61981J0306

1 . PROCEDURE - FRESH ISSUE RAISED IN THE COURSE OF PROCEEDINGS - CONDITIONS - FRESH ISSUE - CONCEPT

( RULES OF PROCEDURE , ART . 42 ( 2 ))

2 . OFFICIALS - RECRUITMENT - SPECIAL RECRUITMENT PROCEDURE - APPLICATION OF THE COMPETITION PROCEDURE NOT MANDATORY

( STAFF REGULATIONS OF OFFICIALS , ART . 29 ( 2 ); ANNEX III )

1 . WHILST ARTICLE 42 ( 2 ) OF THE RULES OF PROCEDURE OF THE COURT PROVIDES THAT NO FRESH ISSUE MAY BE RAISED IN THE COURSE OF PROCEEDINGS UNLESS IT IS BASED ON MATTERS OF LAW OR OF FACT WHICH COME TO LIGHT IN THE COURSE OF THE WRITTEN PROCEDURE , A SUBMISSION WHICH MAY BE REGARDED AS AMPLIFYING A SUBMISSION MADE PREVIOUSLY , DIRECTLY OR BY IMPLICATION IN THE ORIGINAL APPLICATION , MUST HOWEVER BE CONSIDERED ADMISSIBLE .

2.WITHIN THE FRAMEWORK OF THE SPECIAL RECRUITMENT PROCEDURE PROVIDED FOR IN ARTICLE 29 ( 2 ) OF THE STAFF REGULATIONS , THE APPOINTING AUTHORITY IS NOT REQUIRED TO APPLY THE PROVISIONS OF ANNEX III TO THE STAFF REGULATIONS RELATING TO NOTICES OF COMPETITION AND THE FACT THAT THE AUTHORITY HAS REFERRED TO PART OF THOSE RULES CAN IN NO CIRCUMSTANCES BE REGARDED AS CREATING AN OBLIGATION ON ITS PART .

IT MAY THEREFORE APPLY IN THE COURSE OF THAT SPECIAL PROCEDURE CRITERIA WHICH ARE NOT SET OUT IN THE VACANCY NOTICE AS PUBLISHED IN THE OFFICIAL JOURNAL . THAT APPLIES EQUALLY TO A SELECTION COMMITTEE TO WHICH THE APPOINTING AUTHORITY HAS DELEGATED ITS RIGHT OF SELECTION .

THAT APPLIES IN PARTICULAR TO THE REQUIREMENT THAT AN AGE-LIMIT , IF THERE IS ONE , MUST BE INDICATED IN THE VACANCY NOTICE . CONSEQUENTLY THE APPOINTING AUTHORITY IS NOT REQUIRED TO REFER EXPRESSLY TO THAT CONDITION IN THE VACANCY NOTICE , NOR IS IT REQUIRED TO FIX THE AGE-LIMIT ITSELF , BUT IS ENTITLED TO DELEGATE ITS POWER IN THAT RESPECT TO THE SELECTION COMMITTEE .

IN CASE 306/81

CONSTANTIN VERROS , PRESS ATTACHE AT THE GREEK EMBASSY , RESIDING AT 50 , AVENUE DU GENERAL DE GAULLE , 1050 BRUSSELS , REPRESENTED BY JEAN-MARIE TAVERNIER , OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF J . HANSEN , ADVOCATE , 6 RUE PHILIPPE-II ,

APPLICANT ,

V

EUROPEAN PARLIAMENT , REPRESENTED BY MARTIN SCHMIDT , DIRECTOR OF PERSONNEL AND SOCIAL AFFAIRS , ASSISTED BY ALEX BONN , OF THE LUXEMBOURG BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE LATTER ' S CHAMBERS , 22 COTE D ' EICH ,

DEFENDANT ,

APPLICATION FOR THE ANNULMENT OF THE DECISION OF THE SELECTION COMMITTEE OF JULY 1981 NOT TO ACCEPT THE APPLICANT ' S CANDIDATURE FOR THE POST OF HEAD OF THE GREEK LANGUAGE DIVISION IN THE DIRECTORATE-GENERAL FOR INFORMATION AND PUBLIC RELATIONS , IN CHARGE OF THE ATHENS INFORMATION OFFICE ,

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 1 DECEMBER 1981 , CONSTANTIN VERROS , PRESS ATTACHE AT THE GREEK EMBASSY IN BRUSSELS , BROUGHT AN ACTION FOR THE ANNULMENT OF THE DECISION OF THE SELECTION COMMITTEE OF THE EUROPEAN PARLIAMENT OF 7 AUGUST 1981 REFUSING TO CONSIDER HIS CANDIDATURE FOR THE POST OF HEAD OF THE GREEK LANGUAGE DIVISION OF THE DIRECTORATE-GENERAL FOR INFORMATION AND PUBLIC RELATIONS OF THE EUROPEAN PARLIAMENT , IN CHARGE OF THE ATHENS INFORMATION OFFICE , AND , IN ADDITION , FOR THE ANNULMENT OF THE APPOINTMENT OF THE SUCCESSFUL CANDIDATE , WHICH TOOK EFFECT ON 1 JANUARY 1982 .

2 BY VACANCY NOTICE PUBLISHED IN THE OFFICIAL JOURNAL OF 18 JUNE 1981 , THE PARLIAMENT ANNOUNCED ITS INTENTION OF RECRUITING A HEAD OF THE GREEK LANGUAGE DIVISION IN CHARGE OF THE ATHENS INFORMATION OFFICE .

3 THE VACANCY NOTICE INCLUDED A DETAILED DESCRIPTION OF THE DUTIES OF HEAD OF DIVISION AND THE CONDITIONS OF ELIGIBILITY FOR THE VACANT POST . IT SHOULD BE NOTED THAT THE LEGAL BASIS FOR THE PROCEDURE ADOPTED WAS NOT INDICATED AND NO MENTION WAS MADE OF ANY AGE-LIMIT .

4 IN THE COURSE OF ITS OPENING MEETING , THE SELECTION COMMITTEE FIXED THE CRITERIA FOR THE SELECTION OF THE CANDIDATES AND DECIDED , IN PARTICULAR , THAT CANDIDATES MUST BE ' ' BETWEEN 35 AND 50 YEARS OF AGE ( IN OTHER WORDS HAVE BEEN BORN BETWEEN 1 AUGUST 1931 AND 1 AUGUST 1946 ) ' ' .

5 THE APPLICANT , WHO WAS BORN ON 15 APRIL 1947 , SUBMITTED HIS CANDIDATURE TOGETHER WITH 145 OTHER CANDIDATES . AS A RESULT OF THE AGE-LIMIT IMPOSED , THE CHAIRMAN OF THE SELECTION COMMITTEE NOTIFIED THE APPLICANT BY LETTER OF 7 AUGUST 1981 THAT IT HAD DECIDED THAT HIS CANDIDATURE WAS UNACCEPTABLE .

6 THE APPLICANT SUBMITTED A COMPLAINT AGAINST THAT DECISION UNDER ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS , WHICH WAS REJECTED . THE APPLICANT THEN BROUGHT THIS ACTION .

7 IN SUPPORT OF HIS ACTION , THE APPLICANT RELIES ON THREE SUBMISSIONS , THE FIRST OF WHICH ALLEGES AN INFRINGEMENT OF THE FIRST PARAGRAPH OF ARTICLE 5 OF ANNEX III TO THE STAFF REGULATIONS ON THE GROUND THAT THE SELECTION COMMITTEE HAD ADDED THE CONDITION AS TO AGE TO THE CONDITIONS SET OUT IN THE VACANCY NOTICE . THE SECOND SUBMISSION ALLEGES AN INFRINGEMENT OF ARTICLE 1 ( 1 ) ( G ) OF ANNEX III TO THE STAFF REGULATIONS IN VIEW OF THE FACT THAT THE AGE-LIMIT WAS NOT LISTED AS A CONDITION FOR POSSIBLE ADMISSION IN THE VACANCY NOTICE ISSUED BY THE ADMINISTRATION OF THE PARLIAMENT . THE THIRD SUBMISSION ALLEGES AN INFRINGEMENT OF ARTICLE 29 ( 2 ) OF THE STAFF REGULATIONS , ON THE GROUND THAT THE SUBSTANTIVE CONDITIONS FOR THE APPLICATION OF THAT ARTICLE WERE LACKING .

ADMISSIBILITY OF THE SECOND AND THIRD SUBMISSIONS

8 THE PARLIAMENT CONTENDS THAT THE SECOND AND THIRD SUBMISSIONS WHICH WERE FORMULATED FOR THE FIRST TIME IN THE REPLY MUST BE REGARDED AS FRESH ISSUES AND CANNOT THEREFORE BE CONSIDERED BY THE COURT .

9 ARTICLE 42 ( 2 ) OF THE RULES OF PROCEDURE OF THE COURT PROVIDES THAT NO FRESH ISSUE MAY BE RAISED IN THE COURSE OF PROCEEDINGS UNLESS IT IS BASED ON MATTERS OF LAW OR OF FACT WHICH COME TO LIGHT IN THE COURSE OF THE WRITTEN PROCEDURE . HOWEVER , THE COURT OBSERVED IN ITS JUDGMENT OF 30 SEPTEMBER ( CASE 108/81 AMYLUM V COUNCIL ( 1982 ) ECR 3107 ), THAT A SUBMISSION WHICH MAY BE REGARDED AS ' ' AMPLIFYING A SUBMISSION MADE PREVIOUSLY ' ' , DIRECTLY OR BY IMPLICATION IN THE ORIGINAL APPLICATION , MUST BE CONSIDERED ADMISSIBLE .

10 THE COURT NOTES THAT THE SECOND SUBMISSION IS CLOSELY CONNECTED WITH THE FIRST SUBMISSION ALLEGING AN INFRINGEMENT OF THE FIRST PARAGRAPH OF ARTICLE 5 OF ANNEX III TO THE STAFF REGULATIONS , WHICH IS CITED IN THE APPLICATION . IN THOSE CIRCUMSTANCES , THAT SECOND SUBMISSION CONSTITUTES BY IMPLICATION A BRANCH OF THE FIRST SUBMISSION , AND MUST THEREFORE BE REGARDED AS ADMISSIBLE .

11 THE THIRD SUBMISSION HOWEVER APPEARS FOR THE FIRST TIME IN THE REPLY . THE INFRINGEMENT OF ARTICLE 29 ( 2 ) OF THE STAFF REGULATIONS WHICH IT ALLEGES DOES NOT APPEAR EITHER EXPRESSLY OR BY IMPLICATION IN THE APPLICATION .

12 THAT SUBMISSION IS THEREFORE ENTIRELY NEW AND IN CONSEQUENCE INADMISSIBLE .

SUBSTANCE

13 IN SUPPORT OF HIS FIRST TWO SUBMISSIONS , THE APPLICANT CLAIMS THAT THE DISPUTED DECISION CANNOT HAVE BEEN BASED ON THE CRITERION OF AN AGE-LIMIT INASMUCH AS THAT CRITERION WAS NOT MENTIONED IN THE VACANCY NOTICE AND WAS ADDED SUBSEQUENTLY BY THE SELECTION COMMITTEE , WHICH THUS ARBITRARILY ALTERED THE CONDITIONS OF ELIGIBILITY FOR THE VACANT POST .

14 THE PARLIAMENT RAISES THE OBJECTION THAT THE ABOVE-MENTIONED PROVISIONS OF ANNEX III TO THE STAFF REGULATIONS RELATE TO NOTICES OF COMPETITION AND ARE THEREFORE NOT APPLICABLE , SINCE THIS CASE CONCERNS THE EXCEPTIONAL RECRUITMENT PROCEDURE PROVIDED FOR IN ARTICLE 29 ( 2 ) AND NOT THAT OF ARTICLE 29 ( 1 ) OF THE STAFF REGULATIONS . THAT ARTICLE , THE PARLIAMENT STATES , NEITHER DEFINES NOR EXPLAINS THE SPECIAL PROCEDURE WHICH IT AUTHORIZES AND LEAVES THE CHOICE OF THE MOST APPROPRIATE MEANS FOR FILLING THE VACANT POST TO THE APPOINTING AUTHORITY . IN THOSE CIRCUMSTANCES , THE PROCEDURE APPLIED WAS NOT SUBJECT TO ANY OBLIGATION AS TO PRIOR PUBLICATION EITHER OF ALL OR ANY OF THE CRITERIA APPLICABLE .

15 IT APPEARS FROM THE FILE THAT THE RECRUITMENT PROCEDURE APPLIED IN THIS CASE IS INDEED THE SELECTION PROCEDURE PROVIDED FOR IN ARTICLE 29 ( 2 ) AND NOT THE COMPETITION PROCEDURE PROVIDED FOR IN ARTICLE 27 OR 29 ( 1 ) AND GOVERNED BY ANNEX III TO THE STAFF REGULATIONS . THERE ARE NO GROUNDS ON WHICH THE COURT MAY QUESTION THE PARLIAMENT ' S RIGHT TO APPLY THE PROCEDURE SELECTED IN THIS CASE .

16 WITHIN THE FRAMEWORK OF THAT SPECIAL PROCEDURE , THE APPOINTING AUTHORITY IS NOT REQUIRED TO APPLY THE PROVISIONS OF ANNEX III TO THE STAFF REGULATIONS RELATING TO NOTICES OF COMPETITION . IT MAY THEREFORE APPLY IN THE COURSE OF THE PROCEDURE CRITERIA WHICH ARE NOT SET OUT IN THE VACANCY NOTICE AND SUCH CRITERIA NEED NOT BE PUBLISHED IN THE OFFICIAL JOURNAL . THAT APPLIES EQUALLY TO A SELECTION COMMITTEE TO WHICH THE APPOINTING AUTHORITY HAS DELEGATED ITS RIGHT OF SELECTION .

17 MOREOVER , AS REGARDS THE APPLICANT ' S ARGUMENT TO THE EFFECT THAT THE APPOINTING AUTHORITY IS REQUIRED TO OBSERVE ALL THE RULES OF ANNEX III IN CONNECTION WITH THE COMPETITION BECAUSE , IN APPLYING THE SPECIAL PROCEDURE OF ARTICLE 29 ( 2 ) OF THE STAFF REGULATIONS , IT RELIED HEAVILY ON THOSE RULES , IT SHOULD BE OBSERVED THAT IN THIS CASE SUCH AN ARGUMENT IS NOT VALID , PRINCIPALLY BECAUSE , UNDER THAT PROCEDURE , THERE IS NO OBLIGATION TO OBSERVE THE RULES RELATING TO COMPETITIONS , AND BECAUSE THE FACT THAT THE APPOINTING AUTHORITY REFERRED TO PART OF THOSE RULES CAN IN NO CIRCUMSTANCES BE REGARDED AS CREATING AN OBLIGATION ON ITS PART .

18 THAT APPLIES IN PARTICULAR TO THE REQUIREMENT THAT AN AGE-LIMIT , IF THERE IS ONE , MUST BE INDICATED IN THE VACANCY NOTICE . CONSEQUENTLY THE APPOINTING AUTHORITY WAS NOT REQUIRED TO REFER EXPRESSLY TO THAT CONDITION IN THE VACANCY NOTICE ; NOR WAS IT REQUIRED TO FIX THE AGE-LIMIT ITSELF BUT WAS ENTITLED TO DELEGATE ITS POWER IN THAT RESPECT TO THE SELECTION COMMITTEE .

19 IT FOLLOWS THAT NEITHER OF THE SUBMISSIONS IS WELL FOUNDED AND THAT THE APPLICATION MUST BE DISMISSED .

COSTS

20 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE , THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . HOWEVER , ACCORDING TO THE SECOND SUBPARAGRAPH OF ARTICLE 69 ( 3 ), THE COURT MAY ORDER EVEN A SUCCESSFUL PARTY TO PAY COSTS WHICH THE COURT CONSIDERS THAT PARTY TO HAVE UNREASONABLY OR VEXATIOUSLY CAUSED THE OPPOSITE PARTY TO INCUR .

21 IT SHOULD BE NOTED THAT THIS ACTION RESULTS FROM THE FACT THAT THE PARLIAMENT FAILED TO INDICATE IN THE NOTICE OF COMPETITION THAT IN THE CASE IN QUESTION THE SPECIAL RECRUITMENT PROCEDURE PROVIDED FOR IN ARTICLE 29 ( 2 ) OF THE STAFF REGULATIONS WAS TO BE APPLIED .

22 IN PROCEEDING AS IT DID , IT PROVOKED AN UNDERSTANDABLE ERROR ON THE PART OF THE APPLICANT AND CAUSED HIM TO INCUR THE EXPENSE OF AN ACTION TO NO AVAIL . IT MUST THEREFORE BE ORDERED TO PAY THE APPLICANT ' S COSTS .

ON THOSE GROUNDS ,

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION :

2.ORDERS THE PARLIAMENT TO PAY THE COSTS OF THE PROCEEDINGS INCLUDING THOSE OF THE APPLICANT .