Opinion of Mr Advocate General Capotorti

Mr President,

Members of the Court,

1. The application with which we are concerned raises once again the question of the requirements for the validity in form and substance of a decision by which the selection board for a competition refuses to admit one of the candidates to the written tests.

2. It might be questioned whether a complaint raised for the first time on the reply is admissible. Article 42 (2) of the Rules of Procedure provides that: No fresh issue may be raised in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the written procedure. The second subparagraph of Article 42 (2) adds that: If in the course of the written procedure one of the parties raises a fresh issue which is so based, the President may, even after the expiry of the normal procedural time-limits, … allow the other party time to answer on that issue. At first sight it would seem that these provisions must be interpreted as meaning that the prohibition imposed by the first subparagraph must be applied without derogation save in the exceptional cases expressly mentioned. But it must be remembered that the rule in question has a specific function, which emerges clearly from the second subparagraph quoted above: to avoid one party being denied the opportunity to reply to the new complaint during the written procedure (cf. the opinion of Mr Advocate General Warner to that effect in Case 46/75 IBC v Commission [1976] ECR at p. 89). Therefore too rigid an interpretation of Article 42 (2) does not seem justified: the important point is to establish whether the party against whom the new complaint has been raised has been handicapped in resisting it as a result of the other party's conduct of the procedure.

3. The other ground on which the applicant challenges the decision is, as I have said, that her practical experience was incorrectly assessed. In my opinion, that complaint also is confirmed by the matters, taken as a whole, which have emerged in the course of the proceedings.

4. On account of all the considerations examined I believe that the application deserves to succeed. However, the annulment must be limited to the decision not to admit the applicant to the tests: indeed, as it was an open competition announced for the purpose of constituting a reserve for future recruitment, the exclusion of the applicant did not affect the admission to the written tests of the persons who, in the selection board's opinion, possessed the necessary requirements. Consequently, as the Court has already declared in the Costacurta and Salerno cases, the rights of the applicant will be sufficiently protected if the selection board reconsiders its decision, without it being necessary to question the whole of the results of the competition or to annul appointments made in consequence thereof.

I accordingly suggest that the Court, in partially accepting the application submitted by Mrs Kobor, should annul the decision not to admit her to Competition COM/B/155 and should order the Commission to pay the costs.

1 Translated from the Italian.