JUDGMENT OF 28. 2. 1980 — CASE 89/79 BONU v COUNCIL

In Case 89/79

THE COURT (Second Chamber) composed of: A. Touffait, President of Chamber, P. Pescatore and O. Due, Judges, Advocate General: G. Reischl Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts and Issues

I — Facts and written procedure

II — Written procedure

III — Conclusions of the parties

IV — Submissions and arguments of the parties in the course of the written procedure

A — Admissibility

B — Substance

V — Oral procedure

Decision

Costs

I —. Facts and written procedure

(a). university-level education, attested by a diploma or certificate showing that studies have been completed, or equivalent professional experience as a translator. Candidates must supply appropriate documents to prove that they fulfil this condition of eligibility for the competition (copies of diplomas or certificates or, failing this , documents giving proof of equivalent professional experience);

(b). Italian mother tongue or a perfect command of that language, a thorough knowledge of French and adequate knowledge of one or more of the following languages: Danish, Dutch, English or German. Danish or Dutch would be especially welcome. Candidates, must also supply appropriate documents to prove that they fulfil this condition of eligibility for the competition (diplomas, certificates, any employers' references, etc.);

(c). date of birth after 31 December 1937. The age limit does not apply to officials and other staff who have been employed in the institutions of the European Communities for at least one year on the final date for submission of applications. However, in order to benefit from this exemption, candidates must submit a certificate from their institution specifying their administrative status, (established, temporary, etc.) and the date on which they took up their appointment;

(d). fulfilment of the general conditions set out in Section I (1), (2) and (3) of the notice preceding this notification.

II —. Written procedure

III —. Conclusions of the parties

(a). Declare that the application is admissible and well founded;

(b). Annul the decision notified to him on 5 March 1979 whereby the Selection Board for competition Council/LA/170 refused to admit the applicant to the competition;

(c). Order the defendant to pay the costs.

(a). Dismiss the applicant's claims as unfounded;

(b). Order the applicant to pay the costs to the extent to which they are not borne by the defendant pursuant to Articles 70 and 95 (2) of the Rules of Procedure.

IV —. Submissions and arguments of the parties in the course of the written procedure

A —. Admissibility

B —. Substance

1. The decision not to admit the applicant to the tests in the competition

2. Notice of provision relating to the organization of open competitions

V —. Oral procedure

1. The applicant, an Italian national residing at Cagliari, Sardinia, by an application of 5 June 1979 has asked the Court, pursuant to Article 91 of the Staff Regulations of Officials of the European Communities, to annul the decision whereby the Selection Board for Open Competition Council/LA/170 (Italian-speaking translators), for which the applicant had sent in an application form, refused to admit him to the tests in this competition.

2. It is clear from the file that the applicant submitted his application on 7 November 1978 in the proper manner to enter the abovementioned open competition which is the subject of the notice and notification published in the Official Journal of 29 September 1978 (C 231, pp. 2 and 6 respectively). The Council acknowledged receipt of his application form by a letter of 22 November 1978. The administration department of the Council informed the applicant that he had not been admitted to the tests in the following terms :

3. The applicant considers that this decision is void for infringement of an essential procedural requirement because there is no statement of the reasons upon which it was based. He also considers that the paragraph of the notice of the Council to which reference is made in the Council's letter and which reads as follows:

4. The Council states that the competition in this case was a competition on the basis of both tests and qualifications with three successive stages of selection. As far as concerns the first stage of this competition, consisting of the examination of candidates' qualifications, the applicant was admitted to the competition. It was only during the second stage of the procedure, the purpose of which was to draw up a list of candidates admitted to the tests, that the applicant's application was rejected. The Council maintains that this stage of the Selection Board's proceedings are covered by the obligation of secrecy as the Court has consistently held in its case-law since its judgment of 14 June 1972 in Case 44/71 Antonio Marcato v Commission of the European Communities [1972] ECR 427. Since the outcome of the first stage of the competition was favourable to the applicant and the second stage, which culminated in his rejection, is covered by the secrecy attaching to the Selection Board's proceedings, the Council is of the opinion that it did not have to state the reasons for its decision.

5. This defence of the Council cannot be accepted. It is based on a wrong interpretation of the implications of the secrecy of the proceedings of Selection Boards for competitions. This secrecy was introduced by Article 6 of Annex III to the Staff Regulations of Officials with a view to guaranteeing the independence of Selection Boards and the objectivity of their proceedings, by protecting them from all external interference and pressures whether these come from the Community administration itself or the candidates concerned or third parties. Consequently observance of this secrecy runs counter to divulging the attitudes adopted by individual members of Selection Boards and also to revealing all the factors relating to individual or comparative assessments of candidates. However the scope of this secrecy cannot be widened to such an extent as to refuse disclosures of objective facts and in particular of the criteria for assessment upon which selection has been based at the stage of the preliminary proceedings of the competition, which enables those whose applications have been rejected even before any individual test to ascertain the possible reasons for their elimination.

6. It should be added that the requirement to give a statement of the reasons for decisions must be evaluated having regard to the different levels and types of competition and, more particularly, to the number of candidates competing in each of them. In the case of competitions such as the present, where the candidates are more numerous, the statement of the reasons for the rejection of applications must not be so voluminous as to place an intolerable burden on the business of the Selection Boards and the work of personnel administration.

7. Even on the basis of these minimum requirements the letter sent to the applicant by the administration department of the Council must be regarded as inadequate. In the first place it does not enable an uninformed reader to grasp that it covers both the admission of the candidate at the first stage of the competition and his elimination at the second stage. In the second place the most elementary statement of the reasons for the decision is missing. The fact that in the information published in the Official Journal the Council warned candidates in advance that they would not be informed of the reasons for not admitting them to the tests, is no justification seeing that by this very warning the Council has gone far beyond the limits of the secrecy attaching to proceedings of Selection Boards.

8. The result of the foregoing is that the contested decision must be annulled for infringement of essential procedural requirements since there is no statement of the reasons for it.

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

10. As the defendant has failed in its submissions it must be ordered to pay the costs.

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

1 Annuls the decision by which the Selection Board for Open Competition Council/LA/170 (Italian-speaking translators) refused to admit the applicant to the tests.

2 Orders the Council to pay the costs.