Opinion of Mr advocate-general Gand

Mr President,

Members of the Court,

On 20 March 1967 the Secretary-General of the Councils, the appointing authority, published Vacancy Notice 15/67 for a post of principal administrator in Grade A4 (career bracket A5-A4). It specified that the duties of the post involved 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. Apart from a legal training evidenced by a university degree, the requirements were 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.

This is the decision which Mr Kurrer, an official in Grade A5 of the secretariat of the Councils has sought in vain to have withdrawn under the procedure laid down in Article 90 of the Staff Regulations and which he now asks you to consider. He further asks you to annul the Notice of Open Competition No 36 published on the following 4 July for recruitment of a principal administrator in Grade A4 on the basis of the vacancy notice which I have analysed.

No question arises as to the admissibility of his application. The two contested measures do in fact constitute decisions which may affect him adversely, having regard to the established case-law of the Court. On the other hand the force of his arguments does give rise to awkward questions on certain points.

1. The applicant first disputes the competence of the Secretary-General as the appointing authority to define in the terms which he used the post declared vacant which he decided to fill.

2. In the second place the applicant raises the objection that the definition of the post in the contested vacancy notice restricts the freedom of judgment both of the Promotions Committee set up by decision of 26 May 1964 and of the Joint Committee mentioned in Article 9 of the Staff Regulations and in Article 1 of Annex III. In fact the very strict requirements set out in this notice do not leave the first of these bodies with complete freedom of action to consider the comparative merits of candidates with a view to making a promotion, this being the first method which the Staff Regulations lay down for filling a vacant post. These conditions also restrict the freedom of action of the Joint Committee which must be consulted at a later stage before the publication of the vacancy notice.

3. More serious is the applicant's complaint that the vacancy notice infringes Article 27 of the Staff Regulations which provides that no posts shall be reserved for nationals of any specific Member State. The requirements which it lays down, namely a thorough knowledge of Netherlands law combined with professional experience over a considerable period in the application of this branch of the law are intended to reserve the contested post for a candidate of Dutch nationality.

4. However, the most awkward submission rests on the fact that the vacancy notice refers to a post of Principal Administrator in Grade A4. Again the subsequent notice of open competition states that recruitment will be to this grade and at the same time specifies that the career bracket relates to Grades 5 and 4 of the category. Can you then start by recruiting to the higher grade of a career bracket covering two grades?

None of the submissions made appears to me in fact to be wellfounded and I am of opinion:

1 Translated from the French.