1.

In order to dispute the regularity of the steps taken and, consequendy, the appointment of Mrs Louwage, he bases his argument essentially on the fact that it was a competition on the basis of qualifications and that the Selection Board incorrectly assessed the value of his qualifications compared to those of the candidate who was placed first. During the written procedure he listed his qualifications and the assessments made of him by his superiors and insisted on the production of Mrs Louwage's personal file, which you did not consider it necessary to order. Subsequendy, the European Parliament voluntarily produced the report of the Selection Board and it was upon this document that the arguments at the hearing centred.

You are in possession of these minutes which comprise eight pages of typescript. The Selection Board first defines how it sees its task, taking into account the notice of competition; it concludes that without restricting itself to considering the level of studies followed it must examine the abilities of the candidates, as exhibited by their personal files, in the six areas which it enumerates. However, as these various qualifications are not of the same importance, it will be necessary ‘after examining them separately, not simply to add them together but to compare them by balancing them one against the other’.

In fact, after analysing the qualifications of the various candidates in the areas enumerated by it, the Selection Board carefully compares their positions before drawing up the list of suitable candidates in order of merit.

Mr Morina makes two criticisms of the operations described above. First, as to method: in order to conform to the provisions of the third paragraph of Article 5 of Annex III, the Selection Board should have established the criteria on which it intended to base its assessment before examining the qualifications of each individual candidate; it should also have decided the number of points or the coefficient to be given to each qualification considered by it.

The minutes show that, contrary to what the applicant maintains, the Selection Board did define the criteria to be applied before any examination of the individual positions of the candidates. On the other hand, I do not consider that it was obliged to draw up an actual scale not prescribed by any provision; in deciding to balance the various qualifications under examination one against the other, it seems to me to have adopted an irreproachable method.

The applicant also challenges the various criteria adopted by the Selection Board and the importance which it attributes to them. His criticisms are varied but they are all based more or less closely on the identification of ‘qualifications’ with ‘university qualifications’. As the notice of competition required candidates to have had a good, general, secondary education, the person who can produce the best certificates is necessarily the person with the highest qualifications. Mr Morina considers that as he is a doctor of law, and is the only candidate able to put forward such a degree, he should have been placed first in the list of suitable candidates. However, the Selection Board considered that it had to look more generally at the ‘merits’ of the candidates in all areas capable of showing their suitability to hold the post competed for, and I think that one cannot in faot limit qualifications to university qualifications.

The Selection Board took into account the following factors in its examination: scholastic and university qualifications or equivalent experience in employment—reports on performance of duties previously obtained in the service—results obtained in previous competitions—knowledge of languages—grade and seniority in that grade—seniority in the service.

Mr Morina particularly criticizes the Selection Board for having taken into consideration reports on the candidates' performance of their duties, a practice which, he claims, is condemned by the judgment in the Alvino case. Contrary to his belief, your judgment did not touch on this point, which was in fact raised by certain of the applicants. But I personally consider, as I said then, that since it is a matter of weighing up the merits of candidates already in the service, it is perfectly logical to look particularly to the manner in which they have demonstrated these merits in the exercise of their duties. As to the reports made on the applicant, in part flattering and in part reserved, it was for the Board to judge the importance which it considered had to be attributed to such assessment. Mr Morina points out in particular that according to the report of the Selection Board, two reports by his immediate superiors, which he considers to be essential, were not included in his personal file; even supposng there to have been an administrative irregularity, it has no influence on these proceedings, since it is not disputed that the Selection Board was in fact aware of those documents.

Finally, another complaint: the Selection Board was not permitted to take account, as it did, of results obtained by the candidates in previous competitions. This practice is certainly blameworthy if the Selection Board merely modelled its assessment on that of its predecessors; but I do not think that it can be criticized for having taken this factor among others into account in order to judge the suitability of those under consideration.

Although, by reason of the lively criticisms of such a complete and conscientious report, I have been led to discuss it in some depth, I do not intend, however, to disregard the wide powers which the authors of the Staff Regulations intended to give to the Selection Board. The Board's freedom is only limited in two respects: observance of the provisions of the Staff Regulations and of the notice of competition and its duty not to base its decisions on incorrect findings of fact. But, subject to these reservations, it has the right, within the framework of criteria which it has duly laid down, freely to form its judgment on the respective merits of the different candidates and you cannot substitute your assessment for that of the Board. In this case I consider that the steps which it took are not tainted with any irregularity. As the decision of 19 November 1964 appointing Mrs Louwage to the vacant post has been criticized only on the basis of the procedure followed by the Selection Board, I am of the opinion that you should reject the conclusions seeking its annulment.

2.

Mr Morina also challenges the due form of the decision of 5 February 1965 which, in rescinding the previous decision with retroactive effect, appoints Mrs Louwage to Grade B4 with effect from 1 December 1964. I have already said that I consider his conclusions to be admissible, but are they well founded?

The notice of competition concerning the post of administrative assistant (career bracket B5-B4) specified that the post was to be filled at Grade B5 and it was in fact at that grade that Mrs Louwage was first appointed. How can one define and justify the decision which almost immediately granted her Grade B4 with retroactive effect?

The defendant institution tells us first of all that it is not a question of promotion which could only have occurred after six months from the acquisition of the grade and in accordance with the procedure laid down by Article 45 of the Staff Regulations; on this point I agree with its contention. It adds that it is not a question of a ‘primary’ appointment either, but a regularization of an administrative position carried out in accordance with the requirements of the Staff Regulations and the budget, but here I should say that, in whatever way it is described, it has the same effect as a ‘primary’ appointment, as it is retroactive.

The requirements to which the Parliament refers are as follows: before entering the competition, Mrs Louwage held Grade C1, at a salary equal to that of Grade B4; as the second paragraph of Article 46 of the Staff Regulations provides that an official appointed to a higher grade shall in no case receive a basic salary lower than that which he would have received in his former grade, she should in any event have been appointed to Grade B4 straight away. This was not done because at the time of the notice of competition and also of her appointment there was no post available in that grade, but as such a post was allocated in the detailed list of posts published in the Official Journal of 1 December 1964 the defendant institution considers that it was obliged to give Mrs Louwage the benefit of it immediately. On the applicant's alluding to the grant of a compensatory allowance, the Parliament replies that such a solution is not provided for by the Staff Regulations and, in the absence of such a provision, must be considered to be illegal.

I have much hesitation in following this line of argument. It is true that in certain cases the Staff Regulations allow the grant of a compensatory allowance, since this was the system applied to Mrs Louwage before the creation of the B4 post, as appears from the letter of 24 November 1964 sent to her by the Director-General of Administration referring, moreover, to the provisions of the second paragraph of Article 46 of the Staff Regulations. I do not see why this system was not subsequendy continued, as Article 46 merely guarantees the promoted servant a level of salary.

Furthermore, it appears little in conformity with the Staff Regulations, which are based on the system of career brackets, immediately to appoint a servant who has been through the competition procedure to the higher grade of the career bracket. This would lead to the elimination of promotion as a means of filling vacant posts, even though it appears as the first of the methods provided for by Article 29 of the Staff Regulations.

In this particular case, it must be emphasized above all that the vacancy notice expressly provided that the post would be filled at Grade B5. This statement once made inevitably had the effect of discouraging certain servants, at least of Grade C1 with only a limited interest under these conditions of progressing out of Category C, from entering the competition. We know from the examples of the applicant and Mrs Louwage that not all were discouraged, but it is probable that, in the absence of that statement, the competition would have attracted other candidates.

Must it therefore be considered that the disputed provision of the vacancy notice bound the appointing authority? Whilst recognizing that it is questionable, I am inclined to answer in the affirmative. I do not believe in fact that Article 46 of the Staff Regulations necessarily obliged the post to be filled at Grade B4 as soon as it appeared in the detailed list of posts, and the provision of the vacancy notice was not therefore in conflict with the Staff Regulations; in fact, the soundest reasons of natural justice and good faith militate in favour of the observance of that provision. An appointment announced after a competition must conform to the provisions of the measure initiating that competition; it must remain within the limits of what has been announced to the servants in order to invite applications. If not those servants can only have the false but inevitable impression that the administration has not done all that it should have done for the competition to be held with sufficient knowledge of the conditions. Once the appointment has been announced in conformity with the vacancy notice, the official appointed has the opportunity of attaining a higher grade by means of promotion, as soon as he has acquired sufficient seniority, in competition with those in the same grade. It is essentially for reasons of natural justice, therefore, that I consider that the decision of 5 February 1965 must be annulled, leaving Mrs Louwage in Grade B5 which she holds by virtue of the decision of 19 November 1964.

Moreover, as the applicant has had a pant of his conclusions accepted, it seems to me that one half of the costs should be borne by the European Parliament.

To conclude, I am of the opinion that the conclusions of the application challenging the decision of the Secretary-General of the European Parliament of 19 November 1964 appointing Mrs Louwage an administrative assistant in Grade B5 with effect from 1 December 1964 should be rejected and that the decision of 5 February 1965 appointing her to Grade B4 , again with effect from 1 December 1964, should be annulled.