61978O0004

IN CASE 4/78 R ,

ENRICO SALERNO , REPRESENTED BY MARCEL SLUSNY , OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT , CENTRE LOUVIGNY , 34/B/IV , RUE PHILIPPE II ,

APPLICANT ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , RAYMOND BAEYENS , ACTING AS AGENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ITS LEGAL ADVISER , MARIO CERVINO , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

1UNDER ARTICLE 83 ( 2 ) OF THE RULES OF PROCEDURE OF THE COURT ANY SUSPENSION OF OPERATION IS SUBJECT TO THE EXISTENCE OF CIRCUMSTANCES GIVING RISE TO URGENCY AND OF GROUNDS ESTABLISHING A PRIMA FACIE CASE FOR SUCH A MEASURE .

2AS TO THE NATURE OF THE MEASURE APPLIED FOR , THE ADMISSION OF THE APPLICANT TO THE TESTS IN QUESTION WOULD AMOUNT NOT TO A SUSPENSION OF THE OPERATION OF THE CONTESTED MEASURE BUT TO A COMPLETE REVERSAL , EVEN THOUGH ONLY PROVISIONAL , SO THAT THE MAIN ACTION WOULD LOSE ITS PURPOSE .

3ACCORDINGLY THE COURT HAS NO JURISDICTION TO ORDER , ON THE BASIS OF A SUSPENSION OF OPERATION OF THE CONTESTED MEASURE OR AS AN INTERIM MEASURE , THE ADMISSION OF THE APPLICANT TO THE TESTS AS ASKED FOR BY HIM IN THE SECOND PART OF HIS CONCLUSIONS BUT ONLY TO ORDER WHERE APPROPRIATE THE SUSPENSION OF THE TESTS FIXED FOR 16 AND 17 JANUARY 1978 PENDING A DECISION ON THE SUBSTANCE OF THE CASE EITHER BY THE COMMISSION OR THE COURT .

4THE APPLICANT HAS CLAIMED THAT THE REFUSAL TO ADMIT HIM IS PRIMA FACIE UNJUSTIFIED .

5IN THIS RESPECT THE CLAIM OF DISCRIMINATION MADE BY HIM IN HIS MAIN ACTION HAS BEEN CONTESTED BY THE COMMISSION WHICH HAS ALLEGED IN THIS RESPECT THAT THE POSITION OF THE OTHER APPLICANTS REFERRED TO BY THE APPLICANT IS NOT COMPARABLE WITH HIS IN SO FAR AS THE OTHER APPLICANTS OPTED FOR ' EXTERNAL RELATIONS ' WHEREAS THE APPLICANT OPTED FOR ' FINANCIAL AND BUDGETARY AFFAIRS ' .

6THE QUESTION WILL THUS ARISE IN THE MAIN ACTION WHETHER THE COURT ' S TASK OF CARRYING OUT A REVIEW OF LEGALITY EXTENDS TO THE DISCRETION EXERCISED BY THE SELECTION BOARD IN RESPECT OF THE RELEVANCE OF A CERTIFICATE OF POST-GRADUATE STUDIES TO JUSTIFY ACCORDING TO THE TERMS OF THE NOTICE OF COMPETITION COM / A/154 PRACTICAL EXPERIENCE IN RELATION TO ONE OR OTHER OF THE FIELDS SELECTED BY THE CANDIDATES .

7IT IS NOT POSSIBLE AT THIS STAGE OF THE PROCEEDINGS TO ANTICIPATE THE COURT ' S DECISION ON THIS QUESTION .

8AS REGARDS THE URGENCY OF THE MEASURE APPLIED FOR THE APPLICANT ALLEGES THAT THE REFUSAL OF THE SELECTION BOARD WILL DEPRIVE HIM OF ANY OPPORTUNITY TO MAKE APPLICATION FOR POSTS WITH THE COMMISSION HAVING REGARD IN PARTICULAR TO HIS AGE .

9THE COMMISSION HOWEVER HAS REFERRED TO THE LETTER DATED 21 DECEMBER 1977 SENT TO THE APPLICANT BY THE CHAIRMAN OF THE SELECTION BOARD IN WHICH THE APPLICANT WAS ADVISED , HAVING REGARD TO HIS EDUCATION AND HIS PRESENT PRACTICAL EXPERIENCE TO SUBMIT HIS APPLICATION FOR A SUBSEQUENT COMPETITION IN THE FIELD OF ' ECONOMY ' AND TO CHOOSE AS HIS OPTION ' INTERNATIONAL ECONOMIC RELATIONS ' .

10SUCH A COMPETITION WOULD PROBABLY BE ORGANIZED IN 1979/1980 , THAT IS TO SAY AT A DATE WHEN THE APPLICANT WILL NOT YET HAVE REACHED THE AGE-LIMIT OF 32 NORMALLY SPECIFIED FOR COMPETITIONS OF THIS KIND .

11ACCORDINGLY , HOWEVER SERIOUS THE CONSEQUENCES OF BEING BARRED , PERHAPS WRONGLY , FROM TAKING PART IN THE TESTS FOR THE PRESENT COMPETITION MAY BE FOR THE APPLICANT , THE DAMAGE WHICH MAY RESULT IS NOT NECESSARILY COMPLETELY IRREPARABLE .

12ON THE OTHER HAND , WEIGHED AGAINST THE APPLICANT ' S POSSIBLE INTEREST IN HAVING THE TESTS SUSPENDED UNTIL THE DECISION IN THE MAIN ACTION , THE INCONVENIENCE WHICH SUCH A MEASURE WOULD CAUSE THE COMMISSION MUST BE TAKEN INTO ACCOUNT .

13IN THIS RESPECT THERE IS NO DOUBT , EITHER FROM THE POINT OF VIEW OF PRINCIPLE OR IN THE PARTICULAR CIRCUMSTANCES OF THE CASE , THAT AN INTERIM ORDER AT THE LAST MOMENT SUSPENDING THE PROCEDURE TAKING PLACE WOULD CAUSE THE COMMISSION VERY SERIOUS DIFFICULTIES IN THE DUE CONDUCT OF THE GENERAL COMPETITIONS FOR WHICH AN EXTRAORDINARY NUMBER OF PERSONS HAVE APPLIED .

14SUCH A SUSPENSION WOULD MOREOVER ALSO INVOLVE SERIOUS INCONVENIENCE TO THE CANDIDATES ADMITTED TO THE COMPETITIONS .

15IN ALL THESE CIRCUMSTANCES IT MUST BE CONCLUDED THAT THE MEASURE ASKED FOR IS NOT JUSTIFIED AND THAT THE APPLICATION MUST THEREFORE BE REJECTED .

COSTS

16AT THE PRESENT STAGE COSTS MUST BE RESERVED .

ON THOSE GROUNDS ,

THE PRESIDENT OF THE SECOND CHAMBER

BY WAY OF INTERLOCUTORY DECISION , HEREBY ORDERS AS FOLLOWS :

1 . THE APPLICATION IS DISMISSED ;

2 . COSTS ARE RESERVED .