CELEX: 61973CC0115
Language: en
Date: 1974-03-19
Title: Opinion of Mr Advocate General Warner delivered on 19 March 1974. # Manlio Serio v Commission of the European Communities. # Case 115-73.

OPINION OF MR ADVOCATE-GENERAL WARNER
      DELIVERED ON 19 MARCH 1974
      
         My Lords,
      The applicant in this case was an unsuccessful candidate for a post of Principal Administrator on the staff of the Commission.
      The vacancy for the post, which was subsequently the subject of an internal competition, was initially announced by means of a notice of vacancy which fixed the closing date for applications at 17 June 1971. It appears that under this procedure a person who applies in response to the notice of vacancy is considered, unless he withdraws, as a candidate in any subsequent competition relating to the same post.
      The post in question was of grade A 5/A 4 in the division concerned with European company law. The notice of vacancy specified that candidates should have, if possible, a thorough theoretical and practical knowledge of Dutch law and, among the linguistic qualifications required, it was stated that a satisfactory knowledge of both Dutch and English was desirable. The gist of the applicant's allegations is that the post had been earmarked for a Dutch candidate, who was in fact appointed, and that it was for this reason that those qualifications were required.
      On 15 June 1971 the applicant sent to the Director-General of Personnel and Administration a note asking for the notice of vacancy to be cancelled, and in the event of the post being re-advertised, for the deletion of any reference to Dutch law or to the Dutch language. He stated that the post had previously been occupied by a German national who had no knowledge of Dutch law or of Dutch and whose work in the post had led to his promotion; he argued that the work in the division did not require any such knowledge, and he alleged that a Dutch national had already been offered the post and had been invited to apply for it.
      By a note of 20 September 1971 the Director-General declined to accede to the applicant's request. He stated that the qualifications mentioned in the notice were closely related to the nature of the duties which the holder of the post would carry out; that a knowledge of the Dutch and English languages could not be confused with Dutch nationality, since these qualifications were not confined to Dutch nationals; and that the new holder of the post would not necessarily have the same tasks as his predecessor. The applicant replied in a note of 19 October 1971 in which he put forward further arguments.
      A competition for the post was advertised as an internal competition, on the basis of both qualifications and tests, in accordance with Article 1 of Annex III of the Staff Regulations. The notice of competition (COM/388/71) contained substantially the same description of the duties and tasks involved in the post as was contained in the original notice of vacancy. These were to include in particular:
      
               1.
            
            
               Participation in the preparation of a system of European company law and of the coordination and unification of the company law of the Member States, involving comparative law studies and meetings with experts at a high level; and, in particular, the study of Dutch company law;
            
         
               2.
            
            
               The drafting of regulations relating to European company law and of directives and conventions for the coordination and unification of the company law of the Member States;
            
         
               3.
            
            
               Supervision of the implementation of directives and regulations of the Council.
            
         The qualifications laid down in the notice of competition were also substantially the same as those contained in the notice of vacancy. There were, however, two minor departures from the earlier text. First, the notice of competition required candidates to have, if possible, a ‘good’ instead of a ‘thorough’ theoretical and practical knowledge of Dutch law. Secondly, the notice of competition contained no express reference to the Dutch language.
      In a note of 8 November 1971 the applicant requested that the competition be cancelled, elaborating on his previous criticisms of the qualifications required. This request, together with his earlier note of 19 October 1971, was rejected by the Director-General of Personnel and Administration in a note of 29 February 1972.
      The applicant and one other candidate, Mr Christian Timmermans, took the tests on 14 March 1972.
      On the basis of the competition, including the results of the tests, Mr Timmermans was placed first by the selection board on the list of suitable candidates provided for in Article 30 of the Staff Regulations and, on 31 May 1972, he was appointed to the post.
      On 23 July 1972 the applicant submitted a complaint under Article 90 (2) of the Staff Regulations, seeking, among other things, the cancellation of Mr Timmerman's appointment. The complaint was rejected by a note of 15 January 1973.
      It is against the rejection of this complaint that the applicant now appeals. He claims, in particular, that the competition, and the consequent appointment of Mr Timmermans, should be declared void.
      The applicant contends, as I have said, that the requirement of a knowledge of Dutch law was included because the post had been earmarked for Mr Timmermans. He alleges that the procedure was designed to promote a candidate of a particular nationality, contrary to Article 27 of the Staff Regulations, which provides that ‘No posts shall be reserved for nationals of any specific Member State’. The Commission states that the qualifications required were designed to achieve a balanced composition in the division in question. It refers to the judgment of the Second Chamber in Case 33/67, Kurrer v Council, Rec. 1968, p. 187, where a requirement of a knowledge of Dutch law was also challenged. The Chamber pointed out in that case that the selection was to be determined not by the candidate's nationality but by his knowledge and experience of, among other things, a particular national legal system. It held that this was the sole method of reconciling the requirements of the legal service of the Institution with the rule that no post should be reserved for a national of any specific Member State. It observed that in a Community where each Member State preserves its own legal system, it is essential for a well organized legal service to include officials with training in, and experience of, a particular national system of law.
      The applicant seeks to distinguish the present case on the ground, among others, that the legal service of the Council had a greater need of specialists in the legal systems of the different Member States. But, as Mr Advocate-General Gand observed in Kurrer v Council, it is for the institution concerned and for it alone to assess its needs; and this Court cannot review that assessment unless the applicant can show that the institution has misused its powers. My Lords, if a qualification in Dutch law were quite unrelated to the needs of the service in question or if such specific qualifications had never previously been required in advertisements of similar posts, that might be evidence of such a misuse of powers. But that is not the position here.
      Before the hearing, the Chamber asked the Commission to state whether the notices of competition for other vacant posts in the same division indicated under the head of ‘qualifications required’ that the theoretical and practical knowledge of a particular system of national law was desirable. The Commission has put in copies of a number of notices of vacancy and notices of competition in the various divisions of the same directorate published between 1970 and 1972. One of these, Notice of Vacancy COM/74/72, included, among the tasks to be accomplished, the study of French and Italian company law, and required a theoretical and practical knowledge of French and/or Italian law. A second notice, COM/57/71, referred to French law alone in similar terms. A third, COM/119/70, required a good knowledge of Dutch law and in addition, rather oddly, knowledge of Anglo-Saxon law, a system which I have always understood became defunct about nine hundred years ago. Nevertheless, a knowledge and if possible experience of this law was required by a further Notice of vacancy, COM/428/72. Yet other notices of vacancy, COM/936/72 and COM/ 937/72, required a thorough knowledge of the Italian systems of direct taxation and of value added tax respectively.
      In my opinion, my Lords, this evidence, which the applicant has not sought to challenge, shows that specifying knowledge of a particular system of law, far from being an irregularity which vitiated the procedure, was the regular practice. Indeed it is plain that such a practice was necessary if the divisions in question were to be able to deal with the different systems of law represented in the Community, and that the view expressed by the Second Chamber in Kurrer v Council applies with as much force to the present case. If it were necessary, which on the view I take it is not, for Your Lordships to consider whether a knowledge of Dutch law was indeed necessary or desirable for the vacancy in issue in this case, an adequate answer was given by Mr. Gleichmann, the head of the division, in reply to a question he was asked at the hearing. He said that Dutch company law was the subject of a major reform in 1970-1971 and that it was considered useful to have one member of the division with a knowledge of that law.
      It was contended on behalf of the applicant that the appointment which he challenges was part of an overall design to advance the career of the successful candidate and to block his own career. The applicant alleged that Mr Timmermans had already been offered the post, before the competition was announced, by Mr Gleichmann. At the applicant's request, the Chamber heard evidence from both Mr Timmermans and Mr Gleichmann on this point. They both denied the applicant's allegation. Your Lordships will recall that Mr Gleichmann pointed out that it did not lie within his power to offer the post to anyone. He added that it was possible that he had spoken about the competition to Mr Timmermans and indeed to others, including the applicant, as it was important to encourage potential candidates to enter the competition. Mr Timmermans, for his part, had no recollection of such a conversation. Your Lordships will also remember that Counsel for the applicant, although invited to put questions to the witnesses, refrained from doing so.
      The applicant's attempts to show from the course of his own career that there was an overall design to block his progress were in my opinion equally unsuccessful. He invoked past decisions affecting his career as evidence of a continuing plot to exclude him from promotion. I must review briefly the previous episodes on which he relies.
      In 1968 the applicant applied for a post of Principal Administrator in the European law division; he claims that another candidate was unjustifiably appointed. The Commission answers that on the date of that appointment, 31 January 1969, the other candidate had the two years' service necessary for promotion, which the applicant, who had entered the service of the Commission in April 1967, did not. To this the applicant replies that if the Commission had acted lawfully, he would have entered the service in 1965. In a previous action brought by him, Case 62/65 Serio v Commission of the European Atomic Energy Community, Rec. 1966, p. 813, the First Chamber annulled an appointment on the ground that the appointing authority had departed too far from the results of the competition. The applicant submits that if he had been appointed at that time he would have had the required lenght of service. But the First Chamber rejected the applicant's claim in that case to be appointed retrospectively to one of the vacant posts, holding that the manner in which effect should be given to its judgment was a matter for the Commission. Moreover, even if, as a consequence of that judgment, the applicant could have been deemed in 1969 to have the necessary length of service for the promotion which he then sought, it cannot be inferred that he would have obtained that promotion. Lack of seniority was a disqualification, but seniority would not have been a guarantee of promotion.
      Secondly, the applicant complains of delay in his promotion to grade A 6.
      This was the subject of a formal complaint by the applicant to the Commission dated 9 February 1971. But, as the Commission points out in its Defence, he had not sought to challenge the report on his work on which the decision not to promote him was based, either internally through the procedure available, or before this Court.
      Thirdly, the applicant recalls that he protested in 1971 against a notice of vacancy for another post of grade A 5/A 4 in the division concerned with company law, on the ground that it required a theoretical and practical knowledge of French law. My Lords, for the reasons which I have already given I do not think that this complaint can advance the applicant's case.
      Finally, the applicant adduces the fact that the latest report on his work was less favourable than the previous one.
      My Lords, it seems to me that these episodes, whether taken individually or cumulatively, fall far short of establishing the existence of such a design as the applicant alleges.
      I now turn to the applicant's complaints about the procedure leading to the appointment which he challenges in this case.
      The notice of competition provided that there were to be two written tests. The first, on company law in the Member States of the Community, was to last three hours; the second, on Dutch company law, was to last one hour. The notice also provided that candidates who obtained a mark below 12 out of 20 in the first test would be eliminated, but that the second test would not disqualify a candidate. As I have said, two candidates, the applicant and Mr. Timmermans, took the tests, the applicant in Italian and Mr. Timmermans in Dutch. Their test papers were then translated into French so that the identity of the candidates should not be revealed. In the first test Mr Timmermans was awarded 17 out of 20 and the applicant 12; in the second test Mr Timmermans was awarded 7 out of 10 and the applicant 2 Mr Timmermans was as I have said placed first on the list of suitable candidates, was recommended by the Directorate-General concerned for the vacant post, and was appointed to it by the appointing authority, namely the Commission.
      The applicant makes four complaints about the procedure.
      First, he alleges that the original test papers were given to the examiners at the same time as the French translations, with the result that the candidates' identities were disclosed. He does not however adduce a shred of evidence in support of this allegation, and the Commission denies it. The Commission says that the originals were made available to the selection board after the papers had been marked in case the board found it necessary to check the accuracy of the translations. An examination of the transmission slips contained in the Commission's file relating to the competition confirms that this was indeed so. It appears that, in the event, the selection board found it unnecessary to look at the originals in view of the. substantial difference between the marks awarded to the two candidates on the basis of the French translations.
      Secondly, the applicant suggests that the marks awarded for the written tests were ‘manipulated’. Again he adduces no evidence. His case rests on pure speculation. He points to the fact that there was a difference between the candidates of five marks in each test, so that if the marks for either test were reversed, the total for both candidates in the two tests would be the same. He goes so far as to suggest that the ‘orthographic characteristics’ of the figures 2 and 7 are such as to lend themselves to ‘manipulation’. In my opinion, my Lords, allegations of this gravity require to be supported by cogent evidence and should not be made on such flimsy foundations.
      Thirdly, the applicant alleges that the selection board was biased. Again he adduces no evidence in support of what is a very serious allegation. The board consisted of two representatives of the Directorate-General concerned, and of one representative each of the legal service of the Commission, of the Directorate-General of Personnel and Administration and of the staff committee. The applicant's reasons for casting doubt on their impartiality are in essence founded on his previous contentions that the appointment in issue was the result of a pre-arranged plan, to which, he maintains, the members of the board must have been privy. Thus the bias of the Directorate-General of Personnel and Administration, he says, is established by its rejection of his complaints concerning the qualifications required for the post; and similarly the bias of the representative of the staff committee is shown by the fact that he was a member of the Joint Committee, provided for by Article 9 (1) (a) of the Staff Regulations, that had approved the notices including those qualifications. My Lords, I would reject this allegation too.
      Finally, the applicant complains that there were omitted from the papers submitted to the Commission when the appointment was to be made, the annexes to his application form, containing particulars of his university training and professional experience. These were, he says, of special importance, since his qualifications were greatly superior to those of Mr Timmermanns, and since the competition was based on qualifications as well as tests.
      As Your Lordships know, the procedure for appointments is for the selection board to submit to the appointing authority, in the present case the Commission, a report on the result of the competition including a list of candidates in order of merit. The appointing authority, in making the appointment, is not bound to follow that order; but it may not defeat the very purpose of a competition by departing too far from its results: see Case 62/65, Serio v Commission of the European Atomic Energy Community (already cited). It may well be that, on the basis of the results of the tests in this case, the Commission would have been precluded, even if it had wished to do so, from appointing the applicant. But that is not the question here. The question is whether the procedure was vitiated by the omission from the papers submitted to the Commission of the annexes to the applicant's application form. Having read those annexes, I do not think it was.
      Annex I listed the various courses in law and in languages which the applicant had taken between 1955 and 1961, and the certificates he had obtained for them. Annex 2 listed the posts which he had occupied between 1964 and 1968 and summarized briefly the duties of each post. It was a continuation of that part of the application form in which candidates were required to list their previous occupation, and as such it should, I think, have been included. But the sole fact on which the applicant relies in his pleadings as demonstrating his superiority to the other candidate, namely the excellence of his university degree, is nowhere mentioned in those Annexes. It is to be found in the application itself, which was before the Commission. Nor do I think that anything which is mentioned in those Annexes could have influenced any appointing authority presented with such clear-cut results of the written tests.
      The applicant infers from the circumstance that those Annexes were omitted from the papers put before the Commission that the candidates' qualifications were taken into account only in determining (pursuant to Article 5 of Annex III to the Staff Regulations) which of the candidates should be admitted to the tests, and he submits that this was improper. He argues that, in a competition based on both qualifications and tests, both should be taken into account by the selection board in the final placing and by the appointing authority itself in making its decision.
      The Commission argues on the other hand that in such a competition, qualifications are to be taken into account by the selection board first in drawing up the list of candidates who meet the requirements set out in the notice of competition an secondly in determining which of the candidates on that list are to be admitted to the tests, but that thereafter the candidates should be judged solely upon the results of the tests. My Lords, I do not, for my part, think that either view is correct. The Staff Regulations, and in particular Article 5 of Annex III thereto, are silent on the point and, to my mind, they leave to the selection board and to the appointing authority, in their respective roles, a discretion as to the extent to which qualifications and the results of the tests are to be taken into account at each stage. In the present case neither a perusal of the selection board's report nor a perusal of the note under cover of which the papers were submitted to the Commission suggests that either consideration was arbitrarily excluded at any stage.
      I thus conclude that each of the applicant's complaints about the procedure leading to the appointment is without foundation.
      As regards costs, the position is governed by Article 70 of the Rules of Procedure. I have, with some hesitation, come to the conclusion that this is not a case for an order under the second subparagraph of Article 69 (3).
      I am therefore of the opinion that this action should be dismissed with no order as to costs.