The applicant argues that the meaning of Article 7 (2), first sentence, of the Staff Regulations, under the terms of which an official may be called upon to occupy temporarily a post… is not clear. Article 25, third paragraph, of the Staff Regulations, which lays down in an exhaustive fashion the relevant provisions as to appointment, establishment, promotion, transfer, determination of administrative status and termination of service of an official, contains no reference to a decision as to temporary posting under Article 7 (2). This means that notwithstanding the ambiguous wording of this provision, temporary posting is a matter of fact, not requiring to be incorporated in a formal ad hoc decision. In the event the applicant had found himself de facto instructed to carry out tasks entrusted to his superior; he had been given charge of the Secretariat of the Committee on Public Health and the Environment after the previous holder of that post had been promoted. A formal ad hoc decision was not therefore necessary at the time. The situation that had thus come about had been evident to all the officials concerned. It follows that the applicant was entitled to the differential allowance under Article 7 (2), second sentence, as from the moment that he had in fact carried out temporarily the functions of Secretary of the aforementioned Committee.

The defendant considers the first claim in the action to be inadmissible. If one considers that the applicant had by his letter of 26 November 1973 made a request within the meaning of Article 90 (1) of the Staff Regulations with a view to obtaining a decision entrusting him with the temporary occupancy of the post of Secretary to the Committee on Public Health and the Environment, then the reply of the Secretary-General of 4 March 1974 was given within the timelimit of four months laid down. It is only against this decision that Mr Küster could make a complaint within the meaning of Article 90 (2) of the Staff Regulations. The complaint which as from 22 February he in fact made against the failure to pay him the differential allowance under Article 7 (2) did not relate to the decision asked for and was also premature since it was in advance of the decision that was in fact made. Accordingly the complaint is inadmissible. It follows that the action before the Court is in turn inadmissible since it was not preceded by a valid complaint within the meaning of Article 90 (2) of the Staff Regulations. If one accepts the applicant's argument that interim posting constitutes a de facto situation, of a kind that confers on him the right to the differential allowance without a formal decision of the administration, then the complaint of 22 February constitutes the first procedural act necessary to ensure the admissibility of an action before the Court. On this assumption the action would still be inadmissible because the complaint of 22 February would have to have been the subject-matter of an express or implied decision of rejection. The letter of 4 March 1974 from the Secretary-General cannot be treated as such, since it relates to Mr Küster's requests of 26 November 1973 and 13 February 1974. Consequently, on this reasoning also, the action is premature and therefore inadmissible.

On the merits, the defendant points out that from the wording of Article 7 (2), first sentence, it follows that temporary appointments must be the result of a formal act on the part of the appointing authority, this being an interpretation confirmed by the Court in its judgment of 16 March 1971 in Case 48/70, Bernardi v European Parliament, Rec. 1971, p. 175. Accordingly the payment of the differential allowance can only take place on the basis of an ad hoc act. The administration has a discretionary power in the matter which cannot be the subject matter of an action under Article 91 (1) of the Staff Regulations. Accordingly it was entitled to leave the post in question unfilled whilst awaiting the results of the internal competition A/43.

The applicant denies that his letters of 26 November 1973 to Mr Pasetti-Bombardella and of 13 February 1974 to the Secretary-General amounted to requests within the meaning of Article 90 (1) of the Staff Regulations.

These two letters only amount to an exchange of correspondence with the administration, since the only authority competent in matters of temporary appointments in Category A is the President of the European Parliament. Accordingly, since no time-limit is prescribed as regards correspondence with the administration, the applicant's complaint of 22 February 1974 is admissible. The bringing of an action before the Court of Justice before the time-limit for the appointing authority to adopt a position in the matter had expired is justified by the fact that Mr Küster had presented an application for interim measures on 25 March 1974. Since this request was declared admissible by the President of the First Chamber of the Court of Justice in his order of 28 March 1974, it is appropriate to apply the rule of Article 91 (4) of the Staff Regulations according to which the proceedings in the principal action before the Court of Justice shall be suspended until such time as an express or implied decision rejecting the complaint is taken. Since the time-limit for replying to the complaint of 22 February 1974 expired on 23 June 1974, the admissibility of the action as regards the temporary posting is not subject to doubt.

The applicant argues that he had been instructed by his immediate superior, who had just been promoted, to direct, as head of the department, the Secretariat of the Committee on Public Health and the Environment. The applicant thereupon carried out these functions for eight and a half months until 20 May 1974. It follows that the administration had used the provision of Article 7 (2). It is evident that the defendant ought to assume the financial obligations that result from the de facto temporary posting. As from the moment when the applicant was instructed by his superior to exercise the superior functions of head of the department, he was entitled to the differential allowance. In this matter the Parliament no longer has any discretionary power.

The defendant replies that the legal effect of Mr Küster's letters of 26 November 1973 and 13 February 1974 ought to be deduced not from the authority to which they were addressed but from their content. It is common ground that by means of these letters Mr Küster asked to be temporarily appointed in accordance with Article 7 (2) of the Staff Regulations, a request within the meaning of Article 90 (1) of the Staff Regulations. It matters little who is the addressee because in any event Article 90 (3) provides that requests on the part of officials to which Article 90 (1) relates must be submitted through the immediate superior. Besides, it is shown by the wording of the complaint of 22 February 1974 that the applicant himself considered the aforementioned letters as requests within the meaning of Article 90 (1).

Even if one were to consider the correspondence of 26 November 1973 and 13 February 1974 as not amounting to a request within the meaning of Article 90 (1), the complaint is still inadmissible. Under the provisions of Article 80 (2) of the Staff Regulations the complaint must be submitted against an act adversely affecting him either where the authority has taken a decision or where it has failed to adopt a measure prescribed by the Staff Regulations. The second hypothesis is the one adduced by the applicant. But if there had been no requests there could have been no complaint against a wrongful failure on the part of the authority to recognize the temporary appointment. As regards the non-payment of the allowance, the action cannot avoid being inadmissible by relying on the application for interim measures of 25 March 1974 and on Article 91 (4) of the Staff Regulations. That application only relates to the second head of claim, that is to say for annulment of the five appointments. Accordingly one cannot rely on this application for interim measures with a view to curing the premature nature of the proceedings insofar as the temporary posting is concerned.

On the merits the defendant further points out that it is clear from the letters of 26 November 1973 and 13 February 1974 and from the complaint of 22 February 1974 that the applicant himself considered that the situation would only be regularized after he had obtained a formal ad hoc decision from the administration. This attitude is exactly in line with the Court's case-law on Article 7 (2).

Since the differential allowance is only a consequence of the temporary posting, it is dependent on the decision under Article 7 (2), first sentence. It is from the date when that administrative act has taken place that the fourth month, as from which the indemnity is due, is calculated.

According to the applicant one ought in the first place to examine the question of the intrinsic legality of the internal competition A/43 which replaced the Notice of Vacancy No 875. By this Notice of Vacancy the appointing authority had promised in the first instance to fill the vacancies by promotion or transfer within the institution. An applicant who fulfilled all the conditions for promotion to one of the vacant posts had an interest in the administration proceeding according to the procedure laid down by Article 29 (1) (a) of the Staff Regulations. It follows from the Court's case-law (Judgment of 4 March 1964 in Case 15/63, Lassalle v European Parliament, [1964] ECR 31) that this procedure could not be abandoned before the administration had exhausted all possibilities. Now in the present case there is nothing to suggest that the authority had completely examined the possibilities of proceeding by way of promotion. Moreover the decision by which the administration opened internal competition A/43 contained no indication justifying the abandonment of the method originally envisaged by Notice of Vacancy No 875. This is why the opening of the internal competition A/43 is illegal and ought to be annulled, along with the five appointments in question. In the alternative the applicant argues that the internal competition A/43 had taken place in an irregular manner. He expresses doubts as to the criteria for selection applied by the Selection Board, which he says had no relation to the interests of the service. In this sense they are contrary to Article 7 (1) of the Staff Regulations. Moreover, the procedure was not in accordance with the imperative requirements of Article 45 of the Staff Regulations requiring a consideration of the comparative merits of the reports. It is for this reason that the applicant argues that the other side ought to produce all the documents in support of the list of suitable candidates for the vacant posts, including the list itself and if necessary, the last annual reports of the candidates who were promoted.

The defendant wonders whether the complaint which commences the administrative stage of the action ought not already to set out in a summary form the allegations of illegality on which the action will be based. In this respect the defendant draws attention to the fact that having found that the complaint of 7 March 1974 did not indicate any grounds of illegality, it had by its (administrative) decision of 14 March invited Mr Küster to detail his complaint more fully. He in fact submitted these details by letter of 18 March 1974, whilst pointing out that the secret nature of the Selection Board's actions rendered his task difficult. In the light of this supplementary document, the administrative stage has not finished, as the decision of 14 March 1974 expressly declared. The applicant ought therefore to have awaited the definitive decision of the appointing authority before placing the matter before the Court.

The defendant states that it observed the provisions of Article 29 of the Staff Regulations when in the first place it conducted an examination of the possibilities of promotion and transfer under Article 29 (1) (a). Notice of Vacancy No 875 clearly indicated that the President of the European Parliament envisaged filling the vacant post in the first place by promotion or transfer. Only after it had become apparent that this first stage of the procedure could not produce satisfactory results did the authority proceed to the second stage under Article 29 (1) (b) by publishing Notice of internal competition A/43 of 23 November 1973. The applicant cannot therefore argue that the authority started the second stage of the procedure of Article 29 without having exhausted the first. Statements of Mr Küster on this point are contradicted by the correspondence between him and the President of 5 October 1973, 23 November 1973 and 20 December 1973.

Besides, no proof can be asked of the administration insofar as relates to details of the examination which it must undertake during the first stage of the procedure of Article 29 (1). The examination in question forms part of the discretionary power with which the administration is endowed and which concerns the possibilities available to it by the first stage of the procedure.

The defendant declares itself prepared to produce the list of suitable candidates agreed by the Selection Board in the course of its functions, as well as the reasoned report under Article 5, last paragraph, of Annex III of the Staff Regulations and the marks obtained by Mr Küster in the competition. However, the defendant does not consider itself authorized to divulge the marks obtained by other candidates or their reports. It is emphasized that Mr Küster was not entered on the list of suitable candidates under Article 30 of the Staff Regulations. Consequently the appointing authority could not have upheld Mr Küster's candidature.

The criticism of the criteria adopted by the Selection Board must be considered inadmissible. Under the provisions of Article 5 of Annex III of the Staff Regulations the Selection Board shall, whilst adhering to the requirements of the notice of competition, determine how the candidates' qualifications are to be assessed. In this task it enjoys a full discretionary power. Besides, the criteria adopted and their assessment are in accordance with the notice of competition and do not reveal irregularity of a kind that could tend to lay the legality of the procedure open to question.

The applicant points out that the letter of 14 March from the President of the European Parliament constitutes a reply to his complaint of 23 February 1974. It emerges clearly from the originating application of 19 March 1974 that he had considered the letter of 14 March 1974 as a reply amounting to a rejection of his complaint. The applicant's letter of 18 March, furnishing certain supplementary details in support of his complaint, is equally clear in this respect. The defendant's theory that the complaint already ought to contain in summary fashion the arguments upon which the action is based has no legal basis in the Staff Regulations. Besides, given the fact that the applicant has no access to the documents in question, it would have been impossible for him to formulate these grounds at the administrative stage of the action.

On the main issue, the applicant again stresses that the transition from the first to the second stage of procedure under Article 29 of the Staff Regulations ought to take place by way of a formal document, stating the reasons why it had not been possible to fill the vacant posts by promotion or transfer within the institution. In the event, the recourse which was had to an internal competition amounts to a misuse of powers. In this respect the reasons which in the applicant's view ought to have resulted in his promotion to head of division are recapitulated as:

On a more general aspect, the opening of internal competition A/43 is also tainted by irregularities, in particular in that it contravenes Article 45 of the Staff Regulations which provides that officials in order to be eligible for promotion shall have completed a minimum period in their grade. On this point the applicant affirms that the other side intended to take an option on certain candidates amongst the temporary officials attached to the political secretariats of the European Parliament.

The applicant refutes the department's argument that the Selection Board for a competition has an unfettered discretionary power. On the contrary, the Selection Board is tied to well-defined legal rules which must be meticulously observed. The other side's thesis would result in the Selection Board's work escaping any judicial control. In fact the Court necessarily possesses a power of control which does not stop at secret deliberations of the Selection Board.

Having stressed that he insists upon the defendant producing all the documents asked for, the applicant then proceeds to an examination of the documents furnished. Taking them in the same order as the various criteria adopted by the Selection Board, he makes the following observations:

This criterion is to the disadvantage of all officials, including the applicant, who have more than 10 years of seniority in Category A.

Here the same remarks apply as in the case of Criterion No 1.

Since this criterion has nothing to do with merit it is misplaced. Since the average age of the candidates who entered for the competition is approximately 35, this criterion might favour a particular candidate.

Although this criterion is not convincing — it might be used to give an advantage to certain predetermined candidates — it does not lend itself to a priori criticism.

The applicant, who is a holder of a university diploma, wonders why the Selection Board awarded him only 4 points. The applicant considers that he was discriminated against in the light of the criteria adopted in Notice of Vacancy A/43. Besides, one wonders why the Selection Board ignored equivalent professional experience.

On this point one wonders what particular studies can be meant here. Since the competition involved 5 different posts, a fair application on comparable bases is impossible.

The applicant notwithstanding his excellent reports only obtained 7.5 points whilst two candidates in respect of whom no report existed were given 7 points for reasons of equity. On the other hand, two other candidates who had no report had received no points. Such examinations cannot be taken seriously.

The application of this criterion provides the best proof of misuse of powers. According to the documents submitted by the other side Mr Küster received no points on the basis of this criterion, whilst he could lay claim to three years' professional activity in different posts in German industry. Besides, this criterion of necessity distorts the results of the competition because by virtue of its application candidates who entered the service of the Community institutions either immediately after their studies, or a short time subsequently, would necessarily be at a disadvantage when compared with those who recently came to the institutions. The applicant wonders on what basis the Selection Board could judge these previous activities. He concludes that this criterion had been made to measure with a view to eliminating those candidates having a long professional experience with the institutions.

The applicant, who obtained 4 points, states that this mark contradicts his report.

Here the same observations apply as in the case of the previous criterion.

To apply these criteria amounts to a virtual competition based on oral tests and accordingly contravenes the Notice of competition A/43 which only provides for an internal competition based on qualifications. It is acceptable for the Selection Board to see the candidates and have an interview with them but it is illegal to transform this interview into a verification of knowledge, marked 0 to 10 points, in relation to these two criteria.

The applicant arrives at the conclusion that he could have received at least between 12 and 15 points more and on the basis of these he would very probably have been promoted. It is regrettable that the Selection Board did not take into consideration the most logical criterion in the matter: professional experience acquired in the post to be filled. One is forced to conclude that the selection of the candidates constitutes a misuse of powers rendering void all the Selection Board's activities.

Finally, the applicant affirms that the Selection Board was not appointed by the appointing authority. Under Article 30 of the Staff Regulations the Selection Board shall be appointed by the appointing authority. It follows from the decision of 12 December 1962 of the Bureau of Parliament that in relation to officials in Category A the powers under Article 30 of the Staff Regulations are reserved to the President of Parliament. According to its report the Selection Board had been appointed by the Secretary-General of Parliament, i.e. in violation of the decision of 12 December 1962 and accordingly of Article 30 of the Staff Regulations. Since the appointment of the Selection Board was made by an authority lacking competence, it must therefore be considered null and void. The results of the Selection Board's labours are therefore of no value.

The defendant repeats its observations on the inadmissibility of the second head of claim. On the merits, the defendant states that it is not in a position to produce the documents the production of which is requested by the applicant. As regards the alleged failure to observe Article 29 (1) (a) of the Staff Regulations it is pointed out that this provision only obliges the administration to consider whether the post can be filled by promotion or transfer without there being any legal requirement that a document on this subject has to be drawn up.

As regards the detailed discussion which the applicant undertook in his reply of the factors of assessment which appear in the Selection Board's report, the defendant points out that the Court cannot be called upon either to repeat the Selection Board's work or to substitute its own assessment for that of the Selection Board. The Court's power amounts to no more than verification of the legality of the competition procedure. It is denied that the Selection Board, in its competition based on qualifications, conducted oral tests. It interviewed the candidates with a view to verifying the qualifications put forward by the candidates. Such verification is perfectly permissible and is not sufficient to characterize the competition as a competition based on tests.

The appointment of the Selection Board by the Secretary-General of Parliament is correct since it follows from the decision relating to the determination of appointing authorities taken by the Bureau of the European Parliament in the course of its meeting of 7/8 October 1971.