CELEX: 61975CC0031
Language: en
Date: 1975-11-20
Title: Opinion of Mr Advocate General Warner delivered on 20 November 1975. # Mario Costacurta v Commission of the European Communities. # Case 31-75.

OPINION OF MR ADVOCATE-GENERAL WARNER
      DELIVERED ON 20 NOVEMBER 1975
      
         My Lords,
      The applicant in this case, Signor Mario Costacurta, had the advantage of receiving in Italy a secondary education, on what is there called the ‘classical’ side. He never went to University, but he studied for two years at a technical college in France, run by the Conservatoire des Arts et Métiers. The Court has not been told what he studied there nor whether those studies resulted in the award to him of any diploma.
      In 1966 the applicant joined the staff of the ECSC as a linofilm operator in the Publications Office. After having been at first a member of the local staff and then a member of the auxiliary staff of that Office, he was established in Grade C 3 on 1 April 1969. He had, in July 1967, taken part in a competition for a post in Category B, but, although placed on the list of suitable candidates, he was not selected for the post.
      In 1971 the applicant was an unsuccessful candidate in a competition for a post as an Italian language proof reader in Career Bracket B 3/B 2. He brought an action in this Court, Case 78/71, Costacurta v Commission (Rec. 1972 (1), p. 163), challenging the validity of that competition. While the action was pending, he was, at his own request, transferred to the staff of the Directorate-General of Personnel and Administration in Luxembourg. There was much discussion, both in the pleadings and at the hearing, of the circumstance that, during this transfer, the applicant continued to receive the fixed allowance provided for by Article 4 (a) of Annex VII to the Staff Regulations. I do not, for my part, think this relevant, except, perhaps, in so far as it underlines the fact that the applicant was, at the time, still a Category C official.
      On 22 March 1972 the Court delivered Judgment in the applicant's favour, holding that the competition in question, and the appointments made on the basis of it, were void, because the notice of competition had not specified an age limit or stated that no age limit was applicable, as was, at that time, required by the Staff Regulations.
      The upshot of this was that, following a fresh competition, or a re-opening of the competition — it is not quite clear which — the applicant was, on 21 June 1972, appointed, with effect from the first of that month, to a post in Grade B 3 in the Publications Office. A description of the duties attached to that post is given in the applicant's report for the period 1 July 1971 to 30 June 1973 (Annex 9 to the Application). That document is in Italian. A translation into French of the relevant passage, supplied by the Commission (Defence p. 2), reads as follows:
      ‘Fonctionnaire de conception chargé d'effectuer, dans le cadre de directives générates, des travaux difficiles et complexes en matière d'imprimerie, en particulier:
      
               —
            
            
               préparer des manuscrits du point de vue de la langue et de la typographie
            
         
               —
            
            
               corriger les épreuves en langue italienne et vérifier la pagination
            
         
               —
            
            
               établir la mention “bon à tirer”.’
            
         Towards the end of 1973 (the exact date does not appear from the papers before the Court) the Commission gave Notice of an internal competition (COM/A/ 15/73) to be held for the purpose of drawing up a reserve list of officials suitable for appointment as administrators, in Career Bracket A 7/A 6, in the fields of printing and publishing. Among the conditions that candidates were required to fulfil were —
      
               (1)
            
            
               That they should have a University degree or equivalent experience and
            
         
               (2)
            
            
               That they should have some experience relevant to the posts in question.
            
         The competition was to be on the basis of qualifications and tests. (A copy of the Notice of Competition is Annex 1 to the Application).
      The applicant and 21 other persons applied to take part in the competition.
      The Selection Board held that, of those 22, four, including the applicant, failed to meet the requirements set out in the Notice of Competition. In the applicant's case this was because he had neither a University degree nor, in the Selection Board's view, equivalent experience. The Selection Board did not suggest that he did not have experience relevant to the posts in question.
      Of the other 18 candidates, 14 were admitted to the competition by unanimous decision of the Selection Board, whilst four were admitted to it by majority decision only. These four included two whom I shall call respectively Mr M. and Mr S.
      The applicant was notified of his exclusion from the competition by a letter dated 27 June 1974 from the Head of the Personnel Dvision of the Commission (Annex 3 to the Application). On the very following day the applicant wrote to the Head of the Personnel Division asking for the reason for his exclusion, saying that among the candidates admitted to the competition were persons doing the same job in the same career bracket as himself and whose educational qualifications were, in some cases, inferior to his own (Annex 4 to the Application).
      There was no reply to that letter until 5 August 1974, by which time the competition was over, the tests having been held on 16 July 1974. They resulted, incidentally, in only two candidates, out of the 18, being successful. Neither Mr M. nor Mr S. was successful.
      On 5 August 1974 a letter (Annex 5 to the Application) was written to the applicant on behalf of the Head of the Personnel Division stating the reason for his exclusion from the competition in the following terms: —
      
               ‘—
            
            
               absence d'un diplôme d'études universitaires ainsi que manque d'une expérience professionnelle d'un niveau équivalent —
               Le niveau de votre expérience professionnelle a été en effet apprecié par comparaison avec les attributions d'un fonctionnaire ayant accompli des études universitaires sanctionnées par un diplôme et remplissant des tâches de catégorie A au sens de l'article 5 du Statut du Personnel.’
            
         This was indeed the formula used by the Selection Board in its Report (Annex I to the Defence).
      On 22 August 1974 the applicant submitted to the appointing authority a complaint under Article 90 of the Staff Regulations (Annex 6 to the Application) stating that he did so in order to comply with Article 91 (2) of the Regulations. In that complaint the applicant pointed out that his letter of 28 June 1974 had been sent in ample time to enable the Selection Board to reconsider, before the tests were held, its decision to exclude him from the competition. He also complained that the reasons given for his exclusion were incomplete and vague and that they did not explain why he had been ‘discriminated’ against.
      The appointing authority did not deal with the applicant's complaint within the four months prescribed by Article 90 (2) of the Staff Regulations. On 15 January 1975, however, a letter was written to him on behalf of the Commission (Annex 8 to the Application) saying that the Commission did not propose to express a view as to the worth of the reasons given by the Selection Board and referring to the Judgment of the Court in Case 44/71, Marcato v Commission (Rec. 1972 (1) at p. 433) where, the letter pointed out, the Court had held that the Commission had no power to annul or modify a decision of a Selection Board and that the only remedy available to a person wishing to challenge such a decision was to take proceedings before the Court.
      The applicant lodged his Application originating these proceedings on 18 March 1975. By that Application he challenges the decision excluding him from the competition and also challenges, if and so far as necessary, the rejection of his complaint of 22 August 1974.
      The first question that Your Lordships have to decide is whether the applicant's action is admissible. In its pleadings the Commission queried the admissibility of the action but did not formally claim that it should be held inadmissible. At the hearing, however, Counsel for the Commission came off the fence and expressly made that claim.
      The argument of the Commission on this point is founded on the Judgments of the Court in the second and third Marcato cases, namely Case 44/71 (already cited) and Case 37/72 [1973] ECR 368.
      It is in my opinion important to bear in mind that the relevant events in both those cases had occurred before the amendment of Articles 90 and 91 of the Staff Regulations by Council Regulation (Euratom, ECSC, EEC) No 1473/72 in July 1972, that is at a time when those Articles were in their original form. So it is, I think, necessary to have in mind what those Articles said when they were in that form. They were, so far as material, and having regard to minor amendments made by Regulation No 259/68, in the following terms:
      ‘Article 90
      Any official may submit a request or a complaint to the appointing authority in his institution.
      The request or complaint shall be submitted through the official's immediate superior, except where it concerns that person in which case it may be submitted directly to the authority next above.
      Article 91
      1.   Any dispute between the Communities and a person covered by these Staff Regulations regarding the legality of an act adversely affecting such person shall be submitted to the Court of Justice of the European Communities. In the cases mentioned in these Staff Regulations and in disputes of a financial character between the Communities and a person covered by these Staff Regulations, the Court of Justice shall have unlimited jurisdiction.
      2.   Appeals under this Article shall be lodged within three months. If the measure is of a general nature the period shall begin on the date of publication thereof by the competent authority of the institution, and if the measure affects a specified person, the period shall begin on the date of notification of the decision to that person.
      Where the competent authority takes no decision in respect of a request or a complaint from a person covered by these Staff Regulations within two months from the date on which it was lodged, this shall be deemed to constitute an implied decision rejecting it; an appeal against such decision shall be lodged within a further two months.’ (OJ Special Edition 1959-1962 (as amended))
      Thus any official who wished to complain of a decision affecting him had an option. He could either lodge a complaint through administrative channels under Article 90 or he could at once initiate proceedings before the Court under Article 91. The initiation of such proceedings was subject to a time limit of three months.
      What the Court held in the two Marcato cases was that it was pointless for an official who wished to complain of a decision of a Selection Board to lodge an administrative complaint, since the appointing authority had no power to annul or modify such a decision. His correct course was at once to initiate proceedings before the Court. But, said the Court, in both those cases, having regard to the custom of officials always to lodge an administrative complaint before resorting to the Court, it would be inequitable to hold one who had done so time-barred because, as a result, the period of three months from the date of the notification of the decision to him had elapsed.
      I need not, I think, take up Your Lordships' time with a full account of the amendments made to Articles 90 and 91 in July 1972. The crux lies in the new paragraphs (2) and (3) of Article 91. These are as follows:
      
               ‘2.
            
            
               An appeal to the Court of Justice of the European Communities shall lie only if:
               
                        —
                     
                     
                        the appointing authority has previously had a complaint submitted to it pursuant to Article 90 (2) within the period prescribed therein, and
                     
                  
                        —
                     
                     
                        the complaint has been rejected by express decision or by implied decision.
                     
                  
         
               3.
            
            
               Appeals under paragraph 2 shall be filed within three months. The period shall begin:
               
                        —
                     
                     
                        on the date of notification of the decision taken in response to the complaint;
                     
                  
                        —
                     
                     
                        on the date of expiry of the period prescribed for the reply where the appeal is against an implied decision rejecting a complaint submitted pursuant to Article 90 (2); nevertheless, where a complaint is rejected by express decision but before the period for lodging an appeal has expired, the period for lodging the appeal shall start to run afresh.’ (OJ C 12 of 24. 3. 1973)
                     
                  
         The only derogation from the requirements of those paragraphs is provided for by paragraph 4. This enables a person to lodge an appeal to the Court immediately after having submitted a complaint to the appointing authority under Article 90 (2) where he applies for interim relief.
      Notwithstanding the categorical terms of those provisions, the Commission submits that what the Court said in the Marcato cases still holds good, because the proposition remains true that an appointing authority cannot annul or modify a decision of a Selection Board, so that it is pointless to complain to that authority about such a decision. Here, the Commission points out, the applicant's complaint dated 22 August 1974 could serve no useful purpose. The Commission further points out that the Judgment in the third Marcato case was delivered after the amendment of Articles 90 and 91. Lastly the Commission says that what could rightly be regarded as inequitable at the time when the Marcato Judgments were delivered can no longer be so regarded now that those Judgments have been in the books for some time.
      My Lords, it is of course correct that the date of the delivery of the Judgment in the third Marcato case was later than the date of the amendment of Articles 90 and 91. But this circumstance is in my opinion irrelevant. All the material events in that case, including the commencement of the proceedings in
      this Court, had occurred before. July 1972, so that the amendment could have no bearing upon it. The case had to be decided on the basis of Articles 90 and 91 in their original form.
      I do not for my part think that the law as laid down in the Marcato cases can be regarded as having been left unchanged by the amendment of Articles 90 and 91. It seems to me that those Articles as they are now worded exclude any possibility of an appeal to this Court unpreceded by an administrative complaint.
      Nor do I think that such a complaint need always be pointless. In the third Marcato case, Mr Advocate-General Mayras expressed the opinion, with which I respectfully agree, that an appointing authority receiving a complaint about a decision of a Selection Board was in duty bound to forward that complaint to the Selection Board in order to enable it to reconsider its decision: [1973] ECR 375. It may well be that if, in the present case, the Head of the Personnel Division had promptly passed the applicant's letter of 28 June 1974 on to the Selection Board, instead of doing nothing about it until after the competition was over, the present litigation would never have arisen.
      If I am wrong on those points, it seems to me that the principle of equity that was applied by the Court in the Marcato cases must be equally applicable here. If it would have been inequitable to hold it against the applicant in those cases that he followed what was then the custom of officials, it would be just as inequitable, if not more so, to hold it against the present applicant that he complied with what was, on the face of Article 91, a statutory requirement. It was suggested by Counsel for the Commission at the hearing that what the applicant should have done was to lodge simultaneously a complaint under Article 90 (2) and an application to this Court. That may be the course that a cautious legal adviser would have prompted him to take, but it cannot be the course that it was correct in law for him to take. In fact we know from the answer that was given at the hearing by the applicant's Counsel to a question asked by one of Your Lordships, that, at the time when he lodged his administrative complaint, the applicant was not being legally advised.
      I would accordingly hold this action admissible.
      I turn to the substance of the case. The applicant challenges the decision of the Selection Board to exclude him from the competition on two grounds. He does so first, on the ground that that decision was inadequately reasoned. He does so secondly on the ground that it constituted a misuse of power.
      I have, after considerable hesitation, come to the conclusion that the applicant is entitled to succeed on the first of those grounds.
      The leading authorities on the point are again the second and third Marcato cases. In those cases the Court pointed out that there are two stages in the work of a Selection Board. At the first stage its task is to examine the candidates' applications and the papers accompanying them in order to see which candidates fulfil the requirements set out in the notice of competition and so are entitled to be admitted to the competition. At the second stage the task of the Board is to consider the qualifications of the candidates admitted at the first stage with a view to drawing up a list of those suitable for the post or posts to be filled. Whilst the second stage thus consists, in the main, of a comparative evaluation of the merits of the different candidates and is accordingly confidential, the first merely calls for an objective examination of their qualifications to see if they match the requirements in the notice of vacancy. Decisions made by the Board at the first stage must therefore be supported by sufficiently clear reasons.
      In the Marcato cases the Boards concerned had not given any reason at all for rejecting the applicant at the first stage, beyond saying that he lacked an advanced level of secondary education or equivalent experience (the competitions there in question being for posts in Category B). In the present case the Selection Board went further and stated that it had judged the level of the appellant's experience by relating it to the functions of an official who was a graduate, performing duties in Category A as described in Article 5 of the Staff Regulations. The question is whether this was enough.
      I do not think it was.
      As Mr Advocate-General Mayras pointed out in the third Marcato case ([1973] ECR 376) the purpose of requiring a Selection Board to state its reasons for rejecting a candidate at the first stage is twofold. It is first to enable the candidate himself to know those reasons and so to enable him, in an appropriate case, to dispute them. Secondly it is to enable this Court, if called upon to do so, to exercise its powers of judicial review, which, in this field, means to enable it to see whether the Board has made any material error of fact or of law or, possibly, has misused its powers.
      The Court, in the present case, has not been enabled to do this. Much of the argument before it has consisted in a comparison between the applicant's past career and the past careers of Mr M. and Mr S. This has been because the gist of the applicant's contentions in support of his allegation that there was a misuse of power consisted in an assertion that the Selection Board could not properly have rejected him as having insufficient experience while accepting that Mr M. and Mr S. had that experience. The Commission for its part valiantly sought to show that there were possible reasons for this differentiation. But its arguments were based on surmise. For instance the Commission put forward the fact that Mr M. had been proof reading for the Publications Office since 1967, at first on a freelance basis, then as temporary staff and finally as an established official, which meant that he had been working at Category B level since 1967 whereas the applicant had been at that level only since 1972. But if length of experience of Category B work was the relevant criterion, why, one wondered, was Mr S., who was in Category C until December 1973, admitted to the competition? To this the Commission replied that, whilst the admission of Mr S. did seem surprising, it might possibly be explained by the fact that for three years, Mr S. performed, in Brussels, albeit in Category C, a responsible job concerned with the distribution of the Commission's literature.
      My Lords, no-one, and certainly not the Court, should be called upon to indulge in this sort of guesswork as to the considerations upon which the Selection Board may have acted. The Court is entitled to be told by the Selection Board what those considerations were.
      I am not suggesting that the applicant, or anyone, is entitled to know the reasons why Mr M. and Mr S. were admitted to the competition. But the applicant and the Court are entitled to know, specifically, why he was not.
      I do not underestimate the difficulties with which Selection Boards are confronted, especially where the question is as to the equivalence of particular experience to a particular level of formal education. There is then the obvious difficulty of defining the criteria by which that equivalence is to be assessed. But I have come to the conclusion, with hesitation, as I have said, that it is the duty of the Selection Board, in each competition, to define the criteria to be applied for that purpose in that competition, and to define them in an objective manner, so that it can be seen (a) whether those criteria accord with the law (b) whether, assuming that they do, any factual error has been made by the Selection Board in applying the criteria to any particular rejected candidate and (c) whether the Selection Board has avoided any misuse of its powers.
      I have come to that conclusion with hesitation because I am aware that the view is tenable that the equivalence of a particular experience to a particular level of formal education is so elusive a question that it should properly be regarded as capable of solution only by means of a value judgment, i.e. by means of a judgment which, by definition, is not capable of judicial review. But I think, my Lords, that both the authorities in this Court and justice to candidates in competitions for posts on the staffs of Community Institutions command that that view should be rejected. Value judgments come at the second stage in a Selection Board's work. Case 18/64 Alvino v Commission [1965 II] ECR 789 (Rec. 1965 (II) p. 972) illustrates the practical utility of Selection Boards defining and stating the criteria on which they have acted at the first stage.
      To say that it is the duty of a Selection Board to state the criteria on which it has acted at the first stage is not to say that the Report of a Selection Board should contain a detailed analysis of each rejected candidate's qualifications showing how they fall short of those criteria. Not only would such a requirement be excessively onerous for the Selection Board in the case of a competition where there were a large number of candidates but it would, I. think, also be inconsistent with the line of authorities in this Court, culminating in Case 188/73 Grassi v Council [1974] ECR 1099, that holds that an appointing authority is not required to give reasons for its choice in so far as the giving of such reasons would involve disparaging unsuccessful candidates. The same must be true of a Selection Board.
      Having regard to the view I have formed and expressed as to the first ground on which the applicant's action is founded, I need not detain Your Lordships for long on the second.
      As Your Lordships will have gathered from what I have already said, my view is, essentially, that the Court cannot judge whether the applicant is right or wrong on this, because the Selection Board's inexplicitness makes any such judgment impossible.
      A misuse of power involves, according to the authorities in this Court, a use by an administrative authority of a power conferred on it for a purpose other than that for which the power was conferred. I asked Counsel for the applicant at the hearing what was the wrongful purpose for which, in his submission, the power for a Selection Board to exclude a candidate from a competition was exercised by the Selection Board in this case. He answered that no law-abiding Selection Board could have come to such inconsistent decisions as did the Selection Board in this case about, respectively, the applicant, Mr M. and Mr S. This, my Lords, may be so, or it may not. How can we know?
      Because the Selection Board refrained from giving its reasons for what it did, we cannot know.
      In the result I am of the opinion that this action must succeed; that, accordingly, the Report of the Selection Board in Competition COM/A/15/73 and any appointments made on the basis of that Report must be declared void; and that the Commission must be ordered to pay the costs of the action.