2.

But this first irregularity is not the only one. In fact, this competition took place under very curious conditions. Already reduced to four members, the selection board found itself in some disagreement. First, Mr Ydo did not give an opinion on any of the candidates except Mr Peters, and this in itself is rather strange. But the attitude of Mr Toffanin, another member of the selection board who represented the staff, shows the irregular circumstances under which the latter stages of the competition were conducted. In fact, during the examination of the files Mr Toffanin noticed that the certificate for the university degree which Mr Rabe claimed to hold was not included in his file, even in the form of a copy. He called for this document. Showing the good faith and moral courage which the Court knows to be typical of him the Agent of the Commission testified the other day before the Court that although the Commission, which should have had possession of the document, was asked for it, it was only produced after the final decision of the selection board had been taken. In itself, this fact is probably not capable of vitiating the competition procedure, since it was a well-known unversity qualification, that of Diploma-Kaufmann of the University of Frankfurt-am-Main, the very mention of which would convey its undoubted value to the selection board, as long as the latter was in no doubt that the candidate had in fact obtained it and did not desire additional information as to the way in which it had been obtained. But in fact, this does not seem to have been the case here, since in the final minutes of the selection board, Mr Toffanin insisted on mentioning that he could not, in the absence of this document, give an opinion on the placing of Mr Rabe in the list of suitable candidates. Why? We cannot know. Did Mr Toffanin wish to know the different certificates which Mr Rabe had had to obtain for this degree? Did he doubt its existence? There is nothing in the file of the case on this matter. The Commission asserts, referring to certain other documents, that Mr Toffanin wished only to express reservations about Mr Rabe's being awarded second place, and not about Mr Peters's being awarded first place. But, first, this is very uncertain. Who can say that Mr Toffanin, made more certain of the merits of Mr Rabe by the production of the degree certificate which he had wished personally to examine, might not have preferred Mr Rabe to Mr Peters? Secondly, even though one can understand the Commission's legitimate concern to defend the contested decision, its dogged insistence in wishing to show that, whatever might have happened, Mr Peters would still have been awarded first place, serves in the last analysis to reinforce the energetically and cleverly argued submission of the applicant's counsel relating to misuse of powers. So, taken separately, each of the irregularities mentioned above would be sufficient, in my opinion, by itself to constitute a legal ground for the annulment of the competition. This is even clearer if they are considered together. The final list, in order of merit, of candidates for the competition bears the signature of the five members of the selection board. It is accepted that one of them was not present at the only test included in the competition. Another considered himself inadequately informed as to the merits of Mr Rabe and voted against the respective places on the list awarded to six of the seven candidates. Finally, a third member abstained from voting on the classification of the same six candidates. Thus all the rules on competitions seem to me to have been infringed in this case: that concerning the secrecy of proceedings: that requiring members of the selection board who participate in the final decision to be present at all the proceedings of the selection board; and, finally, that requiring that the files in a competition which is partially on the basis of qualifications shall be complete.