C-143/82

JUDGMENT OF' 28. 4. 1983 — CASE 143/82

-nature of the duties attaching to the 3, A candidate for a competition cannot posts and do not concern the rely to any purpose, in support of his conditions of recruitment. Those claim that the selection board's conditions are governed by the decision not to admit him should provisions of Article 29 and of Annex be annulled, upon conditions of III to the Staff Regulations and .there admission to another competition is nothing to prevent the conditions organized by the same institution in fixed by the notice of competition in order to fill posts in the same career relation to particular posts or bracket but according to different particular categories of posts from procedures and in pursuit of a being more rigorous than the different aim. minimum conditions arising out of the 4. There is no breach of the principle of classification of posts, whether in equality where a particular objective order to fill a particular vacant post rule is applied in the same manner to or to draw up a reserve in order to fill all officials or candidates . who are posts in a particular category. placed in the same position.

In Case 143/82

DAVID LIPMAN, an official of the Commission of the European Communities, residing at 152 Avenue Winston-Churchill, 1180 Brussels, assisted and represented by Edmond Lebrun of the Brussels Bar, 68 Rue Camille- Lemonnier, 1060 Brussels, with an address for service in Luxembourg at the Chambers of Tony Biever, Advocate, 83 Boulevard Grande-Duchesse- Charlotte,

applicant, v

COMMISSION OF THE EUROPEAN COMMUNITIES, represented by Hendrik Van Lier, a member of its Legal Department, acting as Agent, assisted by Daniel Jacob of the Brussels Bar, 93 Avenue Brillat-Savarin, 1050 Brussels, with an address for service in Luxembourg at the office of Mario Cervino, a member of its Legal Department, Jean Monnet Building, Kirchberg,

An order that the Commission should pay the costs.

2. In the alternative, prior to the decision on the substance of the application :

An order that all necessary measures of inquiry be adopted in order to determine whether or not the selection board had regard to the relevance of practical experience in relation to the officials who were candidates for the said Competition No COM / A / 325 ,

THE COURT (Third Chamber)

composed of: U. Everling, President of Chamber, Lord Mackenzie Stuart and Y. Galmot, Judges,

Advocate General: P. VerLoren van Themaat Registrar: H. A. Rühl, Principal Administrator

" On the closing date for applications, candidates must have completed : II — Written procedure and conclusions of the parties (a) A full university course, with degree or diploma, in an appropriate field (see section I) .. . By application lodged on 10 May 1982, the applicant brought an action against the Commission of the European (b) At least two years' experience since Communities. graduation of the following types :

In his application, the applicant claims — professional activity related to the that the Court should: option specified under I;

Annul the decision of the Selection — post-graduate studies with a Board for Open Competition No COM / degree or diploma related to the A/325 not to accept his candidature for option selected; the competition;

III — Submissions and argu­ Thirdly, he relies upon the provisions of ments of the parties Article 1 (d) of Annex III to the Staff Regulations of Officials of the European Communities which provides that the 1. The interpretation to be given to the notice of competition must specify "the provision of the notice of competition diplomas and other evidence of formal concerning the requirement of qualifications or the degree of experience experience required for the posts to be filled". He infers from that that the degree of The applicant claims that this provision, experience required depends only upon which states that candidates must have the establishment of practical experience "At least two years' experience since related to the post to be filled, regardless graduation ...", must be given a wide of whether that minimum experience was interpretation. In support of that view: acquired before or after the degree or diploma required in addition.

since the requirement of practical As regards the reference to Article 1 (d) experience was regarded as of secondary of Annex III to the Staff Regulations of importance, the same views must be Officials, the Commission considers that taken a fortiori of the condition relating the applicant's argument is unfounded, to the length of such experience. On the since the only purpose of that provision latter point, the applicant requests is to specify the headings which every measures of inquiry in order to notice of competition must contain and it determine whether or not the selection does not lay down rules relating to the board had regard to the relevance of precise content of such headings. practical experience in relation to the officials who were candidates for the competition. The Commission denies the allegation that the requirement in question is of secondary importance. It argues that the The Commission, on the other hand, term "complémentaire" is in no way considers that the contested provision of synonymous with "secondary" but means the notice of competition cannot be simply that the experience required must given a wide interpretation or regarded complement and therefore relate to the as of secondary importance. degree or diploma obtained. Again, it is clear from a reading of the entire sentence in the annex to Section I of the It contends that no interpretation, notice of competition that the words "In however wide, can have priority over a general,. . . should" concerns the type of clear text. In this case, since the language practical experience acquired and not the in the text of the notice of competition is requirement that the practical experience not ambiguous and the text contains no should have been acquired after substantive error, that notice cannot be graduation. Finally, the Commission subject to interpretation, as the Court affirms that the selection board did in has ruled on several occasions. It fact check whether the practical observes that the applicant has wrongly experience of all candidates was related relied upon the judgment in Newth. to the option chosen and states that the applicant provides no evidence in support of his allegations which are, moreover, It explains that the very intention of the unconnected with the dispute. appointing authority was that candidates admitted to the competition should have practical experience based upon theoretical knowledge acquired in a 2. Failure to observe Article 5 (3) of the university course, and therefore the Staff Regulations of Officials requirement laid down in the notice of competition corresponds to the aim pursued, is not "absurd" and is within The applicant claims that there was an the discretionary power of the insti­ infringement of Article 5 (3) of the Staff tution. Regulations of Officials of the European Communities, which provides that "Identical conditions of recruitment and Moreover, in its opinion that interpre­ service career shall apply to all officials tation follows very clearly from the first belonging to the same category or the paragraph of Section 5 of the "Guide to same service." In support of that Candidates taking part in Open submission; he puts forward two Competitions of the Commission". arguments :

The Commission considers that according to the well-established In relation to the first point, it contends case-law of the Court there is no that the applicant may not compare his discrimination where a particular rule, situation with that of candidates for based on objective factors, applies in the another competition of a different type same manner to all officials who are and organized in the framework of the placed in the same situation. That is the discretionary power of the appointing case here where the requirement of authority. practical experience after graduation was applied to all the candidates and is objective and compatible with the aim pursued by the appointing authority. On the second point, the Commission Equally, it considers that the existence of considers that the applicant's assertion is another competition which does not mistaken in fact and in law and that in contain the same requirement does not any event there is no point in ascer­ disclose a case of discrimination either, taining whether the requirement that since that competition is of a different practical experience should be related to type and was organized for the purpose the option chosen was checked in of enabling officials without a university relation to all the candidates, since Mr degree to enter Category A. As for the Lipman was not admitted to the nature of the duties performand by Mr competition on the ground that he had Lipman, the Commission considers that not had practical experience of a that does not affect the legality of the specified duration after graduation. decision taken.

Decision

1 By application lodged at the Court Registry on 10 May 1982, Mr David Lipman brought an action against the Commission of the European Communities for, on the one hand , the annulment of the decision of the Selection Board for Open Competition COM / A / 325 not to admit him to the tests in that competition alnd, on the other hand , an order that the Commission should re-open as regards him the procedure for that competition .

2 The competition in question was an open competition based on qualifications and tests, to constitute a reserve of administrators in the career bracket covering Grades 7 and 6 of Category A . The notice of competition ,

LIPMAN v COMMISSION

published in the Official Journal of the European Communities on 12 September 1981, required candidates first, to have completed a full university course, with degree or diploma, in an appropriate field, and secondly, to have at least two years' experience since graduation related to the option selected.

3 The applicant, an employee of the Commission recruited in 1973 as an official in Grade B 4 and then promoted to Grade B 3 in 1978, was assigned to the Directorate-General for External Relations in which he still works. Since 1977 he has been entrusted with'a number of duties attaching to Grade A 7. On 1 August 1981, he was awarded a Bachelor of Laws degree by London University. On 28 September 1981, he applied for admission to Competition COM / A / 325 , selecting external relations as his option.

6 First, the Court finds that the text whose application is at issue clearly states that only experience since graduation may be taken into account. Consequently, no interpretation can override such a clear text, especially where the purpose of the text closely corresponds to the intention of the appointing authority which has a wide discretion in this area. Nor, therefore can that requirement laid down in the notice of competition be regarded as being of secondary importance.

8 It follows from the foregoing considerations that the first submission must be rejected.

LIPMAN v COMMISSION

2. Submission based on the failure to observe Article 5 (3) of the Staff Regu- lations of Officials

9 Article 5 (3) of the Staff Regulations of Officials provides that "Identical conditions of recruitment and service career shall apply to all officials belonging to the same category or the same service." In support of the submission based on the failure to observe that provision, Mr Lipman on the one hand claims that the Notice of Internal Competition No COM / A / 4 / 81 published at the same time as the contested notice did not require the candi­ dates to be university graduates, so ruling out any condition concerning the time when their practical experience was aquired and, on the other hand, contends that other canditates were admitted to the tests in Competition No COM / A / 325 , even though their practical experience was not related to the option selected.

10 Those two arguments cannot be accepted. First, Mr Lipman cannot rely to any purpose upon conditions of admission to another Commission competition, which was organized according to different procedures and which pursued a different aim, in support of the claim, formulated in his conclusions, that the decision of the Selection Board in Competition No COM / A / 325 should be annulled; moreover, the second argument put forward in support of the submission is in any event invalid since it concerns the nature of the praticai experience and not whether or not that experience was obtained after graduation.

4. Submission on the disregard of the principle of proportionality

14 The applicant claims that the nature of the condition laid down in the notice of competition is clearly out of proportion to the very detrimental consequences which it has on the development of his career.

15 The Court can only find that, whatever the applicant's merits, the condition laid down in the notice of competition was not vitiated by any illegality and was properly applied by the Commission to Mr Lipman's case. Therefore the consequences of the contested decision cannot affect its legality, and the principle of proportionality cannot be successfully relied upon in this case.

II — Claim that the Commission should be ordered to re-open , as regards Mr Lipman , the procedure for Competition No COM / A / 325

16 The Court cannot, without trespassing upon the prerogatives of the administrative authority, order a competition to be opened or re-opened. Consequently, and in any event, such a claim is inadmissible.

LIPMAN v COMMISSION

hereby:

1. Dismisses the application;

2. Orders the parties to bear their own costs.

Everling Mackenzie Stuart Galmot

Delivered in open court in Luxembourg on 28 April 1983.

For the Registrar