61964C0035
OPINION OF MR ADVOCATE-GENERAL GAND
DELIVERED 17 MARCH 1965 (
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Mr President,
Members of the Court,
Following an internal competition held by the European Parliament Mr Ducci was appointed Head of Division (A 3) in the General-Directorate for General Affairs by a decision dated 12 May 1964.
Mr Alfieri, who is a Grade L/A 4 official in the language service of the Parliament, and who had taken pan in the competition, has made an application to you directed principally against the appointment of Mr Ducci. He also criticizes, for various reasons, the publication of the disputed notice of the competition, the notice itself and the decisions by which the Selection Board let Mr Falcone take part in the competition and by which it drew up the list of suitable persons mentioned in Article 30 of the Staff Regulations. Finally as an alternative point he asks you to order the Parliament to pay damages.
I
An important — if not essential — part of the discussion between the parties hinges on the admissibility of the conclusions and, where applicable, the submissions in support of them.
First of all the Parliament asserts that, in so far as the conclusions are directed against various acts which formed part of the competition procedure, they are out of time and that, since the appointment is only impugned by reason of the alleged illegality of these acts or on the grounds that they did not take place, and not for some defect appertaining to the appointment itself, the application is in its view also inadmissible to the extent that it is directed against the decision of appointment. Developing this line of argument further it recalls that according to the case-law of this Court (see in particular the judgment in the Lassalle case concerning the holding of a competition) certain preparatory acts prior to an appointment may be severable from the appointment itself, and thus may be separately contested if they have adverse effect. Alternatively — as learned counsel for the Parliament reiterated at the hearing — these acts, which are not of themselves capable of adversely affecting the applicant and have no direct bearing on his situation, are an integral part of the final decision which arises from them. Therefore, in asking the Court to annul the final decision, the applicant must show that he has an interest in the annulment of the preparatory acts. Then the Parliament goes over the various complaints again and concludes that the majority of them concern stages of the competition which are themselves open to attack as acts adversely affecting the applicant. As no appeal was made against them at the time, these complaints can no longer be raised. The only ones to which this does not apply are lack of publicity and failure to publish ±e composition of the Selection Board and the list of persons allowed to take the examination, these matters not being severable from the decision of appointment. But in the Parliament's view the applicant has no interest in criticizing any defects which might attach to them.
This is an ingenious and indeed subtle theory but I do not think that it can be accepted. Recruitment is a complex administrative operation. It consists of a necessary series of decisions: declaring that a competition will be held, allowing a candidate to enter for it, and going on to the final decision which is the appointment of an official. The persons concerned can without doubt bring complaints against each of these preliminary acts, in so far as they constitute actual administrative decisions, provided that they do so within the prescribed time-limit which starts to run from notification or publication whichever is the case. But they do not have to do so. They can wait until the final decision against which they may plead the illegality of any one of the decisions contributing to it, even if the time-limit for contesting them directly has expired.
It is of little importance that in this case no defect can be found — as the defendant institution points out — in the decision of appointment itself, by which the appointing authority made its choice from amongst the candidates appearing on the list of suitable persons. The applicant, having taken part in the competition, may contest this appointment and, in doing so, may rely on any submission which could be put forward against the prior acts, without its being necessary to consider whether he does or does not have an interest in making some complaint or another. His interest is to be assessed in relation to the conclusions and not in relation to the submissions.
Such at least is the view which I put forward in my opinion in the Ley case, 12 and 29/64, at the hearing on 4 February last. Since your judgment is still awaited, I can only adhere to what I said then.
Mr Alfieri contests principally the decision appointing Mr Ducci following the competition in which he took part and does so within the time-limit laid down by Article 91 of the Staff Regulations. We must therefore examine the complaints made in his application, even if they deal with earlier stages in the procedure, and even if they relate to decisions which could no longer be directly contested.
II
1.
The first complaint, based on the alleged non-existence of a notice of competition or at least on the allegation that the notice of competition was null and void, arises from the circumstances surrounding the publication of this notice. The facts of the matter are that the competition was only brought to the notice of those to whom it was addressed by displaying loose sheets of paper upon which there did not appear any signature of any official, or any seal, or any heading of any institution; the sheets were pinned to notice boards which were used for various purposes and not reserved for administrative notices alone. So it is impossible to prove that the notice of competition was indeed drawn up by the appointing authority after consulting the Joint Committee and the Head of Department concerned, in accordance with Article 1 (1) of Annex III to the Staff Regulations.
However, even though the improper circumstances in which an administrative decision is published may lay it open to opposition from third parties, its validity is not necessarily affected.
Furthermore, the European Parliament is right in noting that the Staff Regulations do not lay down any particular form of advertising. It is enough for the staff to be able to come across a copy of the notice of competition in a suitable place. You have the disputed document in the file and it seems to me to be sufficiently explicit for no doubt to be possible in the minds of the persons concerned. It specifies that it concerns a post of Head of Division (career bracket A 3) in the Directorate-General for General Affairs and it begins as follows: ‘The President has decided, in accordance with the provisions of the Staff Regulations, that an internal competition shall be held with a view to filling the abovementioned post. For this purpose he has issued this notice of competition on a proposal from the Secretary-General, after consulting the Joint Committee and the Head of Department concerned’. There follows an outline of the nature of the duties, the qualifications and knowledge required and the nature of the tests involved.
The fact that there was neither signature nor seal nor heading did not prevent servants of the institution from being perfectly well informed as to who was the author of the notice of competition since he was clearly mentioned. The fact that it was pinned up on a notice board where other types of notices also appeared does not seem to me to affect its regularity.
2.
The second point which Mr Alfieri notes is that, according to Article 29 of the Staff Regulations, before holding a competition the appointing authority shall first consider whether the post can be filled by promotion or transfer within the institution. He alleges that there is nothing to show that this was done.
To this the Parliament replies that in fact it acted ‘in accordance with the provisions of the Staff Regulations’, and that furthermore Mr Alfieri, who was in the language service, could not hope to obtain an A 3 post by promotion outside his service. This reply necessarily implies that in considering whether the post might be filled by promotion the Parliament excluded a priori servants in the language service, and therefore renders it necessary for you to consider whether this position is in accordance with the Staff Regulations for, if it is not, the decision taken by the appointing authority on this point is perhaps tainted by an error in law vitiating the rest of the procedure.
May an official in the language service be appointned by means of transfer or promotion to a post which is not in that service? As you were reminded at the hearing, a member of the European Parliament put a written question on this point to the Commission of the EEC. It replied in the negative, and the position which it has adopted is shared by the institutions as a whole. This seems to correspond with the provisions of the Staff Regulations in spite of some ambiguous points of drafting which doubtless reflect the idea once envisaged of the division of the staff into three services: general, linguistic and technical.
As we all know, the present wording of Article 5 of the Staff Regulations classifies the various basic posts according to the nature and the level of duties attaching to them, grading them in four categories in descending order of seniority. Thus there is a vertical division of staff.
However it adds to this a two-fold horizontal division. One of these has already been brought into effect: this is the language service designated by the letters L/A grouping together the basic points for translators and interpreters and dividing them into six grades equivalent to Grades 3 to 8 of Category A. These are then grouped in career brackets generally consisting of two grades. The other horizontal division is to be effected in the future. Basic posts relating to the same specialized professional field may be put into services grouping together a certain, number of grades of one or several categories. I should also state for the record that Title VIII of the Staff Regulations lays down special provisions applicable to officials in the ‘scientific or technical services of the Joint Nuclear Research Centre’, the basic posts and corresponding career brackets for whom are set out in a special table.
Let us come back to the language service which, the applicant states, is included in Category A so that an L/A official is simply a Grade A official. There is no reason therefore for preventing him from passing by means of promotion to a higher grade outside his service but inside Category A. This argument is not entirely convincing. Whatever Mr Alfieri may say, the language service is indeed ‘a specialized professional field’ which cannot be confused with the other posts of Category A. Otherwise why set up a service? Why endow it with the letters L/A? Why give it grades equivalent to certain grades of Category A? All this seems to me to indicate a desire to give the servants in the language service a livelihood of their own, a career running parallel with the career of other servants in Category A up to a certain point, but without intermingling entirely with them.
This is how one can explain the provisions of Articles 7 and 45 of the Staff Regulations, to which both the Commission of the EEC and the Parliament look for support. Article 7 provides that the appointing authority shall assign each official to a post in his category or service which corresponds to his grade. Article 45 (1) adds that promotion for an official means his appointment to the next higher grade in the category or service to which he belongs. Thus when an official belongs to a service, assignment and promotion can only take place inside that service. This compartmentalization may be regrettable particularly since the language service stops at Grade L/A 3, but it seems to follow from the provisions. The result it that, without there being any need to refer to the provisions of Article 45 (2), the linguist can only get a post outside his service by means of a competition. Thus the Parliament was giving precise effect to the Staff Regulations when it did not take L/A 4 members of the language service into account in considering whether the Grade A 3 post might be filled by promotion. The preliminary examination was not tainted by any error of law before the Parliament decided to hold an internal competition.
3.
It will not take me long to deal with the third submission arising from the fact that the notice of competition — or in any event the advertising of it which took place — did not include a statement as to the composition of the Selection Board. It is claimed in the application that this is an omission of an essential procedural requirement.
Although it is true that Article 3 of Annex III confers on the appointing authority the duty of deciding upon the chairman and the members of the Selection Board and specifies the conditions to be fulfilled by those of them who are officials, nowhere is it stated that the membership of the Board must be stated in the notice of competition. In order to be convinced of this it is sufficient to re-read Article 1 of the Annex where eight (sic) precise points which must appear in the notice are listed, none of which is concerned with the Selection Board.
4.
The applicant also criticizes the notice of competition in that it has disregarded Article 1 (1) (d) of Annex III which lays down that the notice must specify‘the diplomas and other evidence of formal qualifications or the degree of experience required’ for the post to be filled. He alleges that the ‘loose sheet’ simply mentions university education supported by a degree or clearly equivalent experience, which is insufficient, all the more so for not specifying in greater detail the level of experience either as to its nature or its extent.
This overlooks the fact that this rather vague definition, which more or less follows the wording used in Article 5 of the Staff Regulations for officials in Category A, is immediately followed by the words: ‘The holder of this post must have a very solid background in administrative and legal matters to gether with a thorough knowledge of politics and a good grasp of parliamentary procedure’. Clearly it is in these areas that the experience demanded must have been acquired, and the level required is also clearly indicated. Furthermore, no provision exists whereby a more precise definition is required.
5.
There remains one last submission to consider and I shall suggest to you that it also should be rejected. It is alleged that the Selection Board put Mr Falcone on the list of candidates satisfying the conditions laid down in the notice of competition and that, according to the applicant, Mr Falcone does not have experience clearly equivalent to the level of university education.
I am tempted to reply, as the defendant institution does, that the assessment of this experience falls entirely within the Selection Boards' prerogative. However, even supposing that the alleged irregularity were to be established, it has no influence on the appointment criticized, as the appointing authority chose someone other than Mr Falcone.
III
Mr Alfieri put forward alternative conclusions on the subject of damages, but no explanation for them followed in the written procedure and therefore no account need be taken of them.
I am of the opinion:
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that the application should be dismissed,
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and that both parties should bear their own costs in accordance with Article 70 of the Rules of Procedure.
(
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