C-78/71
ECLI:EU:C:1972:23
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JUDGMENT OF THE COURT (FIRST CHAMBER) 22 MARCH 1972<apnote>1</apnote>
Mario Costacurta v Commission of the European Communities
Case 78/71
Summary
1. Officials — Recruitment — Notice of competition — Specifications — Aim (Staff Regulations of Officials, Annex III, Article 1)
2. Officials — Recruitment — Notice of competition — Specifications — Age-limit for the candidate — Importance — Posts without age-limit — Mention of this obligatory in the notice of competition (Staff Regulations of Officials, Annex III, Article 1)
1. The purpose of the specifications set which were not properly notified in out in Article 1 (1) of Annex HT to the advance to all the persons concerned. Staff Regulations of Officials is to ensure that in every case where a post 2. Amongst the conditions of recruitment is to be filled by means of a competition of officials age may well constitute an the conditions of recruitment are important factor regarding the quality adapted as closely as possible to the and efficiency of the official to be requirements of the post to be filled. recruited. Although the age of an When they laid down the obligation to official may be of no matter where state those conditions in the notice of certain posts are concerned this possi competition the authors of the Staff bility must be regarded as exceptional Regulations intended to preclude the by reason of the special nature of such appointing authority from justifying posts. In such a case the notice of the exclusion of certain candidates by competition must indicate that there is relying on conditions of recruitment no age-limit.
In Case 78/71
Mario Costacurta, an official of the European Communities, represented by Ernest Arendt, Avocat-avoué, residing in Luxembourg, assisted by Nicolas Decker, Avocat, residing in Luxembourg, with an address for service in Luxem bourg at the Chambers of Ernest Arendt,
applicant,
1 — Language of the Case: French.
JUDGMENT OF 22.3.1972 — CASE 78/71
v
Commission of the European Communities, represented by its Legal Adviser, Giorgio Pincherle, with an address for service in Luxembourg at the office of Émile Reuter, Legal Adviser to the Commission, 4 boulevard Royal,
defendant,
Application for the annulment of Notice of Internal Competition COM 152/70 and of the appointment of certain candidates,
THE COURT (First Chamber)
composed of : J. Mertens de Wilmars, President of Chamber, A. M. Donner and R. Monaco (Rapporteur), Judges,
Advocate-General : K. Roemer
Registrar: A. Van Houtte
gives the following
JUDGMENT
Issues of fact and of law
I — Summary of the facts and of was rejected and in an internal competition the procedure based on tests in which he was included in the list of suitable candidates. The facts and the course of the procedure Finally on 6 April 1970 he applied for a may be summarized as follows: post of proof-reader of Italian mother tongue with the same office; the vacancy 1. Mr Mario Costacurta entered the service was advertised by Vacancy Notice No of the ECSC in 1966 as an employee in the COM 152/70 published in Staff Courier Office for Official Publications and was No 106 of 19 March 1970. This application appointed to an established post in Grade was afterwards treated as an application C 3 from 1 October 1968. for Internal Competition COM 152/70 In 1966 and in 1967 he applied for a post held on 17 July 1970 to recruit five proof as an assistant proofreader of Italian readers of Italian mother tongue. mother tongue (Grades B3-B2) with the In this last competition the appointing Office for Official Publications. Accord authority notified the applicant on 2 ingly he took part in a competition based February 1971 that he had not been in on qualifications in which his application cluded in the list of suitable candidates.
COSTACURTA ν COMMISSION
Five candidates were included in this list Accordingly: and appointed to the vacant posts, that is Annul the decisions which have been taken to say, four former free-lance (or self- and refer the matter back to the Commis employed) proof-readers who were ap sion for reconsideration. pointed as temporary staff in B3 on 1 June 1970 (Mrs G. Pasquini and Mrs T. Co III. Order the defendant to bear the costs lombo and Mr G. Mendosa and Mr G. and expenses of the proceedings. Laviola) and one as an official in C3 (Mr E. Benedusi). The defendant contends that the Court On 26 March 1971 the applicant submitted should: a complaint within the meaning of Article — dismiss the application as unfounded ; 90 of the Staff Regulations which was — order the applicant to bear the costs. registered on 23 April 1971 and related to his inclusion in the list of suitable candidates and the outcome of the com III — Submissions and arguments petition. Since he did not receive a reply of the parties to this complaint within the period of two months the applicant lodged the present application on 18 August 1971. The submissions and arguments of the parties may be summarized as follows: 2. Having heard the report of the Judge- Rapporteur and the views of the Advocate- (a) Infringement of Article 1(1) (g) of General, the Court decided to open the Annex III to the Staff Regulations' oral procedure without any preparatory inquiry. The applicant asserts that Notice of The parties presented oral argument at Internal Competition COM 152/70 does the hearing on 18 January 1972. not conform to the provisions of Article The Advocate-General delivered his opin l(l)(g) of Annex III to the Staff Regula ion at the hearing on 26 January 1972. tions in that it fails to mention either the age-limit or the extension of the age-limit in the case of servants of the Communities II — Conclusions of the parties who have completed not less than one year's service. Specification of the age- limit was intended to oblige the adminis The applicant claims that the Court should: tration to give priority to young persons in recruiting. Failure to specify it thus renders null and void the disputed notice I. Rule that the present application is of competition. When it emphasized the admissible ; restrictive nature of the list contained in
II. Rule that it is well founded in sub Article l(l)(g) of Annex III the Court itself held that the provisions expressly set stance. out in this article are essential and binding. Since the age of the candidates who were Accordingly: formerly free-lance varied from 28 to (1) rule that Notice of Competition COM 58 the appointing authority refrained from 152/70 must indicate the age-limit fixing an age-limit in order to benefit together with the extension of the age- certain candidates. limit applicable to servants employed The defendant replies that the appointing for at least one year; authority must remain free to prescribe or omit an age-limit when it recruits an (2) rule that the Commission has violated official by competition. The requirement the principle that regard must be had in Article 1 (1)(g) of Annex ΙII of the Staff to the eligibility of the applicant for Regulations is merely intended to pro promotion. hibit the appointing authority from in-
JUDGMENT OF 22.3.1972 — CASE 78/71
traducing an age-limit by a means other held they were no longer in the service of than that of notice of competition or from the Office for Official Publications as applying such a limit without having temporary staff. The haste with which this expressly mentioned it in the notice of appointment was thus made can scarcely competition. In addition the internal be explained otherwise than by the fact competitions held by the Commission that the administration wished to enable have never prescribed age-limits whilst the four former free-lance employees to the external competitions held by the other take part in the said competition.
It has institutions do not always lay down an thereby failed to observe the principle upper age-limit. that regard must be had to the eligibility of In this connexion the applicant observes officials for promotion. The defendant that the wording itself of Article 1(1) (g) maintains on the other hand that it was in of Annex III to the Staff Regulations in accordance with accepted principles and dicates the binding nature of the formal the decisions of the Court for the free ities which it prescribes. The appointing lance employees to take part in the com authority is not entitled to exercise its petition. Furthermore the fact that the discretion in this matter save in the two status of those former free-lance employees cases expressly referred to in the Regula changed from contractual employees to
tions (Article 1(f) and (i)). Furthermore temporary staff is just and in the interests the fact that an age-limit is rarely laid of the service since the persons in question down cannot provide a subsequent justifi had been in the service of the Commission cation for the irregularity of the compe for many years and in fact worked full- tition since such an omission is contrary to time for the Office for Official Publications the Staff Regulations. with the same working hours as all the The defendant replies that from a legal other officials and servants.
Since the point of view it would be much more persons recruited as established officials logical not to require the appointing were selected by means of a competition authority to fix such a limit on every based on test and as this competition was occasion even when it intends to recruit properly held it is not clear how any suitable candidates of any age and at the provision of the Staff Regulations or same time to refrain from discriminating principle of law could have been violated in any other way on the basis of age. in this case. Whilst it is true that Article 1 of Annex The defendant finally disputes certain HI to the Staff Regulations 'sets out the allegations contained in the official matters which the notice of competition complaint and the doubts which the must specify' (Judgment 35/64) and 'eight applicant ostensibly endeavours to cast on precise points which must appear in the the proper course of the recruiting pro notice' (Opinion in Case 35/64) it is also cedure. perfectly clear that those same points are Regarding the problem of the free-lance not actually required to appear in all or independent proof-readers, the applicant notices of competitions. This is stated objects that their legal status indicates explicitly regarding subparagraphs (f) and that they are employees under private law (i) and also regarding subparagraph (g) bound to the Office for Official Publications for the reasons set out. by an ordinary contract of employment which confers upon them neither the right (b) Violation of the principle that regard nor the qualification to take part in an must be had to eligibility for promotion internal competition.
In the present case at the time when the competition pro The applicant then indicates that after the cedure opened and when the tests were four former free-lance employees who took held the former free-lance employees in part in Internal Competition COM 152/70 question were no longer in the service of were appointed to the temporary staff the Office for Official Publications as shortly before the opening of the com temporary staff and thus were not entitled petition and that after the tests had been to take part in the competition in dispute.
COSTACURTA ν COMMISSION
The defendant states that it appreciates the applications, fixed as 31 July 1970, the difference between the contractual status former free-lance employees in question of the free-lance employees and the system had already been appointed to the tempo for temporary staff, asserting that at the rary staff (their appointment dated from time of Notice of Competition COM 1 June 1970) and were thus entitled to take 152/70, which was dated 17 July 1970, and part in this competition. the expiry of the period for lodging
Grounds of judgment
1 The application is for the annulment of Internal Competition COM 152/70 for five posts of assistant proof-reader of Italian mother tongue in career bracket B3-B2 with the Office for Official Publications of the European Communities and of the appointment of Mrs Giovanna Pasquini and Mrs Teresita Colombo and Mr Giuseppe Mendosa, Mr Eduardo Benedusi and Mr Giovanni Laviola to the said posts.
2 The applicant claims first that since the notice of competition fails to mention an age-limit it infringes Article 1 (1)(g) of Annex III to the Staff Regulations which requires that such notice 'must specify the age-limit and any extension of the age-limit in the case of servants of the Communities who have completed not less than one year's service'.
3 According to Article 28 of the Staff Regulations an official may be appointed only on condition that 'he has, subject to Article 29 (2) passed a competition based on either qualifications or tests, as provided in Annex III'.
4 Furthermore Article 29 expressly provides that Annex III lays down the competi tion procedure.
5 Those provisions consequently require that there shall be specified in the notice of competition, in accordance with the express wording of Article 1(1)(g), the age- limit and the extension of such limit.
6 Setting an age-limit thus amounts to securing an advantage in favour of servants already in the service.
7 The purpose of the specifications set out in Article 1 (1) of Annex III is to ensure that in every case where a post is to be filled by means of a competition the condi-
JUDGMENT OF 22.3.1972 — CASE 78/71
tions of recruitment are adapted as closely as possible to the requirements of the post to be filled.
8 When they laid down the obligation to state those conditions in the notice of competition the authors of the Staff Regulations intended to preclude the ap pointing authority from justifying the exclusion of certain candidates by relying on conditions of recruitment which were not properly notified in advance to all the persons concerned.
9 Amongst these conditions age may well constitute an important factor regarding the quality and efficiency of the official to be recruited.
10 Although the age of an official may be of no matter where certain posts are con cerned and the field of recruitment for them should be as wide as possible, they must be regarded as exceptional by reason of their special nature.
11 In such a case the notice of competition must indicate that an age-limit has not been considered necessary.
12 Since the appointing authority has failed to specify the age-limit in the notice of competition in dispute this notice does not comply with Article 1 (1) (g) of Annex III to the Staff Regulations.
13 Consequently Competition COM 152/70 and the decisions following on it making the appointments must be annulled.
14 In these circumstances it is unnecessary to consider the other submissions in the application.
Costs
is Under Article 69(2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs.
16 The defendant has failed in its submissions.
COSTACURTA ν COMMISSION
On those grounds,
Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties; Upon hearing the opinion of the Advocate-General; Having regard to the Staff Regulations of Officials of the European Communities, especially Article 29 and Article 1 (1) of Annex III; Having regard to the Protocols on the Statute of the Court of Justice; Having regard to the Rules of Procedure of the Court of Justice of the European Communities,
THE COURT
hereby:
1. Annuls Competition COM 152/70 and the decisions appointing Mrs Giovanna Pasquini and Mrs Teresita Colombo and Mr Giuseppe Mendosa, Mr Eduardo Benedusi and Mr Giovanni Laviola;
2. Orders the Commission of the European Communities to bear the costs of the proceedings.
Mertens de Wilmars Donner Monaco
Delivered in open court in Luxembourg on 22 March 1972.
A. Van Houtte J. Mertens de Wilmars
Registrar President of the First Chamber