Opinion of mr advocate-general Gand

Mr President,

Members of the Court,

A notice 143/B, published in the EEC Commission Staff Information Bulletin dated 16 August 1963, announced to persons interested that a competition internal to the institution was to be held on the basis of qualifications for a post as an assistant B3/B2 at the London office of the Press and Information Department of the Communities. It was stated that an attempt to fill the post by transfer or promotion had failed, and that the competition was open to members of the auxiliary staff as well as to officials. Candidates were to submit their applications to the Recruitment Division before 9 September 1963 at the latest on a special form for which a receipt would be given. Amongst those who applied were in particular Miss Rauch, who was at that time a Grade CI official in the Recruitment Division, and Miss Kurz, who had been taken on from 15 February 1964 to fill the vacant post in London as a member of the auxiliary staff. By a decision dated 20 February 1964 the Committee of Chairmen appointed Miss Kurz. Miss Rauch, who was placed second on the list of suitable persons by the Selection Board, initiated the present proceedings before you, namely Case 16/64, on 29 April 1964.

She asks you to annul both the decision to admit Miss Kurz to competition 143/B and to place her on the list of suitable persons and, so far as necessary, the decision of the appointing authority to accept this list as it stood without looking into Miss Kurz's right to take part in the competition. Finally, she asks you to annul the decision of the said appointing authority to appoint this member of the auxiliary staff to the vacant post.

I

1. The submissions which she makes in her application and in her reply are many, but the statement of her submissions makes it clear at once which is the one which raises the most important question of principle and which must be dealt with first. Is a competition internal to the institution, mentioned in Article 29 (1) (b) of the Staff Regulations, only open to officials as Miss Rauch says it is? Or is it also open, as the Commission thinks, to auxiliary staff, it being noted that if so then by parity of reasoning it must also be open to temporary staff?

2. The applicant claims in the second place that the appointment of Miss Kurz took place in breach of Article 52(b) of the Conditions of Employment of Other Servants as laid down by Regulation No 31. This Article limits the actual period of employment of auxiliary staff to one year, including any renewal of their contracts. Yet the decision of the Committee of Chairmen appointing Miss Kurz took place on 20 February 1964 whereas she was no longer validly a member of the auxiliary staff in the service of the Commission as from 15 February 1964, since she had been engaged on 15 February 1963.

3. I suggest that you should give the same treatment to the last submission in the application according to which the choice of the Commission should have stated the reasons on which it was based in accordance with Article 25. It will be noted that although the submission is drafted in this way Miss Rauch agrees that the letter which she received told her that she had not been chosen and does not contest the decision contained in it, but the decision which involved the appointment of Miss Kurz.

II

The reply adds six new submissions to the three contained in the original application.

Therefore my opinion is:

1 Translated from the French.