61981CJ0289_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 289/81
VASSILIS MAVRIDIS, RESIDING AT 19 VOUKOURESTIOU STREET, ATHENS, REPRESENTED BY P . DAGTOGLOU, ADVOCATE, OF ATHENS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF CARLA MANZO, 52 RUE POINCARE,
APPLICANT,
V
EUROPEAN PARLIAMENT, REPRESENTED BY MARTIN SCHMIDT, DIRECTOR OF PERSONNEL AND SOCIAL AFFAIRS, ASSISTED BY CONSTANTINOS STRATIGAKIS, AN ADMINISTRATOR IN THE LEGAL AND ADMINISTRATIVE QUESTIONS DIVISION OF THE EUROPEAN PARLIAMENT, ASSISTED BY ALEX BONN OF THE LUXEMBOURG BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE LATTER ' S CHAMBERS, 22 COTE D ' EICH,
Subject of the case
APPLICATION FOR THE ANNULMENT OF DECISION NO 00361806 OF THE SELECTION BOARD OF 7 AUGUST 1981 RELATING TO THE REJECTION OF THE APPLICANT ' S CANDIDATURE FOR THE POST OF HEAD OF THE GREEK LANGUAGE DIVISION OF THE DIRECTORATE-GENERAL FOR INFORMATION AND PUBLIC RELATIONS, IN CHARGE OF THE ATHENS INFORMATION OFFICE,
Grounds
1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 11 NOVEMBER 1981, VASSILIS MAVRIDIS, RESIDING IN ATHENS, BROUGHT AN ACTION FOR THE ANNULMENT OF THE DECISION OF THE SELECTION COMMITTEE OF THE EUROPEAN PARLIAMENT OF 7 AUGUST 1981 REFUSING TO CONSIDER HIS CANDIDATURE FOR THE POST OF HEAD OF THE GREEK LANGUAGE DIVISION OF THE DIRECTORATE-GENERAL FOR INFORMATION AND PUBLIC RELATIONS OF THE EUROPEAN PARLIAMENT, IN CHARGE OF THE ATHENS INFORMATION
OFFICE, AND, IN ADDITION, FOR THE ANNULMENT OF THE SELECTION PROCEDURE AND 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 OF THE ATHENS INFORMATION OFFICE .
3 THE VACANCY NOTICE INCLUDED A DETAILED DESCRIPTION OF THE DUTIES OF THE HEAD OF DIVISION AND THE CONDITIONS OF ELIGIBILITY FOR THE VACANT POST . IT SHOULD BE NOTED THAT THE LEGAL BASIS FOR THE PROCEDURE ADOPTED WAS NOT INDICATED AND NO MENTION WAS MADE OF ANY AGE-LIMIT .
4 IN THE COURSE OF ITS OPENING MEETING, THE SELECTION COMMITTEE FIXED THE CRITERIA FOR THE SELECTION OF THE CANDIDATES, AND DECIDED, IN PARTICULAR, THAT CANDIDATES MUST BE ' ' BETWEEN 35 AND 50 YEARS OF AGE ( IN OTHER WORDS HAVE BEEN BORN BETWEEN 1 AUGUST 1931 AND 1 AUGUST 1946 ) ' ' .
5 THE APPLICANT, WHO WAS BORN BEFORE 1 AUGUST 1931, SUBMITED HIS CANDIDATURE TOGETHER WITH 145 OTHER CANDIDATES . AS A RESULT OF THE AGE CRITERION IMPOSED, THE CHAIRMAN OF THE SELECTION COMMITTEE NOTIFIED THE APPLICANT BY LETTER OF 7 AUGUST 1981 THAT IT HAD DECIDED THAT HIS CANDIDATURE WAS UNACCEPTABLE .
6 THE APPLICANT BROUGHT AN ACTION AGAINST THE SELECTION COMMITTEE ' S DECISION DIRECTLY BEFORE THE COURT WITHOUT FIRST SUBMITTING A COMPLAINT UNDER ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS .
7 IN SUPPORT OF HIS ACTION, THE APPLICANT RELIES ON THREE SUBMISSIONS, THE FIRST OF WHICH ALLEGES AN INFRINGEMENT OF THE FIRST PARAGRAPH OF ARTICLE 5 OF ANNEX III TO THE STAFF REGULATIONS ON THE GROUND THAT THE SELECTION COMMITTEE HAD ADDED THE CONDITION AS TO AGE TO THE CONDITIONS SET OUT IN THE VACANCY NOTICE ; THE SECOND SUBMISSION ALLEGES AN INFRINGEMENT OF ARTICLE 1 ( 1 ) OF ANNEX III TO THE STAFF REGULATIONS INASMUCH AS THE AGE-LIMIT HAD BEEN FIXED BY AN AUTHORITY LACKING IN COMPETENCE ; THE THIRD ALLEGES A BREACH OF THE PRINCIPLE OF THE PROTECTION OF THE APPLICANT ' S LEGITIMATE EXPECTATION INASMUCH AS NO PRIOR INDICATION OF THE FACT THAT THE PROCEDURE UNDER ARTICLE 29 ( 2 ) OF THE STAFF REGULATIONS WAS TO BE APPLIED WAS GIVEN TO THE APPLICANT .
ADMISSIBILITY
8 THE PARLIAMENT MAINTAINS THAT THE ACTION IS INADMISSIBLE ON THE GROUND THAT THE APPLICANT SHOULD HAVE PURSUED THE COMPLAINT PROCEDURE AS A NECESSARY PRELIMINARY STEP TO THE INTRODUCTION OF AN ACTION BEFORE THE COURT . IT SUBMITS THAT WITHIN THE FRAMEWORK OF THE SPECIAL RECRUITMENT PROCEDURE PROVIDED FOR IN ARTICLE 29 ( 2 ) OF THE STAFF REGULATIONS, THE APPOINTING AUTHORITY OF THE PARLIAMENT WAS ENTITLED TO CONSIDER AND MODIFY AN AGE-LIMIT FIXED BY THE SELECTION COMMITTEE .
9 ON THE OTHER HAND, THE APPLICANT SUBMITS THAT A COMPLAINT DIRECTED AGAINST THE DISPUTED DECISION OF THE SELECTION COMMITTEE WOULD HAVE BEEN DEVOID OF PURPOSE AND SUPERFLUOUS BECAUSE SUCH A DECISION LIKE THAT OF A SELECTION BOARD FOR A COMPETITION COULD NOT HAVE BEEN AMENDED BY THE APPOINTING AUTHORITY .
10 IT APPEARS FROM THE PAPERS IN THE CASE THAT THE PARLIAMENT DECIDED TO APPLY ARTICLE 29 ( 2 ) OF THE STAFF REGULATIONS, ACCORDING TO WHICH A PROCEDURE OTHER THAN THE COMPETITION PROCEDURE MAY BE ADOPTED FOR THE RECRUITMENT OF GRADE A 1 OR A 2 OFFICIALS AND, IN EXCEPTIONAL CASES, ALSO FOR RECRUITMENT TO POSTS WHICH REQUIRE SPECIAL QUALIFICATIONS AND THAT THE PARLIAMENT ENTRUSTED THE TASK OF SELECTING CANDIDATES SUITABLE FOR THE VACANT POST TO A SELECTION COMMITTEE .
11 SUCH A TASK NECESSARILY IMPLIES THAT THE PARLIAMENT DELEGATES A CONSIDERABLE DISCRETION TO THE SELECTION COMMITTEE, IN PARTICULAR IN RESPECT OF THE CRITERIA FOR SELECTION . IT FOLLOWS THAT THE APPLICANT, WHO WAS UNAWARE OF THE TYPE OF PROCEDURE ADOPTED BY THE PARLIAMENT, WAS ENTITLED TO CONSIDER THAT THE DECISIONS OF THE COMMITTEE ON THE ADMISSIBILITY OF CANDIDATURES WERE FINAL IN NATURE AND THAT THE PARLIAMENT WAS NO LONGER IN A POSITION TO ALTER THEM . HE WAS, THEREFORE, JUSTIFIED IN CONCLUDING THAT THE PRELIMINARY COMPLAINT WAS A FORMALITY DEVOID OF ANY PRACTICAL SIGNIFICANCE .
12 THE APPLICATION IS THEREFORE ADMISSIBLE .
SUBSTANCE
13 IN SUPPORT OF HIS FIRST TWO SUBMISSIONS, THE APPLICANT CLAIMS THAT THE DISPUTED DECISION CANNOT HAVE BEEN BASED ON THE CRITERION OF AN AGE-LIMIT INASMUCH AS THAT CRITERION WAS NOT MENTIONED IN THE VACANCY NOTICE AND WAS ADDED SUB
SEQUENTLY BY THE SELECTION COMMITTEE, WHICH THUS ARBITRARILY ALTERED THE CONDITIONS OF ELIGIBILITY FOR THE VACANT POST, AND INASMUCH AS THE AGE-LIMIT HAD BEEN ESTABLISHED BY AN AUTHORITY LACKING IN COMPETENCE .
14 THE PARLIAMENT RAISES THE OBJECTION THAT THE ABOVE-MENTIONED PROVISION OF ANNEX III TO THE STAFF REGULATIONS RELATES TO NOTICES OF COMPETITION AND IS THEREFORE NOT APPLICABLE, SINCE THIS CASE CONCERNS THE EXCEPTIONAL RECRUITMENT PROCEDURE PROVIDED FOR IN ARTICLE 29 ( 2 ) NOT THAT OF ARTICLE 29 ( 1 ) OF THE STAFF REGULATIONS . THAT ARTICLE, THE PARLIAMENT STATES, NEITHER DEFINES NOR EXPLAINS THE SPECIAL PROCEDURE WHICH IT AUTHORIZES AND LEAVES THE CHOICE OF THE MOST APPROPRIATE MEANS FOR FILLING THE VACANT POST TO THE APPOINTING AUTHORITY . IN THOSE CIRCUMSTANCES, THE PROCEDURE APPLIED WAS NOT SUBJECT TO ANY OBLIGATION AS TO PRIOR PUBLICATION EITHER OF ALL OR ANY OF THE CRITERIA APPLICABLE .
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 THAT APPLIES IN PARTICULAR TO THE REQUIREMENT THAT AN AGE-LIMIT, IF THERE IS ONE, SHOULD 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 .
18 IT FOLLOWS THAT THE TWO SUBMISSIONS ARE NOT WELL FOUNDED .
19 IN HIS THIRD SUBMISSION, THE APPLICANT CLAIMS THAT BY IMPOSING AN AGE-LIMIT AS AN ADDITIONAL CONDITION FOR ELIGIBILITY WITHIN THE FRAMEWORK OF THE PROCEDURE UNDER ARTICLE 29 ( 2 ) OF THE STAFF REGULATIONS, WITHOUT GIVING ANY PRIOR INDICATION TO THAT EFFECT, THE SELECTION COMMITTEE BREACHED THE PRINCIPLE OF THE PROTECTION OF THE LEGITIMATE EXPECTATION OF THE INDIVIDUAL IN RESPECT OF THE COMMUNITY ADMINISTRATION .
20 THE PARLIAMENT DENIES THAT AN INDIVIDUAL WHO IS NOT A MEMBER OF THE STAFF OF THE INSTITUTIONS MAY RELY ON THAT PRINCIPLE BECAUSE HE IS MERELY A CANDIDATE FOR A VACANT POST . IN ANY EVENT, EVEN IF THE PRINCIPLE WERE APPLICABLE IN SUCH A CASE, THE PARLIAMENT CLAIMS, ITS APPLICATION WOULD NOT BE JUSTIFIED IN THE CIRCUMSTANCES OF THIS CASE .
21 CONTRARY TO THE PARLIAMENT ' S ASSERTION, IT MUST BE DECLARED THAT THE RIGHT TO RELY ON THE PRINCIPLE OF THE PROTECTION OF LEGITIMATE EXPECTATION IS NOT RESTRICTED TO THE STAFF OF COMMUNITY INSTITUTIONS BUT EXTENDS TO ANY INDIVIDUAL WHO IS IN A SITUATION IN WHICH IT APPEARS THAT THE ADMINISTRATION ' S CONDUCT HAS LED HIM TO ENTERTAIN REASONABLE EXPECTATIONS .
22 AS REGARDS RECRUITMENT, THE COURT HAS ALREADY HAD OCCASION TO EMPHASIZE THE ESSENTIAL FUNCTION OF NOTICES OF COMPETITION WITHIN THE FRAMEWORK OF THE RECRUITMENT PROCEDURE PROVIDED FOR IN ARTICLE 29 ( 1 ) OF THE STAFF REGULATIONS, NAMELY TO GIVE THOSE CONCERNED THE MOST ACCURATE INFORMATION POSSIBLE ABOUT THE CONDITIONS OF ELIGIBILITY FOR THE POST TO ENABLE THEM TO JUDGE WHETHER THEY SHOULD APPLY FOR IT ( SEE IN PARTICULAR THE JUDGMENT OF 28 JUNE 1979, CASE 255/78 ANSELME V COMMISSION ( 1979 ) ECR 2323 AND THE JUDGMENT OF 18 FEBRUARY 1982, CASE 67/81 RUSKE V COMMISSION ( 1982 ) ECR 661 ). IT MUST BE NOTED THAT THE PROVISIONS OF ANNEX III TO THE STAFF REGULATIONS NEED NOT BE APPLIED IN THE CONTEXT OF THE SPECIAL PROCEDURE OF ARTICLE 29 ( 2 ). NEVERTHELESS, THE APPOINTING AUTHORITY IS REQUIRED TO RESPECT THE PRINCIPLE OF THE PROTECTION OF LEGITIMATE EXPECTATION AND CANDIDATES MAY RELY ON THAT PRINCIPLE .
23 AS THE COURT HELD IN ITS JUDGMENT OF 29 OCTOBER 1975 ( JOINED CASES 81 TO 88/74 MARENCO V COMMISSION ( 1974 ) ECR 1247, PARAGRAPH 21 OF THE DECISION ), A DECISION TO HAVE RECOURSE TO ARTICLE 29 ( 2 ) MADE DURING THE COURSE OF A RECRUITMENT PROCEDURE WHICH HAS BEEN INITIATED NEED NOT
NECESSARILY BE TAKEN WHEN THE VACANCY NOTICES ARE PUBLISHED AND NEED NOT BE PUBLISHED IN THE OFFICIAL JOURNAL .
24 HOWEVER, IF THE APPOINTING AUTHORITY DECIDES TO FILL A POST UNDER ARTICLE 29 ( 2 ) OF THE STAFF REGULATIONS AND IF, FOR THAT REASON, IT DOES NOT CLEARLY STATE ALL THE CONDITIONS REQUIRED OF THE CANDIDATES, IT MUST NEVERTHELESS INDICATE IN AN APPROPRIATE MANNER THAT THE PROCEDURE IN QUESTION CONSTITUTES A DEROGATION FROM THE NORMAL PROVISIONS RELATING TO RECRUITMENT .
25 IN ANY EVENT, AN INFRINGEMENT OF THAT REQUIREMENT DOES NOT AUTOMATICALLY MEAN THAT THE DISPUTED MEASURE IS VOID BUT MAY IN CERTAIN CIRCUMSTANCES JUSTIFY THE AWARD OF DAMAGES, IF THE PERSON CONCERNED HAS SUFFERED INJURY AS A RESULT . SINCE THE APPLICANT HAS NOT SUBMITTED A CLAIM TO THAT EFFECT, THE COURT IS NOT REQUIRED TO DECIDE ON THAT POINT .
26 THE SUBMISSION IS THEREFORE UNFOUNDED AND THE APPLICATION MUST BE DISMISSED .
Decision on costs
COSTS
27 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . HOWEVER, ACCORDING TO THE SECOND SUBPARAGRAPH OF ARTICLE 69 ( 3 ), THE COURT MAY ORDER EVEN A SUCCESSFUL PARTY TO PAY COSTS WHICH THE COURT CONSIDERS THAT PARTY TO HAVE UNREASONABLY OR VEXATIOUSLY CAUSED THE OPPOSITE PARTY TO INCUR .
28 IT SHOULD BE NOTED THAT THIS ACTION RESULTS FROM THE FACT THAT THE PARLIAMENT FAILED TO INDICATE IN THE NOTICE OF COMPETITION THAT IN THE CASE IN QUESTION THE SPECIAL RECRUITMENT PROCEDURE PROVIDED FOR IN ARTICLE 29 ( 2 ) OF THE STAFF REGULATIONS WAS TO BE APPLIED .
29 IN PROCEEDING AS IT DID, IT PROVOKED AN UNDERSTANDABLE ERROR ON THE PART OF THE APPLICANT AND CAUSED HIM TO INCUR THE EXPENSE OF AN ACTION, TO NO AVAIL . IT MUST THEREFORE BE ORDERED TO PAY THE APPLICANT ' S COSTS .
Operative part
ON THOSE GROUNDS,
THE COURT ( SECOND CHAMBER )
HEREBY :
1 . DISMISSES THE APPLICATION ;
2.ORDERS THE PARLIAMENT TO PAY THE COSTS OF THE PROCEEDINGS INCLUDING THOSE OF THE APPLICANT .