JUDGMENT OF 4. 4. 1974 — CASE 115/73 SERIO v COMMISSION

In Case 115/73

THE COURT (First Chamber) composed of: R. Monaco, Rapporteur, acting President of Chamber J. Mertens de Wilmars and C. Ó Dálaigh, Judges, Advocate-General: J. P. Warner Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts

I — Facts and procedure

II — Conclusions of the parties

III — Submissions and arguments of the parties

IV — Oral procedure

Law

Costs

I —. Facts and procedure

1. In notice of competition COM/388/71, the Commission set in motion the internal competition procedure to fill a post in Category/Career Bracket A 5/A 4. Among the qualifications required in the notice was theoretical and practical knowledge of Dutch law. By letter of 8 November 1971 addressed to the Director-General of Administration, the applicant declared that, because of this requirement, the notice was vitiated as being ultra vires and discriminatory, and asked that it be withdrawn. This letter, together with a previous one of 19 October 1971, was rejected by the Administration on 29 February 1972. The applicant applied for the post and, on 14 March 1972, was admitted to the written tests provided for under the competition procedure. In a letter from the Administration dated 13 June 1972 he was informed that he had not been successful. On receipt of this letter, the applicant challenged its accuracy in a letter dated 16 June 1972 addressed to the office of the President of the Commission, drawing attention to the fact that his name appeared on the list of suitable candidates. By letter of the same day, which reached the applicant on 21 June 1972, the Administration wrote to him again confirming that his candidature had not been successful and at the same time that his name had appeared on the list of suitable candidates.

2. After hearing the report of the Judge-Rapporteur and the opinion of the Advocate-General, the First Chamber of the Court, by order of 8 November 1973. decided to hear two witnesses and to invite the Commission to supply certain information in writing before 20 November 1973.

II —. Conclusions of the parties

—. declare the appeal to be admissible;

—. declare null and void competition procedure COM/388/71 and the subsequent appointment of Mr Christian Timmermanns;

—. order the defendant to pay compensation to the applicant for the material damage he has suffered on the basis of the difference between the salary he would have received if he had been appointed to the post and the salary he actually received up to date of judgment;

—. declare the applicant entitled to compensation for moral damage by virtue of the fact that he has been wilfully, repeatedly and unlawfully deprived of his career prospects, the amount of compensation being assessed ex aequo et bono by the Court;

—. order the defendant to pay all costs and, in any case, find in favour of the applicant under the provisions of Articles 69, 70, 71, 72 and 73 of the Rules of Procedure.

—. reject the application in its entirety and order the applicant to pay the costs.

III —. Submissions and arguments of the parties

IV —. Oral procedure

1. The main object of the application lodged with the Registry on 23 March 1973 is to obtain annulment of competition procedure COM/388/71 and of the appointment made by the Commission as the result of this procedure.

2. The applicant alleges that the competition was arranged and organized in such a way as to favour a particular candidate.

3. The applicant further maintains that the discriminatory manner in which the competition was conducted is also demonstrated by the fact that a thorough knowledge, theoretical and practical, of Dutch law was laid down in the notice of competition as an essential qualification.

4. Although the Staff Regulations prohibit a post from being reserved for the nationals of any specific Member State, the appointing authority may nevertheless, in appointing an official, legitimately treat knowledge and experience associated with the legal system of a particular nation as a decisive factor when making its choice.

5. The applicant also contends that the competition procedure was carried out irregularly as a result of the composition of the Selection Board, and because it had at its disposal not only the French translation but also the originals of the test papers.

6. In view of their gravity, these allegations could be accepted only if accompanied by adequate proof.

7. The applicant further maintains that, as the disputed competition was on the basis of both qualifications and tests, the Commission was wrong in making the appointment solely on the basis of the tests and without paying regard to the qualifications of each candidate.

8. For these reasons, the claims for annulment of competition COM/388/71 and of the disputed appointment are unfounded.

9. By Article 69 (2) of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs if a submission has been made to that effect.

On those grounds, THE COURT (First Chamber) hereby:

1 Dismisses the application.

2 Orders each party to bear its own costs.