CELEX: 61974CC0023
Language: en
Date: 1975-02-19
Title: Opinion of Mr Advocate General Reischl delivered on 19 February 1975. # Berthold Küster v European Parliament. # Case 23-74.

OPINION OF MR ADVOCATE-GENERAL REISCHL
      DELIVERED ON 19 FEBRUARY 1975 (
            1
         )
      
         Mr President,
      
         Members of the Court,
      The applicant in the proceedings with which I am today concerned entered the service of the High Authority of the European Coal and Steel Community in April 1959. In May 1961 he joined the Language Service of the European Parliament. From January 1963 onwards he was employed as a Principal Administrator in the Secretariats of various Parliamentary Committees, inter alia the Secretariat of the Committee on Public Health and the Environment. From 1 July 1971 he was placed in grade A4.
      After the Head of the Secretariat of the Committee on Public Health and the Environment — an official in Grade A3, whose deputy the applicant was at that time — had been promoted, there remained after 1 September 1973, according to the applicant, only two employees in the Secretariat of that Committee, of whom the applicant was one. The applicant was apparently instructed by the former Head of this Secretariat to assume the direction thereof with effect from 1 September 1973. The applicant therefore takes the view that he has de facto occupied the said post as from 1 September 1973. Relying on Article 7 (2) of the Staff Regulations, he therefore asks for payment of a differential allowance for the period from 1 december 1973 up to the time of the appointment of a new Head of the said Secretariat, which evidently took effect on 20 May 1974. On this point it must be added that the applicant had in a letter dated 26 November 1973 addressed to the Director-General for Administration, Personnel and Finance of the European Parliament asked to be entrusted with the Committee on Public Health and the Environment which he de facto occupied. Not having received a reply, he sent a reminder by letter of 13 February 1974 addressed to the Secretary-General of Parliament. On 22 February 1974 he also addressed a formal complaint under Article 90 (2) of the Staff Regulations to the appointing authority. Therein he complanied of the fact that he had not received a differential allowance under Article 7 (2) of the Staff Regulations, and asked for an early decision, Thereupon, by letter of 4 March 1974 from the Secretary-General, he was informed that the position in question would shortly be filled and that it was not therefore opportune to suggest to the President a temporary appointment to the post for so short a period.
      An announcement headed ‘Notice of Vacancy No 875’ informed the staff of Parliament on 26 September 1973 that the President had decided to open the procedure for filling five posts in Category A3 (Head of Division) in the Directorate-General for Committees and Inter-Parliamentary Delegations and that in the first instance he envisaged doing so by way of promotion or transfer within the institution. In accordance with the invitation contained in the announcement the applicant on 20 November 1973 applied for the post of Head of the Secretariat of the Committee on Public Health and the Environment which was among those advertised. On 5 October 1973 he followed up this application by a letter to the President of the European Parliament in which, referring to the fact that he had in fact since September 1973 directed the Secretariat of the Committee on Public Health and the Environment, he asked him to ensure that Article 29 (1) of the Staff Regulations was duly observed, that is to say the provision under which, in filling a vacant post in an institution, the appointing authority shall first consider:
      
               (a)
            
            
               whether the post can be filled by promotion or transfer within the institution;
            
         
               (b)
            
            
               whether to hold competitions internal to the institution;
            
         
               (c)
            
            
               what applications for transfer have been made by officials of other institutions of the three European Communities;
            
         and then to follow the procedure for competitions on the basis either of qualifications or of tests, or of both qualifications and tests.
      The defendant has argued that it did undertake the consideration under Article 29 (1) (a). However, in so doing it had arrived at the conclusion that it would be more desirable to have wider possibilities of selection and for this reason it had ordered the initiation of an internal competition. By an announcement of 23 November 1973, the staff were informed that for the purpose of filling five A3 posts in the Directorate-General for Committees there would be an internal competition A/43. The posts would be filled on the basis of qualifications and an interview.
      In respect of this competition also the applicant applied on 30 November 1973, after he had by letter dated 26 November 1973 to the Secretary-General of Parliament asked to be notified of the result of the consideration under Article 29 (1) (a), and in the event of this resulting in a decision unfavourable to him, to be notified of the relevant reasons. By letter of 20 December 1973 the President of the European Parliament merely informed the applicant that consideration under Article 29 (1) (a) of the Staff Regulations had shown that it would be more desirable to have a wider possibility of selection and for that reason to conduct an internal competition.
      Thereupon this competition duly took place with the participation of a fair number of applicants. The competent Selection Board prepared a list of suitable candidates, which, however, did not include the applicant's name. On the basis of this list there followed during February 1974 the appointment of five other applicants of whom, as has already been stated, one was, with effect from 20 May 1974, entrusted with the direction of the Secretariat of the Committee on Public Health and the Environment.
      These events resulted in the applicant making a formal complaint to the appointing authority under Article 90 (2) of the Staff Regulations. In this complaint, which was received on 7 March 1974, he applied for the appointment decisions to be annulled and that he should be appointed as Head of Division in relation to one of the posts advertised. On 14 March 1974 this complaint was rejected by the President of Parliament. Again the applicant was told that it had been considered preferable to have a wider possibility of selection. His attention was further drawn to the fact that the Selection Board had not entered him on the list of suitable candidates and that his complaint contained no indication as to whether in his view it had been the conduct of the Selection Board or that of the appointing authority which had been erroneous. Lastly, he was requested to provide reasons for his views on the last-mentioned point.
      On 18 March 1974 the applicant complied with this request. However, already on 19 March 1974 he brought an action before the Court of Justice and in his application asked the Court:
      
               1.
            
            
               to order the European Parliament to pay him the differential allowance under Article 7 (2) of the Staff Regulations;
            
         
               2.
            
            
               to rule that the administration of the Parliament had been wrong in not confirming to the applicant that he actually temporarily occupied the post vacant in the Committee on Public Health and the Environment;
            
         
               3.
            
            
               to rule that the opening of internal competition A/43 had been illegal, accordingly to annul this competition and to rule that the appointments that had taken place on the basis of this competition were null and void.
            
         Disregarding some requests for proof, the applicant also, as an alternative, asked that the five appointments made on the basis of competition A/43 be declared null and void as contrary to Articles 7, 29 and 45 of the Staff Regulations.
      Simultaneously, the applicant by way of a separate pleading made an application based on Article 83 of the Rules of Procedure. It was for an order that Parliament should refrain from making an appointment to the post of head of division in the Secretariat of the Committee on Public Health and the Environment. This application was rejected by order of the President of the First Chamber, dated 28 March 1974.
      
               I —
            
            
               In now passing to a closer examination of this case, I must, having regard to the objections on the part of the defendant Parliament, preface this with some remarks as to admissibility of the action.
            
         
               1.
            
            
               The applications referring to Articles 7 (2) of the Staff Regulations (temporary occupancy of a post) are considered by Parliament to be inadmissible on the grounds that the provisions of Article 91 of the Staff Regulations had been disregarded.
               As regards the application for appointment to the temporary occupancy of a post (the ‘interim occupation’), Parliament draws attention to the fact that on 26 November 1973 the applicant had made an application under Article 90 (2) of the Staff Regulations to be entrusted therewith and that he had repeated this request on 13 February 1974. On 4 March 1974 he received a negative answer. Once again this decision ought under the Staff Regulations to have been objected to by a complaint under Article 91, which was not however done.
               As regards the claim to payment of a differential allowance under Article 7 (2) of the Staff Regulations, Parliament argues that this was admittedly referred to in the complaint of 22 February 1974. However, what was lacking was a reply thereto since the decision of 4 March 1974 makes no reference to this question. Accordingly, an action could only have been brought against the implied rejection of the complaint, i.e. only on 22 June 1974 and not as early as March 1974.
               As a general comment one feels bound to say that under Article 91 (2) of the Staff Regulations which are relevant here, it is a condition precedent for the claim to be admissible that prior thereto, i.e. within the time limit of Article 90 (2), a complaint is made to the appointing authority and that this is rejected. Under Article 90 (2) of the Staff Regulations this complaint must be made against acts adversely affecting, i.e. against decisions taken by the appointing authority or against the failure to take measures provided for under the Staff Regulations. On this point the following must be said:
            
         (a) As regards the appointment to the temporary occupancy of a post:
      In my view the applicant's letter of 26 November 1973 in which he asks to be entrusted with the temporary occupancy of the post as from 1 September 1973 and the letter of 13 February 1974 containing a request for the taking of a decision on the application of 26 November 1973 amount to requests under Article 90 of the Staff Regulations. As Parliament has rightly said, what matters in this respect is the content and not whether the objections were addressed to the appointing authority, quite apart from the fact that in such cases the hierarchical channels, i.e. reference to the immediate superior, are prescribed.
      The requests were expressly rejected by letter of the Secretary-General, i.e. the competent appointing authority, on 4 March 1974, that is before the relevant four-months period had expired. A complaint ought to have been lodged against this, but this was not done. Nor can we read the applicant's letter of 22 February 1974 as a complaint since it was sent prior to that date. Besides, it had a different content: it only referred to the payment of the differential allowance. The action is inadmissible on this point since no complaint procedure preceded it.
      Nor does it alter the result described if one adopts the applicant's point of view to the effect that the ‘interim’ under Article 7 of the Staff Regulations does not require a formal decision, but rather that the immediate superior's instructions suffice. Even if one were to accept that an application under Article 90 of the Staff Regulations is not in such a case required, there still remains the requirement that even an action for a finding presupposes a preliminary complaint against the failure to grant the ‘interim’. However, as we have seen, this was in any event lacking.
      And even if, notwithstanding the objections to which I have referred, one were to treat the letter of 22 February 1974 as a sufficient complaint even for the purpose of the application now under discussion, the fact that the action must therefore be treated as impliedly rejected after the expiry of four months, i.e. on 22 June 1974, would preclude its admissibility. The action must therefore be created as premature.
      Finally, it also cannot avail the applicant to rely on Article 91 (4) of the Staff Regulations. Contrary to Article 91 (2), this provision enables an appeal to be filed immediately after the submission of a complaint, i.e. before it is rejected, provided that such appeal is accompanied by an application either for a stay of execution of the contested act or for the adoption of interim measures. In that case the proceedings in the principal action before the Court of Justice shall be suspended until such time as an express or implied decision rejecting the complaint is taken. On this point it must first of all be borne in mind that the applicant did not file any complaint at all dealing with the same subject mater as the claim now under discussion. However, even disregarding this, one still has to take into account the fact that — as was rightly stressed by Parliament — the applicant's application for interim measures only has the purpose of preventing the post allegedly occupied by the applicant being filled, that it thus has a purpose different from that covered by the claim now being considered and that, if only for this reason, the application of Article 91 (4) to the present case cannot be justified.
      In whatever way one evaluates the events that relate to the claim for the grant of the ‘interim’, this part of the claim can only be treated as inadmissible.
      (b) As regards the claim to payment of a differential allowance
      As regards the applicant's claim to be entitled to a payment which in his view derives directly from the Staff Regulations and therefore does not require a prior formal act, it must be stated that a complaint was filed on 22 February 1974. This complaint was not however expressly dealt with. An action would accordingly only have been possible against the implied rejection of the complaint, which took place at the expiration of four months, i.e. on 22 June 1974. The action brought on 19 March 1974 must be regarded as premature and accordingly inadmissible.
      Reliance on Article 91 (4) of the Staff Regulations would not, in this context either, justify a different conclusion. This is so for the simple reason that the application based on Article 83 of the Rules of Procedure had a different purpose, to obtain an order temporarily not to fill the post allegedly occupied by the applicant.
      Both claims relating to the interim must therefore be dismissed as inadmissible.
      
               2.
            
            
               As regards the claim to annul competition A/43 together with the appointments based thereon.
               In this respect Parliament has raised no formal objection of a procedural kind but only raised questions as regards admissibility. These too will now be examined.
               As regards this head of claim, the following events emerged: after the opening of the competition procedure and after the announcement of the decisions based thereon which took place in February 1974, the applicant on 7 March 1974 made a complaint against the appointments. The complaint was described as unfounded in a communication from the President of Parliament dated 14 March 1974. At the same time the applicant was invited to provide supplementary reasons in respect of the conduct of the Selection Board and of the appointing authority, which he had criticized. The applicant supplied these on 18 March 1974, i. e. one day before he brought the present action.
               Accordingly, one certainly cannot argue against admissibility of the action, in so far as it relates to this head of claim, that there was no prior complaint. Admissibility moreover cannot be questioned by treating the applicant's letter of 18 March 1974 as a supplementary complaint or as a continuation of the complaints procedure in relation to which no decision has been taken. In this respect one can after all rightly point to Article 91 (4) of the Staff Regulations, to which I have before referred, and to the fact that together with the action there was an application for an interim measure which evidently referred to the application now under discussion.
               The only problem which really can arise — and this is what the observations of Parliament relate to — is whether the complaint was effective, i.e. whether it was furnished with sufficient reasons in support of the complaint of illegality of the competition procedure. Even when the matter is looked at in this way, however, one cannot in the final resort see any real objections.
               Even as a matter of principle one feels entitled to take the view that in relation to this kind of preliminary administrative procedure not requiring the assistance of a lawyer, where at the commencement one does not necessarily know all those details which ultimately will have to be criticized, one ought not to impose excessive requirements. Furthermore it must be said that grounds were in fact supplied. That much is true of the complaint of 7 March 1974 which refers to another letter of 5 October 1973 addressed to the President of Parliament and thus to the necessity of observing Article 29 (1) of the Staff Regulations. It is equally true of the supplementary grounds which are to be found in the letter of 18 March 1974. There one can find clear criticisms concerning the manner in which the competition had been conducted, e.g. the alleged lack of objective criteria or the erroneous application of criteria of assessment in several respects.
               Contrary to the view of Parliament I am therefore of the opinion that the claims for annulment of the competition and the appointments based thereon are admissible.
            
         II — On the main issue
      1. As regards the claims relating to the ‘interim’
      Notwithstanding the result of my examination as to admissibility, I should like to preface my examination of the main issue with some words on the issue of the claims which relate to the ‘interim’. I will give the Court my views on this point, in case it does not adopt my submissions as to the admissibility of the claim.
      
               (a)
            
            
               Let us first turn to the question whether the applicant was called upon temporarily to occupy the post of Committee secretary, i.e. whether he found himself in a position as described in Article 7 (2) of the Staff Regulations.
               On this point, the applicant argued that his previous immediate superior had given him instructions to this effect. He argued that a formal act on the part of the appointing authority was not required, nor was there anything in the Staff Regulations to show that in such a situation an official had to ask the appointing authority to recognize the situation. He further points to the fact that on 26 November 1973 he had made such an application and that a Director and a Director-General had recommended that it be granted.
               Quite apart from Parliament disputing the fact that the applicant had been entrusted by his superior with the temporary occupancy of this post, one can, when faced with this argument, draw attention primarily to the case-law to date. This shows that a clear condition precedent for applying Article 7 of the Staff Regulations is the existence of a formal act on the part of the appointing authority. This emerges from the Judgment in Case 35/69 (Judgment of 9 July 1970, Herta Lampe (Widow Grosz) v Commission of the European Communities, Rec. 1970, p. 614), in which by way of justification it is stated that it requires an act on the part of the appointing authority, since the application of Article 7 gives rise on the part of the official to a claim to specific benefits and since in this respect it requires that the interests of the service be duly taken into account. In the same line of reasoning there is the judgment in Case 48/70 (Judgment of 16 March 1971, Giorgio Bernardi v European Parliament, Rec. 1971, p. 184). This view of the law ought most certainly be approved of, for it alone can be reconciled with the requirement of legal certainty; on account of the entitlement to the differential allowance and the limitation in terms of time of the ‘interim’ occupancy, the date of commencement of this situation must be clearly established. This view of the law moreover seems to make sense in the interest of safeguarding the organizational authority, which otherwise might be undermined by acts on the part of superiors who have no competence in the matter.
               These arguments cannot be defeated by the arguments which the applicant seeks to derive from Article 21 of the Staff Regulations, i.e. from the provision that an official is responsible for the performance of the duties assigned to him. In this respect one must not in any way overlook the interests of the organizational authority, and it must not be forgotten that under Article 21, third paragraph, an official who receives instructions which he considers to be irregular shall inform his immediate superior of his views. Similar considerations apply to the reference to Article 25, third paragraph, in which the applicant finds that amongst all the possible decisions mentioned, one under Article 7 (2) is omitted, and from this he draws the conclusion that the application of Article 7 does not require the taking of such a decision. In fact in the case-law on Article 25, second paragraph, of the old Staff Regulations, which corresponds to Article 25, third paragraph, of the current Staff Regulations, it has been made clear that decisions which provide for a temporary posting within the meaning of Article 7 (2) (cf. Judgment in Case 48/70) also amount to ‘decisions regarding the … determination of administrative status’, (cf. Judgment in Case 48/70).
               If however one assumes the necessity for an express act on the part of the appointing authority for the application of Article 7 (2) of the Staff Regulations, then — such an express act clearly not having taken place in relation to the applicant — it is clear that the application for a finding that the applicant is in the legal position of Article 7 (2) cannot succeed.
               Nor could the applicant claim an entitlement to such an act in his favour, for Article 7 (2) of the Staff Regulations quite unequivocally contains a discretionary provision i.e. it leaves room for discretion. In the exercise thereof it may well be relevant whether — as was stressed in the letter from the Secretary-General of Parliament of 4 March 1974 — an early appointment to the post in question may be expected.
               Whichever way it is looked at, the first claim ought therefore to be rejected even from a practical point of view.
            
         
               (b)
            
            
               The same applies also to the claim that Parliament be ordered to pay a differential allowance under Article 7 (2) of the Staff Regulations, for such an entitlement can of course only exist if the formal conditions precedent of Article 7 (2), which have been referred to, viz. a formal act on the part of the appointing authority, have been fulfilled.
            
         2. As regards the legality of the appointments criticized.
      The central issue in this case is the question whether the appointments of other applicants made by Parliament on the basis of competition A/43 are lawful. The applicant disputes this, relying on Article 29 (1) of the Staff Regulations by arguing that even the opening of the competition procedure is illegal where the possibility exists of filling a post by way of promotion. Beyond this he takes the view that the manner in which the competition procedure was conducted was defective in several respects.
      
               (a)
            
            
               First of all one must therefore examine whether the opening of the competition A/43 was permissible.
               Article 29 of the Staff Regulations lays down that where a post is vacant and it is intended to fill it, the appointing authority shall first consider
               
                        ‘(a)
                     
                     
                        whether the post can be filled by promotion or transfer within the institution;
                     
                  
                        (b)
                     
                     
                        whether to hold competitions internal to the institution;
                     
                  
                        (c)
                     
                     
                        what applications for transfer have been made by officials of other institutions of the three European Communities’
                     
                  and only then follow the procedure for competitions on the basis of qualifications etc.
               In the applicant's view this rule was disregarded in the present case since the necessary consideration of possibilities of promotion had only been undertaken by the administration, but not by the appointing authority. The applicant further understands Article 29 as saying that the result of the considerations ought to be contained in an express and reasoned decision, which likewise was lacking. Finally, Article 29 in his view means that where possible, promotions ought to take place before a competition is opened. Since the applicant's superiors had repeatedly and expressly recognized his suitability for promotion, the opening of the competition had infringed a subjective legal right of the applicant.
               The consideration required under Article 29 ought certainly not to be undertaken by just any administrative office but by the competent appointing authority. However, this would appear to have happened in the present case. In this respect one can refer to the letter from the President of Parliament of 20 December 1973 which is annexed as Annex 10 to the application.
               Further, under Article 29 of the Staff Regulations one cannot ask for a reasoned formal decision in relation to existing possibilities of promotion, alongside a decision on the opening of a competition. Here there apply the same considerations on the basis of which the case-law has justified not providing reasons for promotions to those candidates who were passed over; after all, the esteem in which applicants are held could be adversely affected by an express affirmation of a negative judgment.
               Rather more difficult, however, is the question how one is to interpret the duty which is anchored in Article 29 (1), to consider possibilities of promotion; whether in the event of there being such a possibility of promotion there is an obligation to use it, or whether it lies within the discretion of the appointing authority to ignore existing possibilities of promotion if, for instance, it appears more desirable to have a broader basis for appointments.
               In his opinion on Case 15/63 (Judgment of 4 March 1964, Claude Lassalle v European Parliament, [1964] ECR 31) the former French Advocate-General Lagrange derived from Article 4 of the Staff Regulations, in which the concept of promotion is contrasted with that of appointment, the principle that before looking elsewhere the appointing authority must in the first place fall back on own reserves' i.e. on officials already in its employ. In line with those arguments is Euler's view expressed in his ‘Kommentar zum Europäischen Beamtenstatut’ that the possibilities of filling a post listed in each successive step can only be considered if the consideration of the possibilities listed in the preceding step has led to the finding that the established post cannot thereby be successfully filled (on Article 29, p. 256). Such views are in the light of the total system of the Staff Regulations perfectly comprehensible. After all careers are in practice limited to one category; access to the next higher category is only by promotion, i.e. not possible without difficulties. Looked at in this way there is something to be said for the view that the principle of priority of Community officials must in filling posts afford a certain compensation for such limited career possibilities, which might otherwise deter applicants.
               From such considerations one might construe an obligation on the part of the appointing authority at least to take very seriously the interests of those hoping for promotion. However, it seems rather questionable to read into Article 29 a duty to promote wherever possible, i.e. where the conditions for promotion set out in Article 45 and a suitability for the relevant post are present. It is precisely the latest case-law on disputes within the service which points to the fact that in interpreting the Staff Regulations the wording is the primary consideration. If one adheres to this view, then it must be conceded that had this been his intention the draftsman of the Staff Regulations would in Article 29 have referred in express terms to a duty to promote and not merely to a duty to consider possibilities of promotion.
               Accordingly I am of the opinion that the applicant's far-reaching thesis finds no support in the Staff Regulations. If the matter is understood correctly, one can admittedly demand — thus doing justice to the basic idea underlined by Lagrange and Euler — that in applying Article 29 (1) the required consideration be undertaken with extreme care and with due regard to all the interests of those hoping for promotion. After this, however, the transition to the stage referred to in Article 29 (1) (b) can be justified, not only when there are no such persons suitable for promotion, but also when other cogent grounds, which if necessary must be submitted to judicial examination, militate in favour of this course.
               In the present case the Parliament has, in reply to questions by this Chamber, stated that on the basis of the first Notice of Competition in relation to the posts relevant in this case, twenty-five applications were received. Five of these candidates, including the applicant, were declared by the Director of Personnel to be suitable for promotion. A closer consideration had thereupon shown that amongst the candidates there were a number of other officials whose qualifications and abilities appeared to render them suitable for the posts advertised. Further candidates had become suitable for promotion a few months later. In the light of this situation the appointing authority had come to the conclusion that it would be more appropriate for the purpose of making the appointments to have a wider basis of selection and had accordingly decided on a competition. Basically the appointing authority was above all concerned with being able carefully to compare all applicants, i.e. with taking into account the interests of all those hoping for promotion. Accordingly, under the Staff Regulations, which do not know any intermediate stages, there only remained available the internal competition under Article 29 (b), and this meant that thereupon temporary staff also had to be admitted to it — a matter of concern perhaps, but unavoidable under the Court's caselaw.
               Accordingly, there is in my view no cause for accusing the appointing authority of an infringement of Article 29 (1) and for declaring the opening of the competition to have been illegal.
            
         
               (b)
            
            
               This now necessarily leads us to the examination of the further question whether the competition was conducted sufficiently correctly for the list of suitable candidates which resulted therefrom — and upon which the appointing authority based itself in filling the posts — not to be open to criticism.
               In view of the plethora of criticisms which the applicant raised on this point, it seems to me right to preface this examination with some general remarks. In my view it is clear that the work of a Selection Board having the purpose of evaluating candidates cannot be re-examined by the Court in all its details. This is out of the question for — as can be seen already from Article 5 of Annex III of the Staff Regulations — the Selection Board has in its selection a margin of discretion and since in particular it has to provide a series of assessments which cannot be replaced by the evaluations of the Court. In cases such as the present the Court must therefore in principle limit itself to examining whether the competition was conducted in a proper manner and in particular whether the principle of equality of opportunity was observed. One might also look at whether the Selection Board had had regard to aspects which seem irrelevant for the purposes of the competition or whether it paid no regard to aspects of obvious importance. Beyond this one might perhaps go into the question of whether one can see assessments that are clearly erroneous and which would allow one to think in terms of arbitrary exercise of discretion. In examining the applicant's criticisms there arises in the first place the question whether the competition was conducted by a properly constituted Selection Board. Under this heading the applicant at first criticized the fact that the members of the Selection Board were appointed by the Secretary-General of Parliament and not, as was provided in the decision of Parliament of 12 December 1962, by the President of Parliament, he being the competent appointing authority under Article 2 of the Staff Regulations. After Parliament had proved that on the basis of a later decision of Parliament of 7 and 8 October 1971 in relation to Article 2 of the Staff Regulations the Secretary-General has indeed such powers, the applicant criticized the fact that the last-mentioned decision had not been published; that accordingly it had not acquired legal force and that the acts based thereon lacked legality.
               It already seems questionable to me — but I will leave this open for the moment — whether acts which empower administrative bodies to do certain acts, even if it is not a case of authority to promulgate law, require to be published. As for designating the appointing authority under the Staff Regulations, one may well be entitled to take the view that such measures of ‘division of functions within the service’ (as they were once called in the judgment in Cases 46/72 and 49/72 — Judgments of 30 May 1973 in Cases Robert De Greef and Giuseppe Drescig v Commission, [1973] ECR 543 and 565) require for their effectiveness no more than notification to the most important departments, as well as to the Staff Committee, a notification which one can assume took place at the Parliament. If publication is considered a requirement, then it is further doubtful whether one is here dealing with a crucial requirement of form of a kind which, if disregarded, would deprive of legality acts resulting from such an authorization. This too however might be left open, since for the present case another argument may in the final result suffice: if one were to go so far as to declare null and void the delegation of authority to the Secretary-General and thus deny him competence, there would still have to apply what the Court has already stated in the case-law already referred to on the question of nullity of acts done in disregard of the rules of competence under Article 2 of the Staff Regulations. For nullity is there assumed to exist only if there is a danger that, by reason of a departure from the rules of competence, one of the guarantees given to officials in the Staff Regulations, or one of the norms on the appropriate manner of conducting personnel administration, would be infringed. This can hardly apply where one is concerned with the constitution of a Selection Board by the Secretary-General, above all because one can assume that if in such cases the President of Parliament is competent, it is generally the Secretary-General's proposals which are followed.
               As regards the choice of factors to which the Selection Board had regard, the applicant criticizes the fact that apart from the normal considerations under Article 43 of the Staff Regulations, it took into account factors from outside the Communities, e.g. testimonials of industrial undertakings.
               The applicant, who evidently takes his cue from Article 45, i.e. the provision on promotions, overlooks the fact that one is here dealing with a competition based on qualifications. For such purposes, however, obviously all kinds of documents which provide information as to the candidates' ability are relevant, and not only factors derived from Community activities.
               One also felt entitled to feel a little unhappy at hearing the statement of the chairman of the Selection Board in the course of his evidence to the effect that to a large extent the scheme applied in other competitions had been followed. These qualms were however dispelled by the supplementary statement that specific criteria tailored to the task of filling the posts in question, were applied, such as criteria No 6, 7, 8, 9 and 10, referred to in the Selection Board's report. All this, taken together, gave the impression that the Selection Board had remained within its margin of discretion and that at any rate it does not seem possible to think in terms of an obviously arbitrary shaping of examination conditions, which alone could affect the issue here.
               Also criticized by the applicant was the manner in which the Selection Board had formed an opinion on criterion 11 (knowledge of languages) and on criterion 12 which called for ‘une connaissance très approfondie de la structure et du fonctionnement des Communautés européennes et de leurs institutions, notamment du Parlement, ainsi que des traités et de la legislation communautaire’. He claims that this was done on the basis of oral examinations whilst the Notice of Competition had only allowed for a consideration of qualifications and an interview.
               On this point we heard in the course of the evidence by the chairman of the Selection Board that the character of an interview had throughout been adhered to. All that had happened was that the Selection Board had briefly checked the data appearing in the reports under Article 43 of the Staff Regulations and the candidates' own statements as to their knowledge of languages and had, using essentially similar questions, dealt with aspects of Community law in order to ascertain the manner in which the candidates could cope with such problems.
               This cannot really be criticized either. After all, the Notice of Competition mentioned both the aforementioned points as conditions to be fulfilled by the candidate. Since, factually speaking, there were however no documents on this point in the personal file, there did indeed only remain the possibility of verifying these factors by means of the interview, which had likewise been laid down. The fact that as far as the second point is concerned the demanding terms of the Notice of Vacancy were not thereby satisfied might up to a point be regarded as a defect; for the purpose of judging the candidates, however, it probably has no real significance for the simple reason that, applying as it did to all candidates, the principle of equality of opportunity was preserved.
               If thereupon one considers in greater detail the individual criteria, so as to analyse the applicant's criticisms on these points also, then — always within the limits of the possibilities of examination open to the Court — one arrives at the following conclusions:
               The fact that of seniority in category A or LA, or of seniority in category A 4/5, or LA 4/5, ten years at the most were taken into account, and the fact that the Selection Board likewise took into account the candidates' ages when evaluating them, cannot in my opinion be regarded as obviously wrong. As regards the first point, the explanation seems to make sense to me that for posts of the kind advertised it is by and large only experience of the limited duration laid down which counts. There is on the other hand the understandable attempt to limit the weight carried by criteria having such automatic operation, so as to do justice to the interests of younger candidates. As regards the second point one will further have to bear in mind that in this way the element of ‘general maturity’ will also be able to carry its due weight.
               Also satisfactory in my view was the evidence given by witnesses in relation to the value placed on university diplomas. This evidence leaves no real doubt that, at any rate in so far as the applicant's qualifications are concerned, there were no errors.
               I also see no reasons for criticism as to the value put on reports under Article 43 of the Staff Regulations. This applies even as regards the procedure in those cases in which such reports were lacking. The factors which were used instead (long experience in the Group Secretariats) and the taking into account of an average marking really seem quite appropriate quite apart from the fact that those cases are of no importance since the relevant candidates were not included in the list of suitable candidates.
               Equally satisfactory in my view is what has been stated by the witness in relation to criterion No 8, according to which due account was taken of ‘expérience ou activités antérieures présentant une analogie ou constituant une préparation aux fonctions correspondant aux emplois à pourvoir’. It is above all important that experience acquired within the Parliamentary service itself was not disregarded, for if the witness's evidence is correct — and there is no reason to doubt it — it was taken into account in a different context, viz. in connexion with criteria 7, 9 and 10.
               Finally, generally convincing statements were also made in relation to the two criteria No 9 and 10 to which I have just referred, to the effect that what was important was a ‘capacité de diriger une équipe de personnel de haut niveau’ and a ‘qualité d'organisation et de méthodes’. Thus the Selection Board has clearly based its judgment on data contained in reports under Article 43 of the Staff Regulations, on information in other documents in the personal file relating to employment within the Community — in particular in Committee Secretariats — as well as information contained in documents relating to previous employment outside the Community which allowed such an opinion to be formed.
               Having undertaken all these investigations I have come to the conclusion that there is really no case to support any serious criticism of the Selection Board's proceedings. There are just two points which I came across that might give rise to a certain feeling of unease and I feel that they ought not to be left unmentioned.
               I am not in this connexion thinking of the argument that in taking into account the period of service, it might have been made appropriate to apply markings proportional to the total period of service, rather than to limit the relevant period to ten years. No, what I have in mind is the fact that the applicant's specialized experience in Committee work, more precisely his de facto interim occupancy, did not sufficiently enter into the scales; from the witness's evidence he would otherwise have received a marking higher by two points under this heading. And I also feel that doubts are justified as to whether the weighting of the different criteria of assessment was appropriate; in this connexion one thinks in particular of the effect of marks based on a short interview.
               Nevertheless, one may well wonder whether these are really erroneous assessments of an obvious and serious nature, of a kind which the Court can take into account in such cases. Moreover, one has the impression that to correct them would hardly result in an important alteration of the list of suitable candidates, pursuant to which the candidates who were appointed received between 66 1/2 and 75 1/2 points, whereas the applicant received only 60 points. If one bears this in mind, and furthermore considers the fact that in its selections from the list of suitable candidates the appointing authority in any event has a certain discretionary margin (cf. Judgment 62/65 — Judgment of 15 December 1966, Manlio Serio v Commission ([1966] ECR 561) in the exercise of which questions of a national quota may also play a part, then in the final resort one has no real hesitation in disregarding the awkward points cited in the present proceedings.
               Thus, taking everything together, one can take the view that, in relation to the conduct of the competition also, no errors have become apparent of a kind that might necessitate its annulment and thus the annulment of the appointments based thereon.
            
         III — In all the circumstances I would suggest the following judgment:
      The action brought by Mr Küster is dismissed as inadmissible to the extent that it seeks an order against the Parliament to pay the differential allowance under Article 7 (2) of the Staff Regulations and to the extent that it seeks a finding that Parliament was wrong in failing to confirm to the applicant that he had temporarily been entrusted with the occupancy of the post of Head of the Secretariat of the Committee on Public Health and the Environment. The rest of the action is dismissed as unfounded. The question of costs is governed by Article 70 of the Rules of Procedure.
      (
            1
         )	Translated from the German.