OPINION OF ADVOCATE GENERAL

SIR GORDON SLYNN

delivered on 12 December 1985

My Lords,

In this case 11 applicants seek an order annulling the rejection of their candidatures in internal competition COM/B/2/82.

The details of that competition and the course it took are set out in my Opinion in Case 294/84, which was heard first and fully argued, the applicants in the present case adopting, mutatis mutandis, the arguments, and accepting the oral evidence given, in that case. I refer to that Opinion for those details and do not set them out again here.

In this case as in Case 294/84 the applicants, on receipt of a letter from the Commission in June 1984, telling them that they had not been put on the list of those to be admitted to the tests, asked for their cases to be reexamined. They also complained that the letter dated 15 June 1984 did not give any explanation of the reasons why they had been rejected. They then received the letter of 7 September 1984 the terms of which are set out in my Opinion in the other case.

The Commission objects that these claims too are inadmissible as being out of time. For the reasons given in my other Opinion I would reject that submission in so far as the applicants challenge the decision of 7 September 1984.

In the present case, the applicants, though querying the validity of certain aspects of the notice of competition, do not seek to challenge it directly. They accept that they were out of time to do so.

Their primary complaint is that no adequate reasons were given for their rejection. They accept that more details were given in the September letter than in the June letter but they say that these were still insufficient. They also attack the concept of ‘potentiality’ adopted by the selection board as being imprecise and not indicating the criteria which the candidates had to satisfy.

I would not accept this latter argument. It seems to me that to look for ‘potential’ on the basis of all the factors involved is an acceptable approach.

As to the lack of reasons, it is to be borne in mind that in a competition of this kind, with so many candidates, general reasons may be sufficient in the first instance. Yet when individuals ask for individual reasons and their cases are reexamined, it is, in my view, incumbent on the board to identify the factors applicable to the individual candidate. This is particularly the case when the board's decision is based on the fact that each of the candidates in the third group was rejected because he did not satisfy some of the potential qualities needed, even if he did satisfy others. He was entitled to know which he did not satisfy in order that he could consider whether the board had erred in law in coming to such a conclusion, by e.g. taking into account wholly irrelevent considerations. In this case he did not know because he was not told sufficiently clearly.

Then the applicants say that it was illegal to interview their hierarchical superiors; such an interview was only justified if necessary and not automatically in all cases; the Staff Regulations permit assessors but these cannot be the candidates' superior officials.

I do not accept that it was unlawful to hear evidence from the superiors though it is arguable that it would have been better to do so after the tests. In any event the assistants were not sitting as assessors; they were giving further information and opinions for the board to consider as part of the evidence in the case.

On the other hand, for the reasons given in my Opinion in Case 294/84, fairness required that the candidates had the chance to deal with what was said by the assistants; they were not given that opportunity.

Then the applicants contend that there were manifest errors in the decision of the board to admit some, as being qualified for the test, but to reject others including the present applicants. This must be largely a matter for the board to decide and on the material available it is not possible to say that it erred in law in the actual decisions taken. The Court simply does not have the necessary material.

An allegation of discrimination between candidates, initially made, was withdrawn in the Reply — rightly since there is on the evidence so far nothing to justify it. It is also said that the legitimate expectations of the candidates were not respected. This is dealt with in such general terms that I do not accept it.

I would, however, accept the applicants' criticism of the fact that some members of the board acted as assistants giving information about certain candidates even if they did not then participate in the decision as to that candidate's eligibility for the tests.

In all the circumstances, on the basis that sufficiently clear reasons were not given for individual rejection when they were asked for, and that the applicants were denied the chance of knowing of and dealing with the information and views given by the assistants, I consider that:

(a) The decision not to admit the applicants to the tests in internal competition COM/B/2/82 should be annulled;