C-110/77

(Staff Regulations, Article 5)

In the matter of promotion it is for the equivalent to university education

appointing authority to appraise evidenced by a degree, whether professional experience is

In Case 110/77

Tomas J. Mulcahy , an official of the Commission of the European Communities, by William A. Young, Solicitor in Dublin, with represented

an address for service in Luxembourg at the Chambers of Victor Biel, Advocate at the Luxembourg Bar, 71 Rue des Glacis,

1 — L­ang­ uage of the Case English.

JUDGMENT OF 1. t. 1978 — CASE 110/77

THE COURT (First Chamber)

composed of: G. Bosco, President of Chamber, J. Mertens de Wilmars and A. O'Keeffe, Judges,

Advocate General: H. Mayras Registrar: A. Van Houtte

gives the following

interviewed by the Director General of On 4 October 1976 the defendant DG VII, Mr Le Goy, the Deputy published Vacancy Notice COM/643/­ Director General, Mr Wissels, and the 1976 concerning the post of Head of Director of Directorate C, Mr Dousset. Division C 3 (Technical Aspects of The purpose of those interviews was to Transport Direc­ and Traffic) of the evaluate candidates from the point of torate General for Transport (DG VII). duties" view of both their general suitability for Under theheading "Nature of the post and their specialized

the Vacancy Notice stated the competence. engineering following: That evaluation is set out in the "To head the administrative unit" (and) drawn up memorandum by Mr Le Goy "To provide the Director General that . ..

which states seven candidates with technical advice (including ...".

the applicant) were

The qualifications required were as considered to possess some of the

follows: necessary attributes for the post and

MULCAHY v COMMISSION

qualified engineers to divide the nature and had successfully deputized applications into three categories; those for his head of division who was often

from engineers which were suitable for absent for reasons of health. further consideration, those from The applicant, Mr Mulcahy, who holds engineers which should not be further a degree in Civil Engineering from the considered and those from candidates National University of Ireland, entered who were not qualified engineers and Division C2 of DG VII in 1974. which it therefore did not seem possible Following the decision to appoint Mr L to take into consideration. to the post in dispute he submitted a

The group in question placed three complaint under Anicle 90 (2) of the

candidates (including the applicant) in Staff Regulations on 10 February 1977. the first category but noted that there As he received no reply to his complaint

was a "considerable divergence between four during the stipulated period of

appoint Mr L to the vacant post and to

promote him to Grade A 3 with effect The that Court applicant claims the from 1 January 1977. should:

The candidate appointed, who holds a 1. Annul the decision of the defendant degree in Economics and Commerce 22 December 1976 taken on or about from the University of Genoa, appointing Mr L to the post of Head commenced service in DG VII in 1962 of Division Technical Aspects of and has held various posts in the Transport and Traffic (VII C 3) of divisions dealing with General Affairs, General for the Directorate with Infrastructure Charging, with Air Transport; and Sea Transport and, from July 1973 to July 1975, with Technical Aspects. By 2. Direct a reconsideration of the

appointment to the said post; decision of 2 December 1974 he was

promoted to Grade A 4 with effect from 3. Grant such further relief as may 1 January 1974. seem proper to the Court; It emerges from the staff report for the 4. Award the applicant the whole of his period from 1 July 1973 to 30 June costs.

1975 that Mr L's training and aptitudes

1976 and, consequently, Article 7 (1) to fulfil the requirements of the post at

and Article 27 of the Staff Regulations issue, which was one which would

of Officials. In addition it contravened normally be held by a qualified

the principle "legem patere quam ipse engineer. In that regard the most

fecisti". The defendant, having specified important consideration is the

the qualifications required for the post requirements of the post. It is a post of

The Commission infringed Article 45 of As regards the other knowledge the Staff Regulations and misused its required by the Vacancy Notice, Mr L powers, as is shown by the great satisfied all the requirements (cf. in difference in merit between the particular, his ability to direct a large applicant and the person appointed. The administrative unit).

absence of a degree and of technical The interests of the service required the qualifications cannot be properly post to be filled by someone who compensated in another manner. Fam­ possessed the technical necessary iliarity or even experience can be helpful expertise for dealing with such matters but they are not sufficient. but they also required the possession of

The decision also infringes Articles 3 administrative ability and knowledge of, and 45 of the Staff Regulations, since and practical experience in, the detailed the candidate appointed did not have work attaching to the post. Technical two years'

actual seniority in his grade knowledge was therefore only one

at the date of publication of the requirement for the post. Vacancy Notice. In fact, he did not take Similarly, the allegation that the up his duties in his Grade A 4 post until candidate appointed was not of the 20 November 1974. highest ability cannot be maintained. As regards the first submission, the The Commission continues to believe defendant replies that Mr L may be that although it was proper for it to regarded as possessing the specified take into consideration the views of the qualifications for the post. group of officials who were qualified

does not provide the Commission with period of at least four years'

study to

Further­ any fully reasoned recommendations. acquire an engineering degree. That memorandum comprises, more, Mr L attached documents to his therefore, only one element to be taken application contrary to the instruction into consideration in making the set out at the top of page 1 of the form appointment. Mr Le Goy and the and accordingly contravened the said

aforementioned group of officials instruction. cannot be regarded as equivalent to a As first regards the submission, the selection board. It was the Commission applicant emphasizes that each of the itself which conducted a full exam­ different qualifications be set out must ination of the comparative merits of the taken into account in at a arriving candidates. Its decision is therefore not decision and that no candidate may be in breach of the principles laid down by appointed unless he shows that he the Court in Cases 62/75 (Serio v possesses each of the for qualifications, Commission [1966] ECR 561) and each of them is "required". Mr L's 21/68 (Huybrechts v Commission [1969] practical in engineering experience — a ECR 85). period of 21 months in Division C 3 —

is not equivalent to an Furthermore, although the applicant engineering his degree or diploma. The period was far regards own merits as being Mr too short to gain good sound practical necessarily superior to those of L, the memorandum by Mr Le Goy casts experience. Therefore, the contention

doubt on his present administrative that Mr L was capable ofproviding the ability. Director General of DG VII with

minimum period of two years in Grade liament [1964] ECR 31) and 118/73 A 4 on 1 January 1976 and was (Grassiv Council [1974] 2 /ECR 1109) accordingly eligible for promotion to clearly show that no person may be Grade A 3 when the defendant's appointed unless he complies with the

JUDGMENT OF I. 6. 1978 — CASE 110/77

requirements set out in a Vacancy application form headed "sup­ information" Notice in their plain and ordinary plementary concern the duties" meaning. Unlike many other Vacancy "nature of the attaching to the

Notices, the one at issue in this instance more recent posts which he had held. mentions specifically a qualification in Mr L could quite properly have engineering. included all that information on page 3 of the application form under the As regards the second submission, the

applicant observes that the Commission heading "nature of duties". did not make a proper comparative As regards the first submission, if the

study from similar sources. The applicant's argument were the correct, memorandum by Mr Le Goy did not candidates eligible for the post in only deal Mr L although it expressed from with an question, apart formally qualified

suitable candidates but rather the board without obtaining any of qualifications whatsoever. appointment of a candidate whose name

does not appear on the list of suitable The Grassi case referred to above is not

candidates). in instance. On basis relevant this the of

The applicant requests the Court to the Alvino case, the Commission was

order the defendant to produce all the entitled to regard an official as having memoranda prepared by Mr Le Goy the requisite practical experience when

L. he had had 14 relating to the appointment of Mr more than year's

acquired experience the factorily. area in question: he worked from 1956

to 1962 for a transport firm and from As regards the second submission, the

his entry into the service of the memorandum by Mr Le Goy did not

Commission he worked in the transport ignore Mr L, who was included among sector as an official in Grade A. In the candidates who were adjudged "less

addition, the documents attached to his well qualified".

MULCAHY v COMMISSION

cipally for the annulment of the decision of the Commission of 20

December 1976 appointing Mr L to the post of Head of the Technical Aspects of Transport and Traffic Division of the Directorate General for Transport (DG VII) and in an alternative for the grant to the applicant of

"such further relief as may seem proper to the Court".

2 The post in question was advertised in Vacancy Notice COM/643/1976 of 4 October 1976, which contained under the heading "Nature of duties": "to head the administrative unit" (and) ... "to provide the Director General with technical advice ...".

3 The qualifications required were as follows:

"university education, with degree or diploma in civil, mechanical or

5 As none of the officials conducting the interview was a professional

engineer a request was made to a of three engineers of other group departments to divide the applications into three categories: those from engineers which were suitable for further consideration, those from engineers which should not be further considered and those from candidates who were not qualified engineers and which it therefore did not seem

possible to take into consideration.

6 This group of engineers placed three candidates (including the applicant) in the first category but noted that there was a "considerable divergence between the description of the post of Head of Division C 3 and the candi­

dates who have been placed in the first category".

7 It was stated in a memorandum drawn up by the Director General on

competition should be held.

9 At its meeting on 20 December 1976 the Commission, after consideration of the files of the 14 candidates and the memorandum by the Director General, decided to appoint Mr L to the vacant post and to promote him to Grade A 3 with effect from 1 January 1977.

10 The candidate appointed, who holds a degree in Economics and Commerce from the University of Genoa, commenced service in 1962 in DG VII where he held various posts in the divisions dealing with General Affairs, with In­ frastructure Charging with Air and Sea Transport and, from July 1973 to

July 1975, with Technical Aspects.

MULCAHY v COMMISSION

11 It emerges from the Staff Report for the period from 1 July 1973 to 30 June 1975 that Mr L's training and aptitudes were in perfect conformity with the work assigned to him and that he very rapidly took on the new duties which had been assigned to him in spite of their very technical nature and that he had successfully deputized for his head of division who was often absent for reasons of health.

14 In support of his application the applicant maintains that the Commission has infringed the express terms of the vacancy notice in dispute and

consequently Article 7 (1) and Article 27 of the Staff Regulations of

Officials, and in addition that it has contravened the principle "legem patere quam ipse fecisti".

15 Since the defendant has specified the qualifications required for the post in question it is bound to appoint a person having those qualifications.

16 The Commission considered that the candidate selected had obtained

practical experience equivalent to the qualification acquired through

19 Mr L first worked a number of years in a large transport undertaking and in 1962 he entered the service of the Commission where he was engaged in a

number of sectors of the common transport policy, including some highly technical ones.

20 During a period of two years (July 1973 to June 1975), which he spent in the Technical Aspects of Transport and Traffic Division he performed to

the complete satisfaction of the director, the duties relating to a post which required technical knowledge to the level of that required for an

engineering degree and he frequently deputized for his head of division.

21 The defendant's appraisal that Mr L had practical experience, with regard

dates' files and of the memorandum by the Director General after the exami­

nation undertaken by the officials with engineering qualifications.

25 This submission is thus unfounded.

26 Thirdly the applicant maintains that the candidate appointed did not have

seniority in his years'

two actual grade at the time when the vacancy notice

seniority in Grade A 4.

29 The third submission must also be dismissed.

30 Since the alternative application is based on the same submissions as the

principal application the foregoing considerations show that both must be dismissed as unfounded.

Costs

31 Under Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs.

2. Orders the parties to bear their own costs.

Bosco Mertens de Wilmars O'Keeffe

Delivered in open court in Luxembourg on 1 June 1978.

A. Van Houtte G. Bosco

Registrar President of the First Chamber