C-64/86

OPINION OF MR LENZ-JOINED CASES 64, 71 TO 73 AND 78/86

OPINION OF ADVOCATE GENERAL LENZ delivered on 17 November 1987*

Contents

A — Facts 1411

B — Observations 1412

I — First group of cases (Cases 64, 71 to 7 3 , 78 and 149/86) 1412

(dd) Further arguments 1416

(b) Evaluation of the personal files and application forms 1416

(c) Objections to the notice of competition 1417

(d) Composition and procedure of the Selection Board 1418

(aa) The fact that the Chairman was not an official 1418

(bb) Interviewing of the candidate's superior 1418

(d) No facilitation of further training 1420

(e) Interview of the candidate's superior 1420

* Translated from the German.

SERGIO v COMMISSION

4. Miscellaneous claims 1420 (a) Admission to the further training course 1421 (b) Annulment of appointments 1421 (c) Annulment of the preselection of candidates 1421 (d) Conclusion 1421 II — The second group of cases (Case 228/86) 1421 1. Further explanation of the facts 1421 2. Opinion 1422 (a) 'Questions générales' 1422 (b) 'Insertion' 1423 (c) 'Questions communautaires' 1423 (d) Conclusion 1424 (e) Remainder of the applicants' arguments and claims 1424 C — Opinion 1424

OPINION OF MR LENZ—JOINED CASES 64, 71 TO 73 AND 78/86

to ignore the upper limit set by the compe- competition notice, which was held during tition notice, on the basis of Article 5 of March and April 1986 in Brussels and Annex III to the Staff Regulations, Luxembourg. 84 participants were according to which the list of suitable subsequently interviewed. Since the candidates must wherever possible contain applicants in Case 228/86 failed to obtain at least twice as many names as the number the minimum number of marks laid down of posts to be filled). by the competition notice, they were informed by a letter dated 17 June 1986 from the Head of the Recruitment Division 4. The applicants in Cases 64, 71 to 73, 78 that they had not been placed on the reserve and 149/86 (making up the first group of list (which ultimately comprised only 38 cases) were not admitted to the training applicants). course. They were informed of this decision by a letter from the Head of the Recruitment Division dated 12 December 7. They therefore commenced legal 1985. In response both to complaints proceedings in August 1986, requesting the submitted through official channels by some Court to annul both the rejection of their of the applicants (Cases 64, 78 and 149/86) applications and, to the extent necessary, and to simple requests for a more precise the appointments made as a result of the statement of reasons and in particular for competition. disclosure of the criteria used in assessing the applications, certain explanations were given in a letter of 14 February 1986; B — Observations actions in those cases were thereupon brought before the Court of Justice in 8. The following observations on the March and June 1986. present cases are, in my view, appropriate:

SERGIO v COMMISSION

15. The Court further learnt (from the minutes of the Selection Board's meetings in 12. As regards the arguments adduced by the June/July 1985) that the subjects set in the various applicants in support of their claims, I first subject area concerned elections to the do not propose to discuss them in the order European Parliament and 'direction partici- adopted by the applicants but shall turn first pative par objectifs', the second subject area to the aspects I consider most important. concerned problems of agriculture and the

OPINION OF MR LENZ—JOINED CASES 64, 71 TO 73 AND 78/86

Community budget, and the third subject especially not on the basis of the subject area concerned problems of development actually chosen; 'general knowledge' aid and of the European Regional Devel- suggests, rather, a fundamental grasp of the opment Fund (the exact, and fairly constitution and aims of the Communities extensive, wording may be ascertained from and the functioning of the Community the file laid before the Court by the institutions. In my opinion the applicants are Selection Board). After half an hour's study right when they assert that proper treatment of the accompanying file, the subject papers of the subjects selected presupposed very had to be completed within two hours (see precise and specific knowledge in certain the minutes of the Selection Board for areas. January 1985) and the papers were then marked out of 60.

19. Thus it can only be concluded that the details of the written test did not really 17. The notice of competition provides correspond to the notice, whose clear quite unequivocally for a written test wording unequivocally limited the margin of 'designed to test general knowledge and discretion which the Selection Board j u d g m e n t . . . '. Although one may agree that undoubtedly enjoyed. It follows that, since 'judgment' can also be ascertained by means individual candidates may conceivably have of a very specific exercise, it can hardly be acquired the requisite special knowledge in accepted that 'general knowledge' can be their previous activities, there was a breach tested by means of the subjects offered, and of the principle that tests must be entirely

SERGIO v COMMISSION

identical 1 laid down by the Court. This is 22. I cannot really agree with the applicants consistent with the claim made by the when, in criticizing the failure to adhere to applicants at the hearing — a claim which the conditions laid down in the notice, they cannot be investigated here but which was also argue that although they were required not contested by the Commission — that the to produce a summary of a 'dossier' no real nine best candidates were those able to 'dossier' can be said to have been given to write a paper on their particular field of them. activities.

(bb) 'Summary of a case study' 25. The further objection is raised that the 1 — See the judgment of M July 1983 in Case 144/82 Delti v upper limit laid down in paragraph III 1 for Court of Justice [1983] ECR 2421, at p. 2436. the admission of candidates to the training

OPINION OF MR LENZ—JOINED CASES 64, 71 TO 73 AND 78/86

stage was corrected too late by the Selection (b) Evaluation of the personal files and Board, with the result that it had no effect application forms on the assessment of the test papers.

SERGIO v COMMISSION

34. Here I would not go so far as to agree with the Commission that, once the period allowed for challenging the notice has expired, it is no longer possible to make 3 — Opinion of 21 January 1987 in Case 307/85, Gavanas v such a complaint. In this context I shall do C£S[I987] ECR 2435 at 2444. 4 — Judgment of 11 March 1986 in Case 294/84 Adams and no more than refer to my Opinion in Case Others v Commission [1986] ECR 977.

O P I N I O N O F MR L E N Z — J O I N E D CASES 64, 71 T O 73 AND 78/86

41. In view of the Court's previous official, the composition of the Selection judgments on the subject, the immediate Board did not meet the requirements of impression is that the applicants' criticism Article 3 of Annex III to the Staff Regu- seems to be justified. I would refer only to lations. That argument is unfounded, as the the judgments in Cases 31/75, 6 4/78 , 7 and Commission has rightly explained. 5 89/79, 8 and in particular those in Cases 195/80, 9225/82 '° and 1 0 8 / 8 4 , " according to which a Selection Board is obliged to (bb) Interviewing of the candidate's superior provide every eliminated candidate with an individual statement of reasons (which is clearly lacking in this case). However, given

It is therefore competition. clearly inappropriate to annul the contested measures on the additional grounds that no reasons are given for them; instead, the correct approach is to adopt that in Case 39. It is important to note in this regard that the notice of competition envisaged the holding of such an interview only where necessary ('en cas de besoin'), that is to say that the Selection Board enjoyed a discretion in the matter. There is, however, no evidence to suggest that the discretion was improperly exercised when the board 6 — Judgment of 4 December 1975 in Case 31/75, Costacurta v came to the conclusion that the documents Commission [1975] ECR 1563. already available to it were sufficient and 7 — Judgment of 30 November 1978 in Joined Cases 4, 19 and that there was no need for an additional 28/78, Salerno and Others v Commission [1978] ECR 2403. 8 — Judgment of 28 February 1980 in Case 89/79 Bonu v examination along the lines proposed (into Council [1980] E C R 553. linguistic abilities or national qualifications, 9 — Judgment of 26 November 1981 in Case 195/80 Michel v for example). European Parliament [1981] ECR 2861. 10 — Judgment of 9 June 1983 in Case 225/82 Verzyck v Commission [1983] ECR 1991. 5 — See the judgment of 16 October 1975 in Case 90/74 11 — Judgment of 21 March 1985 in Case 108/84 De Santis v Deboeckv Commission [1975] ECR 1123. Court of Auditors [1985] ECR 947.

46. The use of the applicant's periodical reports is, however, not open to criticism. 43. Equally groundless are (a) the criticism They belong to the personal file expressly in Case 78/86 that a candidate (one of the mentioned in the notice of competition and applicants in Case 228/86) was admitted to are also necessary for evaluating the the final stage of the competition even experience acquired by each candidate, to though he did not have adequate knowledge which the notice also refers. of one of the Community languages, and (b) the further argument contained in the collective statement of reply in Cases 64, 71 to 73 and 78/86 that knowledge of a second (b) Incomplete file language was not tested — as the notice had required — and that there was evidence of discrimination against candidates of Italian nationality. 47. The applicant further submits that the Selection Board did not have his complete file. Had it assessed correctly all the infor- mation belonging to the file (which, according to him, lacked information about his participation in previous competitions 44. Without there being need for further and also his complaint submitted through discussion, it has thus been established that official channels against the description of the refusal to admit the applicants to the his duties), the Selection Board would, he training course may only be criticized on maintains, have awarded him a higher mark. the grounds that the written test was not conducted properly.

12 — Judgment of 27 March 1985 in Case 12/84 Kypreos v 48. When the applicant expresses doubts Council [1985] ECR 1005. (and they amount to no more than that)

49. N o r may it be concluded from the fact that, in order to demonstrate the mediocrity 54. In this context it should be sufficient to of the reports, the Commission quoted point out that the Selection Board had to passages from them in the written pleadings, reach a decision on further training within that the Selection Board did not have the the limits of the competition in question and complete reports as the applicant suggests. on the basis of an overall value judgment. There is no evidence to suggest that the applicant was adversely affected by any errors. 50. In view of all the evidence which has emerged it cannot be accepted in this case either that the assessment reached by the (e) Interviewing of the applicant's superior Selection Board was manifestly incorrect and that the applicant's personal file in fact deserved to be marked as 'good'. 55. Lastly, the applicant complains that the notice of competition wrongly provided for the interviewing of candidates' superiors.

(c) 'Subjective decision' 56. No further examination of this issue is needed, since this possibility was not actually used during the competition. 51. A further criticism made by the applicant is that a subjective decision was taken in his case. 4. Miscellaneous claims

57. The only outstanding question in the 52. In reply the Commission pointed out context of the first group of cases is whether that the candidates' identities remained there are grounds in Cases 64, 71 to 73 and secret both during the marking of the 78/86 to declare the other heads of claim, written test and in the evaluation of the mentioned initially, 13 to be well founded personal files (which only the chairman of independently of the annulment of the the Selection Board consulted directly and decision primarily contested (namely the which, even when read, would, in view of refusal to admit the applicants to the next the large number of them, scarcely have stage of the competition). made it possible to identify the particular candidate from the various particulars such 13 — See paragraph 5 above.

58. The claim for an order that the 61. With regard to the applicants' request applicants (in Cases 64 and 78/86) be for the annulment of the preselection admitted to the training course should procedure (that is to say the decision undoubtedly be rejected. regarding admission to the training course) and the annulment of all the measures taken following preselection or of the whole competition, it is surely misconceived to 59. Not only is the Court of Justice argue that a finding that the first stage of precluded, as a matter of principle, from the competition is illegal necessarily implies issuing specific instructions to the adminis- that both that stage and the subsequent tration (and hence to a Selection Board) but stages based on it must simply be declared" in this case there is the further consideration invalid. The correct approach is to follow that a fresh written test would have to be the judgment in Case 144/82 (which conducted, and marked, before it could be concerned the annulment of a decision determined whether the applicants had refusing to include the applicant on a qualified for further training. So long as reserve list after her participation in a those steps have not been taken there can be competition), that is to say to look for an no grounds for making the order requested equitable solution which does not call in by the applicants. question the outcome of the entire compe- tition. Such a solution in the present case would mean that the measure complained of would be reviewed and the applicants (b) Annulment of appointments would, in appropriate circumstances, have the opportunity of continuing to participate in the competition. On the other hand, the 60. As regards the claim for the annulment applicants' interests certainly do not warrant of the appointments made as a result of the any measures more radical than that. competition, the Commission is right to object that the applicants critically failed to challenge directly the decisions making the (d) Conclusion appointments. It may be added that the applicants have no interest in having the appointments annulled. What matters for 62. It is thus established that the claims them is to pass a properly conducted which seek more than the annulment of the competition and then to be appointed to 'A' letters of 12 December 1985 cannot be posts themselves. However, provided that upheld. the applicants manage to clear all the hurdles, this should be possible, without the need to annul the appointments already II — The second group of cases (Case made; only 38 of the 48 posts to be filled 228/60) were assigned to successful candidates, and it may also be supposed that in the meantime further posts have become 1. Further explanation of the facts available in Grades A 7 and A 6, so that these could be awarded to the applicants if they are successful in the present 63. The point at issue here is whether the proceedings. applicants, who had undergone the whole competition but were not entered on the list

of suitable candidates after the interview, addition, he had to answer one of two were properly eliminated. questions on the other policies of the Community selected from a list of 75 questions by a member of the Selection Board (each member took his turn in 64. The first submission is that no adequate selecting a question), and it was provided statement of reasons was provided (inasmuch that the question should be unrelated to the as no precise statements were forthcoming candidate's current activities. 14 on the 'niveau de qualification' and the 'aptitude à exercer des fonctions de Catégorie A' mentioned in the notice, nor were the relevant criteria disclosed). 69. Each member of the Selection Board marked the answers given (which were weighted according to the subject), from which an average was then calculated. The 65. The nature of the interview is also chal- Court has also been told — and I mention lenged. The questions to be answered were this in connection with the critical questions set at random and without reference to the raised in the statement of reply — that if a candidates' experience; they were too candidate expressed himself in a language specific and too demanding and the other than French, simultaneous interpre- candidates were not prepared for them, (for tation was available. The Court was also instance, on the basis of the training course assured that arrangements were made to or the bibliography distributed at the time). ensure that whenever it was the turn of candidates from Directorates-General whose Assistants were members of the 66. The statement of reply also raises the Selection Board those Assistants did not critical question whether the members of the take part in the marking or abstained from Selection Board had a command of the the interview altogether, in order to avoid a languages used by the candidates, and there conflict of interests. was speculation whether the members of the Selection Board, who are Assistants to Directors-General, took part in assessing 2. Opinion candidates belonging to the Directorates- General in question. 70. If in the light of the foregoing and especially after a thorough examination of 67. The details of how the interviews were the list of questions one considers whether conducted have been explained to the Court criticism of the conduct of the interviews is in the course of the procedure. justified, one is bound to give an affirmative answer.

72. On reading them one must admit that sarily be expected of officials in Category they cannot all be handled with the same B), some questions are more difficult than degree of ease. Suffice it to mention — and others, and the chances of dealing satisfac- here every person will no doubt choose a torily with the questions selected vary different contrasting pair — Question No 8 accordingly. It is enough to compare, for ('L'influence de la télévision') or No 36 example, Question N o 46 ('Qu'entend-t-on ('Quels sont les progrès technologiques qui par la libre circulation des biens?') or N o 75 ont le plus transformé la société du ('Qu'est-ce que l'on entend par l'expression vingtième siècle et pourquoi?') on the one "respect de la voie hiérarchique? '") on the hand and Question N o 23 ('L'influence du one hand, and, on the other, Question No port d'uniforme sur le comportement') or 34 ('Pourquoi harmoniser les droits des N o 79 ('La gestion du temps') on the other. sociétés au niveau de la Communauté?') or Since, however, the questions to be No 76 ('La politique commune de la answered were chosen at random and pêche'). without regard to personal preference it may indeed be said that the uniformity of conditions for the test were not assured. 76. In addition and most importantly, the list of questions, some of which are very (b) 'Insertion' general and some very specialized, also contained a series of subjects which, unlike the others, had already been dealt with in the training courses (the programme for 73. The point concerning 'l'insertion which has been laid before the Court), d'activité présente dans une des politiques although the minutes of the Selection Board communautaires' also raises doubts: the of April/May/June 1985 recorded that meaning of the question is not really 'l'épreuve orale ne portera pas sur l'acquis apparent to candidates from, say, the Publi- de la formation'. I would cite as an example cations Office or the Directorate-General Question No 4 ('Le SME: son rôle et son for Administration, who have nothing to mécanisme') or N o 5 ('Rôle de la do with Community policies. It is also Commission en cas d'infraction d'un Etat conceivable that such candidates may have membre au droit communautaire'), which suffered an unacceptable disadvantage in were thoroughly prepared during the comparison with those whose present duties further education course, as compared with bring them into closer contact with the other topics (such as Question N o 3: policies of the Community. 'Importance de la politique régionale dans la Communauté' or No 25: 'La Communauté et la protection de l'environnement'), where (c) 'Questions communautaires' there is little or no perceptible connection with the course.

(e) Remainder of the applicants' arguments 78. With some justification the applicants also raised the question whether, in view of and claims the wide range of subjects, all the members of the Selection Board were equally 80. Accordingly, as regards the second competent to assess all the answers group of cases, I need not examine the correctly, or whether chance affected the further arguments of the applicants. total mark which was an average mark. I do not consider it sufficient merely to receive an assurance that the interview was 81. In the light of the foregoing obser- primarily designed to establish the vations it is also clear that no more is candidate's ability to understand problems, needed than the annulment of the decisions to argue logically and to express himself of 17 June 1986 addressed to the applicants, clearly and convincingly, with a view from which the administration must draw primarily to ascertaining his educational the necessary inferences. There is thus no standard and intellectual curiosity about the cause to annul all the appointments made activities of the Community. When highly from the reserve list drawn up by the specific questions are asked, it surely Selection Board. The applicants have no follows that the substantive content of the interest in seeking such annulment, since answer carries considerable weight. they have not challenged them in particular and since in any case their interests (which (d) Conclusion lie in the proper conduct of an interview, with the chance of obtaining an 'A' post) 79. I believe that, on an objective view of can be served without cancelling other the matter, the foregoing weighs so heavily appointments.

85. Lastly, the application in Case 149/86 should be dismissed as unfounded, and consequently the decision on the costs in this case should also be governed by Article 70 of the Rules of Procedure.