61978CJ0178_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 178/78
JOHN SZEMEREY, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, RESIDING AT 27 RUE MAREYDE, BRUSSELS, REPRESENTED AND ASSISTED BY J . SAELS, ADVOCATE OF THE BRUSSELS BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE HOME OF ROLZNA TURKEL, 11 BOULEVARD GRANDE-DUCHESSE CHARLOTTE,
APPLICANT,
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS PRINCIPAL LEGAL ADVISER, R . BAEYENS, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ITS LEGAL ADVISER, M . CERVINO, JEAN MONNET BUILDING, KIRCHBERG,
DEFENDANT,
Subject of the case
APPLICATION IN PARTICULAR FOR THE ANNULMENT OF OPEN COMPETITION NO COM/A/154 BASED ON TESTS, WHICH WAS ORGANIZED BY THE COMMISSION IN ORDER TO CONSTITUTE A RESERVE OF ADMINISTRATORS IN GRADES 7 AND 6 OF CATEGORY A ( OFFICIAL JOURNAL C 213 OF 7 SEPTEMBER 1977, P . 9 ),
Grounds
1 THE APPLICATION, WHICH WAS LODGED ON 24 AUGUST 1978, SEEKS THE ANNULMENT OF OPEN COMPETITION NO COM/A/154 ORGANIZED BY THE COMMISSION IN ORDER TO CONSTITUTE A RESERVE OF ADMINISTRATORS IN THE CAREER BRACKET COVERING GRADES 7 AND 6 OF CATEGORY A . THE APPLICATION ARISES OUT OF THE FACT THAT HAVING APPLIED TO ENTER THAT COMPETITION THE APPLICANT WAS REFUSED ADMISSION TO THE WRITTEN TESTS BY DECISION OF THE SELECTION BOARD ON THE GROUND THAT HIS QUALIFICATIONS WERE NOT CONSIDERED ADEQUATE .
2 THE FIRST SUBMISSION RELIED ON BY THE APPLICANT CONCERNS THE SPECIAL CONDITIONS FOR ADMISSION FIXED BY THE NOTICE OF COMPETITION . IN ACCORDANCE WITH THOSE CONDITIONS A CANDIDATE HAD TO HAVE BOTH A UNIVERSITY EDUCATION, WITH DEGREE OR DIPLOMA, IN A FIELD APPROPRIATE TO THE OPTION CHOSEN BY HIM AND PRACTICAL EXPERIENCE, OBTAINED AFTER GRADUATION, ALSO RELEVANT TO THAT OPTION . THE APPLICANT MAINTAINS THAT THIS DOUBLE CONDITION IS INCOMPATIBLE WITH THE SECOND SUBPARAGRAPH OF ARTICLE 5 ( 1 ) OF THE STAFF REGULATIONS OF OFFICIALS, ACCORDING TO WHICH POSTS IN CATEGORY A REQUIRE, AS ALTERNATIVE AND NOT CUMULATIVE CONDITIONS, EITHER UNIVERSITY EDUCATION OR EQUIVALENT PROFESSIONAL EXPERIENCE .
3 THAT COMPLAINT HOWEVER CANNOT BE ACCEPTED . AS THE COURT HAS ALREADY HELD IN ITS JUDGMENT OF 5 APRIL 1979 IN CASE 117/78, ORLANDI V COMMISSION OF THE EUROPEAN COMMUNITIES, THE PROVISIONS OF ARTICLE 5 OF THE STAFF REGULATIONS SEEK TO PROVIDE A GENERAL DEFINITION OF THE MINIMUM LEVEL REQUIRED FOR AN OFFICIAL OF THE CATEGORY IN QUESTION DRAWN UP ACCORDING TO THE NATURE OF THE DUTIES TO WHICH THE POSTS CORRESPOND AND DO NOT CONCERN CONDITIONS OF RECRUITMENT . THOSE ARE GOVERNED BY THE PROVISIONS OF ARTICLE 29 AND ANNEX III TO THE STAFF REGULATIONS AND THERE IS NOTHING TO PREVENT THIS NOTICE OF COMPETITION FROM FIXING CONDITIONS IN RELATION TO CERTAIN POSTS OR CERTAIN CATEGORIES OF POSTS WHICH ARE MORE RIGOROUS THAN THOSE WHICH CORRESPOND TO THE MINIMUM REQUIREMENTS RESULTING FROM THE CLASSIFICATION OF POSTS, WHETHER SUCH CONDITIONS ARE FIXED IN ORDER TO FILL A SPECIFIC VACANT POST OR FOR THE PURPOSE OF CONSTITUTING A RESERVE WITH WHICH TO FILL POSTS IN A CERTAIN CATEGORY .
4 THE SECOND COMPLAINT IS BASED UPON THE FIRST PARAGRAPH OF ARTICLE 27 OF THE STAFF REGULATIONS, ACCORDING TO WHICH :
' ' RECRUITMENT SHALL BE DIRECTED TO SECURING FOR THE INSTITUTION THE SERVICES OF OFFICIALS OF THE HIGHEST STANDARD OF ABILITY, EFFICIENCY AND INTEGRITY, RECRUITED ON THE BROADEST POSSIBLE GEOGRAPHICAL BASIS FROM AMONG NATIONALS OF MEMBER STATES OF THE COMMUNITIES . ' '
THE APPLICANT MAINTAINS THAT THAT PROVISION WAS INFRINGED SINCE BY REQUIRING POSSESSION OF A UNIVERSITY DEGREE OR DIPLOMA THE COMMISSION RULED OUT IN ADVANCE THE POSSIBILITY OF RECRUITING A CANDIDATE SUCH AS THE APPLICANT WHO, AS A RESULT OF HIS PRACTICAL EXPERIENCE, HAS THE ABILITIES NECESSARY FOR THE POST TO BE FILLED .
5 THAT COMPLAINT MUST ALSO BE REJECTED . THE REQUIREMENT OF POSSESSION OF A UNIVERSITY DEGREE OR DIPLOMA IN ADDITION TO PRACTICAL EXPERIENCE IS GENERALLY, IN ALL NORMAL AND TYPICAL CASES, CALCULATED TO ENSURE THAT THAT PROVISION IS COMPLIED WITH AND INDEED TO COMPLY WITH IT STILL FURTHER . IN FIXING THAT DOUBLE CONDITION THE NOTICE OF COMPETITION DOES NOT CONFLICT WITH THE STAFF REGULATIONS . IT IS IMPOSSIBLE TO MAINTAIN, AS THE APPLICANT DOES, THAT THE CANDIDATES WHO ARE NATIONALS OF CERTAIN MEMBER STATES THEREBY SUFFER A DISADVANTAGE . THE COMBINATION OF AN ACADEMIC EDUCATION AND PRACTICAL EXPERIENCE DOES NOT SEEM TO BE A CHARACTERISTIC OF CANDIDATES FROM CERTAIN MEMBER STATES IN CONTRAST TO THOSE FROM OTHERS . CANDIDATES WITH SUBSTANTIAL PRACTICAL
EXPERIENCE ALTHOUGH WITHOUT A UNIVERSITY DEGREE OR DIPLOMA MAY BE FOUND AMONG THE NATIONALS OF ALL THE MEMBER STATES .
6 THE APPLICANT ALSO MAINTAINS THAT BY REFUSING TO ALLOW HIM ADMISSION TO THE WRITTEN TESTS THE SELECTION BOARD FOR THE COMPETITION INFRINGED THE TERMS OF THE NOTICE OF COMPETITION WHICH OBLIGE IT TO ALLOW FOR DIFFERENCES IN NATIONAL EDUCATION SYSTEMS . MORE PARTICULARLY, THE SELECTION BOARD FAILED TO MAKE ALLOWANCE IN HIS CASE FOR THE SPECIAL FEATURES OF THE EDUCATION SYSTEM IN THE UNITED KINGDOM .
7 IN THAT CONNEXION IT IS ESTABLISHED THAT THE APPLICANT HAS NOT COMPLETED A UNIVERSITY EDUCATION IN HIS COUNTRY OF ORIGIN, THAT IS, THE UNITED KINGDOM . THAT HAS, HOWEVER, NOTHING TO DO WITH THE EDUCATION SYSTEM IN THAT COUNTRY . THE CONDITIONS OF ADMISSION TO A UNIVERSITY COURSE LEADING TO A DEGREE ARE NO MORE RESTRICTIVE IN THE UNITED KINGDOM THAN IN THE OTHER MEMBER STATES . FURTHERMORE, THE APPLICANT BEGAN A COURSE OF STUDY AT UNIVERSITY LEVEL IN LONDON WITHOUT, HOWEVER, PURSUING IT TO THE END . IT MAY BE NECESSARY TO MAKE ALLOWANCES FOR THE DIFFERENCES IN EDUCATION SYSTEMS REFERRED TO IN THE NOTICE OF COMPETITION WHERE IT IS NECESSARY TO DISCOVER WHETHER THE DEGREE OR DIPLOMA POSSESSED BY A CANDIDATE RELATES TO THE FIELD OF DUTIES WHICH HE HAS SELECTED . HOWEVER, THAT PROBLEM DOES NOT ARISE IN THIS INSTANCE, SINCE THE APPLICANT DOES NOT POSSESS A UNIVERSITY DEGREE OR DIPLOMA .
8 FINALLY, THE APPLICANT CONTESTS THE REFUSAL OF THE SELECTION BOARD ON THE GROUND THAT NO SUFFICIENT STATEMENT OF REASONS WAS GIVEN FOR THE DECISION . IT IS TRUE THAT IN CERTAIN OTHER CASES RELATING TO THE SAME COMPETITION ( JUDGMENT OF 30 NOVEMBER 1978 IN JOINED CASES 4, 19 AND 28/78, SALERNO AND OTHERS V COMMISSION OF THE EUROPEAN COMMUNITIES ( 1978 ) ECR 2403 ) THE COURT HELD THAT INADEQUATE REASONS WERE GIVEN FOR A REFUSAL WHICH CONTAINED, AS THE ONLY STATEMENT OF THE REASONS ON WHICH IT WAS BASED, A MERE REFERENCE TO AN ITEM IN A STANDARD LETTER . IN THOSE CASES IT WAS IMPOSSIBLE TO DISCOVER TO WHICH OF THE COMPONENTS MAKING UP THE CONDITIONS REQUIRED THE REFERENCE RELATED . IN THIS INSTANCE, ON THE OTHER HAND, THERE CAN BE NO DOUBT THAT IT IS THE LACK OF ANY UNIVERSITY DEGREE OR DIPLOMA WHICH IS THE REASON FOR THE REFUSAL AND IT IS, MOREOVER, IN THAT SENSE THAT THE APPLICANT HIMSELF UNDERSTOOD IT . IN THOSE CIRCUMSTANCES THE STATEMENT OF REASONS GIVEN IN THIS INSTANCE CANNOT BE DECLARED INADEQUATE .
9 AS NONE OF THE SUBMISSIONS HAS BEEN UPHELD THE APPLICATION MUST BE DISMISSED .
Decision on costs
COSTS
10 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS . AS THE APPLICANT HAS FAILED IN HIS SUBMISSIONS HE MUST BE ORDERED TO PAY THE COSTS .
HOWEVER, UNDER ARTICLE 70 OF THE RULES OF PROCEDURE, IN PROCEEDINGS BY SERVANTS OF THE COMMUNITIES, THE INSTITUTIONS SHALL BEAR THEIR OWN COSTS .
Operative part
ON THOSE GROUNDS,
THE COURT ( SECOND CHAMBER )
HEREBY :
1 . DISMISSES THE APPLICATION ;
2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .