LASSALLE v PARLIAMENT JUDGMENT OF 4.3.64 — CASE 15/63

In Case 15/63

THE COURT composed of: A. M. Donner, President, Ch. L. Hammes and A. Trabucchi (Rapporteur) Presidents of Chambers, L. Delvaux, R. Rossi, R. Lecourt and W. Strauß, Judges, Advocate-General: M. Lagrange Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Facts

The facts may be summarized as follows:

Notice No 44 issued by the Secretariat of the European Parliament dated 1 February 1963 drew the attention of staff to a vacancy in the post of Head of Division (Grade A3) in the Directorate of the Parliamentary Documentation and Information Division, with a view to the examination by the Administration of the possibilities of promotion or transfer of officials in the Secretariat. Among the qualifications and attainments required of candidates, the notice included ‘a perfect knowledge’ of Italian. The applicant, an official of the European Parliament of French nationality, made an application to the Court for the annulment of the notice on the grounds of this condition.

By Order of 13 March 1963, the President of the Court, hearing an application to suspend the operation of this notice made by the applicant, ruled that the European Parliament should refrain from taking any steps to fill the vacancy in question until the Court had given judgment on the merits of the application.

II — Conclusions of the parties

The applicant claims in his application that the Court should:

‘Annul Notice of Vacancy No 44 at the Directorate of the Parliamentary Documentation and Information Division, issued by the Secretariat of the European Parliament on 1 February 1963; Rule that this annulment shall extend to any measures taken pursuant to the decision and that such measures cannot operate against the applicant; Rule that the European Parliament shall make good the damage suffered by the applicant as a result of the illegality of the contested decision and order the Parliament to pay such damages as the Court shall adjudge; Order of the European Parliament to pay all costs, which shall include reimbursement of the applicant for all the expense incurred in making this application.’

In its statement of detence the defendant contends that the Court should:

‘Take note that the defendant does not intend to contest the admissibility of the application; Dismiss the applicant's offers of proof and, consequently, the application as unfounded in all respects; Order costs to be paid in accordance with the relevant provisions.’

III — Submissions and arguments of the parties

The submissions and arguments of the parties may be summarized as follows:

1. As to the admissibility of the application

The defendant raises no objection as to the admissibility of the application. It emphasizes, however, that the author of the contested decision was not the Secretariat of the Parliament but the Parliament Office and that therefore the criticisms of the Secretariat made by the applicant should be addressed to the Office.

2. On the substance of the case

(a) Generally

The applicant relies on the submission of misuse of powers by the Secretariat of the Parliament arising from the infringement of the provisions of Articles 7, 27, 45 and Annex III of the Staff Regulations.

The clause in the notice in question which is responsible for this fourfold infringement is the condition of a perfect knowledge of Italian; the applicant sees in this requirement a disguised method of showing that the vacant post is reserved for an Italian official.

In its statement of defence, the defendant admits at the outset that it was in fact intended to appoint an Italian to this post but that this was to be done in application of the rule laid down in the first paragraph of Article 27 of the Staff Regulations, by which recruitment must be made on the broadest possible geographical basis from among nationals of Member States of the Communities. In accordance with this rule, on the restructuring of the organization of personnel following the introduction of the new Staff Regulations in June 1962, the Office decided to allocate certain posts on the grounds of nationality in order to ensure a proper geographical distribution. This in no way means that the Parliament intends henceforth to reserve the post in question for an Italian; the defendant accepts the applicant's contention that re-establishment of a balance of nationalities must normally be ensured by further recruitment in principle in the starting grade of the category concerned and not by a policy of promoting those already in the service which would principally take nationality into account. The defendant emphasizes that a fair balance of nationalities was a necessary basis for the application of these principles and, in order to establish this basis which gives equal opportunities to all nationalities, the Office decided on the national distribution criticized by the applicant.

The applicant contends that these submissions have no value in law since it is not only ‘normally’ that the balance of nationalities must be ensured by recruitment at the starting grade but that it is a legal obligation which must be observed in every case. The law may not be disregarded for reasons of expediency.

(b) On the ground of complaint based on Article 45 of the Staff Regulations

The applicant maintains that, by reason of his aptitude for the position, his seniority, his qualifications and the excellent reports he has received from his superiors in his work at the European Parliament, he is certainly eligible for promotion. Although promotion is exclusively by selection, Article 45 of the Staff Regulations limits arbitrary action by the administration by requiring ‘consideration of the comparative merits of the officials eligible for promotion and of the reports on them’. This consideration is made impossible by the prior reservation of a post for a specific nationality.

The defendant contends that this submission does not fall within the ambit of the application and is therefore inadmissible. The Staff Regulations make a distinction between recruitment, the basic requirements for which are laid down in Article 27, and promotion, the requirements for which are laid down in Article 45. As in this case the post to be filled is a newly created one, the appointing authority was required first to consider the requirements of Article 27. In determining the qualifications necessary for the post, the appointing authority had only to comply with the terms of this provision, in particular that its servants should be recruited on the broadest possible geographical basis. Therefore, the question whether a candidate fulfilled the requirements for promotion could not be raised at this stage of the proceedings. Only after the qualifications and requirements for this post had been determined could the appointment procedure laid down in Article 29 be commenced. Under this procedure the appointing authority must first consider ‘whether the post can be filled by promotion or transfer within the institutions’.

Misuse of powers as regards the applicant would only exist if this requirement of geographical distribution had been introduced in order to frustrate the candidature of Mr Lassalle rather than in application of a legal provision.

The applicant contends that the procedure followed by the Secretariat was a promotion procedure rather than a recruitment procedure. In fact, under the terms of Article 31 the recruitment procedure relates only to the starting grades of each category.

The defendant replies that Article 31 (2) lays down important exceptions to the principle referred to by the applicant.

(c) On the ground of complaint based on Article 27 of the Staff Regulations

The applicant emphasizes that, according to the third paragraph of Article 27 of the Staff Regulations, no posts shall be reserved for nationals of any specific Member State. This principle applies not only in the recruitment of an official but throughout his career until he leaves the service.

Moreover, the obligation in Article 27 to recruit officials on the broadest possible geographical basis prohibits any prior reservation of a particular post for the nationals of a specific Member State. A balance of nationalities is only admissible if it is achieved in the starting grade of each category.

The defendant contends that a different interpretation of Article 27 is possible: it emphasizes that the obligation in the first paragraph of Article 27 to recruit officials on the broadest possible geographical basis is already set out in the preamble to the Staff Regulations, which shows that it is a basic principle and one of prime importance. The defendant regards the provision in the third paragraph of this Article merely as an implementing provision which cannot extinguish this provision of principle. The purpose of the third paragraph of Article 27 is not to secure for the institution the highest individual standards in the officials recruited, but rather to allow the nationals of each Member State of the Community equal access to Community posts in proportion to the size of the State concerned. The real intention of the prohibition in the third paragraph of that Article is to indicate that, where a specific nationality is required for a particular vacant post, the requirement applies only to a single appointment and not to the post itself or on a permanent basis.

The applicant maintains that this limited interpretation of the third paragraph of Article 27 is incompatible with the absolute nature of the prohibition set out therein. Moreover, in view of the fact that this prohibition did not appear in the former Staff Regulations of the ECSC, the applicant considers that it may be deduced that the authors of the new Regulations intended by this new provision to put an end to former deplorable practices.

(d) On the ground of complaint based on Article 7 of the Staff Regulations

The applicant maintains that the Sec retariat of the Parliament was responsible for the most serious breach of its obligations under the Staff Regulations, in that, contrary to the provisions of Article 7 (‘… solely in the interests of the service and without regard to nationality …’) it had not considered the proposals put forward by the applicant's two superiors — the Director General and the Director of the Parliamentary Documentation and Information Division — who, when drawing up a ‘job description’ of the post to be filled, in no way required candidates to have ‘a perfect knowledge’ of Italian but rather insisted on a knowledge of French.

The defendant contends that Article 7 of the Staff Regulations, on which this ground of complaint is based, does not fall within the ambit of the application which concerns the conditions of recruitment of officials. That provision on the other hand deals with the assignment of officials to particular posts, which takes place after recruitment. Furthermore, the defendant observes that the document referred to as the ‘job description’ of the post in question imposes the following condition: ‘thorough knowledge of Italian’.

The applicant replies that the various stages in the procedure of assignment to a vacant post cannot legally be separated. It is impossible in fact to appoint an official without assigning him to a particular post. Therefore, it is clear that if, when publishing a notice of vacancy, the Secretariat of the Parliament contravenes the rules of procedure laid down in order to fill this post (promotion) and the rules governing assignment, it is acting illegally.

The defendant considers, however, that the procedure for filling a post may include various steps which are legally separate, such as appointment, to which the rule of distribution of posts on a national basis is to apply, and assignment, to which, as is laid down by Article 7, this rule must never apply.

(e) On the ground of complaint based on Annex III to the Staff Regulations

The applicant considers that, in the absence of any details in the Staff Regulations regarding the information to be included in the notice of vacancy provided for in Article 4, reference must be made to Annex III, headed ‘Competitions’, under which notice of competitions must specify, where applicable, ‘the knowledge of languages required in view of the special nature of the posts to be filled’. The applicant deduces a contrario from this provision that knowledge of a particular language cannot be required if, as in this case, the nature of the post does not necessitate such knowledge.

The defendant considers, however, that the provisions of Annex III do not apply to the notice of vacancy. The matter in dispute is governed only by the provisions of Article 27 of the Staff Regulations.

3. Damages

The applicant leaves it to the Court to determine the amount, if any, of the damage suffered as a result of the illegality of the contested decision. The applicant considers that this damage consists not only in the expenses incurred in making the application, but also in the non-material damage arising from the application and both the material and non-material damage suffered from having to remain in his present grade. The defendant contends that the mere fact that the Parliament has recognized the eligibility of Mr Lassalle for promotion does not mean that he has any right to be promoted. The claim for damages is therefore unjustified. The expenses incurred by the applicant in making the application are included in the costs of the case.

IV — Procedure

The procedure followed the normal course.

By Order of 26 March 1963 the First Chamber of the Court referred the case to the Court in accordance with Article 95 (2) of the Rules of Procedure.

By an application lodged at the Registry on 21 June 1963, the Staff Committee of the European Parliament applied to intervene in the original case, in accordance with Article 37 (EEC) and Article 38 (EAEC) of the Protocols on the Statute of the Court.

After both a written and an oral procedure, the Court dismissed this application as inadmissible by Order of 14 November 1963.

Grounds of judgment

On admissibility

The application was made in due form and within the prescribed time-limits.

No objection has been raised by the defendant against the admissibility of the application and no grounds exist for the Court to raise the matter of its own motion.

The application is therefore admissible.

On the substance of the case

According to the applicant, the requirement of a perfect knowledge of Italian contained in the notice of vacancy in dispute in the present application is simply a disguised method of reserving the vacant post for an Italian official and renders impossible a consideration of the comparative merits of all the officials eligible for the promotion in question, contrary to Article 45 of the Staff Regulations of officials of the ECSC, the EEC and the EAEC.

The defendant, whilst accepting that the purpose of the clause in question was to impose a condition of nationality, maintains that this submission does not fall within the ambit of the application, since the notice of vacancy is governed only by the provisions of Article 27.

This preliminary objection raised by the defendant must be dismissed.

Promotion, whilst constituting a process distinct from the notice of vacancy is legally connected to it, since the conditions of eligibility for the post contained in the notice are capable of determining which officials are eligible for promotion.

The first question to be examined therefore is whether the notice of vacancy may impose conditions of nationality.

If this were the case, the aims of Articles 7 and 27 of the Staff Regulations would be incapable of being realized.

These Articles are intended primarily to be in the interests of the service. This aim is expressed in Article 7 which obliges the appointing authority to consider solely the ‘interests of the service without regard to nationality’. This aim is confirmed by the first paragraph of Article 27, which is directed to securing for the institution the services of officials of the highest standard of ability, efficiency and integrity.

The final paragraph of Article 27 stipulates clearly that no posts shall be reserved for nationals of any specific Member State.

Furthermore, the promotion procedure must also have regard to the eligibility of officials for the career bracket in question, a principle which is demonstrated by the system of internal preference laid down by Article 29 of the Staff Regulations in order to fill vacant posts.

Although Article 27 refers to recruitment on the broadest possible geographical basis, the place which this reference occupies in the said Article and the wording used mean that it is a factor to be taken into consideration at a later stage in order to secure the best possible geographical balance.

The interests of the service and regard for the eligibility of officials for the career bracket in question would be compromised if the administration, in order to secure a geographical balance, could reserve a post for a specific nationality without such actions being justified on grounds connected with the proper functioning of the service.

However, it is not incompatible with these requirements that, where the qualifications of the various candidates are approximately equal, the administration should allow nationality to play a decisive role when it is necessary to maintain or to re-establish a geographical balance among its staff. Such a possibility is not incompatible with the prohibition in Article 7 (1) of the Staff Regulations.

This prohibition does not exclude the taking into account within the conditions and limits fixed objectively by the Staff Regulations of the desire to safeguard the geographical balance required by the Community spirit.

In this case it is established that the purpose of the language condition in question was to reserve the post in question to a national of a specific Member State, prior to any consideration of the merits of the officials eligible for promotion according to Article 45 of the Staff Regulations.

Thus, if the officials interested in this post were not of the nationality required, they were automatically deprived of any opportunity of having their possible candidature considered.

In this case moreover it is not disputed that the limitation imposed by the defendant on its powers of selection was not justified on the grounds of the proper functioning of the department responsible for the post in question.

Such a procedure contravenes the requirement that available posts should be filled by selecting officials of the highest standard of ability, efficiency and integrity.

The language condition in question therefore contravenes the provisions of Articles 7, 27 and 45 of the Staff Regulations.

The notice of vacancy containing this clause must therefore be annulled.

On the request for compensation

The applicant maintains that he has suffered non-material damage as a result of the application and both material and non-material damage from having to remain in his present grade.

However, he cannot have suffered any damage from the application which he has made, in which his main claim is upheld.

Neither has the applicant any right to compensation for the fact of having to remain in his present grade.

In fact, even if the contested notice of vacancy had made it possible for the applicant's candidature for the post in question to be considered, it would still not have been possible to specify a priori, even before the procedure laid down in Article 45 had been followed, the official to be selected.

Therefore, the conclusions of the applicant concerning the award of damages must be dismissed.

Costs

The applicant has been successful in his main request for annulment of the measure in dispute.

Under the terms of Article 69 (2) of the Rules of Procedure the defendant must be ordered to pay the costs.

On those grounds, Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties; Upon hearing the opinion of the Advocate-General; Having regard to the Protocols on the Statutes of the Court of Justice annexed to the Treaties establishing the European Coal and Steel Community, the European Economic Community and the European Atomic Energy Community; Having regard to Articles 7, 27, 29, 32, 45 and 91 of the Staff Regulations of officials of the European Coal and Steel Community, the European Economic Community and the European Atomic Energy Community; Having regard to the Rules of Procedure of the Court of Justice of the European Communities; THE COURT hereby:

1 Annuls the decision of the Secretariat of the European Parliament of 1 February 1963 headed ‘Notice of Vacancy No 44 at the Directorate-General of the Parliamentary Documentation and Information Division’;

2 Dismisses the applicant's request for the award of damages;

3 Orders the European Parliament to pay the costs.