OPINION OF MR ROEMER — CASE 78/71 COSTACURTA v COMMISSION

Mr President,

Members of the Court,

The applicant in the proceedings which concern us today is an Italian citizen who entered the service of the European Coal and Steel Community in 1966. To begin with he was a member of the local staff within the meaning of the Conditions of Employment of Other Servants of the Communities but with effect from 1 October 1968 he was appointed a probationer official and with effect from 1 April 1969 an established official in Grade C 3/3. He is at present employed as a linofilm operator with the Office for Official Publications of the European Communities.

The applicant has repeatedly endeavoured to change his career bracket and to become an assistant proof-reader of Italian mother tongue in Grades B 3/B 2 with the Office for Official Publications. To this end he has taken part in various competitions. Thus he applied for a post as assistant proof-reader of Italian mother tongue which was advertised on 10 March 1966 but was notified that his application had been unsuccessful. After taking part in Internal Competition HA/INT/60/B he learned on 20 July 1967 that he had been included in the list of suitable candidates drawn up in accordance with Article 30 of the Staff Regulations of Officials but that it had proved impossible to appoint him an assistant proof-reader. Finally the applicant also entered Internal Competition COM 152/70 for several assistant proofreader posts which was advertised on 17 July 1970. Together with other candidates he took part in a written test on 8 December 1970 and in an oral test on 9 December 1970. Once again however he was unsuccessful in the competition because, having failed to attain the minimum marks prescribed by the selection board, he was not included in the list of suitable candidates. He was notified of this on 2 February 1971 by the appointing authority. The advertised posts were filled by other candidates who had likewise taken part in the competition.

Dissatisfied with the result of his endeavours, the applicant made a complaint on 26 March 1971, in accordance with Article 90 of the Staff Regulations of Officials to the President of the Commission. In this complaint, which was registered at the Commission on 23 April 1971, he pointed out inter alia that older candidates who were previously employed free-lance on a contractual basis with the Office for Official Publications and who were only made temporary staff with effect from 1 June 1970 had been admitted to the said competition. Furthermore the oral test was carried out very superficially. On those grounds he requested a review of the competition.

Since the complaint remained unanswered he finally applied on 18 August 1971 to the Court of Justice. In his application he sought a declaration that an age-limit should have been indicated in Competition COM 152/70 and that the Commission had violated the principle that regard must be had to eligibility for promotion. This is the basis for the applications for the annulment of Notice of Competition COM 152/70, for the annulment of the appointment of five other candidates to the advertised posts of assistant together with the annulment of the decision rejecting his complaint, which is regarded as having been taken by implication after the lapse of two months from the lodging of the complaint.

I will now consider how these applications and the submissions made in support of them should be viewed.

1. The applicant asserts first of all that Notice of Competition COM 152/70 disregarded the provisions of Article 1(1) (g) of Annex III to the Staff Regulations of Officials. This is so, he argues, because the notice failed to mention amongst the conditions to be fulfilled by the applicants the age-limit and any extension of the age-limit in the case of servants of the Communities who have completed not less than one year's service. The applicant considers that it is essential to give these particulars since they are intended to ensure that in internal competitions younger servants are favourably placed.

2. Secondly the applicant complains that persons were admitted to the competition who had never previously taken part in a competition. Indeed shortly before the notice of competition these persons were free-lance employees having a contractual relationship with the Office for Official Publications whereby they were merely obliged to accord first priority for certain periods to proof-reading for that Office. They were only appointed to the established staff with effect from 1 June 1970.

3. In his reply the applicant expressly abandoned a third complaint, alleging an infringement of Article 29(1)(a) of the Staff Regulations, that is to say, a failure to have regard to his eligibility for promotion in not promoting him to one of the advertised posts. This was done after the Commission rightly pointed out that the applicant, an official in Category C, could not be considered for promotion to Category B and that according to the Staff Regulations in such cases it is possible to obtain access to a higher career bracket only by taking part in a competition. Further remarks on this point are accordingly superfluous.

4. In sum I am of the opinion that:

1 Translated from the German.