ORDER OF THE CIVIL SERVICE TRIBUNAL

(Second Chamber)

3 May 2007

Case F-123/05

Jean-Marc Bracke

v

Commission of the European Communities

(Officials – Competitions – Internal competition – Eligibility conditions – Competition notice – Seniority requirement – Temporary staff – Article 27 of the Staff Regulations – Principle of sound administration – Principle of non‑discrimination)

Application: brought under Articles 236 EC and 152 EA, in which Mr Bracke seeks annulment of the decision of the appointing authority of 7 September 2005 rejecting his complaint against the Commission’s decision of 21 April 2005 refusing to recruit him as a probationary official following competition COM/PC/04.

Held: The application is dismissed as unfounded. Each party is ordered to bear its own costs.

Summary

1.      Officials – Competitions – Internal competitions – Eligibility conditions

(Staff Regulations, Arts 27, first para., and 29(1))

2.      Officials – Competitions – Selection board – Independence – Limits

1.      The exercise of the discretion enjoyed by the institutions with respect to the holding of competitions, in particular as regards the determination of the conditions of admission, must be compatible with the mandatory provisions of the first paragraph of Article 27 and Article 29(1) of the Staff Regulations. The terms in which the first paragraph of Article 27 of the Staff Regulations defines the aim to be pursued by any recruitment and in which Article 29(1) of the Staff Regulations lays down the framework for the procedures for filling vacant posts are mandatory. That discretion must therefore always be exercised in the light of the requirements of the posts to be filled and, more generally, the interests of the service.

In requiring five years’ service in the position of an official or other servant covered by the Conditions of Employment of Other Servants as a condition of admission to an internal competition and excluding periods of work completed within the institutions on an interim basis, the appointing authority is correctly applying Articles 27 and 29 of the Staff Regulations. That condition of admission makes it possible to ensure that not only do the candidates have professional experience, but that they have demonstrated their abilities in the context of the employment relationships provided for by the Staff Regulations and by the Conditions of Employment of Other Servants, which differ as regards subordination, assessment and discipline from the employment relationships to which interim staff are subject. Likewise, the condition of admission does not infringe the principle of equal treatment because, having regard to its purpose, the people who have worked on an interim basis, on the one hand, and the people who have worked as officials or servants, on the other hand, are not in a comparable situation .

(see paras 45-46, 49-52, 56)

See:

T-214/99 Carrasco Benítez v Commission [2000] ECR-SC I‑A‑257 and II‑1169, paras 53 and 57; T-173/05 Heus v Commission [2006] ECR-SC I-A-2-329 and II‑A‑2‑1695, paras 37, 41, 42 and 44

2.      The appointing authority is required, in exercising its own powers, to take decisions free of irregularities. It cannot therefore be bound by decisions of selection boards where the illegality of those decisions is liable to vitiate its own decisions. Consequently, where the selection board has wrongly allowed a candidate to take part in a competition and put his name on the list of suitable candidates, the appointing authority must express its refusal to appoint the candidate by way of a reasoned decision from which the Community judicature can judge whether the refusal is well founded.

The appointing authority is required to examine the lawfulness of the selection board’s decision to admit a candidate to the competition only when the question of actual recruitment arises and certainly not when the selection board communicates the list of suitable candidates to it.

(see paras 64-65)

See:

142/85 Schwiering v Court of Auditors [1986] ECR 3177, paras 19 and 20

T-329/03 Ricci v Commission [2005] ECR-SC I‑A‑69 and II‑315, para. 35; T-306/04 Luxem v Commission [2005] ECR-SC I‑A‑263 and II‑1209, paras 23 and 24