OPINION OF MR CAPOTORTI — JOINED CASES 4, 19 AND 28/78 SALERNO v COMMISSION

Mr President,

Members of the Court,

1. The applications in respect of which this opinion is delivered were submitted by three candidates for the same competition who were not admitted to the tests. The competition in question was COM/A/154 (published on 7 September 1977 in the Official Journal of the European Communities No C 213), held in order to constitute a reserve of administrators in career bracket A 7/A 6 with the Commission. The notice of competition, in describing the nature of the duties to be performed, stated that such duties related to specified aspects of Community activity (general administration, administration of research activities, external relations, information, financial and budgetary affairs and social affairs); the application form for the competition required each candidate to choose one of these fields. Furthermore, amongst the special conditions for admission to the competition was a requirement that the person concerned should have completed a university education, leading to a degree or diploma, in a field appropriate to the option chosen, together with at least one year's experience obtained after graduation which also had to be relevant to the option chosen. The selection board was required to draw up a list of candidates satisfying the prescribed conditions and to admit them to the written test.

2. In case 28/78, Massangioli, the Commission expressed doubts regarding the admissibility of the application since it was lodged only two days after the submission of the complaint to the appointing authority in pursuance of Article 90 of the Staff Regulations of Officials; there was thus no decision rejecting the complaint which, according to Article 91 (2) of the Staff Regulations, constitutes one of the conditions for the admissibility of an application to the Court. Nevertheless regard must be had for the statement in Mr Massangioli's application, lodged on 3 March, to the effect that he submitted his complaint through official channels only in case the Court considered that an application against the decision of the appointing authority required to be preceded by a complaint pursuant to Articles 90 (2) and 91 (2) of the Staff Regulations.

3. In my view the arguments whereby the persons concerned maintain that they were wrongly refused admission to the written test can be grouped as follows: first, they maintain that the competition procedure was invalidated by certain irregularities concerning the participation of examiners in the work of the selection board, failure to observe the principle of collegiality and the procedures for reviewing the position of certain of the candidates who had not been admitted; secondly, they maintain that the failure to provide an adequate statement of reasons for the contested decision means that a procedural requirement was infringed; thirdly, they maintain that the substance of the decision was discriminatory in view of the fact that it was decided to admit other candidates with the same qualifications. In Mr Massangioli's application mention is also made of the fact that the applicant had been admitted to a similar, previous competition; however it is not clear according to what criteria that is to be held to constitute an additional defect in the contested decision and indeed the point remains subsidiary since it was neither taken up nor developed in the subsequent course of his observations.

4. The applicants, in their complaints concerning the assistance given to the selection board by examiners, are concerned to call in question first the service of such persons at the stage of the examination of applications for the purposes of admitting applicants to the tests, and secondly the powers delegated to such examiners, to whom the board in substance transferred a thorough-going power of decision.

5. The applicants Authie and Salerno have at a number of points in their applications relied upon another procedural irregularity, namely that the board did not operate as a collegiate body. In particular, the applicants maintain that many decisions were taken by the chairman of the selection board alone, both in the first stage of assessing qualifications and in re-examining the files of certain candidates who reacted against the notification that they were not to be admitted.

6. I shall now survey the factors which make it possible to reconstruct that phase of the selection board's work. The minutes of 8 January 1978 merely state that five of the candidates were admitted after re-examination of their applications (and lists their names); on the other hand the board confirmed its original decision not to admit the candidates, in particular (notamment) in the case of Jean Maas and Martine Snappe. The Commission, in its replies to the questions put to it by the Court of Justice, stated (point 5) that during its meeting on 8 January 1978 the selection board in competition COM/A /154 considered all the application forms which gave rise in any way to complaints from disappointed candidates or from persons acting on their behalf. Five of these complaints were upheld by the board and are specified in the board's minutes, being decisions to include those concerned on the list of admitted candidates, thereby modifying the original decisions of refusal. The two cases of rejection of complaints mentioned in the minutes of 8 January 1978 of the selection board are cited by way of example.

7. As I indicated at the outset the application is also based on the failure to provide a statement of reasons for the contested decisions. In this matter the applicants have relied upon the second paragraph of Article 25 of the Staff Regulations (whereby any decision adversely affecting a specific official shall state the reasons on which it is based) and the case-law of the Court of Justice. It is not clear to me that Article 25 is applicable to the situation where a candidate is not admitted to the tests in a competition; nevertheless the three judgments cited above, those of 14 June 1972 and of 15 March 1973 in the two Marcato cases and that of 4 December 1975 in the second Costacurta case, are certainly of considerable assistance with regard to the problem in question.

8. It remains to consider whether discrimination has occurred in this matter. All the applicants have also relied upon this ground of annulment, pointing out that other candidates who likewise obtained certificates from the College of Europe were admitted to the competition. In fact Mr Authie cannot rely upon the ground in question since he was excluded from the competition because his degree was not considered relevant to the option chosen. In addition to the foregoing the Commission has objected that it was necessary to compare the choice of the candidate with the specialist subject appearing on the certificate awarded by the College of Europe; Mr Salerno followed a course at the College with economics as the main subject and thus chose the field of financial and budgetary affairs; Mr Massangioli specialized in administrative science at the College of Europe and chose as his field external relations. Mr Salerno has listed the names of other candidates who obtained certificates from the College of Europe with economics as their main subject and who were admitted to the tests, but the Commission has objected that such persons chose the field of external relations. Nevertheless the foregoing does not amount to evidence of the discrimination complained of, although it appears rather surprising that candidates who specialized in economics were considered suitable for the external relations option whilst Mr Massangioli, who specialized in administrative science and attended a course of training for a diplomatic career, was excluded from the same option.

9. The considerations which I have set out lead me to the opinion that the applications should be sustained. It seems to me that the competition procedure was vitiated by serious irregularities under each of the three heads considered (failure to co-ordinate the work of the examiners, failure to operate as a collegiate body and arbitrary re-examination of certain files) and on the additional ground that the statement of reasons for the contested measures is, in my opinion, insufficient. That being the case, it must be considered whether the entire competition must be annulled or whether only the decisions excluding the applicants need be annulled. In the above-mentioned Costacurta case the latter course was a possibility and the Court of Justice observed that since the competition had been held in order to constitute a reserve for the recruitment of administrators the exclusion of the applicant from the list of candidates had not affected the admission to the tests of persons chosen by the selection board as fulfilling the necessary conditions. The Court accordingly continued: The rights of the applicant will be sufficiently protected if the selection board reconsiders the question of the candidate's suitability for being included in the list of candidates and if such be the case it admits him to the competition without the selection already made by the selection board being affected (I wish to interpose that in the Costacurta case, too, some time had elapsed since the tests in the competition had taken place; the Court's reasoning thus entailed the need for a further ad hoc meeting of the board). The judgment in the Costacurta case was accordingly that only the decision to exclude the applicant from the tests should be annulled. I think that this course could be adopted in the present case in which the procedure in question is also a competition to constitute a reserve of administrators.

10. I accordingly suggest that the Court of Justice, by a ruling in favour of the applications submitted by Mr Salerno, Mr Authie and Mr Massangioli, should annul the decisions not to admit them to Competition COM/A/154 and should order the Commission to pay the costs.

1 Translated from the Italian.