OPINION OF MR ADVOCATE-GENERAL REISCHL
DELIVERED ON 5 OCTOBER 1978 ( 1 )
Mr President
Members of the Court
Regulation No 1473/72 of the Council (Official Journal, English Special Edition 1972 (III)) introduced new classifications of certain basic posts, including that of secretarial assistant (Category B 5/B 4), into Annex 1 of the Staff Regulations.
Alter the Budgetary Committee, in application of that regulation had resolved to reclassify a certain number of C posts into B posts at the Commission. the latter in July 1976 held Internal Competition No COM/BS/14/75 in order to draw up a reserve list of secretarial assistants in career bracket B 5/B 4. Selection was to be made on the basis of qualifications and if necessary, at the discretion of the selection board, on the basis of tests, but these did not take place. The conditions of admission, namely schoolleaving qualifications and practical experience, as well as certain matters to which the selection board had to pay attention in drawing up the list of suitable candidates, were set out in the notice of competition.
There were 775 candidates for the competition. Between 22 September and 8 October 1976 a selection board consisting of a chairman and two members, as provided for in the Staff Regulations, was appointed. It considered first of all which candidates fulfilled the conditions of entry. As appears from a list dated 13 October 1976, there were 550 eligible candidates, including all the applicants in the present proceedings, with the exception of Wilhelmina Scheffelaar. On 13 October 1976 the selection board (and this is the first objection in the present proceedings) appointed a board of examiners comprising a chairman and ten members (five from the administration and five from the staff) which was intended to assist in the procedure. These examiners (I shall deal later with particulars concerning determination of the criteria and supervision by the selection board) first considered the applications on the basis of so-called objective criteria such as age, length of service, educational qualifications and category. The selection board was informed at the beginning of November 1976 that on the basis of these criteria 247 candidates were eligible. Then consideration was continued from the point of view of ‘vocational qualities’. In this connexion it is alleged that documents on the personal files, and in particular the reports made under Article 43 of the Staff Regulations, were relevant. Further (and this is another objection in the proceedings) inquiries were made of the Directorates General and departments to which the various candidates belonged. This led to a proposal for a list of suitable candidates which was sent on 6 December 1976 to the selection board with a report dated 2 December 1976. After final considertion which took place on 6. 7 and 8 December, the selection board on 10 December 1976 submitted to the appointing authority a repon on the competition and a list of suitable candidates which contained the names of 114 candidates. In November 1977 109 of these were promoted to Grade B 5.
Since the applicants in the present proceedings were not included on the list of suitable candidates they lodged a formal complaint to the appointing authority in March 1977. They demanded that the decision of the selection board on the determination of a list of suitable candidates should be revoked together with the appointments which the appointing authority had made on the basis of that list. Following the rejection of that complaint by letter dated 12 July 1977 an application was made to the Court on 10 October 1977 in which it was claimed that the Court should:
—
Annul the decision of the selection board for Internal Competition No COM/BS/14/75 concerning the drawing-up and the contenu of a list of 114 suitable candidates; and
—
Annul the decision of the appointing authority to make appointments of secretarial assistants on the basis of the said list.
My opinion on these claims is as follows:
I —
In the first place a question of admissibility must be considered with regard to the application by Miss Scheffelaar.
On this subject the Commission refers to the fact already mentioned that that applicant was not among those admitted to the competition. Further it appears from the claim that it is not the suge of admission to the competition which is contested but only the ensuing procedural stage in which the selection of those candidates admitted was made. In these circumstances it is alleged that Miss Scheffelaar has no actionable interest for even if the action were successful, that is if the list of suitable candidates which was drawn up at a later stage of the procedure were annulled, her qualifications could not be considered.
Miss Scheffelaar alleges in this respect that at the rime, namely on 5 November 1976, she lodged a complaint concerning her non-admission to the competition. At first she received no reply. A reply was sent to her together with the other applicants only in July 1977 and it was worded in the same way as the answer of the appointing authority to the complaints of the other applicants. From this she was entitled to draw the conclusion that the decision as to her non-admission to the competition had been revised and that she was therefore among the admitted candidates. If this were in fact not so the Commission should at least bear the costs of the proceedings because the Commission had misled the applicant by its answer of July 1977.
In my opinion the Commission's objection as to admissibility must be upheld. In this respect it is relevant that immediately after the conclusion of the admission stage the person concerned was informed by letter dated 26 October 1976 that she did not fulfil the conditions of admission. Further, it may be assumed that her complaint against that letter — which, apparently, contrary to other applications (cf. the report of the selection board of 10 December 1976) was not directly and expressly notified — was unsuccessful. On this in my opinion the assurance to this effect given by the Commission during the proceedings is sufficient. The non-admission of Miss Scheffelaar does not therefore have to be proved by production of the list of candidates admitted.
Since, however, the proceedings are concerned solely with events subsequent to the admission stage and the admission suge itself is not challenged, then it must indeed be held that the applicant Scheffelaar has no interest in criticizing the subsequent course of the competition procedure.
As regards the question of costs I certainly share this applicant's view. She could easily have been clearly informed in answer to her complaint that she was unsuccessful as regards admission to the competition. This was not done and together with the other applicants in July 1977 she received simply the said notice in which there is no mention of her non-admission to the competition. She could indeed draw the conclusion from this that the decision as to her non-admission had been revised and that only her criticism of the subsequent suge of the competition procedure had been rejected. The applicant Scheffelaar was thus misled by the conduct of the Commission, which prompted the bringing of the action. According to the second paragraph of Article 69 (3) of the Rules of Procedure the Court may order even a successful party to pay costs which the Court considers that party to have unreasonably or vexatiously caused the opposite party to incur. Since this is quite clearly the position here, the costs of the action brought by Miss Scheffelaar, which for the said reasons cannot be regarded as admissible, must in any event be borne by the Commission.
II —
The substance to which I now turn (I disregard deuils for the moment) is first concerned with the question whether the selection board was entitled to appoint examiners and what tasks could be left to them. Further, the principle of the equal treatment of candidates is relevant and we must consider whether information relating to the competition should have been obtained from the Directorates General and departments to which the candidates belonged. Finally, it must be considered whether criticism may be levelled at the fan that the list of suitable candidates drawn up by the selection board contains the names of only 114 applicants.
1. Appointment of examiners
(a)
First, the question arises as to whether this is at all permissible in a competition on the basis of qualifications (tests which would have been possible did not in fact take place).
The applicants emphatically contest this and refer to the second paragraph of Article 3 of Annex III to the Staff Regulations which states:
‘The selection board may, for certain tests, be assisted by one or more examiners serving in an advisory capacity’.
In view of the requirement in Article 6 of Annex III that the proceedings of the selection board shall be secret, and in view of the principle of the independence of the selection bouard, which excludes outside influences, they also take the view that the provision quoted should be strictly interpreted. This can only mean that examiners are allowed only in connexion with written tests; further, at most they could be entrusted with certain delegated tasks, such as marking. However this may be, they claim that the necessity of recourse to examiners can under no circumstances be accepted in the present case. The selection board itself was able in less than 15 days to consider over 700 applications and decide upon admissibility to the competition. Accordingly the task of considering the remaining 550 candidates and drawing up a list of suitable candidates without outside help could hardly have overtaxed it.
Let me say immediately that in this respect I do not share the applicant's view but rather that of the Commission. As is known the latter rejects a narrow interpretation of the said provision on the basis of the principle that a selection board must be sovereign and free in the organization of its work and also on the basis of the objective of the provision, from which it is clear that it is concerned quite generally with the provision of assistance where a competition involves material difficulties.
No decisive argument can be derived either from the requirement of ensuring the independence of the selection board or from the secret nature for its work. Obviously, both principles are rendered less absolute by Article 3 of Annex III which permits the appointment of examiners and this can mean at mon that in relation to confidentiality there is a corresponding obligation also on the examiners. Article 3 is in particular not authority for the proposition that examiners may be appointed only where there are written tests and that their functions are restricted to objective tasks of execution as the applicants think. There is nothing to indicate this and it would obviously not be reasonable. As is clearly apparent, the appointment of examiners may seem appropriate in oral tests, such as those concerned with specialist knowledge of a linguistic or other nature. It is hard to conceive how their function could be restricted to tasks of execution; it seems to me obvious that the expertise of the examiners must in such a case also extend to the assessment of candidates, which can require quite complex judgments.
If the scope of Article 3 is basically to be interpreted in this way (in my opinion no comment is required on the fact that examiners have to make delicate assessments even in the case of written tests), there is certainly no reason why it should justify the conclusion that in an examination on the basis of qualifications no such help may be given. It may also happen here (for instance if it is a question of national certificates or qualifications) that an expert judgment is required and that the selection board itself cannot provide this. Furthermore, considerations of the weight of work must also be relevant. If this were disregarded then in the event of numerous applications, as in the present case, the consequence would be that a competition which was in the hands of only three members of a selection board would take an unusually long time, which would certainly be in the interests neither of the staff nor of the service.
If in addition, as the applicants claim, consideration is given to whether in the present case there was in fact cause to appoint examiners, then no objections arise on the basis of the facts disclosed during the proceedings (although review by the Court is obviously limited in view of the discretion exercised by the selection board). In this respect it is sufficient to mention that the certificates and qualifications of numerous candidates from different countries had to be examined and compared with one another. On the other hand, it is misconceived for the applicants to refer to the fact that the selection board itself determined those admitted to the competition, since that task, which had to be performed on the basis of the conditions of entry laid down in the notice of competition itself, was obviously less difficult and time-consuming than the subsequent consideration of the content of the qualifications and their comparison with one another.
Finally, if it is borne in mind that the examiners were appointed on a basis of parity which offered a similar, if not greater, guarantee of objectivity as did the composition of the selection board, then it must be found that there is certainly no cause to object to the competition on the first ground put forward by the applicants.
(b)
The applicants next challenge the way in which the examiners were concerned in the work of the competition. The objection originally made that the selection board considered its verdict in the presence of a group of examiners was apparently withdrawn after the Commission had given an assurance that no individual cases were considered with the examiners. The applicants object to the fact that the examiners were allowed to consider ‘other factors’, which it is alleged was not permissible on the basis of the notice of competition. In addition, they take the view that there was an unjustifiable delegation of discretion to the examiners. It is said that in fact the selection board allowed the examiners to determine the criteria according to which the qualifications obtained in the various Member States should be compared; that, in addition, the examiners decided on the combination of objective criteria according to which the first selection of 247 candidates was made; and that, finally, the examiners balanced the objective criteria against the subjective criteria and after making an appropriate classification submitted a draft list of suitable candidates. Certainly none of this, it is alleged, accords with the judgment of 16 October 1975 in Case 90/74 Francine Deboeck v Commmision of the European Communities [1975] ECR 1123, according to which examiners intervene only in an advisory capacity and on condition that the selection board retains ultimate control over the procedures and its discretionary power.
In so far as these objections relate to the fact that the examiners could take account of ‘other factors’ there is certainly no infringement of the notice of competition. The factors to be taken into account are not exhaustively listed therein and this is clearly apparent from point II.3, where the list in brackets at the end of the first paragraph ends in a series of dots.
Further, it is apparent from the documents produced in the proceedings and in particular from the evidence of the lady chairman of the selection board that there was no improper delegation of powers to the examiners and that the principles of the judgment in Case 90/74 were fully respected.
As we have heard, the competition began with a request sent on 13 October 1976 to the examiners to make proposals as to appropriate criteria for assessment. A few days later there was a joint meeting of the selection board and the examiners at which the general criteria for assessment were determined by the selection board. There followed the first examination on the basis of objective criteria which led to a provisional list of 247 eligible candidates. Already during this stage of the procedure (there is no doubt about this according to the evidence of the chairman of the selection board) there were constantly numerous contacts between the selection board and the examiners. They related to consideration of additional criteria and the combination and relative importance of the criteria to be applied. The selection board was kept informed and proposals were made to it, to which after consideration it agreed; the selection board supervised the progress of the work in a general manner, clarified problems which arose and where necessary gave additional instructions in relation to the application of the necessary criteria for assessment. The same applied during the further stage of the examination relating to the vocational qualities of candidates, which was dealt with during numerous meetings of the selection board during November. Finally, the selection board spent three days (6 to 8 December 1976) reviewing the results of the work. An attempt was also made to ascertain whether on the application of other criteria or the choice of a different approach to the assessment a different result would ensue. After the selection board had itself undertaken a comparison of the qualifications of all candidates in this way on the basis of the available files the list of suitable candidates was finally determined and submitted to the appointing authority.
All this justifies the conclusion that it was rightly maintained in the repon of the selection board that the examiners had simply helped in laying down the criteria and that the selection board itself had ultimately determined the criteria for assessment. If, however, the examiners in fact worked under the supervision of the selection board, which, as it were, held the reins of the proceedings firmly in its own hands, and itself assessed the qualifications of the candidates, there can hardly be said to have been an improper delegation of powers such as to require the annulment of the competition procedure.
2. Infringement of the principle of equality of treatment and the provisions on the confidential nature of the work of a selection board
Following the first stage of the competition which, on the basis of objective criteria, resulted in a provisional list of eligible candidates, the examination was continued with regard to the vocational qualities and merits of the candidates. The reports under Article 43 of the Staff Regulations were relevant in this respect; inquiries were made of the Directorates General and departments to which the various applicants belonged and at the same time the former, in each case only the relevant Directorate General or department, were informed of the result of the first test.
If I understand the position correctly the applicants assume that additional tests were held only for candidates whose names were on the first provisional list. They consider this to be an infringement of the principle of equality of treatment, which requires all the criteria to be applied to all the candidates in a similar manner. Further, they take the view that the involvement of the Directorate General and departments meant that the principle of the independence of the selection board was disregarded and that because the result of the first test was revealed there was an infringement of the principle that the work of the selection board should remain confidential.
(a)
On the first of these two issues the Commission has explained that the examination of vocational qualities was not conducted only for candidates who were eligible on the basis of the objective criteria. It was conducted for all candidates who were admitted to the competition. For this purpose the reports under Article 43 of the Staff Regulations were taken into account and inquiries were made of the appropriate Directorates General and departments.
This was clearly confirmed at the hearing by the evidence of the chairman of the selection board. In addition, reference may be made to the fact that after this stage there were added to the list of suitable candidates quite a number of candidates whose names were not on the first provisional list and this was done, as we were assured, not simply as a result of a correction of the first selection according to objective criteria, which correction the Directorates General and departments had also been requested to undertake. No importance is to be attached to a bulletin of the Staff Committee of 27 February 1977 to the contrary effect since, as we have heard, it was obviously due to an error.
No infringement of the principle of equality of treatment is to be discerned from this nor, naturally, can there be said to be any such infringement (further observations are probably unnecessary) as regards the fact that for candidates who were not eligible after the first test on the basis of objective criteria special vocational qualities and merits were required before they could be placed on the list of suitable candidates.
(b)
On the second issue, the obtaining of additional information from the Directorates General and departments, it is appropriate first to determine what was involved. The chairman of the selection board explained in evidence that the Directorates General and departments were given the names only of candidates under their authority and that it was stated whether according to the objective criteria they were eligible or not. They were requested in addition to check the assessment according to the objective criteria — which obviously also led to a certain adjustment to the first provisional list. Further, additional information as to the level of duties performed and any special merits was requested. This was considered necessary since the reports under Article 43 of the Staff Regulations did not always give an adequate picture and also because divergencies between Directorates General and even within a single Directorate General had emerged in the making of those reports. Further, the competition was concerned with finding candidates who already in their C duties had been entrusted with greater responsibility and whom it had not previously been possible to promote.
(aa)
If this is borne in mind then it is already clear that the. applicants' first complaint — that the competition was concerned solely with qualifications and ought not to have been distorted by the introduction of other factors — is not valid.
In this respect it is sufficient to refer to the observation already made that the factors to be taken into account were not listed exhaustively in the notice of competition, as is clearly apparent from the first paragraph of point II.3. Moreover, I have not the slightest doubt that in a competition in which basically only qualifications are to be examined it can in no way be regarded as improper for the selection board, faced with lacunae or uncertainties, to seek to obtain supplementary information in order to have a solid basis for the judgment required of it.
(bb)
I also think that the independence of the selection board was not prejudiced by this and it did not enable an improper influence to be exercised upon its work. On this, as is known, the applicants have alleged that the Directorates General and departments which were asked could have had an influence on the candidates' chances of appointment because the number of vacant places was known and there had already been an unofficial distribution of them among the Directorates General.
I find it important in this respect not only that the departments of which inquiry was made in fact did not gain any overall view, but received information on certain facts only in respect of candidates who were under their authority; it is also significant that nothing more was supplied by the departments asked than certain facts relevant to the assessment. There was in fact no joint consultation with the selection board, which alone, as we have been assured, conducted a comparative assessment of the merits and qualifications of the candidates on the basis of all the factors relevant to that assessment with which it had been supplied.
(cc)
Finally, 1 do not think there are serious objections from the point of view of the confidential nature of the work of the selection board.
It is true that the departments and Directorates General of which inquiry was made were enabled to see a little into the preliminarywork of the selection board before the list of suitable candidates was drawn up. Nevertheless, it may be said that this is permissible because it was only a limited disclosure and because a check on the objective data by the competent Directorates General and departments may well have appeared necessary. Further, it should not be forgotten that the purpose of the obligation to maintain secrecy is simply to ensure the independence of the selection board and the proper conduct of the competition. In this respect in the present case the communications made by the selection board were not of such a nature as to prejudice the regularity of the proceedings and to lead to results which could not stand up to scrutiny. Even if certain reservations regarding the procedure adopted and the methods applied cannot be completely suppressed, it would be inappropriate to annul the competition procedure on the ground of infringement of Article 6 of Annex III to the Staff Regulations.
3.
Finally, the applicants object that the list of suitable candidates contains the names of only 114 candidates, that is roughly as many as the vacant posts. This appears from reference to the particulars contained in the notice of competition, which mentioned some 100 vacant posts, and from the appointments subsequently made.
If it is assumed that this was done on instructions from the appointing authority then it must be objected that the latter surrendered its right of selection and thus wrongly delegated the power of appointment to the selection board. If the selection board of its own motion imposed such a restriction, however, then it infringed the provisions of the Staff Regulations. In providing that the appointing authority shall decide which of the candidates to appoint to the vacant posts, Article 30 assumes that there are sufficient names on the list of suitable candidates to make selection possible. Further, reference may be made to Article 5 of Annex III to the Staff Regulations, which provides that the list shall wherever possible contain at least twice as many names as the number of posts to be filled.
The following may be said, in my opinion, regarding these objections:
(a)
In my view the question can remain open as to the validity of the Commission's argument that the applicants had no interest in an inquiry as to whether the said provisions were respected, because in fact it is not a question of provisions for the protection of candidates since if the list of suitable candidates were extended there would be no additional guarantee for them.
On this it must nevertheless be said that the names of the applicants might have been included in an extended list of suitable candidates. They might thereby have had a certain possibility of appointment, whereas as a result of the present outcome of the competition this is not so because under Article 30 of the Staff Regulations only applicants who have been included in the list of suitable candidates may be appointed. On the other hand, however, the fact cannot be dismissed that an enlarged list of suitable candidates would have had to have been drawn up with the candidates lined in the order of their abilities, and that the applicants would not have been at the top of the list. Since according to the case-law of the Court listing in such an order cannot be dispensed with without special justification it is hard to see in the present case how the applicants could have had a possibility of appointment, since it was a question of filling a number of similar posts involving the same duties and on the basis of a considerable list of suitable candidates, which already took account of special requirements, such as those of a linguistic nature.
(b)
As regards the question whether there was a mandatory direction to the selection board as to the number of candidates to include on the list of suitable candidates the Commission has stressed in this respect and also in respect of the question of the propriety of such a direction that in fact there were no such directions and that they could moreover in no way have bound the selection board.
In this respect it has to be observed that there is no evidence for any such direction. It is certainly not sufficient evidence that in the answers to the applicants' complaints it was stated that the appointing authority had, in the interests of the staff and the departments, been in favour of having as many names on the list of suitable candidates as there were vacant posts. Similarly, it is not sufficient that in a letter from the Director General for Personnel and Administration to the President of the Central Staff Committee of the Commission of July 1976, a copy of which was forwarded to the chairman of the selection board for the competition in question here, it was explained that it was desirable that the size of the list of suitable candidates be kept in a reasonable proportion to the number of posts available. This cannot be regarded as a precise direction, quite apart from the fact that the said Director General is obviously not the appointing authority for the posts in question within the meaning of the Staff Regulations.
(c)
There is also no ground for objecting that the selection board did not itself draw up a longer list of suitable candidates.
The relevant provision here is not Article 30 of the Staff Regulations but the already cited Article 5 of Annex III to the Staff Regulations, which contains the detailed rules. According to that provision there is no definite obligation to include twice as many names on the list of suitable candidates as the number of posts to be filled (obviously that would be incompatible with the principle of the independence of the selection board and the discretion which it exercices); all that is provided is that the selection board should do so‘wherever possible’. There is no cogent evidence that this discretion (for such it obviously is) was not exercised correctly in the present case.
It can therefore scarcely be said that the selection board was guided by the desire to avoid tests at all costs. In this respect the notice of competition reads as follows: ‘Au cas où la liste des candidats admis sur titres comporterait un nombre de 30 % supérieur au nombre d'emplois disponibles, le jury peut décider, afín de départager les candidats retenus, de les soumettre aux épreuves ci-après …’. The selection board was thus in any event free to organize tests and did not need to keep the list of suitable candidates as short as possible in order to avoid doing so. Nor can the fact that in the first suge of the procedure a list was drawn up conuining 250 names of candidates eligible on the basis of the objective criteria lead to any other conclusion. In this respect it is significant that that list was based simply on a partial examination. It is certainly no evidence that all those candidates had to be regarded as suitable on the basis of the necessary further examination of their vocational qualifications and merits.
Finally, it should be irrelevant that the selection board, as alleged against it, prepared and forwarded to the appointing authority in addition to the list of suitable candidates a further list containing the names of applicants whose qualifications might be of interest in connexion with a further competition for similar duties. The evidence of the chairman of the selection board is pertinent on this issue, namely that the candidates on the list of suitable candidates were all of a similar level whereas the candidates on the additional list were not and therefore had not been included on the list of suitable candidates.
In my opinion there is no need to consider and inquire further into the question whether it would have been possible for the selection board to enlarge the list of suitable candidates. The Court would otherwise risk becoming too much involved in the details of a competition and deciding matters which fall within the sole competence of the selection board.
III —
To summarize, it may accordingly be found that the applications brought, with the exception of that of Miss Scheffelaar, are admissible but that they must de dismissed as unfounded. As regards the costs of the proceedings the Commission should bear the applicant Scheffelaar's costs in accordance with the second subparagraph of Article 69 (3) of the Rules of Procedure. Otherwise the order for costs must be made in accordance with Article 70 of the Rules of Procedure.
( 1 ) Translated from the German
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