CELEX: 61980CC0034
Language: en
Date: 1981-02-05
Title: Opinion of Mr Advocate General Warner delivered on 5 February 1981. # Xavier Authié v Commission of the European Communities. # Staff regulations of officials - Selection boards for competitions. # Case 34/80.

OPINION OF MR ADVOCATE GENERAL WARNER
      DELIVERED ON 5 FEBRUARY 1981
      
         My Lords,
      
      Introductory
      This case is a sequel to Case 19/78 Authié v Commission, which was joined by the Court with Cases 4/78 Salerno v Commission and 28/78 Massangioli v Commission [1978] ECR 2403.
      The facts are these.
      Mr Xavier Authié, the applicant in Case 19/78 and in this Case, was born on 27 October 1952 and is of French nationality. On 1 October 1977 he applied to take part in an open competition held by the Commission to constitute a reserve of candidates for appointment as administrators in Grades 7 and 6 of Category A. He was then, but is no longer, a trainee at the Commission, in the Directorate-General for Economic and Financial Affairs, Directorate for Budgetary and Financial Matters, Division for Preparation of Medium-Term Economic Policy Programmes.
      The competition, COM/A/154, had been advertised by a notice in the Official Journal (C 213/9 of 7. 9. 77) which stated, so far as material to the issues in this case:
      “I — Nature of duties
      Administrative and advisory duties, following general guidelines, relating to the following aspects of Community activity:
      
               1.
            
            
               General administration
            
         
               2.
            
            
               Administration of research activities
            
         
               3.
            
            
               External relations
            
         
               4.
            
            
               Information
            
         
               5.
            
            
               Financial and budgetary affairs
            
         
               6.
            
            
               Social affairs
            
         ...
      III — Eligibility
      ...
      
               B.
            
            
               Special conditions
               ...
               
                        2.
                     
                     
                        Certificates, diplomas, etc. and practical experience:
                        
                                 —
                              
                              
                                 University education, with degree or diploma, in a field appropriate to the option chosen (see Section I). The Selection Board will allow for differences in national education systems
                              
                           
                                 —
                              
                              
                                 At least one year's practical experience, obtained after graduation, relevant to the option chosen in Section I (Nature of duties).
                                 ...
                              
                           
                  
         The Selection Board will draw up a list of candidates who satisfy the conditions set out under heading III B.
      Candidates on this list will be admitted to the written tests”.
      Mr Authié chose the option “external relations”.
      In his application form he tabulated his higher education as follows :
      
                  “Nom et lieu de l'établissement
               
               
                  Aimées d'études
               
               
                  Diplômes et titres universitaires obtenus
               
               
                  Matières principales
               
            
                   
               
               
                  de
               
               
                  à
               
               
                   
               
               
                   
               
            
                  Faculté Sciences Eco, Tours
               
               
                  1969
               
               
                  1971
               
               
                  lre et 2e année de sciences économiques
               
               
                  Économie, Mathématiques
               
            
                  Faculté Sciences Eco, Orléans
               
               
                  1971
               
               
                  1973
               
               
                  Licence es sciences économiques
               
               
                  Économie, Mathématiques, option économétrie
               
            
                  Institut d'études politiques, Paris
               
               
                  1974
               
               
                  1975
               
               
                  2e année de sciences politiques
               
               
                  Économie, droit, relations internationales
               
            
                  Collège d'Europe
               
               
                  1976
               
               
                  1977
               
               
                  Certificat des hautes études européennes
               
               
                  Économie de l'intégration européenne et relations extérieures”
               
            With his application he produced two certificates, one from the Faculté de Droit et des Sciences Économiques of the University of Orléans, showing that he had passed “L'examen de quatrième année de licence es sciences économiques ‘Option économétrique’ avec la mention passable lui conférant le grade de licencié es sciences économiques”; and a second from the Collège d'Europe showing that he had “participé aux cours et aux travaux du programme d'études européennes à dominante économique” and had obtained the “Certificat de hautes études européennes”.
      By a letter dated 5 December 1977, the Directorate-General for Personnel and Administration of the Commission notified Mr Authié that the Selection Board had decided not to put him on the list of candidates admitted to the written tests. The reason for that decision was stated to be: “Vos titres ou diplômes n'ont pas été jugés conformes aux qualifications requises”. On 19 December 1977 Mr Authié wrote to the secretary of the Selection Board asking for further explanation. He received by way of reply a telephone call from the chairman of the Selection Board, who told him that his studies had not been appropriate to the option he had chosen and who advised him to consider entering a competition for economists such as one that had been advertised the previous year (COM/A/143 — see OJ C 217/8 of 16. 9. 76). The chairman of the Selection Board was Mr Yves Desbois, who was the Head of the Recruiting, Appointments and Promotion Division of the Directorate-General for Personnel and Administration.
      Case 19/78 was an action brought by Mr Authié to challenge that decision.
      In that action Mr Desbois gave evidence, in the course of which he made it clear that, in his opinion, the competition that Mr Authié had applied for was not for economists (“ce concours ne s'adressait pas aux économistes” — Minutes of Evidence, p. 12). Earlier he had said:
      “Nous venions de terminer, à la Commission, un concours dans le domaine économique, et il va de soi que si un candidat pouvait faire état, entre autres, d'un doctorat en sciences économiques — je donne un exemple — avec des options telles que celles qui figuraient dans le concours qu'on venait de terminer, il y aurait un problème d'admission sur titres, simplement dans le titre. Il fallait voir ensuite l'expérience et combiner les deux pour essaver d'apprécier si, non seulement la formation de base (une formation d'économètre pur par exemple), mais une expérience également, confirmait cette formation. A ce moment-là, il y avait non concordance entre la candidature et l'option ou le concours.”
      (Minutes, pp. 6-7)
      Later, when asked what university degrees or diplomas were considered appropriate to the “external relations” option, he answered:
      “Relations extérieures, elle est assez difficile à définir. Peut-être faut-il la définir par le négatif. Ce n'était pas les relations économiques ou commerciales. Dans ce concours, c'était plutôt l'organisation, les rapports entre les diverses organisations, la connaissance de tous les organes avec lesquels la Commission, entre autres, ou les Communautés doivent traiter, la façon dont ils fonctionnent et non pas l'esprit économique ou commercial qui figurait dans l'autre concours.”
      (Minutes, p. 16)
      When asked to what options a “licence en sciences économiques avec option économétrique” had been considered appropriate, he answered “None”. (Ibid.)
      It also emerged from Mr Desbois's evidence that the Selection Board, in order to overcome linguistic difficulties and to give effect to the requirement in the notice of competition that it should allow for differences in national education systems, obtained the assistance of examiners, pursuant to Article 3 of Annex III to the Staff Regulations.
      The Selection Board consisted of three people, Mr Desbois himself, who was French, a Mr Saville, who was British, and a Mr Gherardi, whose nationality is not clear from the papers before us but who, at all events, was not German (see Annexes 1, 2 and 3 to the Rejoinder). In the result the applications of German candidates were left to be scrutinized by examiners, who, it appears, did not share Mr Desbois's view that the competition was not for economists, or at all events did not give effect to it. Some candidates with German degrees in economics were admitted to the written tests, though, so we were told by the Commission, they all failed those tests.
      The Court annulled the decision on two grounds, first that the Selection Board had left too much to the examiners, whose role had exceeded the limits of mere assistance in an advisory capacity and, secondly, that the Selection Board's statement of its reasons for the decision was inadequate.
      The Court held that Mr Authié's rights would be sufficiently protected if the Selection Board reconsidered its decision, without its being necessary to call in question the entire results of the competition.
      On 9 January 1979, the Selection Board met again to reconsider the decision. It was composed of the same persons as in 1977. Its report, dated 11 January 1979, is, so far as material, in these terms:
      “M. Authié X. a choisi le domaine ‘Relations extérieures’. Il a déclaré:
      
               —
            
            
               être titulaire d'une Licence es sciences économiques obtenue à l'Université d'Orléans le 29 juin 1973 et d'un Certificat de hautes études européennes — à dominante économique — avec le grade B, délivré le 27 mai 1977 par le Collège d'Europe;
            
         
               —
            
            
               avoir suivi la deuxième année d'étude de l'Institut d'Études Politiques de Paris (1974/75).
            
         L'intéressé a par ailleurs été admis à effectuer un stage dans les services de la Commission à partir du 16 septembre 1977.
      Les éléments contenus dans le dossier de candidature font ressortir que les études universitaires de M. Authié ne sont pas en rapport avec le domaine des relations extérieures du concours général COM/A/154, en ce qu'elles témoignent de connaissances acquises en matière essentiellement économique, avec une spécialisation en économetrie.”
      The board accordingly confirmed its earlier decision.
      Mr Authié was informed of this by a letter dated 15 January 1979, which quoted the passage from the Board's report that I have just read. On 13 April 1979, Mr Authié wrote to the Commission making a formal complaint under Article 90(2) of the Staff Regulations against the Board's decision. His letter was received at the Secretariat-General of the Commission on the same day. The four-month period prescribed by Article 90(2) accordingly expired on 13 August 1979. But, on 23 October 1979, i.e. before the expiration of the period for lodging an appeal prescribed by Article 91(3) of the Staff Regulations, the member of the Commission responsible for personnel matters wrote to Mr Authié expressly rejecting his complaint, on the ground that the Commission lacked the power to annul or amend a decision of a selection board. By virtue of the proviso to Article 91(3), the period for lodging an appeal thereby started to run afresh. Mr Authié was then resident in Paris, so that, with the extension on account of distance, it would run at least until 29 January 1980. The present action was commenced on 25 January 1980.
      In it Mr Authié seeks essentially a declaration that the Selection Board's decision of 9 January 1979 was void and an order that the competition be reopened for him.
      Admissibility
      The Commission contends that the action is inadmissible. It does so, not on the ground that the requirements of Article 91(3) were not satisfied, but in reliance on the well-known rule, established by numerous decisions of this Court, that, since an appointing authority has no power to alter a decision of a selection board, a person aggrieved by such a decision may bring his action before the Court without first submitting a complaint under Article 90(2) of the Staff Regulations. The Commission argues that, that being so, Mr Authié should have brought his action within three months of the notification to him of the decision of 9 January 1979, so that this action is out of time. The Commission points out that Mr Authié cannot have been unaware of the rule, since it is referred to in the judgment in Cases 4/78, 19/78 and 28/78, albeit not in relation to his own case.
      In the opinion that I delivered in Case 255/78 Anselme v Commission [1979] ECR at pp. 2338-2341 I reviewed the authorities on that point as they then stood: Case 44/71 Marcato v Commission (the second Marcato case) [1972] 1 ECR 427, Case 37/72 Marcato v Commission (the third Marcato case) [1973] 1 ECR 361, Case 31/75 Costacurta v Commission [1975] 2 ECR 1563, Case 9/76 Morello v Commission [1976] 2 ECR 1415, Case 7/77 Von Wüllerstorff und Urbair v Commission [1978] ECR 769, Cases 4/78, 19/78 and 28/78, Case 112/78 Kobor v Commission [1979] ECR 1573 and Case 117/78 Orlandi v Commission, ibid. p. 1613. From that review I deduced that, notwithstanding the rule in question, if the person concerned did submit a complaint under Article 90(2), his doing so could not result in his action becoming time-barred, whether or not he awaited the outcome of the complaint before appealing to the Court. In the Anselme case itself the Court found it unnecessary to deal with the point because the Commission, whilst raising it, had not formally taken it. There has, so far as I am aware, been no subsequent decision of the Court invalidating that conclusion. Nor has anything been said in this case to persuade me that it was wrong.
      The Commission, for reasons that remain to me obscure, emphasized that Mr Authié was not an official. Articles 90 and 91 of the Staff Regulations refer, however, not to “an official” but to “any person to whom these Staff Regulations apply”, and a candidate in an open competition held under the Staff Regulations is undoubtedly a person to whom those Regulations apply. If authority were needed for that proposition, it is to be found in Case 23/64 Vandevyvere v Parliament [1965] 1 ECR 157.
      In my opinion, therefore, this action is admissible.
      I cannot, however, leave the question of admissibility without mentioning a point that has struck me, though neither on behalf of Mr Authié nor on behalf of the Commission was anything said about it. The notice of competition stated that the reserve list constituted as a result of the competition would be valid until 31 December 1978, unless extended. We do not know whether the validity of that list was extended and, if so, to what date. It may be therefore that this action, though not inadmissible on the ground pleaded by the Commission, is futile. Since, however, that point has not been taken on behalf of the Commission, I say no more about it.
      Substance
      On the substance of the case seven contentions were advanced on behalf of Mr Authié:
      
               (i)
            
            
               That the statement of the Selection Board's reasons for its decision was inadequate because it did not explain why Mr Authié's university studies were not in a field appropriate to the External Relations option.
            
         
               (ii)
            
            
               That, in any case, Mr Authié's studies did in fact conform to the requirements of the notice of competition for that option, so that the reasons given by the Selection Board did not justify its decision.
            
         
               (iii)
            
            
               That the Selection Board had misused its powers in order to give effect to Mr Desbois's wish that economists should be excluded from the competition.
            
         
               (iv)
            
            
               That, in so far as the Selection Board may have considered that Mr Authié's studies were those of an econometrist, whereas econometrics had been merely his final specialization, his basic studies being much more general, and may, in that case, have taken into account his experience, the Selection Board disregarded his right to be heard (“les droits de la défense”) because it did not advise him of the fact or state it in its reasons.
            
         
               (v)
            
            
               That the Selection Board disregarded the principle of equal treatment and non-discrimination in that it did admit to the written tests some candidates whose degrees were in economics.
            
         
               (vi)
            
            
               That, in that connexion, the Selection Board disregarded the terms of the notice of competition, which required it to allow for differences in national education systems.
            
         
               (vii)
            
            
               That, in accordance with the maxim “nemo judex in re sua”, the Selection Board, when, as a result of the judgment of the Court in Case 19/78, it came to reconsider the decision excluding Mr Authié from the competition, ought not to have been composed of the same persons as before. (This contention was first advanced in a different and wider form in the reply. It had not been advanced in the application because the composition of the Selection Board on the second occasion was revealed by an annex to the defence, namely the Selection Board's report dated 11 January 1979, to which I have referred. Counsel for Mr Authié narrowed the contention down and clarified it at the hearing.)
            
         I think it convenient to consider first contention (ii).
      The question here, to be quite precise, is whether it was open to the Selection Board to take the view that the degree awarded to Mr Authié by the University of Orléans, as described in the certificate accompanying his application, failed to comply with the requirement in the notice of competition that it should evince a university education in a field appropriate to the option “External Relations”. One can leave out of account Mr Authié's subsequent studies at the Institut d'Études Politiques in Paris and at the Collège d'Europe in Bruges, the first of which had not yielded any degree or diploma, and the second of which had been treated by the Selection Board as constituting “practical experience” within the meaning of that phrase in the notice of competition. It seems that, had that concession not been made to him, Mr Authié could not have satisfied the requirement of “at least one year's practical experience, obtained after graduation, relevant to the option chosen”.
      I have no hesitation in saying that, in my opinion, Mr Desbois was wrong in taking the view that a degree in economics was inappropriate to the option “External Affairs”. No doubt Mr Desbois was entitled, in his capacity as Head of the Recruiting, Appointments and Promotion Division, to hold and to urge the view that the competition ought not to be for economists and that the posts to be filled as a result of it, in so far as they were to be concerned with the conduct of the external affairs of the Community, ought not to be filled by economists. But, in his capacity as chairman of the Selection Board, his duty was to interpret and apply the terms of the notice of competition objectively, and independently of his personal views as to what it should or should not have contained. The notice of competition said nothing about economists being excluded. Nor is it in my opinion a tenable view that a degree in economics is necessarily an inappropriate academic qualification for the performance of duties relating to the Community's external affairs — which was all that the notice of competition, in terms, called for.
      Mr Authié's degree was, however, a degree in economics with a specialization in econometrics. That, in my opinion, could make a difference. A reasonable selection board could, in my opinion, take the view that such a specialization made the degree inappropriate. I do not say that any selection board would do so. But the point is, in my opinion, one of a marginal kind, on which it is for a selection board to exercise its judgment, and on which it is no part of the function of this Court to substitute its own judgment for that of the Selection Board. Counsel for Mr Authié urged upon us that the specialization in econometrics was no more than something added to a general economics degree. I prefer the view put forward by Counsel for the Commission at the hearing, in answer to a question of mine, that the Selection Board could not sever the degree but must consider it as a whole.
      On that footing I turn back to contention (i).
      As I ventured to point out in Costacurta v Commission [1975] 2 ECR 1563, at p. 1578, following in that respect what Mr Advocate General Mayras had said in the third Marcato case [1973] 1 ECR 361, at p. 376, the purpose of requiring a selection board to state its reasons for excluding a candidate from a competition at the initial stage is twofold. It is first to enable the candidate himself to know those reasons and so to enable him, if appropriate, to challenge them. Secondly it is to enable this Court, if called upon to do so, to exercise its powers of judicial review, which, in this field, means to enable it to see whether the Selection Board has made any material error of fact or of law, or possibly has misused its powers.
      In the present case the crucial part of the Selection Board's statement of its reasons for its decision of 9 January 1979 was that Mr Authié's studies had not been appropriate “en ce qu'elles témoignent de connaissances acquises en matière essentiellement économique, avec une spécialisation en économétrie”.
      I have, after some hesitation, come to the conclusion that that statement is ambiguous and does not enable the Court to say confidently whether the Selection Board's decision was or was not based on lawful reasons. The statement, particularly having regard to the use of the word “essentiellement”, could mean that the essential reason for Mr Authié's rejection was that his degree was in economics, the specialization in econometrics being a makeweight — thus giving effect to Mr Desbois's personal views — or it could mean that the reason was that Mr Authié's degree was in economics with a specialization in econometrics, the specialization in econometrics being an essential feature of it. On the former interpretation the decision must in my opinion be held void; on the latter not.
      If I am right about that, Mr Authié is entitled to succeed in this action, on the ground that the Selection Board's statement of its reasons was inadequate.
      I can deal more shortly with Mr Authié's other contentions, except perhaps the last.
      Contention (iii) has to do, Your Lordships remember, with misuse of powers. Contention (iv) is based on surmise as to what the Selection Board may have thought about Mr Authié's university degree, and contains a suggestion that the Selection Board may have disregarded a right for Mr Authié to be heard. Those contentions go at most, in my opinion, to reinforce the conclusion that the Selection Board's statement of its reasons was inadequate.
      Contentions (v) and (vi) were based on the fact that some holders of German degrees in economics had been admitted to the written tests. That might conceivably be relevant if the fact was that the Selection Board's reason for rejecting Mr Authié's candidature was simply that his was a degree in economics. But it would not be relevant if the reason for his rejection was his specialization in econometrics. So those contentions too, in my opinion, only reinforce contention (i).
      There remains contention (vii), on which great stress was laid by Counsel for Mr Authié at the hearing. That contention is very much in point because, if Your Lordships should share my view and send this case back to be reconsidered again by the Selection Board, the question will arise what the composition of the Selection Board should then be.
      As to that Counsel for Mr Authié cited two cases in this Court, namely Case 26/63 Pistoj v Commission [1964] ECR 341 (Rec. 1964, p. 673) and Case 80/63 Degreef v Commission [1964] ECR 391 (Rec. 1964, p. 767). As regards the latter case Counsel confessed that he relied, not on what appeared from the report of the case, but on his recollection of what had in fact happened as a result of the judgment of the Court. In my opinion neither case supports the contention.
      Counsel for Mr Authié also referred to the practice of certain appellate courts, when they quash a decision of a lower court or tribunal, to send the case back for re-hearing by a different, or differently composed court or tribunal at the lower level. That practice is, however, by no means uniform and it does not, in my opinion, evince a hard and fast rule. To give but one example, the practice is followed by the High Court of England and Wales in some cases but not in others.
      The composition of a selection board under the Staff Regulations has to be determined in accordance with Article 3 of Annex III to those Regulations. No doubt there is power, in an emergency, in a case of force majeure, to alter its composition even during the course of the competition, for instance if (as was suggested to us by Counsel for Mr Authié) a member of the selection board should die. But I know of no power for this Court, or for the appointing authority, to alter the composition of a selection board simply because it is found to have made a mistake and is required, in consequence, to reconsider a decision it has made. I need not consider what the position would be if a member of a selection board were found guilty of lack of integrity, for no suggestion of that sort is made against any member of the Selection Board in this case.
      Conclusions
      In the result, I am of the opinion that Your Lordships should :
      
               (i)
            
            
               Declare that the Selection Board's decision of 9 January 1979 was void because inadequately reasoned;
            
         
               (ii)
            
            
               Order the Commission to pay the costs of this action.
            
         I do not think that the other relief claimed by Mr Authié would be appropriate.