Opinion of Mr Advocate General Capotorti

Mr President,

Members of the Court,

1. The action brought by Mrs Tiberghien by application dated 9 November 1979 raises for your consideration a subject which is not new, namely, the requirements which, if it is to be lawful, must be satisfied by a selection board's decision not to admit one of the candidates to the tests in a particular competition.

2. There can be no doubt as to the admissibility of the application. The fact that no complaint against the decision in question was submitted through official channels in accordance with the procedure in Article 90 (2) of the Staff Regulations is irrelevant: in fact, as this Court has stated on a number of occasions, the requirement of submitting the complaint provided for in Article 91 (2) of the Staff Regulations, on which the admissibility of the subsequent action before the Court depends, is devoid of purpose where a complaint is directed against the decisions of a selection board in a competition since the appointing authority is not empowered to review such decisions (judgment of 16 March 1978 in Case 7/77 Von Wüllerstorff und Urbair [1978] ECR 769, paragraph 7 of the decision). It follows that the abovementioned Article 91 is to be construed as meaning that the requirement of a prior complaint through official channels refers only to measures which the appointing authority can review, a category which does not embrace a decision concerning admission to competitions.

3. I shall now proceed to examine the first criticism put forward by the applicant. I have already said that in the absence of a certificate of studies at advanced secondary level (which the applicant does not possess) the notice of the competition imposed the requirement of 16 years' specific experience (of secretarial duties). At the same time the candidate was also required to have been in the service of the Community, as an official or other servant, for a total period of 11 years. The two conditions were, however, set out independently of each other. It is not clearly stated whether, and to what extent, the experience was to have been acquired in the service of the Communities. In my opinion, therefore, experience acquired in whole or in part in the course of employment with bodies other than the Communities should be regarded as sufficient for the purposes of the competition. The only matters specified in the notice concerned the duration of such experience and the nature of the work (described, moreover, more or less approximately as category C duties, as an executive secretary, principal secretary secretary/shorthand typist or similar duties).

4. The central issue in this dispute is thus the evaluation of the experience gained by the applicant in the service of the Commission between March 1965 and February 1974. Mrs Tiberghien claims that she performed in career bracket C 3/C 2 the duties of a secretary/shorthand typist from 1 February 1965 to 31 July 1974. During that time, however, she was classified as a clerical officer, that is to say, an official with administrative rather than secretarial duties. That explains the selection board's disregard of the period from 1965 to 1974 when it was assessing the requirement of the applicant's experience. But, according to the applicant, the discrepancy between the duties actually performed and the formal classification is to be put down to negligence on the part of the administration. In order to have a better understanding of the extent of the issue it should be noted that, according to the Staff Regulations of Officials (see Article 5 (4) and Annex I), the basic posts corresponding to careers in Grades C 2 and C 3, are those of clerical officer and secretary/shorthand typist. The tasks attaching to the different basic posts are described in the decision of the Commission on the definition of posts and assignment of duties (published in Staff Courier No 272 of 4 September 1973). It explains that in the context of Category C, career bracket C 2/C 3, a clerical officer is an official engaged in administrative work for which a minimum of instructions are given and whose execution expressly necessitates judgment and method on the part of the official. There is no description, however, of the duties corresponding to the basic post of secretary/shorthand typist. The explanation for that may be that the title itself contains a sufficient description of the type of work. However, two quite different types of work are involved and that is why the administration makes it a requirement for admission to certain competitions that candidates have acquired certain experience in either the one or the other type of work taken separately. In the circumstances it is obvious that all officials have an interest in having the duties which they actually perform officially recognized, for admission to some competitions might indeed depend on just such recognition.

5. In my opinion the selection board should have started from the fact that the applicant indicated in her application form that she had worked as a secretary for more than nine years in the service of the Commission. The fact that she appeared none the less to have been classified in the basic post of secretary/shorthand typist for a much shorter period, and in the post of clerical officer for a period which coincided to a large extent with that referred to in the application form, should have led the selection board to ascertain from the administration the true state of affairs. In any case, after the applicant had complained in her letter of 22 August 1979 about the inaccurate assessment of her experience and requested that the error be rectified, the Commission should have appreciated the need to undertake the appropriate investigations. Had it done so, it would have found in Mrs Tiberghien's personal file ample documentation concerning the work she actually performed and the attempts made by her to obtain a classification which matched her duties; in particular it would have learned that as the preceding 16 July she had requested the regular-ization of her administrative position, that is, the formal recognition of the duties actually performed. And there is no reason for doubting that in reply to a request from the selection board the administration would have adopted the position which it later adopted, after the competition had already been completed, in its aforementioned letter of 21 November 1979 which was sent to the candidate finally acknowledging the duties she had performed in a secretarial capacity for over nine years.

6. It does not appear to me, on the other hand, that the decision in question has infringed Article 24 of the Staff Regulations as the applicant asserts in her second claim. That article lays down, in the third and fourth paragraphs thereof, that the Community shall facilitate such further training and instruction for officials as is compatible with the proper functioning of the service and is in accordance with its own interests and that such training and instruction shall be taken into account for purposes of promotion in their careers. According to Mrs Tiberghien's argument, in assessing her experience the selection board failed to take into account the knowledge gained by her in attending various in-service training courses in 1973 and 1974 and that is in conflict with the abovementioned duty of the administration to take further training undergone by officials into account for the purpose of their careers.

7. In view of all the abovementioned considerations I am of the opinion that the application should be granted. I therefore propose that the Court annul the decision of the Commission of 10 April 1979 whereby the applicant was not permitted to participate in Internal Competition No COM/BS/4/79, based on qualifications, for secretarial assistants. The defendant institution should, moreover, be ordered to pay the applicant's costs.

1 Translated from the Iulian.