C-73/76

1. An unauthorized disclosure of the cannot throw doubt on the regularity decision of a selection board does not of the decision. constitute a sufficient reason for 2. In considering whether a candidate annulling that decision if it is not possesses experience equivalent to a capable of affecting the guarantees as university degree the selection board to the regularity of the proceedings of must base its assessment on objective the board. In any event if the secrecy facts such as the nature of the is only violated at a moment when the applicant's duties and the length of decision of the board has been taken, time during which he has performed them. such a failure to comply with the provisions of the Staff Regulations

In Case 73/76

MARIO COSTACURTA, an official of the European Communities, residing at 12 Montée de la Pétrusse, Luxembourg, represented by Ernest Arendt, of the Luxembourg Bar, with an address for service in Luxembourg at 34 B/IV, rue Philippe II,

applicant, v

COMMISSION OF THE EUROPEAN COMMUNITIES, represented by its Legal Adviser, Sergio Fabro, acting as Agent, with an address for service in Luxembourg at

1 — Language of the Case: French.

Advocate-General: H. Mayras Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts

The facts of the case, the course of the established in Grade C 3 with effect from procedure and the conclusions, 1 April 1969. After being transferred submissions and arguments of the parties at his own request to the may be summarized as follows: Directorate-General for Personnel on 1

July 1971, he was again appointed to the Publications Office as an assistant in I — Facts and procedure Grade B 3 with effect from 1 June 1972.

Having regard to the training and In the notice of competition in question, experience mentioned above, the the conditions of admission were worded Selection Board is of the opinion that the as follows: duties performed since 1 June 1972, consisting primarily of executive duties, The competition is open to candidates could not lead, particularly in view of the who produce evidence that they fulfil the level of the faculties of understanding following conditions: and of judgment which they require, to the acquisition of knowledge of 1. Qualifications and experience university level. required: a university degree or equiva­ lent experience; some experience By the present application, lodged on 23 appropriate to the duties to be July 1976, the applicant contests the performed. decision of the Selection Board, which was communicated to him by a letter of 26 May 1976. By judgment of 4 December 1975 in Case 31/75, Mario Costacurta v The written procedure followed the Commission ([1975] ECR 1563), the normal course. Court annulled the refusal of the Selection Board to admit the applicant to Upon hearing the report of the the competition in question. It held that Judge-Rapporteur and the views of the since no sufficiently clear reasons had Advocate-General, the Court (Second been given for regarding the applicant's Chamber) decided to open the oral experience as not being equivalent to a procedure without any preparatory university degree, the Selection Board, inquiry. having failed to give adequate reasons for its decision, had infringed Article 25 of the Staff Regulations and Article 5 of II — Conclusions of the parties Annex HI thereto. The applicant claims that the Court After the judgment of the Court, the should:

of a misuse of powers in competition. By a memorandum of 19 refusing to acknowledge that May 1976, he protested to the Director of the applicant possesses Personnel and Administration. experience equivalent to a university degree; It is argued that in divulging the decision Consequently: taken before the conclusion of its Annul the decision taken and proceedings the Selection Board refer the matter back for infringed Article 6 of Annex III to the reconsideration by the Com­ Staff Regulations which provides that 'the mission; proceedings of the Selection Board shall (b) In the second place: be secret'. (1) Permit the applicant to prove by all legal means and in The Commission replies that even if the particular by the evidence of description of the facts such as they witnesses that the Selection appear in the application was accurate, Board for the competition which, moreover, is contested, there is divulged the decision taken nothing therein that proves that the before the conclusion of its Selection Board failed to keep its proceedings; proceedings secret. For a Selection Board (2) Permit the applicant to prove cannot be held responsible for a failure by all legal means and in to carry out its duty on the sole ground particular by the evidence of that a third party, who was never a witnesses, by an inquiry or by member of the Selection Board in an expert's report that he question, is of the opinion that a certain possesses experience equiva­ decision has been taken. lent to a university degree; (3) Order the defendant to pay In its reply, the applicant states that at a the costs'. private party held during the evening of 18 May 1976 at Luxembourg, a member The Commission contends that the Court of the Selection Board divulged the should: decision taken on 17 May 1976 not to 1. Reject the application as unfounded; admit him to the competition. This 2. Order the applicant to bear the costs . information was passed on to the applicant the next day. It is apparent from those facts that a member of the III — Submissions and argu­ Selection Board knowingly divulged the ments of the parties during decision taken before the proceedings the written procedure had been concluded.

It may be pointed out that both the He notes, as regards the Selection Board's case-law of the Italian Consiglio di Stato finding that he does not have a university and that of the Belgian Conseil d'État degree, that the great majority of the support the proposition that it was candidates accepted for the competition provided that proceedings should be did not have university degrees either. secret in order to ensure that selection Therefore, just like the applicant, they boards should be independent. Article 6 did not fulfil that first condition of Annex III to the Staff Regulations required by the notice of competition. should be interpreted in the light of that Moreover, not only have certain other

opinion. In a similar case (Conseil d'État, that for which the power was conferred judgment of 19 December 1973, (Opinion of Mr Advocate-General Ministre de l'Éducation Nationale v Warner in Case 31/75 mentioned above; Sieur Chambe, Droit Administratif 1974, [1975] ECR 1579). No 21) the court took the view that a failure to observe the secrecy of the The fact that the applicant was appointed selection board's proceedings is not to Grade B 3 before two other persons enough to bring about the nullity of the taking part in the competition does not competition, once it is established that mean that he possesses better experience. the failure cannot have had any effect on The officials in question acquired the determination of the results of the equivalent experience in employment tests. prior to their recruitment by the

That ones. question is so elusive that it is capable of

Board for the competition seems to hold against him his not having applied for In its rejoinder, the Commission admission to a university. That criterion examines the applicant's allegation that has been invented in order to justify ex the Selection Board seems to have held it post facto the admission of candidates against him that he never applied for without university degrees who admission to a university course. As to commenced university studies but never this, it replies that it would be absurd to sat for any examinations. draw from the letter of 26 May 1976, the conclusion that the Selection Board He mentions four candidates who had intended to grant a privilege to less experience than himself as assistant candidates having enrolled at a proof-correctors at the Publications university. The Selection Board merely Office at the time of the competition, found that the applicant had not but who nevertheless were accepted as completed a university course and candidates. obtained a degree, as required by the provisions of the first indent of the The experience of the two candidates aforesaid point 1 of the qualifications who, according to the Commission, required as stated in the notice of possessed equivalent experience acquired competition. in a post prior to their recruitment by the Communities, was based, according Contrary to the applicant's opinion, the to their applications forms, on the experience of the four candidates performance of executive duties: mentioned in the defendant's reply was type-setting by hand, pagination, not acquired in the performance of mere stitching, folding, cutting of overlays and executive duties, but was experience at a entering of statistical records, that is to given level. The applicant, however, upon say dudes analogous to those which the entering the ECSC, did not have any Selection Board refused to take into experience in the field of printing and account in examining his application editing. From 1966 to 1971, he was an form. assistant proof-corrector. Thus he performed mere executive duties, which In view of these facts, he is astonished could not have given him experience that the Selection Board did not hold equivalent to a university degree. interviews with the candidates, as provided for by the notice of As for the applicant's astonishment as competition, so as to proceed 'to a regards the fact that the Selection Board further consideration of the qualifications did not proceed to an additional and other references with regard to inquiry into qualifications and other employment and of the statements employment references, the Commission relating to the qualifications required'. points out that in the case at issue

the ground that insufficient reasons had been stated.

3 The applicant argues, first, that Article 6 of Annex III to the Staff Regulations of Officials, which provides that the proceedings of selection boards shall be secret, has been infringed because the decision of the Selection Board was revealed to some of his colleagues at a time when the members of the Selection Board had not yet either signed the minutes of their proceedings or drawn up their statement of the reasons for which his application had been rejected.

4 The Commission does not contest the facts thus alleged.

JUDGMENT OF 14. 6. 1977 - CASE 73/76

5 However, it does not necessarily follow that this breach of the secrecy of the proceedings of the Selection Board, however regrettable it may be and however offensive the applicant may have felt it to be, constitutes a sufficient reason for annulling the decision thus divulged.

6 It is necessary to examine whether the unauthorized disclosure of the decision was capable of affecting the guarantees as to the regularity of the proceedings of the Selection Board, amongst which the provision as to secrecy is included.

COSTACURTA v COMMISSION

13 On that basis, the Selection Board took the view that 'the duties performed since 1 June 1972, consisting primarily of executive duties, could not lead, particularly in view of the level of the faculties of understanding and of judgment which they require, to the acquisition of knowledge of university level'.

14 The wording of those reasons makes it very clear that the assessment of the Selection Board was based on objective facts consisting in the nature of the applicant's duties and the length of time during which he performed them.

15 That assessment, moreover, does not substantially differ from the description of the applicant's duties in the periodic reports made by his superiors, even though the description 'impiegato di concetto' (official carrying out advisory duties) appears in those reports.

16 Finally, as regards the other candidates admitted to the competition, the defendant has stated that account was taken of their experience acquired not only in the service of the Commission but also in previous posts and that this constitutes adequate grounds for the view that they fulfilled the conditions set out in the notice of competition.

17 In those circumstances there are no grounds for regarding the contested decision as vitiated by illegality.

On those grounds,

THE COURT (Second Chamber)

hereby:

1. Dismisses the application;

2. Orders the parties to bear their own costs.

Pescatore Sørensen Mackenzie Stuart