C-255/90

Mr President, Mr Búrban brought an action against the Members of the Court, Parliament for the annulment of the decision of the selection board. By a judgment of 20 June 1990 the Court of First Instance found for the Parliament. ' Mr Búrban has appealed to the Court of 1. This case can be briefly summarized as Justice against that judgment. He considers follows: it wrong that the mistake he committed by not sending the requisite documents with his application should have such serious conse­ quences. The mistake was of a formal At the end of 1988 and early 1989 the nature and easy to remedy. He considers, European Parliament organized an open moreover, that there was special reason to competition for the post of Head of give him, in particular, that opportunity. Division to run the Paris Information First, because at least one member of the Office. selection board was fully aware that he satisfied the material conditions for taking part in the competition and, secondly, because the mistake arose as a result of his reliance upon information which he had Jean-Louis Búrban, an official in Grade A 4 received from the aforementioned at the Parliament, wished to take part in the Parliament official, who should have been open competition and accordingly submitted aware of the proper procedure. an application. The selection board, however, refused to let him take part in the tests because he had not submitted documents in support of the qualifications and experience to which he laid claim in his application. After that refusal there was an exchange of several notes between the selection board and Mr Búrban, who contested the correctness of the selection In Mr Burban's view the judgment is char­ board's decision. Mr Búrban mentioned in acterized by excessive formalism. He has particular that his failure to forward summarized those arguments in the single supporting documents was due to the fact plea in law which he makes in support of his that he had contacted the Head of the Staff appeal, namely that the judgment under Regulations and Staff Management Service appeal contains an infringement and in the Parliament's Personnel Department, mistaken interpretation of the principles of who had informed him that the necessary the administration's duty to have regard for annexes, which were to be found in his the interests of officials and proper adminis­ personal file, would be sent directly by the tration. He thinks that it follows from those Parliament's administration to the selection principles that he should have been given board. Nevertheless the selection board the opportunity to submit the requisite maintained its decision. documents subsequently.

It is important to emphasize that the contested judgment is not marked by In competitions held by the institutions excessive legal formalism, but on the there can be hundreds and possibly many contrary is based on essential principles of thousands of candidates. There is therefore administrative law which also apply to the a need for rules that are clear and easy to administration of competitions. In adminis­ administer. It is obvious and a mark of a trative matters in this area it must be sensible division of responsibilities that it ensured both that candidates are treated should be for the candidates to submit the equally and that the competition tests necessary documentation. 2It cannot be the proceed as expeditiously and appropriately selection board's task to assess what the as possible with all due respect for the cause of a failure to fulfil the duty to supply candidates' need for an impartial documentation might be. It is clear that the assessment. selection board can have no positive duty to investigate, for example, by perusing the internal candidates' personal files, whether candidates do actually fulfil the requirements in question. Nor can it be the 3. In this case the following facts are clear: selection board's task to assess whether it would be possible for a candidate who has not forwarded the requisite documentation to remedy that failure and if so, whether (1) at several points in the competition there are concrete grounds of a more or less notice it was stated that the requisite blameless nature which make it reasonable supporting documents should be to give the person in question such an forwarded within the period allowed for opportunity. The selection board would submitting applications; thereby have a task imposed on them which could be very burdensome and which at all events would involve serious problems of delimitation.

Such a clear rule is of course also a good basis for ensuring observance of the principle of the equal treatment of Mr Búrban claimed that there were grounds candidates, including the equal treatment of for allowing him to remedy the mistake internal and external candidates. because it arose from information which he had received from an official in the Parliament. The Court of First Instance expressed its view on that plea in law without finally deciding whether such mistaken information was given to Mr In those circumstances the principles of the Búrban, because the Court of First Instance administration's duty to have regard for the found that the information relied interests of officials and of proper adminis­ upon — 'even assuming that it be proven tration cannot be relied upon by candidates and regrettable thought it may be' — could in order to obtain the right to remedy not form a basis for upholding his claim. I mistakes in connection with fulfilling the agree with the Court of First Instance on obligation to provide supporting documents. that point.

5. Mr Búrban has also claimed that it follows from the Court's case-law that, on the basis of the administration's duty to have regard for the interests of officials and (i) involving an internal competition; the principle of proper administration, the selection board was bound in his case to apply the provision in the second paragraph of Article 2 of Annex III to the Staff Regu lations according to which a candidate may be asked to supply further evidence of quali (ii) where there were only a few fications and information. Air Búrban cited candidates; the Court's judgments in Schwiering 5 and Maurissen. 6 That argument is not, in my opinion, sustainable. First, there is a presumption against that view, because such an obligation does not follow from the (iii) where the officials in question had wording of the provision. Secondly, in its forwarded documents within the judgment in Allgayer 7 time-limit for submitting applications;

In paragraph 9 the Court stated: The applicant understood that she had to lodge a full The two judgments thus turn, in fact, on the application and thus enclosed superfluous documents such question of how the power under the as a copy of her school-leaving certificate and of her junior high school diploma which she obviously possessed second paragraph of Article 2 should be in view of her university degree. used once it has been decided to use it. In the case of a competition based on qualifications, owing to the nature of such a competition, the evidence of candidates' qualifications must be enclosed with the application form, without its being necessary for the selection board to call upon candidates to produce such evidence. The applicant has only herself to blame for not having enclosed with her application form the certificates which she forwarded later and she must suffer the consequences. 6. Mr Burban's appeal should accordingly It is, moreover, necessary to point out that according to the objective criteria on which the selection board decided not be upheld. As far as the costs of the case to base its assessment of the qualifications of candidates, are concerned, in my view these should be those certificates would not have been taken into consideration. paid by the appellant. However, Articles