JUDGMENT OF 22.3.1972 — CASE 78/71 COSTACURTA v COMMISSION

In Case 78/71

THE COURT (First Chamber) composed of: J. Mertens de Wilmars, President of Chamber, A. M. Donner and R. Monaco (Rapporteur), Judges, Advocate-General: K. Roemer Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Summary of the facts and of the procedure

II — Conclusions of the parties

III — Submissions and arguments of the parties

(a) Infringement of Article 1(1) (g) of Annex III to the Staff Regulations'

(b) Violation of the principle that regard must be had to eligibility for promotion

Grounds of judgment

Costs

I —. Summary of the facts and of the procedure

1. Mr Mario Costacurta entered the service of the ECSC in 1966 as an employee in the Office for Official Publications and was appointed to an established post in Grade C 3 from 1 October 1968.

2. Having heard the report of the Judge-Rapporteur and the views of the Advocate-General, the Court decided to open the oral procedure without any preparatory inquiry.

II —. Conclusions of the parties

I. Rule that the present application is admissible ;

II. Rule that it is well founded in substance.

III. Order the defendant to bear the costs and expenses of the proceedings.

III —. Submissions and arguments of the parties

(a). Infringement of Article 1(1) (g) of Annex III to the Staff Regulations'

(b). Violation of the principle that regard must be had to eligibility for promotion

1. The application is for the annulment of Internal Competition COM 152/70 for five posts of assistant proof-reader of Italian mother tongue in career bracket B3-B2 with the Office for Official Publications of the European Communities and of the appointment of Mrs Giovanna Pasquini and Mrs Teresita Colombo and Mr Giuseppe Mendosa, Mr Eduardo Benedusi and Mr Giovanni Laviola to the said posts.

2. The applicant claims first that since the notice of competition fails to mention an age-limit it infringes Article 1 (1)(g) of Annex III to the Staff Regulations which requires that such notice must specify 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.

3. According to Article 28 of the Staff Regulations an official may be appointed only on condition that he has, subject to Article 29 (2) passed a competition based on either qualifications or tests, as provided in Annex III.

4. Furthermore Article 29 expressly provides that Annex III lays down the competition procedure.

5. Those provisions consequently require that there shall be specified in the notice of competition, in accordance with the express wording of Article 1(1)(g), the age-limit and the extension of such limit.

6. Setting an age-limit thus amounts to securing an advantage in favour of servants already in the service.

7. The purpose of the specifications set out in Article 1 (1) of Annex III is to ensure that in every case where a post is to be filled by means of a competition the conditions of recruitment are adapted as closely as possible to the requirements of the post to be filled.

8. When they laid down the obligation to state those conditions in the notice of competition the authors of the Staff Regulations intended to preclude the appointing authority from justifying the exclusion of certain candidates by relying on conditions of recruitment which were not properly notified in advance to all the persons concerned.

9. Amongst these conditions age may well constitute an important factor regarding the quality and efficiency of the official to be recruited.

10. Although the age of an official may be of no matter where certain posts are concerned and the field of recruitment for them should be as wide as possible, they must be regarded as exceptional by reason of their special nature.

11. In such a case the notice of competition must indicate that an age-limit has not been considered necessary.

12. Since the appointing authority has failed to specify the age-limit in the notice of competition in dispute this notice does not comply with Article 1 (1) (g) of Annex III to the Staff Regulations.

13. Consequently Competition COM 152/70 and the decisions following on it making the appointments must be annulled.

14. In these circumstances it is unnecessary to consider the other submissions in the application.

15. Under Article 69(2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs.

16. The defendant has failed in its submissions.

On those grounds, Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties; Upon hearing the opinion of the Advocate-General; Having regard to the Staff Regulations of Officials of the European Communities, especially Article 29 and Article 1 (1) of Annex III; Having regard to the Protocols on the Statute of the Court of Justice; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, THE COURT hereby:

1 Annuls Competition COM 152/70 and the decisions appointing Mrs Giovanna Pasquini and Mrs Teresita Colombo and Mr Giuseppe Mendosa, Mr Eduardo Benedusi and Mr Giovanni Laviola;

2 Orders the Commission of the European Communities to bear the costs of the proceedings.