4.

The applicants, in their complaints concerning the assistance given to the selection board by examiners, are concerned to call in question first the service of such persons at the stage of the examination of applications for the purposes of admitting applicants to the tests, and secondly the powers delegated to such examiners, to whom the board in substance transferred a thorough-going power of decision. The provisions of the second paragraph of Article 3 of Annex III to the Staff Regulations should be recalled: ‘The Selection Board may, for certain tests, be assisted by one or more examiners serving in an advisory capacity’. The applicants maintain that the use of the words ‘for certain tests’(epreuves in the French version) means that recourse to examiners in assessing whether to admit candidates is improper. However, the Court of Justice has recently held, in its judgment of 26 October 1978 in Case 122/77, Claes (nee Agneessens) and Others v Commission, that the provision in question cannot be understood as enumerating exhaustively the cases in which a selection board may legitimately have recourse to the assistance of examiners in an advisory capacity and it added that it does not prevent recourse to such a procedure in cases where the large number of candidates involved in a competition would otherwise prevent the selection board from completing its work within a reasonable period. It seems to met that this view should be adopted in the present case both in view of the very large number of candidates for the competition (the Commission has stated that there were 4272) and because language requirements were the principal reason for the recourse to examiners at the stage of assessing the qualities required for admission (this has been stated by Mr Desbois, chairman of the selection board; it is significant that a French-speaking examiner was considered unnecessary since Mr Desbois' native language is French). It seems to me, then, that in this matter the procedure followed by the board was not at variance with the above-mentioned provisions. The other aspect of the problem is more complex. The Court, in its said judgment in the Claes (nee Agneessens) case emphasized with regard to relations between the selection board and the examiners that it is necessary for the board ‘to retain ultimate control over the procedures and its discretionary power’. In that case the board supervised the establishment of the criteria to be used in assessing the factors to be taken into consideration in accordance with the notice of competition and furthermore supervised all stages of the work of the examiners and itself adopted the final decisions on the basis of the examiners' suggestions. The position appears to be different in the present cases. The minutes concerning the work of the selection board dated 8 January 1978 seem to show that too much power was delegated to the examiners in that it is stated that ‘in order to draw up the list of candidates who meet the conditions for admission the selection board has appointed the examiners named in Annex II’; however, it is stated immediately afterwards that ‘pursuant to the first paragraph of Article 5 of Annex III to the Staff Regulations the selection board has drawn up the list of candidates who meet the conditions for admission to the competition and whose names appear in Annex III’. Furthermore the Commission, in its rejoinder in Case 4/78, has emphasized that Annex II to the said minutes is entitled ‘List of Examiners appointed to assist the Selection Board in connexion with the Admission of Candidates’. In this respect the testimony of Mr Desbois is of prime importance. First of all he recalled that the board at its first meeting decided on ‘the assessment, on the basis of candidates' files, of the candidates' degrees and diplomas against the required qualifications’; he further explained that the board met ‘on several successive days to compare candidates' degrees and qualifications with the required qualifications’ thus considering ‘candidates' files as a whole’; finally he added that ‘in preparation for this operation the board … requested certain officials of the Commission to examine in advance, without substituting their decisions for that of the board inter alia and in particular, the requisite conditions, qualifications and practical experience.’ Nevertheless it emerged from the latter part of the testimony, particularly from the replies to the questions put by the Judge-Rapporteur and the Advocate General that: (a) examiners made ‘suggestions’ as to the comparative value of degrees and diplomas and as to the relation between such degrees and diplomas and the fields chosen by the candidates; (b) in this connexion the board failed to establish either clear guide-lines or specific criteria; the examiners received certain ‘recommendations’ and ‘somewhat general guide-lines’; (c) where the examiners were doubtful the file was put aside for a decision by the board; ‘a few minutes per day’ were given over to this examination of files which gave rise to problems. This procedure gives rise to grave doubts. It is clear that in most cases the examiners' ‘suggestions’ — not founded on general technical criteria, which the board had not recognized as being necessary — were accepted in toto without review by the selection board. Mr Desbois raised doubts as to whether the selection board has powers under the Staff Regulations to establish specific criteria and referred to ‘common sense’. For its part the Commission, in its reply to the first of the questions put to it by the Court, noted that there is no provision in the Staff Regulations which requires the selection board to lay down general criteria for assessing the correspondence between university degrees or practical experience obtained after graduation, on the one hand, and the option chosen by the candidate, on the other. Nevertheless the Court of Justice some considerable time ago set out a very different view in its judgment of 14 December 1965 in Case 21/65 Morina v European Parliament [1965] 2 ECR 1033), stating inter alia that ‘the criteria of assessment should be fixed [in advance] in order to ensure that the qualifications are assessed objectively and without any possibility of arbitrariness’. However, the problem whether or not general criteria are necessary arises here in a situation in which it was important to guarantee the consistency and homogeneity of assessment of qualifications, which was entrusted to a certain number of examiners working in isolation. Furthermore the two requirements of a university degree or diploma and at least one year's practical experience obtained after graduation in the field chosen by the candidate gave rise to a large number of difficult general questions in the present case: for example, which degrees were undoubtedly ‘congruent’ with each aspect of Community activity; what must be understood by the words ‘practical experience’; could the minimum duration of one year be reduced to an academic year of further study; whether general practical experience which included certain aspects of the chosen field was sufficient or whether specialized experience was necessary; what practical experience was best suited to the fields indicated in the notice of competition (it would at least have been possible to draw up a list for guidance which, whilst not exhaustive, would have served as a point of reference). It is clear that the selection board failed to provide the examiners with instructions on any of these general points. Further, with regard to the subsequent check, the fact that it was restricted to disputed cases — and, it should be emphasized, specifically to cases about which each examiner had doubts — has established that the examiners in fact enjoyed independent powers of decision. In conclusion, therefore, it appears to me that the relationship between the selection board and the examiners in the present case was at variance with the principles set out in the Claes (nee Agneessens) case, observance of which is increasingly' necessary since there is a growing tendency to have extensive and frequent resort to examiners.