JUDGMENT OF 28. 3. 1968 — CASE 33/67 KURRER v COUNCIL

In Case 33/67

THE COURT (Second Chamber) composed of: W. Strauß, President of Chamber, A. Trabucchi and P. Pescatore (Rapporteur), Judges, Advocate-General: K. Roemer Registrar: A.Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Facts

Mr Dietrich Kurrer entered the service of the Council of the European Communities on 16 June 1958. Since 1 January 1962 he has been established as an official and since 1 January 1961 he has been classsified in Grade A5 of career bracket A5-A4. On 20 March 1967 the Secretary-General of the Council, as the appointing authority, published, pursuant to the second paragraph of Article 4 and to Article 29(1)(a) of the Staff Regulations of Officials, Vacancy Notice No 15/67 for a post of principal administrator carrying Grade A4 in career bracket A5-A4.

This vacancy notice described the duties attaching to the post as follows:

‘Administrative and advisory duties of a legal nature relating in particular to Netherlands law and public international law in the fields of activity of the European Communities’.

The requirements for candidates included in particular the following:

‘A legal training evidenced by a university degree, such as: Meester in de Rechten — Referendar — Licence en droit — Laurea in Giurisprudenza; An extensive knowledge of Netherlands law and of public international law as well as professional experience over a considerable period in the application of these branches of law.’

By a note dated 9 June 1967 Mr Kurrer, pursuant to Article 90 of the Staff Regulations, requested the appointing authority for his institution to annul Vacancy Notice No 15/67.

This request was rejected by a note from the Secretary General dated 3 July 1967.

On 4 July the appointing authority published in the Official Journal No 141 (pp. 5 and 6) a notice of an open competition No 36/Council (67/409/EEC, 67/21 Euratom) for the recruitment of a principal administrator in Grade A4 on the basis of the beforementioned vacancy notice.

On 29 September 1967 Mr Kurrer lodged an application by way of appeal at the Court Registry.

II — Conclusions of the parties

The applicant claims that the Court should:

‘(a) declare the application admissible; (b) annul the following measures: Vacancy Notice No 15/67 of the Council of 20 March 1967; the decision of rejection of 3 July 1967 by the Secretary General of the Council; the Notice of Open Competition No 36/Council of 4 July 1967; all other administrative measures which have been or may be taken as a result of the contested vacancy notice; (c) order the defendant to pay the costs of the proceedings including those of the applicant.’

The defendant contends that the Court should:

‘(a) dismiss the application as unfounded; (b) order the applicant to pay the costs, save those which must be borne by the defendant by virtue of Articles 70 and 95(1) of the Rules of Procedure.’

III — Submissions and arguments of the parties

A — Admissibility

The defendant does not contest the admissibility of the application.

B — The substance of the case

1. The applicant remarks that the Councils of the European Communities, by decision of 7 October 1963, adopted, pursuant to the second subparagraph of Article 5(4) of the Staff Regulations of Officials, only a very general definition of the duties and powers attaching to posts in the Secretariat-General, in particular as regards Grades A4 and A5, and they did not draw up any detailed list of posts, properly so called, containing a more precise definition of the various posts. Accordingly, the appointing authority has in the past defined its notices of vacant posts in the same general terms as those used in the said general definition of posts. The ‘polyvalence’ of the posts in Category A at the Secretariat-General of the Councils made it possible to allocate a vacant post, by way of promotion, to any official in the grade immediately lower, no matter what the division to which he belonged. It was a departure from this general practice and from the definition of duties and powers attaching to the post of Principal Administrator resulting from the said decision when the appointing authority in the present case defined with far greater precision the activities covered by the post in question and laid down the requirements for candidates. In so doing it violated a rule of law which must be observed in applying the Treaty. The second paragraph of Article 4 of the Staff Regulations, on which the defendant relies, constitutes a guarantee of officials' rights. The immediate notification to the staff of the decision to fill a vacant post in the institution is intended to ensure that the priority given to recruitment within the institution can take full effect. Article 4 should not be interpreted as conferring by implication on the Secretary-General the power to take a decision, in the notification to the staff, on the definition of duties, since such a decision is expressly reserved by Article 5 to the institution. Moreover, in the present case what is at issue is not a newly created post but an existing one which became vacant. No post exists at the Secretariat-General which requires the abilities and qualities prescribed in the disputed vacancy notice. Thus the notice could not, on the basis of Article 4 of the Staff Regulations, amend the decision of the Councils. The applicant maintains that where the institution decides to stipulate special requirements, it is obliged under Article 5, after consulting the Staff Regulations Committee, to undertake itself the amendment of the definition of the duty in question. It could and must be possible in the present case to satisfy the requirements of the service by strictly observing both the Staff Regulations — especially the general rules on the career of officials laid down in Title III, in particular as regards transfer, promotion or temporary duties — and the implementing provisions adopted by the institution. The defendant replies that by virtue of the second paragraph of Article 4 of the Staff Regulations the appointing authority must, where there is a vacant post, first decide whether the vacancy is to be filled. This decision can only be made by considering the specific tasks to be undertaken. This implies that the appointing authority must have the power to take implementing measures applicable to a specific case, and in particular to decide, when the exigencies of the service demand it, that special qualities and abilities are called for. The definition of duties and powers attached to posts presented by Article 5(4) of the Staff Regulations necessarily implies only a general definition of the essential features of posts. This certainly does not mean that particular requirements cannot be stipulated upon the publication of a vacancy notice relating to a particular post. To deny this power to the appointing authority would be to prohibit it from taking account of the requirements of the service and from deciding what manner of administrative, advisory or supervisory activities are involved in the post to be filled. The exercise of this power in no way restricts the right of servants to be informed promptly of the decisions of the appointing authority, any more than the fact of taking account of the requirements of the service adversely affects the prior claim of servants already in office to fill the post in question. According to the defendant, the definition of duties in the contested vacancy notice in the present case falls within the general definition of 7 October 1963. It is no more than the application to a specific case of the latter definition and not a derogation from it. The special requirements for a particular post must be taken into consideration at the moment when the appointing authority decides that the post is to be filled, irrespective of whether it is newly created or has become vacant. This can be done in the vacancy notice. The applicant's opinion that the institution must amend the definition of duties every time it becomes necessary to state the special requirements for a particular post disregards the very purpose of the definition of duties prescribed by Article 5(4). This definition does not call for the enumeration of each specific post. His idea that by merely applying the general provisions of Title III of the Staff Regulations it is possible to recruit an official having the special knowledge required for a particular post cannot bring about a satisfactory result, since Category A covers a multitude of duties whereas the post to be filled may only call for one of these. Finally the defendant, whilst allowing that in numerous cases the appointing authority has refrained from specifying the particular duties attached to a post, nevertheless denies that this was its ‘general practice’ from which it had ‘departed’ for the first time in the case of the contested vacancy notice. On the contrary, it specified the particular duties attaching to a post every time this was necessary in view of the requirements of the service.

2. The applicant says that, since the definition of the post opened to competition does not follow the general table of definitions of duties, it must at least be based on a legal measure of the Council. Only the Council, in its capacity as an institution, has the power, in the absence of an express authorization conferred on the Secretary General for the purpose, to draw up a particular definition of duties which departs from and narrows the general definition. In the present case, however, this was done merely by the Secretary General's decision. If it is allowed that the Secretary-General is entitled to draw up a specific definition of duties for a particular post and applicable for the duration of the recruitment procedure employed for the purpose of filling it, this means either that the Council and the Secretary-General have concurrent powers, indeed that there is a conflict as to powers between them, or that the specific definition of the Secretary-General is capable of invalidating the general definition of the Council. Neither of these alternatives is acceptable. The defendant, moreover, is confusing the position of the Secretary-General in his capacity as the appointing authority with his position as head of the Secretariat-General. The defendant, adopting the applicant's statement that it is for the Secretary-General to decide whether there is a vacant post to be filled, maintains that he also has the power to stipulate according to the requirements of the service, the special qualities and abilities demanded by particular posts. Furthermore, since the Council does not itself exercise the power of organizing its own departments, the senior official entrusted with the management of the Secretariat-General is entitled, under the powers conferred on him and within the limits of the general definition of duties, to take all necessary measures to enable the Secretariat to carry out the tasks assigned to it by the Council. In particular, the setting up of a Legal Department implies the necessity of allocating to it jurists having a particularly detailed knowledge of the law of individual Member States.

3. The applicant states that the disputed vacancy notice, by reason of the apparently mandatory nature of the definition of duties contained in it, stands in the way of a correct application of Article 1(1) of Annex III to the Staff Regulations, in that it diminishes the importance of the consultation with the Joint Committee. The same is true of the Promotions Committee responsible, under Article 29(1) of the Staff Regulations, for considering, before announcing a competition, whether the post can be filled by promotion within the institution. The procedure followed in the present case pre-judges the outcome of this consideration and constitutes, according to the applicant, an infringement of an essential procedural requirement or a misuse of powers. The defendant says that the Joint Committee and the Promotions Committee must, in carrying out their consultative duties, take account of the requirements stipulated by the appointing authority, acting within its powers, for filling a given vacant post.

4. The applicant complains that the purpose of the contested vacancy notice was to reserve the post in question for a Netherlands national. By excluding candidates who do not have, in addition to knowledge of the Dutch language, extensive knowledge of Netherlands law and ‘professional experience over a considerable period’ in the application thereof, the notice in question infringes in particular the third paragraph of Article 27 of the Staff Regulations under which no posts shall be reserved for nationals of any specific Member State. There is no objective reason, based on the needs of the service, which justifies in the present case the procedure followed. It may be explained rather by the political consideration of the allocation of posts according to nationality. The defendant replies that the contested vacancy notice is in no way intended to reserve the post in question for a candidate of a given nationality. It does no more than state the requirements of the service. It is of course in the nature of things that a Nether- lands national should be better placed to meet these requirements than a national of another Member State. However, the notice does not exclude candidates of another nationality. Only considerations relating to the efficient running of the Legal Department were decisive in the present case.

5. According to the applicant the vacancy notice in question infringes Article 5(3) of the Staff Regulations, under which identical conditions of recruitment and service career shall apply to all officials belonging to the same category, in that the definition of duties appearing in it does not correspond to the definition of the duties of the other officials of the Legal Department of the Council. The Staff Regulations guarantee priority for recruitment within the service, in particular by way of promotion. This priority was disregarded in the present case, since the narrow definition of the post declared vacant made it impossible to fill it in any other way except that of an open competition. The applicant's interests are therefore directly injured. The career prospects of the other officials of the Secretariat in general and the Legal Department in particular are also improperly narrowed. The defendant remarks that no post in Category A, with the exception of two A7 posts, have become vacant in the Legal Department since the entry into force of the EEC and EAEC Staff Regulations. The A7 posts were entry posts into Category A which did not require of those holding them particular knowledge in a special field of law. Since in the present case it was necessary to appoint a jurist in Grade A4 having special knowledge and experience of the law of a certain country of the Communities it was not possible, in the interests of the service, to avoid stipulating special requirements. The applicant disputes the relevance of the reference to the entry into force of the EEC and the EAEC Staff Regulations, the more so since, when these regulations were applied to servants of the Communities pursuant to Article 102, no mention was made of any special requirement, or even of a posting to the Legal Department. Neither when two Grade A7 officials were promoted to Grade A6, which is the case mentioned by the defendant, nor when recruitment was being carried out for two posts in Grade A4 was there any departure from the general definition of duties by demanding special legal knowledge and experience. It is a long time since a Dutch jurist was a member of the Legal Department. It is therefore hard to understand the reasons in the present case for the special requirements relating to Netherlands law. The defendant replies that the establishment of servants pursuant to Article 102 of the Staff Regulations is effected without any consideration of the fact that they belong to a particular department. Moreover, the changes of staff within the Legal Department as described by the defendant demonstrate the objective necessity of initiating the procedure for the recruitment of a jurist having special knowlegde of Netherlands law.

6. The applicant maintains that the contested vacancy notice infringes Article 5 of the Staff Regulations in that it provides for classification in Grade A4, that is to say, the higher grade in a career bracket covering two grades. Even if the necessity of resorting to the competition procedure for the recruitment in question were to be admitted, there were no objective factors preventing a classification in Grade A5. The defendant is of the opinion that there is nothing in Article 5 to show that it follows from the concept of a career bracket that a post can be made the subject of a vacancy notice and a competition only in respect of the lower grade of the relevant career bracket. In fact Articles 29 and 31 lead to the opposite conclusion. In the present case the nature of the duties to be undertaken by the official concerned warrants his recruitment into Grade A4.

7. According to the applicant the disputed vacancy notice creates the pre-conditions for an infringement of Article 31 of the Staff Regulations, under paragraph (1) of which officials in Category A shall be appointed to the starting grade of their category. In the present case the appointing authority is relying on the exceptions which it may make under paragraph (2) without showing that such an exception is justified by the requirements of the service. Even assuming that in the event the recruitment had to be made into the career bracket of a principal administrator, the immediate appointment to the higher grade in that career bracket violates the principles of the Staff Regulations. Furthermore, the second paragraph of Article 32 enables the appointing authority to take account of the training and special experience for the post of the person concerned by allowing additional seniority in the lower grade of his career bracket. The defendant, on the other hand, takes the view that Article 31 authorizes the appointment of an official to Grade A4 by means of a competition within the limits of paragraph (2)(b). In the present case the discharge of the duties of the post to be filled requires such knowledge, experience and abilities that there could be no question of an appointment to Grade A5. Article 32 does not have the meaning assigned to it by the applicant. It means that the official recruited must be classified at the first step of his grade, that is to say, the grade referred to in the vacancy notice and in the notice of competition. It is within this grade that additional seniority may be allowed.

8. Taking the view that the vacancy notice is merely the initiation of a procedure, the applicant asks the Court to annul all the measures already issued or which may be issued in the context of that procedure, including any appointment. The defendant remarks that, except for the measures forming the subject-matter of the application, no decision has been taken which could adversely affect the applicant.

IV — Procedure

The written procedure followed the normal course.

The Second Chamber of the Court, upon hearing the report of the Judge-Rapporteur and the views of the Advocate-General, decided to open the oral procedure without any preparatory inquiry.

The defendant, upon being requested to lodge certain documents, did so within the proper time.

The parties presented oral submissions at the hearing on 21 February 1968.

The Advocate-General delivered his opinion at the hearing on 29 February 1968.

Grounds of judgment

The application seeks the annulment of Vacancy Notice No 15/67 of the Council of 20 March 1967 and of the Notice of Open Competition No 36 of the Council of 4 July 1967 both of which concern a post of principal administrator in Grade A4 in career bracket A4-A5 involving administrative and advisory duties of a legal nature and stipulating as a prerequisite, amongst others, an extensive knowledge of Netherlands law and of public international law as well as professional experience over a considerable period in these matters.

The application also seeks the annulment of ‘all other administrative measures which have been or may be taken as a result of the contested vacancy notice’. Since it was not shown in the course of the proceedings that any such measures had been taken, there is no need to adjudicate upon this head of the conclusions.

The applicant asks for the annulment of the abovementioned notices, submitting arguments concerning the requirements specified in the said notices, having regard to the appointing authority's powers and the prohibition of any allocation of posts on the basis of nationality, the effect of these requirements on the prerogatives of the Promotions Committee and of the Joint Committee, as well as the fact that the post was directly opened to competition at the level of the higher grade, A4, of the career bracket of principal administrator.

The specific requirements stipulated in the vacancy notice and in the notice of competition.

The applicant complains on the one hand that the appointing authority exceeded its powers by attaching specific requirements to the definition of duties established by the decision of the Councils of 7 October 1963 pursuant to the second subparagraph of Article 5(4) of the Staff Regulations and on the other hand that it infringed the provisions of the Regulations by choosing as a detailed requirement the theoretical and practical knowledge of the national law of one of the Member States, since the effect of this requirement was to reserve the post in question to the nationals of that State, contrary to the third paragraph of Article 27.

By their decisions of 14 May and 12 June 1963, which the defendant has lodged with the Court, the Councils conferred upon their Secretary-General pursuant to Article 2 of the Staff Regulations, as regards the grades in Category A which are the subject-matter of this dispute, the powers devolving upon the appointing authority under the Regulations. By their decision of 7 October 1963 the Councils adopted the definition of duties and powers attaching to the posts for which provision is made by the Regulations, and in particular the definition of the duties attaching to posts in the career bracket of ‘Principal Administrator’, A5-A4. The definition adopted by this decision is so general that simply to repeat it in vacancy notices or in notices of competition would make it impossible for these publications properly to achieve their purpose, at least as regards posts requiring some special qualification, such as those involving administrative and advisory duties of a legal nature. Since the institution did not itself indicate, in the decision which defined the duties, the essential information for procuring, by way of vacancy notices or notices of competition, the most suitable applications for the posts to be filled, it is for the appointing authority, as the body responsible under the Staff Regulations for issuing the notices in question, to add to the definition drawn up by the institution the necessary special details, having regard to the needs of the service.

In so far as the appointing authority keeps within the definition laid down by the institution, it is a permissible method of carrying out promotions or recruitment policy to stipulate, as regards duties calling for specific qualifications, special details with regard to posts which are the subject of vacancy notices or notices of competition. The fact that this procedure, as the applicant has remarked, had previously been the exception in the practice adopted by the Secretariat-General of the Councils in no way affects its legality provided that it is used in the interest of the efficient organization of the service. The complaint that the appointing authority had no power to add specific requirements to the general criteria laid down in the decision of the Councils of 7 October 1963 cannot therefore be upheld.

Article 27 of the Staff Regulations provides that recruitment shall be directed to securing for the institutions the services of officials possessing the highest standard of ability and ‘recruited on the broadest possible geographical basis’. Under the third paragraph of that Article, however, ‘No posts shall be reserved for nationals of any specific Member State’.

The appointing authority demonstrated in successive notices its intention to make its choice depend not on the nationality but on the knowledge and experience of the candidate as regards, inter alia, a given national legal system. This procedure is the only one which can reconcile simultaneously the requirements of the Councils' legal department, the efficient running of which requires a balanced composition of staff, in order to comply with the spirit of the first paragraph of Article 27, and the prohibition contained in the third paragraph of Article 27 of the Staff Regulations. In a Community composed of States, each of which retains its own national legal system, it is essential that a well organized legal department should include, as far as possible, officials possessing, apart from their knowledge of international law and of the actual law of the Communities, a theoretical training and practical experience in one or other of the national legal systems. It has not been shown in the course of the proceedings that the choice of criterion to which the applicant objects in fact served ends other than a concern for the proper functioning of the departments of the Secretariat-General of the Councils. The complaint that the choice of criterion served to specify more closely, in the vacancy notices and notices of competition, the requirements contained in the decision of the Councils of 7 October 1963 cannot therefore be upheld.

Consultation with the Promotions Committee and with the Joint Committee

The applicant maintains that the contested vacancy notice, by specifying very narrowly the nature of the duties and powers attaching to the post to be filled as well as the formal qualifications, the degree of experience and knowledge of languages required, improperly restricts the area of jurisdiction and the significance of the consultation with the Promotions Committee and the Joint Committee.

By decision of the Secretary-General No 185/64 of 26 May 1964 three consultative promotions committees were set up within the Secretariat-General of the Councils. One of them related to Categories A and B. These committees are required to advice the appointing authority during the consideration under Article 45(1) of the Staff Regulations, of the comparative merits of officials eligible for promotion and the reports made on them. Under Article 9(1)(a) of the Staff Regulations there shall be set up within each institution one or more Joint Committees. The composition and working methods of the Joint Committee were laid down, as regards the Secretariat-General of the Councils, in accordance with Articles 2 and 3 of Annex II to the Staff Regulations by decision of the Councils of 15 July 1963. Article 1(1) of Annex III to the Staff Regulations provides that where a competition procedure is initiated, the Joint Committee shall be consulted before the appointing authority draws up the notice of competition. The Promotions Committee, as regards the question whether promotion can be effected within the institution, and the Joint Committee, as regards the drawing up of the notice of competition, are required to give their opinion to the appointing authority at successive stages of the procedure initiated for the purpose of filling a particular vacant post. They exercise their powers within the framework of the powers conferred by the Staff Regulations both on the institution itself and on the appointing authority and having regard to the special features of the post to be filled. In so far as the appointing authority has properly specified the nature of the post and the abilities which it calls for, the Promotions Committee and the Joint Committee are bound to take account of such specification when exercising their advisory powers. As this was the situation in the present case, the submission that these committees were not properly consulted must therefore be rejected.

Recruitment into Grade A4

The applicant complains that the appointing authority opened the competition directly at the level of Grade A4 and not at the level of the starting grade, A5, in the career bracket of ‘Principal Administrator’.

Article 31(1) lays down the rule that officials in Category A must be appointed to the starting grade of their category. Paragraph (2) of the said Article creates an exception to this rule by empowering the appointing authority to appoint, within certain limits, directly to higher grades than the starting grade of the category. It is not disputed that in the present case the appointing authority, by opening the competition at the level of Grade A4, remained within the bounds laid down by this latter provision. However, where recruitment is by way of competition to the higher grade of a career bracket, the said authority must reconcile use of the power reserved to it by Article 31(2) with observance of the requirements which result from the concept of a career bracket within the meaning of Article 5 and Annex I to the Staff Regulations. The concept of a career bracket would in fact lose all legal significance if the appointing authority were entitled to the same degree of freedom in this case as in those of the other grades. It is only permissible to make appointments by way of open competitions to the higher grade of a career bracket in exceptional cases where recourse to the provisions of Article 31(2) is justified by the specific needs of the service, which call for the recruitment of a specially qualified official.

In the present case the existance of such a need, resulting in particular from a patent imbalance in the composition of the Legal Department of the Secretariat-General of the Councils, has been proved in the course of the proceedings. The requirements with regard to training, experience and age stipulated in the contested notices demonstrate that the appointing authority proposed to fill the vacant post by appointing an official having the qualifications corresponding to the higher grade of the career bracket in question. Accordingly the appointing authority could, pursuant to Article 31(2), properly offer a post in the higher grade of career bracket A5-A4 to be filled by means of an open competition. The complaint directed against this procedure cannot, therefore, be upheld.

Costs

The applicant has failed in his submissions.

Under Article 70 of the Rules of Procedure, in proceedings commenced by servants of the Communities, the costs incurred by the institutions must be borne by the latter.

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 Statute of the Court of Justice annexed to the Treaties establishing the ECSC, the EEC and the EAEC; Having regard to the Staff Regulations of Officials of the European Communities, especially Articles 2, 4, 5, 9, 27, 29, 31 and 91 and also Annexes I, II and III thereto; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, THE COURT (Second Chamber) hereby:

1 Dismisses Application 33/67;

2 Orders the parries to bear their own costs.