C-31/75
ECLI:EU:C:1975:167
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JUDGMENT OF THE COURT (FIRST CHAMBER) OF 4 DECEMBER 1975 1
Mario Costacurta
v Commission of the European Communities
Case 31/75
Summary
1. Officials — Recruitment — Consideration of applications Selection Board — Obligations (Staff Regulations of the EEC, Annex III, Article 5)
2. Officials — Recruitment — Consideration of applications Experience — Equivalence to a degree — Comparison — Method (Staff Regulations, Article 5, Annex III, Article 5)
1. The Selection Board must support comparison between the level of with sufficiently clear reasons the experience of a candidate and the results of matching the qualifications level corresponding to completed offered by the candidates against the studies cannot justify the lack of any qualifications required by the com attempt to make a more precise petition notice. analysis nor the lack of any additional 2. The difficulty inherent in a criterion of selection.
In Case 31/75
MARIO COSTACURTA, official of the European Communities, residing at 24 avenue de l'Arsenal, Luxembourg, represented by Ernest Arendt, Advocate, with an address for service at 34 B/IV, rue Philippe-II, Luxembourg,
applicant, v
COMMISSION OF THE EUROPEAN COMMUNITIES, represented by its Legal Adviser, Thomas F. Cusack, acting as Agent, with an address for service in Luxembourg at the office of its Legal Adviser, Mario Cervino, Bâtiment CFL, place de la Gare, defendant,
1 — Language of the Case: French.
JUDGMENT OF 4. 12. 1975 -CASE 31/75
Application for the annulment of the decision of the defendant of 27 June 1974 rejecting the applicant's candidature for the internal competition for the reserve list COM/A/15/73 and the decision of rejection contained in the letter from the defendant dated 13 January 1975 in respect of the administrative complaint made by the applicant on 22 August 1974.
THE COURT (First Chamber)
composed of: A. M. Donner, acting President, J. Mertens de Wilmars and A. O'Keeffe, Judges,
Advocate-General: J.-P. Warner Registrar: A. Van Houtte
gives the following
JUDGMENT
Facts
The facts and arguments put forward by After having applied to take part in the the parties in the course of the written internal competition COM/A/15/73 procedure may be summarized as organized to draw up a reserve list of follows: administrators in the Career Bracket A 7/A 6 he was informed by letter dated 27 June 1974 that he had not been put I — Facts and written procedure on the list of suitable candidates drawn up by the Selection Board. In reply to his The applicant has an Italian secondary enquiry the Commission informed him school leaving certificate (classics) and on 5 August 1974 that the reason for the attended a course for two years at the refusal was the 'lack of a university French Conservatoire des Arts et Métiers. degree and lack of professional He entered the employment of the High experience of an equivalent level'. It Authority of the ECSC on 1 August 1966 added:
as an. auxiliary servant in the Publications Office; he was established in Grade C 3 The level of your professional experience on 1 October 1968. has been measured against the criterion of the qualifications of an official who After being transferred at his request to has received a university education, the Directorate-General of Personnel in supported by a degree, and is engaged in July 1971, he was once again appointed performing duties appropriate to in the Publications Office as Assistant in Category A within the meaning of Grade B 3 with effect from 1 June 1972. Article 5 of the Staff Regulations'.
COSTACURTA v COMMISSION
On 22 August 1974 the applicant made a The defendant contends that: complaint under Article 90 of the Staff 1. The admissibility of the application Regulations. On 13 January 1975 he should be left to the Court's received the reply that the Commission discretion; did not propose to express a view as to 2. The Court should declare the the worth of the reasons given by the application unfounded on all grounds selection board. and therefore dismiss it; 3. The Court should order the applicant to bear the costs. The applicant thereupon brought the present application which was registered at the Court Registry on 18 March 1975. Ill — Submissions and arguments of the parties The written procedure followed the normal course. Upon hearing the report (a) Admissibility of the Judge-Rapporteur and the views of the Advocate-General, the Court (First In its defence the Commission says that Chamber) decided to open the oral the action may be contested as procedure without any preparatory inadmissible since the Court decided in inquiry. the judgment of 14 June 1972 (Case 44/71, Marcato v Commission, Rec. 1972, p. 427) that the only relief which II — Submissions of the parties parties have with regard to such decisions of Selection Boards is to bring the matter The applicant claims that the Court before the Court without a preliminary should: complaint to the Commission. The 1972 1. Rule that the present application is revision of the Staff Regulations which admissible; makes an application to the Court subject to the complaint procedure being 2. Rule that it is well founded. pursued before action, does not reverse — In the first place: the rule established by the case-law, since Rule that the Selection Board or the Commission does not have the power the Commission, as the case may to alter or annul a decision of a Selection be, has infringed Article 25 of the Board, the independence of which is Staff Regulations and Article 5 of enshrined in the Staff Regulations Annex III thereto; themselves. Rule that the Commission has been guilty of a misuse of powers Moreover, the matter should be brought in refusing to acknowledge that before the Court within the three months the applicant possesses experience provided for in Article 91. In the present at a level equivalent to a university case this time-limit has not been degree; observed. Consequently, annul the decision taken and refer the matter back to the Commission: The applicant in reply says that in making an administrative complaint to — In the second place: the Commission he was acting in ac Permit the applicant to prove by cordance with the case-law of the Court all legal means and in particular confirming a practice adopted by officials by the hearing of witnesses or by which itself has been raised to a rule of an expert's report that he possesses law by the wording of the new Article 91 experience at a level equivalent to of the Staff Regulations which stipulates a university degree; that 'An appeal to the Court of Justice of 3. Order the defendant to pay the costs. the European Communities shall lie only
JUDGMENT OF 4. 12. 1975 -CASE 31/75
if the appointing authority has previously and significance of the second. The had a complaint submitted to it pursuant competition in question was organized to to Article 90 (2) within the period provide a reserve list for posts in Career prescribed therein, and the complaint Bracket A 7/A 6 in the fields of 'Printing has been rejected by express decision or and Publishing'. The candidate in by implied decision'. possession of a university degree or having equivalent practical experience The defendant in rejoinder says that needed in addition to have experience although in Case 37/72, Marcato v appropriate to the duties. To be in a Commission ([1973] ECR 361), the Court position to compare the level of as an exceptional measure accepted the experience with the intellectual admissibility of the application, this was attainment of a person in possession of a on grounds of fairness which do not university degree, the Selection Board necessarily apply in the present case compared the level of the non-university brought two years after the said judgment candidates and the qualifications of an was given when the precedent official, considered in the abstract, in established by it was well-known if not possession of a university degree and common knowledge. performing certain administrative and advisory duties. The Selection Board had (b) The substance of the case stated in its statement of reasons how in its view the applicant did not fulfil the 1. The first submission: infringement of conditions for admission to the tests. The Article 25 of the Staff Regulations and established case-law of the Court Article 5 of Annex HI to the Staff confirms that it is not at all necessary to Regulations set out 'reasons for reasons' and that even a summary statement of reasons, The applicant claims that he was provided that it is clear, is sufficient to rejected at the first stage of the satisfy the requirements of Article 25 of competition, the examination of the the Staff Regulations. applications, contrary to the requirements laid down by the Court in Even an official having 'advisory' duties the aforesaid Case 44/71 according to of the kind described in the report on which 'since these (qualifications) must the applicant covering a period of two be matched on the basis of objective facts years only cannot claim to have the level which are moreover known to each of experience equivalent to a university candidate in his own case, the results degree. Before he was promoted to must be supported by sufficiently clear Category B (in June 1972) the duties of reasons' and the Commission cannot the applicant were those of an operator. merely indicate 'the qualifications in While he was attached to the which the applicant was considered to be Directorate-General of Personnel he deficient'. continued to receive a special fixed allowance which implies that his work Article 25 of the Staff Regulations and was at least 50 % that of a typist. The Article 5 of Annex HI to the Staff duration of his duties in Category B, Regulations are infringed since the which were obviously insufficient to experience of the applicant was com compensate for the absence of a parable to that of the other candidates university degree, could not therefore be admitted. taken into account by the Selection Board.
The Commission in answer says that the applicant criticizes only the first The applicant in reply says that the paragraph of the statement of reasons in second paragraph of the decision of the question and is disregarding the scope Selection Board, like the first, is neither
COSTACURTA v COMMISSION
factually nor in law a sufficient statement The defendant states that Mr Mendosa of reasons according to the established has been in Category B since 1970, after case-law of the Court. The defendant has having been a free-lance proof reader simply referred to Article 5 of the Staff from 1967 to 1970. It appears from his Regulations without mentioning the report that since summer 1972 he has criteria which could have guided it. joined in the preparation for publication of agricultural rules, a fact which no The Commission in rejoinder says that doubt influenced the Selection Board. the 'particular criteria' desired by the applicant are not very important in the As regards Mr Sergio, who was put on the present case. It was an internal local staff of the Commission on 9 competition in a quite restricted field October 1967, at the time when he made open in principle to staff in Category B application for the competition in whose experience is with difficulty question he had been a clerk for three comparable to a university degree. The years with a local authority in Italy, a Selection Board refrained from laying compositor or operator for four years in down in advance criteria for assessing the the printing works, three years in various experience of these candidates in terms administrative functions in the sphere of solely of the length of this experience. printing and publication and six months Nor did it establish a priori other criteria as a proof reader. His experience was of assessment such as the quality of the thus greater than that of the applicant. It experience or the extent to which it is true it would seem difficult to compare corresponded with the qualifications of his experience with the knowledge of a an official in possession of a university holder of a university degree, but the degree which would comprise in defendant is not qualified to answer for themselves only factors of value- the Selection Board which did not have judgments which in their turn would not to give reasons for its 'favourable' have been capable of resolving the decisions. The fact that the Court might problem of the difficult matching of a consider the admission of Mr Sergio to level of experience against the knowledge the competition to be improper is not of a person in possession of a university capable of vitiating the whole of the degree. competition procedure on the ground of nullity nor of adversely affecting the 2. Second submission: misuse of powers applicant who objectively had no possibility of being admitted to the The applicant claims that the large competition. majority of the candidates at the competition in question did not have a The applicant in reply says that he fulfils university degree. the criteria to which the Commission refers.
The applicant had taken part in the internal competitions 152/70 and B 76 a) Criterion of the general nature of for the employment of assistant proof the qualifications required to be an readers in Grade B 3/B 2 to which Messrs official in Category A Mendosa and Sergio, likewise officials in the Publications Office and not in In accordance with the notice of possession of university degrees, were competition it appears from the admitted at a lower grade than his. applicant's report that he was, like Mr Nevertheless these officials were allowed Mendosa, 'an official having advisory to take part in the competition in duties required, subject to general question and the administration thereby directions, to perform difficult and recognized that the applicant had complex tasks in connexion with sufficient experience. printing'. The Selection Board did not
JUDGMENT OF 4. 12. 1975 -CASE 31/75
specify the duration of practical proof reader, his experience was very experience to be regarded as equivalent inferior to that of the applicant who, to a university degree. Moreover the during the same period, had totalled five Court recognized in Joined Cases 18 and years as operator and three years as 19/64, Alvino and Others v Commission, assistant proof reader. [1965] ECR 789 at p. 798, that: Finally, although Messrs Sergio and The fact that a candidate performs Mendosa were not successful in the activities in his employment at a level competition in question, this did not comparable to those performed by an mean that it would have been the same official who has received a university for the applicant. education, supported by a degree, and who is engaged in performing duties Finally, the competition cannot consti appropriate to Category A within the tute a legal basis for acts of appointment meaning of the Staff Regulations is in and promotion. itself proof that .
. . the official . . . possesses . . . experience in employment The defendant in rejoinder says that it is equivalent. . .' clearly stated in the second paragraph of Article 5 (1) of the Staff Regulations that Finally, the applicant rejects the the duties in Category A are not only defendant's argument based on the fixed advisory but '. . . administrative and allowance. (advisory) duties which require university education or equivalent practical (b) Criterion of the duties relating to the experience'. posts to be filled The assessments contained in a periodic Only the candidate Beltrano was rejected report relate solely to the official for lack of experience appropriate to the concerned and his personal and duties; the applicant is not therefore in individual merits. It follows that the this category. applicant cannot infer from this assessment any opinion on the nature of (c) Criterion of the relationship between the duties which he is performing or the experience acquired and the field even less on the level, quality or extent of 'Printing and Publication' experience acquired in the performance The applicant's practical experience is of these duties. The duties of proof comparable with, if not superior to, that reader come exclusively under Category of the other candidates: he took up B. Those of operator/compositor under employment with the Publications Office Category C. The experience acquired by one and a half years before Mr Mendosa the applicant in the performance of his began there as a freelance. Their careers duties as operator/compositor cannot in were identical after they were both any way be taken into account as appointed to Grade B 3 on the same day. qualification to admission to a com Moreover, all the assistant proof readers, petition intended to fill posts of Cate including the applicant, and not only Mr gory A. Mendosa, took part in the preparation of The defendant did not seek to contest
regulations. that the applicant had '. . . certain As for Mr Sergio, who was appointed to experience appropriate to the duties', but Grade B in 1973 and who, when he the fact must not be lost sight of that this made application to take part in the is the second of the two conditions for competition in question, had spent four admission to the tests, quite separate years as a compositor or operator in the from the first. It appears from the printing works and only six months as a Selection Board's decision that it
COSTACURTA v COMMISSION
excluded the applicant solely because he certain degree of responsibility before his did not satisfy the first condition for appointment as assistant proof reader admission. The fact that the applicant (Grade B 3) in the Publications Office. was successful in 1967 in a competition He has been in Category B since for posts in Category B is irrelevant. September 1972.
The applicant's experience is neither Moreover, when applying for the comparable nor superior to that of the competition in question, the applicant other candidates admitted to take part in had experience as an assistant proof the tests. Until 1971 it was only clerical. reader for approximately two years and On the other hand, Mr Mendosa began not three years. His appointment to the in 1967 as a freelance proof reader, a task office as assistant proof reader took effect which the applicant did not perform on 1 June 1972. The time-limit for until his appointment to Category B in making application to take part in the June 1972. As for Mr Mendosa's taking competition in question expired on 25 part in the preparation of agricultural February 1974 and the competition took regulations, proof readers in place during June and July of the same 'publications' (to which the applicant year. belongs) do not take part in the preparation of regulations save in so far Oral observations were made by the as these are published in publications applicant, represented by Mr Decker, other than the Official Journal or, of Advocate of the Luxembourg Bar, and course, after their publication in the the Commission, represented by Mr Journal. Cusack, at the hearing on 30 October 1975.
As regards Mr Sergio, he spent three years with Directorate-General IX in The Advocate-General delivered his Brussels (1970-1973). His experience was opinion at the hearing on 20 November varied there and apparently embraced a 1975.
Law
1 The application filed at the Court Registry on 18 March 1975 seeks the annulment of the defendant's decision of 27 June 1974, confirmed by letter on the following 5 August, informing the applicant that the Selection Board had excluded him from the competition COM/A/15/73 organized to draw up a reserve list of administrators in Career Bracket A 7/A 6 to fill posts in this career bracket in the 'Printing and Publishing' field and the rejection arising from the Commission's letter of 13 January 1975 of the administrative complaint submitted by the applicant on 22 August 1974.
Admissibility
2 The defendant contests the admissibility of the application on the ground that it was not made within the period prescribed by Article 91 of the Staff Regulations.
JUDGMENT OF 4. 12. 1975 -CASE 31/75
3 The amendment of the Staff Regulations in 1972 did not revoke the rule that the only recourse which persons concerned have with regard to such decisions is to bring the matter before the Court without making a prior complaint to the Commission since the latter does not have the power to alter or annual a decision by a Selection Board.
4 Reasons of fairness laid down by way of exception in previous cases cannot prevail when the said rule is well established, if not common knowledge.
5 However since in the present case the events took place when the new Staff Regulations were applicable, it would be contrary to the rules of fairness to hold it against the applicant for having followed the procedure clearly laid down in Articles 90 and 91 as amended.
6 During the oral procedure the Commission complained that the applicant had not submitted his complaint to it until the Selection Board, having finished its work and submitted its report to the appointing authority, was functus officio.
7 However it was for the Commission to forward to the Selection Board the first
request for an explanation sent to it by the applicant on 28 June 1974, that is to say, before the tests took place.
The substance of the case
8 The applicant claims that in not giving a sufficient statement of the reasons for the decision to exclude him from the competition in question, the Selection Board infringed Article 25 of the Staff Regulations and Article 5 of Annex III.
9 The report by the Selection Board and the letter in confirmation from the defendant dated 5 August 1974, mentioning 'the lack of a university degree and equivalent experience' and some experience appropriate to the duties, was simply referring to Article 5 of the Staff Regulations without stating sufficiently precise criteria.
COSTACURTA v COMMISSION
10 The task of the Selection Board consists of at least two separate stages, the first being an examination of the applications in order to select the candidates admitted to the competition and the second being an examination of the abilities of the candidates for the posts to be filled in order to draw up a list of suitable candidates.
11 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 notice of competition.
12 Since these must be matched on the basis of objective facts which are moreover known to each candidate in his own case, the results must be supported by sufficiently clear reasons.
13 This was not so in the present case, since the report by the Selection Board and the letter from the Administration of 5 August 1974 were limited to saying 'the level of your experience has been ... measured against the criterion of the qualifications of an official who has received a university education, supported by a degree, an is engaged in performing duties appropriate to Category A within the meaning of Article 5 of the Staff Regulations'.
14 The difficulty inherent in such a comparison cannot justify the lack of any attempt to make a more precise analysis nor the lack of any additional criterion of selection.
15 The competition COM/A/15/73, however, was intended to constitute a reserve list for the recruitment of administrators in Career Bracket A 7/A 6.
16 Therefore the exclusion of the applicant from the list of candidates did not affect the admission to the list of the persons selected by the Selection Board as fulfilling the conditions listed in the notice of competition.
17 The rights of the applicant will be sufficiently protected if the Selection Board reconsiders the question of the applicant's suitability for being included in the list of candidates and if such be the case it admits him to the
JUDGMENT OF 4. 12. 1975 -CASE 31/75
competition without the selection already made by the Selection Board being affected.
18 It suffices therefore to annul the decision of the Selection Board to exclude the applicant from the competition and the Commission's decision rejecting the administrative complaint made by the applicant on 22 August 1974.
19 Since the applicant has succeeded on the first submission in the application, it is not necessary to examine the second.
Costs
20 Under Article 69 (2) of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs.
21 The Commission has failed in its submission and must therefore pay the costs.
On those grounds,
THE COURT (First Chamber)
hereby:
(1) Annuls the decision of the Selection Board in competition COM/A/15/73 not to admit the applicant to the competition and the decision contained in the Commission's letter of 13 January 1975 rejecting the applicant's complaint;
(2) Orders the Commission to bear the whole of the costs.
Donner Mertens de Wilmars O'Keeffe
Delivered in open court in Luxembourg on 4 December 1975.
A. Van Houtte A. M. Donner
Registrar Acting President