C-112/78

JUDGMENT OF THE COURT (SECOND CHAMBER) OF 5 APRIL 1979 1

Dorothea Kobor, née Sonne v Commission of the European Communities

Case 112/78

1. Officials — Recruitment — Competition — Principles far selection — Successive competitions — Objective conditions far entry identical — Different interpretation according to number of candidates — Not acceptable — Different appraisal of same candidate in successive competitions — Permissibility — Conditions (Staff Regulations of Officials, Annex III, Art. 5)

2. Officials — Recruitment — Competition — Selection board — Rejection of candi­ dature — Duty to state reasons — Scope (Staff Regulations of Officials, Annex III, Art. 5)

applicant, v

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 decision of the Selection Board for Competition No COM/B/155 refusing to admit the applicant to the written tests relating to that competition, notice of which was published in Official Journal No C 128 of 1 June 1977, p. 10,

THE COURT (Second Chamber)

composed of: Lord Mackenzie Stuart, President of Chamber, M. Sørensen and A. Touffait, Judges,

Advocate General: F. Capotorti Registrar: J. A. Pompe

I — Facts and procedure The length of the practical experience required by Notices of Competitions Nos COM/B/117 and COM/B/139 was The applicant, who is an official of the Commission of the European Com­ 5 months and 1 year respectively. munities, entered the service of the High Authority of the ECSC in 1964. She was established in 1965 in Category C, Grade 3, and promoted in 1972 to Grade 2 of The selection board for Competition No the same category. COM/B/155 considered the applications of 2 773 candidates who satisfied the On three occasions she applied to enter general conditions laid down in Article open competitions on the basis of tests 28 (a), (b) and (c) of the Staff Regu­ for the purpose of constituting a reserve lations of Officials. 1 287 of them were of administrative assistants in Category admitted to the written tests. B, Grades 4 and 5, and chose the option "Application of rules of administrative management". The applicant was not among the can­ On the first occasion (Competition No didates admitted. The refusal of the COM/B/117), notice of which was selection board, of which she was published in Official Journal No C 15 of informed by letter of 23 September 1977, 18 February 1974, p. 25), her name was was based on the insufficiency of her not entered on the list of suitable can­ practical experience in the field chosen. didates, since she did not obtain the In reply to a letter from the applicant the minimum marks required in the written chairman of the selection board and oral tests. On the second occasion confirmed the decision adopted on 7 (Competition No COM/B/139, Official October 1977. On 11 October 1977 the Journal No C 223 of 30 September 1975, applicant submitted to the Commission a p. 7), she was not admitted to the oral complaint under Article 90 (2) of the test, since she did not obtain the Staff Regulations. By letter of 7 June minimum marks required in the written 1978 she was informed that her tests. When she applied to enter the third complaint was rejected, as the chairman competition No COM/B/155, Official of the selection board to whom it had Journal No C 128 of 1 June 1977, p. 10), been sent had upheld the decision of the which forms the basis of the present selection board. action, she was not admitted to the written tests.

II — Conclusions of the parties candidates' practical experience at the first stage of the competition but only as The applicant claims that the Court regards the length of that experience. should: To support her argument that the Declare that the application is admissible selection board wrongly decided that she as to form; did not have the necessary practical experience the applicant also refers to Declare that it is well founded as regards the laudatory assessments of her made in the substance; her most recent periodic reports, in Consequently annul the decision of the particular in that relating to the period selection board for Competition No from 1 July 1975 to 30 June 1977. She also refers to the list of the tasks which COM/B/155 refusing to admit her to the said competition; she performed at the Commission contained in her complaint through Order the Commission to pay the costs. official channels and to two memoranda concerning her promotion to Grade C 1, The Commission contends that the Court which, in her opinion, show that she should: performed the duties of a senior administrative assistant. Dismiss the application as unfounded; Finally, the applicant recalls that in 1970 Order the applicant to pay the costs. she successfully took part in Competition No 47 at the Council for the purpose of constituting a reserve of administrative III — Submissions and argu­ assistants. ments of the parties In the applicant's view it is clear from the foregoing observations that the refusal of Observations of the applicant the selection board is either the result of In support of her application the manifest error or of an erroneous applicant points out that on the occasion assessment as regards her practical of the 1974 and 1975 competitions, the experience. conditions for admission to which were In her reply the applicant relies on a substantially the same as those stipulated fresh submission to the effect that the in the notice of competition in question, statement of reasons for the refusal of her practical experience had been judged the selection board is insufficient, sufficient, whereas the same qualification inasmuch as it merely refers to the was not accepted in 1977 despite the condition for admission which was not additional practical experience which she fulfilled. had acquired in the meantime. In the applicant's opinion it is arbitrary to make Observations of the Commission the appraisal of that qualification In its defence the Commission maintains fluctuate on the basis of the number of that although it is true that the selection applications received. board makes its appraisal on the basis of Secondly, the applicant observes that in the file of each candidate, the severity of the event of her admission to the tests that appraisal inevitably varies according the contested decision prejudged their to the quantity and quality of the outcome. In her opinion the wording of applications, both of which are in­ the notice of competition did not creasing year by year. As each empower the selection board to express competition constitutes a separate an opinion as regards the quality of the procedure the favourable appraisal made

3 The duties attaching to the posts to be filled were defined in relation to four different areas, one of which was the application of rules of administrative management, from amongst which the candidates had to indicate their choice.

« Under the special conditions for admission the notice of competition provided the candidates had, first, to have completed a course of secondary

JUDGMENT OF 5. 4. 1979 — CASE 112/78

education and received a final certificate and, secondly, to have at least one year's practical experience in the field chosen after obtaining their educational qualifications.

5 The applicant, who, in applying for the post, selected the field relating to the application of rules of administrative management, was refused admission to the competition on the ground that her practical experience was insufficient.

6 In support of her application the applicant claims that the refusal of the selection board is either the result of manifest error or of an erroneous assessment as regards her practical experience.

12 In any event, a candidate cannot form the subject of a less favourable appraisal than that made of him in. a previous competition, unless the statement of the reasons on which the decision is based clearly justifies such a difference of appraisal.

13 In that respect there is no sufficient statement of reasons for the refusal to admit the applicant to the tests relating to the competition in question.

14 In fact, the only statement of reasons contained in the standard letter in which the selection board's refusal was communicated to the applicant was a reference to the condition which was not fulfilled.

15 The condition laid down by the notice of competition, which related to the need for candidates "to have at least one year's practical experience in the field chosen after having obtained their educational qualifications" was composed of several elements, so that a reference to the condition as a whole was not of such a nature as to indicate which of the factors had been found to be lacking.

16 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 where 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.

17 The selection board's refusal must therefore be annulled.

hereby:

1. Annuls the decision communicated to Mrs Kobor by letter of 23 September 1977 by which the Selection Board for Competition No COM/B/155 refused to allow her to take part in the tests relating to that competition;

2. Orders the Commission to pay the costs.

Mackenzie Stuart Sørensen Touffait

Delivered in open court in Luxembourg on 5 April 1979.

A. Van Houtte A. J. Mackenzie Stuart Registrar President of the Second Chamber