C-225/87

OPINION OF MR VAN GERVEN — CASE 225/87

OPINION OF MR ADVOCATE GENERAL VAN GERVEN 5r delivered on 18 April 1989

* Original language: French.

BELARDINELLI AND OTHERS v COURT OF JUSTICE

First of all, the candidates whom the The letter was sent to all the candidates Selection Board considered itself bound to affected by the assessment of their practical exclude each received a memorandum indi­ experience, including those candidates who cating the condition for admission which had not asked for any explanation. In the they did not satisfy. In response to that accompanying memorandum, it was stated memorandum, eight of the 13 applicants that the Selection Board regarded the letter submitted to the Selection Board, either as a sufficiently comprehensive reply to the direct or through the Personnel Division, requests made to it and that it did not individual requests for reconsideration of its intend to reply individually to those decision. In most cases the requests sought requests.

OPINION OF MR VAN GERVEN —CASE 225/87

4. Pursuant to Article 25 of the Staff Regu­ 'In order to make allowance for the lations, practical difficulties which arise in a compe­ tition for which there is a very large number of applications, the Selection Board may initally send to the candidates merely infor­ 'Any decision relating to a specific indi­ mation on the criteria for selection and the vidual taken under these Staff Regulations result thereof, subject to its subsequently shall at once be communicated in writing to providing individual explanations for those the official concerned. Any decision of the candidates who expressly ask for adversely affecting an official shall state the them'. (Joined Cases 100, 146 and 153/87 grounds on which it is based.' Basch and Others v Commission [1989] ECR 447, paragraph 10; see also Michel, Verzyck and Sergio, cited above, and Case In a number of decisions the Court has 206/85 Beiten v Commission [1987] clarified the purpose and the scope of the ECR 5301). Selection Board's obligation to state the reasons on which its decision is based:

Finally, in Basch, supra, the Court held that 'the obligation to state the reasons for an the Selection Board's decisions not to admit adverse decision is meant to enable the candidates to the tests did not adequately Court to review the legality of the decision state the grounds on which they were based and, secondly, to provide the person in view of the fact that the candidates had concerned with the information needed to received only

BELARDINELLI AND OTHERS v COURT OF JUSTICE

'standard letters containing no specific nations were given in a standard letter and reasons for the rejection of their therefore were not 'individual' explanations. applications' (paragraph 11). On the contrary, in the accompanying memorandum it was stated that the Selection Board did not intend replying individually to the requests submitted to it.

That last sentence — which, in my opinion, 5. There were undoubtedly a large number related only to the questions already put to of candidates in the competition in question. the Selection Board — was somewhat In the light of previous decisions of the unfortunate in so far as it might have given Court, the Selection Board was entitled, in the impression that the Selection Board did my opinion, to inform the excluded not intend to reply to any questions candidates only of the admission submitted individually at a later stage. In the requirement which they did not fulfil, and event, the Selection Board re-examined the to give detailed explanations only to those files of the excluded candidates, gave them who expressly requested them. Eight of the further information and sent them indi­ 13 candidates did indeed ask the Selection vidual replies. In view of that fact, one Board for explanations but — leaving aside might rather have expected the Selection the problem of Mrs Muller's and Mr Board to have told the candidates Mallaby's participation in earlier B compe­ concerned that it was prepared to give them titions (to which I shall return in due any explanations needed to supplement the course) and that of the diploma awarded to standard letter as far as they were Mrs Cano (which is not at issue in the concerned. present case) — the requests were not for 'individual' explanations, that is to say for details of how the Selection Board had assessed any particular facet of the previous work experience of the persons concerned. In fact they sought general information as 6. In those circumstances, does the fact that to the criteria used by the Selection Board the Selection Board replied by means of a in evaluating the candidates' practical standard letter to the requests submitted to experience. it justify the conclusion that the obligation to state reasons was infringed? I do not think so. The Selection Board's duty to state the reasons for its decisions must be appraised in relation to its purpose, which, it will be recalled (see part 4 hereof), is: The Selection Board did respond to the requests for explanations which it received. Explanations were even given to all the candidates affected by an assessment of their practical experience, including those who had not asked for them, a fact which reflects the Selection Board's concern to 'to enable the Court to review the legality of ensure that the candidates were treated with the decision and ... to provide the person absolute equality. However, the expla­ concerned with the information needed to

determine whether or not the decision is It is only where the Selection Board had to well founded'. make an assessment as to whether duties performed outside the Community institutions corresponded to Cl duties that it was required to undertake a subjective appraisal not based on criteria relating to a specific grade (Cl). In my opinion, subjective assessments of that kind do call What matters therefore is not the form of for individual explanations, if they are asked the statement of reasons but its content. for by the persons concerned. It appears And it seems to me that the standard letter from the documents before the Court that sent out by the Selection Board constituted only Mrs Couve reacted to the standard an adequate response to the questions letter with respect to the manner in which addressed to it which, in general, sought the Selection Board had appraised her information as to the criteria used in outside experience. In that specific case, the assessing the candidates' equivalent practical Selection Board re-examined her file in the experience. The fact that details of those light of the information which she submitted criteria were given seems to me to have concerning the nature of the work done by removed the need in most cases for any her outside the institution (see part 3 further explanation. The candidates were hereof). The Selection Board informed her thus informed that the Selection Board had individually that it found nothing in the accepted as experience deemed to be equi­ information submitted to justify reversal of valent to a certificate of advanced secondary its decision not to admit her. education experience 'acquired in a post which normally requires a level of education approximately equivalent to the baccalauréat' (see part 7 hereof). By way of example, it indicated, in the case of secretarial duties, Consequently, it seems to me that the work as an 'executive secretary'. Since the submission as to the absence of a statement basic post of 'executive secretary' is exclu­ of reasons is unfounded. sively a Cl post by virtue of Annex I to the Staff Regulations, it was clearly apparent from the standard letter that only internal experience in a post no lower than Cl was taken into account and that external Second and third submissions: criteria for experience was taken into account only if the evaluation of practical experience acquired in a job involving duties and responsibilities corresponding to those asso­ ciated with a Cl post. Moreover, the table contained in the standard letter enabled the persons concerned to determine, on the The relevant facts basis of their studies and the type of work done by them, the number of years fixed by the Selection Board for such experience to be regarded as equivalent to a certificate of 7. The competition was a category B advanced secondary education. It was thus competition. The Court, as appointing sufficient for most of the candidates to authority responsible for drafting the apply those criteria in relation to their own competition notice, was required to comply careers and qualifications in order to with the third subparagraph of Article 5(1) determine how many years' experience were of the Staff Regulations, which lays down prescribed by the Selection Board. the minimum qualifications required for

'only experience acquired in a post which normally requires a level of education either as a secretary or clerical officer, of at approximately equivalent to the baccalauréat least four years; can contribute to acquisition of the experience in question. Therefore, work as a shorthand typist, even in a bilingual post, or in full-time administrative or financial was not accepted as sufficient. If, on the management, of at least two years; other hand, the secretarial duties involved either responsibility for the work of others or substantial tasks of organization and / or co-ordination, the Selection Board took or in documentation, of at least two years. them into account (to simplify, the term "work as an executive secretary" will be used).' Having regard to that notice of compe­ tition, the Selection Board decided that it was necessary to clarify the following two terms: As regards the period of practical experience considered necessary in order to be deemed equivalent to a certificate of advanced secondary education, the 'certificate of advanced secondary Selection Board took the view that: education', since no diploma of that name existed in the Member States;

'The period of experience required to 'practical experience equivalent to a achieve the same level as that deriving from certificate of advanced secondary secondary education must be longer to an education'. extent corresponding to the extent to which the level of schooling completed fell short of the baccalauréat and must in any event be The manner in which the Selection Board considerably longer than the period of interpreted the first term is not criticized by schooling which it is intended to replace.'

The applicable provisions and the previous decisions of the Court

'to employ a general formula such as that 8. According to the first paragraph of contained in the third subparagraph of Article 5 of Annex III to the Staff Regu­ Article 5(1) of the Staff Regulations and to lations, leave the Selection Board for the compe­ tition to assess in each case whether the certificates produced or the experience of each candidate correspond to the level 'After examining these files, ' the Selection required by the Staff Regulations and, Board shall draw up a list of candidates, therefore, by the notice of competition' who meet the requirements set out in the (paragraph 14). notice of competition'.

and the Selection Board for a competition, Assessment as most recently advocated by the Court, in particular in the case of Ruske. Admittedly, the problems which arose in Marcato and Ruske were different. In Marcato the Court 9. Before examining the criteria adopted by upheld the use of general words which have the Selection Board, I must make a general to be applied in successive cases —which observation. One of the difficulties of the implies that if the Selection Board wishes to present case derives from the practice avoid being arbitrary, it will determine whereby competition notices use general certain criteria which clarify the general wording — in this case the wording of the terms before making its individual third subparagraph of Article 5(1) of the assessments. In Ruske, the Court Staff Regulations — to lay down the actual condemned the application of a condition criteria for admission. In my opinion that for admission not indicated in the notice of practice is not felicitous. Its effect is to force competition. Nevertheless, it seems to me to the Selection Board to define in detail the be more in conformity with the recent general terms used in the notice of compe­ approach of the Court to adhere to the tition and to determine objective standards principle that it is for the appointing on which to base its assessment of individual authority to determine in precise terms the cases. The Selection Board is thus placed in conditions for admission to a competition a difficult position in so far as it must both and that it may use general terms only for adopt the rules and apply them. conditions whose scope the Selection Board Furthermore, that practice often leads to the is clearly in a better position to define. disclosure to certain candidates of conditions for admission which were not apparent to them merely from reading the notice of competition. It also means that the rules for implementing the notice of compe­ tition are not submitted for consideration by 10. In the present case the notice of compe­ the Joint Committee. Finally, since the tition was not challenged nor was the fact proceedings of the Selection Board are that the Selection Board laid down rules to secret, the criteria adopted by the Selection define the general concept of equivalent Board are made public only to the varying practical experience which was used in the extent to which they are specified in the notice of competition. In those circum­ statements of grounds of the decisions of stances it need only be established whether non-admission. Under those circumstances, the Selection Board, by applying the 'case-law' cannot be accumulated, with the condition of equivalent practical experience, unfortunate consequence that successive infringed the terms of the notice of compe­ Selection Boards find themselves attributing tition or imposed additional conditions different meanings to concepts which which went beyond what was required to although objective are also general and are define the scope of the condition for expressed in identical terms. admission contained in the notice of compe­ tition.

advanced secondary education were as it relates to a particular grade in a required to have acquired 'equivalent' specific category, regardless of the posts to practical experience. Moreover, by virtue of which the officials are assigned. the second indent of heading II of the notice of competition, candidates had to have acquired additional experience. Experience acquired in any secretarial or clerical post had to be taken into account in Having defined the type of practical assessing fulfilment of this last condition for experience to be taken into account admission. regarding fulfilment of the condition laid down in the first indent of heading II of the notice of competition, it remained for the Selection Board to determine the length of such experience to be considered equivalent In view of the different terms used in the to a certificate of advanced secondary notice of competition to define the required education. The Selection Board took the practical experience under either the first or view that such experience should be of the second indent of heading II (experience considerably greater duration than the years equivalent to a certificate of advanced of school education that it was intended to secondary education or straightforward replace.

criteria. Admittedly, the Selection Board acquired a degree of familiarity with the was faced with the need to determine the Community institutions and with secretarial duration of the equivalent practical work, administrative and financial experience. But could it, without finding a management or documentation. In those basis for so doing in the notice of compe circumstances, the choice of an 'equivalent' tition, apply a value judgment to the type of experience acquired in a post in usefulness of practical experience by attri grade CI or above (in the case of buting a lower value to a year's experience experience within the institutions) or than to a year's education?

practice. Finally, it is not arbitrary in so far 9 hereof). However, since the notice of

(ii) competition No CJ 133/81 for the Mrs Belardinelli had been admitted to recruitment of an administrative competition No CJ 64/84 for the assistant in the library. recruitment of an administrative assistant in the Information Office;

3 — The list here lakes no account of decisions granting Mr Mallaby's is a particular case. After admission to B competitions taken after the decision not to receiving the memorandum from the admit certain candidates taken by the Selection Board in competition No CJ 80/86 Such decisions cannot retroac­ Personnel Division stating that he did not tively influence the ludgment of the Selection Board for an fulfil the conditions for admission, Mr earlier competition

OPINION OF MR VAN GERVEN — CASE 225/87

Maiłaby informed the Selection Board that, mention any previous competitions to which in view of his experience, he was eligible for they had been admitted. admission to an external B competition organized by the Commission of the European Communities. The applicants had been requested to specify the competitions With the exception of Mrs Muller's mention to which they had been admitted but Mr of competition No CJ 133/81, no indication Maiłaby did not produce any information whereby the competition in question could was given by any of the candidates either in be identified and the fact of his admission their applications or in the aforesaid ques­ could be checked. Accordingly, it does not tionnaires that they had been admitted to seem to me that Mr Mallaby's case should one or more previous B competitions. be included in the analysis of the present submission.

— Žjic nonce for competition No CJ 90/85 to which Mrs Meyer had previously been admitted also required 'at least 'It must first be pointed out that the two years experience of the application of certain rules relating to financial or administrative management or conditions for admission laid down by the documentation', this being a similar condition to the appointing authority in competition notices requirement of additional practical experience contained in the notice of competition No CJ 80/86. are not necessarily identical. 5 — At the hearing, counsel for the applicants claimed that the questionnaire had not been sent to all the candidates. However, he did not produce any evidence for that statement, which was contradicted by the representatives of the Court of Justice. He did not even indicate which of the candidates did not receive a questionnaire. Accordingly it does not seem to me that the candidates' claim that the Moreover, in the absence of any criteria questionnaires were distributed selectively can be enter­ specified by the appointing authority for its tained. guidance, the Selection Board itself must

BELARDINELLI AND OTHERS v COURT OF JUSTICE

'In the case of a competition based on quali­ 13. In its judgment in Case 112/78 Koborv fications, owing to the nature of such a Commission [1979] ECR 1573, the Court competition, the evidence of candidates' stated qualifications must be enclosed with the application form, without its being necessary for the Selection Board to call upon 'it cannot be accepted that the objective candidates to produce such evidence' requirements for admission to the tests, (paragraph 9). which are formulated in identical terms, should be given a different interpretation from one competition to another in the light Assessment of the number of candidates' (paragraph 11). 14. In my opinion the Selection Board could not have been unaware either of the 'In any event, a candidate cannot form the probability that certain of the candidates subject of a less favourable appraisal than had been admitted to previous competitions that made of him in a previous competition, to which the same conditions of admission unless the statement of the reasons on which applied or of the importance which the the decision is based clearly justifies such a previous decisions of the Court have difference of appraisal' (paragraph 12). attached to decisions to admit candidates

OPINION OF MR VAN GERVEN — CASE 225/87

6 set out in general terms in the notice of the persons concerned placed it under an competition. obligation to obtain from the candidates the information it needed to discharge its task properly. That is what the Selection Board Moreover, it must be borne in mind that an in fact did by asking the candidates to official who has previously been admitted to complete a questionnaire about their studies a competition for which the conditions of and practical experience. However, the admission were the same as a competition in Selection Board did not also ask the which he is now a candidate has a legitimate candidates to indicate to which similar expectation that he will be admitted again. competitions they had been admitted in the Inequality of treatment by successive past and the outcome of their participation, Selection Boards will inevitably cause him to even though a separate column in the ques feel that he has been unfairly treated. In tionnaire for information of that type would order to fulfil that legitimate expectation have sufficed. and to avoid his feeling that he has not been fairly treated, the only wholly satisfactory solution would be to ensure that Selection Having failed to obtain complete infor Boards do not interpret objective conditions mation on that essential point, the Selection for admission to tests, formulated in Board placed itself in a position where it identical terms, in different ways from one was unable to fulfil, in accordance with the competition to the next (see Kobor, supra). previous decisions of the Court, its duty to However, where the Selection Board is state the reasons — otherwise than by confronted by the difficulty that the means of statements in general terms like conditions have been formulated in those contained in its standard letter of 21 excessively general terms in the notice of May 1987 — for its assessment regarding a competition, it is under a duty to clarify condition of admission which, although those conditions and, in so doing, it may be expressed in almost identical terms in prompted to define criteria different from previous competition notices, had been those used by Selection Boards in previous applied differently by the Selection Boards

15. The Selection Board itself was not of course under any obligation to conduct inquiries to find out to which competitions 6 — See judgment in Case 417/85 Maurissen v Court of Auditors [1987] ECR 551. the candidates had previously been admitted