Avis juridique important

Judgment of the Court (Second Chamber) of 28 March 1968. - Dietrich Kurrer v Council of the European Communities. - Case 33-67. European Court reports French edition Page 00187 Dutch edition Page 00180 German edition Page 00190 Italian edition Page 00170 English special edition Page 00127 Danish special edition Page 00473 Greek special edition Page 00711 Portuguese special edition Page 00783

Summary Parties Subject of the case Grounds Decision on costs Operative part

++++

1 . OFFICIALS - RECRUITMENT - VACANCY NOTICES AND NOTICES OF COMPETITION - SPECIFIC REQUIREMENTS - DEFINITION OF DUTIES - SPECIAL DETAILS - POWERS OF THE APPOINTING AUTHORITY

( STAFF REGULATIONS OF OFFICIALS OF THE COMMUNITIES, ARTICLES 2, 4, 5 AND 29 AND ANNEX III, ARTICLE 1 )

2 . OFFICIALS - RECRUITMENT - VACANCY NOTICES AND NOTICES OF COMPETITION - SPECIFIC REQUIREMENTS - DEFINITION OF DUTIES - SPECIAL DETAILS - CRITERION OF NATIONALITY - KNOWLEDGE OF A SYSTEM OF NATIONAL LAW

( STAFF REGULATIONS OF OFFICIALS OF THE COMMUNITIES, ARTICLE 27 )

3 . OFFICIALS - RECRUITMENT - COMPETITION - PROMOTIONS COMMITTEE - JOINT COMMITTEE - POWERS - LIMITS

( STAFF REGULATIONS OF OFFICIALS OF THE COMMUNITIES, ARTICLES 9 AND 45, ANNEX II, ARTICLES 2 AND 3, ANNEX III, ARTICLE 1 )

4 . OFFICIALS - RECRUITMENT - COMPETITION OPEN TO A HIGHER GRADE OF A CAREER BRACKET - EXCEPTIONAL NATURE - CONDITIONS

( STAFF REGULATIONS OF OFFICIALS OF THE COMMUNITIES, ARTICLE 31(2 ))

1 . WHEN THE DEFINITION OF DUTIES ADOPTED BY THE INSTITUTION DOES NOT CONTAIN THE ESSENTIAL INFORMATION FOR PROCURING ( BY WAY OF VACANCY NOTICES OR NOTICES OF COMPETITION ) THE MOST SUITABLE APPLICATIONS FOR THE POSTS TO BE FILLED, IT IS FOR THE APPOINTING AUTHORITY, AS THE BODY RESPONSIBLE UNDER THE STAFF REGULATIONS FOR ISSUING THE NOTICES IN QUESTION TO ADD TO THE DEFINITION DRAWN UP BY THE INSTITUTION THE NECESSARY SPECIFIC REQUIREMENTS, HAVING REGARD TO THE NEEDS OF THE SERVICE .

IN SO FAR AS THE APPOINTING AUTHORITY KEEPS WITHIN THE DEFINITION LAID DOWN BY THE INSTITUTION, IT IS A PERMISSIBLE METHOD OF CARRYING OUT PROMOTIONS OR RECRUITMENT POLICY TO STIPULATE, AS REGARDS DUTIES CALLING FOR SPECIFIC QUALIFICATIONS, SPECIAL DETAILS WITH REGARD TO POSTS WHICH ARE THE SUBJECT OF VACANCY NOTICES OR NOTICES OF COMPETITION .

2 . ALTHOUGH THE STAFF REGULATIONS PROHIBIT THE RESERVATION OF A POST FOR NATIONALS OF ANY SPECIFIC MEMBER STATE, THE APPOINTING AUTHORITY MAY NEVERTHELESS LEGITIMATELY MAKE ITS CHOICE DEPEND, AS REGARDS THE RECRUITMENT OF AN OFFICIAL TO THE LEGAL DEPARTMENT, ON KNOWLEDGE AND EXPERIENCE OF A GIVEN NATIONAL LEGAL SYSTEM .

3 . THE PROMOTIONS COMMITTEE, AS REGARDS THE QUESTION WHETHER PROMOTION CAN BE EFFECTED WITHIN THE INSTITUTION, AND THE JOINT COMMITTEE, AS REGARDS THE DRAWING UP OF THE NOTICE OF COMPETITION, EXERCISE THEIR POWERS WITHIN THE FRAMEWORK OF THE POWERS CONFERRED BY THE STAFF REGULATIONS BOTH ON THE INSTITUTION ITSELF AND ON THE APPOINTING AUTHORITY AND HAVING REGARD TO THE SPECIAL FEATURES OF THE POST TO BE FILLED .

4 . IT IS ONLY PERMISSIBLE TO MAKE APPOINTMENTS BY WAY OF OPEN COMPETITIONS TO THE HIGHER GRADE OF A CAREER BRACKET IN EXCEPTIONAL CASES WHERE RECOURSE TO THE PROVISIONS OF ARTICLE 31(2 ) IS JUSTIFIED BY THE SPECIFIC NEEDS OF THE SERVICE, WHICH CALL FOR THE RECRUITMENT OF A SPECIALLY QUALIFIED OFFICIAL .

IN CASE 33/67

DIETRICH KURRER, PRINCIPAL ADMINISTRATOR AT THE SECRETARIAT GENERAL OF THE COUNCIL OF THE EUROPEAN COMMUNITIES, REPRESENTED BY WOLFGANG HEJERMANN, ADVOCATE AT THE LANDGERICHT, FRANKFURT-AM-MAIN, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF MRS M . -TH . FOTRE ( NEE KOPP ), BUREAU DE LIAISON DE LA FEDERATION DES SYNDICATS DU PERSONNEL DES ORGANISMES EUROPEENS,

APPLICANT,

V

COUNCIL OF THE EUROPEAN COMMUNITIES, REPRESENTED BY HANS JUERGEN LAMBERS, LEGAL ADVISER TO THE SECRETARIAT-GENERAL OF THE COUNCIL, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF MR E . REUTER, LEGAL ADVISER TO THE COMMISSION OF THE EUROPEAN COMMUNITIES, 2 PLACE DE METZ,

DEFENDANT,

APPLICATION FOR THE ANNULMENT OF VACANCY NOTICE NO 15/67 OF 20 MARCH 1967 AND OF NOTICE OF OPEN COMPETITION NO 36 OF 4 JULY 1967 FOR THE RECRUITMENT TO GRADE A4 OF A PRINCIPAL ADMINISTRATOR TO THE SECRETARIAT GENERAL OF THE COUNCIL,

P . 133

THE APPLICATION SEEKS THE ANNULMENT OF OF VACANCY NOTICE NO 15/67 OF THE COUNCIL OF 20 MARCH 1967 AND OF THE NOTICE OF OPEN COMPETITION NO 36 OF THE COUNCIL OF 4 JULY 1967 BOTH OF WHICH CONCERN A POST OF PRINCIPAL ADMINISTRATOR IN GRADE A4 IN CAREER BRACKET A4-A5 INVOLVING ADMINISTRATIVE AND ADVISORY DUTIES OF A LEGAL NATURE AND STIPULATING AS A PREREQUISITE, AMONGST OTHERS, AN EXTENSIVE KNOWLEDGE OF NETHERLANDS LAW AND OF PUBLIC INTERNATIONAL LAW AS WELL AS PROFESSIONAL EXPERIENCE OVER A CONSIDERABLE PERIOD IN THESE MATTERS .

P . 134

THE APPLICATION ALSO SEEKS THE ANNULMENT OF ' ALL OTHER ADMINISTRATIVE MEASURES WHICH HAVE BEEN OR MAY BE TAKEN AS A RESULT OF THE CONTESTED VACANCY NOTICE '. SINCE IT WAS NOT SHOWN IN THE COURSE OF THE PROCEEDINGS THAT ANY SUCH MEASURES HAD BEEN TAKEN, THERE IS NO NEED TO ADJUDICATE UPON THIS HEAD OF THE CONCLUSIONS .

THE APPLICANT ASKS FOR THE ANNULMENT OF THE ABOVEMENTIONED NOTICES, SUBMITTING ARGUMENTS CONCERNING THE REQUIREMENTS SPECIFIED IN THE SAID NOTICES, HAVING REGARD TO THE APPOINTING AUTHORITY'S POWERS AND THE PROHIBITION OF ANY ALLOCATION OF POSTS ON THE BASIS OF NATIONALITY, THE EFFECT OF THESE REQUIREMENTS ON THE PREROGATIVES OF THE PROMOTIONS COMMITTEE AND THE JOINT COMMITTEE, AS WELL AS THE FACT THAT THE POST WAS DIRECTLY OPENED TO COMPETITION AT THE LEVEL OF THE HIGHER GRADE, A4, OF THE CAREER BRACKET OF PRINCIPAL ADMINISTRATOR .

THE SPECIFIC REQUIREMENTS STIPULATED IN THE VACANCY NOTICE AND IN THE NOTICE OF COMPETITION .

THE APPLICANT COMPLAINS ON THE ONE HAND THAT THE APPOINTING AUTHORITY EXCEEDED ITS POWERS BY ATTACHING SPECIFIC REQUIREMENTS TO THE DEFINITION OF DUTIES ESTABLISHED BY THE DECISION OF THE COUNCILS OF 7 OCTOBER 1963 PURSUANT TO THE SECOND SUBPARAGRAPH OF ARTICLE 5(4 ) OF THE STAFF REGULATIONS AND ON THE OTHER HAND THAT IT INFRINGED THE PROVISIONS OF THE REGULATIONS BY CHOOSING AS A DETAILED REQUIREMENT THE THEORETICAL AND PRACTICAL KNOWLEDGE OF THE NATIONAL LAW OF ONE OF THE MEMBER STATES, SINCE THE EFFECT OF THIS REQUIREMENT WAS TO RESERVE THE POST IN QUESTION TO THE NATIONALS OF THAT STATE, CONTRARY TO THE THIRD PARAGRAPH OF ARTICLE 27 .

BY THEIR DECISIONS OF 14 MAY AND 12 JUNE 1963, WHICH THE DEFENDANT HAS LODGED WITH THE COURT, THE COUNCILS CONFERRED UPON THEIR SECRETARY - GENERAL PURSUANT TO ARTICLE 2 OF THE STAFF REGULATIONS, AS REGARDS THE GRADES IN CATEGORY A WHICH ARE THE SUBJECT-MATTER OF THIS DISPUTE, THE POWERS DEVOLVING UPON THE APPOINTING AUTHORITY UNDER THE REGULATIONS . BY THEIR DECISION OF 7 OCTOBER 1963 THE COUNCILS ADOPTED THE DEFINITION OF DUTIES AND POWERS ATTACHING TO THE POSTS FOR WHICH PROVISION IS MADE BY THE REGULATIONS, AND IN PARTICULAR THE DEFINITION OF THE DUTIES ATTACHING TO POSTS IN THE CAREER BRACKET OF ' PRINCIPAL ADMINISTRATOR ', A5-A4 . THE DEFINITION ADOPTED BY THIS DECISION IS SO GENERAL THAT SIMPLY TO REPEAT IT IN VACANCY NOTICES OR IN NOTICES OF COMPETITION WOULD MAKE IT IMPOSSIBLE FOR THESE PUBLICATIONS PROPERLY TO ACHIEVE THEIR PURPOSE, AT LEAST AS REGARDS POSTS REQUIRING SOME SPECIAL QUALIFICATION, SUCH AS THOSE INVOLVING ADMINISTRATIVE AND ADVISORY DUTIES OF A LEGAL NATURE . SINCE THE INSTITUTION DID NOT ITSELF INDICATE, IN THE DECISION WHICH DEFINED THE DUTIES, THE ESSENTIAL INFORMATION FOR PROCURING, BY WAY OF VACANCY NOTICES OR NOTICES OF COMPETITION, THE MOST SUITABLE APPLICATIONS FOR THE POSTS TO BE FILLED, IT IS FOR THE APPOINTING AUTHORITY, AS THE BODY RESPONSIBLE UNDER THE STAFF REGULATIONS FOR ISSUING THE NOTICES IN QUESTION, TO ADD TO THE DEFINITION DRAWN UP BY THE INSTITUTION THE NECESSARY SPECIAL DETAILS, HAVING REGARD TO THE NEEDS OF THE SERVICE .

P . 135

IN SO FAR AS THE APPOINTING AUTHORITY KEEPS WITHIN THE DEFINITION LAID DOWN BY THE INSTITUTION, IT IS A PERMISSIBLE METHOD OF CARRYING OUT PROMOTIONS OR RECRUITMENT POLICY TO STIPULATE, AS REGARDS DUTIES CALLING FOR SPECIFIC QUALIFICATIONS, SPECIAL DETAILS WITH REGARD TO POSTS WHICH ARE THE SUBJECT OF VACANCY NOTICES OR NOTICES OF COMPETITION . THE FACT THAT THIS PROCEDURE, AS THE APPLICANT HAS REMARKED, HAD PREVIOUSLY BEEN THE EXCEPTION IN THE PRACTICE ADOPTED BY THE SECRETARIAT-GENERAL OF THE COUNCILS IN NO WAY AFFECTS ITS LEGALITY PROVIDED THAT IT IS USED IN THE INTEREST OF THE EFFICIENT ORGANIZATION OF THE SERVICE . THE COMPLAINT THAT THE APPOINTING AUTHORITY HAD NO POWER TO ADD SPECIFIC REQUIREMENTS TO THE GENERAL CRITERIA LAID DOWN IN THE DECISION OF THE COUNCILS OF 7 OCTOBER 1963 CANNOT THEREFORE BE UPHELD .

ARTICLE 27 OF THE STAFF REGULATIONS PROVIDES THAT RECRUITMENT SHALL BE DIRECTED TO SECURING FOR THE INSTITUTIONS THE SERVICES OF OFFICIALS POSSESSING THE HIGHEST STANDARD OF ABILITY AND ' RECRUITED ON THE BROADEST POSSIBLE GEOGRAPHICAL BASIS '. UNDER THE THIRD PARAGRAPH OF THAT ARTICLE, HOWEVER, ' NO POSTS SHALL BE RESERVED FOR NATIONALS OF ANY SPECIFIC MEMBER STATE '.

THE APPOINTING AUTHORITY DEMONSTRATED IN SUCCESSIVE NOTICES ITS INTENTION TO MAKE ITS CHOICE DEPEND NOT ON THE NATIONALITY BUT ON THE KNOWLEDGE AND EXPERIENCE OF THE CANDIDATE AS REGARDS, INTER ALIA, A GIVEN NATIONAL LEGAL SYSTEM . THIS PROCEDURE IS THE ONLY ONE WHICH CAN RECONCILE SIMULTANEOUSLY THE REQUIREMENTS OF THE COUNCILS' LEGAL DEPARTMENT, THE EFFICIENT RUNNING OF WHICH REQUIRES A BALANCED COMPOSITION OF STAFF, IN ORDER TO COMPLY WITH THE SPIRIT OF THE FIRST PARAGRAPH OF ARTICLE 27, AND THE PROHIBITION CONTAINED IN THE THIRD PARAGRAPH OF ARTICLE 27 OF THE STAFF REGULATIONS . IN A COMMUNITY COMPOSED OF STATES, EACH OF WHICH RETAINS ITS OWN NATIONAL LEGAL SYSTEM, IT IS ESSENTIAL THAT A WELL ORGANIZED LEGAL DEPARTMENT SHOULD INCLUDE, AS FAR AS POSSIBLE, OFFICIALS POSSESSING, APART FROM THEIR KNOWLEDGE OF INTERNATIONAL LAW AND OF THE ACTUAL LAW OF THE COMMUNITIES, A THEORETICAL TRAINING AND PRACTICAL EXPERIENCE IN ONE OR OTHER OF THE NATIONAL LEGAL SYSTEMS . IT HAS NOT BEEN SHOWN IN THE COURSE OF THE PROCEEDINGS THAT THE CHOICE OF CRITERION TO WHICH THE APPLICANT OBJECTS IN FACT SERVED ENDS OTHER THAN A CONCERN FOR THE PROPER FUNCTIONING OF THE DEPARTMENTS OF THE SECRETARIAT-GENERAL OF THE COUNCILS . THE COMPLAINT THAT THE CHOICE OF CRITERION SERVED TO SPECIFY MORE CLOSELY, IN THE VACANCY NOTICES AND NOTICES OF COMPETITION, THE REQUIREMENTS CONTAINED IN THE DECISION OF THE COUNCILS OF 7 OCTOBER 1963 CANNOT THEREFORE BE UPHELD .

CONSULTATION WITH THE PROMOTIONS COMMITTEE AND WITH THE JOINT COMMITTEE

THE APPLICANT MAINTAINS THAT THE CONTESTED VACANCY NOTICE, BY SPECIFYING VERY NARROWLY THE NATURE OF THE DUTIES AND POWERS ATTACHING TO THE POST TO BE FILLED AS WELL AS THE FORMAL QUALIFICATIONS, THE DEGREE OF EXPERIENCE AND KNOWLEDGE OF LANGUAGES REQUIRED, IMPROPERLY RESTRICTS THE AREA OF JURISDICTION AND THE SIGNIFICANCE OF THE CONSULTATION WITH THE PROMOTIONS COMMITTEE AND THE JOINT COMMITTEE .

P . 136

BY DECISION OF THE SECRETARY-GENERAL NO 185/64 OF 26 MAY 1964 THREE CONSULTATIVE PROMOTIONS COMMITTEES WERE SET UP WITHIN THE SECRETARIAT - GENERAL OF THE COUNCILS . ONE OF THEM RELATED TO CATEGORIES A AND B . THESE COMMITTEES ARE REQUIRED TO ADVISE THE APPOINTING AUTHORITY DURING THE CONSIDERATION UNDER ARTICLE 45(1 ) OF THE STAFF REGULATIONS, OF THE COMPARATIVE MERITS OF OFFICIALS ELIGIBLE FOR PROMOTION AND THE REPORTS MADE ON THEM . UNDER ARTICLE 9(1)(A ) OF THE STAFF REGULATIONS THERE SHALL BE SET UP WITHIN EACH INSTITUTION ONE OR MORE JOINT COMMITTEES . THE COMPOSITION AND WORKING METHODS OF THE JOINT COMMITTEE WERE LAID DOWN, AS REGARDS THE SECRETARIAT-GENERAL OF THE COUNCILS, IN ACCORDANCE WITH ARTICLES 2 AND 3 OF ANNEX II TO THE STAFF REGULATIONS BY DECISION OF THE COUNCILS OF 15 JULY 1963 . ARTICLE 1(1 ) OF ANNEX III TO THE STAFF REGULATIONS PROVIDES THAT WHERE A COMPETITION PROCEDURE IS INITIATED, THE JOINT COMMITTEE SHALL BE CONSULTED BEFORE THE APPOINTING AUTHORITY DRAWS UP THE NOTICE OF COMPETITION . THE PROMOTIONS COMMITTEE, AS REGARDS THE QUESTION WHETHER PROMOTION CAN BE EFFECTED WITHIN THE INSTITUTION, AND THE JOINT COMMITTEE, AS REGARDS THE DRAWING UP OF THE NOTICE OF COMPETITION, ARE REQUIRED TO GIVE THEIR OPINION TO THE APPOINTING AUTHORITY AT SUCCESSIVE STAGES OF THE PROCEDURE INITIATED FOR THE PURPOSE OF FILLING A PARTICULAR VACANT POST . THEY EXERCISE THEIR POWERS WITHIN THE FRAMEWORK OF THE POWERS CONFERRED BY THE STAFF REGULATIONS BOTH ON THE INSTITUTION ITSELF AND ON THE APPOINTING AUTHORITY AND HAVING REGARD TO THE SPECIAL FEATURES OF THE POST TO BE FILLED . IN SO FAR AS THE APPOINTING AUTHORITY HAS PROPERLY SPECIFIED THE NATURE OF THE POST AND THE ABILITIES WHICH IT CALLS FOR, THE PROMOTIONS COMMITTEE AND THE JOINT COMMITTEE ARE BOUND TO TAKE ACCOUNT OF SUCH SPECIFICATION WHEN EXERCISING THEIR ADVISORY POWERS . AS THIS WAS THE SITUATION IN THE PRESENT CASE, THE SUBMISSION THAT THESE COMMITTEES WERE NOT PROPERLY CONSULTED MUST THEREFORE BE REJECTED .

RECRUITMENT INTO GRADE A4

THE APPLICANT COMPLAINS THAT THE APPOINTING AUTHORITY OPENED THE COMPETITION DIRECTLY AT THE LEVEL OF GRADE A4 AND NOT AT THE LEVEL OF THE STARTING GRADE, A5, IN THE CAREER BRACKET OF ' PRINCIPAL ADMINISTRATOR '.

ARTICLE 31(1 ) LAYS DOWN THE RULE THAT OFFICIALS IN CATEGORY A MUST BE APPOINTED TO THE STARTING GRADE OF THEIR CATEGORY . PARAGRAPH ( 2 ) OF THE SAID ARTICLE CREATES AN EXCEPTION TO THIS RULE BY EMPOWERING THE APPOINTING AUTHORITY TO APPOINT, WITHIN CERTAIN LIMITS, DIRECTLY TO HIGHER GRADES THAN THE STARTING GRADE OF THE CATEGORY . IT IS NOT DISPUTED THAT IN THE PRESENT CASE THE APPOINTING AUTHORITY, BY OPENING THE COMPETITION AT THE LEVEL OF GRADE A4, REMAINED WITHIN THE BOUNDS LAID DOWN BY THIS LATTER PROVISION . HOWEVER, WHERE RECRUITMENT IS BY WAY OF COMPETITION TO THE HIGHER GRADE OF A CAREER BRACKET, THE SAID AUTHORITY MUST RECONCILE THE USE OF THE POWER RESERVED TO IT BY ARTICLE 31(2 ) WITH OBSERVANCE OF THE REQUIREMENTS WHICH RESULT FROM THE CONCEPT OF A CAREER BRACKET WITHIN THE MEANING OF ARTICLE 5 AND ANNEX I TO THE STAFF REGULATIONS . THE CONCEPT OF A CAREER BRACKET WOULD IN FACT LOSE ALL LEGAL SIGNIFICANCE IF THE APPOINTING AUTHORITY WERE ENTITLED TO THE SAME DEGREE OF FREEDOM IN THIS CASE AS IN THOSE OF THE OTHER GRADES . IT IS ONLY PERMISSIBLE TO MAKE APPOINTMENTS BY WAY OF OPEN COMPETITIONS TO THE HIGHER GRADE OF A CAREER BRACKET IN EXCEPTIONAL CASES WHERE RECOURSE TO THE PROVISIONS OF ARTICLE 31(2 ) IS JUSTIFIED BY THE SPCIFIC NEEDS OF THE SERVICE, WHICH CALL FOR THE RECRUITMENT OF A SPECIALLY QUALIFIED OFFICIAL .

P . 137

IN THE PRESENT CASE THE EXISTENCE OF SUCH A NEED, RESULTING IN PARTICULAR FROM A PATENT IMBALANCE IN THE COMPOSITION OF THE LEGAL DEPARTMENT OF THE SECRETARIAT-GENERAL OF THE COUNCILS, HAS BEEN PROVED IN THE COURSE OF THE PROCEEDINGS . THE REQUIREMENTS WITH REGARD TO TRAINING, EXPERIENCE AND AGE STIPULATED IN THE CONTESTED NOTICES DEMONSTRATE THAT THE APPOINTING AUTHORITY PROPOSED TO FILL THE VACANT POST BY APPOINTING AN OFFICIAL HAVING THE QUALIFICATIONS CORRESPONDING TO THE HIGHER GRADE OF THE CAREER BRACKET IN QUESTION . ACCORDINGLY THE APPOINTING AUTHORITY COULD, PURSUANT TO ARTICLE 31(2 ), PROPERLY OFFER A POST IN THE HIGHER GRADE OF CAREER BRACKET A5-A4 TO BE FILLED BY MEANS OF AN OPEN COMPETITION . THE COMPLAINT DIRECTED AGAINST THIS PROCEDURE CANNOT, THEREFORE, BE UPHELD .

THE APPLICANT HAS FAILED IN HIS SUBMISSIONS .

UNDER ARTICLE 70 OF THE RULES OF PROCEDURE, IN PROCEEDINGS COMMENCED BY SERVANTS OF THE COMMUNITIES, THE COSTS INCURRED BY THE INSTITUTIONS MUST BE BORNE BY THE LATTER .

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . DISMISSES APPLICATION 33/67;

2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .