61975CJ0022_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 22/75
BERTHOLD KUESTER, AN OFFICIAL OF THE EUROPEAN PARLIAMENT, RESIDING AT BERTRANGE ( LUXEMBOURG ), REPRESENTED BY VICTOR BIEL, ADVOCATE OF THE COUR SUPERIEURE DE JUSTICE OF THE GRAND DUCHY OF LUXEMBOURG, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF HIS COUNSEL, 18A RUE DES GLACIS, APPLICANT,
V
EUROPEAN PARLIAMENT, LUXEMBOURG, REPRESENTED BY ITS SECRETARY-GENERAL, HANS NORD, ACTING AS AGENT, ASSISTED BY ALEX BONN, ADVOCATE OF THE LUXEMBOURG BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ITS COUNSEL, 22 COTE D'EICH, DEFENDANT,
Subject of the case
APPLICATION FOR THE ANNULMENT OF INTERNAL COMPETITION A/50, FOR A POST OF HEAD OF DIVISION WITH THE DIRECTORATE-GENERAL FOR COMMITTEES AND INTERPARLIAMENTARY DELEGATIONS,
Grounds
1 BY APPLICATION SUBMITTED ON 19 FEBRUARY 1975 UNDER ARTICLE 91 OF THE STAFF REGULATIONS, THE APPLICANT ASKS THE COURT TO ANNUL THE IMPLIED REJECTION BY THE EUROPEAN PARLIAMENT OF HIS COMPLAINT OF 18 OCTOBER 1974 AND CONSEQUENTLY TO ANNUL INTERNAL COMPETITION A/50 OF 30 SEPTEMBER 1974, RELATING TO A POST OF HEAD OF DIVISION ( GRADE A 3 ) WITH THE DIRECTORATE-GENERAL FOR 'COMMITTEES AND INTERPARLIAMENTARY DELEGATIONS '.
2 IN SUPPORT OF HIS CONCLUSIONS HE SUBMITS THAT THE COMPETITION PROCEDURE WAS IRREGULAR, IN PARTICULAR BY REASON OF THE APPOINTING AUTHORITY'S DECISION TO HOLD IT WITHOUT PROVIDING PROOF OF COMPLIANCE WITH THE FORMALITIES LAID DOWN BY ARTICLE 29 ( 1 ) ( A ) OF THE STAFF REGULATIONS .
3 IN FACT, ACCORDING TO THAT ARTICLE, THE APPOINTING AUTHORITY CAN ONLY ORGANIZE A COMPETITION INTERNAL TO THE INSTITUTION SUCH AS PROVIDED FOR UNDER SUBPARAGRAPH ( B ) OF THE PARAGRAPH IN QUESTION WHERE IT APPEARS IMPOSSIBLE TO FILL THE VACANT POST BY WAY OF TRANSFER OR PROMOTION .
4 SINCE - EVEN IN THE OPINION OF HIS SUPERIORS - THE APPLICANT FULFILLED THE CONDITIONS REQUIRED FOR PROMOTION TO THE VACANT POST AND HAD SUBMITTED HIS APPLICATION, IT IS ALLEGED THAT SUCH PROOF CANNOT BE ADDUCED, SO THAT THE DECISION TO HOLD AN INTERNAL COMPETITION WAS ACCORDINGLY ILLEGAL .
5 THE EXISTENCE OF SEVERAL PERSONS ELIGIBLE FOR PROMOTION OR TRANSFER MAY LEAD THE APPOINTING AUTHORITY TO THE CONCLUSION THAT THE INTERESTS OF THE SERVICE AND THE IMPARTIALITY OF RECRUITMENT RENDER AN INTERNAL COMPETITION DESIRABLE .
6 THE APPLICANT'S ARGUMENT AMOUNTS TO ATTRIBUTING TO THE ASSISTANT OF AN OFFICIAL WHOSE POST BECOMES VACANT THE RIGHT TO SUCCEED HIM WHEREVER IT APPEARS FROM HIS FILE THAT HE HAS THE QUALIFICATIONS NECESSARY TO FILL THAT POST .
7 BOTH THE INTEREST OF THE SERVICE AND THE RIGHTS OF OTHER OFFICIALS MILITATE AGAINST THE ACCEPTANCE OF SUCH A CLAIM .
8 THE FACT THAT THE RECRUITMENT PROCEDURE IN QUESTION HAD THE PURPOSE OF FILLING A SINGLE POST AND NOT A NUMBER OF INDIVIDUAL POSTS IS OF NO IMPORTANCE .
9 THE SUBMISSION MUST THEREFORE BE REJECTED .
10 THE APPLICANT ALSO ARGUES THAT THE CONDITION CONTAINED IN THE VACANCY NOTICE, LAYING DOWN THAT 'FOR PRACTICAL REASONS, A THOROUGH KNOWLEDGE OF ENGLISH IS REQUIRED', IS NOT JUSTIFIED BY REASONS BASED ON THE INTERESTS OF THE SERVICE BUT AMOUNTS TO A DISGUISED METHOD OF RESERVING THE POST IN QUESTION FOR A PARTICULAR NATIONALITY .
11 IN SUPPORT OF THIS SUBMISSION THE APPLICANT ARGUES INTER ALIA THAT THE SYSTEM OF MARKING WHICH THE VACANCY NOTICE IN QUESTION LAYS DOWN FOR THE ORAL TEST BEARING ON THE 'KNOWLEDGE OF LANGUAGES' SHOWS THE DECISIVE IMPORTANCE ATTACHED TO A THOROUGH KNOWLEDGE OF ENGLISH, WHICH APPEARS AMONGST THE QUALIFICATIONS REQUIRED IN RESPECT OF A POSSIBLE APPOINTMENT .
12 FOR THESE REASONS THE NOTICE IN QUESTION IS ALLEGED TO INFRINGE THE FINAL PARAGRAPH OF ARTICLE 27 OF THE STAFF REGULATIONS, ACCORDING TO WHICH 'NO POSTS SHALL BE RESERVED FOR NATIONALS OF ANY SPECIFIC MEMBER STATE '.
13 WHILST THE STAFF REGULATIONS PROHIBIT THE RESERVING OF POSTS FOR NATIONALS OF ANY SPECIFIC MEMBER STATE, THE APPOINTING AUTHORITY MAY NEVERTHELESS MAKE ITS SELECTION, WHEN RECRUITING AN OFFICIAL, DEPENDENT UPON SPECIFIC LINGUISTIC ABILITIES REQUIRED IN THE INTERESTS OF THE SERVICE .
14 IN THE PRESENT CASE THE SPECIAL NATURE OF THE TASKS DEVOLVING ON THE SECRETARIATS OF THE PARLIAMENTARY COMMITTEES WHICH HAVE THE TASK OF ASSISTING THE MEMBERS OF THESE COMMITTEES IN THEIR WORK, MAY JUSTIFY A RECRUITMENT BASED INTER ALIA ON A THOROUGH KNOWLEDGE OF ONE OF THE NATIONAL LANGUAGES USED BY SUCH MEMBERS, WHO COME FROM THE NATIONAL PARLIAMENTS OF THE MEMBER STATES .
15 MORE SPECIFICALLY, THE RECRUITMENT OF AN OFFICIAL HAVING A THOROUGH KNOWLEDGE OF ENGLISH MAY CORRESPOND TO THE REQUIREMENTS OF THE SERVICE RESULTING FROM THE ACCESSION TO THE COMMUNITY OF THE NEW MEMBER STATES .
16 THE INFORMATION APPEARING IN THE WRITTEN PLEADINGS AND THAT FURNISHED IN THE COURSE OF THE ORAL PROCEDURE DO NOT MAKE IT POSSIBLE TO ARRIVE AT THE CONCLUSION IN THE PRESENT CASE THAT THE RECRUITMENT OF AN OFFICIAL HAVING A THOROUGH KNOWLEDGE OF THE ENGLISH LANGUAGE IS UNJUSTIFIED HAVING REGARD TO THE NATURE AND CHARACTERISTICS OF THE VACANT POST OR THE REQUIREMENTS OF THE SERVICE .
17 BESIDES, IN LAYING DOWN THE CONDITION IN QUESTION THE VACANCY NOTICE IN DISPUTE DOES NOT INTEND TO REFER TO SO THOROUGH A KNOWLEDGE THAT ONLY OFFICIALS WHOSE MOTHER TONGUE IS ENGLISH CAN POSSESS IT BUT ALLOWS IT TO BE CLEARLY UNDERSTOOD, BY SPECIFIC REFERENCE TO 'PRACTICAL REASONS' WHICH JUSTIFY SUCH A CONDITION'S BEING IMPOSED, THAT THE LEVEL OF LINGUISTIC KNOWLEDGE REQUIRED IS ONE APPROPRIATE TO THE ACTUAL REQUIREMENTS OF THE SERVICE .
18 MOREOVER IT IS SHOWN BY THE OTHER 'QUALIFICATIONS AND ABILITIES' SPECIFIED THAT THE THOROUGH KNOWLEDGE OF ENGLISH DOES NOT CONSTITUTE THE ONLY CRITERION DETERMINING THE CHOICE OF THE CANDIDATE TO BE APPOINTED .
19 ON THE CONTRARY, THE NOTICE OF COMPETITION IN QUESTION ALLOWS IT TO BE UNDERSTOOD THAT SINCE SUCH A CHOICE CAN ONLY RESULT FROM THE TAKING INTO CONSIDERATION OF SEVERAL FACTORS WHICH ARE THEMSELVES JUSTIFIED IN THE INTEREST OF THE SERVICES, THE APPOINTING AUTHORITY MUST TAKE ALL THESE FACTORS INTO ACCOUNT .
20 THIS SUBMISSION IS THEREFORE UNFOUNDED .
21 THE APPLICATION MUST THEREFORE BE DISMISSED .
Decision on costs
22 UNDER THE TERMS OF ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .
23 THE APPLICANT HAS FAILED IN HIS ACTION .
24 HOWEVER, UNDER THE TERMS OF ARTICLE 70 OF THE RULES OF PROCEDURE, THE COSTS INCURRED BY INSTITUTIONS IN ACTIONS BROUGHT BY SERVANTS OF THE COMMUNITIES ARE TO BE BORNE BY SUCH INSTITUTIONS .
Operative part
THE COURT ( FIRST CHAMBER )
HEREBY :
1 . DISMISSES THE APPLICATION;
2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .