C-112/73

JEANNE-MARIE BOUYSSOU, official of the Commission of the European Com­ munities, living at 10, Drève St. Michel, Kraainem, 1950 Brussels,

all represented by Marcel Slusny, Advocate with the Court of Appeal at Brussels, with an address for service in Luxembourg at the chambers of Ernest Arendt, Avocat Avoué, Centre Louvigny, 34 B IV, rue Philippe II,

applicants,

v

The Commission of the European Communities , represented by its Legal Advisers, Pierre Lamoureux and Giorgio Pincherle, acting as co-agents, with an address for service in Luxembourg at the office of Pierre Lamoureux, 14, boulevard Royal,

defendant,

JUDGMENT

Facts

The facts and the arguments developed with initial classification in grade A 7. by the parties in the course of the The competitions covered five fields written procedure may be summarized as which were enumerated in the follows: announcement:

1. legal and administrative 2. economic I — Facts and procedure 3. finance and accountancy All three applicants are Administrative 4. social Assistants, Miss Campogrande in Directorate-General XIV (Approxima­ 5. agricultural and technical tion of Legislation) with grade B 3, Mr De Vleeschauwer in the Directorate- In each field various options were General for External Relations (commer­ further provided for. The five notices of cial policy directorate) with grade B 2, competitions which appeared on 3 and Miss Bouyssou in the Directorate- November 1971 specified a written test General for Competition (agreements giving a choice between drawing up a and dominant positions directorate) with staff memorandum or the minutes of a grade B 1. meeting, an oral test on a subject of It was announced in the 'Staff Courier' general interest, an oral test on the No 186 a for 3 November 1971 that the chosen option, and language tests, Commission had drawn up notices for written and oral.

five 'internal competitions on the basis Since the Commission had urged that of qualifications and tests' with a view to the various Selection Boards should forming a reserve list for recruiting harmonize the tests so far as possible, it purposes, successful candidates being was decided that the subject of the eligible for appointment, with change of written test and that of the oral test on a category if applicable, to vacancies for subject of general interest should be administrators in career-bracket A 7/A 6 common to all the competitions. After

the publication of the notices the II — Conclusions of the applicants submitted their candidatures parties for competitions COM/A/264 (Cam­ pogrande and Bouyssou) and COM/A/ A — In Case 112/73 the applicant 265 (De Vleeschauwer). Campogrande claims that the Court should: When the Selection Board for competition COM/A/264 decided not to In the application: admit Miss Campogrande to the tests, she applied to the chairman of the Board Declare null and void the implied to have the decision reversed and when rejection of administrative complaint No this was refused, she applied by letter 527; dated 21 March 1972 to Mr Coppé, a Take note that the applicant's request member of the Commission. On 22 for annulment is based on grounds of March 1972, that is to say the day before lack of competence, infringement or the day fixed for the written test, she disregard of the Staff Regulations, more was informed that she might take part. particularly of Annex III, misuse of On 18 May 1972, while the Selection powers and/or of procedure, and also Boards were still deliberating, she wrote the erroneous or incorrect evaluation of to Mr Coppé telling him of information the facts of the case on the part of the relating to changes made in the opposing party; conditions for inclusion on the lists of 1. More particularly for the reasons in suitable candidates. She was told in 11, 12, 13, 14, 15, 16 (grounds reply, by letter dated 11 July 1972, 'that I-II-III-IV-V-VI), annul the entire the provisions of the notices of procedure of competition COM/A/ competitions have been observed'. 264, including the notice of Meanwhile, by letter dated 15 June competition; 1972, the three applicants had been informed that it had not been possible to 2. Annul, insofar as necessary, the include them on the list of suitable procedures of competitions COM/A/ candidates. 266, COM/A/267, and COM/A/268, including the notices of competitions; The complaint of the applicant Campogrande was registered at the 3. Alternatively, Annul the procedure of Commission's Secretariat on 6 Septem­ competition COM/A/264 insofar as ber 1972. The Commission's reply of 19 concerns the applicant alone; March 1973 was communicated to Miss Declare and rule that the opposing Campogrande only on 28 March 1973, party must reopen the competition after the submission of application insofar as concerns her; 112/73 on 22 March 1973. The 4. Annul the express rejection by the complaints of the applicants De opposing party in the letter of 11 July Vleeschauwer and Bouyssou, registered at the Secretariat on 13 and 14 1972 of the applicant's administrative complaint; September 1972, were not expressly rejected by the Commission until 20 5. Annul, insofar as necessary, the March 1973. Applications 144/73 (De appointments made as a result of the Vleeschauwer) and 145/73 (Bouyssou), annulled competitions; submitted on 19 June 1973, were 6. Order the opposing party to pay the registered at the Court on 20 June 1973. costs and expenses of the case; The Court, after hearing the report of As a subsidiary matter as to the evidence the Judge-Rapporteur and the opinion of the Advocate-General, decided that no 7. Order the opposing party to produce preliminary inquiry was necessary. the entire administrative file relating

to competitions COM/A/264/265/ their entirety with the benefit of the 266/267/268, including all the following additions: memoranda, documents and minutes of meetings preceding the notices of 1. Declare and rule that the opposing competitions; party must produce all the documentation over and above the 8. Order evidence to be heard from material already mentioned in the witnesses: operative part of the application, the present list being declaratory but not (a) of the facts appearing under 13, exhaustive, and in particular: 14 and 15 of the legal argument; The applicant designates the (a) the copies of the 'Staff Courier' following as witnesses, this list mentioned in the pleadings of the not being exhaustive: parties and not yet produced; Mr G. Krauss, Miss De Corne, (b) an undated communication from Messrs R. Baeyens, J. Reyneir, Mr Coppé to the Commission, Rogalla, W. Verheyden, Miss written following a meeting of Merck; the Commission on 21 January 1971; (b) of the following fact: That when the applicant (c) memorandum No 4233 to the Commission from the Director- complained to Mr J. Reynier that General for Personnel and she had not been admitted to the tests, the latter telephoned to Mr Administration, Mr Lamberto Krauss, the chairman of the Lambert, dated 16 July 1971; Selection Board, in her presence, (d) a memorandum dated 31 May and then told the applicant that 1972 from Mr Lahnstein, Chef de she would not be admitted to the Cabinet to Mr Commissioner tests but that she had no cause to Haferkamp, to Mr Cardon de regret this, since, in any case, Lichtbuer, Chef de Cabinet to Mr even if she had been admitted, Coppé; she would not have been (e) a covering letter dated 27 June successful in the competition; 1972 from Mr Cardon de The applicant designates Mr. J. Lichtbuer forwarding the above Reynier as a witness; memorandum to Mr Lamberto (c) of the following fact: Lambert, Director-General for That Mr Eeckhout told Mr Personnel and Administration; Hans-Udo Pfeiffer, a colleague of 2. Order evidence to be heard from the applicant, that we (Mr witnesses of the following facts: Coppe's Office) 'are having the greatest difficulty with the (a) That the Selection Board for agricultural Selection Board competition COM/A/268 allowed (COM/A/268)'; candidates to offer English in the language test; The applicant designates Mr Hans-Udo Pfeiffer as a witness; The applicant designates as witnesses the candidates admitted to the competition, appearing in In the Reply: the minutes of the said competition, this list not being Take note that the applicant persists in exhaustive; her original conclusions which appear in the operative part of her application and (b) That Mr Krauss, chairman of are to be taken as herein reproduced in Selection Board COM/A/264,

told Mr Rudolf Schneider that As a subsidiary matter as to the evidence although he had been successful in the written test, it was not 6. Order the opposing party to produce worth his while to take the oral the entire administrative file relating test, since he could not be to competitions COM/A/264, COM/ successful in the competition; A/265, COM/A/266, COM/A/267, COM/A/268, including all the The applicant designates Mr memoranda, documents and minutes Rudolf Schneider as a witness; of meetings preceding the notices of competitions; B — In Case 144/73 the applicant De 7. Order evidence to be heard from Vleeschauwer claims that the Court witnesses: should: (a) of the facts appearing under 13 In the application and 14 of the legal argument; The applicant designates the Declare null and void the express following as witnesses, this list rejection of his administrative complaint; not being exhaustive: Take note that the applicant's request Mr G. Krauss, Miss de Corne, for annulment is based on grounds of Messrs R. Baeyens, J. Reynier, lack of competence, of infringement or Rogalla,. W. Verheyden, Miss disregard of the Staff Regulations, more Merck; particularly of Annex III, misuse of powers and/or of procedure, and also (b) of the fact appearing under 17 of the erroneous or incorrect evaluation of the legal argument; the facts of the case on the part of the The applicant designates the opposing party; following as a witness, this list not being exhaustive: Miss 1. More particularly for the reasons in Marisa Marenco; 11, 12, 13, 14, 15, 16 (grounds I-II-III-IV-V-VI), annul the entire (c) of the facts appearing under 21, procedure of competition COM/A/ 22 and 23 of the legal argument; 265, including the notice of The applicant designates the competition; following as a witness, this list not being exhaustive: Mr Etienne 2. Annul, in so far as necessary, the de Clercq; procedures of competitions COM/A/ 264, COM/A/266, COM/A/267 and (d) of the facts appearing under 13 of the legal argument; COM/A/268, including the notices of competitions; The applicant designates the following as witnesses, this list 3. Alternatively, Annul the procedure of not being exhaustive: competition COM/A/265 so far as 1) Mr Carlo Vernimb of concerns the applicant alone; Directorate-General XIII at Declare and rule that the opposing Luxembourg, party must reopen the competition 2) Mr Udo Wartenburg of insofar as concerns him; Directorate-General VI at Brussels. 4. Annul, insofar as necessary the appointments made as a result of the annulled competitions; In the Reply:

present list being declaratory but not test, since he could not be exhaustive, and in particular: successful in the competition; The applicant designates Mr (a) the copies of the 'Staff Courier' Rudolf Schneider as a witness; mentioned in the pleadings of the parties and not yet produced; C — In Case 145/73 the applicant (b) an undated communication from Bouyssou claims that the Court should: Mr Coppé to the Commission written following a meeting of In the application: the Commission on 21 January 1971; Declare null and void the express rejection of her administrative complaint; (c) memorandum No 4233 to the Commission from the Director- Take note that the applicant's request General for Personnel and for annulment is based' on grounds of lack of competence, of infringement or Administration, Mr Lamberto disregard of the Staff Regulations, more Lambert, dated 16 July 1971; particularly of Annex III, misuse of (d) a memorandum dated 31 May powers and/or procedure, and also the 1972 from Mr Lahnstein, Chef de erroneous or incorrect evaluation of the Cabinet to Mr Commissioner facts of the case on the part of the Haferkamp, to Mr Cardon de opposing party; Lightbuer, Chef de Cabinet to Mr 1. More particularly for the reasons in Coppé; 11, 12, 13, 14, 15, 16 (grounds (e) a covering letter dated 27 June I-II-III-IV-V-VI), annul the entire 1972 from Mr Cardon de procedure of competition COM/A/ Lichtbuer forwarding the above 264 including the notice of memorandum to Mr Lamberto competition; Lambert, Director-General for Personnel and Administration; 2. Annul, insofar as necessary, the procedures of competitions COM/A/ (f) the bibliography for the 265, COM/A/266, COM/A/267 and Economic Field, ref. IX/1928/71 COM/A/268, including the notices of — F.D.I.N.; competitions; 2. Order evidence to be heard from 3. Alternatively, Annul the procedure of witnesses of the following facts: competition COM/A/264 so far as (a) That the Selection Board for concerns the applicant alone; competition COM/A/268 allowed Declare and rule that the opposing candidates to offer English in the party must reopen the competition language test; insofar as concerns her; The applicant designates as 4. Annul, insofar as necessary, the witnesses the candidates admitted appointments made as a result of the to the competition, appearing in annulled competitions;

The applicant designates as witnesses of the following facts: witnesses, this list not being (a) That the Selection Board for exhaustive: competition COM/A/268 allowed Mr Carlo Vernimb of Director­ candidates to offer English in the ate-General XIII at Luxembourg language test; and Mr Udo "Wartenberg of The applicant designates as Directorate-General VI at Brus­ witnesses the candidates admitted sels. to the competition, appearing in

CAMPOGRANDE AND OTHERS v COMMISSION

JUDGMENT OF 1. 10. 1974 — JOINED CASES 112, 144 AND 145/73

Cases 144/73 and 145/73, who were those of the external competitions born in 1932 and 1931 respectively, since because the period of validity of the lists the posts to be filled were to a large is different and because of the priority extent intended for the recruitment of accorded to successful candidates in the young officials. internal competitions, a priority which is The applicants reply by emphasizing the made clear by appointments made up ineffective nature of a notice ex post to the end of 1973.

Regulations. The precise effect of the showed themselves more lenient than Marcato judgment is a matter for the Court to amplify. others, as appears from the striking differences in the numbers of candidates The applicants dispute the Commission's admitted (17 out of 55 for competition argument that in view of their age they COM/A/264, 10 out of 64 for have no interest in the fixing of a competition COM/A/265, 12 out of 44 specific age limit because the posts to be for competition COM/A/266, 8 out of filled were, to a large extent, intended 39 for competition COM/A/267 and 28 for the recruitment of young officials.

States. It was only later that the competition. There were in the present Commission changed its attitude and case five different competitions, each decided to reserve these same posts for intended to establish a reserve for the young newcomers by organizing external future recruitment of administrators in competitions and, in consequence, career bracket A 7/A 6 in different fields. changed the nature of the tests by giving The applicants are accordingly wrong in instructions to the Selection Boards to pointing to the unequal results of the make them much more difficult.

CAMPOGRANDE AND OTHERS v COMMISSION

The applicants offer as extend into the domain strictly reserved supporting evidence the award of for the selection boards, nor, a fortiori, different marks in the same test to a could it impose a levelling out of the candidate taking part in two results. competitions, the differing assessments by the Selection Board as to the 3. The applicants thirdly claim admissibility of certain candidates, the discrimination due to the fact that the discussions within the Selection Boards Selection Board for competition over the drawing up of the lists of COM/A/268 agreed to the use of suitable candidates, as well as the English in the language test, in divergencies over the presentation of the anticipation of the entry of new Member

. . to benefit in 1972 from a change of category'. applicants' allegations are incorrect and Recourse to a general internal without merit. It does not appear from competition for this purpose is neither the minutes of the meetings of the unusual nor discriminatory. The Selection Board for competition distinction between the different fields COM/A/268 that English was accepted reflected the necessity for providing in the language test. This could not in separate but uniform reserves which any case amount to discrimination could be drawn upon according to the against candidates in other competitions nature of the posts to be filled. The nor against the applicants who did not notice published by the Administration enter for competition COM/A/268. in the 'Staff Courier' No 216 for 26 June In their Reply the applicants object that 1972 in no sense constituted a single list the Commission does not formally deny of suitable condidates; it merely gave the that English was used, while sheltering results of the different competitions in behind the minutes which make no alphabetical order, showing clearly in mention of that fact.

JUDGMENT OF 1. 10. 1974 — JOINED CASES 112, 144 AND 145/73

mandatory. The provision of this the plan merely to draw up a list opportunity does not limit the chances containing a reduced number of suitable of success of candidates in other candidates, the accent therefore being competitions. placed on recruitment by way of external competitions, the Commission 4. The applicants fourthly complain that violated the rule patere legem quam ipse the Commission changed the original fecisti. The reduction in the number of purpose of the disputed competitions by successful candidates and the consequent giving the chairmen and members of the infringement of Article 5 is not to be Selection Boards instructions to limit, so explained by considerations of force far as possible, the number of suitable majeure but by deliberate intent. candidates included on the list, with a Moreover, this manipulation of the view to allowing further recruitment by marks was the subject of a way of external competition. This was memorandum dated 31 May 1972 especially apparent from the fact that the addressed by Mr Lahnstein, Chef de chairman of Selection Board COM/A/ Cabinet to Mr Haferkamp, to Mr 268 suggested to his members the Cardon de Lichtbuer, Chef de Cabinet to systematic reduction of the candidates' Mr Coppé, and transmitted by the latter marks, a suggestion which the members to Mr Lambert, Director-General of of the board refused to follow, which Personnel and Administration.

But it does not follow that there was any contain at least twice as many names as obligation to admit candidates who were the number of posts to be filled. The not qualified or who were insufficiently instructions for the adoption of a qualified. That would be a false and restrictive policy in the drawing up of tendentious view of the Commission's the list of suitable candidates constitute a intentions. Nothing in the notices to the misure of powers. staff (especially those appearing in the The Commission rejects this complaint, 'Staff Courier' No 173a for 30 June pointing out that under the terms of 1971, No 174 for 13 August 1971, and Article 5, paragraph 5, of Annex III to No 183a for 3 November 1971) supports

the imputation of misuse of powers on complaint rests only upon statements the part of the Commission and that are unproven and incorrect. All violation of the principle patere legem candidates who obtained 48 points quam ipse fecisti. As for Mr Lahnstein's according to the Selection Boards' memorandum of 31 May 1972, the assessments were included on the list of Commission is opposed to the use by suitable candidates and the Boards were the applicants of memoranda or even independent and autonomous in this correspondence exchanged between high respect. officials which were not intended for the Concerning the hearing of witnesses, and applicants.

6. The Commission notes that the post from among accepted candidates, being in his opinion unacceptable as a applicants claim, in the alternative, the criterion for determining the fitness of annulment of the procedure of these candidates. As a result of this competitions COM/A/264 and COM/A/ memorandum Mr Cardon de Lichtbuer 265 and the re-opening of the suggested some liaison between the competition insofar as concerns them. In Administration and Mr Krause, the the Commission's view, it is not clear chairman of one of the Selection Boards, how such a course would be possible, who also took the chair at the so-called since any irregularity involves the total 'harmonization' meetings. annulment of the competition, at the risk otherwise of impairing the equality It was apparent from this exchange that there was not a numerus clausus and among candidates. that the Selection Boards acted quite The applicants reject this statement, independently. pointing out that the competitions were not 'competitions' in the strict sense, that The applicants also claim a 'mani is to say comparative eliminatory tests, pulation of marks', Orders were al but rather examinations simply to legedly given, with a view to reducing establish the level of ability. the number included, to reject candidates who obtained between 48 and 52 points, The Commission is also opposed to the as appears clearly from the minutes of claim for the annulment, insofar as the meeting of the Board for competition necessary, of the appointments made as COM/A/268, where the chairman's a result of the annulled competitions. recommendations to this effect were The applicants reply that if the rejected and whence it can be inferred competitions are considered to be that similar recommendations were vitiated by reason of illegality the accepted by the other Boards. As a result resulting appointments must be so also. of the said manipulations, the applicant Second Part: Submissions special to the Campogrande's score in the tests was various applications. reduced from 52 to 47, while other candidates who had obtained between A — Application 112/73, Campogrande

JUDGMENT OF 1. 10. 1974 — JOINED CASES 112, 144 AND 145/73

B — Application 144/73, De Vlees later, and that a time-lag in chauwer, and 145/73, Bouyssou communicating with candidates was, in any case, inevitable, given the large number of candidates which made it 9. The applicants De Vleeschauwer and Bouyssou claim that irregularities took necessary to spread the oral tests over place during the course of the written several days. test. The chairman of the Selection The applicant replies that the inevitable Board informed the candidates that the inequalities resulting from the nature of test mentioned under III (1) of the notice the competitions cannot include the of competition, the drafting of a staff more or less deliberate disparities due to memorandum or the minutes of a the intentions or inadequacies of the meeting on subjects to be determined by

rejecting her request. She further staff memorandum or the minutes of a submitted a complaint registered at the meeting necessarily includes a critical Commission's Secretariat under No 527, summary, i.e. an assessment, when it is based on the same grounds. This required of candidates for posts in remained for the period laid down in category A. In each case the correction Article 90 (2) of the Staff Regulations, of the candidates' tests was carried out which is thus equivalent to an implied by two different examiners, all rejection and which is also challenged in examiners being supplied with the same the present application. documents informing them of the criteria to be observed in assessment. The Commission objects that in its judgment dated 8 May 1973 (Case The applicants reply that, leaving aside 60/72, Campogrande v Commission, the question of what may be relevant to E.C_R_ 1973, p. 489), the Court has the drafting of the minutes of a meeting, already declared inadmissible the the text of a notice of vacancy is binding application directed against Mr Coppé's upon the Selection Board in the same letter of 11 July 1972, since the way as upon the candidates.

The Commission replies that the minutes reprehensible. The applicants' allegation of a meeting cannot be reduced to a bare is in any case unsupported by evidence. summary and that both the instructions According to the applicants, superiors to candidates and the further expla who find themselves in the position of nations provided at the time of the having helped certain of their subor written test made abundantly clear the dinates to prepare for a competition kind of work required of the candidates. ought to refuse to sit on the Selection

competition. The Commission rejects working in the field concerned was the this argument ex post facto. same for all specialist fields. The addition of the 'Use of Energy' option was made 11. It is claimed to be a matter of only 9 days after the announcement of common knowledge that three candi the options for the oral test appearing in dates for competition COM/A/268 the 'Staff Courier' No 186 dated received intensive coaching for that 3 November 1971, the closing date for competition from Mr Ries, Head of the submission of entries remaining Division, and Miss Hoeller, who both fixed for 22 November 1971.

JUDGMENT OF 1. 10. 1974 — JOINED CASES 112, 144 AND 145/73

The In its Rejoinder the Commission stresses applicant replies that what matters is that the other candidates had more time the provisional and purely informative character of Mr Coppé's notice which at their disposal. appeared in the 'Staff Courier' No 173a. As to the complaint concerning the It denies that there was any bibliography, the Commission again discrimination over the bibliography, refers to the applicant's knowledge of since the applicant was left ample time German and French. The applicant to prepare his chosen option. states in rebuttal that responsibility lies with the Commission since one of its

The Commission points out the confusion in (b) Instructions to candidates, for the the applicant's argument: he claims first same written test, were first given in that it would be in his interest to French, to the disadvantage of translate into French rather than into his candidates who were not French- mother tongue and then complains that speaking; he was compelled to study certain documents in the French version only. (c) The recommended bibliography included an internal Commission After closing the written procedure the document, which was originally Court asked the parties to supply certain written in German and also existed supplementary information and to in a French translation but of which produce certain documents. there was no Dutsch translation; Miss Bouyssou, the applicant in Case (d) For the language test, candidates 145/73, was invited to explain her who had received their summons in present interest in the annulment Dutch had to translate into their requested, in view of her appointment to mother tongue, whereas other a post at grade LA 7 with the Council. candidates who had chosen to take She pointed out that she had not yet the competition in another language been established in the Council's

became necessary as a result of the appointment of successful candidates, judgment of the Court of Justice of 22 ensuring that posts correspond not only March 1972 in Case 78/71, Costacurta v with the abilities noted in the personal Commission (Rec. 1972, p. 163) and that file or personal information but also it was anxious to abide most strictly by with the specialist branch chosen. the precepts in that judgment. In the present case the candidates In the case of competitions COM/A/264 included on the list of suitable to 268 which, at the time that judgment candidates were qualified for appoint­ was given, had already reached the stage ment to vacant posts corresponding to of the written tests, the Commission had their training and experience. Exact a choice of two solutions: correspondence between the qualifica­ tions of candidates and each of the — to annul the notices of competitions, vacant posts is of course unobtainable. publish new ones and recommence the entire procedure, although the Examination of the lists of appointments latter had been carried out under of successful candidates in the conditions such that the age of the competitions in question to specific posts candidates could have no signifi­ shows that in no case was a candidate cance, and all this for the sole appointed to a job which did not purpose of fulfilling a purely formal correspond to his aptitudes as requirement, when no Selection established by the Selection Boards. Board had excluded a candidate from admission to the competition The Commission produced the following on grounds of age; documents required by the Court: — to explain the reasons for not — the communication from Mr including a specific age limit in the Commissioner Coppe following the notices of competitions. Thus the meeting on 21 January 1971; current procedure could continue without any discrimination resulting, — the memorandum from the Director- the Commission having made it clear General, Mr Lamberto Lambert, that it did not wish to make any dated 16 June 1971; distinctions based on the age of the — the memorandum from Mr candidates. Lahnstein, Chef de Cabinet to Mr The detriment which would have been Commissioner Haferkamp, to Mr caused both to the Commission and to Cardon de Lichtbuer, Chef de the candidates by recourse to the first Cabinet to Mr Coppe; also Mr solution encouraged the Commission to Cardon de Lichtbuer's letter prefer the second. forwarding that memorandum to Mr The Commission was also invited to Lamberto Lambert and the reply of explain its method of recruitment after Mr Krauss, chairman of Selection drawing up a so-called general reserve. Board COM/A/264;

This claim is completely covered by the main object of the applications. 4

Since these applications relate, to a large extent, to the same facts and are 5 supported by identical submissions, it is appropriate to deal with them in a single judgment.

At its session on 22 July 1971 the Commission discussed, for the purpose of 6 constituting a reserve for future recruitment to posts in the career bracket A 7/A 6, the organization of internal competitions on the basis of qualifications and tests, whereby those entered on a list of successful candidates — according to the applicants — or on several such lists —

CAMPOGRANDE AND OTHERS v COMMISSION

according to the defendant — would be entitled to be appointed to vacant administrative posts and thereby move to another grade.

7 The minutes of this meeting mentioned, inter alia, that they were 'promotion competitions for officials in category B', that six competitions, specialized according to subject, would be organized to cover all the different sections of the Commission and that procedure would be laid down ensuring the harmonization of the criteria to be followed by the various Selection Boards.

JUDGMENT OF 1. 10. 1974 — JOINED CASES 112, 144 AND 145/73

14 It is proper to consider these submissions first.

I — Submissions common to the three applications

15 The applicants state in the first place that all the competitions in dispute are vitiated by illegality by reason of the fact that the Commission did not harmonize the criteria to be used by the various Selection Boards and the conditions of the tests, as it ought to have done, having regard to the fact that it was really a single competition or at least the competitions were to result in a single list of suitable candidates, since it was intended to constitute a single reserve for future recruitment.

16 Discrimination had therefore arisen, in particular to the detriment of the applicants, between candidates in certain competitions in relation to candidates enrolled in others.

17 Further, as regards their legality, these competitions must, for the same reasons, be dealt with as a whole, so that irregularity in one — to the advantage of certain candidates — would involve the illegality of all.

23 Finally it found expression in the constitution of a committee composed of members of the various Selection Boards, which met twice before the tests took place for the purpose of planning the work of the Selection Boards and once afterwards to harmonize the marks to a certain extent, of a working party which laid down instructions to be given to the markers, all for the purpose of achieving, while respecting the independence of the Selection Boards, lists of suitable candidates 'of comparable quality'.

24 The Commission, while seeking to harmonize to a certain extent the tests in question, was entitled, as it has done, to organize different competitions leading to different lists of suitable candidates to meet the requirements to provide for different duties, although all relating to the post of administrator, subject nevertheless to the condition that only officials who had been successful at a competition in a sphere relating to the duties to be performed would as a result be promoted.

25 It appears from a comparison of the subjects chosen by the candidates with the notices of vacancies to which they have subsequently been promoted that such was the case, at least in the great majority of cases.

26 If in certain cases the necessity for such correspondence has been disregarded, it does not follow that the competitions are illegal but only that the regularity of these promotions would be doubtful.

27 The Selection Board of each competition therefore had to reconcile the advisability of harmonizing to a certain extent the test conditions and the necessity to judge, according to the appropriate criteria, the experience of the candidates for the purpose of performing the duties for which success at the competition selected marked them out.

33 Their indication of evidence in this respect must therefore be rejected as irrelevant to the case.

34 The applicants allege in the second place that the competitions were "conceived and organized, not in the interests of the service, but for the purpose of advancing certain specific candidates.

35 In spite of the seriousness of this allegation, there has been no evidence nor indication of evidence in support of it and therefore it must be rejected.

CAMPOGRANDE AND OTHERS v COMMISSION

36 The applicants further state that the competitions are vitiated by misuse of powers in that, although they were conceived as 'promotion competitions' mainly to open admission to category A for officials of category B, pressure was subsequently exerted on the Selection Boards to induce them to be more severe so as to restrict the number of successful candidates and thus make possible a larger recruitment by means of external competitions.

37 The provision of reserves for future recruitment is a factor in the recruitment policy of the appointing authority.

candidates entered on the list of suitable candidates from this competition is much higher than in the others.

43 They infer that the Selection Boards in the other competitions and in particular those in the competitions in which they participated, complying with the directions, altered the marks.

44 In support of this allegation the third applicant stated that a member of the Selection Board COM/A/264 told a third person that the applicant had been successful in the competition, whereas it appeared subsequently that her mark was 47.

45 The first applicant states for her part that her marks were reduced from 52 to 47 by the Selection Board COM/A/264.

46 The applicants indicate oral testimony of the facts which they state.

47 It appears from a comparative examination of the results of the different competitions that the proportion of successful candidates may be set out in a decreasing order as follows: 55 % (COM/A/268: 28 out of 51); 30.9 % (COM/A/264: 17 out of 55); 21.2 % (COM/A/266: 12 out of 44); 20.5 % (COM/A/267: 8 out of 39) and 15.7 % (COM/A/265: 10 out of 64).

52 The same would apply to the fact, if it were established, that the marks of certain candidates had been reduced during the deliberations.

53 Moreover, the examination of ability which Selection Boards must undertake is above all of a comparative nature and, for this reason, covered by the cloak of secrecy inherent in such deliberations, so that they cannot be subjected to control by the Court except in the event of obvious infringement of the rules which govern the proceedings of Selection Boards.

54 Since this is not so in the present case the submission must be rejected.

55 The applicants also maintain that the procedures of competition were irregular by reason of the fact that, in infringement of Article 1 (g) of Annex III of the Staff Regulations 1968, the notices of competition dated 3 No­ vember 1971 do not contain an age limit.

56 This provision, as it stood before its amendment by Article 48 of Regulation No 1473/72 of 30 June 1972, (OJ L 160 of 16. 7. 1972, p. 10), required the mention, in the notice of competition, of the age limit as well as the extension of this limit as regards officials who have completed not less than one year's service.

JUDGMENT OF 1. 10. 1974 — JOINED CASES 112, 144 AND 145/73

63 Following the production, during the oral procedure, of the minutes of the meeting of 22 July 1972, at which the organization of the competitions in question were being considered by the Commission, the applicants put forward additional considerations among which it is possible to discern three new submissions.

64 They state that at the meeting reference is made to six competitions whereas only five were organized, that it indicates that the competitions were to be reserved for officials of category B whereas officials of the LA service took part, and finally that each candidate was to have a card giving his particulars

CAMPOGRANDE AND OTHERS v COMMISSION

which was to be made out by the administration and not by the candidates, as was the case.

65 According to the applicants this involved irregularities vitiating the legality of the competitions in question.

66 Without dealing with the question of whether, at this stage of the procedure, the production of new submissions is admissible, it is right in the first place to observe that the decision on the organization of the competition takes its legal and final form from the notices of competition brought to the notice of the personnel.

JUDGMENT OF 1. 10. 1974 — JOINED CASES 112, 144 AND 145/73

the officials of other categories, fulfilling the conditions of admissibility, would have been objectionable.

73 The minutes contain no reference enabling the conclusion to be drawn that the cards with the particulars of the candidates could not be completed by the candidates.

74 The submissions must therefore in any event be rejected.

II — Submissions special to the various appli­ cations

Application 112/73, Campogrande

80 Further, the documentation communicated by the letter of acceptance for the tests concerned only the oral tests which took place from 10 to 28 April 1972.

81 The refusal with which she was at first confronted having been withdrawn at her request, the applicant is no longer entitled to challenge under this heading the legality of the competition in which she voluntarily took part.

Applications 112 and 145/73, Campogrande and Bouyssou

82 The applicants Campogrande and Bouyssou state, and indicate evidence, that a candidate in competition COM/A/264 was able to take the language test in English.

83 Even if this is so it does not appear that it was taken into account by the Selection Board in its comparative assessment, since the candidate in question was not entered on the list of suitable candidates.

Applications 144/73 and 145/73, De Vleeschauwer and Bouyssou

89 Although the 'drafting' of a staff memorandum or minutes of a meeting does not necessarily involve a critical assessment, it does not however exclude it, and a call upon the critical faculty of candidates for a post in category A should not so surprise them as to constitute an irregularity involving the annulment of the competition.

Application 144/73, De Vleeschauwer

90 The second applicant notes further a series of points of detail relating to the preparation of competition COM/A/265 or to the conduct of the tests.

91 He refers to the inclusion, subsequent to the notice of competition, of an additional option relating to the use of energy, to irregularities in the provision of information as to the bibliography to be consulted by candidates and to differences of a linguistic nature in the course of tests.

92 The late inclusion of a new option cannot be discriminatory except as regards candidates who have chosen this option, which is not the case with the applicant.

93 The irregularity in the information as to the bibliography consists in the fact that there was reference to an internal document of the Commission which exists only in French and German.

98 The applications must therefore be rejected.

Costs

99 The applicants have failed in their applications.

100 By Article 69 (2) of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs if they have been asked for in the successful party's pleading.

101 Nevertheless, under Article 70 of the Rules of Procedure, in proceedings brought by servants of the Communities, institutions shall bear their own costs.

On those grounds,

Delivered in open court in Luxembourg on 9 October 1974.

A. Van Houtte C. Ó Dálaigh Registrar President of the First Chamber

OPINION OF MR ADVOCATE-GENERAL WARNER

DELIVERED ON 9 JULY 1974

My Lords, officials qualified in a particular field, as follows: — On 3 November 1971 the Commission COM/A/264 — Legal and administra­ published five notices of internal tive, competition which were, except in one respect, in the same terms. Each notice COM/A/265 — Economic, stated that the competition to which it COM/A/266 — Finance and accoun­ related would be on the basis of both tancy, qualifications and tests and that it would COM/A/267 — Social, have as its purpose the constitution of a COM/A/268 — Agricultural and tech­ reserve for the future recruitment of nical. administrators in grades A 6 and A 7. There is no doubt that the main object Within each field candidates were given of the Commission in holding these a choice of subjects (referred to as competitions was to open up careers in 'options') on which, as part of the tests, category A to seasoned category B they could offer to be examined orally. officials on its staff. The publication of these notices of The difference between the notices lay in competition resulted from a decision the descriptions they contained of the taken by the Commission at a meeting duties to be performed by the successful on 22 July 1971. The relevant extract candidates. Each competition was for from the minutes of that meeting has