CELEX: 61969CC0076
Language: en
Date: 1971-03-04
Title: Opinion of Mr Advocate General Dutheillet de Lamothe delivered on 4 March 1971. # Dietrich Rabe v Commission of the European Communities. # Case 76-69.

OPINION OF MR ADVOCATE-GENERAL
   ALAIN DUTHEILLET DE LAMOTHE
   DELIVERED ON 4 MARCH 1971 (
         1
      )
   
      Mr President,
   
      Members of the Court,
   In June 1968 the post of Head of Division (Market rules, inspection reports) corresponding to Grade A3 became vacant at the Directorate-General for Industrial Affairs, Steel Division, with the Commission.
   In accordance with the Staff Regulations, a vacancy notice was published in order to fill this post by transfer or promotion. Only Grade A3 officials (for transfer) and Grade A4 officials (for promotion) could be candidates. On the other hand, Grade A5 officials could not be candidates on the basis of the principle laid down by Article 45 of the Staff Regulations.
   Eleven candidates applied, one at Grade A3, applying for transfer, and the other ten, which included Mr Rabe, at Grade A4 applying for promotion.
   On 22 July 1968, the Commission, having considered the different applications, decided not to fill the post by transfer or promotion but to hold an internal competition as it is authorized to do by Article 29 (1) (b) of the Staff Regulations.
   A selection board composed of five members was appointed to judge the merits of the candidates by means of a competition essentially on the basis of qualifications, but including also, as the rules on competitions allow, a test which was to take the form of an interview with the candidates.
   At the end of the competition procedure the selection board decided at a meeting in camera on 28 March 1969 to give first place to Mr Peters, a Grade A5 official who was not able to apply on the basis of promotion or transfer but who did so legitimately for the internal competition, and second place to Mr Rabe, who requests in these proceedings the annulment of the competition and, as a consequence, the annulment of the appointment of Mr Peters.
   In support of this application Mr Rabe put forward two sets of submissions.
   The first is drawn from the different irregularities which are alleged to have vitiated the competition procedure.
   The second relates to an alleged misuse of powers.
   I
   As regards the irregular manner in which the competition was conducted, two at least of the irregularities involved seem to me to be established.
   It is probable that each is by itself sufficient to vitiate the competition procedure.
   It seems ceretain, to me, that when taken together they render the whole competition illegal.
   
            1.
         
         
            It is established that one of the members of the selection board, whose name appears among the signatories of the minutes who drew up the list of candidates in order of merit, Mr Desbois, did not participate in all the proceedings of the selection board. He had probably taken part in the first meeting of the selection board on 19 March 1969 when the applicants' files were examined. But one thing is certain, he was not present at the second meeting, that of 28 March 1969, when the selection board interviewed each of the candidates and drew up, in order of merit, the list which it proposed to submit to the Commission.
            In certain systems of law governing public administration, which tend to equate the rules on the deliberations of an examining selection board with those on the operation of a court, this fact would by itself, without its being necessary to look into the effects which it may have entailed, be such as to render the competition illegal (see for example in Italian law: Consiglio di Stato, 21 February 1969, Cerboni Bajardi, Raccolta della giurisprudenza del Consiglio di Stato 1969, vol. XX, p. 148 et seq.; and in French law: Conseil d'État, 17 June 1927, Bouvet, in Recueil des arrêts du Conseil d'État, p. 676; 18 February 1948, Sanchez;5 February 1960, Jacquin Pantillon, p. 86).
            These decisions all derive from the idea that it is impossible to know what conclusions the selection board would have reached had all the members been present at every meeting. For this reason, when a member has not attended a meeting he cannot participate in subsequent meetings and especially in the final meeting.
            The Personnel Department of the Commission, which is clearly embarrassed by this incident, asks you to adopt a less strict attitude than that represented in the national case-law which I have just mentioned.
            The defendant explains that Mr Desbois, by subsequently signing the minutes of a meeting of the selection board at which he was not present, merely wished to express his agreement with the decision of the selection board, which would have been the same whatever the attitude of Mr Desbois at the time when the decision was taken. In this connexion, it refers to the minutes of the selection board from which it emerges that Mr Peters was placed first by at least four votes even though there was disagreement among the selection board (which I shall come back to later) with regard to the other candidates. But, in my opinion, this is a line of argument which cannot be accepted for two reasons.
            
                     (a)
                  
                  
                     The minutes relied upon are irregular in that they indicate the votes finally awarded to each candidate. Article 6 of the Rules of Competitions in Annex III of the Staff Regulations provides that the proceedings of the selection board shall be secret.
                     
                     Of course, Article 6 must be read together with Article 5, which allows members of the selection board to make reservations with regard to the latter's final decision and it also provides that decisions shall be accompanied by a reasoned report by the selection board. But, in my opinion, joint consideration of these articles shows that in relation to the overall placing of candidates the selection board may indicate whether the result was reached on the basis of a majority or unanimously but may not, on the other hand, indicate the votes cast for the adjudication of each candidate.
                  
               
                     (b)
                  
                  
                     A competition procedure is a unified whole and no-one can know whether, if he had attended the interview of candidates by the selection board, Mr Desbois would have concurred with the majority of his colleagues; his opinion could have had a considerable influence since the minutes, although most certainly irregular, but to which reference can be made since they were submitted in evidence, show that Mr Rabe was allotted his place in the list by three votes to one with one abstention.
                     The appearance of the name of Mr Desbois, who was absent from the only test provided for the competition, as a signatory of the list drawn up by the selection board constitutes an irregularity which is in itself sufficient to vitiate the competition procedure.
                  
               
      
            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.
         
      II
   I shall be brief as to the second set of submissions invoked by the applicant, which are based on an alleged misuse of powers.
   The misuse of powers alleged does not seem to me in fact to be apparent from the documents in the file.
   Let me say first of all that I think it best not to take account of the fact that Mr Peters had held the position of Chief Executive Assistant to a Member of the Commission.
   Although it is important to take care to ensure that the exercise of such duties does not give an official too great an advantage in his career, it is no less important that it should not work to his disadvantage; examples of this in the national context do not allow the possibility to be discounted.
   Undoubtedly, the fact that the Commission did not choose one of the several candidates in Grades A3 and A4 whose service records were very praiseworthy and instead held an internal competition resulting in the appointment of a Grade A5 official is a little strange.
   But it is not in itself open to criticism since it had the effect of giving officials in a lower grade the possibility of obtaining posts which they could not reach by way of transfer or promotion, which is both democratic and at the same time serves to prevent a certain bureaucratic sclerosis.
   It is therefore solely on the ground of procedural and formal irregularities that I advise the Court to annul the competition which resulted in the appointment of Mr Peters and, as a consequence of that, to annul his appointment and to order the Commission to pay the costs of the proceedings.
   (
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      )	Translated from the French.