JUDGMENT OF THE CIVIL SERVICE TRIBUNAL
(Second Chamber)

14 April 2011

Case F‑113/07

Irmantas Šimonis

v

European Commission

(Civil service — Officials — Interinstitutional transfer — Lawyer/linguist Substitution of grounds — Requirement of a minimum period of seniority)

Application: brought under Articles 236 EC and 152 EA, whereby Mr Šimonis seeks, primarily, annulment of the Commission’s decision excluding him from the selection procedure provided for in interinstitutional vacancy notice COM/2007/142 by withdrawing its request that the applicant be transferred from the Court of Justice, a decision of which the applicant became aware on 8 March 2007.

Held: The decision whereby the Commission excluded the applicant from the selection procedure provided for in vacancy notice COM/2007/142 by withdrawing its request that he be transferred from the Court of Justice is annulled. The Commission is ordered to bear its own costs and to pay those incurred by the applicant. The Republic of Lithuania, intervener in support of the form of order sought by the applicant, is ordered to bear its own costs.

Summary

1.      Officials — Actions — Acts adversely affecting an official — Express decision rejecting the complaint — Decision adopted after reconsideration of an earlier decision — Admissibility

(Staff Regulations, Arts 90 and 91)

2.      Officials — Vacancy notice — Purpose — Obligation for the administration to state the conditions necessary to fill a post — Scope

(Staff Regulations, Art. 29)

3.      Officials — Recruitment — Criteria — Interests of the service — Administration's discretion — Limits

(Staff Regulations, Art. 29)

4.      Officials — Recruitment — Procedures — Choice — Administration's discretion

(Staff Regulations Art. 29(1))

5.      Officials — Recruitment — Obligation placed on the administration to fill a vacant post — None — Exception

6.      Officials — Actions — Replacement of the grounds of the contested measure during the procedure — Not permissible — Exception

(Staff Regulations, Arts 90 and 91)

1.      A decision purely and simply rejecting a complaint, whether it be express or implied, only confirms the act or failure to act to which the complainant takes exception and is not, by itself, a decision which may be challenged. Indeed, a purely confirmatory measure, such as an act which contains no new factors by comparison with a previous measure adversely affecting the applicant and which has not therefore replaced it, cannot be described as an act adversely affecting the applicant.

However, an express decision rejecting a complaint may, in the light of its content, not be confirmatory of the measure contested by the applicant. That applies where the decision rejecting the complaint contains a re-examination of the applicant’s situation in the light of new elements of law or of fact, or where it changes or adds to the original decision. In those situations, the rejection of the complaint is a measure subject to review by the European Union judicature, which takes it into consideration when assessing the legality of the contested measure, or even considers it to be an act adversely affecting the official concerned that takes the place of the contested measure.

(see paras 35, 36)

See:

2 March 2004, T‑14/03 Di Marzio v Commission, para. 54

30 November 2009, F‑86/08 Voslamber v Commission, paras 29 and 30 and the case‑law cited

2.      Since the principle of legal certainty requires that the administration put those concerned in a position to know precisely the scope of their obligations or their rights, it requires that a rule which determines rights and obligations for the members of its staff are given adequate publicity according to the procedures and forms which it is for the administration to determine. Such publicity is required in relation to an internal rule determining that administrators performing the duties of a lawyer/linguist must satisfy the requirement of four years’ seniority from the time of their first recruitment in order to be eligible for assignment to other duties.

In particular, as regards the rules on the recruitment of officials, the appointing authority is required to state as precisely as possible in the vacancy notice the conditions required to occupy a post, in order to enable those concerned to determine whether it is appropriate to submit an application. Admittedly, the appointing authority cannot be required to refer to all the conditions expressly provided for in the Staff Regulations, since candidates are presumed to be familiar with the Staff Regulations, but a vacancy notice would be deprived of its purpose, which is to inform candidates of the conditions that must be satisfied in order to occupy a post, if the administration were able to exclude a candidate on a ground not expressly stated in the vacancy notice or in the Staff Regulations, or that has not been published. The provisions of the Staff Regulations and, in particular, the principle of objectivity would not be satisfied vis-à-vis candidates who have applied if the administration relied on certain conditions, which in its view were necessary in order to occupy the post in question, after the publication of the notice.

(see paras 73-75, 90)

See:

30 October 1974, 188/73 Grassi v Council, para. 40; 21 June 2007, C‑158/06 ROM-projecten, para. 25; 11 December 2007, C‑161/06 Skoma-Lux, para. 28; 10 March 2009, C‑345/06 Heinrich, para. 44

2 October 1996, T‑356/94 Vecchi v Commission, para. 50

30 November 2009, F‑80/08 Wenig v Commission, para. 90

3.      Although, particularly when assessing the interest of the service, the administration has a broad discretion, it is none the less required, when adopting an individual decision, to carry out an actual assessment of the circumstances of the case. Thus, in recruitment matters, the administration cannot merely invoke the interest of the service, or even fairness, in order to adopt a decision without explaining why the specific features of the post to be filled justified its adoption.

The Commission does not comply with that requirement when, in order to justify the adoption of a decision to exclude a lawyer/linguist from another institution from the selection provided for in an interinstitutional vacancy notice, it claims that it must give priority to the internal mobility of its officials, that it is necessary to take account of the specific features of competitions organised for the recruitment of lawyer/linguists and that the latter benefit from a more advantageous classification in grade, without explaining why the interest of the service demands that the post in question cannot be filled by a lawyer/linguist recruited for less than four years — a seniority required, but not systematically, on the basis of an internal rule –, instead of merely three years as provided for in the 2005 interinstitutional agreement.

(see paras 77, 78)

See:

14 July 1988, 33/86, 44/86, 110/86, 226/86 and 285/86 Stahlwerke Peine-Salzgitter and Hoogovens Groep v Commission, para. 27

5 October 1995, T‑17/95 Alexopoulou v Commission, para. 21

4.      Under Article 29(1) of the Staff Regulations, where the appointing authority intends to fill a post, it must consider, in order of preference, first, whether the post can be filled by promotion or transfer within the institution in which the vacancy has arisen; second, whether to hold a competition internal to the institution; and, third, whether requests for transfer have been received from officials in other institutions, before following the procedure for competitions on the basis either of qualifications or of tests, or of both qualifications and tests.

Admittedly, the appointing authority is not absolutely required to give priority to promotion or transfer, even where there are valid candidatures from officials who fill all the requirements and conditions set out in the vacancy notice. None the less, before broadening its choice by organising an internal competition or considering whether the post can be filled by interinstitutional transfer, it must consider whether the existing possibilities are likely to lead to the appointment of a person having the highest qualities of ability, efficiency and integrity.

(see paras 81, 82)

See:

5 December 1974, 176/73 Van Belle v Council, paras 5 and 6; 18 March 1999, C‑304/97 P Carbajo Ferrero v Parliament, para. 29

23 April 2002, T‑372/00 Campolargo v Commission, para. 98

5.      While the appointing authority is not required to pursue a recruitment procedure, it can decline to do so only for objective and sufficient reasons, in order to counterbalance the expectation of the person concerned that he will be appointed to the post for which he was a candidate, an expectation which varies according to the stage of the selection procedure which that person has reached. Those reasons must be impossible for a normally diligent administration to detect before the vacancy notice is drawn up.

(see para. 90)

See:

9 February 1984, 316/82 and 40/83 Kohler v Court of Auditors, para. 22

18 March 1997, T‑35/96 Rasmussen v Commission, para. 60; 17 February 1998, T‑56/96 Maccaferri v Commission, para. 33; 27 November 2003, T‑331/00 and T‑115/01 Bories and Others v Commission, para. 173

6.      The administration cannot replace or add a ground to a decision during the procedure unless it is under a mandatory duty which leaves it no discretion, so that the annulment of the decision at issue could only have the effect of requiring the administration to adopt a fresh decision having the same substance as the decision annulled.

(see para. 93)

See:

15 December 2010, F‑67/09 Angulo Sánchez v Council, para. 71