Judgment of the Court (First Chamber) of 4 April 1974. - Manlio Serio v Commission of the European Communities. - Case 115-73.



European Court reports 1974 Page 00341

Greek special edition Page 00177

Portuguese special edition Page 00183



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

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1 . OFFICIALS - RECRUITMENT - SELECTION - CONSIDERATIONS - KNOWLEDGE AND EXPERIENCE RELATING TO A SPECIFIC NATIONAL SPHERE - ACCOUNT TAKEN - ACCEPTABILITY

( STAFF REGULATIONS, ARTICLE 27 )

2 . OFFICIALS - RECRUITMENT - COMPETITION ON BASIS OF BOTH QUALIFICATIONS AND TESTS - QUALIFICATIONS TAKEN INTO ACCOUNT AFTER THE TESTS - ACCEPTABILITY

( STAFF REGULATIONS, ANNEX III, ARTICLE 5 ( 1 ) AND ( 4 ))

Summary

1 . THOUGH THE STAFF REGULATIONS DECLARE THAT NO POSTS SHALL BE RESERVED FOR NATIONALS OF ANY SPECIFIC MEMBER STATE, THE APPOINTING AUTHORITY MAY, IN ENGAGING AN OFFICIAL, LEGITIMATELY TREAT KNOWLEDGE AND EXPERIENCE RELATING TO A SPECIFIC NATIONAL LEGAL SYSTEM AS A DECISIVE FACTOR IN SELECTION .

2 . IT FOLLOWS FROM ARTICLE 5 ( 1 ) AND 5 ( 4 ) OF ANNEX III TO THE STAFF REGULATIONS THAT THE QUALIFICATIONS OFFERED BY EACH CANDIDATE ENABLE THE SELECTION BOARD IN THE FIRST PLACE TO DECIDE WHICH CANDIDATES ARE TO BE ADMITTED TO THE TESTS .

AFTER THE RESULT OF THE TESTS HAS BEEN TAKEN INTO ACCOUNT, HOWEVER, THESE PROVISIONS DO NOT PREVENT QUALIFICATIONS FROM ALSO BEING TAKEN INTO CONSIDERATION FOR THE PURPOSE OF MAKING THE APPOINTMENT .

Parties

IN CASE 115/73

MANLIO SERIO, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY REMO SERIO, OF THE SALERNO BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF MAITRE JOSEPH GUILL, 23, RUE SEIMETZ, APPLICANT,

V

COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER GIORGIO PINCHERLE, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ITS LEGAL ADVISER PIERRE LAMOUREUX, 4, BOULEVARD ROYAL, DEFENDANT,

Subject of the case

APPLICATION FOR ANNULMENT OF COMPETITION PROCEDURE COM/388/71 AND THE APPOINTMENT MADE THEREUNDER, AND FOR DAMAGES .

Grounds

1 THE MAIN OBJECT OF THE APPLICATION LODGED WITH THE REGISTRY ON 23 MARCH 1973 IS TO OBTAIN ANNULMENT OF COMPETITION PROCEDURE COM/388/71 AND OF THE APPOINTMENT MADE BY THE COMMISSION AS THE RESULT OF THIS PROCEDURE .

ITS OBJECT IS ALSO TO OBTAIN A RULING THAT THE COMMISSION SHOULD MAKE GOOD THE MORAL DAMAGE DONE TO THE APPLICANT AS THE RESULT OF UNLAWFUL DISCRIMINATION AGAINST HIM IN THE COMPETITION .

2 THE APPLICANT ALLEGES THAT THE COMPETITION WAS ARRANGED AND ORGANIZED IN SUCH A WAY AS TO FAVOUR A PARTICULAR CANDIDATE .

HE MAINTAINS, IN THE FIRST PLACE, THAT, PRIOR TO PUBLICATION OF THE NOTICE OF THE COMPETITION WHICH IS THE SUBJECT OF THE DISPUTE, THE SUCCESSFUL CANDIDATE HAD STATED THAT THE HEAD OF THE DIVISION IN WHICH THE POST WAS VACANT HAD OFFERED HIM A POST IN GRADE A 5 WITHIN THE DIVISION AND THAT HE HAD ACCEPTED IT .

THIS ALLEGATION WAS NOT BORNE OUT WHEN, DURING THE HEARING OF 12 DECEMBER 1973, THE COURT EXAMINED THE WITNESSES .

3 THE APPLICANT FURTHER MAINTAINS THAT THE DISCRIMINATORY MANNER IN WHICH THE COMPETITION WAS CONDUCTED IS ALSO DEMONSTRATED BY THE FACT THAT A THOROUGH KNOWLEDGE, THEORETICAL AND PRACTICAL, OF DUTCH LAW WAS LAID DOWN IN THE NOTICE OF COMPETITION AS AN ESSENTIAL QUALIFICATION .

HE CONTENDS THAT THE NATURE OF THE WORK IN THE DIVISION CONCERNED AND, MORE PARTICULARLY, THE NEED, IN CARRYING IT OUT, TO TAKE INTO ACCOUNT THE NATIONAL LEGISLATION OF ALL THE MEMBER STATES DID NOT WARRANT SUCH A CONDITION .

4 ALTHOUGH THE STAFF REGULATIONS PROHIBIT A POST FROM BEING RESERVED FOR THE NATIONALS OF ANY SPECIFIC MEMBER STATE, THE APPOINTING AUTHORITY MAY NEVERTHELESS, IN APPOINTING AN OFFICIAL, LEGITIMATELY TREAT KNOWLEDGE AND EXPERIENCE ASSOCIATED WITH THE LEGAL SYSTEM OF A PARTICULAR NATION AS A DECISIVE FACTOR WHEN MAKING ITS CHOICE .

IN THE PRESENT CASE, GIVEN THE FUNCTIONS CARRIED OUT BY THE DIVISION IN WHICH THE VACANCY AROSE AND ITS INTEREST IN COMPANY LAW, THE APPOINTMENT OF AN OFFICIAL HAVING A KNOWLEDGE OF DUTCH LAW IS JUSTIFIABLE IN VIEW OF THE CHANGES WHICH HAD TAKEN PLACE JUST PREVIOUSLY IN DUTCH COMPANY LAW .

MOREOVER, THE SUBJECTS CHOSEN FOR THE MAIN TEST WERE RELEVANT TO THE KIND OF WORK CARRIED OUT IN THE DIVISION IN WHICH THE DISPUTED VACANCY AROSE .

5 THE APPLICANT ALSO CONTENDS THAT THE COMPETITION PROCEDURE WAS CARRIED OUT IRREGULARLY AS A RESULT OF THE COMPOSITION OF THE SELECTION BOARD, AND BECAUSE IT HAD AT ITS DISPOSAL NOT ONLY THE FRENCH TRANSLATION BUT ALSO THE ORIGINALS OF THE TEST PAPERS .

THE APPLICANT MAINTAINS THAT BECAUSE ONE OF THE TWO CANDIDATES ADMITTED TO THE TESTS WAS DUTCH AND THE OTHER WAS OF ITALIAN NATIONALITY, IT WAS THUS POSSIBLE TO IDENTIFY EACH CANDIDATE AND IT MADE IT IMPOSSIBLE TO ENSURE THAT THEIR IDENTITY WAS CONCEALED FROM THE EXAMINERS .

HE ALSO MAINTAINS THAT THE MARKS AWARDED BY THE SELECTION BOARD FOR THE TESTS WERE THE SUBJECT OF SOME 'MANIPULATION '.

6 IN VIEW OF THEIR GRAVITY, THESE ALLEGATIONS COULD BE ACCEPTED ONLY IF ACCOMPANIED BY ADEQUATE PROOF .

THIS HAS NOT BEEN FORTHCOMING .

IN PARTICULAR, THE COMMISSION'S CONTENTION THAT THE ORIGINAL TEST PAPERS WERE MADE AVAILABLE TO THE MEMBERS OF THE SELECTION BOARD SO THAT, AFTER THEY HAD FINISHED MARKING THEM, THEY COULD, IF THEY WISHED, CHECK THE ACCURACY OF THE TEXTS WHICH THEY HAD MARKED, IS BORNE OUT INDIRECTLY BY THE COVERING NOTE TO THE TEST PAPERS WHICH APPEARS IN THE ADMINISTRATIVE FILE RELATING TO THE PROCEDURE IN ISSUE .

7 THE APPLICANT FURTHER MAINTAINS THAT, AS THE DISPUTED COMPETITION WAS 'ON THE BASIS OF BOTH QUALIFICATIONS AND TESTS', THE COMMISSION WAS WRONG IN MAKING THE APPOINTMENT SOLELY ON THE BASIS OF THE TESTS AND WITHOUT PAYING REGARD TO THE QUALIFICATIONS OF EACH CANDIDATE .

UNDER THE FIRST AND FOURTH PARAGRAPHS OF ARTICLE 5 OF ANNEX III OF THE STAFF REGULATIONS, THE SELECTION BOARD 'SHALL DRAW UP A LIST OF CANDIDATES WHO MEET THE REQUIREMENTS SET OUT IN THE NOTICE OF COMPETITION' AND 'WHERE THE COMPETITION IS ON THE BASIS OF BOTH TESTS AND QUALIFICATIONS, THE SELECTION BOARD SHALL STATE WHICH OF THE CANDIDATES ON THE LIST SHALL BE ADMITTED TO THE TESTS '.

ACCORDINGLY, THE QUALIFICATIONS OFFERED BY EACH CANDIDATE ENABLE THE SELECTION BOARD FIRST TO DECIDE WHICH CANDIDATES CAN BE ADMITTED TO THE TESTS .

THESE PROVISIONS DO NOT, HOWEVER, PREVENT THEIR BEING TAKEN INTO CONSIDERATION AT A LATER STAGE THAN WHEN THE DECISION IS TAKEN ON ADMISSION TO THE TESTS .

THE QUALIFICATIONS CONSTITUTE A CRITERION WHICH, AFTER DUE WEIGHT HAS BEEN GIVEN TO THE RESULTS OF THE TESTS, MAY BE TAKEN INTO ACCOUNT WHEN THE DECISION IS TAKEN WHOM TO APPOINT .

HOWEVER, IN THE PRESENT CASE, IN VIEW OF THE RESULTS OF THE TESTS, ESPECIALLY THAT OF THE PRINCIPAL TEST, THE QUALIFICATIONS OFFERED BY THE APPLICANT DO NOT APPEAR TO BE OF A KIND WHICH SHOULD HAVE SECURED A DECISION IN HIS FAVOUR .

8 FOR THESE REASONS, THE CLAIMS FOR ANNULMENT OF COMPETITION COM/388/71 AND OF THE DISPUTED APPOINTMENT ARE UNFOUNDED .

NOR, CONSEQUENTLY, CAN THE CLAIMS FOR DAMAGES, BASED ON THE ALLGED IRREGULARITY OF THESE ACTS, BE UPHELD .

THE APPLICATION MUST THEREFORE BE DISMISSED .

Decision on costs

9 BY ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS IF A SUBMISSION HAS BEEN MADE TO THAT EFFECT .

NEVERTHELESS, UNDER ARTICLE 70 OF THE RULES OF PROCEDURE, THE COSTS INCURRED BY THE INSTITUTIONS IN ACTIONS BROUGHT BY SERVANTS OF THE COMMUNITIES ARE NOT RECOVERABLE .

Operative part

THE COURT ( FIRST CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION .

2 . ORDERS EACH PARTY TO BEAR ITS OWN COSTS .