CELEX: 61982CC0143
Language: en
Date: 1983-03-24 00:00:00
Title: Opinion of Mr Advocate General VerLoren van Themaat delivered on 24 March 1983. # David Lipman v Commission of the European Communities. # Public service - Refusal of admission to a competition - Assessment of the requirement of practical experience. # Case 143/82.

OPINION OF MR ADVOCATE GENERAL
      VERLOREN VAN THEMAAT
      DELIVERED ON 24 MARCH 1983 (
            1
         )
      
         Mr President,
      
      
         Members of the Court,
      
      Introduction
      
               1.
            
            
               Mr Lipman, a Commission official in Grade B 3, has brought an action against the decision of 25 February 1982 refusing his application to take part in Open Competition No COM/A/325, published in Official Journal, C 233, p. 21.
               He is seeking the annulment of that negative decision and further requests an order that the Commission should permit him to take part in the open competition.
            
         Background
      
               2.
            
            
               Mr Lipman entered the service of the Commission in 1983 as an official in Grade B 4. In 1978 he was promoted to Grade B 3. He has always been employed in the Directorate-General for External Relations. According to his superiors, as appears from the annex to the application, he has been performing duties relating to Career Bracket A 7-A 6 since the end of 1976. That is also confirmed by the Commission. Although the Commission qualifies its confirmation, by stating that from 1977 to 1979 this was true only of some of his duties, it admits that at present the duties which he performs are mainly of that level.
               In addition to performing his duties, from 1977 the applicant followed a law course and in August 1981 was awarded a Bachelor of Laws degree by London University.
               This open competition in question was organized in order to constitute a reserve of administrators in the career bracket covering Grades 7. and 6 of Category A in order to fill a number of posts, including posts in the field of external relations. Because of the duties which he performed Mr Lipman was interested in a post in that sphere.
               Mr Lipman was not admitted to the competition on the ground that he did not comply with the requirement that he should have completed two years' experience since graduation. He had been awarded a degree only in August 1981 and was therefore unable at the time of his application for the open competition to fulfil that second requirement.
            
         Substance of the case
      
               3.
            
            
               In challenging the decision not to admit him to the competition, the applicant has made three submissions which he has set out in his application as follows :
               
                         
                     
                     
                        Infringement of or failure to observe :
                        the Staff Regulations of Officials of the European Communities and in particular Article 5 (3) thereof and Articles 1 (1) (d) and 5 of Annex III thereto;
                     
                  
                         
                     
                     
                        Notice of Competition No COM/A/325, especially of Article III B 2 thereof;
                     
                  
                         
                     
                     
                        A number of general principles of law, including the principle of equality.
                     
                  The applicant claims that the text concerning the requirement in question is clear and unequivocal. He is, however, of the opinion that in this case it led to the undesirable and even absurd result that he was not admitted to the open competition to constitute a reserve of administrators in the career bracket covering Grades 7 and 6 of Category A in the field in which he is already employed, even though he has six years' experience of performing duties at the level of Career Bracket A 7-A 6 in that field, purely and simply because he did not obtain a degree until August 1981 and therefore cannot comply with the requirement of at least two years' practical experience since graduation.
               He argues that such a result is unacceptable. He therefore proposes that the requirement should be given a wide interpretation, so as to bring his experience within its limits.
               For the sake of completeness I shall set out here the contested passage in the notice of competition:
               “B Special conditions
               
                        1.
                     
                     
                        ...
                     
                  
                        2.
                     
                     
                        Certificates, diplomas, etc., and practical experience.
                        On the closing date for applications, candidates must have completed:
                        
                                 (a)
                              
                              
                                 A full university course, with degree or diploma, in an appropriate field (see section I). The selection board will allow for differences in national education systems;
                              
                           
                                 (b)
                              
                              
                                 At least two years' experience since graduation ...”
                              
                           
                  The applicant argued that it was necessary to determine the purpose of the requirement relating to experience. In his view it was included in particular in order to ensure that young graduates should have some experience. That, however, does not apply to the applicant, since he already has six years' experience.
               That view is in his opinion supported by the provision contained in Article 1 (d) of Annex III to the Staff Regulations, which states that a notice of competition must specify “the diplomas and other evidence of formal qualifications or the degree of experience required for the post to be filled”. He claims that it is clear from that that the experience is directly related to the post and has no connection with the degree or diploma.
               Such a wide interpretation of the rules laid down is further justified by the fact that the requirement is described as “bijkomend” (
                     2
                  ) in the notice. He also refers to the judgment in Case 156/78 Newth v Commission [1979] ECR 1941, in which, he claims, the Court had recourse to a wide interpretation in order to avoid an unjust situation.
               Secondly, the applicant claims that there was a breach of the principle of equality, as laid down inter alia in Article 5 (3) of the Staff Regulations. He puts forward a number of arguments in support of that claim. He points out that an internal competition, No COM/A/481, published at the same time, did not require any degree for admission to Career Bracket A 7-A 6 and therefore could not lay down any requirement as to experience since graduation. I would note in regard to that point, by way of explanation, that that competition had a different purpose from the open competition and was also based on different requirements and did not, as was established during the oral procedure, represent a practical alternative for the applicant.
               In addition, the applicant claims that candidates were admitted to the open competition in question without any check being made as to whether their experience was, as required, in fact related to the option selected.
               Finally he takes the view that since other candidates whose experience in the field was less than his were admitted, this is a case of unequal treatment.
            
         Assessment of the merits of the case
      
               4.
            
            
               As far as judging the merits of the case is concerned I must state in the first place that I do in fact regard the result of the procedure adopted by the Commission as clearly unfair to the applicant. So far as the Court is concerned, however, the question is whether the application also can lead, in law, to the annulment of the decision not to admit the applicant to the competition. The determination of requirements for admission to an open competition is within the descretionary powers of the administration, obviously within the framework of the Staff Regulations of Officials and with due regard for relevant general principles of the law.
               The text in question requiring two years' experience since graduation is clear and unambiguous. Furthermore, the “Guide to Candidates taking part in Open Competitions of the Commission”, which appears before the notice of competition, expressly states in Section 5, entitled “Common causes of misunderstanding”, that experience is to be counted starting from the first job obtained after obtaining the educational level required.
               As regards the argument relating to the infringement of Article 1 (d) of Annex III to the Staff Regulations, it should be stated that that argument is comparable with the arguments considered in two judgments of this Court on the interpretation of Article 5 (1) of the Staff Regulations. They are Cases 177/78 Orlandi v Commission [1979] ECR 1613, and 178/78 Szemerey v Commission [1979] ECR 2855. Those cases also concerned inter alia the question whether, in view of Article 5 (1) of the Staff Regulations, a notice of competition can require practical experience in addition to a degree or diploma as cumulative conditions, or whether experience can be required only as an alternative condition.
               In both judgments this Court expressly decided that the provision in the Staff Regulations merely lays down minimum requirements and that the Staff Regulations do not prevent more rigorous conditions from being laid down if the nature of the posts to be filled so requires. That is expressly stated in paragraphs 15 and 16 of the judgment in Orlandi. In paragraph 3 of the judgment in Szemerey, reference is made to the judgment in Orlandi on that point without any fresh grounds being provided. I agree with Mr Advocate General Capotorti ([1979] ECR 2866, end of first column) that the administration's guiding principle should be the interests of the service.
               In my opinion the most that can be inferred from the provisions of Article 1 (d) of Annex III, in the light of the judgments of the Court cited above, is that the notice may contain a requirement of practical experience; there is no room for the much wider interpretation put forward by the applicant that that article prevents the cumulative requirement of a specific diploma or degree and practical experience or at any rate that in special cases such as his account should also be taken of practical experience obtained before graduation.
               It can certainly be accepted that the applicant has demonstrated that he complies with the purpose of the two requirements, namely proof of the ability to make practical use of academic knowledge, since for a long time he has been entrusted with duties relating to Career Bracket A 7-A 6 and for four years, as became clear at the hearing, he has also performed those duties in conjunction with academic knowledge which he simultaneously acquired. It appears from my own teaching experience and accords with the premises on which the modern concept of “éducation permanente” is based that that is in general an ideal way in which to combine academic knowledge and practical experience. It seems to me, however, that in the light of the case-law of the Court that is not sufficient reason for giving a different interpretation to the express wording of the prescribed requirement.
               The requirements of open competitions are by their nature directed towards normal cases and cannot take exceptions into account. Mr Advocate General Capotorti in his opinion in Szemerey, cited above, also made that point (at p. 2867, first paragraph). Finally, there were 2267 candidates for the open competition, of whom 1250 were admitted. The requirements may thus naturally be established on the basis of what is reasonable for the vast majority of the candidates, in view of the interests of the service which are being pursued.
            
         
               5.
            
            
               As regards the reference to Case 156/78 Newth [1979] ECR 1941, I consider that the Court arrived at its decision as a result of the fact that there was “discrimination as compared to other officials in a comparable situation” (paragraph 13).
               Therefore I will now consider the merits of the applicant's arguments concerning the claim that he was the subject of discrimination. He points out that Internal Competition No COM/A/481 did not require any diploma or degree and therefore could not lay down a requirement of practical experience after graduation either. I agree with the Commission that each competition stands on its own and cannot be compared with other competitions with different aims and requirements, regard also being had to the broad terms of the provisions in that connection contained in Article 1 of Annex III. The internal competition in question was designed to promote to Category A officials who had followed an administrative and financial course within the service. The other requirements were adapted to that different purpose.
               As regards the contention that in assessing the candidates for the open competition in question the requirement that experience should be related to the field selected was not always enforced, I do not see how that submission can succeed even if it were shown to be correct in these proceedings. Such an omission could not be interpreted to the applicant's advantage, nor could it result in discrimination against him.
               In relation to the argument that applicants with less experience, namely the minimum of two years, were admitted to the competition whereas the applicant with more experience, namely in his submission six years', was not, so that there was a breach of the principle of equality, I wish to make the following remarks.
               In the first place, it is questionable whether the applicant's situation is comparable to that of the other candidates. The applicant acquired his experience before sitting for his degree, whereas the others acquired their experience afterwards, as is expressly required by the notice of competition. As I have already observed, the authorities have in my opinion the power to frame that requirement as it thinks fit in the interests of the service. They obviously did not intend to equate practical experience with any academic training. Therefore in my opinion there is here — by contrast with the position in Newth — no question of discrimination in the sense that indentical or equivalent cases are treated differently or different cases are treated indentically without objective reasons.
               In Newth this Court came to the conclusion that the application of a general rule in the case in point resulted in a breach of a superior rule of law, in that case the principle of equal treatment. In order to avoid that result, the Court ruled that the contested provision should not be taken into account in that particular case with regard to the question of the place of residence, which was the decisive question in the case. Thus the legality of the provision as such was not thereby affected. Perhaps the applicant would have been more likely to succeed in his application if he had, in like manner, directed his recourse to the principle of equal treatment to his own particular case and had expressly accepted the rules laid down and the way in which they were interpreted by the Commission. His whole argument during the written and oral procedure was, however, directed precisely towards challenging those requirements and the interpretation of them.
               The Commission can admittedly put an end to the unfair position in which the applicant finds himself by organizing an internal competition in accordance with Article 29 of the Staff Regulations, before filling a vacant post in the department in question. Thus it is by no means yet established that the applicant's career has been unfairly prejudiced by the procedure followed. Naturally no decision can be taken in these proceedings concerning the question whether the Commission is bound to organize such an internal competition in any future case.
            
         
               6.
            
            
               Finally I have reached the conclusion that the application must be dismissed. In view of the circumstances of the case I consider that each party should, pursuant to Article 70 of the Rules of Procedure, bear its own costs.
            
         (
            1
         )	Translated from the Dutch.
      (
            2
         )	Translator's Note: There is no translation of this word In the English version of the Notice.