II —

We shall examine firstly the submissions in the application impugning the ‘competition notice’, that is to say impugning the decision by which the Commission decided to fill by competition four vacant posts for administrative assistants. The procedure for recruitment competitions is laid down by Annex III of the Regulation. Article 1 of this Annex enumerates the information which the competition notice must contain, including (Article 1 (1) (g)) the age limit to be applied to candidates and the extension of this age limit in favour of servants already in employment for at least one year. It is upon the breach of this provision that the applicant relies first of all. It is an agreed fact that the disputed competition notice made no mention of any age limit. This plea raises two questions: 1. The first is a question of law. Is the inclusion of an age limit in a competition notice compulsory? Does its absence suffice to vitiate the working of the competition? The actual wording of Article 1 (1), as it stood at the time of the opening of the disputed competition, seems to me to compel an affirmative answer on this point. Among the nine specific points to be covered by a competition notice, only two have, according to this provision, an optional character. These include ‘knowledge of languages’ (subparagraph (f)), inclusion of which is only required ‘where applicable’, in so far as such knowledge is necessitated by the particular nature of the posts to be filled; the case is similar where there are possible exceptions from the principle formulated by Article 28 (a) of the Regulations, which makes it obligatory to appoint as officials of the Communities only nationals of the Member States in possession of their full rights as a citizen; these exceptions are, of course, left to the discretion of the appointing authority (subparagraph (i)). The competition notice, clearly, can only contain such a statement if the institution in question has taken advantage of the power granted to it to make an exception. On the other hand, all the other statement listed must, as a matter of obligation, appear in the text of a competition notice. This applies not only, for example, to the nature of the competition itself, to the type of duties and tasks involved in the posts to be filled, or to the certificates or other evidence of formal qualifications or the degree of experience required, but equally to the age limit to be applied. The provision then in force allowed the administrative authority no latitude. The Court (First Chamber) in a judgment of 22 March 1972 (Costacurta, Case 78/71) held that the details stipulated by Article 1 (1) of Annex III aim to ensure that, in every case where a post is to be filled by way of competition, the conditions of recruitment should be adapted as far as possible to meet the requirements of the post, and that, in making it obligatory to specify these conditions in the competition notice, the authors of the Regulations meant to prevent the appointing authority from being able to justify the rejection of certain candidates by availing itself of conditions of recruitment which had not previously been made sufficiently clear to all interested parties. Among these conditions, the age of the candidates may well be an important factor in so far as concerns the quality and capacity of the officials to be recruited. Furthermore, servants already in employment have a particular advantage granted them when an age limit is fixed, since they benefit from an extension of this limit by reason of their seniority in service. Thus, both the wording and the spirit of this provision impelled the Court to hold that the competition notice, under pain of nullity, must specify the age limit to be applied and also the extension allowed in favour of candidates in the Administration. True, the judgment of 22 March 1972 adds that it is not impossible for the question of age to be unimportant in certain employments, and that in this case a field of recruitment as wide as possible appears necessary; but the Court added that this possibility, which is of an exceptional character, could only be admitted because of the special nature of the posts to be filled and that in this case the competition notice must state explicitly that in the case in question an age limit has not been judged necessary. Such, Members of the Court, is the tenor of the Court's judgments — I am going to add a further point for consideration: the idea of an age limit need not be confined to an upper limit only, that is to say to the statement of an age above which candidates cannot be recruited; it extends equally to a lower limit, that is to say a minimum age which can be required by the Administration for the exercize of certain duties. These reasons for obliging the administrative authority to state the age limit to be applied in a competition have not, it is true, prevented the authors of the Regulations from modifying Annex III on this point, since by Regulation No 1473/72 of the Council, which came into force on 1 July 1972, the new text of the provision appearing in Article 1 (1) (g) has been completed by the addition of the words ‘where appropriate’. Henceforth, the statement of an age limit is no longer necessary. Should not the former Regulation, accordingly, be interpreted in the light of the modification? This is the Commission's argument. For my part, I hold quite the contrary, that if the Council thought it necessary to put an end to the previous obligation when opportune, the new rule certainly cannot prevail over the previous text which was perfectly explicit and clear, nor could it establish, a posteriori, a different interpretation from that accepted by the Court in the judgment of 22 March 1972. If the legislator has a clear right to change his mind, the judge has an equally clear duty to apply the provisions in force at the date of the events with which he is dealing. I urge you, therefore, on this first point, to confirm the solution which the First Chamber of the Court has already accepted in an identical case and for perfectly valid reasons. 2. But a further question arises, put by the Commission. Mr Marcato is said to be precluded (by lack of interest) from putting forward the plea drawn from the absence of a stated age limit in the competition notice. In fact, of the fifteen people who submitted their candidature, only one, born in 1922, was older than the applicant, who was born in 1928. All the other candidates were much younger: their dates of birth range from 1936 to 1947. Accordingly the Commission argues that an age limit set at 60 or even at 50 years would have had no effect since even the oldest candidate would not have been excluded. On the other hand, fixing the age limit at 40 years would have resulted in eliminating the applicant's candidature. Members of the Court, there is a reason of principle for rejecting this argument. An operative interest to act in the field which concerns us, that is to say an interest in getting an administrative act annulled, can be judged only in the light of the submissions in the application, not in the light of the pleas invoked. A candidate not admitted to a competition has an incontestable interest in challenging the working of the competition from which he considers himself to have been illegally excluded. He cannot be held to be precluded from pleading a point of law, whatever it may be, for the very object of his application is to ensure that the law be observed; and it is the duty of the judge to ensure this observance. Must it be said, then, that the plea is ineffective? That, even if well founded, it could not lead to the annulment of the act impugned? Such is not the case, in my opinion, and there are two fallacies in the Commission's reasoning. In the first place, there is no reason for saying that if an age limit had been fixed its effect would have been either to make no change in the conditions of the competition, or necessarily to eliminate the applicant's candidature. A lower age limit, the fixing of a minimum age, could, on the contrary, have resulted in eliminating the youngest candidates; an upper age limit could have affected the oldest candidate and not the applicant himself. And in particular, operating an extension of the age limit would have introduced an element in addition to age itself, seniority in service, and there is no reason to think that the conditions of the competition would not have been altered. I do not think that, on this point, you can indulge in hindsight and, putting yourselves in the place of the Administration, imagine what would have been the results of fixing an age limit at one level rather than at another. You are confronted by a clear and mandatory provision: its breach is invoked by the applicant whose interest in obtaining the annulment of the competition notice is incontestable. This plea appears to me well-founded. I support then without hesitation the annulment of this decision opening the competition, a decision expressly challenged in argument.