Report for the Hearing delivered in Case 417/85

I — Facts and procedure

1. On 24 June 1985 the Court of Auditors published Notice of Internal Competition No CC/A/8/85 to fill a vacancy for an administrator in Career Bracket A 7/A 6. The nature of the duties were, under the direction of a superior official, to manage the administration department and to perform advisory duties in the areas for which that department was responsible.

2. Notice of Internal Competition No CC/A/8/85 laid down the following conditions in relation to experience:

‘IV. ELIGIBILITY

To be admitted to the competition, candidates must:

1. (a) Possess a university education with a recognized degree or diploma in one or more of the following fields: law, political science, finance, economics, accountancy, commerce or management; or be able to attest to (b) equivalent professional experience. Professional experience will be considered equivalent if acquired: (i) in a fulltime occupation which normally requires a university degree or diploma, and (ii) over a period which is at least equal to that required for completion of studies leading to a recognized university degree or diploma in one of the fields referred to in paragraph IV. 1(a).

2. Have at least one year's professional experience in work related to the above duties. Professional experience subsequent to the university degree or diploma referred to under paragraph IV. 1(a) will be taken into consideration. Where the candidate does not hold a university degree or diploma, a further one year's experience will be added to the professional experience required to compensate for the lack of degree or diploma (paragraph IV. 1(b)).

3. After a long career in the private sector the applicant was appointed by decision of 18 April 1983 a probationary official in Grade B 3 at the Court of Auditors. He was established in his post by decision of 18 January 1984. The applicant submitted his candidature for the internal competition in June 1985. Since he did not have a full university degree or diploma, he relied on his more than 20 years’ experience. His curriculum vitae which was annexed to his application form showed that he had been employed by IBM from January 1973 until his recruitment by the Court of Auditors in 1983. At IBM he served as ‘staff assistant’ in the Personnel Department from 1973 to 1976 then as ‘financial analyst’ from 1976 to 1981 and lastly ‘productivity project analyst’ from 1981 to 1983. Mr Maurissen explained the high level of responsibility which the latter two posts involved and he included two documents drawn up by IBM describing the nature of those posts, that relating to the post of productivity project analyst included under the heading ‘education’: ‘university or equivalent’.

4. By letter dated 2 August 1985 the Chairman of the Selection Board informed the applicant that he was not eligible to take part in the competition on the following ground:

‘after considering your experience, the Selection Board took the view that the supporting documents enclosed with your application ... did not allow it to determine whether the period during which you may have been in fulltime employment normally requiring a university degree or diploma (employment as a project productivity analyst) was at least equal to that necessary to complete full studies leading to the award of a recognized university degree or diploma within the meaning of point IV. 1(a) in the notice of competition (the Selection Board had previously determined that the period laid down in point IV. 1(b) of the notice of competition should be interpreted as being a minimum of three years)’.

5. Following a meeting between the Selection Board and the Head of the Personnel Division, the Chairman of the Selection Board sent Mr Maurissen, and the other candidates, a letter dated 12 August 1985 in which he said:

‘Pursuant to the second paragraph of Article 2 of Annex III to the Staff Regulations and in the interests of all the candidates I have decided to grant you and all the other candidates who have been refused admission to the competition a period expiring at midnight on 30 September 1985 to lodge any additional observations ... I must point out... that the terms [of that provision] do not mean that you may now submit additional documents which you did not include in your application’.

6. Following the receipt of that letter the applicant sent the Chairman of the Selection Board a memorandum dated 30 September 1985 informing him that he considered that the period during which he had performed fulltime duties normally requiring a university diploma was much longer than that required at point IV. 1(b) of the notice of competition as was attested by the descriptions of the nature of the posts which he had included with his application form and two documents which he enclosed with his memorandum for the information of the Selection Board: (i) a certificate issued by IBM on 20 August certifying that ‘Mr Maurissen entered our employment on 29 January 1973; he worked as “financial analyst associate”; at the time of his departure he was working as “productivity project analyst”; that implies a university level of education. He left us on 30 June 1983’; (ii) a telex message of 27 September 1985 from IBM stating that ‘the two posts of “financial analyst associate” and “productivity project analyst” imply a university education as certified in our letter of 20 August 1985’.

7. By a decision of 28 October 1985 the Selection Board reaffirmed its decision to refuse to admit Mr Maurissen to the competition. For the reasons set out in its previous decision and, in addition, on the following grounds :

‘As you could see, your application was rejected by the Selection Board because it was unable to ascertain on the basis of your application form and the enclosed supporting documents whether your experience in fulltime employment normally requiring a university degree or diploma (employment as “productivity project analyst”) was of at least three years’ duration. The particulars given by your letter of 30 September 1985 show that the document attesting your experience with IBM originally did not give sufficient details and that your experience as a “financial analyst associate” might also have been regarded as experience of the kind required by point IV. 1(b) of the notice of competition. Nevertheless, even accepting that interpretation, the Selection Board is still not able to admit you to the competition since the certificates from IBM ... do not give full details of all your duties with IBM and do not specify the duration of each of the jobs they refer to. On the basis of those particulars the Selection Board is unable to distinguish between the duties which satisfy point IV. 1(b) of the notice of competition and those which do not

8. It is the decisions of 2 August and 28 October 1985 refusing Mr Maurissen admission to the competition which are the subject of the present action.

II — Written procedure and conclusions of the parties

By application lodged on 13 December 1985 the applicant brought an action against the Court of Auditors of the European Communities. He claims that the Court should:

i) Annul the decisions of 2 August and 28 October 1985 by which the Selection Board refused to allow him to take part in the tests for Internal Competition No CC/A/8/85;

ii) Order the defendant to pay the costs including all necessary costs incurred by the applicant for the purposes of the present proceedings.

The Court of Auditors contends that the Court should:

i) Dismiss the application as unfounded;

ii) Make an order for costs pursuant to Article 69 (2) and Article 70 of the Rules of Procedure.

Upon 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. It nevertheless requested the Court of Auditors to produce Mr Maurissen's application form together with all the documents included therewith.

III — Summary of the submissions and arguments of the parties

The admissibility of the action is not disputed.

1. The applicant submits that the Selection Board is guilty of an obvious error in assessing his experience. He claims that his experience in an occupation requiring university level education is far longer than that which was required by the notice of competition and fixed by the Selection Board itself at three years. Since he had annexed to his application form not only a curriculum vitae setting out all the posts which he had occupied before being appointed an official and their duration but also documents describing the nature of those posts and certificates allowing the level of the actual duties to be determined, the applicant had made available to the Selection Board all the particulars needed to assess the level and duration of his experience. In any event his experience with IBM as a financial analyst from 1976 to 1981 and then as productivity project analyst from 1981 to April 1983 is obviously experience of a university level. If the Selection Board had the slightest doubt about the level of the applicant's responsibilities, it could have requested the production of any documents or particulars it considered helpful, especially as the procedure in question was an internal competition in which a restricted number of candidates were taking part. It is therefore incomprehensible that the Selection Board took no notice of the memorandum of 30 September 1985 and the attached documents. Further, the experience acquired by the applicant at the Court of Auditors from April 1983 to July 1985 as an inspector in the Development Aid Inspectorate is of the same nature since the President of the Court of Auditors had several times stated that inspectors in Grade B in that sector had responsibilities comparable in every respect to those of the other inspectors of Grade A. In addition the Selection Board was wrong in not taking account of the course of university education he had followed for five years in order to obtain the qualification of ‘ingénieur commercial’ even if he still needed to produce a thesis to obtain the qualification. Finally the applicant states that he applied to enter two other competitions organized by the Court of Auditors and by the Council, where the conditions for admission were identical to those laid down in the notice of competition at issue, and he was admitted. He accordingly relies on the case-law of the Court under which objective requirements for admission to tests which are formulated in identical terms may not be given a different interpretation from one competition to another (Case 112/78 Kobor v Commission [1979] ECR 1573, at p. 1578).

2. The Court of Auditors relies chiefly on the wide discretion which, according to established case-law of the Court of Justice, a Selection Board enjoys in weighing up the experience of candidates in a competition. The first decision refusing Mr Maurissen admission to the competition was not open to criticism since the documents annexed by the applicant to his application form did not show whether the post of ‘financial analyst associate’ could be regarded as equivalent to an occupation requiring a university degree or diploma. Since he had worked as a ‘productivity project analyst’ only from an unspecified date in 1981 until April 1983, that is for less than three years, the decision of the Selection Board was well founded. The applicant had moreover allowed uncertainty to persist about the true nature of his work at IBM claiming both in his curriculum vitae and in his application to the Court of Justice that his post was that of ‘financial analyst’ whereas it is apparent from the certificates given by IBM that he was in fact a ‘financial analyst associate’. The duties of a Category B inspector performed by the applicant at the Court of Auditors in no way correspond to duties requiring a university education or equivalent experience. The applicant's success in the first four years of the course for a diplôme d'ingénieur commercial [graduate sales engineer] cannot by definition be equated with experience equivalent to a university degree or diploma. The fact that the applicant was admitted to the tests in two other competitions is irrelevant since the entry conditions were not identical and, in contrast to what was held in the aforesaid Kobor judgment, the factors to be assessed were not objective conditions but subjective conditions relating to experience. The second decision, dated 28 October 1985, confirming the original decision is not vitiated by an erroneous appraisal of the facts either. The production of additional documents was no longer allowable at that stage of the procedure and, furthermore, the additional documents produced by the applicant did not in any event allow the Selection Board to determine the duration of the experience at a university level.

IV — Oral procedure

Mr Maurissen, represented by Jean-Noël Louis, of the Brussels Bar, and the Court of Auditors, represented by Jean-Aimé Stoll, acting as Agent, presented oral argument at the sitting on 23 October 1986.

The Advocate General delivered his Opinion at the sitting on 11 December 1986.

Y. Galmot

Judge-Rapporteur

1 Language of the Case: French.