Opinion of Mr Advocate General Tesauro delivered on 28 June 1989. - Juan Jaenicke Cendoya v Commission of the European Communities. - Application for annulment - Refusal to admit a candidate to a competition. - Case 108/88.



European Court reports 1989 Page 02711



Opinion of the Advocate-General

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Mr President,

Members of the Court,

1 . By the present action Mr Jaenicke Cendoya challenges the decision not to admit him to the open competition on the basis of qualifications ( COM/A/584 ) organized by the Commission in order to draw up a reserve list for the recruitment of principal administrators of Spanish nationality .

As laid down in Section III.B.2 of the Notice of Competition, by the closing date for the submission of applications ( 21 August 1987 ) candidates must :

"( a ) furnish proof that they have completed postgraduate university studies evidenced by the award of a degree ( título ). The Selection Board will take into account the particular features of the structures of the studies pursued by the candidates;

( b ) have at least 12 years' experience since leaving university, six of which must be relevant to the post in question, the duties of which are set out in the annex ".

Within the time allowed, Mr Jaenicke Cendoya submitted his application form and enclosed an academic certificate from the Instituto católico de administracion y dirección de empresas (" the Icade "), stating that between 1968 and 1973 the applicant passed the examinations which were listed on the certificate and which formed part of the course entitled "Practical Business Management ". He also enclosed a certificate in European Community studies awarded by the Escuela diplomática de Madrid and a certificate in higher European studies awarded by the College of Europe, Bruges .

Subsequently, the Selection Board informed Mr Jaenicke Cendoya, first of all, that the Icade diploma which he had submitted could be accepted for the purposes of admission to the competition, pursuant to the provisions of Section III.B.2 of the Notice of Competition, only if the diploma were officially recognized by the competent Spanish authorities by means of a validation procedure . The applicant was then requested to produce, by the date set for the oral test at the latest ( 12 January 1988 ), documentary evidence that the degree had been validated .

On the day of the oral test Mr Jaenicke Cendoya merely submitted to the Selection Board a document from the Spanish Ministry of Education and Sciences which showed only that an opinion had been requested regarding the possibility of having the diploma in question validated . In fact, as the rather brief contents of the document show, the diploma was obtained at a time when Spanish law did not yet recognize the validity of studies pursued at Catholic religious institutes, such as the Icade . However, it was evident from the document that others, as well as Mr Jaenicke Cendoya, had requested a declaration that similar private degrees or diplomas were equivalent to recognized university degrees .

In those circumstances, the Selection Board decided not to proceed with the oral test . The decision not to admit the applicant to the test was subsequently confirmed by a letter of 25 January 1988 from the Head of the Commission' s Recruitment Division .

2 . Before considering the substance of the application, it must be pointed out that the documents before the Court show that between 1983 and 1985 Mr Jaenicke Cendoya took and passed, again at the University Pontificia de Comillas ICAI-Icade, nine examinations in subjects different from those which formed part of the course of studies he pursued between 1968 and 1973 . On the basis of the results in those nine examinations and of the recognition given to the examinations he had previously sat between 1968 and 1973, Mr Jaenicke Cendoya obtained another private degree . Whatever the status, content or validity of the second degree - which, however, the applicant claims is wholly unconnected with the diploma relating to the studies he pursued between 1968 and 1973 - it is irrelevant for the purpose of settling the present dispute, first because it was submitted after the time-limit prescribed in the Notice of Competition and secondly because it was obtained at a time - 1985 - which could not enable the applicant to prove that he met the second requirement for admission laid down in the Notice of Competition, namely possession of at least 12 years' experience since leaving university .

Therefore, the only document which constitutes a reference point for these proceedings is the one relating to the course of studies completed in 1973 . It is that document alone which the applicant submitted with his application form and that document alone which the Selection Board considered when it was deciding whether he was eligible to take part in the competition .

In order to dispel any possible confusion regarding the facts of the case, it should also be pointed out that, as a result of the arguments put forward during the written and oral procedures, there no longer appears to be any dispute that the document in question is recognized as a certificate of completion of studies which, although private, is none the less a full one . What is at issue, therefore, is a certificate which shows that the applicant passed all the examinations which relate to the course and which at the same time recognizes the applicant' s status as a graduate in the course of studies itself, even though the corresponding degree ( the "título privado de licenciado en ciencias empresariales ") could only be actually awarded subsequently on payment of the relevant fees .

However, it must be pointed out that in deciding whether he was eligible to take part in the competition, the Selection Board at no time disputed that the document in question constituted a bona fide certificate, that is to say a diploma relating to a full course of studies; it merely imposed one further condition, namely that it should be validated and, therefore, that the degree itself should be recognized .

Nor, in the final analysis, is it disputed that the condition that the degree should be validated has not been met . It was explained at the hearing that the procedure for obtaining validation, and thus recognition of the private degree of licenciado en ciencias empresariales of the Icade, was not set up until 1979 . It was only from that date that it became possible, by obtaining a pass in the relevant theoretical and practical test, to obtain recognition of the degree . However, it is common ground that the applicant has not sat the test in question and, in any event, the parties are agreed that it was not possible to institute such a procedure with respect to Icade degrees in business management sciences - which are at issue in the present case - before the 1979 reform .

3 . Those facts having been established, the question of law becomes simply whether the Selection Board acted lawfully in requiring as a condition for admission to the competition not only possession of the "título" but also that it should be validated .

The applicant claims first of all that the imposition of such a condition constitutes an infringement of the Notice of Competition . He puts forward essentially three arguments in support of that claim :

( a ) validation is a new condition since it was not laid down in the first sentence of Section III.B.2(a ) of the Notice of Competition, which requires only the production of a degree ( título ) - which is not otherwise specified - evidencing completion of full postgraduate university studies;

( b ) the request for validation, which implied that only candidates holding recognized degrees would be admitted to the competition, conflicts with the second sentence of Section III.B.2(a ) of the Notice of Competition, which requires the Selection Board to take account of the "particular features of the structure of the studies pursued by the candidates";

( c ) the request for validation is unjustified in view of the interpretation which must be given to Section III.B.2(a ) of the Notice of Competition in the light of the provisions of the second subparagraph of Article 5(1 ) of the Staff Regulations; that provision of the Staff Regulations requires, in effect, that irrespective of the formal validity of the qualifications which are submitted, the Selection Board still assesses whether the candidate actually possesses "a university education ".

Finally, in the applicant' s view, the Selection Board ought to have accepted for the purposes of admission to the competition not only degrees which are de jure equivalent to degrees awarded by State universities but also those which are de facto equivalent .

I do not accept that argument . It is true that the selection board in a competition is bound by the contents of the Notice of Competition . ( 1 ) It is also true that Section III.B.2(a ) of the Notice of Competition in question does not specify what is meant by degree ( título ).

Nevertheless, in the absence of a Community definition of university degrees and unless the Notice of Competition specifically provides otherwise, the only way in which a selection board can legitimately identify those documents which are acceptable as qualifications for admission to a competition is to look at what is laid down in the national laws of the individual Member States .

That method - which is, moreover, the usual practice of the institutions of the European Communities - leads in the present case to consideration only of degrees which are obtained at State universities or those obtained at private universities and subsequently "validated" in order to have them recognized .

That is the only method which can guarantee equal treatment in competitions in which there may be candidates who have pursued university - in the broad sense of the term - studies in different countries and at institutes which use systems of instruction which are very different from the point of view of organization, structure, method and content . It allows, in fact, equal treatment to be accorded to those who, having obtained degrees whose validity is evidenced by the State' s seal of official approval, are in a substantially similar position both factually and, above all, legally .

That method is also the one which is able to give the greatest degree of certitude to candidates, allowing them to know in advance and with sufficient certainty whether or not their own university qualifications will be considered valid for the purposes of admission to the European civil service .

Finally, that method is consistent with the nature of the check as to whether candidates are eligible to take part which takes place in the first stage of the competition process . At that stage, as the Court stated in its judgment in Authié, ( 2 ) it is sufficient for the selection board to consider whether the candidates fulfil prima facie and as a whole the conditions laid down in the Notice of Competition ( see paragraph 16 ). The check is thus intended simply to verify that certain conditions have been met and is unconnected with the detailed assessment of the contents and level of each of the qualifications admitted . An assessment of that kind can only be carried out in subsequent stages of the competition, that is to say during a comparison of the candidates who have been admitted to the competition .

4 . Of course, since the requirement in question is a formal one, it can, in some cases, give rise to results which are not entirely satisfactory . That is the case when candidates holding qualifications which are not officially recognized but which relate to courses which are of an essentially university level are not allowed to take part in a competition . As has emerged during these proceedings, that appears to be the case with degrees awarded by the Icade before 1979 . The Commission itself has recognized that the teaching at the institute in question is serious and of a high quality .

In general, however, there are probably few such cases as there are usually appropriate procedures for obtaining, at the national level, recognition of the validity of private degrees which really are of a level comparable to those obtained at State universities . In any event, where there is no national system of recognition, the only way for private degrees to be taken into consideration for the purposes of admission to a Community competition is to include a specific provision in the Notice of Competition .

On the other hand, a ruling that selection boards must from time to time verify that a particular private degree is de facto equivalent to an official degree might give rise to much more serious consequences . As has been pointed out, candidates would be uncertain about which degrees qualified for admission . Moreover, it is clear that a selection board, regardless of its composition, is not able to verify that degrees awarded in various countries and evidencing situations which are in fact extremely different are substantially equivalent to official degrees . An exercise of that kind would lead to results which were unreliable and would be likely to contain unacceptable inequalities of treatment both within one competition and between competitions . Finally, as has already been stated, an exercise of that kind would alter the nature of the stage of the competition at which a check is made that the candidates are eligible to take part and would in a way anticipate the subsequent stage when the candidates are compared .

Moreover, irrespective of the level of the studies pursued, those who have pursued a private course of studies must be aware that the degree obtained, if it is not recognized, will not allow them to enter the majority of professions and careers, in the present case those in the civil service, which involve the exercise of public powers or which are at least in part regulated by the State . Those who hold such degrees cannot therefore have any legitimate expectation that their degrees will be considered suitable for admission to a Community competition .

In my opinion, therefore, unless otherwise specified in the Notice of Competition, the selection board is required to apply the formal criterion described above, confining itself to considering as a university degree only those degrees which the laws of the Member States officially recognize . That means that, in the present case, by taking into consideration only those degrees which were obtained at a State university or those obtained at a private university but subsequently "validated", the Selection Board correctly applied the provisions of the Notice of Competition .

5 . The second sentence of Section III.B.2(a ) of the Notice of Competition (" the Selection Board will take into account the particular features of the structure of the studies pursued by the candidates "), does not have the scope ascribed to it by the applicant . That provision, which occurs repeatedly in Community competitions, imposes an obligation to take into account the fact that the candidates may have pursued studies in various States and therefore in universities where the courses are structured and organized differently . That is the meaning of the provisions both in competitions in which citizens of all the Member States are taking part and in competitions - such as the one in question - which are open only to citizens of one Member State . The second sentence of Section III.B.2(a ) cannot, on the other hand, be interpreted as intending to impose on a selection board in a competition for candidates of a single nationality the requirement to verify whether or not any private studies which those candidates may have pursued are of an equivalent level to those pursued in universities which are empowered by the State to award fully recognized degrees .

6 . As regards the reference to Article 5 of the Staff Regulations, in my opinion that provision has no bearing on the interpretation of the word "título" in the Notice of Competition in question .

The Court has already ruled that : ( 3 )

"The provisions of Article 5 of the Staff Regulations seek to provide a general definition of the minimum level required for an official of the grade in question according to the nature of the duties attaching to the posts and do not concern the conditions of recruitment" ( judgment in Lipman, paragraph 7 ).

Therefore, it is not possible to rely on Article 5 of the Staff Regulations in order to interpret the conditions for admission in such a way as to oblige the selection board to adopt a criterion for verifying qualifications other than that which appears most appropriate, for reasons of both legality and convenience .

7 . The applicant also points out that before entering the competition in question he held the post of local agent at the Commission' s Information Office in Madrid, a post which requires a university education . Furthermore, he emphasizes that the students taking the course in "Ciencias empresariales" at the Icade are eligible, like any other university students, for assistance under the Erasmus programme .

He concludes that the refusal to accept his degree as a qualification conflicts with those examples of previous Community practice .

That argument must also be rejected, regardless of whether the alleged contradiction is relevant to the question of the legality of the decision at issue .

It is, in fact, not true that the post of local agent which the applicant held in Madrid required a university education . Moreover, although the applicant was upgraded when he was in the post, that was on the basis not of his educational qualifications but of his experience .

As for the Erasmus programme, its purpose is to promote student mobility; it is therefore obviously different in scope and has no bearing whatsoever on the application of the conditions for admission of a particular competition .

8 . Finally, the applicant maintains that the decision rejecting his application did not contain an adequate statement of reasons .

The Court pointed out in the judgment in Sergio that : ( 4 )

"... the Court has consistently held that the obligation to state the reasons for an adverse decision is meant to enable the Court to review the legality of the decision and, secondly, to provide the person concerned with the information needed to determine whether or not the decision is well founded . The decision of a selection board not to admit a candidate to the next stage of a competition may therefore be said to give adequate reasons only if it explains to the person concerned the reasons why he did not satisfy the selection criteria" ( paragraph 48 ).

It is evident from the express wording of the abovementioned letter of 25 January 1988 from the Commission to the applicant and from the previous correspondence that the applicant was not admitted to the competition because there was no proof that the degree he submitted was recognized . It was precisely on that point that the debate between the parties connected with the judicial review of legality hinged .

The applicant cannot therefore claim that he is unaware of the reasons why the selection board considered that his application did not satisfy the conditions for admission laid down in the Notice of Competition .

The submission that inadequate reasons were given is therefore unfounded .

9 . For the above reasons, I suggest that the Court should :

( 1 ) Reject the application;

( 2 ) Order the parties to bear their own costs .

(*) Original language : Italian .

( 1)1 See the judgment in Case 67/81 Ruske v Commission (( 1982 )) ECR 661, paragraph 9 .

( 2)2 Case 34/80 Authié v Commission (( 1981 )) ECR 665 .

( 3)3 See the judgments in Case 143/82 Lipman v Commission (( 1983 )) ECR 1301 and Case 117/78 Orlandi v Commission (( 1979 )) ECR 1613 .

( 4)4 Judgment in Joined Cases 64, 71 to 73 and 78/86 Sergio and Others v Commission (( 1988 )) ECR 1399 .