C-37/72

The Selection Board has a duty to give produced by candidates with the sufficient reasons for the results of the qualifications required by the notice of matching of paper qualifications competition.

In Case 37/72

Antonio Marcato , official of the Commission of the European Communities, represented by Me Arendt, avocat-avoué, assisted by Me Tonia Schaefer, avocat-avoué, both of the Luxembourg Bar, having chosen his address for service in Luxembourg in the chambers of Me Arendt, 34b, rue Philippe-II,

applicant

Commission of the European Communities , represented by its legal adviser, Pierre Lamoureux, acting as agent, having chosen its address for service in Luxembourg at the offices of its legal adviser, Emile Reuter, 4, Boulevard Royal, defendant

Application for annulment of the notice of competition COM/184/71 and certain subsequent decisions,

JUDGMENT

Issues of fact and of law

I — Facts and procedure storage of cards, tapes etc.; checking of emerging documents The facts and procedure may be or summarized as follows: — programme for 3rd generation 1. The applicant, born on 25 March computer working an Operating 1928, entered the service of the System. Commission in 1958, as night watchman. With effect from 1 January 1962, he was established as usher in grade D 2. On 1 II — Conditions of admission to the September 1963, he was promoted to competition grade D 1. After following a course for operators 1. Qualifications or diplomas required run by the Belgian Bull Machine and practical experience Company from 19 October to 28 No­ — Advanced level of secondary vember 1962, he obtained an operator's education, evidenced by a certificate. On 1 October 1963, he was certificate, or practical experience appointed clerk in grade C 3 and after at an equivalent level; completing six months' probation, attached as machine operator to the — elementary knowledge of pro­ mechanical accounting service. On his gramming, use of COBOL, own initiative he followed an advanced FORTRAN, or a similar language. course on third generation computers at Milan in December 1966, at the end of the course he obtained the IBM 2. . .'

question for irregularity of form an — of the decision contained in the unjust exclusion from the list of memoranda of 1 December 1971 candidates. This complaint lodged on 28 and 25 January 1972; February 1972, remained unanswered. — in so far as is necessary, of the On 27 June 1972, the applicant lodged implied rejection of the complaint the present application. of 23 February 1972 resulting from the Commission's silence in 3. The written procedure has been duly regard thereto; completed. On the report of the Judge-Rapporteur, after hearing the — of the appointments made as a Advocate-General, the Court (Second result of the competition in Chamber) decided to open the oral question; procedure without any preliminary — as a subsidiary point, that he be inquiry. The Court, however, requested given an opportunity to prove he possesses skills which the Selection — the applicant to explain at the hearing the reasons he relied upon to Board refused to recognize; justify his claim to an elementary — whatever the result of the case, that knowledge of programming, use of the Commission should be ordered Cobol, Fortran or a similar language, to pay the costs. — the Commission The Commission submits that the application should be dismissed as — to produce the file of competition inadmissible or as unfounded and that COM/184/71; the applicant should be ordered to pay — to explain at the hearing why it the costs. considers that the applicant does not satisfy the relevant conditions of the notice of competition COM/184/71 and whether this III — Pleas and arguments opinion refers only to practical of the parties experience at a level equivalent to advanced secondary education or The pleas and arguments of the parties also to 'elementary knowledge of may be summarized as follows: programming, use of Cobol, 1. First plea: Infringement of Article 1 Fortran or a similar language'. (1) (g) of Annex III of the Staff The parties have complied with these Regulations requests. The applicant maintains that the The parties presented oral argument at impugned notice of competition does not the hearing on 25 January 1973. The comply with the provisions of Article 1 Advocate-General presented his opinion (1) (g) of Annex III of the Regulations as at the hearing on 8 February 1973. it stood at the time of the measures in dispute. This notice made no mention of the age limit or of any extension of the age limit in the case of staff with at least II — Submissions of the one year's service. The applicant relies parties upon the judgment of the Court (First Chamber) of 22 March 1972 (Costacurta The applicant seeks, in substance, v Commission, competition, 78/71, Rec. 1972 p. 163 et seq.) which annulled a — primarily, the annulment competition on the same ground. — of the notice of competition The Commission replies that the facts of COM/184/71 the present case are different from the

age of 50 on the date for lodging The Commission holds that the applications. applicant's argument as to extension of In these circumstances the ground relied age limit clearly proves that the setting upon is inadmissible because irrelevant. of such a limit in the case in question An age limit of 50 or 60 years would not would have been pointless. in any way have altered the conditions As to the revision of the Regulations on of the competition, whereas the effect of the disputed point, the discussions and an age limit of 40 years would have been debates relative thereto make it clear to eliminate the applicant's own that fixing an age limit is merely

indicated. This result is reached: third ground). The applicant relies on the judgment of the Court (First — from an argument e contrario, based Chamber) of 14 June 1972 (Marcato/ on the fact that, of the specific Commission, 44/71) whereby the requirements which a notice of comparison of the qualifications offered competition must legally include by by the candidates with the requirements virtue of paragraph (1) cited above, set by the competition notice, 'being only two may be omitted at the made on the basis of objective facts discretion of the administration ((f) known to each of the candidates in so 'where applicable the knowledge of far as concerns his own case, the reasons

MARCATO v COMMISSION

At this a similar language. date the time for lodging an application had already expired, the dates of The applicant on this point relies on the notification of non-admission to the following facts: competition being 1 December 1971 and — that since his attachment to the 25 January 1972. The Commission mechanical accounting service (1 realises, however, that such a sanction October 1963) he carried out the might seem very harsh and states that it work entrusted to him zealously and leaves the matter to the discretion of the conscientiously to the entire Court. satisfaction of the departments

Commission. In submitting a complaint computers 360/30, 360/40 and to the Commission in the first place, he 360/50; the professional skills of acted in accordance with general which he gave proof were the subject practice. This method of approach by of a certificate from the technico- officials was, besides, laid down as a rule commercial manager of the IBM by Article 39 of Regulation No 1473/72 Company of Belgium. already mentioned, a provision modifying Article 91 of the Regulations The sound practical experience which with the result that an official's the applicant thus gained in the application is henceforth inadmissible computer field is equivalent to a unless a complaint has previously been certificate of an advanced level of lodged with the appointing authority. secondary education. In refusing to

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JUDGMENT OF 15. 3. 1973 — CASE 37/72

certificate of an advanced level of advanced secondary education. secondary education. The duties The Commission's argument is appropriate to grades 2 and 3 of contradicted by the facts. Of the fifteen category C are those which, according to candidates who presented themselves for the terms of Article 5 (1), fourth the disputed competition, fourteen subparagraph, of the Staff Regulations, belonged to categories other than correspond to 'clerical duties which category B, even including category D; require a secondary education or of these fourteen candidates, only two equivalent professional experience', had certificates of advanced secondary whereas in accordance with the third education; nevertheless all the candidates subparagraph of the same paragraph it were admitted to the competition except is the occupations in category B which the applicant and one other official. consist in 'executive duties which require The experience gained by the applicant an advanced level of secondary having been equal, if not superior, to

particular skill or by carrying out education evidenced by a diploma. operations of a particular complexity or The applicant's offer to prove his standard to acquire practical experience possession of the practical experience in corresponding to a different skill or question is inadmissible. On the one operations of a higher complexity or hand, the Court has repeatedly held that standard.' the estimate of the aptitudes and skills of It is not correct to say that adherence to its officials is within the sole competence this principle implies that officials of of the administration; and on the other category C can never reach category B. It hand it is quite clear that the applicant can happen that officials with a could not have gained this experience in certificate of advanced secondary the course of the duties he has carried education or with equivalent practical out up to the present time. experience gained in previous employ The applicant replies that the ment before their recruitment by the Commission's argument amounts to Communities, have agreed to be saying that an official of category C can employed in category C or that officials follow advanced studies and courses never reach category B although the aim of competitions is precisely to make which eventually qualify them for a possible such a change of category in a higher post. suitable case. (cf. Article 45 of the At the hearing the applicant replied to

MARCATO v COMMISSION

ming, use of Cobol, Fortran or a similar The functions of a machine operator are language...' On the order of the in substance purely clerical in character, Commission he had undergone a period in contrast with those of programmers of practical training, run by the IBM which are intellectual operations. Company at Brussels, from 12 Programming consists in breaking down November to 27 December 1968. This a problem into a series of very small training included several courses, one of logical operations, together forming a them a complete course in the Cobol continuous chain of syllogisms without language. any fault of logic. Further, this series of Similarly at the hearing, the operations has to be translated into a Commission, in reply to questions from 'language', the 'languages' most the Court and to the allegations of the commonly used being those called Cobol applicant, confirmed that the applicant and Fortran. had been employed as a machine operator in category C with no duties Neither in the applicant's personal file, requiring knowledge at the level of nor in the competition file, is there to be advanced secondary education. It was found any indication leading to the correct that the administration had tried conclusion that the applicant was to get the applicant to carry out the acquainted with programming and could work of a programmer, but the results use a language of the Cobol or Fortran had not been very satisfactory. type.

Grounds of judgment

1 The application is for the annulment of the notice of competition COM/184/71, of the decision of the Selection Board not to admit the applicant to the competition of which notice was given, of the negative decision implicit in the silence observed by the Commission on the complaint on this subject submitted by the applicant on 23 February 1972, and of the four appointments made as a result of the said competition.

6 The setting of an age limit could only have resulted either in eliminating the applicant himself from the competition, which would have been directly contrary to his interest, or else in eliminating other, possibly qualified, candidates, which in the circumstances cannot be recognised as a legitimate interest of his.

7 Further, it is apposite to point out that owing to the alteration introduced into Annex III of the Staff Regulations by Regulation 1473/72 (OJ No L 160 p. 1) the inclusion of an age limit has been expressly made optional, so that the annulment of the competition notice would not give the applicant satisfaction.

8 For these reasons the plea is inadmissible.

9 As a consequence the submissions seeking the annulment of competition notice COM/184/71 must be rejected.

On the second plea

10 The applicant complains that the Selection Board and the Commission did not give reasons sufficient in law for the Board's decision not to admit him to the disputed competition.

16 The report of the Selection Board appointed for internal competition (COM/184/71 of 16 November and 10 December 1971, states that after examining the applications 'the Board finds (a) that the candidates whose names follow do not fulfil the conditions set by the competition notice and are consequently not admitted to the competion, more particularly on the following grounds: lack of advanced secondary education evidenced by a certificate or equivalent professional experience ... Marcato; lack of elementary knowledge of programming, use of Cobol, Fortran or a similar language ... Marcato ...'

17 The administration's memorandum of 1 December 1971 merely informed the applicant that the Selection Board had not admitted him to the competition, whereas in its memorandum of 25 January 1972, in reply to a letter from the applicant seeking to know the grounds of this decision, the administration confined itself to repeating the formula appearing in the Board's report and reproduced above.

18 The task of a Selection Board is made up of at least two separate stages, in the first place, an examination of the applications in order to select the candidates admitted to the competition, and in the second place an examination of the abilities of the candidates for the post to be filled in order to draw up a list of suitable candidates.

19 Whilst the second stage consists mainly of comparison, and is accordingly covered by the secrecy inherent in the task of a Selection Board, the first, particularly where the competition is based on formal qualifications, entails the matching of the qualifications offered by the candidates against the qualifications required by the competition notice;

24 Unter the terms of the first paragraph of Article 69 (2) of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs.

25 The Commission has substantially failed in its submissions and must therefore pay the costs.

On those grounds,

Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the oral arguments of the parties; Upon hearing the opinion of the Advocate-General; Having regard to the Staff Regulations of the European Communities, especially Article 1 (1) (g) of Annex III as it stood prior to 1 July 1972; 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, especially Article 69;

The Court (Second Chamber)

hereby