61988J0108

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1 . Officials - Decisions adversely affecting them - Duty to state reasons - Purpose

( Staff Regulations of Officials, Art . 25, second paragraph )

2 . Officials - Recruitment - Competitions - Competitions based on qualifications - University diploma or degree required - Meaning of 'diploma or degree' - Determination on the basis of the legislation of the Member State in which the studies took place

3 . Officials - Recruitment - Competitions - Competitions on the basis of qualifications - University diploma or degree required - Requirement not met - Employment as a member of local staff with duties corresponding to an equivalent level of education - Not relevant

4 . Officials - Recruitment - Competitions - Conditions for admission - Requirements stricter than those laid down in the Staff Regulations with regard to grading - Permissible

( Staff Regulations of Officials, Arts 5 and 29; Annex III )

1 . The requirement that a decision adversely affecting a person should state the reasons on which it is based is intended to enable the Court to review the legality of the decision and to provide the person concerned with details sufficient to allow him to ascertain whether or not the decision is well founded .

2 . In the absence of any provision to the contrary contained in either a regulation or a directive applicable to competitions organized by the Community institutions for the purposes of recruitment or in the Notice of Competition, the requirement of possession of a university degree as a condition for admission to the competition is necessarily to be construed in the light of the definition of such a degree in the legislation of the Member State in which the candidate completed the studies on which he relies .

3 . Assessing whether a particular course of studies or degree is of a university standard is an ad hoc task which each selection board or appointing authority performs, in connection with admission of candidates to a competition or in connection with the engagement of local staff, respectively, taking into account the special features and requirements of each competition or each post to be filled . Consequently, a candidate cannot rely on the fact that he was employed by a Community institution as a member of local staff to do work which might require an equivalent level of education as a ground for the annulment of a decision which refuses to admit him to a competition on the ground that no diploma evidencing completion of studies at the level required by the notice of competition has been produced .

Article 5 seeks to provide a general definition, based on the nature of the duties attached to each post, of the minimum level required for officials of various categories, and does not concern conditions of recruitment . Those are governed by the provisions of Article 29 and Annex III to the Staff Regulations and there is nothing to prevent there being fixed in notices of competition conditions in relation to certain posts or certain categories of posts which are more rigorous than those which correspond to the minimum requirements resulting from the classification of posts, whether such conditions are fixed in order to full a specific vacant post or for the purpose of constituting a reserve with which to fill posts in a certain category .

In Case 108/88

Juan Jaenicke Cendoya, represented by Rafael Allendesalazar Corcho, of the Madrid Bar, with an address for service in Luxembourg at the Chambers of Aloyse May, 31 Grand-Rue,

applicant,

v

Commission of the European Communities, represented by Ricardo Gosalbo Bono and Daniel Calleja Crespo, members of its Legal Department, acting as Agents, with an address for service in Luxembourg at the office of Georgios Kremlis, also a member of the Commission' s Legal Department, centre Wagner, Kirchberg,

defendant,

APPLICATION for the annulment of the decision which was notified to the applicant on 25 January 1988 by the Head of the Commission' s Recruitment Division, by which the Selection Board in Competition COM/A/584 refused to recognize one of his diplomas as equivalent to a university degree and, consequently, did not allow him to take part in that competition,

THE COURT ( Third Chamber ),

composed of : F . Grévisse, President of the Chamber, J . C . Moitinho de Almeida and M . Zuleeg, Judges,

Advocate General : G . Tesauro

Registrar : H . A . Ruehl, Principal Administrator

having regard to the Report for the Hearing and further to the hearing on 24 May 1989,

after hearing the Opinion of the Advocate General delivered at the sitting on 28 June 1989,

gives the following

Judgment

1 By application lodged at the Court Registry on 1 April 1988, Juan Jaenicke Cendoya brought an action for :

( i ) a declaration that the diplomas produced in support of his application and the experience attested to in the aforesaid application met the requirements laid down in Notice of Competition COM/A/584;

( ii ) the annulment of the decision which was notified to him on 25 January 1988 by the Head of the Commission' s Recruitment Division, by which the Selection Board in the abovementioned competition refused to recognize one of his diplomas as equivalent to a university degree and, consequently, refused to allow him to take part in the competition;

( iii ) finally, the annulment of any acts adopted subsequently on the basis of the competition procedure at issue and an order requiring the Commission to hold a new competition .

2 By a notice of competition published in the Official Journal of the European Communities of 1 July 1987 ( Official Journal C 173, p . 14 ), the Commission of the European Communities announced that it was organizing an open competition on the basis of qualifications in order to draw up a reserve list of principal administrators of Spanish nationality in career bracket A5/A4 . Section III . B . 2 of the Notice of Competition stated :

"By the closing date for the submission of applications, candidates must :

( a ) furnish proof that they have completed postgraduate university studies evidenced by the award of a degree ( titulo ). The Selection Board will take into account the particular features of the structure of the studies pursued by the candidates;

( b ) have at least 12 years' experience since leaving university, six of which must be relevant to the post in question, the duties of which are set out in the annex ".

3 Within the time allowed in the Notice of Competition, the applicant submitted his application . By letter of 28 October 1987 the Commission informed him that it was making his admission to the competition conditional on his sending, before 20 November 1987, the certificate of validation for his degree of Licenciate of Economic and Business Sciences awarded by the Instituto católico de administración y dirección de empresas (" Icade ").

4 By telegram of 19 December 1987 the Commission informed the applicant that, following his complaint, the Selection Board had reconsidered his application and decided to admit him to the tests, provided that, on the day of the oral test, he produced the document validating his degree, which had been requested in the aforementioned letter of 28 October 1987 .

5 On 12 January 1988, the date of the oral test, the applicant submitted to the Selection Board only a certificate issued by the Letrado del Estrado, Head of the Legal Department of the Spanish Ministry of Education and Sciences, certifying that, at the request of the Secretary of State for Universities and Research ( Directorate-General of Higher Education ), his department was preparing a report on the equivalence of degrees awarded by the Universidad pontificia de Comillas, to which the Icade is attached, with official degrees . The Selection Board then decided not to proceed with the oral test .

6 By letter of 25 January 1988, the Head of the Commission' s Recruitment Division informed the applicant that the Selection Board had decided not to allow him to take part in the competition because, on the day of the oral test, he had not submitted the certificate of validation which had been requested .

7 Reference is made to the Report for the Hearing for a fuller account of the facts, the course of the procedure and the submissions and arguments of the parties, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court .

The declarations sought

8 The applicant is seeking various declarations concerning the validity, vis-à-vis the requirements laid down in the Notice of Competition, of the university degrees and experience evidenced in his application . The true object of these heads of claim is to have the Court uphold certain of the submissions put forward in support of the application for annulment .

9 The Court has consistently held that such claims are inadmissible ( see in particular the judgment of 10 December 1969 in Case 12/69 Gustav Wonnerth v Commission (( 1969 )) ECR 577, paragraph 6 ).

The application for the annulment of the decision to reject the applicant' s candidature

The submission that the statement of reasons for the contested decision was inadequate

10 The Court has consistently held that the requirement that a decision adversely affecting a person should state the reasons on which it is based is intended to enable the Court to review the legality of the decision and to provide the person concerned with details sufficient to allow him to ascertain whether or not the decision is well founded ( judgment of 9 June 1983 in Case 225/82 Verzyck v Commission (( 1983 )) ECR 1991 ).

11 In the present case the contested decision contained the following statement of reasons :

"The Selection Board in Competition COM/A/584 invited Mr Jaenicke Cendoya to take part in an oral test on 12 January 1988 at 6.00 p.m . on condition that he submitted to the Selection Board, on the day of the test and as required in the telex inviting him to attend, the certificate of validation of his degree from the Icade, so that that degree could be recognized as equivalent to an official degree .

On the day of the test the candidate could not produce the certificate requested, which meant that his degree was still not officially attested; consequently, the Selection Board could not allow the candidate to take the oral test ".

12 The decision therefore clearly states that the absence of validation for the Icade degree was the reason for which the candidate was not allowed to take part in the competition . Consequently, the submission in question is not well founded .

The submission that the documents certifying the studies completed by the applicant at the Icade met the requirements laid down in the Notice of Competition

13 Mr Jaenicke Cendoya claims that, having regard both to the length ( five years ) and the content of the courses - which are equivalent in all respects to those of a State university - the instruction provided at the Icade must be regarded as a course of higher education evidenced by a postgraduate degree . Furthermore, he maintains that Royal Decree No 1610/79 of 4 April 1979 ( Boletín Oficial del Estado No 157 of 2 July 1979 ) conferred the same validity on degrees awarded by the Universidad de Comillas as those awarded by State universities and did not contain any special provision for degrees obtained prior to its promulgation . Moreover, in his opinion, that equivalence is consistent with the Community concept of higher education to be inferred from Council Decision 87/327 of 15 June 1987 adopting the European Community action scheme for the mobility of university students ( Erasmus ) ( Official Journal 1987, L 166, p . 20 ) and Council Directive 89/48 of 21 December 1988 on a general system for the recognition of higher-education diplomas ( Official Journal 1989, L 19, p . 16 ). He states that by demanding validation of the Icade degree, the Selection Board imposed a requirement which did not appear in the Notice of Competition .

14 In the absence of any provision to the contrary contained in either a regulation or a directive applicable to competitions organized by the Community institutions for the purposes of recruitment or in the Notice of Competition, the requirement of possession of a university degree is necessarily to be construed in the light of the definition of such a degree in the legislation of the Member State in which the candidate completed the studies on which he relies .

15 At the time of the contested decision, Council Directive 89/48 of 21 December 1988, cited above, had not yet been adopted and its provisions could in no way be applicable . Furthermore, the essential purpose of Council Decision 87/327 of 15 June 1987, cited above, adopting the Erasmus programme, is to facilitate the mobility of students within the Community and not to govern the requirements for admission to competitions organized for the recruitment of officials of the European Communities .

16 The Notice of Competition itself did not contain any provision which could be interpreted as justifying a departure from the definition of a university degree given by the legislation of the Member State in which the studies were completed, in this case Spanish legislation . On the contrary, the statement in the Notice of Competition that the Selection Board would take into account the particular features of the structure of the studies pursued by the candidates must be regarded as an implicit reference to that definition .

17 It follows from the foregoing considerations that, in the present case, admission to the competition was conditional on the production of a postgraduate degree which was not merely a university degree but one fully recognized under Spanish law .

18 It is evident from the similar certificates issued by the Spanish Ministry of Education and Sciences ( on 9 February 1988 ) and by the Icade ( on 4 April 1989 ) that studies pursued at the Icade were not recognized until Royal Decree No 1610/79, cited above, was promulgated on 4 April 1979 . The decree conferred on studies pursued at the Icade "the same recognition as those pursued at State establishments", the studies in question "being subject to the rules laid down in Article 6 of the Convention between the Holy See and the Spanish State ". However, Article 6 of the Convention of 5 April 1962, to which the decree refers, does not confer automatic recognition but makes recognition subject to students passing a comprehensive theoretical and practical test organized under the supervision of the Ministry of National Education . That requirement has not been abolished in the meantime by the addition of a clause to the Convention between the Holy See and the Spanish State or by a law or regulation .

19 The applicant has not been able to prove, either before the Selection Board or before the Court, that he has passed the abovementioned test .

20 Therefore, even assuming that the documents submitted to the Selection Board could have been regarded as proof that the applicant obtained a degree from the Icade, the degree could not, for want of recognition under Spanish legislation, be regarded by the Selection Board as a degree evidencing postgraduate studies within the meaning of the Notice of Competition . Consequently, the submission must be rejected .

The submission that the Commission had already recognized the validity of the Icade qualification

21 Assessing whether a particular course of studies or degree is of a university standard is an ad hoc task which each selection board or appointing authority performs, taking into account the special features and requirements of each competition or each post to be filled . Consequently, the applicant cannot rely on the fact that he worked for the Commission as an "agent d' études" in the Information Office in Madrid, even though that post may be for a person with a university education, as a ground for the annulment of the decision not to allow him to take part in the competition which is the subject-matter of the present case .

The submission that the Selection Board should also have taken into consideration the applicant' s other university diplomas and, in accordance with the Notice of Competition interpreted in the light of Article 5 of the Staff Regulations of Officials, which contains a definition of Grade A, his subsequent experience

22 The Notice of Competition required candidates to show that they held a postgraduate university degree and had subsequent professional experience .

23 It must be emphasized first of all that the diplomas attesting studies pursued after a first degree which the candidate produced in support of his application cannot be regarded as equivalent to the postgraduate university degree required by the Notice of Competition .

24 Secondly, even if the Notice of Competition in question were, as the applicant claims, more restrictive than Article 5 of the Staff Regulations, which states that category A duties require "university education or equivalent professional experience", it follows from the judgments of this Court that that submission cannot be upheld . Article 5 seeks to provide a general definition of the minimum level required for an official of the category in question, drawn up according to the nature of the duties to which the posts correspond, and does not concern conditions of recruitment . Those are governed by the provisions of Article 29 and Annex III to the Staff Regulations and there is nothing to prevent there being fixed in notices of competition conditions in relation to certain posts or certain categories of posts which are more rigorous than those which correspond to the minimum requirements resulting from the classification of posts, whether such conditions are fixed in order to fill a specific vacant post or for the purpose of constituting a reserve with which to fill posts in a certain category ( judgment in Case 117/78 Orlandi v Commission (( 1979 )) ECR 1613; judgment in Case 178/78 Szemerey v Commission (( 1979 )) ECR 2855 ).

25 In the present case, Mr Jaenicke Cendoya did not fulfil the first condition, namely possession of a postgraduate university degree . That fact alone entitled the Selection Board to exclude him from the competition without taking into consideration his other degrees and diplomas and the professional experience he gained after graduation .

26 Since none of the submissions put forward in support of the abovementioned conclusions have been upheld, those conclusions must be rejected .

The application for the annulment of all or some of the acts adopted after the contested decision and for an order requiring the Commission to organize a new competition

27 Since all the applicant' s submissions challenging the decision excluding him from the competition are unfounded, the applicant does not have a legitimate interest in the annulment of the acts which were adopted subsequently, in particular the appointments made on the basis of the competition at issue . The application seeking an order requiring a new competition to be organized, which must be interpreted as an application for a declaration requiring a Community institution to take action, must also be rejected .

Costs

28 Under Article 69(2 ) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs; since the applicant has failed in his submissions, he must be ordered to pay the costs . However, Article 70 of those rules provides that institutions are to bear their own costs in proceedings brought by those to whom the Staff Regulations of Officials are applicable .

On those grounds,

THE COURT ( Third Chamber )

hereby :

( 1 ) Dismisses the application;

( 2 ) Orders the parties to bear their own costs .