JUDGMENT OF 30. 11. 1978 — JOINED CASES 4, 19 AND 28/78 SALERNO v COMMISSION

In Joined Cases 4, 19 and 28/78

THE COURT (Second Chamber) composed of: P. Pescatore, Judge, Acting President of Chamber, M. Sørensen and A. Touffait, Judges, Advocate General: F. Capotorti Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts and Issues

I — Facts and procedure

II — Conclusions of the parties

III — Submissions and arguments of the parties

A — Admissibility

B — Substance

IV — Oral procedure

Decision

Admissibility

Substance

First submission

Second submission

Third submission

Costs

I —. Facts and procedure

1. In pursuance of a notice of competition COM/A/154 (Official Journal No C 213 of 7 September 1977, p. 9), the Commission organized an open competition, based on tests, to consitute a reserve of administrators in the career bracket covering Grades 7 and 6 of Category A. The duties of the posts to be filled related to the following aspects of activity: general administration, administration of research activities, external relations, information, financial and budgetary affaires and social affairs.

2. The applicant in Case 4/78, Mr Salerno, in filling in the application form, selected financial and budgetary affairs. He stated that he possessed a doctorate in economics and commerce of the University of Rome and a certificate of Advanced European Studies of the College of Europe at Bruges, with economics as a main subject. From 16 September 1977, he completed a period of training at the Directorate General for Regional Policy and subsequently at the Directorate General for Budgets with the Commission.

3. The applicant in Case 19/78, Mr Authié, applied to be admitted to the competition at issue and chose as his field external relations. He produced a certificate showing him to have a degree in economics, econometric option, to the fourth year examination at the University of Orleans, and a certificate of Advanced European Studies of the College of Europe, Bruges, with economics as a main subject. He had also studied at the Institut d'Etudes Politiques (Insitute of Political Studies), Paris.

4. The applicant in Case 28/78, Mr Massangioli, who is an official in the Language Department of the Commission (L/A 7), applied to enter for the competition and chose as his field external relations. He stated that he possessed a doctorate in political science of the University of Rome, a certificate of language proficiency and a certificate to the effect that he had attended the course in preparation for a recruitment competition for officials of the Italian Ministry for Foreign Affairs at Johns Hokins University, Bologna Center, and a certificate of Advanced European Studies of the College of Europe, Bruges, specializing in administrative science.

5. On 3 January, 21 February and 1 March 1978 the individual applicants lodged complaints under Article 90 (2) of the Staff Regulations of Officials against the decisions of the selection board refusing to admit them to the competition.

6. 4307 candidates entered for the competition in question and 1505 were admitted to the written tests. The minutes of the meetings of the selection board for the competition show that to draw up the list of candidates fulfilling the conditions for admission, the selection board appointed examiners and that for this phase of the work it met on 23 November, from 28 November to 6 December and on 15 December 1977 and 8 January 1978. It also appears from the minutes that five of the candidates included on the list of candidates fulfilling the conditions for admission were admitted after re-examination of their applications and that on the other hand the board confirmed its original decision not to admit the candidates in the case of … two candidates.

7. The individual applications in the present cases, requesting the annulment of the refusals of the selection board to admit the applicants to the competition, were lodged on 9 January, 22 February and 3 March 1978.

II —. Conclusions of the parties

A. 1 The applicants in Cases 4 and 19/78 claim that the Court should: Annul the refusals of the selection board to admit them to Competition COM/A/154; Declare that so far as necessary the competition shall be recommenced as far as the applicants are concerned; Order the Commission to pay the costs. In the reply the applicants add a further claim, having already made reservations to this effect in the original application, namely that the Court should: Annul Competition COM/A/154 and all the subsequent measures including the appointments made or to be made as a result thereof. They further claim that: The costs to be charged to the Commission shall include the costs of the applications for the adoption of interim measures. 2. The applicant in Case 28/78 claims that the Court should: Declare that the application is admissible and well founded; Annul the refusal of the selection board to admit the applicant to Competition COM/A/154; Order the Commission to pay the costs.

B. The Commission contends that the Court should:

III —. Submissions and arguments of the parties

A —. Admissibility

1. The applicant in Case 28/78 states in his application that in accordance with the judgment of the Court of 16 March 1978 in Case 7/77 (Ritter Von Wüllerstorff und Urbair v Commission [1978] ECR 769), his complaint under Article 90 of the Staff Regulations, which was lodged on 1 March 1978, was put forward as a precaution without prejudice to this application.

2. The Commission states that it leaves the matter in the hands of the Court as regards the admissibility of an application lodged on 3 March 1978, without waiting for a decision on the complaint through official channels, which was lodged on 1 March of the same year.

B —. Substance

1. (a) The Commission points out in its defence in Case 4/78, lodged on 7 February 1978, that a review by the Court of the assessment of the selection board relating to the relevance of certificates of postgraduate study to prove, in terms of the notice of competition, experience relevant to the option chosen by candidates, would exceed the bounds of what is lawful in such a review. In its defence in Case 28/78, lodged on 7 April 1978, the Commission states that it might be for the Court, in accordance with its judgment in Case 7/77, Von Wüllerstorff und Urbair, to check whether any such assessment might be unlawful.

1. (b) The applicant in Case 4/78 states that in his opinion the powers of the Court to review this matter find an application in the Court's judgments of 14 July 1965 in Joined Cases 18 and 19/64, Alvino and Others v Commission of the EEC [1965] ECR 789) and in Cases 7/77, Von Wüllerstorff und Urbair.

2. (a) The applicants take the view that the reasons stated for the refusal of the Commission to admit them to the competition, which consist of a mere reference to the qualification in dispute, is inadequate. The applicant in Case 28/78 adds this is especially so when the qualifications of candidates not admitted may appear prima facie to be comparable to those of other candidates who have been admitted. The Commission has therefore infringed Article 25 of the Staff Regulations as well as Annex III. The applicant's argument is corroborated by the Court's judgments of 4 December 1975 in Case 31/75, Costacurta v Commission [1975] ECR 1563, and of 15 March 1973 in Case 37/72, Marcato v Commission [1973] ECR 361, and by the judgment in Case 7/77, Von Wüllerstorff una Urbair.

2. (b) The Commission takes the view that in an open competition based on tests to constitute a reserve for future recruitment, a refusal to admit a candidate, to the tests, stating the condition for admission which, upon a reading of the application and of the accompanying documents in support of it, is not fulfilled, constitutes a sufficient statement of reasons. In this respect, it refers to the judgment of the Court in Case 7/77, Von Wüllerstorff und Urban, paragraph 27 of the decision.

3. (a) The applicant! further state that the fact that the examiners drew up the list of candidates admitted to the tests is contrary in particular to the second paragraph of Article 3 of Annex III to the Staff Regulations. In this respect the applicants point out that recourse to examiners is permissible only at the stage of the tests and that the selection board cannot delegate its power of decision to examiners. The applicants add that it emerges from the minutes of the meetings of the selection board that no directives were given to the examiners with a view to ensuring co-ordination of their work. Furthermore, the selection board did not check the work of the examiners at a later date. The applicant in Case 28/78 points out in this respect that the selection board confined itself to examining the applications which were the subject of complaints. The applicants in Cases 4 and 9/78 observe, after recalling the explanations given by the chairman of the selection board during the hearing in Case 4/78 R — according to which he spent four days in co-ordinating the decisions of the examiners — that on the assumption that there was a subsequent co-ordination, it ought to have been carried out by the selection board and not by its chairman. The applicants in Case 4 and 19/78 point out in this connexion that their letters of 19 December 1977 were not considered by the selection board. The applicant in Case 4/78 adds that his complaint of 4 January 1978 through official channels was not considered by the selection board either.

3. (b) The Commission states first of all that the selection board was not assisted by examiners in considering the applications put forward in the French language. It states next that the task of the examiners, who were appointed solely for linguistic reasons, with a view to facilitating the work of the selection board in drawing up the list of candidates who complied with the conditions for admission cannot be compared with that of the examiners referred to in the second paragraph of Article 3 of Annex III to the Staff Regulations, who in fact serve in an advisory capacity in the tests. In the present case, all the decisions were made by the selection board and the assistance given by the examiners consisted in preparatory work involving the checking and sorting, in a physical and hence in an objective sense, of the many applications put forward. In any case, it is clear from the minutes of meetings of the selection board that the latter, in drawing up the list of candidates to be admitted, met on several occasions. The Commission emphasizes that it appears from the first and second paragraphs of Article 5 of Annex III to the Staff Regulations of Officials, that it is only in the case of competitions on the basis of qualifications that it is for the selection board, by virtue of the third paragraph of Article 5, to determine how candidates' qualifications are to be assessed. As regards the subsequent check by the chairman of the selection board, the Commission points out that this did not relate to any preparatory work carried out by the examiners, but to the results of the work of the selection board with a view in particular to re-submitting to the board the files of candidates who might have been the subject of re-examination by reason of a serious doubt. According to the Commission this is not a case of subsequent co-ordination but of a desire to avoid any possibility of mistake. It states that the two cases in which the decision refusing admission to the competition was maintained were quoted in the minutes of the meetings of the selection board by way of example, as is clear from the use of the words in particular.

4. (a) (1) The applicants also state that there was discrimination with regard to them as compared with other candidates admitted to the competition.

4. (a) (2) The applicants in Cases 4 and 19/78 mention in this respect in their applications the names of five candidates who, like them, followed the course of Advanced European Studies at the College of Europe during the academic year 1976/77 and that four of them had previously studied economics at the university whilst the fifth had followed a course in agronomics. The applicant in Case 4/78 adds that the five candidates referred to, like him, started their studies at the College of Europe immediately after finishing their University courses. The applicant in Case 19/78 feels that it was illogical to suggest to him that he should consider entering for a competition of the type of COM/A/143 involving a specialist knowledge of budgetary and monetary problems, whilst the applicant in Case 4/78, who had chosen to specialize in financial and budgetary affairs, was told that he should rather have chosen the field of external relations.

4. (a) (3) The applicant in Case 28/78 takes the view that the discrimination consists in the fact that the condition which was considered not to have been fulfilled in his case was thought to have been fulfilled by other candidates who had also chosen external relations, simply because they had completed a year of Advanced European Studies. A further example of discrimination consisted in the refusal to admit to the competition officials in the Language Department — in particular the applicant — who had qualifications and experience equivalent, if not superior, to those of external candidates who were admitted to the competition.

4. (b) (1) The Commission states in its defence in Case 4/78 that the five candidates referred to by the applicant opted for the field of external relations and that certain candidates who possessed the certificate of Advanced European Studies were not admitted to the competition because they had chosen the field of financial and budgetary affairs.

4. (b) (2) In its defence in Case 19/78, the Commission points out that the refusal of the selction board was due to the fact that the university degree produced by the applicant, namely a degree in economics with an econometric option, was evidence of knowledge relating to the mathematical treatment of statistical data concerning economic phenomena and not of knowledge relating to external relations. Moreover, there was no certificate granted by the Institut d'Études Politiques in Paris enclosed with the application form. On the other hand it appeared from the application form put forward by the candidate for a training course with the Commission that those studies had been interrupted.

4. (b) (3) With regard to the applicant in Case 28/78, the Commission notes that a certificate of Advanced European Studies involving administrative science as a special subject is not directly related to the field of external relations. According to the Commission it is not correct that applications put forward by officials in the Language Department were systematically rejected; the selection board admitted them to the written tests in so far as they fulfilled the conditions for admission.

4. (c) (1) The applicant in Case 19/78 replies that there was discrimination inasmuch as certain candidates were admitted for the field of external relations with a degree in economics without any inquiry as to the options which they selected during their university courses.

4. (c) (2) In reply to the Commission's argument that he had specialized at the College of Europe in administrative science the applicant in Case 28/78 states that it is necessary to consider in what candidates admitted on the basis of their certificates from the College had specialized. If the other candidates had also specialized in administrative science, discrimination would be clearly evident. In the alternative, the applicant makes the following observations: amongst the three options involved in Advanced European Studies at the College of Europe — namely, administrative science, law and economics — the option in administrative science has the closest relationship with external relations. He adds that, within the framework of the basic option, he selected by way of secondary options matters connected with external relations. Finally, the applicant puts forward as a third example of discrimination the fact that, as may be seen from the minutes, seven applications were re-examined by the selection board after a complaint from the candidates but that his application was not reconsidered although he too had put forward a complaint.

4. (d) The Commission, in its rejoinder in Case 28/78, states, with regard to the alleged discrimination against officials from the Language Department, that two officials in the Category L/A were amongst the 181 candidates who were admitted to the oral tests, and, amongst the 97 candidates who were put on the list of suitable candidates, one official in Category L/A was high up on the list of successful candidates. As regards the third example of discrimination relied on by the applicant in his reply, the Commission agrees that it is correct that, following the complaints, the seletion board reconsidered certain applications put forward and accepted five additional applications after this reconsideration, whilst all the other decisions refusing admission were maintained. However, it is not possible to infer any descrimination from the fact that the applications of Maas and Snappe were mentioned in the minutes of the selection board's meetings, all the more so because these two cases are cited by way of example, as is indicated by the words in particular. It is therefore incorrect to state that seven cases were re-examined.

5. (a) (1) The applicant in Case 4/78 further claims that even on the supposition that a single for all candidates was applied by the selection board, it cannot be used against him since it did not appear as a logical consequence from the wording of the notice of competition; indeed such a rule must not be a secret one. The interpretation of the notice of competition given by the Italian examiner, moreover, does not rest on any objective data; the Advanced European Studies do not involve any main subject in the field of financial and budgetary affairs any more than in the field of external relations; the field of financial and budgetary affairs, according to the applicant, involves specialization in widely differing spheres, financial matters being rather of an economic nature and budgetary matters more of an administrative character. The applicant in Case 4/78, finally points out in this respect that his university studies were connected with financial problems and to a certain extent with budgetary problems and that he underwent a period of training with the Commission in connexion with the field of financial and budgetary affaires.

5. (a) (2) According to the applicant in Case 19/78, it is not for the selection board, if the university studies are regarded as sufficient in relation to the field chosen, to discriminate between one degree and another in economics, according to whether there is evidence of any particular specialization. In fact in France, the last year of a degree course involves certain optional courses, but the student has to offer all subjects and the applicant in particular offered subjects relating to external relations.

5. (a) (3) The applicant in Case 28/78 states as his last point that the selection board wrongly took the view that he did not possess the experience required for the field of external relations. The fact that a year of post-graduate study at the College of Europe was rearded by the selection board as regards certain candidates as relevant has a twofold consequence; the first is that it is necessary to consider the applicant's year of study also as relevant, especially since the studies in which he engaged at the College of Europe were those which, amongst the courses available there, are the most closely related to the field of external relations. The second is that the selection board accepted the principle that a year of post-graduate studies in connexion with the option chosen for the competition was capable of taking the place of the experience required by the notice of competition. The applicant had, in addition, carried out a course of study based on external relations at John Hopkins University. The applicant finally states that he was admitted as a candidate for the tests in the internal competition for the constitution of a reserve, No/COM/A/6/76, with an option for internationl economic relations, including problems relating to the developing countries. This option and the option of external relations are not very different one from another, one appearing as an important special aspect of the other.

5. (b) (1) The Commission recalls that, with regard to Case 4/78, in view of the fact that the applicant had commenced his period of training at the Commission on 16 September 1977, it could not be taken into consideration as experience at the date on which the applications for the competition had to be lodged, namely 10 October 1977.

5. (b) (2) The Commission replies to the last argument put forward by the applicant in Case 28/78 that the special course in administrative science studied by the applicant at the College of Europe does not necessarily constitute proof of experience in the matter of external relations. It takes the view that the postition is the same with regard to attendance at the primarily linguistic course at the John Hopkins University, apart from the fact that no degree was issued. Finally, the Commission makes the point that Competition COM/A/6/76 and the conditions for participation in it, as laid down in the notice of competition, were totally different from those of the present competition, just as the fields chosen for each of two competitions by the candidate in question were totally different.

IV —. Oral procedure

1. The applications in these three cases are for the annulment of the refusal of the selection board for Competition COM/A/154 to admit the applicants to the competition and for the annulment of the appointments made in consequence of the competition.

2. The cases were joined for the purposes of oral procedure and should remain so for the purposes of the judgment.

3. The competition in question was organized as an open competition on the basis of tests to constitute a reserve of administrators in the career bracket covering Grades 7 and 6 of Category A.

4. The duties relating to the post to be filled were defined in relation to six different fields, including external relations and financial and budgetary affairs, amongst which candidates had to express a choice.

5. Under the heading of Special Conditions, the notice of competition provided that candidates must, on the one hand, have completed university education with a degree or diploma in field appropriate to the options chosen and, on the other hand, to have at least one year's practical experience, obtained after graduation, relevant to the option chosen.

6. Two of the applicants, one of whom chose the field of external relations and the other financial and budgetary affairs, were refused admission to the competition on the ground that their experience had not been regarded as sufficiently related to the field selected, whilst the third candidate, who had chosen the fields of external relations, was refused on the ground that his qualifications and degrees were not regarded as in conformity with the qualifications required.

7. The applicants brought their actions before the Court after lodging with the appointing authority complaints under Article 90 (2) of the Staff Regulations of Officials, but without awaiting a reply and without allowing the prescribed in the regulations for a reply to elapse.

8. The question thus arises whether the applications are admissible from the point of view of Article 91 (2) of the Staff Regulations, which requires that the procedure involving the submission of a complaint through official channels shall first have been completed.

9. In this respect it is the established case-law of the Court that a reference to the appointing authority of a complaint through official channels against the decision of a selection board for a competition lies outside the scope of the provisions of the Staff Regulations in view of the fact that the appointing authority has no power to annul or amend the decisions of a selection board.

10. If, nevertheless, the person concerned sends the appointing authority a complaint through official channels, such a step, whatever its legal significance may be, cannot have the consequence of depriving him of his right to apply directly to the Court in view of the fact that this is a right which he connot renounce and which is therefore not capable of being affected by his individual behaviour.

11. It follows that the applications are admissible.

12. The arguments put forward by the applicants in contesting the refusal of the selection board to admit them to the competition may be considered in substance as amounting to a first submission relating to certain irregularities in the selection board's procedure, a second submission relating to the inadequacy on the grounds stated for the refusal and a third submission relating to the discrimination which the applicants claim to have suffered as against other candidates who, like the applicants, possessed certificates of Advanced European Studies from the College of Europe in Bruges.

13. The applicants claim, first, that there has been an infringement of the second paragraph of Article 3 of Annex III to the Staff Regulations, inasmuch as the selection board had recourse to examiners to assess whether the candidates could be admitted to the competition, whilst the terms of that provision authorize the use of examiners only for certain tests.

14. However, the provision quoted, as the Court has already stated in its judgment of 26 October 1978 in Case 122/77, Claes (nee Agneessens) and Others v the Commission, cannot be understood as enumerating exhaustively the cases in which a selection board may legitimately have recourse to the assistance of examiners in an adviory capacity and, in particular, does not prevent a selction board from having recourse to such a procedure in cases in which the large number of candidates involved in a competition would otherwise prevent the selection board from completing its work within a reasonable period.

15. It is necessary, however, for the selection board to retain ultimate control over the procedures and its discretionary power.

16. In this case, the very large number of candidates — more than 4000 — fully justified recourse to examiners even at the initial stage of the work of the selection board.

17. On the other hand, as regards the part played by the examiners, the facts, in so far as it has been possible for the Court to establish them, make it appear that this part exceeded the limits of mere assistance in an advisory capacity, and that the selection board did not have effective control of the proceedings.

18. In fact, the selection board had not fixed in advance the criteria or directives for assessing the relationships between the university qualifications and the field selected by each candidate, or for determining the nature of the postgraduate experience required by the notice of competition, and the assessment by the examiners of individual cases was not checked by the selection board, as a collegiate body, except in those cases in which the examiners had doubts.

19. The complaint with regard to the part played in this case by the examiners therefore appears to be well founded.

20. The applicants further point out in contesting the legality of the proceedings of the selection board, that the re-examination of the cases in which complaints against the refusal of the selection board had been submitted was arbitrary.

21. In this respect it must be stated that such a re-examination is not provided for by the provisions controlling the work of a selection board for a competition.

22. Although in this case the selection board nevertheless undertook a further examination of certain cases, this was from a concern to correct errors which might have been brought to its attention and not with a view to carrying out a fresh assessment of the material in the files.

23. The fact that in the minutes of the selection board's meeting of 8 January 1978 two cases in particular were mentioned in which the original decision had been maintained does not mean that the selection board was in general unable to maintain its original refusal in all the cases which it re-examined, except for five in which it was possible to trace errors.

24. This phase of the selection board's proceedings cannot therefore be considered as vitiated by errors.

25. The applicants claim that the statement of the reasons on which the selection board's refusal to admit them to the tests was based was insufficient.

26. The standard letter in which the refusal of the selection board was communicated to the applicants contained, as the only statement of the reasons on which it was based, a mere reference to the condition which was not fulfilled.

27. Each of the two conditions laid down by the notice of competition, which related to certificates and diplomas on the one hand and practical experience on the other, was composed of several elements, so that a reference to the condition as a whole was not of such a nature as to indicate which of the factors had been found to be lacking.

28. Although the use of general formulae to define the conditions for admission to a competition may be accepted in circumstances such as those in the present case, in which the notice of competition is addressed to a group of individuals of differing origin and education, the counterpart is, as the Court stated in its judgment of 14 June 1972 in Case 44/71, Marcato v Commission ([1972] ECR 427), that the selection board for the competition is bound to give reasons for its decisions on this point.

29. Although it is permissible, having regard to the large number of candidates, to make use of summarized statements of reasons, a mere reference to the condition which was not fulfilled cannot however satisfy the requirement to state reasons in view particularly of the fact that such a reference is not capable of providing the person concerned with a sufficient indication to allow him to know whether the refusal is well founded or on the other hand whether it is vitiated by a defect which would make it possible to contest its legality.

30. It must therefore be concluded that in this case the statement of reasons on which the selection board's refusal was based was inadequate.

31. The discrimination alleged by the applicants consists in the fact that the certificate of Advanced European Studies of the College of Europe was not recognized in their case as providing, in the words of the notice of competition, at least one year's practical experience, obtained after graduation, relevant to the option chosen, whereas it was recognized in the case of certain other candidates.

32. In reply to that allegation, the Commission has established, first, that in each case a comparison was made of the option mentioned in the certificate of the College of Europe and the field chosen in the application form and, secondly, that in the case of the other candidates to which the applicants referred, other considerations were present in addition to the certificate of the College of Europe to provide evidence of the practical experience required.

33. In these circumstances, the submission relating to discrimination cannot be upheld.

34. Consideration of the first and second submissions shows that the refusal of the selection board to admit the applicants to the competition is vitiated by defects and must therefore be annulled.

35. As this was an open competition to constitute a reserve for future recruitment, the rights of the applicants will be sufficiently protected if the selection board reconsiders its decision, without its being necessary to question the whole of the results of the competition or to annul appointments made in consequence thereof.

36. Under Article 69 (2) of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs.

37. The defendant has failed in its submissions and must therefore pay the costs.

On those grounds THE COURT (Second Chamber) hereby:

1 Annuls the decisions notified to the persons concerned by letter of 5 December 1977, by which the selection board in Competition COM/A/154 refused to admit Enrico M. Salerno, Xavier Authié and Guiseppe Massangioli to the tests for the competition;

2 Orders the Commission to bear the whole of the costs.