JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL (First Chamber)

5 December 2012

Case F‑29/11

BA

v

European Commission

(Civil service — Open competition — Notice of competition EPSO/AD/147/09 — Constitution of a reserve list for the recruitment of administrators of Romanian citizenship — Thorough knowledge of the official language of Romania — Hungarian-language minority in Romania — Non-admission to the oral test — Principles of equal treatment and non-discrimination — Scope)

Application: Action brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, whereby BA seeks annulment of the decision of the Director of the European Personnel Selection Office (EPSO) of 10 December 2010 rejecting his complaint and of the decision of the selection board for competition EPSO/AD/147/09 not to admit him to the oral test in the competition.

Held: The action is dismissed. BA is to bear his own costs and is ordered to pay those incurred by the Commission.

Summary

1.      Actions brought by officials — Action brought against a decision not to admit a candidate to the tests in a competition — Possibility of relying on the irregularity of the notice of competition

(Staff Regulations, Arts 90 and 91)

2.      Officials — Competitions — Conduct of an open competition — Languages for participation in the tests — Equal treatment — Scope — Constitution of a reserve list for the recruitment of administrators having the citizenship of a new Member State — Requirement of a thorough knowledge of the national language of that State — Lawfulness

(Council Regulations No 1 and No 1760/2006)

1.      In the light of the special nature of the recruitment procedure, which is a complex administrative operation composed of a series of closely-linked decisions, an applicant is entitled to rely on irregularities occurring in the course of the competition, even if the origin of those irregularities may be found in the wording of the competition notice itself, in an action against a subsequent individual decision, such as a decision not to admit him to the tests. In such a procedure, an applicant cannot be required to bring an action against each act in the procedure that is capable of adversely affecting him.

A competition notice may also, exceptionally, be the subject of an action for annulment where, by imposing conditions excluding the applicant’s candidature, it constitutes a decision adversely affecting him within the meaning of Articles 90 and 91 of the Staff Regulations.

(see paras 39-40, 42)

See:

11 August 1995, C‑448/93 P Commission v Noonan, paras 17 and 19

14 April 2011, F‑82/08 Clarke and Others v OHIM, para. 79

2.      There is a breach of the principle of equal treatment, which is applicable to the law of the European Union civil service, where two categories of persons in the service of the Union whose factual and legal situations are not essentially different are treated differently and such a difference in treatment is not objectively justified.

That does not apply when the administration, on the basis of Regulation No 1760/2006 introducing, on the occasion of the accession of Bulgaria and Romania to the European Union, special temporary measures for recruitment of officials of the European Communities, organises a competition open to Romanian nationals which, in the interest of the service, requires that candidates have a thorough knowledge of their national language, namely Romanian, within the meaning of Regulation No 1 determining the languages to be used by the European Economic Community.

Although sitting a test in Romanian may entail a disadvantage for a Romanian national whose mother tongue is Hungarian, the fact of imposing a test in Romanian must be considered lawful, as it is justified by higher requirements resulting from the accession of Romania to the European Union. The requirements in question are based on objective and reasonable criteria, and the difference in treatment, in the organisation of an ‘“enlargement” competition’, confined to a transitional period following that State’s accession, appears to be proportionate to the aim pursued.

The administrative services of the European Union, such as the European Personnel Selection Office, when required to organise, on the basis of a derogation regulation such as Regulation No 1760/2006, competitions reserved for nationals of Romania as a State which has just acceded to the European Union, cannot, without infringing the principle of equal treatment, use a language other than the only official language of that country when it comes to the conduct of certain written selection tests the whole purpose of which is to establish whether candidates have a thorough knowledge of that language. The situation would be different if that Member State formally recognised, under Article 1 of Regulation No 1, for the purposes of its participation in the activities of the institutions of the European Union, a minority language existing in its territory which, although not an official language of that State, was nevertheless an official language of the European Union.

Furthermore, requiring ‘a thorough knowledge of Romanian’ as the main language in the competition at issue in the present case, which was reserved for Romanian nationals, is neither arbitrary nor manifestly contrary to the interests of the service. The administration may, where the needs of the service or those of the post so require, legitimately specify the language(s) of which a thorough or satisfactory knowledge is required.

(see paras 75, 79, 81-84, 86)

See:

16 December 2008, C‑127/07 Arcelor Atlantique et Lorraine and Others, para. 23

5 April 2005, T‑376/03 Hendrickx v Council, para. 26

25 February 2010, F‑91/08 Pleijte v Commission, paras 36 and 57; 29 June 2011, F-7/07 Angioi v Commission, para. 90 and the case-law cited