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Judgment of the Court (First Chamber) of 14 June 1972. - Antonio Marcato v Commission of the European Communities. - Case 44-71. European Court reports 1972 Page 00427 Danish special edition Page 00105 Portuguese special edition Page 00137

Summary Parties Subject of the case Grounds Decision on costs Operative part

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1 . OFFICIALS - RECRUITMENT - SELECTION BOARD - DECISION - EXCLUSIVE JURISDICTION OF THE COURT

( STAFF REGULATIONS OF OFFICIALS OF THE EC, ARTICLE 91 )

2 . OFFICIALS - RECRUITMENT - NOTICE OF COMPETITION - EQUIVALENT EXPERIENCE IN EMPLOYMENT - PARTIAL AND ARBITRARY NATURE OF A SPECIFICATION - APPLICATION OF GENERAL FORMULA CONTAINED IN THE THIRD SUBPARAGRAPH OF ARTICLE 5 ( 1 ) OF THE STAFF REGULATIONS - POWERS AND DUTIES OF THE SELECTION BOARD

( STAFF REGULATIONS OF OFFICIALS OF THE EC, ANNEX III, ARTICLE 1 ( 1 ) ( B ))

3 . OFFICIALS - RECRUITMENT - CONSIDERATION OF APPLICATIONS - DUTIES OF THE SELECTION BOARD

( STAFF REGULATIONS OF OFFICIALS OF THE EC, ANNEX III, ARTICLE 5 )

1 . THE ONLY FORM OF APPEAL OPEN TO INDIVIDUALS IN RELATION TO A DECISION TAKEN BY A SELECTION BOARD LIES IN AN APPLICATION TO THE COURT, WHICH ALONE HAS JURISDICTION TO ANNUL SUCH DECISIONS .

2 . IF, IN A NOTICE OF COMPETITION THE TERM " EQUIVALENT EXPERIENCE IN EMPLOYMENT " CANNOT BE INTERPRETED WITHOUT REMAINING INCOMPLETE OR ARBITRARY, RECOURSE MUST BE HAD TO THE GENERAL FORMULA CONTAINED IN THE THIRD SUBPARAGRAPH OF ARTICLE 5 ( 1 ) OF THE STAFF REGULATIONS AND THE SELECTION BOARD FOR THE COMPETITION MUST BE LEFT TO ASSESS IN EACH CASE WHETHER THE CERTIFICATES PRODUCED OR THE EXPERIENCE OF EACH CANDIDATE CORRESPOND TO THE LEVEL REQUIRED BY THE STAFF REGULATIONS AND, THEREFORE, BY THE NOTICE OF COMPETITION . THE ADOPTION OF THIS SOLUTION IMPLIES, HOWEVER THAT THE SELECTION BOARD SHALL BE BOUND TO GIVE REASONS FOR ITS DECISIONS ON THIS QUESTION, IF ONLY IN SUMMARY FORM .

3 . THE SELECTION BOARD IS OBLIGED TO GIVE SUFFICIENT REASONS FOR THE CONCLUSIONS IT REACHES ON THE COMPARISON OF THE QUALIFICATIONS SUBMITTED BY THE CANDIDATES WITH THOSE REQUIRED BY THE NOTICE OF COMPETITION .

IN CASE 44/71

ANTONIO MARCATO, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, RESIDING IN LUXEMBOURG AT 48, RUE DE LA TOISON-D' OR, REPRESENTED BY ERNEST ARENDT, ADVOCATE OF THE LUXEMBOURG BAR, ASSISTED BY TONIA SCHEIFER, ADVOCATE OF THE LUXEMBOURG BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF MR ARENDT, 34B RUE PHILIPPE-II, APPLICANT,

V

COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, PIERRE LAMOUREUX, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICES OF ITS LEGAL ADVISER, EMILE REUTER, 4 BOULEVARD ROYAL, DEFENDANT,

APPLICATION FOR THE ANNULMENT OF :

( 1 ) NOTICE OF COMPETITION NOS COM/484 TO 487/70 ON THE GROUNDS OF A PROCEDURAL IRREGULARITY;

( 2 ) THE DECISION NOTIFIED TO THE APPLICANT BY THE COMMISSION ON 8 FEBRUARY 1971 INFORMING HIM THAT HIS APPLICATION IN RESPECT OF THE NOTICE OF COMPETITION WAS NOT ACCEPTED AND THE LETTER CONFIRMING THE DECISION OF THE COMMISSION NOTIFIED TO THE APPLICANT ON 16 FEBRUARY 1971;

( 3 ) AS FAR AS MAY BE NECESSARY : THE IMPLIED DECISION REJECTING HIS COMPLAINT INDICATED BY THE FAILURE OF THE ADMINISTRATION TO REPLY WITHIN TWO MONTHS TO THAT COMPLAINT MADE THROUGH OFFICIAL CHANNELS BY THE APPLICANT TO THE PRESIDENT OF THE COMMISSION ON 25 MARCH 1971 AND RECEIVED ON 29 MARCH 1971,

1 BY AN APPLICATION LODGED AT THE REGISTRY ON 23 JULY 1971 THE APPLICANT REFERRED TO THE COURT THE IMPLIED REFUSAL OF THE COMMISSION TO ACCEPT HIS COMPLAINT THROUGH OFFICIAL CHANNELS FILED ON 29 MARCH 1971 .

2 THIS COMPLAINT THROUGH OFFICIAL CHANNELS REFERRED TO NOTICE OF INTERNAL COMPETITION NO COM 484 TO 487/70 AND THE COMPETITION PROCEDURE CONSEQUENT UPON THIS NOTICE, IN PARTICULAR, THE DECISION OF THE SELECTION BOARD REJECTING THE APPLICATION SUBMITTED BY THE APPLICANT ON THE GROUNDS THAT HE DID NOT SATISFY ONE OF THE REQUIREMENTS OF THE COMPETITION, THAT IS, AN ADVANCED LEVEL OF SECONDARY EDUCATION, EVIDENCED BY A CERTIFICATE OR EQUIVALENT EXPERIENCE IN EMPLOYMENT .

3 DURING THE ORAL PROCEDURE THE APPLICANT WITHDREW HIS CONCLUSIONS CONCERNING THE APPOINTMENT OF MR X .

ADMISSIBILITY

4 THE DEFENDANT DOES NOT QUESTION THE ADMISSIBILITY OF THE APPLICATION .

5 NEVERTHELESS, IT MUST BE OBSERVED THAT A COMPLAINT TO THE COMMISSION THROUGH OFFICIAL CHANNELS AGAINST A DECISION ADOPTED BY A SELECTION BOARD APPEARS TO BE POINTLESS, AS THE COMMISSION IS NOT COMPETENT TO ANNUL OR AMEND THE DECISIONS OF SUCH A BOARD .

6 THEREFORE, THE ONLY LEGAL REMEDY OPEN TO INDIVIDUALS IN RELATION TO SUCH A DECISION LIES IN AN APPLICATION TO THE COURT, WHICH ALONE HAS JURISDICTION TO ANNUL SUCH DECISIONS .

7 THE PRELIMINARY REFERENCE OF THE MATTER TO THE COMMISSION IS, HOWEVER, EXPLAINED BY THE PRACTICE OF OFFICIALS OF NEVER REFERRING DIRECTLY TO THE COURT THOSE MEASURES WHICH AFFECT THEM ADVERSELY, BUT OF APPEALING FIRST, EVEN THOUGH IT BE UNNECESSARY TO DO SO .

8 IN THE LIGHT OF THE FOREGOING, THE APPEAL AGAINST THE IMPLIED REFUSAL OF THE COMMISSION MUST NOT BE DECLARED INADMISSIBLE FOR THIS REASON BUT IT MUST BE ADMITTED AS DIRECTED AGAINST THE DECISION OF THE SELECTION BOARD AND THE TIME-LIMIT FOR APPEALS AGAINST THIS DECISION, WHICH WAS COMMUNICATED ON 18 FEBRUARY 1971 AT THE LATEST, MUST BE CONSIDERED NOT TO HAVE EXPIRED .

9 IN THE CIRCUMSTANCES SET OUT ABOVE THE APPLICATION IS ADMISSIBLE .

NOTICE OF COMPETITION NO COM 484 TO 487/70

10 THE APPLICANT CLAIMS THAT THIS NOTICE INFRINGED ARTICLE 1 ( 1 ) ( B ) OF ANNEX III TO THE STAFF REGULATIONS BY SHOWING, UNDER THE HEADING " QUALIFICATIONS REQUIRED ", ONLY " AN ADVANCED LEVEL OF SECONDARY EDUCATION, EVIDENCED BY A CERTIFICATE OR EQUIVALENT EXPERIENCE IN EMPLOYMENT ".

11 IN DOING SO THE NOTICE MERELY REITERATED THE WORDING OF THE THIRD SUBPARAGRAPH OF ARTICLE 5 ( 1 ) OF THE STAFF REGULATIONS WITHOUT SPECIFYING THE CERTIFICATES AND OTHER QUALIFICATIONS OR THE LEVEL OF EXPERIENCE REQUIRED FOR THE POSTS TO BE FILLED .

12 IN THE LIGHT OF THE GREAT NUMBER OF SECONDARY EDUCATION CERTIFICATES IN THE MEMBER STATES AND THE WIDE AND VARIED CONTENT OF THE PHRASE " EQUIVALENT EXPERIENCE IN EMPLOYMENT ", EVEN A MORE EXPLICIT AND DETAILED REQUIREMENT MAY, IN CERTAIN CASES, BE INCOMPLETE AND, FOR THAT REASON, ARBITRARY .

13 THIS MAY, IN PARTICULAR, BE THE CASE WHERE, AS IN THIS INSTANCE, THE NOTICE OF COMPETITION IS ADDRESSED TO A GROUP OF INDIVIDUALS OF DIFFERING ORIGIN AND EDUCATION .

14 THEREFORE, THE ONLY ALTERNATIVE IS TO EMPLOY A GENERAL FORMULA SUCH AS THAT CONTAINED IN THE THIRD SUBPARAGRAPH OF ARTICLE 5 ( 1 ) OF THE STAFF REGULATIONS AND TO LEAVE THE SELECTION BOARD FOR THE COMPETITION TO ASSESS IN EACH CASE WHETHER THE CERTIFICATES PRODUCED OR THE EXPERIENCE OF EACH CANDIDATE CORRESPOND TO THE LEVEL REQUIRED BY THE STAFF REGULATIONS AND, THEREFORE, BY THE NOTICE OF COMPETITION .

15 THE ADOPTION OF THIS SOLUTION IMPLIES, HOWEVER, THAT THE SELECTION BOARD SHALL BE BOUND TO GIVE REASONS FOR ITS DECISIONS ON THIS POINT, IF ONLY IN SUMMARY FORM .

16 THEREFORE, IN SO FAR AS IT REFERS TO THE NOTICE OF VACANCY, THE APPLICATION MUST BE DISMISSED .

THE DECISION OF THE SELECTION BOARD NOT TO CONSIDER THE APPLICANT' S CANDIDATURE

17 IT IS CLEAR BOTH FROM THE COMMUNICATIONS FROM THE RELEVANT DEPARTMENTS OF THE COMMISSION AND FROM THE REPORT OF THE SELECTION BOARD THAT THE LATTER REJECTED THE APPLICANT' S CANDIDATURE ON THE GROUNDS THAT IT DID NOT MEET THE FIRST OF THE QUALIFICATIONS REQUIRED BY THE NOTICE OF COMPETITION, THAT IS, AN ADVANCED LEVEL OF SECONDARY EDUCATION, EVIDENCED BY A CERTIFICATE OR EQUIVALENT EXPERIENCE IN EMPLOYMENT .

18 THE APPLICANT CLAIMS THAT NO REASONS WERE GIVEN FOR THIS DECISION, THAT IT CONFLICTED WITH THE ESTABLISHED FACTS AND CONSTITUTED A MISUSE OF POWERS .

19 AS REGARDS THE ABSENCE OF REASONS FOR THE DECISION, THE PROCEEDINGS OF A SELECTION BOARD INVOLVE AT LEAST TWO DISTINCT STAGES, THAT IS, FIRST CONSIDERATION OF THE APPLICATIONS, IN ORDER TO SORT OUT THE CANDIDATES ALLOWED TO ENTER THE COMPETITION AND, SECONDLY, CONSIDERATION OF THE ABILITIES OF THE CANDIDATES FOR THE POST, IN ORDER TO DRAW UP A LIST OF THOSE SUITABLE .

20 IF THE SECOND STAGE ABOVE ALL CONSISTS OF MAKING COMPARISONS AND IS, THEREFORE, GOVERNED BY THE PRINCIPLE OF SECRECY INHERENT IN THE PROCEEDINGS OF A SELECTION BOARD, THE FIRST CONSISTS, IN PARTICULAR IN A COMPETITION ON THE BASIS OF QUALIFICATIONS, OF A COMPARISON OF THE QUALIFICATIONS PRODUCED BY THE CANDIDATES WITH THOSE REQUIRED BY THE NOTICE OF COMPETITION .

21 AS THIS COMPARISON IS CARRIED OUT ON THE BASIS OF INFORMATION WHICH IS OBJECTIVE AND, MOREOVER, KNOWN TO EACH OF THE CANDIDATES IN SO FAR AS IT CONCERNS HIS CASE, SUFFICIENT REASONS MUST BE GIVEN FOR THE RESULTS ARRIVED AT .

22 NO REASONS WERE GIVEN IN THIS INSTANCE, AS THE REPORT MERELY INDICATED THE QUALIFICATION WHICH THE APPLICANT WAS CONSIDERED NOT TO SATISFY ALTHOUGH AT FIRST SIGHT HIS EXPERIENCE WAS COMPARABLE TO THAT OF THE OTHER CANDIDATES ALLOWED TO ENTER THE COMPETITION .

23 THE REPORT OF THE SELECTION BOARD INFRINGES ARTICLE 5 OF ANNEX III TO THE STAFF REGULATIONS AND MUST THEREFORE BE ANNULLED .

24 UNDER THE FIRST SUBPARAGRAPH OF ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO BEAR THE COSTS .

25 AS THE DEFENDANT HAS FAILED IN ITS PLEAS, IT MUST BE ORDERED TO BEAR THE COSTS .

THE COURT ( FIRST CHAMBER )

HEREBY :

1 . ANNULS THE REPORT OF THE SELECTION BOARD IN INTERNAL COMPETITION NO COM 484 TO 487/70;

2 . ORDERS THE COMMISSION OF THE EUROPEAN COMMUNITIES TO BEAR THE COSTS OF THE ACTION .