Opinion of Mr Advocate General Lenz

Mr President,

Members of the Court,

The subject-matter of the proceedings with which I shall be dealing in this Opinion is the decision of the Court of Auditors of the European Communities (the defendant) of 25 November 1983 to appoint Mr K, a translator who has intervened in this case, to the post of principal translator in Grade LA 5 and the legality of the competition procedure leading to that appointment. That decision and the competition which led to it (Competition No CC/LA/20/82) is challenged by Mrs Androniki Vlachou (the applicant), who also took part in the competition but with less success.

1. The applicant completed her university studies in 1971 and then worked for a period outside the Community institutions. In 1981, after passing a competition, she entered the service of the European Parliament. With effect from 1 March 1981 she was appointed a probationary official in Grade LA 7, Step 3, as a translator.

2. In order to fill one of the two posts in Career Bracket LA 5/4 planned for the Greek section of its translation department, the Court of Auditors published a Notice of Internal Competition No CC/LA/20/82 (reviser/principal translator) on 26 April 1983. The competition was held on the basis of qualifications and tests.

3. On 29 June 1983 the Selection Board in Competition No CC/LA/20/82 met for the first time. Its members were the head of the translation department of the Court of Auditors, a head of division of Greek nationality and a principal translator in the Danish translation section of the Court of Auditors (Mr D, who has intervened in this case) who was the third member designated by the Staff Committee. At that meeting the Selection Board decided to admit Mr K and Mrs Vlachou to the competition.

4. Conclusions of the parties

5. By orders dated 14 November 1984 the Court of Justice allowed the applications of Mr K, the rival candidate, and Mr D, the member of the Selection Board, to intervene in support of the submissions of the Court of Auditors; however, Mr D was granted leave to intervene only in so far as his submissions refuted the applicant's allegation that he had infringed Article 14 of the Staff Regulations.

6. (a) At the hearing the Court of Auditors described the proceedings of the Selection Board in Competition No CC/LA/20/82. In the light of that information and having regard to the minutes of the Selection Board's two meetings, its proceedings may be reconstructed as follows : At its first meeting on 29 June 1983 the Selection Board decided first of all that Mr K and the applicant satisfied the entrance requirements for the competition. As far as the candidates' experience was concerned, the Selection Board found that both had more than six years' experience. It then found that neither of the candidates could produce evidence of six years' experience as a reviser. In view of that finding, the Selection Board decided not to insist on at least six years' experience at senior level, in work related to the post to be filled but only to require experience as a translator, that is, at a less senior level. (b) Next, the Selection Board determined the criteria according to which marks were to be awarded for university degrees and experience. It decided to award up to 40 marks for a university degree and up to 10 marks for additional academic qualifications. Practical experience was to be marked as follows : 36 marks (6 marks for each year or 0.5 marks for each month of service) for experience gained at the Court of Auditors or in other Community institutions and 14 marks (2.3 marks for each year or 0.2 marks for each month) for experience gained outside the Community institutions. As the reason for awarding more than two and a half times as many marks for experience gained within the Community institutions as for experience gained outside the institutions, the Court of Auditors stated as follows: The Selection Board had before it documents from Greece relating to the candidates' previous experience. In this case, however, those documents were of an extremely doubtful nature especially as regards one of the candidates. There was a very vague declaration to the effect that the candidate in question had practical experience acquired in Greece. The Selection Board was not convinced that she actually had that experience. Nevertheless, since it did not wish to refuse the evidence provided or could not do so, the Selection Board accepted it but decided to give considerably more weight to her experience acquired in the Community institutions than to her experience gained outside them. (c) The Selection Board then gave marks for the candidates' qualifications. The examination certificate from the University of Salonika produced by Mr K contained the comment very good and gave an assessment figure of 7 2/16 (out of 10). The Selection Board awarded Mr K 29 marks for that degree, although, according to the general criteria it had previously laid down, a mark of only 28.5 would have been appropriate. The comment on the certificate from the University of Athens produced by the applicant is only good but no assessment figure is given. Taking the view that good corresponded to a mark of between 5 and 6, the Selection Board took the middle value and awarded the applicant 22 marks. However, it emerged from documents subsequently provided to the Court of Auditors that the applicant's degree assessment was 6.04 (out of 10). The Court of Auditors has now acknowledged that the applicant should have been credited with 24 marks. For his experience in the Community institutions, the Selection Board credited Mr K with 16 marks for 31 months' of service. According to its general criteria, however, it should have awarded only 15.5 marks for 31 months. For her 28 months' experience in the Community institutions, the applicant was awarded 14 marks plus an extra 5 marks for her work as a reviser at the Court of Auditors, making a total of 19 marks. The award of an extra 5 marks for experience as a reviser has no basis in the general criteria laid down for the allocation of marks. For his experience outside the Community institutions, Mr K was awarded 11 marks for 62 months. Application of the general criteria would have given 12 marks. For her nine years and six months' experience, the applicant was awarded 13 marks. If the Selection Board had applied the criteria which it had itself adopted, she should theoretically have received 22 marks here but since the general criteria set an upper limit of 14 marks, the maximum mark of 14 should have least have been awarded. In explanation of this calculation, the Court of Auditors has stated that the allocation of 13 marks rather than 14 marks was due to an error of calculation. However, to offset that error, the number of marks awarded to Mr K was reduced. (d) Lastly, the Selection Board took decisions on how the competition was to proceed, and in particular on the appointment of an examiner, how the tests were to be organized and how they were to be marked. (e) Then, on 15 July 1983, at the end of the tests, the Selection Board drew up its final repon containing the individual marks and the list of suitable candidates and forwarded it to the appointing authority.

In this Opinion I shall state my own views immediately after setting out the applicant's contentions, the defence of the Court of Auditors and the observations of Mr D. Mr K's submissions do not require separate examination because in substance they are the same as the defence submissions of the Court of Auditors.

1. Admissibility of the application

2. (a) The applicant argues first of all that Mr K, her rival in the competition, did not satisfy the entrance requirements set out in the notice of competition. He should therefore not have been admitted to the competition because he did not have the necessary experience, namely at least six years' practical experience at senior level, in work related to the post to be filled, which was a post of reviser/principal translator. The applicant also points out that an identically composed Selection Board in a subsequent competition for a post of head of section — Competition No CC/LA/4/83 in which the notice of competition stipulated a requirement of practical experience which, except for the number of years, was in identical terms — interpreted the entrance requirements as meaning that a minimum amount of experience as a reviser or head of section or in both capacities was needed. The Court of Auditors points out that, according to the case-law of the Court of Justice, the appointing authority has. no power to examine the results of the deliberations of a Selection Board or the bases, on which it took its decisions. It therefore has no power to check whether the Selection Board's decision to admit Mr K to the competition was correct. In any case, the applicant's legal interest in challenging the Selection Board's decision to admit Mr K must be in doubt since she herself was admitted to the competition on the basis of the same interpretation of the entrance requirements which she now challenges. (b) The question to be determined at this juncture is whether the abovementioned admission requirement is an objective criterion susceptible to judicial review or whether it is a criterion which requires an evaluation by the Selection Board. In the latter case, the substance of the Selection Board's decisions would not. be open to review since it would enjoy a measure of discretion; the only question to be examined would then be whether the procedure was properly carried out.

3. (a) The applicant further complains of a breach of the principle of equal treatment inasmuch as in allocating marks the Selection Board not only failed to take adequate account of the fact that she had twice as much experience as the rival candidate but also gave him extra points for his class of university degree even though there was no provision for this in the notice of competition. In this connection as well the Court of Auditors submits in defence that it is precluded from interfering with the Selection Board's assessments. (b) The first point to be made is that paragraph VI.A.2. of the notice of competition regarding the Marking of qualifications provides that university degrees or equivalent professional experience are to be marked out of 50. That fact alone refutes the applicant's contention that marks should not have been awarded for university degrees.

4. I need only briefly discuss the other errors committed by the Selection Board, which are described in part A.6.(c) above and concern the faults in carrying out simple calculations. If the Selection Board — of the Court of Auditors — made errors of calculation, they were nearly all at the expense of the applicant.

5. I propose to deal only briefly with the applicant's remaining submissions.

6. (a) Finally I should briefly examine the argument of the Court of Auditors that, according to the decisions of the Court of Justice, it not empowered to annul or amend the Selection Board's decisions. A selection board, it argues, is sovereign and independent, so that the appointing authority is neither empowered nor called upon to inquire into the regularity of the Selection Board's proceedings. (b) Stated in such general terms, the argument of the Court of Auditors is incorrect.

7. In summary it must be stated that a number of decisions of the Selection Board in Competition No CC/LA/20/82 were unlawful so that the Selection Board could not forward a valid list of suitable candidates and reasoned report to the appointing authority.

8. Under Article 69 (2) of the Rules of Procedure the unsuccessful party must be ordered to pay the costs. In view of the fact that the defendant is solely responsible for the decision which must be annulled, it seems reasonable that it should be made to bear only the applicant's costs. Consequently, the interveners must bear only their own costs.

In the light of all the foregoing, I propose that the Court should declare and rule as follows:

1 Translated from the German.

2 Annex 9 to the defence.

3 Annex 1 to the defence.

4 Annex 7 to the application.

5 Annex 10 to the defence.

6 Annex 9 to the defence.

7 Annex 9 to the application.

8 Annex 10 to the application.

9 Judgment of 14 December 1965 in Cise 21/65, Dominico Morina v European Parliament, [1965] ECR 1033, at p. 1039.

10 Judgment of 9 February 1984 in Joined Cases 316/82 and 40/83, Nelly Kohler v Court of Auditors o/ the European Communities, 0 [1984] ECR 641.

11 Judgment of 14 December 1965 in Case 21/65, Domenico Monna v European PaHiament, [1965] ECR 1033. That judgment, which concerned the Staff Regulations of the EEC and the EAEC (Reguládon No 31 (EEC), II (EAEC), Official Journal, English Special Edition (1959-62), p. 135), is equally applicable to the Staff Regulations of the European Communities because the wording of Annex III is the same in each case.

12 Judgment of 14 December 1965 in Case 21/65, cited above.

13 Council Regulation introducing special and temporary measures applicable to the recruitment of officials of the European Communities in consequence of the accession of the Hellenic Republic to the Communities (Official Journal L 78, p. 1).

14 Judgment of 9 October 1974 in Joined Cases 112, 144 and 145/73, Anna-Maria Campogrande and Others v Commission of the European Communities, [1974] ECR 957.

15 Judgment of 16 March 1978 in Case 7/77, Bernhard Diether Ritter von WüllerstorH und Urhair v Commission, [1978] ECR 769.

16 Judgment of 9 February 1984 in Joined Cases 316/82 and 40/83, Nelly Kohler v Auditors oĮ the European Communities, [1984] ECR 641.

17 Case 23/64, Thérèse Vandevyvere v European Parliament, [1965] ECR 157.