C-306/81

defendant,

A P P L I C A T I O N for t h e a n n u l m e n t of the decision of the Selection C o m m i t t e e of July 1981 n o t to accept the applicant's c a n d i d a t u r e for the post of H e a d of the G r e e k L a n g u a g e Division in the D i r e c t o r a t e - G e n e r a l for Information and Public Relations, in > charge of the Athens Information Office,

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

composed of: P . Pescatore, President of C h a m b e r , O . D u e and K. Bahlmann, Judges,

Advocate G e n e r a l : S. R o z è s Registrar: H . A. R ü h i , Principal Administrator

gives the following

The facts of the case and the submissions European Communities, C 148 of 18 and arguments of the parties may be July 1981, at p. 3, giving a detailed summarized as follows: description of the duties of the official and setting out the conditions of eligibility for the post, namely, in particular, "a university degree or I — F a c t s and p r o c e d u r e equivalent professional experience, a proven experience of public relations and journalism" and "thorough acquaintance with European problems". The notice At the beginning of 1981, the European further stated that the vacant post was to Parliament decided to recruit an official be classified in Grade A 3 ; it did not for the post of Head of the Greek however include any limit as to the Language Division in the Directorate- candidates' age. General for Information and Public Relations in charge of the Athens Infor- mation Office. The President of the European Parliament decided to initiate A selection committee was therefore the procedure for filling that post in the appointed. It held its opening meeting on first place by means of promotion or 7 July 1981 and laid clown on that transfer. To that end, Vacancy Notice occasion the criteria for the selection of No 2924 was displayed at the European candidates. Those criteria included inter Parliament on 3 March 1981 and alia "proven experience of at least 10 brought to the notice of the officials of years in public relations and journalism" other institutions. According to the and an age-limit according to which defendant, that notice failed to achieve candidates were required to be "between the desired result. For that reason and 35 and 50 years of age (in other words, basing its decision on the very specific to have been born between 1 August nature of the post in question, the 1931 and 1 August 1946)". The criteria administration of the European Par- were not published in the Official liament decided to apply the procedure Journal; nor were they displayed on provided for in Article 29 (2) of the Staff notice boards or brought to public Regulations in order to fill the post. By attention in any other manner. The letter of 6 May 1981, it notified the Joint applicant, who was born on 15 April Committee of its intention and asked the 1947, submitted his application for the committee for its opinion. In the course post in question by an application form of its meeting of 7 May 1981, the Joint dated 17 July 1981 and received by the Committee gave its approval to the selection committee on 20 July 1981, application of the above-mentioned that is to say, within the prescribed procedure in the circumstances of the period. case.

committee examined the 146 applications Advocate General, the Court (Second received and decided to regard as valid Chamber) decided to open the oral 16 of that number. It rejected the other procedure. It requested the European 130 including that.of the applicant. Parliament, the Council and the Commission of the European Com- By letter of 7 August 1981, the chairman munities to explain the normal practice of the selection committee notified Mr adopted by them for the organization of Verros that his candidature had not been recruitment procedures such as that in accepted on the ground that he did not question. come within "the category of those between 35 and 50 years of age — a limit laid down by the committee itself II •—• C o n c l u s i o n s of t h e p a r t i e s (more precisely those born between 1 August 1931 and 1 August 1946)". In reply to that letter, on 14 August 1981, In his application, the applicant claims the applicant submitted a complaint to that the Court should : the Secretariat-General of the European Parliament, in which he maintained that Annul the selection committee's decision the age-limit had not been mentioned in not to accept the applicant's candidature the notice of competition published in for the post of Head of the Greek the Official Journal and that in view of Language Division in charge of the that fact he continued to regard himself Athens Information Office; as a candidate for the post in question. Annul the appointment made or to be That complaint was dismissed by letter made; of 2 September 1981 from the chairman of the selection committee. The latter Order the defendant to pay the costs. referred to Article 29 (2) of the Staff Regulations and explained that "the provisions concerning competitions in In his reply, by way of a clarification of Annex III to the above-mentioned Staff the second point listed above, he claims Regulations are not of course applicable that the Court should: in this competition and selection committees have a wider and more Annul the President of the European flexible discretion in laying down criteria Parliament's appointment of Giorgios considered appropriate." Papadopoulos to the post which took effect on 1 January 1982. ' In the meantime, by decision of the President of the European Parliament, The defendant, in its defence, contends Giorgios Papadopoulos was appointed to that the Court should : the post in question with effect from 1 January 1982. Take formal note that the defendant leaves the question of the admissibility of On 26 November 1981, the applicant the application to the Court; brought this action, which was lodged at the Court Registry on 1 December 1981, Dismiss the substance of the action; against the selection committee's decision not to accept his candidature. Order the applicant to pay the costs.

In its rejoinder, the defendant contends for it. It follows that if an age-limit that the Court should: is imposed, mention thereof must necessarily be made in the vacancy Dismiss as inadmissible the second and notice. Laying down criteria for third submissions formulated in the reply assessment in advance tends to ensure relating to the annulment of the disputed that candidates' qualifications will be decision; considered objectively and that arbitrary decisions will be excluded. The In any event, dismiss the three formalities provided for in Article 5 of submissions as unfounded. Annex III should be regarded as essential. In so far as the notice of competition published in the Official Ill — Submissions and argu- Journal makes no mention of any age- m e n t s of the p a r t i e s limit, the exclusion of a candidate on the ground that he does not satisfy that requirement amounts to an infringement A — Admissibility of the action of the first paragraph of Article 5 of Annex III to the Staff Regulations, as The defendant does not dispute the may be seen from the case-law of the admissibility of the action as regards the Court.' submission put forward in the application. However, in relation to the The defendant replies, in its defence, that second and third submissions in the the selection committee did not fix the reply, the defendant maintains in its age-limit at a late stage, namely after rejoinder that, in view of the fact that receipt of the applicant's candidature they were not advanced in the which was submitted on 17 July 1981, application, the said submissions but in the course of its opening meeting constitute fresh issues. Article 38 (1) (c) on 7 July 1981. Furthermore, in fact and of the Rules of Procedure provides that in law, the selection committee is auth- the initial application must contain "the orized to limit the age of candidates. subject-matter of the dispute and the grounds on which the application is based"; fresh issues raised in the reply Indeed, a minimum age is necessary in are therefore inadmissible. view of the importance of the vacant post and in accordance with the administrative principle that a head of B — Substance division should not be younger than his subordinates. In any event, the defendant As regards the substance, the applicant considers that it is clear that the age- claims that the selection committee of limit was not established with the the European Parliament arbitrarily intention of excluding the applicant. altered the conditions of eligibility for the vacant post in such a way as to In law, the imposition of an age-limit is introduce a new requirement which was justified on the basis of Article 29 (2) of not envisaged in the notice of the Staff Regulations which authorizes, competition itself and which made his in exceptional cases, a recruitment candidature inadmissible. The basic procedure other than the competition function of a notice of competition is to procedure. Consequently, the strict rules give those interested the most accurate information possible about the conditions 1 — Judgments of 14 December 1965, Case 21/65 Morina of eligibility for the post to enable them [1965] ECR 1033 and of 28 June 1979, Case 255/78 to judge whether they should apply Anlehnt and Corniani [1979] ECR 2323.

In his reply, the applicant claims, in a first submission, that it follows from Article 1 of Annex III to the Staff Regu- In his opinion, it is only possible to have lations that if an age-limit is imposed, it recourse to that article if the possibility is clear that mention of that fact must be has been envisaged in the vacancy notice made in the vacancy notice, and that or in any case in a document published failure to respect that requirement at a later stage. Moreover the defendant amounts to an infringement of that has failed to justify the reasons for which article. He bases his argument on the the vacant post required special judgment of the Court of 22 March 1972 qualifications, and to establish the (Case 78/71 Costacurta [19721 ECR existence of exceptional circumstances. 163). Such a justification is necessary to enable the Court to review the legality of a decision of that nature, especially in view In a second submission, the applicant of the fact that the existence of special maintains that the rejection of his candi- 2 — See in particular the judgments of 30 October 1974 Case 188/73 Grassi [1974] ECR 1099 and of 28 June 1979, Case 255/78 Anselme and Constant [19791 ECR 1 — Joined Cases 81 to 88/74 Marenco [197'5] ECR 1247. 2323.

VERROS v PARLIAMENT

As regards the failure to respect the spirit of Article 27 of the Staff Regulations, The defendant replies to those the European Parliament reminds the submissions only in the alternative. As Court that, in its view, recourse to regards the submission relating to the Article 29 (2) is not subject to any infringement of Article 29 (2) of the condition as to publication. It follows Staff Regulations, it contends, in its that the Staff Regulations do not provide rejoinder, that the conditions required for the vacancy notice to mention the for the application of the exceptional possibility that the article may be applied recruitment procedure provided for in and the Court in the above-mentioned that article are present in this case. The decisions has not held that it must post in question is one in a new Member include such a mention. State where European questions are particularly sensitive. It is therefore a delicate task to establish and sub- sequently develop contacts with the press In those circumstances, the defendant and other Greek media of information takes the view that the application of the and to disseminate information on the special recruitment procedure provided activities of the European Parliament in for in Article 29 (2) of the Staff Regu- specialized sectors such as, for example, lations is "fully detailed and sufficiently the universities and trade unions. In substantiated, objectively justified and in carrying out such a task regard must be total conformity as regards the pro- had to both the balance and the political cedural conditions". The submission peculiarities of the various sectors and advanced by the applicant is unjustified this requires an exceptional aptitude in and is unfounded in fact and in law. making extremely varied contacts together with thorough knowledge and experience of the political circles in In respect of the alleged infringement of Greece. It is therefore necessaiy for the Article 1 (g) and the first paragraph of person appointed to possess, in addition Article 5 of Annex III to the Staff Regu- to the qualities normally required, special lations the European Parliament notes qualifications such as long and proven that the provisions of Annex III which experience of journalism on the one govern competition procedures do not hand and of public relations on the apply to the procedure provided for in other. It is therefore clearly necessaiy to Article 29 (2). Even if they did apply,

The questions put by the Court In reply to the first question put by the IV — Oral p r o c e d u r e Court, namely whether vacant posts which are the subject of a recruitment At the sitting on 3 February 1983, the procedure on the basis of Article 29 (2) applicant, represented by J. M. of the Staff Regulations are Tavernier, and the European Parliament, systematically published in the Official represented by A. Bonn and M. Peter Journal or in the general press, the presented oral argument. Council replied that with a few The Advocate General delivered her exceptions such posts have never been opinion at the sitting on 17 March 1983.

Decision

1 By application l o d g e d at the C o u r t Registry on 1 D e c e m b e r 1981, Constantin V e r r o s , Press Attaché at the G r e e k Embassy in Brussels, 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 c a n d i d a t u r e 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 - General for Information and Public Relations of the E u r o p e a n Parliament, in

VERROS v PARLIAMENT

charge of the Athens Information Office, and, in addition, for the annulment 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 in charge of the Athens Information Office.

The second submission alleges an infringement of Article 1 (1). (g) of Annex III to the Staff Regulations in view of the fact that the age-limit was not listed as a condition for possible admission in the vacancy notice issued by the administration of the Parliament. The third submission alleges an infringement of Article 29 (2) of the Staff Regulations, on the ground that the substantive conditions for the application of that article were lacking.

A d m i s s i b i l i t y of t h e s e c o n d a n d t h i r d s u b m i s s i o n s

s The Parliament contends that the second and third submissions which were formulated for the first time in the reply must be regarded as fresh issues and cannot therefore be considered by the Court.

9 Article 42 (2) of the Rules of Procedure of the Court provides that no fresh issue may be raised in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the written procedure. However, the Court observed in its judgment of 30 September (Case 108/81 Amylum v Council [\9%1\ ECR 3107), that a submission which may be, regarded as "amplifying a submission made previously", directly or by implication in the original application, must be considered admissible.

io The Court notes that the second submission is closely connected with the first submission alleging an infringement of the first paragraph of Article 5 of Annex III to the Staff Regulations, which is cited in the application. In those circumstances, that second submission constitutes by implication a branch of the first submission, and must therefore be regarded as admissible.

15 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.

16 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.

17 Moreover, as regards the applicant's argument to the effect that the appointing authority is required to observe all the rules of Annex III in

JUDGMENT OF 19. 5. 1983 — CASE 306/81

connection with the competition because, in applying the special procedure of Article 29 (2) of the Staff Regulations, it relied heavily on those rules, it should be observed that in this case such an argument is not valid, principally because, under that procedure, there is no obligation to observe the rules relating to competitions, and because the fact that the appointing authority referred to part of those rules can in no circumstances be regarded as creating an obligation on its part.

18 That applies in particular to the requirement that an age-limit, if there is one, must 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.

On those grounds,

T H E C O U R T (Second Chamber)

hereby:

1. Dismisses the application:

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

Pescatore Due Bahlmann