Report for the Hearing delivered in Joined Cases 64, 71 to 73 and 78/86

I — Facts and procedure

1. Giovanni Sergio, an Italian national, entered the service of the Commission in 1967 and was established in 1971 in Grade C 4. Since 1982 he has held a post in Grade B 2 and works at the Official Publications Office of the European Communities. In 1978 he obtained a doctorate in political science in Italy.

2. Josefa Knaepen, a Belgian national, who since 1957 has held an ‘agrégation’ (secondary school and university teaching qualification) in philosophy and literature, entered the service of the Commission in 1964 and was established in 1968 in Grade B 1. Since 1982, she has been employed in the Documentation Department of the Directorate-General for Information.

3. Maurizio Zampetti, an Italian national, entered the service of the Commission in 1962 and was established in 1964 in Grade B 4. Since 1971 he has been employed on matters of water protection, in the Protection and Management of Water Division of the Directorate-General for Environment, Consumer Protection and Nuclear Safety. He has been classified in Grade B 1 since 1976 and, since 1983, has, with the Commission's authorization, held the office of Vice-President of the European Institute of Water.,

4. Maria-Luisa Mascarello D'Erme, an Italian national, who holds a translating and interpreting certificate from the Scuola di Studi Superiori, Rome, has been an official of the Commission since 1969. She was initially classified in Grade B 3, and since 1977 has held a post in Grade B 2; she works in the Secretariat-General of the Commission, in the General Report and Other Periodic Reports Division, where she is a member of the editorial team working on the Bulletin and the General Report.

5. Mario Costacurta, an Italian national, entered the service of the Commission in 1966 and was established in 1968 in Grade C 3. He was assigned to the Official Publications Office of the European Communities in 1971 and since 1983 has been classified in Grade B 1 ; he is responsible for the ‘Documents’ section in the Office.

6. The applicants submitted applications for and were admitted to Internal Competition COM/A/8/84 based on qualifications and tests, organized in 1984 by the Commission to constitute a reserve of administrators (Grades 7 and 6 of Category A), which was open to candidates who had been in Grades B 1, B 2 or B 3 since 1980. The competition included two stages, a preliminary selection stage and a training stage; only candidates who completed the training were to be admitted to the oral test. In the preliminary selection stage it was the responsibility of the Selection Board, by reference to: On 21 June 1985, the applicants took part in the written test referred to in the competition notice.

‘the candidate's personal file (in particular general and specialized training and previous practical experience), application form and special annex, and

the result of a paper designed to test general knowledge and judgment (the test will take the form of a summary of a case study, lasting not more than two hours),

followed if necessary by an interview with a representative of the candidate's Directorate-General and the candidate,

[to] select those considered best qualified to proceed to the next stage of the competition. Selection will be based on overall factors, none of the elements mentioned above being eliminatory in themselves’.

7. By identical letters of 12 December 1985, the Head of the Recruitment Division informed the applicants that the Selection Board had considered itself unable to include them among the candidates considered most suitable to proceed to the training stage of the competition. In a letter of 14 February 1986 addressed to all the candidates not selected for the training stage after the Selection Board had decided that it should not merely reply to individual requests for clarification but rather should give all the unsuccessful candidates certain information regarding the criteria adopted by the Selection Board, the Head of the Recruitment Division stated:

‘The Selection Board:

carried out a detailed study of your personal file (considering in particular your general and specialized training and the quality of your previous experience), your application form and the special annex thereto, and then made an overall assessment;

awarded marks for your written paper after it had been marked independently by two markers without your identity being disclosed.

The Selection Board was thus able to arrive at two assessments for each candidate, neither of which was in itself eliminatory. Taken together, the two assessments enabled the Selection Board to form an overall view, on a comparative basis, of each candidate's suitability for the next stage of the competition.

In no case did the Selection Board consider it appropriate to interview a representative of the candidate's Directorate-General or the candidate himself; in any case, such interviews were, according to the competition notice itself, optional.’

8. On 18 December 1985, Mr Costacurta lodged a complaint under Article 90 (2) of the Staff Regulations against the decision not to admit him to the training stage of the competition. Mr Sergio did the same on 28 February 1986. On 13 December 1985, Mr Zampetti asked the Head of the Recruitment Division to inform him of the criteria adopted for the assessment of his application. Similar requests were made on 19 December 1985 and 13 February 1986 by Mrs Mascarello D'Erme and Mrs Knaepen respectively.

9. By an application lodged at the Court Registry on 6 March 1986, Mr Sergio commenced proceedings in Case 64/86. By a separate document, lodged at the Registry on the same date, pursuant to Article 91 (4) of the Staff Regulations, Mr Sergio applied for the adoption of an interim order suspending the operation of the decision of 12 December 1985 not to admit him to the subsequent stage of the competition. By order of 14 March 1986, the President of the Second Chamber dismissed the application for that interim measure. By applications lodged at the Court Registry on 12 March 1986, Mrs Knaepen, Mr Zampetti and Mrs Mascarello D'Erme commenced proceedings in Cases 71/86, 72/86 and 73/86. By an application lodged at the Court Registry on 13 March 1986, Mr Costacurta commenced proceedings in Case 78/86. By a separate document lodged at the Court Registry on the same day, pursuant to Article 91 (4) of the Staff Regulations, Mr Costacurta applied for the adoption of an interim order suspending the operation of the decision of 12 December 1985 not to admit him to the training stage of the competition. By order of 20 March 1986, the President of the Second Chamber dismissed the application for that interim measure. By an order of 15 May 1986, the Court (Second Chamber), after hearing the views of the Advocate General, decided pursuant to Article 43 of the Rules of Procedure to join Cases 64/86, 71/86, 72/86, 73/86 and 78/86 for the purposes of the procedure and the judgment.

10. Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court (Second Chamber) decided to open the oral procedure without any preparatory inquiry.

II — Conclusions of the parties

1. Mr Sergio (Case 64/86) claims that the Court should: Declare the application admissible and well founded and, accordingly: Annul the decision of 12 December 1985 not to admit him to the training stage of Competition COM/A/8/84 and, therefore, annul the preliminary selection stage of that competition; Admit the applicant to the training courses; Order the Commission to pay the costs. Mrs Knaepen, Mr Zampetti and Mrs Mascarello D'Erme (Cases 71, 72 and 73/86) claim that the Court should: Declare the application admissible and well founded and, accordingly: Annul the decision of the Selection Board in Competition COM/A/8/84 not to admit the applicants to the training stage of that competition; Annul, as far as is necessary, the Selection Board's choice of candidates for admission to the aforesaid stage of the competition, together with all the measures and procedures adopted as a result, including the appointments made on the basis of the competition results; Order the Commission to pay the costs. Mr Costacurta (Case 78/86) claims that the Court should: Declare the application admissible and well founded; State that the Selection Board for Competition COM/A/8/84, or the Commission, infringed Article 25 of the Staff Regulations, Article 1 (1) (e) and Article 5 of Annex HI to the Staff Regulations and, consequently, annul the said competition, or else annul the decision not to admit the applicant to the training stage, and the preliminary section stage of that competition; Admit the applicant to the training courses; Order the Commission to pay the costs.

2. The Commission claims that the Court should: Dismiss the applications as partially inadmissible and partially unfounded; Make an order as to costs in accordance with the relevant provisions.

III — Submissions and arguments of the parties

Admissibility

The Commission contends that the applicants' submissions concerning irregularities in the competition notice COM/A/8/84 are inadmissible. The Commission considers that those submissions are out of time. Since the competition notice is a measure which can be contested separately, the applicants should have claimed that it was invalid within the three months following its publication on 18 June 1984. By virtue of the principles of legal certainty, protection of legitimate expectations and good administration, and according to the previous decisions of the Court, submissions as to the invalidity of a competition notice about which a complaint was not lodged in due time are inadmissible (see the judgment of 11 March 1986 in Case 294/84 Adams and Others v Commission [1986] ECR 977).

The applicants claim that, although the validity of a measure must be contested in good time, it is nevertheless necessary for the measure to be classifiable as one which adversely affects the persons concerned. At the time of publication of the competition notice, its irregularity, in particular the failure to mention the marking of the written paper, did not adversely affect them. The defective nature of the notice did not adversely affect the applicants until the Selection Board had adopted its decision not to select them. Moreover, the defect could have been rectified by the Selection Board itself. Thus, in its judgment of 22 March 1972 in Case 78/71 (Costacurta [1972] ECR 163), the Court annulled a competition for which the competition notice had been published in March 1970 on the ground that the competition notice was in breach of Article 1 (1) of Annex III to the Staff Regulations although the complaint was not lodged until March 1971.

The substance

The applicants' arguments centre on three main submissions: lack of a statement of reasons, in so far as the decisions of the Selection Board did not state the reasons on which they were based in respect of individual candidates; illegality, in so far as the competition notice was in breach of the Staff Regulations and the competition was conducted contrary to the terms of the competition notice and the Staff Regulations; and, finally, manifest error, in so far as the contested decisions cannot be justified on any legally acceptable grounds.

First submission

The applicants claim, with regard to the statement of reasons, that the requirements of Article 25 (2) of the Staff Regulations and of Article 5 of Annex III thereto have not been satisfied. The letter of 12 December 1985 does not state any reasons and the explanatory letter of 14 February 1986 addressed to all the unsuccessful candidates confines itself to generalities and does not state any reasons relating to individual cases. The very fact that that explanatory letter is a standard letter means, by definition, that the explanations for the decision do not relate \to individual cases. However, according to previous decisions of the Court, the Selection Board, which initially disclosed only the criteria for and the results of the selection, is, at the very least, required subsequently to provide information relating to individual candidates who expressly ask for it (see the judgment of 9 June 1983 in Case 225/82 Verzyck, [1983] ECR 1991).

Mr Sergio claims that, in so far as he was admitted to a previous Category A competition, COM/A/15/73, a decision not to admit him to a similar competition must, by virtue of previous decisions of the Court, state the reasons upon which it is based so as to justify clearly the difference of assessment (see the judgment of 5 April 1979. in Case 112/78 Kobor [1979] ECR 1573). His claim in that regard is further strengthened by the fact that since his admission to the previous competition he has obtained a university degree.

The applicants contest the Commission's argument that the nature of the criteria for the preliminary selection precluded a more detailed statement of individual reasons. Those criteria are laid down in the competition notice; they are a candidate's personal file (general and specialized training, and previous practical experience) and the written paper, and there is no incompatibility whatsoever between them and statements of reasons relating to individual cases. On the contrary, those criteria call for individual statements of reasons, since the marks obtained by a candidate for the written paper will not be the same as those of another candidate, and so on. Nor can it be said that the form that the statement of reasons should take was the same for all the unsuccessful candidates. According to case-law, the fact that there were a large number of candidates might justify a summary statement of reasons, but not, as in the present case, a total lack of any individual statement of reasons (see the judgment of 30 November 1978 in Joined Cases 4, 19 and 28/78 Salerno [1978] ECR 2403).

Finally, in connection with this submission, Mr Costacurta also complains of a misuse of powers. The Selection Board admitted a colleague, identified by name, to the following stage although it is well known that he does not satisfy the requirements relating to knowledge of languages which are laid down by Article 28 (f) of the Staff Regulations and which were included in the competition notice, namely thorough knowledge of one Community language and satisfactory knowledge of another Community language. The colleague in question, who is of Italian origin but was brought up in Luxembourg, can speak Italian but cannot write it and is not wholly proficient in French.

The Commission claims that it was impossible for the Selection Board to give more detailed reasons for those decisions than those set out in the explanatory letter of 14 February 1986. The criteria adopted for the preliminary selection formed the basis, as stated in the competition notice, for an overall assessment. Consideration of the individual files thus led to the award of a total mark resulting from an overall assessment and not from the addition of a number of different marks (such as, for example, a separate mark for a university degree). Since an overall assessment was made, the individual criteria, taken in isolation and out of context, were meaningless. It was for that reason that the criteria were not disclosed to the candidates.

The fact that the statement of reasons given to all of the unsuccessful candidates was the same does not mean that they were not individual statements of reasons, but merely that the facts underlying the statement of reasons were similar for all the candidates in question. Moreover, the extent of the statement of reasons was justified by the number of candidates involved.

As regards the argument put forward by Mr Sergio regarding his admission to a previous competition, the Commission observes that the decision of the Court cited by him presupposes that the conditions of admission were the same for the two competitions. However, admission to Competition COM/A/15/73 called for certain previous experience relevant to the duties inherent in the post to be filled through that competition, which, in the event, related to printing and publishing, an area in which that applicant had considerable experience.

As regards Mr Costacurta's complaint of misuse of power, the Commission points out that the candidate referred to stated that French was his ‘principal language’ and took the written paper and passed the oral test in that language. For admission to competitions, knowledge of languages is usually considered only on the basis of documents (in this case, the statements of the candidates) and the candidates' knowledge is verified during the written and oral tests. In the case of an internal competition, it is moreover appropriate to assume that all the candidates, being officials, already fulfil the conditions laid down in that respect by the Staff Regulations.

Second submission

The applicants claim that, by not mentioning the marks awarded for the written test, the competition notice is in breach of Article 1 (1) of Annex III to the Staff Regulations and that the written test itself was not in conformity with the competition notice. Mr Sergio also claims that the choice made by the Selection Board is lacking in transparency and that the composition of the Selection Board was unlawful.

The applicants consider that the failure to mention the marks awarded for the written paper, which is compulsory under Annex III to the Staff Regulations, is regarded by the Court as a serious defect which must be penalized (see the judgment of 14 July 1983 in Case 144/82, Detti [1983] ECR 2421). The purpose of that requirement is to ensure that the Selection Board's assessment of the test is based on objective criteria which are known to the candidates. It cannot be claimed that the written paper in the competition at issue was in all respects a test of the traditional type. Mr Sergio also claims that the competition notice was in breach of Article 1 (1) (d) of Annex III to the Staff Regulations, in so far as it did not mention the diplomas or level of experience required.

As regards the nature of the written paper which the applicants were required to sit, the subjects set did not, in the applicants' view, test the general knowledge and judgment of the candidates, as provided, for in the competition notice. The subjects set called for specialized and technical knowledge and thus placed candidates who were familiar with those subjects by reason of their duties at an advantage. Nor were the questions accompanied by what can properly be called a file and therefore the preparation of a summary of a case study, as provided for by the competition notice, calling for general knowledge and judgment on the part of the candidates, was not possible. Thus, for example, Mr Zampetti had to deal with the following subject: ‘Feder: —Synthèse du processus de décision concernant le financement des programmes; —préciser les différences entre programmes communautaires et nationaux; —programmes régionaux globaux au lieu de programmes d'intérêt spécifique: pourquoi?’. What he received, purporting to be a file, was a copy of Articles 5 to 12 of Council Regulation No 1787/84 on the European Regional Development Fund.

As regards the lack of transparency of the selection, Mr Sergio is of the opinion that the overall method used by the Selection Board was not conducive to the transparency prescribed in that connection by Articles 27 and 28 of the Staff Regulations and Article 5 of Annex III thereto. Apart from the written paper, the matters on which the Selection Board was to base its assessment were of a subjective nature and, therefore, were likely to give rise to errors or inaccuracies. In the circumstances, the Selection Board should have interviewed a representative from the candidate's Directorate General or at least the candidate himself. Interviews of that kind were optional according to the competition notice, but should have been compulsory. The Selection Board was in a position to remedy that defect by holding interviews, and should have done so. The fact that it did not do so constitutes a serious breach of procedural requirements. Such interviews would have made it possible inter alia to verify the statements made by the candidates, in particular regarding their knowledge of languages. According to Article 28 (f) of the Staff Regulations, knowledge of languages, for the purpose of a Category A competition, should be assessed on the basis of the level required in that category and not of the level for Category B, in which the candidates were classified.. The written test did not provide an adequate means of testing knowledge of languages, since it was not included in the competition for that purpose and was not eliminatory.

As regards the composition of the Selection Board, Mr Sergio considers that it was in breach of the provisions of Article 3 (3) of Annex III to the Staff Regulations, since the chairman was not an official. The chairman had ceased to be an official in October 1984.

The Commission states, with regard to the lack of any reference in the competition notice to the marks to be awarded for the written paper, that this was intentional. The competition included a ‘paper’ and not a ‘written test’; that expression had been deliberately chosen to distinguish it from an examination or test. The paper was more in the nature of a ‘qualification’, for which reason it was normal not to lay down provisions concerning marking, and it was on that basis that the Selection Board assessed the written paper.

As regards the nature of the subjects set for the written paper, the Commission states that, in view of the differing backgrounds of the candidates, the Selection Board was confronted by the choice of either setting a single subject of a general nature, which entailed the risk of placing certain candidates of university level at an advantage, or of trying to cover a wide range of Community activities. The Selection Board opted for the latter solution, choosing three broad areas and four subjects per area, making 12 subjects in all. The Selection Board then had the candidates draw lots, in order to give them two subjects in each area. The candidates were thus able to choose from among six subjects covering all the Commission's activities. As regards the case studies, it is true that certain subjects called for more voluminous files than others, but that was due to the nature of the subjects.

As regards the lack of transparency in the selection made, the Commission claims that this complaint is imprecise and is not supported by any specific evidence. As regards the interviews, the Selection Board complied with the competition notice, according to which they were optional. The Commission considers that it was not necessary at that stage of the selection process to check the statements made by candidates, in particular regarding their knowledge of languages, and that such knowledge should be assessed not with respect to a particular category but in relation to the communication requirements of the Community administration.

As regards the composition of the Selection Board, the Commission considers the complaint to be groundless. It is quite clear from previous decisions (see the judgment of 16 October 1975 in Case 90/74 Deboeck [1975] ECR 1123) that the requirement laid down in Article 3 (3) of Annex III to the Staff Regulations, according to which the members of the Selection Board chosen from amongst officials must be of a grade at least equal to that of the post to be filled, cannot be interpreted as meaning that the members of the board must necessarily be officials.

Third submission

The applicants claim that their exclusion from the training stage of the competition is based on a manifest error of assessment on the part of the Selection Board. Having regard to the contents of their personal files, there could be no legally acceptable reasons for the Selection Board's decision.

Mr Sergio had been educated to university level, as was evidenced by a degree. According to his periodic reports, which moreover are excellent, his duties are of a level higher than that required for his grade.

Mrs Knaepen had also been educated to university level, as evidenced by an ‘agrégation’. According to her periodic reports, which speak highly of her, her duties corresponded to Category A, in particular since the applicant participates in the proceedings of various committees and working parties for her Directorate-General.

Mr Zampetti has also been carrying out duties corresponding to Category A for nearly 15 years and is responsible for a Community programme on the protection of the environment in the Mediterranean basin, having three persons subordinate to him, one of whom is a university graduate.

Mrs Mascarello D'Erme holds a higher education certificate and discharges duties corresponding to Category A. She is part of a team all of whose members, except her, are Category A officials.

Mr Costacurta is responsible for a section in the Publications Office.

Finally, the applicants of Italian nationality claim that the selection made by the Selection Board can be accounted for only by discrimination based on nationality. Of the 87 candidates admitted to the training courses, there are only nine Italians, and of the 38 appearing on the list of suitable candidates, there are only three Italians, as compared with 19 candidates of French nationality admitted to the training courses and 11 United Kingdom candidates on the list of suitable candidates.

The Commission states that the Selection Board made a comparative assessment of the personal files and the results of the written paper and that no unfavourable inferences can be drawn from the fact that it did not select a candidate for the training stage; it merely indicates that the files and qualifications of the candidates selected were considered to be better. In view of the number of candidates, the selection had to be rigorous. Without concrete evidence to support such an allegation, there can be no question of a manifest error on the part of the Selection Board.

As regards the complaint of discrimination based upon nationality, the Commission considers that complaint to be groundless, in so far as it is based on purely abstract reasoning.

O. Due

Judge-Rapporteur

1 Language of the Case: French.