C-188/73
ECLI:EU:C:1974:112
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JUDGMENT OF 30. 10. 1974 — CASE 188/73
Staff Regulations if the authority If, after the event, the appointing decides what these conditions should authority finds that the conditions of be only after the Notice has been eligibility required in the Notice of published and the candidates are Vacancy are more exacting than the known, and if an interpretation is needs of the service demand, it is placed on the wording of the Notice entitled to re-open the promotion of Vacancy which, in the authority's procedure after withdrawing the view, seems to be in the best interests original Notice of Vacancy and of the service. putting an amended one in its place.
In Case 188/73
Daniele Grassi , official of the Secretariat-General of the Council, 55, Reeboklaan, Tervueren, represented by Marcel Slusny, advocate at the Brussels Cour d'Appel, with an address for service in Luxembourg at the chambers of Ernest Arendt, 34b IV, rue Philippe II,
applicant,
v
Council of the European Communities , represented by its Legal Adviser, Antonio Sacchettini, acting as Agent, with an address for service in Luxem bourg at the office of Mr Van den Houten, Director of the Legal Department of the European Investment Bank, 2, place de Metz,
defendant,
in the matter of the annulment of the express decision of the Secretary- General of the Council on 13 September 1973 rejecting the complaint lodged by the applicant on 9 July 1973 concerning the appointment of Mr X to the post of Head of the Italian Language Division; the annulment of this appoint ment, which took place on 25 May 1973,
THE COURT (First Chamber)
composed of: C. Ó Dalaigh, President of Chamber, A. M. Donner (Rapporteur) and J. Mertens de Wilmars, Judges,
Advocate-General: J. P. Warner Registrar: A. Van Houtte
gives the following
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JUDGMENT
Issues of fact and of law
The facts of the case, the subject-matter On 9 July 1973 the applicant addressed of the application and the views of the a complaint to the competent authority parties may be summarized as follows: in which he claimed that the appointment of Mr X was illegal in that he did not fulfil the conditions of eligibility in the Notice of Vacancy, and I — Facts and procedure more particularly that Mr X did not possess a thorough knowledge of (the) 1. In Notice of Vacancy No 31/73 of three other languages of the 29 March 1973, the Council announced Communities. The second part of this vacancies in five posts of Head of same document contained a request that Translation Division at Grade LA 3. the applicant should be placed on Grade The notice, which contained no LA 3, there being at that time three LA 3 requirement as to age, included the posts vacant. following details: By note of 13 September 1973 the Secretary-General of the Council 2. Nature of duties expressly rejected the first head of the complaint without making any reply on To be Head of the Translation Division; the second.
3. Conditions of eligibility 2. By application of 5 December 1973, registered at the Court on 11 December 1973, the applicant initiated the present — Perfect command of one of the proceedings. languages of the Communities, The written procedure followed the including knowledge of economic normal course. and legal terminology with On the report of the Judge-Rapporteur particular reference to the fields and after hearing the opinion of the concerning the European Com Advocate-General, the Court (First munities, and a thorough Chamber), by order of 20 June 1974, knowledge of (the) three other decided languages of the Communities; I. 1. to hear as witnesses: — Experience of several years as Mr Heinz Noack, retired head of an administrative unit of Director of the Language some importance.' Department of the Council, The applicant, an official of Italian Mr Guillaume Battin, retired nationality at present employed as a Assistant Head of the Language reviser at Grade LA 4 in the Language Department of the Council, Department of the Secretariat of the Council, applied for the post by note Mr Giannino Ballesina, a dated 6 April 1973. member of the Language Department of the Council, On 28 May 1973, the applicant became aware of the appointment of Mr X as on the following questions: Head of the Italian Translation Division. What is the meaning of the
JUDGMENT OF 30. 10. 1974 — CASE 188/73
expression 'thorough knowledge' II — Conclusions of the in Notice of Vacancy No 31/73? parties To the best of their knowledge, did Mr X possess a thorough The applicant claims that the Court knowledge of German and should: English in May 1973? 1. declare null and void the express 2. to fix the hearing of the rejection on 30 September 1973 of the witnesses for the day, 11 July complaint submitted by the applicant; 1974, set for the oral procedure; 2. declare null and void the appointment II. to invite Mr X, Head of a Language of Mr X to the post to be filled under Division of the Council, to appear Notice of Vacancy No 31/73; before the Court at the hearing on 11 July 1974 in order that, subject 3. order the other party to pay the costs to his consent and if the Court of the action; considers it necessary, he may 4. take note that the applicant reserves furnish proof of his knowledge of the right, on completion of the German and English; formalities provided for under III. 1. to put the following questions to Articles 90 and 91 of the Staff the defendant: Regulations, to bring an action before (a) Do the levels of attainment the Court in the matter of the express assessed as 'very good', or implied rejection of the request 'good' and 'fair' in the contained in his letter of 9 July 1973. biennial reports correspond The defendant contends that the Court to the levels of requirement should: described in Notices of Vacancy as 'perfect know 1. declare the fourth head of the ledge', 'thorough knowledge' applicant's claim inadmissible; and 'adequate knowledge' of 2. dismiss the first and second heads of a language? the applicant's claim; (b) On what grounds did the appointing authority con 3. order the applicant to pay the costs. sider that Mr X possessed a thorough knowledge of German and of English when, according to his III — Submissions and argu reports, his knowledge of ments of the parties these languages had been described as fair? 1. In his application, the applicant deploys three separate arguments in 2. to invite the defendant to lodge support of his claim: at the Court Registry: (a) The grounds for rejection of the first (a) The biennial reports of head of complaint were insufficient Messrs Ballesina and Grassi as they referred only to Article 45 of and of Mrs Rosani, the other the Staff Regulations. An express servants eligible for promo reply to a complaint must, under tion to the post in question; Article 90 (2) of the Staff (b) The official text, in the six Regulations, be a reasoned one, as a languages, of Notice of decision which is not reasoned does Vacancy No 31/73 which not allow the person concerned to appeared on notice boards. bring the whole of his case before
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the Court. Failure to state the Regulations, of the comparative merits reasons for the decision is also a of officials eligible for promotion. breach of Article 25 of the Staff Suggestions from this committee are Regulations, the effect of refusal to merely guidelines for the appointing deal with the applicant's complaint authority, which retains in their entirety being that it is impossible for the the discretionary powers conferred on it applicant to be appointed to the by the Staff Regulations. post, whereby he is thus adversely As for the submissions made by the
affected. applicant, the Council accepts that the (b) The applicant maintains that Mr X wording of Article 90 (2) of the Staff does not possess the required Regulations requires the express knowledge of languages. It is rejection of a complaint to be a reasoned common knowledge in the Language one. Nevertheless, although the Department of the Council that Mr appointing authority is obliged to X has a thorough knowledge only of communicate 'its reasoned decision' to French. the person concerned within the prescribed time limit, the authority has a (c) Mr X does not, moreover, satisfy large measure of discretion in deciding the condition set out under the third the substance and scope of the reasons head of Notice of Vacancy No which it is under an obligation to give. 31/73, viz. experience of several This applies particularly in fields where
years as head of an administrative the appointing authority has wide unit of some importance. discretionary powers, such as those It is clear from the second and third provided for under Article 45 of the Staff submissions that the Council did not Regulations. Against this background abide by the conditions laid down by the reason given for rejection of the itself in Notice of Vacancy No 31/73. In applicant's complaint, though brief, is this connexion, the applicant requests entirely in order. This contention is that witnesses be called to prove the supported by precedents established by facts referred to in these submissions and the Court: the appointing authority is that one or more expert witnesses be not obliged to justify its promotion appointed to decide whether Mr X has a decisions in respect of candidates not thorough knowledge of three other promoted. On this point the Council languages of the Communities apart cites a number of judgments of the from that of which he claims to have a Court, including those of 13 July 1972 in
perfect command. Case 90/71 (Bernardi v Parliament, Rec. p. 609) and of 6 May 1969 in Case 21/68 2. The defendant emphasizes, in the (Huybrechts v Commission, Rec. p. 97). first place, that the wording of Article 45 Although this case law refers only to of the Staff Regulations clearly indicates justification of decisions to promote, it is that the decision relating to the obvious that the principles which it promotion of an official is among those enshrines apply with equal force to decisions which, by their very nature, are justification of an express decision inherent in the discretionary powers of rejecting a complaint. the appointing authority. The applicant is wrong to base his On this point, the Council draws argument on Article 25 of the Staff attention to the consultative character of Regulations. The Council scrupulously the tasks of the 'Advisory Committee on observed the procedure provided for in Promotion' set up by the Secretariat of that Article. Nor, moreover, has the the Council in order to advise the applicant alleged that the rules of that appointing authority in its consideration, procedure were not complied with.
On pursuant to Article 45 (1) of the Staff the requirement to justify decisions
JUDGMENT OF 30. 10. 1974 — CASE 188/73
covered by Article 25, the defendant the file and its contents. As there is refers to decisions of the Court nothing of this kind in the present case, according to which the assessment there is no justification for adopting the factors of which the appointing measures of inquiry requested by the authority can avail itself in taking applicant. individual decisions 'are ill-suited for The Council goes on to give a brief inclusion in a statement of reasons': summary of the professional careers of judgments of 9 March 1964 in Case Messrs X and Grassi, from which it is 27/63 (Raponi v Commission, Rec. p. clear (according to the Council) that the 268) and of 9 June 1964 in Joined Cases decision was justified. In particular there 94 and 96/63 (Bernusset v Commission, is said to be no question of Mr X's Rec. p. 612). competence to manage a Division in the The Council maintains that it Language Department of the Council in meticulously observed the provisions of view of the fact that he has been head of the Regulations in promoting Mr X. It is the Italian Section of the Department obvious that, in making an appointment since 1 January 1962. or a promotion, the appointing authority is under an obligation to abide by the 3. In his reply, the applicant states that conditions which it has itself laid down. the Council's interpretation of the Staff In this connexion the defendant Regulations' rules on promotion, with its emphasizes that it followed the emphasis on the administration's procedure provided for in its Decision discretionary power, is too simplistic.
In No 344/73 concerning the Committee on fact, it follows from the wording of Promotion. But the report of the Article 45 of the Staff Regulations that Committee, who knew the contents of this discretion is also limited. Notice of Vacancy No 31/73, clearly As to the role of the Committee on stated that it was 'after having given careful consideration to the merits of the Promotion in the disputed appointment, the applicant contends that its creation various candidates fulfilling the seniority must be regarded as illegal because qualifications for promotion' that it Decision No 344/73 of the Council reached unanimous agreement on the list setting up the Committees on Promotion of officials worthy of promotion into Grade LA 3. was adopted without the prior consultation with the Staff Committee According to the defendant, the Court is which is required under Article 110 of not competent to review the decision in the Staff Regulations. dispute because, in this case, the question in issue is an assessment made Consequently, its opinion is irrelevant.
If by the administrative authorities not the assumption were made that the only of ability and performance but also Committee on Promotion was competent of the overall personality of each to offer an opinion, the report it candidate for the vacancy. The Court produced would still be illegal for four reasons: can go into the facts on which the decision was based only if it considers (a) Notice of Vacancy No 31/73 was itself to be capable of substituting its not available to the Committee own assessment for that of the when it drew up its report; administration.
The Court would (b) it deliberately confined its considera therefore be right to refrain from sitting tion to officials serving as Heads of in judgment on the way in which the Section; power of appointment provided for under Article 45 has been exercised, in (c) it failed to submit several candidates the absence of anything manifestly for each vacancy as required by questionable revealed by examination of Article 6 of Decision No 34/73)
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(d) it ought to have given reasons for its In this connexion reference is made to opinion. the judgments of 8 July 1965 in Joined Finally, even supposing the opinion to Cases 27 and 30/64 (Fonzi v be legally valid, it is doubtful whether Commission, Rec. p. 637) and of 14 June the competent authority paid any 1972 in Case 44/71 (Marcato v attention to it. The applicant draws the Commission, Rec. p. 427). conclusion that the disputed decision is As this case is concerned with illegal for failure to comply with the establishing the truth of the Council's rules of the promotion procedure. finding that Mr X has a thorough Mr Grassi maintains that, in its reply to knowledge of three Community his complaint, the Council offered an languages, the defendant cannot pretend explanation which was inadequate. The that the subject-matter lies outside the obligation to give a reasoned reply to the purview of the Court. Nor, by protesting complaints referred to under Article 90 that the correct procedure was followed, of the Staff Regulations is inherent in the may the Council hide behind the opinion purpose of the preliminary procedure, of the Committee on Promotion.
The which is to avoid unnecessary appeals to information provided by the Council on the Court. This purpose can be fulfilled the careers of Mr X and of the applicant only if the official who makes the is misleading and incomplete. It does not complaint receives a reply which is duly bear out the statement that Mr X has, reasoned and might, therefore, satisfy since 1 January 1962, actually served as him. To constitute a reasoned decision, a a Section Head in the Language decision must reply to each particular Department. On the contrary, it was the item in the complaint; in any case a applicant who, together with Mr mere formal reason, such as that given in Ballesina, acted in this capacity during this case, is insufficient. The fact that the recent years.
This is the basis of Mr appointing authority has some discretion Grassi's third submission. in making its decision has no bearing on The applicant concludes by asking the the matter. Besides, it is not, on this Court to order the Council to produce occasion, a question of the exercise of a everything on the file relating to the discretionary power, based on a 'value promotion of Mr X and particularly the judgment' of some kind, but the record of the whole administrative practical question whether Mr X does or procedure properly speaking; the file does not fulfil the conditions laid down sent to the Committee on Promotion for by the authority itself in the Notice of the LA grades; the documents to which Vacancy. the Committee on Promotion refers in its The precedents established by the Court report; and the administrative file of Mr in the matter of appointments and X. promotions are on the following lines: In its rejoinder the defendant states that (a) the Court will not look into value it complied with the conditions laid judgments, because it believes that it down in Article 45 limiting the exercise should not put itself in the place of of the administration's powers. the administrative authority when The reference to Article 110 of the Staff the latter is discharging a Regulations as the reason why the responsibility falling within its creation of the Committees on
competence; Promotion was improper is seen to be (b) on the other hand, it will establish without substance when viewed against the truth of the facts on which the the judgment of the Court of 8 July 1968 appointing authority is relying as in the Joined Cases 27 and 30/64 (Fonzi well as assessing the conclusions v Commission, Rec. p. 637). The which it draws from them. question whether the list of candidates
JUDGMENT OF 30. 10. 1974 — CASE 188/73
for promotion submitted in its report by and are consequently applicable to the Committee on Promotion should Article 90 (2) of the Staff Regulations. contain any particular number of As regards the second and third officials is entirely a matter for its own submissions of the applicant, the Council discretion and judgment. Moreover there repeats, generally speaking, the is no obligation to give reasons for arguments adduced in its statement of proposals in a purely consultative defence. context. It is clear both from the report After concluding the written procedure of the Committee on Promotion and the Court proceeded on 11 July 1974 to from the decision appointing Mr X that examine the witnesses and hear the oral the competent authority did in fact take arguments. the Committee's opinion into account. The applicant was represented by Maître As to the obligation to give a reasoned Marcel Slusny and the Council by its reply to the complaints of officials, the Legal Adviser, Antonio Sacchettini, Council reiterates that the precedents acting as Agent. established by the Court on the principle The Advocate-General delivered his of the appointing authority's discretion opinion at the hearing on 9 October ary powers are of general application 1974.
Grounds of judgment
1 By application of 5 December 1973, the applicant brought an action before the Court under Article 91 of the Staff Regulations for annulment of the express decision of the Secretary-General of the Council of 13 September 1973 rejecting the applicant's complaint of 9 July 1973 concerning the appointment of Mr X to the post of head of a Language Division and for annulment of that appointment, which took place on 25 May 1973.
2 The applicant also claimed 'that the Court should: ... 4. take note that the applicant reserves the right, on completion of the formalities provided for under Articles 90 and 91 of the Staff Regulations, to bring an action before the Court in the matter of the express or implied rejection of the request contained in his letter of 9 July 1973'.
3 The appointment took place as part of a reorganization of the Language Department designed to convert its Sections into Divisions and was made pursuant to Notice of Vacancy No 31/73 of 29 March 1973 announcing five posts of head of Translation Division at grade LA 3.
GRASSI v COUNCIL
4 Among the conditions of eligibility contained in the notice were the following: 'Perfect command of one of the languages of the Communities, including knowledge of economic and legal terminology with particular reference to the fields concerning the European Communities, and a thorough knowledge of (the) three other languages of the Communities' and 'Experience of several years as head of an administrative unit of some importance'.
As to admissibility
5 The defendant pleads that the fourth part of the applicant's claim, as cited above, is inadmissible because it does not arise out of the subject-matter or which the Court is being asked to rule in the present action.
6 The applicant leaves it to the wisdom of the Court.
7 The meaning of the fourth part of the claim is, to say the least, obscure and its relevance to a solution of the dispute has not been established.
8 This claim must therefore be treated as inadmissible.
9 No objections have been raised against the admissibility of the applicant's remaining claims.
As to substance
First submission
10 The applicant relies on Articles 25, 45 and 90 (2) of the Staff Regulations to challenge the decision of 13 September 1973 rejecting his complaint, because no reasons were given and a decision which is not reasoned prevents the person concerned from bringing the whole of his case before the Court.
JUDGMENT OF 30. 10. 1974 — CASE 188/73
11 As regards Articles 25 and 45 there is no need for a decision promoting an individual to be reasoned as it does not adversely affect the person to whom it is addressed, viz. the official whose candidature has been successful.
12 The appointing authority is not obliged to give reasons for promotion decisions insofar as they affect candidates who have not been promoted; a statement of these reasons might harm some if not all unsuccessful candidates.
13 As for Article 90 (2), the obligation to give reasons for a decision rejecting a complaint also applies in the case of a disputed promotion.
14 As, however, in the words of Article 45 of the Staff Regulations, promotion shall be 'by selection', the reasons to be given will be concerned only with fulfilment of the legal conditions on which, under the Staff Regulations, the validity of the promotion depends.
15 A restriction of this nature cannot hamper the person concerned in framing his appeal to the Court, as the subject of such an appeal must be the act or omission which gave rise to the complaint and, in making their submissions and arguments to the Court, the parties are not bound by the wording of the complaint or of the decision rejecting it.
16 The reasons given for the decision of 13 September 1973 state that the disputed decision to promote 'was taken after the comparative merits of the officials eligible for promotion had been considered and after all assessments of their ability, work and conduct in the department, as they appear in the periodical reports rendered pursuant to Article 43 of the Staff Regulations, had been taken into account'.
17 While this statement of reasons is undoubtedly concise, it nevertheless meets there requirements indicated above.
18 It would, moreover, have been difficult to amplify it without discussing the merits of the various candidates on the basis of their personal files.
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19 This submission must, accordingly, fail.
Second submission
20 The applicant alleges that, in promoting Mr X, the Secretary-General of the Council ignored the linguistic conditions of eligibility published in Notice of Vacancy No 31/73, since the promoted official does not possess 'a thorough knowledge of (the) three other languages of the Communities in addition to perfect command of his mother tongue'.
21 In fact, he has a thorough knowledge only of French and only an imperfect knowledge of the other languages.
22 While recognizing that, in making a promotion or appointment, it is bound to abide by the conditions fixed by itself, the defendant maintains that, in this case, it acted on the basis of an assessment made not only of the ability and work but also of the overall personality of each of the candidates for the vacancy.
23 The Court can go into the facts on which the decision was based only if the personal file and its contents reveal something manifestly questionable.
24 As there was nothing of this kind in the present case, the submission should be rejected without adopting the measures of inquiry requested by the applicant.
25 Article 45 provides that promotion shall be exclusively by selection after consideration of the comparative merits of the officials eligible for promotion and of the reports on them.
26 While the appointing authority enjoys wide discretion in this matter, there is ipso facto an assumption that the exercise of this discretion will include careful examination of the files and meticulous regard to the requirements laid down in the Notice of Vacancy.
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27 The applicant's objections, which have not been dispelled by the defendant, are concerned particularly with the physical accuracy of factual statements whose correctness can be objectively assessed.
28 From the biennial reports on Mr X, it appears that his knowledge of two languages has been described as 'very good', of another as 'good', and of a fourth as 'fair'.
29 It is not disputed that, to make comparison easier, the levels 'very good', 'good' and 'fair' are in current use to classify knowledge of languages in the biennial reports.
30 On the other hand, there is equally no dispute that, in the qualifications required in Notices of Vacancy, the levels of attainment required in languages are described by the expressions 'perfect command', 'thorough knowledge', and 'adequate knowledge'.
31 In the circumstances, the question is whether Mr X satisfied the condition laid down in the Notice of Vacancy: 'Perfect command of one of the languages of the Communities ... and a thorough knowledge of (the) three other languages of the Communities'.
32 On this point Mr H. Noack, former director of the Language Department of the Council, who appeared as a witness, declared .. 'the expression' 'thorough knowledge' is to be regarded as a practical expression whose meaning depends on the other two expressions, 'perfect command' and 'adequate knowledge'. 'Perfect command' is intended to indicate 'the highest possible level' of knowledge of a language. The two expressions, 'thorough knowledge' and 'adequate knowledge', represent levels below that of perfect knowledge. The expressions 'very good', 'good' and 'fair' make these levels easier to understand. The three classifications cannot be precisely equivalent in each case: their meaning varies according to the person using them; the significance of thorough knowledge must be assessed in comparison with the other expressions'.
33 Mr G. Battin, a former Assistant Head of the Language Department of the Council, who also appeared as a witness, declared: 'the expression' 'thorough
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knowledge' is meant to indicate knowledge which is the opposite of 'superficial' but ... this vague expression was used to give the candidate an indication of the level of knowledge required and to serve as a guideline for the Selection Board ... As a general rule, the level of attainment in a language indicated by 'thorough knowledge' is higher than that which the reports describe as 'fair' ... the distinction may not be so clear in individual cases where the candidate's knowledge of languages is regarded as sufficient to equip him for the job'.
34 The view of this witness was that 'the wording of Notice of Vacancy No 31/73 required more than was necessary because it did not pay sufficient regard to the extent to which every translator's familiarity with languages varies', but he agreed that a thorough knowledge of three languages had been required on several previous occasions.
35 The conclusion to be drawn from these comments is that these two methods of classification, although not fully equivalent, have sufficient in common to make it impossible to regard knowledge described by the word 'fair' to be regarded as 'thorough knowledge'.
36 Both the defendant and the witnesses have, it is true, qualified their remarks by commenting that, in the assessment of requirements, the overall personality of the candidate and the nature of the job to be filled must be taken into account.
37 The Court does not share this view.
38 In fact, though the appointing authority has wide discretion in comparing the candidates' merits and reports, especially with a view to the post to be filled, it must exercise it within the self-imposed limits contained in the Notice of Vacancy.
39 When the appointing authority has to fill a post, it must, when drawing up the Notice of Vacancy, take account of the special conditions of eligibility required of the holder; it does not satisfy the provisions of Staff Regulations if the authority decides what these conditions should be only after the Notice has been published and the candidates are known, and if an interpretation is
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placed on the wording of the Notice of Vacancy which, in the authority's view, seems to be in the best interests of the service.
40 To interpret the wording of the Staff Regulations otherwise would be to deprive the Notice of Vacancy of its basic function in the recruitment procedure, which is to give those interested the most accurate information possible about the conditions of eligibility for the post to enable them to judge whether they should apply for it.
41 As the appointing authority had, in Notices of Vacancy No 31/73 required 'a thorough knowledge of (the) three languages of the Communities', it was bound by the terms of Article 45 to reject any candidate who, according to his reports, did not meet this requirements.
42 It infringed Article 45 when it decided that the published requirement was met by a candidate whose biennial reports stated that his knowledge of languages was (apart from his mother tongue) only 'very good' or 'good' for two languages and 'fair' for a third.
43 If, after the event, the appointing authority found that the conditions of eligibility required in the Notice of Vacancy were more exacting than the needs of the service demanded it was entitled to re-open the promotion procedure after withdrawing the original Notice of Vacancy and putting an amended one in its place.
Third submission
44 In this submission the applicant challenges the appointment of Mr X on the ground that the latter did not meet the condition of eligibility published in the Notice of Vacancy, viz. experience of several years as head of an administrative unit of some importance.
45 The fact is that, although Mr X had been a Section Head in the Language Department since 1962, he had been continually absent on Staff Committee
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business and associated activities, with the consequence that a substitute had frequently to act for him as Head of the Language Section.
46 The last paragraph of Article 1 of Annex II to the Staff Regulations states: 'The duties undertaken by members of the Staff Committee and by officials appointed by the Committee to organs set up under the Staff Regulations or by the institution shall be deemed to be part of their normal service in their institution. The fact of performing such duties shall in no way be prejudicial to the person concerned'.
47 Consequently, even if the applicant's allegations were proved, which is not the case, the alleged absences could not be taken into account in determining whether Mr X did or did not satisfy the requirements of Notice of Vacancy No 31/73.
48 This submission must therefore be rejected.
Conclusion
49 It follows from the foregoing that the disputed decision to appoint Mr X must be annulled.
Costs
50 Under Article 69 (2) of the Rules of Procedure, the unsuccessful party must bear the costs.
51 The defendant has failed in its plea.
On those grounds,
OPINION OF MR WARNER — CASE 188/73
THE COURT (First Chamber)
hereby:
1. Annuls the decision in dispute.
2. Orders the defendant to pay the costs.
Ó Dálaigh Donner Mertens de Wilmars
Delivered in open court in Luxembourg on 30 October 1974.
A. Van Houtte C. Ó Dálaigh Registrar President of the First Chamber
OPINION OF MR ADVOCATE-GENERAL WARNER
DELIVERED ON 9 OCTOBER 1974
My Lords, published, is among the Annexes to the Answers, dated 28 June 1974, given by It appears that the budget of the the Council to Questions put by the Secretariat-General of the Council for Court at the close of pleadings). 1973 provided for five of the Sections of The conditions of eligibility for the posts its Translation Service — namely the were stated in the Notice to be as Dutch, English, French, German and follows: Italian Sections — to become Divisions. '— University education ... or equiva Each of these Divisions was to be headed lent professional experience; by an official of grade L/A 3 instead of, — Perfect command of one of the as the Sections had been, by one of grade L/A 4. languages of the Communities, including knowledge of economic Thus it was that, on 3 April 1973, the and legal terminology with Council, pursuant to Article 4 of the particular reference to the fields Staff Regulations, published Notice of concerning the European Communi Vacancies No 31/73, relating to five ties, and a thorough knowledge of posts of Head of Translation Division of three other languages of the grade L/A 3. (The text of the Notice, as Communities;