1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 10 MARCH 1982 , BERNHARD SCHLOH , AN OFFICIAL OF THE COUNCIL OF THE EUROPEAN COMMUNITIES IN GRADE A 3 , BROUGHT AN ACTION FOR THE ANNULMENT OF : ( A ) THE DECISION REJECTING HIS APPLICATION FOR THE POST OF DIRECTOR OF THE BUDGET AND THE STAFF REGULATIONS ( DIRECTORATE GENERAL A , DIRECTORATE III ), WHICH WAS NOTIFIED TO HIM ON 31 JULY 1981 ; ( B ) THE DECISION OF 11 SEPTEMBER 1981 APPOINTING J . J . KASEL TO THE ABOVEMENTIONED POST ; AND ( C ) THE DECISION REJECTING HIS COMPLAINT OF 12 OCTOBER 1981 WHICH WAS NOTIFIED TO HIM BY MEMORANDA OF 18 DECEMBER 1981 AND 15 FEBRUARY 1982 .
2 THE VACANT POST IN QUESTION , WHICH WAS NEWLY CREATED , WAS BROUGHT TO THE ATTENTION OF COUNCIL OFFICIALS BY NOTICE NO 83/81 F OF 17 JUNE 1981 OF THE DIRECTOR GENERAL OF ADMINISTRATION . THAT NOTICE WAS AMENDED BY TWO CORRIGENDA : NO 86/81 F OF 2 JULY 1981 , WHICH EXTENDED THE SCOPE OF THE NOTICE TO INCLUDE STAFF IN GRADE A 3 , AND NO 94/81 F OF 6 JULY 1981 , WHICH POSTPONED THE FINAL DATE FOR THE SUBMISSION OF APPLICATIONS FROM 8 TO 22 JULY 1981 .
3 THE COUNCIL STATED IN THE COURSE OF THE PROCEEDINGS THAT THE ABOVE-MENTIONED NOTICES WERE COMMUNICATED TO THE HEADS OF ADMINISTRATION OF OTHER COMMUNITY INSTITUTIONS BUT THAT NO REQUEST WAS MADE THAT THEY BE BROUGHT TO THE ATTENTION OF OFFICIALS INTERESTED . IN ANY EVENT , IT IS COMMON GROUND THAT THERE WAS NO FORMAL PUBLICATION OF A NOTICE OF INTER-INSTITUTIONAL TRANSFER .
4 THE APPLICANT , 16 OTHER OFFICIALS OF THE COUNCIL IN GRADE A 3 , INCLUDING AN OFFICIAL OF LUXEMBOURG NATIONALITY , MR FEIPEL , AND MR KASEL , A TEMPORARY SERVANT OF THE COMMISSION IN GRADE A 3 , SUBMITTED APPLICATIONS WITHIN THE PRESCRIBED PERIOD . AN APPLICATION WAS SUBMITTED AFTER THE PERIOD HAD EXPIRED BY ANOTHER COUNCIL OFFICIAL . THE SECRETARY GENERAL OF THE COUNCIL , IN HIS CAPACITY AS APPOINTING AUTHORITY , REJECTED ALL THE APPLICATIONS OF THE COUNCIL OFFICIALS BY LETTERS OF 31 JULY 1981 .
5 THE LETTERS SENT TO CANDIDATES WHO WERE NOT OF LUXEMBOURG NATIONALITY ARE IDENTICAL AND CONTAIN THE FOLLOWING STATEMENTS OF REASONS FOR THE REJECTION OF THE APPLICATIONS : ' ' . . . IN ORDER TO FILL THE POST , I AM OBLIGED TO TAKE INTO ACCOUNT NOT ONLY THE KNOWLEDGE AND EXPERIENCE REQUIRED FOR THIS MANAGEMENT POST BUT ALSO THE NEED TO MAINTAIN AN APPROPRIATE GEOGRAPHICAL BALANCE . ' ' ON THE OTHER HAND , IN THE LETTER SENT TO THE OFFICIAL OF LUXEMBOURG NATIONALITY , MR . FEIPEL , THE FOLLOWING REASONS ARE GIVEN FOR THE REJECTION : ' ' IN ADDITION TO THE NEED TO PROVIDE FOR APPROPRIATE GEOGRAPHICAL BALANCE , THE CHOICE OF CANDIDATE FOR THIS POST IS DETERMINED BY THE REQUIREMENT OF POSSESSING THE SPECIFIC KNOWLEDGE AND EXPERIENCE NECESSARY TO PERFORM THESE MANAGEMENT DUTIES . I AM FAMILIAR WITH THE DETAILS OF YOUR CAREER AND I CONSIDER THAT YOUR SPECIFIC KNOWLEDGE AND EXPERIENCE DO NOT CORRESPOND TO THE DUTIES OF THE ABOVE-MENTIONED MANAGEMENT POST . ' '
6 MR FEIPEL ' S APPLICATION WAS ACCOMPANIED BY AN ' ' EXPLANATORY NOTE ' ' WHICH ACCUSED THE COUNCIL OF RESERVING THE NEWLY-CREATED POST FOR A LUXEMBOURG OFFICIAL WHOSE NAME WAS ALREADY KNOWN . THAT CRITICISM WAS WORDED AS FOLLOWS : ' ' IN COMMON WITH MY A 3 COLLEAGUES , IN SUBMITTING MY CANDIDATURE , I AM UNDER NO ILLUSION AND I DO SO SOLELY SO THAT I CANNOT BE TOLD AT A LATER STAGE THAT OWING TO THE ABSENCE OF CANDIDATURES WITHIN THE GENERAL SECRETARIAT , THE ADMINISTRATION HAS BEEN OBLIGED TO RECRUIT SOMEONE FROM OUTSIDE . I AM VERY WELL AWARE , AS INDEED ARE ALL MY A 3 COLLEAGUES , THAT THE A 2 POST DECLARED VACANT BY THE ABOVE-MENTIONED NOTICE IS TO BE FILLED BY A LUXEMBOURG OFFICIAL BY APPLICATION OF THE SO-CALLED ' PARACHUTE ' PROCEDURE . THAT OFFICIAL ' S NAME , CURRICULUM VITAE AND PRESENT POST ARE KNOWN . I DO NOT WISH TO ARGUE ABOUT HIS AGE OR HIS GENERAL QUALITIES BUT I WOULD NEVERTHELESS MAKE ONE OBSERVATION : IN THE COURSE OF HIS SHORT CAREER HE HAS NEVER DEALT WITH PROBLEMS RELATING TO THE BUDGET . ' '
7 THREE DAYS BEFORE THE LETTERS REJECTING THE OFFICIALS ' APPLICATIONS WERE DISPATCHED , THE AGENCE EUROPE NEWS-SHEET OF 27 TO 28 JULY PUBLISHED THE FOLLOWING INFORMATION : ' ' . . . THE ASSISTENT CHEF DE CABINET , J . J . KASEL , IS , MOREOVER LEAVING THE SERVICE OF THE COMMISSION IN SEPTEMBER TO BECOME A DIRECTOR IN THE COUNCIL SECRETARIAT . ' '
8 BY DECISION NO 817/81 OF 11 SEPTEMBER 1981 , ADOPTED IN PURSUANCE OF ARTICLE 29 ( 2 ) OF THE STAFF REGULATIONS OF OFFICIALS , THE APPOINTING AUTHORITY APPOINTED TO THE VACANT POST J . J . KASEL , A LUXEMBOURG NATIONAL , AGED 35 , WHO SINCE 6 JANUARY 1981 HAD BEEN IN THE SERVICE OF THE COMMISSION AS A TEMPORARY SERVANT IN GRADE A 3 WITH THE DUTIES OF ASSISTANT CHEF DE CABINET TO THE PRESIDENT OF THE COMMISSION . IT WAS REVEALED IN THE COURSE OF THE ORAL PROCEDURE THAT MR KASEL HAD SUBMITTED HIS APPLICATION , DATED 9 JULY , ON 13 JULY 1981 . THE APPLICATION WAS PRESENTED IN THE FORM OF A LETTER , ADDRESSED DIRECTLY TO THE SECRETARY GENERAL .
9 FOLLOWING THE REJECTION OF THEIR APPLICATIONS AND THE APPOINTMENT OF MR KASEL , THE APPLICANT AND 11 OTHER OFFICIALS SUBMITTED , ON 15 OCTOBER 1981 , INDIVIDUAL COMPLAINTS UNDER ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS . IN PARTICULAR , IN HIS COMPLAINT , THE APPLICANT ALLEGES THAT THE APPOINTMENT OF MR KASEL WAS SIMPLY THE CONSEQUENCE OF POLITICAL AGREEMENTS ' ' ON COMPENSATION ' ' WHICH WERE CONCLUDED IN THE COURSE OF THE 655TH MEETING OF THE COUNCIL ON 15 AND 16 SEPTEMBER 1980 , FOLLOWING THE RETIREMENT OF THE SECRETARY GENERAL WHO WAS A LUXEMBOURG NATIONAL . THE COMPLAINTS WERE DISMISSED BY IDENTICAL DECISIONS OF THE APPOINTING AUTHORITY OF 18 DECEMBER 1981 , WORDED AS FOLLOWS : ' ' YOUR COMPLAINT OF 15 OCTOBER 1981 HAS BEEN FULLY CONSIDERED . AFTER A THOROUGH INVESTIGATION , I CAN SEE NO REASON FOR REVERSING MY PREVIOUS DECISION , WHICH FALLS WITHIN THE WIDE DISCRETIONARY POWER AND FREEDOM OF DECISION VESTED IN THE APPOINTING AUTHORITY IN THIS MATTER . MOREOVER THE PROCEDURE ADOPTED IN THIS INSTANCE IS PRECISELY THAT ADOPTED FOR THE LARGE MAJORITY OF APPOINTMENTS IN GRADES A 1 AND A 2 WITHIN THE COUNCIL . ' '
10 ACCORDING TO THE APPLICANT , THOSE LETTERS PROVOKED STRONG PROTESTS , IN PARTICULAR IN RELATION TO THE LAST SENTENCE , WHICH HE CLAIMS DOES NOT CORRESPOND TO THE REAL FACTS , SINCE A 2 POSTS IN THE GENERAL SECRETARIAT OF THE COUNCIL ARE , AS A RULE , FILLED BY PROMOTION OR INTERNAL RECRUITMENT . IN THOSE CIRCUMSTANCES A MEETING TOOK PLACE BETWEEN THE APPOINTING AUTHORITY AND THE OFFICIALS CONCERNED ON 5 FEBRUARY 1982 . ON 15 FEBRUARY , THE SECRETARY GENERAL SENT TO THE OFFICIALS CONCERNED A MEMORANDUM WHICH CONTAINED , INTER ALIA , THE FOLLOWING STATEMENTS : ' ' . . . I SHOULD LIKE TO MAKE IT CLEAR THAT THE LAST SENTENCE IN MY MEMORANDUM WAS MERELY A COMMENTARY ON THE DECISION CONTAINED IN THE FIRST SENTENCE AND IN CONSEQUENCE IT CANNOT STRICTLY BE SAID TO FORM PART OF THAT DECISION . YOU MAY THEREFORE DISREGARD IT . AS FAR AS THE FUTURE IS CONCERNED , I CAN ASSURE YOU , AS I DID IN MY ADDRESS OF 5 FEBRUARY LAST , THAT FOR THE PERIOD OF MY TERM OF OFFICE AS SECRETARY GENERAL , I IN NO WAY INTEND TO DEPART FROM THE NORMAL PROCEDURE FOR THE APPOINTMENT OF OFFICIALS TO POSTS IN GRADE A 2 . ' '
11 FINALLY , IN RELATION TO THE RECRUITMENT PROCEDURE BASED ON THE ABOVE-MENTIONED VACANCY NOTICE , IT SHOULD BE RECALLED THAT , BY MEMORANDUM OF 31 JANUARY 1983 , AT THE REQUEST OF THE COURT OF JUSTICE , THE COUNCIL PROVIDED THE FILE OF APPLICATIONS WITH A MEMORANDUM OF THE SECRETARY GENERAL OF THE SAME DATE WHICH IS WORDED AS FOLLOWS : ' ' THE CANDIDATURES OF THE 17 INTERNAL CANDIDATES WHO HAD APPLIED WITHIN THE FIXED TIME-LIMIT WERE EXAMINED AT A MEETING ON 15 JULY 1981 IN WHICH PARTICIPATED - BESIDES ME - THE DIRECTOR GENERAL FOR ADMINISTRATION , THE DIRECTOR RESPONSIBLE FOR STAFF MATTERS AND THE HEAD OF THE PRIVATE OFFICE . A SIMILAR EXAMINATION OF AN INTERNAL CANDIDATE WHO HAD APPLIED AFTER THE FIXED TIME-LIMIT TOOK PLACE ON 24 JULY 1981 . ON THE BASIS OF THE ABOVE-MENTIONED COMPARATIVE EXAMINATIONS I DECIDED THAT NONE OF THE CANDIDATES SHOULD BE APPOINTED . AFTER THIS DATE NO FURTHER CANDIDATURE FOR THE POST IN QUESTION WAS RECEIVED . MY DECISION WAS COMMUNICATED IN WRITING TO THE DIRECTOR GENERAL FOR ADMINISTRATION ON 24 JULY 1981 . ' '
12 IT WAS IN THE CIRCUMSTANCES DESCRIBED ABOVE THAT MR SCHLOH BROUGHT HIS ACTION , IN SUPPORT OF WHICH HE MAKES THE FOLLOWING SUBMISSIONS : 1 . INASMUCH AS IT FAILED TO BRING THE VACANCY IN QUESTION TO THE NOTICE OF THE STAFF OF OTHER COMMUNITY INSTITUTIONS , THE COUNCIL INFRINGED ARTICLE 29 ( 1 ) ( C ) AND THE THIRD PARAGRAPH OF ARTICLE 4 OF THE STAFF REGULATIONS . 2 . THE COUNCIL ALSO INFRINGED ARTICLE 29 ( 2 ) OF THE STAFF REGULATIONS INASMUCH AS IT APPOINTED A PERSON FROM OUTSIDE THE COMMUNITY INSTITUTIONS , ALTHOUGH HE LACKED THE QUALIFICATIONS REQUIRED FOR THE VACANT POST OR , AT LEAST , HIS QUALIFICATIONS WERE INFERIOR TO THOSE OF THE ' ' INTERNAL ' ' CANDIDATES . 3 . IN ADDITION , THE COUNCIL INFRINGED ARTICLE 27 OF THE STAFF REGULATIONS INASMUCH AS IT RESERVED THE POST IN QUESTION FOR A NATIONAL OF A SPECIFIC MEMBER STATE ; FURTHER , THE APPOINTING AUTHORITY ' S ACTION CONSTITUTED A MISUSE OF POWER INASMUCH AS IT RESERVED THE POST FOR A SPECIFIC PERSON EVEN BEFORE THE PROCEDURE FOR FILLING THE POST WAS INITIATED . 4 . FINALLY , THE COUNCIL INFRINGED THE SECOND PARAGRAPH OF ARTICLE 25 OF THE STAFF REGULATIONS , INASMUCH AS IT FAILED TO STATE ADEQUATE GROUNDS IN ITS DECISION TO REJECT THE APPLICANT ' S COMPLAINT . THE ADMISSIBILITY OF THE FIRST SUBMISSION
13 THE COUNCIL HAS RAISED AN OBJECTION OF INADMISSIBILITY IN RESPECT OF THE FIRST SUBMISSION . IT MAINTAINS THAT THE APPLICANT DOES NOT HAVE AN INTEREST IN COMPLAINING THAT THE VACANCY IN QUESTION WAS NOT BROUGHT TO THE NOTICE OF THE STAFF OF COMMUNITY INSTITUTIONS OTHER THAN THE COUNCIL , SINCE THAT OMISSION DOES NOT ADVERSELY AFFECT HIM .
14 THE OBJECTION IS WELL FOUNDED . EVEN THOUGH , AS THE APPLICANT NOTES , THE DUTY OF THE INSTITUTIONS TO COMPLY WITH THE PROVISIONS RELATING TO RECRUITMENT CORRESPONDS TO A PUBLIC INTEREST , THE APPLICANT IS NOT ENTITLED TO ACT IN THE INTERESTS OF THE LAW OR OF THE INSTITUTIONS AND MAY PUT FORWARD , IN SUPPORT OF AN ACTION FOR THE ANNULMENT OF AN APPOINTMENT , ONLY SUCH CLAIMS AS RELATE TO HIM PERSONALLY . THE SUBMISSION MUST THEREFORE BE DECLARED INADMISSIBLE . THE REMAINING SUBMISSIONS
15 IN HIS SECOND SUBMISSION , THE APPLICANT MAINTAINS THAT RECOURSE TO THE EXCEPTIONAL PROCEDURE PROVIDED FOR IN ARTICLE 29 ( 2 ) OF THE STAFF REGULATIONS FOR APPOINTMENTS TO GRADES A 2 AND A 1 IMPLIES THAT THE PERSON APPOINTED FOLLOWING A PROCEDURE OTHER THAN THAT OF A COMPETITION AND FROM OUTSIDE THE COMMUNITY INSTITUTIONS SHOULD HAVE QUALIFICATIONS WHICH ARE AT LEAST EQUAL TO THOSE OFFICIALS WHO ARE ALREADY IN THE SERVICE AND ELIGIBLE FOR PROMOTION TO THE POST IN QUESTION . THE COUNCIL FAILED TO OBSERVE THOSE RULES , INASMUCH AS THE PERSON APPOINTED WAS FROM ' ' OUTSIDE ' ' SINCE HE WAS NOT AN OFFICIAL . MOREOVER HE LACKED THE REQUIRED QUALIFICATIONS SET OUT IN THE VACANCY NOTICE , AS WAS ACKNOWLEDGED BY THE APPOINTING AUTHORITY BY IMPLICATION IN ITS LETTERS REJECTING THE ' ' INTERNAL ' ' APPLICATIONS . MR KASEL ' S LACK OF QUALIFICATIONS MAY BE SEEN FROM HIS CURRICULUM VITAE PUBLISHED BY THE COUNCIL ADMINISTRATION .
16 IN HIS THIRD SUBMISSION , WHICH IS CLOSELY LINKED TO THE SECOND , THE APPLICANT ALLEGES IN THE FIRST PLACE AN INFRINGEMENT OF ARTICLE 27 OF THE STAFF REGULATIONS , IN PARTICULAR THE LAST PARAGRAPH , INASMUCH AS THE APPOINTING AUTHORITY RESERVED THE VACANT POST IN ADVANCE FOR A NATIONAL OF A SPECIFIC MEMBER STATE , NAMELY LUXEMBOURG . IN FACT , THE NEWLY-CREATED POST WAS RESERVED FOR MR KASEL IN THE CONTEXT OF THE ' ' COMPENSATION ' ' PROMISED TO THE REPRESENTATIVE OF THE GRAND DUCHY IN THE COURSE OF THE MEETING OF THE COUNCIL OF 15 AND 16 SEPTEMBER 1980 . WHILST , THE APPLICANT STATES , IT IS INDEED TRUE THAT PURSUANT TO THE FIRST PARAGRAPH OF ARTICLE 27 OF THE STAFF REGULATIONS THE RECRUITMENT OF OFFICIALS MUST BE DIRECTED TO SECURING THE BROADEST POSSIBLE GEOGRAPHICAL DISTRIBUTION AMONG THE NATIONALS OF MEMBER STATES AND IN THAT SENSE , THE DESIRE TO ' ' COMPENSATE ' ' LUXEMBOURG FOR THE LOSS OF A MANAGEMENT POST WITHIN THE SECRETARIAT OF THE COUNCIL MIGHT BE JUSTIFIED , IT IS NONE THE LESS TRUE THAT THE LAST PARAGRAPH OF ARTICLE 27 PROVIDES THAT NO POST MAY BE RESERVED FOR NATIONALS OF A SPECIFIC MEMBER STATE . IN THIS CASE , THE APPOINTING AUTHORITY RESERVED THE NEWLY-CREATED POST FOR A LUXEMBOURG NATIONAL AND DID SO EVEN BEFORE THE PROCEDURE FOR FILLING THE POST HAD BEEN INITIATED . IN ADDITION , THE APPLICANT CLAIMS , AS REGARDS THE FIRST PARAGRAPH OF ARTICLE 27 OF THE STAFF REGULATIONS , ACCORDING TO THE ESTABLISHED CASE-LAW OF THE COURT , THE GEOGRAPHICAL CRITERION MAY BE A DECISIVE FACTOR ONLY WHERE CANDIDATES ' QUALIFICATIONS ARE CLEARLY EQUAL . THAT IS NOT THE CASE IN THIS INSTANCE . ON THE ONE HAND , MR KASEL ' S QUALIFICATIONS ARE INFERIOR TO THOSE OF THE ' ' INTERNAL ' ' CANDIDATES AND , ON THE OTHER , AS THE PROCEDURE FOR FILLING THE POST IN QUESTION WAS INSTITUTED UNDER ARTICLE 29 ( 1 ) OF THE STAFF REGULATIONS , MR KASEL COULD NOT YET , AT THAT STAGE , HAVE BEEN A CANDIDATE , SINCE HE WAS NOT AN OFFICIAL .
17 IN THE SECOND PLACE , THE APPLICANT CLAIMS THAT NOT ONLY DID THE APPOINTING AUTHORITY RESERVE THE VACANT POST FOR A LUXEMBOURG NATIONAL BUT , EVEN BEFORE THE PROCEDURE FOR FILLING THE POST WAS INITIATED , IT SET THE POST ASIDE FOR A SPECIFIC PERSON , NAMELY MR KASEL , WITHOUT TAKING INTO CONSIDERATION HIS ABILITIES AND QUALIFICATIONS . THE APPOINTING AUTHORITY ' S ACTION THEREFORE CONSTITUTES A MISUSE OF POWER . IN SUPPORT OF HIS VIEW , THE APPLICANT LISTS A NUMBER OF DETAILS , WHICH IN HIS VIEW ARE ALL CONSISTENT AND RELEVANT AND WHICH ESTABLISH THE PROOF OF THE ILLEGALITY OF WHICH HE COMPLAINS .
18 THE COUNCIL , IN THE FIRST PLACE , MAINTAINS THAT MR KASEL , FAR FROM LACKING THE QUALIFICATIONS REQUIRED FOR THE POST , ON THE CONTRARY IS PARTICULARLY WELL QUALIFIED TO FILL IT , BY REASON OF HIS ACADEMIC DEGREES AND THE EXPERIENCE ACQUIRED IN HIS FORMER POSTS . MOREOVER , IT ASSERTS THAT , AT THE TIME OF HIS APPOINTMENT , HE HAD BEEN A TEMPORARY SERVANT OF THE COMMISSION IN GRADE A 3 FOR SEVERAL MONTHS AND COULD NOT THEREFORE BE REGARDED AS A CANDIDATE FROM ' ' OUTSIDE THE COMMUNITY INSTITUTIONS ' ' .
19 THE COUNCIL CONTENDS , IN THE SECOND PLACE , THAT AN APPOINTMENT TO GRADE A 2 MADE , AS IN THIS CASE , UNDER ARTICLE 29 ( 2 ) OF THE STAFF REGULATIONS , DOES NOT REQUIRE PARTICULAR TECHNICAL QUALIFICATIONS BUT ' ' THE ABILITY TO LEAD , TO CO-ORDINATE AND TO MAINTAIN CONTACTS AT A VERY HIGH LEVEL ' ' . FURTHER , THE COUNCIL RELIES ON THE APPOINTING AUTHORITY ' S WIDE DISCRETION TO APPRAISE THE REQUIREMENTS OF THE SERVICE AND THE CAPACITIES AND ABILITIES OF THE OFFICIALS TO BE APPOINTED , IN PARTICULAR FOR THE RECRUITMENT OF OFFICIALS IN GRADES A 1 AND A 2 .
20 AS REGARDS THE ALLEGED INFRINGEMENT OF THE LAST PARAGRAPH OF ARTICLE 27 OF THE STAFF REGULATIONS , THE COUNCIL MAINTAINS THAT , AT THE TIME OF THE DISPUTED APPOINTMENT , LUXEMBOURG NATIONALS WERE NOT SUFFICIENTLY REPRESENTED WITHIN THE COUNCIL IN CATEGORY A , AND THAT , THEREFORE , NO COMPLAINT MAY BE LEVELLED AT IT INASMUCH AS ITS DECISION TO APPOINT MR KASEL TOOK ACCOUNT OF THE RESOLUTIONS ADOPTED ON 15 AND 16 SEPTEMBER 1980 AT THE 655TH MEETING OF THE COUNCIL . IN THAT RESPECT , THE COUNCIL CITES THE CASE-LAW OF THE COURT ON THE EXTENT TO WHICH NATIONALITY MAY PLAY A DECISIVE PART IN ENSURING A GEOGRAPHICAL BALANCE WHERE THE CANDIDATES ' QUALIFICATIONS ARE EQUAL . IT RE-AFFIRMS THAT MR KASEL POSSESSED ALL THE NECESSARY QUALIFICATIONS AND CLAIMS THAT IT IS FOR THE APPOINTING AUTHORITY AND FOR IT ALONE TO ASSESS WHETHER QUALIFICATIONS ARE EQUAL . IN THAT CONTEXT THE COUNCIL CONTENDS THAT THE ABOVE-MENTIONED LETTERS REJECTING THE APPLICATIONS OF THE OFFICIALS WITHIN THE INSTITUTION DID NOT REFER ONLY TO THE FACTOR OF GEOGRAPHICAL BALANCE BUT ALSO TO THE KNOWLEDGE AND EXPERIENCE OF THE CANDIDATES . FURTHERMORE , LESS IMPORTANCE WAS ATTACHED TO THE FIRST FACTOR THAN TO THE SECOND . FINALLY , THE COUNCIL OBSERVES THAT THE FACT THAT THE APPLICATION OF AN A 3 OFFICIAL OF THE COUNCIL OF LUXEMBOURG NATIONALITY WAS ALSO REJECTED SHOWS THAT THE APPLICANT ' S VIEW IS UNFOUNDED . IN REALITY , ACCORDING TO THE COUNCIL , ALL THE ' ' INTERNAL ' ' APPLICATIONS WERE REJECTED BECAUSE THE CANDIDATES ' QUALIFICATIONS WERE INADEQUATE .
21 AS REGARDS THE COMPLAINT OF MISUSE OF POWER , THE COUNCIL , HAVING EXAMINED IN DETAIL THE EVIDENCE RELIED ON BY THE APPLICANT , CONTENDS THAT IT IS NEITHER RELEVANT NOR SUFFICIENT AND CITES THE WIDE DISCRETION VESTED IN THE APPOINTING AUTHORITY IN THIS MATTER .
22 BEFORE THE ARGUMENTS PUT FORWARD BY THE PARTIES ARE CONSIDERED IT IS APPROPRIATE , INITIALLY , TO ESTABLISH THE LEGAL NATURE OF THE RECRUITMENT PROCEDURE ADOPTED IN THIS INSTANCE BY THE COUNCIL FOR THE PURPOSE OF FILLING THE VACANCY OF DIRECTOR OF THE BUDGET AND STAFF REGULATIONS ( GRADE A 2 ).
23 ARTICLE 29 ( 1 ) OF THE STAFF REGULATIONS PROVIDES THAT IN ORDER TO FILL VACANCIES IN AN INSTITUTION , THE APPOINTING AUTHORITY MUST FIRST CONSIDER : ( A ) WHETHER THE POST CAN BE FILLED BY PROMOTION OR TRANSFER WITHIN THE INSTITUTIONS ; ( 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 FOLLOW A PROCEDURE FOR COMPETITIONS ON THE BASIS EITHER OF QUALIFICATIONS OR OF TESTS , OR OF BOTH QUALIFICATIONS AND TESTS . ARTICLE 29 ( 2 ) PROVIDES THAT A PROCEDURE OTHER THAN THE COMPETITION PROCEDURE MAY BE ADOPTED BY THE APPOINTING AUTHORITY FOR THE RECRUITMENT OF GRADE A 1 OR A 2 OFFICIALS AND , IN EXCEPTIONAL CASES , ALSO FOR RECRUITMENT TO POSTS WHICH REQUIRE SPECIAL QUALIFICATIONS .
24 THE APPLICANT HAS CLAIMED THAT IN THIS CASE THE RECRUITMENT PROCEDURE , IN ITS FIRST PHASE , IS THAT OF THE PROMOTION OF OFFICIALS WITHIN THE INSTITUTION , UNDER ARTICLE 29 ( 1 ) ( A ) AND , IN ITS SECOND PHASE , IS THAT OF RECRUITMENT WITHOUT COMPETITION UNDER ARTICLE 29 ( 2 ). THE COUNCIL , ON THE OTHER HAND , MAINTAINS THAT THE PROCEDURE ADOPTED , BEING BASED ON ARTICLE 29 ( 2 ) OF THE STAFF REGULATIONS , IS DIFFERENT FROM THAT PROVIDED FOR IN ARTICLE 29 ( 1 ), INASMUCH AS THE COUNCIL , FOR THE POST IN QUESTION , ' ' WISHED TO EXPLORE THE POSSIBILITIES IN OTHER INSTITUTIONS ' ' .
25 IN ORDER TO APPRAISE THE RECRUITMENT PROCEDURE ADOPTED BY THE APPOINTING AUTHORITY FOR THE POST IN QUESTION , IT IS NECESSARY TO CONSIDER THE VACANCY NOTICE OF 18 JUNE 1981 . THAT NOTICE , THE VALIDITY OF WHICH IS NOT CONTESTED BY THE APPLICANT , AND , TO WHICH ALL THE CANDIDATES REFERRED IN THEIR APPLICATIONS , REPRESENTS THE DOCUMENT WHICH , BEING BASED ON ARTICLE 29 ( 2 ) OF THE STAFF REGULATIONS , GOVERNS THE ENTIRE RECRUITMENT PROCEDURE WITHOUT MAKING A DISTINCTION BETWEEN CANDIDATES FROM WITHIN THE INSTITUTION AND THOSE FROM OTHER INSTITUTIONS . THAT PROCEDURE IS OPEN TO A CONSIDERABLE NUMBER OF CANDIDATES AND THEREFORE REQUIRES A PRELIMINARY EXAMINATION OF THE COMPARATIVE MERITS OF THE VARIOUS CANDIDATES , IN ACCORDANCE WITH THE CONDITIONS SPECIFIED IN THE VACANCY NOTICE AND THE PRINCIPLES LAID DOWN BY ARTICLE 27 OF THE STAFF REGULATIONS .
26 THAT ARTICLE , TAKEN TOGETHER WITH ARTICLE 7 OF THE STAFF REGULATIONS , PROVIDES THAT WHEN ANY COMMUNITY INSTITUTION RECRUITS , PROMOTES OR ASSIGNS ITS OFFICIALS TO POSTS , IT MUST BE GUIDED ON THE ONE HAND BY THE INTERESTS OF THE SERVICE WITHOUT REGARD TO NATIONALITY AND ON THE OTHER HAND MUST ENSURE THAT THEY ARE RECRUITED ON THE WIDEST POSSIBLE GEOGRAPHICAL BASIS FROM AMONG NATIONALS OF THE MEMBER STATES OF THE COMMUNITIES . THE INSTITUTION RECONCILES THOSE REQUIREMENTS , AS THE COURT DECLARED IN PARTICULAR IN ITS JUDGMENT OF 6 MAY 1969 ( CASE 17/68 , REINARZ , ( 1969 ) ECR 61 ), WHEN , IN THOSE CASES WHERE THE QUALIFICATIONS OF THE VARIOUS CANDIDATES ARE SUB STANTIALLY THE SAME , IT MAKES NATIONALITY THE OVERRIDING CRITERION IN ORDER TO MAINTAIN OR RE-ESTABLISH A GEOGRAPHICAL BALANCE AMONG ITS STAFF . HOWEVER , IN ANY OTHER CIRCUMSTANCES , THE NEED TO REDRESS A GEOGRAPHICAL IMBALANCE MUST BE SUBORDINATED TO THE REQUIREMENTS OF THE INTEREST OF THE SERVICE AND THE CONSIDERATION OF THE PERSONAL MERITS OF THE CANDIDATES . IN THIS INSTANCE , THE APPOINTING AUTHORITY WAS THUS EMPOWERED TO MAKE NATIONALITY THE DECISIVE CRITERION PROVIDED , HOWEVER , THAT IT FIRST ESTABLISHED ON THE BASIS OF A COMPARATIVE EXAMINATION THAT THE QUALIFICATIONS OF THE CANDIDATES WERE CLEARLY THE SAME .
27 IN ORDER TO ASCERTAIN WHETHER THAT CONDITION WAS FULFILLED , THE COURT REQUESTED THE COUNCIL TO FURNISH THE DOCUMENTS RELATING TO THE COMPARATIVE EXAMINATIN OF THE QUALIFICATIONS OF THE CANDIDATES ., THE COUNCIL REPLIED THAT SUCH DOCUMENTS DID NOT EXIST AND THE COURT THEN REQUESTED THE COUNCIL TO STATE THE DATE OF THE COMPARATIVE EXAMINATION OF THE CANDIDATES AND ANY OTHER FACTOR WHICH MIGHT BE OF USE IN ESTABLISHING THE CIRCUMSTANCES IN WHICH THE RECRUITMENT PROCEDURE WAS CONDUCTED . ON 31 JANUARY 1983 , THE COUNCIL TRANSMITTED TO THE COURT ITS REPLIES AND THE DOCUMENTS REQUESTED , WHICH INCLUDED THE MEMORANDUM OF THE SECRETARY GENERAL OF THE COUNCIL OF 31 JANUARY 1983 , MENTIONED ABOVE .
28 IN THE LIGHT OF THE FOREGOING CONSIDERATIONS , IT IS FIRST NECESSARY TO CONSIDER THE SUBMISSION AS TO THE INFRINGEMENT OF THE LAST PARAGRAPH OF ARTICLE 27 OF THE STAFF REGULATIONS ACCORDING TO WHICH NO POSTS MAY BE RESERVED FOR NATIONALS OF ANY SPECIFIC MEMBER STATE .
29 THE CONNECTION EXISTING BETWEEN THE COUNCIL ' S DECISION OF 15 AND 16 SEPTEMBER 1980 AND THE APPOINTMENT OF MR KASEL TO THE POST IN QUESTION IS THE MOST IMPORTANT FACTOR TO BE TAKEN INTO ACCOUNT IN ORDER TO ASSESS THE FORCE OF THAT SUBMISSION .
30 THAT CONNECTION IS DERIVED FROM THE DEBATES WHICH TOOK PLACE WITHIN THE COUNCIL , IN THE COURSE OF ITS 655TH MEETING , CONCERNING THE APPOINTMENT OF THE NEW DANISH SECRETARY GENERAL OF THE COUNCIL FOLLOWING THE RETIREMENT OF THE PREVIOUS SECRETARY GENERAL , WHO WAS A LUXEMBOURG NATIONAL . IT MAY BE SEEN FROM THE MINUTES OF THAT MEETING THAT THE COUNCIL FIRST DECLARED THAT THE NATIONALITY OF THE NEW SECRETARY GENERAL MUST NOT HAVE A DETRIMENTAL EFFECT ON LUXEMBOURG ' S REPRESENTATION IN THE GENERAL SECRETARIAT OF THE COUNCIL . IT THEN ACKNOWLEDGED THAT THE APPOINTMENT OF THE NEW SECRETARY GENERAL ENTAILED AN ADDITIONAL REGIONAL IMBALANCE IN THE DISTRIBUTION OF POSTS FOR SENIOR OFFICIALS OF THE GENERAL SECRETARIAT WHICH , REGARD BEING HAD TO THE NEED TO MAINTAIN THE STANDARD OF QUALIFICATIONS , OUGHT , IN SO FAR AS IS POSSIBLE , TO BE REDRESSED IN THE IMMEDIATE FUTURE . THE CONCURRENCE OF CERTAIN CIRCUMSTANCES , SUCH AS THE CREATION OF A NEW POST IN GRADE A 2 , THE HASTE DISPLAYED BY THE APPOINTING AUTHORITY IN SEEKING TO FILL THE VACANCY AS SOON AS POSSIBLE AND THE LINK , ADMITTED BY THE COUNCIL ITSELF , BETWEEN THE DECISIONS ADOPTED IN THE COURSE OF THE 655TH MEETING AND THE APPOINTMENT OF MR KASEL , CONSTITUTES EVIDENCE TO BE TAKEN INTO CONSIDERATION WITH A VIEW TO ASSESSING THE VALIDITY OF THE APPLICANT ' S SUBMISSION .
31 FURTHER EVIDENCE OF THE IMPORTANCE OF THE PART PLAYED BY THE COUNCIL ' S DECISION IN THE APPOINTMENT OF MR KASEL MAY BE SEEN IN THE LETTER OF THE SECRETARY GENERAL OF 31 JULY 1981 ADDRESSED TO MR FEIPEL REJECTING THE LATTER ' S CANDIDATURE . THAT LETTER CONTAINED NO REPLY TO THE SPECIFIC COMPLAINT SET OUT IN THE MEMORANDUM ANNEXED TO MR FEIPEL ' S APPLICATION FORM , WHICH ACCUSED THE COUNCIL OF HAVING GIVEN AN UNDERTAKING THAT THE A 2 POST DECLARED VACANT WAS TO BE ' ' FILLED BY A LUXEMBOURG OFFICIAL BY APPLICATION OF THE SO-CALLED PARACHUTE PROCEDURE ' ' AND THAT THAT OFFICIAL ' S NAME , HIS CURRICULUM VITAE AND HIS POST AT THAT TIME WERE KNOWN .
32 IN HIS COMPLAINT OF 15 OCTOBER 1981 TO THE SECRETARY GENERAL OF THE COUNCIL , WHICH IS ANNEXED TO HIS APPLICATION TO THE COURT , THE APPLICANT MAINTAINED THAT , IN THE COURSE OF THE 655TH MEETING OF THE COUNCIL , THE LUXEMBOURG MINISTER FOR FOREIGN AFFAIRS REQUESTED AND OBTAINED APPROVAL FOR THE PROPOSITION THAT THERE SHOULD BE A ' ' LUXEMBOURG OFFICIAL IN GRADE A 2 ' ' AND ' ' CLEARLY EXPRESSED THE VIEW THAT IT WAS NOT SUFFICIENT TO PROMOTE A LUXEMBOURG OFFICIAL IN GRADE A 3 , ALREADY EMPLOYED IN THE GENERAL SECRETARIAT OF THE COUNCIL ; A LUXEMBOURG NATIONAL FROM ' ' OUTSIDE THE INSTITUTION ' ' WOULD BE PRESENTED ( THE SO-CALLED ' ' PARACHUTE ' ' PROCEDURE ) IN CONSEQUENCE , THE APPLICANT CLAIMS TO BE ENTITLED TO SUPPOSE THAT THE GOVERNMENT OF THE MEMBER STATE CONCERNED AND THE APPOINTING AUTHORITY REACHED AGREEMENT IN ADVANCE ON THE APPOINTMENT OF A SPECIFIC PERSON TO A POST , EVEN BEFORE THE APPOINTING AUTHORITY INITIATED THE RECRUITMENT PROCEDURE , WHICH MUST , IN CONSEQUENCE , BE REGARDED AS UNLAWFUL . THAT COMPLAINT WAS DISMISSED BY THE APPOINTING AUTHORITY WHICH MADE NO RESPONSE TO THE SPECIFIC ACCUSATIONS RELATING TO THE RESERVATION OF THE NEWLY-CREATED A 2 POST FOR A NATIONAL OF A SPECIFIC STATE .
33 EVIDENCE OF THE EXCEPTIONAL TREATMENT ACCORDED TO MR KASEL ' S CANDIDATURE IS CONFIRMED BY THE IRREGULARITIES VITIATING THE RECRUITMENT PROCEDURE ADOPTED BY THE SECRETARY GENERAL AS IT IS DESCRIBED IN HIS ABOVE-MENTIONED MEMORANDUM OF 31 JANUARY 1983 .
34 IT APPEARS FROM THAT MEMORANDUM THAT THE APPLICATIONS OF 17 INTERNAL CANDIDATES WHO HAD SUBMITTED THEIR APPLICATIONS WITHIN THE PERIOD PRESCRIBED BY THE VACANCY NOTICE WERE CONSIDERED IN THE COURSE OF A MEETING WHICH TOOK PLACE ON 15 JULY 1981 AND AT WHICH , IN ADDITION TO THE SECRETARY GENERAL , THE DIRECTOR GENERAL OF ADMINISTRATION , THE DIRECTOR OF PERSONNEL AND THE HEAD OF THE PRIVATE OFFICE WERE PRESENT . IN ADDITION , THE SECRETARY GENERAL STATES THAT ' ' A SIMILAR EXAMINATION ' ' WAS CARRIED OUT ON 24 JULY 1981 FOR THE CANDIDATE FROM WITHIN THE INSTITUTION ( MR SACCHETTINI ) WHO HAD SUBMITTED HIS APPLICATION AFTER THE CLOSING DATE AND THAT , ' ' ON THE BASIS OF THE ABOVE-MENTIONED COMPARATIVE EXAMINATIONS ' ' HE DECIDED THAT ' ' NONE OF THE CANDIDATES SHOULD BE APPOINTED . ' ' ON 24 JULY 1981 THE SECRETARY GENERAL EXAMINED MR KASEL ' S APPLICATION AND , ON THE SAME DAY , HE NOTIFIED THE DIRECTOR GENERAL FOR ADMINISTRATION IN WRITING OF HIS DECISION TO SELECT THAT CANDIDATE FOR THE POST .
35 IT MUST BE STATED THAT THE PROCEDURE AS DESCRIBED ABOVE POINTS TO THE ABSENCE OF A COMPARATIVE EXAMINATION OF THE VARIOUS APPLICATIONS VALIDLY SUBMITTED . INDEED , THE SECRETARY GENERAL HIMSELF STATES THAT HIS DECISION TO REJECT THE APPLICATIONS FROM WITHIN THE INSTITUTION WAS TAKEN ON THE BASIS OF ' ' COMPARATIVE EXAMINATIONS ' ' WHICH HE CONDUCTED EXCLUSIVELY IN RESPECT OF THE COUNCIL OFFICIALS . IN PARTICULAR , OF THE TWO ' ' COMPARATIVE EXAMINATIONS ' ' MENTIONED IN THE MEMORANDUM , THE FIRST , ON 15 JULY 1981 , RELATED TO THE APPLICATIONS SUBMITTED WITHIN THE PERIOD PRESCRIBED BY THE VACANCY NOTICE , AND THE SECOND , ON 24 JULY 1981 , RELATED TO THE APPLICATION OF MR SACCHETTINI , ALSO A COUNCIL OFFICIAL , WHO , HOWEVER , SUBMITTED HIS APPLICATION AFTER THE CLOSING DATE . IN ACCORDANCE WITH THE VACANCY NOTICE AND THE RULES APPLICABLE TO COMPETITIONS , THE APPOINTING AUTHORITY IS REQUIRED TO DISREGARD APPLICATIONS SUBMITTED AFTER THE EXPIRY OF THE PRESCRIBED PERIOD , SO THAT THE EXAMINATION OF MR SACCHETTINI ' S APPLICATION COULD NOT , AS INDEED WAS THE CASE , HAVE ANY PRACTICAL EFFECT ON THE EXAMINATION OF THE APPLICATIONS FROM WITHIN THE INSTITUTION , VALIDLY SUBMITTED , WHICH HAD ALREADY BEEN CONDUCTED ON 15 JULY . IT FOLLOWS THAT THE SOLE BASIS ON WHICH THE DECISION TO REJECT THE APPLICATIONS FROM WITHIN THE INSTITUTION WAS FOUNDED WAS THE EXAMINATION CONDUCTED BEFORE THE EXPIRY OF THE CLOSING DATE FOR APPLICATIONS , NAMELY 15 JULY 1981 . THAT EXAMINATION WAS CARRIED OUT BY THE SECRETARY GENERAL IN THE PRESENCE OF THE DIRECTOR GENERAL FOR ADMINISTRATION , THE DIRECTOR OF PERSONNEL AND THE HEAD OF THE PRIVATE OFFICE . SINCE MR KASEL ' S APPLICATION WAS EXAMINED SEPARATELY , ON 24 JULY 1981 , IT FOLLOWS THAT THERE WAS NO COMPARATIVE EXAMINATION OF ALL THE CANDIDATES FOR THE POST IN QUESTION .
36 FINALLY , IT SHOULD BE NOTED THAT THE RECRUITMENT PROCEDURE DESCRIBED ABOVE DOES NOT CORRESPOND TO THAT REFERRED TO IN THE STATEMENT OF GROUNDS IN THE LETTER OF 31 JULY 1981 REJECTING THE APPLICANT ' S CANDIDATURE . THE FACT THAT THOSE GROUNDS WERE BASED ESSENTIALLY ON THE CRITERION OF GEOGRAPHICAL BALANCE IMPLIES THAT THE APPOINTING AUTHORITY MUST HAVE CONSIDERED THE QUALIFICATIONS OF THE INTERNAL CANDIDATES AS ESSENTIALLY EQUIVALENT TO THOSE OF THE EXTERNAL CANDIDATE WHOM IT SELECTED . HOWEVER , THE SECRETARY GENERAL HAS BEEN UNABLE TO ESTABLISH THE EXISTENCE OF SUCH EQUIVALENCE BECAUSE , IN THIS INSTANCE , THE COMPARATIVE EXAMINATION OF ALL THE APPLICATIONS DID NOT TAKE PLACE . THE SECRETARY GENERAL ' S REFERENCE TO THE CRITERION OF GEOGRAPHICAL BALANCE IN HIS LETTER REJECTING THE APPLICANT ' S CANDIDATURE THEREFORE CONSTITUTES AN ADDITIONAL FACTOR WHICH ESTABLISHES THAT THE SUBMISSION IN QUESTION IS WELL FOUNDED .
37 IN VIEW OF ALL THE CIRCUMSTANCES AND CONSIDERATIONS SET OUT ABOVE , IT MUST BE CONCLUDED THAT THE TREATMENT ACCORDED TO MR KASEL ' S APPLICATION , BY REASON OF HIS LUXEMBOURG NATIONALITY , EXCEEDS THE LIMITS WITHIN WHICH THE APPLICATION OF THE CRITERION OF GEOGRAPHICAL BALANCE IS JUSTIFIED UNDER ARTICLE 27 OF THE STAFF REGULATIONS . IN REALITY , THE NEWLY-CREATED POST WAS RESERVED FOR A NATIONAL OF A SPECIFIC STATE IN ORDER TO SATISFY THE REQUIREMENTS OF THE COMPENSATION WHICH WAS DUE TO BE ACCORDED TO THAT STATE ' ' IN THE IMMEDIATE FUTURE ' ' , AS ENVISAGED BY THE DECISIONS OF THE COUNCIL OF 15 AND 16 SEPTEMBER 1981 , WHICH MOREOVER , AT THE SAME TIME , EMPHASIZED THE NEED TO HAVE REGARD TO THE NECESSARY QUALIFICATIONS .
38 IT MUST THEREFORE BE CONCLUDED THAT , BY RESERVING THE POST IN QUESTION FOR A NATIONAL OF A SPECIFIC MEMBER STATE , THE APPOINTING AUTHORITY OF THE COUNCIL INFRINGED THE THIRD PARAGRAPH OF ARTICLE 27 OF THE STAFF REGULATIONS .
39 IT IS THEREFORE UNNECESSARY TO CONSIDER THE OTHER SUBMISSIONS ADVANCED BY THE APPLICANT AGAINST THE DECISIONS CONTESTED BY HIM .
40 THE DECISION OF THE SECRETARY GENERAL OF THE COUNCIL APPOINTING J . J . KASEL TO THE POST OF DIRECTOR OF THE BUDGET AND STAFF REGULATIONS ( DIRECTORATE GENERAL A , DIRECTORATE III ), NOTIFIED TO THE PERSON CONCERNED ON 11 SEPTEMBER 1981 MUST THEREFORE BE ANNULLED ; IN CONSEQUENCE , THE SECRETARY GENERAL ' S DECISIONS REJECTING THE APPLICANT ' S CANDIDATURE AND HIS COMPLAINT OF 12 OCTOBER 1981 WHICH WERE NOTIFIED TO HIM ON 31 JULY 1981 AND 18 DECEMBER 1981 RESPECTIVELY MUST ALSO BE ANNULLED .