61974J0079

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1 . OFFICIALS - RECRUITMENT - NOTICE OF VACANT POST - ELIGIBILITY FOR POST - CONDITIONS - OFFICIALS ELIGIBL FOR TRANSFER OR PROMOTION - APPLICATION EXCLUDED - ACT ADVERSELY AFFECTING SUCH OFFICIALS

( STAFF REGULATIONS, ARTICLE 29 ( 1 ) ( A ))

2 . OFFICIALS - RECRUITMENT - POST - POST RESERVED FOR NATIONALS OF A SPECIFIC MEMBER STATE - PROHIBITION - SPECIFIC ABILITIES - REQUIREMENT IN THE INTEREST OF THE SERVICE - PERMISSIBILITY

( STAFF REGULATIONS, ARTICLE 27 )

3 . OFFICIALS - RECRUITMENT - CONDITIONS - THOROUGH KNOWLEDGE OF A LANGUAGE - REQUIRED LEVEL OF KNOWLEDGE

( STAFF REGULATIONS, ARTICLE 27 )

1 . TO THE EXTENT TO WHICH THE CONDITIONS FOR APPOINTMENT TO A POST DEFINED BY THE VACANCY NOTICE HAVE THE EFFECT OF EXCLUDING THE APPLICATIONS OF OFFICIALS ELIGIBLE FOR TRANSFER OR PROMOTION, THE VACANCY NOTICE AMOUNTS TO AN ACT ADVERSELY AFFECTING THOSE OFFICIALS .

2 . WHILST THE STAFF REGULATIONS PROHIBIT THE RESERVING OF A POST FOR NATIONALS OF A SPECIFIC MEMBER STATE, THE APPOINTING AUTHORITY MAY NEVERTHELESS MAKE ITS SELECTION, WHEN RECRUITING AN OFFICIAL, DEPENDING UPON SPECIFIC KNOWLEDGE REQUIRED IN THE INTERESTS OF THE SERVICE .

3 . WHERE A 'THOROUGH' KNOWLEDGE OF A LANGUAGE, OTHER THAN THAT OF THE MOTHER-TONGUE, IS REQUIRED FOR ULTIMATE APPOINTMENT, THE LEVEL OF KNOWLEDGE REQUIRED MUST BE ONE APPROPRIATE TO THE ACTUAL REQUIREMENTS OF THE SERVICE .

IN CASE 79/74

BERTHOLD KUESTER, AN OFFICIAL OF THE EUROPEAN PARLIAMENT RESIDING AT BERTRANGE ( LUXEMBOURG ), REPRESENTED BY VICTOR BIEL, ADVOCATE OF THE COUR SUPERIEURE DE JUSTICE OF THE GRAND DUCHY OF LUXEMBOURG, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF HIS COUNSEL, 18A, RUE DES GLACIS, APPLICANT,

AND

EUROPEAN PARLIAMENT, LUXEMBOURG, REPRESENTED BY ITS SECRETARY GENERAL, HANS NORD, ACTING AS AGENT, ASSISTED BY ALEX BONN, ADVOCATE OF THE LUXEMBOURG BAR, WITH AN ADDRESS FOR SERVICE AT THE CHAMBERS OF ITS COUNSEL, 22, COTE D'EICH, DEFENDANT,

APPLICATION FOR THE ANNULMENT OF VACANCY NOTICE NO 1059 OF 12 MARCH 1974,

1 BY APPLICATION OF 28 OCTOBER 1974 AN ACTION WAS BROUGHT BEFORE THE COURT UNDER ARTICLE 91 OF THE STAFF REGULATIONS OF OFFICIALS FOR THE ANNULMENT OF VACANCY NOTICE NO 1059 OF 12 MARCH 1974 .

2 THE APPLICANT IN SUPPORT OF THIS APPLICATION SUBMITS IN PARTICULAR THAT THE 'THOROUGH KNOWLEDGE OF ENGLISH' REQUIRED BY THE NOTICE IN QUESTION AMOUNTS TO A DISGUISED MEANS OF RESERVING THE VACANT POST FOR A PARTICULAR NATIONALITY .

3 HE STATES THAT FOR THIS REASON THE NOTICE IN QUESTION RENDERS THE COMPARATIVE EXAMINATION OF MERITS OF ALL THE OFFICIALS ELIGIBLE FOR PROMOTION DEVOID OF ANY MEANING AND INFRINGES ARTICLES 29 ( 1 ) ( A ) AND 45 OF THE STAFF REGULATIONS .

ADMISSIBILITY

4 THE DEFENDANT ALLEGES THAT THE ACTION IS INADMISSIBLE ON THE GROUND THAT THE VACANCY NOTICE IN QUESTION DOES NOT AMOUNT TO AN ACT ADVERSELY AFFECTING THE APPLICANT WITHIN THE MEANING OF ARTICLE 91 ( 1 ) OF THE STAFF REGULATIONS, ALL THE MORE SO SINCE IT DID NOT PREVENT THE APPLICANT FROM SUBMITTING HIS APPLICATION FOR THE VACANT POST .

5 THE VACANCY NOTICE, PUBLISHED IN PURSUANCE OF ARTICLE 29 ( 1 ) ( A ) OF THE STAFF REGULATIONS, MAKES CLEAR WHICH OFFICIALS MAY APPLY, BY DEFINING THE CONDITIONS RELATING TO ELIGIBILITY FOR THE POST .

6 TO THE EXTENT TO WHICH THESE CONDITIONS HAVE THE EFFECT OF EXCLUDING THE APPLICATIONS OF OFFICIALS ELIGIBLE FOR TRANSFER OR PROMOTION THE VACANCY NOTICE AMOUNTS TO AN ACT ADVERSELY AFFECTING THOSE OFFICIALS .

7 IN THE APPLICANT'S VIEW THIS IS PRECISELY THE CASE HERE, SINCE THE VACANCY NOTICE IN QUESTION SETS OUT A CONDITION FOR APPOINTMENT TO THE POST, BASED ON THE LINGUISTIC ABILITY OF THE APPLICANTS, WHICH HAS THE EFFECT OF EXCLUDING HIS APPLICATION AND OF AFFECTING HIS ELIGIBILITY FOR PROMOTION .

8 THE OBJECTION OF INADMISSIBILITY MUST THEREFORE BE REJECTED .

9 THE DEFENDANT ALSO CONTESTS THE ADMISSIBILITY OF THE ACTION ON THE GROUND THAT THE APPLICANT ON 19 FEBRUARY 1975 BROUGHT A FRESH ACTION - REGISTERED AT THE COURT UNDER NUMBER 22/75 - AGAINST THE NOTICE OF INTERNAL COMPETITION NO A/50 .

10 IN THIS RESPECT IT ARGUES THAT SINCE THE INTERNAL COMPETITION A/50 HAD THE PURPOSE OF FILLING, WITHIN THE FRAMEWORK OF ONE AND THE SAME RECRUITING PROCEDURE, THE SAME POST AS THAT REFERRED TO BY THE VACANCY NOTICE IN QUESTION, APPLICATION 22/75 RENDERS THE PRESENT ACTION DEVOID OF PURPOSE .

11 WHILST APPLICATION 22/75 AND THE PRESENT ACTION RELATE TO THE SAME RECRUITING PROCEDURE, THEY NEVERTHELESS DEAL WITH TWO DISTINCT STAGES OF THIS PROCEDURE, EACH OF THEM INVOLVING DIFFERENT METHODS OF FILLING THE POST, THAT IS TO SAY BY TRANSFER OR PROMOTION IN ONE CASE AND BY INTERNAL COMPETITION IN THE OTHER .

12 SINCE THE TWO ACTIONS HAVE DIFFERENT PURPOSES THE OBJECTION OF INADMISSIBILITY RAISED BY THE DEFENDANT MUST BE REJECTED .

SUBSTANCE

13 ACCORDING TO THE ENGLISH VERSION OF THE VACANCY NOTICE IN QUESTION, AMONGST THE CONDITIONS FOR APPOINTMENT TO THE POST IT IS STATED THAT 'FOR PRACTICAL REASONS, A THOROUGH KNOWLEDGE OF ENGLISH IS REQUIRED '.

14 THE APPLICANT ARGUES THAT SUCH A CONDITION IS NOT JUSTIFIED FOR REASONS RELATING TO THE RUNNING OF THE SERVICE BUT AMOUNTS TO A DISGUISED METHOD OF RESERVING THE POST IN QUESTION FOR A PARTICULAR NATIONALITY .

15 FOR THIS REASON THE NOTICE IN QUESTION IS ALLEGED TO INFRINGE THE LAST PARAGRAPH OF ARTICLE 27 OF THE STAFF REGULATIONS UNDER THE PROVISIONS OF WHICH : 'NO POST SHALL BE RESERVED FOR NATIONALS OF ANY SPECIFIC MEMBER STATE '.

16 WHILST THE STAFF REGULATIONS PROHIBIT THE RESERVING OF A POST FOR NATIONALS OF A SPECIFIC MEMBER STATE, THE APPOINTING AUTHORITY MAY NEVERTHELESS MAKE ITS SELECTION, WHEN RECRUITING AN OFFICIAL, DEPENDANT UPON SPECIFIC KNOWLEDGE REQUIRED IN THE INTERESTS OF THE SERVICE .

17 IN THE PRESENT CASE THE SPECIAL NATURE OF THE TASKS DEVOLVING ON THE SECRETARIATS OF THE PARLIAMENTARY COMMITTEES WHICH HAVE THE TASK OF ASSISTING THE MEMBERS OF THESE COMMITTEES IN THEIR WORK, MAY JUSTIFY A RECRUITMENT BASED INTER ALIA ON A THOROUGH KNOWLEDGE OF THE NATIONAL LANGUAGES USED BY SUCH MEMBERS BELONGING TO THE NATIONAL PARLIAMENTS OF THE MEMBER STATES .

18 MORE SPECIFICALLY, THE RECRUITMENT OF AN OFFICIAL HAVING A THOROUGH KNOWLEDGE OF ENGLISH MAY CORRESPOND TO THE REQUIREMENTS OF THE SERVICE RESULTING FROM THE ACCESSION TO THE COMMUNITY OF THE NEW MEMBER STATES .

19 THE INFORMATION APPEARING IN THE WRITTEN PLEADINGS AND THAT FURNISHED IN THE COURSE OF THE ORAL PROCEDURE DO NOT MAKE IT POSSIBLE TO ARRIVE AT THE CONCLUSION THAT IN THE PRESENT CASE THE RECRUITMENT OF AN OFFICIAL HAVING A THOROUGH KNOWLEDGE OF THE ENGLISH LANGUAGE IS UNJUSTIFIED HAVING REGARD TO THE NATURE AND CHARACTERISTICS OF THE VACANT POST OR THE REQUIREMENTS OF THE SERVICE .

21 MOREOVER IT IS SHOWN BY THE OTHER 'QUALIFICATIONS AND KNOWLEDGE' SPECIFIED THAT THE THOROUGH KNOWLEDGE OF ENGLISH DOES NOT CONSTITUTE THE ONLY CRITERION DETERMINING THE CHOICE OF THE CANDIDATE TO BE APPOINTED .

22 ON THE CONTRARY, THE VACANCY NOTICE IN QUESTION ALLOWS IT TO BE UNDERSTOOD THAT SINCE SUCH A CHOICE CAN ONLY RESULT FROM THE TAKING INTO CONSIDERATION OF SEVERAL FACTORS WHICH ARE THEMSELVES JUSTIFIED IN THE INTEREST OF THE SERVICE, THE APPOINTING AUTHORITY MUST IN ASSESSING THE LEVEL OF THE CANDIDATE'S LINGUISTIC ABILITY TAKE INTO ACCOUNT BOTH THE ACTUAL NEEDS OF THE SERVICE AND THE MANNER IN WHICH SUCH CANDIDATE SATISFIES THE OTHER CONDITIONS FOR APPOINTMENT .

23 THE APPLICATION MUST THEREFORE BE DISMISSED .

24 UNDER THE TERMS OF ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .

25 THE APPLICANT HAS FAILED IN HIS ACTION .

26 HOWEVER, UNDER THE TERMS OF ARTICLE 70 OF THE SAID RULES, THE COSTS INCURRED BY INSTITUTIONS IN ACTIONS BROUGHT BY SERVANTS OF THE COMMUNITIES ARE TO BE BORNE BY SUCH INSTITUTIONS .

ON THOSE GROUNDS,

THE COURT ( FIRST CHAMBER )

HEREBY

1 . DISMISSES THE APPLICATION;

2 . ORDERS EACH PARTY TO BEAR ITS OWN COSTS .