C-206/85

OPINION OF SIR GORDON SLYNN —CASE 206/85

O P I N I O N OF ADVOCATE GENERAL SIR G O R D O N SLYNN delivered on 18 November 1987

My Lords, of 7 September 1984 merely confirms an earlier decision contained in another standard-form letter of 15 June 1984 and In Case 293/84 Sorani and Others v that she was out of time to challenge the Commission and Case 294/84 Adams and latter. That argument was rejected in Sorani Others v Commission the Court, in and Adams on the basis that there had been judgments delivered on 11 March 1986 a reconsideration following the applicants' ([1986] ECR 967 and 977) annulled a request and a new decision rather than a decision of the selection board for Compe- mere confirmation. The Commission's agent tition No COM/B/2/82 (arranged to conceded at the hearing that there was no constitute a reserve for assistants in Grades difference in this respect between this 5 and 4 of Category B). That decision was application and Sorani and Adams. The contained in a standard-form letter of 7 argument must be rejected in this case for September 1984 addressed to each of the the same reasons. There is no challenge to applicants in those cases and refused to the admissibility of the action in so far as it admit them to the tests for that competition. relates to the rejection of the complaint. It is therefore admissible in its entirety.

same position. Following those judgments, who meet the requirements set out in the she sought the Court's leave to supplement Notice of Competition . . . her pleadings by adding that ground to those made in her application. However, at the hearing, by her counsel, she abandoned the point since, following those judgments, Where the competition is on the basis of the selection board subsequently gave her qualifications, the selection board shall, the opportunity to comment on the views after determining how candidates' qualifi- expressed by the relevant assistant. cations are to be assessed, consider the qualifications of the candidates appearing on the list provided for in the first paragraph. The applicant advanced three arguments in her written pleadings which turn substan- tially though not wholly on the decision of the selection board to divide candidates Where the competition is on the basis of admitted to the competition into two tests and qualifications, the selection board categories: (a) those who already exercised shall state which of the candidates on the 'all functions' at the level of category B or list shall be admitted to the tests. . . . ' who already had all the potentialities for (Article 5 of Annex III). exercising functions at this level, and (b) those who possessed only some of such potentialities or possessed them to an inadequate degree — and to admit to the tests only those in category (a). The applicant complains that the contested decision contains no individual reasoning whatsoever and that the letter in which it is embodied is in standard form setting out criteria used by the selection board without The first is that the selection board's specifying in any respect why the applicant decision infringed the requirement to give herself was not admitted to the tests and in proper reasons deriving in particular from particular why she was not considered to be Article 25 (2) of the Staff Regulations and either presently carrying out B grade tasks Article 5 of Annex III thereto. Those or fully capable of doing so. provisions provide respectively as follows:

' . . . the requirement that a decision The ruling in Verzyck follows earlier adversely affecting a person should state the judgments of the Court notably that in reasons on which it is based is intended to Joined Cases 4, 19 and 28/78 Salerno and enable the Court to review the legality of Others v Commission [1978] ECR 2403 in the decision and to provide the person which the Court said, in respect of a concerned with details sufficient to allow competition in which there had been over him to ascertain whether the decision is well 4 000 candidates, that a standard letter to founded or whether it is vitiated by an error rejected candidates merely referring to the which will allow its legality to be contested. condition in the Notice of Competition which they had not fulfilled, when each condition was composed of several elements, did not 'satisfy the requirement to state reasons in view particularly of the fact that such a reference is not capable of That requirement to give a statement of providing the person concerned with a reasons must however be evaluated having sufficient indication to allow him to know regard to the different levels and types of when the refusal is well founded or on the competition and, more particularly, to the other hand whether it is vitiated by a defect number of candidates competing in each of which would make it possible to contest its them. In the case of competitions where the legality· (p. 2416). candidates are more numerous, the statement of the reasons for the rejection of applications must not be so voluminous as to place an intolerable burden on the A similar result was reached in Case 108/84 proceedings of the selection boards and the de Santis v Court of Auditors [1985] ECR work of the personnel administration. In 749, where the applicant made a complaint order to make allowance for the practical to the appointing authority contending that difficulties confronting a selection board for the selection board's rejection of his a competition for which there is a very large application for a competition incorrectly number of applications, it may be accepted assessed his qualifications. that the selection board may initially send candidates merely information on the criteria for selection and the result thereof and not give individual explanations until On the basis of these judgments, the later and to those candidates who expressly selection board must give an individual request them, on condition, however, that explanation at least to those candidates who those individual details are sent by the expressly request one and must state, at selection board before the expiry of the least in summary form, the reasons on period laid down by Articles 90 and 91 of which the decision relating to that particular the Staff Regulations, so that the recipients candidate was based. may, if they think fit, avail themselves of their rights.

In its rejoinder, the Commission says that, given the number of candidates in the competition, it was enough for the selection The applicant claims that it is obvious that board to set out the criteria; it was not she is carrying out B grade functions in the obliged to explain in detail to each registry of DG IV, where she has worked candidate how and to what extent the since November 1979, since her predecessor carrying out of specified tasks demonstrated was a B 2 (application) or B 3 (reply) aptitude to perform B grade functions. This official. Indeed there is a legal presumption argument flies in the face of the Court's in her favour because Article 7 (1) of the ruling in Verzyck and the decision should be Staff Regulations obliges the appointing set aside for failure to give any or any authority to 'assign each official... to a adequate reasons. p o s t . . . which corresponds to his grade': her predecessor must be presumed, in the absence of contrary evidence (which the Commission has not advanced), to have been carrying out tasks appropriate to a person in Grade B. Alternatively, she at least has the potential to carry out B grade tasks On this basis the other grounds do not fall by reason of the work she has done and also for consideration. I deal with them briefly in because she has a certificate showing that case a different view is taken of the first she has followed an archives course given by ground. a certain Mr Hoffmann.

show that she has all the potential required groups (namely those already carrying out B to carry out B tasks. grade functions or having the full potential to do so and those who had no such potential). This is said to be contrary both to Article 5 (3) of the Staff Regulations and paragraphs 3 and 4 of Article 5 to Annex III thereto, and to ignore the purpose of the competition procedure, thereby constituting misuse of powers, and a breach of various principles of law. The criterion used to divide the two groups discriminated between those who had and those who had not had die good fortune to be given B tasks to cany out. It frustrated the purpose of a competition, even an internal competition, Although a decision which is perverse or which is to allow all those who fulfil the wholly unreasonable on the evidence before criteria for admission to the competition to the selection board — containing 'manifest be given the chance to demonstrate their error' — would justify the setting aside of abilities irrespective of fortuitous matters such a decision, I am not satisfied that that such as whether they have been given the ground is made out in this case and that it chance to carry out B tasks. can be said that the selection board exceeded the margin of appreciation which it undoubtedly has in assessing the evidence. The Court has no information concerning, for example, the complexity of the duties she performed or the extent to which her work was supervised. Whilst it is at first sight surprising that if, as she says, her predecessor was in Grade B 2 or B 3, she was not accepted, the Court cannot be satisfied by mere assertion that she is doing substantially the same work or work to the same standard. There is inadequate evidence To let in to the tests only those who have for such a finding and I would not accept actually performed B level functions would, the second argument. in my view, have been too restrictive in this competition, and even giving such persons an immediate right of entry has its disad- vantages as I indicated in Adams. To widen the group by allowing those who have shown potential in all the requisite B level functions to take the tests is obviously less restrictive but has the disadvantage that it excludes people who have not had the chance to show B-level potential, and inevitably involves to some extent a subjective appreciation of the candidates' dossiers. It seems more satisfactory to set a The third argument, said to be subsidiary to higher standard in the conditions of entry to the first two, is that it was wrong for the the competition and to leave it to the tests jury to divide the candidates into two to elicit potential.