Opinion of Mrs Advocate General Rozès
Mr President,
Members of the Court,
Mr Rudy Verzyck has brought before the Court an action against the Commission of the European Communities for the annulment of a decision of 28 May 1982 informing him of the refusal of the selection board for Open Competition No COM/A/325 to admit him to the written tests.
I — The facts are as follows:
The Commission published in Official Journal of the European Communities, No C 233 of 12 September 1981 Competition Notice No COM/A/325 for an open competition, based on qualifications and tests, to constitute a reserve of administrators in the career bracket covering grades 7 and 6 of category A.
The notice laid down conditions concerning age, certificates and diplomas and practical experience which candidates had to meet in order to be admitted to the tests. It fixed 31 October 1981 as the date by which applications had to be lodged; the period was extended to 30 November 1981, entailing publication of a further notice in Official Journal of the European Communities, No C 270 of 22 October 1981.
On 30 November 1981 Rudy Verzyck, a Belgian national of Dutch mothertongue who is an assistant financial controller in the Belgian Civil Service, submitted an application, choosing the Public finance, accounting and auditing option.
On 1 March 1982 he was informed by the head of the Recruitment Division, who himself was a member of the selection board, that the board had originally decided that he fulfilled the conditions laid down for admission to the competition; that it had then proceeded to examine the qualifications of the candidates admitted to the competition in the light of the duties to be carried out with a view to improving the present geographical spread of nationals of the various Member States on the Commission's staff; and that, unfortunately, as a result of that examination the decision had been taken not to invite him to take part in the tests.
On 5 March 1982 Rudy Verzyck expressed his surprise and bewilderment regarding the reasons which prompted the selection board to arrive at that negative decision. In view of the uncertainty of the position, he asked to be informed of the qualifications of the Belgian candidates admitted to the competition.
In reply the Head of the Personnel Department informed him on 26 March 1982 that the selection board would reexamine his qualifications with a view to his admission to the tests.
On 28 May 1982 he learned that the result of the reexamination was unfavourable; he was in fact notified that having compared the candidates' supporting documents the selection board had decided not to admit [him] to the written tests.
II — Rudy Verzyck requests the Court to annul that decision of 28 May 1982 and relies on three submissions in support of his application.
1. However, the question of the admissibility of the application must first be considered.
2. It is thus necessary to declare the application admissible and to examine the submissions relied upon: failure to state the reasons on which the decision was based, breach of the principle of equality and manifest errors of fact and of law.
If the Court shares my view it is important to examine the measures necessary for the implementation of its judgment which the Commission, by which the contested decision was adopted, is required to take pursuant to Article 176 of the EEC Treaty.
It is common ground that the annulment of a procedure involving several hundred candidates and intended to fill some 80 posts may give rise to serious problems.
Competition No COM/A/325 was intended to constitute a reserve for the recruitment of administrators, the validity of which will expire on 31 December 1983 and may be prolonged. In my opinion, in so far as the posts for which the reserve list was constituted have not been filled, the exclusion of the applicant from that list will not have affected the admission to that list of the persons selected by the selection board as fulfilling the conditions laid down in the notice of competition.
The applicant's rights will thus be sufficiently protected if the selection board reconsiders the question of his suitability for admission to the tests. If the applicant is admitted to the tests and is successful it will be possible to place him on the reserve list before the expiry of that period so that his rights will be safeguarded, without the choice already made by the selection board being affected or the results of the competition as a whole being called in question or the appointments made in consequence thereof being annulled.
Admittedly, if a new session were organized for the applicant there might be grounds for doubts as to the true unity and comparability of the competition. However that problem is an inevitable consequence of the annulment of the measure adversely affecting the applicant.
On the basis of all the foregoing considerations I am of the opinion that:
The decision of the Selection Board refusing to admit the applicant to the written tests in Competition No COM/A/325 should be annulled, and
The Commission should be ordered to pay the costs.
1 Translated from the French.
2 Judgment of 28 February 1980 in Case 89/79 [1980] ECR 553, paragraph 6.
3 Judgment of 4 December 1975 in Case 31/75 [1975] ECR 1563, paragraph 11.
4 Costacurta judgment, cited above, paragraph 12.
5 Judgment of 4 December 1975 in Case 31/75 [1975] ECR 1563, paragraph 11.
6 Bonn, cited above, paragraph 5.
7 Bonn, cited above, paragraph 5.
8 Costacitrta, cited above, paragraph 16.
9 Costacurta, cited above, paragraph 17.
10 Judgment of 30 November 1978, Salerno, Joined Cases 4, 19 and 28/78 [1978] ECR 2403, paragraph 35; Judgment of 28 June 1979, Anselme, Case 255/78 [1979] ECR 2323, paragraph 15; Judgment of 13 May 1982, Akimo, Case 16/81 [1982] ECR 1559, paragraph 15.