C-4/78

applicants, v

The Commission of the European Communities, represented by its principal Legal Adviser, Raymond Baeyens, acting as Agent, with an address for service in Luxembourg at the office of its Legal Adviser, Mario Cervino, Jean Monnet Building, Kirchberg, defendant,

APPLICATION for the annulment of the refusal of the Selection Board for Competition COM/A/154 to admit the applicants to the competition,

SALERNO v COMMISSION

THE COURT (Second Chamber)

composed of: P. Pescatore, Judge, Acting President of Chamber, M. Sørensen and A. Touffait, Judges,

1. In pursuance of a notice of 2. The applicant in Case 4/78, Mr competition COM/A/154 (Official Salerno, in filling in the application Journal No C 213 of 7 September 1977, form, selected "financial and budgetary p. 9), the Commission organized an open affairs". He stated that he possessed a competition, based on tests, to consitute doctorate in economics and commerce of a reserve of administrators in the career the University of Rome and a certificate bracket covering Grades 7 and 6 of of Advanced European Studies of the Category A. The duties of the posts to be College of Europe at Bruges, with filled related to the following aspects of economics as a main subject. From 16 activity: general administration, admin­ September 1977, he completed a period istration of research activities, external of training at the Directorate General for relations, information, financial and Regional Policy and subsequently at the budgetary affaires and social affairs. Directorate General for Budgets with the Commission. The application form for the competition contained a special item in which the By letter of 5 December 1977 from the candidate was asked to indicate which of Commission's Directorate General for the six fields he wished to choose. The Personnel and Administration, Mr "Special Conditions" in the notice of Salerno was notified that the selection competiton required a university degree board had refused to include him on the in a field appropriate to the option list of candidates admitted to the written chosen and in addition "at least one tests on the following grounds: "Your

A letter of 19 December 1977 in which the selection board had refused to put him on the list of candidates admitted to Mr Salerno asked for re-consideration of the refusal to admit him to the the written tests on the ground that: "Your qualifications or degrees were not competition and which he sent to the regarded as being in conformity with the Head of the Recruiting, Appointments and Promotion Division of the Direc qualifications required". torate General for Personnel and By letter of 19 December 1977 to the Administration at the Commission, who secretary of the selection board, Mr was also the chairman of the selection Authié asked for further explanations board for Competition COM/A/154, with regard to the board's refusal.

3. The applicant in Case 19/78, Mr "external relations". He stated that he Authié, applied to be admitted to the possessed a doctorate in political science competition at issue and chose as his of the University of Rome, a "certificate field "external relations". He produced a of language proficiency" and a certi certificate showing him to have a degree ficate to the effect that he had attended in economics, "econometric option", to the course in preparation for a re the fourth year examination at the cruitment competition for officials of the University of Orleans, and a certificate Italian Ministry for Foreign Affairs at of Advanced European Studies of the Johns Hokins University, Bologna College of Europe, Bruges, with Center, and a certificate of Advanced

"Your experience was not Preparation of Medium-Term Economic regarded as sufficiently related to the Policy Programmes. field of the competiton".

6. 4 307 candidates entered for the II — Conclusions of the parties competition in question and 1 505 were admitted to the written tests. The A. 1 The applicants in Cases 4 and 19/78 minutes of the meetings of the selection claim that the Court should: board for the competition show that "to draw up the list of candidates fulfilling "Annul the refusals of the selection the conditions for admission", the board to admit them to Competition selection board appointed examiners and COM/A/154; that for this phase of the work it met on 23 November, from 28 November to 6 Declare that so far as necessary the December and on 15 December 1977 competition shall be recommenced as far as the applicants are concerned; and 8 January 1978. It also appears from the minutes that five of the candidates Order the Commission to pay the costs." included on the list of candidates In the reply the applicants add a further fulfilling the conditions for admission "were admitted after re-examination of claim, having already made reservations to this effect in the original application, their applications" and that "on the other hand the board confirmed its namely that the Court should: original decision not to admit the cand­ "Annul Competition COM/A/154 and idates in the case of" ... two candidates. all the subsequent measures including the appointments made or to be made as a 7. The individual applications in the result thereof." present cases, requesting the annulment of the refusals of the selection board to They further claim that: admit the applicants to the competition, "The costs to be charged to the were lodged on 9 January, 22 February Commission shall include the costs of the and 3 March 1978. applications for the adoption of interim measures." At the same time as they lodged their applications, the applicants in Cases 4 and 19/78 put forward applications for 2. The applicant in Case 28/78 claims the adoption of interim measures, asking that the Court should:

"Declare that the application is admiss­ B — Substance ible and well founded; Annul the refusal of the selection board 1 (a) The Commission points out in its to admit the applicant to Competition defence in Case 4/78, lodged on 7 COM/A/154; February 1978, that a review by the Court of the assessment of the selection Order the Commission to pay the costs." board relating to the relevance of certif­ icates of postgraduate study to prove, in B. The Commission contends that the terms of the notice of competition, Court should: experience relevant to the option chosen "Dismiss the applications as unfounded by candidates, would exceed the bounds of what is lawful in such a review. and order the applicants to pay the costs.” In its defence in Case 28/78, lodged on 7 April 1978, the Commission states that it might be for the Court, in accordance III — Submissions and arguments with its judgment in Case 7/77, Von of the parties Wüllerstorff und Urbair, to check whether any such assessment might be unlawful. A — Admissibility 1 (b) The applicant in Case 4/78 states that in his opinion the powers of the 1. The applicant in Case 28/78 states in Court to review this matter find an his application that in accordance with application in the Court's judgments of the judgment of the Court of 16 March 14 July 1965 in Joined Cases 18 and 1978 in Case 7/77 (Ritter Von 19/64, Alvino and Others v Commission Wüllerstorff und Urbair v Commission of the EEC [1965] ECR 789) and in [1978] ECR 769), his complaint under Cases 7/77, Von Wüllerstorff und Urbair. Article 90 of the Staff Regulations, which was lodged on 1 March 1978, was 2 (a) The applicants take the view that the reasons stated for the refusal of the put forward as a precaution without Commission to admit them to the prejudice to this application. competition, which consist of a mere He states that in may in fact be seen reference to the qualification in dispute, from the above-mentioned judgment that is inadequate. The applicant in Case Article 91 of the Staff Regulations, 28/78 adds this is especially so when the which requires a complaint to be made qualifications of candidates not admitted through official channels as a preliminary may appear prima facie to be comparable to an application to the Court, refers to those of other candidates who have only to measures which the appointing been admitted. The Commission has authority is empowered to review. This therefore infringed Article 25 of the Staff cannot therefore apply to the decisions Regulations as well as Annex III. The of the selection board in a competition. applicant's argument is corroborated by the Court's judgments of 4 December 2. The Commission states that it leaves 1975 in Case 31/75, Costacurta v the matter in the hands of the Court as Commission [1975] ECR 1563, and of 15 March 1973 in Case 37/72, Marcato v regards the admissibility of an application lodged on 3 March 1978, Commission [1973] ECR 361, and by the without waiting for a decision on the judgment in Case 7/77, Von Wüllerstorff una Urbair. complaint through official channels, which was lodged on 1 March of the 2 (b) The Commission takes the view same year. that in an open competition based on

paragraph of Article 3 of Annex III to second paragraph of Article 3 of Annex the Staff Regulations. In this respect the III to the Staff Regulations, who in fact applicants point out that recourse to serve in an advisory capacity in the tests. examiners is permissible only at the stage In the present case, all the decisions were of the tests and that the selection board made by the selection board and the cannot delegate its power of decision to assistance given by the examiners examiners. consisted in preparatory work involving the checking and sorting, in a physical The applicants add that it emerges from and hence in an objective sense, of the the minutes of the meetings of the many applications put forward. In any selection board that no directives were case, it is clear from the minutes of given to the examiners with a view to meetings of the selection board that the ensuring co-ordination of their work. latter, in drawing up the list of candi­ Furthermore, the selection board did not dates to be admitted, met on several check the work of the examiners at a occasions.

to the Commission this is not a case of year of Advanced European Studies. A "subsequent co-ordination" but of a further example of discrimination desire to avoid any possibility of mistake. consisted in the refusal to admit to the It states that the two cases in which the competition officials in the Language decision refusing admission to the Department — in particular the applicant competition was maintained were quoted — who had qualifications and experience in the minutes of the meetings of the equivalent, if not superior, to those of selection board by way of example, as is external candidates who were admitted clear from the use of the words "in to the competition. particular". 4 (b) (1) The Commission states in its defence in Case 4/78 that the five can 4 (a) (1) The applicants also state that there was discrimination with regard to didates referred to by the applicant opted for the field of external relations and them as compared with other candidates admitted to the competition. that certain candidates who possessed the certificate of Advanced European Studies 4 (a) (2) The applicants in Cases 4 and were not admitted to the competition because they had chosen the field of 19/78 mention in this respect in their financial and budgetary affairs. applications the names of five candidates who, like them, followed the course of 4 (b) (2) In its defence in Case 19/78, Advanced European Studies at the the Commission points out that the College of Europe during the academic refusal of the selction board was due to year 1976/77 and that four of them had the fact that the university degree previously studied economics at the produced by the applicant, namely a university whilst the fifth had followed a degree in economics with an econometric course in agronomics. option, was evidence of knowledge The applicant in Case 4/78 adds that the relating to the mathematical treatment of five candidates referred to, like him, statistical data concerning economic started their studies at the College of phenomena and not of knowledge Europe immediately after finishing their relating to external relations.

external relations. Studies involving administrative science as a special subject is not directly related 4 (a) (3) The applicant in Case 28/78 to the field of external relations. takes the view that the discrimination According to the Commission it is not consists in the fact that the condition correct that applications put forward by which was considered not to have been officials in the Language Department fulfilled in his case was thought to have were systematically rejected; the been fulfilled by other candidates who selection board admitted them to the had also chosen external relations, written tests in so far as they fulfilled the simply because they had completed a conditions for admission.

4 (c)(1) The applicant in Case 19/78 As regards the third example of discrimi replies that there was discrimination nation relied on by the applicant in his inasmuch as certain candidates were reply, the Commission agrees that it is admitted for the field of external correct that, following the complaints, relations with a degree in economics the seletion board reconsidered certain without any inquiry as to the options applications put forward and accepted which they selected during their five additional applications after this university courses. reconsideration, whilst all the other decisions refusing admission were main

specialized. If the other candidates had words "in particular". It is therefore also specialized in administrative science, incorrect to state that seven cases were discrimination would be clearly evident. re-examined. In the alternative, the applicant makes the following observations: amongst the 5 (a) (1) The applicant in Case 4/78 three options involved in Advanced further claims that even on the European Studies at the College of supposition that a single for all candi Europe — namely, administrative dates was applied by the selection board, science, law and economics — the option it cannot be used against him since it did in administrative science has the closest not appear as a logical consequence from relationship with external relations.

field of external relations; the field of application was not reconsidered financial and budgetary affairs, although he too had put forward a according to the applicant, involves complaint. specialization in widely differing spheres, financial matters being rather of an 4 (d) The Commission, in its rejoinder economic nature and budgetary matters in Case 28/78, states, with regard to the more of an administrative character. alleged discrimination against officials from the Language Department, that two The applicant in Case 4/78, finally officials in the Category L/A were points out in this respect that his amongst the 181 candidates who were university studies were connected with admitted to the oral tests, and, amongst financial problems and to a certain the 97 candidates who were put on the extent with budgetary problems and that list of suitable candidates, one official in he underwent a period of training with Category L/A was high up on the list of the Commission in connexion with the successful candidates. field of financial and budgetary affaires.

5 (a) (2) According to the applicant in 5 (b)(1) The Commission recalls that, Case 19/78, it is not for the selection with regard to Case 4/78, in view of the board, if the university studies are fact that the applicant had commenced regarded as sufficient in relation to the his period of training at the Commission field chosen, to discriminate between one on 16 September 1977, it could not be degree and another in economics, taken into consideration as experience at according to whether there is evidence of the date on which the applications for any particular specialization. In fact in the competition had to be lodged, France, the last year of a degree course namely 10 October 1977. involves certain optional courses, but the student has to offer all subjects and the 5 (b) (2) The Commission replies to the applicant in particular offered subjects last argument put forward by the relating to external relations. applicant in Case 28/78 that the special course in administrative science studied 5 (a) (3) The applicant in Case 28/78 by the applicant at the College of Europe states as his last point that the selection does not necessarily constitute proof of board wrongly took the view that he did experience in the matter of external not possess the experience required for relations. It takes the view that the the field of external relations.

external relations. The second is that the chosen for each of two competitions by selection board accepted the principle the candidate in question were totally that a year of post-graduate studies in different. connexion with the option chosen for the competition was capable of taking the place of the experience required by the IV — Oral procedure notice of competition. The applicant had, in addition, carried out a course of study At the hearing on 12 October 1978, the based on external relations at John applicants in Cases 4 and 19/78,

SALERNO v COMMISSION

Decision

1 The applications in these three cases are for the annulment of the refusal of the selection board for Competition COM/A/154 to admit the applicants to the competition and for the annulment of the appointments made in consequence of the competition.

2 The cases were joined for the purposes of oral procedure and should remain so for the purposes of the judgment.

3 The competition in question was organized as an open competition on the basis of tests to constitute a reserve of administrators in the career bracket covering Grades 7 and 6 of Category A.

4 The duties relating to the post to be filled were defined in relation to six different fields, including external relations and financial and budgetary affairs, amongst which candidates had to express a choice.

9 In this respect it is the established case-law of the Court that a reference to the appointing authority of a complaint through official channels against the decision of a selection board for a competition lies outside the scope of the provisions of the Staff Regulations in view of the fact that the appointing authority has no power to annul or amend the decisions of a selection board.

10 If, nevertheless, the person concerned sends the appointing authority a complaint through official channels, such a step, whatever its legal significance may be, cannot have the consequence of depriving him of his right to apply directly to the Court in view of the fact that this is a right which he connot renounce and which is therefore not capable of being affected by his individual behaviour.

11 It follows that the applications are admissible.

Substance

12 The arguments put forward by the applicants in contesting the refusal of the selection board to admit them to the competition may be considered in substance as amounting to a first submission relating to certain irregularities in the selection board's procedure, a second submission relating to the in­ adequacy on the grounds stated for the refusal and a third submission relating to the discrimination which the applicants claim to have suffered as against other candidates who, like the applicants, possessed certificates of Advanced European Studies from the College of Europe in Bruges.

First submission

18 In fact, the selection board had not fixed in advance the criteria or directives for assessing the relationships between the university qualifications and the field selected by each candidate, or for determining the nature of the post­ graduate experience required by the notice of competition, and the assessment by the examiners of individual cases was not checked by the selection board, as a collegiate body, except in those cases in which the examiners had doubts.

19 The complaint with regard to the part played in this case by the examiners therefore appears to be well founded.

20 The applicants further point out in contesting the legality of the proceedings of the selection board, that the re-examination of the cases in which complaints against the refusal of the selection board had been submitted was arbitrary.

JUDGMENT OF 30. 11. 1978 — JOINED CASES 4, 19 AND 28/78

21 In this respect it must be stated that such a re-examination is not provided for by the provisions controlling the work of a selection board for a competition.

22 Although in this case the selection board nevertheless undertook a further examination of certain cases, this was from a concern to correct errors which might have been brought to its attention and not with a view to carrying out a fresh assessment of the material in the files.

28 Although the use of general formulae to define the conditions for admission to a competition may be accepted in circumstances such as those in the present case, in which the notice of competition is addressed to a group of individuals of differing origin and education, the counterpart is, as the Court

SALERNO v COMMISSION

stated in its judgment of 14 June 1972 in Case 44/71, Marcato v Commission ([1972] ECR 427), that the selection board for the competition is bound to give reasons for its decisions on this point.

29 Although it is permissible, having regard to the large number of candidates, to make use of summarized statements of reasons, a mere reference to the condition which was not fulfilled cannot however satisfy the requirement to state reasons in view particularly of the fact that such a reference is not capable of providing the person concerned with a sufficient indication to allow him to know whether the refusal is well founded or on the other hand whether it is vitiated by a defect which would make it possible to contest its legality.

30 It must therefore be concluded that in this case the statement of reasons on which the selection board's refusal was based was inadequate.

Third submission

Costs

36 Under Article 69 (2) of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs.

37 The defendant has failed in its submissions and must therefore pay the costs.

On those grounds

THE COURT (Second Chamber)

hereby: