C-79/74

2. Officials — Recruitment — Post — Post reserved for nationals of a specific Member State — Prohibition — Specific abilities — Requirement in the interest of the service — Permissibility (Staff Regulations, Article 27)

3. Officials — Recruitment — Conditions — Thorough knowledge of a language — Required level of knowledge (Staff Regulations, Article 27)

1. To the extent to which the conditions make its selection, when recruiting an for appointment to a post defined by official, depending upon specific the vacancy notice have the effect of knowledge required in the interests of excluding the applications of officials the service. eligible for transfer or promotion, the 3. Where a thorough knowledge of a vacancy notice amounts to an act language, other than that of the adversely affecting those officials. mother-tongue, is required for 2. Whilst the Staff Regulations prohibit ultimate appointment, the level of the reserving of a post for nationals of knowledge required must be one a specific Member State, the appropriate to the actual requirements appointing authority may nevertheless of the service.

In Case 79/74

BERTHOLD KÜSTER, an official of the European Parliament residing at Bertrange (Luxembourg), represented by Victor Biel, Advocate of the Cour

1 — Language of the Case: French.

Advocate-General: G. Reischl

Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts

The facts and the arguments advanced by of Head of Division (Grade A 3) was the parties during the written procedure declared vacant in the Directorate may be summarized as follows: General for Committees and Interparliamentary Delegations. This notice stated, inter alia, — that the procedure for filling the post I — Facts and written procedure was to be first that of promotion and of transfer within the institution; 1. By Vacancy Notice No 1059 of 12 — that, 'for practical reasons, a thorough March 1974, drawn up in English, a post knowledge of English is required'.

The Parliament then published this The defendant contends that the Court vacancy notice in all the official should: languages of the Community and extended the time-limit for the lodging 'Rule that the application is inadmissible; of applications to 25 April 1974. Alternatively rule it to be unfounded; As the Parliament did not take note of the said complaint in so far as it Reject the applicant's offer of proof by concerned the condition of a thorough witnesses as inadmissible; knowledge of English, the applicant lodged the present application on 28 Dismiss the application; October 1974. Make a ruling as to costs in conformity 2. On hearing the report of the with the provisions applicable.' Judge-Rapporteur and the views of the Advocate-General, the Court (First Chamber) decided to open the oral III — Submissions and argu­ procedure without any preparatory ments of the parties inquiry. The applicant maintains that Vacancy Notice No 1059 is null and void, as the II — Conclusions of the parties condition of a thorough knowledge of English contained therein is contrary to The applicant claims that the Court Articles 7, 27 and 45 of the Staff should: Regulations of Officials.

'Rule that this application is admissible That condition in this case makes as to form and that it has been made impossible an examination of the within the prescribed period; respective merits of all the candidates eligible for promotion and thus infringes Take note of the applicant's offer of Article 45 of the Staff Regulations. It proof by witnesses that the Secretary merely constitutes a disguised means of General of the Parliament stated during reserving the post in question for a the summer of 1974, on being asked British national (there was no candidate about the language condition, that it was of that nationality among the officials the intention, of the authorities to eligible for promotion), and because of

are compromised if the administration an act adversely affecting him. could, under the pretext of geographical distribution, reserve a post for a specific With regard to the substance of the case, nationality without such an action being the applicant disputes that the Head of justified by the proven interest of the Division of a Committee must possess a service. In support of his complaint, the thorough knowledge of the national applicant makes an offer of proof which language of the Chairman of that he defines in his conclusions. Committee. Such a requirement is not practicable, by reason of the changes The defendant maintains first that the likely to occur in the chairmanship. application is inadmissible, because it is Furthermore, it is neither necessary nor directed solely against a notice of a useful as the members of the Secretariats vacant post, that is to say, against a of the Committees have a very extensive measure which cannot be considered as knowledge of languages. Moreover, there being of adverse effect. is nothing in this case to justify the appointment of a Head of Division Subject to this plea of inadmissibility, the having a thorough knowledge of English, defendant points out, moreover, that the as that language is represented in the vacancy notice does not require that the Division by at least one British national. mother-tongue of the candidate must be English, but merely requires a thorough The applicant concludes by persisting in knowledge of that language. It thus his allegation of the 'disguised' concerns a functional criterion, laid motivation of the disputed condition of down in the interest of the service, as the recruitment and in his offer of proof. committees, including that relating to the post in dispute, work in direct and In its rejoinder, the defendant raises a close contact with parliamentarians, who further submission of inadmissibility, are not obliged to draw up their reports based on the presentation on 19 February in a foreign language. The condition 1975 of a new application by Mr Küster complained of does not therefore against the European Parliament. This constitute a 'disguised means' of application (Case 22/75), which is reserving the vacant post for a specific directed against Notice of Internal nationality but is in the manifest interest Competition A/50, is concerned with the

Law

1 By application of 28 October 1974 an action was brought before the Court under Article 91 of the Staff Regulations of Officials for the annulment of Vacancy Notice No 1059 of 12 March 1974.

2 The applicant in support of this application submits in particular that the 'thorough knowledge of English' required by the notice in question amounts to a disguised means of reserving the vacant post for a particular nationality.

3 He states that for this reason the notice in question renders the comparative examination of merits of all the officials eligible for promotion devoid of any meaning and infringes Articles 29 (1) (a) and 45 of the Staff Regulations.

Admissibility

4 The defendant alleges that the action is inadmissible on the ground that the vacancy notice in question does not amount to an act adversely affecting the

9 The defendant also contests the admissibility of the action on the ground that the applicant on 19 February 1975 brought a fresh action — registered at the Court under Number 22/75 — against the Notice of Internal Competition No A/50.

to In this respect it argues that since the Internal Competition A/50 had the purpose of filling, within the framework of one and the same recruiting procedure, the same post as that referred to by the vacancy notice in question, Application 22/75 renders the present action devoid of purpose.

11 Whilst Application 22/75 and the present action relate to the same recruiting procedure, they nevertheless deal with two distinct stages of this procedure, each of them involving different methods of filling the post, that is to say by transfer or promotion in one case and by internal competition in the other.

12 Since the two actions have different purposes the objection of inadmissibility raised by the defendant must be rejected.

KÜSTER v PARLIAMENT

Substance

19 The information appearing in the written pleadings and that furnished in the course of the oral procedure do not make it possible to arrive at the conclusion that in the present case the recruitment of an official having a thorough knowledge of the English language is unjustified having regard to the nature and characteristics of the vacant post or the requirements of the service.

JUDGMENT OF 19. 6. 1975 — CASE 79/74

20 Besides, in laying down the condition in question the vacancy notice in dispute does not intend to refer to so thorough a knowledge that only officials whose mother tongue is English can possess it but allows it to be clearly understood, by the specific reference to 'practical reasons' which justify such a condition's being imposed, that the level of linguistic knowledge required is one appropriate to the actual requirements of the service.

21 Moreover it is shown by the other 'qualifications and knowledge' specified that the thorough knowledge of English does not constitute the only criterion determing the choice of the candidate to be appointed.

22 On the contrary, the vacancy notice in question allows it to be understood that since such a choice can only result from the taking into consideration of several factors which are themselves justified in the interest of the service, the appointing authority must in assessing the level of the candidate's linguistic ability take into account both the actual needs of the service and the manner in which such candidate satisfies the other conditions for appointment.

23 The application must therefore be dismissed

THE COURT (First Chamber)

hereby

1. Dismisses the application;

2. Orders each party to bear its own costs.

Mertens de Wilmars Monaco O'Keeffe

Delivered in open court in Luxembourg on 19 June 1975.