Opinion of Mr Advocate General Lenz delivered on 5 May 1988. - Marie-Élizabeth Agazzi Léonard v Commission of the European Communities. - Officials - Internal competition. - Case 181/87.



European Court reports 1988 Page 03823



Opinion of the Advocate-General

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Mr President,

Members of the Court,

1 . My Opinion on the case brought by Mrs Agazzi Leonard relating to the Commission' s Internal Competition COM/A/8/84 in which officials could take part who wished to be promoted from Category B to Category A, is as follows :

1 . Admissibility

2.(a ) The question was raised in the present proceedings whether criticism of the change in the Commission' s organizational structure could still be regarded as admissible, that is to say whether it was still possible to object to the fact that the Medical Service of the Nuclear Research Centre at Ispra ( to which the applicant belongs ) has since January 1973 been integrated into the General Directorate for Staff and Administration and is no longer financed out of the research budget ( with the consequence that the exceptional provision of Article 98 of the Staff Regulations, providing for a change of category without a competition, was no longer applicable to its staff ). The Commission doubts this; in its view it is relevant that the said reorganization was not challenged at the time and that the applicant applied in 1979 to have the deterioration in her position under the Staff Regulations ( so far as

concerns promotion to Category A ) remedied and when her application for re-integration into the scientific service or the holding of a special competition was rejected she did not pursue the matter .

3 . I have, however, the impression that the Commission is proceeding from a wrong view of the matter . The applicant' s submissions are not in fact to be regarded as an objection to the change in the administrative organization which took place in 1973 . She is concerned only that in the holding of a competition for such promotion consideration should be given to the consequence of that change, which is that there is now a competition for promotion to Category A whereas previously qualifications and an interview were sufficient, so that in the case of applicants with scientific training and experience like herself consideration should be given to their knowledge and ability which would thus give them a fair chance of having their name included in the reserve list . Considered in that light, there is little objection to her argument, which is not that the legal position created in 1973 should be changed but rather that it should be the basis for judging a competition held in 1985 .

4.(b ) The same may be said of the Commission' s objection that criticism of the organization of the competition, such as that made by the applicant, is inadmissible because the Selection Board could not remedy the applicant' s particular problem and of its view that it is no longer possible to challenge the notice of competition because an action against it was not brought in good time .

5 . It is true that according to the most recent case-law ( 1 ) it is no longer possible in the course of a review by the Court of measures taken by a Selection Board to revert to the terms of a notice of competition if the notice was not the subject of separate proceedings brought in good time . However, as was expressly emphasized at the hearing, the applicant' s case cannot be so understood; the applicant merely criticizes the conduct of the oral test about which the notice gave no precise information but merely stated that it should enable the qualifications and suitability for performing Category A duties to be assessed . There is certainly nothing objectionable about such criticism in the context of a challenge relating to the last step in the competition taken after the oral test .

6 . On the other hand, the question whether the Selection Board could take account of the applicant' s particular case and whether it was required to do so is not, properly understood, a matter of admissibility but should be considered in relation to the substance of the action .

7.(c ) There are thus no strong objections to the admissibility of the action or of the individual claims .

2 . Substance

8.(a ) Central to the applicant' s criticism, put forward under the heading "breach of the duty of sound administration and of the duty to have regard to the interests of officials" and "breach of the principle of non - discrimination", is the applicant' s statement that as an official with a scientific training and experience she was at a disadvantage in the competition because that fact was not considered by the Selection Board in setting and marking the examination questions .

9 . From the way in which the oral test was conducted, as is known from Case 228/86 ( 2 ) ( in that respect I refer to my Opinion of 17 November 1987 ), the clear impression is gained that the applicant' s criticism is directed against the last stage of the oral test, in which questions on Community policies had to be answered . The first part of the oral test was concerned with general knowledge and the questions were of a general nature ( the applicant had to discuss the conquest of space, which should not have caused her any special difficulties ). After that the applicant' s training and work were discussed and the role of her work within the context of the Community' s policies, in other words in this context account was taken of the particular situation of the candidates, which the applicant herself considers right .

10 . As far as the questions on Community policies are concerned, I was inclined to think after a preliminary perusal of the documents that criticism of them was well founded ( this will not be surprising after my Opinion in Case 228/86 ). If I was so inclined, it was not because of the fact that the questions put to the applicant were not particularly appropriate to her training and work, for in a competition held for many Grade B members of staff working in all kinds of fields and designed to fill Grade A posts in many different departments one obviously cannot require "made to measure" tests .

11 . The reason why I did consider objections possible was that the questions related only partly to the subjects dealt with in the further training and therefore candidates who had to answer questions outside that area ( the applicant had to discuss the role of the European Investment Bank ) could be regarded as being at a disadvantage if they did not by chance have the relevant knowledge or did not have the opportunity to acquire such knowledge in their previous work .

12 . That view, however, cannot be maintained after the judgment which the Second Chamber delivered on 24 March of this year in Case 228/86 . As is well known, the Chamber did not share my misgivings but held that the questions were substantially of the same degree of difficulty, were not too arduous and that long-serving Community officials interested in Community policies must have been sufficiently familiar with their subject-matter . It also stressed that the aim of the examination was rather to judge the capacity of the candidates than to determine their knowledge and it thus shared the Commission' s view that the oral test was less concerned with testing knowledge than with determining the candidates' ability to understand problems, to think logically and to express their thoughts clearly . Moreover, it is to be observed in the present case that one of the two questions between which the applicant had a choice ( relating to surpluses in the common agricultural policy ) was clearly related to one of the topics dealt with in the further training ( application of Community law in agricultural matters ). If she nevertheless chose the other topic she naturally cannot complain of being put at a disadvantage in the manner which I described in my Opinion in Case 228/86 .

13 . If it is thus not possible to criticize the choice of questions on Community policies in the oral examination, the same is obviously also true of the manner in which the answers were assessed, that is to say the fact that no account was taken of the particular situation of the candidates and ( in the applicant' s case ) without facilitating promotion to Category A through a kinder assessment on the ground that as a member of the Scientific Service she would have had that possibility pursuant to Article 98 of the Staff Regulations . There would be serious objections to such a practice in a very general competition for a large number of Grade B officials from all kinds of departments, for the very appearance of any special treatment of individual candidates certainly had to be avoided .

14 . It would also have been too much to expect for a Selection Board to make sure, as the applicant wanted it to do, that it compensated for "anomalies" caused by administrative reorganizations ( quite apart from the fact that to entertain any such considerations would in a way be a challenge to administrative measures belonging to the distant past and no longer open to review ).

15 . In so far as the applicant maintains that the aim of the competition was to provide for reasonable career progress for long-serving staff blocked in the B Category, it may be objected that it is not apparent how that objective could be particularly significant in her case, for at the relatively low age of 43 she is in no way stuck inthe B Category and she has been in Grade B 2 ( which, moreover, and this should not be overlooked, has the same remuneration as Grade A 7 ) only a few years ( 1982 ).

16 . The arguments adduced in support of the first two submissions cannot therefore advance the applicant' s case .

17.(b ) In so far as the applicant objects with reference to the fact that scientific posts also have to be filled in the Commission, that the competition was not arranged to determine whether the candidates had that kind of knowledge and takes the view that there was thus an infringement of Article 27 of the Staff Regulations ( which requires officials of the highest standard of ability, efficiency and integrity to be recruited ), the question argued in these proceedings whether Article 27 applies at all to internal competitions may remain open .

18 . It is in fact quite clear from other considerations that the applicant' s case also fails on this point .

19 . The most important thing to remember is that the case concerns the holding of a large internal competition for all kinds of Grade B candidates and for the drawing up of a reserve list from which vacancies of many different kinds are to be filled . By its nature, such a competition procedure can only be concerned with determining general suitability for A 7 and A 6 duties . In so far as it was to be recognized by the Selection Board, that naturally does not mean that every candidate whose name was included in the reserve list enters consideration on an equal basis for every available post in the said categories . On the contrary, in filling any vacancies regard must be had to the qualifications required for those vacant posts . It was, however, inconceivable to have regard to that aspect at the general examination stage and to determine the subject of the examination accordingly .

20 . If the applicant' s objection is to be understood as meaning that in the notice no account was taken of the fact that there might be scientific posts to be filled, it is important to remember that not only was the degree of probability of such vacancies arising not known at the time when the notice was published, but also that in the case-law I have cited such an objection to the notice of competition has been held inadmissible .

21.(c ) It remains to examine the objection that the applicant' s legitimate expectation was disappointed .

22 . Two observations suffice to show that it is not valid . First, should it relate to the wording of the notice in so far as too little attention was paid to scientific candidates, it may be said that the applicant can no longer be heard on that issue . Secondly, in so far as it concerns the setting of the tests within the discretion of the Selection Board, it must be said that it has not been contended that the Selection Board caused the applicant to entertain any legitimate expectations .

23 . Furthermore, it may also be shown that the two factors referred to by the applicant in the present context are scarcely apt to found an expectation under the relevant case-law, that is to say to awaken legitimate expectations to which the administration ( as is stated in the judgment in Case 289/81 ) ( 3 ) must have regard .

24 . Thus, when the applicant refers to her efforts to further her education, which led in 1978 to her obtaining a degree from a Belgian university, it may be pointed out that she has adduced no evidence suggesting that she was induced to do so by the Administration and might thus expect appropriate consideration in her career possibilities . Moreover, it must not be forgotten that the applicant' s further education took place after the Medical Service had been integrated into the General Directorate for Administration; at the relevant time the applicant was thus well aware that there could no longer be any question for her of facilitated transition to Category A pursuant to Article 98 of the Staff Regulations .

25 . In stressing that she was encouraged to take part in the competition in question the applicant must accept that that was only a general reference to a possibility which existed . No prospect of the competition being arranged in a certain way was held out, for according to the notice itself the arrangements were largely at the discretion of the independent Selection Board .

26.(d ) In conclusion, it can therefore only be stated that none of the submissions made by the applicant gives cause to annul the measure which she challenges .

27 . 3 . Consequently, my opinion in Case 181/87 is also that the application should be dismissed and that an order for costs should be made in accordance with Article 70 of the Rules of Procedure .

(*) Translated from the German .

( 1 ) Judgment of 11 March 1986 in Case 294/84 Hermanus Adams and Others v Commission of the European Communities (( 1986 )) ECR 984;

Judgment of the Court of 8 March 1988 in Joined Cases 64, 71 to 73 and 78/86 Sergio and Others v Commission of the European Communities (( 1988 )) ECR 1399 .

( 2 ) Judgment of the Court of 24 March 1988 in Case 228/86 J.P . Goossens and Others v Commission of the European Communities (( 1988 )) ECR 1879 .

( 3 ) Judgment of 29 May 1983 in Case 289/81 Vassilis Mavridis v European Parliament (( 1983 )) ECR 1731 .