JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL (First Chamber)
17 November 2009 (*)
(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)
In Case F‑99/08,
ACTION under Articles 236 EC and 152 EA,
Rita Di Prospero, member of the temporary staff of the Commission of the European Communities, residing in Uccle (Belgium), represented by S. Rodrigues and C. Bernard-Glanz, lawyers,
applicant,
v
Commission of the European Communities, represented by C. Berardis-Kayser and B. Eggers, acting as Agents,
defendant,
THE TRIBUNAL (First Chamber),
composed of S. Gervasoni (President), H. Kreppel and H. Tagaras (Rapporteur), Judges,
Registrar: R. Schiano, Administrator,
having regard to the written procedure and further to the hearing on 18 May 2009,
gives the following
Judgment
1 By application lodged at the Registry of the Tribunal on 12 December 2008 by fax (the original being lodged on 15 December 2008), Ms Di Prospero brought the present action for 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 (‘the notice of competition’), in conjunction with the emails sent by EPSO to the applicant on 26 and 27 February 2008.
Legal context
2 Article 4 of the Staff Regulations of Officials of the European Communities (‘the Staff Regulations’) provide:
‘No appointment or promotion shall be made for any purpose other than that of filling a vacant post as provided for in these Staff Regulations.
Vacant posts in an institution shall be notified to the staff of that institution once the appointing authority decides that the vacancy is to be filled.
If the vacancy cannot be filled by transfer, appointment to a post in accordance with Article 45a or promotion, it shall be notified to the staff of the other institutions, and/or an internal competition shall be organised.’
3 Article 27 of the Staff Regulations provides:
‘Recruitment shall be directed to securing for the institution the services of officials of the highest standard of ability, efficiency and integrity, recruited on the broadest possible geographical basis from among nationals of Member States of the Communities.
No posts shall be reserved for nationals of any specific Member State.’
4 Article 29(1) of the Staff Regulations provides:
‘Before filling a vacant post in an institution, the appointing authority shall first consider:
(a) whether the post can be filled by:
(i) transfer or
(ii) appointment in accordance with Article 45a, or
(iii) promotion
within the institution;
(b) whether requests for transfer have been received from officials of the same grade in other institutions and/or whether to hold a competition internal to the institution, which shall be open only to officials and temporary staff as defined in Article 2 of the Conditions of Employment of other servants of the European Communities;
and then follow the procedure for competitions on the basis either of qualifications or of tests or of both qualifications and tests. Annex III lays down the competition procedure.
The procedure may likewise be followed for the purpose of constituting a reserve for future recruitment.’
5 Under Article 1(1) of Annex III to the Staff Regulations:
‘Notice of competitions shall be drawn up by the appointing authority after consulting the Joint Committee.
It must specify:
(a) the nature of the competition (competition internal to the institution, competition internal to the institutions, open competition, where appropriate, common to two or more institutions);
(b) the kind of competition (whether on the basis of either qualifications or tests, or of both qualifications and tests);
(c) the type of duties and tasks involved in the post to be filled and the function group and grade offered;
(d) in accordance with Article 5(3) of the Staff Regulations, the diplomas and other evidence of formal qualifications or the degree of experience required for the post to be filled;
(e) where the competition is on the basis of tests, what kind they will be and how they will be marked;
(f) where applicable, the knowledge of languages required in view of the special nature of the posts to be filled;
(g) where appropriate, the age limit and any extension of the age limit in the case of servants of the Communities who have completed not less than one year’s service;
(h) the closing date for applications;
(i) any exceptions pursuant to Article 28(a) of the Staff Regulations.
…’
6 The notice of competition provided for the organisation of open competitions EPSO/AD/116/08 for the recruitment of Administrators (AD 8) and EPSO/AD/117/08 for the recruitment of Principal Administrators (AD 11), both in the field of fraud prevention. EPSO also organised, in parallel and also in the field of fraud prevention, Competition EPSO/AST/45/08 for the recruitment of Assistants (AST 4), for which the advertisement was also published in the Official Journal of the European Union on 23 January 2008 (OJ 2008 C 16 A, p. 16).
7 The fifth paragraph of Title I of the notice of competition, headed ‘Duties and Eligibility’ (‘the contested clause’) is worded as follows:
‘Please note that the tests for ... competitions [EPSO/AD/116/08, EPSO/AD/117/08 and EPSO/AST/45/08] may be held simultaneously. You may apply for only one of these three competitions. You must make your choice when you register online and you will not be able to change it after the deadline for registration.’
8 Under B(b) of Title I of the notice of competition, concerning special conditions, it was provided:
‘…
2. Professional experience
EPSO/AD/116/08 ADMINISTRATORS (AD 8) You must have acquired at least 9 years’ professional experience: — since obtaining the qualification required ... OR — since obtaining the qualification and professional experience required ... at least half of which must relate to fraud prevention. | EPSO/AD/117/08 PRINCIPAL ADMINISTRATORS (AD 11) You must have acquired at least 16 years’ professional experience: — since obtaining the qualification required ... OR — since obtaining the qualification and professional experience required ... at least half of which must relate to fraud prevention. |
…’
9 The deadline for online registration for competitions EPSO/AD/l16/08 and EPSO/AD/117/08 was 26 February 2008.
Background to the dispute
10 On 26 February 2008, the applicant, a member of the temporary staff of the European Anti-Fraud Office (OLAF), applied online for Competition EPSO/AD/116/08. When she subsequently wished to register, also online, for Competition EPSO/AD/117/08, she was not able to do so, because the EPSO website did not allow her to. By email of the same day, she requested EPSO to accept the second of her applications. EPSO replied, also on 26 February, that the notice of competition provided that candidates could apply for only one of the three competitions. The next day, on 27 February 2008, EPSO confirmed this information to her.
11 On 26 May 2008, the applicant brought a complaint against EPSO’s decision to refuse to register her for Competition EPSO/AD/117/08. By note of 2 September 2008, notified on 4 September 2008, EPSO rejected that complaint.
Forms of order sought
12 The applicant claims that the Tribunal should:
– declare the application to be admissible;
– annul EPSO’s decision not to allow her to register for Competition EPSO/AD/117/08;
– order the Commission of the European Communities to pay the costs.
13 The Commission contends that the Tribunal should:
– dismiss the action;
– order the applicant to pay the costs.
14 By way of measures of organisation of procedure taken pursuant to Article 56 of the Rules of Procedure and brought to the attention of the parties by letter of 6 April 2009, the Tribunal requested certain clarifications from the Commission. The Commission complied with those measures of organisation within the deadline set.
Arguments of the parties
15 In support of her claims for annulment, the applicant relies on two pleas. The first plea alleges the combined infringement of Articles 4 and 29 of the Staff Regulations in conjunction with Article 1 of Annex III to the Staff Regulations, in that the contested clause ‘implicitly but necessarily’ added a requirement ‘for the right to apply’, which was neither provided for, nor authorised by, the Staff Regulations. The second plea alleges infringement of the first paragraph of Article 27 of the Staff Regulations and of the principles following therefrom for its implementation, the contested clause having the effect, according to the applicant, first, of not allowing the recruitment of personnel ‘of the highest standard of ability, efficiency and integrity’ and, second, of preventing recruitment ‘on the broadest possible ... basis’.
16 The Commission, after indicating that the applicant had in fact raised a plea of illegality with regard to the contested clause and, inter alia at the hearing, calling into question the applicant’s interest in bringing proceedings, rejected the pleas as unfounded. In particular, it contends that the contested clause is not incompatible with the objective pursued by the first paragraph of Article 27 of the Staff Regulations and that it was adopted in accordance with the interests of the service and the principles of proportionality and sound administration.
Findings of the Tribunal
Interest in bringing proceedings
17 The Commission raised the issue of the applicant’s interest in bringing proceedings implicitly in its pleadings and later expressly at the hearing. It stated that the applicant did not in any event fulfil the specific conditions for admission to Competition EPSO/AD/117/08 linked to professional experience because she was unable to claim a total of 16 years’ professional experience, as it was not possible to include in that experience the time she spent writing her doctoral thesis.
18 In that regard, it is apparent from the applicant’s application for Competition EPSO/AD/116/08 that she had 13 years and six months of professional experience, including, according to her, 9 years 2 months in the field of fraud prevention, without counting the 3 years of her doctorate during which she was, for 2 years, a university assistant. Moreover, it is apparent from the case-file that, by email of 1 February 2008 (in other words, before she applied for the competition), the applicant asked EPSO whether the period of her doctorate could be taken into account as professional experience and EPSO replied that this was something which the selection board would decide.
19 According to the case-law, the concept of required professional experience must be interpreted exclusively in the light of the aims of the competition, as set out in the general description of the duties to be performed (see Case F‑145/06 Pascual-García v Commission [2008] ECR‑SC I‑A‑1-0000 and II‑A-1-0000, paragraph 64).
20 In its replies to the measures of organisation of procedure, the Commission indicated that, for the purpose of admitting candidates to competitions EPSO/AD/116/08 and EPSO/AD/117/08, the selection board accepted as required professional experience only ‘genuine professional [experience], normally based on a contract of employment’ and that the one or more years spent writing a doctoral thesis was not to be taken into account, with the exception of ‘time (partially) covered by a contract of employment, for example, as a university assistant’. However, because the non-admission of the applicant to Competition EPSO/AD/117/08 does not result from a selection board decision finding that she had failed to satisfy the requirement of 16 years’ professional experience, but simply from the fact that it was impossible in practice to register for the competition, as a result of the computer system put in place by EPSO for registration for the competition at issue (referred to in paragraph 6 above), as was confirmed and explained by EPSO’s letters of 26 and 27 February 2008, the assertion of the Commission reproduced above is not in itself sufficient to cause the Tribunal to dismiss the action as inadmissible for lack of interest in bringing proceedings.
21 First, the Commission’s assertion is not accompanied by a written statement of the selection board to certify how it treats the years spent writing a doctoral thesis with regard to professional experience, or by other means of proof, such as specific references to cases similar or identical to the applicant’s, that is, cases of candidates who registered for Competition EPSO/AD/117/08 but whose candidature was not accepted for failure to comply with the requirement of professional experience because of the fact that the writing of a doctoral thesis, without a contract of employment as a university assistant could not be taken into account for the purposes of that experience. In contrast, at the hearing, the applicant maintained (without this being either confirmed or denied by the Commission, which simply stated that it could if necessary carry out a check), that among the successful candidates in Competition EPSO/AD/117/08, one candidate had claimed as professional experience a year spent in a law school in England.
22 Second, selection boards have in principle a discretion when assessing, as a condition for admission to a competition, the previous professional experience of candidates, both as regards the nature and duration thereof and as regards its relevance to the post to be filled and, in its review of legality, the Community judicature must confine itself to ascertaining whether the selection board’s decisions were free from manifest errors (Pascual-Garcia v Commission, paragraph 55 and the case-law cited). However, even supposing that, in the present case, the competition selection board had adopted a policy to the effect that time spent writing a doctoral thesis did not count as professional experience, that policy was, necessarily, adopted and maintained with regard to eligible candidates (whom the selection board had to assess in the light of the professional experience requirement) and, in any event, without taking account of the applicant’s particular case (or, where appropriate, that of other persons who were also prevented from registering for Competition EPSO/AD/117/08). It is likely that the professional experience of those persons, including the applicant, presented unique aspects which would have caused the competition selection board to interpret the professional experience requirement differently. Thus, there is nothing to say that if the selection board had had to take cognizance of the applicant’s professional experience (or that of other persons refused registration), either it would have adopted a different policy, by accepting that a certain period writing a thesis without a contract of paid employment could be counted as professional experience, albeit subject to conditions (for example, that the time spent solely on writing should not exceed a certain percentage of the time during which, at the same time as writing the thesis, the person concerned occupied a paid position as a university or other assistant), or it could have allowed exceptions in particular cases (for example, for theses the subject matter of which was particularly closely linked to the field of the notice of competition).
23 Third, although, with a similar question before it, the Tribunal, in holding that a period of doctoral studies had correctly been taken into account as professional experience, expressly referred to the fact that the research activities in question were not only real and genuine but that they were also remunerated, nothing in the reasoning or terms of that decision, based on specific factual circumstances, would support the interpretation that, to be classified as professional experience, the work connected with the preparation of a doctorate must necessarily also include paid work and that a contrary decision of a competition selection board would constitute a manifest error (see Pascual-García v Commission, paragraphs 57, 65 and 66).
24 Fourth, to dismiss the action as inadmissible for lack of interest in bringing proceedings would be to deprive the applicant of her right to have the general question – whether the time spent writing a doctorate can be taken into account under the professional experience required by a notice of competition – examined, by the selection board itself, in the specific circumstances of the application which she submitted. That is so notwithstanding the fact that, inter alia as a result of the discretion which competition selection boards have in assessing professional experience, there is no clear case-law of general application on that issue and EPSO itself, when the applicant raised it, was unable to answer, merely stating that it was something which would be decided on by the competition selection board (see paragraph 18 above).
25 It follows that the action is admissible.
The claims for annulment
The first paragraph of Article 27 of the Staff Regulations and the case-law concerning discretion and the interests of the service
26 It is not contested that the provisions of the first paragraph of Article 27 of the Staff Regulations, according to which recruitment is to be directed to securing for the institution the services of officials of the highest standard of ability, efficiency and integrity, are based on the primary objective that all officials of the European Communities should be a very high standard.
27 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, more generally, in the interests of the service, the conditions and procedure for organising a competition (see Case T‑256/01 Pyres v Commission [2005] ECR‑SC I‑A‑23 and II‑99, paragraph 36, and Case T‑420/04 Blackler v Parliament [2006] ECR‑SC I‑A‑2‑185 and II‑A‑2‑943, paragraph 45 and the case-law cited). According to the Community courts, Articles 4 and 29 of the Staff Regulations make available to the appointing authority several means of exercising that power where vacant posts are to be filled in an institution. Similarly, Article 1 of Annex III to the Staff Regulations confers a wide discretion on the appointing authority for the organisation of competitions (see Case T‑56/89 Bataille and Others v Parliament [1990] ECR II‑597, paragraph 42).
28 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’ (see Bataille and Others v Parliament, paragraph 48, and Joined Cases T‑40/96 and T‑55/96 de Kerros and Kohn-Bergé v Commission [1997] ECR‑SC I‑A‑47 and II‑135, paragraph 40, those judgments referring also to Article 29(1) of the Staff Regulations).
29 Concerning, in particular, the conditions of admission to a competition, and even looking beyond the obligation incumbent on the institution, first, to make its choice in the exercise of its wide discretion in the light of the requirements attaching to the posts to be filled and, more generally, of the interests of the service and, second, to establish the existence of a sufficient link between the contested conditions and those requirements and interests (see Case T‑60/92 Noonan v Commission [1996] ECR II‑215, paragraph 43, and de Kerros and Kohn-Bergé v Commission, paragraph 42), it has been held that the first paragraph of Article 27 of the Staff Regulations continues to bind the appointing authority and that 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 (de Kerros and Kohn-Bergé v Commission, paragraph 51). Thus, conditions of admission to any competition deriving from the above requirements and interests must in any event remain compatible with the provisions of the first paragraph of Article 27 of the Staff Regulations.
30 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.
31 Accordingly, and with regard to a requirement of three years’ professional experience as a member of the temporary staff, a requirement which the Commission, in treating it as ‘understood that members of the temporary staff have the highest standards required by [the first paragraph of Article 27 of the Staff Regulations]’, inserted into a notice of competition for the establishment of members of the temporary staff, the Court of First Instance has accepted that that requirement complies with the Staff Regulations, stating inter alia that the members of staff admitted to an establishment procedure ‘have demonstrated … that they merit by their work as members of the temporary staff’ the opportunity to become established officials (de Kerros and Kohn-Bergé v Commission, paragraphs 45 and 47).
32 On the other hand, if the requirements limiting access of candidates to a competition entail the risk referred to in paragraph 30 above, that is, 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.
33 Thus, it has been held, first and more specifically in relation to the interests of the service, that, inasmuch as the requirement mentioned in paragraph 31 above of three years’ seniority of service stipulated additionally that the period of service in the institutions was to be uninterrupted, that additional requirement was justified clearly only by the difficulties of a practical nature encountered by the institutions when organising internal competitions, in view of the high number of members of staff who satisfy the simple requirement of three years’ seniority, and that, therefore, it was incompatible with the first paragraph of Article 27 of the Staff Regulations and was not in itself capable of constituting a legitimate interest of the institution (see de Kerros and Kohn-Bergé v Commission, paragraph 48 to 51). It follows that considerations of a purely practical nature deriving from the practical difficulties of organising and conducting competitions do not come within the interests of the service.
34 Second, and more generally, it has been held that excluding from a competition members of the temporary staff recruited otherwise than from reserve lists drawn up following external open competitions cannot constitute an appropriate means of ensuring that the objective pursued by the first paragraph of Article 27 of the Staff Regulations is attained and might even lead to a result contrary to the purpose of the Article, that is to say, it may result in the exclusion of a candidate with the same qualifications as, or possibly better qualifications than, those of other candidates admitted to the competition (see Bataille and Others v Parliament, paragraph 48). Moreover, the interests of the service cannot justify a decision by an institution to reserve access to an internal competition merely to members of the temporary staff and not to officials. That is particularly the case in view of the fact that every recruitment procedure must lead to the appointment of officials of the highest standard of ability, efficiency and integrity, there being no indication that the excluded officials do not have abilities equal to, or indeed greater than, those of the members of the temporary staff concerned (Case T‑294/97 Carrasco Benítez v Commission [1998] ECR‑SC I‑A‑601 and II‑1819, paragraph 51).
35 It follows that, 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.
The present case
36 It should first be pointed out that, in relying on the plea alleging infringement of the first paragraph of Article 27 of the Staff Regulations to support its claim for annulment of the EPSO decision not to permit her to apply for Competition EPSO/AD/117/08, the applicant is in fact raising a plea of illegality of the contested clause.
37 It is necessary, next, to make two observations of a general nature, concerning the situation where there are two or more competitions (or a number of parts of the same competition) organised simultaneously with the objective of filling posts in the same field of Community activity, the only difference between those competitions (or competition parts) being the level of training and/or professional experience required in the field and, accordingly, the category or grade of entry into service. That is the situation in the present case concerning competitions EPSO/AD/116/08, EPSO/AD/117/08 and EPSO/AST/45/08, which were organised simultaneously to fill vacant posts of Assistants (AST 4), Administrators (AD 8) and Principal Administrators (AD 11) respectively, within OLAF, in the very specific field of anti-fraud.
38 The first observation particularly relates to competitions in a narrowly defined field of Community activity, such as that in the present case, and consists of a double finding. First, although it is undeniable that the possibility of candidates' accessing simultaneously a number of competitions (or parts of competitions) organised in parallel enables quantitatively more candidates to register for each of those competitions and accordingly promotes the recruitment of officials ‘on the broadest possible basis’, the need for which has been recognised on numerous occasions in the case-law (Case 16/64 Rauch v Commission [1965] ECR 179, 190; Case T‑53/00 Angioli v Commission [2003] ECR‑SC I‑A‑13 and II‑73, paragraph 50, and Case T‑357/04 Chetcuti v Commission [2006] ECR‑SC I‑A‑2‑255 and II‑A‑2‑1323, paragraph 48), that number, in view ex hypothesi of the narrow definition of the field covered by the competition, cannot normally be excessively high. Second, although the need to find and recruit the best candidates necessarily militates in favour of open access to competitions to all candidates capable of fulfilling the conditions of admission, this is even more the case of competitions in narrowly defined fields of Community activity because of the, by definition, restricted number of persons who have the specific training and professional experience required by the notice of competition in those fields.
39 The second observation concerns the likely reactions of candidates to the possibility of registering simultaneously for a number of competitions (or parts of competitions) being held simultaneously. Although it is not possible to make assumptions in the abstract as to the use candidates would have made of such a possibility, it is clear that those candidates fulfilling only the conditions of admission of the competition with the lowest requirements could not provide evidence of any interest in registering for the competitions with higher requirements and thus would have had no reason to do so (since, they could only have expected those applications to be rejected for their failure to fulfil the requirements), the question only arising for those whose qualifications and professional experience ‘bordered’ the requirements of the higher competition (as was the case of the applicant in the present case). Those candidates normally represent only a small percentage of all the candidates. As regards those candidates fulfilling the requirements of the higher competition who also by definition fulfil those of the lower competition, it can be argued (and the Commission did so at the hearing) that, particularly during an economic crisis and in the light of the advantages of a career in the institutions, it is true that they retain an interest in also applying for that latter competition, since it would increase their chances of recruitment by the Community institutions. It is however also probable that the great majority of those candidates (and, in particular, those whose abilities and professional experience clearly exceed the minimum set by the least demanding notice of competition) will wish, precisely in the light of the high level of their training and professional experience, to present themselves only for the competition with the more demanding conditions of admission, for recruitment to a post which, first, permits access to a higher grade, second, requires greater abilities and, lastly, leads to greater responsibility. Moreover, it is in no way established (for example, by means of studies, statistics, etc.) that a substantial number of those candidates would in fact apply for a medium level competition which would only give them a prospect of work not commensurate with the higher level of their studies, training and professional experience.
40 In the present case, it is not contested, first, that the possibility of registering simultaneously for competitions EPSO/AD/116/08, EPSO/AD/117/08 and EPSO/AST/45/08 would produce a greater number of candidates registering for each of the competitions and, second and consequently, that the contested clause restricts the access of potential candidates to the competitions. Although the contested clause does not have the direct and immediate effect of totally excluding a candidate from the competitions at issue, because, as the Commission points out, it only obliges that candidate to make a choice among the competitions, such a clause prevents the registration for one of the abovementioned competitions of a candidate having, for the competition concerned, the same or even better qualifications than those of the other candidates admitted to the competition. That is the case, in particular, of candidates who fulfilled the conditions of admission of Competition EPSO/AD/117/08 and registered for one of the two AD‑grade competitions but were unable to register for the other one, as well as those who, like the applicant, fulfilled the conditions of admission of Competition EPSO/AD/116/08, but entertained doubts as to whether or not they fulfilled the conditions of admission of Competition EPSO/AD/117/08 and thus registered for the first, but were unable to ‘try their luck’ with the second.
41 It is however necessary to examine whether the restriction imposed by the contested clause in the present case comes within the situation described in paragraph 30 above and, more generally, satisfies the dual requirement referred to in paragraph 25 above, that is, whether that restriction, even though limiting access of candidates to a competition, and thus, necessarily, the number of candidates registered, is, on the one hand, justified by requirements linked to the post to be filled and, in particular, by the interests of the service and, on the other hand, complies with the objective of the first paragraph of Article 27 of the Staff Regulations.
42 The Commission has replied to that question in the affirmative, putting forward a series of arguments to show inter alia that the contested clause is justified by the interests of the service. In particular, according to the Commission, the contested clause made it possible, first, to accelerate the selection procedure and recruitment; second, to promote competition between like candidates within the group of candidates registered for each of the competitions; third, to avoid the overlapping of candidates who succeed in the two competitions at AD level at issue; fourth, to avoid the risks linked to the date of the organisation of the tests which could take place on the same day for the different competitions; fifth, to ensure the equality of the candidates, in that certain of them are able to take several days’ leave more easily and thus sit all the competitions while others, finding this more difficult will have to choose between the competitions; sixth, to avoid the extra expense of hiring premises and purchasing equipment, as well as the expenses linked with the costs of the questions because they are prepared for and provided to the Commission by external consultants who invoice for them separately at high rates.
43 The first argument cannot be upheld because, although the objective that the selection procedures and recruitment should be rapid may fall within the interests of the service because that objective of rapidity is not purely organisational in nature (see paragraph 33 above), it has not been urged, still less proved, that, in the circumstances of the present case, that objective does not infringe the first paragraph of Article 27 of the Staff Regulations, the mandatory nature of which has been recognised on numerous occasions in the case-law. On the contrary, the Commission’s reasoning can only be interpreted as meaning that it gave priority to the rapidity objective over that of recruiting candidates of the highest standard for the purposes of the first paragraph of Article 27 of the Staff Regulations. In any event, the saving of time which the contested clause allows is relatively limited and disproportionate to the infringement of the first paragraph of Article 27 of the Staff Regulations and the restriction of the right of access to the competition that that clause entails. In support of its reasoning, the Commission states in particular that the registration of a greater number of candidates in each of the competitions would have had the result of prolonging the correction of the pre-selection tests for the two competitions for which the applicant wished to register and, in particular, the phase during which the candidates were able to challenge the marks awarded to them, challenges in respect of which the institution is obliged to carry out appropriate verifications on a case-by-case basis. However, as the Commission moreover conceded at the hearing, the correction of the pre-selection tests is automatic and computerised. As to the affirmations concerning the delays which would have resulted from any challenges to the results and from the verifications that those challenges imply, which would be greater in number, it is clear that those affirmations are based on the assumption that there would be a substantial increase in the number of candidates for each competition, an assumption which has not been proved (see the first observation made in paragraph 38 and the observations set out in paragraph 39 above) and is unsubstantiated by any evidence from the Commission. The latter is thus not entitled to rely on arguments alleging a need to accelerate the selection and recruitment procedures.
44 By its second argument based on the interests of the service, the Commission contends that the contested clause enabled competition to be promoted between like candidates within the group of candidates registered for each of the competitions, since it requires candidates to make a choice allowing the organisation of two closely linked competitions in which candidates compete under fairer conditions in order to obtain results which are also better adapted to the posts to be filled. Such an argument may be compatible with the first paragraph of Article 27 of the Staff Regulations, because the search for candidates of the highest standard of ability, efficiency and integrity must not be carried out in the abstract, but in the light of the posts to be filled. However, in the exercise of the discretion which it enjoys in relation to competitions, the administration might consider, in particular, that candidates who are overqualified for the posts which they fill are not in a position to use to the advantage of the institution the fact that they are ‘of the highest standard’ or, more generally, that a competition procedure, by virtue of being comparative in nature, can be designed only between candidates with comparable profiles. However, in that connection, but on the subject of a notice of competition for posts falling under Category C (for staff engaged in clerical duties which require secondary education or equivalent professional experience) which prohibited candidates with a university degree from entering the competition, it has been held, in the light of the binding objective set out in the first paragraph of Article 27 of the Staff Regulations, that the possession of a university qualification cannot, first, prevent the candidates from performing the duties attached to the post to be filled or, second, have a negative effect on the quality of their work or their efficiency (see Noonan v Commission, paragraphs 34 and 38 to 42). The Court added, with regard to the Commission’s argument that, if it did not exclude graduates, other candidates’ chances of passing the competition would be reduced or even eliminated, that that argument cannot be upheld because it in no way calls into question the ability of candidates in the first of those categories to accomplish the tasks which successful candidates in the competition will be called upon to perform in the same way as other candidates and to satisfy the criterion laid down in the first paragraph of Article 27 of the Staff Regulations (see, to that effect, Noonan v Commission, paragraph 36). The Court also indicated that, although during an internal competition the appointing authority is bound to lay down the selection criteria in accordance with the interests of the service, the Commission cannot exclude from the recruitment competition candidates affected by the contested requirement on the ground that they would have better chances of passing the competition than other candidates (see Noonan v Commission, paragraphs 36 and 37). In any event, the Court thus started from the premiss that, from the moment candidates fulfil the conditions of admission to a competition, the fact that their profiles may lack similarity or comparability in no way constitutes a circumstance preventing the competition from being conducted in accordance with its objective or fulfilling its functions.
45 In the present case and in the light, in particular, of the case-law just mentioned, there is no evidence to conclude that the candidates who met the conditions of admission to Competition EPSO/AD/117/08 did not have a profile which was equally appropriate for the posts to be filled in Competition EPSO/AD/116/08. Nor, similarly, is there any evidence to suggest that it was the candidates who met only the conditions of admission of Competition EPSO/AD/116/08, and not those who also met those of Competition EPSO/AD/117/08, who necessarily possessed the most appropriate profile for the posts to be filled in the first of those competitions. Moreover, it is clear that the premiss of the judgment in Noonan v Commission, as set out in the paragraph above, is all the more valid in the present case, given that the profiles of the candidates satisfying the conditions of admission to competitions EPSO/AD/117/08 and EPSO/AD/116/08 are closer to one another overall than the profiles distinguished by the possession or lack of a university degree by the notice of competition in Noonan v Commission, as it is only the length of the professional experience required which distinguishes the candidates satisfying the conditions of admission to the two competitions at issue here from those candidates who satisfied only the conditions of admission to Competition EPSO/AD/116/08. Thus, it cannot be alleged that the participation of all those potential candidates in each of the two competitions (and in particular in Competition EPSO/AD/116/08) would have prevented the competition being conducted in accordance with its objective, which was, inter alia, to secure the recruitment of candidates of the highest standard within the meaning of the first paragraph of Article 27 of the Staff Regulations following an objective and comparative selection procedure.
46 By the third argument relied on, the Commission contends that the contested clause is to prevent the ‘overlapping’ of candidates who are simultaneously successful in two competitions. Although that risk of ‘overlapping’ exists, in particular because the same people could be registered both on the reserve list of Competition EPSO/AD/117/08 and on that of Competition EPSO/AD/116/08 and because, after the acceptance by those persons of AD 11 posts from the first list, the second list, for AD 8 posts, might be exhausted without, in the meantime, the administration being able to meet its needs in terms of recruitment of AD 8 officials, it should be pointed out that such a risk exists for every competition organised by EPSO, a situation in which a candidate is registered in parallel on the reserve list of a number of competitions being relatively frequent. However, in such a situation and in order to avoid any shortage of candidates, that risk could have been easily overcome by extending the number of candidates on the reserve list. In any event, that argument raised by the Commission to justify the contested clause is incompatible with the objectives laid down in the first paragraph of Article 27 of the Staff Regulations and does not appear to be proportionate to the effect produced by the contested clause, as it would be possible to find an alternative solution which was less restrictive of access to competitions for posts in the Community institutions.
47 As to the fourth argument relied on and linked to the dates of the organisation of the tests, that is, that those tests might take place simultaneously for different competitions and that a candidate could therefore be invited to sit the tests of different competitions on the same day, it is apparent from the case-file that, with regard to the pre-selection tests, candidates could choose the date on which they wanted to sit them, within a fixed period running from 26 March to 9 April 2008. Moreover, as regards the written tests, which took place on the same day, that is 21 October 2008, and also the oral tests, given that the number of candidates admitted to those tests was much smaller than the number which presented themselves for the pre-selection tests, it is hard to credit that overcoming that obstacle would have constituted a heavy or disproportionate administrative burden for the Commission. There is nothing to prevent the Commission from setting dates for sitting the tests which are close but different. In any event, that argument has absolutely no legal basis, given that, as it concerns only organisational matters, it is manifestly irrelevant to the interests of the service (see paragraph 33 above), and runs counter to the objective of the first paragraph of Article 27 of the Staff Regulations.
48 For the same reasons as those just invoked at the end of the last paragraph, the fifth and sixth arguments relied on are lacking in any legal basis. Moreover, the first of them is in fact purely hypothetical because the Commission has not submitted any evidence in support of the affirmation that certain candidates would not have been able to obtain the extra days’ leave necessary to take part in the tests for the two competitions which the applicant wished to sit. As to the argument regarding the additional expense of hiring premises and purchasing equipment, if, as the applicant indicated at the hearing without being challenged by the Commission, 1 974 candidates were admitted to Competition EPSO/AD/116/08 and 427 candidates to Competition EPSO/AD/117/08, those figures demonstrate and confirm that, even if, contrary to the first finding in paragraph 38 above and the considerations set out in paragraph 39 above, all the candidates admitted to Competition EPSO/AD/117/08 had been registered for Competition EPSO/AD/116/08 and a percentage of candidates registered in the latter competition (considering, like the applicant, their professional experience to be capable of being judged sufficient for the purpose of the admission to the competition to fill the AD 11 posts) had also applied for Competition EPSO/AD/117/08, the additional costs of hiring premises and purchasing equipment as well as of the additional questions would have been relatively limited. This calls for the same observation as that made concerning the first argument, that is, that the financial saving is in no way proportionate to the infringement of the first paragraph of Article 27 of the Staff Regulations and the restriction on access to the competition constituted by the contested clause.
49 The observations made regarding the first and sixth arguments are moreover all the more apt if, as was revealed at the hearing (admittedly without the Commission being in a position to confirm it formally), the pre-selection tests were at the same level of difficulty for the competition to fill the grade AD 8 posts as for the competition to fill the grade AD 11 posts, which would mean that a person wishing to take part in both competitions could have taken a single test, valid for both competitions.
50 Moreover, in the light of the reasoning by which the Tribunal, in paragraphs 42 to 47 above, has rejected each of the arguments relied on by the Commission, it appears clearly that, even taking all those arguments together, they are still not such as to justify the contested clause, in particular because of the imperative nature of the first paragraph of Article 27 of the Staff Regulations and the narrowly defined field of the competition concerned (see, in particular, paragraph 28 above, as well as the second finding in paragraph 38 above).
51 It follows from all of the foregoing that the applicant’s plea arguing that the clause prohibiting the simultaneous registration for open competitions EPSO/AD/116/08 and EPSO/AD/117/08 for the recruitment of Administrators (AD 8) and Principal Administrators (AD 11) respectively in the field of fraud prevention is incompatible with the first paragraph of Article 27 of the Staff Regulations is well founded.
52 Consequently, without it being necessary to rule on the merits of the other plea raised by the applicant, EPSO’s decision pursuant to the contested clause not to allow her to apply for Competition EPSO/AD/117/08 must be annulled.
Costs
53 Under Article 87(1) of the Rules of Procedure, without prejudice to the other provisions of Chapter VIII thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Under Article 87(2), if equity so requires, the Tribunal may decide that an unsuccessful party is to pay only part of the costs or even that he is not to be ordered to pay any.
54 In the present case, since the Commission has been unsuccessful, it must be ordered to pay the costs in accordance with the form of order sought by the applicant. As the circumstances of the present case do not justify the application of Article 87(2) of the Rules of Procedure, the Commission must therefore be ordered to pay all the costs.
On those grounds,
THE TRIBUNAL (First Chamber)
hereby:
1. Annuls the decision of the European Personnel Selection Office of the European Communities (EPSO) not to allow Ms Di Prospero to apply for Competition EPSO/AD/117/08;
2. Orders the Commission of the European Communities to pay all the costs.
Gervasoni | Kreppel | Tagaras |
Delivered in open court in Luxembourg on 17 November 2009.
W. Hakenberg | | S. Gervasoni |
The text of the present decision and the texts of the decisions of the Courts of the European Union cited in it are available on the internet site www.curia.europa.eu