2.

(a) A further complaint which the applicant levels at the Court of Auditors is that the Selection Boards in Competition Nos CC/LA/20/82 and CC/LA/4/83 — whose members were the same — gave different interpretations within a short space of time to identically-worded requirements for admission to the competition. The requirement of ‘practical experience at senior level in work related to the post to be filled’ was given a significantly more liberal interpretation in the first competition than in the second. Since the admission requirements are objective in nature, compliance with them can be checked. The Selection Board has no discretion in determining objective criteria. The Court of Auditors, however, argues that as the appointing authority has no power to appraise the work of a Selection Board and in particular to examine the reasons which prompted it to accept or refuse an application. For that reason it is not competent to depart from the interpretation of the words ‘at senior level in work related to the post to be filled’ adopted by the Selection Board. Notwithstanding that, the Selection Board rightly came to the conclusion that the applicant did not qualify for admission to the competition. Since the vacancy was for a head of section, the very nature of the post made it essential for the Selection Board to require a significant degree of experience at least as a reviser. It was not therefore sufficient to produce proof of a minimum length of experience; all or part of that experience — this being a question for the Selection Board — also had to be at a high qualitative level. A comparison with the requirements for admission to Competition No CC/LA/-20/82 is not possible since the two competitions were meant to fill different posts. Since the purpose of the two competitions was different, the Selection Boards were entitled to assess the candidates' experience differently. (b) The question to be determined at this juncture is whether the aforementioned admission requirement is an objective criterion susceptible to judicial review or whether it is a criterion which requires an evaluation by the Selection Board. In the latter case, the substance of the Selection Board's decisions would not be open to review since it would enjoy a measure of discretion; the only question to be examined would then be whether the procedure was properly carried out. The notice of competition refers to ‘at least 10 years' practical experience at senior level, in work related to the post to be filled’. As is stated in the notice, the vacancy is for a head of section or reviser. However, the notice does not indicate what is meant by experience ‘at senior level’. Therefore the admission requirements are not framed in such a way that it is possible to determine whether they are satisfied simply by applying objective criteria. It was therefore necessary for the Selection Board to determine the criteria for the admission of candidates before admitting them to the competition so as to be able to decide upon their admission on the basis of those criteria. That duty arises from the incomplete wording of the notice of competition and from Article 5 of Annex III to the Staff Regulations. According to the first paragraph of that article, the Selection Board must initially only examine the candidates' files and draw up a list of candidates who meet the requirements set out in the notice of competition. However, if the requirements of the notice of competition are not directly applicable on their own but require a value interpretation by the Selection Board, the Board must lay down the criteria for the interpretation of the entrance requirements before examining whether candidates qualify for admission. If it did not set out those criteria in advance, the Selection Board would subsequently not be in a position correctly to draw up the list of suitable candidates provided for in the sixth paragraph of Article 5 of Annex III to the Staff Regulations which must include a reasoned report. In this context I think that it is necessary to apply by analogy the third paragraph of Article 5 of Annex III where a criterion in a notice of competition which has not been set out in sufficient detail requires a value judgment by the Selection Board. However, the final repon of the Selection Board in the abovementioned competition of 16 September 1983 ( 11 ) contains no indication that it laid down those criteria for the interpretation of the admission requirements. It merely states that none of the candidates satisfies the entrance requirements, in particular the requirement of ‘at least 10 years' practical experience at senior level, in work related to the post to be filled’ contained in paragraph V.2 of the notice of competition. According to that report, the Selection Bpard did not therefore lay down the aforementioned criteria. The Court of Auditors has indeed observed in general terms that in all the other language sections in which the post of head of section had to be filled, it has required long practical experience (10 years) relevant to the vacant post; it interpreted that as meaning experience gained at least in part in the position of reviser. In response to a written question put to it by the Court concerning how it had arrived at the aforementioned criteria, the Court of Auditors confined itself to submitting once again the final report of the Selection Board. At the hearing it then stated that it had excluded all candidates who could not provide proof of 10 years' experience as a reviser from the rest of the competition procedure. That step on the part of the Selection Board is incompatible with Annex III to the Staff Regulations. Since, in my view, the third paragraph of Article 5 of Annex III must be applied by analogy where admission requirements are not sufficiently specific, that is to say where, as in the case of the assessment of qualifications, the criteria for their assessment must be laid down in advance, I can refer to the judgment of the Court óf Justice of 14 December 1965 in Morina, ( 12 ) in which the Court stated: ‘More particularly, by failing to set out the criteria according to which it made its assessment of the qualifications, the Selection Board omitted from its report a factor which was essential to support the statements contained therein; it thereby infringed the provisions in the sixth paragraph of Article 5 of Annex HI to the Staff Regulations... ’. Those statements of the Court are fully applicable in this case. The same is true of the subsequent reasoning given in that judgment, which was as follows: ‘[The provisions in the sixth paragraph of Article 5 of Annex III to the Staff Regulations]... must be considered requirements of substance. The criteria of assessment should be fixed in order to ensure that the qualifications are assessed objectively and without any possibility of arbitrariness. In addition, the requirement that the report be “reasoned” enables the appointing authority to exercise its discretion with judgment, which means that it needs to be informed of both the general criteria employed by the Selection Board and the manner in which these were applied by the Board to the persons appearing on the list of suitable candidates. These requirements were also imposed in the interests of candidates, so that infringement of them adversely affects the unsuccessful candidates within the meaning of Article 91 of the Staff Regulations.’ It is clear from the Selection Board's final report and the statements of the Court of Auditors in the course of the oral procedure, that the Selection Board did not establish those criteria. For that reason the Selection Board's decision not to admit the applicant to Competition No CC/LA/4/83 must be annulled on the grounds that it is flawed. That result would not be changed if the Selection Board had in fact defined the entrance requirement as requiring 10 years' experience as a reviser because that criterion is not mentioned in its report. In any event, it is at least doubtful whether that criterion, if adopted, would have been proper. After all, the Court of Auditors has itself stated that in other competitions to fill comparable posts in other language sections at least 10 years' experience has been required of which only a part had to be experience as a reviser. In that case it was all the more necessary to establish the criteria for assessing practical experience. If the Selection Board then wished to depart from the previous practice, it should at least have given an explanation.