Opinion of Mr Advocate-General Mayras

Mr President,

Members of the Court,

Mr Carmelo Morello entered the service of the Commission of the European Communities on 1 February 1973 as an administrator in career bracket A 7/A 6 in the Directorate-General for Competition with particular responsibility for inquiries within undertakings. He was placed in Grade A 6, Step 2 in view of the studies which he had completed and of his professional experience.

Following a vacancy notice for two posts in the Security Office in Brussels advertised in the Staff Courier of 21 January 1974, a notice of a competition based on qualifications and oral tests for these two posts was, more than 18 months later, published in the Staff Courier on 4 August 1975 and displayed in the usual places. It was stated that applications submitted following the vacancy notice did not need to be renewed.

The applicant submitted his application for these two posts on 13 August 1975 and, curiously, the details relating to the application are contained in a form dated 15 March 1973 thus prior to the date on which the applicant officially made his application.

By a letter of 3 November 1975 he was informed that the Selection Board had been unable to allow him to take part in these competitions. On 29 January 1976 the applicant lodged the present application for the annulment of this refusal to admit him to the competition and, consequently, for the annulment of the competition procedures and the two appointments made as a result of them.

In support of his application he first relies on the argument that the contested decision did not state the reasons on which it is based. In the alternative he argues that if the Selection Board thought that his qualifications were insufficient and inadequate with regard to the requirements stated in the notice of competition, it has made a wrong assessment and has therefore based its decision on erroneous reasons either of fact or of law.

The administration in fact informed him only after the lodging of this application, on 12 February 1976, that the reasons for his exclusion were, according to the report of the Selection Board, in particular, the lack of extensive experience relevant to the post, preferably acquired in government or international service. For this reason the applicant further argues in his reply that the reasons stated are inadequate.

I —. Although at least up to the oral stage of the proceedings, the Commission does not contest the admissibility of this application, it nevertheless raises doubts as to the admissibility of the grounds relied on as they were not raised in the course of the pre-litigation stage or because since the lodging of the application the applicant, it is alleged, has had no interest in relying on them.

1. In my opinion it seems contradictory to require the applicant, as does the Commission, to submit a prior complaint (Article 91 (2) of the Staff Regulations of Officials) relying on the argument based on the fact that no reasons were stated for the measure informing him that the Selection Board had not admitted him to the tests and to recognize that he may subsequently contest by means of an application to the Court either the absence, the adequacy or the inaccuracy of those reasons without previously having lodged a complaint (since even the appointing authority would be unable to amend or annul such a decision by the Selection Board). The procedure of prior complaint is not envisaged for the purpose of opposing a measure which merely notifies the contents of a decision and which does not itself adversely affect the individual.

2. Secondly, according to a judgment of the Court of 13 July 1972 in Joined Cases 55 to 76, 86, 87 and 95/71 (Besnard and Others v Commission [1972] ECR 564) an interest in bringing an action is a condition for the admissibility of the applications and not for the admissibility of the lines of argument: the fact that the reasons for his exclusion were communicated to the applicant after he had lodged his application and that this notification gives him satisfaction in this respect does not remove his interest in bringing the action which must be assessed on the date on which he lodges the application.

II —. It is correct that the validity of the first argument is closely linked to that of the second but the proposition may also be reversed and it may be said that the validity of the second argument is dependent on the assessment of the first or, more exactly, if the Court has to find that the grounds were inadequate, an examination of whether they were based on facts which were substantially correct and of such a nature as to justify the decision in law would be superfluous. I shall therefore deal with matters in the order followed in the report for the hearing.

1. In this respect I shall make the following observations:

2. There exists a second anomaly which appears to me to be more serious and which perhaps explains why the reasons were inadequate. I said that in the case of competitions on the basis of qualifications and tests the qualifications of the candidates chosen after an initial selection had subsequently, so to speak, to be examined no longer with regard to the requirements called for in the notice of competition but compared with each other and had to be assessed according to the criteria laid down by the Selection Board, as the candidates' admission to the final oral tests must be dependent on this assessment.

III —. In the course of the written procedure and principally during the oral procedure the Commission was at pains to explain that, finally, the choice of the appointing authority could not have been better than the one actually made. It was only at that final stage of the proceedings that it agreed to undertake a detailed comparative analysis of the files of all the candidates, both those who were not admitted to the tests and those who were admitted and were finally proposed, thus revealing to the Court with no difficulty the confidential nature of the work of the Selection Board.

In these circumstances I consider that the objection of inadmissibility which the Court would have had to examine even of its own motion, cannot be upheld and I suggest that the Court should dismiss the application on the substance of the case.

However in view of the dilatory manner in which the Selection Board acted and the reluctance of the Commission to state its reasons I suggest that the Court relieves the applicant of the costs which should in principle be borne by him.

1 Translated from the French.