Opinion of Mr Advocate General Darmon

Mr President,

Members of the Court,

1. This is the fourth case to challenge before the Court of Justice a decision taken by the Selection Board for Internal Competition No CC/A/8/85 organized by the Court of Auditors refusing to admit a candidate to the competition. In that respect I refer to the Report for the Hearing drawn up in the present case and to the judgments of 23 October 1986 in Case 321/85, and in Joined Cases 322 and 323/85.

2. Two questions arise. Was the Selection Board entitled to refuse to take account of the documents submitted by Mr Maurissen in support of his observations? If not, were the documents such as to allow the Selection Board to determine whether the aforesaid duties performed at IBM were of a satisfactory level and for a sufficient period, fixed at three years by the Selection Board, to constitute equivalent professional experience for the purposes of point IV. 1(b) of the notice of competition?

3. As the Court held in one of the aforesaid judgments of 23 October 1986 (Case 321/85),

4. I think that such a restriction is contrary to the duty to have regard to the welfare of officials, in particular in the case of an internal competition for which there is only a limited number of candidates. The Selection Board could not, therefore, refuse to take account of documents produced in support of observations which it had itself invited on the ground that they had not been lodged at the outset.

5. It follows that the Selection Board had all the information it needed to determine whether the applicant satisfied the conditions to be admitted to the competition. I therefore consider that the decisions were adopted in breach of the duty to have regard to the applicant's welfare and are vitiated by manifest errors of assessment. In my opinion they should consequently be annulled and the defendant institution should be ordered to pay the whole of the costs.

1 Translated from the French.

2 Case 321/85 Hartmut Schwiering v Court of Auditori [1986] E(*R 3199.

3 Joined Cases 322 and 323/85 Kotter Hoytr and Otbtn v Court of Auditors [1986] ECR 3215.