4.

I may now therefore consider the objections concerning the substance. The applicant alleges various defects in the procedure for the competition and, in particular: the failure to observe the rules relating to the time at which the criteria for the assessment of the tests must be fixed; the factual error which the selection board committed by failing to dictate the title of the shorthand test, which constituted a breach of the principle of equality of treatment; the method of correction of the tests (referred to as “offsetting advantages”), similarly in relation to the principles of equality and proportionality; finally the breach of the principle of the protection of legitimate expectation. She notes in that respect that candidates in competitions must be able to rely on examining boards' not committing factual errors; and, in any event, the administration's communication of the result of the tests gave rise to the expectation of a favourable result. The defendant refuses to accept that the Board committed factual errors and considers that the assessment of the tests falls within a discretionary power the use of which the Court is not empowered to review. Thus it claims that the applicant's argument that the rules governing the determination of the criteria for correction of the tests were not observed and that the compensation applied was contrary to the principle of the equality of treatment is deprived of its basis. Finally, Miss Detti's legitimate expectation was in no way frustrated. That last observation seems to me to be correct. It is always open to the persons concerned to bring an action before the Court in respect of factual or legal errors which a board may make. Moreover the administration's communication in respect of the results of the tests did not cause the applicant any injury because it clearly did not prevent her from bringing this action within the prescribed period. I consider Miss Detti's claim that the procedure is vitiated, because the board altered criteria which had already been fixed, to be valid as an abstract proposition, but irrelevant in this particular case. I would remind the Court that Article 1 (1) (e) of Annex III (Competitions) to the Staff Regulations of Officials states that the notice must specify “where the competition is on the basis of tests, what kind they will be and how they will be marked”. However, apart from that provision — with which, in any event, the notice in this instance seems to be in conformity — the Staff Regulations contain no express provisions as to the time by which the criteria must be fixed. There is indeed a general principle which may be extracted from the laws of Member States concerning access to a civil service career and meeting a logical requirement of efficient administration. That principle requires that the criteria for assessment be fixed prior to the opening of the folders containing the scripts. However, in this case, it has not been established that such a principle was breached, in other words that the board altered the criteria during marking. We now come to the most difficult question in the case, namely the breach of the principales of equality of treatment and of proportionality in relation to the way in which the tests were conducted and the scripts marked. It seems to me that there is one point on which the parties are in agreement. It concerns the failure to dictate to the candidates in Luxembourg 11 words which represented the title of the shorthand test. Even if the defendant does not acknowledge it as such, the board's error is in fact manifest and the legal consequences to be drawn are clear. In that context, the Court has pertinently stated that: “When the competition is on the basis of tests, the principle of equality necessitates that the tests shall be on the same conditions for all candidates, and in the case of written tests the practical difficulties of comparison require that the written tests for all candidates should be the same” (judgment of 27 October 1976 in Case 130/75 Prais v Council [1976] ECR 1589, paragraph 13 of the decision). The difference between the scripts of the Luxembourg candidates and those of the candidates in Brussels therefore invalidates the competition procedure because it is in breach of the principle of equality. However, it is precisely that principle on which the selection board and the appointing authority rely in order to justify the criteria adopted to offset the advantage enjoyed by the candidates in Luxembourg, arising from the fact that they took down in the same time a smaller number of words (to be exact 11 of 240). The fundamental problem is therefore to establish whether that compensation or the way in which it was effected may be challenged. As I have already stated, according to the appointing authority that compensation falls within the scope of the discretion vested in examining boards and may not be reviewed by the Court. It considers it to be, in addition, both reasonable and fair. I do not find those statements convincing. It is doubtless possible, in principle, to have recourse to a corrective factor, but it must be based on strictly objective criteria. Only criteria of that nature enable the Court to determine whether the assessment really complies with the principles of equality and of proportionality. Moreover, the extension of the sphere of discretion beyond all bounds undermines legal certainty and has the effect of excluding the possibility of review by the Court. In this case, the defendant — on whom the onus lies — has not provided the Court with any evidence concerning the criteria adopted by the board. It has not even submitted any material which would enable the objective nature of those criteria to be assessed. It follows that it is impossible for this Court to review directly the way in which compensation was effected or the results thereof, or, for the same reason, the presumption that it was irregular. The procedure for the competition seems to be definitively compromised. Among the various claims which she puts forward, Miss Detti does not seek its annulment. In any event, I consider that the Court's case-law in relation to the refusal of admission to tests is applicable in this case. The Court has stated: “As this was an open competition to constitute a reserve for future recruitment, the rights of the applicant will be sufficiently protected if the selection board reconsiders its decision, without its being necessary to question the whole of the results of the competition or to annul appointments made in consequence thereof” (judgment of 5 April 1979 in Case 117/78, Orlandi v Commission [1979] ECR 1613, paragraph 25 of the judgment; the following judgments adopt the same line: of 28 June 1979 in Case 255/78 Anselme v Commission [1979] ECR 2323; of 30 November 1978 in Joined Cases 4, 19 and 28/78 Salerno and Others v Commission [1978] ECR 2403; and of 4 December 1975 in Case 31/75 Costacurta v Commission [1975] ECR 1563). However, the applicant's claim to be appointed to a post in Career Bracket C 3 - C 2 with retroactive effect is inadmissible. The Court reviews exclusively the legality of the measure contested. In no circumstances may the Court substitute itself for the appointing authority.