3.

As regards the particular problem raised in this case, namely the question of supporting documents, in its judgment of 25 April 1978 in Case 74/77 Allgayer v Parliament [1978] ECR 977 the Court had to consider whether the submission of a copy of a diploma, which had not been certified as a true copy of the original, accompanying an application form in an open competition, was valid. The relevant notice stipulated that documents relating to diplomas and educational qualifications should be supplied in the form of copies certified as true copies of the original documents and it was even stated that photocopies which had not been certified as true copies would not be accepted. The Selection Board had nevertheless admitted the applicant to the tests. The Court held that: (i) ‘The instructions contained in the notice of competition properly so-called, that certified true copies of diplomas or other academic qualifications should be sent, only amount to practical advice to candidates, to whom any documents produced are not returned. (ii) It is therefore for the Selection Board to determine whether the documents produced by a candidate are such as to justify that candidate's being allowed to enter for the competition to be held’ (paragraph 4 of the decision). In the present case the Notice of Competition contained no stipulation in that respect. It follows, a fortiori, on the basis of the abovementioned decision, that the Board could not impose on the applicant a condition which, even where it appears expressly in the Notice of Competition and is not complied with, does not appear to be of a decisive nature. On the other hand, it may be argued that the same judgment states that it is for the Board to determine whether the documents produced are authentic. In reply to that argument it must be stated that the Board cannot insert a condition which did not appear in the Notice of Competition, unless it is based on a legal provision, the case-law of the Court or an established practice, without giving the candidates an opportunity to satisfy that requirement by producing additional documents. It is stated in the memorandum of 4 October 1985 that mere photocopies which have not been certified to be true copies are accepted as supporting documents for certain internal competitions at the Court of Auditors. It follows that, even if there were grounds for applying a stricter policy in the future, the existing practice required the Selection Board in Competition No CC/A/8/85, having regard to the duty to provide for the welfare of officials, to take into consideration the wording of the notice of competition and the practices of the institution, of which it must have been aware since they were pointed out to it by the appointing authority. Clearly, as Mr Advocate General Reischl stressed in his Opinion in Case 74/77, the second paragraph of Article 2 of Annex III to the Staff Regulations did not in principle impose on the Selection Board any obligation to request additional documents. However, the duty to provide for the welfare of officials, in the light of previous practice, turned that possibility into a requirement. That duty, which is based on German administrative law (‘Fiirsorge-pflich’), is not mentioned in the Staff Regulations of Officials, but the Court has acknowledged that it applies to the Community public service. It means in particular that, where a public authority takes a decision concerning an official, it must take into account not only the interests of the service but also those of the individual official concerned (see the judgment of 28 May 1980 in Joined Cases 33 and 75/79 Kuhner v Commission [1980] ECR 1677, paragraph 22 of the decision at p. 1697; also the judgment of 9 December 1982 in Case 191/81 Plug v Commission [1982] ECR 4229, paragraph 21 at p. 4247).Consideration of the different aspects of this case lead to the conclusion that sufficient effort has not been made to achieve the ‘balance of the reciprocal rights and obligations established by the Staff Regulations in the relationship between the official authority and the civil servants’{Kuhner, cited above, paragraph 22 of the decision). No doubt the Selection Board was, as it pointed out in its report to the appointing authority of 28 October 1985, confronted with the contradictions contained in the successive opinions which the administration of the defendant institution communicated to it and its anxiety not to be accused of partiality. It is nevertheless true that, not being bound by those opinions, it was under a duty not simply to add a restrictive condition to the text of the Notice of Competition and that if it decided pursuant to its discretionary power to adopt a new requirement, it had to give the candidates concerned the opportunity to satisfy that requirement since the Staff Regulations contain a provision to that effect. Consequently, I propose that the Court should annul the decisions taken on 2 August and 28 October 1985 by the Selection Board in Internal Competition No CC/A/8/85 organized by the Court of Auditors in so far as they concern the refusal to admit Hartmut Schwiering to that competition. I propose that the defendant institution should be ordered to pay all the costs.