C-115/73

perience relating to a specific national sphere — Account taken — Acceptability (Staff Regulations, Article 27)

2. Officials — Recruitment — Competition on basis of both qualifications and tests — Qualifications taken into account after the tests — Acceptability (Staff Regulations, Annex III, Article 5 (1) and (4))

1. Though the Staff Regulations declare of Annex III to the Staff Regulations that no posts shall be reserved for that the qualifications offered by each nationals of any specific Member candidate enable the Selection Board State, the appointing authority may, in the first place to decide which

in engaging an official, legitimately candidates are to be admitted to the

treat knowledge and experience tests. After the result of the tests has relating to a specific national legal been taken into account, however, system as a decisive factor in these provisions do not prevent

selection. qualifications from also being taken

1 — Language of the Case: Italian.

2 — With a view to simplification and clarity, the Court has decided to make slight changes in the form of its judgments. In particular, the beginning 'Upon formerly preceded the operative reading,'

phrases etc., which

part of the judgment, are now omitted. The reader will find in the body of the judgment a mention, in appropriate places, of all the documents formerly referred to in that way.

JUDGMENT OF 4. 4. 1974 — CASE 115/73

V

Advocate-General: J. P. Warner Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts

I — Facts and procedure November 1971 addressed to the

Director-General of Administration, the The facts and the arguments developed applicant declared that, because of this by the parties in the course of the the notice was requirement, vitiated as written procedure may be summarized as being ultra vires and discriminatory, and follows: asked that it be withdrawn. This letter,

candidates. and, in any case, find in favour of

the applicant under the provisions of By decision of 31 May 1972, the Articles 69, 70, 71, 72 and 73 of the Commission appointed Mr Christian Procedure.' Rules of Timmermanns, of Dutch nationality, to

the vacancy. On 23 July 1972 the The applicant is moreover prepared to

applicant lodged a complaint under adduce further evidence and invites the Article 90 (2) of the Staff Regulations. Court to call for detailed evidence in support of the various allegations The complaint was rejected by decision 15 contained in the statements submitted in of January 1973, which was notified to the applicant on 23 January 1973. On justification of his claim.

23 March 1973 he brought the present The defendant claims that the Court proceedings. should:

2. After hearing the report of the '— reject the application in its entirety Judge-Rapporteur and the opinion of the and order the applicant to pay the

compensation to the applicant for Dutch law. Secondly, given the kind of

the material damage he has suffered work carried out by the Division

JUDGMENT OF 4. 4. 1974 — CASE 115/73

concerned and by the officials working conflict with the essence of a

in it, the need, in doing their work, to competition on the basis of tests as well have regard to all the national as on the basis of qualifications not to

legislations makes it impossible to lay treat qualifications as anything more

two candidates. Among other things, he points out that a member of the Selection Board was a Moreover, the attitude adopted by the

is member of the Joint Committee which Administration in the present case was asked to consider both the disputed merely the result of a predetermined notice of competition and a previous plan to give preference to the appointed

he joined notice; he adds that, although there is candidate from the time the nothing to suggest that the Legal staff and this plan blocks the applicant's in Department representative on the promotion. In evidence submitted Selection Board was other than fair, it is support of his contention, the applicant impossible to ignore the connexion draws attention to a series of which, because of their functions, exists circumstances pointing to the existence

(he between this official and the Director of of such a 'plan', which says) the the Directorate-General involved. disputed competition helped to carry into effect. Finally, the applicant draws the attention Again, according to the applicant, the of the Court to the marks obtained by tests in the disputed competition were the two candidates in the general and

conducted irregularly. There were two special tests and to the details of the

candidates taking part in the marks obtained by each candidate: he competition, one of Dutch states that the figures giving the nationality, the other an Italian. The decision of the markings could easily be rigged. chairman of the Selection Board to The Commission in the first place rejects forward in candidates'

authority as there was on this point a Dutch law. Not that 'practical knowledge' great difference between the respective of a particular legislation is merits of the two candidates. It is also in the same as 'professional experience'.

SERIO v COMMISSION

Finally, the main qualification called for files of candidates containing their per­

in the notice of competition was formance reports were placed at the

'thorough knowledge of private law, disposal of the authority. especially commercial law', without In his reply, the applicant reiterates the reference to any particular legislation. As contention that the disputed competition an additional qualification, knowledge of procedure formed part of a deliberate Dutch law had advantages from the plan to promote a candidate of a point of view of the department but it particular nationality. He submits was not an essential qualification. supporting evidence on this point and

The Commission goes on to deny that again presses for witnesses to be called. the applicant has been the target of In a detailed statement, the applicant animosity which has interfered with his maintains that, while he does not dispute career and rejects his allegations on the the need to strike a fair balance between subject. It also makes the comment that nationalities within the division, its he cannot support his case by reference composition, both before and after the to the Commission's alleged improper competition, ignores the principle behaviour in the form of injurious acts emphasized by the Commission. Insisting which he did not challenge at the proper that theoretical and practical knowledge time and whose supposed illegality he of Dutch law was not needed in the may not plead in connexion with the department, the applicant goes into present case. greater detail on the factual evidence

of the translations on which they had evidence from the past. If he failed to

made their assessment. take action on these matters at the

After the contention that the proper time, this was because he regards rejecting Selection Board had not been objective, legal proceedings as the last resort for the Commission emphasizes that in this making the Administration recognize

case. as in qualifications one's rights. He draws special attention many others, were taken into account in deciding to the circumstance in which he was

which candidates were to be allowed to resettled in his original Division. He

compete and, later, to be admitted to the states that the instruction of the

JUDGMENT OF 4. 4. 1974 — CASE 115/73

distinction drawn by the defendant merits of a candidate in addition to the

between giving the test papers to the results of tests, it was inconceivable that, examiners and placing them at their in exercising the powers conferred on it disposal. He declares that the chairman in this field, the appointing authority of the Selection Board himself told him should not be free to conduct a

that the original test papers were sent to competition on the basis of

the examiners as well as a translation, qualifications and tests in such a way and requests the Court to question that that it becomes rather more a

official in this connexion. competition on the basis of

his resettlement in his original Division ities in the interests of efficiency in in February 1973 and to the refusal to certain departments and a 'geographical balance' promote him in that Division, the based on a distribution of posts defendant states that both these in proportions reflecting the comparative occurrences are explained by the fact importance of each Member State. In its that at that time, the Division was being statement, the Commission was referring transferred to a Directorate-General. For exclusively to balance in the interests of the applicant, promotion in the Division efficiency. After reiterating its standpoint would have meant advancement in a on the issues in dispute, especially on the department which was now part of thesis that the applicant had been the Directorate-General. another victim of discrimination and of prejudice against him on the part of the IV — Oral procedure Administration, the defendant returns to the question of the role played by The oral observations of the parties were qualifications in a competition 'on the made at the hearing on 12 December basis of both qualifications and tests'

1973 and 13 February 1974.

and to the question of keeping The Court (First Chamber) heard Mr candidates'

names secret. On the first Christian Timmermans and Mr Karl question, the defendant states that, Gleichmann on 12 December 1973. while, possibly, the notice might make The Advocate-General delivered his qualifications a means of assessing the opinion on 19 March 1974.

SERIO v COMMISSION

Law

He maintains, in the first place, that, prior to publication of the notice of the competition which is the subject of the dispute, the successful candidate had

stated that the Head of the Division in which the post was vacant had offered him a post in Grade A 5 within the Division and that he had accepted it.

This allegation was not borne out when, during the hearing of 12 December 1973, the Court examined the witnesses.

3 The applicant further maintains that the discriminatory manner in which the competition was conducted is also demonstrated by the fact that a thorough

knowledge, theoretical and practical, of Dutch law was laid down in the

notice of competition as an essential qualification.

JUDGMENT OF 4. 4. 1974 — CASE 115/73

In the present case, given the functions carried outby the Division in which the vacancy arose and its interest in company law, the appointment of an official having a knowledge of Dutch law is justifiable in view of the changes which had taken place just previously in Dutch company law.

Moreover, the subjects chosen for the main test were relevant to the kind of work carried out in the Division in which the disputed vacancy arose.

5 The applicant also contends that the competition procedure was carried out

irregularly as a result of the composition of the Selection Board, and because it had at its disposal not only the French translation but also the originals of the test papers.

The applicant maintains that because one of the two candidates admitted to

This has not been forthcoming.

In particular, the Commission's contention that the original test papers were

made available to the members of the Selection Board so that, after they had finished marking them, they could, if they wished, check the accuracy of the texts which they had marked, is borne out indirectly by the covering note to the test papers which appears in the administrative file relating to the

procedure in issue.

7 The applicant further maintains that, as the disputed competition was 'on the basis of both qualifications and tests', the Commission was wrong in making the appointment solely on the basis of the tests and without paying regard to the qualifications of each candidate.

SERIO v COMMISSION

These provisions do not, however, prevent their being taken into

consideration at a later stage than when the decision is taken on admission to the tests.

The qualifications constitute a criterion which, after due weight has been given to the results of the tests, may be taken into account when the decision is taken whom to appoint.

However, in the present case, in view of the results of the tests, especially that of the principal test, the qualifications offered by the applicant do not appear

to be of a kind which should have secured a decision in his favour.

8 For these reasons, the claims for annulment of competition COM/388/71 and

Nevertheless, under Article 70 of the Rules of Procedure, the costs incurred by the institutions in actions brought by servants of the Communities are not recoverable.

On those grounds,

OPINION OF MR WARNER — CASE 115/73

THE COURT (First Chamber)

hereby:

1. Dismisses the application.

DELIVERED ON 19 MARCH 1974

My Lords, required, it was stated that a satisfactory knowledge of both Dutch and English The applicant in this case was an was desirable. The gist of the applicant's unsuccessful candidate for a post of allegations is that the post had been Principal Administrator on the staff of earmarked for a Dutch candidate, who

the Commission. was in fact appointed, and that it was

for this reason that those qualifications The vacancy for the post, which was were required. subsequently the subject of an internal competition, was initially announced by On 15 June 1971 the applicant sent to means of a notice of vacancy which the Director-General of Personnel and fixed the closing date for applications at Administration a note asking for the 17 Tune 1971. It appears that under this notice of vacancy to be cancelled, and in procedure a person who applies in response to the notice of is the event of the post being re-advertised, vacancy for the deletion of any reference to considered, unless he withdraws, as a Dutch law or to the Dutch language. He candidate in any subsequent competition stated that the post had previously been relating to the same post. occupied by a German national who had The post in question was of grade no knowledge of Dutch law or of Dutch A 5/A 4 in the division concerned with and whose work in the post had led to European company law. The notice of his promotion; he argued that the work vacancy specified that candidates should in the division did not require any such have, if possible, a thorough theoretical knowledge, and he alleged that a Dutch and practical knowledge of Dutch law national had already been offered the