C-35/64

2. Officials—Recruitment—Competitions—Publications of notice of competition— Purpose (Staff Regulations of officials of the European Communities, Annex III, Article 2)

1. Of. para. 1, summary in Case 16/64. tion procedure have been observed, 2. The publication of a notice of com­ but simply to ensure that the com­ petition is not intended to prove that petition is sufficiently advertised to all the rules concerning the competi- induce officials interested to apply.

In Case 35/64

CESARE ALFIERI, a servant of the European Parliament, represented and assisted by Andre Elvinger, Advocate of the Cour Supérieure de Justice of the Grand Duchy of Luxembourg, with an address for service in Luxem­ bourg at the Chambers of the said Andre Elvinger, 84 Grand'rue,

applicant,

v

Advocate-General: J. Gand Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Facts for want of authentication by the signatures or seals of By a decision of 12 May 1964, display­ the officials or competent ed on 26 May 1964, Mr Ducci was authorities; appointed, following a competition in (b) In addition, rule that the which the applicant had taken part, to regularity of the notice of the position of Head of Division in the competition itself cannot be Directorate-General for General Affairs proved; at the European Parliament. (c) Consequently declare that the On 7 August 1964 the applicant made notice of competition itself an application against the European is null and void;' Parliament attacking, this decision 'in so far as may be necessary' and also Alternatively: certain decisions inherent in the com­ '2 (a) Rule that the decision to petition procedure which resulted in hold the competition is null the abovementioned appointment. and void and that the notice In fact the complaints are based entirely of competition is also null on the said procedure. and void for failure to carry out the mandatory formality imposed by Article 29 (1) II — Conclusions of the (a) of the Staff Regulations parties and for failure to state that this had been done; rule that In his application the applicant claims in the absence of such a that the Court should: statement in the notice of 'I. Entertain the present appli­ competition no proof that the cation as presented; Declare formality was complied with that it is well founded as to may be accepted; its substance; (b) Find that there are no II. 1 (a) Rule that the publication of grounds for supposing that the notice of the competition either the appointment or the in dispute never took place composition of the Selection or at least is null and void Board were in order;

dates satisfying the conditions pean Parliament contends that the Court should: laid down by the notice of competition on the ground 'rule that the application is admis­ that a candidate who did not sible; fulfil these conditions was alternatively, rule that it is unfounded; included on it; dismiss the application; III. (a) Therefore: annul the entire make an order as to costs in accord­ competition procedure—in ance with the relevant provisions.' particular the decision to hold the competition, the notice of competition, the III — Submissions and claim that it was published, arguments of the the list of candidates satisfy­ parties ing the conditions and the list of suitable persons—and Admissibility also the result of the com­ petition procedure, being the The defendant draws a distinction appointment of the servant between the decision to make the dis­ Mr Ducci to the post for puted appointment and the various which the competition was decisions taken during the competition held; procedure and raises the objection that (b) Order that consideration shall the applicant is estopped in so far as be given to the question the application is directed against these whether the post can be latter decisions, contending that since filled by transfer within the the application against the appointment institution, in accordance is only based on the alleged illegality, with Article 29 of the Staff or even the non-existence, of the said Regulations; decisions—indeed of the competition as (c) Order that, if, upon con­ a whole—it also is inadmissible. sidering these possibilities, The applicant maintains that the no one can be found, a com­ decisions forming part of the competi­ petition be held according to tion procedure are only of a prepara­ the rules of the Staff tory nature and do not in themselves Regulations and the above- have any adverse effect and cannot be mentioned Annex thereto: contested until the time when an

application is made against the appoint The substance of the case ment made as a result of the competi First submission tion and which is capable of having an adverse effect. The applicant observes that, in accord In its rejoinder the defendant observes ance with Article 1 (1) and (3) of that according to case-law measures Annex III (Competitions) to the Staff which are preparatory to an appoint Regulations, the notice of competition ment might be separable from the is drawn up by the appointing authority result, and might be open to attack and is advertised within the institutions separately in so far as they have any of the Communities.

him. In this case they form part and concerned. parcel of the final decision which comes The defendant observes first that the out of them …. From this it follows applicant applied to be a candidate and that the applicant must establish his took part in the competition after hav interest in die annulment of the pre ing learnt that it would take place by paratory measures which form part of means of the notice which he criticizes. the material decision taken when he Therefore, according to the defendant, makes his application to have it the applicant has no interest in raising

time. However these complaints cannot measure impugned and not in relation be entertained because of want of to each submission put forward. He interest on the part of the applicant. persists in his view that the advertised

notice was null and void, indeed that 'university education supported by a there never was a notice at all. He degree or clearly equivalent experience', sees nothing that proves that the con­ it did not comply with the requirement ditions displayed are those drawn up of Article 1 of Annex III to the Staff by the competent authority. Regulations, which states that the notice Second submission must specify the degrees and other evidence of formal qualifications or the The applicant alleges that according to level of experience required for the the terms of Article 29 of the Staff post to foe filled. It is alleged that the Regulations the appointing authority wording under criticism is tantamount must first consider whether the vacant to asking for either a degree or no post can be filled by promotion or degree. It is also asserted that the said transfer within the institution before wording is equally vague about the holding a competition. Since the 'loose 'level' of experience both as to its sheets' did not refer to this pre­ nature and extent, that is to say, the liminary duty it must be presumed level of the duties carried out in the never to have been carried out. course of acquiring such experience. The defendant again argues that the The defendant agrees that the wording applicant has no interest in the matter used intentionally leaves a wide power and maintains 'that nowhere do the of assessment to the Selection Board, Staff Regulations state that the pre­ but denies that Article 1 of Annex III liminary consideration to which the requires more precise wording on pain applicant refers must be stated in the of nullity of the notice. The defendant notice. states further that the wording cannot In his reply the applicant asserts that be looked at in isolation, as the dis­ he has an interest, arguing that he is puted notice had specified that 'the eligible for promotion to the post in holder of this post must have a very question, an assertion which the de­ solid background in administrative and fendant denies. legal matters together with a thorough Third submission knowledge of politics and a good grasp of parliamentary procedure'. The applicant draws attention to the fact that the disputed notice of com­ Fifth submission petition did not state that a Selection Board had been appointed, or who was The Selection Board put Mr Falcone, on it. He asserts that any advertised who does not have a university degree, notice of competition which does not on the list of candidates. The applicant state the composition of the Selection disputes the view that this candidate Board is automatically vitiated by the has experience clearly equivalent to omission of an essential procedural university level. requirement. The defendant replies that in its view The defendant denies that the Staff the decision of the Selection Board is

Admissibility

The defendant distinguishes between the contested decision of appointment and the various measures taken during the course of the recruitment pro­ cedure. It raises the objection that the applicant is estopped in so far as his application is directed against these latter measures, and contends that that part of the application directed against the appointment is also inadmissible because no submissions are directed against it as such.

Since the recruitment procedure consists of several interdependent measures, this objection would be tantamount to requiring the persons concerned to bring as many actions as the number of acts capable of adversely affecting them contained in the said procedure. Having regard to the close connexion between the different measures comprising the recruitment procedure, it must be accepted that in an action contesting the later steps in such a pro­ cedure the applicant may contest the legality of earlier steps which are closely linked to them.

It follows that the complaints made by the applicant and in particular those against the disputed notice may be taken into consideration by the Court in deciding whether the appointment of Mr Ducci was valid, this being the main issue involved in the application.

On the other hand, it is not admissible to argue against the due form of a competition on account of the fact that a candidate was allowed to take part who did not, in the applicant's opinion, fulfil the conditions laid down by the notice of competition, as the candidate's participation did not influence the result of the competition.

The applicant argues that the decision to hold the competition and the dis­ puted notice are both void because the notice fails to state whether considera­ tion was given to filling the post by promotion or transfer within the institution and that the absence of any such statement is tantamount to the absence of the act itself.

This submission cannot succeed either. Article 1 of Annex III, which sets out the matters which the notice of competition must specify, does not mention that consideration has been given to the filling of the post by promotion or transfer. Here again the applicant fails to appreciate that the publication of a notice of competition is not intended to prove that all the rules concerning the competition procedure have been observed, but simply to ensure that the competition is sufficiently advertised.

The applicant argues that the disputed notice of competition is void on the ground that it did not include a statement concerning the appointment and composition of the Selection Board. As Annex III to the Staff Regulations of officials clearly distinguishes between the appointment of the Selection Board and the drawing up of the notice, this submission must be rejected for the same reasons as the preceding submission.

The applicant also claims that in requiring no more than 'university education supported by a degree or clearly equivalent experience' the said notice did

JUDGMENT OF 7. 4. 1965 — CASE 35/64

not comply with the requirement of Article 1 (1) (d) of Annex III to the Staff Regulations, and is therefore void. However the wording used must be considered in conjunction with the clarifying statement, which also appears in the notice, that 'the holder of this post must have a very solid background in administrative and legal matters together with a thorough knowledge of politics and a good grasp of parliamentary procedure'. Once this require­ ment is looked at, the wording used, which is not in itself incompatible with the provision of Annex III to which reference has been made, appears to be justified.

ALFIERI v PARLIAMENT

THE COURT (Second Chamber)

hereby:

I. Dismisses Application 35/64 as unfounded; 2. Orders the applicant to pay costs except those incurred by the defendant.

Donner Strauß Monaco

Delivered in open court in Luxembourg on 7 April 1965.