61979J0089

1 . OFFICIALS - RECRUITMENT - COMPETITIONS - SELECTION BOARDS - SECRECY OF PROCEEDINGS - EXTENT

( STAFF REGULATIONS OF OFFICIALS , ANNEX III , ART . 6 )

2 . OFFICIALS - RECRUITMENT - COMPETITIONS - SELECTION BOARDS - REFUSAL OF ADMISSION TO THE TESTS - OBLIGATION TO GIVE A STATEMENT OF REASONS - EXTENT

( STAFF REGULATIONS OF OFFICIALS , ANNEX III , ART . 5 )

1 . THE SECRECY OF THE PROCEEDINGS OF SELECTION BOARDS FOR COMPETITIONS WAS INTRODUCED BY ARTICLE 6 OF ANNEX III TO THE STAFF REGULATIONS OF OFFICIALS WITH A VIEW TO GUARANTEEING THE INDEPENDENCE OF SELECTION BOARDS AND THE OBJECTIVITY OF THEIR PROCEEDINGS , BY PROTECTING THEM FROM ALL EXTERNAL INTERFERENCE AND PRESSURES WHETHER THESE COME FROM THE COMMUNITY ADMINISTRATION ITSELF OR THE CANDIDATES 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 DISCLOSURE 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 .

2 . THE REQUIREMENT THAT SELECTION BOARDS FOR COMPETITIONS GIVE A STATEMENT OF THE REASONS FOR DECISIONS REFUSING TO ADMIT A CANDIDATE TO THE TESTS 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 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 .

IN CASE 89/79

FRANCESCO BONU , AN OFFICIAL OF THE ISTITUTO NAZIONALE DELLA PREVIDENZA SOCIALE ( NATIONAL SOCIAL WELFARE INSTITUTION ) ( I.N.P.S .), RESIDING AT CAGLIARI , ITALY , REPRESENTED BY LOUIS SCHILTZ , ADVOCATE OF THE LUXEMBOURG BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF MR SCHILTZ , 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 ,

1 THE APPLICANT , AN ITALIAN NATIONAL RESIDING AT CAGLIARI , SARDINIA , BY AN APPLICATION OF 5 JUNE 1979 HAS ASKED THE COURT , PURSUANT TO ARTICLE 91 OF THE STAFF REGULATIONS OF OFFICIALS OF THE EUROPEAN COMMUNITIES , TO ANNUL THE DECISION WHEREBY THE SELECTION BOARD FOR OPEN COMPETITION COUNCIL/LA/170 ( ITALIAN-SPEAKING TRANSLATORS ), FOR WHICH THE APPLICANT HAD SENT IN AN APPLICATION FORM , REFUSED TO ADMIT HIM TO THE TESTS IN THIS COMPETITION .

2 IT IS CLEAR FROM THE FILE THAT THE APPLICANT SUBMITTED HIS APPLICATION ON 7 NOVEMBER 1978 IN THE PROPER MANNER TO ENTER THE ABOVE-MENTIONED OPEN COMPETITION WHICH IS THE SUBJECT OF THE NOTICE AND NOTIFICATION PUBLISHED IN THE OFFICIAL JOURNAL OF 29 SEPTEMBER 1978 ( C 231 , PP . 2 AND 6 RESPECTIVELY ). THE COUNCIL ACKNOWLEDGED RECEIPT OF HIS APPLICATION FORM BY A LETTER OF 22 NOVEMBER 1978 . THE ADMINISTRATION DEPARTMENT OF THE COUNCIL INFORMED THE APPLICANT THAT HE HAD NOT BEEN ADMITTED TO THE TESTS IN THE FOLLOWING TERMS :

' ' 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 .

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 .

4 THE COUNCIL STATES THAT THE COMPETITION IN THIS CASE WAS ' ' A COMPETITION ON THE BASIS OF BOTH TESTS AND QUALIFICATIONS ' ' WITH THREE SUCCESSIVE STAGES OF SELECTION . AS FAR AS CONCERNS THE FIRST STAGE OF THIS COMPETITION , CONSISTING OF THE EXAMINATION OF CANDIDATES ' QUALIFICATIONS , THE APPLICANT WAS ADMITTED TO THE COMPETITION . IT WAS ONLY DURING THE SECOND STAGE OF THE PROCEDURE , THE PURPOSE OF WHICH WAS TO DRAW UP A LIST OF CANDIDATES ADMITTED TO THE TESTS , THAT THE APPLICANT ' S APPLICATION WAS REJECTED . THE COUNCIL MAINTAINS THAT THIS STAGE OF THE SELECTION BOARD ' S PROCEEDINGS ARE COVERED BY THE OBLIGATION OF SECRECY AS THE COURT HAS CONSISTENTLY HELD IN ITS CASE-LAW SINCE ITS JUDGMENT OF 14 JUNE 1972 IN CASE 44/71 ANTONIO MARCATO V COMMISSION OF THE EUROPEAN COMMUNITIES ( 1972 ) ECR 427 . SINCE THE OUTCOME OF THE FIRST STAGE OF THE COMPETITION WAS FAVOURABLE TO THE APPLICANT AND THE SECOND STAGE , WHICH CULMINATED IN HIS REJECTION , IS COVERED BY THE SECRECY ATTACHING TO THE SELECTION BOARD ' S PROCEEDINGS , THE COUNCIL IS OF THE OPINION THAT IT DID NOT HAVE TO STATE THE REASONS FOR ITS DECISION .

5 THIS DEFENCE OF THE COUNCIL CANNOT BE ACCEPTED . IT IS BASED ON A WRONG INTERPRETATION OF THE IMPLICATIONS OF THE SECRECY OF THE PROCEEDINGS OF SELECTION BOARDS FOR COMPETITIONS . THIS SECRECY WAS INTRODUCED BY ARTICLE 6 OF ANNEX III TO THE STAFF REGULATIONS OF OFFICIALS WITH A VIEW TO GUARANTEEING THE INDEPENDENCE OF SELECTION BOARDS AND THE OBJECTIVITY OF THEIR PROCEEDINGS , BY PROTECTING THEM FROM ALL EXTERNAL INTERFERENCE AND PRESSURES WHETHER THESE COME FROM THE COMMUNITY ADMINISTRATION ITSELF OR THE CANDIDATES 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 .

8 THE RESULT OF THE FOREGOING IS THAT THE CONTESTED DECISION MUST BE ANNULLED FOR INFRINGEMENT OF ESSENTIAL PROCEDURAL REQUIREMENTS SINCE THERE IS NO STATEMENT OF THE REASONS FOR IT .

COSTS

9 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .

10 AS THE DEFENDANT HAS FAILED IN ITS SUBMISSIONS IT MUST BE ORDERED TO PAY THE COSTS .

ON THOSE GROUNDS ,

THE COURT ( 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 .