C-100/87

BASCH AND OTHERS v COMMISSION

OPINION OF MR ADVOCATE GENERAL JACOBS delivered on 20 January 1989 *

My Lords, invited each candidate to interviews, held in June and July 1986, at which it asked each candidate the same questions as it had asked the respective superiors. That procedure resulted in a standard letter dated 11 July 1986 informing the candidates that the information provided by them had given the selection board no cause to modify its decision of 15 June 1984. After complaints 1. These joined cases involve further liti­ from various of the applicants that that was gation over the decisions of the selection not enough — complaints which were board in internal competition clearly, in my view, well founded — the COM / B / 2 / 82 . That competition was board invited the candidates to further arranged to provide a reserve list of admin­ interviews, held in December 1986, at which istrative, secretarial and technical assistants it asked the candidates to comment on the in Grades 5 and 4 of Category B. In Cases views expressed by their superiors. The 293/84 Sorani and Others v Commission board thereby sought to comply with the [1986] ECR 967 and 294/84 Adams and judgments of the Court, but the results were Others v Commission [1986] ECR 977 the meagre. The applicants in the present cases Court annulled the decisions of the selection all received letters in identical terms dated board in that competition refusing to admit 12 February 1987 stating that the infor­ the applicants in those cases to the tests. In mation thus provided had not led the Sorani there was a total of 11 applicants and selection board to change its mind, and in Adams a total of 53. The decisions were therefore in effect confirming that they were annulled on the ground that the candidates not to be admitted to the tests. The did not have an opportunity to state their applicants in these cases all appeal against views on the opinions expressed on them by that decision. There are 26 applicants in their superiors (paragraphs 17 to 19 of the Case 100/87 and one applicant in each of judgment in Case 293/84 and paragraphs 22 Cases 146 and 153/87. to 24 of the judgment in Case 294/84).

the Statute and Article 102 of the Rules of and 153/87 to the effect that the Procedure. It is claimed that the judgments Commission failed properly to implement in those cases mean that the applicants the earlier judgments by not admitting those should have been admitted to the tests applicants to the tests forthwith. without further ado. But, as I have said, the ground upon which those judgments were based was that the selection board improperly denied the candidates an oppor­ tunity to comment on what their superiors had said. It therefore followed that the 5. I now turn to the substance of the case: decision of the selection board was the applications to annul the decision annulled. All the parties agree that the contained in the letter of 12 February 1987 judgments had that effect. There is, to my rejecting the applicants' admission to the mind, no ambiguity involved. What is at tests. issue between the parties is the application of the judgments to a given set of facts, in this case the status of the applicants following the judgments. The Court has consistently held that requests for interpre­ tation which in effect concern the execution of a judgment are inadmissible (see, in That letter was in the following terms: particular, Case 110/63 A Williame v Commission [1966] ECR 287 and Case 206/81 A Alvarez v European Parliament [1983] ECR 2865). As Advocate General VerLoren van Themaat said in the latter case (at p. 2877) 'By its nature, the annulment of a . . . decision results in the 'The selection board has considered with restoration of the status quo ante. The the greatest care your views on the annulment of the decisions of the selection comments made by your superiors as well as board in Cases 293 and 294/84 restored the the other information you gave the board applicants to the position they were in both orally and in writing. before the decisions were taken, that is to say their candidatures were still under consideration by the selection board. That was also the view of Advocate General Sir Gordon Slynn who said at the end of his Opinion in Case 294/84: 'All the present I should remind you that the various cases ... must be reviewed ... to see which interviews which took place are only one of if any of the candidates should proceed to the the matters to be taken into consideration in testf (emphasis added). No question for the overall assessment of your candidature. interpretation arises and I therefore conclude that the application for interpre­ tation in Case 100/87 should be dismissed as inadmissible.

That decision, it will be recalled, confirmed its decisions to reject applications; and that, the earlier decision of 15 June 1984. although it was permissible, having regard to the large number of candidates, to make use of summarized statements of reasons, a mere statement that the candidate did not fulfil a condition made up of several different elements could not satisfy the 6. The applicants in all the cases advance requirement to state reasons, particularly various arguments and I shall deal with since such a statement could not provide them in turn. First, in Cases 100 and him with a sufficient indication to enable 146/87, it is said that there is no or no him to know whether the refusal was well sufficient reasoning in the letter. It is, of founded. In Case 225/82 Verzyck v course, a fundamental requirement of Commission [1983] ECR 1991, the Court, Community law that decisions should state following its decisions in Case 112/78 the reasons on which they are based. The Kobor v Commission [1979] ECR 1573 and fundamental principle is exemplified in in Case 89/79 Bonu v Council [1980] ECR Article 25 of the Staff Regulations which 553, held that the level of reasoning reads so far as material as follows: required may vary according to the type and level of competition. In a competition with a very large number of applications, it would put an intolerable burden on the adminis­ tration to give detailed reasons in every Officials may submit requests to the instance and therefore, while there must be appointing authority of their institution. a basic statement of reasons, that may be in summary form unless individual expla­ nations are expressly requested. However, the reasons must still be given in summary form, and the decision challenged in that case was annulled on that ground notwith­ Any decision relating to a specific individual standing that the applicant did not expressly which is taken under these Staff Regulations request reasons. The same principles must shall at once be communicated in writing to apply in the present competition, although the official concerned. Any decision there was an exceptionally large number of adversely affecting an official shall state the candidates. grounds on which it is based

previous case-law. As for the earlier two new element to be taken into consideration cases arising out of this competition, Adams by the board was the comments made by the and Sorani, I note that the point on lack of candidates on the views expressed by their reasoning was not taken in Adams and the superiors. The Commission states that it is decisions of the selection board were reasoning enough to say that the single new annulled in those cases on a different element did not cause the board to change ground as I have already mentioned. its mind. However, it was apparent that those decisions would have been vitiated in any event for lack of reasoning and in Sorani Advocate General Sir Gordon Slynn expressly said so. He said: 'As to the lack of reasons, it is to be borne in mind that in a competition of this kind, with so many 10. That argument cannot in my view candidates, general reasons may be succeed. Leaving aside the fact that, if the sufficient in the first instance. Yet when decision in the letter of 12 February 1987 individuals ask for individual reasons and was a confirmation of an earlier decision, their cases are re-examined, it is, in my then the earlier decision itself must be view, incumbent on the board to identify properly reasoned, which it plainly was not, the factors applicable to the individual I take the view that, even as a summary, the candidate ... '. He added that each letter of 12 February 1987 was deficient in candidate was entitled to know which of the reasoning. It contains no indication that the qualifications he did not satisfy in order that applicants' cases had been considered indi­ he could consider whether the board had vidually at all. It was the last in a series of erred in law in coming to such a conclusion, standard letters, going back to June 1984, at by for example taking into account wholly the end of which none of the applicants has, irrelevant considerations. even now, been informed of the reasons why they were excluded from the tests.

those cases, hide a defect of procedure 14. Many criticisms were levelled at the justifying annulment of the decisions of the conduct of the competition in Sorani, Adams selection board. and Beiten and the applicants in these proceedings repeat a number of those criticisms and raise new ones, as they are entitled to do. The applicants in Case 100/87 challenge the legality of the procedure on the ground that the superiors consulted originally were the assistants to various Directors-General instead of the immediate superior of each candidate. 12. In the cases now before the Court, the While one can see the apparent advantages Commission has produced the minutes of of the procedure in a competition attracting the meeting of the board together with 860 candidates, there seems force in the examples of the tables drawn up by the contention that the assistants to the board showing the answers given by the Directors-General could not have a detailed candidates. Those minutes do not provide acquaintance with the attainments of all the the same reassurance as in Sergio. The candidates. However the Commission must records are incomplete, and so far as they be allowed a considerable latitude in the go they provide no indication why the organization of a competition of this kind, answers given by the candidates were not and I do not consider that the method used, accepted. And they relate of course only to and expressly foreshadowed in the Notice the final step in the procedure. In those of Competition, was so unreasonable as to circumstances, I do not consider that one render the competition unlawful. can apply here the very limited exception laid down in Sergio to the general rule.

16. In Case 146/87, the applicant claims memoranda, to remember what had been that since, 15 years previously, he was twice the views of the candidates' superiors when, placed on the list of suitable candidates to some three years later, the board inter enter a competition for promotion to a viewed the candidates on those views. It is category B post, he should have the same claimed that the board should have asked right now in the absence of sufficiently clear the superiors again for their views so that it reasoning for the change. He relies on Case would be in full possession of all the facts. 112/78 Kobor v Commission [1979] ECR The Commission suggests that the members

But I another competition where the same level of do not consider that it was an improper way experience is required — in the absence of of proceeding such as to make it necessary reasons to the contrary. The applicant does to annul the decision on that ground. not state whether it was purely his However, for the reasons I have already experience that admitted him to the earlier given, the decisions should be annulled in tests, but he implies that it was because of all the cases. the good reports made on him by his superiors. I do not consider, in those circumstances, that a later selection board is bound by reports on a candidate made 15 years and more previously and which were considered good by an earlier selection

17. Finally, the applicants in all three cases confined to the reasons why the additional claim that the selection board would have information subsequently supplied did not been unable, in the absence of written lead the board to change its mind. And the