Report for the Hearing delivered in Case 228/86

I — Facts and procedure

The applicants, Jean-Pierre Goossens, Silvio Maraschin, Walter Sandkuhl and Gerard Dunne, submitted applications for and were admitted to Internal Competition COM/A/8/84, based on qualifications and tests, which was organized by the Commission in 1984 to constitute a reserve of administrators (Grades 7 and 6 of Category A), and was open to candidates who had held posts in Grades B 1, B 2 or B 3 since 1980.

2. The competition comprised a preliminary selection stage and a training stage; only candidates who completed the training would be admitted to the final oral test. In the preliminary selection phase, the Selection Board was required, having regard to the personal files of the candidates and the results of a written paper designed to test general knowledge and judgment and after, where necessary, an interview with a representative of the candidate's Directorate-General and the candidate, to select the candidates considered most suitable to go on to the next stage of the procedure.

3. The applicants were admitted to the second stage of the competition, namely the training stage. According to the competition notice, that training included ‘simulated work situations’. By letter of 3 March 1986, the Commission sent certain information concerning training to the candidates who had been selected. The courses included subjects such as economics, the institutional system of the Communities, oral and written expression, financial management and work management in the context of technological advances.

4. The competition concluded with an interview. According to the competition notice, the interview with candidates was ‘to enable the Selection Board to assess their qualifications and ability to carry out Category A duties. The interview will be marked out of 50. Candidates who obtain at least 30 marks will be placed on the list of successful candidates’.

5. The oral test comprised a question of a general nature allocated by the drawing of lots by the candidate, a brief talk by the candidate about his training and past and present activity and, finally, a test specifically concerned with the Community, namely: For the purpose of marking, each member of the Selection Board received a record card indicating both the duration and the weighting of each group of questions. The general question was allocated about 10 minutes, with a weighting of 1, the talk about the candidate's duties was allocated about 5 minutes with a weighting of 0.5, and the questions on ‘Community policies’ and ‘other Community policies’ were allocated 10 and 20 minutes and a weighting of 1.5 and 2 respectively. In January 1987, Antonio Ciancio, the Chairman of the Selection Board, certified: The minutes of the Selection Board show that the total number of candidates admitted to the oral test was raised to 85. For the purpose of the drawing of lots for the question ‘of a general nature’, the Selection Board prepared a list of 76 questions and, for the part of the test relating to ‘other Community policies’, it prepared a list of 75 questions.

‘The candidate's present activity in the context of one of the Community policies: the candidate will answer a number of questions to be put by the Selection Board;

Other Community policies (questions not relating to the candidate's present activity): the candidate will choose one of two questions set by the Selection Board’.

‘(1) that the two members of the Selection Board who are assistants to Directors General did not participate in the marking of the tests for candidates employed in the Directorate General in which they served as assistants;

2) that the members of the Selection Board used record cards of the type attached for the purpose of marking the candidates' tests; the record cards were destroyed on completion of the competition to preclude any risk that they might damage the career of any of the unsuccessful candidates’.

6. After the oral test, the Head of the Recruitment Division, G. Junior, informed the applicants herein in June 1986 that in view of the results which they had obtained the Selection Board had been unable to include them on the list of suitable candidates. The letter indicated the overall marks obtained by the candidate in question and the minimum prescribed in the competition notice (30 out of 50).

7. By a note of 4 July 1986 addressed to Mr Junior, Jean-Pierre Goossens submitted his observations on the conduct of the test. He stated, by way of conclusion, that he intended to speak to a lawyer and gave notice that it was not beyond the realms of possibility that a number of his colleagues who had also been rejected might join him.

8. By an application lodged at the Court Registry on 20 August 1986, the applicants brought the present action.

9. 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 applicants claim that the Court should: Declare their application admissible and well founded; Consequently, annul the refusal to place the applicants' names on the reserve list; To the extent necessary, annul the appointments made as a result of the reserve competition; Order the Commission to pay the costs.

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

III — Submissions and arguments of the parties

Admissibility

1. The Commission contends that the claim that the appointments made after the competition at issue should be annulled is inadmissible. Regardless of the outcome of the present application, those appointments cannot be called in question, the purpose of these proceedings being to determine whether or not the Selection Board's decision concerning the applicants is lawful. The applicants claim that the purpose of these proceedings is to secure annulment of the Selection Board's decisions in so far as they rejected the applicant's applications and, in the second place, to secure the annulment, so far as necessary, of all measures deriving from those decisions, including the appointments made on the basis of the competition procedure. In that connection, the applicants rely upon the judgment of the Court.

Substance

The arguments put forward by the applicants comprise six main submissions:

a) unequal treatment and discrimination;

b) the selection criteria were not specified;

c) an utter lack of the transparency which is a sine qua non for any selection procedure;

d) a lack of proportionality between the questions and the level of the posts to be filled; misuse of procedure;

e) inadequate statement of the reasons on which the adverse decisions were based, in so far as the unsuccessful candidates do not know on what point they were unsuccessful;

f) breach of the principle of protection of legitimate expectations and the rules of fairness.

First submission: unequal treatment and discrimination

1. The applicants claim that the essential principle to be observed in every competition is that complete equality must be ensured, at least as far as possible, so that there will be no discrimination as between the candidates admitted to the competition. They add in their reply that, as a result of the number of the questions chosen and submitted to the candidates, complete equality between them could not be ensured.

2. The Commission is of the opinion that this submission is inadmissible in so far as it was raised only in the reply and is imprecise: the applicants do not refer specifically to the questions put to them or to those put to the successful candidates, and the Court is thus unable to compare them.

Second submission: the selection criteria are imprecise

1. The applicants consider that, pursuant to Article 7 of the Staff Regulations, the selection at the final stage of the competition and the subsequent appointments must be made in accordance with objective selection criteria and exclusively in the interests of the service. No definition of the criteria is provided, not even in the Selection Board's minutes; the applicants infer that the selection was made exclusively on a random basis. The applicants refer in this connection to the judgments of 29 September 1976 in Case 105/75 (Giuffrida v Council [1976] ECR 1395), and of 5 September 1979 in Case 157/77 (Gilbeau v Commission [1979] ECR 1505).

2. The Commission claims that the selection criteria, namely the division of the test into its component parts and the weighting of the points as between those parts, were determined before the commencement of the test, as is apparent from the minutes of the board's meetings. The weighting appeared on the record card used by each member of the jury.

Third submission: utter lack of the transparency which is a sine qua non for any selection procedure

1. According to the applicants, the questions were asked at random, in complete disregard of the candidates' ‘profiles', and, consequently, of their specialized training. However, the competition notice stated that the oral test was to ’enable the Selection Board to assess their qualifications and ability to carry out Category A duties'. The minutes of the Selection Board meetings furnished to them contain no information to show that random choice was not the sole criterion.

2. Having provided the applicants with the minutes of the Selection Board meetings, the Commission observes that the questions were not asked at random. The Selection Board took the greatest care in preparing in advance a list of questions of equivalent standard and asked each of the candidates to choose one by drawing lots. The drawing of lots was decided upon because of the board's concern to ensure objectivity, impartiality and equality of treatment. As regards the marking of the oral test, the Selection Board decided to use the arithmetical mean of the marks awarded by each member of the Selection Board to each of the candidates. From the linguistic point of view, simultaneous interpretation had been provided whenever the candidates wished to speak in a language other than French, which was the working language of the Selection Board.

Fourth submission: disproportionality between the questions and the level of the posts to be filled; misuse of procedure

1. The applicants are of the opinion that the questions put to all four of them did not enable the Selection Board to form the judgment required of it by its terms of reference. For example, Mr Goossens was confronted with a question as to whether countries granting development aid are entitled to make that aid subject to conditions and he was questioned on the system of generalized preferences and on common policies. Mr Dunne drew a question on ‘the safeguarding of a national heritage’ and he was also questioned on taxation within the Community and the problem of dumping in relation to Community activities. The applicants consider that those questions are disproportionate, because none of the candidates was able to reply unless the question related to his field of activity. They do not consider that questions of that type correspond to the level of an A 7/A 6 official and they doubt whether the members of the Selection Board themselves would have been capable of answering them. The universal rule of proportionality was not observed. Referring to the competition notice which defined the posts as involving ‘administrative, advisory and supervisory duties’, they point out that the activities of an A 6/A 7 official do not call for profound knowledge of all areas of activity of the Communities. Finally, the questions put to them bore no relationship to the various training sessions.

2. The Commission states that the duties which the competition was designed to lead on to are ‘administrative and advisory duties’ (in French: ‘fonctions de direction, de conception et d'étude') which require university education or equivalent professional experience’ (second subparagraph of Article 5 (1) of the Staff Regulations of Officials). The competition at issue was a competition to constitute a reserve of administrators and therefore those successful were liable to be appointed to any Commission department and it was necessary for the oral test to facilitate an assessment of the qualifications of the candidates and of their ability to carry out Category A duties. The questions asked referred only to a very limited extent to the specialized training of the candidates, but provided a basis for assessing their ability to understand the problems raised, to reason logically and to express themselves in a clear and convincing manner. The questions were also designed to disclose their cultural level and intellectual curiosity, particularly within the areas of Community activities. The Commission also states that the Court cannot substitute its own judgment for that of the Selection Board as ‘ regards the degree of difficulty’ to be taken into account in marking the tests (see judgment of 1 October 1981 in Case 268/80 Guglielmi v Parliament [1981] ECR 2295). The Selection Board certainly was not guilty of ‘stepping outside the confines of the criteria indicated’ or of ‘manifestly abusing its discretion’, this being an area in which ‘the Court cannot substitute its own judgment for that of the Selection Board’ (Guglielmi, supra). Finally, the Commission states that the candidates had no reason to expect that the questions put to them would all be linked with the training sessions, since they had not been given any assurance to that effect.

Fifth submission: inadequate statement of the reasons on whic h the decisions rejecting the applicants are based in so far as the unsuccessful candidates do not know on what point they were unsuccessful

The applicants claim that the decisions rejecting them do not disclose the reasons for which they were unsuccessful. Referring to the two parts of the oral test, namely the qualifications and the ability to carry out Category A duties, the applicants consider that the Selection Board was not entitled to confine itself to making a general assessment, but was under a duty to inform the candidates of the points on which they were considered to have performed unsatisfactorily. Referring to the judgments of the Court of 9 June 1983 (Case 225/82 Verzyck v Commission [1983] ECR 1991) and of 28 February 1980 (Case 89/79 Bonu w Council [1980] ECR 553), the applicants state that the Court has always called for comprehensive information concerning unsuccessful candidates, and has likewise held that any individual decision rejecting an application must at least give the candidate clear information as to the general criteria according to which the candidate's qualifications were assessed and also give the results of the selection made.

In the case of Mr Maraschin in particular, he is in charge of a team of 75 people and must therefore have the ability to carry out Category A duties. The applicants conclude that the Selection Board refused to include him on the list of suitable candidates by reason of the level of his qualifications. But no one told him in which area he ought to improve and therefore the reasons for the rejection of his application are not sufficiently stated. The position is hardly different in the case of the other three applicants. Referring to the judgment of 26 November 1981 (Case 195/80 Bernard Michel v Parliament [1981] ECR 2861) the applicants state that in principle the statement of reasons must be notified to the person concerned at the same time as the decision adversely affecting him and that the lack of a statement of reasons cannot be rectified by the fact that the person concerned learns of the reasons for the decision in the course of proceedings before the Court.

Finally, the applicants, referring to the judgment of the Court of 27 March 1985 (Case 12/84 Kypreos v Council [1985] ECR 1005) are of the opinion that if the Court accepts that a statement of reasons may be given after an application is rejected, the Court should in any event order the Commission to pay all the costs because the latter is responsible for the fact that the matter had to be brought before the Court.

2. The Commission considers that the competition notice does not require the Selection Board to make an assessment of the qualifications of the candidates and a separate assessment of their ability to carry out Category A duties. It is extremely difficult to draw a formal distinction between a person's qualifications and his ability to carry out certain duties; the two different expressions refer to a general quality. The Selection Board, without disregarding the competition notice, appraised the quality of the candidates according to a set of criteria worked out in advance. As regards the previous decisions of the Court concerning the statements of the reasons on which the decisions of competition Selection Boards are based, the Commission is of the opinion that, in the case of a decision not to admit a candidate to the tests in a competition based on qualifications and tests, a summary statement of reasons is sufficient provided that it does not confine itself to referring to ‘a condition in the competition notice containing several elements’ (see judgment of the Court of 21 March 1985 in Case 108/84 De Santis v Court of Auditors [1985] ECR 947). On the other hand, as regards the Selection Board's decision not to include someone on the list of suitable candidates, a decision which involves an appraisal of the candidates' qualities, the Court has no jurisdiction to review the value judgments of a Selection Board, in so far as the latter enjoys a wide discretion in that regard (judgment of 14 July 1983 in Case 144/82 Detti v Court of Justice [1983] ECR 2421). The Commission claims that the statement of the reasons on which the Selection Board decision at issue here is based is adequate and that the explanations given in its written observations render the submission devoid of purpose (judgment in Kypreos, supra).

Sixth submission: breach of the principle of the protection of legitimate expectations and of all the rules of fairness

1. The applicants claim that certain of the questions put to them were not dealt with in the training courses, or even mentioned in the bibliography made available to the candidates. This arbitrary way of conducting the examination, without a proper programme, is contrary to all the rules of fairness and moreover constitutes a breach of the principle of the protection of legitimate expectations. According to the applicants, there was an indisputable misuse of procedure, since instead of asking questions relating to the posts to be filled the Selection Board organized a veritable game of chance. The questions asked on ‘other Community policies’ covered all the Commission's activities, whereas they should have related to the activities upon which the candidates were then engaged. At least, that should have applied in the case of the questions on ‘the present activity of candidates in the context of one of the Community policies’.

2. The Commission observes that the training courses were not intended to provide the candidates with complete training, but to stimulate them and to help them to pass the tests. The question relating to ‘other Community policies’, which did not relate to the present activity of the candidate, covered, in conformity with the competition notice, all the areas of activity of the Commission, whilst the question ‘of a general nature’ was a question on general culture not relating to EEC activities. There was no reason for the candidates to suppose that all the questions would relate to their present activity or to the subject-matter of the training courses.

O. Due

Judge-Rapporteur

1 Language of the Case: French.