David Lipman v European Commission (143/82)

1. The interpretation to be given to the provision of the notice of competition concerning the requirement of experience

The applicant claims that this provision, which states that candidates must have “At least two years' experience since graduation...”, must be given a wide interpretation. In support of that view:He claims first that as regards the duties to be carried out subsequently, it makes no difference whether the practical experience was acquired wholly or in part before or after graduation. At the date of his candidature for the competition, he had at least six years' practical experience, especially related to the option chosen and acquired at a high level.Secondly, he argues that a text must be interpreted so as to avoid “absurd results” which “the legislature” must be regarded as not having intended and that such an interpretation should be given even where the text concerned does not contain any defect of language or substantive error. The literal application of the text in this case leads to the rejection of a candidate who can provide evidence of practical experience of a duration three times that required but of which only one year was acquired after graduation. The contested provision of the notice of competition should therefore be regarded as referring only to young graduates and, since that is not the position of the applicant, the text must be interpreted widely, as the Court ruled in its judgment of 31 May 1979 in Case 156/78 Newthv Commission [1979] ECR 1941, and as proposed in legal writing (Henri de Page).Thirdly, he relies upon the provisions of Article 1 (d) of Annex III to the Staff Regulations of Officials of the European Communities which provides that the notice of competition must specify “the diplomas and other evidence of formal qualifications or the degree of experience required for the posts to be filled”. He infers from that that the degree of experience required depends only upon the establishment of practical experience related to the post to be filled, regardless of whether that minimum experience was acquired before or after the degree or diploma required in addition.Fourthly, he alleges that a wide interpretation of the provision at issue is all the more necessaiy since it lays down only a secondaiy condition of admission. On the one hand, the experience is in fact described in the notice of competition as “complémentaire”^note and, on the other hand, the words “in general... should” in the Annex to Section I of the notice of competition make it seem as if this is not an essential condition of admission to the competition. In addition, in relation to certain candidates for the competition, the selection board did not check whether their practical experience was in fact related to the option chosen. Thus since the requirement of practical experience was regarded as of secondary importance, the same views must be taken a fortiori of the condition relating to the length of such experience. On the latter point, the applicant requests measures of inquiry in order to determine whether or not the selection board had regard to the relevance of practical experience in relation to the officials who were candidates for the competition.The Commission, on the other hand, considers that the contested provision of the notice of competition cannot be given a wide interpretation or regarded as of secondary importance.It contends that no interpretation, however wide, can have priority over a clear text. In this case, since the language in the text of the notice of competition is not ambiguous and the text contains no substantive error, that notice cannot be subject to interpretation, as the Court has ruled on several occasions. It observes that the applicant has wrongly relied upon the judgment in Newth.It explains that the very intention of the appointing authority was that candidates admitted to the competition should have practical experience based upon theoretical knowledge acquired in a university course, and therefore the requirement laid down in the notice of competition corresponds to the aim pursued, is not “absurd” and is within the discretionary power of the institution.Moreover, in its opinion that interpretation follows very clearly from the first paragraph of Section 5 of the “Guide to Candidates taking part in Open Competitions of the Commission”.As regards the reference to Article 1 (d) of Annex III to the Staff Regulations of Officials, the Commission considers that the applicant's argument is unfounded, since the only purpose of that provision is to specify the headings which every notice of competition must contain and it does not lay down rules relating to the precise content of such headings.The Commission denies the allegation that the requirement in question is of secondary importance. It argues that the term “complémentaire” is in no way synonymous with “secondary” but means simply that the experience required must complement and therefore relate to the degree or diploma obtained. Again, it is clear from a reading of the entire sentence in the annex to Section I of the notice of competition that the words “In general,... should” concerns the type of practical experience acquired and not the requirement that the practical experience should have been acquired after graduation. Finally, the Commission affirms that the selection board did in fact check whether the practical experience of all candidates was related to the option chosen and states that the applicant provides no evidence in support of his allegations which are, moreover, unconnected with the dispute.