C-289/81

MAVRIDIS v PARLIAMENT

In Case 289/81

VASSILIS MAVRIDIS, residing at19 Voukourestiou Street, Athens, represented by P. Dagtoglou, Advocate, of Athens, with an address for service in Luxem- bourg at the Chambers of Carla Manzo, 52 Rue Poincaré, applicant, v

EUROPEAN PARLIAMENT, represented by Martin Schmidt, Director of Personnel and Social Affairs, assisted by Constantinos Stratigakis, an administrator in the Legal and Administrative Questions Division of the European Parliament, assisted by Alex Bonn of the Luxembourg Bar, with an address for service in Luxembourg at the latter's Chambers, 22 Côte d'Eich,

APPLICATION for the annulment of Decision No 00361806 of the selection board of 7 August 1981 relating to the rejection of the applicant's candidature for the post of Head of the Greek Language Division of the Directorate-General for Information and Public Relations, in charge of the Athens Information Office,

T H E COURT (Second Chamber)

The facts of the case and the submissions 7 July 1981 and laid down on that and arguments of the parties may be occasion the criteria for the selection of summarized as follows: candidates. Those criteria included inter alia "proven experience of at least 10 years' public relations and journalism" and an age-limit according to which candidates were required to be "between I — Facts and p r o c e d u r e 35 and 50 years of age (in other words, to have been born between 1 August 1931 and 1 August 1946)". The criteria were not published in the Official At the beginning of 1981, the European Journal; nor were they displayed on Parliament decided to recruit an official notice boards, or brought to public for the post of Head of the Greek attention in any other manner. Language Division in the Directorate- General for Information and Public Relations, in charge of the Athens Infor- The applicant, who was born before mation Office. As the procedure for 1 August 1931, submitted his application filling the post by means of promotion or for the vacant post and attached the transfer did not achieve the desired supporting documents required by the result, the administration of the above-mentioned vacancy notice. European Parliament, in order to fill the post, and with the approval of the Joint Committee, decided to apply the In the course of its meetings of 23, 27 procedure provided for in Article 29 (2) and 31 July 1981, the selection of the Staff Regulations. Subsequently, a committee examined the 146 applications vacancy notice was published in the received and decided to regard as valid Official Journal of the European 16 of that number. It rejected the other Communities, C 148 of 18 July 1981, at 130, including that of the applicant. page 3, giving a detailed description of the duties of the official and setting out the conditions of eligibility for the post, namely, in particular "a university degree By letter of 7 August 1981, the chairman or equivalent professional experience, a of the selection committee notified Mr proven experience of . . . journalism" and Mavridis that his candidature had not "thorough acquaintance with European been accepted on the ground that it did problems". The notice further stated that not meet the conditions relating to age the vacant post was to be classified in fixed by the selection committee itself. Grade A 3 ; it did not, however, include any limit as to the candidates' age. By application, registered at the Court of Justice on 11 November 1981, the applicant brought an action directly A selection committee was therefore against the above-mentioned decision of appointed. It held its opening meeting on the selection committee of 7 August

Upon hearing the report of the Judge- Ill — Submissions and argu- Rapporteur and the views of the m e n t s of the p a r t i e s Advocate General, the Court (Second Chamber) decided to open the oral procedure. It requested the European A — Admissibility of the action Parliament, the Council and the Commission of the European Com- The applicant takes the view that it was munities to explain the normal practice necessaiy for him to bring an action adopted by them for the organization of directly against the decision of the recruitment procedures such as that in selection board without first submitting a question. complaint to the appointing authority, in this case the European Parliament, in accordance with Article 90 of the Staff Regulations, because the decision of the II — C o n c l u s i o n s of t h e p a r t i e s selection board is one which cannot be altered by the appointing authority. In his application, the applicant claims According to the established case-law of that the Court should: the Court, ' a complaint directed against such a decision constitutes a preliminary "Annul Decision No 00361806 of the procedure which is devoid of purpose selection board of 7 August 1981 relating and superfluous. to the rejection of the applicant's candi- dature on the ground that he was over The defendant, on the other hand, the age-limit; considers that in the light of the above circumstances that case-law cannot be Annul the competition procedure and the applied in this instance, since the re- appointments made as a result thereof; cruitment procedure adopted was not that of a competition, but the exceptional Order the European Parliament to recruitment procedure provided for in organize the competition without taking Article 29 (2) of the Staff Regulations age into account and to consider the and therefore the rules governing the applicant's candidature; competition procedure are not applicable. Moreover, it was the Order the European Parliament to pay Secretary-General of the European Par- the costs." liament, not the selection committee, who chose the recruitment procedure. In his reply, the applicant claims in The administrative authority is entitled addition that the Court should: to examine and decide upon the contested question of the fixing by the "Declare the application admissible and 1 — Judgment of 5 April 1979, Case 117/78 Orlandi [1979] well founded". ECK 1613.

selection committee of an age-limit. authority to which the complaint Consequently, the applicant should have through official channels must be adopted the complaint procedure. His addressed does not have the power to application should therefore be declared amend or alter that opinion. On the inadmissible. other hand, the decision taken in the exceptional procedure in question to establish an age-limit is of a different nature. The validity of such a criterion may easily be considered and assessed by In his reply, the applicant rejects that line the appointing authority within the of argument and maintains that the framework of the procedure of a case-law of the Court relating to the complaint through official channels.

That amounts to an infringement of the first paragraph of Article 5 of Annex III to In its rejoinder, the defendant does not the Staff Regulations. The applicant dispute the applicant's statement of the refers to the judgment of the Court of 28 case-law of the Court according to June 1979 (Case 255/78 Anselme [1979] which it is not necessary to submit a ECR 2323), and submits that it is not complaint through official channels sufficient that the candidates may infer before bringing an action before the the existence of a condition for

Thus the selection board's 1 — Judgment of 3 July 1980, Joined Cases 6 and 97/79 decision not to accept his candidature is Crassi [1980] ECR 2141, in particular, paragraph 15 of the decision. at least as illegal as that annulled by the

In its defence, the defendant contends In his third submission, the applicant generally that the applicant's submissions claims that, inasmuch as the selection are unfounded in fact inasmuch as, in board informed him of the existence of the present case, the procedure in an additional condition for eligibility question is not that of a competition but only at the end of the procedure, in the exceptional recruitment procedure other words after the publication of the provided for in Article 29 (2) of the notice of competition, the board Staff Regulations, as the decision of the committed a breach of the principle of appointing authority shows. That the protection of the legitimate exceptional procedure is not subject to expectation of the individual in respect the rules governing competitions. of the Community administration, which is a fundamental principle of Community law, according to the established Therefore the provisions of Annex III to case-law of the Court. Any candidate the Staff Regulations concerning notices must be able to rely on the accuracy and of competition are not applicable. the comprehensiveness of notices issued Consequently, and in reply to the first by Community institutions and conduct submission, the defendant contends that himself in accordance therewith, in there can have been no infringement of particular in view of the physical and the provisions in question or, more mental problems created by a candi- specifically, of the first paragraph of dature within the framework of such a Article 5 of the said Annex III. The competition, which increase with the age references to the case-law of the Court of the candidate. concerning competitions must therefore be disregarded as irrelevant. In this instance, the applicant relied on the expectation that the details in the For the same reasons, the defendant vacancy notice were accurate and maintains that the applicant's second comprehensive. Indeed it was only submission, relating to the allegation that because he was certain that he fulfilled the selection committee lacked the formal conditions of eligibility that competence to fix an age-limit on the he accepted the inconvenience of ground that, in doing so, it infringed preparing his candidature and allowed it Article 1 (1) of Annex III to the Staff

Regulations is also unfounded, since the of the competition notice, is therefore requirements of Annex III are not inapplicable. The Staff Regulations do applicable to this case. not define or explain that special procedure and it is therefore left to the administrative authority to choose the most appropriate means for filling the As far as the third submission is posts concerned. Whilst the decisions of concerned, the alleged breach of the the Court on the subject of competitions principle of the protection of the are not relevant, the decisions legitimate expectation of the individual concerning Article 29 (2) are.

It was therefore possible for an age-limit to be introduced at a later stage, if the selection committee considered it necessary. Moreover, the defendant raises three additional points. In the first place, it refers to the fact that the age-limit had been fixed well before the applicant's candidature was received. In his reply, the applicant submits that he has not questioned the form of the re- cruitment procedure or the right per se to fix an age-limit. Consequently, the arguments advanced by the defendant in In the second place, it maintains that the its defence in relation to those aspects of age-limit is consistent with the principles the case do not apply.

Even if the specific Thirdly, the selection committee is auth- provisions and the case-law relating to orized to fix an age-limit under Article the procedure to be carried out for 29 (2) of the Staff Regulations, which competitions are not applicable in the provides for a recruitment procedure early stages of the procedure, there is no different from that of a competition in exceptional cases. The competition procedure under Annex III, including the 1 — To that effect, the defendant cites the judgment of 29 October 1975 (Joined Cases 81 to 88/74 Marenco requirements relating to the drawing up [1975] ECR 1247).

In addition the applicant asserts that the In its rejoinder, the défendant reiterates principle of the protection of legitimate its view that the vacancy notice in this expectation applies not only to members case is not subject to the conditions pre- of the staff but equally to those who scribed in the Staff Regulations for present themselves as candidates, since to notices of competition. exclude the non-officials would be to discriminate between officials and other citizens in a manner which is unfounded and unjustified. The defendant has not As regards the principle of the protection furnished any support for the statement of legitimate expectation, the defendant that the principle of the protection of refers to the Opinion of Mr Advocate legitimate expectation cannot apply in General Capotorti in Case 268/80 ' and the circumstances of the present case. takes the view that the said principle should be founded on definite assurances given by the administration to the parties concerned. In this case the ad- Furthermore, the applicant maintains in ministration did not enter into any opposition to the defendant's additional commitment in respect of the candidates arguments, that the fact that the age- but merely issued a notice to inform limit was not communicated to the cand- idates shows that the selection committee 1 — G»g/if/»ii[1981] ECR2306.

JUDGMENT OF 19. 5. 1983 — CASE 289/81

Decision

1 By application l o d g e d at the C o u r t Registry on 11 N o v e m b e r 1981, Vassilis Mayridis, residing in Athens, b r o u g h t an action for the a n n u l m e n t of the decision of the selection committee of the E u r o p e a n Parliament of 7 August 1981 refusing to consider his candidature for the post of H e a d of the G r e e k Language Division of the D i r e c t o r a t e - G e n e r a l for Information and Public Relations of the E u r o p e a n Parliament, in charge of the Athens Information

MAVRIDIS v PARLIAMENT

Office, and, in addition, for the annulment of the selection procedure and of the appointment of the successful candidate which took effect on 1 January 1982.

2 By vacancy notice published in the Official Journal of 18 June 1981, the Parliament announced its intention of recruiting a Head of the Greek Language Division of the Athens Information Office.

3 The vacancy notice included a detailed description of the duties of the head of division and the conditions of eligibility for the vacant post. It should be noted that the legal basis for the procedure adopted was not indicated and no mention was made of any age-limit.

s The Parliament maintains that the action is inadmissible on the ground that the applicant should have pursued the complaint procedure as a necessary preliminary step to the introduction of an action before the Court. It submits that within the framework of the special recruitment procedure provided for in Article 29 (2) of the Staff Regulations, the appointing authority of the Parliament was entitled to consider and modify an age-limit fixed by the selection committee.

9 On the other hand, the applicant submits that a complaint directed against the disputed decision of the selection committee would have been devoid of purpose and superfluous because such a decision like that of a selection board for a competition could not have been amended by the appointing ö authority.

io It appears from the papers in the case that the Parliament decided to apply Article 29 (2) of the Staff Regulations, according to which a procedure other than the competition procedure may be adopted for the recruitment of Grade A l or A 2 officials and, in exceptional cases, also for recruitment to posts which require special qualifications and that the Parliament entrusted the task of selecting candidates suitable for the vacant post to a selection committee.

n Such a task necessarily implies that the Parliament delegates a considerable discretion to the selection committee, in particular in respect of the criteria for selection. It follows that the applicant, who was unaware of the type of procedure adopted by the Parliament, was entitled to consider that the decisions of the committee on the admissibility of candidatures were final in nature and that the Parliament was no longer in a position to alter them. He was, therefore, justified in concluding that the preliminary complaint was a formality devoid of any practical significance.

is It appears from the file that the recruitment procedure applied in this case is indeed the selection procedure provided for in Article 29 (2) and not the competition procedure provided for in Article 27 or 29 (1) and governed by Annex III to the Staff Regulations. There are no grounds on which the Court may question the Parliament's right to apply the procedure selected in this case.

i6 Within the framework of that special procedure, the appointing authority is not required to apply the provisions of Annex III to the Staff Regulations relating to notices of competition. It may therefore apply, in the course of the procedure, criteria which are not set out in the vacancy notice and such criteria need not be published in the Official Journal. That applies equally to a selection committee to which the appointing authority has delegated its right of selection.

i7 That applies in particular to the requirement that an age-limit, if there is one, should be indicated in the vacancy notice. Consequently the appointing authority was not required to refer expressly to that condition in the vacancy notice; nor was it required to fix the age-limit itself, but was entitled to delegate its power in that respect to the selection committee.

JUDGMENT OF 19. 5. 1983 — CASE 289/81

is It follows that the two submissions are not well founded.

i9 In his third submission, the applicant claims that by imposing an age-limit as an additional condition for eligibility within the framework of the procedure under Article 29 (2) of the Staff Regulations, without giving any prior indication to that effect, the selection committee breached the principle of the protection of the legitimate expectation of the individual in respect of the Community administration.

23 As the Court held in its judgment of 29 October 1975 (Joined Cases 81 to 88/74 Marenco v Commission [1974] ECR 1247, paragraph 21 of the decision), a decision to have recourse to Article 29 (2) made during the course of a recruitment procedure which has been initiated need not

MAVRIDIS v PARLIAMENT

necessarily be taken when the vacancy notices are published and need not be published in the Official Journal.

24 However, if the appointing authority decides to fill a post under Article 29 (2) of the Staff Regulations and if, for that reason, it does not clearly state all the conditions required of the candidates, it must nevertheless indicate in an appropriate manner that the procedure in question constitutes a derogation from the normal provisions relating to recruitment.

25 In any event, an infringement of that requirement does not automatically mean that the disputed measure is void but may in certain circumstances justify the award of damages, if the person concerned has suffered injury as a result. Since the applicant has not submitted a claim to that effect, the Court is not required to decide on that point.

26 The submission is therefore unfounded and the application must be dismissed.

T H E C O U R T (Second C h a m b e r )

hereby:

1. Dismisses the application;

2. Orders the Parliament to pay the costs of the proceedings including those of the applicant.

Pescatore Due Bahlmann

Delivered in open court in L u x e m b o u r g on 19 M a y 1983.