Report for the Hearing delivered in Case 149/86

I — Facts and procedure

1. The applicant, Giovanni Santarelli, who became a Commission official in Category B in 1958, has since 1965 held a B 2 post. In 1962 he obtained a degree (Laurea in giurisprudenza) awarded by the University of Milan. Between 1962 and 1976 he successfully participated in several internal Category A competitions.

2. In 1984, the Commission gave notice of Internal Reserve Competition COM/A/8/84 based on qualifications and tests, with a view to enabling officials in Grades B 1, B 2 and B 3 to move into Category A. According to the notice of competition, the suitability of the candidates was to be assessed in two stages. The Selection Board would first make a selection of candidates on the basis of consideration of ‘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... none of the elements mentioned above being eliminatory in themselves’. The number of candidates thus selected was not to exceed by more than 50% the number of posts to be filled. Those candidates were then to undertake training and undergo an oral test.

3. 283 candidates, including the applicant, were admitted to the competition. The written test was held on 21 June 1985. On 5 December 1985, the Selection Board was informed that the maximum number of posts to be filled by candidates from the competition was estimated as 48. Considering themselves bound by the fifth paragraph of Article 5 of Annex 3 to the Staff Regulations, according to which the list of suitable candidates must wherever possible contain at least twice as many names as the number of posts to be filled, the Selection Board disregarded the provision in the competition notice regarding the maximum number of candidates who could be selected, and allowed 87 candidates to proceed to the second stage of the competition. It is also apparent from the minutes of the meetings of the Selection Board that ‘the Selection Board agrees that the results of the written test will carry more weight than the results of consideration of the personal file for the purpose of admission to the following stage’ and that ‘the Selection Board has decided to ensure strict secrecy as to the identity of the candidates until the end of the general assessment phase, by which time the candidates to be admitted to training will have been selected’. As regards the award of marks in respect of qualifications, the Selection Board decided to assess the candidates' files according to four criteria: (1) General and specialized training; (2) Practical experience before 31 July 1974; (3) Duties performed between 1974 and 1984 inclusive; (4) General assessment; with a view to arriving at an overall assessment. It is apparent from the decision taken in that connection by the Selection Board that, with respect to general training, the possession of a secondary educational qualification was part of the ‘average profile’ of the candidates (regarded as reflecting the characteristics of a ‘good’ file), whereas the possession of a university degree was ‘evidence of an upward variation from the average profile’. For the general assessment, the same distinction was drawn between candidates ‘whose quality of work may be regarded as constant’ and those in respect of whom a ‘particularly favourable assessment was contained in the staff reports’ or indeed ‘a constant improvement in the opinions of the persons concerned expressed by their superiors’. It was decided that the Chairman should ‘read all the documents and information relevant to a general assessment without in any circumstances mentioning the names of the candidates in question’ and the Selection Board specified five classifications for files: excellent, very good, good, fair and poor. After examining the written paper, which had been marked twice, the Selection Board decided upon three classifications (‘good’ for a paper receiving 36 to 48 marks, ‘average’ between 20 and 35 and ‘unsatisfactory’ between 2 and 20). The 87 candidates finally chosen were classified as follows: (a) 60 candidates in the top classification, both for the written paper and for the personal file (good paper/excellent file); (b) 11 candidates who obtained between 31 and 35 marks for the written paper and ‘very good’ for the file; (c) 11 candidates who obtained between 33 and 35 marks for the written paper and ‘good’ for the file; (d) 2 candidates who obtained 35 and 34 for the written paper and ‘fair’ for the file; (e) 3 candidates who were awarded 30 marks for the written paper and ‘very good’ for the file.

4. By letter of 12 December 1985, the Head of the Recruitment Division wrote to the applicant as follows:

‘The Selection Board ... has just concluded its proceedings for the stage of the competition involving the examination of the personal files, application forms and special annexes thereto, and also appraisal of the written test.

On that basis, the Selection Board has made a general assessment of each candidate and, after considering their comparative merits, has selected those candidates which it considers most suitable to move on to the next stage of the procedure.

... the Selection Board considered that it was unable to include you among those candidates ... ’.

5. By memorandum of 7 February 1986, the applicant submitted a complaint to the appointing authority under Article 90 (2) of the Staff Regulations seeking the annulment or amendment of the Selection Board's assessment on the basis of a fairer and more objective consideration of his personal file. He claimed that when considering his file the Selection Board had taken no account of certain basic factors, namely his length of service and experience, the fact that he held the degree of doctor of law and had been successful in several Category A competitions, most recently in 1976. He added that every Selection Board must, when making its assessment, do so by awarding marks, and giving details thereof based on objective factors, so that the candidate is in a position to defend himself against any abuse or discrimination. The applicant also alleges that the Selection Board considered the personal files only superficially and frustrated the legitimate expectations safeguarded by the fourth and fifth paragraphs of Article 24 of the Staff Regulations, adding that he had been engaged on work not consonant with his capabilities for many years in Category B and that his career advancement had been blocked since 1965.

6. By letter of 14 February 1986, the Head of the Recruitment Division, G. Junior, gave information to all the unsuccessful candidates regarding the criteria adopted by the Selection Board in the discharge of its duties. In that letter, he states inter alia that:

‘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 a general assessment;

awarded marks for your written test after twofold review thereof, each review being carried out independently, without your identity being disclosed.

The Selection Board thus made two assessments of 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.’

7. In the absence of any response to his complaint of 7 February 1986, Mr Santarelli brought the present action, which was received at the Court Registry on 24 June 1986.

8. 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. The applicant claims that the Court should: declare the action admissible and well founded; annul the contested measure.

2. The Commission contends that the Court should: dismiss the action as unfounded; make an appropriate order as to costs.

III — Submissions and arguments of the parties

The applicant makes the following three submissions:

i) Abuse or misuse of power, inasmuch as the applicant fears that the reasons for the decision were irrelevant and unconnected with the circumstances of the competition;

ii) Discrimination and infringement of the principle of equality ‘since, on several occasions already, the applicant has found himself in administrative situations from which it is apparent that, for reasons other than objective requirements of the internal organization and the interests of the Community, decisions regarding him have been taken which are subjective and do not indicate the reasons on which they are based and which, needless to say, impede the proper fulfilment of his tasks as an official’;

iii) Infringement of Article 24 of the Staff Regulations ‘inasmuch as the contested measure provides specific evidence of the fact that the Commission has not facilitated further training for the official concerned even though on numerous occasions that official had in the past established, by passing internal competitions, that such further training was not only compatible with but also conducive to the proper performance of the duties performed by the applicant for the European Communities’.

(i) The first submission

1. The applicant states that, according to the notice of competition, the Selection Board, taking account of the candidates' personal files and the results of the written test — neither of those factors being eliminatory in itself — was to select a number of candidates to go on to the next stage of the competition. However, the Selection Board exceeded its powers by changing the rules laid down in that notice, in so far as it attached preponderant weight to the written test with the result that, in the event, the written test became eliminatory. By attempting to amend the rule laid down in the notice of competition to the effect that the number of candidates admitted to the later stage of the competition was not to exceed by more than 50% the number of posts to be filled, the Selection Board also exceeded its powers. That rule is contrary to the fifth paragraph of Article 5 of Annex III to the Staff Regulations and the Selection Board could not conceal its illegality by amending it after the award of marks. At that stage, the consequences of the unlawful numerical limitation were particularly damaging to borderline candidates, who might have been eliminated as a result of the Selection Board's applying corrective factors in order to comply with that limitation which reduces by half the margin laid down by the Staff Regulations. From the Commission's defence, the applicant infers, in the first place, that the staff reports should not have been considered by the Selection Board, and, in the second place, that, nevertheless, there had been reference to his staff reports, which had been described by the Commission as mediocre ‘for many years’. The applicant concludes from this that assessments unconnected with the competition were used to exclude him from the subsequent stages of the selection procedure. The applicant states that, in any case, the generalities communicated to him by the Commission do not enable him — or the Court — to consider whether, in the application of the method described by the Commission in respect of the applicant, any material error or a manifest error of interpretation or any other factor liable to vitiate the procedure was involved. The applicant points out in particular that the mere fact of reading his personal file discloses his length of service and the number of competitions for transfer to Category A in which he has been successful, and this constitutes a de facto breach of the requirement of anonymity.

2. The Commission claims that the Selection Board considered the applicant's personal file in detail. It took due account, in accordance with the conditions of the competition, of the general and specialized training of the candidates and therefore of the applicant's university training, his relevant experience before 1974, the level of the duties performed by him from 1974 to 1984 and the quality of his work as recorded in his staff reports. The Commission states that the assessments both of the candidates' files and of their written tests were expressed in marks, which were not added together but were recorded in a two-column table — so that it was possible to comply with the requirement in the notice of competition that the assessment of each candidate was to be ‘based on overall factors, none of the elements mentioned above being eliminatory in themselves’. The Commission adds that the Selection Board's assessment of the written test was wholly objective and impartial. The Selection Board made certain that the identity of the candidates remained secret until completion of the overall evaluation phase culminating in the selection of the candidates to be admitted to training. The Commission considers it highly unlikely that the members of the Selection Board would have been able to recognize the applicant's file when it was read without disclosure of his identity, having regard in particular to the number of applications to be considered. Moreover, the written tests, which were marked on a scale from 0 to 60 marks, were corrected twice, independently and without disclosure of the candidates' identity. 60 candidates were selected because they achieved the highest classification, either by reason of their written tests or by reason of their personal files. The Selection Board took due account of the applicant's university qualification, but a positive factor of that kind is only one of several disclosed by the candidates' files, and was largely neutralized by his staff reports which had been mediocre for many years. Moreover, the applicant's performance in the written test was only average, according to the marks awarded by the Selection Board. The Commission considers that the Selection Board wisely decided to give precedence to the provisions of the fifth paragraph of Article 5 of Annex III to the Staff Regulations, disregarding the provision in the notice of competition limiting the number of candidates at a stage prior to the compilation of the final list, thus choosing 87 candidates for the subsequent training stage. Furthermore, the persons who marked the written papers were not influenced by the restrictive provision in the notice of competiton because each of them corrected the number of copies allocated to him and did not know the results arrived at by the others. It was only when all the tests had been corrected that it was possible to determine how many people had failed and how many had passed. The Commission denies that assessments unconnected with the candidate's file led to his being eliminated from the subsequent tests, since the Selection Board considered all the documents contained in the candidates' personal files. The Commission is of the opinion that the Selection Board did not exceed the limits of the wide discretion vested in it for the assessment of the merits of candidates in a competition. It concludes that the Selection Board's decision not to admit the applicant to the subsequent stage of the procedure is wholly justified.

(ii) The second submission

1. The applicant states that, since his recruitment by the Commission in 1958, he has passed several competitions for promotion to Category A. He is the only one — in circumstances where, moreover, all other things have been equal — who has not been offered a post in Grade A to give effect to the favourable results of those competitions. Admittedly, he had health problems during the period from 1974 to 1984, but his staff report was good at the end of the period. He is of the opinion that the method of selection and the generalized approach adopted by the defendant in submitting his file to the Selection Board constitutes discrimination and a breach of the principle of equality, in so far as the Selection Board had no way of knowing that, as far as the applicant was concerned, the objective requirements of the proper functioning of the institution had been supplanted by subjective decisions alien to those requirements. In particular, a complaint about a note dated 15 December 1983 concerning the definition of duties which had been imposed upon the applicant remained unkown to the Selection Board, even though a detail of that kind relates directly to the staff reports. The applicant adds that if a complete file was submitted to the Selection Board and if the latter acted in accordance with the criteria which it laid down, there are no grounds for concluding, as the Commission does, that the Selection Board was not able in such circumstances to award good marks to the applicant in respect of his file. He concludes that a subjective decision, for which the reasons were not disclosed, was taken with respect to him. For those reasons, the applicant insists that the Commission should produce all the relevant documents and in particular the one read by the Chairman of the Selection Board.

2. The Commission observes that it is possible that the applicant may be the only person to pass a number of internal Category A competitions to whom no post in that category has been offered. However, the inclusion of a successful participant in a competition on a list of suitable candidates does not in every case oblige the appointing authority to appoint him. In the present case, the applicant was not appointed to Grade A in the 1960s because the competitions were for a specific post for which he was not considered to be the best qualified candidate, and in the 1970s because the applicant's delicate health caused frequent absences and his work was not of the highest standard. The Commission emphasizes that in the applicant's case, as in that of all the other candidates, it passed to the Selection Board the application form, the special annex thereto and the candidate's personal file. The internal competitions passed by the applicant were recorded both in his personal file and in the special annex and those documents contained all the necessary information to enable the Selection Board to make an assessment of the candidate with full knowledge of the facts. If the complaint mentioned by the applicant was not included in his personal file, that was because the nature of the document defining the duties at issue did not justify its inclusion in the personal file. The Commission also rejects the view that the applicant has been underemployed. Thus, according to the Commission, none of the circumstances referred to by the applicant in support of this submission prove that the Selection Board discriminated against him in deciding not to admit him to the second stage described in the competition notice.

(iii) The third submission

1. The applicant observes that Article 24 of the Staff Regulations requires the Commission, when compiling a file containing all the relevant information for an overall assessment of the career of any of its employees who is a candidate in an internal competition for promotion, not to conceal any item likely to facilitate further training. He is of the opinion that the contested measure constitutes evidence of the fact that the Commission has not facilitated such further vocational training.

2. The Commission contends that this submission is defective both in law and in fact. The abovementioned provisions of Article 24 cannot be interpreted as requiring Selection Boards for competitions to adopt favourable decisions, in particular regarding the selection of candidates for training, for the benefit of candidates who were previously successful in internal competitions but who would be excluded if an objective method were applied rigorously.

O. Due

Judge-Rapporteur

1 Language of the Case: French.