JUDGMENT OF 29. 10. 1975 - CASE 22/75 KÜSTER v PARLIAMENT

In Case 22/75

THE COURT (First Chamber) composed of: R. Monaco, President of Chamber, A. Donner and A. O'Keeffe, Judges, Advocate-General: G. Reischl Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts

I — Facts and written procedure

II — Conclusions of the parties

III — Submissions and arguments of the parties

IV — Oral procedure

Law

Costs

I —. Facts and written procedure

1. By Vacancy Notice No A/50 of 30 September 1974, the European Parliament opened an internal competition for the purpose of filling a post of Head of Division (Grade A 3) with the Directorate-General for Committees and Interparliamentary Delegations. The post in question had previously been the subject of Vacancy Notice No 1509 of 12 March 1974, against which the applicant had brought Case No 79/74, dismissed by judgment of the Court dated 19 June 1975.

2. On hearing the report of the Judge-Rapporteur and the views of the Advocate-General, the Court (First Chamber) decided to open the oral procedure without any preparatory inquiry.

II —. Conclusions of the parties

—. Rule that this application is admissible as to form and that it has been made within the prescribed period;

—. Take note of the applicant's offer of proof set out in his submissions;

—. Rule that the application is well founded and consequently annul Internal Competition A/50;

—. Rule that such annulment shall include the annulment of any procedure attaching thereto, where appropriate, and that such procedure cannot adversely affect the applicant;

—. Order the Parliament to pay the costs.

—. Take note that it leaves the question of the admissibility of the application to the discretion of the Court;

—. Rule that the application is unfounded and dismiss it;

—. Make a ruling as to costs in conformity with the provisions applicable.

III —. Submissions and arguments of the parties

IV —. Oral procedure

1. By application submitted on 19 February 1975 under Article 91 of the Staff Regulations, the applicant asks the Court to annul the implied rejection by the European Parliament of his complaint of 18 October 1974 and consequently to annul Internal Competition A/50 of 30 September 1974, relating to a post of Head of Division (Grade A 3) with the Directorate-General for Committees and Interparliamentary Delegations.

2. In support of his conclusions he submits that the competition procedure was irregular, in particular by reason of the appointing authority's decision to hold it without providing proof of compliance with the formalities laid down by Article 29 (1) (a) of the Staff Regulations.

3. In fact, according to that article, the appointing authority can only organize a competition internal to the institution such as provided for under subparagraph (b) of the paragraph in question where it appears impossible to fill the vacant post by way of transfer or promotion.

4. Since — even in the opinion of his superiors — the applicant fulfilled the conditions required for promotion to the vacant post and had submitted his application, it is alleged that such proof cannot be adduced, so that the decision to hold an internal competition was accordingly illegal.

5. The existence of several persons eligible for promotion or transfer may lead the appointing authority to the conclusion that the interests of the service and the impartiality of recruitment render an internal competition desirable.

6. The applicant's argument amounts to attributing to the assistant of an official whose post becomes vacant the right to succeed him wherever it appears from his file that he has the qualifications necessary to fill that post.

7. Both the interest of the service and the rights of other officials militate against the acceptance of such a claim.

8. The fact that the recruitment procedure in question had the purpose of filling a single post and not a number of individual posts is of no importance.

9. The submission must therefore be rejected.

10. The applicant also argues that the condition contained in the vacancy notice, laying down that for practical reasons, a thorough knowledge of English is required, is not justified by reasons based on the interests of the service but amounts to a disguised method of reserving the post in question for a particular nationality.

11. In support of this submission the applicant argues inter alia that the system of marking which the vacancy notice in question lays down for the oral test bearing on the knowledge of languages shows the decisive importance attached to a thorough knowledge of English, which appears amongst the qualifications required in respect of a possible appointment.

12. For these reasons the notice in question is alleged to infringe the final paragraph of Article 27 of the Staff Regulations, according to which No posts shall be reserved for nationals of any specific Member State.

13. Whilst the Staff Regulations prohibit the reserving of posts for nationals of any specific Member State, the appointing authority may nevertheless make its selection, when recruiting an official, dependent upon specific linguistic abilities required in the interests of the service.

14. In the present case the special nature of the tasks devolving on the secretariats of the parliamentary committees which have the task of assisting the members of these committees in their work, may justify a recruitment based inter alia on a thorough knowledge of one of the national languages used by such members, who come from the national parliaments of the Member States.

15. More specifically, the recruitment of an official having a thorough knowledge of English may correspond to the requirements of the service resulting from the accession to the Community of the new Member States.

16. The information appearing in the written pleadings and that furnished in the course of the oral procedure do not make it possible to arrive at the conclusion in the present case that the recruitment of an official having a thorough knowledge of the English language is unjustified having regard to the nature and characteristics of the vacant post or the requirements of the service.

17. Besides, in laying down the condition in question the vacancy notice in dispute does not intend to refer to so thorough a knowledge that only officials whose mother tongue is English can possess it but allows it to be clearly understood, by specific reference to practical reasons which justify such a condition's being imposed, that the level of linguistic knowledge required is one appropriate to the actual requirements of the service.

18. Moreover it is shown by the other qualifications and abilities specified that the thorough knowledge of English does not constitute the only criterion determining the choice of the candidate to be appointed.

19. On the contrary, the notice of competition in question allows it to be understood that since such a choice can only result from the taking into consideration of several factors which are themselves justified in the interest of the services, the appointing authority must take all these factors into account.

20. This submission is therefore unfounded.

21. The application must therefore be dismissed.

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

23. The applicant has failed in his action.

24. However, under the terms of Article 70 of the Rules of Procedure, the costs incurred by institutions in actions brought by servants of the Communities are to be borne by such institutions.

On those grounds, THE COURT (First Chamber) hereby

1 Dismisses the application;

2 Orders the parties to bear their own costs.