Magdalena Allgayer v European Parliament (74/77)

Contents

In Case 74/77MAGDALENA ALLGAYER (NÉE PARZINGER), an official of the Commission of the European Economic Communities, residing at 1, Rue d'Etalle, Luxembourg, represented and assisted by Mr Kratz, Advocate of the Merzig Bar,vEUROPEAN PARLIAMENT, represented by its Secretary General, Hans-Robert Nord, assisted by Alex Bonn, Advocate of the Luxembourg Bar, with an address for service in Luxembourg at the Chambers of Mr Bonn, 22 Rue de la Côte d'Eich,THE COURT (Second Chamber)composed of: M. Sørensen, President of Chamber, Lord Mackenzie Stuart and A. Touffait, Judges,Advocate General: G. ReischlRegistrar: A. Van Houttegives the following

Judgment

Facts and Issues

The procedure and the conclusions and arguments of the parties may be summarized as follows:

I —Facts and procedure

The European Parliament published on 1 February in the Official Journal of the European Communities (Official Journal C 24, p. 20) Notice of Open Competition No PE/19/A organized for the purpose of drawing up a reserve list for the recruitment of German-language administrators. The. competition was to be based ‘on qualifications and tests’. The conditions of eligibility for the competition included the degrees or diplomas required:‘University degrees in:(a) law;(b) political science;(c) social science;(d) economics;(e) the arts;(f) a comparable discipline,or equivalent professional experience.’The selection on the basis of qualifications was described in these words:‘Marking: 0 to 40.After deciding the criteria by which to assess candidates' qualifications, the Selection Board will examine the qualifications of each candidate. To be admitted to sit the tests, each candidate must obtain an overall mark of at least 60 % of the possible total.’Section II (Procedure) of the general conditions governing open competitions reads:‘Candidates shall complete an application form prescribed by the appointing authority; they may be asked, if necessary, to furnish additional documents or information.’Section III (Applications) of the said general conditions reads:‘Candidates shall complete and sign the application form contained in this issue of the Official Journal and send it to the address indicated in the notice of competition. In addition, they are invited to enclose a curriculum vitae supplementing or amplifying, if necessary, the information entered on the application form.…Documents relating to academic qualifications may be forwarded separately.Since these documents cannot be returned it is advisable to send certified true copies. No photocopies will be accepted unless they bear an unphotocopied certification that they are true copies. Only copies of diplomas, degrees or other evidence of qualifications corresponding to the highest level of studies completed by the candidate need be sent.’Mrs Magdalena Allgayer, an established official, in Category B, with the Commission of the European Communities sent in an application form for competition PE/19/A. She enclosed with that application form copies of her junior high school diploma (Mittlere Reife), of her final school leaving diploma (Abitur) and of her university degree (Degree in business studies of the Ludwig-Maximilian University of Munich).The Selection Board by a letter of 31 May informed the applicant that her name was on the list of candidates satisfying the requirements laid down by the notice of competition. After the Selection Board had decided on the criteria by which it would assess candidates' qualifications it assessed the applicant's qualifications and awarded her 22 marks when in fact candidates had to obtain a total of 24 marks. The applicant was notified by letter of 3 June 1977 that she could not be admitted to sit the tests. After the applicant had made contact with the Chairman of the Selection Board in connexion with the nature of the criteria used and the reasons why her application had not been accepted she received on 27 June 1977 from the said Chairman an answer pointing out that, as provided in Article 6 of Annex III of the Staff Regulations, the proceedings of the Selection Board were secret and that he could not therefore give her the information which/she desired.The applicant by an application of 23 June 1977 appealed against the letter of 3 June. That application was registered at the Court's registry on 29 June 1977. On the same dates an application was made and registered at the Court for the adoption of an interim measure ordering the defendant to defer open competition PE/19/A pending judgment in the case. The applicant acknowledged in her letter of 7 July 1977 that her application for the adoption of an interim measure was devoid of object because the written test had already taken place; the defendant took note that the applicant had withdrawn this application and at the same time asked the Court to order her to pay the costs thereof.After hearing the report of the Judge-Rapporteur and the views of the Advocate General the Court decided to open the oral procedure without any preparatory inquiry. However, it decided to request, by a letter of the Registrar of 27 January 1978, the defendant to forward to the Registry before 9 February 1978:1. The selection criteria which the Selection Board adopted in accordance with the notice of open competition and on the basis of which it has to assess candidates' qualifications;2. The Selection Board's report on the first stage of the selection of candidates, that is to say on the assessment of their qualifications.’The European Parliament, in reply to the Registrar's letter, lodged on 8 February 1978 the reasoned report of the Selection Board which includes under the tide ‘Determination of the criteria’ the following passage:‘At its meeting on 20 April 1977 the Selection Board adopted the following criteria by which it proposes to assess candidates' qualifications, giving the reasons for its choice:1.University degree or equivalent professional experience | 0 — 20 marks2.Additional university degree (Zweites Staatsexamen — Second state examination) and/or doctorate | 0 — 5 marks3.Studies, probationary periods and experience relating to the European Institutions | 0 — 7 marks4.Actual professional experience (probationary periods during studies shall not be taken into account) | 0 — 8 marks(one mark will be awarded for each year during the first four years and half a mark for each additional year) || Total: 40 marksAccording to the notice of competition candidates awarded less than 24 marks will be eliminated.’

II —Conclusions of the parties

The applicant claims that the Court should:1. Annul the defendant's decision of refusal of 3 June 1977 as being illegal;2. Require the defendant to ask for all the applicant's qualifications and to take a new decision within the limits of the discretionary power to be determined by the Court.’The defendant contends that the Court should:1. Dismiss the application as inadmissible and in any event as unfounded;2. Make an order as to costs in accordance with the applicable provisions:’

III —Summary of the submissions and arguments of the parties during the written procedure

A —Admissibility

The defendant acknowledges that by virtue of the Court's judgment of 31 March 1965 in Case 23/64 (Vandevyvere v European Parliament [1965] ECR 157) in open competitions even candidates from outside the Communities have a right of action if there is any infringement of the rules relating to the procedure for competitions. Furthermore, notwithstanding the absence of a prior decision on a complaint within the meaning of Article 90 of the Staff Regulations an appeal against the decision of a Selection Board shall lie in a direct application to the Court according to the judgment of 14 June 1972 in Case 44/71 (Marcato); however, the appeal in this case concerns the actual procedure of the competition. In any case the admissibility of the application cannot be accepted ‘because the applicant is not entitled in this case to take legal action’; in fact the application form was not accompanied by a curriculum vitae and a photocopy of a university degree certified as a true copy by an unphotocopied certification; a formal check of such an application form must have led to the candidate being excluded and this makes her application inadmissible.The applicant refuses to accept this last argument since the Selection Board accepted her application and thereby waived the above-mentioned formal defect.The defendant points out that the applicant does not deny that her application form was defective. The defect is all the more serious because candidates were given a clear warning in the general conditions of the notice of competition; the applicant therefore is acting contra factum suum.

B —The substance of the case

1.Selection on the basis of qualifications

The applicant, without disputing the validity of the procedure, points out that this is the first time that a European institution has in an open competition selected on the basis of qualifications the candidates eligible to take the written and oral tests. However, the general conditions relating to competition PE/19/A only recommend that candidates should send a copy or copies of the degree or diploma corresponding to the highest level of studies completed by them. That wording does not permit the supposition that ‘other certificates which could prove her qualifications’ had to be enclosed with the application form. Authentic qualifications — like knowledge of languages — are not proved by an application form and its enclosures and candidates must be allowed to produce evidence thereof ‘later’. Thus the applicant waited for the opportunity to produce to her advantage and at the request of the Selection Board (within the meaning of the second sentence of Article 2 of Annex III to the Staff Regulations candidates ‘may be required to furnish additional documents or information’) the assessment made in connexion with her establishment in Category B and also the certificate relating to a period spent at a school for further vocational training. The text of the notice of competition is therefore ambiguous both with regard to its wording and with reference to the Staff Regulations themselves.The defendant replies that Article 5 of Annex III to the Staff Regulations, confirmed by the Vandevyvere judgment, which has been mentioned previously, specifies the procedure for selection on the basis of qualifications and states that this procedure has already been used. Furthermore, the notice of competition is not ambiguous, because its text refers to the minimum conditions of eligibility (list of requisite qualifications or equivalent experience; age etc. …) whereas the text of the general conditions refers to the documents to be enclosed with the application form (copies of diplomas) which enable the qualifications of each candidate to be actually assessed. With regard to the last point, if Section III of the general conditions is read carefully, it is clear that the ‘documents’ (in the plural) ‘relating to academic qualifications’ must be produced and that at least one of the qualifications must be a university qualification. The recommendation to produce the diploma corresponding to the highest level of studies completed by the candidate enables unnecessary expense to be avoided but ensures that documents certifying studies completed in a branch different from that of the highest diploma are not disregarded; the requirement that in any particular branch only the highest diploma should be produced is explained by the fact that in order to reach the higher level it is necessary to have obtained the diplomas for the lower levels. The applicant evinced her desire to produce all the requisite documents by enclosing documents which were useless and which she obviously had in view of her university diploma. On the other hand, she omitted to supply the documents which she now produces in support of her application. These are the documents which she should have enclosed with her application form in order to prove that she had abilities other than those falling within the branch in which she has reached university level. Consequently the applicant is the victim of an oversight for which the Selection Board should not be held to be liable, especially in the case of a competition based on qualifications and tests for which more than a thousand candidates entered. Finally, there was no excuse for failing to produce a curriculum vitae in view of the full particulars concerning the production thereof in the general conditions of the notice of competition.In her reply the applicant maintains that it would have been reasonable to apply the Staff Regulations by inviting a limited number of candidates to furnish the ‘additional documents or information’ which they had not furnished of their own accord.

2.The application of secret criteria for selection.

The applicant points out that she had a telephone conversation with the Chairman of the Selection Board — which her husband followed — and sent him a registered letter, reply paid, in order to find out whether five secret criteria had been used for the assessment of candidates' qualifications. As the Chairman of the Selection Board replied that the proceedings of the Selection Board were secret the applicant stresses that to organize a competition based on qualifications is ‘incomprehensible and impossible’. If a university degree was all that was necessary in order to be able to send in an application form, how can it be assessed in accordance with five distinct criteria? How is it possible to accept that candidates who have not attended university might be eligible — a fan which the applicant offers to prove — if the criteria for selection are not known? The applicant in her reply lays stress on the fact that the Chairman of the Selection Board should not have concealed the number, still less the nature of the criteria for selection.The defendant calls attention to Article 6 of Annex III to the Staff Regulations which provides that the proceedings of the Selection Board shall be secret. It offers to inform the Court of the four — and not five — ‘secret’ criteria used in assessing qualifications.The defendant protests against the allegation that subjective considerations played a part in the selection. There is no specific, discriminatory fact which makes this submission credible. Moreover the defendant stresses that notes made on the diplomas could not have any relevance, since the marks awarded vary according to the universities and disciplines.

3.Additional qualifications to be put forward by the applicant

The applicant takes the view that the additional qualifications which she produced in support of her application (certificates relating to language courses; a certificate relating to a period spent in a vocational training establishment; report on the expiry of her probationary period with the Commission) ought to have modified the decision of the Selection Board in this connexion.The defendant replies:— That knowledge of languages was not taken into consideration when assessing the qualifications;— That the same applied to a period of teacher-training before the end of her studies;— A report on the expiry of her probationary period served in career bracket B 5, where the experience acquired was not post-university and could not therefore be treated as professional experience, had no effect on the Selection Board's decision.With regard to the latter point the applicant replies that ‘equivalent professional experience’, by definition, is experience acquired in addition to or before obtaining a university degree. The applicant emphasizes that, if the contrary were to be accepted, part of her professional experience has been acquired while she was specializing and after studying banking and political economy.Her period of teacher-training was not connected with her studies in political economy. They were parallel studies which the applicant did not mention for the very good reason that she only put forward documents relating to the necessary qualifications for a post in the higher category.Knowledge of languages and marks obtained in examinations are factors for assessment which are of some consequence, but the applicant, notwithstanding the content of her file, was awarded 22 out of the 24 marks which had to be obtained when her qualifications were assessed.The defendant first of all deals with the argument concerning the parallel studies. Why did not the applicant mention them at No 12, ‘Higher education’, of her application form? Why did she not produce that diploma instead of a junior high school diploma, which was of no relevance? That was merely a certificate to the effect that she had specialized in the main educational subjects. Taking into account the criteria applied by the Selection Board the latter's assessment would not in any case have been modified by her passing the ‘preliminary State examination for the test to ascertain competence for a post as teacher in secondary education’.Finally, the particulars of a candidate's professional experience are not matters which are to be subjectively assessed either by the Selection Board or by the candidate. They are objective factors.

IV —Oral procedure

The hearing during which the parties reaffirmed their conclusions and pursued the arguments adduced during the written procedure took place on 16 February 1978.The Advocate General delivered his opinion at the hearing on 15 March 1978.

Decision

1By an application lodged on 29 June 1977 the applicant asked the Court first to annul the defendant's decision of 3 June 1977 refusing to allow her to take the written test of open competition PE/19/A intended for the drawing up of a reserve list for the recruitment of German-language administrators in grades 7 and 6 of Category A and secondly to require the defendant to ask for all the applicant's qualifications and, after assessing them, to take a new decision with regard to her.

2The defendant contends that the Court should dismiss the application as inadmissible and in any event as unfounded.

Admissibility

3The defendant points out that the applicant, contrary to the specific instructions contained in the notice of competition, sent a photocopy of her university degree which had not been certified as a true copy by a person authorized to do so and omitted to enclose her curriculum vitae with her application form.The defendant claims that these facts should have led the Selection Board to refuse the applicant's application for the open competition and that a judicial review of the formal legality of the competition procedure would lead to the exclusion of the candidate on the basis of that omission, her appeal becoming for that reason inadmissible.

4The instructions for filing applications contained in the notice of open competition merely lay down that ‘documentary evidence of their education’ should be produced.The instructions contained in the notice of competition properly so-called, that certified true copies of diplomas or other academic qualifications should be sent, only amount to practical advice to candidates, to whom any documents produced are not returned.It is therefore for the Selection Board to determine whether the documents produced by a candidate are such as to justify that candidate's being allowed to enter for the competition to be held.In this case the Selection Board expressly authorized the applicant (with whose curriculum vitae it was familiar since she was an official of the Commission of the EEC) to take part in the competition, having regard to the documents which she had supplied.It therefore took the view that any defects which might invalidate the application form were not material for the purposes of the competition procedure and decided that the applicant fulfilled the conditions of eligibility for the said competition.It thereby waived, in the exercise of its discretion, any irregularities in the application form.

5The plea of inadmissibility cannot therefore be upheld.

The substance

6The applicant's case rests on two submissions:(1) Having been accepted as eligible for the competition based on qualifications and tests held by the defendant she was excluded therefrom at the stage of the competition based on qualifications, even though it was the first time that an open competition including a written and oral examination had been enlarged into a competition including in its first stage the elimination of candidates on the basis of qualifications.

7As provided for in the fourth paragraph of Article 5 of Annex III to the Staff Regulations of Officials of the European Communities, the Selection Board shall state which of the candidates on the list of candidates who meet the requirements set out in the notice of competition shall be admitted to the tests.It is clear from the case-law of the Court (judgment of 13 March 1965 in Case 23/64, Vandevyvere v European Parliament [1965] ECR 157) that in the case of such open competitions there has already been a selection based on qualifications prior to the written and oral tests.Therefore this submission must be rejected.

8(2) The applicant raises the objection that the notice of competition was liable to give rise to misunderstanding and was even unintelligible.She bases her argument on two passages in the notice of competition, the first being the following words in section III of the general provisions governing open competitions entitled ‘Applications’: ‘Only copies of degrees or diplomas or other evidence of qualifications corresponding to the highest level of studies completed by the candidate need be sent’, the other being contained in the actual notice of competition under heading III 1.‘Degrees, diplomas etc. required,’ including the following words:‘University degrees in:(a) law;(b) political science;(c) social sciences;(d) economics;(e) the arts;(f) a comparable discipline,or equivalent professional experience.’That wording did not entitle her to conclude that she had to enclose immediately with her application form certificates other than her university degree which could prove that she had the necessary qualifications.She therefore did not do so, although she was in a position to produce other documents, which she sent in after the date by which applications had to be lodged, for example, certificates relating to her knowledge of languages, to the completion of a period of teacher training and to a probationary period spent with the Commission, since she thought that pursuant to the second paragraph of Article 2 of Annex III to the Staff Regulations of Officials of the European Communities the defendant would require her to produce them before making a selection based on qualifications.

9Under heading III ‘Competition’ — of the actual notice of competition — the words ‘university degree’, together with the age limit of not more than 33 years of age, the requisite knowledge of languages and compliance with Article 28 (a), (b) and (c) of the Staff Regulations of Officials of the European Communities, constitute one of the minimum conditions of eligibility for the competition properly so-called.Thus the candidate was fully informed of the fact that the degrees or diplomas required of her would be assessed only if she fulfilled the conditions referred to above for eligibility for the competition, based first on qualifications and then on tests.On the other hand, in section III of the general provisions governing open competitions headed ‘Applications’ applicants are requested to send, in relation to the diplomas or other evidence of formal qualifications and in addition to those corresponding to the highest level of studies completed by candidates, ‘documents relating to academic qualifications’, which expression clearly refers to studies completed in a branch other than that for which the highest diploma was awarded.The applicant understood that she had to lodge a full application and thus enclosed superfluous documents such as a copy of her school-leaving certificate and of her junior high school diploma, which she obviously possessed in view of her university degree.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.It is, moreover, necessary to point out that according to the objective criteria on which the Selection Board decided to base its assessment of the qualifications of candidates, those certificates would not have been taken into consideration.Once again, this submission must therefore be rejected.

Costs

10Under Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs.The applicant has failed in her submissions.However, under Article 70 of the Rules of Procedure the costs incurred by the institutions in actions brought by servants of the Communities are to be borne by the institutions.

Operative part

On those grounds,THE COURT (Second Chamber)hereby:

1.Dismisses the application;

2.Orders the parties to bear their own costs.

Delivered in open court in Luxembourg on 25 April 1978.