Opinion of Mr Advocate General Tesauro

Mr President,

Members of the Court,

1. By the present action Mr Jaenicke Cendoya challenges the decision not to admit him to the open competition on the basis of qualifications (COM/A/584) organized by the Commission in order to draw up a reserve list for the recruitment of principal administrators of Spanish nationality.

2. Before considering the substance of the application, it must be pointed out that the documents before the Court show that between 1983 and 1985 Mr Jaenicke Cendoya took and passed, again at the University pontificia de Comillas ICAIIcade, nine examinations in subjects different from those which formed part of the course of studies he pursued between 1968 and 1973. On the basis of the results in those nine examinations and of the recognition given to the examinations he had previously sat between 1968 and 1973, Mr Jaenicke Cendoya obtained another private degree. Whatever the status, content or validity of the second degree — which, however, the applicant claims is wholly unconnected with the diploma relating to the studies he pursued between 1968 and 1973 — it is irrelevant for the purpose of settling the present dispute, first because it was submitted after the time-limit prescribed in the Notice of Competition and secondly because it was obtained at a time— 1985 — which could not enable the applicant to prove that he met the second requirement for admission laid down in the Notice of Competition, namely possession of at least 12 years' experience since leaving university.

3. Those facts having been established, the question of law becomes simply whether the Selection Board acted lawfully in requiring as a condition for admission to the competition not only possession of the título but also that it should be validated.

4. Of course, since the requirement in question is a formal one, it can, in some cases, give rise to results which are not entirely satisfactory. That is the case when candidates holding qualifications which are not officially recognized but which relate to courses which are of an essentially university level are not allowed to take part in a competition. As has emerged during these proceedings, that appears to be the case with degrees awarded by the Icade before 1979. The Commission itself has recognized that the teaching at the institute in question is serious and of a high quality.

5. The second sentence of Section III. B.2(a) of the Notice of Competition (the Selection Board will take into account the particular features of the structure of the studies pursued by the candidates), does not have the scope ascribed to it by the applicant. That provision, which occurs repeatedly in Community competitions, imposes an obligation to take into account the fact that the candidates may have pursued studies in various States and therefore in universities where the courses are structured and organized differently. That is the meaning of the provisions both in competitions in which citizens of all the Member States are taking part and in competitions — such as the one in question — which are open only to citizens of one Member State. The second sentence of Section III. B.2(a) cannot, on the other hand, be interpreted as intending to impose on a selection board in a competition for candidates of a single nationality the requirement to verify whether or not any private studies which those candidates may have pursued are of an equivalent level to those pursued in universities which are empowered by the State to award fully recognized degrees.

6. As regards the reference to Article 5 of the Staff Regulations, in my opinion that provision has no bearing on the interpretation of the word título in the Notice of Competition in question.

7. The applicant also points out that before entering the competition in question he held the post of local agent at the Commission's Information Office in Madrid, a post which requires a university education. Furthermore, he emphasizes that the students taking the course in Ciencias empresariales at the Icade are eligible, like any other university students, for assistance under the Erasmus programme.

8. Finally, the applicant maintains that the decision rejecting his application did not contain an adequate statement of reasons. The Court pointed out in the judgment in Sergio that:

9. For the above reasons, I suggest that the Court should:

1 Original language: Italian.

2 Sec the ludgmeni in Case 67/81 Rinke v Commission [1982] F.CR 661, paragraph 9.

3 Case 34/80 Authié v Commission [1981] ECR 665.

4 See the judgments in Case 143/82 Lipman v Commission [1983] ECR 1301 and Case 117/78 Orlandi v Commission [1979] ECR 1613.

5 Judgmenl in Joined Cases 64, 71 to 73 2nd 78/86 Sergio anJOlheriv Commission [1988) ECR 1399.