61981C0289
OPINION OF MRS ADVOCATE GENERAL ROZÈS
DELIVERED ON 17 MARCH 1983 (
1
)
Mr President,
Members of the Court,
This opinion concerns two actions brought against the Parliament by Vassilis Mavridis (Case 289/81) and Constantinos Verros (Case 306/81), both candidates for the post of Head of Division in charge of Athens Information Office of the Parliament. The ultimate aim of both applications is the annulment of:
The decision of the selection committee set up by the Parliament, rejecting their candidature; and
The appointment made as a result of the selection procedure.
The action brought by Vassilis Mavridis also seeks the annulment of the entire procedure.
The similarity in the subject-matter of the two actions together with the fact that certain of the submissions advanced are common to both cases justifies the delivery of a single opinion in the two cases.
I —
1.
At the beginning of 1981, the Parliament initiated the recruitment procedure necessary to fill the post in question. As consideration of the possibilities of promotion, transfer within the Parliament and transfer from another institution produced no result and in view of the very specific nature of the post, the Parliament administration decided to apply the exceptional recruitment procedure which does not involve a competition, provided for in Article 29 (2) of the Staff Regulations. The Joint Committee approved that decision on 7 May 1981.
On 18 June 1981 a vacancy notice for the disputed post was published in the Official Journal. It described the duties involved. It also indicated the conditions of eligibility for the candidates, namely in particular:
“A university degree or equivalent professional experience;
A proven experience of public relations and journalism;
Thorough acquaintance with European problems.”
There was therefore no condition as to age.
Candidates were invited to submit applications not later than 20 July.
In order to differentiate between the candidates, the Parliament set up a selection committee, which included in particular a representative of the staff. In the course of its opening meeting, on 7 July, the committee decided, on the basis of the vacancy notice, to regard as eligible candidates who in particular:
“Had proven experience of at least 10 years in public relations and in journalism;
Had ability to deal with a varied selection of people seeking information and experience of political circles;
And were between 35 and 50 years of age (in other words, born between 1 August 1931 and 1 August 1946)”.
2.
Vassilis Mavridis and Constantinos Verros both submitted their applications on 17 July 1981.
On 7 August, the chairman of the selection committee notified them that their candidature would not be accepted since they did not come within “the category of those between 35 and 50 years of age — a limit laid clown by the committee itself”. Vassilis Mavridis was in fact over the maximum age, whilst Constantinos Verros was below the minimum age.
By letter of 14 August addressed to the Personnel Branch of the Parliament, Mr Verros expressed his great astonishment at the justification advanced for refusing to consider his application, since the vacancy notice made no mention of a condition as to age. On 25 August he sent a copy of the letter to the Secretary-General and the Director-General of Administration of the Parliament.
He received a reply on 2 September, signed by the chairman of the selection committee. It informed him that recruitment for the post in question was carried out on the basis of Article 29 (2) of the Staff Regulations and that therefore the provisions of Annex III thereto were not necessarily applicable. It was also stated that, under that provision, selection committees had a wider discretion in relation to the laying down of the criteria which they themselves considered appropriate.
The candidates whose applications the selection committee considered valid were invited to Athens for interview on 1, 2 and 3 September 1981. At the conclusion of its deliberations, the committee drew up a list of suitable candidates containing several names. The appointing authority appointed one of them with effect from 1 January 1982.
The actions brought by Vassilis Mavridis and Constantinos Verros were lodged at the Court Registry on 11 November and 1 December 1981 respectively.
II —
The admissibility of the action brought by Mr Verros is not disputed.
On the other hand, the Parliament contends that the action brought by Mr Mavridis is inadmissible inasmuch as he had failed to submit a preliminary complaint. In the Parliament's view, the case-law of the Court relating to competitions, on which the interested party relied in his application, cannot be regarded as relevant in this instance. The procedure adopted was not a competition procedure. Further, since the administrative authority was entitled to fix the age-limits itself, the basis for the exceptional case-law in which it is possible to bring an action directly before the Court without first submitting a complaint to that authority was lacking in this case.
In my view, only the last point merits attention. A line of case-law which has been established in a specific field may be applied in another, even if the case-law is exceptional. Moreover it should be noted that the principle adopted in relation to competitions has already been extended to actions against a periodic report which has been classified as final. (
2
)
The admissibility of the action brought by Mr Mavridis therefore depends on a single consideration: was the Parliament administration empowered tó alter the criteria of age established by the selection committee?
The papers in the case show that that question must be answered in the negative and that was confirmed at the sitting by one of the representatives of the Parliament. The appointing authority had left the selection committee complete freedom to establish a condition as to age if it deemed it necessary so to do. The appointing authority thus voluntarily deprived itself of the possibility of going back on that decision.
The action brought by Mr Mavridis is therefore admissible.
Ill —
As Constantinos Verros raised fresh issues in his reply, I must turn to the question of their admissibility before considering the substantive grounds of the action.
Under Article 42 (2) of the Rules of Procedure: “No fresh issue may be raised in the course of the proceedings unless it is based on matters of law or of fact which come to light in the course of the written procedure”. The Court also recognizes the admissibility of a fresh submission when it may be regarded as “amplifying a submission made previously” in so far as the rule of law allegedly infringed may have been referred to directly or even by implication in the original application. (
3
)
The submissions advanced for the first time in the reply allege the infringement of the following provisions: Article 1 (1) (g) of Annex III to the Staff Regulations; (
4
) Article 29 (2) of the Staff Regulations to which the Parliament is alleged to have resorted, without justification.
It is clear that the wording of Article 42 (2) of the Rules of Procedure does not apply to either of those two submissions.
Moreover, a perusal of the application shows that Article 29 (2) is neither expressly mentioned nor referred to by implication in that document. The submission relating to its alleged infringement is therefore inadmissible.
On the other hand I consider that I must take the opposite view in respect of the second fresh submission. In the application, the sole submission alleged was the infringement of another provision of the same annex, the first paragraph of Article 5 thereof; Mr Verros complained that the selection committee had added a condition relating to age to the conditions laid down by the vacancy notice. The allegation that Article 1 (1) (g) has been infringed amounts to a criticism of the failure to fix an age-limit in the vacancy notice issued by the administration of the Parliament.
The two submissions seem therefore to be closely connected, inasmuch as the selection committee inserted the disputed condition which was absent from the vacancy notice.
Furthermore it should be noted that, in its rejoinder, the Parliament raised no objection of inadmissibility to that submission, which it considered in conjunction with the question of the infringement of Article 5.
IV —
As the submission relating to an infringement of Article 29 (2) is clearly inadmissible, it may be disregarded.
The other submissions allege an infringement of various provisions of Annex III to the Staff Regulations relating to the “competition procedure” and, in the Mavridis case only, a breach of the principle of the protection of legitimate expectation, a general principle of law which has been recognized by the Court. However, in reality they are all derived from the same source. The applicants consider it unacceptable that their candidature was regarded as invalid on the basis of a condition of which they could have had no knowledge since the only document in their possession, the vacancy notice published in the Official Journal, did not mention it.
However, the submissions should be considered separately in view of the difference in their content.
I propose to begin with the alleged infringements of Annex III.
1.
Mr Mavridis objects that the Parliament failed to comply with Article 1 of that annex, which provides that “notice of competitions shall be drawn up by the appointing authority”. (
5
) The disputed condition was determined by the selection committee. The submission is therefore that the committee lacked competence.
Both applicants accuse the Parliament of infringing subparagraph (g) of Article 1 (1), according to which a notice of competition must specify “where appropriate, the age-limit”. In this instance, the applicants were notified of the conditions as to age only in the letter rejecting their candidature. Infringement of that provision has already been censured in the Court's judgment of 22 March 1972. (
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)
They submit further that the first paragraph of Article 5 was infringed. That article provides that “the selection board shall draw up a list of candidates who meet the requirements set out in the notice of competition”. The selection committee bassed the rejection of the applicants' candidature on a condition which was not laid down in the vacancy notice or, as Mr Mavridis adds, provided for by a Community regulation. Inasmuch as they infringe that provision, the disputed decisions must be annulled, they claim, for the reasons stated in unequivocal terms in the judgments of the Court, Anselme of 28 June 1979 (
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) and Ruske of 18 February 1982. (
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)
2.
In its defence, the Parliament points out that it frequently fixes minimum and maximum age-limits as conditions of eligibility for a post, which must exclude any suggestion of arbitrary conduct on the part of the selection committee.
It further states that the criteria of assessment added to those set out in the vacancy notice were decided upon by the committee at its opening meeting of 7 July, that is, before the applications of Mr Mavridis and Mr Verros, dated 17 July, had been received. The consideration given to their applications was therefore entirely objective.
Those statements cannot be disputed. However, in my view, they by no means conclude the discussion, which centres, primarily, on questions of law. The essential argument advanced by the Parliament is that it is of no avail to allege infringement of provisions applicable to the competition procedure in cases which concern the exceptional recruitment procedure under Article 29 (2).
For my part, I would note that the terminology provides evidence of the difference between the procedure in question and the normal procedure. In this instance the relevant terms are not “notice of competition” and “selection board”, but rather “vacancy notice” and “selection committee”.
The fundamental question raised by these submissions lies therefore, as Counsel for Mr Mavridis emphasized in the course of his address, in the question whether the case-law of the Court, according to which the bodies responsible for selection (“Auswahlausschüsse”) are bound by the information contained in the vacancy notice and notice of competition, must be restricted solely to competition procedures or whether it may be extended to all cases in which a notice has actually been published.
3.
Let me now examine the answers which may be given to that question.
(a)
The Parliament contends that the special procedure of Article 29 (2) is neither defined nor explained in the Staff Regulations. The reason is that the draftsmen wished to leave the choice of the most appropriate means for filling the posts in question to the Community institutions.
Moreover an illustration of that may be seen in the disparity of the policies of the Community institutions concerning recruitment without competition. The Commission does not normally publish any notice in order to fill a post under Article 29 (2). At the Council, vacant posts in Grade A 1 and A 2 have never been advertised, although five out of seven posts in other grades filled by that procedure were advertised in the Official Journal and in the press. As far as the Parliament is concerned, it does not consistently advertise such posts, although it does so in the majority of cases.
In my view, to maintain that recruitment on the basis of Article 29 (2) is left exclusively to the discretion of the institutions is an exaggeration. Judgments in which the Court has reviewed the use made of that procedure make it difficult to reach that conclusion. (
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)
That case-law did not, admittedly, concern posts in Grades A 1 and A 2. For the latter, I consider that the Parliament's observation is justified. The draftsmen of the Staff Regulations wished to leave complete freedom of action to the institutions. However, for recruitment to other grades, Article 29 (2) lays down conditions (“ ... in exceptional cases, also for recruitment to posts which require special qualifications”) which must be interpreted strictly. (
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)
This case falls into the second category. More specifically, the recruitment of the Head of the Parliament's Information Office in Athens is to be seen in the context of the accession of a new Member State. That accession doubtless requires, in a number of cases, special recruitment measures covered by a procedure half way between the special procedure of Article 29 (2) and the normal procedure of Article 29 (1). That explains why the Parliament consulted the Joint Committee on the procedure adopted and ensured the participation of a representative of the Staff Commitee in the deliberations of the selection committee.
(b)
However, the Parliament also cites a judgment of the Court of 29 October 1975 in Marenco, in which it is held that: “Recourse to Article 29 (2) is not subject to any condition as to publication but only to the circumstance that the recruitment is of Grade Al or A 2 officials or to ‘posts which require special qualifications’”. (
11
) It concludes therefrom that if it was entitled not to advertise the matter at all, it cannot be reproached for publishing the vacancy in question, even
if in doing so it failed to mention the conditions as to age. The parliament cites in that respect the French saying: “Qui peut le plus peut le moins” — that is, if it is permissible to refrain from publishing any vacancy notice it is permissible to publish one which does not give all the conditions for recruitment.
Nevertheless I take the view that when an institution decides to advertise vacancies of posts to be filled under the procedure of Article 29 (2) without expressly indicating that the recruitment concerned is to be effected under that procedure, it must mention all the conditions of recruitment. The reasons for that were stated in the judgment of the Court of 30 October 1974, Grassi (
12
) concerning a vacancy notice, and the judgments in Costacurta, Anselme and Ruske, relating to notices of competition. I consider that those reasons, which were advanced in cases involving recruitment by the normal competition procedure, are equally valid in this case. I take the view that, in this case too, the appointing authority must when drawing up the vacancy notice “take account of the special conditions of eligibility” for the vacant post and that it amounts to an irregularity in the procedure “if the authority decides what these conditions should be only after notice has been published and the candidates are known, and if an interpretation is placed on the wording of the notice ... which, in the authority's view, seems to be in the best interests of the service”. (
13
) I think too that it is unreasonable that the exclusion of certain candidates should be justified “by relying on conditions of recruitment which were not properly notified in advance to all the persons concerned”. (
14
) Finally, I consider that “although the appointing authority enjoys a wide discretion to determine the conditions” governing a recruitment procedure, whatever that procedure may be, selection committees are bound by the wording of the vacancy notice as published, as selection boards are bound by the notices of competition. Indeed the basic function of a notice, whether it is provided for in the Staff Regulations or not, “is precisely to give those interested the most accurate information possible about the conditions of eligibility for the post to enable them to judge whether they should apply for it”. (
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)
That is of particular relevance in this case, because the differences between the vacancy notice as published and a notice of competition might easily escape the attention of a person who is not accustomed to the recruitment procedures in the Community institutions, as counsel for the Parliament has acknowledged.
V —
Mr Mavridis also raised the question of the breach of the principle of the protection of legitimate expectation of the individual as against the administration.
1.
He claims that any candidate for a post in the Community institutions must be able to rely on notices which are issued by those institutions. In particular, persons interested in a post which is the subject of a vacancy notice must be able to ascertain, on the basis of that notice, at least whether they fulfil the formal conditions and therefore whether they are eligible and have a chance of succeeding. Because such persons act on the basis of those notices deciding whether or not to become candidates and subsequently taking the steps which they consider to be necessary for their candidature, the notices must be accurate and complete.
2.
The Parliament replies that the principle of the protection of legitimate expectation is not applicable in this case.
Its argument is founded on the case-law of the Court as summarized by Mi-Advocate General Capotorti in his opinion in Cases 167/80, Curtis, and 268/80, Guglielmi. (
16
) He stated there that in order that reliance may successfully be placed on that principle, the expectation must be based on precise assurances given by the administration to the persons concerned.
In this case, the Parliament administration had entered into no commitment regarding the candidates. It had merely published a notice to inform persons interested of its intention to recruit an official to head the Parliament Office in Athens.
Mr Mavridis, however, takes the view that by setting out in the vacancy notice a number of conditions to be fulfilled, the Parliament was giving candidates the assurance that admission to take part in the recruitment procedure was subject only to those conditions and not to any others.
3.
In my view, for the reasons which the Court gave in its judgments in Costacurta, Grassi, Anselme and Ruske, the refusal to accept candidatures on the basis of a condition which does not appear in the vacancy notice disregards the candidates' legitimate expectation that the information set out in that list is complete.
I consider that the position would be different only if the institution indicated in the notice that the post in question was to be filled under the procedure of Article 29 (2) and that the normal rules of recruitment would not therefore be applied. In that situation, I take the view, further, that the institution should issue a notice in a form completely different from that of a notice of competition so that candidates cannot mistake that procedure for a normal recruitment procedure.
I propose therefore that the Court annul the decisions to exclude Vassilis Mavridis and Constantinos Venos from the recruitment procedure in question on the ground that they failed to satisfy a condition which did not appear in the vacancy notice. On the other hand, I consider that it is pointless to annul the entire recruitment procedure and the appointment which resulted therefrom. If the Parliament were to commence a new procedure and, this time, published a vacancy notice which mentioned all the additional conditions fixed by the selection committee, the applicants would still be excluded. Moreover, only the persons who were selected on the basis of the criteria established by the committee would be admitted to participate in the interviews, and the final selection, including the appointment which resulted therefrom, could equally be confirmed. In other words, as in the Anselme case, “the exclusion of the applicants from the list of candidates did not affect the admission to the list of the persons selected” so that there is no need to annul steps in the recruitment procedure which took place after that exclusion. (
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)
On those grounds, I propose :
That the Court annul only the decisions of the selection committee not to accept the candidatures of Vassilis Mavridis and Constantinos Verros to the post of head of the Athens Information Office of the European Parliament;
And that it order the Parliament to pay the costs in both cases.
(
1
)	Translated from the French.
(
2
)	For example, judgment of the Second Chamber of the Court of 3 July 1980, Joined Cases 6 and 97/79 Graai v Council [1980] ECR 2141, at pp. 2157 and 2158, paragraph 15 of the decision.
(
3
)	Judgment of 30 September 1982, Second Chamber, Case 108/81 Amylum [1982] ECR 3107, paragraph 25 of the decision.
(
4
)
‘Notice of competitions ... must specify ..., where appropriate, the age-limit ...”.
(
5
)	Opening words of paragraph (1).
(
6
)	First Chamber, Case 78/71 Costacurta v Commission [1972] ECR 168, paragraphs 7 to 12 of the decision.
(
7
)	First Chamber, Case 255/78 Anselme and Constant v Commission [1979] ECR 2323, paragraphs 9 and 10 of the decision.
(
8
)	First Ghamber, Case 67/81 Ruske v Commission [1982] ECR 661, at p. 672, paragraphs 9 and 10 of the decision.
(
9
)	Judgment of 26 May 1971, (Second Chamber), Joined Cases 45 and 49/70 Bode v Commission [1971] ECR 465, at pp. 475 to 477, paragraphs 14 to 19 of the decision; judgment of 5 December 1974, (First Chamber), Case 176/73 Van Belk v Council [1974] ECR 1361, at p. 1371, paragraph 14 of the decision and at p. 1373, paragraph 24 of the decision.
(
10
)	Judgments in Bode and Vnn Belle, cited above.
(
11
)	Judgment of 29 October 1975, (First Chamber), Joined Cases 81 to 88/74 Marenco and Others v Commission [1975] ECR 1247, at p. 1257, paragraph 23 of the decision.
(
12
)	Judgment of 30 October 1974 (First Chamber), Case 188/73 Grassi v Council [1974] ECR 1099, at pp. 1111 and 1112, paragraphs 39, 40 and 43 of the decision.
(
13
)	Judgment in Grassi [1974] ECR at p. 1111, paragraph 39 of the decision.
(
14
)	Judgment in Costacurta [1972] ECR at p. 168, paragraph 8 of the decision.
(
15
)	Judgment in Ruske [1982] ECR at p. 672, paragraph 9 of the judgment; similarly, judgment in Anselme [1979] ECR at p. 2332, paragraph 9 of the decision.
(
16
)	Guglielmi [1981] ECR 2306.
(
17
)	[1979] ECR at p. 2333, paragraph 15 of the decision.