Opinion of Mr Advocate General Vilaça delivered on 2 April 1987. - Georges Kolivas v Commission of the European Communities. - Official - Selection board for competitions - Power to assess the tests - Limits - Secrecy of the proceedings. - Case 40/86.



European Court reports 1987 Page 02643



Opinion of the Advocate-General

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Mr President,

Members of the Court,

1 . In these proceedings, the applicant, Georges Kolivas, a Commission official, seeks the annulment of the decisions of the selection boards for Competitions Nos COM/LA/4/84 and COM/LA/5/84 not to admit him to the oral tests in view of the marks awarded to him in the written tests .

I - Summary of the facts

2 . In November 1984 the applicant took part in the tests set in the aforesaid internal competitions to draw up a reserve list of Greek-language principal translators and revisers . The test papers were marked first by two external examiners who are university professors in Greece .

3 . The selection board subsequently decided, by a majority, not to accept the marks awarded by the two examiners and unanimously decided to have the test papers marked a third time by an outside expert, P . Yannopoulos .

4 . In view of the delay which occurred in marking the test papers, the decision of the selection board to have them marked by a third examiner was communicated, in order to meet the concern expressed by the staff, to the Greek Translation Division in Brussels by A . Christoyannopoulos, who was Head of Division at the time, and to the Greek Translation Service in Luxembourg by D . Stefanidis, who was Head of Division in Luxembourg at the time . Mr Christoyannopoulos was a member of the selection boards for the competitions and Mr Stefanidis was the alternate member .

5 . On 13 November 1985 the applicant was informed that, in view of the results he had obtained in the written tests, the selection board was unable to admit him to the oral tests .

6 . On 12 February 1986, the applicant brought this action .

II - The applicant' s submissions

A - First submission

7 . In his first submission the applicant alleges infringement of the third and fourth paragraphs of Article 5 of Annex III to the Staff Regulations .

8 . From the Court' s judgment in Case 21/65 Morina v European Parliament ( 1 ) and the Opinion of Mr Advocate General Lenz in Case 143/84 Vlachou v Court of Auditors, ( 2 ) the applicant draws the inference that, in the case of competitions on the basis of qualifications and tests, the selection board must, before marking the test papers and holding the oral tests, lay down the criteria on which assessments are to be based .

9 . In this case, the selection board had the test papers corrected by two independent examiners and it was only after it had taken cognizance of the results that it decided to have the test papers marked by a third examiner, without providing any information whatever with regard to its assessment of the marks awarded by the first two examiners, even though it had been asked to do so by the applicant . In those circumstances, therefore, the necessary guarantees of objectivity and lack of arbitrariness were missing .

10 . That is the crux of the argument on which the applicant' s first submission is based .

11 . It must be stated, first of all, that the analogy which the applicant seeks to draw between this case and the third and fourth paragraphs of Article 5 of Annex III to the Staff Regulations, does not seem to me to be relevant .

12 . The third paragraph of Article 5 requires the criteria for assessing the candidates' qualifications to be fixed in advance only in the case of a competition on the basis of qualifications .

13 . That was the kind of competition considered by the Court in the Morina judgment .

14 . There is no doubt in my view that the rule in the third paragraph of Article 5 is applicable to competitions on the basis of tests and qualifications, with regard to the establishment of criteria for assessing the candidates' qualifications .

15 . However, the applicant relies heavily on the Opinion of Mr Advocate General Lenz in Vlachou .

16 . In his Opinion, Mr Advocate General Lenz argues in favour of the application by analogy of the third paragraph of Article 5 to the assessment of the conditions governing admission to competitions for the purpose of drawing up the list referred to in the first paragraph of Article 5, where it is necessary to supplement the criteria for admission laid down in the notice of competition in such a way as to require the selection board to make a value judgment on the professional qualifications relied upon .

17 . However, it is uncertain whether that requirement is automatically applicable to a situation in which the selection board may need to determine in advance the criteria for assessing the test papers, unless compliance with the principles that marking must be objective and that candidates are to be accorded equal treatment depends on it .

18 . In addition, Article 1 ( 1 ) ( e ) of Annex III to the Staff Regulations merely lays down, where a competition is on the basis of tests, that the notice of competition must state "what kind they will be and how they will be marked", a condition that was fully complied with in this case .

19 . In any event, the essential guarantee of objectivity and lack of arbitrariness lies in a choice of competent and impartial examiners and conditions for the marking of test papers which ensure that the "rules of the trade" are properly applied .

20 . Apart from that, the fact remains that the Commission has transmitted to the Court, together with its defence, a copy of the document which it supplied to all the examiners and which sets out "the essential marking criteria laid down by the selection board ". The core of the applicant' s argument is therefore devoid of substance .

21 . The other arguments relied upon in that regard by the applicant are more closely connected with his third submission ( breach of the principle of the protection of legitimate expectation and of the principle of fairness ). However, I propose to consider them now in the order in which they are set out in the application .

22 . To begin with, to what extent can the fact that the selection board decided to have the test papers re-marked by a third examiner affect the validity of the selection board' s decision?

23 . The applicant argues that to have the test papers marked by a third examiner was contrary to the undertaking previously given by the administration to organize the contested competitions "on the same conditions" as other competitions held in the past, that is to say to have the test papers marked only by two external examiners unconnected with the candidates' superiors .

24 . I shall consider that argument .

25 . Let me say at once that the manner in which the selection board conducted its deliberations is in no way contrary to the terms of the notice of competition, nor is that contested by the applicant, who relies only on a memorandum dated 6 January 1984 from the Director-General for Personnel and Administration to the President of the Central Staff Committee, referring to a previous decision of the administration .

26 . As the Court has stated in its judgment in Campogrande, ( 3 ) "the decision on the organization of the competition takes its legal and final form from the notices of competition brought to the notice of the personnel", adding in the same judgment ( 4 ) that "the deliberations of the competent body as they appear from the minutes cannot override the clear wording of the decision in question unless they obviously show that the formal decision is not in accord with what was in fact laid down at the end of the deliberations ".

27 . That is not the case here .

28 . In effect ( a ) none of the minutes of any of the deliberations relating to the manner of organizing the competitions have been produced; ( b ) the statement by the Director-General for Personnel and Administration refers, in general terms, only to a decision to organize a second round of competitions "on the same conditions" without giving further details; ( c ) the notices of competition do not refer to the marking system to be applied, and ( d ) as is clear from the instructions given to the examiners, it was the selection board for the competitions which "in order to ensure that the marking was essentially objective ... decided to have recourse to external examiners (( two for each test ))".

29 . It cannot be denied that the selection board possessed the discretion and the freedom to decide, when confronted with the two sets of marks, that it was necessary to have the test papers marked by a third examiner .

30 . The independence of the selection board with regard to the organization of its deliberations cannot be called in question, in particular with regard to the assessment of the aptitude or ability of the candidates to be examined by means of written tests .

31 . In its case-law the Court has consistently emphasized the independence and wide discretion enjoyed by a selection board for a competition, provided they are based on objective criteria and do not lead to a manifest infringement of the rules governing the selection board' s deliberations . ( 5 )

32 . Thus, for instance, the Court held in its judgment in Hoyer ( 6 ) that "in view of the wording of the notice of competition, the nature of the vacant post and the place of employment, the selection board was perfectly entitled to decide, within the scope of its discretionary power, that a 'good' knowledge of French was essential, even if the notice of competition did not contain any condition as to the level required ".

33 . The Court has also held ( 7 ) - in a case concerning the organization by the Commission of various competitions to fill the same administrative posts, although involving the performance of different duties - that, as it is for the selection board of each competition "to reconcile the advisability of harmonizing to a certain extent the test conditions and the necessity to judge, according to the appropriate criteria, the experience of the candidates ... such reconciliation is, under the terms of the notice of competition, the responsibility of each selection board and is guaranteed by its independence and the secrecy of the proceedings laid down by the Staff Regulations ". In those circumstances, the Court goes on to state in the same judgment, "differences in assessment from one competition to another are not only inevitable but proper, even as regards the common tests, since the assessment of the importance of these latter may vary in the eyes of the different selection boards in relation to the various abilities which the performance of different duties requires ".

34 . The alleged impossibility of amending any condition whatever in relation to previous competitions would, moreover, create manifest difficulties with regard to the organization of a fresh competition, for instance as regards the preparation of the written tests, even if it did not lead to the absurd conclusion that the candidates in every competition had to answer the same questions .

35 . Admittedly, there is a discrepancy between the Commission' s defence and the minutes of the meetings of the selection board for Competition No COM/LA/4/84 with regard to the reasons which induced the selection board to decide to have the test papers marked by a third examiner .

36 . In its defence the Commission indicates - in keeping, it would appear, with a statement made by a member of the selection board at a staff information meeting - that the decision in question was taken after it had been "established that there was a substantial discrepancy between the assessments made by the two external examiners", whilst the minutes of the selection board' s deliberations show that the reason was, to be more precise, the fact that "the examiners had marked the tests 'generously' , in a manner that fell short of the qualitative standards prevailing in the Community ".

37 . The difference between those two versions - which are not necessarily incompatible and which the Agent for the Commission sought to reconcile at the hearing - may seem curious and reflect a degree of confusion, but it is not capable of "retroactively" affecting the validity of the selection board' s decision to have the test papers marked by a third examiner .

38 . Whatever the reason for that decision, it was sufficient for the selection board to take the view that it was unable to classify the candidates and to consider it necessary to have the test papers marked once again . The selection board cannot be denied that discretion .

39 . In the course of the procedure, the selection board decided to adopt the marks awarded by the third examiner, which is hardly surprising since it had considered the marks initially awarded to be unreliable .

40 . Even so, it acted within the scope of its discretion, which must be respected .

41 . Since the marks awarded by the third examiner were those on which the selection board based its decision whether or not to admit the candidates to the oral test, it was those marks which the administration communicated to the applicant, although it does not seem to me that the marks awarded by the first examiners, who were merely involved in the selection board' s decision-making process, should also have been communicated to him . Moreover, the applicant does not allege, in support of his application, that the statement of reasons on which the decision was based was insufficient .

42 . The applicant also contends that the test papers were marked by the third examiner in the presence of a member or the members of the selection board, and therefore without any guarantee of independence and objectivity . The applicant states, more precisely, in his reply that "the third examiner - and therefore the selection board - would appear ... to have contravened the principles of equal treatment by agreeing to mark the test papers of certain candidates, but not others, in the presence of members of the selection board" ( emphasis added ).

43 . That contention, which the applicant ultimately puts forward in uncertain terms, is not, however, supported by a shred of evidence and cannot therefore be regarded as proven .

44 . Moreover, the test papers were numbered in such a way as to preserve the anonymity of the candidates . The Commission maintains, without being challenged by the applicant, that the veil of anonymity was lifted only after the test papers had been marked by the third examiner, prior to which, in accordance with a proposal made by the representative of the Staff Committee and in order to provide a better guarantee of confidentiality, all the test papers had been renumbered in order to be ( with the exception of the German paper ) re-marked by the new examiner .

45 . The applicant has not therefore furnished any proof to support the contention that the tests, or the marking of the test papers, did not take place on the same conditions for all the candidates in the competition, contrary to the requirements of the principle of equality . ( 8 )

46 . That conclusion is not affected by the fact that, as is apparent from the minutes of the selection board' s deliberations, which are included in the file on the case, one group of test papers ( tests III.1.a ) was marked in conjunction with the new examiner, whilst the other group of test papers ( tests III.1.c ) was marked by that examiner . The selection board may have sought to ensure by those means that the marking criteria were appropriate and, moreover, it would not appear that, within each group, different treatment was accorded to the test papers of the various candidates .

47 . However, the applicant casts doubt on the impartiality of the third examiner, since that person is a teacher who has a contract with the Commission connected with the organization of training programmes, whose wife was in the same position and who, it was already known at the time, would in future work under the direct authority of Mr A . Christoyannopoulos, a member of the selection board who was subsequently transferred to the Staff Training Division .

48 . Hence, according to the applicant, an undertaking previously given by the administration not to have the candidates' test papers marked by Commission officials had not been honoured .

49 . However, that formal undertaking is not to be found in the documents relied upon by the applicant, which refer simply to the fact that, in order to provide the fullest possible guarantees, "selection boards are to consider the appointment of external examiners in order to have the test papers marked twice and may have recourse to fellow linguists from other institutions in order to ensure observance of the 'Community style' " ( emphasis added ).

50 . It is possible to detect in that quotation, more appropriately, a reference to an obligation as to the means to be employed - and not as to the results to be achieved - which the administration has imposed on selection boards and which, according to the terms in which it is couched, does not extend to their essential capability of responding to any difficulties which, having regard to the characteristics of competitions, they may encounter in the performance of their tasks .

51 . The Court has already stated on several occasions that a selection board may legitimately have recourse to the assistance of examiners in an advisory capacity, ( 9 ) provided it "retains ultimate control over the procedures and its discretionary power ".

52 . In this case that condition was complied with . The selection board notified all the examiners of the marking criteria, ensured anonymity by the numbering and renumbering of the test papers and decided, by means of a vote, to adopt the marks awarded by the third examiner .

53 . As for the other circumstances referred to by the applicant with regard to the situation of the third examiner, they are mere assumptions which cannot, in my view, lawfully support the conclusion that he was not capable of marking in a spirit of independence the test papers covered by a veil of anonymity under the supervision of a collegiate selection board .

54 . Moreover, according to the minutes of the selection board' s deliberations, the choice of a third examiner was decided upon unanimously, on a proposal from the representative of the Staff Committee .

55 . Although, in abstract terms, the decisions adopted by the selection board may not have been the most apposite means of overcoming the difficulties which it encountered, they cannot be regarded as sufficient evidence either of a lack of impartiality or objectivity or as the cause of a breach of the principle of equal treatment of the various candidates in circumstances that were prejudicial to the applicant .

56 . The applicant contends that he alone of the candidates in Brussels failed to pass either of the competitions . That fact is not in itself sufficient to establish that he was accorded unequal treatment in relation to the other candidates . The results were different and there is no way of knowing whether or not the applicant would have passed on the basis of the marks he was awarded by the first two examiners .

57 . In the light of the foregoing considerations, I consider that the first submission should be rejected .

B - Second submission

58 . The applicant claims that Article 6 of Annex III to the Staff Regulations was infringed in so far as two members of the selection board, A . Christoyannopoulos and D . Stefanidis, infringed the secrecy of the proceedings by informing their staff that it had been unanimously decided to have the test papers marked by a third examiner .

59 . In my view, this submission must also be regarded as unfounded .

60 . The Court has already held ( 10 ) that "the secrecy of the proceedings of selection boards for competitions ... was introduced ... with a view to guaranteeing the independence of selection boards and the objectivity of their proceedings, by protecting them from all external interference and pressures whether these come from the Community administration itself or the candidates concerned or third parties ".

61 . There is no reason for concluding that those principles have been called in question by the communication of information concerning the decision to have the test papers marked by a third examiner .

62 . Clearly, as the Court has also held, ( 11 ) "observance of this secrecy runs counter to divulging the attitudes adopted by individual members of selection boards and also to revealing all the factors relating to individual or comparative assessments of candidates ".

63 . The latter aspect is not at issue here . However, it is clear that, by revealing that the decision to have the test papers marked by a third examiner was adopted unanimously, the two members of the selection board in question disclosed by implication the manner in which all the members had voted, including the representative of the Staff Committee .

64 . In the circumstances, there is no way in which that can affect the independence of the selection board and the validity of its deliberations .

65 . The mere communication of an objective fact was involved, which was connected with the procedure followed by the selection board, which affected all the candidates equally and which had nothing to do with individual or comparative assessments of merit .

66 . As the Court has also held, 11 "the scope of this secrecy cannot be widened to such an extent as to refuse disclosures of objective facts ...".

67 . In any event, the applicant' s interests were in no way prejudiced by the fact relied upon in the second submission, nor is that fact capable of affecting the applicant in a particular manner in relation to the other candidates .

68 . In my view, therefore, the second submission should also be rejected .

C - Third submission

69 . The applicant also claims that the principle of the protection of legitimate expectation and the principle of fairness have been contravened .

70 . The principle of the protection of legitimate expectation is alleged to have been contravened because, contrary to Opinion No 2/76 of the Joint Committee of 26 April 1976, and the undertaking which the administration is alleged to have given in that connection, two of the candidates' superiors were appointed to the selection board, Mr A . Christoyannopoulos as member and Mr D . Stefanidis as alternate member .

71 . In the first place, Opinion No 2/76 only contains a recommendation that the appointing authority should not be represented on selection boards for competitions and that a member of a department exclusively concerned by a competition should not be appointed as president of the selection board .

72 . In contrast to previous competitions ( in which the candidates' superiors presided over the selection boards ), that recommendation was complied with in the case of the competitions at issue .

73 . In addition, it is necessary to take account of the particular difficulties concerning the composition of selection boards for the language service, particularly with regard to the Greek section; those difficulties have already prompted certain members of the Joint Committee to emphasize the problems raised by the immediate application of the principle of not entrusting the presidency to members of the department or Directorate-General in question .

74 . Moreover, the file on the case contains no evidence of the existence of the undertaking alleged by the applicant .

75 . On the contrary, in a memorandum sent on 13 April 1983 to the President of the Central Staff Committee, the Commission' s Personnel Director clearly doubts whether there was "any decision to set up selection boards under such drastic conditions" and states instead that, in his view, "one of the three members (( including the president )) should logically be drawn from the Greek translation units as organized at present ".

76 . The other memoranda from the Director-General for Personnel and Administration, which are referred to by the applicant, merely indicate the existence of an undertaking to initiate discussions on the procedures for organizing competitions .

77 . Moreover, the applicant does not refer to any hard facts which are capable either of substantiating his doubts regarding two members of the selection board or of demonstrating the existence of any particular animosity towards him .

78 . A further point is that, as the Court has already established, ( 12 the third paragraph of Article 3 of Annex III to the Staff Regulations merely requires that if the members of the selection board are officials, they must be of a grade at least equal to that of the post to be filled without necessarily having to belong to a different department .

79 . The applicant also relates the decision to have the test papers marked by a third examiner to a breach of the principle of the protection of legitimate expectation . However, I have already considered this submission and have come to the conclusion that it is unfounded .

80 . Finally, the applicant alleges a breach of the principle of fairness, inasmuch as the candidates were not given an opportunity to reply to any remarks made by their superiors during the marking of the test papers .

81 . That argument is also based on a mere assumption and disregards the fact that the marking of the test papers was organized in such a way as to preserve the anonymity of the candidates, and no proof to the contrary has been adduced .

82 . In my view, therefore, the third submission should also be rejected .

III - 83 . In those circumstances, I can only suggest that the Court dismiss the application, inasmuch as the submissions relied upon are unfounded .

84 . Furthermore, I do not consider that the discrepancies established in the statement of the reasons for having the test papers marked by a third examiner were of such a kind as to affect the applicant' s position in these proceedings, or that the conduct of the defendant, which has not been shown to have acted in bad faith, produced consequences capable of justifying the application of the second subparagraph of Article 69 ( 3 ) of the Court' s Rules of Procedure .

85 . In conclusion, I suggest that the Court order the parties to bear their own costs pursuant to Article 70 of the Rules of Procedure .

(*) Translated from the Portuguese .

( 1 ) Judgment of 14 December 1965 (( 1965 )) ECR 1033 .

( 2 ) Judgment of 6 February 1986 (( 1986 )) ECR 459 at p . 473 .

( 3 ) Judgment of 9 October 1974 in Joined Cases 112, 144 and 145/73 Campogrande v Commission (( 1974 )) ECR 957 at p . 983, paragraph 66 of the decision .

( 4 ) Paragraph 67 of the decision .

( 5 ) See Campogrande, supra, at p . 981; judgment of 14 July 1983 in Case 144/82 Detti v Court of Justice (( 1983 )) ECR 2421 at p . 2436, paragraph 27 of the decision; judgment of 23 October 1986 in Joined Cases 322 and 323/85 Hoyer v Court of Auditors (( 1986 )) ECR 3215 at p . 3224, paragraphs 15 and 16 of the decision .

( 6 ) Paragraph 15 of the decision .

( 7 ) Campogrande, supra, at pp . 977 and 978 .

( 8 ) See the judgment of 27 October 1976 in Case 130/75 Prais v Council (( 1976 )) ECR 1589 at p . 1599 .

( 9 ) See the judgment of 16 October 1975 in Case 90/74 Deboeck v Commission (( 1975 )) ECR 1123 at p . 1137; judgment of 26 October 1978 in Case 122/77 Claes v Commission (( 1978 )) ECR 2085 at p . 2097; judgment of 30 November 1978 in Joined Cases 4, 19 and 28/78 Salerno v Commission (( 1978 )) ECR 2403 at p . 2414 .

( 10 ) Judgment of 28 February 1980 in Case 89/79 Bonu v Council (( 1980 )) ECR 553 at pp . 562 and 563 .

( 11 ) Bonu, supra, at p . 563 .

( 12 ) Judgment of 16 October 1975 in Case 90/74 Deboeck v Commission (( 1975 )) ECR 1123 at p . 1136 .