DELIVERED ON 16 NOVEMBER 1978 (*1)

Mr President,

Members of the Court,

1. The applications in respect of which this opinion is delivered were submitted by three candidates for the same competition who were not admitted to the tests. The competition in question was COM/A/154 (published on 7 September 1977 in the Official Journal of the European Communities No C 213), held in order to constitute a reserve of administrators in career bracket A 7/A 6 with the Commission. The notice of competition, in describing the nature of the duties to be performed, stated that such duties related to specified aspects of Community activity (general administration, administration of research activities, external relations, information, financial and budgetary affairs and social affairs); the application form for the competition required each candidate to choose one of these fields. Furthermore, amongst the special conditions for admission to the competition was a requirement that the person concerned should have completed a university education, leading to a degree or diploma, in a field appropriate to the option chosen, together with at least one year's experience obtained after graduation which also had to be relevant to the option chosen. The selection board was required to draw up a list of candidates satisfying the prescribed conditions and to admit them to the written test.

Amongst the candidates for the competition in question were Enrico M. Salerno, Xavier Authie and Giuseppe Massangioli; the first opted for the field of financial and budgetary affairs whilst the other two chose external relations. In Mr Salerno's degree certificate it was stated that he had graduated in economics and commerce at the University of Rome; Mr Authie's certificate stated that he had a degree in economics, for which he had chosen the econometric option, from the University of Orleans and Mr Massangioli had obtained a degree in political science from the University of Rome. All three candidates put forward as practical experience, obtained after graduation, Certificates of Advanced European Studies obtained at the College of Europe, Bruges (Mr Salerno and Mr Authie specialized in economics whilst Mr Massangioli specialized in ‘administrative science’). Mr Massangioli had also attended a preparatory course for the diplomatic service.

The selection board decided not to admit either Mr Salerno, Mr Massangioli or Mr Authie to the tests: in the case of the first two because it did not consider that their experience obtained after graduation was sufficiently related to the aspect of Community activity for which they had opted, and in the case of the third candidate because it did not consider that his qualifications or degrees were in conformity with the qualifications required. All of the candidates who were refused admission requested the Commission to reconsider their cases but they all received replies confirming the decision which had previously been taken. The candidates thereafter lodged administrative complaints within the meaning of Article 90 (2) of the Staff Regulations of Officials and, a few days later, followed this up by instituting proceedings for the annulment of the decision. Mr Salerno and Mr Authie also requested the adoption of interim measures to suspend the competition; these requests were dismissed by the President of the Second Chamber in orders of 13 January and 10 March 1978.

Relevant factors have emerged in the course of the preparation of the cases, both from the replies given by the Commission to certain questions put to it by the Court and from the statements of Mr Desbois, chairman of the selection board, who gave evidence at the hearing on 12 October 1978.

2. In case 28/78, Massangioli, the Commission expressed doubts regarding the admissibility of the application since it was lodged only two days after the submission of the complaint to the appointing authority in pursuance of Article 90 of the Staff Regulations of Officials; there was thus no decision rejecting the complaint which, according to Article 91 (2) of the Staff Regulations, constitutes one of the conditions for the admissibility of an application to the Court. Nevertheless regard must be had for the statement in Mr Massangioli's application, lodged on 3 March, to the effect that he submitted his complaint through official channels only in case the Court considered that an application against the decision of the appointing authority required to be preceded by a complaint pursuant to Articles 90 (2) and 91 (2) of the Staff Regulations.

In those circumstances it is necessary to bear in mind the settled case-law of the Court of Justice in accordance with which Article 91 (2) ‘refers only to measures which the appointing authority can review and does not therefore cover the decisions of a selection board’. This principle was recently upheld in the judgment of 16 March 1978 in Case 7/77 von Wüllerstorff und Urbair ([1978] ECR 769); the Court has delivered similar rulings, in Cases 44/71 and 37/72 Marcato, dated respectively 14 June 1972 and 15 March 1973, [1972] ECR 427 and [1973] ECR 361, but the judgment in Case 7/77 is more instructive in that it dispels doubts caused by the new wording of Article 91 of the Staff Regulations following the revision of 1 July 1972. It must be added that in the two said Marcato cases, as in the second Costacurta case, 31/75 (which was settled by the judgment of the Court of 4 December 1975 [1975] ECR 1563) there arose the problem of calculating the period of three months within which applications must be submitted since the practice of submitting a prior complaint evidently means that the period runs not from the date when the selection board notifies its decision but from the subsequent date of the decision of refusal taken by the appointing authority (or of the expiry of the period for a reply). In the present case however this problem does not arise; it is clear that the three parties concerned have in fact lodged applications within the period of three months from receipt of the letter of the Commission (the Directorate General for Personnel and Administration) notifying them that they would not be admitted to the written test. Accordingly there can be no doubt on this point as to the admissibility of Mr Massangioli's application; this also applies to the applications of Mr Salerno and Mr Authie which were likewise also preceded by complaints through official channels submitted some days earlier.

3. In my view the arguments whereby the persons concerned maintain that they were wrongly refused admission to the written test can be grouped as follows: first, they maintain that the competition procedure was invalidated by certain irregularities concerning the participation of ‘examiners’ in the work of the selection board, failure to observe the principle of collegiality and the procedures for reviewing the position of certain of the candidates who had not been admitted; secondly, they maintain that the failure to provide an adequate statement of reasons for the contested decision means that a procedural requirement was infringed; thirdly, they maintain that the substance of the decision was discriminatory in view of the fact that it was decided to admit other candidates with the same qualifications. In Mr Massangioli's application mention is also made of the fact that the applicant had been admitted to a similar, previous competition; however it is not clear according to what criteria that is to be held to constitute an additional defect in the contested decision and indeed the point remains subsidiary since it was neither taken up nor developed in the subsequent course of his observations.

I have to observe that, in considering the grounds on which the applications are based, it is necessary to disregard the categories into which they have been divided by the applicants, who have produced an extensive list of categories of administrative irregularity, including ultra vires measures, error of fact and error of law, whilst failing to provide in every case objective justification, though sometimes, perhaps, ad abundantiam. On the other hand, it seems to me essential that I should give my views on the general point outlined in paragraph 6 of the operative part of the order whereby the President of this Chamber refused Mr Salerno's application for interim measures; that point is ‘whether the Court's task of carrying out a review of legality extends to the discretion exercised by the selection board in respect of the relevance of a certificate of post-graduate studies to justify according to the terms of the Notice of Competition COM/A/154 practical experience in relation to one or other of the fields selected by the candidates’. I think it can be stated in this connexion that the above-mentioned discretion undoubtedly constitutes a technical decision coming within the competence of the selection board, in which matter the Court cannot claim to substitute itself for the board; on the other hand it must be stated that, if the Court is to decide as to whether or not there is an irregularity relating to the substance of the contested measure, for example violation of the principle of non-discrimination or abuse of powers, it may be required also to evaluate the technical decision of the board although, of course, for the sole purpose of establishing the existence or otherwise of the irregularity complained of by the applicant. This was furthermore the policy adopted by the Court of Justice in the said case of von Wüllerstorff und Urbair.

4. The applicants, in their complaints concerning the assistance given to the selection board by examiners, are concerned to call in question first the service of such persons at the stage of the examination of applications for the purposes of admitting applicants to the tests, and secondly the powers delegated to such examiners, to whom the board in substance transferred a thorough-going power of decision.

The provisions of the second paragraph of Article 3 of Annex III to the Staff Regulations should be recalled: ‘The Selection Board may, for certain tests, be assisted by one or more examiners serving in an advisory capacity’. The applicants maintain that the use of the words ‘for certain tests’ (epreuves in the French version) means that recourse to examiners in assessing whether to admit candidates is improper. However, the Court of Justice has recently held, in its judgment of 26 October 1978 in Case 122/77, Claes (nee Agneessens) and Others v Commission, that the provision in question cannot be understood as enumerating exhaustively the cases in which a selection board may legitimately have recourse to the assistance of examiners in an advisory capacity and it added that it does not prevent recourse to such a procedure in cases where the large number of candidates involved in a competition would otherwise prevent the selection board from completing its work within a reasonable period. It seems to met that this view should be adopted in the present case both in view of the very large number of candidates for the competition (the Commission has stated that there were 4272) and because language requirements were the principal reason for the recourse to examiners at the stage of assessing the qualities required for admission (this has been stated by Mr Desbois, chairman of the selection board; it is significant that a French-speaking examiner was considered unnecessary since Mr Desbois' native language is French). It seems to me, then, that in this matter the procedure followed by the board was not at variance with the above-mentioned provisions.

The other aspect of the problem is more complex. The Court, in its said judgment in the Claes (nee Agneessens) case emphasized with regard to relations between the selection board and the examiners that it is necessary for the board ‘to retain ultimate control over the procedures and its discretionary power’. In that case the board supervised the establishment of the criteria to be used in assessing the factors to be taken into consideration in accordance with the notice of competition and furthermore supervised all stages of the work of the examiners and itself adopted the final decisions on the basis of the examiners' suggestions.

The position appears to be different in the present cases. The minutes concerning the work of the selection board dated 8 January 1978 seem to show that too much power was delegated to the examiners in that it is stated that ‘in order to draw up the list of candidates who meet the conditions for admission the selection board has appointed the examiners named in Annex II’; however, it is stated immediately afterwards that ‘pursuant to the first paragraph of Article 5 of Annex III to the Staff Regulations the selection board has drawn up the list of candidates who meet the conditions for admission to the competition and whose names appear in Annex III’. Furthermore the Commission, in its rejoinder in Case 4/78, has emphasized that Annex II to the said minutes is entitled ‘List of Examiners appointed to assist the Selection Board in connexion with the Admission of Candidates’.

In this respect the testimony of Mr Desbois is of prime importance. First of all he recalled that the board at its first meeting decided on ‘the assessment, on the basis of candidates' files, of the candidates' degrees and diplomas against the required qualifications’; he further explained that the board met ‘on several successive days to compare candidates' degrees and qualifications with the required qualifications’ thus considering ‘candidates' files as a whole’; finally he added that ‘in preparation for this operation the board … requested certain officials of the Commission to examine in advance, without substituting their decisions for that of the board inter alia and in particular, the requisite conditions, qualifications and practical experience.’ Nevertheless it emerged from the latter part of the testimony, particularly from the replies to the questions put by the Judge-Rapporteur and the Advocate General that: (a) examiners made ‘suggestions’ as to the comparative value of degrees and diplomas and as to the relation between such degrees and diplomas and the fields chosen by the candidates; (b) in this connexion the board failed to establish either clear guide-lines or specific criteria; the examiners received certain ‘recommendations’ and ‘somewhat general guide-lines’; (c) where the examiners were doubtful the file was put aside for a decision by the board; ‘a few minutes per day’ were given over to this examination of files which gave rise to problems.

that ‘the criteria of assessment should be fixed [in advance] in order to ensure that the qualifications are assessed objectively and without any possibility of arbitrariness’.

However, the problem whether or not general criteria are necessary arises here in a situation in which it was important to guarantee the consistency and homogeneity of assessment of qualifications, which was entrusted to a certain number of examiners working in isolation. Furthermore the two requirements of a university degree or diploma and at least one year's practical experience obtained after graduation in the field chosen by the candidate gave rise to a large number of difficult general questions in the present case: for example, which degrees were undoubtedly ‘congruent’ with each aspect of Community activity; what must be understood by the words ‘practical experience’; could the minimum duration of one year be reduced to an academic year of further study; whether general practical experience which included certain aspects of the chosen field was sufficient or whether specialized experience was necessary; what practical experience was best suited to the fields indicated in the notice of competition (it would at least have been possible to draw up a list for guidance which, whilst not exhaustive, would have served as a point of reference). It is clear that the selection board failed to provide the examiners with instructions on any of these general points. Further, with regard to the subsequent check, the fact that it was restricted to disputed cases — and, it should be emphasized, specifically to cases about which each examiner had doubts — has established that the examiners in fact enjoyed independent powers of decision. In conclusion, therefore, it appears to me that the relationship between the selection board and the examiners in the present case was at variance with the principles set out in the Claes (nee Agneessens) case, observance of which is increasingly' necessary since there is a growing tendency to have extensive and frequent resort to examiners.

The applicants Authie and Salerno have at a number of points in their applications relied upon another procedural irregularity, namely that the board did not operate as a collegiate body. In particular, the applicants maintain that many decisions were taken by the chairman of the selection board alone, both in the first stage of assessing qualifications and in re-examining the files of certain candidates who reacted against the notification that they were not to be admitted.

I have to observe first of all that from the point of view of substantive law the fact that most of the decisions as to whether candidates should be admitted were taken individually by examiners or, in the case of candidates of French mother-tongue, by the chairman, constitutes a serious infringement of the principle of collegiality; nevertheless it must be considered that, formally, the minutes of the selection board indicate that the board itself drew up the list of candidates, ratifying in the last analysis the assessments of the individual members of the board or of the examiners. Furthermore it is now impossible to ascertain which assessments of candidates' suitability were based on the ‘suggestions’ of an examiner or of a member of the board and confirmed in toto by the other members and in which cases candidates were discussed by the selection board, followed by deliberation on that individual case.

With regard to the part played by Mr Desbois, the said wording of the minutes also extends to any decision which he may have taken individually at the stage of assessing qualifications. It was indeed the chairman alone who signed the ‘fiches’ (‘slips’) recording whether or not each candidate had met the requirements for the competition; that record was, however, of provisional and internal status. Mr Desbois, in his testimony, has explained that the ‘fiches’ in question ‘were prepared in certain cases by examiners and by the board either as a whole or, at their request, inter alia by myself as chairman of the board’. The foregoing however merely seems to confirm that, in the case of candidates of French mother-tongue, the board placed matters in the hands of Mr Desbois, just as it entrusted the assessment of the suitability of other candidates to the examiners. There remains the problem of the individual or collegiate nature of the decisions on the unofficial complaints submitted to the board by candidates who were not admitted; this question, however, should be considered in the context of the strange procedure of reconsidering the files which the applicants have contested under a number of heads.

I shall now survey the factors which make it possible to reconstruct that phase of the selection board's work. The minutes of 8 January 1978 merely state that ‘five of the candidates were admitted after re-examination of their applications’ (and lists their names); ‘on the other hand the board confirmed its original decision not to admit the candidates, in particular (“notamment”) in the case of Jean Maas and Martine Snappe’. The Commission, in its replies to the questions put to it by the Court of Justice, stated (point 5) that ‘during its meeting on 8 January 1978 the selection board in competition COM/A /154 considered all the application forms which gave rise in any way to complaints from disappointed candidates or from persons acting on their behalf. Five of these “complaints” were upheld by the board and are specified in the board's minutes, being decisions to include those concerned on the list of admitted candidates, thereby modifying the original decisions of refusal. The two cases of rejection of complaints mentioned in the minutes of 8 January 1978 of the selection board are cited by way of example.’

The circumstances are also briefly outlined in the Commission's reply in Case 28/78. There it is stated inter alia that the selection board in the competition ‘following the receipt of letters, telephone calls and other communications was led to reconsider the applications and subsequently accepted five additional applications, whilst all the other decisions refusing admission were maintained. It is not possible to infer any discrimination from the fact that the applications of Maas. and Snappe were mentioned in the minutes of the selection board's meetings, the more so because these two cases were cited by way of example, as is indicated by the words “notamment”.

Finally, we come to the testimony of Mr Desbois. He recalled that on 8 January the selection board met to consider the files of candidates ‘who had formally (sic) contested the decision of the board’; ‘the previous decision was thus annulled, in a positive sense,’ in respect of an additional five candidates who were admitted ‘on the basis of documents which had not been produced in good time’, although it was impossible to give a favourable response to all the requests for re-examination of the files.

Accordingly the above factors establish clearly that, after the board had decided not to admit a large number of candidates to the tests (it must not be forgotten that the letters sent to the applicants to inform them of the refusal to admit them are dated 5 December), it received protests and complaints which were justified to a greater or lesser degree; at its meeting of 8 January it therefore decided to re-examine the files of those candidates who had contested its decision, revoked its refusal in the case of five candidates, neglecting to state how many ‘complaints’ had been dismissed, and merely mentioned, in its celebrated minutes, two unsuccessful cases by way of example.

As I indicated at the outset the application is also based on the failure to provide a statement of reasons for the contested decisions. In this matter the applicants have relied upon the second paragraph of Article 25 of the Staff Regulations (whereby any decision adversely affecting a specific official shall state the reasons on which it is based) and the case-law of the Court of Justice. It is not clear to me that Article 25 is applicable to the situation where a candidate is not admitted to the tests in a competition; nevertheless the three judgments cited above, those of 14 June 1972 and of 15 March 1973 in the two Marcato cases and that of 4 December 1975 in the second Costacurta case, are certainly of considerable assistance with regard to the problem in question.

In those judgments the Court adopts a very interesting attitude to the procedure to be followed in the examination of applications carried out by the selection board in order to determine which candidates can be admitted to a competition. It distinguishes this first stage of any competition from the subsequent stage, namely the examination of the suitability of candidates for the posts to be filled, observing that whilst the second stage ‘consists mainly of comparison, and is accordingly covered by the secrecy inherent in the task of a selection board’, the first consists of the matching, on the basis of objective facts which are known to each candidate in his own case, of the qualifications offered by the candidates against the qualifications required by the notice of competition. That is why the said judgments all establish that the results of such matching ‘must be supported by sufficiently clear reasons’. In the two Marcato cases the Court of Justice held that a sufficiently clear statement of reasons had not been provided since the selection board's report merely indicated the qualifications in which the applicant was considered to be deficient.

What is the position in the present case? The decisions complained of were notified to the persons concerned by means of standard letters which were principally intended to notify them that they had not been admitted and thereafter listed four kinds of reason with a box beside each; the box marked with a cross indicated to the recipient of the letter the reason in his case. In the letter to Mr Authie the reason indicated was the second (‘your qualifications or degrees were not regarded as being in conformity with the qualifications required’); in the letters to Mr Salerno and Mr Massangioli the third reason was indicated (‘your experience was not regarded as sufficiently related to the field of the competition’).

The minutes of 8 January record that the candidates who did not fulfil the prescribed conditions for admission are listed in three annexes, all of which include cases where a requirement was not met. More precisely, Annex TV is headed ‘Outside the age limit’; Annex V, ‘Lack of full university education with degree or diploma in a field appropriate to the option chosen’; and Annex VI, ‘Lack of at least one year's specific practical experience, obtained after graduation, relevant to the option chosen’. These categories reflect the drafting of the internal documents relating to each candidate which formed the basis of the selection procedure (the documents referred-to are the individual ‘fiches’, which I have already mentioned). Each ‘fiche’ in fact contained the headings ‘age limit’, ‘degrees or diplomas required’ and ‘practical experience’, and the selector or selectors could insert a ‘yes’ or ‘no’ against these headings. The Commission, in its reply to one of the questions put to it by the Court, referred to such ‘fiches individuelles’ which were put on the file of each candidate and which contained at the end the decision as to whether or not the person concerned had been included on the list of candidates admitted to the competition; the Commission added: ‘we are not aware of the existence of any other documents which provide specific reasons for the refusal to admit some 2755 candidates out of the 4272 applicants’.

In my view it must be admitted that the contested decisions do not contain sufficient statements of reasons. By that I do not mean that each candidate was entitled to a detailed analysis of the qualifications required, or a lengthy statement of the reasons why the relevant qualifications were held to be inadequate. During these proceedings the Commission has laid much weight on the difficulties arising from the very large number of candidates and up to a certain point it appears proper to have regard to such difficulties. Nevertheless it seems to me fair to say that the unfortunate effects of the excess numbers must not be visited upon the candidates and that the authority organizing a competition is bound to make preparations so that it can carry out its task in complete conformity with the rules even if there are thousands of candidates.

In the present case the minimum requirement was that statements of reasons notified to the candidates should be clear, both to let them know the exact reasons why they were excluded and to facilitate a review of the lawfulness of the decisions. The words ‘your qualifications or degrees were not regarded as being in conformity with the qualifications required’ is at the least ambiguous: it may mean that the university education was not considered as having been completed or that the degree was not in a field appropriate to the option chosen or, further, that that view has been taken of a post-graduate qualification. The same applies to the words ‘lack of at least one year's specific practical experience, obtained after graduation, relevant to the option chosen’: the ‘lack’ may stem from a narrow definition of ‘practical experience’ adopted by the selection board or from the length of such experience or from its relation to the option chosen. Ultimately neither the minutes nor the letters of notification to the applicants explain the specific defect which was the basis for refusing them as candidates; even within the selection board it was necessary to resort to supplementary explanations regarding each candidate's ‘fiche’ in order to learn the precise reason for his refusal.

It remains to consider whether discrimination has occurred in this matter. All the applicants have also relied upon this ground of annulment, pointing out that other candidates who likewise obtained certificates from the College of Europe were admitted to the competition. In fact Mr Authie cannot rely upon the ground in question since he was excluded from the competition because his degree was not considered relevant to the option chosen. In addition to the foregoing the Commission has objected that it was necessary to compare the choice of the candidate with the specialist subject appearing on the certificate awarded by the College of Europe; Mr Salerno followed a course at the College ‘with economics as the main subject’ and thus chose the field of financial and budgetary affairs; Mr Massangioli specialized in administrative science at the College of Europe and chose as his field external relations. Mr Salerno has listed the names of other candidates who obtained certificates from the College of Europe with economics as their main subject and who were admitted to the tests, but the Commission has objected that such persons chose the field of external relations. Nevertheless the foregoing does not amount to evidence of the discrimination complained of, although it appears rather surprising that candidates who specialized in economics were considered suitable for the external relations option whilst Mr Massangioli, who specialized in administrative science and attended a course of training for a diplomatic career, was excluded from the same option.

9.The considerations which I have set out lead me to the opinion that the applications should be sustained. It seems to me that the competition procedure was vitiated by serious irregularities under each of the three heads considered (failure to co-ordinate the work of the examiners, failure to operate as a collegiate body and arbitrary re-examination of certain files) and on the additional ground that the statement of reasons for the contested measures is, in my opinion, insufficient. That being the case, it must be considered whether the entire competition must be annulled or whether only the decisions excluding the applicants need be annulled. In the above-mentioned Costacurta case the latter course was a possibility and the Court of Justice observed that since the competition had been held in order to constitute a reserve for the recruitment of administrators the exclusion of the applicant from the list of candidates had not affected the admission to the tests of persons chosen by the selection board as fulfilling the necessary conditions. The Court accordingly continued: ‘The rights of the applicant will be sufficiently protected if the selection board reconsiders the question of the candidate's suitability for being included in the list of candidates and if such be the case it admits him to the competition without the selection already made by the selection board being affected’ (I wish to interpose that in the Costacurta case, too, some time had elapsed since the tests in the competition had taken place; the Court's reasoning thus entailed the need for a further ad hoc meeting of the board). The judgment in the Costacurta case was accordingly that only the decision to exclude the applicant from the tests should be annulled. I think that this course could be adopted in the present case in which the procedure in question is also a competition to constitute a reserve of administrators.

10.I accordingly suggest that the Court of Justice, by a ruling in favour of the applications submitted by Mr Salerno, Mr Authie and Mr Massangioli, should annul the decisions not to admit them to Competition COM/A/154 and should order the Commission to pay the costs.

* Translated from the Italian.