Order of the President of the Third Chamber of the Court of 5 May 1988. - Juan Jaenicke Cendoya v Commission of the European Communities. - Official - Interim measures. - Case 108/88 R.



European Court reports 1988 Page 02585



Parties

Grounds

Operative part



Keywords

++++

1 . Application for interim measures - Suspension of the operation of a decision - Conditions - Prima facie case

( Rules of Procedure, Art . 83 ( 2 ) )

2 . Officials - Recruitment - Competition - Competition based on qualifications - University qualifications required - Appraisal in the discretion of the Selection Board

( Staff Regulations, Annex III )

Parties

In Case 108/88 R

Juan Jaenicke Cendoya, represented by Rafael Allendesalazar Corcho, of the Madrid Bar, with an address for service in Luxembourg at the Chambers of Aloyse May, 31 Grand-Rue,

applicant,

v

Commission of the European Communities, represented by Ricardo Gonsalbo Bono and Daniel Calleja Crespo, members of its Legal Department, acting as Agents, with an address for service in Luxembourg at the office of G . Kremlis, a member of its Legal Department, Jean Monnet Building, Kirchberg,

defendant,

APPLICATION for interim measures concerning the applicant' s participation in Competition COM/A/584,

the President of the Third Chamber,

acting under Articles 9 ( 4 ) and 96 of the Rules of Procedure,

makes the following

Order

Grounds

1 By an application received at the Court Registry on 1 April 1988, Juan Jaenicke Cendoya brought an action under Article 91 of the Staff Regulations of Officials and the second paragraph of Article 173 of the EEC Treaty for annulment of the decision notified to him on 25 January 1988 by the Director of Personnel of the Commission, whereby the Selection Board in Competition COM/A/584 refused to recognize one of his qualifications as equivalent to a university degree and therefore did not allow him to take part in the competition .

2 By a separate document lodged on the same day Mr Jaenicke Cendoya asked the Court to order, pursuant to Article 83 of the Rules of Procedure, the suspension of the operation of the contested decision and to adopt certain other interim measures in order to prevent his suffering serious and irreparable damage pending delivery of a judgment on the substance of the case .

3 The Commission of the European Communities organized, pursuant to a notice published in the Official Journal of 1 July 1987 ( Official Journal 1987, C 173, p . 19 ), a general competition based on qualifications to establish a reserve list of Principal Administrators of Spanish nationality in the career bracket comprising Grades 5 and 4 of Category A .

4 The applicant submitted an application within the time-limit laid down in the competition notice . By letter of 28 October 1987 the Commission informed the applicant that his admission to the competition was conditional upon his sending, before 20 November, a certificate issued by the Universidad Pontificia de Comillas confirming the validity of his qualification of licenciate in economic sciences and business management issued by the Instituto Católico de Administración y Dirección de Empresas (" ICADE ")

5 By telegram of 19 December 1987 the Commission informed the applicant that, in response to his request, the Selection Board had re-examined his application and decided to admit him to the competition on condition that, on the day of the oral examination, he produced the document confirming the validity of his qualification requested in the abovementioned letter of 28 October 1987 .

6 On 12 January 1988, the day of the oral examination, the applicant merely produced a certificate issued by the "Letrado de Estado", the Head of the Legal Department of the Ministry of Education and Science, stating that, at the request of the Secretario de Estado de Universidades y Investigación ( Directión General de Enseñanza Superior ), his department was preparing a statement concerning the equivalence of the degrees issued by ICADE and official degrees . The Selection Board then decided not to proceed with the oral examination .

7 By letter of 25 January 1988, the Commission informed the applicant that the Selection Board had decided to exclude him from the competition on the ground that he had not produced the requested certificate of confirmation .

8 The Court has consistently held that measures suspending the operation of acts adopted by institutions will be considered only if the circumstances of fact and law relied upon establish a prima facie case for suspension . Furthermore, there must be urgency, in the sense that it is necessary for the measures to be ordered and take effect before the decision of the Court on the substance of the case in order to avoid serious and irreparable damage to the party seeking them . Finally, the measures must be provisional in the sense that they do not prejudge the decision on the substance of the case .

9 As regards the existence of a prima facie case for the measures applied for, the applicant claims in the first place that the Selection Board did not take into account the particular features of the structure of the studies pursued, as required by Point III.B.2(a ) of the competition notice .

10 In support of that assertion, the applicant states that ICADE is an approved private higher education establishment attached to the University of Madrid, that the entry conditions are the same as those for entry to public universities and that the private degree of licenciate in business management is awarded after five years' studies completed in accordance with methods and under conditions comparable to those applied to other university degrees .

11 The applicant claims, in the second place, that by requiring confirmation of the validity of the ICADE degree, the Selection Board imposed a condition which does not appear in the competition notice .

12 He claims, in the third place, that, having regard to Point III.B.2(a ) of the competition notice, interpreted in the light of the second subparagraph of Article 5 ( 1 ) of the Staff Regulations, the Selection Board should have based its decision on the candidate' s qualifications and relevant experience as a whole .

13 The fact that he holds the Bruges Certificat des Hautes Etudes Européennes and the Certificado en Comunidades Europeas issued by the Escuela Diplomática de Madrid proves, in his view, that he holds university qualifications required for entry to the Collège de Bruges and the Escuela Diplomática in Madrid . The same applies to his previous experience, namely his work between 1974 and 1978 for the Empresa Nacional de Electricidad, by which he was recruited on the basis of his management degree, and his duties as "Agent d' études" between 1981 and 1987 at the Press and Information Office of the Commission of the European Communities in Madrid, duties which, according to the conditions of employment for local staff laid down by the Commission itself, required university qualifications .

14 The Commission considers those arguments to be without foundation . It contends that the applicant did not produce within the prescribed time-limit either his private ICADE degree or a certificate confirming its validity . It adds that a Selection Board is not bound by assessments made by another Selection Board in order to fill a different post .

15 It must be pointed out that according to Point III.B.2(a ) of the competition notice, candidates were obliged to furnish proof, within the time-limit laid down for applications, that they had completed post-graduate university studies leading to the award of a degree .

16 It must be acknowledged that it is for the Member States alone to define the qualifications evidencing studies completed within their territory which are to be regarded as university degrees .

17 It is not in dispute that the qualification relied upon by the applicant is a private degree in business management studies . Accordingly, it was for the Commission to establish whether the applicant fulfilled the requirements laid down in the competition notice by asking him to produce a certificate confirming the validity of his ICADE degree .

18 It is apparent from the documents before the Court that the applicant produced neither a certificate of confirmation nor even his private degree certificate . The documents accompanying the application for interim measures merely certify that the applicant pursued five years' studies at ICADE . Finally, it appears from the letter sent to the Commission on 27 February 1987 by the Spanish Ministry of Education and Science that the qualifications issued by ICADE cannot be regarded as full university degrees qualifying the holders for access to Commission competitions for Category A posts .

19 It is true that the applicant holds qualifications evidencing post-graduate studies . However, as is emphasized in paragraph 5 of the guide for candidates in competitions based on qualifications prepared by the Commission and contained in the notice for the competition at issue, such qualifications cannot be taken into account by the Commission for comparisons between candidates unless the minimum competition conditions have been fulfilled, in particular the possession of a university degree .

20 Finally, it must be stated that the decision whether certain studies or qualifications have university status is an ad hoc assessment made by each Selection Board, having regard to the special features and conditions of each competition . The fact that the applicant worked for the Commission in the Press and Information Office in Madrid as an "Agent d' études", for which the duties involved require minimal training of university level, cannot therefore justify annulment of the contested decision .

21 It follows from the foregoing that the applicant has not adduced evidence which could establish a prima facie case for his application in the main proceedings and that accordingly, without its being necessary to consider whether the requirements relating to urgency and irreparable damage have been satisfied, the application for interim measures must be dismissed .

Operative part

On those grounds,

the President of the Third Chamber,

by way of interim decision,

after hearing the views of the Advocate General,

hereby orders as follows :

( 1 ) The application for interim measures is dismissed .

( 2 ) The costs are reserved .

Luxembourg, 5 May 1988