T-50/89

JUDGMENT OF 22. 5. 1990 — CASE T-50/89

treated as experience, there is no reason the organization of legal studies in the why the alternate periods of vocational Federal Republic of Germany, should not training and vocational activity be treated in their entirety as relevant completed by a Referendar during his experience. Vorbereitungsdienst, in the framework of

JUDGMENT OF T H E C O U R T OF FIRST INSTANCE (Fourth Chamber) 22 May 1990*

In Case T-50/89

Jürgen Sparr, a lawyer living in Hamburg (Federal Republic of Germany), repre- sented by L. Schulze and G. Meyer, Rechtsanwälte, Hamburg, with an address for service in Luxembourg at the office of Gerd Recht, c/o Fulton Prebon SA, 25, rue Notre-Dame,

applicant,

APPLICATION for the annulment of the decision of the Selection Board in Open Competition COM/A/621 refusing to admit the applicant to the tests in that competition,

THE C O U R T O F FIRST INSTANCE (Fourth Chamber)

composed of: D. A. O. Edward, President of Chamber, R. Schintgen and R. Garcia-Valdecasas, Judges,

Registrar: B. Pastor, Administrator

having regard to the written procedure and further to the hearing on 4 April 1990,

gives the following

JUDGMENT OF 22. 5. 1990 — CASE T-50/89

'have at least two years' experience since obtaining the degree or diploma referred to at (a) commensurate with the duties described at I above and relevant to one of the fields covered by the competition: details of this experience should be given on the application form.

Duly attested periods of specialist or refresher training, or further training courses leading to a diploma of a level at least equivalent to that required for admission to the competition, relevant to the duties described under I above will also count as experience'.

The duties in question are defined in Section I as administrative, advisory and supervisory duties, following general guidelines, in (1) Personnel and Adminis- tration, (2) External Relations and (3) Information/Communication. The applicant chose External Relations.

3 When he submitted his application, the applicant was a Referendar— an official title given in the Federal Republic of Germany to persons who have passed the First State Law Examination, which is in principle taken after three and a half years of studies at university — and as such was undergoing practical training in the form of the Vorbereitungsdienst, which at the end of two and a half years leads to the Second State Law Examination.

4 The Selection Board, having regard to German law and without examining the actual content of the duties carried out by the applicant during the training period, took the view that the Vorbereitungsdienst undertaken by the applicant as a Referendar was a 'further training course' within the meaning of Section II B 2(b) of the Notice of Competition, which must lead to a diploma if it is to count as experience. The Selection Board considered that it could not be taken into account unless the person concerned had passed the Second State Examination.

(1) (a) annul the decision of 18 July 1988 in the version of the decision of 6 October 1988 rejecting his complaint;

(b) order the Commission of the European Communities to admit the applicant to a test corresponding to the test in Competition COM/A/621 but not to be held in the framework of, or at the same time as, another competition open to lawyers;

(2) in the alternative, order the Commission of the European Communities to admit the applicant to a test corresponding to the test in Competition C O M / A / 6 2 2 (assistant administrators) held parallel to Competition C O M / A / 6 2 1 , such test, however, not to be held in the framework of, or at the same time as, another competition open to lawyers;

(3) order the defendant to pay the costs.

8 The defendant contends that the Court should:

(1) dismiss the application as unfounded:

12 Upon hearing the Report of the Judge-Rapporteur, the Court of First Instance decided to open the oral procedure without any preparatory inquiry. However, it requested the parties to reply before the hearing to a number of questions concerning the specific duties performed by the applicant during his training period as a Referendar, the previous practice of selection boards in competitions in this regard and the relevant legislation, and to produce supporting documents. It is clear from the certificates produced by the applicant at the request of the Court of First Instance that during his Vorbereitungsdienst he worked for the Staatsan- waltschaft (Public Prosecutor's Office), Hamburg, the Amtsgericht (Local Court), Hamburg-Altona, the Oberfinanzdirektion (Principal Revenue Office), Hamburg, Messrs Schön and Pflüger, Rechtsanwälte, Hamburg, the Verwaltungsgericht (Administrative Court), Hamburg, the Hanseatisches Oberlandesgericht Hamburg (Higher Regional Court of the Hanseatic City of Hamburg), the Directorate- General for Competition of the Commission of the European Communities and Messrs Schulze and Meyer, Rechtsanwälte, Hamburg.

1 3 The hearing took place on 4 April 1990. The representatives of the parties submitted oral argument and answered questions asked by the Court.

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SPARR v COMMISSION

Substance

1 4 Although the application is formally directed against the Commission Decision of 18 July 1988, which is in reality only the letter by which the Commission informed the applicant of the decision adopted in his regard by the Selection Board and which, considered on its own, is not a measure open to challenge, the Court considers that there is no doubt as to the true subject-matter of the dispute and that the application clearly seeks the annulment of the decision not to admit him to the tests taken by the Selection Board for Competition COM/A/621.

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therefore refuses to recognize the periods completed by the applicant as a Referendar as experience within the meaning of the Notice of Competition.

18 Since the Notice of Competition makes no reference to the national law applicable to the candidates as regards the definition of the experience required, the Court considers that it must be interpreted exclusively in the light of the aims of the competition in question, as set out in the general description of duties contained in the Annex to the Notice of Competition. Discrimination between candidates of different nationalities can be eliminated only by interpreting the concept of 'experience' in accordance with rules specific to each competition. An interpret- ation on the basis of the national law of each candidate would inevitably lead to differences in treatment, in view of the differences between the post-graduation systems in the individual Member States.

19 In this case, Open Competition COM/A/621 was organized to constitute a reserve of administrators whose duties are to be administrative, advisory and supervisory, in three fields of Community activity: Personnel and Administration, External Relations and Information/Communication. The description of duties contained in the Annex to the Notice of Competition does not mention, for any of those three fields, duties which require of candidates a specific qualification to practise as a lawyer or perform a judicial function.

20 The special conditions laid down by the Notice of Competition require candidates to have at least two years' experience or have completed duly attested periods of specialist or refresher training, or a further training course leading to a diploma. Departing from the interpretation given to a similar notice of competition in a previous competition (COM/A/403) in 1984, the Selection Board for the compe- tition in this case, referring to German law, treated the Vorbereitungsdienst completed by the applicant as a further training course.

25 Consequently, the applicant's claim must be upheld.

26 It is unnecessary to examine the other submissions and arguments put forward by the applicant, since it follows from the considerations set out above that the contested decision must be annulled.

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Costs

27 Under Article 69(2) of the Rules of Procedure of the Court of Justice, applicable mutatis mutandis to the Court of First Instance by virtue of the third paragraph of Article 11 of the Council Decision of 24 October 1988, 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.

Delivered in open court in Luxembourg on 22 May 1990.

H. Jung D. A. O. Edward Registrar President of the Fourth Chamber

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