JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(First Chamber)

17 November 2009

Case F-99/08

Rita Di Prospero

v

Commission of the European Communities

(Civil service – Open competition – Field of fraud prevention – Notice of Competition EPSO/AD/116/08 and EPSO/AD/117/08 – Not possible for candidates to register simultaneously for a number of competitions – Rejection of the applicant’s candidature in Competition EPSO/AD/117/08)

Application: brought under Articles 236 EC and 152 EA, in which Ms Di Prospero seeks annulment of the decision of the European Personnel Selection Office of the European Communities (EPSO) not to allow her to apply for Competition EPSO/AD/117/08, resulting from a reading of the notice of competition, published in the Official Journal of the European Union on 23 January 2008 (OJ 2008 C 16 A, p. 1), providing for the organisation of open competitions EPSO/AD/116/08 for the recruitment of administrators (AD 8) in the field of fraud prevention, and EPSO/AD/117/08 for the recruitment of principal administrators (AD 11) in the same field, in conjunction with the emails sent by EPSO to the applicant on 26 and 27 February 2008.

Held: EPSO’s decision not to allow the applicant to apply for Competition EPSO/AD/117/08 is annulled. The Commission is ordered to pay all the costs.

Summary

Officials – Competitions – Conditions for admission

(Staff Regulations, Art. 27, first para.)

The appointing authority has a wide discretion in deciding upon the criteria of ability required for the posts to be filled and in specifying, on the basis of those criteria and in the interests of the service, the conditions and procedure for organising a competition. However, the exercise of the discretion enjoyed by the institutions with respect to the holding of competitions, in particular as regards setting the conditions of admission of candidates, is circumscribed by the requirement that they comply with the mandatory provisions of the first paragraph of Article 27 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 are mandatory. That provision continues to bind the appointing authority and both the requirements attaching to the post to be filled and the interests of the service can be conceived of only in full compliance with that provision. However, although clauses limiting the registration of candidates for a competition are liable to restrict the ability of the institutions to recruit the best candidates for the purposes of the first paragraph of Article 27 of the Staff Regulations, it does not follow that any clause containing such a restriction is contrary to that article. The administration’s discretion in the organisation of competitions, and more generally in the interests of the service, offers the institution the right to impose conditions which it considers to be appropriate and which, while restricting access of candidates to a competition, and thus, necessarily, the number of candidates registered, does not, however, entail the risk of compromising the objective of ensuring the registration of candidates of the highest standard of ability, efficiency and integrity within the meaning of the first paragraph of Article 27 of the Staff Regulations.

If the requirements limiting access of candidates to a competition entail the risk of compromising the objective of ensuring the registration of candidates of the highest standard, the requirements in question are to be held contrary to the first paragraph of Article 27 of the Staff Regulations. For it to be lawful, any clause for admission to a competition must comply with a dual requirement, first, that the clause be justified by requirements connected with the post to be filled and, more generally, by the interests of the service and, second, that it comply with the objective of the first paragraph of Article 27 of the Staff Regulations. Although, most frequently, those two parts of the dual requirement largely overlap, they are none the less distinct concepts.

(see paras 27-30, 32, 35)

See:

T-56/89 Bataille and Others v Parliament [1990] ECR II‑597, para. 48; T-40/96 and T-55/96 de Kerros and Kohn-Bergé v Commission [1997] ECR-SC I‑A‑47 and II‑135, paras 40 and 51; T-256/01 Pyres v Commission [2005] ECR-SC I‑A‑23 and II‑99, para. 36; T-420/04 Blackler v Parliament [2006] ECR-SC I‑A‑2‑185 and II‑A‑2‑943, para. 45 and the case-law cited therein