CELEX: 61978CC0112
Language: en
Date: 1979-03-15
Title: Opinion of Mr Advocate General Capotorti delivered on 15 March 1979. # Dorothea Kobor, née Sonne, v Commission of the European Communities. # Case 112/78.

OPINION OF MR ADVOCATE GENERAL CAPOTORTI
      DELIVERED ON 15 MARCH 1979 (
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         )
      
         Mr President,
      
         Members of the Court,
      
               1. 
            
            
               The application with which we are concerned raises once again the question of the requirements for the validity in form and substance of a decision by which the selection board for a competition refuses to admit one of the candidates to the written tests.
               The applicant, Mrs Kobor, applied in 1977 to enter Open Competition No COM/B/155 to constitute a reserve for future recruitment of administrative assistants in Category B. She was not admitted to the written tests because the selection board held that she did not possess sufficient practical experience in the field of ‘Application of rules of administrative management’, which she had chosen for the purposes of the competition.
               In view of that refusal, Mrs Kobor first requested, by a letter of 29 September 1977, a re-examination of her case; then, after receiving a negative reply, she submitted to the Commission a complaint under Article 90 (2) of the Staff Regulations. As the complaint was fruitless she brought the present action, which was lodged at the Court on 8 May 1978, maintaining that the selection board had erred in its assessment of her practical experience and requesting therefore annulment of the decision not to admit her to the tests. Later, in her reply, the applicant added to the first ground of complaint a second ground involving a question of form: to the effect that the statement of reasons on which the decision was based was insufficient. It is convenient, in my opinion, to begin by examining this point which is of more general interest.
            
         
               2. 
            
            
               It might be questioned whether a complaint raised for the first time on the reply is admissible. Article 42 (2) of the Rules of Procedure provides that: ‘No fresh issue may be raised in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the written procedure’. The second subparagraph of Article 42 (2) adds that: ‘If in the course of the written procedure one of the parties raises a fresh issue which is so based, the President may, even after the expiry of the normal procedural time-limits, … allow the other party time to answer on that issue’. At first sight it would seem that these provisions must be interpreted as meaning that the prohibition imposed by the first subparagraph must be applied without derogation save in the exceptional cases expressly mentioned. But it must be remembered that the rule in question has a specific function, which emerges clearly from the second subparagraph quoted above: to avoid one party being denied the opportunity to reply to the new complaint during the written procedure (cf. the opinion of Mr Advocate General Warner to that effect in Case 46/75 IBC v Commission [1976] ECR at p. 89). Therefore too rigid an interpretation of Article 42 (2) does not seem justified: the important point is to establish whether the party against whom the new complaint has been raised has been handicapped in resisting it as a result of the other party's conduct of the procedure.
               In the present case the Commission, in its defence (bottom of p. 6), was the first to raise the question of the adequacy of the statement of reasons on which the decision in dispute was based, maintaining that the unfavourable decision of the selection board was sufficiently reasoned. Later, in the course of the oral procedure, the Commission's representative examined that aspect of the dispute, expressly stating that it was not his intention to plead the inadmissibility of the complaint. So, not only must we accept that the Commission was not denied the opportunity to defend itself, but on the contrary the question of the formal requirements of the decision in question was raised by the Commission itself.
               Besides, it must be remembered that the subject of the new complaint was the insufficiency of the statement of reasons on which the decision was based. It is well established that the requirements that the decision reasoned is laid down not only to pro tea the persons to whom it must apply, but also to place the Court in a position to exercise fully the judicial review which the Treaty entrusts to it. It follows that the Court must always be able to raise of its own motion the question of a defect in the statement of reasons. Such was the import of the view expressed by the Court in the judgment of 20 March 1959 in Case 18/57, Nold v High Authority [1959] ECR 41.
               As regards questions of substance, the factor to be borne in mind is this: the selection board's decision was notified to the person concerned by means of a standard letter which contained a list of four reasons for not admitting a candidate to the tests, an X being marked in the box placed beside the third reason (‘insufficient practical experience’). As I have already had occasion to point out in a similar case (opinion of 16 November 1978 in Joined Cases 4, 19 and 28/78, Salerno, Authié and Massangioli v Commission [1978] ECR 2403) the statement of the reasons on which the decisions of selection boards on the admission of candidates to tests are based cannot be considered appropriate and sufficient when it merely indicates in a general way the failure to satisfy one of the requirements stated in the announcement. Therefore I shall simply repeat my view, which was shared by the Court in the judgment of 30 November 1978 in the joined cases cited above: in my opinion it is essential that the statement of reasons given to the candidates should be drafted in such a way as to enable them to understand precisely why they have been excluded and to facilitate the task of reviewing the legality of such decisions. The expression ‘insufficient practical experience’ is ambiguous to say the least: the insufficiency may be qualitative in nature, or it may be due to the short duration of the experience or imply that that experience was not related to the field chosen. The letter, formulated in general terms which I have mentioned, does not allow one to ascertain the specific deficiency on account of which the candidate was not admitted to the written tests.
               As for the difficulties due to the large number of candidates, I do not believe that they were sufficient to justify an incomplete statement of reasons. I have already said in the Salerno case and in others that ‘the unfortunate effects of the excess numbers must not be visited upon the candidates’ and that, in order to avoid such a consequence, ‘the authority organizing a competition is bound to make preparations so that it can carry out its task in complete conformity with the rules even if there are thousands of candidates’.
               I would recall that the Court has already held that decisions of selection boards for competitions must be accompanied by an adequate statement of reasons. This may be seen in the judgments in Case 44/71 Marcato v Commission [1972] ECR 427, Case 37/72 Marcato v Commission [1973] ECR 361, and Case 31/75 Costacurta v Commission [1975] ECR 1563, as well as in Joined Cases 4, 19 and 28/78 Salerno and Others v Commission [1978] ECR 2403 which I have already cited. I do not see any reason to depart from that line in the present case.
            
         
               3. 
            
            
               The other ground on which the applicant challenges the decision is, as I have said, that her practical experience was incorrectly assessed. In my opinion, that complaint also is confirmed by the matters, taken as a whole, which have emerged in the course of the proceedings.
               Above all one cannot ignore the fact that in two previous competitions, announced in 1974 and 1975 for the same purpose of recruiting Administrative Assistants in Category B (Competitions COM/B/117 and COM/B/139), the selection boards considered the practical experience acquired by the applicant in the field of ‘administrative management’ to be appropriate and so admitted her to the tests. It is true that the notice of the 1974 competition required rather limited practical experience (at least five months); but the notice of the later competition required at least one year's practical experience, that is to say of the same duration as was prescribed for admission to the competition involved in the present dispute. So it is extremely puzzling to find that two years after the 1975 competition the same candidate was denied recognition of the same experience as had previously been considered sufficient.
               In reply the Commission has said that each competition constitutes a separate procedure, so that there are no grounds for comparing one selection board's assessment of the same candidate with that of another in the context of different competitions. The Commission also argued that the greater severity apparent in the 1977 competition was a consequence of the much greater number of candidates, which required a more selective approach as from the stage of examining candidates' qualifications for admission to the written tests. As regards the criteria for assessing candidates' performance in the tests, there is no doubt that each competition is a separate matter; but here the question concerns the assessment of individual qualifications and of the conditions stated in the notice for admission to the tests. As the Court declared, in the judgments, already cited, of 14 June 1972 in Case 44/71 and 15 March 1973 in Case 37/72, although the stage at which performance in the tests is assessed ‘consists mainly of comparison’, the previous stage, which involves deciding on the admission of candidates to the tests, ‘entails the matching of the qualifications offered by the candidates against the qualifications required by the competition notice … on the basis of objective facts’. At that stage therefore the number of candidates cannot have a decisive influence.
               In the present case no specific criterion for assessment is disclosed by the minutes of the selection board's meetings on 8 and 9 September 1977, still less by the statement of reasons (which was insufficient, as has been said) accompanying the decision to exclude the candidate from the written tests. Thus it is difficult to overcome the contradiction which exists between the favourable assessments in 1974, and especially 1975, and the negative one in 1977. To that must be added the fact that the periodic report covering the period from 1 July 1975 to 30 June 1977 (enclosed with the application) states that Mrs Kobor, as well as performing other duties, had contributed to ‘the organization of meetings, to the preparation of documents and works for printing’ and had made an ‘important contribution to the preparation of the meetings of numerous working groups … and to the preparation of an important and complex publication of a technical nature’ (p. 1, point 4 (b)); so that ‘the official's training and ability are suitable not only for the duties performed, but would suffice for the performance of more difficult duties’ (p. 2, point 5 (b)).
               Final confirmation of the fact that Mrs Kobor possessed the required practical experience in the administrative field may be obtained from the notes dated 25 March 1977 and 6 February 1978 sent by the head of division, Mr Henz, to the Director-General, Mr Degimbe, containing a proposal to promote the applicant to Grade C 1 (Annexes 3 and 4 to the reply). Both those notes state that ‘for some time, and in particular as a result of the extension of the work of my division, Mrs Kobor has been performing more and more frequently the duties of a senior administrative assistant’.
               Thus I think it proved that the applicant possessed the minimum of one year's practical experience in the administrative field required by the competition notice. In any case the selection board had a duty to state explicitly any more restrictive criteria, if only to permit judicial review, and then to state expressly for what reasons it was considered that the applicant did not have the required practical experience. That did not happen: thus it has to be recognized that, in excluding the applicant from the written tests, the selection board erred in its application of the criteria on which, according to the notice, selection was to be based.
            
         
               4. 
            
            
               On account of all the considerations examined I believe that the application deserves to succeed. However, the annulment must be limited to the decision not to admit the applicant to the tests: indeed, as it was an open competition announced for the purpose of constituting a reserve for future recruitment, the exclusion of the applicant did not affect the admission to the written tests of the persons who, in the selection board's opinion, possessed the necessary requirements. Consequently, as the Court has already declared in the Costacurta and Salerno cases, the rights of the applicant ‘will be sufficiently protected if the selection board reconsiders its decision, without it being necessary to question the whole of the results of the competition or to annul appointments made in consequence thereof’.
            
         I accordingly suggest that the Court, in partially accepting the application submitted by Mrs Kobor, should annul the decision not to admit her to Competition COM/B/155 and should order the Commission to pay the costs.
      (
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         )	Translated from the Italian.