5.

Did Mr Schwiering satisfy the requirements for admission to the competition? The Court of Auditors takes the view that the appointing authority is “not competent to inquire into the merits of the selection board's decision to admit a successful candidate to a competition.” After expressing that reservation, the limitations of which I have already indicated, the Court of Auditors went on to provide a number of explanations for its view that Mr Schwiering was eligible to take part in the competition. The Court of Justice therefore asked it to specify what were the grounds, in the last analysis, for its view that Mr Schwiering could be admitted to the tests in the competition. “Out of respect for the independence and objectivity of selection boards”, the Court of Auditors, in answering that point, retreated behind a statement drafted for the purpose by Mr Mart, the chairman of the selection board, on 16 April 1984, to which it asks the Court to refer, relying on that document as the statement of its own position. The document states that “A. The selection board did not accept that Mr Schwiering met the requirement of a university education, because he was unable to show that he held a diploma attesting the successful completion of university studies; B. However, the selection board accepted that Mr Schwiering had professional experience equivalent to university studies of at least 48 months.” If we reread Mr Mart's statement, we find that the selection board took the view that on 15 October 1982, the closing date, in the terms of the notice of competition, for lodging “the application form accompanied by copies of diplomas or other qualifications and of certificates attesting professional experience”, Mr Schwiering had established: Not only a period of employment as a personal assistant to Mr Leicht, at the time the chairman of the Bundestag Budget Committee, from 1 January 1974 to 30 November 1977, and professional experience gained subsequently up to 15 October 1982 at the Court of Auditors, both periods added together amounting to eight years, nine months and fifteen days; But also a period of legal studies at Bonn University running from October 1971 to 1 January 1974, that is to say for 27 months. “The selection board” (stated Mr Mart in that connection) “treated the legal studies successfully completed as being equivalent to a part of the professional experience required, on the ground that if, instead of taking a course of study, Mr Schwiering had immediately started work, there would have been no difficulty in his being given credit for equivalent experience in accordance with the Court of Auditors' practice in its assessment of all staff recruited before that date.” Thus it was by establishing that equivalence and by adding together the duration of the studies completed by Mr Schwiering and his various occupations, that the selection board arrived at the view that he had established that he had the total of 10 years' professional experience required in the absence of a diploma. Such an equation flies in the face of the terms of the notice of competition recited above. For an occupation described as “normally requiring a university diploma” cannot by definition be made to include an activity which takes the form of studies and is undertaken as a means of obtaining that very diploma. Consequently, even if it be supposed that his employment as a personal assistant to Mr Leicht may be taken into consideration, Mr Schwiering could not on 15 October 1982 show that he had the total of 10 years' professional experience required in his case for admission to the competition. It follows that the decision of 1 February 1983 appointing him as a probationary official in Grade A 5, and also, so far as is necessary, the decision of 24 March 1983 overruling the Financial Controller's refusal of approval dated 28 February 1983, must be annulled.