Opinion of the Advocate-General
++++
Mr President,
Members of the Court,
1 . In the present case 13 officials of the Court of Justice are challenging the decision of the Selection Board for internal competition No CJ 80/86 not to admit them to the written tests on the ground that they did not fulfil the conditions of the notice of competition concerning qualifications, diplomas and relevant experience . According to that notice, candidates were to hold a certificate of advanced secondary education or have equivalent practical experience ( first paragraph of heading II of the notice of competition ). In addition, candidates were to have practical experience acquired wholly or in part as officials or members of the temporary staff of an institution of the European Communities, provided however that those who relied on practical experience in lieu of a certificate of advanced secondary education could not rely on the same period in respect of the practical experience required by virtue of that additional condition ( second paragraph of heading II of the notice of competition ). For simplicity, I shall use the expression "additional experience" when referring to the latter condition for admission .
In the opinion of the Selection Board - which in this case was not challenged on this point - none of the applicants possessed a certificate of advanced secondary education . The Selection Board therefore considered whether they had enough practical experience . As far as eleven of the applicants were concerned, the Selection Board reached the conclusion that they did not meet the requirement of practical experience equivalent to a certificate of advanced secondary education . The Selection Board considered that two of the applicants did have such experience but did not satisfy the condition regarding additional experience .
The Report for the Hearing contains a fuller account of the facts of the case, the course of the procedure and the submissions and arguments of the parties, and I shall refer to those matters only to the extent necessary for my reasoning .
2 . The applicants base their collective action on four submissions : ( 1 ) infringement of Article 25 of the Staff Regulations, in so far as the contested decisions of the Selection Board did not contain an adequate statement of the reasons on which they were based; ( 2 ) failure to comply with the terms of the competition notice and infringement of Article 5 of the Staff Regulations, in so far as the criteria adopted by the Selection Board for evaluation of practical experience equivalent to a certificate of advanced secondary education were vitiated by errors of fact and law; ( 3 ) breach of the principles of equality of treatment and non-discrimination as between officials as a result of the application of the aforementioned criteria; and ( 4 ) breach of certain general legal principles, in so far as the Selection Board did not take into account the fact that certain of the applicants had been admitted to similar competitions in the past .
I shall examine those submissions successively, but shall take the second and third together, as they both relate to the criteria adopted by the Selection Board in evaluating the candidates' experience . I shall consider the alleged inadequacy of the statement of the reasons for the Selection Board' s decisions not to admit certain candidates who had been admitted to similar competitions in the past when dealing with the last submission, not the first .
First submission : inadequate statement of reasons
The relevant facts
3 . The Personnel Division passed 104 applications to the Selection Board for examination . The Selection Board first considered whether the candidates fulfilled the admission requirements . On completion of its examination, the Selection Board decided that 32 applications should be rejected .
First of all, the candidates whom the Selection Board considered itself bound to exclude each received a memorandum indicating the condition for admission which they did not satisfy . In response to that memorandum, eight of the 13 applicants submitted to the Selection Board, either direct or through the Personnel Division, individual requests for reconsideration of its decision . In most cases the requests sought details of the criteria used by the Selection Board in relation to the criterion of experience equivalent to a certificate of advanced secondary education . None of the requests related to the condition as to additional experience . Two requests ( from Mrs Muller and Mr Mallaby ) related in particular to the compatibility of the Selection Board' s decisions not to admit them with the decisions to the opposite effect taken by Selection Boards in previous competitions . Finally, Mrs Cano referred to the problem of classifying the HAVO diploma awarded to her in the Netherlands . In response to those requests, the Selection Board prepared a standard letter comprising three sections . The first gave details of the way in which the Selection Board had interpreted the requirement of a certificate of advanced secondary education . The second indicated the considerations relied on by the Selection Board in deciding whether a candidate had practical experience equivalent to a certificate of advanced secondary education . That section reproduced the table which the Selection Board had used to determine, according to the candidates' level of studies and type of experience, the period of practical experience which would be deemed equivalent to a certificate of advanced secondary education . The third section set out the reasons for which the Selection Board considered itself unable to take into account the fact that certain candidates had been admitted to other B competitions in the past .
The letter was sent to all the candidates affected by the assessment of their practical experience, including those candidates who had not asked for any explanation . In the accompanying memorandum, it was stated that the Selection Board regarded the letter as a sufficiently comprehensive reply to the requests made to it and that it did not intend to reply individually to those requests .
After receiving that letter, two of the applicants again contacted the Selection Board giving certain details of their studies and practical experience which, in their view, might alter the Selection Board' s assessment . Mrs Cano asked the Selection Board to reconsider its decision not to accept the Netherlands HAVO diploma as a certificate of advanced secondary education . Mrs Couve described the work she had carried out before her recruitment as an official in the Court of Justice . After re-examining their files, the Selection Board took the view that the matters brought to its notice were not such as to justify reversal of its decision not to admit them to the competition . The two applicants concerned were informed individually of the Selection Board' s views .
The applicable provisions and the previous decisions of the Court
4 . Pursuant to Article 25 of the Staff Regulations,
"Any decision relating to a specific individual taken under these Staff Regulations shall at once be communicated in writing to the official concerned . Any decision adversely affecting an official shall state the grounds on which it is based ."
In a number of decisions the Court has clarified the purpose and the scope of the Selection Board' s obligation to state the reasons on which its decision is based :
"the obligation to state the reasons for an adverse decision is meant to enable the Court to review the legality of the decision and, secondly, to provide the person concerned with the information needed to determine whether or not the decision is well founded . The decision of a Selection Board not to admit a candidate to the next stage of a competition may therefore be said to give adequate reasons only if it explains to the person concerned the reasons why he did not satisfy the selection criteria ".
( Joined Cases 64, 71 to 73 and 78/86 Sergio and Others v Commission (( 1988 )) ECR 1399, paragraph 48; see also Case 195/80 Michel v Parliament (( 1981 )) ECR 2861, and Case 225/82 Verzyck v Commission (( 1983 )) ECR 1991 ).
In several judgments the Court has also conceded that the Selection Board for a competition in which there are numerous candidates may discharge its duty to state reasons in two stages :
"In order to make allowance for the practical difficulties which arise in a competition for which there is a very large number of applications, the Selection Board may initally send to the candidates merely information on the criteria for selection and the result thereof, subject to its subsequently providing individual explanations for those of the candidates who expressly ask for them ".
( Joined Cases 100, 146 and 153/87 Basch and Others v Commission (( 1989 )) ECR 447, paragraph 10; see also Michel, Verzyck and Sergio, cited above, and Case 206/85 Beiten v Commission (( 1987 )) ECR 5301 ).
Finally, in Basch, supra, the Court held that the Selection Board' s decisions not to admit candidates to the tests did not adequately state the grounds on which they were based in view of the fact that the candidates had received only
"standard letters containing no specific reasons for the rejection of their applications" ( paragraph 11 ).
Assessment
5 . There were undoubtedly a large number of candidates in the competition in question . In the light of previous decisions of the Court, the Selection Board was entitled, in my opinion, to inform the excluded candidates only of the admission requirement which they did not fulfil, and to give detailed explanations only to those who expressly requested them . Eight of the 13 candidates did indeed ask the Selection Board for explanations but - leaving aside the problem of Mrs Muller' s and Mr Mallaby' s participation in earlier B competitions ( to which I shall return in due course ) and that of the diploma awarded to Mrs Cano ( which is not at issue in the 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 to the criteria used by the Selection Board in evaluating the candidates' practical experience .
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 ensure that the candidates were treated with absolute equality . However, the explanations were given in a standard letter and therefore were not "individual" explanations . 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, related only to the questions already put to the Selection Board - was somewhat unfortunate in so far as it might have given the impression that the Selection Board did not intend to reply to any questions submitted individually at a later stage . In the event, the Selection Board re-examined the files of the excluded candidates, gave them further information and sent them individual replies . In view of that fact, one might rather have expected the Selection Board to have told the candidates concerned that it was prepared to give them any explanations needed to supplement the standard letter as far as they were concerned .
6 . In those circumstances, does the fact that the Selection Board replied by means of a standard letter to the requests submitted to 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 :
"to enable the Court to review the legality of the decision and ... to provide the person concerned with the information needed to determine whether or not the decision is well founded ".
What matters therefore is not the form of the statement of reasons but its content . And it seems to me that the standard letter sent out by the Selection Board constituted an adequate response to the questions addressed to it which, in general, sought information as to the criteria used in assessing the candidates' equivalent practical experience . The fact that details of those criteria were given seems to me to have removed the need in most cases for any further explanation . The candidates were thus informed that the Selection Board had accepted as experience deemed to be equivalent to a certificate of advanced secondary 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, work as an "executive secretary ". Since the basic post of "executive secretary" is exclusively a C1 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 C1 was taken into account and that external experience was taken into account only if acquired in a job involving duties and responsibilities corresponding to those associated with a C1 post . Moreover, the table contained in the standard letter enabled the persons concerned to determine, on the 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 advanced secondary education . It was thus sufficient for most of the candidates to apply those criteria in relation to their own careers and qualifications in order to determine how many years' experience were prescribed by the Selection Board .
It is only where the Selection Board had to make an assessment as to whether duties performed outside the Community institutions corresponded to C1 duties that it was required to undertake a subjective appraisal not based on criteria relating to a specific grade ( C1 ). In my opinion, subjective assessments of that kind do call for individual explanations, if they are asked for by the persons concerned . It appears from the documents before the Court that only Mrs Couve reacted to the standard letter with respect to the manner in which the Selection Board had appraised her outside experience . In that specific case, the Selection Board re-examined her file in the light of the information which she submitted concerning the nature of the work done by her outside the institution ( see part 3 hereof ). The Selection Board informed her individually that it found nothing in the information submitted to justify reversal of its decision not to admit her .
Consequently, it seems to me that the submission as to the absence of a statement of reasons is unfounded .
Second and third submissions : criteria for the evaluation of practical experience
The relevant facts
7 . The competition was a category B competition . The Court, as appointing authority responsible for drafting the competition notice, was required to comply with the third subparagraph of Article 5 ( 1 ) of the Staff Regulations, which lays down the minimum qualifications required for officials in that category, defining the duties concerned as "executive duties which require an advanced level of secondary education or equivalent professional experience ".
The notice of competition imposed a dual condition concerning the qualifications, diplomas and practical experience required : candidates were to hold a certificate of advanced secondary education or equivalent practical experience; and they were to have acquired, wholly or in part as officials or other servants of a Community institution, additional practical experience :
either as a secretary or clerical officer, of at least four years;
or in full-time administrative or financial management, of at least two years;
or in documentation, of at least two years .
Having regard to that notice of competition, the Selection Board decided that it was necessary to clarify the following two terms :
"certificate of advanced secondary education", since no diploma of that name existed in the Member States;
"practical experience equivalent to a certificate of advanced secondary education ".
The manner in which the Selection Board interpreted the first term is not criticized by the applicants and thus need not be considered here . To clarify the second term, the Selection Board laid down precise criteria concerning the type and period of the practical experience required .
As regards the type of practical experience likely to qualify as experience equivalent to a certificate of advanced secondary education, the Selection Board took the view that
"only experience acquired in a post which normally requires a level of education approximately equivalent to the baccalauréat can contribute to acquisition of the experience in question . Therefore, work as a shorthand typist, even in a bilingual post, was not accepted as sufficient . If, on the 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 them into account ( to simplify, the term work as an executive secretary' will be used )."
As regards the period of practical experience considered necessary in order to be deemed equivalent to a certificate of advanced secondary education, the Selection Board took the view that :
"The period of experience required to achieve the same level as that deriving from secondary education must be longer to an extent corresponding to the extent to which the level of schooling completed fell short of the baccalauréat and must in any event be considerably longer than the period of schooling which it is intended to replace ."
At the hearing, the representatives of the Court of Justice indicated that the criteria to be fixed by the Selection Board with a view to appraising "equivalent" practical experience had to be capable of application both to practical experience acquired by candidates before their recruitment to a post in one of the Community institutions and to practical experience acquired as an official or other servant of one of those institutions . In order to assess experience of the latter kind, the Court' s representatives confirmed that the Selection Board had in fact taken the view that only work in grade C1 and above could constitute practical experience equivalent to a certificate of advanced secondary education . Finally, the representatives of the Court of Justice stated that the Selection Board drew no distinction based on the posts to which the candidates were assigned .
The applicable provisions and the previous decisions of the Court
8 . According to the first paragraph of Article 5 of Annex III to the Staff Regulations,
"After examining these files, ( 1 ) the Selection Board shall draw up a list of candidates, who meet the requirements set out in the notice of competition ".
In its judgment in Case 67/81 Ruske v Commission (( 1982 )) ECR 661, the Court stated that :
"although the appointing authority enjoys a wide discretion to determine the conditions governing a competition, the Selection Board is bound by the text of the notice of competition, as published . According to the Staff Regulations, the basic function of the notice of competition is to give those interested the most accurate information possible about the conditions of eligibility for the post to enable them to judge whether they should apply for it" ( paragraph 9 ). ( see also Case 255/78 Anselme v Commission (( 1979 )) ECR 2323, and Case 289/81 Mavridis v Parliament (( 1983 ))) ECR 1731 ). ( 2 )
In an earlier judgment ( Case 44/71 Marcato v Commission (( 1972 ) ECR 427 ) the Court nevertheless recognized the practice followed in this case as legitimate, that practice being
"to employ a general formula such as that contained in the third subparagraph of Article 5 ( 1 ) of the Staff Regulations and to leave the Selection Board for the competition to assess in each case whether the certificates produced or the experience of each candidate correspond to the level required by the Staff Regulations and, therefore, by the notice of competition" ( paragraph 14 ).
Assessment
9 . Before examining the criteria adopted by the Selection Board, I must make a general observation . One of the difficulties of the present case derives from the practice whereby competition notices use general wording - in this case the wording of the third subparagraph of Article 5 ( 1 ) of the Staff Regulations - to lay down the actual criteria for admission . In my opinion that practice is not felicitous . Its effect is to force the Selection Board to define in detail the general terms used in the notice of competition and to determine objective standards on which to base its assessment of individual cases . The Selection Board is thus placed in a difficult position in so far as it must both adopt the rules and apply them . Furthermore, that practice often leads to the 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 competition are not submitted for consideration by the Joint Committee . Finally, since the proceedings of the Selection Board are secret, the criteria adopted by the Selection Board are made public only to the varying extent to which they are specified in the statements of grounds of the decisions of non-admission . Under those circumstances, "case-law" cannot be accumulated, with the unfortunate consequence that successive Selection Boards find themselves attributing different meanings to concepts which although objective are also general and are expressed in identical terms .
That practice was expressly recognized by the Court in Marcato, cited earlier . I wonder, however, to what extent that judgment is compatible with the division of powers between the appointing authority and the Selection Board for a competition, 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 upheld the use of general words which have to be applied in successive cases - which implies that if the Selection Board wishes to avoid being arbitrary, it will determine certain criteria which clarify the general terms before making its individual assessments . In Ruske, the Court condemned the application of a condition for admission not indicated in the notice of competition . Nevertheless, it seems to me to be more in conformity with the recent approach of the Court to adhere to the principle that it is for the appointing authority to determine in precise terms the conditions for admission to a competition and that it may use general terms only for conditions whose scope the Selection Board is clearly in a better position to define .
10 . In the present case the notice of competition was not challenged nor was the fact that the Selection Board laid down rules to define the general concept of equivalent practical experience which was used in the notice of competition . In those circumstances it need only be established whether the Selection Board, by applying the condition of equivalent practical experience, infringed the terms of the notice of competition or imposed additional conditions which went beyond what was required to define the scope of the condition for admission contained in the notice of competition .
It should be borne in mind that those candidates who did not have a certificate of advanced secondary education were required to have acquired "equivalent" practical experience . Moreover, by virtue of 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 assessing fulfilment of this last condition for admission .
In view of the different terms used in the notice of competition to define the required practical experience under either the first or the second indent of heading II ( experience equivalent to a certificate of advanced secondary education or straightforward secretarial or clerical experience ), it seems to me that the Selection Board was entitled to prescribe a type of experience of a higher level for fulfilment of the condition relating to equivalent practical experience than that relating to additional experience . Moreover, that approach seems to be more in conformity with the spirit of the notice of competition : the condition relating to equivalent experience is designed to offset a lack of academic education whereas the condition relating to additional experience is designed to select candidates who have acquired a degree of familiarity with the Community institutions and with secretarial work, administrative and financial management or documentation . In those circumstances, the choice of an "equivalent" type of experience acquired in a post in grade C1 or above ( in the case of experience within the institutions ) or involving duties and responsibilities corresponding to those which are associated with a C1 post ( in the case of experience elsewhere ) does not seem to me to be in breach of the notice of competition . It does not add a further condition to the notice of competition but rather clarifies the general concept of equivalent practical experience which, as such, is not easy to apply in practice . Finally, it is not arbitrary in so far as it relates to a particular grade in a specific category, regardless of the posts to which the officials are assigned .
Having defined the type of practical experience to be taken into account 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 to a certificate of advanced secondary education . The Selection Board took the view that such experience should be of considerably greater duration than the years of school education that it was intended to replace . On the same grounds as those relied on for the distinction drawn in the notice of competition between secretarial or clerical experience on the one hand and experience in management or documentation on the other, the Selection Board also considered that a person who engaged in the latter activities acquired the requisite experience more rapidly .
I am more hesitant with respect to the latter criteria . Admittedly, the Selection Board was faced with the need to determine the duration of the equivalent practical experience . But could it, without finding a basis for so doing in the notice of competition, apply a value judgment to the usefulness of practical experience by attributing a lower value to a year' s experience than to a year' s education? Could it evaluate that duration differently according to the type of experience, even if its apporach was modelled on the provisions of the notice of competition regarding additional experience - which, as we have seen, were focused on a different objective? In my view, a Selection Board should not normally be placed in a position where it has to make such value judgments ( see part 9 hereof ). However, since the notice of competition was silent in that regard, the Selection Board itself had to determine the length of practical experience in question, which entailed the need to assess the utility value ( equal, superior or inferior ) of a period of practical experience by comparison with a year' s academic education . Consequently, it seems to me that the Selection Board, by acting as it did, merely clarified the notice of competition which, by reason of its general wording, left it entirely unfettered in that respect .
The allegation that the criteria adopted by the Selection Board to evaluate "equivalent" practical experience were defective thus seem to me likewise to be unfounded .
Fourth submission : admission to previous competitions
The relevant facts
11 . According to the documents in the case, four of the 13 candidates had previously ( 3 ) been admitted to B competitions organized by an institution of the European Communities, more specifically the Court of Justice :
Mrs Belardinelli had been admitted to competition No CJ 64/84 for the recruitment of an administrative assistant in the Information Office;
Mrs Couve had been admitted to three competitions :
( i ) competition No CJ 2/76 for the recruitment of an administrative assistant in the language directorate;
( ii ) competition No CJ 34/80 for the constitution of a reserve list for the recruitment of administrative assistants;
( iii ) competition No CJ 88/81 for the constitution of a reserve list for the recruitment of French-speaking administrative assistants .
Mrs Meyer had been admitted to competition No CJ 90/85 for the recruitment of an assistant in the chambers of a Member of the Court .
Mrs Muller had been admitted to two competitions :
( i ) competition No CJ 34/80 for the constitution of a reserve list for the recruitment of administrative assistants;
( ii ) competition No CJ 133/81 for the recruitment of an administrative assistant in the library .
Mr Mallaby' s is a particular case . After receiving the memorandum from the Personnel Division stating that he did not fulfil the conditions for admission, Mr Mallaby informed the Selection Board that, in view of his experience, he was eligible for admission to an external B competition organized by the Commission of the European Communities . The applicants had been requested to specify the competitions to which they had been admitted but Mr Mallaby did not produce any information whereby the competition in question could be identified and the fact of his admission could be checked . Accordingly, it does not seem to me that Mr Mallaby' s case should be included in the analysis of the present submission .
The competition notices for the competitions mentioned earlier all laid down the requirement, in almost identical terms drawn from the third subparagraph of Article 5 ( 1 ) of the Staff Regulations, of a certificate evidencing an advanced level of secondary education or equivalent practical experience . ( 4 )
12 . The notice of competition No CJ 80/86 did not require the candidates to use a standard application form or to attach the information necessary for the work of the Selection Board . On receipt of the applications, the Selection Board sent the candidates a questionnaire ( 5 ) inviting them to indicate the details relevant to their studies and practical experience . The questionnaire did not actually ask the candidates to mention any previous competitions to which they had been admitted .
With the exception of Mrs Muller' s mention of competition No CJ 133/81, no indication was given by any of the candidates either in their applications or in the aforesaid questionnaires that they had been admitted to one or more previous B competitions .
With the exception of Mrs Muller, who referred to Competitions Nos CJ 34/80 and CJ 133/81, none of the candidates, after being informed of the Selection Board' s decision not to admit them to the tests in competition No CJ 80/86, told the Selection Board that they had been admitted to one or more previous B competitions . At the hearing, the defendant' s representatives contended that the Selection Board had not been informed by Mrs Muller of her admission to competition No CJ 34/80 . That statement was contradicted by the memorandum sent by Mrs Muller to the Selection Board on 16 May 1987, which is attached as Annex 1 to the applicants' reply .
In its standard letter of 21 May 1987 the Selection Board expressed itself in the following terms regarding previous participation in B competitions :
"It must first be pointed out that the conditions for admission laid down by the appointing authority in competition notices are not necessarily identical .
Moreover, in the absence of any criteria specified by the appointing authority for its guidance, the Selection Board itself must establish those criteria which it considers appropriate . It is not impossible that other Selection Boards might, in other circumstances, have applied more "flexible" criteria . However, no such criteria were brought to the notice of this Selection Board . In view of the "general" nature of this competition and the large number of candidates admitted on the basis of the criteria referred to above ( 72 out of 95 ), the Selection Board do not consider that it should set a standard lower than that which it saw as reasonable .
Finally, the Selection Board could not do otherwise than comply with the terms of the notice of competition drawn up by the appointing authority without adversely affecting the legitimate interests both of those candidates who were clearly admissible and of those who refrained from applying to take part in this competition ".
The previous decisions of the Court
13 . In its judgment in Case 112/78 Kobor v Commission (( 1979 )) ECR 1573, the Court stated
"it cannot be accepted that the objective requirements for admission to the tests, which are formulated in identical terms, should be given a different interpretation from one competition to another in the light of the number of candidates" ( paragraph 11 ).
"In any event, a candidate cannot form the subject of a less favourable appraisal than that made of him in a previous competition, unless the statement of the reasons on which the decision is based clearly justifies such a difference of appraisal" ( paragraph 12 ).
In its judgment in Case 108/84 De Santis v Court of Auditors (( 1985 )) ECR 941, the Court defined the scope of Kobor :
"the principle ( that the decision must justify in clear terms the difference of appraisal ) also applies to those conditions, such as professional experience acquired after obtaining a degree, which are of such a nature that the Selection Board can only verify whether they are fulfilled by making a partially subjective appraisal . A Selection Board is free to depart from an appraisal made in that regard by previous Selection Boards, but it must then state the special reasons which justify its decision" ( paragraph 19 ).
Finally, the Selection Board can only properly discharge its duty to give reasons for its decisions if it is aware of the admission of candidates to earlier competitions . The Court stated in Case 74/77 Allgayer v Parliament (( 1978 )) ECR 986 :
"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" ( paragraph 9 ).
Assessment
14 . In my opinion the Selection Board could not have been unaware either of the probability that certain of the candidates had been admitted to previous competitions to which the same conditions of admission applied or of the importance which the previous decisions of the Court have attached to decisions to admit candidates adopted by such Selection Boards . The knowledge that certain candidates were previously admitted to such competitions also constitutes an important point of reference, serving as guidance for any Selection Board in its task of clarifying the scope of conditions for admission which are set out in general terms in the notice of competition .
Moreover, it must be borne in mind that an official who has previously been admitted to a competition for which the conditions of admission were the same as a competition in which he is now a candidate has a legitimate expectation that he will be admitted again . Inequality of treatment by successive Selection Boards will inevitably cause him to feel that he has been unfairly treated . In order to fulfil that legitimate expectation and to avoid his feeling that he has not been fairly treated, the only wholly satisfactory solution would be to ensure that Selection Boards do not interpret objective conditions for admission to tests, formulated in identical terms, in different ways from one competition to the next ( see Kobor, supra ). However, where the Selection Board is confronted by the difficulty that the conditions have been formulated in excessively general terms in the notice of competition, it is under a duty to clarify those conditions and, in so doing, it may be prompted to define criteria different from those used by Selection Boards in previous competitions . In such cases it is incumbent upon the Selection Board to be particularly attentive to the duty to state its reasons . As the Court observed in Kobor and De Santis, a candidate may not be appraised less favourably than in a previous competition unless the reasons for the difference of appraisal are specifically stated .
15 . The Selection Board itself was not of course under any obligation to conduct inquiries to find out to which competitions the candidates had previously been admitted ( see Allgayer ). However, it would have been advisable to bear in mind that the notice of competition did not specify the information to be produced by candidates together with their applications . In those circumstances, the very function of the Selection Board and likewise its duty to safeguard the interests of the persons concerned ( 6 ) placed it under an obligation to obtain from the candidates the information it needed to discharge its task properly . That is what the Selection Board in fact did by asking the candidates to complete a questionnaire about their studies and practical experience . However, the Selection Board did not also ask the candidates to indicate to which similar competitions they had been admitted in the past and the outcome of their participation, even though a separate column in the questionnaire for information of that type would have sufficed .
Having failed to obtain complete information on that essential point, the Selection Board placed itself in a position where it was unable to fulfil, in accordance with the previous decisions of the Court, its duty to state the reasons - otherwise than by means of statements in general terms like those contained in its standard letter of 21 May 1987 - for its assessment regarding a condition of admission which, although expressed in almost identical terms in previous competition notices, had been applied differently by the Selection Boards in those competitions .
In those circumstances, it seems to me that the Selection Board' s decisions not to admit Mrs Belardinelli, Mrs Couve, Mrs Meyer and Mrs Muller to competition No CJ 80/86 are vitiated by the formal defect of an inadequate statement of reasons . Accordingly, it seems to me that those decisions must be annulled .
16 . In conclusion, I propose that the Court :
( 1 ) annul the Selection Board' s decisions not to admit Mrs Belardinelli, Mrs Couve, Mrs Meyer and Mrs Muller to the tests in competition No CJ 80/86;
( 2 ) for the rest, dismiss the application;
( 3 ) order the Court of Justice to pay the costs of Mrs Belardinelli, Mrs Couve, Mrs Meyer and Mrs Muller and to bear its own costs .
(*) Original language : French .
( 1 ) i.e . the candidates' files .
( 2 ) In its judgment in Case 117/78 Orlandi v Commission ( 1979 ) ECR 1613 the Court had already applied the principles which it set out in full in Ruske : "The notice of competition defines the conditions relating to qualifications or certificates by using the term course of secondary education' and by adding that the Selection Board, in assessing the certificate, will take into account the differing educational systems in the Member States' " ( paragraph 20 ).
"Although the Commission is entitled to draw up the conditions for entry to a competition in terms which are more rigorous than those used in this instance and, in particular, to require possession of a certificate giving access to university such a requirement must be apparent from the actual wording of the notice of competition since there are a great many different types of secondary education in the various Member States, some of which are not preparatory to education at university level and do not give automatic access to such education" ( paragraph 21 ).
( 3 )
3 The list here takes no account of decisions granting admission to B competitions taken after the decision not to admit certain candidates taken by the Selection Board in competition No CJ 80/86 . Such decisions cannot retroactively influence the judgment of the Selection Board for an earlier competition .
( 4 )
4 The notice for competition No CJ 90/85 to which Mrs Meyer had previously been admitted also required "at least two years' experience of the application of certain rules relating to financial or administrative management or documentation", this being a similar condition to the requirement of additional practical experience contained in the notice of competition No CJ 80/86 .
( 5 )
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 questionnaires were distributed selectively can be entertained .
( 6 )
6 See judgment in Case 417/85 Maurissen v Court of Auditors (( 1987 )) ECR 551 .
Full & Egal Universal Law Academy