C-225/82

VERZYCK v COMMISSION

In Case 225/82

RUDY VERZYCK, an assistant financial controller in the Belgian Civil Service, residing at 365 Stationstraat, 8250 Ichtegem (Ernegem), Belgium, assisted and represented by Georges Vandersanden, of the Brussels Bar, whose Chambers are at 38 Klauwaerts, 1050 Brussels, with an address for service in Luxembourg at the Chambers of J. Biver, applicant, v

COMMISSION OF THE EUROPEAN COMMUNITIES, represented by Hendrik Van Lier, a member of its Legal Department, acting as Agent, assisted by Robert Andersen, of the Brussels Bar, whose Chambers are at 214 Avenue Montjoie, 1180 Brussels, with an address for service in Luxembourg at the office of Oreste Montako, a member of its Legal Department, Jean Monnet Building, Kirchberg, Luxembourg,

defendant,

APPLICATION for:

gives the following

JUDGMENT OF 9. 6. 1983 — CASE 225/82

JUDGMENT

Facts and Issues

The facts of the case, the course of the Public finance, accounting and auditing; procedure and the conclusions, sub- missions and arguments of the parties may be summarized as follows : General administration.

The special conditions of eligibility contained in Section III (B) of the competition notice consisted principally I — Facts and written p r o c e d u r e of four requirements concerning the age of the candidate, the production of certi- ficates and degrees, proof of appropriate experience and knowledge of languages. 1. The Commission of the European Communities, the defendant, published in the Official Journal of the European 2. On 30 November 1981 the applicant Communities of 12 September 1981 submitted an application to take part in (C 233, p. 21) Notice of Open Compe- Competition No C O M / A / 3 2 5 , selecting tition No C O M / A / 3 2 5 for "an open the public finance, accounting and competition, based on qualifications and auditing option. tests, to constitute a reserve of administrators in the career bracket covering grades 7 and 6 of Category A." On 1 March 1982 the Head of the Re- cruitment Division notified the applicant that the selection board for the competition, which had originally According to that notice the purpose of decided that he fulfilled the conditions the competition was to constitute a prescribed for admission to the reserve to be drawn upon to fill vacant competition, had formed the view that it or newly-created posts with the had to reject· his application on the Commission, involving administrative,. ground that "an examination was then advisory and supervisory duties, relating made of the qualifications of the candi- to the Commission's political, adminis- dates admitted to the competition, based trative and financial activities, with the in particular on degrees and diplomas following options available : and practical experience relating to the field covered by the competition, with a view to improving the geographical spread of nationals of the various External relations; Member States on the Commission's staff" and that, following that examin- ation, the selection board had been Press and Information; unable to accept his application.

Make an order as to costs in accordance That is the decision against which this with the legal provisions. action is brought. Upon hearing the report of the Judge- Rapporteur and the views of the 3. On 10 June 1982 the applicant again Advocate General the Court decided to expressed his surprise regarding that open the oral procedure without any decision and requested that he be informed of the specific reasons on preparatory inquiry. However, the which it was based. Commission was requested to reply before the hearing to the following questions: On 28 June 1982 the Commission notified the applicant on the one hand 1. When drawing up lists of persons that the selection board had made two admitted to the written tests did the successive selections (admission to the selection board adopt more precise competition and admission to the written and more functional criteria than tests) being concerned to ensure that those mentioned in the Commission's the geographical spread should not defence, (p. 6)? constitute the decisive factor for appraisal of the qualifications of the 2. Did the selection board have candidates and, on the other, that difficulties in drawing up a final list of although Mr Verzyck's qualifications candidates to be admitted to the were sufficient for admission to the competition (since it did not hesitate competition they did not suffice, after to re-examine the files of the 818 appraisal of the qualifications of the candidates who were initially refused other candidates, to secure his admission admission to the tests) and, if so, for to the written tests. what reasons?

In accordance with Article 95 (3) of the 2. Mr Verzyck on the other hand Rules of Procedure, the Court, by order claims that when it notified him that the of 30 September 1982, assigned the case selection board would re-examine his to the Second Chamber. qualifications with a view to admitting him to the written tests and would . Since its composition was changed on inform him of its decision, the 7 October 1982 the Court, by order of Commission postponed commencement 7 October 1982, assigned the case to the of the period for lodging an application Third Chamber. until such time as it had informed him of the decision taken by the selection board after it had carried out that re-examin- ation. I l l ·— S u b m i s s i o n s and argu- m e n t s of t h e p a r t i e s The procedure was not therefore merely confirmatory but involved a re-examin- ation of the circumstances of the A — Admissibility of the application applicant's case, as a result of which the initial conclusions arrived at by the 1. The Commission states that the selection board might have been altered. selection board's decision not to admit the applicant to the written tests was Accordingly the applicant considers that notified to him on 1 March 1982. The he was perfectly correct to await the applicant acknowledged receipt of that decision which was notified to him by notification on 5 March 1982. the Commission on 28 May 1982 and that his application, which was lodged The Commission maintains that Mr with the Court of Justice before the Verzyck should in normal circumstances expiry of a period of three months from have brought his action within the that date, is admissible. three months following that date. Consequently, since the action was not The applicant adds that the decision not brought until 25 August 1982, it ought in to admit him to the written tests in the principle to be declared inadmissible in competition adversely affects him and so far as the purpose of the decision of that his interest in challenging that 28 May 1982 was merely to confirm the decision cannot be questioned. prior decision refusing to admit him to the competition. B — The substance of the case The Commission nevertheless concedes that since the applicant was notified by 1. Failure to state the reasons on which letter of 26 March 1982 that the the contested decision was based selection board would carry out a fresh examination of his qualifications with a (a) Mr Verzyck puts forward arguments view to admitting him to the written tests in support of this submission which fall and would inform him of its new into four categories : decision, the applicant might have believed that the period of three months He claims in the first place, both as a would start to run only from the date of general principle of law and by virtue of that decision. the specific obligation imposed on the Community administration by Article 25 Accordingly the Commission relies in of the Staff Regulations, that every this matter on the judgment of the administrative decision relating to a Court. specific individual must, above all if it is

capable of adversely affecting that In the third place, Mr Verzyck points out person, contain an adequate statement of that the statement of reasons must in the reasons on which it is based. principle be communicated to the person concerned at the same time as the That statement of reasons must provide decision adversely affecting him and that the person concerned with sufficient the absence of a statement of reasons information to enable him to determine cannot be made good by the fact that the whether the refusal is well founded or person concerned learns of the reasons whether it is vitiated in such a way that on which the decision was based in the he may challenge its legality. course of proceedings before the Court

equate. In the fourth place the applicant claims that it is impossible to accept the That requirement was not satisfied in this arguments relied upon by the case since the letter of 28 May 1982 Commission in order to justify its failure contained no statement of reasons to state the reasons on which its decision whatsoever. was based because; Mr Verzyck claims in the second place that in this case the failure to state the The difficulty in comparing candidates' reasons on which the decision was based qualifications cannot justify, as the Court constitutes a breach of the formal has already held, a bald reference to requirements of the notice of com- Article 5 of the Staff Regulations without petition which, on the one hand, any endeavour to carry out a more contains an obligation to inform candi- detailed examination or an indication of dates of the reasons for their not being any additional criteria on which the admitted to the tests and, on the other, selection was based. provides that the selection board must establish the criteria on which it The principle that the work of selection examines candidates' qualifications, boards for competitions must be kept including, in particular, results of secret may not be relied upon to justify a university examinations and candidates' refusal to communicate objective infor-

JUDGMENT OF 9. 6. 1983 — CASE 225/82

contested decision contains no reference In accordance with the notice of to the criteria of assessment adopted by competition, which requires the selection the selection board and moreover that board to establish the criteria according mere knowledge of those criteria would to which it examines candidates' not enable him to determine the reasons qualifications, the Commission states why his application was refused as (appending a document in that regards admission to the written tests. connection to its defence) that the selection board took account of the following criteria: Finally Mr Verzyck considers that, although it is true that by reason of the number of candidates the Commission The number of candidates to be chosen cannot be required to inform each of the (between 350 and 450); candidates not admitted to the tests of the specific reasons for that decision it is not, however, necessary for the The provisions of Article 27 of the Staff Commission to restrict itself to such an Regulations; attitude after a complaint has been submitted. Consideration; "in its comparative analysis, of the differences between the In conclusion the applicant considers educational systems in the Member that the decision of 28 May 1982, even States and therefore separate evaluation after clarification by the subsequent of a series of similar and thus letter of 28 June 1982, does not contain comparable factors, and also practical a sufficient statement of the reasons on experience, including post-graduate which it was based to enable him to instruction- and. periods ! óf in-service determine the reasons for which he was training, both intrinsically and in relation not admitted to the written tests in to the field and the option chosen." Competition N o C O M / A / 3 2 5 .

each of the 509 candidates rather than 2. Breach of the principle of equality the unsuccessful candidate concerned. (a) In his application Mr Verzyck considers that even though the selection As regards disclosure of the criteria board may have adopted more selective which were adopted by the selection criteria in assessing the qualifications of board and were employed in choosing the candidates and the nature of their the candidates to be admitted to the post-graduate experience, all the candi- tests, the Commission claims that this dates ought nevertheless to have been was not requested by the applicant and treated equally and without discrimi- that if such a request had been made it nation. would have been granted. Mr Verzyck asserts that another candidate (Mrs Pelligrini), who has în its rejoinder the Commission adds fewer qualifications than he has, that disclosure was not only physically occupies a lower grade in the Belgian impossible but also legally impossible Civil Service and has less practical since in order to reveal the specific experience, was admitted to the written reasons for the decision the selection tests. board would have had to provide the applicant with information allowing him to make deductions regarding the That situation shows that he (like Mr proceedings of the board or, more Warêgne) has suffered discrimination seriously, the individual qualifications of and that the refusal to admit him to the other candidates, and that would be competition is vitiated both by the lack contrary to the principle upheld in the of a statement of reasons on which it was case-law of the Court of Justice that the based and by the fact that it was not work of selection boards must be secret. objective.

(c) In his reply the applicant claims that Warêgne's application was considered he has suffered discrimination in relation and followed up and denies Mr both to Mr Warêgne and to Mrs Verzyck's allegations, stating that they Pelligrini. are based on a simple error of fact in the Commission's defence. In Mr Warêgne's case the applicant considers that the Commission's expla- With regard to Mrs Pelligrini's case the nations are unacceptable and that to say Commission states that, having regard to that Mr Warêgne was admitted to the the degrees and practical experience of written tests after consideration whether the two candidates, the selection board his degree was of university level is false properly took the view, in the exercise of and in fact conceals certain facts its wide discretion and in the light of the recounted by Mr Verzyck. information supplied by Mr Verzyck in his application, that he was, by virtue In those circumstances Mr Verzyck both of his education and of his sub- considers that if the exceptional and sequent publications, primarily a lawyer privileged treatment accorded Mr and that his rôle as an economist was Warêgne is not extended to him he will secondary. Since the staff to be recruited suffer discrimination. were to carry out duties falling within the public finance, accounting and auditing option, it was permissible to As regards comparison of the applicant's give preference to candidates who were case with that of Mrs Pelligrini, Mr primarily economists, like Mrs Pelligrini, Verzyck rejects as false the Com- who holds a degree in applied economics mission's claim that he holds a major and is also qualified to teach economics degree in law and only a subsidiary in higher educational institutions. degree in economics.

admission to the competition and 2. The second question: the Commission admission to the tests. It maintains that replied that between 15 and 19 March it is clear from all the foregoing 1982 the selection board dealt with considerations that there was no discrimi- complaints lodged by the candidates who nation against the applicant and that the had not been admitted to the selection board was not guilty of any competition or to the written tests. The manifest error of appraisal in refusing to board re-examined in their entirety the admit him to the written tests. applications of the candidates admitted to the competition but not to the written The Commission emphasizes finally that tests. On the other hand it did not re- it has not itself committed any manifest examine the applications of the candi- error of fact or of law. dates whom it had decided not to admit to the competition or those of the candi- dates who had already been admitted to the written tests. IV — W r i t t e n observations lodged in reply to q u e s t i o n s p u t by t h e C o u r t V — Oral procedure 1. The first question: The Commission replied that the selection board con- sidered that no point would be served by The applicant, represented by G. Van- drawing up more precise or functional dersanden, Advocate, and the Com- criteria than those which it had already mission of the European Communities, established, particularly because other represented by R. Andersen, Advocate, criteria had already been laid down in presented oral argument at the sitting on the notice of competition and in fact 21 April 1983. the selection board adopted subsidiaiy criteria relating to studies, practical The Advocate General delivered her experience and knowledge of languages. opinion at the sitting on 19 May 1983.

4 Nevertheless the Head of the Recruitment Division notified the applicant by letter of 1 March 1982 that although the selection board initially considered that he fulfilled the requirements laid down for admission to the competition, it had then carried out "an examination . . . of the qualifications of the candi- dates admitted to the competition, based in particular on degrees and diplomas and practical experience relating to the field covered by the competition, with a view to improving the geographical spread of nationals of the various Member States on the Commission's staff" and, following that examination, the selection board had been unable to accept his application.

5 On 5 March 1982 the applicant expressed his surprise to the Recruitment Division at that decision and stated that it was impossible to deduce from the wording of the decision the reasons on which it was based and he asked in addition for information as to the qualifications and the degrees and diplomas of other candidates.

VERZYCK v COMMISSION

6 On 26 March 1982 the Commission informed the applicant that the selection board would re-examine his qualifications with a view to admitting him to the tests.

7 On 28 May 1982 the Head of the Personnel Department of the Commission informed the applicant that, after a re-examination of the file on his application, he had not been admitted to the written tests. It is against that decision that these proceedings have been brought.

T h e claim for a n n u l m e n t of t h e d e c i s i o n of 28 M a y 1982

Substance of the case

1 2 As regards the substance of the case, the applicant makes three submissions relating respectively to a failure to state the reasons on which the contested decision was based, a breach of the principle of equality and a manifest error vitiating the decision of 28 May 1982.

T h e a b s e n c e or i n a d e q u a c y of t h e s t a t e m e n t of t h e r e a s o n s on which the decision was based

1 3 The contested decision is worded as follows : "As I mentioned in my letter at the end of March 1982 the selection board has re-examined the file on your application. I regret to inform you that, after comparing the candidates' degrees and diplomas, the selection board has decided not to admit you to the written tests".

H In order to justify the contested decision the Commission relies in the first place upon the need to observe the principle of secrecy regarding the proceedings of selection boards, but it must be stated in reply to that argument, as the Court held in its judgment of 28 February 1980 in Case 89/79 Bonu v Council of the European Communities [1980] ECR 553, that although observance of that principle stands in the way of disclosure both of the views taken by the individual members of selection boards and of any information relating to personal or comparative assessments of candidates, it cannot absolve a selection board for a competition from its obligation to inform a candidate who is rejected at the stage of the selection on the basis of qualifications of the reasons for that decision, at least in summary form.

particularly, to the number of candidates competing in each of them. In the case of competitions 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 proceedings of the selection boards and the work of the personnel administration. In order to make allowance for the practical difficulties confronting a selection board for a competition for which there is a veiy large number of applications, it may be accepted that the selection board may initially send to candidates merely information on the criteria for selection and the result thereof and not give individual expla- nations until later and to those candidates who expressly request them, on condition, however, that those individual details are sent by the selection board before the expiiy of the period laid down by Articles 90 and 91 of the Staff Regulations, so that the recipients may, if they think fit, avail themselves of their rights.

17 The text of the contested decision set out above shows that it did not inform the applicant of even the general criteria on which the qualifications of the candidates were appraised and the selections made and does not contain any statement, even in summaiy form, of the reasons on which the decision relating to him was based. Such a decision cannot therefore be regarded as stating the reasons on which it is based and the arguments relied upon by the Commission in its defence, based on the large number of applicants, the physical impossibility of providing a more precise statement of the reasons for the refusals to admit candidates to the competition and the fact that Mr Verzyck did not expressly request disclosure of the criteria of assessment adopted by the selection board, cannot be accepted.

2i Under Article 69 (2) of the Rules of Procedure the unsuccessful party must be ordered to pay the costs. Since the Commission has been substantially unsuccessful in its submissions it must be ordered to pay the costs.

On those grounds,

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

hereby:

1. Annuls the decision dated 28 May 1982 by which the Commission informed Mr Verzyck that the selection board in Open Competition No COM/A/325 refused to admit him to the tests in the said competition;

2. Dismisses the remainder of the application: