1.

The applicant first disputes the competence of the Secretary-General as the appointing authority to define in the terms which he used the post declared vacant which he decided to fill. It is, he says, for the institution itself, that is to say for the Council, under Article 5(4) of the Staff Regulations to define the duties and powers attaching to each post. In fact the decision of the Council of 7 October 1963 contained only a very general description: in particular it was limited, for Grades A4 and A5 to which the career bracket of principal administrator corresponds, to the terms ‘advises a department of the institution’ or ‘undertakes advisory or supervisory duties under the authority of a Director or Head of Division’. It was thus possible, by reason of the ‘polyvalence’ of the posts in this career bracket, to fill vacancies therein by promoting an official of the secretariat; the appointment of candidates from outside the institutions was thus restricted to the lowest grades of the category. It is clear that Vacancy Notice 15-67 in specifying further requirements for the post to be filled, goes beyond the Council's definition. The applicant does not expressly dispute the fact that a post may in certain cases have its special requirements, but argues that these cannot be simply set out in a vacancy notice published by the Secretary-General within the framework of Article 4 of the Regulations; these must be laid down by a decision of the institution itself under Article 5(4). Only the authority which has defined the posts in general terms is empowered to express its definition in greater detail when there is a question of a specific post. This theory gives rise to a number of observations. The first is that the definition mentioned in Article 5(4), which moreover is in practice the same for the various institutions, is of necessity in very general terms and is laid down for the most usual cases; it is not therefore to be expected that it should cover the individual requirements of a particular post. This inevitable lack of precision has given rise to difficulties in cases where the holders of certain posts have had to be classified at the time of entry into force of the Staff Regulations and you have had an example of these difficulties in the Richard Müller case (Case 28/64 [1965] E.C.R. 237). The second observation is that the Secretary-General appears to find both in the Staff Regulations and the authority delegated to him by the Councils, sufficient powers to define the post to be filled. Under Article 17 of the rules of procedure of the Councils, the latter are assisted by a secretariat under the authority of a Secretary-General. It is they who determine the organization of the secretariat but by decisions of 14 May and 12 June 1962 they assigned to the Secretary-General all powers vested in the appointing authority in respect of all servants other than those in Grade Al. Moreover, so far as these powers are vested in him, it is for the Secretary-General not merely to publish the vacancy notice but first to decide that the vacancy has to be filled. This decision can indeed be taken only in the light of the actual duties to be undertaken in the post and this means that the person taking the decision must be able to assess the special abilities required for a given post, in other words to define the post accurately. The applicant's theory that this power lies only in the Council seems somewhat fanciful. So far as the institution does not itself exercise the power to organize the secretariat which it has put under the Secretary-General's direction, it must be admitted that he is empowered to take the necessary measures to ensure the running of the services or, to put it more precisely, saying that a principal administrator in the Legal Department must meet this or that requirement in order to carry out a particular task does not seem to me to go beyond the power to make assessments and decisions which it is acknowledged that the Secretary-General has. Admittedly in the course of the proceedings Mr Kurrer has stressed that the contested vacancy notice did not follow the practice hitherto adopted in the secretariat of restricting itself to the definition of duties laid down by the Council in 1963. The institution has replied that it had not “set out” these very general conditions and laid down specific requirements save in those fairly rare cases in which the exigencies of the service called for it. By way of example it has cited the posts of financial comptroller, head of archives and nurse. These are indeed very special cases, but however far back the relative vacancy notices may go — the actual date seems to me immaterial in the present case — the cases establish that what has been the most common practice has been no absolute rule; of itself this practice could not establish a legal principle, disregard of which would institute an illegal act. Moreover it cannot be taken that technical considerations which led to a precise definition of the post of financial comptroller are valid mutatis mutandis for that of assistant in the Legal Department.