DELIVERED ON 27 SEPTEMBER 1984 (1)

Mr President,

Members of the Court,

1. I refer the Court to the Report for the Hearing for a summary of the facts and the written procedure and propose only to repeat those points that appear to be decisive for the determination of this case.

On 1 October 1982, the Court of Auditors decided to organize an internal competition with a view to filling a post for a principal administrator in Career Bracket'A 5/A 4 whose task would be to carry out, under the authority of an immediate superior, advisory duties relating to internal administration and budgetary matters.

In order to take part in the competition, candidates were required to meet two conditions in particular.

For the first there were two alternatives. They were required:

to hold a diploma attesting four years of university studies in one or more specified disciplines; or

to establish that they had equivalent professional experience, which was defined as including any experience gained: in a fulltime occupation, normally requiring a university diploma, “of a duration at least equal to that necessary for the completion of the full period of studies required to obtain” the diploma in the absence of which professional experience was required.

The second condition applied to all candidates. They had to have professional experience of at least six years at a responsible level in an occupation relevant to the post applied for.

With reference to the first condition, the notice of competition specified that:

“Credit shall be given for professional experience gained after the award of a university diploma”, and that

“In the case of a candidate not holding a university diploma, six years' experience is to be added to the professional experience required to compensate for the absence of a diploma” (in that case, the candidate had therefore to establish that he had a total of at least ten years' professional experience).

2. On 7 December 1982, the selection board drew up, in order of merit, the list of the three candidates it considered suitable for the vacant post. On that list, which was notified to staff on the following day, Mr Calvin Williams appeared only in second place. The first place was given to Mr Hartmut Schwiering, and it was him that the Court of Auditors decided to appoint.

That result and the appointment which followed it came as no surprise to Mr Williams. Indeed, as early as 16 November 1982, he had lodged with a Luxembourg notary a document containing a list of six candidates in six competitions, one of whom was Mr Schwiering, whom he considered to be certain of success in those competitions, which he described as “shams”.

Mr Williams' predictions have since been borne out by events.

The Financial Controller withheld his approval of the appointment of Mr Schwiering on the ground that the latter did not satisfy the conditions laid down in the notice of competition for admission to the tests; the Court of Auditors then forwarded to him a second decision, No 2239 dated 1 February 1983, together with supporting documents, which was rebuffed by a second refusal of approval on 28 February 1983. By a decision of 24 March 1983, the Court of Auditors decided to overrule that refusal, thereby confirming “Decision ... No 2239 of 1 February 1983 nominating Mr Schwiering as a probationary official in Grade A 5.”

On 5 May 1983, Mr Williams lodged a complaint against the decision last mentioned, pursuant to Article 90 (2) of the Staff Regulations. That complaint was rejected by the Court of Auditors on 5 September 1983.

3. Those are the circumstances in which Mr Williams brought this action, which was filed at the Court Registry on 18 November 1983, claiming:

That Mr Schwiering's appointment should be annulled;

That the case should be referred to the appointing authority of the Court of Auditors to implement the judgment to be given on the application;

That the Court of Auditors should be ordered to pay Mr Williams an unspecified amount for nonmaterial damage and LFR 500000 for material damage, “such sum not to be payable in the event of the applicant's appointment to the post in question.”

4. The Court of Auditors objects that the application is inadmissible, both as being out of time and on the ground of insufficient interest on the part of Mr Williams in the action.

Both those objections of inadmissibility must be rejected. It is not true that, as is claimed by the Court of Auditors, “the appointment of Mr Schwiering is merely the automatic consequence of the publication of the list of suitable candidates on 8 December 1982” and that, consequently, it merely constitutes “a confirmatory measure devoid of independent legal consequences and incapable of adversely affecting an official.”

By virtue of Article 1 of Annex III to the Staff Regulations, which relates to competition procedure, the notice of competition drawn up by the appointing authority must specify:

“...

the diplomas and other evidence of formal qualifications or the degree of experience required for the posts to be filled ...”

Article 5 of the annex admittedly empowers the selection board to establish “a list of candidates who meet the requirements set out in the notice of competition.”

However, that provision cannot be interpreted as depriving the appointing authority of the power, and even the duty, to ascertain whether any candidate included in the list of suitable candidates by the selection board actually meets the requirements laid down by the appointing authority itself with regard to diplomas or experience.

Thus it is the date of the appointment that constitutes the starting point for the period of three months laid down by Article 90 (2).

As is noted in the Report for the Hearing, the appointment of Mr Schwiering was the subject of three successive decisions, dated 17 December 1982 and 1 February and 24 March 1983.

It cannot be held that the first of those decisions had legal consequences. It is clear that it was postponed by implication by the decision dated 1 February 1983 (No 2239) and submitted to the Financial Controller “accompanied by explanatory note No 2237 and new documents in respect of Mr Schwiering's qualifications and experience”, (2) a decision which in turn became the subject of the second refusal of approval dated 28 February 1983.

It was the second refusal of approval and not the first that the Court of Auditors overruled by its decision of 24 March 1983, as is shown by the terms of the decision :

“The Financial Controller's refusal of approval dated 28 February 1983 (Ref.; CDV/CPFa — 70/83), regarding the proposal for a commitment of expenditure constituted by the appointing authority's Decision No 2239 of 1 February 1983 nominating Mr H. Schwiering as a probationary official in Grade A 5, is hereby overruled.”

It is also to the decision of 1 February 1983 that the President of the Court of Auditors refers in his memorandum dated 5 September 1983 informing Mr Williams of the rejection of his complaint.

Even if 1 February and not 24 March 1983 is taken as the date from which time runs, it would still not be legitimate to hold that Mr Williams's complaint was out of time since it has not been proved, or even maintained, that he had knowledge of the decision appointing Mr Schwiering before 4 May 1983.

Nor is there any greater merit in the claim that the applicant did not have sufficient interest; if Mr Schwiering's appointment were to be annulled, Mr Williams would once again be eligible for the vacancy thereby created.

5. Did Mr Schwiering satisfy the requirements for admission to the competition?

The Court of Auditors takes the view that the appointing authority is “not competent to inquire into the merits of the selection board's decision to admit a successful candidate to a competition.”

After expressing that reservation, the limitations of which I have already indicated, the Court of Auditors went on to provide a number of explanations for its view that Mr Schwiering was eligible to take part in the competition.

The Court of Justice therefore asked it to specify what were the grounds, in the last analysis, for its view that Mr Schwiering could be admitted to the tests in the competition. “Out of respect for the independence and objectivity of selection boards”, the Court of Auditors, in answering that point, retreated behind a statement drafted for the purpose by Mr Mart, the chairman of the selection board, on 16 April 1984, to which it asks the Court to refer, relying on that document as the statement of its own position. The document states that

If we reread Mr Mart's statement, we find that the selection board took the view that on 15 October 1982, the closing date, in the terms of the notice of competition, for lodging “the application form accompanied by copies of diplomas or other qualifications and of certificates attesting professional experience”, Mr Schwiering had established:

Not only a period of employment as a personal assistant to Mr Leicht, at the time the chairman of the Bundestag Budget Committee, from 1 January 1974 to 30 November 1977, and professional experience gained subsequently up to 15 October 1982 at the Court of Auditors, both periods added together amounting to eight years, nine months and fifteen days;

But also a period of legal studies at Bonn University running from October 1971 to 1 January 1974, that is to say for 27 months.

“The selection board” (stated Mr Mart in that connection) “treated the legal studies successfully completed as being equivalent to a part of the professional experience required, on the ground that if, instead of taking a course of study, Mr Schwiering had immediately started work, there would have been no difficulty in his being given credit for equivalent experience in accordance with the Court of Auditors' practice in its assessment of all staff recruited before that date.”

Thus it was by establishing that equivalence and by adding together the duration of the studies completed by Mr Schwiering and his various occupations, that the selection board arrived at the view that he had established that he had the total of 10 years' professional experience required in the absence of a diploma.

Such an equation flies in the face of the terms of the notice of competition recited above. For an occupation described as “normally requiring a university diploma” cannot by definition be made to include an activity which takes the form of studies and is undertaken as a means of obtaining that very diploma.

Consequently, even if it be supposed that his employment as a personal assistant to Mr Leicht may be taken into consideration, Mr Schwiering could not on 15 October 1982 show that he had the total of 10 years' professional experience required in his case for admission to the competition.

It follows that the decision of 1 February 1983 appointing him as a probationary official in Grade A 5, and also, so far as is necessary, the decision of 24 March 1983 overruling the Financial Controller's refusal of approval dated 28 February 1983, must be annulled.

6. If, in accordance with this Opinion, the Court holds that Mr Williams's application is admissible and that it is well founded as regards the request for the annulment of Mr Schwiering's appointment to the post made available in the competition at issue, then the Court of Auditors must be made to bear the costs of the proceedings.

Is it necessary to go further? I do not think so. As the defendant points out, even a first place on a list of suitable candidates does not confer an automatic right to appointment. The appointing authority could either start a new recruitment procedure or take a reasoned decision not to appoint the candidate in first place.

Mr Williams cannot prove that he has suffered actual damage and is therefore not entitled to claim damages.

7. In consequence my opinion is that:

Mr Williams's application should be declared admissible;

The decision of 1 February 1983 should be annulled, together, in so far as is necessary, with that of 24 March 1983 appointing Mr Schwiering as a probationary official in Grade A 5 ;

Mr Williams's claim for damages should be declared unfounded;

The Court of Auditors should be ordered to pay the costs of these proceedings.

(1) Translated from the French.

(2) Extract from the Financial Controller's note dated 28. 2. 1983.