CELEX: 61981CC0067
Language: en
Date: 1982-01-28
Title: Opinion of Mr Advocate General Reischl delivered on 28 January 1982. # Marie Hélène Ruske v Commission of the European Communities. # Official: Admission to internal competition. # Case 67/81.

OPINION OF MR ADVOCATE GENERAL REISCHL
      DELIVERED ON 28 JANUARY 1982 (
            1
         )
      
         Mr President,
      
      
         Members of the Court,
      
      In the present staff case it is necessary to determine whether the decision of the Selection Board for Competition No COM/B/4/80 not to admit Mrs Ruske, a Commission official in Grade C 1, was lawful. That internal competition, organized by the Commission of the European Communities “on the basis of tests”, had as its purpose to constitute a reserve of administrative assistants in the field of records/library work in the career bracket covering Grades 5 and 4 of Category B.
      As is apparent from the conditions for admission set out under heading II.I, various conditions had to be satisfied, according to whether the applicants could provide evidence of:
      
               (a)
            
            
               advanced secondary education with final diploma or certificate, or,
            
         
               (b)
            
            
               secondary education with diploma, or,
            
         
               (c)
            
            
               could fulfil neither of those two educational requirements.
            
         For all three categories, it was specified at points A.3, B.4 and C.3 that a candidate must have been in the service of the Communities for a total of four years on 30 June 1980 as an official or other servant. Candidates with advanced secondary education, with final diploma or certificate, were also required, under point A.2, to possess a diploma as a records clerk or library assistant, or both. Candidates with secondary education, with diploma, and those who had not undergone further education were required, under points B.2 and C.1, to possess a “certificate or other acceptable statement of qualification as a records clerk and/or library assistant”. Furthermore, the latter were required to possess at least three years' or four years' experience under points B.3 and C.2 respectively on 30 June 1980“not necessarily in the service of the Communities, in Category C duties (as principal clerical officer or clerical officer, but not as clerical assistant) or of similar duties relating to the field specified at I. Nature of duties”.
      The applicant, who has been in the service of the Commission since 1960, is able to provide evidence of secondary education with diploma and has been entrusted with records and library work since 1971 as a principal administrative secretary, applied on 18 September 1980 to take part in the competition in question. In her application form, she gave a brief account of her previous experience and pointed out, in particular, that since October 1977 she had been responsible for the administration and organization of the new library of Directorate-General III.
      By letter of 25 September 1980, Mr Desbois, Head of the Recruitment Division and Chairman of the Selection Board informed her that after considering her application, the Selection Board had been unable to admit her to the tests since she failed to satisfy the requirements contained in the provisions governing eligibility set out at points II.I.A.1 and II.I.B.2.
      Accordingly, the applicant sent a note dated 1 October 1980 to Mr Desbois in which, amongst other things, she expressed the view that the reports in her personal file as well as seven years' practical experience as a records clerk and three years' experience as head of the library of Directorate-General III should be regarded as an acceptable statement of qualification within the meaning of the requirements of eligibility set out at point II.1.B.2. She enclosed a letter of the same date from a director in Directorate-General III, Mr Layton, attesting her outstanding ability as a records clerk.
      In the meantime, on 29 September 1980 Mr Mulfinger, Assistant to the Director-General of Directorate-General III had requested Mr Desbois in a confidential note to reconsider the decision and to take into account the fact that the applicant had performed for at least ten years the duties of a records clerk to the complete satisfaction of all her superiors. As was expressly stated in the letter, the applicant was appointed as librarian to Directorate-General III, following its merger with Directorate-General XI, and performed the duties of an official in Category B.
      In his reply of 2 October 1980. Mr Desbois pointed out that in the opinion of the department concerned, records or library work at the level of Category B required special training of a theoretical nature. The relevant joint committee as well as the appointing authority had proceeded on that assumption. The Selection Board was therefore justified in rejecting Mrs Ruske's application, no matter how great her merits were. He added that he had no objection to the communication of that note to Mrs Ruske by way of reply to her note of 1 October 1980.
      Not content with that reply, Mrs Ruske sent another note to Mr Desbois on 14 October 1980 with a request that the Selection Board deal with her complaint.
      On 29 October 1980, she lodged a complaint through official channels under Articel 90 (2) of the Staff Regulations against the decision not to admit her to the competition in question. Since she received no answer within the period prescribed by that provision, she brought an action on 2 April 1981 claiming primarily that the decision of the Selection Board should be declared void and that the competition should be reopened for her, in the alternative that the Commission's implied rejection of her complaint should be declared void, and finally that the Commission should be ordered to pay all the costs.
      My opinion on these claims is as follows:
      The applicant contends in the first place that the decision of rejection lacks an adequate statement of reasons, is based on erroneous considerations, is inconsistent with the content of the notice of competition and is vitiated by a misuse of powers. In the alternative, she submits that the decision also offends against the principle of equality and nondiscrimination inasmuch as the requirements for admission to the internal competition were more stringent than those for Open Competition No COM/B/185 (Official Journal C 134 of 5 June 1980, p. 7) organized simultaneously also with a view to constituting a reserve of administrative assistants in the field of records and library work in the career bracket covering Grades 5 and 4 of Category B.
      
               1. 
            
            
               With regard to the formal complaint concerning the absence of an adequate statement of reasons, the applicant submits that the standard form of communication advising her that she did not satisfy the requirements laid down in the provisions governing eligibility set out at points II.1.A.1 and II.1.B.2 do not meet the requirements which, according to the case-law of the Court of Justice, must exist for there to be a proper statement of reasons. In her opinion, since the requirements for admission were not expressed in very clear terms and there were comparatively few applicants (43), the reasons on which the decision was based should have been more detailed.
               In my opinion, that contention cannot be accepted, especially having regard to the meaning and purpose of the obligation to state reasons. According to the consistent case-law of the Court, which I need not refer to in detail here, decisions of the Selection Board must be appropriately and adequately reasoned primarily in order to enable not only the person concerned but also the Court to determine whether the decision has been arrived at lawfully or whether it is defective. Accordingly, the Court has consistently held, inter alia in its judgments in Joined Cases 4, 19 and 28/78 Salerno and Others (
                     2
                  ) and in Case 112/78 Kobor, (
                     3
                  ) relied upon by the applicant in support of her view, a statement of reasons to be inadequate when the failure to fulfil one of the conditions set out in the notice of competition is referred to in a standard letter only in general terms and that condition is unclear. However, the feature common to all those cases is that the reference to the unfulfilled requirements as a whole did not clearly show which particular requirement was considered not to have been met.
               In contrast with those cases, however, in this case it is quite apparent from the letter of rejection, to which an application form for Competition No COM/B/4/80 was appended, that the Selection Board, after deciding that the requirements specified under heading A — advanced secondary education with final diploma or certificate — had not been met, refused to recognize the documents submitted by the applicant either as certificates or as other acceptable statements of qualification as a “records clerk and/or library assistant” within the meaning of point II.1.B.2.
               Since the requirement specified at point II.1.B.2 was identical to the condition specified at point II.1.C.1, the applicant must have realized, moreover, that in the opinion of the Selection Board she did not fulfil the requirements set out under heading C, even though her failure to satisfy those requirements was not expressly referred to in the decision of rejection.
               Evidently, the applicant also took the Selection Board's decision of rejection to have that meaning, as her note of 1 October 1980 to Mr Desbois makes clear. In particular, it is also quite apparent from the notes sent by Mr Desbois by way of reply to Mr Mulfinger, the contents of which were available to the applicant, that the Selection Board did not intend to accept as a certificate or other acceptable statement of qualification within the meaning of the conditions for admission Mr Layton's “reference” or Mr Mulfinger's attestation of the applicant's ability which were submitted after the decision of rejection had been taken.
            
         
               2. 
            
            
               Since therefore. the contested decision is unassailable on formal grounds, it remains to be considered whether the refusal is not affected by errors of substantive law. In that connection, the applicant's main submission is that it does not follow from the conditions for eligibility that, as the defendant subsequently contended, it was possible to admit only those candidates to the competition who were able to provide evidence of theoretical training in records or library work, or both. Rather, the conditions for eligibility set out at points II.1.B.2 and II.1.C.1 are couched in such general terms that, subject to fulfilment of the other requirements, it would have been necessary to admit every candidate who was able to produce evidence of ability relevant to the field of records or librarianship, or both. In any event, in her view, the opinions of her superiors attesting her ability to perform the tasks described should have been deemed to constitute such evidence.
               Against that, the defendant points to the wide discretion enjoyed by the Selection Board in establishing the requirements for admission to the tests. It has been shown in practice, however, that the requirements laid down are fulfilled only by those candidates who also possess a theoretical knowledge of the subjects in question. Accordingly, the decision was taken to demand proof of theoretical training of whatever kind from candidates seeking admission to the competition. Such a requirement was apparent simply from a careful reading of the wording of the notice of competition and also, in particular, from the scheme according to which the individual conditions for admission were set out.
               In the first place, with regard to the Commission's arguments, it must in principle be accepted that, as the Court of Justice too has emphasized in its judgment in Case 90/74 Deboeck, (
                     4
                  ) the appointing authority enjoys a wide discretion in determining the indications of ability required for the new posts to be created and hence also in establishing, having regard to those criteria and in the interests of the service, the requirements for admission to the tests.
               Accordingly, it cannot be the task of this Court, so long as the limits of that discretion are not overstepped, to usurp the role of the appointing authority.
               Furthermore, it must also be accepted that, as the Court of Justice has made clear in Case 178/78 Szemerey, (
                     5
                  ) in principle there is nothing to prevent requirements for certain posts or certain groups of posts set out in the notice of competition from exceeding the minimum requirements laid down in Article 5 of the Staff Regulations for the categories concerned, irrespective of whether a vacant post is to be filled or a reserve for posts in a specific category is to be constituted. Hence there is no objection in principle to the requirement of evidence of theoretical knowledge for the performance of executive duties in Category B.
               Such a requirement must however be clearly discernible to candidates. That is already apparent from the consideration that, as the Court has consistently held, the work of the Selection Board consists initially in comparing the statements of qualification submitted by the candidates against the requirements set out in the notice of competition. Such a comparison must be carried out on the basis of objective factors, known to all the candidates. (
                     6
                  )
               Therefore the Court has also laid down, in its judgment in Case 255/78 Anselme, (
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                  ) strict requirements concerning the conditions set out in a notice of competition. According to that judgment, the basic function accorded to the notice of competition by the Staff Regulations “is precisely to give those interested the most accurate information possible about the conditions of eligibility for the post to enable them to judge whether they should apply for it” with the result that it is sufficient if the candidate would have been able to discover those conditions from a careful reading of the notice.
               Accordingly, since the case turns on the interpretation of points II.1.B.2 and II.1.C.1 — “Certificate or other acceptable statement of qualification as a records clerk and/or library assistant” — it is necessary to examine whether a candidate would have been able to discover from a careful reading of the notice in question that evidence of having undergone theoretical training in the subjects specified was required.
               In this regard I am unable to agree with the defendant's view to the effect that it is possible to infer from the wording itself that evidence of theoretical training is required. The fact that the above requirement diverges from that stated at point II.1.A.2, in which mention is made of a diploma, indicates, according to the Commission, merely that no training with final diploma or certificate is required under subheadings B and C, but that in such a case a certificate of participation in a theoretical course is sufficient. However, such an interpretation could at most, if at all, be given to the concept “certificate” — “certificat” in the French version and “Zeugnis” in the German version — but is unquestionably untenable as regards the alternative requirement which is intended to qualify the first-mentioned concept. In the French version, the alternative qualification is referred to as an “attestation”, in the English text “other acceptable statement of qualification” whilst in the Dutch text as it stands the qualification required is merely a “bewijs of getuigschrift”. If we proceed on the basis of the German and English versions of the latter requirement, which strike me as being the most specific in meaning, the only inference to be drawn from them is that the evidence of special aptitude in the field of records and library work is required. Those requirements as they are worded are however satisfied by the assessment of the applicant made by her superiors and submitted by the applicant. Even on the
               assumption that evidence of special theoretical knowledge is also required, that certainly does not mean that such knowledge may be acquired solely by attending courses of instruction at particular educational establishments and not by a candidate's own efforts.
               Also militating against the defendant's contention is the fact that a systematic interpretation of the notice of competition does not produce any other result. In particular, it does not necessarily follow that, because under heading A, in addition to general educational requirements, a completed specialized training of a theoretical nature is called for, this is also the case as regards headings B and C. Heading A differs fundamentally from the others inasmuch as apart from advanced secondary education with a final diploma or certificate, no special experience is required. Accordingly, the requirement of additional special training of a theoretical nature serves a purpose in this case. However, the case might be different if, as in headings B and C, relevant experience were required. In such circumstances and in particular in view of the different wording used, a statement of qualification as a “records clerk” or “library assistant” or both, might conceivably take the form of an appropriate certificate issued by the candidate's superiors.
               Moreover, such a certificate providing information on a candidate's particular abilities is not to be confused with evidence of specific experience, as required by points II.1.B.3 and II.1.C.2. Such evidence may be furnished if the candidate shows that he worked in the specific field in question during the requisite period, but without thereby providing a statement of qualification.
               It is already apparent from those considerations that the requirement set out at points II.1.B.2 and II.1.C.1 of the notice of competition, which is not concerned with special theoretical training, may not be interpreted in a way which conforms with the defendant's opinion. This, moreover, is supported by the fact that 39 other candidates who were not admitted apparently also understood the condition laid down in a sense different from that attributed to it by the defendant. Any other interpretation would, on the other hand, be tantamount to reading into the said requirements a number of things not expressly mentioned in them, with the result that the Selection Board's discretion would be virtually unlimited.
               Finally, and especially having regard to the particular circumstances of this case, the exclusion of the applicant from the internal competition by way of tests would not be in conformity with the meaning and purpose of the notice of competition, namely to constitute a reserve of qualified persons. In that regard, I share the opinion expressed by Mr Mulfinger in his letter of 29 September 1980 to the effect that it would be an absurd result if the applicant, who, as is attested in the letter, has performed the duties of an official in Category B for several years in the fields in question to the complete satisfaction of her superiors, were not admitted to a competition for a Category B post, whereas the mere submission of a certificate of participation in a theoretical course of instruction of whatever kind entitled a candidate to take part in the competition on condition that the other requirements were fulfilled.
               In that connection, it is necessary to bear in mind in particular that the purpose of the competition, which is based on tests as specified in the notice, is precisely to assess a candidate's knowledge in the field of “records/library work”. Therefore, a test of the applicant's theoretical knowledge might still have been conducted within the framework of that competition.
               Since therefore, on the basis of a reasonable assessment, point II.1.B.2 of Internal Competition No COM/B/4/80 cannot from any point of view be interpreted as laying down a requirement that candidates must possess a qualification relating to theoretical training in “records” or “library work”, or both, the Selection Board's decision not to admit the applicant to the competition on the ground that she did not fulfil that requirement was based on criteria other than those specified in the notice of competition and thereby infringed the first paragraph of Article 5 of Annex III to the Staff Regulations according to which all the applicants who meet the requirements set out in the notice of competition must be included in the list of candidates.
               In view of that conclusion, it is no longer necessary to consider the other submissions put forward by the applicant.
            
         
               3. 
            
            
               In addition to the annulment of the Selection Board's decision of rejection, it is sufficient for the purpose of safeguarding the applicant's interests to order the competition to be reopened for her, in accordance with her application.
            
         
               4. 
            
            
               Accordingly, I propose that the decision of the Selection Board for Competition No COM/B/4/80 not to admit the applicant to the tests be annulled and that the defendant be ordered to reopen the competition for the applicant. Since the defendant has failed in its submissions, it must bear the costs pursuant to Article 69 (2) of the Rules of Procedure.
            
         (
            1
         )	Translated from the German.
      (
            2
         )	Judgment of 30 November 1978 in Joined Cases 4, 19 and 28/78 — Salerno and Others v Commission [1978] ECR 2403.
      (
            3
         )	Judgment of 5 April 1979 in Case 112/78 — Dorothea Kobor, née Sonne v Commission [1979] ECR 1573.
      (
            4
         )	Judgment of 16 October 1975 in Case 90/74 — Franane Deboeck v Commission [1975] ECR 1123
      
      (
            5
         )	Judgment of 2 October 1979 in Case 178/78 — John Szemerey v Commission [1979] ECR 2855.
      (
            6
         )	Judgment of 14 June 1972 in Case 44/71 — Antonio Marcato v Commission [1972] ECR 427; Judgment of 15 March 1973 in Case 37/72 — Antonio Marcato v Commission [1973] ECR 361; Judgment of 4 December 1975 in Case 31/75 — Mario Costacurta v Commission [1975] ECR 1563; Judgment of 28 February 1980 in Case 89/79 — Francesco Bonu v Council [1980] ECR 553;
      (
            7
         )	Judgment of 28 June 1979 in Case 255/78 — Andrée Anselme née Heirwegh and Roger Constant v Commission [1979] ECR 2323.