CELEX: 61972CC0037
Language: en
Date: 1973-02-08
Title: Opinion of Mr Advocate General Mayras delivered on 8 February 1973. # Antonio Marcato v Commission of the European Communities. # Case 37-72.

OPINION OF MR ADVOCATE-GENERAL MAYRAS
   DELIVERED ON 8 FEBRUARY 1973 (
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      )
   
      Mr President,
   
      Members of the Court,
   
            I —
         
         
            Mr Marcato is not unknown to the Court, which twice already has had occasion to consider his appeals against the Commission of the European Communities, whose service the applicant entered in 1958.
            At first on the temporary staff with service duties, he was a night watchman for four years, then established as an usher in grade D 2. Mr Marcato showed both conscientiousness at work and a praiseworthy ambition. In 1962 he followed an operator's course at the Belgian Bull machine company and actually became in 1963 an operator in the mechanical accounting service of the Commission, in grade C 3. Then after an advanced course in the use of third generation computers he obtained a diploma from the IBM Company, and after 1966 carried out the duties of programmer and supervisor.
            Until 1967 he received favourable reports, but in 1969 he received a far less favourable evaluation: It was on this occasion that, deciding a first application from Mr Marcato directed against this report, you refused to examine the Administration's evaluation of his professional abilities (judgment of 17 March 1971, Second Chamber, Case 28/70).
            Then in 1970, after the applicant had seen his candidature rejected in an internal competition for posts of category B in the mechanical accounting service, the Court (First Chamber) accepting his submissions, annulled the Selection Board's decision by a judgment dated 14 June 1972 (Case 44/71).
            Mr Marcato's present application similarly concerns the procedure of an internal competition, organized in 1971, with a view to filling four posts for administrative assistants in career bracket B 5/B 4. The notice of competition stated that the duties appropriate to these posts were ‘to carry out, under supervision, operating techniques, in particular the preparation of JOB cards, the supervision of operations involving storage of cards and magnetic tapes; checking of emerging documents
            or the duties of a programmer on a third generation computer working on Operating System.’
            Among the conditions required for admission to the competition were, first, ‘Advanced level of secondary education evidenced by a certificate, or professional experience at an equivalent level’; and secondly, ‘elementary knowledge of programming, use of Cobol, Fortran or a similar language’.
            Fifteen applications were duly submitted. The Selection Board rejected six of them, including that of Mr Marcato. Of the eight candidates who actually took part in the tests six were placed by the Selection Board on the list of suitable candidates; the first four were appointed as administrative assistants.
            On 1 December 1971 the applicant was informed by the Head of the Personnel Division of the rejection of his application. He asked to know the reasons for this, and by memorandum of 25 January 1972, the Head of the Recruitment Division informed him of the grounds for this decision, based upon the fact that, according to the Selection Board, he did not meet the conditions of admission which I have just mentioned.
            Mr Marcato then on 23 February submitted to the Commission a complaint within the meaning of Article 90 of the Regulation then in force. In the absence of a reply he appealed to the Court, on 27 June 1972, against the implied decision of rejection resulting from the silence maintained by the Commission.
            The applicant is asking you to annul not only this decision but similarly the notice of competition COM/184/71 and also the decision by which the Selection Board refused to admit him to the competition, and finally, by way of consequence, the appointments made as a result of the competition.
         
      
            II —
         
         
            We shall examine firstly the submissions in the application impugning the ‘competition notice’, that is to say impugning the decision by which the Commission decided to fill by competition four vacant posts for administrative assistants.
            The procedure for recruitment competitions is laid down by Annex III of the Regulation. Article 1 of this Annex enumerates the information which the competition notice must contain, including (Article 1 (1) (g)) the age limit to be applied to candidates and the extension of this age limit in favour of servants already in employment for at least one year.
            It is upon the breach of this provision that the applicant relies first of all.
            It is an agreed fact that the disputed competition notice made no mention of any age limit.
            This plea raises two questions:
            
                     1.
                  
                  
                     The first is a question of law. Is the inclusion of an age limit in a competition notice compulsory? Does its absence suffice to vitiate the working of the competition?
                     The actual wording of Article 1 (1), as it stood at the time of the opening of the disputed competition, seems to me to compel an affirmative answer on this point.
                     Among the nine specific points to be covered by a competition notice, only two have, according to this provision, an optional character. These include ‘knowledge of languages’ (subparagraph (f)), inclusion of which is only required ‘where applicable’, in so far as such knowledge is necessitated by the particular nature of the posts to be filled; the case is similar where there are possible exceptions from the principle formulated by Article 28 (a) of the Regulations, which makes it obligatory to appoint as officials of the Communities only nationals of the Member States in possession of their full rights as a citizen; these exceptions are, of course, left to the discretion of the appointing authority (subparagraph (i)).
                     The competition notice, clearly, can only contain such a statement if the institution in question has taken advantage of the power granted to it to make an exception.
                     On the other hand, all the other statement listed must, as a matter of obligation, appear in the text of a competition notice. This applies not only, for example, to the nature of the competition itself, to the type of duties and tasks involved in the posts to be filled, or to the certificates or other evidence of formal qualifications or the degree of experience required, but equally to the age limit to be applied.
                     The provision then in force allowed the administrative authority no latitude.
                     The Court (First Chamber) in a judgment of 22 March 1972 (Costacurta, Case 78/71) held that the details stipulated by Article 1 (1) of Annex III aim to ensure that, in every case where a post is to be filled by way of competition, the conditions of recruitment should be adapted as far as possible to meet the requirements of the post, and that, in making it obligatory to specify these conditions in the competition notice, the authors of the Regulations meant to prevent the appointing authority from being able to justify the rejection of certain candidates by availing itself of conditions of recruitment which had not previously been made sufficiently clear to all interested parties.
                     Among these conditions, the age of the candidates may well be an important factor in so far as concerns the quality and capacity of the officials to be recruited.
                     Furthermore, servants already in employment have a particular advantage granted them when an age limit is fixed, since they benefit from an extension of this limit by reason of their seniority in service.
                     Thus, both the wording and the spirit of this provision impelled the Court to hold that the competition notice, under pain of nullity, must specify the age limit to be applied and also the extension allowed in favour of candidates in the Administration.
                     True, the judgment of 22 March 1972 adds that it is not impossible for the question of age to be unimportant in certain employments, and that in this case a field of recruitment as wide as possible appears necessary; but the Court added that this possibility, which is of an exceptional character, could only be admitted because of the special nature of the posts to be filled and that in this case the competition notice must state explicitly that in the case in question an age limit has not been judged necessary.
                     Such, Members of the Court, is the tenor of the Court's judgments — I am going to add a further point for consideration: the idea of an age limit need not be confined to an upper limit only, that is to say to the statement of an age above which candidates cannot be recruited; it extends equally to a lower limit, that is to say a minimum age which can be required by the Administration for the exercize of certain duties.
                     These reasons for obliging the administrative authority to state the age limit to be applied in a competition have not, it is true, prevented the authors of the Regulations from modifying Annex III on this point, since by Regulation No 1473/72 of the Council, which came into force on 1 July 1972, the new text of the provision appearing in Article 1 (1) (g) has been completed by the addition of the words ‘where appropriate’.
                     
                     Henceforth, the statement of an age limit is no longer necessary. Should not the former Regulation, accordingly, be interpreted in the light of the modification? This is the Commission's argument. For my part, I hold quite the contrary, that if the Council thought it necessary to put an end to the previous obligation when opportune, the new rule certainly cannot prevail over the previous text which was perfectly explicit and clear, nor could it establish, a posteriori, a different interpretation from that accepted by the Court in the judgment of 22 March 1972.
                     If the legislator has a clear right to change his mind, the judge has an equally clear duty to apply the provisions in force at the date of the events with which he is dealing.
                     I urge you, therefore, on this first point, to confirm the solution which the First Chamber of the Court has already accepted in an identical case and for perfectly valid reasons.
                  
               
                     2.
                  
                  
                     But a further question arises, put by the Commission.
                     Mr Marcato is said to be precluded (by lack of interest) from putting forward the plea drawn from the absence of a stated age limit in the competition notice. In fact, of the fifteen people who submitted their candidature, only one, born in 1922, was older than the applicant, who was born in 1928.
                     All the other candidates were much younger: their dates of birth range from 1936 to 1947.
                     Accordingly the Commission argues that an age limit set at 60 or even at 50 years would have had no effect since even the oldest candidate would not have been excluded. On the other hand, fixing the age limit at 40 years would have resulted in eliminating the applicant's candidature.
                     Members of the Court, there is a reason of principle for rejecting this argument. An operative interest to act in the field which concerns us, that is to say an interest in getting an administrative act annulled, can be judged only in the light of the submissions in the application, not in the light of the pleas invoked. A candidate not admitted to a competition has an incontestable interest in challenging the working of the competition from which he considers himself to have been illegally excluded. He cannot be held to be precluded from pleading a point of law, whatever it may be, for the very object of his application is to ensure that the law be observed; and it is the duty of the judge to ensure this observance.
                     Must it be said, then, that the plea is ineffective? That, even if well founded, it could not lead to the annulment of the act impugned?
                     Such is not the case, in my opinion, and there are two fallacies in the Commission's reasoning.
                     In the first place, there is no reason for saying that if an age limit had been fixed its effect would have been either to make no change in the conditions of the competition, or necessarily to eliminate the applicant's candidature.
                     A lower age limit, the fixing of a minimum age, could, on the contrary, have resulted in eliminating the youngest candidates; an upper age limit could have affected the oldest candidate and not the applicant himself.
                     And in particular, operating an extension of the age limit would have introduced an element in addition to age itself, seniority in service, and there is no reason to think that the conditions of the competition would not have been altered.
                     I do not think that, on this point, you can indulge in hindsight and, putting yourselves in the place of the Administration, imagine what would have been the results of fixing an age limit at one level rather than at another.
                     You are confronted by a clear and mandatory provision: its breach is invoked by the applicant whose interest in obtaining the annulment of the competition notice is incontestable. This plea appears to me well-founded. I support then without hesitation the annulment of this decision opening the competition, a decision expressly challenged in argument.
                  
               
      
            III —
         
         
            It is now necessary to examine the legality of the Selection Board's decision not to admit Mr Marcato to the competition.
            The applicant on this point relies on the breach of Article 25 of the Regulations by virtue of which (1st paragraph, 2nd sentence) ‘Any decision adversely affecting an official shall state the reasons on which it is based’ and of Article 5 of Annex III, whereby the Selection Board shall draw up the list of candidates who meet the requirements set out in the notice of competition. Now, both the Selection Board's report and the memorandum by which the Head of the Recruitment Division notified the applicant of the decision, give, in the latter's opinion, insufficient reasons since the report, like the memorandum, merely gives a literal reproduction of the statement in the competition notice relating to the qualifications required of the candidates, without specifying the reasons for which Mr Marcato could not claim either professional experience at a level quivalent to that of advanced secondary education or the technical knowledge required for programming and using one of the languages used in data processing.
         
      
            1.
         
         
            However, before examining this argument on its merits, let us note that the defendant casts doubt upon the admissibility of the arguments directed against the Selection Board's decision, without however entering a formal plea of non-admissibility, since on this point it submits to the discretion of the Court.
            As has been seen, the applicant received notification of this decision on 1 December 1971 in a letter from the Head of the Personnel Division which was not accompanied by any reason; at his request, het was merely informed on 25 January that he did not meet the requirements set out under point II (1) of the notice of competition.
            According to the Commission, the applicant ought to have impugned the Selection Board's decision directly before the Court within three months of being notified. While it is admitted that he had submitted a complaint to the appointing authority under Article 90 of the Regulations, it is argued that this earlier application was in the circumstances devoid of purpose, for this authority is not competent to annul or modify a decision made by a Selection Board. Such a complaint accordingly could not result in prolonging the time for the disputed application. This period, whether it be counted as beginning from 1 December 1971 or even from 25 January 1972 had in any case expired before Mr Marcato submitted his application to the Court Registry on 27 June 1972.
            It is correct, Members of the Court, that a Selection Board possesses an independent power of its own, especially when it decides the admission of candidates to a competition; it alone is competent, by virtue of Article 5 of Annex III of the Regulations, to determine the list of candidates who meet the requirements fixed by the notice of competition. Therefore, the appointing authority, in this case the Commission, can neither alter nor annul the Board's decision.
            But would it not be unfair to complain of an official having addressed a complaint to the Commission, even in this case, when this faculty is expressly granted to him by Article 90 of the Regulations then in force? Must his application be declared inadmissible, as out of time, because he did not approach the Court directly?
            In the judgment given on 15 June 1972 in a previous application by Mr Marcato, the First Chamber of the Court held that the prior application to the Commission is explained by the officials' custom of never submitting their complaints direct to the Court but of addressing first, though unnecessarily, the appointing authority. Taking this situation into account the Court refused to rule inadmissible the appeal against the implied refusal resulting from the silence observed by the Commission, and admitted it in so far as directed against the Selection Board's decision; the Court considered the passing of the time for an appeal against this decision as being covered.
            To these considerations of what is fair I shall add, for my own part, an argument of law: surely an administrative authority, even though incompetent, is under a duty when a complaint is submitted to it to pass on this complaint to the authority competent to decide it, especially when this latter is part of the same legal entity, of the same Community institution? In the present case, if the Commission could make no decision itself on Mr Marcato's complaint, it was bound, in my opinion, to pass it to the Selection Board which alone had competence either to annul its own decision or to reject the applicant's complaint.
            This is why I think the submissions in the application directed against the Selection Board's decision to be admissible, since less than four months had elapsed between the lodging of the applicant's complaint (28 February 1972) and the submission of his application to the Court (27 June following).
         
      
            2.
         
         
            As for the reasoning on which the Selection Board's decision is based, this seems to me to be insufficient.
            It appears both from the communications made by the departments of the Commission, as well as from the report of the Board itself, that the latter merely asserted that the applicant did not meet the requirements, purely and simply repeating the wording of the notice of competition on this point.
            Now, while it is not contested that Mr Marcato holds no certificate of secondary education, he claims professional training of an equivalent level; similarly he maintains that he has gained the knowledge required by the notice of competition as a result of the tecnical training received from the Bull and IBM companies in the use of third generation computers.
            Without judging the merits, let us note that, with a stereotyped phrase, the Selection Board denied him these qualifications without basing its assertion on any reasoning drawn from an examination of the applicant's personal position.
            Now, while the work of a Selection Board necessitates comparison and classification when it is engaged in assessing the respective merits of each candidate, in judging their performance in the tests or even simply their qualifications, and for this reason is covered by the secrecy inherent in the running of a competition, the same does not apply to the preliminary phase of examining the applications. This is a matter of matching the qualifications produced by the candidates with the qualifications stated in the notice of competition. This comparison must take place on the basis of objective facts known to each of the candidates in his own case.
            Therefore the decision by which a Selection Board rejects a candidature must state reasons so that the candidate, on the one hand, may know the reasons which decided the Board and in an appropriate case, may dispute them, and so that the Court, on the other hand, when called upon to decide an issue, may exercize its judicial control even if the control is limited in this field to exact observance of matters of fact, to mistakes of law or a possible misuse of powers.
            The impugned decision certainly does not meet the requirement that sufficient reasons be stated. It is moreover couched in identical terms to those of the decision which the First Chamber of the Court annulled by its previous Marcato judgment of 14 June 1972.
         
      I invite you, therefore, to accept the same solution, without any need to examine the third plea in the application, and I urge the annulment of notice of competition COM/184/71, of the decision whereby the Selection Board for the said competition refused to admit the applicant, and, by way of consequence, the annulment of the appointments made as a result of the competition; and finally that the defendant pay the costs of the action.
   (
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      )	Translated from the French.