IS INCLUDED .

7 IN THIS REGARD IT SHOULD BE OBSERVED THAT IF THE SECRECY IS ONLY VIOLATED AT A MOMENT WHEN , AS IN THE PRESENT CASE , THE DECISION OF THE SELECTION BOARD HAS BEEN TAKEN , SUCH A FAILURE TO COMPLY WITH THE PROVISIONS OF THE STAFF REGULATIONS CANNOT THROW DOUBT ON THE REGULARITY OF THE DECISION , NOTWITHSTANDING THE FACT THAT THE DECISION HAS NOT BEEN COMMITTED TO WRITING .

8 THEREFORE THIS SUBMISSION CANNOT BE ACCEPTED .

9 THE APPLICANT ARGUES , SECONDLY , THAT THE SELECTION BOARD WRONGLY TOOK THE VIEW THAT THE DUTIES PERFORMED BY HIM FOR TWO YEARS PRIOR TO THE COMPETITION WERE NOT SUFFICIENT TO COUNT AS KNOWLEDGE OF UNIVERSITY LEVEL , PARTICULARLY SINCE THE SELECTION BOARD ADMITTED TO THE COMPETITION CERTAIN CANDIDATES WHOSE EXPERIENCE WAS INFERIOR TO HIS OWN .

10 ACCORDING TO THE WORDING OF THE NOTICE OF COMPETITION , THE COMPETITION WAS OPEN TO CANDIDATES WHO POSSESSED , INTER ALIA , ' A UNIVERSITY DEGREE OR EQUIVALENT EXPERIENCE ' .

11 IT IS NOT DISPUTED THAT THE APPLICANT DOES NOT POSSESS A UNIVERSITY DEGREE AND THE QUESTION AT ISSUE IS THEREFORE WHETHER HE HAS ACQUIRED EQUIVALENT EXPERIENCE .

12 IN ORDER TO JUSTIFY ITS NEGATIVE ANSWER TO THIS QUESTION , THE SELECTION BOARD , IN THE CONTESTED DECISION , POINTED OUT FIRST THAT THE DUTIES PERFORMED BY THE APPLICANT FROM 1956 TO 1972 WERE OF A TECHNICAL OR ADMINISTRATIVE CHARACTER AND THEN FOUND THAT FROM 1 JUNE 1972 , THAT IS TO SAY OVER A PERIOD OF TWO YEARS PRIOR TO THE DATE OF THE COMPETITION , THE APPLICANT HAD PERFORMED ' DUTIES INVOLVING THE CORRECTING OF PROOFS AND PREPARING OF MANUSCRIPTS FOR PRINTING ' .

13 ON THAT BASIS , THE SELECTION BOARD TOOK THE VIEW THAT ' THE DUTIES PERFORMED SINCE 1 JUNE 1972 , CONSISTING PRIMARILY OF EXECUTIVE DUTIES , COULD NOT LEAD , PARTICULARLY IN VIEW OF THE LEVEL OF THE FACULTIES OF UNDERSTANDING AND OF JUDGMENT WHICH THEY REQUIRE , TO THE ACQUISITION OF KNOWLEDGE OF UNIVERSITY LEVEL ' .

14 THE WORDING OF THOSE REASONS MAKES IT VERY CLEAR THAT THE ASSESSMENT OF THE SELECTION BOARD WAS BASED ON OBJECTIVE FACTS CONSISTING IN THE NATURE OF THE APPLICANT ' S DUTIES AND THE LENGTH OF TIME DURING WHICH HE PERFORMED THEM .

15 THAT ASSESSMENT , MOREOVER , DOES NOT SUBSTANTIALLY DIFFER FROM THE DESCRIPTION OF THE APPLICANT ' S DUTIES IN THE PERIODIC REPORTS MADE BY HIS SUPERIORS , EVEN THOUGH THE DESCRIPTION ' IMPIEGATO DI CONCETTO ' ( OFFICIAL CARRYING OUT ADVISORY DUTIES ) APPEARS IN THOSE REPORTS .

16 FINALLY , AS REGARDS THE OTHER CANDIDATES ADMITTED TO THE COMPETITION , THE DEFENDANT HAS STATED THAT ACCOUNT WAS TAKEN OF THEIR EXPERIENCE ACQUIRED NOT ONLY IN THE SERVICE OF THE COMMISSION BUT ALSO IN PREVIOUS POSTS AND THAT THIS CONSTITUTES ADEQUATE GROUNDS FOR THE VIEW THAT THEY FULFILLED THE CONDITIONS SET OUT IN THE NOTICE OF COMPETITION .

17 IN THOSE CIRCUMSTANCES THERE ARE NO GROUNDS FOR REGARDING THE CONTESTED DECISION AS VITIATED BY ILLEGALITY .

18 THEREFORE THE APPLICATION MUST BE REJECTED .

Decision on costs

COSTS

19 BY ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE , THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO BEAR THE COSTS .

20 THE APPLICANT HAS FAILED IN HIS SUBMISSIONS .

21 NEVERTHELESS , UNDER ARTICLE 70 OF THE RULES OF PROCEDURE , THE COSTS INCURRED BY THE INSTITUTIONS IN ACTIONS BROUGHT BY SERVANTS OF THE COMMUNITIES ARE NOT RECOVERABLE .

Operative part

ON THOSE GROUNDS ,

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION ;

2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .