C-22/75
ECLI:EU:C:1975:140
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JUDGMENT OF 29. 10. 1975 - CASE 22/75
In Case 22/75
Berthold KÜSTER, an official of the European Parliament, residing at Bertrange (Luxembourg), represented by Victor Biel, Advocate of the Cour Supérieure de Justice of the Grand Duchy of Luxembourg, with an address for service in Luxembourg at the Chambers of his Counsel, 18a rue des Glacis, applicant, v
European PARLIAMENT, Luxembourg, represented by its Secretary-General, Hans Nord, acting as Agent, assisted by Alex Bonn, Advocate of the Luxembourg Bar, with an address for service in Luxembourg at the Chambers of its Counsel, 22 Côte d'Eich,
defendant,
Application for the annulment of Internal Competition A/50, for a post of Head of Division with the Directorate-General for Committees and Interparliamentary Delegations,
THE COURT (First Chamber)
composed of: R. Monaco, President of Chamber, A. Donner and A. O'Keeffe, Judges,
Advocate-General: G. Reischl Registrar: A. Van Houtte
gives the following
JUDGMENT
Facts
The facts and the arguments advanced by I — Facts and written procedure the parties in the course of the written procedure may be summarized as 1. By Vacancy Notice No A/50 of follows: 30 September 1974, the European
KÜSTER v PARLIAMENT
Parliament opened an internal com — Take note of the applicant's offer of petition for the purpose of filling a post proof set out in his submissions; of Head of Division (Grade A 3) with the On the substance of the case: Directorate-General for Committees and — Rule that the application is well Interparliamentary Delegations. The post founded and consequently annul in question had previously been the Internal Competition A/50; subject of Vacancy Notice No 1509 of 12 — Rule that such annulment shall March 1974, against which the applicant include the annulment of any had brought Case No 79/74, dismissed procedure attaching thereto, where by judgment of the Court dated 19 June appropriate, and that such procedure 1975. cannot adversely affect the applicant; — Order the Parliament to pay the Vacancy Notice No A/50, published in costs.' the official languages of the Community, laid down — as did Vacancy Notice No The defendant contends that the Court 1509 — amongst the qualifications and should: abilities required, 'for practical reasons, a '— Take note that it leaves the question thorough knowledge of English'. of the admissibility of the application to the discretion of the By a letter of 18 October 1974, Mr Court; Küster submitted a complaint in respect On the substance of the case: of the opening of this competition, for — Rule that the application is which he had applied. unfounded and dismiss it; — Make a ruling as to costs in Since he did not receive a reply to this conformity with "the provisions complaint, the applicant lodged the applicable.' present application on 19 February 1975.
In a document attached to the III — Submissions and argu application, the applicant further asked ments of the parties for the competition procedure in question to be suspended until the Court had ruled on the main issue. This The applicant maintains that in holding application was dismissed by order of the Internal Competition A/50, the President of the First Chamber dated 25 appointing authority had not exhausted February 1975. the possibilities of promotion which in fact existed since the applicant 2. On hearing the report of the fulfilled — even in the opinion of his Judge-Rapporteur and the views of the superiors — the conditions required for Advocate-General, the Court (First promotion. In fact the competition was Chamber) decided to open the oral held because of the appointing procedure without any preparatory authority's concern to reserve the vacant inquiry. post for a British national, contrary to Articles 7, 29 (1) (a) and 45 of the Staff Regulations, as well as to the third II — Conclusions of the parties paragraph of Article 27, according to which 'No posts shall be reserved for The applicant claims that the Court nationals of any specific Member State'. should:
'— Rule that this application is For this reason the competition admissible as to form and that it has procedure in question is vitiated by a been made within the prescribed misuse of powers, as is shown by the period; statement of the Secretary-General, that
JUDGMENT OF 29. 10. 1975 - CASE 22/75
the post to be filled had been reserved the Staff Regulations, the consideration for a British national (offer of proof by a which it requires be undertaken with the witness) and by the system of marking greatest possible care, respecting all the adopted in the Notice of Competition, interests of applicants for promotion. especially as regards qualifications, the Moreover, one might justifiably wonder oral tests on the 'type of duties' and whether candidates entitled to promotion the 'knowledge of languages'. The should not benefit, in the case of an application of this system of selection internal competition, if not from results in candidates of English mother preferential treatment in relation to other tongue being favoured. candidates, at least from an appropriate differential in marking. The defendant, after having pleaded the Furthermore, the factual situation inadmissibility of the application, withdraws this plea in its rejoinder, in envisaged by Case 79/74 is not the same view of the judgment meanwhile given as that in the present case. Whilst the
first case was concerned with the creation by the Court on 19 June 1975 in Case 79/74 (Küster v European Parliament). of a 'pool' of Heads of Division, in the case of Competition A/50 the On the substance of the case, having recruitment procedure related to an emphasized that no candidate can claim isolated post. an absolute right to promotion, the Finally, the applicant points out that in defendant points out that the vacancy the opinion of highly placed officials in notice, whilst requiring a thorough the institution there is in the present knowledge of the English language, does state of the detailed list of posts no post not contains a condition that the
of Head of Division still available for candidate be of English mother tongue allocation to a German national. It is or that his knowledge of that language therefore clear that the consideration of should be equal to that of his mother the comparative merits of officials, tongue. Moreover, the condition laid required by Article 45 of the Staff down is motivated by a functional Regulations, did not take place, contrary criterion due to the requirements of the to the conditions laid down in that work of the parliamentary committees. provision. Far from amounting to a 'disguised means' of favouring a particular In its rejoinder, the defendant points out nationality, this condition is solely based that in his final pleading the applicant on the interests of the service. by implication withdrew the submission based on a thorough knowledge of the Furthermore, the defendant opposes the English language.
Since this withdrawal, acceptance of the offer of proof put prompted by the principles enunciated forward by the applicant. It argues that by the Court in its judgment of 19 June the Secretary-General did not make the 1975 in Case 79/74, was nevertheless not statement attributed to him and that the a formal withdrawal, the defendant objectives pursued by the institution can considers itself obliged to maintain its be discerned only in decided and conclusion on this submission. completed acts and not in statements made by officials.
Moreover, as regards the submission based on the alleged infringement of In his reply the applicant states that Article 29 (1) (a) of the Staff Regulations, whilst officials have no absolute right to this was also rejected by the Court, in its promotion, it can nevertheless not be judgment of 12 March 1975 in Case denied that they are 'eligible' for 23/74. The factual situation considered promotion. Respect for this eligibility by the Court on that occasion was the requires that, in applying Article 29 (1) of same as that in the present case.
The
KÜSTER v PARLIAMENT
difference emphasized by the applicant, defendant recalls that the applicant that is to say, the fact that the appears on the list of suitable candidates competition which was the subject for competition A/50 and emphasizes matter of Case 23/74 was held for the that the chosen candidate is not a British purpose of recruiting five Heads of national.
Division, whilst the competition involved in the present case was held for that of selecting a single applicant, is without IV — Oral procedure importance, since the conditions of recruitment contained in the Staff The oral observations of the parties were Regulations have to be respected in all heard at the hearing on 9 October 1975. circumstances.
Finally, as regards the submission The Advocate-General delivered his relating to misuse of powers, the opinion on 19 June 1975.
Law
1 By application submitted on 19 February 1975 under Article 91 of the Staff Regulations, the applicant asks the Court to annul the implied rejection by the European Parliament of his complaint of 18 October 1974 and consequently to annul Internal Competition A/50 of 30 September 1974, relating to a post of Head of Division (Grade A 3) with the Directorate-General for 'Committees and Interparliamentary Delegations'.
2 In support of his conclusions he submits that the competition procedure was irregular, in particular by reason of the appointing authority's decision to hold it without providing proof of compliance with the formalities laid down by Article 29 (1) (a) of the Staff Regulations.
3 In fact, according to that article, the appointing authority can only organize a competition internal to the institution such as provided for under subparagraph (b) of the paragraph in question where it appears impossible to fill the vacant post by way of transfer or promotion.
4 Since — even in the opinion of his superiors — the applicant fulfilled the conditions required for promotion to the vacant post and had submitted his application, it is alleged that such proof cannot be adduced, so that the decision to hold an internal competition was accordingly illegal.
5 The existence of several persons eligible for promotion or transfer may lead the appointing authority to the conclusion that the interests of the service and the impartiality of recruitment render an internal competition desirable.
JUDGMENT OF 29. 10. 1975 - CASE 22/75
6 The applicant's argument amounts to attributing to the assistant of an official whose post becomes vacant the right to succeed him wherever it appears from his file that he has the qualifications necessary to fill that post.
7 Both the interest of the service and the rights of other officials militate against the acceptance of such a claim.
8 The fact that the recruitment procedure in question had the purpose of filling a single post and not a number of individual posts is of no importance.
9 The submission must therefore be rejected.
10 The applicant also argues that the condition contained in the vacancy notice, laying down that 'for practical reasons, a thorough knowledge of English is required', is not justified by reasons based on the interests of the service but amounts to a disguised method of reserving the post in question for a particular nationality.
11 In support of this submission the applicant argues inter alia that the system of marking which the vacancy notice in question lays down for the oral test bearing on the 'knowledge of languages' shows the decisive importance attached to a thorough knowledge of English, which appears amongst the qualifications required in respect of a possible appointment.
12 For these reasons the notice in question is alleged to infringe the final paragraph of Article 27 of the Staff Regulations, according to which 'No posts shall be reserved for nationals of any specific Member State'.
13 Whilst the Staff Regulations prohibit the reserving of posts for nationals of any specific Member State, the appointing authority may nevertheless make its selection, when recruiting an official, dependent upon specific linguistic abilities required in the interests of the service.
14 In the present case the special nature of the tasks devolving on the secretariats of the parliamentary committees which have the task of assisting the members of these committees in their work, may justify a recruitment
KÜSTER v PARLIAMENT
based inter alia on a thorough knowledge of one of the national languages used by such members, who come from the national parliaments of the Member States.
15 More specifically, the recruitment of an official having a thorough knowledge of English may correspond to the requirements of the service resulting from the accession to the Community of the new Member States.
16 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 in the present case that 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.
17 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 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.
18 Moreover it is shown by the other 'qualifications and abilities' specified that the thorough knowledge of English does not constitute the only criterion determining the choice of the candidate to be appointed.
19 On the contrary, the notice of competition 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 services, the appointing authority must take all these factors into account.
20 This submission is therefore unfounded.
21 The application must therefore be dismissed.
JUDGMENT OF 29. 10. 1975 - CASE 22/75
Costs
22 Under the terms of Article 69 (2) of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs.
23 The applicant has failed in his action.
24 However, under the terms of Article 70 of the Rules of Procedure, the costs incurred by institutions in actions brought by servants of the Communities are to be borne by such institutions.
On those grounds,
THE COURT (First Chamber)
hereby
1. Dismisses the application;
2. Orders the parties to bear their own costs.
Monaco Donner O'Keeffe
Delivered in open court in Luxembourg on 29 October 1975.
A. Van Houtte R. Monaco
Registrar President of the First Chamber