Opinion of mr advocate-general

Mr President,

Members of the Court,

In June 1968 the post of Head of Division (Market rules, inspection reports) corresponding to Grade A3 became vacant at the Directorate-General for Industrial Affairs, Steel Division, with the Commission.

In accordance with the Staff Regulations, a vacancy notice was published in order to fill this post by transfer or promotion. Only Grade A3 officials (for transfer) and Grade A4 officials (for promotion) could be candidates. On the other hand, Grade A5 officials could not be candidates on the basis of the principle laid down by Article 45 of the Staff Regulations.

Eleven candidates applied, one at Grade A3, applying for transfer, and the other ten, which included Mr Rabe, at Grade A4 applying for promotion.

On 22 July 1968, the Commission, having considered the different applications, decided not to fill the post by transfer or promotion but to hold an internal competition as it is authorized to do by Article 29 (1) (b) of the Staff Regulations.

A selection board composed of five members was appointed to judge the merits of the candidates by means of a competition essentially on the basis of qualifications, but including also, as the rules on competitions allow, a test which was to take the form of an interview with the candidates.

At the end of the competition procedure the selection board decided at a meeting in camera on 28 March 1969 to give first place to Mr Peters, a Grade A5 official who was not able to apply on the basis of promotion or transfer but who did so legitimately for the internal competition, and second place to Mr Rabe, who requests in these proceedings the annulment of the competition and, as a consequence, the annulment of the appointment of Mr Peters.

In support of this application Mr Rabe put forward two sets of submissions.

The first is drawn from the different irregularities which are alleged to have vitiated the competition procedure.

The second relates to an alleged misuse of powers.

I

As regards the irregular manner in which the competition was conducted, two at least of the irregularities involved seem to me to be established.

It is probable that each is by itself sufficient to vitiate the competition procedure.

It seems ceretain, to me, that when taken together they render the whole competition illegal.

1. It is established that one of the members of the selection board, whose name appears among the signatories of the minutes who drew up the list of candidates in order of merit, Mr Desbois, did not participate in all the proceedings of the selection board. He had probably taken part in the first meeting of the selection board on 19 March 1969 when the applicants' files were examined. But one thing is certain, he was not present at the second meeting, that of 28 March 1969, when the selection board interviewed each of the candidates and drew up, in order of merit, the list which it proposed to submit to the Commission.

2. But this first irregularity is not the only one. In fact, this competition took place under very curious conditions.

II

I shall be brief as to the second set of submissions invoked by the applicant, which are based on an alleged misuse of powers.

The misuse of powers alleged does not seem to me in fact to be apparent from the documents in the file.

Let me say first of all that I think it best not to take account of the fact that Mr Peters had held the position of Chief Executive Assistant to a Member of the Commission.

Although it is important to take care to ensure that the exercise of such duties does not give an official too great an advantage in his career, it is no less important that it should not work to his disadvantage; examples of this in the national context do not allow the possibility to be discounted.

Undoubtedly, the fact that the Commission did not choose one of the several candidates in Grades A3 and A4 whose service records were very praiseworthy and instead held an internal competition resulting in the appointment of a Grade A5 official is a little strange.

But it is not in itself open to criticism since it had the effect of giving officials in a lower grade the possibility of obtaining posts which they could not reach by way of transfer or promotion, which is both democratic and at the same time serves to prevent a certain bureaucratic sclerosis.

It is therefore solely on the ground of procedural and formal irregularities that I advise the Court to annul the competition which resulted in the appointment of Mr Peters and, as a consequence of that, to annul his appointment and to order the Commission to pay the costs of the proceedings.

1 Translated from the French.