61982CJ0143_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 143/82
DAVID LIPMAN, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, RESIDING AT 152 AVENUE WINSTON-CHURCHILL, 1180 BRUSSELS, ASSISTED AND REPRESENTED BY EDMOND LEBRUN OF THE BRUSSELS BAR, 68 RUE CAMILLE-
LEMONNIER, 1060 BRUSSELS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF TONY BIEVER, ADVOCATE, 83 BOULEVARD GRANDE-DUCHESSE- CHARLOTTE,
APPLICANT,
V
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY HENDRIK VAN LIER, A MEMBER OF ITS LEGAL DEPARTMENT, ACTING AS AGENT, ASSISTED BY DANIEL JACOB OF THE BRUSSELS BAR, 93 AVENUE BRILLAT-SAVARIN, 1050 BRUSSELS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF MARIO CERVINO, A MEMBER OF ITS LEGAL DEPARTMENT, JEAN MONNET BUILDING, KIRCHBERG,
DEFENDANT,
Subject of the case
APPLICATION FOR :
1 . PRIMARILY :
THE ANNULMENT OF THE DECISION OF THE SELECTION BOARD FOR OPEN COMPETITION NO COM/A/325 NOT TO ACCEPT THE APPLICANT ' S CANDIDATURE FOR THE COMPETITION ;
AN ORDER THAT THE COMMISSION SHOULD RE-OPEN AS REGARDS HIM THE PROCEDURE FOR THE SAID COMPETITION NO COM/A/325 ;
AN ORDER THAT THE COMMISSION SHOULD PAY THE COSTS .
2.IN THE ALTERNATIVE, PRIOR TO THE DECISION ON THE SUBSTANCE OF THE APPLICATION :
AN ORDER THAT ALL NECESSARY MEASURES OF INQUIRY BE ADOPTED IN ORDER TO DETERMINE WHETHER OR NOT THE SELECTION BOARD HAD REGARD TO THE RELEVANCE OF PRACTICAL EXPERIENCE IN RELATION TO THE OFFICIALS WHO WERE CANDIDATES FOR THE SAID COMPETITION NO COM/A/325,
Grounds
1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 10 MAY 1982, MR DAVID LIPMAN BROUGHT AN ACTION AGAINST THE COMMISSION OF THE EUROPEAN COMMUNITIES FOR, ON THE ONE HAND, THE ANNULMENT OF THE DECISION OF THE SELECTION BOARD FOR OPEN COMPETITION COM/A/325 NOT TO ADMIT HIM TO THE TESTS IN THAT COMPETITION AND, ON THE OTHER HAND, AN ORDER THAT THE COMMISSION SHOULD RE-OPEN AS REGARDS HIM THE PROCEDURE FOR THAT COMPETITION .
2 THE COMPETITION IN QUESTION WAS AN OPEN COMPETITION BASED ON QUALIFICATIONS AND TESTS, TO CONSTITUTE A RESERVE OF ADMINISTRATORS IN THE CAREER BRACKET COVERING GRADES 7 AND 6 OF CATEGORY A . THE NOTICE OF COMPETITION,
PUBLISHED IN THE OFFICIAL JOURNAL OF THE EUROPEAN COMMUNITIES ON 12 SEPTEMBER 1981, REQUIRED CANDIDATES FIRST, TO HAVE COMPLETED A FULL UNIVERSITY COURSE, WITH DEGREE OR DIPLOMA, IN AN APPROPRIATE FIELD, AND SECONDLY, TO HAVE AT LEAST TWO YEARS '
EXPERIENCE SINCE GRADUATION RELATED TO THE OPTION SELECTED .
3 THE APPLICANT, AN EMPLOYEE OF THE COMMISSION RECRUITED IN 1973 AS AN OFFICIAL IN GRADE B 4 AND THEN PROMOTED TO GRADE B 3 IN 1978, WAS ASSIGNED TO THE DIRECTORATE-GENERAL FOR EXTERNAL RELATIONS IN WHICH HE STILL WORKS . SINCE 1977 HE HAS BEEN ENTRUSTED WITH A NUMBER OF DUTIES ATTACHING TO GRADE A 7 . ON 1 AUGUST 1981, HE WAS AWARDED A BACHELOR OF LAWS DEGREE BY LONDON UNIVERSITY . ON 28 SEPTEMBER 1981, HE APPLIED FOR ADMISSION TO COMPETITION COM/A/325, SELECTING EXTERNAL RELATIONS AS HIS OPTION .
4 BY LETTER DATED 25 FEBRUARY 1982, THE HEAD OF THE RECRUITMENT DIVISION INFORMED MR LIPMAN THAT IT HAD NOT BEEN POSSIBLE TO ACCEPT HIS CANDIDATURE FOR THE COMPETITION ON THE GROUND THAT HE HAD NOT HAD AT LEAST TWO YEARS '
PRACTICAL EXPERIENCE SINCE GRADUATION .
I - CLAIM FOR THE ANNULMENT OF THE DECISION REFUSING TO ADMIT THE APPLICANT TO THE COMPETITION
1 . SUBMISSION THAT THE PROVISION IN THE NOTICE OF COMPETITION RELATING TO THE REQUIREMENT OF EXPERIENCE SHOULD BE GIVEN A WIDE INTERPRETATION .
5 THE APPLICANT CLAIMS THAT THE PROVISION IN THE NOTICE OF COMPETITION WHICH REQUIRES THAT ' ' CANDIDATES MUST HAVE COMPLETED . . . AT LEAST TWO YEARS '
EXPERIENCE SINCE GRADUATION . . . ' '
MUST BE INTERPRETED BROADLY AND THAT CONSEQUENTLY, IN VIEW OF THE LENGTH AND QUALITY OF HIS PRACTICAL EXPERIENCE
BEFORE GRADUATION AND EVEN THOUGH HE DID NOT HAVE AT LEAST TWO YEARS '
EXPERIENCE AFTER GRADUATION, HE SHOULD HAVE BEEN ADMITTED TO THE TESTS .
6 FIRST, THE COURT FINDS THAT THE TEXT WHOSE APPLICATION IS AT ISSUE CLEARLY STATES THAT ONLY EXPERIENCE SINCE GRADUATION MAY BE TAKEN INTO ACCOUNT . CONSEQUENTLY, NO INTERPRETATION CAN OVERRIDE SUCH A CLEAR TEXT, ESPECIALLY WHERE THE PURPOSE OF THE TEXT CLOSELY CORRESPONDS TO THE INTENTION OF THE APPOINTING AUTHORITY WHICH HAS A WIDE DISCRETION IN THIS AREA . NOR, THEREFORE CAN THAT REQUIREMENT LAID DOWN IN THE NOTICE OF COMPETITION BE REGARDED AS BEING OF SECONDARY IMPORTANCE .
7 SECONDLY, MR LIPMAN RELIES IN SUPPORT OF THIS SUBMISSION UPON THE PROVISIONS OF ARTICLE 1 ( D ) OF ANNEX III TO THE STAFF REGULATIONS OF OFFICIALS, WHICH PROVIDES THAT THE NOTICE OF COMPETITION MUST SPECIFY ' ' THE DIPLOMAS AND OTHER EVIDENCE OF FORMAL QUALIFICATIONS OR THE DEGREE OF EXPERIENCE REQUIRED FOR THE POSTS TO BE FILLED ' ', AND INFERS FROM IT THAT THE CONDITION RELATING TO PRACTICAL EXPERIENCE SHOULD BE FORMULATED IN RELATION TO THE POST TO BE FILLED AND NOT IN TERMS OF WHEN THE EXPERIENCE WAS ACQUIRED IN RELATION TO THE DEGREE OR DIPLOMA . THAT ARGUMENT CANNOT BE ACCEPTED . IN FACT, THE ONLY PURPOSE OF THE ABOVE-CITED PROVISION OF THE STAFF REGULATIONS IS TO SPECIFY THE HEADINGS, WHICH EVERY NOTICE OF COMPETITION MUST CONTAIN, AND CANNOT BE REGARDED AS LAYING DOWN THE PRECISE CONTENT OF EACH OF THOSE HEADINGS . MOREOVER, AS THE COURT HAS ALREADY RULED IN ITS JUDGMENT OF 5 APRIL 1979 IN CASE 117/78 ORLANDI V COMMISSION ( 1979 ) ECR 1613, 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 GRADE IN QUESTION ACCORDING TO THE NATURE OF THE DUTIES ATTACHING TO THE POSTS AND DO NOT CONCERN THE CONDITIONS OF RECRUITMENT . THOSE CONDITIONS ARE GOVERNED BY THE PROVISIONS OF ARTICLE 29 OF AND ANNEX III TO THE STAFF REGULATIONS AND THERE IS NOTHING TO PREVENT THE CONDITIONS FIXED BY THE NOTICE OF COMPETITION IN RELATION TO PARTICULAR POSTS OR PARTICULAR CATEGORIES OF POSTS FROM BEING MORE RIGOROUS THAN THE MINIMUM CONDITIONS ARISING OUT OF THE CLASSIFICATION OF POSTS, WHETHER IN ORDER TO FILL A PARTICULAR VACANT POST OR TO DRAW UP A RESERVE IN ORDER TO FILL POSTS IN A PARTICULAR CATEGORY .
8 IT FOLLOWS FROM THE FOREGOING CONSIDERATIONS THAT THE FIRST SUBMISSION MUST BE REJECTED .
2 . SUBMISSION BASED ON THE FAILURE TO OBSERVE ARTICLE 5 ( 3 ) OF THE STAFF REGULATIONS OF OFFICIALS
9 ARTICLE 5 ( 3 ) OF THE STAFF REGULATIONS OF OFFICIALS PROVIDES THAT ' ' IDENTICAL CONDITIONS OF RECRUITMENT AND SERVICE CAREER SHALL APPLY TO ALL OFFICIALS BELONGING TO THE SAME CATEGORY OR THE SAME SERVICE . ' '
IN SUPPORT OF THE SUBMISSION BASED ON THE FAILURE TO OBSERVE THAT PROVISION, MR LIPMAN ON THE ONE HAND CLAIMS THAT THE NOTICE OF INTERNAL COMPETITION NO COM/A/4/81 PUBLISHED AT THE SAME TIME AS THE CONTESTED NOTICE DID NOT REQUIRE THE CANDIDATES TO BE UNIVERSITY GRADUATES, SO RULING OUT ANY CONDITION CONCERNING THE TIME WHEN THEIR PRACTICAL EXPERIENCE WAS AQUIRED AND, ON THE OTHER HAND, CONTENDS THAT OTHER CANDIDATES WERE ADMITTED TO THE TESTS IN COMPETITION NO COM/A/325, EVEN THOUGH THEIR PRACTICAL EXPERIENCE WAS NOT RELATED TO THE OPTION SELECTED .
10 THOSE TWO ARGUMENTS CANNOT BE ACCEPTED . FIRST, MR LIPMAN CANNOT RELY TO ANY PURPOSE UPON CONDITIONS OF ADMISSION TO ANOTHER COMMISSION COMPETITION, WHICH WAS ORGANIZED ACCORDING TO DIFFERENT PROCEDURES AND WHICH PURSUED A DIFFERENT AIM, IN SUPPORT OF THE CLAIM, FORMULATED IN HIS CONCLUSIONS, THAT THE DECISION OF THE SELECTION BOARD IN COMPETITION NO COM/A/325 SHOULD BE ANNULLED ; MOREOVER, THE SECOND ARGUMENT PUT FORWARD IN SUPPORT OF THE SUBMISSION IS IN ANY EVENT INVALID SINCE IT CONCERNS THE NATURE OF THE PRATICAL EXPERIENCE AND NOT WHETHER OR NOT THAT EXPERIENCE WAS OBTAINED AFTER GRADUATION .
11 CONSEQUENTLY, AND WITHOUT ITS BEING NECESSARY TO ORDER THE MEASURE OF INQUIRY REQUESTED BY THE APPLICANT IN RELATION TO THE SECOND PART OF THE SUBMISSION, THERE IS NO ALTERNATIVE BUT TO REJECT THAT SUBMISSION .
3 . SUBMISSION RELATING TO THE BREACH OF THE PRINCIPLE OF EQUALITY
12 IN SUPPORT OF THIS SUBMISSION, THE APPLICANT RELIES UPON THE FACT THAT THE COMPARISON OF HIS SITUATION WITH THAT OF OTHER CANDIDATES ADMITTED TO THE
COMPETITION, EVEN THOUGH THEIR PRACTICAL EXPERIENCE WAS LESS WEIGHTY AND RELEVANT THAN HIS OWN, REVEALS A SITUATION WHICH IS ' ' ARTIFICIAL ' ', ' ' UNFAIR ' '
AND CONTRARY TO THE PRINCIPLE OF EQUALITY .
13 AS THE COURT HAS REPEATEDLY RULED, THERE IS NO BREACH OF THE PRINCIPLE OF EQUALITY WHERE A PARTICULAR OBJECTIVE RULE IS APPLIED IN THE SAME MANNER TO ALL OFFICIALS OR CANDIDATES WHO ARE PLACED IN THE SAME POSITION . IN THIS CASE, SINCE IT DOES NOT APPEAR FROM THE FILE AND IT IS NOT EVEN ALLEGED THAT CANDIDATES WITH LESS THAN TWO YEARS '
PRACTICAL EXPERIENCE AFTER GRADUATION WERE ADMITTED TO THE COMPETITION, THE SUBMISSION CAN ONLY BE REJECTED .
4 . SUBMISSION ON THE DISREGARD OF THE PRINCIPLE OF PROPORTIONALITY
14 THE APPLICANT CLAIMS THAT THE NATURE OF THE CONDITION LAID DOWN IN THE NOTICE OF COMPETITION IS CLEARLY OUT OF PROPORTION TO THE VERY DETRIMENTAL CONSEQUENCES WHICH IT HAS ON THE DEVELOPMENT OF HIS CAREER .
15 THE COURT CAN ONLY FIND THAT, WHATEVER THE APPLICANT ' S MERITS, THE CONDITION LAID DOWN IN THE NOTICE OF COMPETITION WAS NOT VITIATED BY ANY ILLEGALITY AND WAS PROPERLY APPLIED BY THE COMMISSION TO MR LIPMAN ' S CASE . THEREFORE THE CONSEQUENCES OF THE CONTESTED DECISION CANNOT AFFECT ITS LEGALITY, AND THE PRINCIPLE OF PROPORTIONALITY CANNOT BE SUCCESSFULLY RELIED UPON IN THIS CASE .
II - CLAIM THAT THE COMMISSION SHOULD BE ORDERED TO RE-OPEN, AS REGARDS MR LIPMAN, THE PROCEDURE FOR COMPETITION NO COM/A/325
16 THE COURT CANNOT, WITHOUT TRESPASSING UPON THE PREROGATIVES OF THE ADMINISTRATIVE AUTHORITY, ORDER A COMPETITION TO BE OPENED OR RE-OPENED . CONSEQUENTLY, AND IN ANY EVENT, SUCH A CLAIM IS INADMISSIBLE .
17 IT FOLLOWS FROM ALL THE CONSIDERATIONS SET OUT ABOVE THAT MR LIPMAN ' S APPLICATION MUST BE DISMISSED .
Decision on costs
COSTS
18 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS .
19 HOWEVER, UNDER ARTICLE 70 OF THE RULES OF PROCEDURE, COSTS INCURRED BY THE INSTITUTIONS IN APPLICATIONS BY OFFICIALS OF THE COMMUNITIES ARE TO BE BORNE BY THE INSTITUTIONS THEMSELVES .
Operative part
ON THOSE GROUNDS,
THE COURT ( THIRD CHAMBER )
HEREBY :
1 . DISMISSES THE APPLICATION ;
2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .