CELEX: 61977CC0074
Language: en
Date: 1978-03-15
Title: Opinion of Mr Advocate General Reischl delivered on 15 March 1978. # Magdalena Allgayer née Parzinger v European Parliament. # Case 74/77.

OPINION OF MR ADVOCATE GENERAL REISCHL
      DELIVERED ON 15 MARCH 1978 (
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         )
      
         Mr President,
      
         Members of the Court,
      The European Parliament gave notice in Official Journal No C 24 of 1 February 1977 that it was to hold a competition for the purpose of drawing up a reserve list for the recruitment of German-language administrators (in grades 7 and 6 of Category A). A notice of the general provisions governing open competitions was inserted in the Official Journal before the notice of competition PE/19/A. Those provisions included inter alia the following:
      ‘Candidates shall complete an application form prescribed by the appointing authority; they may be asked, if necessary, to furnish additional documents or information.’
      In connexion with the sending in of applications they went on to state:
      ‘Candidates shall complete and sign the application form contained in this issue of the Official Journal, and send it to the address indicated in the notice of competition. In addition, they are invited to enclose a curriculum vitae supplementing or amplifying, if necessary, the information entered on the application form.
      Documents relating to academic qualifications may be forwarded separately.
      Since these documents cannot be returned, it is advisable to send certified true copies. No photocopies will be accepted unless they bear an unphotocopied certification that they are true copies. Only copies of diplomas, degrees or other evidence of qualifications corresponding to the highest level of studies completed by the candidate need be sent.’
      As provided for expressly in the notice of competition, the competition was to be carried out on the basis of qualifications and tests. Under the heading ‘Degrees, diplomas, etc., required,’ a university degree in certain disciplines or equivalent professional experience was required.
      Section IV, ‘Selection on the basis of qualifications’, provides for marking from 0 to 40 and goes on to state:
      ‘After deciding the criteria by which to assess candidates'qualifications, the Selection Board will examine the qualifications of each candidate.
      To be admitted to sit the tests, each candidate must obtain an overall mark of at least 60 % of the possible total’.
      The applicant in these proceedings entered for that competition together with 1110 other candidates. In December 1975 she had entered the service of the Commission as an Administrative Assistant in Grade B 5 and had during that month also obtained a diploma in economics at Munich University. She sent with her application form copies of the certificates establishing that a degree had been conferred upon her, of her Abitur (school leaving examination) certificate and also of her junior high school diploma. She was then notified that she, as well moreover as 970 other candidates, was eligible to enter for the competition. When the applicant's qualifications were assessed with due regard to the criteria upon which the Selection Board had decided — as we were told during the proceedings, four criteria played a part in this assessment — she was however only awarded 22 marks. She was notified in a letter of 3 June 1977 that she could not therefore be allowed to take the written test.
      Thereupon, after making contact by telephone with the Chairman of the Selection Board on 9 June 1977 in order to discover the reasons why she was not eligible for the competition and the criteria applied by the Board and also after sending on 14 June 1977 another letter to the Chairman of the Selection Board, she lodged an appeal with the Court on 29 June 1977. In her application she claims that the Court should:
      
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               Annul the decision of 3 June 1977, and
            
         
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               Order the European Parliament, the defendant, to ask for all the applicant's qualifications and, after assessing them, to take another decision.
            
         
               1. 
            
            
               Before proceeding to consider whether those claims are valid I must first of all give my view on the admissibility of the application, which the Parliament calls in question for two reasons:
               
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                        Attention is first of all drawn to the fact that the applicant objects to the notice of competition. Since this is a measure adopted by the appointing authority, it cannot however be attacked directly (that is, not without a complaint first having been lodged) by means of an action in the same way as documents issued by the Selection Board.
                     
                  
                        —
                     
                     
                        Secondly, in the view of the Parliament there is no interest which requires protection. This is so because the applicant did not enclose her curriculum vitae with her application form and because the photocopy of the certificate of her university degree which she sent in was accompanied only by a photocopied endorsement certifying it to be a true copy of the original. She therefore did not comply with the conditions of the competition and her application could for that reason have been rejected, with the result that the question whether the Board could properly rely on other reasons for not admitting her to the written test does not have to be gone into.
                     
                  In my view the following brief observations must be made on these issues between the parties:
               
                        (a)
                     
                     
                        The claims in the application are determinative as far as concerns admissibility. They clearly refer in this case to an act of the Selection Board — the refusal to admit the applicant to the written test — and also to the finding that the Board still has to carry out certain tests. Accordingly the applicant — in accordance with the relevant case-law — could dispense with lodging a complaint with the appointing authority before commencing proceedings, because that authority cannot intervene during the course of the selection procedure. On the other hand, the fact that the formulation of the notice of competition is relevant to the grounds for the application is in my opinion of no importance. The decisive fan is that this complaint is not aimed at indirectly nullifying the notice of open competition but is only an argument in support of the submission that in view of the misleading notice the Board was under a duty to require the applicant to produce the missing qualifications.
                     
                  
                        (b)
                     
                     
                        The second objection of the Parliament also has to be regarded as being ineffective. It is true that, in the two respects which have been mentioned, the applicant undoubtedly did not comply with the conditions for the competition found in the general provisions governing open competitions. However, the important fact is that the Board did not treat this as a ground for rejecting her application. The applicant was nevertheless expressly admitted to the competition procedure, and this can only be taken to mean that the Board did not consider the defects indicated as being decisive. In any case, those defects must be treated as having been waived by the Board's conduct. We must now proceed on the basis of these existing facts. The most important point to note is that the appointing authority cannot reverse the assessment which has been made. I am therefore of the opinion that the legal interest in bringing the application, which is directed against other acts constituting the said assessment, cannot be challenged on the ground that the applicant should not have been admitted to the competition from the very beginning — which is not what happened.
                     
                  
         
               2. 
            
            
               The main issue in dispute, to which I shall now turn, is whether the applicant was wrongly excluded from the competition during the first stage — the examination of qualifications.
               
                        (a)
                     
                     
                        The main reason why she assumes that she was is that the examination was not complete. She was in fact entitled according to the conditions of the notice of competition and to the provisions of the Staff Regulations of Officials to assume that all the relevant certificates did not have to be sent in immediately but would be called for if necessary by the Selection Board. However, this did not happen and for that reason in her case certificates concerning her knowledge of languages, a certificate referring to the completion of a teacher-training course and also the certificate relating to the probationary period which she served with the Commission were not taken into consideration.
                        When examining this issue — on this point the Parliament is right — it is of the first importance that this particular competition was based on qualifications and tests. It follows from this that in the first stage of the competition procedure qualifications were very important and it must therefore have been obvious to candidates that they should enclose in the first instance with their application any qualification which might appear to have some importance.
                        Moreover, in favour of that view and against the argument that candidates could have awaited a request to send in certificates there is not only the fact that, when there is a large number of candidates, and this was to be expected since a reserve list was to be drawn up, such requests for additional documents would have raised considerable technical problems and entailed an undesirable loss of time. In that context reference may also be made to the common formulation of the general provisions governing open competitions and the notice of open competition. In particular, it is of interest to note that the plural is used throughout, whether in the general provisions, which mention diplomas and other academic qualifications and advise candidates to send in copies thereof, or in the notice of competition, which states that after deciding the criteria by which to assess candidates' qualifications the Selection Board will examine the qualifications of each candidate.
                        On the other hand, conclusive importance can hardly be attached to the arguments put forward by the applicant on this point.
                        This applies first of all to her references to the fact that the notice of competition only mentions diplomas and other evidence of formal qualifications relating to university studies in certain disciplines. The fact must not be overlooked that this was stated with the purpose of laying down the minimum conditions of admission which candidates had to fulfil. Having regard to the rest of the wording of the notice of competition it cannot be inferred that only such certificates had to be produced.
                        This applies as well to her reference to the recommendation in the general provisions governing open competitions to send in copies of diplomas and other evidence of formal qualifications corresponding to the highest level of studies completed by candidates. In my view the meaning of this recommendation is absolutely clear: it is intended to save candidates unnecessary expense and to prevent an unnecessary increase in the number of documents, since certificates are not relevant if they are only prerequisites for attaining the highest level of studies. As against that, it was wrong to infer from this an indication that not all the important certificates have to be lodged immediately and that as far as the latter are concerned a request to produce them from the Selection Board could be awaited. Nevertheless, it is interesting to note that the applicant herself did not proceed in accordance with her own understanding of the recommendation as expressed in her application but immediately sent other certificates such as her junior high school and final school leaving diplomas — that is to say certificates relating to unimportant intermediate stages.
                        Finally, the same applies to her reference to the second paragraph of Article 2 of Annex III to the Staff Regulations of Officials of the European Communities which reads — and the wording is also found in the general provisions governing open competitions — ‘[Candidates] may be required to furnish additional documents or information’. In fact the wording of that provision excludes the possibility of inferring therefrom an obligation to require additional documents. It is simply a permissive provision which may at best be relevant in exceptional cases at the Selection Board's discretion.
                        I therefore believe that the Selection Board cannot be criticized for not having required the applicant to furnish additional documents and for having wrongly carried out the requisite tests on an incomplete basis. If the tests were incomplete that was due to a failure to an in accordance with the procedure for which the applicant alone is responsible.
                        Permit me however to add — although this is not a determinative factor for the decision in this case — that the impression is inescapable that the certificates which the applicant sent in later could scarcely have had any influence on the Selection Board's decision. This becomes quite clear once we are familiar with the criteria which the Selection Board applied when examining the qualifications.
                        With regard to the documents which relate to the applicant's knowledge of languages it is important to note that knowledge of languages did not play any part in the first stage of the examination of the candidate's file — if the particulars in the application form concerning minimum standards are disregarded. According to the Parliament knowledge of languages was to be assessed during the oral test.
                        The same conclusion has to be drawn in the case of the applicant's reference to the fact that she also studied to become a teacher and in conjunction therewith completed a course at an establishment for further vocational training. As far as that is concerned it would seem to be of importance that this was not special training but only part of the training of which the applicant gave particulars in her application form. Furthermore, it is difficult to see how anything could be found in the certificate produced by the applicant, relating to a one month practical course which she attended and during which she took two teaching tests, which could be relevant when applying for a post in the Community in Grades A 7/A 6, even from the point of view of personnel administration.
                        Finally, with reference to the fact that the applicant worked for one year in the field of economics with the Directorate-General for Credit and Investments of the Commission and after the expiry of her probationary period received a report, it is in my opinion sufficient to know that this was a post in grade B 5. Under the third subparagraph of Article 5 (1) of the Staff Regulations a university degree is not necessary for such a post. In the competition with which we are concerned such duties could not therefore be regarded as equivalent professional experience. Furthermore, since this was a fact which clearly emerged from the applicant's application form — an assessment did not have to be made in this first stage of the competition procedure — it was not concealed from the Selection Board.
                     
                  
                        (b)
                     
                     
                        Since nothing has emerged so far which might justify any criticism of the proceedings of the Selection Board the applicant's further criticism, that there are at least two other reasons for calling in question the way in which the competition based on qualifications was conducted, now has to be considered.
                        The applicant first of all expresses the view that it is difficult to understand why the Selection Board applied four criteria, when in practice it was only concerned with the assessment of a single certificate, since the particulars given in the application form — being subjective assessments — should have been disregarded. In the second place, she submits that one candidate was admitted to sit the written test although his university degree was no better than the applicant's. It may be presumed from this and other similar individual cases, of which no further details were given, that for the admission of candidates to the written tests considerations unconnected with certificates played a part.
                        On this point, in view of the reply of the Parliament and after production of the Selection Board's report on the conduct of the competition, the following brief observations may be submitted.
                        
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                                 We now know how the criteria by which the Selection Board assessed the qualifications were elaborated. Marks were not only awarded for a university education which led to the award of a degree or for equivalent professional experience. Additional marks could be given for other examinations (the second State examination or doctorate), for studies and experience connected with European institutions and also for special professional experience. Consequently not only university degrees and diplomas but also particulars taken from the application form or curriculum vitae played a part. It is in my opinion, therefore, quite understandable why the Selection Board specified four criteria for its assessment of qualifications. Nor is it my impression that this procedure lies outside the discretion which a Selection Board is entitled to exercise in each case during such a procedure. In particular, I can find no cause for complaining that factors other than certificates were also taken into consideration since the elements considered were plainly objective matters which did not depend upon a subjective assessment by the candidates themselves.
                              
                           
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                                 On the other hand, as far as concerns the admission to the written test of a candidate whose marks for a university qualification were said to be no better than the applicant's I am satisfied with the Parliament's statement on this point that in the first stage of the tests the Selection Board did not consider the marks awarded at all, because the requisite degree of comparability was not present. The fact that different marks were awarded does not therefore adequately prove that extraneous considerations could have played a part in deciding who was eligible for the written test. On the contrary, to prove that this was so it would have to be shown that in fact there was no justification for awarding the other candidate further marks in respect of the additional factors mentioned and thus render him eligible for the written test. Since, however, this has not been done it can only be recorded that the applicant's presumption that the first selection to be made was not properly carried out — further allegations not being substantiated — falls short of a valid criticism of the competition.
                              
                           
                  
                        (c)
                     
                     
                        All the above forces me to conclude that the applicant's claims, from whatever point of view they are considered, cannot be regarded as having been substantiated.
                     
                  
         
               3. 
            
            
               Accordingly my opinion is as follows:
               The application lodged by Mrs Allgayer is admissible; it must however be dismissed as unfounded and the decision as to costs must be taken in accordance with Article 70 of the Rules of Procedure.
            
         (
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         )	Translated from the German.