CELEX: 61984CC0162
Language: en
Date: 1985-11-28 00:00:00
Title: Opinion of Mr Advocate General Lenz delivered on 28 November 1985. # Androniki Vlachou v Court of Auditors of the European Communities. # Officials - Non-admission to an inter-institutional competition. # Case 162/84.

OPINION OF MR ADVOCATE GENERAL
      LENZ
      delivered on 28 November 1985 (
            *1
         )
      
         Mr President,
      
      
         Members of the Court,
      
      A.
      The subject-matter of the proceedings with which I shall be dealing in this Opinion is the decision of the Court of Auditors of the European Communities (the defendant) of 30 September 1983 (
            1
         ) not to admit Mrs Androniki Vlachou (the applicant) to Competition No CC/LA/4/83, an inter-institutional competition organized by the Court of Auditors.
      
               1.
            
            
               After completing university studies in 1.971 the applicant worked inter alia, from January 1975 to December 1980, in a specialist ¡legal (publishing firm in Athens. In 1981, after passing a competition, she entered the service of the European Parliament. With effect from 1 March 1981 she was appointed a probationary translator in Grade LA 7, Step 3. (
                     2
                  )
               The applicant was then recruited as a reviser by the Court of Auditors under a contract dated 8 December 1981. She was initially engaged as a member of the temporary staff in Grade LA 5, Step 2, for a two-year period starling on 1 December 1981.
               On the expiry of that contract the applicant was engaged for a further year.as a translator in Grade LA 6, Step 3, under a contract dated 25 November 1983.
               After taking part in Internal Competition No CC/LA/14/83 the applicant was appointed a probationary official with effect from 1 March 1984. Her qualifications and experience were taken into account in accordance with Article 3 (1) of Decision No 81/5 of the Court of Auditors of 3 December 1981 (
                     3
                  ) on the classification of staff and she was accordingly classified in Grade LA 6, Step 3. On 1 December 1984 she became an established official.
            
         
               2.
            
            
               In order to fill one of two posts in Career Bracket LA 5/4 which were vacant in the Greek section of its Translation Department, the Court of Auditors on 26 April 1983 published a Notice of Internal Competition No CC/LA/20/82 (Reviser/Principal Translator). (
                     4
                  )
               One of the requirements for admission to the competition was contained in paragraph V.2. of the notice of competition, which -stipulated ‘at least six years' practical experience at senior level, in work related to the post to be filled’.
               The applicant took part in the competition but was not appointed because she was placed only second on the list of suitable candidates drawn up by the Selection Board. The legality of that competition is challenged in Case 143/84.
               On 2 June 1983 the Court of Auditors published uhe Notice of Inter-Institutional Competition No CC/LA/4/83 with a view to filling :a post of head of translation group/reviser in Career Bracket LA 5/4. (
                     5
                  ) Paragraph V 2 of the notice laid down as an admission requirement ‘at least 10 years' practical experience at senior level, in work related to the post to be filled’. Like the Notice of Competition No CC/LA/20/82, the notice stated that an appointment to the vacant post would in principle be made in the starting grade, namely Grade LA 5.
               The duties attached to the post were described as follows:
               
                        ‘—
                     
                     
                        To head the Greek translation section;
                     
                  
                        —
                     
                     
                        to revise translations and, where necessary, produce translations not requiring revision;
                     
                  
                        —
                     
                     
                        to supervise terminological, documentation or other specialized work in the linguistic field;
                     
                  
                        —
                     
                     
                        to participate in the training of translators.’
                     
                  In its final report to the appointing; authority, dated 16 September 1983, (
                     6
                  ) the. Selection Board in Competition No CC/LA/4/83 found that none of the candidates, met the admission requirements, im particular the requirement of ‘at least 10 years' practical experience at senior level, in work related to the post to be filled’laid down in paragraph V.2. of the notice. The Selection Board considered that it wasunable to draw up a list of suitable candidates.
               By a letter of 30 September 1983 (
                     7
                  )the: Court of Auditors informed the applicant that the Selection Board had not admitted! her to the competition because she; didį not satisfy the requirement of 10 years' practical! experience at senior level in work related to the post to be filled.
               On 24 November 1983 (
                     8
                  ) the applicami requested the Court of Auditors inter atta to suspend Competition No CC/LA/4/83 so as to fill the vacant post by means of an internal competition. By a complaint dated 22 December 1983 (
                     9
                  ) the applicant called upon the Court of Auditors to rescind the decision not to admit her to Inter-Institutional Competition No CC/LA/4/83, to annul the competition in its entirety and to organize an internal competition in order to fill the vacant post.
               By a decision dated 30 March 1984 (
                     10
                  ) the Court of Auditors rejected her complaint on the grounds, inter alia, that the provisions of the Staff Regulations and the binding decisions of the Court of Justice precluded the appointing authority from reviewing the proceedings of a Selection Board and in particulàrr the reasons:; which had led it to accept or refuse an application.
               The request for the annulment of the interinstitutionali competition and the organization, of an internal competition was rejècted by the Court of; Auditors as inadmissible or ate least, unfounded. Im the first place if was out of time; secondly, the Count of Auditors; had considered the possible procedures for filling the post in accordance with Article 29 of the Staff Regulations. However; it was not obliged to have recourse to promotion, transfer or internal, competition procedures if it came to the: view that, an inter-institutional competitions would give it. a better chance of satisfying the requirements, of the service in filling the post.
               This action was ihitially brought against the decisioni noc to admit the applicant to Competition No CC/LA/4/83 and the decision not to annul the competition in its entirety. However, the applicant's claim for the annulment of the competition was described as only an alternative claim in her reply and was eventually withdrawn at the hearing.
            
         
               3.
            
            
               The conclusions of the parties at the close of the oral proceedings may be summarized as follows:
               
                        (a)
                     
                     
                        The applicant claims that the Court should:
                        
                                 —
                              
                              
                                 Declare that the Selection Board wrongly decided that she could not be admitted to the competition;
                              
                           
                                 —
                              
                              
                                 Accordingly declare that the Selection Board must recommence its proceedings;
                              
                           
                                 —
                              
                              
                                 In any event, order the Court of Auditors to pay the costs.
                              
                           
                  
                        (b)
                     
                     
                        The Court o/Auditors contends that the Court should:
                        
                                 —
                              
                              
                                 Dismiss the application;
                              
                           
                                 —
                              
                              
                                 Order the applicant to pay all of the costs.
                              
                           
                  
         
               4.
            
            
               By a letter dated 11 March 1985 the Court of Justice requested the Court of Auditors:
               
                        (a)
                     
                     
                        to inform it of the criteria for the interpretation of the admission requirements applied by the Selection Board;
                     
                  
                        (b)
                     
                     
                        to forward the minutes of the meeting of the Selection Board at which those criteria were applied.
                     
                  In reply to that letter the Court of Auditors resubmitted the minutes of the Selection Board's meeting held on 16 September 1983, which it had already produced as Annex 2 to its defence.
            
         
               5.
            
            
               Asked at the hearing about the criteria for the interpretation of the admission requirements adopted by the Selection Board, the Court of Auditors stated as follows :
               In order to be appointed Head of Section a candidate had to have been a reviser. Since none of the candidates had 10 years' experience as a reviser, their applications were all rejected. One of the candidates was told that the decision had been taken on the basis of that criterion; he accepted the explanation.
            
         B.
      In this Opinion I shall be stating my own views directly after discussing the applicant's submissions and the defence of the Court of Auditors.
      
               1.
            
            
               
                        (a)
                     
                     
                        The applicant submits that she was disappointed in her legitimate expectation following assurances from the Court of Auditors. Before her entry into the service of the Court of Auditors one of its members and certain senior officials had given her assurances about to her future career. In particular it was indicated to her that her appointment as an established official was a pure formality as far as the Court of Auditors was concerned.
                        The Court of Auditors, however, contends that the applicant was given no assurances with regard to her appointment as an established official at the time of her entry into the service. Besides, it is not clear how an alleged breach of the principle of protecting legitimate expectation can affect these proceedings.
                     
                  
                        (b)
                     
                     
                        Whether the applicant was given any assurances at the time of her entry into the service of the Court of Auditors is a question which may be left open. The question is irrelevant because the Staff Regulations prescribe a formal procedure for the appointment of officials, in particular in Article 29, so that any assurances to the contrary are unlawful and therefore not binding.
                     
                  
         
               2.
            
            
               
                        (a)
                     
                     
                        A further complaint which the applicant levels at the Court of Auditors is that the Selection Boards in Competition Nos CC/LA/20/82 and CC/LA/4/83 — whose members were the same — gave different interpretations within a short space of time to identically-worded requirements for admission to the competition. The requirement of ‘practical experience at senior level in work related to the post to be filled’ was given a significantly more liberal interpretation in the first competition than in the second.
                        Since the admission requirements are objective in nature, compliance with them
                        can be checked. The Selection Board has no discretion in determining objective criteria.
                        The Court of Auditors, however, argues that as the appointing authority has no power to appraise the work of a Selection Board and in particular to examine the reasons which prompted it to accept or refuse an application. For that reason it is not competent to depart from the interpretation of the words ‘at senior level in work related to the post to be filled’ adopted by the Selection Board.
                        Notwithstanding that, the Selection Board rightly came to the conclusion that the applicant did not qualify for admission to the competition. Since the vacancy was for a head of section, the very nature of the post made it essential for the Selection Board to require a significant degree of experience at least as a reviser. It was not therefore sufficient to produce proof of a minimum length of experience; all or part of that experience — this being a question for the Selection Board — also had to be at a high qualitative level.
                        A comparison with the requirements for admission to Competition No CC/LA/-20/82 is not possible since the two competitions were meant to fill different posts. Since the purpose of the two competitions was different, the Selection Boards were entitled to assess the candidates' experience differently.
                     
                  
                        (b)
                     
                     
                        The question to be determined at this juncture is whether the aforementioned admission requirement is an objective criterion susceptible to judicial review or whether it is a criterion which requires an evaluation by the Selection Board. In the latter case, the substance of the Selection Board's decisions would not be open to review since it would enjoy a measure of discretion; the only question to be examined would then be whether the procedure was properly carried out.
                     
                  The notice of competition refers to ‘at least 10 years' practical experience at senior level, in work related to the post to be filled’. As is stated in the notice, the vacancy is for a head of section or reviser.
               However, the notice does not indicate what is meant by experience ‘at senior level’. Therefore the admission requirements are not framed in such a way that it is possible to determine whether they are satisfied simply by applying objective criteria.
               It was therefore necessary for the Selection Board to determine the criteria for the admission of candidates before admitting them to the competition so as to be able to decide upon their admission on the basis of those criteria. That duty arises from the incomplete wording of the notice of competition and from Article 5 of Annex III to the Staff Regulations. According to the first paragraph of that article, the Selection Board must initially only examine the candidates' files and draw up a list of candidates who meet the requirements set out in the notice of competition. However, if the requirements of the notice of competition are not directly applicable on their own but require a value interpretation by the Selection Board, the Board must lay down the criteria for the interpretation of the entrance requirements before examining whether candidates qualify for admission. If it did not set out those criteria in advance, the Selection Board would subsequently not be in a position correctly to draw up the list of suitable candidates provided for in the sixth paragraph of Article 5 of Annex III to the Staff Regulations which must include a reasoned report.
               In this context I think that it is necessary to apply by analogy the third paragraph of Article 5 of Annex III where a criterion in a notice of competition which has not been set out in sufficient detail requires a value judgment by the Selection Board.
               However, the final repon of the Selection Board in the abovementioned competition of 16 September 1983 (
                     11
                  ) contains no indication that it laid down those criteria for the interpretation of the admission requirements. It merely states that none of the candidates satisfies the entrance requirements, in particular the requirement of ‘at least 10 years' practical experience at senior level, in work related to the post to be filled’ contained in paragraph V.2 of the notice of competition.
               According to that report, the Selection Bpard did not therefore lay down the aforementioned criteria.
               The Court of Auditors has indeed observed in general terms that in all the other language sections in which the post of head of section had to be filled, it has required long practical experience (10 years) relevant to the vacant post; it interpreted that as meaning experience gained at least in part in the position of reviser.
               In response to a written question put to it by the Court concerning how it had arrived at the aforementioned criteria, the Court of Auditors confined itself to submitting once again the final report of the Selection Board. At the hearing it then stated that it had excluded all candidates who could not provide proof of 10 years' experience as a reviser from the rest of the competition procedure.
               That step on the part of the Selection Board is incompatible with Annex III to the Staff Regulations. Since, in my view, the third paragraph of Article 5 of Annex III must be applied by analogy where admission requirements are not sufficiently specific, that is to say where, as in the case of the assessment of qualifications, the criteria for their assessment must be laid down in advance, I can refer to the judgment of the Court óf Justice of 14 December 1965 in Morina, (
                     12
                  ) in which the Court stated:
               ‘More particularly, by failing to set out the criteria according to which it made its assessment of the qualifications, the Selection Board omitted from its report a factor which was essential to support the statements contained therein; it thereby infringed the provisions in the sixth paragraph of Article 5 of Annex HI to the Staff Regulations... ’.
               Those statements of the Court are fully applicable in this case. The same is true of the subsequent reasoning given in that judgment, which was as follows:
               ‘[The provisions in the sixth paragraph of Article 5 of Annex III to the Staff Regulations]... must be considered requirements of substance. The criteria of assessment
               should be fixed in order to ensure that the qualifications are assessed objectively and without any possibility of arbitrariness. In addition, the requirement that the report be “reasoned” enables the appointing authority to exercise its discretion with judgment, which means that it needs to be informed of both the general criteria employed by the Selection Board and the manner in which these were applied by the Board to the persons appearing on the list of suitable candidates. These requirements were also imposed in the interests of candidates, so that infringement of them adversely affects the unsuccessful candidates within the meaning of Article 91 of the Staff Regulations.’
               It is clear from the Selection Board's final report and the statements of the Court of Auditors in the course of the oral procedure, that the Selection Board did not establish those criteria. For that reason the Selection Board's decision not to admit the applicant to Competition No CC/LA/4/83 must be annulled on the grounds that it is flawed.
               That result would not be changed if the Selection Board had in fact defined the entrance requirement as requiring 10 years' experience as a reviser because that criterion is not mentioned in its report.
               In any event, it is at least doubtful whether that criterion, if adopted, would have been proper. After all, the Court of Auditors has itself stated that in other competitions to fill comparable posts in other language sections at least 10 years' experience has been required of which only a part had to be experience as a reviser. In that case it was all the more necessary to establish the criteria for assessing practical experience. If the Selection Board then wished to depart from the previous practice, it should at least have given an explanation.
            
         
               3.
            
            
               The complaint that the Court of Auditors committed a manifest error in its appraisal of the length of the applicant's practical experience consequently does not call for examination in these proceedings since criteria for the assessment of practical experience are not available or were not laid down in a proper manner.
            
         
               4.
            
            
               Since the decision adversely affecting the applicant must be annulled in any event, it is also unnecessary to examine further her contention that the Court of Auditors abused its discretion on the presumption that it did not want the competition to come to a positive result.
            
         
               5.
            
            
               As well as challenging the appointing authority's decision, the applicant has also claimed an order against the Court of Auditors requiring the Selection Board to resume its proceedings.
               That claim cannot be granted because in proceedings under Article 179 of the EEC Treaty the Court of Justice is empowered only to annul a measure adversely affecting the applicant and not to set out the positive steps which the defendant must take in order to comply with the judgment. (
                     13
                  ) In any event, the general principle laid down in Article 176 of the EEC Treaty requires the institution whose measure has been declared void to take the necessary measures to comply with the judgment of the Court of Justice.
               I therefore consider that claim purposeless.
            
         
               6.
            
            
               
                        (a)
                     
                     
                        Finally, I should briefly examine the argument of the Court of Auditors that, according to the decisions of the Court of Justice, it is not empowered to annul or amend the Selection Board's decision. A Selection Board, it argues, is sovereign and independent, so that the appointing authority is neither empowered nor called upon to inquire into the regularity of the Selection Board's proceedings.
                     
                  
                        (b)
                     
                     
                        Stated in such general terms, the argument of the Court of Auditors is incorrect.
                     
                  The Selection Board is certainly independent as regards the objective assessment of qualifications and performances in tests. In that regard, it enjoys a discretion. That much may be inferred from the purpose of the competition procedure and the decisions of the Court of Justice, for instance its judgment of 9 October 1974 in Campogrande, (
                     14
                  ) its judgment of 9 February 1984 in Kohler, (
                     15
                  ) and its judgment of 16 March 1978 in Wülierstorffi (
                     16
                  )
               However, the independence of the Selection Board relates only to the objective assessment of qualifications and performance in tests, as dealt with in the judgments cited: examination of a candidate's ability (Campogrande); appraisal of ability to perform the relevant duties (Kohlef); and verification of relevant experience ( Wällerstorß.
               
               The Selection Board's independence in those matters does not, however, dispense it from having to comply with legal provisions. Mr Advocate General Gand made this point aptly in his Opinion in the Vandevyvere case: (
                     17
                  )
               ‘It is certain that the freedom of the Selection Board is limited by its duty to conform to the legal provisions governing the competition: general provisions, rules of all kinds for the competition, which may for example lay down the exact character of the tests and the weighting to be given to each of these. On the other hand, its independence is complete when, within the limits indicated above, it evaluates the respective qualities of the various candidates and gives them marks or a grading.’
               That distinction between the obligation to comply with legal requirements and discretion in matters of evaluation is important in determining the powers of an appointing authority over a Selection Board. It is true that in its judgment in the Wiillerstorffcust, cited above the Court stated that it was pointless to go through the complaints procedure where a complaint concerned the decisions of a Selection Board in a competition since the appointing authority was not empowered to alter such decisions. However, that statement can apply only to cases in which the Selection Board has made assessments in a proper manner within the limits of the tasks assigned to it. It can no longer apply, however, where the Selection Board ignores legal provisions, since, despite its independence in factual matters, it is not empowered to do so.
               The appointing authority is therefore not only empowered but under a duty to check whether the proceedings of Selection Boards are regular and to set aside any unlawful decisions of a Selection Board, provided only that it respects its independence in the assessment of qualifications and the marking of tests.
               This is also dictated by the requirements of a practical and effective system of legal protection. It is unreasonable to oblige an official adversely affected by the patently unlawful conduct of a Selection Board to take the much longer route of appealing to the Court of Justice when the appointing authority already has the means of granting redress to the aggrieved official in the administrative procedure laid down in Article 90 of the Staff Regulations.
               However, this was not done by the defendant in this case.
            
         
               7.
            
            
               Since the main claim must consequently be granted and only the claim for a declaration of the specific legal obligations which the judgment will impose on the defendant in any event must be rejected, I consider it reasonable to order the defendant to pay all the costs pursuant to Article 69 (2) of the Rules of Procedure.
               The fact that the applicant initially also claimed the annulment of the entire competition does not bar such a judgment. Since a literal interpretation of the application would have made that claim conflict with the other claims, it was clearly put forward as a subsidiary or alternative claim. The applicant explained this in her reply and finally abandoned the claim during the oral procedure. It therefore does not appear appropriate to order the applicant to bear part of the costs pursuant to Article 69 (4) of the Rules of Procedure.
            
         C.
      In the light of all the foregoing I propose that the Court should declare and rule as follows:
      
               (1)
            
            
               The decision of the Court of Auditors not to admit the applicant to Competition No CC/LA/4/83, notified to the applicant on 30 September 1983, is annulled.
            
         
               (2)
            
            
               For the rest, the application is dismissed.
            
         
               (3)
            
            
               The Court of Auditors is ordered to pay the costs.
            
         (
            *1
         )	Translated from the German.
      (
            1
         )	Annex 1 to lhe application.
      (
            2
         )	Decision of the Secretary-Genera! of the European Parliament of 29 June 1981, Annex 3 (c) to the rejoinder.
      (
            3
         )	Annex 2 to the rejoinder.
      (
            4
         )	Annex I to the rejoinder.
      (
            5
         )	Annex I to the application.
      (
            6
         )	Annex 20 to the defence.
      (
            7
         )	Annex 2 to the application.
      (
            8
         )	Annex 3 to the application.
      (
            9
         )	Annex 4 to the application.
      (
            10
         )	Annex 5 to the application.
      (
            11
         )	Annex 2 io the defence.
      (
            12
         )	Judgment of 14 December 1965 in Case 21/65, Domenico Morirà v European Parliament [1965] ECR 1033. That judgment, which concerned the Staff Regulations of the EEC and the EAEC (Regulation No 31 (EEC), 11 (EAEC), Official Journal, English Special Edition (1959-62) p. 135), is equally applicable to the Staff Regulations of the European Communities because the wording of Annex III is the same in each case.
      (
            13
         )	Judgment of 28 October 1980 in Case 2/80, Hubert Dautzenberg v Court of Justice of the European Communities, [1980] ECR 3107; and the Opinion of Mr Advocate General Warner, in particular at p. 3123; judgment of 15 December 1966 in Case 62/65, Manlio Serio v Commission of the EAEQ [1966] ECR 561.
      (
            14
         )	Judgment of 9 October 1974 in Joined Cases 112, 144 and 145/73, Anna Maria Campogrande and Others v Commission of the European Communities, [1974] ECR 957.
      (
            15
         )	Judgment of 9 February 1984 in Joined Cases 316/82 and 40/83, Nelly Kobler v Court of Auditors of the European Communities, [1984] ECR 641.
      (
            16
         )	Judgment of 16 March 1978 in Case 7/77, Bernhard Dietber Ritter von Wüllcrstorfj und Urbair v Commission of the European Communities, [1978] ECR 769.
      (
            17
         )	Case 23/64, Thérèse Vandevyvere v European Parliament, [1965] ECR 157 at p. 172.