Opinion of Mr Advocate General Sir Gordon Slynn delivered on 18 November 1987. - Maria Beiten v Commission of the European Communities. - Annulment of a decision refusing admission to the tests in a competition. - Case 206/85.



European Court reports 1987 Page 05301



Opinion of the Advocate-General

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My Lords,

In Case 293/84 Sorani and Others v Commission and Case 294/84 Adams and Others v Commission the Court, in judgments delivered on 11 March 1986 ( ECR 967 and 977 ) annulled a decision of the selection board for Competition No COM2/82 ( arranged to constitute a reserve for assistants in Grades 5 and 4 of Category B ). That decision was contained in a standard-form letter of 7 September 1984 addressed to each of the applicants in those cases and refused to admit them to the tests for that competition .

In the present case, the applicant is likewise a C grade official of the Commission whom the selection board refused to admit to the tests . She challenges the decision contained in the standard-form letter of 7 September 1984 which she also received and the Commission' s rejection ( dated 17 April 1985 ) of her complaint ( dated 5 December 1984 ) under Article 90 ( 2 ) of the Staff Regulations . The details of the competition and the procedure followed by the selection board are contained in the judgments and in my Opinions in the earlier cases to which I refer .

The Commission contends that the application is inadmissible because the letter of 7 September 1984 merely confirms an earlier decision contained in another standard-form letter of 15 June 1984 and that she was out of time to challenge the latter . That argument was rejected in Sorani and Adams on the basis that there had been a reconsideration following the applicants' request and a new decision rather than a mere confirmation . The Commission' s agent conceded at the hearing that there was no difference in this respect between this application and Sorani and Adams . The argument must be rejected in this case for the same reasons . There is no challenge to the admissibility of the action in so far as it relates to the rejection of the complaint . It is therefore admissible in its entirety .

The Court' s reason for annulling the selection board' s decision in Sorani and Adams was that the applicants did not have an opportunity to state their views on the opinions expressed on them by their hierarchical superiors . The selection board had in fact sought the opinion of a hierarchical superior, in most cases the assistant to the Director-General of the Directorate-General to which the candidate was assigned ( an "assistant "), and had not made the relevant assistant' s opinion known to any applicant .

In her application, Miss Beiten did not take that point, although she was in exactly the same position . Following those judgments, she sought the Court' s leave to supplement her pleadings by adding that ground to those made in her application . However, at the hearing, by her counsel, she abandoned the point since, following those judgments, the selection board subsequently gave her the opportunity to comment on the views expressed by the relevant assistant .

The applicant advanced three arguments in her written pleadings which turn substantially though not wholly on the decision of the selection board to divide candidates admitted to the competition into two categories : ( a ) those who already exercised "all functions" at the level of category B or who already had all the potentialities for exercising functions at this level and ( b ) those who possessed only some of such potentialities or possessed them to an inadequate degree - and to admit to the tests only those in category ( a ).

The first is that the selection board' s decision infringed the requirement to give proper reasons deriving in particular from Article 25(2 ) of the Staff Regulations and Article 5 of Annex III thereto . Those provisions provide respectively as follows :

" Any decision relating to a specific individual which is taken under the Staff Regulations shall at once be communicated in writing to the official concerned . Any decision adversely affecting an official shall state the grounds on which it is based ." ( Article 25 ( 2 ) ).

" After examining these files, the selection board shall draw up a list of candidates, who meet the requirements set out in the Notice of Competition ...

Where the competition is on the basis of qualifications, the selection board shall, after determining how candidates' qualifications are to be assessed, consider the qualifications of the candidates appearing on the list provided for in the first paragraph .

Where the competition is on the basis of tests and qualifications, the selection board shall state which of the candidates on the list shall be admitted to the tests . ..." ( Article 5 of Annex III ).

The applicant complains that the contested decision contains no individual reasoning whatsoever and that the letter in which it is embodied is in standard form setting out criteria used by the selection board without specifying in any respect why the applicant herself was not admitted to the tests and in particular why she was not considered to be either presently carrying out B grade tasks or fully capable of doing so .

She relies in particular on the Court' s judgment in Case 225/82 Verzyck v Commission (( 1983 )) ECR 1991 in which the applicant successfully challenged a decision not to admit him to the tests for a competition on the ground that no proper reasons were given . I quote the relevant paragraphs in extenso since the Court gave guidance as to the reasoning requirements imposed on selection boards for competitions attracting a large number of candidates, as is the case of the competition with which these proceedings are concerned .

" ... the requirement that a decision adversely affecting a person should state the reasons on which it is based is intended to enable the Court to review the legality of the decision and to provide the person concerned with details sufficient to allow him to ascertain whether the decision is well founded or whether it is vitiated by an error which will allow its legality to be contested .

That requirement to give a statement of reasons must however be evaluated having regard to the different levels and types of competition and, more particularly, to the number of candidates competing in each of them . In the case of competitions where the candidates are more numerous, the statement of the reasons for the rejection of applications must not be so voluminous as to place an intolerable burden on the proceedings of the selection boards and the work of the personnel administration . In order to make allowance for the practical difficulties confronting a selection board for a competition for which there is a very large number of applications, it may be accepted that the selection board may initially send candidates merely information on the criteria for selection and the result thereof and not give individual explanations until later and to those candidates who expressly request them, on condition, however, that those individual details are sent by the selection board before the expiry of the period laid down by Articles 90 and 91 of the Staff Regulations, so that the recipients may, if they think fit, avail themselves of their rights .

The text of the contested decision ... does not contain any statement, even in summary form, of the reasons on which the decision relating to him was based ." ( paragraphs 15 to 17 of the judgment )

The ruling in Verzyck follows earlier judgments of the Court notably that in Joined Cases 4, 19 and 28/78 Salerno and Others v Commission (( 1978 )) ECR 2403 in which the Court said, in respect of a competition in which there had been over 4 000 candidates, that a standard letter to rejected candidates merely referring to the condition in the Notice of Competition which they had not fulfilled, when each condition was composed of several elements, did not "satisfy the requirement to state reasons in view particularly of the fact that such a reference is not capable of providing the person concerned with a sufficient indication to allow him to know when the refusal is well founded or on the other hand whether it is vitiated by a defect which would make it possible to contest its legality" ( p . 2417 ).

A similar result was reached in Case 108/84 de Santis v Court of Auditors (( 1985 )) ECR 749, where the applicant made a complaint to the appointing authority contending that the selection board' s rejection of his application for a competition incorrectly assessed his qualifications .

On the basis of these judgments, the selection board must give an individual explanation at least to those candidates who expressly request one and must state, at least in summary form, the reasons on which the decision relating to that particular candidate was based .

That cannot be said of the decision challenged here . It does not say whether she was rejected because she was not carrying out B-level functions or because she did not have the potential to do so, nor, if the latter, in what respects her work or abilities fell short of the standard required . The Commission argues that the decision was not confined to general criteria but also specified the "parameters" deriving from the application submitted by each candidate . However, in my view the letter is clearly limited to describing the way the selection board approached its task and does not contain any reference to the specific features of the applicant' s situation .

In its rejoinder, the Commission says that, given the number of candidates in the competition, it was enough for the selection board to set out the criteria; it was not obliged to explain in detail to each candidate how and to what extent the carrying out of specified tasks demonstrated aptitude to perform B grade functions . This argument flies in the face of the Court' s ruling in Verzyck and the decision should be set aside for failure to give any or any adequate reasons .

On this basis the other grounds do not fall for consideration . I deal with them briefly in case a different view is taken of the first ground .

The second argument is that the contested decision is erroneous in implicitly holding that the applicant is not currently carrying out B grade tasks or, at least, not fully capable of doing so . This is said to be a breach of Article 5 ( 3 ) of the Staff Regulations, according to which "identical conditions of recruitment and service career shall apply to all officials belonging to the same category or the same service", and of general principles of law .

By virtue of the third and fourth paragraphs of Article 5 ( 1 ) of the Staff Regulations, Category B staff carry out "executive duties which require an advanced level of secondary education or equivalent professional experience" and Category C staff "clerical duties which require secondary education or equivalent professional experience ."

The applicant claims that it is obvious that she is carrying out B grade functions in the registry of DG IV, where she has worked since November 1979, since her predecessor was a B 2 ( application ) or B 3 ( reply ) official . Indeed there is a legal presumption in her favour because Article 7 ( 1 ) of the Staff Regulations obliges the appointing authority to "assign each official ... to a post ... which corresponds to his grade ": her predecessor must be presumed, in the absence of contrary evidence ( which the Commission has not advanced ), to have been carrying out tasks appropriate to a person in Grade B . Alternatively, she at least has the potential to carry out B grade tasks by reason of the work she has done and also because she has a certificate showing that she has followed an archives course given by a certain Mr Hoffmann .

The Commission argues that the Court' s case-law allows the selection board a large margin of discretion and that the Court may only intervene in the case of manifest error . An examination of the applicant' s periodic reports shows, according to the Commission, that the duties she carried out were C grade duties : typing, secretarial work, registering and filing . Her participation in Mr Hoffmann' s course does not show that she has all the potential required to carry out B tasks .

Although a decision which is perverse or wholly unreasonable on the evidence before the selection board - containing "manifest error" - would justify the setting aside of such a decision, I am not satisfied that that ground is made out in this case and that it can be said that the selection board exceeded the margin of appreciation which it undoubtedly has in assessing the evidence . The Court has no information concerning, for example, the complexity of the duties she performed or the extent to which her work was supervised . Whilst it is at first sight surprising that if, as she says, her predecessor was in Grade B 2 or B 3, she was not accepted, the Court cannot be satisfied by mere assertion that she is doing substantially the same work or work to the same standard . There is inadequate evidence for such a finding and I would not accept the second argument .

The third argument, said to be subsidiary to the first two, is that it was wrong for the jury to divide the candidates into two groups ( namely those already carrying out B grade functions or having the full potential to do so and those who had no such potential ). This is said to be contrary both to Article 5 ( 3 ) of the Staff Regulations and paragraphs 3 and 4 of Article 5 to Annex III thereto, and to ignore the purpose of the competition procedure, thereby constituting misuse of powers, and a breach of various principles of law . The criterion used to divide the two groups discriminated between those who had and those who had not had the good fortune to be given B tasks to carry out . It frustrated the purpose of a competition, even an internal competition, which is to allow all those who fulfil the criteria for admission to the competition to be given the chance to demonstrate their abilities irrespective of fortuitous matters such as whether they have been given the chance to carry out B tasks .

To let in to the tests only those who have actually performed B level functions would, in my view, have been too restrictive in this competition, and even giving such persons an immediate right of entry has its disadvantages as I indicated in Adams . To widen the group by allowing those who have shown potential in all the requisite B level functions to take the tests is obviously less restrictive but has the disadvantage that it excludes people who have not had the chance to show B-level potential, and inevitably involves to some extent a subjective appreciation of the candidates' dossiers . It seems more satisfactory to set a higher standard in the conditions of entry to the competition and to leave it to the tests to elicit potential .

However, with 800 candidates admitted to the competition, the selection board had to adopt some yardstick in order to produce the final list . So long as people knew clearly why they were rejected as not having the potential or as not having undertaken B level functions, so that they could challenge the decision if it was wholly unreasonable or based on a misdirection, I am not satisfied that the method adopted of looking for potential on the basis of all the factors involved amounted to a misuse of powers .

I would therefore reject the third ground .

Since the Commission could not set aside the selection board' s decision, I do not think it right to set aside the rejection of the complaint . Failure to do so in no way detracts from the effectiveness of the remedy to which in my view the applicant is entitled .

In the light of the fact that the applicant' s counsel accepted that his arguments relating to the decision of 7 September 1984 covered the subsequent interviews in September 1986 and December 1986 leading to the letter of 12 February 1987 in which apparently the board said that it maintained its previous decision ( but which the Court has not seen ), it does not seem to be necessary to investigate the question whether the application should be treated as extending to the later decision . On any view, if there is a later decision which is attacked for separate reasons the prudent ( and I think necessary ) course is to commence fresh proceedings in due time .

In the circumstances it is my view that the decision contained in the letter of 7 September 1984 to the effect that the applicant was not admitted to the tests should be set aside and the applicant' s costs should be paid by the Commission .