Opinion of Mr Advocate General

Mr President,

Members of the Court,

1. Introduction

In the Official Journal of the European Communities, C 225 of 4 September 1980, notice was given on page 8 of Open Competition No COM/LV315, which was intended to constitute a reserve for the recruitment of translators having as their main language German, English, French, Italian or Dutch. Under Point B.l. the following condition as to age-limit was laid down:

Mrs Alaimo, who was born in 1942 and had been employed since 1 December 1976 by the European Centre for the Development of Vocational Training, submitted an application for the competition. By a letter of 7 November 1980 she was however notified by Yves Desbois, Head of the Commission's Recruitment Division, that the Selection Board for the competition had rejected her application because of her age. That rejection was based on a decision not to allow the applicant to benefit from the exemption from the maximum age-limit for persons employed by the European Communities.

Mrs Alaimo has brought this action against that rejection. The Commission does not dispute the admissibility of the action.

The European Centre for the Development of Vocational Training was established, pursuant to Article 235 of the EEC Treaty, by Regulation (EEC) No 337/75 of the Council of 10 February 1975 (Official Journal 1975, L 39, p. 1). It appears from the preamble to that regulation that the task of the Centre is to assist the Commission in the implementation of Article 118 of the Treaty, although the Centre is independent of the departments of the Commission. Council Regulation (ECSC, EEC, Euratom) No 1859/76 of 29 June 1976 (Official Journal 1976, L 214, p. 1) lays down the conditions of employment which apply to the staff of the Centre.

2. The arguments adduced

Annex III to the Staff Regulations, entitled Competitions, provides in Article 1 inter alia as follows:

The underlined expression is not accompanied by words such as of the Community or of the institutions. However, in giving notice of competitions the Commission invariably appends the words of the European Communities.

The applicant considers that as a member of staff of the Centre she comes within the expression employed by ... the European Communities. In support of that contention she makes the following points:

The applicant puts forward three further arguments in case the others are not convincing.

Finally, two further considerations are mentioned by the applicant.

The Commission considers that the expression employed by ... the Communities does not cover the staff of the Centre. It infers that from the following considerations:

More generally, the viewpoint which may be gleaned from the Commission's pleadings is that the staff of bodies set up in pursuance of Anide 235 of the EEC Treaty have completely separate status from the ordinary staff of the Communities.

3. The questions of law

3.1. In this dispute two connected questions of law arise. In the first place it must be ascenained what is to be understood by the words servants of the Communities in Article I (1) (g) of Annex III to the Staff Regulations or, put another way, what is the sphere of application rattorte personae of the Staff Regulations. In the second place it must be established what is to be understood by the expression of the European Communities used by the Commission in the Notice of Competition. The six arguments adduced by the applicant will fall to be dealt with in the discussion of those two questions.

3.2. Article 1 of the Staff Regulations renders them applicable to the institutions of the Communities and, by express provision in the last paragraph of that aniele, to bodies treated as institutions, such as the Economic and Social Committee and the Coun of Auditors. The word institutions is a connecting factor running through the other provisions of the Staff Regulations. So far as it is relevant for present purposes, the term institutions is defined in Article 4 of the EEC Treaty, in the Convention on certain institutions common to the European Communities and in the Treaty establishing a Single Council and a Single Commission of the European Communities.

3.3. From the foregoing considerations alone it may in my view be said that Article 1 (1) (g) of Annex III to the Staff Regulations applies only to the bodies mentioned in Article 1 of the Staff Regulations and thus not to the Centre.

4. Conclusion

In conclusion therefore I consider that the Centre comes within the term Community or European Communities, as those words are used in Article 179 of the Treaty, in the Protocol and in the abovementioned regulations. The use of that wording in the notice of competition may therefore have led the applicant to believe that she also might come within Article 1 (1) (g) of Annex III to the Staff Regulations.

However, neither the conduct of the Commission nor any other contentions or arguments put forward by the applicant constitute a ground upon which the provisions of the Staff Regulations may be given a wider sphere of application ratione personae than may be deduced from Article 1 of the Staff Regulations. Accordingly, Article 1 (1) (g) of Annex III to the Staff Regulations mav not be considered as having application to the staff of the Centre. In mv view, the Commission should be ordered to pay all the costs of the proceedings pursuant to the first subparagraph of Article 69 (3) of the Rules of Procedure as a result of the expectations which it aroused in the applicant by the misleading notice. The strong arguments which militate in favour of interpreting the words used by the Commission in its notice, taken by themselves, in the same way as the applicant, constitute a further reason for regarding the expectations aroused as an exceptional circumstance in the sense of the aforementioned provision. The fact that a detailed analysis of the case shows that regrettably an amendment to the Staff Regulations would be necessary in order to do full justice to the arguments put forward by the applicant, some of which were particularly telling, does not alter my opinion as to the decision on costs. In my opinion only an amendment to the Staff Regulations would enable it clearly to be established how far it is intended to extend the preferential rules laid down in Article 1 (1) (g) of Annex HI to the Staff Regulations for servants of the Communities to quasi-Community institutions of varying kinds which have been created with differing legal frameworks since the Staff Regulations were adopted in their present version.

I therefore propose that the Court should:

1 Translated trom the Duut

2 Transistor's note I: will be notrd tni:, unlikr the Duser version of Artide I (1) (g) of Annex III to the Stait Regulations, the English version does in fact include the words of the Communities