Opinion of Mr Advocate General
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 30 September 1983 not to admit Mrs Androniki Vlachou (the applicant) to Competition No CC/LA/4/83, an inter-institutional competition organized by the Court of Auditors.
1. After completing university studies in 1.971 the applicant worked inter alia, from January 1975 to December 1980, in a specialist ¡legal (publishing firm in Athens. 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 translator in Grade LA 7, Step 3.
2. In order to fill one of two posts in Career Bracket LA 5/4 which were vacant in the Greek section of its Translation Department, the Court of Auditors on 26 April 1983 published a Notice of Internal Competition No CC/LA/20/82 (Reviser/Principal Translator).
3. The conclusions of the parties at the close of the oral proceedings may be summarized as follows:
4. By a letter dated 11 March 1985 the Court of Justice requested the Court of Auditors:
5. Asked at the hearing about the criteria for the interpretation of the admission requirements adopted by the Selection Board, the Court of Auditors stated as follows :
In this Opinion I shall be stating my own views directly after discussing the applicant's submissions and the defence of the Court of Auditors.
1. (a) The applicant submits that she was disappointed in her legitimate expectation following assurances from the Court of Auditors. Before her entry into the service of the Court of Auditors one of its members and certain senior officials had given her assurances about to her future career. In particular it was indicated to her that her appointment as an established official was a pure formality as far as the Court of Auditors was concerned. The Court of Auditors, however, contends that the applicant was given no assurances with regard to her appointment as an established official at the time of her entry into the service. Besides, it is not clear how an alleged breach of the principle of protecting legitimate expectation can affect these proceedings. (b) Whether the applicant was given any assurances at the time of her entry into the service of the Court of Auditors is a question which may be left open. The question is irrelevant because the Staff Regulations prescribe a formal procedure for the appointment of officials, in particular in Article 29, so that any assurances to the contrary are unlawful and therefore not binding.
2. (a) A further complaint which the applicant levels at the Court of Auditors is that the Selection Boards in Competition Nos CC/LA/20/82 and CC/LA/4/83 — whose members were the same — gave different interpretations within a short space of time to identically-worded requirements for admission to the competition. The requirement of practical experience at senior level in work related to the post to be filled was given a significantly more liberal interpretation in the first competition than in the second. Since the admission requirements are objective in nature, compliance with them can be checked. The Selection Board has no discretion in determining objective criteria. The Court of Auditors, however, argues that as the appointing authority has no power to appraise the work of a Selection Board and in particular to examine the reasons which prompted it to accept or refuse an application. For that reason it is not competent to depart from the interpretation of the words at senior level in work related to the post to be filled adopted by the Selection Board. Notwithstanding that, the Selection Board rightly came to the conclusion that the applicant did not qualify for admission to the competition. Since the vacancy was for a head of section, the very nature of the post made it essential for the Selection Board to require a significant degree of experience at least as a reviser. It was not therefore sufficient to produce proof of a minimum length of experience; all or part of that experience — this being a question for the Selection Board — also had to be at a high qualitative level. A comparison with the requirements for admission to Competition No CC/LA/-20/82 is not possible since the two competitions were meant to fill different posts. Since the purpose of the two competitions was different, the Selection Boards were entitled to assess the candidates' experience differently. (b) The question to be determined at this juncture is whether the aforementioned 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. The complaint that the Court of Auditors committed a manifest error in its appraisal of the length of the applicant's practical experience consequently does not call for examination in these proceedings since criteria for the assessment of practical experience are not available or were not laid down in a proper manner.
4. Since the decision adversely affecting the applicant must be annulled in any event, it is also unnecessary to examine further her contention that the Court of Auditors abused its discretion on the presumption that it did not want the competition to come to a positive result.
5. As well as challenging the appointing authority's decision, the applicant has also claimed an order against the Court of Auditors requiring the Selection Board to resume its proceedings.
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 is not empowered to annul or amend the Selection Board's decision. 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. Since the main claim must consequently be granted and only the claim for a declaration of the specific legal obligations which the judgment will impose on the defendant in any event must be rejected, I consider it reasonable to order the defendant to pay all the costs pursuant to Article 69 (2) of the Rules of Procedure.
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 1 to lhe application.
3 Decision of the Secretary-Genera! of the European Parliament of 29 June 1981, Annex 3 (c) to the rejoinder.
4 Annex 2 to the rejoinder.
5 Annex I to the rejoinder.
6 Annex I to the application.
7 Annex 20 to the defence.
8 Annex 2 to the application.
9 Annex 3 to the application.
10 Annex 4 to the application.
11 Annex 5 to the application.
12 Annex 2 io the defence.
13 Judgment of 14 December 1965 in Case 21/65, Domenico Morirà v European Parliament [1965] ECR 1033. That judgment, which concerned the Staff Regulations of the EEC and the EAEC (Regulation No 31 (EEC), 11 (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.
14 Judgment of 28 October 1980 in Case 2/80, Hubert Dautzenberg v Court of Justice of the European Communities, [1980] ECR 3107; and the Opinion of Mr Advocate General Warner, in particular at p. 3123; judgment of 15 December 1966 in Case 62/65, Manlio Serio v Commission of the EAEQ [1966] ECR 561.
15 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.
16 Judgment of 9 February 1984 in Joined Cases 316/82 and 40/83, Nelly Kobler v Court of Auditors of the European Communities, [1984] ECR 641.
17 Judgment of 16 March 1978 in Case 7/77, Bernhard Dietber Ritter von Wüllcrstorfj und Urbair v Commission of the European Communities, [1978] ECR 769.
18 Case 23/64, Thérèse Vandevyvere v European Parliament, [1965] ECR 157 at p. 172.