Judgment of the Court of 4 March 1964. - Claude Lassalle v European Parliament. - Case 15-63.



European Court reports

French edition Page 00057

Dutch edition Page 00059

German edition Page 00063

Italian edition Page 00059

English special edition Page 00031

Danish special edition Page 00459

Greek special edition Page 01045

Portuguese special edition Page 00395



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

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1 . OFFICIALS - PROMOTION AND NOTICE OF VACANCY - EXISTENCE OF A LEGAL CONNEXION

( STAFF REGULATIONS, ARTICLES 27 AND 28 )

2 . OFFICIALS - RECRUITMENT - NATIONALITY AS A FACTOR IN SELECTION - PROHIBITION IN PRINCIPLE - ADMISSIBILITY IN CASES OF EQUIVALENT QUALIFICATIONS - CRITERION OF GEOGRAPHICAL BALANCE

( STAFF REGULATIONS, ARTICLES 7 AND 27 )

Summary

1 . PROMOTION, WHILST CONSTITUTING A PROCESS DISTINCT FROM THE NOTICE OF VACANCY, IS LEGALLY CONNECTED TO IT, SINCE THE CONDITIONS OF ELIGIBILITY FOR THE POST CONTAINED IN THE NOTICE ARE CAPABLE OF DETERMINING WHICH OFFICIALS ARE ELIGIBLE FOR PROMOTION . THEREFORE, THE LEGALITY OF THE NOTICE OF VACANCY MAY ALSO BE CONSIDERED IN RELATION TO ARTICLE 45 OF THE STAFF REGULATIONS .

2 . THE INTERESTS OF THE SERVICE AND REGARD FOR THE ELIGIBILITY OF OFFICIALS FOR THE CAREER BRACKET IN QUESTION WOULD BE COMPROMISED IF THE ADMINISTRATION, IN ORDER TO SECURE A GEOGRAPHICAL BALANCE, COULD RESERVE A POST FOR A SPECIFIC NATIONALITY WITHOUT SUCH ACTION'S BEING JUSTIFIED ON GROUNDS CONNECTED WITH THE PROPER FUNCTIONING OF THE SERVICE .

HOWEVER, IT IS NOT INCOMPATIBLE WITH THESE REQUIREMENTS OR WITH THE PROHIBITION OF DISCRIMINATION ON THE GROUNDS OF NATIONALITY THAT, WHERE THE QUALIFICATIONS OF THE VARIOUS CANDIDATES ARE APPROXIMATELY EQUAL, THE ADMINISTRATION SHOULD ALLOW NATIONALITY TO PLAY A DECISIVE ROLE WHEN IT IS NECESSARY TO MAINTAIN OR TO RE-ESTABLISH A GEOGRAPHICAL BALANCE AMONG ITS STAFF .

Parties

IN CASE 15/63

CLAUDE LASSALLE, AN OFFICIAL OF THE EUROPEAN PARLIAMENT, ASSISTED BY C . DURRENBERGER OF THE STRASBOURG BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT 13 RUE DE VIANDEN,

APPLICANT,

V

EUROPEAN PARLIAMENT, REPRESENTED BY ITS SECRETARY-GENERAL, HANS ROBERT NORD, ACTING AS AGENT, ASSISTED BY ALEX BONN OF THE LUXEMBOURG BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ALEX BONN, 22 COTE-D' EICH,

DEFENDANT,

Subject of the case

APPLICATION FOR ANNULMENT OF THE DECISION OF 1 FEBRUARY 1963 OF THE SECRETARIAT OF THE PARLIAMENT ENTITLED ' NOTICE OF VACANCY NO 44 AT THE DIRECTORATE-GENERAL OF THE PARLIAMENTARY DOCUMENTATION AND INFORMATION DIVISION ' AND FOR THE AWARD OF DAMAGES FOR THE LOSS SUFFERED BY MR LASSALLE AS A RESULT OF THIS DECISION

Grounds

P.36

ON ADMISSIBILITY

THE APPLICATION WAS MADE IN DUE FORM AND WITHIN THE PRESCRIBED TIME-LIMITS .

NO OBJECTION HAS BEEN RAISED BY THE DEFENDANT AGAINST THE ADMISSIBILITY OF THE APPLICATION AND NO GROUNDS EXIST FOR THE COURT TO RAISE THE MATTER OF ITS OWN MOTION .

THE APPLICATION IS THEREFORE ADMISSIBLE .

P.37

ON THE SUBSTANCE OF THE CASE

ACCORDING TO THE APPLICANT, THE REQUIREMENT OF A PERFECT KNOWLEDGE OF ITALIAN CONTANED IN THE NOTICE OF VACANCY IN DISPUTE IN THE PRESENT APPLICATION IS SIMPLY A DISGUISED METHOD OF RESERVING THE VACANT POST FOR AN ITALIAN OFFICIAL AND RENDERS IMPOSSIBLE A CONSIDERATION OF THE COMPARATIVE MERITS OF ALL THE OFFICIALS ELIGIBLE FOR THE PROMOTION IN QUESTION, CONTRARY TO ARTICLE 45 OF THE STAFF REGULATIONS OF OFFICIALS OF THE ECSC, THE EEC AND THE EAEC .

THE DEFENDANT, WHILST ACCEPTING THAT THE PURPOSE OF THE CLAUSE IN QUESTION WAS TO IMPOSE A CONDITION OF NATIONALITY, MAINTAINS THAT THIS SUBMISSION DOES NOT FALL WITHIN THE AMBIT OF THE APPLICATION, SINCE THE NOTICE OF VACANCY IS GOVERNED ONLY BY THE PROVISIONS OF ARTICLE 27 .

THIS PRELIMINARY OBJECTION RAISED BY THE DEFENDANT MUST BE DISMISSED .

PROMOTION, WHILST CONSTITUTING A PROCESS DISTINCT FROM THE NOTICE OF VACANCY IS LEGALLY CONNECTED TO IT, SINCE THE CONDITIONS OF ELIGIBILITY FOR THE POST CONTAINED IN THE NOTICE ARE CAPABLE OF DETERMINING WHICH OFFICIALS ARE ELIGIBLE FOR PROMOTION .

THE FIRST QUESTION TO BE EXAMINED THEREFORE IS WHETHER THE NOTICE OF VACANCY MAY IMPOSE CONDITIONS OF NATIONALITY .

IF THIS WERE THE CASE, THE AIMS OF ARTICLES 7 AND 27 OF THE STAFF REGULATIONS WOULD BE INCAPABLE OF BEING REALIZED .

THESE ARTICLES ARE INTENDED PRIMARILY TO BE IN THE INTERESTS OF THE SERVICE . THIS AIM IS EXPRESSED IN ARTICLE 7 WHICH OBLIGES THE APPOINTING AUTHORITY TO CONSIDER SOLELY THE ' INTERESTS OF THE SERVICE WITHOUT REGARD TO NATIONALITY '. THIS AIM IS CONFIRMED BY THE FIRST PARAGRAPH OF ARTICLE 27, WHICH IS DIRECTED TO SECURING FOR THE INSTITUTION THE SERVICES OF OFFICIALS OF THE HIGHEST STANDARD OF ABILITY, EFFICIENCY AND INTEGRITY .

THE FINAL PARAGRAPH OF ARTICLE 27 STIPULATES CLEARLY THAT NO POSTS SHALL BE RESERVED FOR NATIONALS OF ANY SPECIFIC MEMBER STATE .

FURTHERMORE, THE PROMOTION PROCEDURE MUST ALSO HAVE REGARD TO THE ELIGIBILITY OF OFFICIALS FOR THE CAREER BRACKET IN QUESTION, A PRINCIPLE WHICH IS DEMONSTRATED BY THE SYSTEM OF INTERNAL PREFERENCE LAID DOWN BY ARTICLE 29 OF THE STAFF REGULATIONS IN ORDER TO FILL VACANT POSTS .

P.38

ALTHOUGH ARTICLE 27 REFERS TO RECRUITMENT ON THE BROADEST POSSIBLE GEOGRAPHICAL BASIS, THE PLACE WHICH THIS REFERENCE OCCUPIES IN THE SAID ARTICLE AND THE WORDING USED MEAN THAT IT IS A FACTOR TO BE TAKEN INTO CONSIDERATION AT A LATER STAGE IN ORDER TO SECURE THE BEST POSSIBLE GEOGRAPHICAL BALANCE .

THE INTERESTS OF THE SERVICE AND REGARD FOR THE ELIGIBILITY OF OFFICIALS OF THE CAREER BRACKET IN QUESTION WOULD BE COMPROMISED IF THE ADMINISTRATION, IN ORDER TO SECURE A GEOGRAPHICAL BALANCE, COULD RESERVE A POST FOR A SPECIFIC NATIONALITY WITHOUT SUCH ACTIONS BEING JUSTIFIED ON GROUNDS CONNECTED WITH THE PROPER FUNCTIONING OF THE SERVICE .

HOWEVER, IT IS NOT INCOMPATIBLE WITH THESE REQUIREMENTS THAT, WHERE THE QUALIFICATIONS OF THE VARIOUS CANDIDATES ARE APPROXIMATELY EQUAL, THE ADMINISTRATION SHOULD ALLOW NATIONALITY TO PLAY A DECISIVE ROLE WHEN IT IS NECESSARY TO MAINTAIN OR TO RE-ESTABLISH A GEOGRAPHICAL BALANCE AMONG ITS STAFF . SUCH A POSSIBILITY IS NOT INCOMPATIBLE WITH THE PROHIBITION IN ARTICLE 7(1 ) OF THE STAFF REGULATIONS .

THIS PROHIBITION DOES NOT EXCLUDE THE TAKING INTO ACCOUNT WITHIN THE CONDITIONS AND LIMITS FIXED OBJECTIVELY BY THE STAFF REGULATIONS OF THE DESIRE TO SAFEGUARD THE GEOGRAPHICAL BALANCE REQUIRED BY THE COMMUNITY SPIRIT .

IN THIS CASE IT IS ESTABLISHED THAT THE PURPOSE OF THE LANGUAGE CONDITION IN QUESTION WAS TO RESERVE THE POST IN QUESTION TO A NATIONAL OF A SPECIFIC MEMBER STATE, PRIOR TO ANY CONSIDERATION OF THE MERITS OF THE OFFICIALS ELIGIBLE FOR PROMOTION ACCORDING TO ARTICLE 45 OF THE STAFF REGULATIONS .

THUS, IF THE OFFICIALS INTERESTED IN THIS POST WERE NOT OF THE NATIONALITY REQUIRED, THEY WERE AUTOMATICALLY DEPRIVED OF ANY OPPORTUNITY OF HAVING THEIR POSSIBLE CANDIDATURE CONSIDERED .

IN THIS CASE MOREOVER IT IS NOT DISPUTED THAT THE LIMITATION IMPOSED BY THE DEFENDANT ON ITS POWERS OF SELECTION WAS NOT JUSTIFIED ON THE GROUNDS OF THE PROPER FUNCTIONING OF THE DEPARTMENT RESPONSIBLE FOR THE POST IN QUESTION .

SUCH A PROCEDURE CONTRAVENES THE REQUIREMENT THAT AVAILABLE POSTS SHOULD BE FILLED BY SELECTING OFFICIALS OF THE HIGHEST STANDARD OF ABILITIY, EFFICIENCY AND INTEGRITY .

THE LANGUAGE CONDITION IN QUESTION THEREFORE CONTRAVENES THE PROVISIONS OF ARTICLES 7, 27 AND 45 OF THE STAFF REGULATIONS .

THE NOTICE OF VACANCY CONTAINING THIS CLAUSE MUST THEREFORE BE ANNULLED .

ON THE REQUEST FOR COMPENSATION

THE APPLICANT MAINTAINS THAT HE HAS SUFFERED NON-MATERIAL DAMAGE AS A RESULT OF THE APPLICATION AND BOTH MATERIAL AND NON-MATERIAL DAMAGE FROM HAVING TO REMAIN IN HIS PRESENT GRADE .

HOWEVER, HE CANNOT HAVE SUFFERED ANY DAMAGE FROM THE APPLICATION WHICH HE HAS MADE, IN WHICH HIS MAIN CLAIM IS UPHELD .

NEITHER HAS THE APPLICANT ANY RIGHT TO COMPENSATION FOR THE FACT OF HAVING TO REMAIN IN HIS PRESENT GRADE .

IN FACT, EVEN IF THE CONTESTED NOTICE OF VACANCY HAD MADE IT POSSIBLE FOR THE APPLICANT'S CANDIDATURE FOR THE POST IN QUESTION TO BE CONSIDERED, IT WOULD STILL NOT HAVE BEEN POSSIBLE TO SPECIFY A PRIORI, EVEN BEFORE THE PROCEDURE LAID DOWN IN ARTICLE 45 HAD BEEN FOLLOWED, THE OFFICIAL TO BE SELECTED .

THEREFORE, THE CONCLUSIONS OF THE APPLICANT CONCERNING THE AWARD OF DAMAGES MUST BE DISMISSED .

Decision on costs

THE APPLICANT HAS BEEN SUCCESSFUL IN HIS MAIN REQUEST FOR ANNULMENT OF THE MEASURE IN DISPUTE .

UNDER THE TERMS OF ARTICLE 69(2 ) OF THE RULES OF PROCEDURE THE DEFENDANT MUST BE ORDERED TO PAY THE COSTS .

Operative part

THE COURT

HEREBY :

1 . ANNULS THE DECISION OF THE SECRETARIAT OF THE EUROPEAN PARLIAMENT OF 1 FEBRUARY 1963 HEADED ' NOTICE OF VACANCY NO 44 AT THE DIRECTORATE - GENERAL OF THE PARLIAMENTARY DOCUMENTATION AND INFORMATION DIVISION ';

2 . DISMISSES THE APPLICANT'S REQUEST FOR THE AWARD OF DAMAGES;

3 . ORDERS THE EUROPEAN PARLIAMENT TO PAY THE COSTS .