CELEX: 61974CC0080
Language: en
Date: 1975-06-19 00:00:00
Title: Opinion of Mr Advocate General Reischl delivered on 19 June 1975. # Francine Henrich v European Parliament. # Case 80-74.

OPINION OF MR ADVOCATE-GENERAL REISCHL
      DELIVERED ON 19 JUNE 1975 (
            1
         )
      
         Mr President,
      
         Members of the Court,
      The proceedings with which I am concerned today cover to some extent the same subject as that of the recently decided Case 23/74 (Judgment of 12 March 1975, Küster v European Parliament) that is, the conduct of an internal competition — No A/43 — for filling five posts of Head of Division with the European Parliament, Accordingly I can be quite short in describing the relevant facts.
      The present proceedings were instituted by a female official of Parliament, whose progress was quite rapid. On 1 February 1960 she entered the service of Parliament as a member of the auxiliary staff, in 1962 she became a secretary in grade C 2, in the following year administrative assistant in grade B 5 and in 1964 administrator in grade A 7. In 1965 the applicant participated in a competition and as from 1 July 1965 was employed as principal administrator in the Directorate-General for Committees and Inter-parliamentary Delegations, in the Secretariat of the Committee on Relations with the African States and in the Secretariat of the Committee on External Economic Relations. On 1 February 1970 there was an interruption in the applicant's career with the Parliament. As from that date she was seconded to Mr Mansholt's office and thereafter to the Office of the French Minister of Agriculture. From 1 May 1970 she resumed her duties with the Parliament, in the Secretariat of the Committee for Development and Cooperation. Since 1 January 1973 she has been in grade A 4.
      Along with other candidates the applicant participated in competition A/43 to which I have referred. The Selection Board did not, however, enter her name on the list of suitable candidates and accordingly she was not considered at the time when, by decisions made in February 1974, the posts in question were filled.
      This resulted in the applicant on 1 April 1974 making a formal complaint to the President of the European Parliament under Article 90 (2) of the Staff Regulations. In her complaint she argued that the competition in question had been defective for a variety of reasons — I shall go into these later on — and that the appointments made could not therefore stand.
      Not having received a reply to her complaint, she brought an action before the Court on 28 October 1974, claiming that
      
               —
            
            
               the implied rejection of the complaints be declared void
            
         
               —
            
            
               Competition A/43 be ruled contrary to law and accordingly the decisions resulting therefrom on the appointment of five heads of division be annulled.
            
         I would comment as follows on these applications, which in the view of the defendant Parliament ought to be rejected as unfounded:
      
               I —
            
            
               In the first place I shall go into the applicant's complaint which directly relates to the conduct of the appointing authority.
               In these the applicant criticizes
               
                        1.
                     
                     
                        the fact that a single competition was held in respect of five posts intended for different committee secretariats;
                     
                  
                        2.
                     
                     
                        the appointment of the Selection Board by the Secretary-General of Parliament;
                     
                  
                        3.
                     
                     
                        the fact that the appointments were not notified to the Bureau of Parliament.
                     
                  In my views these points give rise to the following conclusions:
               
                        1.
                     
                     
                        That fact that a single competition was held for filling five A 3 posts in the committee service of Parliament cannot in my view be criticized.
                        In this connexion what is crucial is the fact that the appointing authority defines the vocational characteristics, so to speak, of the posts in question. From its point of view the main requirements — that much is clear from the statements of Parliament in the course of the proceedings but equally from the terms used in the notice of vacancy — were organizational, talent, qualities of leadership, coordinating ability and an ability to undertake analyses and syntheses. In the Parliaments opinion these factors equally necessary in the case of all leading posts in the committee service. Once they are present and provided candidates also have a general knowledge of Community law, then the necessary specialization depending on this field covered by the relevant committees can in fact be acquired fairly quickly. It is also important that the posts in question were not necessarily in each case limited to one secretariat. As it was put, one could also conceive their being an amalgamation of the management of several committee secretaries and if only for this reason — that is, so as to ensure flexibility, to which reference has also been made in another case — it would have been wrong in selecting the candidates to place too much emphasis on the area covered by the different committees. If in this context one finally also takes account of the interests of the service — administrative simplification does play a part here, but so does the wish to have a number of applicants available — and if on other hand one also bears in mind the candidates' own interest in being as far as possible on an equal footing as regards the assessment of their abilities, then it is clear that the circumstances criticized by the applicant certainly cannot bring about an annulment of the competition.
                     
                  
                        2.
                     
                     
                        Passing on to the question of the appointment of the Selection board by the Secretary-General of Parliament on the basis of an allegedly unpublished 1971 decision defining the appointing authority, I can be quite short.
                        A similar complaint was after all already made in Case 23/74 (Berthold Küster v European Parliament). In my opinion on this Case I have — on the basis of what I believe was a thorough analysis — described this as unfounded. One can also assume that the Court by implication adopted this view, for it would not otherwise have rejected the claims in that action.
                        I would however, add that, even bearing in mind the additional arguments submitted in this case, one cannot reach a different conclusion. When in this context the applicant refers to Article 25 of The Staff Regulations, which provides even for the pablication of individual decisions, this can be countered by saying that evidently this was provided in the interests of third parties, possibly persons entitled to object thereto, but that it does not logically follow therefrom that this must be so in every case, even in the case of having a general effect. In so far as the applicant refers to Article 90 of the Staff Regulations, pursuant to which complaints must be submitted to the appointing authority, one cannot in my view deduce from this an obligation to publish the relevant decisions, since complaints must in any event be made through one's superiors. Finally, as regards the applicant's reference to Article 110 of the Staff Regulations pursuant to which general provisions for giving effect to the Staff Regulations, which in the applicant's view also includes decisions pursuant to Article 2 of the Staff Regulations, can only be adopted by each institution after consulting its Staff Committee and the Staff Regulations Committee, and such provisions shall be brought to the attention of the staff, the following must in my view be said: even if on the basis of the provision to which I have referred one were forced to agree that the delegation to the Secretary-General of the powers in question must be assumed to be ineffective, despite the fact that — as we have heard — the decision of October 1971 in question in these proceedings had been notified to the office of the President of Parliament, to the Secretary-General, to five Director-General to the Bureau, to the six political groups and to the secretariat of the Personnel Committee, this would still not necessarily involve the conclusion that the acts done on the basis of such authority are ineffective. In this respect I would again refer to the Judgment in Case 46/72 (Judgment of 30 May 1973, Robert De Greef v Commission of the European Communities (1973] ECR 553). This provides that a deviation from the principles of division of functions laid down by the Commission — the qeustion was to define the powers of the appointing authority — ‘can only result in the nullity of an act done by the Administration if it is capable of affecting one of the guarantees given to officials by the Regulations or of affecting the principles of good administration in matters of staff administration’. This can certainly not be the case here, if only by reason of the fact that the Secretary-General of Parliament, even if he lacked authority, only appointed Directors-General to the Selection Board, that is, he clearly ensured an optimum composition which was intended to ensure a competent and conscientious examination of applicants.
                        Accordingly, I continue to take the view that the annulment of the competition cannot be justified by relying on the Secretary-General's lack of authority in this field.
                     
                  
                        3.
                     
                     
                        It must be said at the outset that a similar assessment clearly also applies in relation to the third point of interest in this case, namely the fact that the appointments made were not notified to the Bureau of Parliament. As a matter of fact this circumstance, of which it is not quite clear to me whether it is indeed intended to be a head of claim, cannot be considered for the purposes of ensuring an annulment since without a doubt one is dealing with an event which had to take place after the formal appointment and accordingly can hardly be a condition precedent for the appointment to be effective.
                     
                  
         
               II —
            
            
               As regards the applicant's criticism of the work of the Selection Board — a whole series of aspects are relevant here — one must on the basis of inter alia the information obtained by the Court (the report of the Selection Board, the statements of Director-General Opitz) say this:
               
                        1.
                     
                     
                        As regards a number of criticism I can be quite short since they were already made in the same or similar form in Case 23/74 and were disposed of in that case.
                        
                                 (a)
                              
                              
                                 This applies first to the fact that in the course of the competition there was an interview with the candidates with subsequent assessment of marks and the applicant in the present proceedings regards this as an oral test, which was not referred to in the notice of competition and hence is inadmissible.
                                 In this respect I would refer to my opinion in Case 23/74 in which I said all that is necessary for dealing with this point, that is to say: that such an interview was expressly provided for in the notice of competition, that certain conditions for appointment were especially suitable for testing in this way, and possible inadequacies — such as the short time it took and the impossibility of testing ‘very thorough knowledge’ in the interview applied to an equal extent to all candidates, so that one cannot speak of an infringement of the principle of equality of opportunity.
                              
                           
                                 (b)
                              
                              
                                 The same applies to the taking into account of seniority and age of the candidates.
                                 As we have seen, to do this is not obviously wrong, since in this manner the aspects of ‘experience’ and ‘career prospects’ carry due weight. If on this aspect one also gains the impression that the marks under this heading were perhaps given a weight in the general assessment which was not altogether appropriate, it is on the other hand clear that the Selection Board did not in this way go beyond the margin of discretion which clearly exists, and that one cannot think in terms of arbitrary acts.
                              
                           
                                 (c)
                              
                              
                                 Equally as regards taking into account fitness for the posts involved and paying due regard to special experience relevant thereto, points on which the applicant in the present case also insists, every thing necessary has probably already been said. I would in particular remind the Court of the findings which in the course of Case 23/74 were arrived at in relation to Criteria 6, 7, 8, 9 and 10 of the competition.
                                 If in relation to this point the applicant in the present proceedings argues that in view of her secondment to the office of Mr Mansholt and to that of the French Minister of Agriculture she had recieved wrong — that is to say excessively low — marks, under Criterion 8, then it must be said on the basis of the wording used for this criterion (‘expériences ou activités antérieures présentant une analogie ou constituant une préparation aux fonctions correspondant aux emplois à pourvoir’) one cannot — and this alone is decisive — regard this as an assessment that is clearly wrong. To the extent that in this context she also referred to a de facto occupation of a post in the committee service, it must be said that the first occasion on which she made such reference was in the course of the oral proceedings. Besides, nothing was put before the Court to show that, assuming this was so and that it could in fact emerge from the personal file of the applicant, it had in fact not received due attention.
                              
                           
                                 (d)
                              
                              
                                 Equally, no long comments are required by the fact that in the course of the competition there was some reliance on certificates and documents of political groups or undertakings, that is documents difficult to compare with one another, On this point it was rightly stated — and the Judgment in Case 23/74 must be understood in this sense — in the case of a competition based on qualifications this is inevitable. This factor in itself does not therefore provide a reason for considering the competition procedure to have been defective.
                              
                           
                                 (e)
                              
                              
                                 Finally also there is no need for special comments as regards the attention paid to reports pursuant to Article 43 of the Staff Regulations.
                                 In so far as one is in this context dealing with the attribution of points to candidates in relation to whom no such reports existed, it has already been said in Judgment 23/74 that such fictitious marks are not permissible. At the same time, however, it was emphasized that for the purpose of the pursuant competition this was of no relevance, since the two candidates in question had been appointed.
                                 Besides, as regards the weight to be given to this criterion, the applicant in making her criticism that the reports had not been given adequate weight, overlooks the fact that internal competitions must not be judged in accordance with the provisions of Article 45 of the Staff Regulations. I also have the impression that the reports were not in fact given too low a value since they played a part not only under Criterion No 7 but also under Criteria 9 and 10 and, partially, Criteria 11 and 12.
                              
                           
                  
                        2.
                     
                     
                        If, to summarize, one therefore concludes in relation to the criticisms just dealt with that, just as in the case of the similar criticisms in Case 23/74, they do not permit a finding that the competition was defective, one ought still, in relation to a series of criticisms which were raised for the first time in the present proceedings, add the following remarks:
                        
                                 (a)
                              
                              
                                 The applicant complains that there was no test of ability to express oneself in writing in several official languages of the Community, a requirement mentioned in the notice of competition. She evidently takes the view that this would have required a special examination.
                                 On this point one must, however, say that the competition procedure did not in fact provide for a written examination but — apart from an interview — only that regard be had to qualifications. It is furthermore important that the ability mentioned did not constitute a requirement for appointment to a post The notice of competition merely states… ‘la capacité de rédaction dans plusieurs langues officielles de la Communauté seront prises en considération’ (sic). Finally, one can certainly assume that the reports under Article 43 of the Staff Regulations and other documents in the personal file permitted the necessary conclusions on this point, so that there can be no question of gaps in the examination procedure.
                              
                           
                                 (b)
                              
                              
                                 Equally as regards the assessment of the applicant's capabilities and university degrees I fail to see any errors.
                                 As regards the assessment of the applicant under Criterion 8, I have already given my views in another context. As regards the value placed on the university diplomas, it did not in the course of the proceedings appear that the Selection Board had in the applicant's case deviated from the standards explained by the witness Mr Opitz, the appropriateness of which one cannot seriously doubt.
                              
                           
                                 (c)
                              
                              
                                 Thus there only remains the questions whether — as the applicant assumes — the limit for inclusion in the list of suitable candidates — quite clear to me whether it is indeed intended to be a head of claim, cannot be considered for the purposes of ensuring an annulment since without a doubt one is dealing with an event which had to take place after the formal appointment and accordingly can hardly be a condition precedent for the appointment to be effective.
                              
                           
                  
         
               III —
            
            
               Accordingly I am of the opinion that none of the applicant's criticisms provides evidence that the competition or the appointments that were made were defective.
               The application must accordingly be rejected as unfounded and the question of costs decided under Article 70 of the Rules of Procedure.
            
         (
            1
         )	Translated from the German.