(b)

This now necessarily leads us to the examination of the further question whether the competition was conducted sufficiently correctly for the list of suitable candidates which resulted therefrom — and upon which the appointing authority based itself in filling the posts — not to be open to criticism. In view of the plethora of criticisms which the applicant raised on this point, it seems to me right to preface this examination with some general remarks. In my view it is clear that the work of a Selection Board having the purpose of evaluating candidates cannot be re-examined by the Court in all its details. This is out of the question for — as can be seen already from Article 5 of Annex III of the Staff Regulations — the Selection Board has in its selection a margin of discretion and since in particular it has to provide a series of assessments which cannot be replaced by the evaluations of the Court. In cases such as the present the Court must therefore in principle limit itself to examining whether the competition was conducted in a proper manner and in particular whether the principle of equality of opportunity was observed. One might also look at whether the Selection Board had had regard to aspects which seem irrelevant for the purposes of the competition or whether it paid no regard to aspects of obvious importance. Beyond this one might perhaps go into the question of whether one can see assessments that are clearly erroneous and which would allow one to think in terms of arbitrary exercise of discretion. In examining the applicant's criticisms there arises in the first place the question whether the competition was conducted by a properly constituted Selection Board. Under this heading the applicant at first criticized the fact that the members of the Selection Board were appointed by the Secretary-General of Parliament and not, as was provided in the decision of Parliament of 12 December 1962, by the President of Parliament, he being the competent appointing authority under Article 2 of the Staff Regulations. After Parliament had proved that on the basis of a later decision of Parliament of 7 and 8 October 1971 in relation to Article 2 of the Staff Regulations the Secretary-General has indeed such powers, the applicant criticized the fact that the last-mentioned decision had not been published; that accordingly it had not acquired legal force and that the acts based thereon lacked legality. It already seems questionable to me — but I will leave this open for the moment — whether acts which empower administrative bodies to do certain acts, even if it is not a case of authority to promulgate law, require to be published. As for designating the appointing authority under the Staff Regulations, one may well be entitled to take the view that such measures of ‘division of functions within the service’ (as they were once called in the judgment in Cases 46/72 and 49/72 — Judgments of 30 May 1973 in Cases Robert De Greef and Giuseppe Drescig v Commission, [1973] ECR 543 and 565) require for their effectiveness no more than notification to the most important departments, as well as to the Staff Committee, a notification which one can assume took place at the Parliament. If publication is considered a requirement, then it is further doubtful whether one is here dealing with a crucial requirement of form of a kind which, if disregarded, would deprive of legality acts resulting from such an authorization. This too however might be left open, since for the present case another argument may in the final result suffice: if one were to go so far as to declare null and void the delegation of authority to the Secretary-General and thus deny him competence, there would still have to apply what the Court has already stated in the case-law already referred to on the question of nullity of acts done in disregard of the rules of competence under Article 2 of the Staff Regulations. For nullity is there assumed to exist only if there is a danger that, by reason of a departure from the rules of competence, one of the guarantees given to officials in the Staff Regulations, or one of the norms on the appropriate manner of conducting personnel administration, would be infringed. This can hardly apply where one is concerned with the constitution of a Selection Board by the Secretary-General, above all because one can assume that if in such cases the President of Parliament is competent, it is generally the Secretary-General's proposals which are followed. As regards the choice of factors to which the Selection Board had regard, the applicant criticizes the fact that apart from the normal considerations under Article 43 of the Staff Regulations, it took into account factors from outside the Communities, e.g. testimonials of industrial undertakings. The applicant, who evidently takes his cue from Article 45, i.e. the provision on promotions, overlooks the fact that one is here dealing with a competition based on qualifications. For such purposes, however, obviously all kinds of documents which provide information as to the candidates' ability are relevant, and not only factors derived from Community activities. One also felt entitled to feel a little unhappy at hearing the statement of the chairman of the Selection Board in the course of his evidence to the effect that to a large extent the scheme applied in other competitions had been followed. These qualms were however dispelled by the supplementary statement that specific criteria tailored to the task of filling the posts in question, were applied, such as criteria No 6, 7, 8, 9 and 10, referred to in the Selection Board's report. All this, taken together, gave the impression that the Selection Board had remained within its margin of discretion and that at any rate it does not seem possible to think in terms of an obviously arbitrary shaping of examination conditions, which alone could affect the issue here. Also criticized by the applicant was the manner in which the Selection Board had formed an opinion on criterion 11 (knowledge of languages) and on criterion 12 which called for ‘une connaissance très approfondie de la structure et du fonctionnement des Communautés européennes et de leurs institutions, notamment du Parlement, ainsi que des traités et de la legislation communautaire’. He claims that this was done on the basis of oral examinations whilst the Notice of Competition had only allowed for a consideration of qualifications and an interview. On this point we heard in the course of the evidence by the chairman of the Selection Board that the character of an interview had throughout been adhered to. All that had happened was that the Selection Board had briefly checked the data appearing in the reports under Article 43 of the Staff Regulations and the candidates' own statements as to their knowledge of languages and had, using essentially similar questions, dealt with aspects of Community law in order to ascertain the manner in which the candidates could cope with such problems. This cannot really be criticized either. After all, the Notice of Competition mentioned both the aforementioned points as conditions to be fulfilled by the candidate. Since, factually speaking, there were however no documents on this point in the personal file, there did indeed only remain the possibility of verifying these factors by means of the interview, which had likewise been laid down. The fact that as far as the second point is concerned the demanding terms of the Notice of Vacancy were not thereby satisfied might up to a point be regarded as a defect; for the purpose of judging the candidates, however, it probably has no real significance for the simple reason that, applying as it did to all candidates, the principle of equality of opportunity was preserved. If thereupon one considers in greater detail the individual criteria, so as to analyse the applicant's criticisms on these points also, then — always within the limits of the possibilities of examination open to the Court — one arrives at the following conclusions: The fact that of seniority in category A or LA, or of seniority in category A 4/5, or LA 4/5, ten years at the most were taken into account, and the fact that the Selection Board likewise took into account the candidates' ages when evaluating them, cannot in my opinion be regarded as obviously wrong. As regards the first point, the explanation seems to make sense to me that for posts of the kind advertised it is by and large only experience of the limited duration laid down which counts. There is on the other hand the understandable attempt to limit the weight carried by criteria having such automatic operation, so as to do justice to the interests of younger candidates. As regards the second point one will further have to bear in mind that in this way the element of ‘general maturity’ will also be able to carry its due weight. Also satisfactory in my view was the evidence given by witnesses in relation to the value placed on university diplomas. This evidence leaves no real doubt that, at any rate in so far as the applicant's qualifications are concerned, there were no errors. I also see no reasons for criticism as to the value put on reports under Article 43 of the Staff Regulations. This applies even as regards the procedure in those cases in which such reports were lacking. The factors which were used instead (long experience in the Group Secretariats) and the taking into account of an average marking really seem quite appropriate quite apart from the fact that those cases are of no importance since the relevant candidates were not included in the list of suitable candidates. Equally satisfactory in my view is what has been stated by the witness in relation to criterion No 8, according to which due account was taken of ‘expérience ou activités antérieures présentant une analogie ou constituant une préparation aux fonctions correspondant aux emplois à pourvoir’. It is above all important that experience acquired within the Parliamentary service itself was not disregarded, for if the witness's evidence is correct — and there is no reason to doubt it — it was taken into account in a different context, viz. in connexion with criteria 7, 9 and 10. Finally, generally convincing statements were also made in relation to the two criteria No 9 and 10 to which I have just referred, to the effect that what was important was a ‘capacité de diriger une équipe de personnel de haut niveau’ and a ‘qualité d'organisation et de méthodes’. Thus the Selection Board has clearly based its judgment on data contained in reports under Article 43 of the Staff Regulations, on information in other documents in the personal file relating to employment within the Community — in particular in Committee Secretariats — as well as information contained in documents relating to previous employment outside the Community which allowed such an opinion to be formed. Having undertaken all these investigations I have come to the conclusion that there is really no case to support any serious criticism of the Selection Board's proceedings. There are just two points which I came across that might give rise to a certain feeling of unease and I feel that they ought not to be left unmentioned. I am not in this connexion thinking of the argument that in taking into account the period of service, it might have been made appropriate to apply markings proportional to the total period of service, rather than to limit the relevant period to ten years. No, what I have in mind is the fact that the applicant's specialized experience in Committee work, more precisely his de facto interim occupancy, did not sufficiently enter into the scales; from the witness's evidence he would otherwise have received a marking higher by two points under this heading. And I also feel that doubts are justified as to whether the weighting of the different criteria of assessment was appropriate; in this connexion one thinks in particular of the effect of marks based on a short interview. Nevertheless, one may well wonder whether these are really erroneous assessments of an obvious and serious nature, of a kind which the Court can take into account in such cases. Moreover, one has the impression that to correct them would hardly result in an important alteration of the list of suitable candidates, pursuant to which the candidates who were appointed received between 66 1/2 and 75 1/2 points, whereas the applicant received only 60 points. If one bears this in mind, and furthermore considers the fact that in its selections from the list of suitable candidates the appointing authority in any event has a certain discretionary margin (cf. Judgment 62/65 — Judgment of 15 December 1966, Manlio Serio v Commission ([1966] ECR 561) in the exercise of which questions of a national quota may also play a part, then in the final resort one has no real hesitation in disregarding the awkward points cited in the present proceedings. Thus, taking everything together, one can take the view that, in relation to the conduct of the competition also, no errors have become apparent of a kind that might necessitate its annulment and thus the annulment of the appointments based thereon.