5.

As regards the reference to Case 156/78 Newth [1979] ECR 1941, I consider that the Court arrived at its decision as a result of the fact that there was “discrimination as compared to other officials in a comparable situation” (paragraph 13). Therefore I will now consider the merits of the applicant's arguments concerning the claim that he was the subject of discrimination. He points out that Internal Competition No COM/A/481 did not require any diploma or degree and therefore could not lay down a requirement of practical experience after graduation either. I agree with the Commission that each competition stands on its own and cannot be compared with other competitions with different aims and requirements, regard also being had to the broad terms of the provisions in that connection contained in Article 1 of Annex III. The internal competition in question was designed to promote to Category A officials who had followed an administrative and financial course within the service. The other requirements were adapted to that different purpose. As regards the contention that in assessing the candidates for the open competition in question the requirement that experience should be related to the field selected was not always enforced, I do not see how that submission can succeed even if it were shown to be correct in these proceedings. Such an omission could not be interpreted to the applicant's advantage, nor could it result in discrimination against him. In relation to the argument that applicants with less experience, namely the minimum of two years, were admitted to the competition whereas the applicant with more experience, namely in his submission six years', was not, so that there was a breach of the principle of equality, I wish to make the following remarks. In the first place, it is questionable whether the applicant's situation is comparable to that of the other candidates. The applicant acquired his experience before sitting for his degree, whereas the others acquired their experience afterwards, as is expressly required by the notice of competition. As I have already observed, the authorities have in my opinion the power to frame that requirement as it thinks fit in the interests of the service. They obviously did not intend to equate practical experience with any academic training. Therefore in my opinion there is here — by contrast with the position in Newth — no question of discrimination in the sense that indentical or equivalent cases are treated differently or different cases are treated indentically without objective reasons. In Newth this Court came to the conclusion that the application of a general rule in the case in point resulted in a breach of a superior rule of law, in that case the principle of equal treatment. In order to avoid that result, the Court ruled that the contested provision should not be taken into account in that particular case with regard to the question of the place of residence, which was the decisive question in the case. Thus the legality of the provision as such was not thereby affected. Perhaps the applicant would have been more likely to succeed in his application if he had, in like manner, directed his recourse to the principle of equal treatment to his own particular case and had expressly accepted the rules laid down and the way in which they were interpreted by the Commission. His whole argument during the written and oral procedure was, however, directed precisely towards challenging those requirements and the interpretation of them. The Commission can admittedly put an end to the unfair position in which the applicant finds himself by organizing an internal competition in accordance with Article 29 of the Staff Regulations, before filling a vacant post in the department in question. Thus it is by no means yet established that the applicant's career has been unfairly prejudiced by the procedure followed. Naturally no decision can be taken in these proceedings concerning the question whether the Commission is bound to organize such an internal competition in any future case.