C-89/79

JUDGMENT OF 28. 2. 1980 — CASE 89/79

the number of candidates competing applications must not be so in each of them. In the case of voluminous as to place an intolerable competitions where the candidates are burden on the business of the more numerous, the statement of the Selection Boards and the work of reasons for the rejection of personnel administration.

In Case 89/79

FRANCESCO BONOJ, an official of the Istituto Nazionale della Previdenza Sociale [National Social Welfare Institution] (I.N.P.S.), residing at Cagliari, Italy, represented by Louis Schütz, Advocate of the Luxembourg Bar, with an address for service in Luxembourg at the Chambers of Mr Schütz, 83 Boulevard Grande-Duchesse Charlotte, applicant, v

COUNCIL OF THE EUROPEAN COMMUNITIES, represented by John Carbery, an Adviser in the Legal Department of the General Secretariat of the Council, with an address for service in Luxembourg at the Chambers of Mr van den Houten, Director at the Legal Department of the European Investment Bank, 2 Place de Metz, defendant,

APPLICATION for the annulment of the decision whereby the Selection Board for open competition Council/LA/170 (Italian-speaking translators) refused to admit the applicant to that competition,

Facts and Issues

JUDGMENT OF 28. 2. 1980 — CASE 89/79

select from that list those who are to be "With reference to your application to admitted to the tests. All candidates enter the above-mentioned competition I will be informed individually of the regret to inform you that the Selection Examining Board's decision in their case. Board has not entered your name on the list of candidates who have been In the notice published contempor- admitted to the tests. aneously with the Notification of open competition paragraph 4 of Section II As provided for in paragraph .7 of headed "Procedure" stated Section II of the Notice preceding the Notification of open competition (cf. After examining these files, the Selection Official Journal C 231, p. 3) the Board will draw up a list of the proceedings of the Selection Board are applicants who meet the requirements set secret. I am accordingly unable to make out in the notice of competition. known to you the reasons for the decision not to admit you to the tests. Where the competition is on the basis of You will find enclosed with this letter tests, all candidates on the list will be the supporting documents which were admitted to the tests. annexed to your application . . . " . Where the competition is on the basis of qualifications, the Selection Board will, after determining how the candidates' II — W r i t t e n p r o c e d u r e qualifications are to be assessed, consider the qualifications of the candidates appearing on the list. Mr Bonu brought this action on 5 June 1979. Where the competition is on the basis of The written procedure followed the both tests and qualifications, the normal course. Selection Board will state which of the candidates on the list will be admitted to After hearing the views of the Advocate the tests. General the Court (Second Chamber) decided to open the oral procedure Paragraph 7 of the same Section states without any preparatory inquiry. that:

The Council contends that the Court paragraph of Article 25 of the Staff should : Regulations of Officials of the European Communities. (a) Dismiss the applicant's claims as unfounded; The purpose of this obligation to state (b) Order the applicant to pay the costs the grounds on which a decision is based to the extent to which they are not is not solely to protect the person to borne by the defendant pursuant to whom the act is to be applied but also to Articles 70 and 95 (2) of the Rules of afford the Court the opportunity of Procedure. undertaking a review of the legality of that act, a task assigned to it by the Treaty. IV — S u b m i s s i o n s a n d a r g u m e n t s of t h e p a r t i e s in t h e c o u r s e The Court has consistently held in its of t h e w r i t t e n p r o c e d u r e case-law that inadequate or laconic statements of the reasons upon which decisions addressed to individuals are A — Admissibility based, especially decisions concerning admission to competitions, are bound to The Council does not deny that the lead to their annulment. It is absolutely applicant was justified, in accordance essential that the grounds given to can- with the case-law of the Court, in didates make clear to them the reasons bringing a legal action directly against for their non-admission and at the same the decision of the Selection Board for time facilitate the review of the legality the competition without first submitting of the act. an administrative complaint to the appointing authority. The same applies a fortiori if there are no grounds at all given. The candidate finds The applicant who was informed that he it absolutely impossible to know the had not been admitted to the tests by the reason for the refusal to admit him to letter of 5 March 1979 had three months the competition and a review of legality within which to appeal; this time-limit by the Court proves impossible. was complied with since the application was lodged on 5 June 1979. (b) The Council wrongly interprets the decided cases of the Court, especially the B — Substance judgment of 15 March 1973 in Case 37/72 Antonio Marcato v Commission of 1. The decision not to admit the the European Communities [1973] ECR applicant to the tests in the 361, at p. 369. It is apparent from that competition case that in a competition based on formal qualifications — and this action The applicant is of the opinion that the arises at that stage — the first stage of contested decision must be annulled the proceedings of a Selection Board because it does not state the grounds entails the matching of the qualifications upon which it is based. offered by the candidates against the qualifications required by the notice of (a) There is a general legal principle open competition on the basis of which requires that any decision objective facts known to each candidate adversely affecting a person shall state in his own case so that the results should the grounds on which it is based. This be supported by sufficiently clear principle has been restated in the second reasons.

The candidate does not receive an That there is a legal obligation to state extract of the particulars concerning him the grounds upon which a decision is in the report; he therefore remains in the based cannot be denied in this case, dark as to the reasons for his non- because, according to the fourth admission to the tests and can never have paragraph of Article 5 of Annex III to recourse to a judicial body unconnected the Staff Regulations, where the with and independent of the authority competition is on the basis of both tests from which the act emanates. He is thus and qualifications a matching of the deprived for ever of the opportunity to qualifications is necessary and takes claim that there has been irregularity or place prior to the drawing up of a list of that a qualification or a document the candidates to be admitted to the produced in support of his application tests. has been wrongly assessed by the Selection Board.

BONU v COUNCIL

the Selection Board has not admitted headed "Procedure" of the Notice of them to the competition. On the other provisions relating to the organization of hand candidates whom the Selection open competitions (Official Journal C Board has admitted do not receive 231, p. 3) is unlawful and, in any case, confirmation of this fact; they are inapplicable, at least in so far as the informed of the decision which the prohibition on informing candidates of Selection Board takes concerning them the reasons for not admitting them to the in relation to their admission to the tests, tests also applies to the candidate in whether it be favourable or unfavourable. question. This prohibition is not found in Article 6 of Annex III to the Staff Regu- lations dealing with competitions which It is not disputed that in law there must confines itself to saying that the be a statement of the reasons for a proceedings of the Selection Board shall decision to refuse to admit a candidate be secret. to a competition. Moreover, as stated in the above-mentioned Mercato judgment, it is necessary to distinguish between two separate stages of the procedure. The The notice supplements a regulation; for first stage consists of an examination of this very reason the Court cannot take it the applications to select the candidates into consideration. admitted to the competition; the results must be supported by sufficiently clear reasons. There is a legal duty to state The impossibility of notifying a reasons for non-admission to a candidate of the reasons for his non- competition. The second stage involves admission to the tests or of the number an examination of the abilities of the of marks he obtained is by no means a candidates for the post to be filled in nessessary consequence of the secret order to draw up a list of suitable candi- nature of the proceedings of a Selection dates. The second stage consists mainly Board. Secrecy covers the individual of comparison and is accordingly assessments made and opinions expressed covered by the secrecy inherent in the during the deliberations but not the final task of a Selection Board. decision based on all the factors.

In this case the Council has complied with the rule as to secrecy laid down by The applicant is wrong not to distinguish the Staff Regulations; the applicant was between consideration of qualifications not eliminated at the first stage of the at the stage of admission to the procedure but at the one covered by competition, where the Selection Board secrecy. is under an obligation to give reasons for any refusal and consideration of qualifications in a competition based on qualifications and tests for the purpose (b) The aim of the notice, which of deciding which candidates will be provides information and is not of the named as being admitted to the tests, nature of a regulation, is to explain the which is a part of the proceedings of the general conditions for competitions and Selection Board covered by the rule as to to inform future candidates that the secrecy. proceedings of the Selection Board are secret. The Selection Board must clearly assess the qualifications produced in order to assess the ability of the candidates to (c) It is impossible to state the reasons occupy the post to be filled; this upon which the final decision is based assessment takes place before admission without divulging the proceedings of the to the tests. It is therefore at these two Selection Board. Furthermore the "final stages of a competition based on decision based on all the factors" is in qualifications and tests that the Selection fact notified to the candidate; it is infor- Board has to make its individual mation which tells him whether he has assessments; it is difficult to see how the succeeded or failed. Selection Board can give its reasons for the final decision without divulging its proceedings. According to the Court's judgment in the above-mentioned Marcato case the Selection Board does not have to state (d) It is true that as a general rule the reasons upon which a decision not to reasons must be given for acts of the admit a candidate to the tests is based if Council in such a way that there is the competition is based on qualifications evidence that they are lawful and in and tests and the candidate has already order. Competitions are a derogation been admitted to the competition. from this rule the boundaries of which have been drawn by the case-law of the Court. However Competition Council/LA/170, which is at issue in the present case, can only be compared in part to the competition the results of which were (e) The obligation imposed on the challenged in the Marcato case; its first Selection Board to draw up a reasoned

"With reference to your application to enter the above-mentioned competition I regret to inform you that the Selection Board has not entered your name in the list of candidates who have been admitted to the tests.

JUDGMENT OF 28. 2. 1980 — CASE 89/79

As provided for in paragraph 7 of Section II of the Notice preceding the Notification of open competition (cf. Official Journal C 231, p. 3) the proceedings of the Selection Board are secret. I am accordingly unable to make known to you the reasons for the decision not to admit you to the tests."

3 The applicant considers that this decision is void for infringement of an essential procedural requirement because there is no statement of the reasons upon which it was based. He also considers that the paragraph of the notice of the Council to which reference is made in the Council's letter and which reads as follows:

"The proceedings of the Selection Board are secret. Consequently candidates will be informed neither of the reasons for not admitting them to the tests nor of the marks obtained by them",

is also unlawful and in any case inapplicable.

whether these come from the Community administration itself or the can- didates concerned or third parties. Consequently observance of this secrecy runs counter to divulging the attitudes adopted by individual members of Selection Boards and also to revealing all the factors relating to individual or comparative assessments of candidates. However the scope of this secrecy cannot be widened to such an extent as to refuse disclosures of objective facts and in particular of the criteria for assessment upon which selection has been based at the stage of the preliminary proceedings of the competition, which enables those whose applications have been rejected even before any individual test to ascertain the possible reasons for their elimination.

6 It should be added that the requirement to give a statement of the reasons for decisions must be evaluated having regard to the different levels and types of competition and, more particularly, to the number of candidates competing in each of them. In the case of competitions such as the present, where the candidates are more numerous, the statement of the reasons for the rejection of applications must not be so voluminous as to place an intolerable burden on the business of the Selection Boards and the work of personnel administration.

7 Even on the basis of these minimum requirements the letter sent to the applicant by the administration department of the Council must be regarded as inadequate. In the first place it does not enable an uninformed reader to grasp that it covers both the admission of the candidate at the first stage of the competition and his elimination at the second stage. In the second place the most elementary statement of the reasons for the decision is missing. The fact that in the information published in the Official Journal the Council warned candidates in advance that they would not be informed of the reasons for not admitting them to the tests, is no justification seeing that by this very warning the Council has gone far beyond the limits of the secrecy attaching to proceedings of Selection Boards.

T H E C O U R T (Second Chamber)

hereby:

1. Annuls the decision by which the Selection Board for Open Competition Council/LA/170 (Italian-speaking translators) refused to admit the applicant to the tests.

2. Orders the Council to pay the costs.

Touffait Pescatore Due

Delivered in open court in Luxembourg on 28 February 1980.