C-44/71
ECLI:EU:C:1972:53
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JUDGMENT OF THE COURT (FIRST CHAMBER) 14 JUNE 1972<apnote>1</apnote>
Antonio Marcato
v Commission of the European Communities
Case 44/71
Summary
1. Officials — Recruitment — Selection Board— Decision — Exclusive jurisdiction of the Court
(Staff Regulations of Officials of the EC, Article 91)
2. Officials — Recruitment — Notice of competition — Equivalent experience in employ ment — Partial and arbitrary nature of a specification — Application of general formula contained in the third subparagraph of Article 5(1) of the Staff Regulations — Powers and duties of the Selection Board (Staff Regulations of Officials of the EC, Annex 111, Article 1(1) (b))
3. Officials — Recruitment — Consideration of applications — Duties of the Selection Board
(Staff Regulations of Officials of the EC, Annex III, Article 5)
1. The only form of appeal open to the experience of each candidate cor individuals in relation to a decision respond to the level required by the taken by a Selection Board lies in an Staff Regulations and, therefore, by application to the Court, which alone the notice of competition. The adoption has jurisdiction to annul such decisions. of this solution implies, however, that the Selection Board shall be bound to 2. If, in a notice of competition the term give reasons for its decisions on this 'equivalent experience in employment' question, if only in summary form. cannot be interpreted without remaining incomplete or arbitrary, recourse must 3. The Selection Board is obliged to give be had to the general formula contained sufficient reasons for the conclusions it in the third subparagraph of Article reaches on the comparison of the 5(1) of the Staff Regulations and the qualifications submitted by the can Selection Board for the competition didates with those required by the notice must be left to assess in each case of competition. whether the certificates produced or
In Case 44/71
Antonio Marcato, an official of the Commission of the European Communities, residing in Luxembourg at 48, rue de la Toison-d'Or, represented by Ernest Arendt, Advocate of the Luxembourg Bar, assisted by Tonia Scheifer, Advocate of the
1 — Language of the Case: French.
JUDGMENT OF 14.6.1972 — CASE 44/71
Luxembourg Bar, with an address for service in Luxembourg at the Chambers of Mr Arendt, 34b rue Philippe-II,
applicant,
v
Commission of the European Communities, represented by its Legal Adviser, Pierre Lamoureux, acting as Agent, with an address for service in Luxembourg at the offices of its Legal Adviser, Émile Reuter, 4 boulevard Royal,
defendant,
Application for the annulment of :
(1) Notice of Competition Nos COM/484 to 487/70 on the grounds of a proce dural irregularity;
(2) the decision notified to the applicant by the Commission on 8 February 1971 informing him that his application in respect of the notice of competition was not accepted and the letter confirming the decision of the Commission notified to the applicant on 16 February 1971;
(3) as far as may be necessary: the implied decision rejecting his complaint in dicated by the failure of the administration to reply within two months to that complaint made through official channels by the applicant to the President of the Commission on 25 March 1971 and received on 29 March 1971,
THE COURT (First Chamber)
composed of: J. Mertens de Wilmars, President of Chamber, A. M. Donner (Rapporteur) and R. Monaco, Judges,
Advocate-General: K. Roemer
Registrar : A. Van Houtte
gives the following
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JUDGMENT
Issues of fact and of law
I — Facts and procedure Court of Justice in an application filed at the Registry on 23 July 1971. The facts and procedure may be sum The written procedure followed the normal marized as follows: course.
The applicant entered the service of the Upon hearing the report of the Judge- Commission of the European Economic Rapporteur and the opinion of the Community on 12 November 1958 as a Advocate-General, the Court (First Cham night watchman in Grade C 3. On 1 ber) decided to open the oral procedure January 1962 he was engaged as a mes without any preparatory inquiry. senger in Grade D 2 and promoted to The parties presented oral argument at the Grade D 1 on 1 September 1963. After hearing on 17 February 1972. following a course with the Belgian The Advocate-General delivered his Machines Bull company from 19 October opinion at the hearing on 4 May 1972. to 28 November 1962 he obtained an operator's certificate. On 1 October 1963 he was appointed a Clerical Officer in II— Conclusions of the parties Grade C 3 and after a probationary period of six months in that post was assigned to the data processing department as a The applicant claims that the Court punch-card operator. should: Since 1966 he has performed the duties of console operator and programme clerk. (1) declare that the application is ad The applicant submitted his application missible; for the competition referred to in Notice of Competition Nos COM/484 to 487/70 (2) declare that it is well founded; but was informed by letter dated 8 February 1971 that his application had not A — Primarily been accepted. On the applicant's request, the Commission (a) declare that Notice of Competition informed him on 16 February 1971 that Nos COM/484 to 487/70 must specify his application had been rejected on the the level of experience required for the ground that he did not have the necessary posts to be filled ; qualifications, that is: (b) declare that the applicant possesses 'an advanced level of secondary education 'equivalent experience in employ or equivalent experience in employment'. ment' ;
On 25 March 1971 the applicant submitted (c) declare that applicant X does not a complaint through official channels to satisfy one of the requirements of the the President of the Commission requesting competition; that the competition be annulled on the grounds of a procedural irregularity and And accordingly, annul : his unfair exclusion from the list of suitable candidates. As this complaint, which (I) Notice of Competition Nos COM/484 was received on 29 March 1971, remained to 487/70 on the grounds that it in unanswered for the period of two months, fringes Article 1(1)(d) of Annex III the applicant referred the matter to the to the Staff Regulations;
JUDGMENT OF 14.6.1972 — CASE 44/71
(II) on the ground that they infringe III — Submissions and arguments Article 25 of the Staff Regulations of the parties and Article 5 of Annex III to the Staff Regulations and constitute a The submissions and arguments of the misuse of powers parties may be summarized as follows:
— the entire competition procedure; (a) The applicant maintains that by requir ing merely an 'advanced level of secondary — the express decision of the Com education, evidenced by a diploma or mission notified to the applicant on equivalent experience in employment', the 8 February 1971 and the letter notice of competition does not satisfy the confirming that decision addressed requirement contained in Article 1(1) (d) to him on 16 February 1971, as of Annex III to the Staff Regulations. The well as the implied decision refusing notice of competition in question contains to annul the abovementioned ex no details regarding the level of experience press decision; required and this opens the way to arbitrary action on the part of the Selection Board — the appointment of Mr X to the or the appointing authority. The failure to post offered in Competition No specify the level of experience required COM/484 to 487/70. renders it impossible for the Court to exercise its power of review. The defendant observes that there is no B — In the alternative doubt as to the regularity of Notice of Competition Nos COM/484 to 487/70. Allow the applicant to show by all legal By providing under the heading 'Qualifica means, and in particular : tions required' the following specification :
(a) by means of an inquiry or expert 'An advanced level of secondary education, assessment, that he has an advanced evidenced by a certificate or equivalent level of secondary education or equiv experience in employment', alent experience in employment ; the notice in question completely satisfies (b) by means of an expert assessment or by the requirements of the third subparagraph interrogation of Mr X personally that, of Article 5(1) of the Staff Regulations apart from his mother tongue, that which provides that Category B shall official does not have any adequate comprise five grades ... which require an knowledge of another Community advanced level of secondary education or language; equivalent experience in employment. In view of the great variety of secondary (3) order the defendant to pay the costs education certificates which exist in the six of the action. Member States and the wide and varied content of the expression 'equivalent The defendant contends that the Court experience in employment' a more explicit should : and detailed specification serves no pur pose. It is for the Selection Board to assess (1) dismiss the application in its entirety in each individual case in the light of as unfounded; Article 5(1) of Annex III to the Staff Regulations whether the experience claimed (2) order the applicant to pay the costs. by each candidate corresponds to the re quired level. The practice in dispute, which During the oral procedure the applicant is moreover widely followed in the institu withdrew his conclusions concerning the tions of the European Communities, was appointment and personal interrogation confirmed by the Court in its judgment of of Mr X. 14 July 1965 in Joined Cases 18 and 19/64,
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Filippo Alvino and Others and Jacqueline The defendant replies that sufficient reasons Benoit and Others v Commission of the for the decision in question are contained European Economic Community [1965] in the finding that the applicant does not ECR 789. have an 'advanced level of secondary education, evidenced by a certificate or (b) The applicant criticizes the decision equivalent experience in employment'. refusing him admission to the competi More detailed reasons are not compatible tion for the following reasons: with the secrecy of the proceedings of the
Selection Board. The defendant refers to the judgment of the Court of 31 March — as it only contained the standard 1965, Thérèse Marie-Louise Vandevyvere v formula, to the effect that the applicant European Parliament, Case 23/64 [1965] 'does not have an advanced level of ECR 157, in support of its argument. The applicant brings no concrete evidence secondary education, evidenced by a to prove that his experience is equivalent certificate or equivalent experience in to an advanced level of secondary educa
employment' tion, evidence by a certificate. As the applicant has performed for eight years the the decision fails to set out the necessary duties of Grades C 2 and C3 he cannot statement of reasons and thereby in claim to have experience equivalent to that fringes Article 25 of the Staff Regula required for the duties of Category B. tions ; The submission of misuse of powers is unfounded since, in the light of the duties — by failing to put the applicant's name performed, the applicant cannot have upon the list of suitable candidates the experience of the required level. Selection Board failed to take into The applicant's offer to show by all account the established facts of the case appropriate means that he has sufficient and changed the nature of one of the experience must be declined, since the conditions of the competition, this arguments set out above already show that constituting an infringement of Article no such evidence can be brought. 5(1) and (3) of Annex III to the Staff In his reply, the applicant contests the Regulations ; defendant's argument that he does not have The applicant sets out the details of his the experience required by the notice of career and concludes that during the competition. Reasoning which maintains eight years in which he has worked in that an official in Category C who does not the data processing department he has have a secondary education certificate can acquired solid experience in the field of never enter Category B since a priori he computers which is certainly at the lacks experience of an equivalent level is level of a secondary education certificate. incompatible with the very purpose of For this reason, the lack of sufficient the competition which is precisely to reasons for the decision in question also enable officials in Category C to enter conflicts with the facts which have been Category B. The experience referred to in established or put forward in the case. the notice of competition must necessarily be that which an official in Category C has — the administration itself recognized the acquired in the performed of his duties, existence of sufficient experience, since otherwise there is no point in referring to the type of work entrusted to the ap
it. . Moreover, the defendant's reasoning is plicant in the data processing depart contradicted by the facts established in this ment requires such experience. By deny instance : ing that the applicant had such ex perience in order to prevent his entering — all the candidates allowed to enter the the competition the administration was competition were officials in Category C going against its own actions and there and none held a secondary education fore misusing its powers. certificate;
JUDGMENT OF 14.6.1972 — CASE 44/71
— they all performed the same duties as exceptional cases, in particular, where by the applicant within the institution; reason of a lack of manpower or an in crease in work, officials of Category C have — for those candidates without certificates carried out tasks at a higher level than the Selection Board had necessarily to those of their category. It is clear that the accept that the experience which they administration and the relevant depart acquired in the performance of their ments take this into account when such duties within the institution in Category officials submit applications for a com C was equivalent to a secondary educa petition for the higher category. This tion certificate. applies in the present case to the officials admitted to the competition. As the re It was reasonable for the Selection Board organization of the computer centre to take into account also the experience during the two years preceding the competi acquired by the applicant in the perform tion made it necessary to resort to excep ance of tasks which are identical or similar tional measures, officials from Category C, to those involved in the posts to be filled including the applicant carried out duties and which are, at all events, similar to of Category B. This solution, which was those performed by the candidates allowed imposed by the circumstances, enabled the to enter the competition. By rejecting the abilities of each official to be assessed, as applicant's application alone on the ground well as his efficiency as regards particular that his experience is not equivalent to an duties. The candidates whose applications advanced level of secondary education were accepted were in fact officials in evidenced by a certificate, the Selection Grades C3 and C 2 who have demonstrated Board seriously infringed the important their abilities. On the other hand, the principle of the equality of treatment as applicant has not proved satisfactory and between candidates. for approximately one year he has only The papers contained in the schedule to performed the duties of an operator in the originating application show that career bracket C3/C2. It was in the light of inequality of treatment as between the these facts that the Selection Board found applicant and the other candidates was that the applicant did not satisfy the unjustified and therefore constituted a qualifications required by the notice of misuse of powers. competition, since he did not possess The defendant observes that the applicant's experience equivalent to the training ob argument that by doing Category C work tained by having an advanced level of an official may acquire experience ap secondary education, evidenced by a propriate to Category B is only valid in certificate.
Grounds of judgment
1 By an application lodged at the Registry on 23 July 1971 the applicant referred to the Court the implied refusal of the Commission to accept his complaint through official channels filed on 29 March 1971.
2 This complaint through official channels referred to Notice of Internal Competi tion No COM 484 to 487/70 and the competition procedure consequent upon this notice, in particular, the decision of the Selection Board rejecting the application submitted by the applicant on the grounds that he did not satisfy one of the re-
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quirements of the competition, that is, an advanced level of secondary education, evidenced by a certificate or equivalent experience in employment.
3 During the oral procedure the applicant withdrew his conclusions concerning the appointment of Mr X.
Admissibility
4 The defendant does not question the admissibility of the application.
5 Nevertheless, it must be observed that a complaint to the Commission through official channels against a decision adopted by a Selection Board appears to be pointless, as the Commission is not competent to annul or amend the decisions of such a board.
6 Therefore, the only legal remedy open to individuals in relation to such a decision lies in an application to the Court, which alone has jurisdiction to annul such decisions.
7 The preliminary reference of the matter to the Commission is, however, explained by the practice of officials of never referring directly to the Court those measures which affect them adversely, but of appealing first, even though it be unnecessary to do so.
8 In the light of the foregoing, the appeal against the implied refusal of the Com mission must not be declared inadmissible for this reason but it must be admitted
as directed against the decision of the Selection Board and the time-limit for appeals against this decision, which was communicated on 18 February 1971 at the latest, must be considered not to have expired.
9 In the circumstances set out above the application is admissible.
Notice of Competition No COM 484 to 487/70
10 The applicant claims that this notice infringed Article 1 (1)(b) of Annex III to the Staff Regulations by showing, under the heading 'Qualifications required', only 'an advanced level of secondary education, evidenced by a certificate or equivalent experience in employment'.
11 In doing so the notice merely reiterated the wording of the third subparagraph of Article 5(1) of the Staff Regulations without specifying the certificates and other qualifications or the level of experience required for the posts to be filled.
JUDGMENT OF 14.6.1972 — CASE 44/71
12 In the light of the great number of secondary education certificates in the Member States and the wide and varied content of the phrase 'equivalent experience in employment', even a more explicit and detailed requirement may, in certain cases, be incomplete and, for that reason, arbitrary.
13 This may, in particular, be the case where, as in this instance, the notice of com petition is addressed to a group of individuals of differing origin and education.
14 Therefore, the only alternative is to employ a general formula such as that con tained in the third subparagraph of Article 5(1) of the Staff Regulations and to leave the Selection Board for the competition to assess in each case whether the certificates produced or the experience of each candidate correspond to the level required by the Staff Regulations and, therefore, by the notice of competition.
is The adoption of this solution implies, however, that the Selection Board shall be bound to give reasons for its decisions on this point, if only in summary form.
16 Therefore, in so far as it refers to the notice of vacancy, the application must be dismissed.
The decision of the Selection Board not to consider the applicant's candidature
17 It is clear both from the communications from the relevant departments ol the Commission and from the report of the Selection Board that the latter rejected the applicant's candidature on the grounds that it did not meet the first of the qualifi cations required by the notice of competition, that is, an advanced level of sec ondary education, evidenced by a certificate or equivalent experience in employ ment.
18 The applicant claims that no reasons were given for this decision, that it conflicted with the established facts and constituted a misuse of powers.
19 As regards the absence of reasons for the decision, the proceedings of a Selection Board involve at least two distinct stages, that is, first consideration of the appli cations, in order to sort out the candidates allowed to enter the competition and, secondly, consideration of the abilities of the candidates for the post, in order to draw up a list of those suitable.
20 If the second stage above all consists of making comparisons and is, therefore, governed by the principle of secrecy inherent in the proceedings of a Selection Board, the first consists, in particular in a competition on the basis of qualifica-
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tions, of a comparison of the qualifications produced by the candidates with those required by the notice of competition.
21 As this comparison is carried out on the basis of information which is objective and, moreover, known to each of the candidates in so far as it concerns his case, sufficient reasons must be given for the results arrived at.
22 No reasons were given in this instance, as the report merely indicated the qualifi cation which the applicant was considered not to satisfy, although at first sight his experience was comparable to that of the other candidates allowed to enter the competition.
23 The report of the Selection Board infringes Article 5 of Annex III to the Staff Regulations and must therefore be annulled.
Costs
24 Under the first subparagraph of Article 69(2) of the Rules of Procedure, the un successful party shall be ordered to bear the costs.
25 As the defendant has failed in its pleas, it must be ordered to bear the costs.
On those grounds,
Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties ; Upon hearing the opinion of the Advocate-General; Having regard to the Staff Regulations of Officials of the European Communities, especially Articles 5 and 25, and Article 5 of Annex III; Having regard to the Protocols on the Statute of the Court of Justice ; Having regard to the Rules of Procedure of the Court of Justice of the European Communities,
THE COURT (First Chamber)
hereby:
1. Annuls the report of the Selection Board in Internal Competition No COM 484 to 487/70;
OPINION OF MR ROEMER — CASE 44/71
2. Orders the Commission of the European Communities to bear the costs of the action.
Mertens de Wilmars Donner Monaco
Delivered in open court in Luxembourg on 14 June 1972.
A. Van Houtte J. Mertens de Wilmars
Registrar President of the First Chamber
OPINION OF MR ADVOCATE-GENERAL ROEMER DELIVERED ON 4 MAY 1972<apnote>1</apnote>
Mr President, following conditions: 'An Advanced level Members of the Court, of secondary education, evidenced by a certificate or equivalent experience in The plaintiff in the action in which I am employment ; experience of multi-program giving my opinion today entered the service ming of computers; familiarity with Cobol of the Commission of the European Com or Assembler programming desirable; munities as a night watchman on 12 appropriate experience'. November 1958. On 1 January 1962 he The applicant was one of the candidates was appointed as a messenger in Grade D 2 for this competition. However, he was and on 1 September 1963 was promoted to informed in a letter of 8 February 1971 Head of Unit in Grade D1. From 19 from the Directorate General for Per October to 28 November 1962 the applicant sonnel and Administration that it had not apparently took part in a training course been possible to accept his application. At organized by the Belgian Machines Bull his request, he was subsequently informed company at the end of which he received a in a letter of 16 February 1971 from the certificate stating that he was qualified as Head of the Recruiting, Appointments and an operator. On 1 October 1963 he was Promotions Division that the Selection appointed Clerical Officer in Grade C3 Board had not accepted his application and assigned to the computer centre of the because he did not fulfil one of the condi Commission as a punch-card operator. tions set out in the notice of competition. Four posts in this department in career As the applicant disagreed with this bracket B5/B4 were announced as vacant decision, he addressed a complaint through in Notice of Competition No COM 484 to official channels to the President of the 487/70; these were to be filled by internal Commission on 25 March 1971. In this competition on the basis of qualifications. complaint, which was received on 29 The duties of the posts in question were March 1971 he protested against his defined as follows: 'to carry out normal exclusion from the competition and sought office routine under supervision and in its annulment on several grounds. As he particular to make arrangements for a received no reply to his complaint he made series of administrative or statistical tasks, an application to the Court on 23 July to act as console operator on the com 1971.
puter and to perform tasks in "Operating The applicant claims that the Court should : System" on third generation computers'. The candidates concerned had to fulfil the — declare that the notice of competition
1 — Translated from the German.