C-112/73

JUDGMENT OF 1. 10. 1974 — JOINED CASES 112, 144 AND 145/73 CAMPOGRANDE AND OTHERS v COMMISSION

CELEX: 61973CJ0112
Datum: 1974-10-01
Källa: eur-lex.europa.eu

In Cases 112, 144 and 145/73

THE COURT (First Chamber) composed of: C. Ó Dálaigh, President, J. Mertens de Wilmars (Rapporteur) and A. M. Donner, Judges, Advocate-General: J. P. Warner Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts

I — Facts and procedure

II — Conclusions of the parties

In the application:

In the Reply:

In the application

In the Reply:

In the application:

In the Reply:

III — Submissions and arguments of the parties

First Part: Submissions common to the three applications

Second Part: Submissions special to the various applications.

A — Application 112/73, Campogrande

B — Application 144/73, De Vleeschauwer, and 145/73, Bouyssou

C — Application 144/73, De Vleeschauwer

Law

I — Submissions common to the three applications

II — Submissions special to the various applications

Application 112/73, Campogrande

Applications 112 and 145/73, Campogrande and Bouyssou

Applications 144/73 and 145/73, De Vleeschauwer and Bouyssou

Application 144/73, De Vleeschauwer

Costs

I —. Facts and procedure

1. legal and administrative

2. economic

3. finance and accountancy

4. social

5. agricultural and technical

II —. Conclusions of the parties

A —. In Case 112/73 the applicant Campogrande claims that the Court should:

1. More particularly for the reasons in 11, 12, 13, 14, 15, 16 (grounds I-II-III-IV-V-VI), annul the entire procedure of competition COM/A/ 264, including the notice of competition;

2. Annul, insofar as necessary, the procedures of competitions COM/A/ 266, COM/A/267, and COM/A/268, including the notices of competitions;

3. Alternatively, Annul the procedure of competition COM/A/264 insofar as concerns the applicant alone;

4. Annul the express rejection by the opposing party in the letter of 11 July 1972 of the applicant's administrative complaint;

5. Annul, insofar as necessary, the appointments made as a result of the annulled competitions;

6. Order the opposing party to pay the costs and expenses of the case;

7. Order the opposing party to produce the entire administrative file relating to competitions COM/A/264/265/ 266/267/268, including all the memoranda, documents and minutes of meetings preceding the notices of competitions;

8. Order evidence to be heard from witnesses:

1. Declare and rule that the opposing party must produce all the documentation over and above the material already mentioned in the operative part of the application, the present list being declaratory but not exhaustive, and in particular:

2. Order evidence to be heard from witnesses of the following facts:

B —. In Case 144/73 the applicant De Vleeschauwer claims that the Court should:

1. More particularly for the reasons in 11, 12, 13, 14, 15, 16 (grounds I-II-III-IV-V-VI), annul the entire procedure of competition COM/A/ 265, including the notice of competition;

2. Annul, in so far as necessary, the procedures of competitions COM/A/ 264, COM/A/266, COM/A/267 and COM/A/268, including the notices of competitions;

3. Alternatively, Annul the procedure of competition COM/A/265 so far as concerns the applicant alone;

4. Annul, insofar as necessary the appointments made as a result of the annulled competitions;

5. Order the opposing party to pay the costs and expenses of the case;

6. Order the opposing party to produce the entire administrative file relating to competitions COM/A/264, COM/ A/265, COM/A/266, COM/A/267, COM/A/268, including all the memoranda, documents and minutes of meetings preceding the notices of competitions;

7. Order evidence to be heard from witnesses:

2. Order evidence to be heard from witnesses of the following facts:

C —. In Case 145/73 the applicant Bouyssou claims that the Court should:

1. More particularly for the reasons in 11, 12, 13, 14, 15, 16 (grounds I-II-III-IV-V-VI), annul the entire procedure of competition COM/A/ 264 including the notice of competition;

2. Annul, insofar as necessary, the procedures of competitions COM/A/ 265, COM/A/266, COM/A/267 and COM/A/268, including the notices of competitions;

3. Alternatively, Annul the procedure of competition COM/A/264 so far as concerns the applicant alone;

4. Annul, insofar as necessary, the appointments made as a result of the annulled competitions;

5. Order the opposing party to pay the costs and expenses of the case;

7. Order evidence to be heard from witnesses:

2. Order evidence to be heard from witnesses of the following facts:

D —. In the course of the oral procedure the applicants further elaborated their previous offers of evidence and presented new offers, claiming that the Court should:

E —. In Cases 112, 144, 145/73 the Commission contends that the Court should:

III —. Submissions and arguments of the parties

1. According to the applicants a first defect sufficient to nullify competitions COM/A/264 and COM/A/265 is to be found in the omission of an age limit in the notices relating to these two competitions. This omission infringes the provision of Article 1 (1) (g) of Annex III to the Staff Regulations and constitutes grounds for annullment, as appears from the Court's Judgment of 22 March 1972 (Case 78/71, Costacurta, Rec. 1972, p. 163). The Commission's notice (which appeared in the supplement to the Staff Courier No 204, dated 29 March 1972) explaining that the omission in the notices of the internal competitions mentioned meant that it had decided that no age limit was necessary for those competitions does not remedy the initial illegality.

2. The applicants secondly point to the discrimination between candidates in competitions COM/A/264/265/266/267/ 268. Whereas these in fact constituted a single competition resulting in the establishment of a single list of suitable candidates, certain selection boards showed themselves more lenient than others, as appears from the striking differences in the numbers of candidates admitted (17 out of 55 for competition COM/A/264, 10 out of 64 for competition COM/A/265, 12 out of 44 for competition COM/A/266, 8 out of 39 for competition COM/A/267 and 28 out of 51 for competition COM/A/268).

3. The applicants thirdly claim discrimination due to the fact that the Selection Board for competition COM/A/268 agreed to the use of English in the language test, in anticipation of the entry of new Member States into the European Communities, although this oppurtunity was not granted by the boards of the other competitions. This situation was especially detrimental to the applicant Bouyssou who has obtained a certificate for the teaching of English from the University of Paris and holds a diploma of higher education in English.

4. The applicants fourthly complain that the Commission changed the original purpose of the disputed competitions by giving the chairmen and members of the Selection Boards instructions to limit, so far as possible, the number of suitable candidates included on the list, with a view to allowing further recruitment by way of external competition. This was especially apparent from the fact that the chairman of Selection Board COM/A/ 268 suggested to his members the systematic reduction of the candidates' marks, a suggestion which the members of the board refused to follow, which explains the proportion of successes in this competition compared with the others. These practices, which resulted in only 75 suitable candidates being included on the list whereas there were 91 posts to fill, were contrary to Article 5 of Annex III to the Staff Regulations, under which the list of suitable candidates shall wherever possible contain at least twice as many names as the number of posts to be filled. The instructions for the adoption of a restrictive policy in the drawing up of the list of suitable candidates constitute a misure of powers.

5. The applicants also claim a manipulation of marks, Orders were allegedly given, with a view to reducing the number included, to reject candidates who obtained between 48 and 52 points, as appears clearly from the minutes of the meeting of the Board for competition COM/A/268, where the chairman's recommendations to this effect were rejected and whence it can be inferred that similar recommendations were accepted by the other Boards. As a result of the said manipulations, the applicant Campogrande's score in the tests was reduced from 52 to 47, while other candidates who had obtained between 48 and 52 points were, nevertheless, kept on the list of suitable candidates. In this connexion, the applicants offer the evidence of various witnesses.

6. The Commission notes that the applicants claim, in the alternative, the annulment of the procedure of competitions COM/A/264 and COM/ A/265 and the re-opening of the competition insofar as concerns them. In the Commission's view, it is not clear how such a course would be possible, since any irregularity involves the total annulment of the competition, at the risk otherwise of impairing the equality among candidates.

A —. Application 112/73, Campogrande

7. The applicant Campogrande is said to have been the victim of discrimination by reason of the fact that she was originally denied admission to the tests of competition COM/A/264 and it was only on 22 March 1972 that she was finally allowed to take the tests, whereas the written test took place on the following day, 23 March 1972. She was accordingly unable to acquaint herself with the documentation until 13 days later than the other candidates.

8. The applicant who, by letter dated 18 May 1972, had already explained to the appointing authority her complaints regarding manipulation of marks and discrimination, requests the annulment of the decision of 11 July 1972 expressly rejecting her request. She further submitted a complaint registered at the Commission's Secretariat under No 527, based on the same grounds. This remained for the period laid down in Article 90 (2) of the Staff Regulations, which is thus equivalent to an implied rejection and which is also challenged in the present application.

B —. Application 144/73, De Vleeschauwer, and 145/73, Bouyssou

9. The applicants De Vleeschauwer and Bouyssou claim that irregularities took place during the course of the written test. The chairman of the Selection Board informed the candidates that the test mentioned under III (1) of the notice of competition, the drafting of a staff memorandum or the minutes of a meeting on subjects to be determined by the Selection Board, would also include a critical assessment. This statement, adding an unforeseen test, was, furthermore interpreted in varying ways by the examiners, who also disagreed in the value given to the critical assessment in their marking.

10. The applicants De Vleeschauwer and Bouyssou also claim that further discrimination among the candidates for the various competitions arose out of the fact that the results of competition COM/A/268 consisted only of a single figure for each candidate, and did not distinguish the scores for the written, oral and language tests as was done for the other allied competitions. Any control by the appointing authority, by the Opposing party or by the Court was thus made impossible.

11. It is claimed to be a matter of common knowledge that three candidates for competition COM/A/268 received intensive coaching for that competition from Mr Ries, Head of Division, and Miss Hoeller, who both sat on the Selection Board.

C —. Application 144/73, De Vleeschauwer

12. The applicant in Case 144/73 considers that the candidates for competition COM/A/265 suffered two additional disadvantages by comparison with the candidates for the other competitions. Firstly, a new specialist option (Use of Energy) was announced only 10 days before the competition opened, thus favouring candidates already working in that field.

13. The applicant De Vleeschauwer further raises a series of complaints based on discrimination of a linguistic nature in the course of the competition procedure:

1. The main object of the applicants is to obtain annulment of competitions COM/A/264, COM/A/265 and, insofar as is necessary, competitions COM/A/266, COM/A/267 and COM/A/268 and of the appointments made as a result of these competitions.

2. Alternatively they seek an injunction from the Court that the Commission should reopen the competitions for which the applicants were enrolled, insofar as they are concerned.

3. Further, Case 112/73 seeks the annulment of the letter sent on 11 July 1972 by a member of the Commission refusing to take account of the complaints of the first applicant as regards the organization of the competitions in question.

4. This claim is completely covered by the main object of the applications.

5. Since these applications relate, to a large extent, to the same facts and are supported by identical submissions, it is appropriate to deal with them in a single judgment.

6. At its session on 22 July 1971 the Commission discussed, for the purpose of 6 constituting a reserve for future recruitment to posts in the career bracket A 7/A 6, the organization of internal competitions on the basis of qualifications and tests, whereby those entered on a list of successful candidates — according to the applicants — or on several such lists — according to the defendant — would be entitled to be appointed to vacant administrative posts and thereby move to another grade.

7. The minutes of this meeting mentioned, inter alia, that they were promotion competitions for officials in category B, that six competitions, specialized according to subject, would be organized to cover all the different sections of the Commission and that procedure would be laid down ensuring the harmonization of the criteria to be followed by the various Selection Boards.

8. On 3 November 1971 the Commission published five notices of competition, relating to five different spheres, that is: COM/A/264 legal and administrative, COM/A/265 economic, COM/A/266 finance and accounting, COM/A/267 social and COM/A/268 agricultural and technical, each of them moreover containing different options.

9. These notices of competition did not state an age limit.

10. Admission to the tests was not limited only to employees of category B; officials of grades LA and C took part in the tests.

11. The first applicant enrolled for competition COM/A/264 (legal and administrative) and opted for institutional questions on the Communities; the third applicant entered the same competition and opted for rules of competition and the second applicant entered competition COM/A/265 (economics) and opted for international trade.

12. On 15 June 1972 each was informed that having regard to the result of the tests it had not been possible to include him or her on the list of suitable candidates.

13. The applicants, apart from certain submissions special to their own case, direct their arguments in particular to four submissions, the first three relating to the regularity of the organization of competitions for the purpose of drawing up a reserve for future recruitment and the fourth relating to the infringement of Article 1 (g) of Annex III to the Staff Regulations relating to the requirement to state an age limit in notices of competition,

14. It is proper to consider these submissions first.

I —. Submissions common to the three applications

15. The applicants state in the first place that all the competitions in dispute are vitiated by illegality by reason of the fact that the Commission did not harmonize the criteria to be used by the various Selection Boards and the conditions of the tests, as it ought to have done, having regard to the fact that it was really a single competition or at least the competitions were to result in a single list of suitable candidates, since it was intended to constitute a single reserve for future recruitment.

16. Discrimination had therefore arisen, in particular to the detriment of the applicants, between candidates in certain competitions in relation to candidates enrolled in others.

17. Further, as regards their legality, these competitions must, for the same reasons, be dealt with as a whole, so that irregularity in one — to the advantage of certain candidates — would involve the illegality of all.

18. Under Article 45 (2) of the Staff Regulations: an official may be transferred from one service to another or promoted from one category to another only on the basis of a competition.

19. Moreover, recruitment by means of competition for the purpose of constituting a reserve for future recruitment is expressly provided for in Article 29 (1) of the same Regulations.

20. The combination of these provisions unquestionably permits the organization of competitions aimed at constituting a reserve for future recruitment of successful candidates belonging to a lower category who are intended to be appointed subsequently, according to the requirements of the service, to administrative posts in the career bracket A 7/A 6.

21. Since the constitution of such a reserve aims, by reason of its general nature, at providing for vacancies relating to the same post and career bracket, but comprising the performance of different duties, it can be achieved by means of several competitions which are harmonized to a certain degree.

22. This harmonization, which the Commission sought, was achieved first by the organization of common tests of a general nature and then completed by different tests relating to spheres of specific knowledge.

23. Finally it found expression in the constitution of a committee composed of members of the various Selection Boards, which met twice before the tests took place for the purpose of planning the work of the Selection Boards and once afterwards to harmonize the marks to a certain extent, of a working party which laid down instructions to be given to the markers, all for the purpose of achieving, while respecting the independence of the Selection Boards, lists of suitable candidates of comparable quality.

24. The Commission, while seeking to harmonize to a certain extent the tests in question, was entitled, as it has done, to organize different competitions leading to different lists of suitable candidates to meet the requirements to provide for different duties, although all relating to the post of administrator, subject nevertheless to the condition that only officials who had been successful at a competition in a sphere relating to the duties to be performed would as a result be promoted.

25. It appears from a comparison of the subjects chosen by the candidates with the notices of vacancies to which they have subsequently been promoted that such was the case, at least in the great majority of cases.

26. If in certain cases the necessity for such correspondence has been disregarded, it does not follow that the competitions are illegal but only that the regularity of these promotions would be doubtful.

27. The Selection Board of each competition therefore had to reconcile the advisability of harmonizing to a certain extent the test conditions and the necessity to judge, according to the appropriate criteria, the experience of the candidates for the purpose of performing the duties for which success at the competition selected marked them out.

28. Such reconciliation is, under the terms of the notice of competition, the responsibility of each Selection Board and is guaranteed by its independence and the secrecy of the proceedings laid down by the Regulations.

29. Thus differences in assessment from one competition to another are not only inevitable but proper, even as regards the common tests, since the assessment of the importance of these latter may vary in the eyes of the different Selection Boards in relation to the various abilities which the performance of different duties requires.

30. No purpose is served by the applicants, citing in support of their point of view that it was in truth a single competition, the fact that in the Staff Courier No 216, of 26 June 1972, the Commission published a single list of suitable candidates comprising all the candidates.

31. This publication comprises the alphabetical list of all the candidates who constitute the reserve for future recruitment to the compilation of which each of the different competitions had to contribute, but beside the name of each official there is noted the competition in which he took part and, moreover, lists of suitable candidates in relation to each competition were transmitted by the Selection Boards to the Commission.

32. Since, therefore, it is established in the present case that there were separate competitions, the tests for which were judged by separate Selection Boards, the applicants cannot complain of differences between the conditions of the competition in which each of them participated and the others.

33. Their indication of evidence in this respect must therefore be rejected as irrelevant to the case.

34. The applicants allege in the second place that the competitions were conceived and organized, not in the interests of the service, but for the purpose of advancing certain specific candidates.

35. In spite of the seriousness of this allegation, there has been no evidence nor indication of evidence in support of it and therefore it must be rejected.

36. The applicants further state that the competitions are vitiated by misuse of powers in that, although they were conceived as promotion competitions mainly to open admission to category A for officials of category B, pressure was subsequently exerted on the Selection Boards to induce them to be more severe so as to restrict the number of successful candidates and thus make possible a larger recruitment by means of external competitions.

37. The provision of reserves for future recruitment is a factor in the recruitment policy of the appointing authority.

38. It is established that the Commission, before the enlargement of the Community by the accession of the new Member States, intended by this means to open up to experienced officials in category B who gave proof of their ability, access to posts in category A, the number of which was about to be increased.

39. However, from 22 July 1971, parallel with the organization of internal competitions in October 1971, it had provided for the organization before the end of 1971 of external competitions for the purpose of filling the same posts.

40. Having decided to combine the two methods for the additional recruitments in category A, in the light of the enlargement of the Community, the Commission was justified in asking the Selection Boards to have regard, in their assessment criteria, to the nature and objectives of the recruitment envisaged, while nevertheless respecting the independence of the said Selection Boards.

41. The Commission could therefore ask the Selection Boards to have regard to the approximate number of posts in the career bracket A 7/A 6 which it anticipated filling from the reserve for future recruitment to be constituted.

42. The applicants put forward the fact that, first, the minutes of the meetings of the Selection Board for competition COM/A/268 show that the members of this Selection Board refused to follow a suggestion by the chairman to reduce en bloc all the marks less than 53 to less than 48 points — the limit for entry on the list of suitable candidates — and that, secondly, the proportion of candidates entered on the list of suitable candidates from this competition is much higher than in the others.

43. They infer that the Selection Boards in the other competitions and in particular those in the competitions in which they participated, complying with the directions, altered the marks.

44. In support of this allegation the third applicant stated that a member of the Selection Board COM/A/264 told a third person that the applicant had been successful in the competition, whereas it appeared subsequently that her mark was 47.

45. The first applicant states for her part that her marks were reduced from 52 to 47 by the Selection Board COM/A/264.

46. The applicants indicate oral testimony of the facts which they state.

47. It appears from a comparative examination of the results of the different competitions that the proportion of successful candidates may be set out in a decreasing order as follows: 55 % (COM/A/268: 28 out of 51); 30.9 % (COM/A/264: 17 out of 55); 21.2 % (COM/A/266: 12 out of 44); 20.5 % (COM/A/267: 8 out of 39) and 15.7 % (COM/A/265: 10 out of 64).

48. Although these figures certainly reveal marked differences capable of being explained either by the difficulty of the subjects, or by the severity of the Selection Boards or the state of preparation of the candidates, they do not in any way show a sharp division between the competition COM/A/268 on the one hand and all the other competitions on the other, and do not in any way support the presumption that the Selection Boards of the other competitions had yielded to pressure or considerations alien to their task, which the Selection Board COM/A/268 has resisted.

49. Further it appears from the file that in their contacts with the department entrusted with the organization of the competitions, the Selection Boards did not cease to assert their independence to reject the suggestions which the Commission had made.

50. Finally it appears from the letter written, in tempore non suspecto, by Mr Krauss, chairman of the Selection Board COM/A/268, that when there were signs that the Selection Boards were not having regard to the figures assessed by Mr Coppé, there was another meeting, which failed to influence the Selection Boards, who insisted on their independence and that there was no numerus clausus and that moreover the Selection Boards acted/ in the independence which is not only guaranteed them but imposed upon them by the Regulations.

51. In these circumstances, indication of evidence to show even an exceptional severity on the part of certain Selection Boards in relation to others cannot lead to finding that the competition in question is vitiated by illegality by reason of this, since it appears from the file that this severity was not the result either of external pressure or of considerations alien to the proper functioning of the service.

52. The same would apply to the fact, if it were established, that the marks of certain candidates had been reduced during the deliberations.

53. Moreover, the examination of ability which Selection Boards must undertake is above all of a comparative nature and, for this reason, covered by the cloak of secrecy inherent in such deliberations, so that they cannot be subjected to control by the Court except in the event of obvious infringement of the rules which govern the proceedings of Selection Boards.

54. Since this is not so in the present case the submission must be rejected.

55. The applicants also maintain that the procedures of competition were irregular by reason of the fact that, in infringement of Article 1 (g) of Annex III of the Staff Regulations 1968, the notices of competition dated 3 November 1971 do not contain an age limit.

56. This provision, as it stood before its amendment by Article 48 of Regulation No 1473/72 of 30 June 1972, (OJ L 160 of 16. 7. 1972, p. 10), required the mention, in the notice of competition, of the age limit as well as the extension of this limit as regards officials who have completed not less than one year's service.

57. The Commission, which was competent to issue these notices, had interpreted this provision as dispensing it from mentioning an age limit when it did not intend to impose one.

58. In the present case, having regard to the nature of the competitions in question and in particular the fact that internal competitions were involved, which were intended to provide a reserve for future recruitment of a limited period of validity, the Commission considered, as it could well do, that an age limit was not required in the interest of the service.

59. Following the judgment of this Court, First Chamber, of 22 March 1972, in Case 78/71 (Costacurta), according to which this decision must be expressly stated, it formally gave notice of the decision which it had taken in this respect in the Staff Courier of 29 March 1972, at a time when the procedures of competition had already been initiated.

60. This notice, although late, nevertheless satisfies, in the circumstances of the case, the requirements of Article 1 of Annex III, the objective of which it realized by precluding the elimination of candidates by reason of their age.

61. It is established that neither at the stage of admission to the tests, nor at any stage in the procedure of the competition or the subsequent procedures of promotion, has an official been excluded on the grounds of age.

62. The submission must therefore be rejected.

63. Following the production, during the oral procedure, of the minutes of the meeting of 22 July 1972, at which the organization of the competitions in question were being considered by the Commission, the applicants put forward additional considerations among which it is possible to discern three new submissions.

64. They state that at the meeting reference is made to six competitions whereas only five were organized, that it indicates that the competitions were to be reserved for officials of category B whereas officials of the LA service took part, and finally that each candidate was to have a card giving his particulars which was to be made out by the administration and not by the candidates, as was the case.

65. According to the applicants this involved irregularities vitiating the legality of the competitions in question.

66. Without dealing with the question of whether, at this stage of the procedure, the production of new submissions is admissible, it is right in the first place to observe that the decision on the organization of the competition takes its legal and final form from the notices of competition brought to the notice of the personnel.

67. The deliberations of the competent body as they appear from the minutes cannot override the clear wording of the decision in question unless they obviously show that the formal decision is not in accord with what was in fact laid down at the end of the deliberations.

68. This is not so in the present case.

69. The file shows that the fact six competitions were provided for and only five organized arose because competition COM/A/268 combined tests relating on the one hand to agricultural subjects and on the other hand to data processing.

70. Althoug this fact does not reveal a punctilious method of proceeding, it is nevertheless in no way such as to vitiate the legality of the acts challenged.

71. Further, although it is established that the competitions in question were certainly intended to enable officials in category B to advance to category A, neither the wording nor the spirit of the minutes provides any basis for the conclusion that they were to be limited exclusively to officials in this category.

72. On the contrary, given the fact of providing a general reserve, having regard to the arrival of officials from the new Member States, discrimination against the officials of other categories, fulfilling the conditions of admissibility, would have been objectionable.

73. The minutes contain no reference enabling the conclusion to be drawn that the cards with the particulars of the candidates could not be completed by the candidates.

74. The submissions must therefore in any event be rejected.

II —. Submissions special to the various applications

75. Miss Campogrande, who at first was not accepted as a candidate for competition COM/A/264, was advised on 22 March 1972 that she was admitted to the tests.

76. She is thus said to have been the victim of discrimination, first because the written tests began the following day, 23 March 1972, and secondly, because she was accordingly unable to acquaint herself with the documentation sent with the letter of admission to the tests until 12 days later than the other candidates.

77. According to the notice of competition COM/A/264 the written test comprised the drafting of a departmental note or minutes of a meeting on subjects to be determined by the Selection Board.

78. A test of this nature does not presuppose on the part of the candidates any preparation in a particular subject.

79. Further, the nature of this test was made public as from 3 November 1971 by a notice in the Staff Courier of that date.

80. Further, the documentation communicated by the letter of acceptance for the tests concerned only the oral tests which took place from 10 to 28 April 1972.

81. The refusal with which she was at first confronted having been withdrawn at her request, the applicant is no longer entitled to challenge under this heading the legality of the competition in which she voluntarily took part.

82. The applicants Campogrande and Bouyssou state, and indicate evidence, that a candidate in competition COM/A/264 was able to take the language test in English.

83. Even if this is so it does not appear that it was taken into account by the Selection Board in its comparative assessment, since the candidate in question was not entered on the list of suitable candidates.

84. According to the applicants De Vleeschauwer and Bouyssou the written test did not correspond with the description which was given of it in the notice of competition.

85. It is alleged that it was stated orally to the candidates at the beginning of the test that the test would comprise, in addition to the memorandum, a critical assessment, whereas the notice of competition provided for the drafting of a staff memorandum or minutes of a meeting, on subjects to be determined by the Selection Board.

86. This fact, it is claimed, led to discrimination between candidates, since the oral instructions were variously translated and understood.

87. A competition was involved, the successful candidates in which would be called upon to be appointed to administrative posts in the career bracket A 7/A 6.

88. Under Article 5 of the Staff Regulations this category comprises career brackets containing … staff engaged in administrative and advisory duties.

89. Although the drafting of a staff memorandum or minutes of a meeting does not necessarily involve a critical assessment, it does not however exclude it, and a call upon the critical faculty of candidates for a post in category A should not so surprise them as to constitute an irregularity involving the annulment of the competition.

90. The second applicant notes further a series of points of detail relating to the preparation of competition COM/A/265 or to the conduct of the tests.

91. He refers to the inclusion, subsequent to the notice of competition, of an additional option relating to the use of energy, to irregularities in the provision of information as to the bibliography to be consulted by candidates and to differences of a linguistic nature in the course of tests.

92. The late inclusion of a new option cannot be discriminatory except as regards candidates who have chosen this option, which is not the case with the applicant.

93. The irregularity in the information as to the bibliography consists in the fact that there was reference to an internal document of the Commission which exists only in French and German.

94. Although the applicant, who had chosen Dutch for the tests, is entitled to have them conducted in that language as far as he is concerned, there is no discrimination with regard to the different candidates in referring from among the texts and works intended to facilitate the preparation of the competition, inter alia, to texts and works written in languages different from that which they have selected for the tests.

95. Finally the second applicant complains of having been the victim of discrimination in that, having chosen, allegedly as a result of a wrong interpretation of the phrase mother tongue in the notice of competition, to do the tests in Dutch, he was required to translate into that language, whereas French is his main working language.

96. It is the rule in language tests to require translation into the language chosen by the candidate in which to take the test and this rule has been observed in the case of the second applicant.

97. These various complaints cannot be upheld.

98. The applications must therefore be rejected.

99. The applicants have failed in their applications.

100. By Article 69 (2) of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs if they have been asked for in the successful party's pleading.

101. Nevertheless, under Article 70 of the Rules of Procedure, in proceedings brought by servants of the Communities, institutions shall bear their own costs.

On those grounds, THE COURT (First Chamber) hereby:

1 Dismisses the applications.

2 Orders each party to bear its own costs.