OPINION OF MR ADVOCATE-GENERAL

DUTHEILLET DE LAMOTHE

DELIVERED ON 28 APRIL 1971 ( 1 )

Mr. President,

Members of the Court,

Mr Bode is an official of German nationality who entered the service of the High Authority of the ECSC in 1956.

From 1956 to 1963 he was assigned to the Press and Information Department of the High Authority, then to a body called the Communities' Information Office in Bonn which is in fact a branch of the Press and Information Department intended primarily on the one hand to supply to the German press any information for which it might ask about the policy followed by the Community authorities and on the other to inform the latter about the chief features of political, economic and social life in the Federal Republic of Germany.

In 1963 he was transferred to Luxembourg, then, having spent several months without any clearly defined post, he was assigned, again in Luxembourg, first to the Documentation Department of the Directorate-General for Labour, Reorganization and Redeployment Problems, then from 11 June 1969 to the Safety Problems in the Coal and Steel Industry Division in the Directorate-General for Social Affairs. He is an official classified in Grade A 4.

In 1969 a vacancy notice relating to a post in Grade A 4 or A 5 at the Communities' Information Office in Bonn appeared, a description of which I shall give presently, which seemed to the applicant quite similar to the post which he had formerly held.

As he wished to return to Bonn, he submitted his application for this post at the same time as five other officials.

The Commission considered that none of these applicants fulfilled the required conditions, but then instead of following the normal procedure laid down by Article 29(1) of the Staff Regulations, that is, holding an internal competition and possibly an open competition, it decided by means of one and the same decision on the one hand to reject all the applications which had been submitted and on the other to use the special procedure laid down by Article 29(2), that is to fill the vacancy at its discretion and without any competition, in short to appoint to the vacant post Mr Heinrich, who was until that time employed by the Parliamentary Group of one of the big German political parties in the Bundestag.

Mr Bode sent a complaint to the President of the Commission.

He appealed against the implied decision to reject this complaint by Application 45/70.

Afterwards, as the President of the Commission had taken an express decision rejecting his complaint, the applicant requested the Court in Application 49/70 to annul that express decision.

I

The first question which these two applications present is the question of their admissibility which was formally raised by the Commission, but which arises under different circumstances with regard to Application 45/70 and with regard to Application 49/70.

A — First: Application 45/70

In this application, the applicant requests the annulment

1. of the implied decision rejecting his complaint,

2. of the decision of which he was notified on 19 February 1970 informing him that his application had been rejected,

3. of the appointment of Mr Heinrich.

Finally, the applicant requests that the vacancy notice which launched the recruitment procedure be declared illegal.

The Commission maintains first that the first three conclusions contained in the application are inadmissible and relies on the actual wording of Mr Bode's complaint.

According to the Commission, Mr Bode merely requested in that complaint the annulment of the decision rejecting his application. The Commission claims, on the one hand, that since this decision was only one of the measures involved in the recruitment procedure, there could be no appeal against it as such, and on the other, that the conclusions directed against Mr Heinrich's appointment are out of time since they were not included in Mr Bode's first complaint. Thus, if the Commission's view were followed, the application is inadmissible on these three heads because of a sort of legal ‘flying trapeze’ exercise between the concept on the one hand of a premature application and on the other of an application which is out of time.

But I shall not suggest that you accept the Commission's arguments.

The decision rejecting Mr Bode's application is a decision which affects him adversely. Therefore he had the choice either of requesting the annulment thereof directly, or of alleging that it was illegal in support of a complaint directed against Mr Heinrich's appointment, or finally, of having recourse to both methods of appeal concurrently.

In any recruitment procedure involving several stages, that is, a procedure of a complex nature, the official must still be able to choose the legal means which he wishes to use if he is to be allowed to assert his rights.

The Court ruled to this effect expressly with regard to recruitment procedures involving competitions in its judgments of 30 March 1965(Ley) and 7 April 1965(Alfieri); it is even more necessary to state this where the administration has recourse in an exceptional case to a procedure involving discretionary power since in such a procedure an official does not obtain the benefit of the guarantees inherent in the actual competition system.

Nor does the Commission's second argument withstand careful examination of the applicant's complaint.

In my opinion, one should not adopt a too formal attitude as regards complaints submitted by officials where these complaints are sent to the competent authority within the period prescribed for an appeal to the Court which is so in the present case.

In fact it should not be forgotten that, on the one hand, these complaints are in general drafted without the aid of a legal adviser and that on the other, they must have regard to a certain number of factors of courtesy, respect and good working relations, which must be protected for as long as possible and at least while the matter has not been brought before the Court.

In this case, it is quite correct, as the Commission stresses, that although Mr Bode mentions Mr Heinrich's appointment, he does not formally request its annulment, but nevertheless this is the subject-matter of his complaint as a whole.

In fact, all the arguments developed by Mr Bode are intended to show that he should be appointed to the post to which Mr Heinrich has just been allocated. If the Commission had complied with bis wish, it would necessarily have had to revoke Mr Heinrich's appointment. I think therefore that in these circumstances, this complaint had the effect of preserving the period prescribed for an appeal to the Court against Mr Heinrich's appointment. In addition, it should be noticed that this appointment does not seem ever to have been published or posted and that although it had been decided in principle from 22 October 1969, it only took effect in January 1970 at the earliest and at an unknown date. In these circumstances, it would be difficult to determine the date on which the period prescribed for an appeal to the Court started to run if it were intended to raise a plea of inadmissibility against the conclusions contained in the application on the ground that it was made out of time.

Finally, as regards the Commission's argument that the applicant has no interest in contesting the vacancy notice, it is based on the statement that the vacancy notice could validly omit the information that the post might possibly be filled by using the special procedure laid down by Article 29(2). But that is not a question of admissibility but a question on the substance of the case which I shall come back to presently.

Therefore, in my opinion, all the conclusions contained in Application 45/70 are admissible.

B — Application 49/70

As regards this application, the Commission claims that since the express decision which is being contested simply confirmed the implied decision contested in Application 45/70, Application 49/70 is therefore inadmissible.

But the Commission in my opinion seems to have misinterpreted the case-law of the Court on this point.

It is true that you held, in particular in your judgments in the Nebe case of 14 April 1970, [1970] ECR, and in the Kschwendt case of 17 March 1971 that where an implied decision has not been contested within the period prescribed for an appeal to the Court, the application appealing against the express decision which simply confirmed the implied decision which had become final is inadmissible.

This reason for this is that you did not intend that the administration's delay in replying to a request could start time to run afresh for the purpose of an appeal against an implied decision which had become final.

But this case, where the applicant contested the implied decision in time and likewise contested the express decision in time, is quite different.

If he were denied the right to challenge this express decision, this would lead to strange results as I shall show you by an example.

If you grant Mr Bode's Application 45/70 and you annul the implied decision you ought, on the other hand, if the Commission's argument is followed, in any event to dismiss Application 49/70 which was directed against the express decision.

The result of this would be that the express decision which however simply confirmed an implied decision which you had annulled, would still exist and it would then fall only to the Commission in application of Article 176 of the Treaty which provides for ‘restitutio in integrum’ in similar cases to revoke it of its own accord following your judgment.

Therefore it is really impossible to see why the applicant should not be able to ask the Court to annul the express decision.

Accordingly, my opinion is that when an applicant has sought the annulment of an implied decision within the period prescribed for an appeal to the Court, he may subsequently request the annulment of the express decision confirming the implied decision provided that the second application is also lodged within the prescribed period.

II

Let us now turn to the substance of the case.

Over and above the present case this matter is of fundamental interest because I believe this is the first time that you will have to give a ruling on the conditions for the application of a quite exceptional provision in the Staff Regulations, namely Article 29(2).

I would therefore like to say a few words about this provision very briefly.

The first paragraph of Article 29 lays down the rules which are generally applicable to recruitment procedures.

Whenever the appointing authority decides to fill a vacancy it must consider in turn

1. whether the post can be filled by promotion or transfer within the institution,

2. whether the post can be filled by holding internal competitions on the basis of qualifications and tests,

3. whether the post can be filled by transferring officials of other institutions,

and it is only if the vacancy cannot be filled by any of these methods that the competent authority may decide either to hold an inter-institution competition in which the officials of the various institutions may take part or what is usually called an ‘open competition’ in which both servants of the Communities and persons from outside the Community institutions may. take part.

The second paragraph of the same article provides for an exception to the general rules laid down in the first paragraph.

It provides that a procedure other than the competition procedure may be adopted by the appointing authority in two cases:

— for the recruitment of Grade A 1 or A 2 officials,

— for the recruitment of other officials, but in ‘exceptional cases, also for recruitment to posts which require special qualifications’.

As you can see, my Lords, the two situations are treated differently by the authors of the Staff Regulations.

With regard to recruitment to posts in Grades A 1 and A 2, the power of the appointing authority not to use the competition procedure is a power which is ‘quasi-discretionary’ since no conditions are laid down for its exercise. On the other hand, as regards posts in lower grades, the Staff Regulations lay down conditions.

There are in fact two of these conditions:

— it must be an exceptional case,

— the post must require special qualifications.

Strictly speaking, the two clauses must in my opinion be united and read together so as in fact to understand them to constitute one and the same condition rather than two separate conditions, the first of which would be moreover difficult to assess.

The real condition laid down by the provision seems to me in fact to be that the vacant post requires special qualifications so that it can only be filled by using a special procedure.

The very fact that the authors of the Staff Regulations laid down that condition when they prescribed no conditions for the application of that article as regards officials in Grades A 1 and A 2 is sufficient to show that those authors intended to give officials protection against the abuse of this provision which could have had the result of making the provisions of Article 29(1), which are normally applicable, meaningless.

Therefore you will have to be particularly careful in reviewing the conditions for the application of that provision in order to ensure that the rights of officials are not infringed by that application.

Mr Bode maintains that the procedure followed in this case did not observe those rights and puts forward in this connexion three submissions all of which seem to me, let me say at once, to be well founded.

The first submission is based on the claim that the Commission could not decide as it did, by One and the same decision to apply Article 29(2) and to appoint Mr Heinrich, when the vacancy notice did not mention that the post which had been declared vacant required special qualifications nor that the procedure laid down in Article 29(2) was likely to be applied.

In my opinion this submission must be upheld for two reasons:

(a) First of all a reason which is entirely legal. The vacancy notice which Article 4 of the Staff Regulations compels the competent authority to publish is a document which is internal to the Communities. In the first stage of the procedure only the staff of the institution are informed of it and at a later stage of the procedure the staff of the other institutions are informed of it. It follows that unless special information has been given, only servants of the Communities can submit applications by virtue of this vacancy notice. On the other hand, when a decision is made to hold a competition it can be publicized outside the Communities. In fact, if this competition is a so-called open competition, that is to say, open both to servants of the Communities and to persons outside the Communities, the notice advertising this competition must be published in the Official Journal of the European Communities, that is, all citizens of the Member States must be informed of it. In my opinion it follows that when a decision is taken not to hold a competition, the publicity required for applicants from outside the Community institutions to come forward must be achieved by mentioning in the vacancy notice that Article 29(2) is likely to be applied in order to fill the vacant post and by inserting this vacancy notice in the Official Journal of the European Communities. The present case is an excellent example of the need for this publicity. In fact, it is impossible to know how the Commission departments were able to find out that Mr Heinrich had applied for the vacant post. Nobody knows whether other applicants from outside the Community institutions would have come forward if they had been informed, as they would have been in the case of an open competition, that they could submit an application. In my opinion the obligation imposed on the administration to mention in the vacancy notice that Article 29(2) is likely to be applied in view of the nature of the post, and the publication of that notice in the Official Journal, are therefore necessary if it is intended, as Article 27 of the Staff Regulations provides, that ‘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’.

(b) Added to this first reason is a second based on both legal considerations and considerations based on the sound management of staff. If, as in the present case, after publishing a vacancy notice the wording of which could not lead one to suppose that it did not relate to a post which had to be filled according to the ordinary procedure, the appointing authority suddenly decides by one and the same decision to reject all the applications which have been properly submitted, to apply Article 29(2) and to appoint a person from outside the Community institutions who could not have been supposed to be a candidate in view of the internal vacancy notice, this necessarily leads to some doubt in the minds of all the officials concerned as to the true motives of the appointing authority. In the present case, Mr Bode does not hesitate to state that the contested decision of the Commission was a case of misuse of powers since the Commission only had recourse to Article 29(2) to appoint Mr Heinrich whom it had intended to recruit from the beginning. As I shall say presently, this misuse of powers does not seem to me to be proved, but nevertheless it is clear that the procedure which was followed was capable of arousing suspicion and doubt. It is true that the Commission puts forward a practical argument against the contention that the vacancy notice should indicate that the post is likely to be filled under the conditions laid down in Article 29(2). It claims that it is impossible to determine whether Article 29(2) will or will not have to be applied before the applications submitted by servants of the institution and possibly by servants of the other institutions have been examined. However, my Lords, these arguments first come up against a very strong legal objection, since the Commission's views seems to spring from a misinterpretation of Article 29(2) of the Staff Regulations. In tact, under this article the possibility of deciding not to use the competition procedure with regard to posts corresponding to grades other than Grades Al and A2 does not depend on the candidate's qualifications for the vacant post but, according to the actual wording of the Staff Regulations, on the special qualifications required for the vacant post. If the candidates from among the staff of the Communities are not sufficiently well qualified, this may justify holding an open competition. But only the special qualifications required by the post may provide legal grounds for recruiting by a method other than that of competition. It is clear that the special qualifications required by the post are known without there being any need to know the personal qualifications of those who will apply for it. In my opinion to make the application of Article 29(2) depend on the candidates' qualifications and not on the qualifications for the vacant post would therefore constitute a breach of the letter and the spirit of this provision. I must add, moreover, that from the practical point of view, pointing out in the vacancy notice that Article 29(2) is likely to be applied does not present any serious difficulty since, for example, there are already many notices called‘notice of competition/vacancy notice’ in which the institution expressly states in advance that it has decided to hold an internal competition if the post cannot be filled by promotion or transfer.

Therefore, in my opinion recourse may validly be had to Article 29(2) only if the vacancy notice or in any case a subsequently published document has provided for the possibility thereof.

This is not so in the present case and it is the first of the formal defects which in my opinion justifies the annulment of the contested decisions.

But I think that there is also another formal or procedural defect.

As Mr Bode maintains, I believe in fact that the decision of the Commission to apply Article 29(2) does not sufficiently state the reasons on which it is based.

I think, in fact, that such an important decision must give a statement, and a sufficient statement, of the reasons on which it is based, in particular to enable the Court to review the legality of that decision.

It must contain at least a brief account of the reasons why the competent authority considers that the post requires special qualifications and that therefore recourse to the special procedure laid down in Article 29(2) is justified.

In the present case there is nothing of this kind. The Commission merely briefly recites the following in the paragraph of its decision preceding the one relating to Mr Heinrich's appointment: ‘The appointing authority finds that the qualifications required to perform the duties relating to the post to be filled are special qualifications within the meaning of Article 29(2) of the Staff Regulations. It finds in addition that as regards the recruitment of an official qualified to perform the duties relating to the post abovementioned this is an exceptional case within the meaning of the same provision’.

The Commission therefore does not explain in any way why the vacant post required special qualifications and why this was an exceptional situation.

This brevity could still be justified and explained if there were an indication of these special qualifications in the vacancy notice, but there is nothing of the kind and this brings me to the third submission put forward by Mr Bode which I likewise believe is well founded.

Mr Bode maintains in fact that the vacant post did not require special qualifications within the meaning given to this expression by Article 29(2).

In my opinion, since the existence of these special qualifications is one of the legal conditions for the application of Article 29(2), you must review its legality, and even review it quite strictly, because if this concept were widened in any way, it could, as I have said, make the normal rules for recruitment laid down in Article 29(1) ineffective.

It seems to me certain that the authors of the Staff Regulations meant, by this concept of ‘post requiring special qualifications’, to refer to ‘exceptional’ cases as the provision itself states, where either the technical or the special nature of the post mean that only a limited number of persons already highly specialized and having unusual knowledge and experience are eligible for it and the appointing authority must be able to exercise its freedom of choice between them.

But the post, as it is described in the vacancy notice, does not seem to me to come within this category. The qualifications required are in fact the following (I quote) ‘University level education as evidenced by a diploma or an equivalent level of professional experience; thorough knowledge of the duties and activities of the European Communities; wide experience of information work; experience of drafting reports and press releases’.

It is true that this is an important post which requires the experience and the qualifications of a good press office man.

But if it were accepted that such qualifications come within the category laid down in Article 29(2) of the Staff Regulations then it is impossible to see where it would stop and why for example the same decision would not be made in respect of the qualifications required for all staff working in the legal departments or departments dealing with economic affairs in the Communities.

Therefore I am of the opinion, since there are no details in the file on this point, that the vacant post was not of a type in respect of which the appointing authority may apply the provisions of Article 29(2).

Therefore in my opinion three of the submissions put forward by Mr Bode are well founded and may legally justify the annulment of the contested decisions.

I shall therefore treat the other submissions contained in the application briefly. Mr Bode maintains that the Commission made a mistake by not considering him qualified to hold the vacant post, but you can only review this evaluation if it is based on a substantial mistake or if it is the result of misuse of powers; in the present case neither a substantial mistake nor a misuse of power have been proved.

The applicant maintains, it is true, that the only reason why he was rejected was to enable Mr Heinrich to be appointed. As I have said, the procedure which was followed was such as was clearly capable of arousing suspicions of this sort in applicants who were rejected, but no document in the file proves that the Commission had any other aim than the interests of the service.

Therefore it is only on account of procedural defects that I conclude that:

1. Mr Heinrich's appointment and all the steps taken in the recruitment procedure which led to this appointment should be annulled;

2. The Commission should be ordered to bear the costs of the two applications.

( 1 ) Translated from the French.