C-74/77
ECLI:EU:C:1978:89
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JUDGMENT OF THE COURT (SECOND CHAMBER) OF 25 APRIL 19781
Magdalena Allgayer (née Parzinger) v European Parliament
Case 74/77
1. Officials — Recruitment — Competition — Application — Documentary evidence of qualifications — Assessment by the Selection Board for the competition (Staff Regulations of Officials, Annex III, Art 5)
2. Officials — Recruitment — Competition based on qualifications — Application form — Must be accompanied by qualifications (Staff Regulations of Officials, Annex III, Art. 2)
1. It is for the Selection Board to such a competition, the evidence of determine whether the documents candidates' qualifications must be produced by a candidate are such as enclosed with the application form, to justify that candidate's being without its being necessary for the allowed to enter for the competition. Selection Board to call upon can didates to produce such evidence. 2. In the case of a competition based on qualifications, owing to the nature of
In Case 74/77
Magdalena Allgayer (née Parzinger), an official of the Commission of the European Economic Communities, residing at 1, Rue d'Etalle, Luxembourg, represented and assisted by Mr Kratz, Advocate of the Merzig Bar,
applicant, v
European Parliament , represented by its Secretary General, Hans-Robert Nord, assisted by Alex Bonn, Advocate of the Luxembourg Bar, with an address for service in Luxembourg at the Chambers of Mr Bonn, 22 Rue de la Côte d'Eich, defendant,
1 — Language of the Case: German.
JUDGMENT OF 25. 4. 1978 — CASE 74/77
APPLICATION for the annulment of a decision of the defendant refusing to allow the applicant, having regard to her qualifications, to take the written test of competition PE/19/A (German-language Administrators) and for an order requiring the defendant to take another decision having regard to all the applicant's qualifications,
THE COURT (Second Chamber)
composed of: M. Sørensen, President of Chamber, Lord Mackenzie Stuart and A. Touffait, Judges, Advocate General: G. Reischl Registrar: A. Van Houtte
gives the following
JUDGMENT
Facts and Issues
The procedure and the conclusions and (c) social science; arguments of the parties may be summarized as follows: (d) economics;
(e) the arts;
I — Facts and procedure (f) a comparable discipline, or equivalent professional experience." The European Parliament published on 1 February in the Official Journal of The selection on the basis of the European Communities (Official qualifications was described in these Journal C 24, p. 20) Notice of Open words: Competition No PE/19/A organized for the purpose of drawing up a reserve "Marking: 0 to 40. list for the recruitment of German- After deciding the criteria by which to language administrators. The. assess candidates' qualifications, the competition was to be based "on Selection Board will examine the qualifications and tests". The conditions qualifications of each candidate. To be of eligibility for the competition admitted to sit the tests, each candidate included the degrees or diplomas must obtain an overall mark of at least required: 60 % of the possible total." "University degrees in: Section II (Procedure) of the general (a) law; conditions governing open competitions (b) political science; reads:
ALLGAYER v PARLIAMENT
"Candidates shall complete an applicant's qualifications and awarded application form prescribed by the her 22 marks when in fact candidates appointing authority; they may be had to obtain a total of 24 marks. The asked, if necessary, to furnish additional applicant was notified by letter of 3 documents or information." June 1977 that she could not be admitted to sit the tests. After the Section III (Applications) of the said general conditions reads: applicant had made contact with the Chairman of the Selection Board in "Candidates shall complete and sign the connexion with the nature of the application form contained in this issue criteria used and the reasons why her of the Official Journal and send it to application 'had not been accepted she the address indicated in the notice of received on 27 June 1977 from the said
competition. In addition, they are Chairman an answer pointing out that, invited to enclose a curriculum vitae as provided in Article 6 of Annex III of supplementing or amplifying, if the Staff Regulations, the proceedings necessary, the information entered on of the Selection Board were secret and the application form. that he could not therefore give her the information which/she desired. Documents relating to academic quali The applicant by an application of 23 fications may be forwarded separately. June 1977 appealed against the letter of Since these documents cannot be 3 June. That application was registered returned it is advisable to send certified at the Court's registry on 29 June 1977.
true copies. No photocopies will be On the same dates an application was accepted unless they bear an made and registered at the Court for unphotocopied certification that they the adoption of an interim measure are true copies. Only copies of ordering the defendant to defer open diplomas, degrees or other evidence of competition PE/19/A pending qualifications corresponding to the judgment in the case. The applicant highest level of studies completed by the acknowledged in her letter of 7 July candidate need be sent." 1977 that her application for the adoption of an interim measure was Mrs Magdalena Allgayer, an established devoid of object because the written test official, in Category B, with the had already taken place; the defendant
Commission of the European Com took note that the applicant had munities sent in an application form for withdrawn this application and at the competition PE/19/A. She enclosed same time asked the Court to order her with that application form copies of her to pay the costs thereof. junior high school diploma (Mittlere Reife), of her final school leaving After hearing the report of the Judge- diploma (Abitur) and of her university Rapporteur and the views of the degree (Degree in business studies of Advocate General the Court decided to the Ludwig-Maximilian University of open the oral procedure without any Munich). preparatory inquiry.
However, it decided to request, by a letter of the The Selection Board by a letter of 31 Registrar of 27 January 1978, the May informed the applicant that her name was on the list of candidates defendant to forward to the Registry before 9 February 1978: satisfying the requirements laid down by the notice of competition. After the "1. The selection criteria which the Selection Board had decided on the Selection Board adopted in criteria by which it would assess can accordance with the notice of open didates' qualifications it assessed the competition and on the basis of
JUDGMENT OF 25. 4. 1978 — CASE 74/77
which it has to assess candidates' II — Conclusions of the parties qualifications; 2. The Selection Board's report on the The applicant claims that the Court first stage of the selection of can should: didates, that is to say on the assessment of their qualifications." "1. Annul the defendant's decision of refusal of 3 June 1977 as being The European Parliament, in reply to illegal; the Registrar's letter, lodged on 8 2. Require the defendant to ask for all February 1978 the reasoned report of the applicant's qualifications and to the Selection Board which includes take a new decision within the under the tide "Determination of the limits of the discretionary power to criteria" the following passage: be determined by the Court." "At its meeting on 20 April 1977 the Selection Board adopted the following The defendant contends that the Court should: criteria by which it proposes to assess candidates' qualifications, giving the "1. Dismiss the application as inad reasons for its choice: missible and in any event as 1. University degree or unfounded; equivalent profes 2. Make an order as to costs in sional experience ... 0- 20 marks accordance with the applicable 2. Additional university provisions:" degree (Zweites Staatsexamen — Second state exami III — Summary of the submissions nation) and/or and arguments of the parties doctorate 0- 5 marks during the written proce dure 3. Studies, probationary periods and experi ence relating to the A — Admissibility European Institutions 0 - 7 marks The defendant acknowledges that by 4. Actual professional virtue of the Court's judgment of 31 March 1965 in Case 23/64 (Van experience (proba tionary periods devyvere v European Parliament [1965] during studies shall ECR 157) in open competitions even candidates from outside the not be taken into account) 0- 8 marks Communities have a right of action if there is any infringement of the rules (one mark will be relating to the procedure for awarded for each competitions. Furthermore, notwith year during the first standing the absence of a prior decision four years and half a on a complaint within the meaning of mark for each ad Article 90 of the Staff Regulations an ditional year) appeal against the decision of a Selection Board shall lie in a direct Total 40 marks application to the Court according to the judgment of 14 June 1972 in Case According to the notice of competition 44/71 (Marcato); however, the appeal in candidates awarded less than 24 marks this case concerns the actual procedure will be eliminated." of the competition. In any case the
ALLGAYER v PARLIAMENT
admissibility of the application cannot "later". Thus the applicant waited for be accepted "because the applicant is the opportunity to produce to her not entitled in this case to take legal advantage and at the request of the action"; in fact the application form was Selection Board (within the meaning of not accompanied by a curriculum vitae the second sentence of Article 2 of and a photocopy of a university degree Annex III to the Staff Regulations candi certified as a true copy by an dates "may be required to furnish unphotocopied certification; a formal additional documents or information") check of such an application form must the assessment made in connexion with have led to the candidate being her establishment in Category B and excluded and this makes her application also the certificate relating to a period inadmissible. spent at a school for further vocational The applicant refuses to accept this last training. The text of the notice of argument since the Selection Board competition is therefore ambiguous both accepted her application and thereby with regard to its wording and with waived the above-mentioned formal reference to the Staff Regulations defect. themselves.
The defendant points out that the The defendant replies that Article 5 of applicant does not deny that her Annex III to the Staff Regulations, application form was defective. The confirmed by the Vandevyvere judg defect is all the more serious because ment, which has been mentioned pre candidates were given a clear warning viously, specifies the procedure for in the general conditions of the notice selection on the basis of qualifications of competition; the applicant therefore and states that this procedure has is acting contra factum suum. already been used. Furthermore, the notice of competition is not ambiguous, B — The substance of the case because its text refers to the minimum conditions of eligibility (list of requisite 1. Selection on the basis of qualifications or equivalent experience; qualifications age etc. ...) whereas the text of the The applicant, without disputing the general conditions refers to the documents to be enclosed with the validity of the procedure, points out that this is the first time that a European application form (copies of diplomas) institution has in an open competition which enable the qualifications of each selected on the basis of qualifications candidate to be actually assessed. 'With the candidates eligible to take the regard to the last point, if Section III of written and oral tests. However, the the general conditions is read carefully, general conditions relating to com it is clear that the "documents" (in the petition PE/19/A only recommend that plural) "relating to academic qualific candidates should send a copy or copies ations" must be produced and that at of the degree or diploma corresponding least one of the qualifications must be a to the highest level of studies completed university qualification. The recom by them. That wording does not permit mendation to produce the diploma the supposition that "other certificates corresponding to the highest level of which could prove her qualifications" studies completed by the candidate had to be enclosed with the application enables unnecessary expense to be form. Authentic qualifications — like avoided but ensures that documents knowledge of languages — are not certifying studies completed in a branch proved by an application form and its different from that of the highest enclosures and candidates must be diploma are not disregarded; the allowed to produce evidence thereof requirement that in any particular
JUDGMENT OF 25. 4. 1978 — CASE 74/77
branch only the highest diploma should applicant stresses that to organize a be produced is explained by the fact competition based on qualifications is that in order to reach the higher level it "incomprehensible and impossible". If a is necessary to have obtained the university degree was all that was diplomas for the lower levels. The necessary in order to be able to send in applicant evinced her desire to produce an application form, how can it be all the requisite documents by enclosing assessed in accordance with five distinct documents which were useless and criteria? How is it possible to accept which she obviously had in view of her that candidates who have not attended
university diploma. On the other hand, university might be eligible — a fan she omitted to supply the documents which the applicant offers to prove — if which she now produces in support the criteria for selection are not known? of her application. These are the The applicant in her reply lays stress on documents which she should have the fact that the Chairman of the enclosed with her application form in Selection Board should not have order to prove that she had abilities concealed the number, still less the other than those falling within the nature of the criteria for selection. branch in which she has reached
university level. Consequently the The defendant calls attention to Article applicant is the victim of an oversight 6 of Annex III to the Staff Regulations for which the Selection Board should which provides that the proceedings of the Selection Board shall be secret. It not be held to be liable, especially in the offers to inform the Court of the four — case of a competition based on and not five — "secret" criteria used in qualifications and tests for which more than a thousand candidates entered. assessing qualifications. Finally, there was no excuse for failing The defendant protests against the to produce a curriculum vitae in view of allegation that subjective considerations the full particulars concerning the played a part in the selection.
There is production thereof in the general no specific, discriminatory fact which conditions of the notice of competition. makes this submission credible. In her reply the applicant maintains that Moreover the defendant stresses that it would have been reasonable to apply notes made on the diplomas could not the Staff Regulations by inviting a have any relevance, since the marks limited number of candidates to furnish awarded vary according to the the "additional documents or infor universities and disciplines. mation" which they had not furnished of their own accord.
3. Additional qualifications to be put forward by the applicant 2. The application of "secret" criteria for selection. The applicant takes the view that the additional qualifications which she The applicant points out that she had a produced in support of her application telephone conversation with the (certificates relating to language Chairman of the Selection Board — which her husband followed — and sent courses; a certificate relating to a period spent in a vocational training establish him a registered letter, reply paid, in order to find out whether five secret ment; report on the expiry of her criteria had been used for the probationary period with the Commission) ought to have modified assessment of candidates' qualifications. the decision of the Selection Board in As the Chairman of the Selection Board
this connexion. replied that the proceedings of the Selection Board were secret the The defendant replies:
ALLGAYER v PARLIAMENT
— That knowledge of languages was awarded 22 out of the 24 marks which not taken into consideration when had to be obtained when her assessing the qualifications; qualifications were assessed. — That the same applied to a period of The defendant first of all deals with the teacher-training before the end of argument concerning the parallel her studies; studies. Why did not the applicant — A report on the expiry of her mention them at No 12, "Higher probationary period served in career education", of her application form? bracket B 5, where the experience Why did she not produce that diploma acquired was not post-university and instead of a junior high school diploma, could not therefore be treated as which was of no relevance? That was professional experience, had no merely a certificate to the effect that she effect on the Selection Board's had specialized in the main educational decision. subjects. Taking into account the With regard to the latter point the criteria applied by the Selection Board applicant replies that "equivalent pro the latter's assessment would not in any fessional experience", by definition, is case have been modified by her passing experience acquired in addition to or the "preliminary State examination for before obtaining a university degree. the test to ascertain competence for a The applicant emphasizes that, if the post as teacher in secondary education". contrary were to be accepted, part of Finally, the particulars of a candidate's her professional experience has been professional experience are not matters acquired while she was specializing and which are to be subjectively assessed after studying banking and political either by the Selection Board or by the economy. candidate. They are objective factors. Her period of teacher-training was not connected with her studies in political economy. They were parallel studies IV — Oral procedure which the applicant did not mention for the very good reason that she only put The hearing during which the parties forward documents relating to the reaffirmed their conclusions and necessary qualifications for a post in the pursued the arguments adduced during higher category. the written procedure took place on 16 Knowledge of languages and marks obtained in examinations are factors for February 1978. assessment which are of some con The Advocate General delivered his sequence, but the applicant, notwith opinion at the hearing on 15 March standing the content of her file, was 1978.
Decision
1 By an application lodged on 29 June 1977 the applicant asked the Court first to annul the defendant's decision of 3 June 1977 refusing to allow her to take the written test of open competition PE/19/A intended for the drawing up of a reserve list for the recruitment of German-language
JUDGMENT OF 25 4 1975 — CASE 74/77
administrators in grades 7 and 6 of Category A and secondly to require the defendant to ask for all the applicant's qualifications and, after assessing them, to take a new decision with regard to her.
2 The defendant contends that the Court should dismiss the application as inadmissible and in any event as unfounded.
Admissibility
3 The defendant points out that the applicant, contrary to the specific instruc tions contained in the notice of competition, sent a photocopy of her university degree which had not been certified as a true copy by a person authorized to do so and omitted to enclose her curriculum vitae with her application form.
The defendant claims that these facts should have led the Selection Board to refuse the applicant's application for the open competition and that a judicial review of the formal legality of the competition procedure would lead to the exclusion of the candidate on the basis of that omission, her appeal becoming for that reason inadmissible.
4 The instructions for filing applications contained in the notice of open competition merely lay down that "documentary evidence of their education" should be produced.
The instructions contained in the notice of competition properly so-called, that certified true copies of diplomas or other academic qualifications should be sent, only amount to practical advice to candidates, to whom any documents produced are not returned.
It is therefore for the Selection Board to determine whether the documents produced by a candidate are such as to justify that candidate's being allowed to enter for the competition to be held.
In this case the Selection Board expressly authorized the applicant (with whose curriculum vitae it was familiar since she was an official of the Commission of the EEC) to take part in the competition, having regard to the documents which she had supplied.
It therefore took the view that any defects which might invalidate the application form were not material for the purposes of the competition procedure and decided that the applicant fulfilled the conditions of eligibility for the said competition.
ALLGAYER v PARLIAMENT
It thereby waived, in the exercise of its discretion, any irregularities in the application form.
5 The plea of inadmissibility cannot therefore be upheld.
The substance
6 The applicant's case rests on two submissions:
(1) Having been accepted as eligible for the competition based on qualifications and tests held by the defendant she was excluded therefrom at the stage of the competition based on qualifications, even though it was the first time that an open competition including a written and oral examination had been enlarged into a competition including in its first stage the elimination of candidates on the basis of qualifications.
7 As provided for in the fourth paragraph of Article 5 of Annex III to the Staff Regulations of Officials of the European Communities, the Selection Board shall state which of the candidates on the list of candidates who meet the requirements set out in the notice of competition shall be admitted to the tests.
It is clear from the case-law of the Court (judgment of 13 March 1965 in Case 23/64, Vandevyvere v European Parliament [1965] ECR 157) that in the case of such open competitions there has already been a selection based on qualifications prior to the written and oral tests.
Therefore this submission must be rejected.
8 (2) The applicant raises the objection that the notice of competition was liable to give rise to misunderstanding and was even unintelligible.
She bases her argument on two passages in the notice of competition, the first being the following words in section III of the general provisions governing open competitions entitled "Applications": "Only copies of degrees or diplomas or other evidence of qualifications corresponding to the highest level of studies completed by the candidate need be sent", the other being contained in the actual notice of competition under heading III 1. "Degrees, diplomas etc. required," including the following words: "University degrees in:
JUDGMENT OF 25. 4. 1978 — CASE 74/77
(a) law; (b) political science; (c) social sciences; (d) economics; (e) the arts; (f) a comparable discipline, or equivalent professional experience."
That wording did not entitle her to conclude that she had to enclose immediately with her application form certificates other than her university degree which could prove that she had the necessary qualifications.
She therefore did not do so, although she was in a position to produce other documents, which she sent in after the date by which applications had to be lodged, for example, certificates relating to her knowledge of languages, to the completion of a period of teacher training and to a probationary period spent with the Commission, since she thought that pursuant to the second paragraph of Article 2 of Annex III to the Staff Regulations of Officials of the European Communities the defendant would require her to produce them before making a selection based on qualifications.
9 Under heading III "Competition" — of the actual notice of competition — the words "university degree", together with the age limit of not more than 33 years of age, the requisite knowledge of languages and compliance with Article 28 (a), (b) and (c) of the Staff Regulations of Officials of the European Communities, constitute one of the minimum conditions of eligibility for the competition properly so-called.
Thus the candidate was fully informed of the fact that the degrees or diplomas required of her would be assessed only if she fulfilled the conditions referred to above for eligibility for the competition, based first on qualifications and then on tests.
On the other hand, in section III of the general provisions governing open competitions headed "Applications" applicants are requested to send, in relation to the diplomas or other evidence of formal qualifications and in addition to those corresponding to the highest level of studies completed by candidates, "documents relating to academic qualifications", which expression clearly refers to studies completed in a branch other than that for which the highest diploma was awarded.
ALLGAYER v PARLIAMENT
The applicant understood that she had to lodge a full application and thus enclosed superfluous documents such as a copy of her school-leaving certi ficate and of her junior high school diploma, which she obviously possessed in view of her university degree.
In the case of a competition based on qualifications, owing to the nature of such a competition, the evidence of candidates' qualifications must be enclosed with the application form, without its being necessary for the Selection Board to call upon candidates to produce such evidence.
The applicant has only herself to blame for not having enclosed with her application form the certificates which she forwarded later and she must suffer the consequences.
It is, moreover, necessary to point out that according to the objective criteria on which the Selection Board decided to base its assessment of the qualifications of candidates, those certificates would not have been taken into consideration.
Once again, this submission must therefore be rejected.
Costs
10 Under Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs.
The applicant has failed in her submissions.
However, under Article 70 of the Rules of Procedure the costs incurred by the institutions in actions brought by servants of the Communities are to be borne by the institutions.
On those grounds,
THE COURT (Second Chamber)
hereby:
1. Dismisses the application;
OPINION OF MR REISCHL — CASE 74/77
2. Orders the parties to bear their own costs.
Sørensen Mackenzie Stuart Touffait
Delivered in open court in Luxembourg on 25 April 1978.
A. Van Houtte M. Sørensen
Registrar President of the Second Chamber
OPINION OF MR ADVOCATE GENERAL REISCHL DELIVERED ON 15 MARCH 19781
Mr President, the address indicated in the notice of Members of the Court, competition. In addition, they are invited to enclose a curriculum vitae The European Parliament gave notice in supplementing or amplifying, if neces Official Journal No C 24 of 1 February 1977 that it was to hold a competition sary, the information entered on the application form. for the purpose of drawing up a reserve list for the recruitment of German- language administrators (in grades 7 Documents relating to academic qualifi and 6 of Category A). A notice of the cations may be forwarded separately. general provisions governing open Since these documents cannot be competitions was inserted in the Official Journal before the notice of competition returned, it is advisable to send certified PE/19/A. Those provisions included true copies. No photocopies will be inter alia the following: accepted unless they bear an unphotocopied certification that they "Candidates shall complete an appli are true copies. Only copies of cation form prescribed by the diplomas, degrees or other evidence of appointing authority; they may be qualifications corresponding to the asked, if necessary, to furnish additional highest level of studies completed by the documents or information." candidate need be sent." In connexion with the sending in of As provided for expressly in the notice applications they went on to state: of competition, the competition was to "Candidates shall complete and sign the be carried out on the basis of application form contained in this issue qualifications and tests. Under the of the Official Journal, and send it to heading "Degrees, diplomas, etc.,
1 — Translated from the German.