CELEX: 61974CC0090
Language: en
Date: 1975-09-18 00:00:00
Title: Opinion of Mr Advocate General Warner delivered on 18 September 1975. # Francine Deboeck v Commission of the European Communities. # Case 90-74.

OPINION OF MR ADVOCATE-GENERAL WARNER
      DELIVERED ON 18 SEPTEMBER 1975
      
         My Lords,
      On 30 June 1972 the Council adopted Regulation (Euratom, ECSC, EEC) No 1473/72 amending the Staff Regulations. Among the amendments thereby made to those Regulations were amendments to Annex I introducing two new basic posts in Category B, namely the basic post of ‘Senior Secretarial Assistant’ in career-bracket B 3 - B 2 and that of ‘Secretarial Assistant’ in career-bracket B 5 - B 4. A footnote was added to the Annex providing, in the case of each of these basic posts, that the number of posts corresponding to it should be exactly and specifically fixed in the list of posts appended to the budget.
      The amendments had been foreshadowed by Mr Coppé, the Member of the Commission then responsible for staff matters in a Notice to the Staff dated 6 June 1972 (Annex V to the Reply). In this Mr Coppé explained that the amendments would make possible the prolongation, under certain conditions, of the careers of secretaries (until then confined to Category C) into Category B. He said that this was justified by the fact that ‘les fonctions de secrétariat … ont considérablement evolué’ and added in effect that the footnote to which I have referred would be inserted to prevent any possible abuse.
      Soon afterwards the Commission submitted to the Council its preliminary draft budget for 1973, in which it asked for the conversion of 80 posts of grade C1 into posts in the career-bracket B 3 - B 2 and the conversion of 80 posts in grades C 2 and C 3 into posts in the career-bracket B 5 - B 4. In the Statement giving its reasons for these requests (Annex 1 to the Defence) the Commission said that their purpose was to take account of the creation of the new basic posts of ‘Senior Secretarial Assistant’ and ‘Secretarial Assistant’. The Commission explained that it had about 1500 secretaries on its staff and that it considered that about 10 % of these performed secretarial duties of Category B importance.
      It seems that the Council granted only half of what the Commission had requested, for, on 16 April 1973, there was published in the Staff Courier a Notice to the Staff announcing an internal competition (COM/BS/9/73) for 40 posts of Senior Secretarial Assistant and 40 posts of Secretarial Assistant (Annex 2 to the Defence). To this Notice was annexed the formal Notice of Competition which had been adopted by the Director-General for Personnel and Administration — acting in his capacity of appointing authority — on 4 April 1973, after, so it appears, consultation not only with the Joint Committee but also with representatives of staff associations and trade unions.
      The Notice of Competition provided that, to be eligible to take part in the competition, a candidate must, among other things, have at least nine years experience of secretarial work or, alternatively, at least six years' such experience and a diploma of secondary education; and must have been in the service of the Communities as an official or other servant for a total period of at least five years.
      The competition was to be on the basis of both qualifications and tests. There were to be compulsory tests and optional tests. The compulsory tests were to consist of a written test, a practical test and oral tests. To qualify for the oral tests, candidates must have obtained at least 10 out of 20 marks in the written test and 15 out of 30 in the practical test.
      Candidates obtaining a minimum of 50 marks in the compulsory tests (out of a possible 100) were to be awarded an additional half mark for every 6 months of service with the Communities in a secretarial capacity above the qualifying 5 years and for every 12 months of secretarial experience before entering the service of an institution of the Communities.
      The 40 candidates obtaining the greatest number of marks in the competition, provided they obtained at least 70 in the compulsory tests, would be appointed Senior Secretarial Assistants in grade B 3. The 40 with the next best marks, provided they obtained at least 60 in the compulsory tests, would be appointed Secretarial Assistants in grade B 5. The next in order, provided they obtained at least 60 marks in the compulsory tests, would be entered on a reserve list for posts of Secretarial Assistant becoming vacant before 31 December 1973.
      The applicant in the present case became a candidate in the competition. She is an experienced secretary. Bom in 1928, she joined the service of the High Authority of the ECSC in 1955 after over 10 years' experience as an assistant secretary and executive secretary in private industry. At the High Authority she worked first in the typing-pool and subsequently as a secretary in the Legal Service. Since 1 January 1960 she has been a secretary in the Legal Service of the Commission. For nearly 10 years she was the secretary to the then Director-General of that Service. She ceased to be his secretary only when he left. Since 1 January 1970 she has been at step 8 of grade C 1, which is the topmost step in Category C.
      By letters dated 5 and 13 December 1973 signed by the Head of the Recruitment, Appointments and Promotions Division or the Directorate-General of Personnel and Administration of the Commission (Annexes 5 and 6 to the Defence) the applicant was informed that she had failed to qualify for the oral tests, her marks in the written and practical tests being respectively 8·3 out of 20 and 16·5 out of 30. Your Lordships will observe that her marks in the practical test were adequate to qualify her, but that her marks in the written test were not.
      I need not trouble Your Lordships with the details about the applicant's subsequent complaint under Article 90 (2) of the Staff Regulations. Nothing turns on them. Suffice is to say that that complaint was rejected.
      The essential claim of the applicant in this action, which she brings of course against the Commission, is for a declaration that the whole procedure of the competition, and the appointments that resulted from it, were void.
      She rests that claim upon no fewer than six grounds. I will say at once that I think none of them valid.
      The first ground upon which she relies is that no notice of vacancy was published. This, she says, was in breach of the second paragraph of Article 4 of the Staff Regulations.
      The first two paragraphs of that Article, Your Lordships remember, are in these terms:
      ‘No appointment or promotion shall be made for any purpose other than that of filling a vacant post as provided in these Staff Regulations.
      Vacant posts in an institution shall be notified to the staff of that institution once the appointing authority decides that the vacancy is to be filled.’ (OJ C 12 of 24. 3. 1973)
      In the forefront of its argument on this point the Commission put the submission that there were not really here ‘vacant posts’: what was involved was the ‘conversion’ of existing posts. So Article 4 did not apply. In answer to a question that I put to him at the hearing, Counsel for the Commission agreed that this submission amounted to saying that the situation was an ‘extra-statutory’ one. On the footing that no notice of vacancy was published, he had, I think, to make this admission, for Article 4 presented him with a clear dilemma. Under the first paragraph of that Article there can be no appointment unless there is a vacant post to be filled. But, under the second, no vacant post in an institution may be filled unless the vacancy is notified to the staff of that institution.
      My Lords, I would for my part hesitate to reject the view, inherent in the Commission's submission, that, in the field supposedly covered by the Staff Regulations, extra-statutory situations may arise. That those Regulations are in many ways imperfect is, after all, a familiar, not to say a notorious, fact. But I do not think that it is necessary to express a concluded opinion on this in the present case.
      The fact is that the posts in question were ‘notified to the staff of the Commission. They were so notified by the Notice to the Staff published in the Staff’ Courier on 16 April 1973 to which I have referred. There is nothing in the Staff Regulations that requires a vacant post to be notified to the staff of an Institution by a document headed ‘Notice of Vacancy’. Article 4 requires only that the vacancy should be ‘notified to the staff’. Here the Notice — of which I have spared Your Lordships a full reading, but which is, as I have indicated, in evidence — contained all the information that any member of the staff of the Commission could possibly need about the vacancies in question.
      The only criticism, therefore, can be that the notification to the staff was contemporaneous with the publication of the notice of competition. It was said on behalf of the Commission that such simultaneous publication was not infrequent and that there is nothing in the Staff Regulations to preclude it. My Lords, I am not sure that this is correct. Article 29 (1) of the Regulations requires an appointing authority, before filling a vacant post in an institution, first to consider:
      
               ‘(a)
            
            
               whether the post can be filled by promotion or transfer within the institution;
            
         
               (b)
            
            
               whether to hold competitions internal to the institution;’
            
         and so on. The better view is, I think, that these steps are intended to be successive, so that an appointing authority is precluded from holding any competition until it has considered whether the post can be filled by promotion or transfer within the institution — see paragraph 5 of the Judgment in Case 176/73 Van Belle v Council [1974] ECR 1370. It is further arguable that the purpose, or at all events a purpose, of the notification of a vacant post to the staff is to enable those eligible for promotion or transfer to apply for it — consider Case 15/63 Lassalle v Parliament [1964] ECR 37 (Rec. 1964 72), where the nexus between the notice of vacancy and the promotion procedure is mentioned. To publish a notice of vacancy simultaneously with a notice of competition obviously frustrates that purpose.
      Of one thing, however, there can be no doubt. The applicant, being a Category C official, could not be appointed to a post in Category B except on the basis of a competition — see Article 45 (2) of the Staff Regulations. Assuming, therefore, that, in this case, the Commission committed an irregularity in publishing the notification of the vacant posts to the staff at the same time as the notice of competition, that irregularity could not and did not prejudice or affect the applicant in any way.
      When I put this point to Counsel for the applicant at the hearing, he submitted, if I understood him correctly, that there was a general rule that a person who had an interest in securing the annulment of an administrative decision was entitled, in challenging it, to rely on any irregularity in the procedure leading to it, even an irregularity that did not touch him. It appears that there is such a rule in French law and in the systems derived from it, namely Belgian, Italian and, probably, ‘Letzeburgisch’ law.
      But there is no such rule in the laws of any of the other Member States.
      Thus, in the laws of England and of Scotland and, I believe, of Ireland also, the rule is, on the contrary, that a person challenging the validity of an administratíve decision cannot rely, in doing so, upon an irregularity in the procedure leading to it unless he can show at least a possibility that, but for the irregularity, he would have been in a better position — see for instance per Lord Wilberforce in Malloch v Aberdeen Corporation [1971] 1 W.L.R. at p. 1595. The origin of the rule, at all events in English law, lies in the fact that the judicial remedies available in English administrative law (the prerogative orders of certiorari, mandamus and prohibition, and the equitable remedies of injunction and declaration) are all discretionary and the Courts do not consider that judicial discretion should be exercised in favour of someone who has suffered no injustice — see for instance the Judgment of Pennycuick V.-C. in Glynn v Keele University [1971] 1 W.L.R. at pp. 496-497.
      The Danish, Dutch and German Courts tend to adopt a similar view — see the Judgment of the Østre Landsret in Restaurater A. M. Johansen v Inspekteratet for Øl og Spiritusbeskatningen (U 1952 199); the Judgment of the Centrale Raad van Beroep of 6 January 1956 (AB 1957, 96, cited in, inter alia, Nederlands Bestuursrecht, 1973, by van Poelje and Others, at p. 277); and the Judgments of the Bundesverwaltungsgericht of 29 March 1966 (Entscheidungen Band 24, p. 23 [32] and of 10 April 1968 (Entscheidungen Band 29, p. 282 [284]) referred to in Wolff, Bachof, Verwaltungsrecht, Band 1, 9 Auflage 1974, p. 434. There is, I understand, at present a Bill pending before the Bundestag (Entwurf eines Verwaltungsverfahrensgesetzes) by which it is proposed, among other things, to codify the law in this respect.
      More important, perhaps, than a comparison of the laws of the Member States on this topic is a consideration of the relevant decisions of this Court. These consistently evince a rejection by the Court of the French rule.
      Perhaps the clearest and most categoric example of this is to be found in Case 37/72 Manato v Commission [1973] ECR 361. The applicant in that case challenged a notice of competition published by the Commission on the ground that it did not, as was then required by the Staff Regulations, prescribe an age limit for candidates. The Commission argued among other things that it was not open to him to rely on this particular point because the fixing of an age limit could not, on the facts, have benefited him. Of this argument, Mr Advocate-General Mayras, relying on the French rule, said this (I cite from the original — Rec. 1973, p. 374):
      ‘Il existe, Messieurs, une raison de principe d'écarter cette argumentation: L'intérêt pour agir, dans le domaine qui nous occupe, c'est-à-dire l'intérêt à demander l'annulation d'un acte administratif, ne peut s'apprécier que par rapport aux conclusions de la requête, non par rapport aux moyens invoqués. Un candidat non admis à concourir a incontestablement intérêt à contester les opérations du concours dont il estime avoir été illégalement écarté. Il ne peut être déclaré irrecevable à invoquer un moyen de légalité, quel qu'il soit, car l'objet même de son recours est d'obtenir que cette légalité soit respectée; et c'est la mission du juge d'assurer ce respect.’
      But the Second Chamber of the Court rejected this view. It held ([1973] ECR 368):
      ‘The setting of an age limit could only have resulted either in eliminating the applicant himself from the competition, which would have been directly contrary to his interest, or else in eliminating other, possibly qualified, candidates, which in the circumstances cannot be recognized as a legitimate interest of his.’
      There are at least four decisions of the First Chamber to the like effect. In Case 35/64 Alfien v Parliament [1965] ECR 267 (Rec. 1965, p. 344) the Chamber held, among other things, that an applicant could not complain about the form of a notice of competition when the very fact that he had taken part in the competition showed that the notice had fulfilled its purpose so far as he was concerned. In Case 115/73 Serio v Commission [1974] ECR 349 the Chamber held that an applicant could not complain of the circumstance that, following a competition on the basis of both qualifications and tests, the documents listing some of his qualifications were not placed before the appointing authority, where it did not appear, in view of the results of the tests, that the qualifications he offered were of such a kind that they would have ensured a decision in his favour. In Case 144/73 De Vleeschauwer v Commission [1974] ECR 986 the applicant complained of the inclusion in a competition, after publication of the notice of competition, of an additional option. The Chamber held that the late inclusion of a new option could be complained of only by those who had chosen that option, of which the applicant was not one. Lastly, in Case 29/74 De Dapper v Parliament [1975] ECR 40 the Chamber held that the applicant could not challenge the appointments there in question on the ground that they had been made in the wrong grade: only those who might thereby be prejudiced, namely the appointees themselves, could do so.
      I conclude that it is not open to the applicant in the present case to rely upon the irregularity, if it was one, consisting in the fact that the Commission did not leave an interval of time between the notification of the vacancies to the staff and the publication of the notice of competition. Any such irregularity could not affect her. I would, for this reason, hold that she fails on her first ground.
      I will not take up so much of Your Lordships' time in dealing with the applicant's second ground. This is to the effect that the Commission was in breach of Article 5 of the Staff Regulations in holding a single competition for posts in two different grades, namely posts of Senior Secretarial Assistant and posts of Secretarial Assistant.
      My Lords, there is, as the Commission points out, nothing in Article 5 that has any express bearing on this point, but the classification made by that Article of the posts covered by the Staff Regulations into categories and services according to the nature and importance of the duties attached to them, together with the provisions precluding appointments from one category or service to another without a competition, necessarily imply, I think, and the Commission concedes this, that a single competition cannot be held for posts in different categories or services. Moreover there are, in certain career brackets, posts of descriptions so different that it would be inappropriate to hold a single competition for them. For instance career bracket B 5 - B 4 includes the basic posts of ‘Administrative Assistant’, ‘Technical Assistant’ and ‘Secretarial Assistant’. Obviously the sort of training and experience required for these are not the same and it would not be appropriate to hold a single competition for all of them or for any two of them.
      But here what were involved were two sets of posts of the same kind, differing only in the degree of responsibility attached to them. This emerges clearly from the description in the notice of competition of the nature of the duties pertaining to each of them:
      ‘Senior Secretarial Assistant
      
      Executive official responsible for difficult and complex secretarial duties, in the context of general directives, within an administrative unit or a group of officials.
      
         Secretarial Assistant
      
      Executive official performing, under supervision, difficult and complex secretarial duties within an administrative unit or a group of officials.’
      Thus the difference was only that, whereas a Senior Secretarial Assistant was to be ‘responsible’ for the duties in question ‘in the context of general directives’ a Secretarial Assistant was to ‘perform’ them ‘under supervision’. That being so, not only was it, in my opinion, lawful, but it accorded with common sense, to hold a single competition for the two sets of posts, and to choose the candidates with the highest marks for the senior posts and those with the next highest for the junior ones.
      The applicant's third ground of complaint is, in a nutshell that, although the competition was on the basis of both qualifications and tests, it was so designed and conducted as to attach too much importance to the tests and too little to the candidates' respective qualifications. In substance the latter came into consideration only at two stages, first in order to determine the candidates' eligibility to take part in the competition at all, and secondly at the final stage when extra marks for length of experience were awarded to those who had obtained at least 50 marks in the compulsory tests. The result, it was contended on the applicant's behalf, was to defeat the very purpose of the whole operation, which was to enable secretaries at the top of Category C to ‘prolong’ their careers into Category B.
      In this connexion the applicant, relying on what was said by Mr Coppé in his Notice to the Staff of 6 June 1972, invokes the maxim ‘patere legem quam ipse fecisti’. Moreover, with a view to bolstering her case, she asks the Court to order production of all the Commission's minutes and other documents leading up to the publication of the notice of competition.
      My Lords, all this seems to me wholly misconceived.
      As this Chamber held in Cases 112, 144 and 145/73 Campogrande and Others v Commission [1974] ECR 983, the relevant decision is, in law, that embodied in the notice of competition. Prior deliberations of the competent authorities, as evinced by minutes and the like, cannot be resorted to to qualify the contents of that notice unless they show that its wording manifestly failed to give effect to the actual decision. Here it would, in my opinion, be inappropriate for Your Lordships to order production of the minutes and other documents in question for two reasons. First there is nothing to suggest that the notice of competition did not accurately reflect the decision of the appointing authority: what Mr Coppé said was no more than that the amendments of the Regulations would make it possible under certain conditions for the careers of secretaries to be prolonged into Category B. Secondly, if the purpose of the competition had been merely to enable the careers of secretaries at the top of Category C to be so prolonged, it would have been unlawful. It would have flouted both Article 7 of the Staff Regulations, which requires the appointing authority, in assigning officials to posts, to act solely in the interests of the service, and Article 27, which requires recruitment to be directed, inter alia, to securing for the Institution the services of officials of the highest standard of ability and efficiency. The competition in the present case seems to me, if I may say so, to have been admirably designed for the purpose of identifying from among the vast secretarial staff of the Commission those whose ability and experience best fitted them for the vacant posts. The detailed criticisms made on behalf of the applicant of the terms of that competition have been amply answered by the Commission in its submissions. I do not think it is necessary for me to deal with those criticisms seriatim. They all seem to me to proceed from the misconception that I have pointed out as to the purpose of the competition. Moreover they overlook that, in fixing the terms of a competition, the appointing authority has a wide discretion, the exercise of which this Court can only review on specific legal grounds.
      The applicant's fourth ground of complaint is that the Chairman of the Selection Board, although he was an official at the time of his appointment had retired by the time the Selection Board went to work.
      In the application this point was argued in the vaguest terms, it being merely asserted that there was here an incompatibility with the spirit of the Staff Regulations and with the way in which they had generally been implemented. Not surprisingly the Commission found the point difficult to plead to and submitted in the Defence that it should be held inadmissible for failure to comply with Article 38 of the Rules of Procedure of the Court. In the Reply, however, the applicant condescended to particularity. She pleaded that a reading of Article 3 of Annex III to the Staff Regulations led to the conclusion that the members of a Selection Board must all be officials.
      I do not think that that is so.
      The English text of Article 3 is as follows:
      ‘The Selection Board shall consist of a chairman, one or more persons appointed by the appointing authority and an official appointed by the Staff Committee.
      The Selection Board may, for certain tests, be assisted by one or more examiners serving in an advisory capacity.
      Members of the Selection Board shall be chosen from officials whose grade is at least equal to that of the post to be filled.’
      There is there an ambiguity. The first paragraph suggests that, whilst the member to be appointed by the Staff Committee must be an official, the Chairman and the other member or members to be appointed by the appointing authority need not be officials. The third paragraph, however, suggests that all the members of the Selection Board must be chosen from among officials.
      But this ambiguity exists only in the English text. In the French text the third paragraph reads as follows:
      ‘Les membres du jury, choisis parmi les fonctionnaires, doivent être d'un grade au moins égal à celui de l'emploi à pourvoir.’
      The other four texts are in line with the French text So it is clear that the third paragraph does no more than to require such members of the Selection Board as are officials to be of a grade at least equal to that of the post to be filled. It does not require the Chairman and other member or members chosen by the appointing authority to be officials.
      I conclude that the applicant cannot succeed on her fourth ground.
      Her fifth and sixth grounds I propose to deal with together, because they consist of criticisms of the ways in which the practical test forming part of the competition was conceived and conducted.
      To these criticisms the short answer is, in my opinion, as the Commission submits, that they are, so far as the applicant is concerned, irrelevant, because she passed that test. Her failure was in the written test, which she does not criticize. In reply she sought to meet this point by saying that, if the practical test had been different, she might have obtained more marks in it So she might, but this would have made no difference to her failure in the written test and, hence, to her exclusion from the rest of the competition.
      In fairness, however, to the Commission and to the Selection Board, I would add that in my opinion, the applicant's criticisms of the practical test are ill-founded.
      I need not take up Your Lordships' time in describing the test, for a copy of the test-paper is in evidence (Annex 7 to the Defence). My own view is that it was a well designed test Others may take the view that something different would have been better. But that is neither here nor there. It was for the Selection Board to decide on the form of the test, and no one could say that the form of test that it chose, in the exercise of its discretion, was so manifestly unfair or inappropriate as to warrant the exercise by this Court of its jurisdiction to annul the competition.
      Here again there is, underlying the applicant's strictures, the fundamental misconception as to the purpose of the competition with which I have already dealt This is well illustrated by the fact that she makes it an express ground of criticism of the competition that, of the 40 candidates who were successful in securing the available posts in grade B 3, only 21 had until then been in grade C 1, 10 having been in grade C 2 and 9 in grade C3.
      About this, she comments (Application p. 11):
      ‘… ce qui démontre une fois de plus qu'il n'a pu être donné satisfaction que dans une mesure extrêmement faible aux légitimes revendications des fonctionnaires, qui comme la requérante, se trouvaient au grade le plus élevé de la catégorie, et dès lors bloqués dans leur carrière, la plupart du temps également en ce qui concerne les possibilités d'avancement d'échelon.’
      It should hardly need saying that an official who has reached the topmost step in a particular career does not, ipso facto, have a legitimate claim to promotion into a higher one. Whether he or she does have such a claim depends upon the extent to which his or her merits, as compared with those of others, match the needs of the service. This is precisely what the competition in the present case was designed to discover.
      Then the applicant criticizes the Selection Board for having employed, to design the practical test, a private firm of Management Consultants, and for having allowed that firm to collate the results by means of a computer. I cannot see that there was anything unlawful about this, provided of course that the Selection Board itself kept ultimate control over the proceedings.
      It seems that the private firm in question, which was French, produced a translation into German of the test-paper which was so bad that the test had, in fairness to the German-speaking candidates, to be repeated. This was of course unfortunate, but it cannot constitute a ground of complaint on the part of the applicant. Indeed she does not make it so. As I understand it she merely invokes the incident to support her argument that a private firm should not have been employed at all. This goes too far.
      In connexion with her fifth and sixth grounds of complaint the applicant reiterates her application to the Court to order production of the Commission's minutes and other documents, and she adds to it an application for an order for the production of the Selection Board's papers. For obvious reasons I do not think that to accede to those applications would serve any useful purpose. That being so, I hope that I shall not be thought discourteous to Counsel if I refrain from discussing, once more, the circumstances in which it is proper for the Court to call for evidence about the proceedings of a Selection Board.
      That disposes, I think, of the applicant's contentions. I cannot however part with the case without mentioning a point, not relied upon by the applicant, which has troubled me. This relates, not to the terms or conduct of the competition itself, but to the appointments made by the Commission as a result of it.
      One would have expected the Commission, having obtained from the Council the conversion of 80 posts of Category C on its establishment into posts of Category B, expressly on the ground that a proportion of the secretaries on its staff performed duties of Category B importance, to have sought to identify the 80 posts on its staff the duties attached to which most abundantly justified their being filled by Category B officials, and then to have appointed the 80 candidates who were successful in the competition to those posts.
      It seems, however, that the Commission did no such thing, but merely converted the posts occupied by the successful candidates into Category B posts. So the conversion of a post into one of Category B depended, not on the nature of the duties attached to it, but on the proficiency of its occupant. I have the gravest doubts whether this was lawful.
      The point is one that goes to the legality of what was done from the point of view of the public interest, and so, I think, can be taken by the Court of its own motion, regardless of the fact that it does not touch the interests of the applicant. We have not however heard the Commission upon it and Your Lordships clearly could not give effect to it without recalling the parties for further argument and, perhaps, evidence. This I shrink from suggesting that Your Lordships should do at this stage of this case. I suggest only that, if Your Lordships share my doubts, Your Lordships' Judgment should include an expression of them, to serve as a caveat for future cases.
      In the result I am of the opinion that this action should be dismissed, the parties to bear their own costs.