Opinion of Mr Advocate General Mischo delivered on 28 October 1987. - Ernst R. Bauer and others v Commission of the European Communities. - Officials - Promotions. - Joined cases 151/86, 152/86, 153/86 and 154/86.



European Court reports 1987 Page 04951



Opinion of the Advocate-General

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Mr President,

Members of the Court,

1 . Like Joined Cases 181 to 184/86 Del Plato and Others v Commission Joined Cases 151 to 154/86 Bauer and Others v Commission concern the "procedures to be implemented prior to decisions on the transfer from Category B to Category A of officials and temporary staff in the scientific and technical services" adopted by the Commission on 3 June 1983 and published in Administrative Notices of 24 June 1983 ( hereinafter referred to as the "Procedural Arrangements ").

2 . However, whereas in Joined Cases 181 to 184/86 most of the submissions challenge the legality of those rules of procedure, the applicants in the present cases mainly rely on arguments based on an alleged infringement of those arrangements .

3 . For that reason it seems to me appropriate to deliver separate Opinions on each of the two groups of cases .

I - Admissibility

4 . By their second claim the applicants seek an order requiring the Commission to enter their names on the list of candidates suitable for performing Category A duties . However it is clear from the consistent case-law of the Court that this sort of claim is inadmissible . The Court cannot encroach upon the prerogatives of the appointing authority by giving it instructions which could determine its choice ( on this point see the judgment of 15 December 1966 in Case 62/65 Serio v Commission of the EAEC (( 1966 )) ECR 561, in particular the second paragraph of part D at p . 571, and the judgment of 22 October 1977 in Case 121/76 Moli v Commission (( 1977 )) ECR 1971, at p . 1980, paragraph 23 . Furthermore, in the present case, as I have shown in my Opinion in Joined Cases 181 to 184/86, the appointing authority could legitimately instruct the ad hoc Committee to draw up a list of suitable candidates and is therefore no longer competent in the matter .

II - The substance

The submission alleging a breach of the rules set out in paragraph III ( 2 ) of the Procedural Arrangements

5 . In this submission, set out in more detail in the Report for the Hearing, the applicants argue in substance that, once the ad hoc Committee had verified that the candidates held a university degree and after holding an interview to assess their level and field of competence, it should in any case have entered the applicants on the list of suitable candidates because they held a university degree or a diploma .

6 . In that respect it must be stated first of all that paragraph III 2 ( d ) of the Procedural Arrangements of 1978, which the Court examined in the Adam case ( judgment of 9 October 1984 in Joined Cases 80 to 83/81 and 182 to 185/82 (( 1984 )) ECR 3411 ), was worded as follows :

"Candidates holding a university degree ... are to be recognized (( sont reconnus )) as eligible for transfer following verification of their diplomas and an interview with the Committee to assess their area of competence ."

7 . The corresponding passage from the 1983 Procedural Arrangements, which is at issue here, provides as follows :

"Candidates holding a degree ... may be (( the French text reads 'pourront être' , which is translated in the English version of the notice as 'will be' )) recognized as eligible for transfer following verification of their diplomas and an interview with the committee to assess their (( level and )) areas (( the French text reads 'le niveau et le secteur' )) of competence ."

8 . I think that the English version of that passage may be ignored since all the other language versions use the expression "may be ." However, it remains to be seen whether, despite that amendment, the new version of the text means that the Committee was obliged to enter all the candidates holding a university degree on the list of suitable candidates merely by virtue of their possession of a degree .

9 . The following arguments may be adduced in favour of such an obligation :

( a ) the expression "interview" does not in itself connote an examination or a competition;

( b ) the text states : "after an interview to assess their level and area of competence," and not "on condition that" or "provided that" ( for example, "provided that following an interview their level of competence is judged to be satisfactory by the Committee ").

( c ) According to paragraph III 2 ( e ), the list contains the candidates "considered capable" and not candidates considered "the most capable ".

It is also apparent from the provision at the end of paragraph II ( 1 ) of the Procedural Arrangements that unsuccessful candidates must be considered to be unsuitable (" subject to the proviso that they have not been considered unsuitable in three consecutive procedures ");

( d ) the ad hoc Committee itself acknowledges having had some hesitation on the point whether all graduates should automatically be put on the list .

On page 9 of the Committee' s report it is stated :

"The Selection Board encountered a difficulty inasmuch as half the candidates held a university degree or equivalent diploma ."

( The German language version is even more categorical since it states that : "Das Hauptproblem des Proefungsausschusses bestand darin, dass ..." ( the main problem of the Selection Board was that ...).)

The ad hoc Committee goes on to state that :

"After an interview with those candidates, the Committee might have confined itself to indicating their level and area of competence but, had it done that, it would have effectively excluded all the candidates who were not graduates or would have been obliged to put forward a number of suitable candidates incompatible with the wording of the Procedural Arrangements . The majority of the Committee considered that, despite the risk of actions analogous to those which have been previously brought, it was better to decide which of the candidates were suitable for performing Category A duties, irrespective of whether or not they were graduates ."

10 . The following arguments may be adduced in support of the opposite viewpoint, which is adopted by the Commission :

( a ) there is a general practice in the Community according to which no distinction is made, when officials are recruited or promoted, between holders of a degree or diploma and candidates with equivalent professional experience . Holders of a degree or diploma do not enjoy any priority;

( b ) when candidates are recuited directly into Category A, there is a rigorous selection between candidates who hold a degree or diploma . If such candidates could be recruited first into Category B and then have the right automatically to be entered on a list of suitable candidates for transfer to Category A, the abovementioned selection procedure would be circumvented;

( c ) as the Commission correctly points out, "assessing the level of competence" necessarily implies a comparison between the graduate candidates' respective levels of competence . Secondly, the words "may be recognized as eligible" imply that the Committee was entitled to select the candidates whose level of competence was not lower than a particular threshold which the Committee was entitled to fix by virtue of its power of discretion;

( d ) according to paragraph III 2 ( e ) of the Procedural Arrangements, the list of suitable candidates must indicate the area of competence of each candidate . It is not specified that the list must indicate the level of competence .

Certainly, it would probably have been compatible with that text for the Committee to draw up a list showing, in descending order of level of competence, all the candidates holding a degree or diploma . Had this been done, it would have been necessary, in order to respect the principle of equal treatment, to enter in that list, at appropriate places, the names of candidates not holding a degree or diploma who had a comparable level of competence . In the end, that list would have included all or almost all of the candidates in the two groups since we know that some of the candidates holding a degree or diploma were very near the bottom . Bearing in mind that the available posts were limited in number, only the best-placed candidates would have had a chance of being appointed during the period of validity of the list of suitable candidates .

The task of the ad hoc Committee was to facilitate the Commission' s task of making appointments by submitting a list which did not greatly exceed the number of available posts;

( e ) as regards the applicants' argument to the effect that the Committee was not entitled to turn the interview provided for by the Procedural Arrangements into a real examination by asking the candidates to give a talk and to reply to questions, one may observe as follows .

11 . Traditionally, the Court has acknowledged that selection boards in competitions, and promotion committees, have a wide discretion in choosing the means by which they intend to assess the abilities or the merits of candidates .

12 . The ad hoc Committee was therefore entitled to organize or to structure the interview by asking candidates to give a brief talk and by asking them questions chosen from a list drawn up in advance . A simple conversation with the candidates would probably not have enabled the Committee to form a sufficiently precise idea of the candidates' level of competence . A candidate' s ability to present a problem in the form of a talk is a good criterion for this .

13 . In those circumstances, the interpretation given by the Committee to the word "interview" was not manifestly wrong .

14 . All in all, I consider the second set of arguments more convincing than the first and that the first submission must therefore be dismissed .

The submission alleging a breach of Article 98

15 . In their second submission the applicants maintain that the Committee used a procedure equivalent to a competition by choosing between the candidates holding a university degree or diploma from a comparable establishment . They maintain that it is apparent from the provisions of the second paragraph of Article 98 of the Staff Regulations that the appointing authority is not only entitled but also obliged not to organize a competition for the purposes of transferring scientific and technical staff to a higher category .

16 . We must therefore try to clarify the exact scope of the second paragraph of Article 98, which provides that the provisions of Article 45 ( 2 ) "shall not apply" to officials paid from appropriations in the research and investment budgets . According to Article 45 ( 2 ), "an official may be ... promoted from one category to another only on the basis of a competition ". Since this requirement is removed by Article 98, such promotions may therefore take place without a competition .

17 . To my mind, however, it would be contrary to the rules of logic to draw the conclusion from those two texts that in the case of Euratom officials promotion from Category B to Category A must take place without a competition .

18 . If the Commission is entitled to organize a competition, it is equally entitled to apply a procedure which borrows certain distinctive features from a competition even though it is different from a competition .

19 . The Court has had occasion to state that,

"in principle nothing prohibits the appointing authority from laying down in a general internal decision rules governing the exercise of the discretion which it has under the Staff Regulations" ( judgment of 6 June 1985 in Case 146/84 De Santis v Court of Auditors (( 1985 )) ECR 1731, at p . 1734, paragraph 11 of the decision ).

20 . The Court has also held that, even when the Commission could have filled a vacant post by means of promotion because there was a candidate with sufficient seniority, it could none the less in its discretion decide to organize a competition ( judgment of 25 November 1976 in Case 123/75 Kuster v European Parliament (( 1975 )) ECR 1701, at p . 1709 .

The submission concerning the taking into account of the budgetary situation

21 . The applicants maintain that the ad hoc Committee should not have taken account of likely budgetary constraints as it did .

22 . In that respect I would like to point out the following . The appointing authority alone has the power of appointment and it has not delegated that power to the ad hoc Committee . It exercises that power in the light of "the budgetary situation" ( paragraph III 2 ( e ) ). The task of the ad hoc Committee is to take into account the likely budgetary resources when drawing up the transfer list ( paragraph I(d ) ). Contrary to the arguments of the applicants, there is no contradiction between those two provisions since one concerns transfers and the other recognition of suitability . The former are made year by year in the light of the budgetary resources available for each financial year; the latter is decided once and for all taking into account the budgetary resources which are likely to be available during the years for which the list of suitable candidates is to remain valid . The two things are different .

23 . Furthermore, it is certain that the ad hoc Committee did not take into account the posts likely to become vacant in a single year; had it done so, it would have drawn up a much shorter transfer list .

The submissions concerning the principle of equal treatment

24 . The applicants point out first of all that the principle of equal treatment cannot be applicable in the present case since the candidates with degrees or diplomas are not in the same situation as candidates without degrees or diplomas . Furthermore, they acknowledge that the Procedural Arrangements take account of that difference by not requiring the presentation of a dissertation by candidates with degrees or diplomas .

25 . However, the applicants consider that they should not have been put into a situation where they had to compete with candidates without degrees or diplomas .

26 . It is apparent from the observations which have already been made at the beginning that in general the Community accepts the principle that professional experience of a particular length of time and at a particular level may be considered equivalent to a degree or diploma and that it is therefore legitimate to make those two categories of candidates compete with one another . I consider that this consistent practice of the Community does not breach any fundamental legal principle .

27 . Secondly, the applicants consider that, even if the principle of equal treatment were to be applicable, it must be accepted that it was contravened since the candidates without degree or diplomas enjoyed an advantage in being able to present a dissertation and be questioned on that dissertation .

28 . In my view, the Commission did not commit a manifest error of assessment in assuming that the applicants' suitability was at least partially borne out by the possession of a degree and that it was therefore not necessary for them to present a dissertation .

29 . Of course, it cannot be excluded that in a particular case a candidate might display his suitability better by presenting a dissertation and answering questions on that dissertation than by being obliged to give an improvised talk on a subject chosen by him from three subjects selected by the ad hoc Committee .

30 . However, the applicants, who consider that the possession of a degree should ipso facto entitle them to be entered on the transfer list, cannot deny that they are assumed to have wider and more thorough basic knowledge than candidates who have acquired their competence "on the job" and that that knowledge should enable them without too much difficulty to give a talk on a subject which is at least related to their area of special knowledge . If we look at the list of subjects from which the applicants had to choose, we can see that this was in fact the case with the subjects offered .

31 . The questions asked by the Committee on certain aspects of the chosen subject could not therefore catch the candidates entirely off their guard .

32 . I therefore consider that this submission must also be dismissed .

Conclusions

33 . For all the reasons indicated above, I can only suggest to the Court that it should dismiss the application and settle the question of costs in accordance with Article 70 of the Rules of Procedure .

(*) Translated from the French .