Report for the Hearing delivered in Joined Cases 151 to 154/86

I — Facts and procedure

A — Legal background to the dispute

According to Article 45 (2) of the Staff Regulations of Officials of the European Communities, ‘an official may be transferred from one service to another or promoted from one category to another only on the basis of a competition’. However, Title VIII of the Regulations, which contains special provisions applicable to officials in the scientific or technical services of the Communities, provides in the second paragraph of Article 98 that Article 45 (2) is not to apply to officials covered by Article 92, that is to say to officials who belong to the scientific and technical services of the Communities.

The Commission has introduced a system allowing officials in those services to be transferred from Category B to Category A after their suitability for performing Category A duties has been assessed. To this end, on 24 June 1983, the Commission published in Administrative Notices a document concerning the ‘procedures to be implemented prior to decisions on the transfer from Category B to Category A of officials and temporary staff in the scientific and technical services’ (hereinafter referred to as ‘the Procedural Arrangements’).

Part III of those Procedural Arrangements provides for the institution of an ad hoc Committee whose members are designated by the Commission and whose task is to examine the applications according to the procedure provided for in paragraph III 2 (a) to (d). That procedure entails the scrutiny of each candidate's application and, where appropriate, an interview with the candidate. It also includes the assessment of a dissertation written by the candidate on a scientific or technical subject to be chosen by the Committee. However, paragraph III 2 (d) provides that:

‘Candidates holding a degree or diploma from a university or a comparable scientific or technical establishment will not be required to present a dissertation, provided they can show they have the professional experience and seniority specified in paragraph II (2). They may be recognized as eligible for transfer following verification of their diplomas and an interview with the Committee to assess their level and areas of competence.’

Finally, paragraph HI 2 (e) provides that:

‘Following its deliberations, the Committee will submit a reasoned report to the appointing authority with a list of candidates considered capable of performing Category A duties. The report will indicate the areas in which each candidate is regarded as being competent. A transfer decision will then be taken by the appointing authority in the light of service requirements and the budgetary situation.’

B — Origin and development of the litigation

Mr Bauer, Mr Freidhof, Mr Kutschera and Mr Böttcher, who are Category B officials at the Ispra research centre in Italy, applied for transfer to Category A in letters dated respectively 26 September 1983, 9 August 1983, 29 September 1983 and 29 September 1983.

Each of the four candidates produced his university degree certificate and underwent two interviews with the ad hoc Committee. Later, on 16 September 1985, each received a letter from the chairman of the Committee informing him that the Committee had forwarded to the Directorate-General of Personnel and Administration the list of candidates who, in the Committee's view, were suitable for performing Category A duties and that he was not on the list. On the same day, the Commission sent the four applicants a letter informing them that the ad hoc Committee responsible for drawing up the list of suitable candidates had finished its work and that unfortunately it had not been able to enter their names on the list.

The above-named officials submitted complaints in due time and in due form under Article 90 of the Staff Regulations requesting that the administration's decision of 16 September 1985 be annulled and that their names be entered on the list of suitable candidates.

The Commission rejected those complaints by decisions of 4 April 1986.

The four applicants thereupon brought actions before the Court of Justice, which were entered in the Court Registry on 25 June 1986 under numbers 151 to 154/86.

By order of 10 July 1986 the four cases were joined for the purposes of the hearing and the judgment.

II — Conclusions of the parties

The applicants each claim that the Court should:

i) Annul the decision contained in the defendant's letter to the applicant dated 16 September 1985 as it appears in the decision of 4 April 1986 regarding his complaint;

ii) Order the defendant to include the applicant in the list of candidates capable of performing Category A duties and to indicate the area or areas in which the applicant is to be regarded as competent and in which he could perform his duties at the technical level required in the Commission;

iii) In the alternative, order the Commission to ask the ad hoc Committee to reconsider the applicant's candidature under the procedure for transfer from Category B to Category A and to specify the areas in which the applicant is to be regarded as capable of performing Category A duties;

iv) Order the Commission to pay the costs.

The Commission contends that the Court should:

i) Dismiss the applications as unfounded;

ii) Order the applicants to pay the costs.

III — Submissions and arguments of the parties

Admissibility

The Commission considers that the applicants' claim that it should be ordered to include them in the list of candidates capable of performing Category A duties is inadmissible. It would be impossible to comply with such an order since the Commission has delegated its power to draw up the list to a committee and it no longer has any power in the matter.

The applicants have not expressly replied to this plea of non-admissibility, which was raised by the Commission for the first time in its rejoinder. However, they partly and implicitly replied in advance in their applications by stressing that the Commission had at its disposal in the Committee, which was only its instrument, information which would allow it to enter the applicants on the list with an indication of their field of competence and by claiming in the alternative that the Commission should be ordered to resubmit their applications to the Committee.

The substance

The applicants point out that the procedure for transferring from one category to another, as set out in the Procedural Arrangements, constitutes the only means whereby a Category B official who, like the applicants, fulfils the condition regarding university education normally required by Article 5 of the Staff Regulations for the exercise of Category A duties, may be promoted to Category A. They then set out a number of complaints which may be grouped into four submissions.

1) The first submission alleges that the rules set out in paragraph III (2) of the Procedural Arrangements drawn up by the Commmission have been misinterpreted. The applicants acknowledge that the Committee was certainly entitled to verify whether they held a degree or diploma from a university or a comparable scientific or technical establishment but maintain that, once this was done, the Committee should have interviewed the candidates only in order to assess their level and area of competence. It was not entitled to turn the interview, which was only for the purposes of guidance, into a real examination, which, however, is what the Committee did in asking the candidates to present a talk and to answer questions asked by the Committee on that talk. In fact, as soon as they had been recognized as holding a degree or diploma and had attended the interview whose purpose was to determine their level and area of competence, the Committee should have entered the applicants' names on the list of candidates suitable for performing Category A duties in accordance with the provisions of paragraph III 2 (d) according to which candidates holding a degree or diploma from a university or a comparable scientific or technical establishment ‘may be’ (in the English text of Administrative Notices the words ‘will be’ are used) recognized as eligible for transfer following verification of their diplomas and the interview. Although the Committee may have some discretion in assessing the merits of candidates without a diploma, who must present a dissertation and undergo an examination, it does not have such discretion in the case of holders of a degree or diploma; in their case, it must only determine the area or areas of competence in which they would be employed in Category A. This is why the Committee was not entitled to include only the candidates which it regarded as ‘most suitable’ from amongst the holders of a degree or diploma. Furthermore, the Commission, which is responsible for the proper conduct and procedure followed by the Committee and for the correctness of the results of its work, was not entitled to shelter behind the decision of the Committee to refuse to enter all candidates with diplomas on the list of suitable candidates. However, the Commission maintains that in order to facilitate the final choice of the appointing authority, the Committee was entided to undertake a selection procedure amongst the candidates with degrees or diplomas, as is confirmed by the provisions of paragraph III 2 (d), which is relied on by the applicants. First, it is indicated that candidates holding a degree or diploma may be recognized as eligible for transfer (it is true that in the English text the words ‘will be’ are used but, according to the case-law of the Court, where the language versions vary, the texts must be interpreted according to their purpose). Secondly, the abovementioned provisions give the Committee the task of not only verifying the degrees or diplomas of candidates but also of assessing the level and field of their competence. Assessing that level certainly does not mean verifying the existence of knowledge, as the applicants profess to believe, but necessarily implies a comparison between the respective abilities of the candidates holding degrees or diplomas. Furthermore, if the Committee were to limit its tasks concerning those candidates to the tasks which the applicants attribute to it, namely checking their diplomas and determining their field of competence, it would exceed its powers in classifying them according to their suitability and their merits; however, such a right was emphatically recognized by the Court in its judgment of 9 October 1984 in Joined Cases 80 to 83/81 and 182 to 185/82 (Robert Adam and Others v Commission [1984] ECR 3411).

2) In their second submission the applicants maintain that the Committee used a procedure equivalent to a competition by making a selection amongst candidates with a university degree or diploma from a comparable establishment. It is clear from the second paragraph of Article 98 of the Staff Regulations that the appointing authority not only has no possibility of organizing a competition for transferring scientific and technical staff to a higher category but is required not to do so. Furthermore, the Commission is wrong to maintain as justification for using the competition procedure that transfer to a higher category constitutes a promotion. In fact such a transfer might be a backward step as in the case of an official in Grade B 2 and especially in Grade B 1, who, if he were appointed to Category A, would be classified in Grade A 7. The Commission rejects that line of reasoning. It stresses that transfer to a higher category constitutes a promotion, as is indicated from the wording of the title of the Staff Regulations in which the article dealing with such transfers is to be found. The two following conclusions must be drawn therefrom:

a) First, the Commission is entitled to use the methods which it considers to be the most appropriate for undertaking a comparative examination of the candidates eligible for promotion (judgment of 1 July 1976 in Case 62/75 de Wind v Commission [1976] ECR 1167, paragraph 17, and the judgment of 6 June 1985 in Case 146/84 de Santis v Court of Auditors [1985] 1723, paragraph 11). The Commission has a wide discretion in setting out the task of the Committee and in taking account of the results of its deliberations (judgment of 14 July 1983 in Case 9/82 Øbrgaard and Delvaux v Commission [1983] ECR 2379, paragraph 14. Thus, although the Commission is not obliged under the second paragraph of Article 98 of the Staff Regulations to rely on the rules and practices observed in competitions, it may do so. This presupposes in particular that the final choice by the appointing authority is limited to a restricted list of the most suitable candidates and that consequently the body whose task it is to draw up this list makes a selection.

b) Secondly, the existence of a degree or diploma alone cannot be decisive for promotion. As the Court has held, other factors must be taken into account when the merits of officials eligible for promotion are compared, in particular the general quality of the work which they have performed (judgment of 17 March 1983 in Case 280/81 Hoffmann v Commission [1983] ECR 889, paragraph 9). Furthermore, iţ is inappropriate for there to be no selection amongst Category B officials who are candidates for transfer to a higher category just because they have a degree or diploma whilst holders of a degree or a diploma who take part in a competition for a reserve list undergo rigorous selection procedures.

3) The applicants' third submission is that the Committee should not have taken into account the likely budgetary constraints as it did. That factor should only be taken into account, if need be, in so far as the candidates who must take an examination, that is to say those who do not hold a university degree or equivalent diploma, must be selected if the number of suitable candidates to be entered on the list must be limited. However, in the applicants' view, there is a contradiction in the Procedural Arrangements between paragraph I (d), which allows the ad hoc Committee to take the budgetary situation into account, and paragraph III 2 (e), which leaves this to the appointing authority. That contradiction must be removed in favour of the appointing authority which alone is in a position to have an overall view of budgetary questions and the requirements of the service. Therefore, it is for the Committee to draw up its list taking into account the entitlement of the candidates who hold a university degree, or equivalent diploma, who thus enjoy priority by reason of the fact that they fulfil the conditions for admission to Category A which are provided for in Article 5 of the Staff Regulations, and of the candidates who have succeeded in the examination. Finally, it is for the Commission, as appointing authority, to make appointments taking into account the requirements of the service and the available budgetary posts. Furthermore, in order to determine those budetary posts, it is not appropriate to take into account a single year as the Commission does in its defence: the following years up to the next competition as well as the number of extra posts freed by ‘natural wastage’ should also be taken into account. In refutation of that argument the Commission points out that, as is clear from paragraph I (d) of the Procedural Arrangements, the Commission itself authorized the Committee to take the budgetary situation into account when drawing up the list of suitable candidates. The attention of the officials involved had been drawn to the exceptional nature of a change of category and to the fact that the number of officials who could benefit from such a decision would be notified by the appointing authority in the light of the likely available budetary resources; that number was in fact notified to the ad hoc Committee. In 1985, a maximum number of four Category B officials could be transferred to the next higher category whereas there had been 76 applications of which 36 came from holders of a university degree or an equivalent diploma. For that reason, it was not possible to envisage that all candidates with such diplomas would be automatically entered on the list of suitable candidates.

4) Finally, in their fourth submission, the applicants submit that the Commission is wrong to justify the selection made between candidates with diplomas by referring to the obligation to observe the principle of equal treatment of all candidates. They submit that that principle cannot be applicable in the present case since candidates with diplomas are not in the same situation as candidates without diplomas; that fact is recognized by the Procedural Arrangements which do not treat them in the same manner since one category must present a dissertation and undergo an examination and the others are exempt from doing so. Furthermore, even if the principle of equality of treatment were applicable, it was disregarded since the candidates without degrees or diplomas were able to prepare carefully for their examination, which basically consisted in giving a talk on their dissertation and later answering questions whereas the candidates with degrees or diplomas, who expected to take part in a simple interview, were subject unexpectedly to a real examination. In reply, the Commission points out that, in view of the limited number of the available posts and therefore the number of names entered on the list of suitable candidates, it would have been contrary to the principle of equal treatment of candidates if all the candidates with diplomas had been automatically entered on that list since candidates without a degree or diploma would inevitably have been pushed out. As regards transfer to a higher category, all Category B candidates must be treated in an equal fashion, whatever their diplomas, since they have been recruited into that category on the basis of their abilities and pursuant to the procedures in force without any discrimination. The possibility of being transferred to a higher category, although it only takes place exceptionally, is a strong incentive for the most motivated officials to improve their performance. It is also one way of recognizing further training and instruction of officials, which is encouraged by Article 24 of the Staff Regulations. There is no reason to penalize those Category B officials who do not hold university degrees or equivalent diplomas by giving priority to candidates who do hold such a degree or diploma. Both categories must be selected on their merits and their suitability for performing duties in a higher grade and their cases must be examined according to identical procedures, with the proviso that candidates with diplomas may be exempted from submitting a dissertation and the examination thereon since a diploma is sufficient proof of the existence of their knowledge. The Committee was thus right to select candidates by means of an objective procedure guaranteeing that their abilities would be compared according to the principle of equal treatment. In the Commission's view, that principle was not contravened because of the conditions in which the applicants' interview with the Committee took place, about which the applicants have complained. Determining the form of the interview with the candidates with diplomas lay within the powers of the Committee, which had clearly informed the candidates in advance about the subjects, structure and purpose of the interview.

Y. Galmot

Judge-Rapporteur

1 Language of the Case: German.