1.

At the beginning of 1981, the Parliament initiated the recruitment procedure necessary to fill the post in question. As consideration of the possibilities of promotion, transfer within the Parliament and transfer from another institution produced no result and in view of the very specific nature of the post, the Parliament administration decided to apply the exceptional recruitment procedure which does not involve a competition, provided for in Article 29 (2) of the Staff Regulations. The Joint Committee approved that decision on 7 May 1981.

On 18 June 1981 a vacancy notice for the disputed post was published in the Official Journal. It described the duties involved. It also indicated the conditions of eligibility for the candidates, namely in particular:

“A university degree or equivalent professional experience;

A proven experience of public relations and journalism;

Thorough acquaintance with European problems.”

There was therefore no condition as to age.

Candidates were invited to submit applications not later than 20 July.

In order to differentiate between the candidates, the Parliament set up a selection committee, which included in particular a representative of the staff. In the course of its opening meeting, on 7 July, the committee decided, on the basis of the vacancy notice, to regard as eligible candidates who in particular:

“Had proven experience of at least 10 years in public relations and in journalism;

Had ability to deal with a varied selection of people seeking information and experience of political circles;

And were between 35 and 50 years of age (in other words, born between 1 August 1931 and 1 August 1946)”.

2.

Vassilis Mavridis and Constantinos Verros both submitted their applications on 17 July 1981.

On 7 August, the chairman of the selection committee notified them that their candidature would not be accepted since they did not come within “the category of those between 35 and 50 years of age — a limit laid clown by the committee itself”. Vassilis Mavridis was in fact over the maximum age, whilst Constantinos Verros was below the minimum age.

By letter of 14 August addressed to the Personnel Branch of the Parliament, Mr Verros expressed his great astonishment at the justification advanced for refusing to consider his application, since the vacancy notice made no mention of a condition as to age. On 25 August he sent a copy of the letter to the Secretary-General and the Director-General of Administration of the Parliament.

He received a reply on 2 September, signed by the chairman of the selection committee. It informed him that recruitment for the post in question was carried out on the basis of Article 29 (2) of the Staff Regulations and that therefore the provisions of Annex III thereto were not necessarily applicable. It was also stated that, under that provision, selection committees had a wider discretion in relation to the laying down of the criteria which they themselves considered appropriate.

The candidates whose applications the selection committee considered valid were invited to Athens for interview on 1, 2 and 3 September 1981. At the conclusion of its deliberations, the committee drew up a list of suitable candidates containing several names. The appointing authority appointed one of them with effect from 1 January 1982.

The actions brought by Vassilis Mavridis and Constantinos Verros were lodged at the Court Registry on 11 November and 1 December 1981 respectively.

1.

Mr Mavridis objects that the Parliament failed to comply with Article 1 of that annex, which provides that “notice of competitions shall be drawn up by the appointing authority”. ( 5 ) The disputed condition was determined by the selection committee. The submission is therefore that the committee lacked competence.

Both applicants accuse the Parliament of infringing subparagraph (g) of Article 1 (1), according to which a notice of competition must specify “where appropriate, the age-limit”. In this instance, the applicants were notified of the conditions as to age only in the letter rejecting their candidature. Infringement of that provision has already been censured in the Court's judgment of 22 March 1972. ( 6 )

They submit further that the first paragraph of Article 5 was infringed. That article provides that “the selection board shall draw up a list of candidates who meet the requirements set out in the notice of competition”. The selection committee bassed the rejection of the applicants' candidature on a condition which was not laid down in the vacancy notice or, as Mr Mavridis adds, provided for by a Community regulation. Inasmuch as they infringe that provision, the disputed decisions must be annulled, they claim, for the reasons stated in unequivocal terms in the judgments of the Court, Anselme of 28 June 1979 ( 7 ) and Ruske of 18 February 1982. ( 8 )

2.

In its defence, the Parliament points out that it frequently fixes minimum and maximum age-limits as conditions of eligibility for a post, which must exclude any suggestion of arbitrary conduct on the part of the selection committee.

It further states that the criteria of assessment added to those set out in the vacancy notice were decided upon by the committee at its opening meeting of 7 July, that is, before the applications of Mr Mavridis and Mr Verros, dated 17 July, had been received. The consideration given to their applications was therefore entirely objective.

Those statements cannot be disputed. However, in my view, they by no means conclude the discussion, which centres, primarily, on questions of law. The essential argument advanced by the Parliament is that it is of no avail to allege infringement of provisions applicable to the competition procedure in cases which concern the exceptional recruitment procedure under Article 29 (2).

For my part, I would note that the terminology provides evidence of the difference between the procedure in question and the normal procedure. In this instance the relevant terms are not “notice of competition” and “selection board”, but rather “vacancy notice” and “selection committee”.

The fundamental question raised by these submissions lies therefore, as Counsel for Mr Mavridis emphasized in the course of his address, in the question whether the case-law of the Court, according to which the bodies responsible for selection (“Auswahlausschüsse”) are bound by the information contained in the vacancy notice and notice of competition, must be restricted solely to competition procedures or whether it may be extended to all cases in which a notice has actually been published.

3.

Let me now examine the answers which may be given to that question.

if in doing so it failed to mention the conditions as to age. The parliament cites in that respect the French saying: “Qui peut le plus peut le moins” — that is, if it is permissible to refrain from publishing any vacancy notice it is permissible to publish one which does not give all the conditions for recruitment.

Nevertheless I take the view that when an institution decides to advertise vacancies of posts to be filled under the procedure of Article 29 (2) without expressly indicating that the recruitment concerned is to be effected under that procedure, it must mention all the conditions of recruitment. The reasons for that were stated in the judgment of the Court of 30 October 1974, Grassi ( 12 ) concerning a vacancy notice, and the judgments in Costacurta, Anselme and Ruske, relating to notices of competition. I consider that those reasons, which were advanced in cases involving recruitment by the normal competition procedure, are equally valid in this case. I take the view that, in this case too, the appointing authority must when drawing up the vacancy notice “take account of the special conditions of eligibility” for the vacant post and that it amounts to an irregularity in the procedure “if the authority decides what these conditions should be only after notice has been published and the candidates are known, and if an interpretation is placed on the wording of the notice ... which, in the authority's view, seems to be in the best interests of the service”. ( 13 ) I think too that it is unreasonable that the exclusion of certain candidates should be justified “by relying on conditions of recruitment which were not properly notified in advance to all the persons concerned”. ( 14 ) Finally, I consider that “although the appointing authority enjoys a wide discretion to determine the conditions” governing a recruitment procedure, whatever that procedure may be, selection committees are bound by the wording of the vacancy notice as published, as selection boards are bound by the notices of competition. Indeed the basic function of a notice, whether it is provided for in the Staff Regulations or not, “is precisely 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”. ( 15 )

That is of particular relevance in this case, because the differences between the vacancy notice as published and a notice of competition might easily escape the attention of a person who is not accustomed to the recruitment procedures in the Community institutions, as counsel for the Parliament has acknowledged.

1.

He claims that any candidate for a post in the Community institutions must be able to rely on notices which are issued by those institutions. In particular, persons interested in a post which is the subject of a vacancy notice must be able to ascertain, on the basis of that notice, at least whether they fulfil the formal conditions and therefore whether they are eligible and have a chance of succeeding. Because such persons act on the basis of those notices deciding whether or not to become candidates and subsequently taking the steps which they consider to be necessary for their candidature, the notices must be accurate and complete.

2.

The Parliament replies that the principle of the protection of legitimate expectation is not applicable in this case.

Its argument is founded on the case-law of the Court as summarized by Mi-Advocate General Capotorti in his opinion in Cases 167/80, Curtis, and 268/80, Guglielmi. ( 16 ) He stated there that in order that reliance may successfully be placed on that principle, the expectation must be based on precise assurances given by the administration to the persons concerned.

In this case, the Parliament administration had entered into no commitment regarding the candidates. It had merely published a notice to inform persons interested of its intention to recruit an official to head the Parliament Office in Athens.

Mr Mavridis, however, takes the view that by setting out in the vacancy notice a number of conditions to be fulfilled, the Parliament was giving candidates the assurance that admission to take part in the recruitment procedure was subject only to those conditions and not to any others.

3.

In my view, for the reasons which the Court gave in its judgments in Costacurta, Grassi, Anselme and Ruske, the refusal to accept candidatures on the basis of a condition which does not appear in the vacancy notice disregards the candidates' legitimate expectation that the information set out in that list is complete.

I consider that the position would be different only if the institution indicated in the notice that the post in question was to be filled under the procedure of Article 29 (2) and that the normal rules of recruitment would not therefore be applied. In that situation, I take the view, further, that the institution should issue a notice in a form completely different from that of a notice of competition so that candidates cannot mistake that procedure for a normal recruitment procedure.

I propose therefore that the Court annul the decisions to exclude Vassilis Mavridis and Constantinos Venos from the recruitment procedure in question on the ground that they failed to satisfy a condition which did not appear in the vacancy notice. On the other hand, I consider that it is pointless to annul the entire recruitment procedure and the appointment which resulted therefrom. If the Parliament were to commence a new procedure and, this time, published a vacancy notice which mentioned all the additional conditions fixed by the selection committee, the applicants would still be excluded. Moreover, only the persons who were selected on the basis of the criteria established by the committee would be admitted to participate in the interviews, and the final selection, including the appointment which resulted therefrom, could equally be confirmed. In other words, as in the Anselme case, “the exclusion of the applicants from the list of candidates did not affect the admission to the list of the persons selected” so that there is no need to annul steps in the recruitment procedure which took place after that exclusion. ( 17 )