C-85/82

JUDGMENT OF 30. 6. 1983 — CASE 85/82

examination of the comparative merits The institution reconciles those re- of the various candidates, in accord- quirements when, in those cases ance with the conditions specified in where the qualifications of the various the vacancy notice and the principles candidates are clearly the same, it laid down by Article 27 of the Staff makes nationality the overriding Regulations. criterion in order to maintain or re- establish a geographical balance among its staff. However, in any other circumstances, the need to redress a geographical imbalance must 3. The combined provisions of Articles 7 be subordinated to the requirements and 27 of the Staff Regulations of the interest of the service and the provide that when any Community consideration of the personal merits institution recruits, promotes or of the candidates. assigns its officials to posts, it must be guided on the one hand by the The appointing authority is thus interests of the service without regard empowered to make nationality the to nationality and on the other hand decisive criterion provided, however, must ensure that they are recruited on that it first establishes on the basis of the widest possible geographical basis a comparative examination that the from among nationals of the Member qualifications of the candidates are States of the Communities. clearly the same.

In Case 8 5 / 8 2

BERNHARD S C H L O H , an official of t h e Council of t h e E u r o p e a n C o m m u n i t i e s , assisted a n d represented b y E d m o n d Lebrun, of t h e Brussels Bar, with an address for service in L u x e m b o u r g at t h e C h a m b e r s of T o n i Biever, 83 Boulevard G r a n d e - D u c h e s s e - C h a r l o t t e , applicant, v

composed of: A. O'Keeffe, President of Chamber, G. Bosco and T. Koopmans, Judges,

Advocate General: G. Reischl Registrar: P. Heim

gives the following

JUDGMENT

Facts and Issues

I — Facts and written procedure To assist the Director General and, under his supervision, maintain the By Notice No 83/81 F of 17 June 1981 appropriate contacts necessary in order of die General Secretariat, the officials to evaluate the importance of factors of the Council were informed of the enabling work to progress; vacancy of die newly-created post of Director of the Budget and the Staff To cany out specialized high-level Regulations (Category A, Grade 2), research in the above-mentioned fields, whose duties were described as follows: based on an extensive knowledge of the general policy of the European "To manage, under the direct authority Communities." of the Director General, an adminis- trative unit with responsibility for: The qualifications required were the following: The budget and financial regulations/ accounts; Staff Regulations; "To be in Category A, Grade A 2;

By Decision No 817/81 of 11 September By letters of 31 July 1981, the Secretary 1981, adopted under Article 29 (2) of the General, in his capacity as appointing Staff Regulations of Officials, the authority, rejected all the applications. appointing authority appointed to the The 14 candidates who were not of vacant post J. J. Kasel, a Luxembourg Luxembourg nationality received an national, 35 years of age, who had been identical letter worded as follows: in the service of the Commission since 1 January 1981, as a temporary servant, "With reference to your request for in Grade A 3 with the duties of assistant transfer in connexion with the post of Chef de Cabinet to Gaston Thorn. Pre- Director in Directorate General A, viously, according to the information Directorate III, and after considering contained in the communication NOVA your application, I regret to inform you 11/81 of 10 September 1981, Mr Kasel, that I have been unable to accept it. In in his capacity as an official of the order to fill the post, I am obliged to Ministry of Foreign Affairs of the Grand take into account not only the Duchy of Luxembourg, performed knowledge and experience required for the duties of Chef de Cabinet to the this management post but also the need Vice-President of the Luxembourg to maintain an appropriate geographical Government (November 1979), of First balance." Secretary in the Luxembourg Embassy in

SCHLOH v COUNCIL

"Your complaint of 15 October 1981 has Upon hearing the Report of the Judge- been fully considered. After a thorough Repporteur and the views of the investigation, I can see no reason for Advocate General, the Court (Fi.rst reversing my previous decision, which Chamber) decided to open the oral falls within the wide discretionary power procedure without any preliminary and freedom of decision vested in the inquiry. However, it requested the appointing authority in this matter. Council to furnish, before the sitting, the Moreover, the procedure adopted in this minutes of the meeting of 15 and 16 instance is precisely that adopted for the September 1980 and to give written large majority of appointments in Grades replies to certain questions. The Council A 1 and A 2 within the Council." complied with those requests within the period prescribed. A memorandum of 15 February 1982, also issued by the Secretary General of the Council, referred to those decisions in the following terms: I I — C o n c l u s i o n s of t h e p a r t i e s

"With further reference to my The applicant claims that the Court memorandum of 18 December 1981 and should: to the interview of 5 February last, I should like to make it clear that the last sentence in my memorandum was merely A. Primarly a commentary on the decision contained in the first sentence and in consequence 1. Declare the application to be it cannot strictly be said to form part admissible and well founded; of that decision. You may therefore disregard it. 2. In consequence:

As far as the future is concerned, I can 2.1. Annul the decision, notified assure you, as I did in my address of to the applicant by the letter 5 February last, that for the period of my of 31 July 1981, rejecting his term of office as Secretary General, I in application for the post of no way intend to depart from the normal Director of the Budget and procedure for the appointment of Staff Regulations (Directorate officials to posts in grade A 2. General A, Directorate III);

2.2. Annul the decision, communi- I l l — Submissions and argu- cated to him by the memor- m e n t s of t h e p a r t i e s andum of 18 December 1981, supplemented by the memor- andum of 15 February 1982, First submission rejecting his complaint of 12 October 1981; The applicant relies on the infringement 2.3. Annul the decision of 11 of Article 29 (1) (c) in conjunction with September 1981 appointing the third paragraph of Article 4 of the Mr Kasel to the post of Staff Regulations inasmuch as the Director of the Budget and appointing authority proceeded to make Staff Regulations (Directorate the disputed appointment without first General A, Directorate III) ; bringing the vacancy of the post in 3. Order the defendant to pay the question to the notice of the staff of costs; other Community institutions, although the above-mentioned provisions of the Staff Regulations require it to consider B. In the alternative any requests for transfer from officials in other institutions before applying Article Before deciding on the substance of 29 (2). the case, 1. Order the defendant to produce The Council does not dispute the facts as , the application · forms for set out by the applicant; indeed, without promotion to the post in question; considering the substance of the submission, it contends that, in support 2. Order the Secretary General of of an action for the annulment of an the Council to explain the precise appointment, the applicant may raise reasons which, as appointing only objections which relate to him authority, led him to: personally and not the personal Reject the applications for objections of other confirmed or promotion to the post in question potential candidates (judgment of the of 14 Grade A 3 officials who Court of 29 October 1975, in Joined were not of Luxembourg nationa- Cases 81 to 88/74, Marenco and Others, , lity, and in particular that of the [1975] ECR 1247, at p. 1255). Since the applicant; applicant in this 'case has no personal interest in raising the objection, the Decide to employ the procedure submission is inadmissible. of Article 29 (2) of the Staff Regu- lations; The applicant leaves to the Court the Appoint Mr Kasel to the post in question of the admissibility of the question, under the said procedure submission. However, he observes that of Article 29 (2). the duty of institutions to respect the provisions relating to recruitment corresponds to a public interest. In any The Council of the European Com- event, he considers that, even if the munities contends that the Court should : alleged infringement could not in theory Declare the action admissible but be relied on as such, it may be taken into unfounded; account as one of the factors establishing misuse of power (relied on in the third Order the applicant to pay the costs. submission).

The Council replies that the mere fact an official in the Luxembourg Ministry that the protection conferred on officials of Foreign Affairs, with duties requiring by the Staff Regulations was introduced a knowledge of both economics and of in the public interest does not in itself the general policy of the Communities). empower the applicant to act in the interest of the law or of the institutions and it therefore repeats its contention that the submission is inadmissible. Secondly, the Council considers that an appointment to Grade A 2 under Article 29 (2) of the Staff Regulations does not require special qualifications. Such qualifications are necessary only for the Second submission recruitment under the above-mentioned provisions of technical staff in grades lower than A 2. In respect of higher-level posts, in other words the "staff officer" posts, the institution enjoys a wide The applicant claims that the appointing discretion and considerable freedom in authority infringed Article 29 (2) of the the assessment of the interests of the Staff Regulations inasmuch as it service, since the posts concerned appointed a person from outside the demand qualities and abilities which are Communities, who has not been shown essentially human, such as the ability to to possess the special qualifications lead, to maintain contacts of an required for the vacant post or indeed, extremely high level and to co-ordinate, according to the curriculum vitae rather than technical skills. Therefore published by the Council administration, there is nothing to prohibit an institution entirely lacked such qualifications. from appointing persons to Grade A 2 whose technical expertise is inferior to that of A 3 officials already employed, since officials of the highest level normally depend on specialized assistants The Council first states, that, as a for technical knowledge. temporary servant of the Commission in Grade A 3 since 6 January 1981, Mr Kasel was not, at the time of the appointment, a person from outside the Communities. On the contraiy, he was In this case the appointing authority entrusted with duties which were of studied the applications which it had particular value for the acquisition of received and then proceeded to write to experience in matters concerning 'the the candidates to inform them that their general policy of the Communities". In applications could not be accepted any event, in specific terms Mr Kasel because their experience and quali- was particularly well-qualified to fill the fications did not correspond to the post in question, by reason of his specific duties of the vacant post, a academic qualifications (he had a special newly-created management post. It was degree in administrative law and was a entirely reasonable to resort to a graduate in economics and finance of the procedure other than that of competition Institut d'Études Politiques de Paris in order to appoint a person possessing [Institute of Political Studies, Paris]) and special abilities at management level. In his experience gained in former posts (as the letters, the appointing authority also legal adviser to a bank and subsequently emphasized the need to maintain an

The applicant claims moreover that the application of the procedure under Article 29 (2) of the Staff Regulations According to the Council, the applicant's implies that, at the very least, the person view amounts to maintaining that higher- appointed should not have qualifications level posts may only be filled by which are inferior to those of officials promotion on grounds of seniority, a already employed who are eligible for proposition which is not supported by promotion to the post in question. The the provisions of the Staff Regulations. Staff Regulations do not in any way provide that Grades A 1 and A 2 are to be considered as "staff officer" posts, requiring exclusively the ability to lead, to maintain high-level contacts" and to co-ordinate; the supposed "ability to The applicant observes that although Mr maintain high-level contacts" is Kasel was not a person completely "from meaningless, whilst the ability to lead is outside the Communities" on his required for any management post and appointment to the post in question he the ability to co-ordinate is necessary for did not have the status of an official. all posts in Category A. There is no That is sufficient to provide grounds for impassable barrier between, on the one the applicant's complaint. hand, Grades A 7 to A 3 and on the other hand, Grades A 2 and A 1. Many officials now in Grade A 2 within the Council were, at some stage in their career, officials in Grade A 5. Further, two of the fourteen officials who applied As regards the special technical for the post in question were, on 27 July knowledge, which in any case Mr Kasel 1981, promoted to Grade A 2. Despite lacks, the applicant concedes that it is that fact, on 31 July 1981, they too not generally a necessary condition for received a letter of rejection which was the recruitment of officials in grades A 1 identical to that of the other candidates. and A 2. He considers however that, Thus the same appointing authority in this case, such knowledge is within the space of four days, considered indispensable. That conclusion is based them to be suitable and then unsuitable on the description of the duties of the to carry out the duties of a director. post and in particular on the fact that its holder must be capable of carrying out " specialized high-level research" in matters relating to the budget and the Staff Regulations. In addition, the appointing authority itself stated that The applicant further considers that the such technical qualifications were defendant is attempting to attribute to necessary in the letter rejecting the the letter of 31 July 1981 a meaning

The Council does not deny that the In its rejoinder, the Council denies that technical element is also an important the applicant's views are supported by factor in the qualification for the post in the provisions of the Staff Regulations or question. However, it considers that it is in the vacancy notice for the post in necessary to see that element in the question. Article 29 2) of the Staff Regu- particular context of a management post. lations refers to two clearly distinct The duties performed by officials in possibilities; the recruitment of officials Categoiy A are distinguished as follows: in Grades A 1 and A 2 (first part), and recruitment to posts in Grades below A 2 which require special qualifications, in exceptional circumstances (second part). It is solely in respect of the second possibility that it may be argued that the institution ought to have ascertained (a) advisory duties, corresponding to the whether it was possible to fill the vacant lower grades, involving the analysis post by the normal procedure — namely of specific problems which must be promotion, internal competition or integrated into a wider scheme; transfer of officials from other institutions — before applying the exceptional provision. On the other hand where an official in A 2 was to be appointed, in the interests of the service the appointing authority was perfectly (b) planning duties corresponding to the entitled to appoint a person who was a intermediate grades, involving the temporary servant in Grade A 3, since analysis of a group of problems and the vacancy notice required solely that study of solutions thereto; the candidate be in Grade A 2 or A 3.

If the advisory and planning duties undoubtedly require a degree of co-ordi- The Council objects that, at the time of nation and vice versa, it may not the disputed appointment, Luxembourg nevertheless be denied that for posts at nationals were not sufficiently re- the highest level, the ability to lead, to presented in Category A within the maintain contacts at a very high level Council, and contends that nationality and to co-ordinate with a view to the may override other factors in order to realization of the general policy of the maintain the geographical balance, Communities are decisive requirements, where the candidates' qualifications are which clearly prevail over the technical equal, as the Court has repeatedly element. declared. In any event, as in this case the qualifications of the candidates are equal, the defendant relies on the In any event, the Council continues to appointing authority's freedom to assess assert that Mr Kasel possesses both the the needs of the service and the above-mentioned abilities to lead, to individual qualities of officials. maintain contacts and to co-ordinate, and outstanding technical knowledge, as may be seen from his academic As regards the misuse of power, the qualifications and his experience. It does defendant considers that the applicant's not appear, on the other hand, that the view is not supported by objective, applicant possesses special expertise in relevant and consistent facts, capable of matters concerning the budget or the showing that the decision was taken so Community civil service. The appointing as to achieve ends other than that of the authority may therefore scarcely be said interest of the service, as is required by to have exceeded the limits of its the established case-law of the Court. discretion.

not represent an overriding factor in The appointing authority failed to bring favour of one candidate, but rather a the vacancy to the notice of staff in other ground for excluding all the other candi- institutions. dates, as is confirmed by the letters rejecting the applications of the officials who were not Luxembourg nationals. Mr Kasel lacked the qualifications required in the vacancy notice, and that is implicitly recognized by the defendant itself. On the question of the misuse of power, the applicant submits that it results from the fact that the post in question was By declaring, in its defence, that the reserved not only for a national of a applications of A 3 officials were specific Member State, but also for a examined "as far as was necessary", the specific person, even before the above- Council has admitted that the exam- mentioned procedure was commenced. ination was completed solely proforma. He then lists the facts supporting that view, which, in his opinion, are all consistent and relevant: The Agence Europe information sheet published the news of Mr Kasel's appointment even before the promotion procedure was concluded and at a time The applications of fourteen Grade A 3 when Mr Kasel was not yet entitled to officials who were not Luxembourg put himself forward as a candidate. nationals were rejected, without any assessment of their qualifications, solely on grounds of nationality. In his memorandum of 15 February 1982, the Secretary General of the Council wrote, in terms which are extremely indicative, that "as far as the The application of the only Luxembourg future is concerned" he gave an candidate was, on the other hand, assurance that he would not depart from rejected on the basis of considerations the normal procedure for the relating to his specific knowledge and appointment of A 2 officials. experience, although it is now main- tained that specific knowledge and experience are of no importance for the The minutes of the meeting of the post in question. Council of 15 and 16 September 1980 show that following the appointment of the new Secretary General of the Council (a Dane, in the position pre- Two of the officials whose applications viously occupied by a Luxembourg were rejected were, in the same period, national), "compensation . . . in the near promoted in Grade A 2, which shows future" was promised to the Luxembourg that, in reality, they possessed all the representative. qualifications necessary to fill a post in that grade; nevertheless, they received the same "standard" letter rejecting their It appears from an interview given to applications as the others. It may a newspaper by the Luxembourg Per- therefore be seen that no genuine exam- manent Representative to the European ination of the applications was Communities, Mr Dondelinger, that conducted. Mr Kasel's appointment was decided

Fourth submission

The defendant re-affirms, in addition, that Mr Kasel possesses the technical knowledge required for the post; the The applicant claims that the decision applicant, on the other hand, does not. rejecting his complaint constitutes an The Council again relies on the wide infringement of the second paragraph of discretion vested in the appointing Article 25 of the Staff Regulations, authority for questions concerning the which provides that any décision individual qualities of the officials whom adversely affecting an official must state it appoints, a power which is subject only the grounds on which it is based. In this to the interest of the service and manifest case, to reply to a complaint, carefully error of appraisal. It contends that it is researched in matters of both fact and sufficient to compare the qualifications law, and covering 15 pages, by a mere and experience of Mr Kasel and the few lines of affirmation, and to describe

SCHLOH v COUNCIL

The applicant replies that, in merely IV — R e p l i e s to the questions declaring that the decision taken falls p u t by the C o u r t within the wide discretion and the considerable freedom of decision which the authority enjoys in that sphere, the The Council replied to the questions put Council has simply restated a general to it by the Court as follows: principle which is, in reality, entirely unconnected with the present case. It, therefore, failed to furnish a statement of (a) Staff Notice No 83/81, together the grounds on which the decision was with the corrigenda thereto, was based, inasmuch as a reply of that nature communicated to the heads of

JUDGMENT OF 30. 6. 1983 — CASE 85/82

(b) The first notice of available posts was addressed exclusively to officials in Grade A 2. The appointing authority published a corrigendum which auth- V — Oral procedure orized officials in Grade A 3 to express their interest in the post in question, because it wished to be able also to consider the possibilities of filling the At the sitting on 20 January 1983, the post by means of promotion. It should be applicant, represented by E. Lebrun, and noted moreover that no official in Grade the Council, represented by Mr Dalcq A 2 expressed interest, whilst 17 officials and Mr. Grossman, acting as Agents, in Grade A 3 submitted applications as a presented oral argument. In the course result of the corrigendum. It was follow- of the sitting, Counsel for the applicant ing the publication of the corrigendum lodged a new document and the Court that the period for the submission of requested the Council to produce as applications had to be extended. quickly as possible other documents and to submit a written statement as to the precise nature of the procedure adopted for the appointment in question. (c) There is no documentation referring to the comparative examination of the candidates' qualifications. The The Council complied with those authority acted in accordance with the requests on 1 February 1983, and principles defined by the Court, in produced a file of documents containing, particular in its judgment of 11 May inter alia, a memorandum from the 1978, in Case 34/77, [1978] ECR 1099, Secretary General and the application at p. 1112, according to which forms sent to the Secretary General by the Director of Personnel and Administration. That file was also the authority enjoys wide discretionary communicated to the applicant, who, on powers as regards the recruitment and 17 February 1983, submitted a brief

4 The applicant, 16 other officials of the Council in Grade A 3 , including an official of Luxembourg nationality, Mr Feipel, and Mr Kasel, a temporary servant of the Commission in Grade A 3, submitted applications within the

JUDGMENT OF 30. 6. 1983 — CASE 85/82

prescribed period. An application was submitted after the period had expired by another Council official. The Secretary General of the Council, in his capacity as appointing authority, rejected all the applications of the Council officials by letters of 31 July 1981.

5 The letters sent to candidates who were not of Luxembourg nationality are identical and contain the following statements of reasons for the rejection of the applications:

" . . . In order to fill the post, I am obliged to take into account not only the knowledge and experience required for this management post but also the need to maintain an appropriate geographical balance."

On the other hand, in the letter sent to the official of Luxembourg nationality, Mr. Feipel, the following reasons are given for the rejection :

". . . the Assistent Chef de Cabinet, J. J. Kasel, is, moreover leaving the service of the Commission in September to become a director in the Council secretariat."

8 By Decision No 817/81 of 11 September 1981, adopted in pursuance of Article 29 (2) of the Staff Regulations of Officials, the appointing authority appointed to the vacant post J. J. Kasel, a Luxembourg national, aged 35, who since 6 January 1981 had been in the service of the Commission as a temporary servant in Grade A 3 with the duties of Assistant Chef de Cabinet to the President of the Commission. It was revealed in the course of the oral procedure that Mr Kasel had submitted his application, dated 9 July, on 13 July 1981. The application was presented in the form of a letter, addressed directly to the Secretaiy General.

9 Following the rejection of their applications and the appointment of Mr Kasel, the applicant and 11 other officials submitted, on 15 October 1981, individual complaints under Article 90 (2) of the Staff Regulations. In particular, in his complaint, the applicant alleges that the appointment of Mr Kasel was simply the consequence of political agreements "on compensation" which were concluded in the course of the 655th Meeting of the Council on 15 and 16 September 1980, following the retirement of the Secretary General who was a Luxembourg national. The complaints were dismissed by identical decisions of the appointing authority of 18 December 1981, worded as follows:

"Your complaint of 15 October 1981 has been fully considered. After a thorough investigation, I can see no reason for reversing my previous decision, which falls within the wide discretionary power and freedom of decision vested in the appointing authority in this matter. Moreover the procedure adopted in this instance is precisely that adopted for the large majority of appointments in Grades A 1 and A 2 within the Council."

A similar examination of an internal candidate who had applied after the fixed time-limit took place on 24 July 1981.

On the basis of the above-mentioned comparative examinations I decided that none of the candidates should be appointed.

After this date no further candidature for the post in question was received.

My decision was communicated in writing to the Director General for Administration on 24 July 1981."

SCHLOH v COUNCIL

12 It was in the circumstances described above that Mr Schloh brought his action, in support of which he makes the following submissions :

1 4 The objection is well founded. Even though, as the applicant notes, the duty of the institutions to comply with the provisions relating to recruitment corresponds to a public interest, the applicant is not entitled to act in the interests of the law or of the institutions and may put forward, in support of an action for the annulment of an appointment, only such claims as relate to him personally. The submission must therefore be declared inadmissible.

JUDGMENT OF 30. 6. 1983 — CASE 85/82

The remaining submissions

is In his second submission, the applicant maintains that recourse to the exceptional procedure provided for in Article 29 (2) of the Staff Regulations for appointments to grades A 2 and A 1 implies that the person appointed following a procedure other than that of a competition and from outside the Community institutions should have qualifications which are at least equal to those officials who are already in the service and eligible for promotion to the post in question. The Council failed to observe those rules, inasmuch as the person appointed was from "outside" since he was not an official. Moreover he lacked the required qualifications set out in the vacancy notice, as was acknowledged by the appointing authority, by implication in its letters rejecting the "internal" applications. Mr Kaseľs lack of qualifications may be seen from his curriculum vitae published by the Council administration.

17 In the second place, the applicant claims that not only did the appointing authority reserve the vacant post for a Luxembourg national but, even before the procedure for filling the post was initiated, it set the post aside for a specific person, namely Mr Kasel, without taking into consideration his abilities and qualifications. The appointing authority's action therefore constitutes a misuse of power. In support of his view, the applicant lists a number of details, which in his view are all consistent and relevant and which establish the proof of the illegality of which he complains.

18 The Council, in the first place, maintains that Mr Kasel, far from lacking the qualifications required for the post, on the contrary is particularly well qualified to fill it, by reason of his academic degrees and the experience acquired in his former posts. Moreover, it asserts that, at the time of his appointment, he had been a temporary servant of the Commission in Grade A 3 for several months and could not therefore be regarded as a candidate from "outside the Community institutions".

19 The Council contends, in the second place, that an appointment to Grade A 2 made, as in this case, under Article 29 (2) of the Staff Regulations, does not require particular technical qualifications but "the ability to lead, to co- ordinate and to maintain contacts at a veiy high level". Further, the Council relies on the appointing authority's wide discretion to appraise the requirements of the service and the capacities and abilities of the officials to be appointed, in particular for the recruitment of officials in Grades A 1 and A 2.

22 Before the arguments put forward by the parties are considered it is appro- priate, initially, to establish the legal nature of the recruitment procedure adopted in this instance by the Council for the purpose of filling the vacancy of Director of the Budget and Staff Regulations (Grade A 2).

23 Article 29 (1) of the Staff Regulations provides that in order to fill vacancies in an institution, the appointing authority must first consider: (a) whether the post can be filled by promotion or transfer within the institutions; (b) whether to hold competitions internal to the institution; (c) what applications for transfer have been made by officials of other institutions of

SCHLOH v COUNCIL

the three European Communities; and then follow a procedure for competitions on the basis either of qualifications or of tests, or of both qualifications and tests. Article 29 (2) provides that a procedure other than the competition procedure may be adopted by the appointing authority for the recruitment of Grade A l or A 2 officials and, in exceptional cases, also for recruitment to posts which require special qualifications.

24 The applicant has claimed that in this case the recruitment procedure, in its first phase, is that of the promotion of officials within the institution, under Article 29 (1) (a) and, in its second phase, is that of recruitment without competition under Article 29 (2). The Council, on the other hand, maintains that the procedure adopted, being based on Article 29 (2) of the Staff Regu- lations, is different from that provided for in Article 29 (1), inasmuch as the Council, for the post in question, "wished to explore the possibilities in other institutions".

27 In order to ascertain whether that condition was fulfilled, the Court requested the Council to furnish the documents relating to the comparative examinatin of the qualifications of the candidates., The Council replied that such documents did not exist and the Court then requested the Council to state the date of the comparative examination of the candidates and any other factor which might be of use in establishing the circumstances in which the recruitment procedure was conducted. On 31 January 1983, the Council transmitted to the Court its replies and the documents requested, which included the memorandum of the Secretary General of the Council of 31 January 1983, mentioned above.

28 In the light of the foregoing considerations, it is first necessary to consider the submission as to the infringement of the last paragraph of Article 27 of the Staff Regulations according to which no posts may be reserved for nationals of any specific Member State.

29 The connection existing between the Council's decision of 15 and 16 September 1980 and the appointment of Mr Kasel to the post in question is the most important factor to be taken into account in order to assess the force of that submission.

30 That connection is derived from the debates which took place within the Council, in the course of its 655th Meeting, concerning the appointment of the new Danish Secretary General of the Council following the retirement of the previous Secretary General, who was a Luxembourg national. It may be seen from the minutes of that meeting that the Council first declared that the nationality of the new Secretary General must not have a detrimental effect

32 In his complaint of 15 October 1981 to the Secretaiy General of the Council, which is annexed to his application to the Court, the applicant maintained that, in the course of the 655th Meeting of the Council, the Luxembourg Minister for Foreign Affairs requested and obtained approval for the proposition that there should be a "Luxembourg official in Grade A 2" and "clearly expressed the view that it was not sufficient to promote a Luxem- bourg official in Grade A 3, already employed in the General Secretariat of the Council; a Luxembourg national from "outside the institution" would be presented (the so-called "parachute" procedure) In consequence, the applicant claims to be entitled to suppose that the Government of the Member State concerned and the appointing authority reached agreement in advance on the appointment of a specific person to a post, even before the appointing authority initiated the recruitment procedure, which must, in consequence, be regarded as unlawful. That complaint was dismissed by the appointing authority which made no response to the specific accusations

JUDGMENT OF 30. 6. 1983 — CASE 85/82

relating to the reservation of the newly-created A 2 post for a national of a specific State.

33 Evidence of the exceptional treatment accorded to Mr Kasel's candidature is confirmed by the irregularities vitiating the recruitment procedure adopted by the Secretary General as it is described in his above-mentioned memorandum of 31 January 1983.

35 It must be stated that the procedure as described above points to the absence of a comparative examination of the various applications validly submitted. Indeed, the Secretary General himself states that his decision to reject the applications from within the institution was taken on the basis of "comparative examinations" which he conducted exclusively in respect of the Council officials. In particular, of the two "comparative examinations" mentioned in the memorandum, the first, on 15 July 1981, related to the applications submitted within the period prescribed by the vacancy notice, and the second, on 24 July 1981, related to the application of Mr Sacchettini, also a Council official, who, however, submitted his application after the closing date. In accordance with the vacancy notice and the rules applicable to competitions, the appointing authority is required to disregard applications submitted after the expiry of the prescribed period, so that the examination of Mr Sacchettini's application could not, as indeed was the case, have any practical effect on the examination of the applications from

SCHLOH v COUNCIL

within the institution, validly submitted, which had already been conducted on 15 July. It follows that the sole basis on which the decision to reject the applications from within the institution was founded was the examination conducted before the expiry of the closing date for applications, namely 15 July 1981. That examination was carried out by the Secretary General in the presence of the Director General for Administration, the Director of Personnel and the Head of the Private Office. Since Mr Kasel's application was examined separately, on 24 July 1981, it follows that there was no comparative examination of all the candidates for the post in question.

ss It must therefore be concluded that, by reserving the post in question for a national of a specific Member State, the appointing authority of the Council infringed the third paragraph of Article 17 of the Staff Regulations.

JUDGMENT OF 30. 6. 1983 — CASE 85/82

39 It is therefore unnecessary to consider the other submissions advanced by the applicant against the decisions contested by him.

40 The decision of the Secretary General of the Council appointing J. J. Kasel to the post of Director of the Budget and Staff Regulations (Directorate General A, Directorate III), notified to the person concerned on 11 September 1981 must therefore be annulled; in consequence, the Secretary General's decisions rejecting the applicant's candidature and his complaint of 12 October 1981 which were notified to him on 31 July 1981 and 18 December 1981 respectively must alsó be annulled.

Costs

4i Under Article 69 (2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs. As the defendant has failed in its submissions, it must be ordered to pay the costs.

3. Orders the Council to pay the costs.

O'Keeffe Bosco Koopmans

Delivered in open court in L u x e m b o u r g on 30 J u n e 1983.

J. A. P o m p e A. O'Keeffe Deputy Registrar President of the First Chamber

O P I N I O N OF M R ADVOCATE GENERAL REISCHL D E L I V E R E D O N 10 M A R C H 1983 '

Mr President, the present proceedings, submitted Members of the Court, applications for the vacant post. They were all unsuccessful, as was another candidate who had submitted his In 1981 two new posts of director were application after the closing date. 17 of added to the list of posts of the Council the candidates were notified of their of Ministers. The Council allotted one of failure in identical letters of 31 July the posts to its Directorate General A for 1981, which included the following the newly created post of Director of the conclusive sentence: "en effet, pour Budget and Staff Regulations. l'occupation de ce poste, je suis tenu de prendre en considération non seulement The staff of the Council were informed les connaissances et expériences of the existence of that post by a notice professionnelles requises pour ce poste of 17 June 1981. The conditions for de direction mais aussi le maintien d'un applying and the closing date for équlibre géographique approprié" [in applications which appeared in that order to fill this post, I am obliged to notice were subsequently altered on 24 take into account not only the June and 6 July 1981. knowledge and experience required for this management post but also the need Before the expiry of the closing date on to maintain an appropriate geographical 22 July 1981 17 Grade A 3 officials of balance]. On the same date a Luxem- the Council, including the applicant in bourg applicant employed by the Council 1 — Translated from the German.