C-181/87

OPINION OF MR LENZ — CASE 181/87

OPINION OF MR ADVOCATE GENERAL LENZ delivered on 5 May 1988 *

Mr President, said reorganization was not challenged at Members of the Court, the time and that the applicant applied in 1979 to have the deterioration in her position under the Staff Regulations (so far as concerns promotion to Category A) remedied and when her application for rein­ tegration into the scientific service or the 1. My Opinion on the case brought by Mrs holding of a special competition was Agazzi Leonard relating to the rejected she did not pursue the matter. Commission's Internal Competition COM / A / 8 / 84 in which officials could take part who wished to be promoted from Category B to Category A, is as follows:

1. Admissibility

* Translated from the German.

AGAZZI LÉONARD v COMMISSION

the legal position created in 1973 should be 6. On the other hand, the question whether changed but rather that it should be the the Selection Board could take account of basis for judging a competition held in 1985. the applicant's particular case and whether it was required to do so is not, properly understood, a matter of admissibility but should be considered in relation to the substance of the action.

4.(b) The same may be said of the Commission's objection that criticism of the 7.(c) There are thus no strong objections to organization of the competition, such as the admissibility of the action or of the indi­ that made by the applicant, is inadmissible vidual claims. because the Selection Board could not remedy the applicant's particular problem and of its view that it is no longer possible to challenge the notice of competition because an action against it was not brought in good time. 2. Substance

OPINION OF MR LENZ — CASE 181/87

policies had to be answered. The first part discuss the role of the European Investment of the oral test was concerned with general Bank) could be regarded as being at a knowledge and the questions were of a disadvantage if they did not by chance have general nature (the applicant had to discuss the relevant knowledge or did not have the the conquest of space, which should not opportunity to acquire such knowledge in have caused her any special difficulties). their previous work. After that the applicant's training and work were discussed and the role of her work within the context of the Community's policies, in other words in this context account was taken of the particular situation of the candidates, which the applicant herself considers right.

AGAZZI LÉONARD v COMMISSION

13. If it is thus not possible to criticize the low age of 43 she is in no way stuck in the choice of questions on Community policies B Category and she has been in Grade B 2 in the oral examination, the same is (which, moreover, and this should not be obviously also true of the manner in which overlooked, has the same remuneration as the answers were assessed, that is to say the Grade A 7) only a few years (1982). fact that no account was taken of the particular situation of the candidates and (in the applicant's case) without facilitating promotion to Category A through a kinder assessment on the ground that as a member of the Scientific Service she would have had 16. The arguments adduced in support of that possibility pursuant to Article 98 of the the first two submissions cannot therefore Staff Regulations. There would be serious advance the applicant's case. objections to such a practice in a very general competition for a large number of Grade B officials from all kinds of departments, for the very appearance of any special treatment of individual candidates certainly had to be avoided. 17.(b) In so far as the applicant objects with reference to the fact that scientific posts also have to be filled in the Commission, that the competition was not arranged to determine whether the candidates had that kind of knowledge and takes the view that there was thus an infringement of Article 27 of 14. It would also have been too much to the Staff Regulations (which requires expect for a Selection Board to make sure, officials of the highest standard of ability, as the applicant wanted it to do, that it efficiency and integrity to be recruited), the compensated for 'anomalies' caused by question argued in these proceedings administrative reorganizations (quite apart whether Article 27 applies at all to internal from the fact that to entertain any such competitions may remain open. considerations would in a way be a challenge to administrative measures belonging to the distant past and no longer open to review).

of a reserve list from which vacancies of be heard on that issue. Secondly, in so far as many different kinds are to be filled. By its it concerns the setting of the tests within the nature, such a competition procedure can discretion of the Selection Board, it must be only be concerned with determining general said that it has not been contended that the suitability for A 7 and A 6 duties. In so far Selection Board caused the applicant to as it was to be recognized by the Selection entertain any legitimate expectations. Board, that naturally does not mean that every candidate whose name was included in the reserve list enters consideration on an equal basis for every available post in the said categories. On the contrary, in filling any vacancies regard must be had to the qualifications required for those vacant posts. It was, however, inconceivable to have regard to that aspect at the general examination stage and to determine the 23. Furthermore, it may also be shown that subject of the examination accordingly. the two factors referred to by the applicant in the present context are scarcely apt to found an expectation under the relevant case-law, that is to say to awaken legitimate expectations to which the administration (as 3 is stated in the judgment in Case 289 / 81 ) 20. If the applicant's objection is to be must have regard. understood as meaning that in the notice no account was taken of the fact that there might be scientific posts to be filled, it is important to remember that not only was the degree of probability of such vacancies arising not known at the time when the notice was published, but also that in the case-law I have cited such an objection to the notice of competition has been held 24. Thus, when the applicant refers to her inadmissible. efforts to further her education, which led in 1978 to her obtaining a degree from a Belgian university, it may be pointed out that she has adduced no evidence suggesting that she was induced to do so by the Admin- istration and might thus expect appropriate 21.(c) It remains to examine the objection consideration in her career possibilities. that the applicant's legitimate expectation Moreover, it must not be forgotten that the was disappointed. applicant's further education took place after the Medical Service had been inte­ grated into the General Directorate for Administration; at the relevant time the applicant was thus well aware that there could no longer be any question for her of 22. Two observations suffice to show that it facilitated transition to Category A pursuant is not valid. First, should it relate to the to Article 98 of the Staff Regulations. wording of the notice in so far as too little attention was paid to scientific candidates, it 3 — Judgment of 29 May 1983 in Case 289/81 Vassilis Mavridis may be said that the applicant can no longer v European Parliament [1983] ECR 1731.