JUDGMENT OF 19. 5. 1983 — CASE 289/81 MAVRIDIS v PARLIAMENT

In Case 289/81

THE COURT (Second Chamber) composed of: P. Pescatore, President of Chamber, O. Due and K. Bahlmann, Judges, Advocate General: S. Rozès Registrar: H. A. Rühi, Principal Administrator

gives the following

JUDGMENT

Facts and Issues

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

I — Facts and procedure

At the beginning of 1981, the European Parliament decided to recruit an official for the post of Head of the Greek Language Division in the Directorate-General for Information and Public Relations, in charge of the Athens Information Office. As the procedure for filling the post by means of promotion or transfer did not achieve the desired result, the administration of the European Parliament, in order to fill the post, and with the approval of the Joint Committee, decided to apply the procedure provided for in Article 29 (2) of the Staff Regulations. Subsequently, a vacancy notice was published in the Official Journal of the European Communities, C 148 of 18 July 1981, at page 3, giving a detailed description of the duties of the official and setting out the conditions of eligibility for the post, namely, in particular “a university degree or equivalent professional experience, a proven experience of ... journalism” and “thorough acquaintance with European problems”. The notice further stated that the vacant post was to be classified in Grade A3; it did not, however, include any limit as to the candidates' age.

A selection committee was therefore appointed. It held its opening meeting on 7 July 1981 and laid down on that occasion the criteria for the selection of candidates. Those criteria included inter alia “proven experience of at least 10 years' public relations and journalism” and an age-limit according to which candidates were required to be “between 35 and 50 years of age (in other words, to have been born between 1 August 1931 and 1 August 1946)”. The criteria were not published in the Official Journal; nor were they displayed on notice boards, or brought to public attention in any other manner.

The applicant, who was born before 1 August 1931, submitted his application for the vacant post and attached the supporting documents required by the abovementioned vacancy notice.

In the course of its meetings of 23, 27 and 31 July 1981, the selection committee examined the 146 applications received and decided to regard as valid 16 of that number. It rejected the other 130, including that of the applicant.

By letter of 7 August 1981, the chairman of the selection committee notified Mr Mavridis that his candidature had not been accepted on the ground that it did not meet the conditions relating to age fixed by the selection committee itself.

By application, registered at the Court of Justice on 11 November 1981, the applicant brought an action directly against the abovementioned decision of the selection committee of 7 August 1981, without first submitting a complaint to the appointing authority, within the meaning of Article 90 of the Staff Regulations.

In the meantime (by decision of the President of the European Parliament), Giorgios Papadopoulos was appointed to the post in question, with effect from I January 1982.

Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court (Second Chamber) decided to open the oral procedure. It requested the European Parliament, the Council and the Commission of the European Communities to explain the normal practice adopted by them for the organization of recruitment procedures such as that in question.

II — Conclusions of the parties

In his application, the applicant claims that the Court should:

“Annul Decision No 00361806 of the selection board of 7 August 1981 relating to the rejection of the applicant's candidature on the ground that he was over the age-limit; Annul the competition procedure and the appointments made as a result thereof; Order the European Parliament to organize the competition without taking age into account and to consider the applicant's candidature; Order the European Parliament to pay the costs.”

In his reply, the applicant claims in addition that the Court should:

“Declare the application admissible and well founded”.

The defendant claims that the Court should:

“Declare the application inadmissible; Otherwise declare it unfounded; Dismiss the application; Order the applicant to pay the costs.”

Ill — Submissions and arguments of the parties

A — Admissibility of the action

The applicant takes the view that it was necessaiy for him to bring an action directly against the decision of the selection board without first submitting a complaint to the appointing authority, in this case the European Parliament, in accordance with Article 90 of the Staff Regulations, because the decision of the selection board is one which cannot be altered by the appointing authority. According to the established case-law of the Court, a complaint directed against such a decision constitutes a preliminary procedure which is devoid of purpose and superfluous.

The defendant, on the other hand, considers that in the light of the above circumstances that case-law cannot be applied in this instance, since the recruitment procedure adopted was not that of a competition, but the exceptional recruitment procedure provided for in Article 29 (2) of the Staff Regulations and therefore the rules governing the competition procedure are not applicable. Moreover, it was the Secretary-General of the European Parliament, not the selection committee, who chose the recruitment procedure. The administrative authority is entitled to examine and decide upon the contested question of the fixing by the selection committee of an age-limit. Consequently, the applicant should have adopted the complaint procedure. His application should therefore be declared inadmissible.

In his reply, the applicant rejects that line of argument and maintains that the case-law of the Court relating to the ineffectiveness of a complaint through official channels in pursuance of Article 90 of the Staff Regulations is not limited to decisions of the selection board for a competition but extends to all decisions which are final in nature. The decision of the selection committee is final in that sense. The defendant conceded as much in its defence inasmuch as it stated that the criteria for the selection of applications, including that of the age-limit, were fixed by the selection committee. Moreover, the defendant has not denied that the selection committee resembles a selection board, in so far as it “expresses its freely formulated opinion and not the assessment of the appointing authority”. It follows that the action is admissible.

In its rejoinder, the defendant does not dispute the applicant's statement of the case-law of the Court according to which it is not necessary to submit a complaint through official channels before bringing an action before the Court. However, it refers to the reasoning which, in its opinion, lies behind that case-law namely the consideration that periodic reports, like the assessments of a selection board for a competition, express the opinion of the reporting officer or of the board and the authority to which the complaint through official channels must be addressed does not have the power to amend or alter that opinion. On the other hand, the decision taken in the exceptional procedure in question to establish an age-limit is of a different nature. The validity of such a criterion may easily be considered and assessed by the appointing authority within the framework of the procedure of a complaint through official channels. As the procedure provided for in Article 90 (2) of the Staff Regulations should have been pursued, the application is inadmissible.

B — Substance

In his application, the applicant submits in the first place that the disputed decision is illegal and should be annulled because it bases the rejection of his candidature on a condition which did not appear in the vacancy notice as published and which was not provided for by a Community regulation. That amounts to an infringement of the first paragraph of Article 5 of Annex III to the Staff Regulations. The applicant refers to the judgment of the Court of 28 June 1979 (Case 255/78 Anselme [1979] ECR 2323), and submits that it is not sufficient that the candidates may infer the existence of a condition for eligibility, but that such a condition must be expressly mentioned in the notice of competition itself and that otherwise the exclusion of a candidate on the basis of such a condition is unlawful. In this case, not only was there no express mention of the age-limit in the notice of competition as a condition of eligibility, but, further, the candidates could not have supposed its existence. Thus the selection board's decision not to accept his candidature is at least as illegal as that annulled by the Court in the abovementioned case, Anselme.

In his second submission, the applicant claims that the age-limit was established by an authority which lacked competence to prescribe it. It should be established not by the selection board, but, in accordance with the terms of Article 1 (1) of Annex III to the Staff Regulations, by the appointing authority. Moreover, as that age-limit was not mentioned in the notice of competition but only communicated to the applicant in the contested document, and therefore at a stage too late in the procedure, the said document is unlawful.

In his third submission, the applicant claims that, inasmuch as the selection board informed him of the existence of an additional condition for eligibility only at the end of the procedure, in other words after the publication of the notice of competition, the board committed a breach of the principle of the protection of the legitimate expectation of the individual in respect of the Community administration, which is a fundamental principle of Community law, according to the established case-law of the Court. Any candidate must be able to rely on the accuracy and the comprehensiveness of notices issued by Community institutions and conduct himself in accordance therewith, in particular in view of the physical and mental problems created by a candidature within the framework of such a competition, which increase with the age of the candidate.

In this instance, the applicant relied on the expectation that the details in the vacancy notice were accurate and comprehensive. Indeed it was only because he was certain that he fulfilled the formal conditions of eligibility that he accepted the inconvenience of preparing his candidature and allowed it to encroach on his working time. Although the principle of the protection of legitimate expectation is subject to exceptions, in this case the selection board cannot rely on such exceptions in view of the fact that the applicant could not have foreseen the requirement of an additional qualification, added illegally, and because it was not necessary to impose that qualification on compelling grounds of public interest. Thus the exclusion of the applicant from the list of candidates is unlawful and should be annulled, with the result that the competition should be reopened and the unlawful criterion should not be taken into consideration.

In its defence, the defendant contends generally that the applicant's submissions are unfounded in fact inasmuch as, in the present case, the procedure in question is not that of a competition but the exceptional recruitment procedure provided for in Article 29 (2) of the Staff Regulations, as the decision of the appointing authority shows. That exceptional procedure is not subject to the rules governing competitions.

Therefore the provisions of Annex III to the Staff Regulations concerning notices of competition are not applicable. Consequently, and in reply to the first submission, the defendant contends that there can have been no infringement of the provisions in question or, more specifically, of the first paragraph of Article 5 of the said Annex III. The references to the case-law of the Court concerning competitions must therefore be disregarded as irrelevant.

For the same reasons, the defendant maintains that the applicant's second submission, relating to the allegation that the selection committee lacked competence to fix an age-limit on the ground that, in doing so, it infringed Article 1 (1) of Annex III to the Staff Regulations is also unfounded, since the requirements of Annex III are not applicable to this case.

As far as the third submission is concerned, the alleged breach of the principle of the protection of the legitimate expectation of the individual in respect of the Community administration, the defendant contests the suggestion that that principle may be relied on by an individual who is not a member of the staff of the institution and who applies for a vacant post. However, even if that principle had been applicable in such a case, it does not apply in the circumstances of this case.

Moreover, the defendant raises three additional points. In the first place, it refers to the fact that the age-limit had been fixed well before the applicant's candidature was received.

In the second place, it maintains that the age-limit is consistent with the principles which it has frequently applied, which should exclude any suggestion that the selection committee acted arbitrarily. In addition, the importance of the vacant post justifies the age-limit; in particular, the imposition of a maximum age is a consequence of the need to avoid recruiting officials who are too close to the age of retirement.

Thirdly, the selection committee is authorized to fix an age-limit under Article 29 (2) of the Staff Regulations, which provides for a recruitment procedure different from that of a competition in exceptional cases. The competition procedure under Annex III, including the requirements relating to the drawing up of the competition notice, is therefore inapplicable. The Staff Regulations do not define or explain that special procedure and it is therefore left to the administrative authority to choose the most appropriate means for filling the posts concerned. Whilst the decisions of the Court on the subject of competitions are not relevant, the decisions concerning Article 29 (2) are. It appears from those decisions that Article 29 (2) establishes a special procedure which is governed by no other rules. In particular, the Court has already held that recourse to Article 29 (2) is not subject to any condition as to publication. A fortiori, since the notice was in fact published it was permissible to restrict it to the details actually appearing in it. It was therefore possible for an age-limit to be introduced at a later stage, if the selection committee considered it necessary.

In his reply, the applicant submits that he has not questioned the form of the recruitment procedure or the right per se to fix an age-limit. Consequently, the arguments advanced by the defendant in its defence in relation to those aspects of the case do not apply. In addition, he considers that the defendant's view that the provisions of the Staff Regulations governing the competition procedure, together with the corresponding case-law, are not applicable to this case, on the ground that the recruitment procedure adopted is different from that of a competition, is “completely erroneous”. The “competition procedure” and the exceptional procedure adopted in this case are both forms of selection procedure. Even if the specific provisions and the case-law relating to the procedure to be carried out for competitions are not applicable in the early stages of the procedure, there is no difference between the two forms of procedure in respect of the requirement that the vacancy notice be published and that the conditions of eligibility be established. The observations of the Court of Justice in the Anselme case (cited above) concerning the essential role of the notice of competition are equally significant in this case inasmuch as they refer to that earlier stage in the procedure.

Indeed it is possible to extract the fundamental principle that a good administration should not “conceal from individuals in notices which it publishes details which are of direct interest to them, in such a way as to encourage them to take steps which are pointless and unavailing or even detrimental”. More specifically, a vacancy notice which lists certain conditions but not the conditions required, is unacceptable in any administration and amounts to a deception which reveals a lack of respect for the dignity of the individual.

In addition the applicant asserts that the principle of the protection of legitimate expectation applies not only to members of the staff but equally to those who present themselves as candidates, since to exclude the non-officials would be to discriminate between officials and other citizens in a manner which is unfounded and unjustified. The defendant has not furnished any support for the statement that the principle of the protection of legitimate expectation cannot apply in the circumstances of the present case.

Furthermore, the applicant maintains in opposition to the defendant's additional arguments, that the fact that the age-limit was not communicated to the candidates shows that the selection committee knowingly concealed from them an essential formal condition. He further emphasizes that he does not accuse the selection committee of acting arbitrarily in fixing an age-limit, but rather of failing to inform the candidates. In any event, the public interest cannot conceivably require that the age-limit be concealed from the candidates.

The applicant also contests the defendant's argument that the application of the procedure of Article 29 (2) is not subject to any condition as to publication and that any publication may therefore be restricted to certain conditions. On the contrary, he maintains that if there is publication, it must refer to all the conditions required.

Finally the applicant submits that the fixing of the maximum age-limit at 50 is arbitrary and unjustified, in particular in the light of the duties to be carried out and the wide experience required of candidates.

In its rejoinder, the défendant reiterates its view that the vacancy notice in this case is not subject to the conditions prescribed in the Staff Regulations for notices of competition.

As regards the principle of the protection of legitimate expectation, the defendant refers to the Opinion of Mr Advocate General Capotorti in Case 268/80 and takes the view that the said principle should be founded on definite assurances given by the administration to the parties concerned. In this case the administration did not enter into any commitment in respect of the candidates but merely issued a notice to inform prospective candidates of its intention to recruit an official. Thus the principle invoked does not apply.

Finally, the European Parliament rejects the applicant's theory that the fixing of the age-limit at 50 is arbitrary, and emphasizes that the determination of the necessary qualities for a vacant post including the conditions of age falls within the discretionary power of the administration.

Moreover, the recruitment systems in the public administrations of the majority of Member States include minimum or maximum age-limits, or both. It is clear that for certain posts, age must represent a very important factor.

The questions put by the Court

In reply to the first question put by the Court, namely whether vacant posts which are the subject of a recruitment procedure on the basis of Article 29 (2) of the Staff Regulations are systematically published in the Official Journal or in the general press, the Council replied that, with a few exceptions, such posts have never been published in the Official Journal or in the press. The Commission replies that its vacant posts are not normally advertised at all. The European Parliament replies that it does not publish them systematically, but that in the majority of cases the recruitment procedures are published in accordance with the specific requirements of the posts to be filled.

To the second question, namely whether the details published mention that the recruitment procedure in question is based on Article 29 (2), the Council and the European Parliament reply in the negative.

To the third question, namely whether the published notices specify an age-limit, if one is imposed, the Council replies in the affirmative, whilst the European Parliament replies in the negative.

IV — Oral procedure

At the sitting on 3 February 1983, the applicant, represented by P. Dagtoglou, and the European Parliament, represented by A. Bonn, presented oral argument.

The Advocate General delivered her opinion at the sitting on 17 March 1983.

Decision

1. By application lodged at the Court Registry on 11 November 1981, Vassilis Mayridis, residing in Athens, brought an action for the annulment of the decision of the selection committee of the European Parliament of 7 August 1981 refusing to consider his candidature for the post of Head of the Greek Language Division of the Directorate-General for Information and Public Relations of the European Parliament, in charge of the Athens Information Office, and, in addition, for the annulment of the selection procedure and of the appointment of the successful candidate which took effect on 1 January 1982.

2. By vacancy notice published in the Official Journal of 18 June 1981, the Parliament announced its intention of recruiting a Head of the Greek Language Division of the Athens Information Office.

3. The vacancy notice included a detailed description of the duties of the head of division and the conditions of eligibility for the vacant post. It should be noted that the legal basis for the procedure adopted was not indicated and no mention was made of any age-limit.

4. In the course of its opening meeting, the selection committee fixed the criteria for the selection of the candidates, and decided, in particular, that candidates must be “between 35 and 50 years of age (in other words have been born between 1 August 1931 and 1 August 1946)”.

5. The applicant, who was born before 1 August 1931, submited his candidature together with 145 other candidates. As a result of the age criterion imposed, the chairman of the selection committee notified the applicant by letter of 7 August 1981 that it had decided that his candidature was unacceptable.

6. The applicant brought an action against the selection committee's decision directly before the Court without first submitting a complaint under Article 90 (2) of the Staff Regulations.

7. In support of his action, the applicant relies on three submissions, the first of which alleges an infringement of the first paragraph of Article 5 of Annex III to the Staff Regulations on the ground that the selection committee had added the condition as to age to the conditions set out in the vacancy notice; the second submission alleges an infringement of Article 1 (1) of Annex III to the Staff Regulations inasmuch as the age-limit had been fixed by an authority lacking in competence; the third alleges a breach of the principle of the protection of the applicant's legitimate expectation inasmuch as no prior indication of the fact that the procedure under Article 29 (2) of the Staff Regulations was to be applied was given to the applicant.

Admissibility

8. The Parliament maintains that the action is inadmissible on the ground that the applicant should have pursued the complaint procedure as a necessary preliminary step to the introduction of an action before the Court. It submits that within the framework of the special recruitment procedure provided for in Article 29 (2) of the Staff Regulations, the appointing authority of the Parliament was entitled to consider and modify an age-limit fixed by the selection committee.

9. On the other hand, the applicant submits that a complaint directed against the disputed decision of the selection committee would have been devoid of purpose and superfluous because such a decision like that of a selection board for a competition could not have been amended by the appointing authority.

10. It appears from the papers in the case that the Parliament decided to apply Article 29 (2) of the Staff Regulations, according to which a procedure other than the competition procedure may be adopted for the recruitment of Grade Al or A 2 officials and, in exceptional cases, also for recruitment to posts which require special qualifications and that the Parliament entrusted the task of selecting candidates suitable for the vacant post to a selection committee.

11. Such a task necessarily implies that the Parliament delegates a considerable discretion to the selection committee, in particular in respect of the criteria for selection. It follows that the applicant, who was unaware of the type of procedure adopted by the Parliament, was entitled to consider that the decisions of the committee on the admissibility of candidatures were final in nature and that the Parliament was no longer in a position to alter them. He was, therefore, justified in concluding that the preliminary complaint was a formality devoid of any practical significance.

12. The application is therefore admissible.

Substance

13. In support of his first two submissions, the applicant claims that the disputed decision cannot have been based on the criterion of an age-limit inasmuch as that criterion was not mentioned in the vacancy notice and was added subsequently by the selection committee, which thus arbitrarily altered the conditions of eligibility for the vacant post, and inasmuch as the age-limit had been established by an authority lacking in competence.

14. The Parliament raises the objection that the abovementioned provision of Annex III to the Staff Regulations relates to notices of competition and is therefore not applicable, since this case concerns the exceptional recruitment procedure provided for in Article 29 (2) not that of Article 29 (1) of the Staff Regulations. That article, the Parliament states, neither defines nor explains the special procedure which it authorizes and leaves the choice of the most appropriate means for filling the vacant post to the appointing authority. In those circumstances, the procedure applied was not subject to any obligation as to prior publication either of all or any of the criteria applicable.

15. It appears from the file that the recruitment procedure applied in this case is indeed the selection procedure provided for in Article 29 (2) and not the competition procedure provided for in Article 27 or 29 (1) and governed by Annex III to the Staff Regulations. There are no grounds on which the Court may question the Parliament's right to apply the procedure selected in this case.

16. Within the framework of that special procedure, the appointing authority is not required to apply the provisions of Annex III to the Staff Regulations relating to notices of competition. It may therefore apply, in the course of the procedure, criteria which are not set out in the vacancy notice and such criteria need not be published in the Official Journal. That applies equally to a selection committee to which the appointing authority has delegated its right of selection.

17. That applies in particular to the requirement that an age-limit, if there is one, should be indicated in the vacancy notice. Consequently the appointing authority was not required to refer expressly to that condition in the vacancy notice; nor was it required to fix the age-limit itself, but was entitled to delegate its power in that respect to the selection committee.

18. It follows that the two submissions are not well founded.

19. In his third submission, the applicant claims that by imposing an age-limit as an additional condition for eligibility within the framework of the procedure under Article 29 (2) of the Staff Regulations, without giving any prior indication to that effect, the selection committee breached the principle of the protection of the legitimate expectation of the individual in respect of the Community administration.

20. The Parliament denies that an individual who is not a member of the staff of the institutions may rely on that principle because he is merely a candidate for a vacant post. In any event, even if the principle were applicable in such a case, the Parliament claims, its application would not be justified in the circumstances of this case.

21. Contrary to the Parliament's assertion, it must be declared that the right to rely on the principle of the protection of legitimate expectation is not restricted to the staff of Community institutions but extends to any individual who is in a situation in which it appears that the administration's conduct has led him to entertain reasonable expectations.

22. As regards recruitment, the Court has already had occasion to emphasize the essential function of notices of competition within the framework of the recruitment procedure provided for in Article 29 (1) of the Staff Regulations, namely to give those concerned the most accurate information possible about the conditions of eligibility for the post to enable them to judge whether they should apply for it (see in particular the judgment of 28 June 1979, Case 255/78 Anselme v Commission [1979] ECR 2323 and the judgment of 18 February 1982, Case 67/81 Ruske v Commission [1982] ECR 661). It must be noted that the provisions of Annex III to the Staff Regulations need not be applied in the context of the special procedure of Article 29 (2). Nevertheless, the appointing authority is required to respect the principle of the protection of legitimate expectation and candidates may rely on that principle.

23. As the Court held in its judgment of 29 October 1975 (Joined Cases 81 to 88/74 Marenco v Commission [1974] ECR 1247, paragraph 21 of the decision), a decision to have recourse to Article 29 (2) made during the course of a recruitment procedure which has been initiated need not necessarily be taken when the vacancy notices are published and need not be published in the Official Journal.

24. However, if the appointing authority decides to fill a post under Article 29 (2) of the Staff Regulations and if, for that reason, it does not clearly state all the conditions required of the candidates, it must nevertheless indicate in an appropriate manner that the procedure in question constitutes a derogation from the normal provisions relating to recruitment.

25. In any event, an infringement of that requirement does not automatically mean that the disputed measure is void but may in certain circumstances justify the award of damages, if the person concerned has suffered injury as a result. Since the applicant has not submitted a claim to that effect, the Court is not required to decide on that point.

26. The submission is therefore unfounded and the application must be dismissed.

Costs

27. Under Article 69 (2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs. However, according to the second subparagraph of Article 69 (3), the Court may order even a successful party to pay costs which the Court considers that party to have unreasonably or vexatiously caused the opposite party to incur.

28. It should be noted that this action results from the fact that the Parliament failed to indicate in the notice of competition that in the case in question the special recruitment procedure provided for in Article 29 (2) of the Staff Regulations was to be applied.

29. In proceeding as it did, it provoked an understandable error on the part of the applicant and caused him to incur the expense of an action, to no avail. It must therefore be ordered to pay the applicant's costs.

On those grounds, THE COURT (Second Chamber) hereby:

1 Dismisses the application;

2 Orders the Parliament to pay the costs of the proceedings including those of the applicant.

1 Judgment of 5 April 1979, Case 117/78 Orlandi [1979] ECK 1613.

2 Judgment of 3 July 1980, Joined Cases 6 and 97/79 Crassi [1980] ECR 2141, in particular, paragraph 15 of the decision.

3 To that effect, the defendant cites the judgment of 29 October 1975 (Joined Cases 81 to 88/74 Marenco [1975] ECR 1247).

4 Gg/if/ii[1981] ECR2306.