C-181/86
ECLI:EU:C:1987:468
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DEL PLATO v COMMISSION
OPINION OF MR ADVOCATE GENERAL MISCHO delivered on 28 O c t o b e r 1 9 8 7 *
Mr President, comparative examination of the merits of all Members of the Court, the officials who are eligible for promotion, that is to say all the officals who have completed a minimum period in their grade.
1. The actions brought by Mr Del Plato, Mr Ferrari, Mr Paniecini and Mr Rodari against the Commission (Joined Cases 181 5. For some time the institutions have been to 184/86) raise the problem of the rules in the habit of making annual collective applicable to the transfer from Category B promotions within career brackets (for to Category A of officials in the scientific or Category A, from A 7 to A 6 and from technical services of the Communities. A 5 to A 4). T o facilitate their task, they have set up 'Promotion Committees' of a consultative nature which pre-select the most deserving candidates, since the available posts are hardly ever sufficient to 2. The Staff Regulations provide expressly allow all candidates with the requisite for only two methods of advancement, that seniority to be promoted. is to say the competition procedure and the promotion procedure.
6. The Court has not questioned that 3. In the competition procedure, the details system but has insisted that the appointing of which are set out in Article 30 and Annex authority undertake a comparative exam- III of the Staff Regulations, it is the task of ination of the merits of all the candidates, a Selection Board, appointed by the including those who do not appear on the appointing authority, to examine all the list of the most deserving candidates, before candidates and to draw up a list of those formally accepting that list. ' (Naturally in whom it considers suitable to occupy the both systems the making of the posts in question. The appointing authority appointments themselves is the prerogative draws on that list of eligible candidates of the appointing authority.) when it appoints candidates to vacant posts (see Article 30). It accepts totally the assessments made by the Selection Board and does not re-examine the case of 7. Clearly, when an official in Category B is candidates who do not appear on the list. appointed to an A 7 post he has been promoted in the broad sense of the term (see on this point the judgment of 9 October 1984 in Joined Cases 80 to 83/81 4. By contrast, in the promotion procedure and 182 to 185/82 Adam and Others v the appointing authority must undertake a 1 — See in particular the judgment of 12 October 1978 in Case 86/77 Ditterich v Commission [1978] ECR 1855, at * Translated from the French. paragraph 17.
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Commission [1984] ECR 3411, at paragraph which provides for a competition for 29, and D. Rogalla: Fonction publique euro- transfers from one category to another; péenne, pub. Fernand Nathan, Paris, and once that latter rule is waived, as in the case Labor, Brussels, 1982, pp. 137-8). However, of Euratom researchers, there is no logical the Staff Regulations regard that type of reason which precludes the application of promotion as a special type of advancement, the promotion procedure for transfers from dealt with in Article 45 (2) which provides one category to a higher category. that 'an official may be transferred from one service to another or promoted from one category to another only on the basis of a competition'.
11. Be that as it may, it is in any event not possible to ignore the other restriction contained in Article 45 (1), namely that promotion may only be effected by 8. However, under the second paragraph of appointment to the next higher grade. Thus, Article 98 the provisions of Article 45 (2) on the hypothesis that Article 45 (1) were are not applicable to officials who occupy applicable in the present case, only officials posts in the field of nuclear science calling in Grade B 1 could be transferred by way for scientific or technical qualifications and of promotion to Category A. w h o are paid from appropriations in the research and investment budget. Under what procedures, therefore, may such officials transfer from D to C, C to B and B to A? 12. For its part, the Commission considers that Article 45 (1) of the Staff Regulations cannot be applicable in the present case because there is a very clear difference 9. O n e interpretation, which is maintained between promotion stricto sensu and transfer by the applicants in their first submission, from one category to another. It considers consists in saying that since Article 45 (2) is that by waiving the requirement of a compe- inapplicable, Article 45 (1), in other words tition the second paragraph of Article 98 the 'normal' promotion procedure, comes gives the appointing authority a wide into play. That interpretation overlooks the discretion in organizing that type of fact that Article 45 (1) refers only to advancement, provided of course that the promotions within the category to which an fundamental principles of objectivity, official already belongs ('promotion . . . shall equality and so forth are observed. be effected by appointment of the official to the next higher grade in the category or service to which he belongs').
13. The Commission used that power when adopting the 'Procedures to be implemented prior to decisions on the transfer from 10. However, it might be maintained in Category B to Category A of officials and support of that argument that the restriction temporary staff in the scientific and concerned is due to the simple fact that the technical services' (hereinafter referred to as article also contains a second paragraph the 'Procedures') with which the present
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cases are concerned. Those arrangements Commission. 2 He considered that under provide for a procedure which, whilst Article 98 the officials in question could not different from the competition procedure, be appointed to a grade other than the none the less displays numerous similarities grade immediately above their own, whether with it. in another category or the same category. H e considered that the justification for this restrictive provision was that the officials in question could benefit from numerous 14. In the present context two charac advantages when first appointed, under teristics of those Procedures must be Article 95 and the first paragraph of Article particularly stressed. 98, when promoted, under the third paragraph of Article 98, or under other provisions in Title VIII.
15. (a) Whereas in the context of Article 45 (1) promotion is possible only to the next 18. Although that interpretation may higher grade, the Procedures regard not perhaps correspond to the intention of the only officials in Grade B 1 but also officials drafters of the Staff Regulations it does not in Grades B 2, B 3 and B 4 who have necessarily follow from the wording and, completed a particular period in their grade had it adopted it, the Court would have as eligible for appointment to Grade A 7. introduced excessive rigidity in the career possibilities of those officials.
16. The Commission probably considered that this method of proceeding was in 19. (b) Secondly, the system instituted by accordance with the spirit of Articles 92 et the Commission sets up an ad hoc committee seq. of the Staff Regulations which provide which is not described as a consultative for great flexibility in the career possibilities committee. Following its deliberations, that of Euratom researchers. In its judgment of committee submits a reasoned report to the 20 October 1977 in Case 5/76 Jănsch v appointing authority with the list of Commission [1977] ECR 1817, at para candidates considered capable of graphs 16 to 18, the Court considered that performing Category A duties. That list of the possibility for Euratom officials of successful candidates remains valid until a promotion from one category to another new list has been drawn up (see the without a competition was one of the Procedures, Section III (2) (c) and (f)). advantages which the Staff Regulations were intended to bestow on researchers in order to compensate for the insecurity which results from the fact that research 20. The appointing authority thus does not programmes are of limited duration. examine the merits of all of the candidates who have applied. It adopts the list of successful candidates and, when posts become vacant, appoints persons appearing 17. In passing, I should draw attention to on that list. In this essential aspect the ad hoc the fact that in so doing the Court adopted procedure therefore clearly resembles the an interpretation different from that put competition procedure. forward by one of the first commentators on the Staff Regulations, A. M. Euler, 2 — A. M. Eulcr: 'Europäisches Beamtenstatut', Dritter Teilband, p. 692, Kölner Schriften zum Europarecht, Carl a Director-General at the Euratom Heymanns Verlag KG, 1966.
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The objection of inadmissibility raised by the affecting all or a large proportion of the Commission officials of an institution, an official taken individually cannot be deprived of his right to invoke the illegality of that measure in 21. For reasons which I will deal with later, order to attack the individual decision the applicants consider that the Procedures which alone allows him certain knowledge are illegal and they therefore claim that of the manner in which and the extent to under Articles 184 of the EEC Treaty and which his individual interests are affected'. 156 of the EAEC Treaty those arrangements should be declared inap- plicable by the Court.
26. Can the Procedures be considered to be such a measure? 22. The Commission considers that this objection of illegality is inadmissible. 27. In this respect the Court has already 23. Under the two articles relied on by the taken a position in the following terms: 5 applicants, the measure in respect of which illegality is alleged must be 'a regulation of the Council or of the Commission'. 'although the Court has consistently held that internal directives or measures of an internal nature such as the procedural
24. In spite of that terminology the Court arrangements laid down by the Commission considers that Article 184 of the EEC may not be regarded as rules of law which Treaty and Article 156 of the EAEC Treaty the administration is always bound to express a fundamental principle of observe, they nevertheless form rules of Community law whereby a plea of illegality practice from which the administration may can be raised against any measure of the not depart without giving the reasons which institutions which lays down general rules led it to do so, since otherwise the principle provided that there is a direct and necessary of equality of treatment would be legal link between the measure challenged infringed.'6 and the general measure alleged to be illegal.3
28. Under no circumstances can such an 25. As regards the Staff Regulations, the internal measure establish rules which Court ruled in its judgment of 18 March derogate from the provisions of the Staff 1975: 4 Regulations.7 5 _ Judgment of 9 October 1984 in Joined Cases 80 to 83/81 'in the context of the right of action made and 182 to 185/82 Adam and Others v Commission [1984] ECR 3411, at paragraph 22; see also my Opinion in Case available by Article 91 of the Staff Regu- 15/85 Consorzio cooperative d'Abruzzo s Commission and lations and in the case of a measure of a judgments cited therein, namely the judgment of 30 January 1974 in Case 148/73 Louwage v Commission general nature designed to be implemented [1974] ECR 81, at paragraph 12; the judgment of 1 December 1983 in Case 343/82 Michael v Commission by means of a series of individual decisions [1983] ECR 4023, at paragraph 14; the judgment of 13 December 1984 in Joined Cases 129 and 274/82 Lux v Court of Auditors [1984] ECR 4127, at paragraph 20. 3 — See, most recently, the judgment of 10 June 1986 in Joined Cases 81 and 119/85 Umor v Commission [1986] ECR 6 — See also the judgment of 21 April 1983 in Case 282/81 1777, at paragraph 13. Ragusa v Commission [1983] ECR 1245, at paragraph 18: the decision of an internal nature in question to which the 4 — Joined Cases 44, 46 and 49/74 Acton and Others v Court ascribed legal effect was a memorandum of the Commission [1975J ECR 383, at paragraph 7; in that case appointing authority setting out the promotion procedure the 'measure of a general nature designed to be (wnich was not provided for in the Staff Regulations). implemented' was a Commission decision of 21 March 1973 to withhold the salary of officials who had 7 — See judgment of 1 December 1983 in Case 343/82, supra, participated in strike action. at paragraph 16.
DEL PLATO v COMMISSION
29. It may therefore be concluded that if dismiss an application for the annulment of one or more officials affected by such a rule the Procedures (in an earlier version largely consider that it contravenes a provision of identical to the present one); it therefore the Staff Regulations or a general principle impliedly held that the action brought of Community law they must be allowed to against those rules was admissible. raise an objection of illegality against that rule.
34. Finally, it must be noted that since the Adams judgment of 11 March 1986 the 30. The Commission, however, considers Court has heard another case (Case 307/85 that such an objection of illegality is inad- Gavanas v Council [1987] ECR 2435) in missible in the present case in the light of which the defendant institution argued that the similarity between the Procedures and a an application to annul an appointment competition notice. The Commission bases because of the irregularity of a competition its argument on the judgment of 11 March was inadmissible because the applicant had 1986 in Case 294/84 Adams and Others v not challenged the organization of the Commission [1986] ECR 977, the relevant competition within the requisite time period. passage from which is cited in Section Mr Advocate General Lenz 8 stressed that II — A of the Report for the Hearing. most of the Court's case-law admitted that in such cases measures adopted earlier (competition notices, measures incidental to the competition) could be included in the proceedings and challenged as preparatory 31. The Commission is not wrong to stress measures. In this respect he referred to the that the Procedures 'like a notice of compe- judgment in Cases 11/65, 9 21/65, 1 0 tition, set up a well-defined procedure for 3 7 / 7 2 " and 101/77 1 2 and proposed that the transfer to Category A' under the the submissions concerned should not be conditions indicated therein, of officials and dismissed on the basis that a separate action temporary staff of the scientific and should have brought in respect of them at technical services in Category B who the appropriate time. applied before 30 September 1983.
35. At paragraph 16 of its judgment of 10 32. On the other hand, it must be recalled June 1987 in Case 307/85 Gavanas (cited this is not formally a notice of competition above), the Court declared that 'since the and that the text in issue contained rules of illegality of acts preliminary to the act a normative nature, which are not normally found in notices of competition. 8 — Sec the Opinion of Mr Advocate General Lenz of 21 January 1987 in Case 307/85 Gavanas v Council ECK 2435 at paragraphs 27 and 28. 9 — Judgment of 14 December 1965 in Case 11/65 Morina v /W<amfBí[1965] ECR 1017. 10 — Judgment of 14 December 1965 in Case 21/65 Monna v Parliament [\9bS] ECR 1033. 33. Moreover, in the Jänsch judgment of 20 11 — Judgment of 15 March 1973 in Case 37/72 Marcato v Commission [1973] ECR 361. October 1977 in Case 5/76 [1977] ECR 12 — Judgment of 13 April 1978 in Case 101/77 Camini v 1817, the Court has already had occasion to Commission [1978] ECR 915.
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adversely affecting the official, in particular However, when the actions were brought acts of the selection board, may be relied on one applicant was an official in grade B 2, in the course of proceedings against the two were in grade B 3 and the fourth in final decision in which they culminated, the Grade B 4. fact that the applicant did not bring a direct action against the acts of the selection board cannot be regarded as acquiesence'. 40. It therefore follows that the objection of illegality raised by the applicants with regard to the Procedures is inadmissible for lack of interest. 36. For all the above reasons I suggest that the submissions of the applicants with regard to the legality of the Procedures 41. The Court will recall that it has on a should not be dismissed as being out of number of occasions in the past delcared time. submissions to be inadmissible for lack of interest: see in particular Case 37/72 Marcato v Commission [1973] ECR 361, Case 90/74 Dehoek v Commission [1975] (a) The ad hoc committee's role ECR 1123 and the judgments cited by Mr Advocate General Warner in his opinion in that case, [1975] ECR 1141. 37. In their first submission the applicants raise an objection of illegality with regard to one of the essential features of the 42. However, it is my duty to examine in Procedures, namely the fact that they the alternative the substance of the authorize the ad hoc committee to draw up applicants' arguments. a definitive list of suitable candidates, as in the case of a competition. 43. It seems to me first of all that it would hardly be possible to criticize the Commission if it had granted promotion to 38. In so doing the Procedures infringe officials in Grade B 1 on the basis of the Article 45 (1), the only relevant provision in criteria and procedure provided for in this case. The applicants submit that Article 45 (1). according to the wording of that provision appointments must be made freely by the appointing authority after consideration of 44. However, this does not mean that the the comparative merits of the officials Commission chose an illegal procedure eligible for promotion and of the reports on when it adopted the Procedures. them, and its discretion cannot he fettered by the drawing up of a list of suitable candidates. 45. In the Jänsch judgment (Case 5/76, supra), the Court gave a wide interpretation to the second paragraph of Article 98 since 39. However, it seems that the applicants it recognized that the possibility for the cannot legitimately rely on that argument officials referred to in Article 92 to be trans- since, as I have indicated above, were it ferred from one category to another applicable, Article 45 (1) would only allow without a competition was set out in that promotion 'to the next higher grade', that is article. In the Court's view this is therefore to say from B 1 to A 7 or even to A 8. a different possibility from that which might
DEL PLATO v COMMISSION
flow from Article 45 (1) and is not limited exercise of the discretion which it has under to officials in grade B 1. the Staff Regulations' (see judgment of 6 June 1985 in Case 146/84 De Santis v Court of Auditors [1985] ECR 1723, p. 1734, at 46. The essence of the question is therefore paragraph 11). whether the Commission, proceeding on the basis of the second paragraph of Article 98, was or was not entitled to take as a model 51. Secondly, the Court has also held that the competition procedure and in particular even in cases where the Commission could to adopt the format of a list of suitable have filled a vacant post by promotion candidates drawn up definitively by a because there was a candidate with the selection board. necessary seniority, it could nevertheless, by virtue of its wide discretion, decide to organize a competition instead (see 47. In other words, what is the effective judgment of 25 November 1976 in Case scope of the second paragraph of Article 98, 123/75 Kuster v European Parliament [1976] which provides that 'Article 45 (2) shall not ECR 1701). apply5 to officials paid from the research and investment budget? Under the terms 52. Finally, it is quite obvious that, contrary of Article 45 (2) 'an official may to the applicants' arguments, the Procedures be . . . promoted from one category to do not imply that the appointing authority another only on the basis of a competition'. has delegated its 'promotion power'. The Since Article 98 removes that requirement, appointing authority decides in its own transfer from one category to another may discretion on transfers from one category to take place without a competition. another on the basis of the list of suitable candidates. Persons whose names are entered on that list do not automatically 48. However, to my mind it would be have the right to be appointed. contrary to the rules of logic to draw the conclusion from those two texts that, for Euratom officials, transfer from Category B (b) Breach of the rules concerning compe- to Category A must take place without a titions competition. 53. The applicants submit that once the 49. If the Commission is entitled to Commission had introduced a competition organize a competition it is also entitled to system it should have observed all the rules apply a procedure which adopts certain concerning the competition procedure distinctive features of the competition which are set out in Annex III of the Staff procedure but nevertheless remains different Regulations. from it. 54. I think that I have already set out the reasons why the Commission was not 50. In fact, the Court has already had obliged to do that. occasion to state that
55. Furthermore, the Commission would 'in principle nothing prohibits the not have been able to observe the rule appointing authority from laying down in a whereby the notice of competition must general internal decision rules governing the specify the type of duties and tasks involved
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in the post to be filled (see Article 1 (1) (c) 60. The ad hoc committee was asked to take of Annex III) since at the time when the into account the budgetary situation, that is Procedures were published it was not to say the posts likely to become vacant and possible to know with any certainty what to be filled by transfer from one category to posts would become vacant during the another during the period of validity of the period of validity of the list of suitable list of suitable candidates. That period is not candidates. fixed in advance: it was simply stipulated that the list would remain valid until a new list was drawn up (see the Procedures, 'Section III (2) (f)). As this sort of promotion procedure does not take place 56. T h e Commission was of course obliged regularly some uncertainty remained as to to avoid infringing a superior rule of law. the period of validity of the list and conse- quently the total number of posts likely to become available. In those circumstances it was not possible for the Commission to decide with any certainty the 'number of 57. The applicants lay stress on the fact that posts to be filled' and thus the committee the list should have contained at least twice was not in a position to calculate by extra- as many names as the number of posts to be polation twice the number of those posts. filled, as provided by the fifth paragraph of Article 5 of Annex III.
61. Now, after the event, it is apparent from the data made available by the Commission that on the date of the oral 58. The text concerned specifies that this proceedings nine appointments had been must be done 'wherever possible'. made and two appointments were about to be made from a list of suitable candidates which contained 15 names. Thus even three years after the selection procedure the number of candidates on the list still signifi- 59. Furthermore, even if the number of cantly exceeds the number of posts filled. candidates on the list did not greatly exceed the likely number of posts in the budget, the Court's case-law makes it clear that that cannot vitiate the result of the work of the committee. As the Court stated in its 62. Consequently the applicants' submission judgment of 26 October 1978 in Case cannot be upheld. 122/77 Claes v Commission [1978] ECR 2085, p. 2099, at paragraph 22, 'the fifth paragraph of Article 5 of Annex III is only a recommendation to the selection board, (c) Breach of the principle of equal treatment intended to facilitate the decisions of the to the detriment of candidates holding a appointing authority, and whether or not it degree or diploma is followed depends on the nature and circumstances of the competition, the number of candidates and their qualifi- cations'. The provision concerned is not 63. For the reasons set out in more detail in therefore a fundamental principle which the Report for the Hearing the applicants must be observed in all circumstances. consider that the fact that the Procedures
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exempted officials or temporary staff view that that choice worked to his holding a university level degree or diploma detriment. in reality placed them at a disadvantage in relation to the other candidates.
68. In general the applicants, who consider, moreover, that the possession of a degree or diploma should automatically give them the 64. It should be recalled first of all that as right to be entered on the list of suitable the Court has consistently held the general candidates, cannot deny that they are principle of equal treatment, which is one of assumed to have a wider and a more the fundamental principles of Community thorough basic knowledge than the law, does not forbid differing treatment of candidates who acquired their skills 'on the situations which are not identical. job' and that that knowledge should enable them without too much difficulty to give a talk on a subject which is at least close to their own speciality. If we examine the list of subjects for the talk amongst which the 65. It cannot be denied that there was an candidates were required to choose we can objective difference between holders of a see that this was in fact true of the subjects university degree or diploma and other given. candidates. To my mind the Commission did not make a manifest error of assessment in taking the view that the possession of a degree or diploma at least partly established the suitability of the first group and that 69. Nor could the questions subsequently there was therefore no need for them to put by the committee on certain aspects of submit a dissertation. the chosen subject catch the candidates entirely unawares.
66. The possibility can certainly not be excluded that in a particular case a 70. However, counsel for the applicants candidate might be better able to display his considers that Mr Del Plato, an architect, ability by submitting a dissertation and was placed at a particular disadvantage by answering questions based on that disser- the system adopted by the ad hoc committee. tation than by being obliged to give an That candidate chose, from the three impromptu talk on a subject chosen by subjects offered to him, to give a talk on himself from three subjects given by the ad 'the role of the architect in a nuclear hoc committee. research centre which is already in operation'. It is difficult to imagine that that subject and the questions which he was asked on it in the following quarter of an hour could have deprived him of the possi- bility of demonstrating his competence and 67. On the other hand, the only graduate put him in a worse position than the candidate who was invited to present a candidates who were required to present a dissertation and who in fact did so took the dissertation.
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71. For the above reasons I consider that manifestly erroneous assessment of the the principle of equal treatment was not suitability of the candidates. infringed to the detriment of holders of a university degree or diploma. (e) Absence of a detailed record of the different interviews (d) Complaints concerning the last part of the interview 76. I can deal with this point extremely briefly. In its reasoned report the ad hoc committee explained in detail how it 71. T h e last quarter of an hour of the proceeded. The appointing authority and interview concerned questions of a general the Court were enabled to conclude that the scientific and technical nature. The committee proceeded seriously and meth- applicants maintain that those questions, odically. The committee explained how it which had no connection with their marked the different phases of the specialities, were so general that candidates procedure. Such a committee cannot, on top could answer only in general terms. of this, be required to record in its report all the questions asked of the candidates or the answers which they gave. Finally, there could be no question of annexing to the 73. In this respect it must be noted at the report the marks obtained by each candidate outset that that phase of the interview was for each phase and in total, since any identical for candidates of both groups. The discretions might have caused harm to the five questions asked of each candidate were candidates with the lowest marks. drawn from one and the same list. For each candidate one of the questions was connected with his area of special (f) Failure to observe the time-limits which knowledge. Since there were four other were originally envisaged questions there was little danger that all four would be very difficult or very easy. T h e wider the scientific and technical back- 77. It is quite evident that those time-limits ground of a candidate, the greater the were only guidelines. number of questions which would appear to him to be easy. (g) Failure to disclose the marking method
74. It might even be thought that holders of 78. I have already dealt with this question a degree or diploma from an establishment under point (e). of higher education ought, in principle, to be a little better able to answer those questions than other candidates. (h) The irregularity of using questionnaires sent to candidates' superiors and the breach of the audi alteram partem principle 75. The ad hoc committee was perfectly entitled to proceed as it did, in light of the wide discretion which the Court considers 79. The applicants submit that the selection bodies to have. The method standard-form questionnaire sent by the ad followed was not likely to lead to a hoc committee to the candidates' superiors
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cannot be considered to be equivalent to the there is a considerable difference between interview with the superiors of each the Adams case and this one, in that in candidate provided for in the Procedures, Adams the interviews played a much more and that there has therefore been an important role. The question in issue was infringement of those Procedures. whether 53 officials should Kave been entered on the list of candidates admitted to the tests in a competition. A negative decision had been taken with regard to them exclusively on the basis of their files and interviews between the selection board 80. It must be acknowledged that the use of and the assistants to the Directors-General such a questionnaire was not provided for concerned. by the procedural rules. However, it seems to me that there is not such a difference between a questionnaire and an interview that the one cannot be considered as being equivalent to the other. Since a ques- tionnaire requires more reflection and more 83. In the present case the decision not to careful drafting, to my mind it offers the enter the applicants' names on the list of candidates more guarantees than a simple suitable candidates was taken after interview. interviews which they themselves had with the ad hoc committee.
81. Furthermore, it appears from the 84. Marks were awarded to the candidates applicants' reply that if the selection board solely on the basis of the two interviews. had undertaken the interviews in question The marks for the first interview were they would in any event have contested the sometimes amended by the award of a legality of those interviews if they had not bonus for publications of the candidates, been given the opportunity to comment on which were read and commented on by a the oral observations of the superiors. They member of the selection board. No marks would have relied on the same judgment of were awarded in respect of their superiors' 11 March 1986 in Case 294/84 Adams v replies to the questionnaire. Commission [1986] ECR 977, which they are now invoking in connection with the fact that their superiors' answers to the questionnaire were not submitted to them for comment. 85. Nor is this the same type of situation as the Rittweger case (judgment of 3 February 1971 in Case 21/70 [1971] ECR 7, at pp. 17-18), in which the Court concluded that a telex sent by the personnel department to 82. It is therefore sufficient to consider the members of the Commission during a whether the applicants should have been selection procedure and which, although it given the opportunity to comment on the contained assessments of the candidates, answers given by their superiors. In this had not been brought to their attention was respect it should be noted first of all that sufficient to vitiate the procedure. In that
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case the candidates sat no tests and there 88. Consequently, these two submissions was no interview with the appointing cannot be accepted. authority before the decision was adopted. Furthermore, in its judgment the Court expressly pointed out that the telex in question had a decisive influence on the content of the decisions challenged and that (i) Mr Paruccini's particular submissions it contained assessments unfavourable to the applicant which differed strikingly from the opinion which appeared from her periodic report. 89. Mr Paniecini submits first that his dissertation was not examined by the selection board. If by that the applicant means that not every member of the selection board read his dissertation it must be stated that there is no such requirement in the Procedures. If, on the other hand, the 86. This was not so in the present case. For applicant means that he did not have the the reasons set out above it cannot be opportunity of making an oral presentation concluded that the replies given by the of the dissertation for 15 minutes before the superiors to the questionnaire exercised a ad hoc committee then he has not provided decisive influence on the decisions of the ad any proof of such an irregularity. hoc committee. Secondly, it is common ground that none of those replies contained an unfavourable assessment.
90. Secondly, the applicant considers that the ad hoc committee should have called on the assistance of an expert, in light of the very specialized nature of the subject of his dissertation. 87. During the course of the hearing counsel for the applicants even expressed the opinion that the replies to the question- naires should have led the ad hoc committee to enter the applicants' names on the list of 91. The text of the Procedures provides suitable candidates. According to the that 'the Committee may call on the Court's case-law, a procedural irregularity assistance of experts when the dissertation is will entail the annulment of a decision in presented and examined in the candidate's whole or in part only if it is shown that in presence'. The committee was therefore the absence of that irregularity the decision entitled to take the view that there was no challenged might have been different (see need to call on the assistance of an expert in the judgment of 23 April 1986 in Case that particular case. Furthermore, no 150/84 Bernardi v Parliament [1986] ECR evidence was cited or adduced to the effect 1375, at paragraph 28, and the judgment of that the member of the committee who 29 October 1980 in Joined Cases 209 to 215 examined the applicant's dissertation (and and 218/78 Van Landewyck v Commission gave him the mark 'good') did not have the [1980] ECR 3125, at p. 3239). necessary qualifications to assess its worth.
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Conclusion
92. Since I have not been able to accept any of the complaints made by the applicants I can only propose that the Court dismiss the application.
93. Costs should be awarded on the basis of Article 70 of the Rules of Procedure.