C-33/67

Council of the European COUNILFTHERPACOMUNITES, represented by Hans Jürgen Lambers Legal Adviser to the Secretariat-General of the Council, with an address for service in Luxembourg at the office of Mr E. Reuter, Legal Adviser to the Commission of the European Communities, 2 place de Metz,

defendant,

Application for the annulment of Vacancy Notice No 15/67 of 20 March 1967 and of Notice of Open Competition No 36 of 4 July 1967 for the recruitment to Grade A4 of a principal administrator to the Secretariat General of the Council,

THE COURT (Second Chamber)

composed of: W. Strauß, President of Chamber, A. Trabucchi and P. Pescatore (Rapporteur), Judges,

Advocate-General: K. Roemer

attaching to the post as follows: been or may be taken as a result of 'Administrative and advisory duties of a the contested vacancy notice; legal nature relating in particular to Nether­ (c) order the defendant to pay the costs of lands law and public international law in the proceedings including those of the the fields of activity of the European Com­ applicant.' munities'. The defendant contends that the Court The requirements for candidates included in should: particular the following: 'A legal training evidenced by a university '(a) dismiss the application as unfounded; degree, such as: Meester in de Rechten — (b) order the applicant to pay the costs, Referendar — Licence en droit — Laurea in save those which must be borne by the Giurisprudenza; defendant by virtue of Articles 70 and An extensive knowledge of Netherlands law 95(1) of the Rules of Procedure.' and of public international law as well as professional experience over a considerable III — Submissions and arguments period in the application of these branches of the parties of law.' By a note dated 9 June 1967 Mr Kurrer, A — Admissibility pursuant to Article 90 of the Staff Regula­ tions, requested the appointing authority The defendant does not contest the admis­ for his institution to annul Vacancy Notice sibility of the application. No 15/67. This request was rejected by a note from the B — The substance of the case Secretary General dated 3 July 1967. On 4 July the appointing authority pub­ 1. The applicant remarks that the Councils lished in the Official Journal No 141 (pp. 5 of the European Communities, by decision and 6) a notice of an open competition No of 7 October 1963, adopted, pursuant to the 36/Council (67/409/EEC, 67/21 Euratom) second subparagraph of Article 5(4) of the for the recruitment of a principal admin­ Staff Regulations of Officials, only a very istrator in Grade A4 on the basis of the general definition of the duties and powers beforementioned vacancy notice. attaching to posts in the Secretariat-Gen­ On 29 September 1967 Mr Kurrer lodged an eral, in particular as regards Grades A4 and

A5, and they did not draw up any detailed possible in the present case to satisfy the list of posts, properly so called, containing requirements of the service by strictly ob a more precise definition of the various serving both the Staff Regulations—espe posts. cially the general rules on the career of Accordingly, the appointing authority has officials laid down in Title III, in particular in the past defined its notices of vacant as regards transfer, promotion or temporary posts in the same general terms as those duties—and the implementing provisions used in the said general definition of posts. adopted by the institution. The 'polyvalence' of the posts in Category A at the Secretariat-General of the Coun The defendant replies that by virtue of the cils made it possible to allocate a vacant second paragraph of Article 4 of the Staff Regulations the appointing authority must, post, by way of promotion, to any official in where there is a vacant post, first decide the grade immediately lower, no matter what the division to which he belonged. whether the vacancy is to be filled.

the Treaty. Staff Regulations necessarily implies only a The second paragraph of Article 4 of the general definition of the essential features of Staff Regulations, on which the defendant posts. This certainly does not mean that relies, constitutes a guarantee of officials' particular requirements cannot be stipula rights. The immediate notification to the ted upon the publication of a vacancy staff of the decision to fill a vacant post in notice relating to a particular post. To deny the institution is intended to ensure that the this power to the appointing authority priority given to recruitment within the would be to prohibit it from taking account institution can take full effect. Article 4 of the requirements of the service and from should not be interpreted as conferring by deciding what manner of administrative, implication on the Secretary-General the advisory or supervisory activities are in power to take a decision, in the notification volved in the post to be filled.

It is no more the decision of the Councils. The applicant than the application to a specific case of the maintains that where the institution decides latter definition and not a derogation to stipulate special requirements, it is from it.

tive of whether it is newly created or has invalidating the general definition of the become vacant. This can be done in the Council. Neither of these alternatives is vacancy notice. acceptable. The applicant's opinion that the institution The defendant, moreover, is confusing the must amend the definition of duties every position of the Secretary-General in his time it becomes necessary to state the capacity as the appointing authority with special requirements for a particular post his position as head of the Secretariat- disregards the very purpose of the definition General. of duties prescribed by Article 5(4). This The defendant, adopting the applicant's definition does not call for the enumeration statement that it is for the Secretary-General of each specific post. to decide whether there is a vacant post to be His idea that by merely applying the general filled, maintains that he also has the power provisions of Title III of the Staff Regula­ to stipulate according to the requirements tions it is possible to recruit an official of the service, the special qualities and having the special knowledge required for a abilities demanded by particular posts. particular post cannot bring about a satis­ Furthermore, since the Council does not factory result, since Category A covers a itself exercise the power of organizing its multitude of duties whereas the post to be own departments, the senior official en­ filled may only call for one of these. trusted with the management of the Finally the defendant, whilst allowing that Secretariat-General is entitled, under the in numerous cases the appointing authority powers conferred on him and within the has refrained from specifying the particular limits of the general definition of duties, to duties attached to a post, nevertheless take all necessary measures to enable the denies that this was its 'general practice' Secretariat to carry out the tasks assigned to from which it had 'departed' for the first it by the Council. time in the case of the contested vacancy In particular, the setting up of a Legal notice. On the contrary, it specified the Department implies the necessity of allo­ particular duties attaching to a post every cating to it jurists having a particularly time this was necessary in view of the detailed knowledge of the law of individual requirements of the service. Member States.

JUDGMENT OF 28. 3. 1968 — CASE 33/67

account of the requirements stipulated by tion. The applicant's interests are therefore the appointing authority, acting within its directly injured. powers, for filling a given vacant post. The career prospects of the other officials of 4. The applicant complains that the purpose the Secretariat in general and the Legal of the contested vacancy notice was to Department in particular are also improper­ ly narrowed. reserve the post in question for a Nether­ lands national. The defendant remarks that no post in By excluding candidates who do not have, Category A, with the exception of two A7 in addition to knowledge of the Dutch posts, have become vacant in the Legal language, extensive knowledge of Nether­ Department since the entry into force of the lands law and 'professional experience over EEC and EAEC Staff Regulations. The A7 a considerable period' in the application posts were entry posts into Category A thereof, the notice in question infringes in which did not require of those holding them particular the third paragraph of Article 27 particular knowledge in a special field of of the Staff Regulations under which no law. Since in the present case it was neces­ posts shall be reserved for nationals of any sary to appoint a jurist in Grade A4 having specific Member State. special knowledge and experience of the law There is no objective reason, based on the of a certain country of the Communities it needs of the service, which justifies in the was not possible, in the interests of the present case the procedure followed. It may service, to avoid stipulating special require­ be explained rather by the political con­ ments.

KURRER v COUNCIL

Even assuming that in the event the recruit­ The Second Chamber of the Court, upon ment had to be made into the career bracket hearing the report of the Judge-Rapporteur of a principal administrator, the immediate and the views of the Advocate-General, appointment to the higher grade in that decided to open the oral procedure without career bracket violates the principles of the any preparatory inquiry. Staff Regulations. Furthermore, the second The defendant, upon being requested to paragraph of Article 32 enables the appoint­ lodge certain documents, did so within the ing authority to take account of the training proper time. and special experience for the post of the The parties presented oral submissions at person concerned by allowing additional the hearing on 21 February 1968. seniority in the lower grade of his career The Advocate-General delivered his opin­ bracket. ion at the hearing on 29 February 1968.

Grounds of judgment

The application seeks the annulment of Vacancy Notice No 15/67 of the Council of 20 March 1967 and of the Notice of Open Competition No 36 of the Council of 4 July 1967 both of which concern a post of principal administrator in Grade A4 in career bracket A4-A5 involving administrative and advisory duties of a legal nature

JUDGMENT OF 28. 3. 1968 — CASE 33/67

and stipulating as a prerequisite, amongst others, an extensive knowledge of Netherlands law and of public international law as well as professional experience over a considerable period in these matters.

The application also seeks the annulment of 'all other administrative measures which have been or may be taken as a result of the contested vacancy notice'. Since it was not shown in the course of the proceedings that any such measures had been taken, there is no need to adjudicate upon this head of the conclusions.

By their decisions of 14 May and 12 June 1963, which the defendant has lodged with the Court, the Councils conferred upon their Secretary-General pursuant to Article 2 of the Staff Regulations, as regards the grades in Category A which are the subject-matter of this dispute, the powers devolving upon the appointing authority under the Regulations. By their decision of 7 October 1963 the Councils adopted the definition of duties and powers attaching to the posts for which provision is made by the Regulations, and in particular the definition of the duties attaching to posts in the career bracket of 'Principal Administrator', A5-A4. The definition adopted by this decision is so general that simply to repeat it in vacancy notices or in notices of competition would make it impossible for these publications properly to achieve their purpose, at least as regards posts requiring some special qualifica­ tion, such as those involving administrative and advisory duties of a legal nature. Since the institution did not itself indicate, in the decision which defined the duties, the essential information for procuring, by way of vacancy notices or notices of competition, the most suitable applications for the posts to be filled, it is for the

KURRER v COUNCIL

appointing authority, as the body responsible under the Staff Regulations for issuing the notices in question, to add to the definition drawn up by the institution the necessary special details, having regard to the needs of the service.

The appointing authority demonstrated in successive notices its intention to make its choice depend not on the nationality but on the knowledge and experience of the candidate as regards, inter alia, a given national legal system. This procedure is the only one which can reconcile simultaneously the requirements of the Councils' legal department, the efficient running of which requires a balanced composition of staff, in order to comply with the spirit of the first paragraph of Article 27, and the prohibition contained in the third paragraph of Article 27 of the Staff Regulations. In a Community composed of States, each of which retains its own national legal system, it is essential that a well organized legal department should include, as far as possible, officials possessing, apart from their knowledge of international law and of the actual law of the Communities, a theoretical training and practical experience in one or other of the national legal systems. It has not been shown in the course of the proceedings that the choice of criterion to which the applicant objects in fact served ends other than a concern for the proper functioning of the departments of the Secretariat-General of the Councils. The complaint that the choice of criterion served to specify more closely, in the vacancy notices and notices of competition, the requirements contained in the decision of the Councils of 7 October 1963 cannot therefore be upheld.

Consultation with the Promotions Committee and with the Joint Committee

The applicant maintains that the contested vacancy notice, by specifying very narrowly the nature of the duties and powers attaching to the post to be filled as

such specification when exercising their advisory powers. As this was the situation in the present case, the submission that these committees were not properly con­ sulted must therefore be rejected.

Recruitment into Grade A4

The applicant complains that the appointing authority opened the competition directly at the level of Grade A4 and not at the level of the starting grade, A5, in the career bracket of 'Principal Administrator'.

Article 31(1) lays down the rule that officials in Category A must be appointed to the starting grade of their category. Paragraph (2) of the said Article creates an exception to this rule by empowering the appointing authority to appoint, within certain limits, directly to higher grades than the starting grade of the category. It is not disputed that in the present case the appointing authority, by opening the com­ petition at the level of Grade A4, remained within the bounds laid down by this latter provision. However, where recruitment is by way of competition to the higher

KURRER v COUNCIL

grade of a career bracket, the said authority must reconcile use of the power reserved to it by Article 31(2) with observance of the requirements which result from the concept of a career bracket within the meaning of Article 5 and Annex I to the Staff Regulations. The concept of a career bracket would in fact lose all legal significance if the appointing authority were entitled to the same degree of freedom in this case as in those of the other grades. It is only permissible to make appointments by way of open competitions to the higher grade of a career bracket in exceptional cases where recourse to the provisions of Article 31(2) is justified by the specific needs of the service, which call for the recruitment of a specially qualified official.

THE COURT (Second Chamber)

hereby:

OPINION OF MR GAND — CASE 33/67

1. Dismisses Application 33/67;

2. Orders the parries to bear their own costs.

Strauß Trabucchi Pescatore

Mr President, do in fact constitute decisions which may Members of the Court, affect him adversely, having regard to the established case-law of the Court. On the On 20 March 1967 the Secretary-General of other hand the force of his arguments does the Councils, the appointing authority, give rise to awkward questions on certain published Vacancy Notice 15/67 for a post points. of principal administrator in Grade A4 1. The applicant first disputes the compe­ (career bracket A5-A4). It specified that tence of the Secretary-General as the ap­ the duties of the post involved 'administra­ pointing authority to define in the terms tive and advisory duties of a legal nature which he used the post declared vacant relating in particular to Netherlands jaw which he decided to fill. and public international law in the fields of It is, he says, for the institution itself, that is activity of the European Communities'. to say for the Council, under Article 5(4) of Apart from a legal training evidenced by a the Staff Regulations to define the duties university degree, the requirements were 'an and powers attaching to each post. In fact extensive knowledge of Netherlands law the decision of the Council of 7 October and of public international law as well as 1963 contained only a very general descrip­ professional experience over a considerable tion : in particular it was limited, for Grades period in the application of these branches A4 and A5 to which the career bracket of of law'. principal administrator corresponds, to the This is the decision which Mr Kurrer, an terms 'advises a department of the institu­ official in Grade A5 of the secretariat of the tion' or 'undertakes advisory or supervisory Councils has sought in vain to have with­ duties under the authority of a Director or drawn under the procedure laid down in Head of Division'. It was thus possible, by Article 90 of the Staff Regulations and reason of the 'polyvalence' of the posts in which he now asks you to consider. He this career bracket, to fill vacancies therein further asks you to annul the Notice of by promoting an official of the secretariat; Open Competition No 36 published on the the appointment of candidates from outside following 4 July for recruitment of a the institutions was thus restricted to the principal administrator in Grade A4 on the lowest grades of the category. basis of the vacancy notice which I have It is clear that Vacancy Notice 15/67, in analysed. specifying further requirements for the post No question arises as to the admissibility of to be filled, goes beyond the Council's his application. The two contested measures definition. The applicant does not expressly