C-151/86
ECLI:EU:C:1987:467
- Súd
- Súdny dvor Európskej únie
- IČS
- 61986CC0151
- Zdroj
- eur-lex.europa.eu ↗
BAUER B COMMISSION
O P I N I O N O F MR ADVOCATE GENERAL M I S C H O delivered on 28 October 1987*
Mr President, the prerogatives of the appointing authority Members of the Court, by giving it instructions which could determine its choice (on this point see the judgment of 15 December 1966 in Case 1. Like Joined Cases 181 to 184/86 Del 62/65 Serio v Commission of the EAEC Plato and Others v Commission, Joined [1966] ECR 561, in particular the second Cases 151 to 154/86 Bauer and Others v paragraph of part D at p. 571, and the Commission concern the 'procedures to be judgment of 22 October 1977 in Case implemented prior to decisions on the 121/76 Moli v Commission [1977] ECR transfer from Category B to Category A of 1971, at p. 1980, paragraph 23. officials and temporary staff in the scientific Furthermore, in the present case, as I have and technical services' adopted by the shown in my Opinion in Joined Cases 181 Commission on 3 June 1983 and published to 184/86, the appointing authority could in Administrative Notices of 24 June 1983 legitimately instruct the ad hoc Committee (hereinafter referred to as the 'Procedural to draw up a list of suitable candidates and Arrangements'). is therefore no longer competent in the matter.
2. However, whereas in Joined Cases 181 to 184/86 most of the submissions challenge II — The substance the legality of those rules of procedure, the applicants in the present cases mainly rely on arguments based on an alleged The submission alleging a breach of the rules infringement of those arrangements. set out in paragraph III (2) of the Procedural Arrangements
3. For that reason it seems to me appro- priate to deliver separate Opinions on each of the two groups of cases. 5. In this submission, set out in more detail in the Report for the Hearing, the applicants argue in substance that, once the ad hoc Committee had verified that the I — Admissibility candidates held a university degree and after holding an interview to assess their level and field of competence, it should in any case have entered the applicants on the 4. By their second claim the applicants seek list of suitable candidates because they held an order requiring the Commission to enter a university degree or a diploma. their names on the list of candidates suitable for performing Category A duties. However it is clear from the consistent case-law of the Court that this sort of claim is inad- 6. In that respect it must be stated first of missible. The Court cannot encroach upon all that paragraph III 2 (d) of the * Translated from the French.
OPINION OF MR MISCHO —JOINED CASES 151 TO 154/86
Procedural Arrangements of 1978, which that' or 'provided that' (for example, the Court examined in the Adam case 'provided that following an interview (judgment of 9 October 1984 in Joined their level of competence is judged to be Cases 80 to 83/81 and 182 to 185/82 [1984] satisfactory by the Committee'); E C R 3411), was worded as follows: (c) According to paragraph III 2 (e), the list contains the candidates 'considered 'Candidates holding a university capable' and not candidates considered d e g r e e . . . are to be recognized [sont 'the most capable'. reconnus] as eligible for transfer following verification of their diplomas and an It is also apparent from the provision at interview with the Committee to assess their the end of paragraph II (1) of the area of competence.' Procedural Arrangements that unsuc- cessful candidates must be considered to 7. T h e corresponding passage from the be unsuitable ('subject to the proviso 1983 Procedural Arrangements, which is at that they have not been considered issue here, provides as follows: unsuitable in three consecutive procedures'); 'Candidates holding a degree . . . may be (d) the ad hoc Committee itself [the French text reads "pourront être", acknowledges having had some hesi- which is translated in the English version of the notice as "will be"] recognized as tation on t h e . point whether all eligible for transfer following verification of graduates should automatically be put their diplomas and an interview with the on the list. committee to assess their [level and] areas On page 9 of the Committee's report it is [the French text reads "le niveau et le secteur"] of competence.' stated :
'The Selection Board encountered a 8. I think that the English version of that difficulty inasmuch as half the candidates passage may be ignored since all the other held a university degree or equivalent language versions use the expression 'may diploma.' be.' However, it remains to be seen whether, despite that amendment, the new (The German language version is even more version of the text means that the categorical since it states that: 'Das Haupt- Committee was obliged to enter all the problem des Prüfungsausschusses bestand candidates holding a university degree on darin, daß . . . ' (the main problem of the the list of suitable candidates merely by Selection Board was t h a t . . . ) . ) virtue of their possession of a degree. The ad hoc Committee goes on to state that: 9. T h e following arguments may be 'After an interview with those candidates, adduced in favour of such an obligation: the Committee might have confined itself to indicating their level and area of (a) the expression 'interview' does not in competence but, had it done that, it would itself connote an examination o r a have effectively excluded all the candidates competition; who were not graduates or would have been obliged to put forward a number of suitable (b) the text states: 'after an interview to candidates incompatible with the wording of assess their level .and area of the Procedural Arrangements. The majority competence,' and not 'on condition of the Committee considered that, despite
BAUER v COMMISSION
the risk of actions analogous to those which It is not specified that the list must have been previously brought, it was better indicate the level of competence. to decide which of the candidates were suitable for performing Category A duties, irrespective of whether or not they were graduates.' Certainly, it would probably have been compatible with that text for the Committee to draw up a list showing, 10. The following arguments may be in descending order of level of adduced in support of the opposite competence, all the candidates holding a viewpoint, which is adopted by the degree or diploma. Had this been done, Commission : it would have been necessary, in order to respect the principle of equal (a) there is a general practice in the treatment, to enter in that list, at appro- Community according to which no priate places, the names of candidates distinction is made, when officials are not holding a degree or diploma who recruited or promoted, between holders had a comparable level of competence. of a degree or diploma and candidates In the end, that list would have included with equivalent professional experience. all or almost all of the candidates in the Holders of a degree or diploma do not two groups since we know that some of enjoy any priority; the candidates holding a degree or diploma were very near the bottom. Bearing in mind that the available posts (b) when candidates are recuited directly were limited in number, only the best- into Category A, there is a rigorous placed candidates would have had a selection between candidates who hold chance of being appointed during the a degree or diploma. If such candidates period of validity of the list of suitable could be recruited first into Category B candidates. and then have the right automatically to be entered on a list of suitable candidates for transfer to Category A, the abovementioned selection procedure The task of the ad hoc Committee was would be circumvented; to facilitate the Commission's task of making appointments by submitting a (c) as the Commission correctly points out, list which did not greatly exceed the 'assessing the level of competence' number of available posts; necessarily implies a comparison between the graduate candidates' respective levels of competence. Secondly, the words 'may be recognized (e) as regards the applicants' argument to as eligible' imply that the Committee the effect that the Committee was not was entitled to select the candidates entitled to turn the interview provided whose level of competence was not for by the Procedural Arrangements lower than a particular threshold which into a real examination by asking the the Committee was entitled to fix by candidates to give a talk and to reply to virtue of its power of discretion; questions, one may observe as follows.
(d) according to paragraph III 2 (e) of the Procedural Arrangements, the list of 11. Traditionally, the Court has suitable candidates must indicate the acknowledged that selection boards in area of competence of each candidate. competitions, and promotion committees,
OPINION OF MR MISCHO —JOINED CASES 151 TO 154/86
have a wide discretion in choosing the Article 98, which provides that the means by which they intend to assess the provisions of Article 45 (2) 'shall not apply" abilities or the merits of candidates. to officials paid from appropriations in the research and investment budgets. According to Article 45 (2), 'an official may 12. The ad hoc Committee was therefore b e . . . promoted from one category to entitled to organize or to structure the another only on the basis of a competition'. interview by asking candidates to give a Since this requirement is removed by Article brief talk and by asking them questions 98, such promotions may therefore take chosen from a list drawn up in advance. A phce without a competition. simple conversation with the candidates would probably not have enabled the Committee to form a sufficiently precise 17. T o my mind, however, it would be idea of the candidates' level of competence. contrary to the rules of logic to draw the A candidate's ability to present a problem in conclusion from those two texts that in the the form of a talk is a good criterion for case of Euratom officials promotion from this. Category B to Category A must take place without a competition.
13. In those circumstances, the interpre- tation given by the Committee to the word 18. If the Commission is entitled to 'interview' was not manifestly wrong. organize a competition, it is equally entitled to apply a procedure which borrows certain distinctive features from a competition even 14. All in all, I consider the second set of though it is different from a competition. arguments more convincing than the first and that the first submission must therefore be dismissed. 19. The Court has had occasion to state that,
The submission alleging a breach of Article 98 'in principle nothing prohibits the appointing authority from laying down in a 15. In their second submission the general internal decision rules governing the applicants maintain that the Committee used exercise of the discretion which it has under a procedure equivalent to a competition by the Staff Regulations' (judgment of 6 June choosing between the candidates holding a 1985 in Case 146/84 De Santis v Court of university degree or diploma from a Auditors [1985] ECR 1723, at p. 1734, comparable establishment. They maintain paragraph 11 of the decision). that it is apparent from the provisions of the second paragraph of Article 98 of the Staff Regulations that the appointing authority is 20. T h e Court has also held that, even not only entitled but also obliged not to when the Commission could have filled a organize a competition for the purposes of vacant post by means of promotion because transferring scientific and technical staff to a there was a candidate with sufficient higher category. seniority, it could none the less in its discretion decide to organize a competition (judgment of 25 November 1976 in Case 16. We must therefore try to clarify the 123/75 Kuster v European Parliament [1975] exact scope of the second paragraph of ECR 1701, at p. 1709.
BAUER v COMMISSION
The submission concerning the taking into difference by not requiring the presentation account of the budgetary situation of a dissertation by candidates with degrees or diplomas. 21. The applicants maintain that the ad hoc Committee should not have taken account 25. However, the applicants consider that of likely budgetary constraints as it did. they should not have been put into a situation where they had to compete with candidates without degrees or diplomas. 22. In that respect I would like to point out the following. The appointing authority alone has the power of appointment and it 26. It is apparent from the observations has not delegated that power to the ad hoc which have already been made at the Committee. It exercises that power in the beginning that in general the Community light of 'the budgetary situation' (paragraph accepts the principle that professional III 2 (e)). The task of the ad hoc Committee experience of a particular length of time and is to take into account the likely budgetary at a particular level may be considered equi- resources when drawing up the transfer list valent to a degree or diploma and that it is (paragraph I (d)). Contrary to the therefore legitimate to make those two arguments of the applicants, there is no categories of candidates compete with one contradiction between those two provisions another. I consider that this consistent since one concerns transfers and the other practice of the Community does not breach recognition of suitability. The former are any fundamental legal principle. made year by year in the light of the budgetary resources available for each financial year; the latter is decided once and 27. Secondly, the applicants consider that, for all taking into account the budgetary even if the principle of equal treatment were resources which are likely to be available to be applicable, it must be accepted that it during the years for which the list of was contravened since the candidates suitable candidates is to remain valid. The without degree or diplomas enjoyed an two things are different. advantage in being able to present a disser- tation and be questioned on that disser- tation. 23. Furthermore, it is certain that the ad hoc Committee did not take into account the posts likely to become vacant in a single 28. In my view, the Commission did not year; had it done so, it would have drawn commit a manifest error of assessment in up a much shorter transfer list. assuming that the applicants' suitability was at least partially borne out by the possession The submissions concerning the principle of of a degree and that it was therefore not equal treatment necessary for them to present a dissertation.
24. The applicants point out first of all that 29. Of course, it cannot be excluded that in the principle of equal treatment cannot be a particular case a candidate might display applicable in the present case since the his suitability better by presenting a disser- candidates with degrees or diplomas are not tation and answering questions on that in the same situation as candidates without dissertation than by being obliged to give an degrees, or diplomas. Furthermore, they improvised talk on a subject chosen by him. acknowledge that the Procedural from three subjects selected by the ad hoc Arrangements take account of that Committee.
OPINION OF MR MISCHO —JOINED CASES 151 TO 154/86
30. However, the applicants, who consider list of subjects from which the applicants that the possession of a degree should ipso had to choose, we can see that this was in facto entitle them to be entered on the fact the case with the subjects offered. transfer list, cannot deny that they are assumed to have wider and more thorough 31. The questions asked by the Committee basic knowledge than candidates who have on certain aspects of the chosen subject acquired their competence 'on the job' and could not therefore catch the candidates that that knowledge should enable them entirely off their guard. without too much difficulty to give a talk on a subject which is at least related to their 32. I therefore consider that this submission area of special knowledge. If we look at the must also be dismissed.
Conclusions
33. For all the reasons indicated above, I can only suggest to the Court that it should dismiss the application and settle the question of costs in accordance with Article 70 of the Rules of Procedure.