C-40/86

KOLIVAS v COMMISSION

OPINION OF MR ADVOCATE GENERAL DA CRUZ VILAÇA delivered on 2 April 1987 *

Mr President, was Head of Division at the time, and Members of the Court, to the Greek Translation Service in Luxembourg by D. Stefanidis, who was Head of Division in Luxembourg at the time. Mr Christoyannopoulos was a member 1. In these proceedings, the applicant, of the selection boards for the competitions Georges Kolivas, a Commission official, and Mr Stefanidis was the alternate seeks the annulment of the decisions of the member. selection boards for Competitions Nos COM / LA / 4 / 84 and COM / LA / 5 / 84 not to admit him to the oral tests in view of the marks awarded to him in the written tests. 5. On 13 November 1985 the applicant was informed that, in view of the results he had obtained in the written tests, the selection board was unable to admit him to the oral I — Summary of the facts tests.

2. In November 1984 the applicant took 6. On 12 February 1986, the applicant part in the tests set in the aforesaid internal brought this action. competitions to draw up a reserve list of Greek-language principal translators and revisers. The test papers were marked first II — The applicant's submissions by two external examiners who are university professors in Greece. A —First submission

3. The selection board subsequently decided, by a majority, not to accept the 7. In his first submission the applicant marks awarded by the two examiners and alleges infringement of the third and fourth unanimously decided to have the test papers paragraphs of Article 5 of Annex III to the marked a third time by an outside expert, P. Staff Regulations. Yannopoulos.

and holding the oral tests, lay down the 16. In his Opinion, Mr Advocate General criteria on which assessments are to be Lenz argues in favour of the application by based. analogy of the third paragraph of Article 5 to the assessment of the conditions 9. In this case, the selection board had the governing admission to competitions for the test papers corrected by two independent purpose of drawing up the list referred to in examiners and it was only after it had taken the first paragraph of Article 5, where it is cognizance of the results that it decided to necessary to supplement the criteria for have the test papers marked by a third admission laid down in the notice of compe­ examiner, without providing any infor­ tition in such a way as to require the mation whatever with regard to its selection board to make a value judgment assessment of the marks awarded by the on the professional qualifications relied first two examiners, even though it had been upon. asked to do so by the applicant. In those circumstances, therefore, the necessary guarantees of objectivity and lack of arbi­ trariness were missing. 17. However, it is uncertain whether that requirement is automatically applicable to a situation in which the selection board may 10. That is the crux of the argument on need to determine in advance the criteria for which the applicant's first submission is assessing the test papers, unless compliance based. with the principles that marking must be objective and that candidates are to be 11. It must be stated, first of all, that the accorded equal treatment depends on it. analogy which the applicant seeks to draw between this case and the third and fourth paragraphs of Article 5 of Annex III to the Staff Regulations, does not seem to me to 18. In addition, Article 1 (1) (e) of Annex be relevant. III to the Staff Regulations merely lays down, where a competition is on the basis 12. The third paragraph of Article 5 of tests, that the notice of competition must requires the criteria for assessing the state 'what kind they will be and how they candidates' qualifications to be fixed in will be marked', a condition that was fully advance only in the case of a competition on complied with in this case. the basis of qualifications.

marking criteria laid down by the selection 26. As the Court has stated in its judgment board'. The core of the applicant's in Campogrande, 3 'the decision on the argument is therefore devoid of substance. organization of the competition takes its legal and final form from the notices of competition brought to the notice of the 4 personnel', adding in the same judgment 21. The other arguments relied upon in that that 'the deliberations of the competent regard by the applicant are more closely body as they appear from the minutes connected with his third submission (breach cannot override the clear wording of the of the principle of the protection of decision in question unless they obviously legitimate expectation and of the principle show that the formal decision is not in of fairness). However, I propose to consider accord with what was in fact laid down at them now in the order in which they are set the end of the deliberations'. out in the application.

OPINION OF MR DA CRUZ VILAÇA — CASE 40/86

30. The independence of the selection experience of the candidates ... such recon­ board with regard to the organization of its ciliation is, under the terms of the notice of deliberations cannot be called in question, in competition, the responsibility of each particular with regard to the assessment of selection board and is guaranteed by its the aptitude or ability of the candidates to independence and the secrecy of the be examined by means of written tests. proceedings laid down by the Staff Regu­ lations'. In those circumstances, the Court goes on to state in the same judgment, 'differences in assessment from one compe­ tition to another are not only inevitable but 31. In its case-law the Court has consis­ proper, even as regards the common tests, tently emphasized the independence and since the assessment of the importance of wide discretion enjoyed by a selection board these latter may vary in the eyes of the for a competition, provided they are based different selection boards in relation to the on objective criteria and do not lead to a various abilities which the performance of manifest infringement of the rules governing different duties requires'. 5 the selection board's deliberations.

34. The alleged impossibility of amending 32. Thus, for instance, the Court held in its any condition whatever in relation to judgment in Hoyer 6 that 'in view of the previous competitions would, moreover, wording of the notice of competition, the create manifest difficulties with regard to nature of the vacant post and the place of the organization of a fresh competition, for employment, the selection board was instance as regards the preparation of the perfectly entitled to decide, within the scope written tests, even if it did not lead to the of its discretionary power, that a "good" absurd conclusion that the candidates in knowledge of French was essential, even if every competition had to answer the same the notice of competition did not contain questions. any condition as to the level required'.

there was a substantial discrepancy between been communicated to him. Moreover, the the assessments made by the two external applicant does not allege, in support of his examiners', whilst the minutes of the application, that the statement of reasons on selection board's deliberations show that the which the decision was based was insuf­ reason was, to be more precise, the fact that ficient. 'the examiners had marked the tests "generously", in a manner that fell short of the qualitative standards prevailing in the 42. The applicant also contends that the test Community'. papers were marked by the third examiner in the presence of a member or the members of the selection board, and therefore 37. The difference between those two without any guarantee of independence and versions — which are not necessarily incom­ objectivity. The applicant states, more patible and which the Agent for the precisely, in his reply that 'the third Commission sought to reconcile at the examiner — and therefore the selection hearing — may seem curious and reflect a board — would appear ... to have degree of confusion, but it is not capable of contravened the principles of equal 'retroactively' affecting the validity of the treatment by agreeing to mark the test selection board's decision to have the test papers of certain candidates, but not others, papers marked by a third examiner. in the presence of members of the selection board' (emphasis added).

38. Whatever the reason for that decision, it was sufficient for the selection board to take 43. That contention, which the applicant the view that it was unable to classify the ultimately puts forward in uncertain terms, candidates and to consider it necessary to is not, however, supported by a shred of have the test papers marked once again. The evidence and cannot therefore be regarded selection board cannot be denied that as proven. discretion.

competition, contrary to the requirements of consider the appointment of external the principle of equality. 8 examiners in order to have the test papers marked twice and may have recourse to fellow linguists from other institutions in order to ensure observance of the 46. That conclusion is not affected by the "Community style'" (emphasis added). fact that, as is apparent from the minutes of the selection board's deliberations, which are included in the file on the case, one group of test papers (tests III.1. a) was 50. It is possible to detect in that quotation, marked in conjunction with the new more appropriately, a reference to an obli­ examiner, whilst the other group of test gation as to the means to be papers (tests III.1. c) was marked by that employed — and not as to the results to be examiner. The selection board may have achieved — which the administration has sought to ensure by those means that the imposed on selection boards and which, marking criteria were appropriate and, according to the terms in which it is moreover, it would not appear that, within couched, does not extend to their essential each group, different treatment was capability of responding to any difficulties accorded to the test papers of the various which, having regard to the characteristics candidates. of competitions, they may encounter in the performance of their tasks.

KOLIVAS v COMMISSION

not capable of marking in a spirit of inde­ proceedings by informing their staff that it pendence the test papers covered by a veil had been unanimously decided to have the of anonymity under the supervision of a test papers marked by a third examiner. collegiate selection board.

59. In my view, this submission must also be 54. Moreover, according to the minutes of regarded as unfounded. the selection board's deliberations, the choice of a third examiner was decided upon unanimously, on a proposal from the 10 60. The Court has already held that 'the representative of the Staff Committee. secrecy of the proceedings of selection boards for competitions... was intro­ duced ... with a view to guaranteeing the 55. Although, in abstract terms, the independence of selection boards and the decisions adopted by the selection board objectivity of their proceedings, by may not have been the most apposite means protecting them from all external inter­ of overcoming the difficulties which it ference and pressures whether these come encountered, they cannot be regarded as from the Community administration itself or sufficient evidence either of a lack of impar­ the candidates concerned or third parties'. tiality or objectivity or as the cause of a breach of the principle of equal treatment of the various candidates in circumstances that were prejudicial to the applicant. 61. There is no reason for concluding that those principles have been called in question by the communication of information concerning the decision to have the test 56. The applicant contends that he alone of papers marked by a third examiner. the candidates in Brussels failed to pass either of the competitions. That fact is not in itself sufficient to establish that he was accorded unequal treatment in relation to 62. Clearly, as the Court has also held ," the other candidates. The results were Observance of this secrecy runs counter to different and there is no way of knowing divulging the attitudes adopted by individual whether or not the applicant would have members of selection boards and also to passed on the basis of the marks he was revealing all the factors relating to indi­ awarded by the first two examiners. vidual or comparative assessments of candidates'.

1 66. As the Court has also held, 1 'the scope of this secrecy cannot be widened to 72. In contrast to previous competitions (in such an extent as to refuse disclosures of which the candidates' superiors presided objective facts ... '. over the selection boards), that recommen­ dation was complied with in the case of the competitions at issue. 67. In any event, the applicant's interests were in no way prejudiced by the fact relied upon in the second submission, nor is that 73. In addition, it is necessary to take fact capable of affecting the applicant in a account of the particular difficulties particular manner in relation to the other concerning the composition of selection candidates. boards for the language service, particularly with regard to the Greek section; those difficulties have already prompted certain 68. In my view, therefore, the second members of the Joint Committee to submission should also be rejected. emphasize the problems raised by the immediate application of the principle of not entrusting the presidency to members of C — Third submission the department or Directorate-General in question.

69. The applicant also claims that the principle of the protection of legitimate 74. Moreover, the file on the case contains expectation and the principle of fairness no evidence of the existence of the under­ have been contravened. taking alleged by the applicant.

70. The principle of the protection of 75. On the contrary, in a memorandum legitimate expectation is alleged to have sent on 13 April 1983 to the President of been contravened because, contrary to the Central Staff Committee, the Opinion No 2/76 of the Joint Committee of Commission's Personnel Director clearly 26 April 1976, and the undertaking which doubts whether there was 'any decision to the administration is alleged to have given set up selection boards under such drastic in that connection, two of the candidates' conditions' and states instead that, in his view, 'one of the three members [including 11 — Bonu, supra, at p. 563. the president] should logically be drawn

78. A further point is that, as the Court has III — 83. In those circumstances, I can 12 already established, the third paragraph of only suggest that the Court dismiss the Article 3 of Annex III to the Staff Regu­ application, inasmuch as the submissions lations merely requires that if the members relied upon are unfounded. of the selection board are officials, they must be of a grade at least equal to that of the post to be filled without necessarily 84. Furthermore, I do not consider that the having to belong to a different department. discrepancies established in the statement of the reasons for having the test papers marked by a third examiner were of such a 79. The applicant also relates the decision kind as to affect the applicant's position in to have the test papers marked by a third these proceedings, or that the conduct of examiner to a breach of the principle of the defendant, which has not been shown to the protection of legitimate expectation. have acted in bad faith, produced conse­ However, I have already considered this quences capable of justifying the application submission and have come to the conclusion of the second subparagraph of Article 69 (3) that it is unfounded. of the Court's Rules of Procedure.

85. In conclusion, I suggest that the Court order the parties to bear their own costs pursuant to Article 70 of the Rules of Procedure .

12 — Judgment of 16 October 1975 in Case 90/74 Deboeck v Commission [1975] ECR 1123 at p. 1136.