CELEX: 61971CC0078
Language: en
Date: 1972-01-26
Title: Opinion of Mr Advocate General Roemer delivered on 26 January 1972. # Mario Costacurta v Commission of the European Communities. # Case 78-71.

OPINION OF MR ADVOCATE-GENERAL ROEMER
      DELIVERED ON 26 JANUARY 1972 (
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         )
      
         Mr President,
      
         Members of the Court,
      The applicant in the proceedings which concern us today is an Italian citizen who entered the service of the European Coal and Steel Community in 1966. To begin with he was a member of the local staff within the meaning of the Conditions of Employment of Other Servants of the Communities but with effect from 1 October 1968 he was appointed a probationer official and with effect from 1 April 1969 an established official in Grade C 3/3. He is at present employed as a linofilm operator with the Office for Official Publications of the European Communities.
      The applicant has repeatedly endeavoured to change his career bracket and to become an assistant proof-reader of Italian mother tongue in Grades B 3/B 2 with the Office for Official Publications. To this end he has taken part in various competitions. Thus he applied for a post as assistant proof-reader of Italian mother tongue which was advertised on 10 March 1966 but was notified that his application had been unsuccessful. After taking part in Internal Competition HA/INT/60/B he learned on 20 July 1967 that he had been included in the list of suitable candidates drawn up in accordance with Article 30 of the Staff Regulations of Officials but that it had proved impossible to appoint him an assistant proof-reader. Finally the applicant also entered Internal Competition COM 152/70 for several assistant proofreader posts which was advertised on 17 July 1970. Together with other candidates he took part in a written test on 8 December 1970 and in an oral test on 9 December 1970. Once again however he was unsuccessful in the competition because, having failed to attain the minimum marks prescribed by the selection board, he was not included in the list of suitable candidates. He was notified of this on 2 February 1971 by the appointing authority. The advertised posts were filled by other candidates who had likewise taken part in the competition.
      Dissatisfied with the result of his endeavours, the applicant made a complaint on 26 March 1971, in accordance with Article 90 of the Staff Regulations of Officials to the President of the Commission. In this complaint, which was registered at the Commission on 23 April 1971, he pointed out inter alia that older candidates who were previously employed free-lance on a contractual basis with the Office for Official Publications and who were only made temporary staff with effect from 1 June 1970 had been admitted to the said competition. Furthermore the oral test was carried out very superficially. On those grounds he requested a review of the competition.
      Since the complaint remained unanswered he finally applied on 18 August 1971 to the Court of Justice. In his application he sought a declaration that an age-limit should have been indicated in Competition COM 152/70 and that the Commission had violated the principle that regard must be had to eligibility for promotion. This is the basis for the applications for the annulment of Notice of Competition COM 152/70, for the annulment of the appointment of five other candidates to the advertised posts of assistant together with the annulment of the decision rejecting his complaint, which is regarded as having been taken by implication after the lapse of two months from the lodging of the complaint.
      I will now consider how these applications and the submissions made in support of them should be viewed.
      
               1. 
            
            
               The applicant asserts first of all that Notice of Competition COM 152/70 disregarded the provisions of Article 1(1) (g) of Annex III to the Staff Regulations of Officials. This is so, he argues, because the notice failed to mention amongst the conditions to be fulfilled by the applicants ‘the age-limit and any extension of the age-limit in the case of servants of the Communities who have completed not less than one year's service’. The applicant considers that it is essential to give these particulars since they are intended to ensure that in internal competitions younger servants are favourably placed.
               It must be conceded that this assertion does indeed obtain a certain degree of support from the categoric terms of Article 1(1) of Annex III which provide that ‘Notices of competitions must specify…’. It may further be claimed that only in two cases, referred to in subparagraphs (f) and (i), are exceptions expressly provided for and this by the use of the words ‘where appropriate’ and ‘any’. The applicant deduces from this an argument, by the process of reasoning to the converse, in support of the other conditions quoted.
               Nevertheless the opposite view maintained by the Commission must ultimately be advocated as the more logical and therefore the correct one. The objective of the provisions relating to the holding of competitions is to ensure the greatest possible objectivity in the proceedings. Accordingly only criteria which have been laid down in advance for general application are valid. It is however quite clear that there may be posts which, by the nature of the duties involved, render the age of persons occupying them of no significance at all. In such cases provision of an age-limit in the notice of competition is undoubtedly pointless. If in accordance with the wording of Annex III the appointing authority were obliged to lay down such a limit, this would mean that in certain circumstances at any rate the limits would be drawn extraordinarily wide, possibly to the legal maximum, in order to take all possible applications into consideration. This could scarcely be objected to for the principle can nowhere be deduced from the Staff Regulations that younger candidates are to be given priority in competitions.
               There must be this further objection to the view of the applicant that in principle a low age-limit has to be set: it would have unfortunate effects on the career structure of servants of the Communities and would prevent older servants from rising in the hierarchy. Their career prospects could well be reduced in some cases by the application of the ‘extension of the age-limit in the case of servants of the Communities who have completed not less than one year's service’. This would have to be quite simply termed discrimination against such servants. It cannot seriously be accepted that this is the intention of the provisions of the Staff Regulations. Consequently it appears to me that the established practice of the Commission in not setting an age-limit in internal competitions is perfectly proper. It can a fortiori be said in such cases, that is to say, in those of applications by persons who are already in the service of the Communities, that in making the appointment (with or without a competition) care could be taken to give preference to the entry of younger persons into the service of the Communities.
               Finally it is impossible to oppose the view here advocated by a forceful line of argument derived from the case-law of the Court on related problems. The applicant invoked the judgment in Case 35/64 ([1965] EC R 261 at p. 267) where it was indeed stated that Article 1 of Annex III to the Staff Regulations of Officials lists the specifications which the notice of competition must include; in other words this is a reference to the mandatory terms of the said provision. However since this judgment essentially depended on factors other than the age-limit it is impossible simply to deduce from it that the Court considers that none of the conditions mentioned in Article 1 of Annex III to the Staff Regulations of Officials may be omitted from a notice of competition.
               To sum up I should like to express the view that despite the wording used in Article 1 of Annex HI it cannot be maintained that specification of an age-limit is obligatory and that consequently it is impossible to annul a notice of competition which refrains from setting such a limit or the decisions making the appointments on the basis thereof.
            
         
               2. 
            
            
               Secondly the applicant complains that persons were admitted to the competition who had never previously taken part in a competition. Indeed shortly before the notice of competition these persons were free-lance employees having a contractual relationship with the Office for Official Publications whereby they were merely obliged to accord first priority for certain periods to proof-reading for that Office. They were only appointed to the established staff with effect from 1 June 1970.
               These assertions call for the reply that according to the case-law of the Court (Case 16/64 [1965] ECR 135 at p. 143) which the applicant does not call in question, in a competition internal to the institution ‘any person who is employed by the institution, in whatever capacity’ may participate. In this connexion it is thus important that, according to the unopposed statements of the Commission, although prior to 1 June 1970 the candidates mentioned by the applicant were only employed free-lance on a contractual basis by the Office for Official Publications there was in practice clearly no difference between their work and that of other servants. Furthermore these contractual relationships had already subsisted for a long time (that is, since 1963, 1966 and 1967) and it appears that it was only for budgetary reasons that they were not put on a normal footing sooner. It may thus be considered that as free-lance employees these candidates already stood in such a close relationship to the Office for Official Publications that they may be compared at least to auxiliary staff, that is to say, to persons directly entitled to take part in internal competitions.
               Furthermore it must also be remembered that, as I have already mentioned, these candidates were appointed temporary staff in 1970 after the Council of Ministers had agreed to the appropriate posts. Their appointments took effect from 1 June 1970 after completion of the necessary and time-consuming administrative procedures. At the time of the notice of competition (that is, on 17 July 1970) and on the expiry of the period for lodging applications (31 July 1970) these candidates were thus already temporary staff and as such entitled to take part in competitions. These findings can be considered as sufficient even though the contracts of employment took effect on 1 June 1970 for a limited period which had expired at the time when the tests took place and clearly were no longer valid. Indeed the applicant himself does not assert that at this time the candidates concerned were now no longer in any respect in the service of the Communities. Furthermore it appears that the said contracts of employment were later renewed possibly with retroactive effect so that the said candidates were again temporary staff, at any rate at the time when they were appointed to the advertised posts.
               I am thus of the opinion that in the case which concerns us at present the Commission has observed the principles applicable in accordance with the Staff Regulations of Officials and the decisions of the Court regarding admission to internal competitions and that the measures criticized by the applicant thus cannot be called in question regarding the earlier status of certain participants in the competition.
            
         
               3. 
            
            
               In his reply the applicant expressly abandoned a third complaint, alleging an infringement of Article 29(1)(a) of the Staff Regulations, that is to say, a failure to have regard to his eligibility for promotion in not promoting him to one of the advertised posts. This was done after the Commission rightly pointed out that the applicant, an official in Category C, could not be considered for promotion to Category B and that according to the Staff Regulations in such cases it is possible to obtain access to a higher career bracket only by taking part in a competition. Further remarks on this point are accordingly superfluous.
            
         
               4. 
            
            
               In sum I am of the opinion that:
               The application lodged by Mr Costacurta must be dismissed as unfounded. In view of this outcome of the proceedings the appropriate decision as to costs in accordance with Article 70 of the Rules of Procedure is that the parties should bear their own costs.
            
         (
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         )	Translated from the German.