Opinion of Mr Advocate General Van Gerven
Mr President,
Members of the Court,
1. In the present case 13 officials of the Court of Justice are challenging the decision of the Selection Board for internal competition No CJ 80/86 not to admit them to the written tests on the ground that they did not fulfil the conditions of the notice of competition concerning qualifications, diplomas and relevant experience. According to that notice, candidates were to hold a certificate of advanced secondary education or have equivalent practical experience (first paragraph of heading II of the notice of competition). In addition, candidates were to have practical experience acquired wholly or in part as officials or members of the temporary staff of an institution of the European Communities, provided however that those who relied on practical experience in lieu of a certificate of advanced secondary education could not rely on the same period in respect of the practical experience required by virtue of that additional condition (second paragraph of heading II of the notice of competition). For simplicity, I shall use the expression additional experience when referring to the latter condition for admission.
2. The applicants base their collective action on four submissions: (1) infringement of Article 25 of the Staff Regulations, in so far as the contested decisions of the Selection Board did not contain an adequate statement of the reasons on which they were based; (2) failure to comply with the terms of the competition notice and infringement of Article 5 of the Staff Regulations, in so far as the criteria adopted by the Selection Board for evaluation of practical experience equivalent to a certificate of advanced secondary education were vitiated by errors of fact and law; (3) breach of the principles of equality of treatment and nondiscrimination as between officials as a result of the application of the aforementioned criteria; and (4) breach of certain general legal principles, in so far as the Selection Board did not take into account the fact that certain of the applicants had been admitted to similar competitions in the past.
First submission: inadequate statement of reasons
The relevant facts
3. The Personnel Division passed 104 applications to the Selection Board for examination. The Selection Board first considered whether the candidates fulfilled the admission requirements. On completion of its examination, the Selection Board decided that 32 applications should be rejected.
The applicable provisions and the previous decisions of the Court
4. Pursuant to Article 25 of the Staff Regulations,
Assessment
5. There were undoubtedly a large number of candidates in the competition in question. In the light of previous decisions of the Court, the Selection Board was entitled, in my opinion, to inform the excluded candidates only of the admission requirement which they did not fulfil, and to give detailed explanations only to those who expressly requested them. Eight of the 13 candidates did indeed ask the Selection Board for explanations but — leaving aside the problem of Mrs Muller's and Mr Mallaby's participation in earlier B competitions (to which I shall return in due course) and that of the diploma awarded to Mrs Cano (which is not at issue in the present case) — the requests were not for individual explanations, that is to say for details of how the Selection Board had assessed any particular facet of the previous work experience of the persons concerned. In fact they sought general information as to the criteria used by the Selection Board in evaluating the candidates' practical experience.
6. In those circumstances, does the fact that the Selection Board replied by means of a standard letter to the requests submitted to it justify the conclusion that the obligation to state reasons was infringed? I do not think so. The Selection Board's duty to state the reasons for its decisions must be appraised in relation to its purpose, which, it will be recalled (see part 4 hereof), is:
Second and third submissions: criteria for the evaluation of practical experience
The relevant facts
7. The competition was a category B competition. The Court, as appointing authority responsible for drafting the competition notice, was required to comply with the third subparagraph of Article 5(1) of the Staff Regulations, which lays down the minimum qualifications required for officials in that category, defining the duties concerned as executive duties which require an advanced level of secondary education or equivalent professional experience.
The applicable provisions and the previous decisions of the Court
8. According to the first paragraph of Article 5 of Annex III to the Staff Regulations,
Assessment
9. Before examining the criteria adopted by the Selection Board, I must make a general observation. One of the difficulties of the present case derives from the practice whereby competition notices use general wording — in this case the wording of the third subparagraph of Article 5(1) of the Staff Regulations — to lay down the actual criteria for admission. In my opinion that practice is not felicitous. Its effect is to force the Selection Board to define in detail the general terms used in the notice of competition and to determine objective standards on which to base its assessment of individual cases. The Selection Board is thus placed in a difficult position in so far as it must both adopt the rules and apply them. Furthermore, that practice often leads to the disclosure to certain candidates of conditions for admission which were not apparent to them merely from reading the notice of competition. It also means that the rules for implementing the notice of competition are not submitted for consideration by the Joint Committee. Finally, since the proceedings of the Selection Board are secret, the criteria adopted by the Selection Board are made public only to the varying extent to which they are specified in the statements of grounds of the decisions of non-admission. Under those circumstances, case-law cannot be accumulated, with the unfortunate consequence that successive Selection Boards find themselves attributing different meanings to concepts which although objective are also general and are expressed in identical terms.
10. In the present case the notice of competition was not challenged nor was the fact that the Selection Board laid down rules to define the general concept of equivalent practical experience which was used in the notice of competition. In those circumstances it need only be established whether the Selection Board, by applying the condition of equivalent practical experience, infringed the terms of the notice of competition or imposed additional conditions which went beyond what was required to define the scope of the condition for admission contained in the notice of competition.
Fourth submission: admission to previous competitions
The relevant /acts
11. According to the documents in the case, four of the 13 candidates had previously been admitted to B competitions organized by an institution of the European Communities, more specifically the Court of Justice:
12. The notice of competition No CJ 80/86 did not require the candidates to use a standard application form or to attach the information necessary for the work of the Selection Board. On receipt of the applications, the Selection Board sent the candidates a questionnaire inviting them to indicate the details relevant to their studies and practical experience. The questionnaire did not actually ask the candidates to mention any previous competitions to which they had been admitted.
The previous decisions of the Court
13. In its judgment in Case 112/78 Koborv Commission [1979] ECR 1573, the Court stated
Assessment
14. In my opinion the Selection Board could not have been unaware either of the probability that certain of the candidates had been admitted to previous competitions to which the same conditions of admission applied or of the importance which the previous decisions of the Court have attached to decisions to admit candidates adopted by such Selection Boards. The knowledge that certain candidates were previously admitted to such competitions also constitutes an important point of reference, serving as guidance for any Selection Board in its task of clarifying the scope of conditions for admission which are set out in general terms in the notice of competition.
15. The Selection Board itself was not of course under any obligation to conduct inquiries to find out to which competitions the candidates had previously been admitted (see A/lgayer). However, it would have been advisable to bear in mind that the notice of competition did not specify the information to be produced by candidates together with their applications. In those circumstances, the very function of the Selection Board and likewise its duty to safeguard the interests of the persons concerned placed it under an obligation to obtain from the candidates the information it needed to discharge its task properly. That is what the Selection Board in fact did by asking the candidates to complete a questionnaire about their studies and practical experience. However, the Selection Board did not also ask the candidates to indicate to which similar competitions they had been admitted in the past and the outcome of their participation, even though a separate column in the questionnaire for information of that type would have sufficed.
16. In conclusion, I propose that the Court:
1 Original language: French.
2 i. e. the candidates' files.
3 In its judgment in Case 117/78 Orlandi v Commission [1979] ECR 1613 the Court had already applied the principles which it set out in full in Rinke: The notice of competition defines the conditions relating to qualifications or certificates by using the term course of secondary education and by adding that the Selection Board, in assessing the certificate, will take into account the differing educational systems in the Member States(paragraph 20). Although the Commission is entitled to draw up the conditions for entry to a competition in terms which are more rigorous than those used in this instance and, in particular, to require possession of a certificate giving access to university such a requirement must be apparent from the actual wording of the notice of competition since there are a great many different types of secondary education in the various Member States, some of which are not preparatory to education at university level and do not give automatic access to such education (paragraph 21).
4 The list here lakes no account of decisions granting admission to B competitions taken after the decision not to admit certain candidates taken by the Selection Board in competition No CJ 80/86 Such decisions cannot retroactively influence the ludgment of the Selection Board for an earlier competition
5 The notice for competition No CJ 90/85 to which Mrs Meyer had previously been admitted also required at least two years experience of the application of certain rules relating to financial or administrative management or documentation, this being a similar condition to the requirement of additional practical experience contained in the notice of competition No CJ 80/86.
6 At the hearing, counsel for the applicants claimed that the questionnaire had not been sent to all the candidates. However, he did not produce any evidence for that statement, which was contradicted by the representatives of the Court of Justice. He did not even indicate which of the candidates did not receive a questionnaire. Accordingly it does not seem to me that the candidates' claim that the questionnaires were distributed selectively can be entertained.
7 See judgment in Case 417/85 Maurissen v Court of Auditors [1987] ECR 551.