Constantin Verros v European Parliament (306/81)

B —Substance

As regards the substance, the applicant claims that the selection committee of the European Parliament arbitrarily altered the conditions of eligibility for the vacant post in such a way as to introduce a new requirement which was not envisaged in the notice of competition itself and which made his candidature inadmissible. The basic function of a notice of competition is to give those interested the most accurate information possible about the conditions of eligibility for the post to enable them to judge whether they should apply for it. It follows that if an age-limit is imposed, mention thereof must necessarily be made in the vacancy notice. Laying down criteria for assessment in advance tends to ensure that candidates' qualifications will be considered objectively and that arbitrary decisions will be excluded. The formalities provided for in Article 5 of Annex III should be regarded as essential. In so far as the notice of competition published in the Official Journal makes no mention of any age-limit, the exclusion of a candidate on the ground that he does not satisfy that requirement amounts to an infringement of the first paragraph of Article 5 of Annex III to the Staff Regulations, as may be seen from the case-law of the Court.^noteThe defendant replies, in its defence, that the selection committee did not fix the age-limit at a late stage, namely after receipt of the applicant's candidature which was submitted on 17 July 1981, but in the course of its opening meeting on 7 July 1981. Furthermore, in fact and in law, the selection committee is authorized to limit the age of candidates.Indeed, a minimum age is necessary in view of the importance of the vacant post and in accordance with the administrative principle that a head of division should not be younger than his subordinates. In any event, the defendant considers that it is clear that the age-limit was not established with the intention of excluding the applicant.In law, the imposition of an age-limit is justified on the basis of Article 29 (2) of the Staff Regulations which authorizes, in exceptional cases, a recruitment procedure other than the competition procedure. Consequently, the strict rules for competition procedures provided for in Annex III are no longer applicable. In particular, the requirements relating to the drafting of the notice of competition, including the obligation to indicate, where appropriate, any age-limit, need not be observed. The special procedure authorized by Article 29 (2) is not defined or explained in the Staff Regulations and the choice of the most appropriate means is left to the Community authority. Moreover the defendant considers that the references in the application to the decisions of the Court are not relevant in this instance, inasmuch as they concern competitions, which are governed by the provisions of Annex III to the Staff Regulations. In the present case, recourse to Article 29 (2) is not subject to any condition as to publication, as the Court held in its judgment of 29 October 1975.^note In view of the fact that publication is not compulsory for an exceptional recruitment of that type, it should be acknowledged that a fortiori, if there is publication, it may be restricted to such details as appear in the vacancy notice in question and an age-limit may be introduced at a later stage if the selection committee should consider it necessary.In his reply, the applicant claims, in a first submission, that it follows from Article 1 of Annex III to the Staff Regulations that if an age-limit is imposed, it is clear that mention of that fact must be made in the vacancy notice, and that failure to respect that requirement amounts to an infringement of that article. He bases his argument on the judgment of the Court of 22 March 1972 (Case 78/71 Costacurta [19721 ECR 163).In a second submission, the applicant maintains that the rejection of his candidature constitutes an infringement of the first paragraph of Article 5 of Annex III to the Staff Regulations. He reiterates the argument advanced in his application, and refers to the case-law of the Court on the point in question.^noteIn his view the defendant ought in those circumstances to set aside the recruitment procedure which had been initiated and to have withdrawn the original vacancy notice, replacing it with a corrected notice. The rejection of his candidature therefore amounts to an infringement of the first paragraph of Article 5 of Annex III to the Staff Regulations.In a third submission, the applicant submits that the vacant post was not amongst those for which the appointing authority may apply the provisions of Article 29 (2) of the Staff Regulations, inasmuch as the vacancy notice made no mention of the fact that the post declared vacant required special qualifications or of the possibility that the procedure provided for in Article 29 (2) might be applied.In his opinion, it is only possible to have recourse to that article if the possibility has been envisaged in the vacancy notice or in any case in a document published at a later stage. Moreover the defendant has failed to justify the reasons for which the vacant post required special qualifications, and to establish the existence of exceptional circumstances. Such a justification is necessary to enable the Court to review the legality of a decision of that nature, especially in view of the fact that the existence of special qualifications is a legal condition for the application of Article 29 (2) of the Staff Regulations. That concept concerns exceptional cases “in which the technical knowledge required or the unusual nature of the post restricts potential candidates to a small number of highly specialized persons with exceptional knowledge and experience”. However, the post as described in the vacancy notice does not enter into that category, as may be seen from the judgment of 26 May 1971 (Joined Cases 45 and 49/70 Bode v Commission [1971] ECR 465) and the opinion of the Advocate General in the same case.The defendant replies to those submissions only in the alternative. As regards the submission relating to the infringement of Article 29 (2) of the Staff Regulations, it contends, in its rejoinder, that the conditions required for the application of the exceptional recruitment procedure provided for in that article are present in this case. The post in question is one in a new Member State where European questions are particularly sensitive. It is therefore a delicate task to establish and subsequently develop contacts with the press and other Greek media of information and to disseminate information on the activities of the European Parliament in specialized sectors such as, for example, the universities and trade unions. In carrying out such a task regard must be had to both the balance and the political peculiarities of the various sectors and this requires an exceptional aptitude in making extremely varied contacts together with thorough knowledge and experience of the political circles in Greece. It is therefore necessaiy for the person appointed to possess, in addition to the qualities normally required, special qualifications such as long and proven experience of journalism on the one hand and of public relations on the other. It is therefore clearly necessaiy to fix a minimum age-limit. The defendant also refers to the fact that careful study of the vacancy notice reveals the special nature of the qualifications required.Moreover, it adds that all the procedural conditions were fulfilled. The other possibilities of filling the post were exhausted, the general competition procedure was excluded and the procedure at issue was initiated only after a favourable opinion had been obtained from the Joint Committee.As regards the failure to respect the spirit of Article 27 of the Staff Regulations, the European Parliament reminds the Court that, in its view, recourse to Article 29 (2) is not subject to any condition as to publication. It follows that the Staff Regulations do not provide for the vacancy notice to mention the possibility that the article may be applied and the Court in the abovementioned decisions has not held that it must include such a mention.In those circumstances, the defendant takes the view that the application of the special recruitment procedure provided for in Article 29 (2) of the Staff Regulations is “fully detailed and sufficiently substantiated, objectively justified and in total conformity as regards the procedural conditions”. The submission advanced by the applicant is unjustified and is unfounded in fact and in law.In respect of the alleged infringement of Article 1 (g) and the first paragraph of Article 5 of Annex III to the Staff Regulations the European Parliament notes that the provisions of Annex III which govern competition procedures do not apply to the procedure provided for in Article 29 (2). Even if they did apply, there would still be some doubt as to whether there is an obligation to mention in the notice of competition any age-limit which may be imposed. According to the wording of the abovementioned provision and in particular the inclusion of the expression “where appropriate”, the mention of an age-limit is optional, as may be seen from the opinion of Mr Advocate General Roemer in Case 78/71 (Costacurta [1972] ECR 163 at p. 170). The defendant concludes that, a fortiori, in cases such as this, where the provisions of Annex III are not applicable, it was not necessary to mention the age-limit in the vacancy notice. Consequently, the applicant's submission is not founded in law. The same considerations apply to the submission regarding the first paragraph of Article 5 of Annex III.The questions put by the CourtIn reply to the first question put by the Court, namely whether vacant posts which are the subject of a recruitment procedure on the basis of Article 29 (2) of the Staff Regulations are systematically published in the Official Journal or in the general press, the Council replied that with a few exceptions such posts have never been published in the Official Journal or the press. The Commission replies that its vacant posts are not normally advertised at all. The European Parliament replies that its does not publish them systematically, but that in the majority of cases, recruitment procedures are published according to the specific requirements of the posts to be filled.To the second question, namely whether the details published mention whether the recruitment procedure in question is based on Article 29 (2), the Council and the European Parliament reply in the negative.To the third question, namely whether the published notices specify an age-limit if one is imposed, the Council replies in the affirmative, whilst the European Parliament replies in the negative.