C-176/73

1. Officials — Recruitment — Special procedure —Application to candidates who are officials. (Staff Regulations, Article 29 (2))

2. Officials — Recruitment — Special procedure — Application — Strict interpretation — Promotion of an official from one category to another — Not permissible. (Staff Regulations, Articles 29 (2), 45 (2))

1. Under certain conditions and in officials, in view of the fact that it is exceptional circumstances Article 29 substituted for a competition from (2) allows the substitution of a which candidates who are also different recruitment procedure for officials could not have been inter-institutional or open competi­ excluded. tions. This procedure applies, without distinction, to all those who would 2. Article 29 (2), by reason of its have been eligible to enter those exceptional character, must be strictly competitions. It is neither just nor in interpreted and cannot take preced­ the interest of the service that the said ence over the rule formulated, in a procedure should be applied only in general and unconditional manner, in respect of candidates who are not Article 45 (2).

In Case 176/73

CLAUDETTE VAN BELLE, an official with the Secretariat-General of the Council of the European Communities, living at the Moulin of and at Bornival-lez- Nivelles, Rue Bois d'en bas, Belgium, represented by Marcel Grégoire, advocate at the Cour d'Appel, Brussels, 68, Rue Camille Lemonnier, 1060

1 — Language of the Case: French.

composed of: C. Ó Dálaigh, President, R. Monaco and J. Mertens de Wilmars (Rapporteur), Judges,

Advocate-General: G. Reischl, Registrar: A. Van Houtte,

gives the following

JUDGMENT

Facts

The facts and the arguments put forward I — Facts and procedure by the parties during the written procedure may be summarized as 1. The applicant is an official in Grade follows: B3 with the Secretariat-General of the Council.

On 8 August 1972 two Vacancy Notices, January 1973, appointing Charles No 84/72, relating to three posts as Goetz to one of the posts forming the Administrator in Grade A6, and No subject-matter of Vacancy Notice 86/72, relating to two posts as 'Council No 84/72'; Administrator in Grade A6, were posted 2. Annul all decisions prior to and/or up by the defendant. accompanying this decision of By. decisions of 22 December 1972, appointment and which are connected published on 3 January 1973, the therewith, in particular the decision defendant appointed to two of these not to fill the vacant post in issue by posts officials in Grade B1, Roger Brisaer means of the competition procedure, and Charles Goetz, who were therefore as well as the decision to apply promoted out of their category to Grade Article 29 (2) of the Staff Regulations; A6. 3. Annul the implied decision rejecting 2. By letter of 29 March 1973 the the applicant's complaint of 29 applicant lodged a complaint within the March 1973, in so far as it concerns meaning of Article 90 (2) of the Staff the decision to appoint Charles Regulations, requesting that the Goetz; decisions of 22 December 1972 be withdrawn and that the procedure for 4. Order the defendant to pay all the appointment to the vacant posts costs of the proceedings. concerned be reopened. By letter of 12 The defendant submits that the Court June 1973 this complaint was withdrawn should: in so far as it concerned the decision to dismiss the application as unfounded appoint Roger Brisaer, whose death had and order the applicant to bear the costs. occurred meanwhile. Since, for the rest, the complaint remained unanswered, Miss Van Belle lodged the present appli­ cation against the decision appointing III — Submissions and argu­ Charles Goetz and against all earlier and ments of the parties accompanying decisions, in particular the decision not to make use of the com­ A — The first submission in the petition procedure and to apply Article application is based upon the infringe­ 29 (2) of the Staff Regualtions, and ment of Articles 29 (1) and (2) and against the implied decision rejecting the 45 (2) of the Staff Regulations. The complaint of 29 March 1973. This appli­ appointment of Charles Goetz, an cation, dated 22 October 1973, was official in Grade B1, to a post in Grade registered at the Court on 24 October A6, in the absence of a competition, is 1973. alleged to be in violation of Article 29 (1), according to which, unless a vacant Upon hearing the report of the post can be filled by promotion or Judge-Rapporteur and the opinion of the transfer within the institution or from Advocate-General the Court (First Chamber) decided not to undertake any other institutions, the competition preparatory enquiry. procedure must be followed. Moreover, the way in which Article 29 (2) was applied on the occasion of the II — Conclusions of the appointment at issue is said also to be parties illegal because that provision allows of recourse to a procedure other than the The applicant claims that the Court competition procedure only for the should: recruitment of officials in Grades A1 and 1. Annul the defendant's Decision of 22 A2 and, in exceptional cases, for posts December 1972, published on 3 requiring special qualifications, this last

being a condition which is not fulfilled regarding competitions which it contains in the case in point. apply only to external recruitment Finally, there is also said to have been an cannot be accepted. Accordingly, Article infringement of Article 45 (2) of the Staff 29 (1) cannot be infringed by the fact Regulations, according to which pro that recourse is had to the exception motion from one category to another expressly provided for in Article 29 (2). shall be effected only on the basis of a There has therefore been no competition. infringement either of Article 29 (1) and In its statement of defence the Council (2) or of Article 45. claims that the Staff Regulations In her reply the applicant examines and envisage two ways in which a post may challenges the interpretation put forward be filled: by the Council, both as regards Article (a) recruitment, which is regulated by 45 (2) and Article 29 (2). Chapter 1 (Recruitment) of Title III, The wording of Article 45 (2) is clear: a and in particular by Article 29, and competition is, in any event, obligatory based upon the organization of in the case of promotion from one competitions; category to another. (b) advancement, regulated by Chapter This argument has already been accepted 3 (Articles 43 to 46: Reports, in the case-law (Judgment of 13 July advancement to a higher step and 1972, Joined Cases 55 to 76, 86, 87 and promotion) of Title III of the Staff 95/71, Besnard et al, Recueil 1972, p. Regulations, the method of 562 and opinion of Mr Advocate-Gener advancement being that of promo al Lagrange in Case 15/63, Lassalle, tion. [1964] ECR, 40) and is confirmed both Article 45 (2) should be interpreted as by the fact that Article 29 (2) applies excluding promotion for movement to a only to external recruitment and by a higher category and it therefore refers comparison between Articles 28 and 45 to the organization of competitions of the Staff Regulations.

tional or open. Everything to do with competitions is covered by the term Moreover, this provision is not, as the 'recruitment', since even an internal defendant maintains, a mere reference to competition may be said to constitute a the rules concerning competitions but a kind of fresh recruitment, because by its substantive rule requiring a competition conditions and in its results it effaces all for promotion from one category to another. concepts of grade and seniority, and because the career (grade and step) of It cannot be stated that the applicant's the successful candidate who is argument would lead in any respect to appointed recommences on an entirely absurd conclusions, as is wrongly

VAN BELLE v COUNCIL

If concerned with the entry into the public promotion is not permitted the method service of persons who are not yet employed must be that of recruitment. officials. The rules relating to external and The applicant supports this interpret internal recruitment are not merely ation by reference to the opinion of Mr identical, but a single set of rules applies Advocate-General Lagrange delivered to both. All the rules, methods and prior to the judgment of 4 March 1964 exceptions contained in the Chapter on (Case 15/63, Lassalle v European 'Recruitment' apply both to internal and to external recruitment. Parliament, [1964] ECR 45) and the A close analysis of Article 29 (2) shows judgment of the Court of 15 December 1966 (Case 62/65, Serio, [1966] ECR that it is only in respect of officials in

. .', this provision Article 29 (2) refers exclusively to nevertheless applies equally to internal 'external' recruitment, that is to say to recruitment. Although it is frequently the the entry into the service of persons who case in the event of internal recruitment are not yet officials. that a check has already been made at In its rejoinder the Council states that the time of the first appointment of the the parties are agreed that Mr Goetz was official to ensure that the conditions appointed in pursuance of Article 29 (2) required by Article 28 were fulfilled, and that movement between categories nevertheless, as a matter both of fact and may not be effected by promotion. of law, this check must be made afresh. The Council challenges the contention The requirements as to nationality, that as a substantive rule Article 45 (2) military service, character, physical

In the first place, recourse may be had to that this was not a post requiring special Article 29 (2) of the Staff Regulations qualifications, since these are only the only if the Vacancy Notice or, at the normal qualifications for posts as very least, a subsequently published administrator in Grade A6. document, has made this possibility In its statement of defence the Council known. Vacancy Notice No 84/72, claims that in fact this was a case of concerning, in particular, the post as regrading of a post from Category B to administrator in Grade A6 to which Category A. For nearly fifteen years Mr Charles Goetz was appointed, did not Goetz has undertaken very special duties state that Article 29 (2) of the Staff within the Secretariat-General which do Regulations might be applied. The not correspond to tasks undertaken in statement at the end that 'the posts set any other administrative body, in out above will be filled according to the particular the coordination of the procedure laid down in the Staff branches responsible for the composi­ Regulations (cf. Articles 4 and 29) is tion, typing, duplication, translation and clearly insufficient, while the title distribution, all at very short notice, of a referred only to the second paragraph of large number of documents. The vast Article 4 and Article 29 (1) (a) of the increase in the Council's work long ago Staff Regulations. led the Secretary-General to consider Secondly, reasons must be stated for a that the post should be one in Category decision to apply Article 29 (2) A. It is therefore the post itself held by (Judgment of 26 May 1971, Joined Cases Mr Goetz which has evolved from being 45 and 49/70, Bode, Recueil 1971, pp. a post involving 'executive duties' into a 476 and 477). The applicant requests post involving 'administrative and that the Court should ascertain whether advisory duties'. Although the regrading

of posts is essentially a budgetary regrading of a post in respect of a single operation, it is none the less true that an official who continued to undertake official who satisfactorily discharges the the same duties, the Council nevertheless duties corresponding to the regraded acted according to the rules laid down post must, by the appropriate channels by the Staff Regulations, as is shown by provided under the Staff Regulations, the following recital from the decision: remain in charge of the amended duties 'Whereas the post to be filled requires — the nature of which remains special qualifications and the chosen unchanged — in the post which they candidate has shown that he possesses

A competition would have been any case to the creation of a new post, as pointless since, by definition, Mr Goetz is clear from Vacancy Notice No 84/72. was the best qualified to undertake these Whether or not this was a case of duties, while the latter require special regrading, the conditions for the qualifications, there being no training application of Article 29 (2), both formal corresponding to this sort of work. and substantive, should have been Moreover, the necessary quality, rapidity fulfilled. and precision of the work within the Council would have been disrupted if Secondly, the arguments put forward by another candidate had had to be the Council as evidence of the alleged instructed in the work. regrading of the post show that the appointment of Mr Goetz had been It is therefore clear that recourse to decided in advance and that the Article 29 (2) was had by reason of the defendant merely looked through the special, technical nature of the post, Staff Regulations to find a rule which, in which meant that 'only a limited number its opinion, would allow it to achieve its of persons already highly specialized and objective.

well-founded. Advocate-General Dutheillet de Lamothe Moreover, the Vacancy Notice stated in Joined Cases 45 and 49/70 (Bode, that Article 29 would be applied and the Recueil 1971, pp. 483-484) leaves no Staff Regulations do not require that it doubt in this respect. It is not true to say be stated that paragraph (2) of that that the Court did not follow the provision is to be applied. In its Advocate-General on this point; the judgment in Joined Cases 45 and 49/70, Court did not give a ruling, since the Bode (Recueil 1971, p. 465), the Court absence of a statement of reasons was did not follow the Advocate-General, sufficient in itself to entail the annulment who had been in favour of such a of the contested measures.

JUDGMENT OF 5. 12. 1974 — CASE 176/73

qualifications. The reasons must also be made sure that the conditions required by stated (Judgment of 26 May 1971, Article 29 (2) were fulfilled and Joined Cases 45 and 49/70, Bode, metioned the fact in the recitals to the Recueil 1971, p. 477) and an explanation decision itself. given as to why the post at issue was not The reliance placed upon the judgment filled by way of a competition. of the Court of 26 May 1971 (Joined As regards the substantive conditions of Cases 45 and 49/70, Bode, Recueil 1971, Article 29 (2), the concepts 'exceptional p. 465) leads the Council to emphasize case' and 'post which requires special that the detailed rules for the qualifications' must be strictly interpret implementation of the Staff Regulations,

November 1970 and 20 February 1971, The applicant notes that, according to published in the Staff Courier No 175 A the Council, Mr Goetz is the person best of 1971, a Vacancy Notice shall specify qualified to undertake the duties 'in general the career bracket, the connected with the 'regraded post'. It is starting grade to which an official may not however the purpose of Article 29 be promoted, the administrative unit (2) to permit the occupier of a post to within which the post falls, the place remain in that post, even if the latter is of work, a description of the type regraded to the point where it becomes a of duties and the main qualifications completely new post which, because of required, as well as calling for this fact, must be declared vacant. applications'. Descriptions of posts with Moreover, for the purposes of Article 29 the Secretariat-General of the Council, (2), for posts corresponding to grades on the other hand, are extremely vague other than Grades A1 and A2, the and there is no organigramme or detail possibility of dispensing with the ed list of posts.

VAN BELLE v COUNCIL

may therefore be filled. This is the In short, the contested appointment: reason why there are only very slight — owed its special character to the re­ differences between Annex I to the Staff grading of the post, Regulations (basic posts and correspond­ — was made pursuant to Article 29 (2), ing career brackets) and the description there being no text prohibiting the of posts with the Council. This is also application of this provision to offi­ the explanation for the simplified cials already in the service of the wording of the Council's Vacancy Communities, Notices. Thus Vacancy Notice No — was decided on the basis of a Vacan­ 84/72, which constitutes the formal cy Notice drawn up in the context of expression by the authority of its wish to fill the post, mentioned Article 29 in the the Council's own methods of ap­ body of the text to indicate that the post pointment, might be filled by either of the two — takes account of the 'exceptional na­ means available under Article 29. ture' of the recourse to Article 29 (2); not only is this merely one As regards the special qualifications re­ quired for the post, it is the Council's case as against more than 2 000 ap­ pointments made pursuant to Article opinion that the post occupied by Mr Goetz, regraded to Category A, appea­ 29 (1), but the post itself is highly specialized in character. red, after comparison with comparable functions in other institutions, speciali­ The oral observations of the parties were zed to a degree where it would have presented at the hearing on 24 October been impossible to find another official 1974.

Communities and cannot be used where, for the purpose of filling a vacant post, servants already in office are to be considered.

4 Article 29, which forms part of the chapter in the Staff Regulations devoted to recruitment, governs the various means of filling a vacant post.

5 It lays down, for this purpose, that examination shall be made, in order of preference, first of the possibilities of filling the post by promotion or transfer within the institution where the vacancy has occurred, next of the possibility of holding competitions internal to that institution, and, thirdly, of applications for transfer made by officials of other institutions.

6 It is only if these possibilities are seen to be inadequate that the procedure for competitions on the basis either of qualifications or of tests or of both qualifications and tests may be followed.

7 In this case, as appears from Article 29 of the Staff Regulations read in conjunction with Article 1 (1) (a) of Annex III thereto, this amounts either to inter-institutional competitions or to open competitions.

8 The Staff Regulations do not therefore distinguish between internal compe­ titions and external competitions, but between internal competitions and open competitions, these last being those to which both candidates from outside the institutions and others, already having the status of official or servant, are admitted.

14 No doubt such circumstances only occur, as moreover is indicated by para­ graph (2) of Article 29, in exceptional cases, such that the application of this provision is subject to very strict conditions of form and of substance; it cannot however be discounted.

15s Moreover, although it may be accepted that an open competition may, in certain circumstances, appear inappropriate for the purpose of filling a vacant post, there is no reason why the same might not possibly be true in the case of an internal competition, especially as the detailed rules for these two types of competition are identical.

16 It may therefore be concluded that by applying Article 29 (2) in respect of a servant already in office the defendant did not infringe this provision.

17 The applicant claims, secondly, that in any case Article 45 (2) of the Staff Regulations does not allow recourse to be had to Article 29 (2) for the purpose of the promotion of an official from one category to another.

18 According to Article 45 (1) of the Staff Regulations: 'Promotion shall be by decision of the appointing authority. It shall be effected by appointment of the

JUDGMENT OF 5. 12. 1974 — CASE 176/73

24 Moreover, Article 29 (2), by reason of its exceptional character, must be strictly interpreted and cannot take precedence over the rule formulated, in a general and unconditional manner, in Article 45 (2).

25 The submission is well founded and the contested decision must be annulled.

VAN BELLE v COUNCIL

Costs

26 In pursuance of Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs.

27 The defendant has failed in its submissions and must therefore be ordered to pay the costs.

A. Van Houtte C. Ó Dálaigh Registrar President of the First Chamber

OPINION OF MR ADVOCATE-GENERAL REISCHL

DELIVERED ON 20 NOVEMBER 1974 1

Mr President, According to Notice No 86/72 two posts Members of the Court, in Grade A6 were vacant, and according to Notice No 84/72 three posts in Grade On 8 August 1972 the Council of the A6 would be vacant as soon as the posts European Communities published two mentioned in Vacancy Notice No 83/72 Vacancy Notices, Nos 84/72 and 86/72. had been filled by way of promotion.

1 — Translated from the German.