C-81/74

defendant,

Application for the annulment of the decisions of the Commission of 22 October 1973 appointing Messrs Piero Burigana, Francesco Conte, Eduardo Capuano, Raffaele de Santis, Claudio Guida, Francesco Pettini, Vito Saccomandi, Carlo Savoini and Dario Tosi, to posts of Principal Administrator which were the subject of Vacancy Notices COM/943/72, COM/396/72, COM/646/72, COM/938/72, COM/939/72, COM/931/72, COM/940/72, COM/947/72, and COM/948/72, and the annulment of all connected decisions and the decision rejecting the complaints made in that respect.

THE COURT (First Chamber)

composed of: R. Monaco, President of Chamber, J. Mertens de Wilmars and A. O'Keeffe (Rapporteur), Judges,

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

gives the following

During the second half of 1972 the By letters of 30 July 1974, the Commission rejected these complaints. Commission posted up Vacancy Notices COM/943/72, COM/396/72, COM/646/72, On 28 October 1974, each of the COM/938/72, COM/939/72, COM/931/72, COM/940/72, COM/947/72, and COM/­ applicants lodged an application at the 948/72 relating to posts of Principal Court of Justice. Administrator in the category and career bracket A 5 - A 4 within the These applications were registered at the Directorates-General of Agriculture, Court Registry on the same day. Industrial, Technological and Scientific Affairs, Social Affairs and External By order of 5 December 1974 the Court Relations. (First Chamber) ordered that the various cases be joined. It decided on 22 October 1973 to fill these posts by application of Article 29 The First Chamber, after hearing the (2) of the Staff Regulations and to report of the Judge-Rapporteur and the appoint to them respectively Messrs views of the Advocate-General, decided Piero Burigana, Francesco Conte, to open the oral procedure without any Eduardo Capuano, Raffaele de Santis, preparatory inquiry. Claudio Guida, Francesco Pettini, Vito Saccomandi, Carlo Savoini and Dario Tosi, all of Italian nationality and who II — Conclusions of the parties previously held the posts concerned as temporary staff. The applicants claim that the Court should: Some officials in Grade A 6 holding 1. Annul the decisions of the defendant posts in various Directorates-General or of 22 October 1973 appointing Messrs departments of the Commission then P. Burigana, F. Conte, E. Capuano, R. lodged a complaint under Article 90 of de Santis, C. Guida, F. Pettini, V. the Staff Regulations seeking mainly the Saccomandi, C. Savoini and D. Tosi, withdrawal of the decisions of the to the posts of Principal Administrator Commission appointing the above which were the subject of Vacancy officials. The complaints were made by Notices COM/943/72, COM/396/72, the following on the dates indicated: COM/646/72, COM/938/72, COM/­ Giuliano Marenco, 18 January 1974, Mrs 939/72, COM/931/72, COM/940/72, Rosa-Maria Marenco, 18 January 1974, COM/947/72 and COM/948/72;

2. Annul all decisions prior to and/or Werner; COM/938/72 Konrad Baumann, concurrent with the decisions of COM/939/72, Rolf Werner; COM/940/72, appointment mentioned under (1) and Rolf Werner; COM/943/72, Bernhard which are linked thereto, especially von Wüllerstorff und Urbair, and the decisions not to have recourse to COM/947/72, Mrs Dorangela van Loo. the competition procedure in order to No applicants came forward for the posts fill the vacancies in question and which were the subject of Vacancy those to have recourse to the Notices COM/931/72 and COM/948/72. procedure laid down in Article 29 (2) of the Staff Regulations; As for Messrs Marenco and Ravaioli, they

Alberti inadmissible and in any case and Baumann do not deprive them of unfounded; the capacity to lodge an application on 2. Order the applicants to pay the costs the basis of Articles 90 and 91 of the to the extent to which the institution Staff Regulations which apply equally to does not bear them under Article 70 present officials and to former or of the Rules of Procedure of the potential' officials. These two applicants Court have an interest in bringing proceedings since they were officials on the date when the decisions in question were III — Submissions and argu taken and when their preliminary ments of the parties complaints were lodged, and since they could have taken part in the (a) Admissibility competitions had the latter taken place. The Commission claims that two It is of little moment to speculate applicants, Messrs Pieter Alberti and whether the applicants, as a whole, Konrad Baumann, cannot claim to have applied for one of the posts in question any capacity or personal interest in (Messrs Marenco and Ravaioli could not bringing proceedings; they have in fact legally have applied since they did not tendered their resignations which were fulfil the condition of completion of a accepted and made final before their minimum period of service required by applications were lodged. Article 45 (2)).

That, COM/646/72 Pieter Alberti, Bernhard moreover is a question of substance and von Wüllerstorff und Urbair and Rolf not of admissibility.

(b) The first submission Lastly, the procedure followed can be adopted only in exceptional cases. The applicants point out that Article 29 However, it follows from the very (2) of the Staff Regulations has been wording of the vacancy notices that in infringed in that, under the decisions in the present case the posts did not require question, temporary staff were appointed. qualifications of such a special nature That provision, which authorizes a that they could be filled only by a special recruitment procedure other than the procedure, but required normal competition procedure for the qualifications for posts of Principal Administrator. This was not an recruitment of officials in Grades A 1 and A 2 and, in exceptional cases, also exceptional case either, since the officials for recruitment to posts which require appointed were capable of entering an special qualifications, applies only to the internal competition. recruitment of candidates who are not The Commission replies that neither the yet in the service of the Communities. second and third paragraph of Article 4 of the Staff Regulations nor any other The Commission replies that in its provision of the Staff Regulations judgment of 5 December 1974 (Van prescribes the information which a Belle v Council of the European vacancy notice must contain. It is Communities, Case 176/73, [1974] ECR enough that possible candidates receive 1361), the First Chamber of the Court correct information concerning the post rejected that argument in that the power and the duties and qualifications thus granted to set aside the competition required. procedure would be limited in a way which is 'neither just nor in the interest The proposals for decisions which were of the service'. submitted for the approval of the

Commission and appear in the files of The above mentioned judgment the officials appointed are broadly established the duty to give reasons. But reasoned which enables the review of the defendant is confusing in the present their legality to be carried out normally. case the formal duty to give reasons whereby the measure must disclose the The specific character of each particular reasons on which it is based, which alone post, having regard especially to the is in question here in view of the description of the duties in the vacancy exceptional nature of Article 29 (2), and notices, was mentioned in the the requirement that every administrative Commission's letter of 30 July 1974. measure must have its reasons, which is a question of substance. The applicants reply that compliance with the conditions of form in question As to the conditions of substance, they results from the provisions of the Staff must be regarded as being, according to Regulations, perhaps impliedly but the opinion of the Advocate-General in necessarily, and from general principles. the case quoted above, the expression of Reference must be made in particular to one and the same condition, that is, that Article 4 (2) and (3) and to Article 1 (2) the vacant post requires special and (3) of Annex III to the Staff qualifications so that it can be filled only

The Joint prior to the judgment of 26 May 1971 Committee has, in respect of each (Bode v Commission, Joined Cases 45 competition, expressed an unfavourable and 49/70, [1971] ECR) is important as opinion regarding the recourse to that being based upon the same grounds. It is procedure which was unanimous except for one vote. not permissible to disregard the way in which the departments of the defendant were able to learn that the persons The reasons advanced in the written appointed were candidates and whether procedure that the posts in question other external candidates would not have require special qualifications can be come forward if they had been informed repeated with regard to all posts of of their opportunity to make an Principal Administrator, but they application. indicate above all that in order to be

appointed to a post it is necessary to be a '… The appointing authority, by specialist and to have had practical choosing candidates who possess the experience; consequently the special special qualifications from among procedure laid down in Article 29 (2) persons of Italian nationality …'. would tend to become the normal recruitment procedure. The posts filled by the contested decisions form part of a total of more Lastly, why did the proposals for than twenty posts created by the Council decisions consider the internal at the end of 1972 in order to competition and general competition re-establish geographical equilibrium in

This and the institution exercises its choice procedure is in accordance with the first freely. Further, most of the posts in paragraph of Article 27 of the Staff question were created in 1972 in Regulations in that it safeguards both the anticipation of the 1973 budget and geographical equilibrium within the could not consequently, by definition, departments of the Commission which have been filled in the past by a was acknowledged in the Judgments of recruitment procedure under Article the Court (First Chamber) of 15

JUDGMENT OF 29. 10. 1975 - JOINED CASES 81 TO 88/74

Nationality was the exclusive criterion, institutions in application of Article 29 and this explains why no competition (1) (c) of the Staff Regulations, the Court was organized and why no vacancy requested the Commission to inform it notice which would have allowed of the dates on which that was done. The external applications to be put forward Commission in reply stated that: was published. Vacancy Notice COM/943/72 was posted from 7 to 25. 5.1973 These considerations show clearly a case of misuse of powers. Not the interest of Vacancy Notice COM/396/72 was posted from 6 to 20. 6.1973 the service but factors extraneous thereto were taken into account: nationality and, Vacancy Notice COM/646/72 was posted from 6 to 20. 6.1973 within this, certain particular persons. Vacancy Notice COM/938/72 was posted from 6 to 20. 6.1973 The Commission replies that in agreement with the Council, which was Vacancy Notice COM/939/72 was posted from 6 to 20. 6.1973 acting as budgetary authority, it was led to create twenty posts in career bracket Vacancy Notice COM/931/72 was posted from 14. 4. to 3.5.1973 A 5 -A4 over and above the official complement. But in general it has as Vacancy Notice COM/940/72 was posted from 6 to 20. 6.1973 little recourse as possible to the procedure laid down in Article 29 (2). Vacancy Notice COM/947/72 was posted from 13 to 27. 3.1973. Before the Community increased from six to nine Member States it had to find a The applicants, represented by Marcel solution to a situation of geographical Grégoire, Advocate at the Cour d'appel, disequilibrium which appeared to be very Brussels, and the Commission, represen­ striking since the merger of the ted by its Legal Adviser Raymond executives and which appears from Baeyens, acting as Agent, presented oral statistics which it provides. argument at the hearing on 25 September 1975. - Since the files of the officials appointed by the Decisions of 22 October 1972 The Advocate-General delivered his show that the vacancy notices in opinion at the hearing on 16 October question were posted in the other 1975.

3 The defendant first of all claims that Applications 87/74 and 88/74 are inadmissible on the ground that on the date on which they were lodged the applicants no longer had the status of officials because their resignations took effect from 1 March and 1 October 1974 respectively.

4 According to these two applicants their interest in bringing proceedings follows from the fact that they were officials when the contested decisions were taken and also when proceedings were started by means of their previous complaint, and that they could at least, like the other applicants, have taken part in competitions had these been held.

5 Under Articles 90 and 91 of the Staff Regulations, 'Any person to whom these Staff Regulations apply' means not only officials who are at present serving but also those who were doing so previously and any candidates for a post.

6 Nevertheless, in order for a former official to be able to lodge an appeal under these provisions he must have in addition a personal interest in the annulment of the contested measure.

7 Such is not the case as regards an official who, through his resignation, has shown his desire to cease to belong to the institution within which the posts filled by the contested measure were vacant.

8 For these reasons Applications 87/74 and 88/74 are inadmissible.

13 This claim is not even supported in any way by evidence, which the Commission is under a duty to adduce.

14 Consequently Applications 81 to 86/74 must be regarded as admissible.

On the substance of the case

15 The applicants claim that the contested decisions could not have been taken in application of Article 29 (2) because that provision is concerned only with the recruitment of persons not yet in the service of the Communities and cannot be used where, for the purpose of filling a vacant post, servants already in office who could consequently have entered for a competition internal to the institution are to be considered.

16 The abilities required of the occupant of a post requiring special qualifications may be of such a kind that, in exceptional cases, the competition procedure is inappropriate for the purpose of establishing the existence of those abilities.

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

23 Recourse to Article 29 (2) is not subject to any condition as to publication but only to the circumstance that the recruitment is of Grade A 1 or A 2 officials or to 'posts which require special qualifications'.

24 The applicants maintain next that no reasons were given for the decision to apply Article 29 (2), just as the decision not to resort to the general competition procedure provided for by the last sentence of Article 29 (1) was not justified.

25 However the proposal concerning appointment to the contested posts which was sent on 12 October 1973 to the appointing authority sets out in sufficient detail the respects in which the qualifications required were special.

26 The applicants contest that the posts required special qualifications and could only be filled by means of the special procedure used.

27 Nevertheless it is for the appointing authority to decide, subject to review by the Court, the special nature of the qualifications necessary to fill a post

JUDGMENT OF 29. 10. 1975 - JOINED CASES 81 TO 88/74

34 The need for the Community administration to remedy a geographical disequilibrium in the posts within its departments when recruiting must give way to the requirements of the interests of the service and the consideration of the personal merits of the candidates.

35 In the case of Vacancy Notices COM/939/72, COM/940/72 and COM/943/72, however, where the requirements were respectively a 'thorough knowledge of the particular problems of the agricultural structures in Italy and of the policies for the improvement of the structures', a 'thorough

MARENCO v COMMISSION

knowledge of the economic problems of Italian agriculture' and a 'thorough knowledge of Italian regulations in the wine sector', it may have been legitimate to favour candidates of Italian nationality who were obviously likely to be better equipped to fulfil the qualifications required.

36 Consequently the applications in respect of Vacancy Notices COM/939/72, COM/940/72 and COM/943/72 must be dismissed.

37 The third submission must be accepted as regards Vacancy Notices COM/396/72, COM/646/72, COM/931/72, COM/938/72, COM/947/72 and COM/948/72, and the corresponding decisions in question must be annulled.

THE COURT (First Chamber)

hereby:

1. Dismisses Applications 87/74 and 88/74;

2. Annuls the decisions of appointment to the posts which were the subject of Vacancy Notices COM/396/72, COM/646/72,

OPINION OF MR WARNER — JOINED CASES 81 TO 88/74

COM/938/72, COM/931/72, COM/947/72 and COM/948/72 and dismisses Applications 81 to 86/74 as regards the remainder of the conclusions therein;

OPINION OF MR ADVOCATE-GENERAL WARNER DELIVERED ON 16 OCTOBER 1975

My Lords, imbalance had resulted from the implementation of the Merger Treaty and These eight actions were joined by an it consisted in there being, at that level¡ Order of the First Chamber of the Court too few officials of Italian nationality. To dated 5 December 1974. In each action illustrate the point the Commission has the applicant seeks, essentially, a produced statistics showing, among other declaration that nine appointments made tings, that, at 30 June 1972, there were by the Commission to its staff on 22 on its staff a total of 735 officials in October 1973 were invalid. grades A4 and A5, of whom 239 were nationals of Benelux countries, 181 were The circumstances in which those German nationals, 167 were French, 142 appointments, and certain others, were were Italian and 6 were nationals of made are stated by the Commission to countries that were not, at all events have been as follows (Defence p. 6 and then, Member States. The Commission Rejoinder pp. 8 & 9). In 1972, the considered that the need to remedy this Commission became concerned to 'imbalance' was rendered urgent by the remedy what it describes as a 'situation imminent accession of the three new of geographical imbalance' in the Member States. At some time in 1972, it composition of its staff at A 4 - A 5 level. decided, in agreement with the Council According to the Commission, that acting as budgetary authority, to create,