Opinion of Mr Advocate General

Mr President,

Members of the Court,

Introduction

1. Mr Lipman, a Commission official in Grade B 3, has brought an action against the decision of 25 February 1982 refusing his application to take part in Open Competition No COM/A/325, published in Official Journal, C 233, p. 21.

Background

2. Mr Lipman entered the service of the Commission in 1983 as an official in Grade B 4. In 1978 he was promoted to Grade B 3. He has always been employed in the Directorate-General for External Relations. According to his superiors, as appears from the annex to the application, he has been performing duties relating to Career Bracket A 7-A 6 since the end of 1976. That is also confirmed by the Commission. Although the Commission qualifies its confirmation, by stating that from 1977 to 1979 this was true only of some of his duties, it admits that at present the duties which he performs are mainly of that level.

Substance of the case

3. In challenging the decision not to admit him to the competition, the applicant has made three submissions which he has set out in his application as follows :

Assessment of the merits of the case

4. As far as judging the merits of the case is concerned I must state in the first place that I do in fact regard the result of the procedure adopted by the Commission as clearly unfair to the applicant. So far as the Court is concerned, however, the question is whether the application also can lead, in law, to the annulment of the decision not to admit the applicant to the competition. The determination of requirements for admission to an open competition is within the descretionary powers of the administration, obviously within the framework of the Staff Regulations of Officials and with due regard for relevant general principles of the law.

5. As regards the reference to Case 156/78 Newth [1979] ECR 1941, I consider that the Court arrived at its decision as a result of the fact that there was discrimination as compared to other officials in a comparable situation (paragraph 13).

6. Finally I have reached the conclusion that the application must be dismissed. In view of the circumstances of the case I consider that each party should, pursuant to Article 70 of the Rules of Procedure, bear its own costs.

1 Translated from the Dutch.

2 Translator's Note: There is no translation of this word In the English version of the Notice.