Opinion of Mr Advocate General Reischl delivered on 15 March 1978. # Magdalena Allgayer née Parzinger v European Parliament. # Case 74/77.

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Attention is first of all drawn to the fact that the applicant objects to the notice of competition. Since this is a measure adopted by the appointing authority, it cannot however be attacked directly (that is, not without a complaint first having been lodged) by means of an action in the same way as documents issued by the Selection Board.

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Secondly, in the view of the Parliament there is no interest which requires protection. This is so because the applicant did not enclose her curriculum vitae with her application form and because the photocopy of the certificate of her university degree which she sent in was accompanied only by a photocopied endorsement certifying it to be a true copy of the original. She therefore did not comply with the conditions of the competition and her application could for that reason have been rejected, with the result that the question whether the Board could properly rely on other reasons for not admitting her to the written test does not have to be gone into.

(a)

The claims in the application are determinative as far as concerns admissibility. They clearly refer in this case to an act of the Selection Board — the refusal to admit the applicant to the written test — and also to the finding that the Board still has to carry out certain tests. Accordingly the applicant — in accordance with the relevant case-law — could dispense with lodging a complaint with the appointing authority before commencing proceedings, because that authority cannot intervene during the course of the selection procedure. On the other hand, the fact that the formulation of the notice of competition is relevant to the grounds for the application is in my opinion of no importance. The decisive fan is that this complaint is not aimed at indirectly nullifying the notice of open competition but is only an argument in support of the submission that in view of the misleading notice the Board was under a duty to require the applicant to produce the missing qualifications.

(b)

The second objection of the Parliament also has to be regarded as being ineffective. It is true that, in the two respects which have been mentioned, the applicant undoubtedly did not comply with the conditions for the competition found in the general provisions governing open competitions. However, the important fact is that the Board did not treat this as a ground for rejecting her application. The applicant was nevertheless expressly admitted to the competition procedure, and this can only be taken to mean that the Board did not consider the defects indicated as being decisive. In any case, those defects must be treated as having been waived by the Board's conduct. We must now proceed on the basis of these existing facts. The most important point to note is that the appointing authority cannot reverse the assessment which has been made. I am therefore of the opinion that the legal interest in bringing the application, which is directed against other acts constituting the said assessment, cannot be challenged on the ground that the applicant should not have been admitted to the competition from the very beginning — which is not what happened.

(a)

The main reason why she assumes that she was is that the examination was not complete. She was in fact entitled according to the conditions of the notice of competition and to the provisions of the Staff Regulations of Officials to assume that all the relevant certificates did not have to be sent in immediately but would be called for if necessary by the Selection Board. However, this did not happen and for that reason in her case certificates concerning her knowledge of languages, a certificate referring to the completion of a teacher-training course and also the certificate relating to the probationary period which she served with the Commission were not taken into consideration.

When examining this issue — on this point the Parliament is right — it is of the first importance that this particular competition was based on qualifications and tests. It follows from this that in the first stage of the competition procedure qualifications were very important and it must therefore have been obvious to candidates that they should enclose in the first instance with their application any qualification which might appear to have some importance.

Moreover, in favour of that view and against the argument that candidates could have awaited a request to send in certificates there is not only the fact that, when there is a large number of candidates, and this was to be expected since a reserve list was to be drawn up, such requests for additional documents would have raised considerable technical problems and entailed an undesirable loss of time. In that context reference may also be made to the common formulation of the general provisions governing open competitions and the notice of open competition. In particular, it is of interest to note that the plural is used throughout, whether in the general provisions, which mention diplomas and other academic qualifications and advise candidates to send in copies thereof, or in the notice of competition, which states that after deciding the criteria by which to assess candidates' qualifications the Selection Board will examine the qualifications of each candidate.

On the other hand, conclusive importance can hardly be attached to the arguments put forward by the applicant on this point.

This applies first of all to her references to the fact that the notice of competition only mentions diplomas and other evidence of formal qualifications relating to university studies in certain disciplines. The fact must not be overlooked that this was stated with the purpose of laying down the minimum conditions of admission which candidates had to fulfil. Having regard to the rest of the wording of the notice of competition it cannot be inferred that only such certificates had to be produced.

This applies as well to her reference to the recommendation in the general provisions governing open competitions to send in copies of diplomas and other evidence of formal qualifications corresponding to the highest level of studies completed by candidates. In my view the meaning of this recommendation is absolutely clear: it is intended to save candidates unnecessary expense and to prevent an unnecessary increase in the number of documents, since certificates are not relevant if they are only prerequisites for attaining the highest level of studies. As against that, it was wrong to infer from this an indication that not all the important certificates have to be lodged immediately and that as far as the latter are concerned a request to produce them from the Selection Board could be awaited. Nevertheless, it is interesting to note that the applicant herself did not proceed in accordance with her own understanding of the recommendation as expressed in her application but immediately sent other certificates such as her junior high school and final school leaving diplomas — that is to say certificates relating to unimportant intermediate stages.

Finally, the same applies to her reference to the second paragraph of Article 2 of Annex III to the Staff Regulations of Officials of the European Communities which reads — and the wording is also found in the general provisions governing open competitions — ‘[Candidates] may be required to furnish additional documents or information’. In fact the wording of that provision excludes the possibility of inferring therefrom an obligation to require additional documents. It is simply a permissive provision which may at best be relevant in exceptional cases at the Selection Board's discretion.

I therefore believe that the Selection Board cannot be criticized for not having required the applicant to furnish additional documents and for having wrongly carried out the requisite tests on an incomplete basis. If the tests were incomplete that was due to a failure to an in accordance with the procedure for which the applicant alone is responsible.

Permit me however to add — although this is not a determinative factor for the decision in this case — that the impression is inescapable that the certificates which the applicant sent in later could scarcely have had any influence on the Selection Board's decision. This becomes quite clear once we are familiar with the criteria which the Selection Board applied when examining the qualifications.

With regard to the documents which relate to the applicant's knowledge of languages it is important to note that knowledge of languages did not play any part in the first stage of the examination of the candidate's file — if the particulars in the application form concerning minimum standards are disregarded. According to the Parliament knowledge of languages was to be assessed during the oral test.

The same conclusion has to be drawn in the case of the applicant's reference to the fact that she also studied to become a teacher and in conjunction therewith completed a course at an establishment for further vocational training. As far as that is concerned it would seem to be of importance that this was not special training but only part of the training of which the applicant gave particulars in her application form. Furthermore, it is difficult to see how anything could be found in the certificate produced by the applicant, relating to a one month practical course which she attended and during which she took two teaching tests, which could be relevant when applying for a post in the Community in Grades A 7/A 6, even from the point of view of personnel administration.

Finally, with reference to the fact that the applicant worked for one year in the field of economics with the Directorate-General for Credit and Investments of the Commission and after the expiry of her probationary period received a report, it is in my opinion sufficient to know that this was a post in grade B 5. Under the third subparagraph of Article 5 (1) of the Staff Regulations a university degree is not necessary for such a post. In the competition with which we are concerned such duties could not therefore be regarded as equivalent professional experience. Furthermore, since this was a fact which clearly emerged from the applicant's application form — an assessment did not have to be made in this first stage of the competition procedure — it was not concealed from the Selection Board.

(b)

Since nothing has emerged so far which might justify any criticism of the proceedings of the Selection Board the applicant's further criticism, that there are at least two other reasons for calling in question the way in which the competition based on qualifications was conducted, now has to be considered.

The applicant first of all expresses the view that it is difficult to understand why the Selection Board applied four criteria, when in practice it was only concerned with the assessment of a single certificate, since the particulars given in the application form — being subjective assessments — should have been disregarded. In the second place, she submits that one candidate was admitted to sit the written test although his university degree was no better than the applicant's. It may be presumed from this and other similar individual cases, of which no further details were given, that for the admission of candidates to the written tests considerations unconnected with certificates played a part.

On this point, in view of the reply of the Parliament and after production of the Selection Board's report on the conduct of the competition, the following brief observations may be submitted.

(c)

All the above forces me to conclude that the applicant's claims, from whatever point of view they are considered, cannot be regarded as having been substantiated.