ORDER OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL
(Second Chamber)

28 April 2015

Case F‑72/14

Maria Luisa Garcia Minguez

v

European Commission

(Civil service — Internal competition — Notice of competition — Conditions for eligibility — Temporary staff of the Commission — Staff of an executive agency — Non-admission to the competition — Article 27 of the Staff Regulations — Article 29(1)(b) of the Staff Regulations — Principles of equal treatment and non-discrimination — Action manifestly lacking any foundation in law)

Application:      under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Ms Garcia Minguez seeks annulment of the decision rejecting her candidature for internal competition COM/3/AD 9/13 organised by the European Commission.

Held:      The action is dismissed as manifestly lacking any foundation in law. Ms Garcia Minguez is to bear her own costs and is ordered to pay the costs incurred by the European Commission.

Summary

1.      Officials — Competitions — Internal competitions — Conditions for admission — Membership of the staff of the institution — Member of the temporary staff directly recruited by an executive agency — Not included

(Staff Regulations, Art. 29(1)(b); Council Regulation No 58/2003, Art. 18(1))

2.      Officials — Organisation of departments — Organisation chart — Consequence in law — None

(Council Regulation No 58/2003, Art. 18(1))

3.      Officials — Competitions — Internal competitions — Conditions and procedure for organisation — Administration’s discretion — Limits — Exclusion of staff external to the institution — Lawfulness — Infringement of Article 27 of the Staff Regulations — None

(Staff Regulations, Arts 27 and 29)

4.      Officials — Competitions — Internal competitions — Conditions for admission — Membership of the staff of the institution — Exclusion of temporary staff directly recruited by executive agencies, but not of officials seconded as temporary staff to those agencies — Breach of the principle of equal treatment — None

(Staff Regulations, Art. 29(1)(b))

1.      Article 29(1)(b) of the Staff Regulations authorises each institution to organise internal competitions open only to officials and temporary staff. The expression ‘competition internal to the institution’ within the meaning of that article concerns all persons in the service of that institution, in whatever capacity.

Temporary staff members directly recruited by the executive agencies, as provided for in Article 18(1) of Regulation No 58/2003 laying down the statute for executive agencies to be entrusted with certain tasks in the management of Community programmes, may not be regarded as being in the service of the Commission, given that the agencies, despite the degree of control which the Commission has over the composition of their governing bodies and the performance of their tasks, have departments which are separate from those of the Commission.

(see paras 33, 34)

See:

Judgment of 23 January 2003 in Angioli v Commission, T‑53/00, EU:T:2003:12, para. 50

Judgment of 20 November 2012 in Ghiba v Commission, F‑10/11, EU:F:2012:158, paras 43 and 44

2.       An organisation chart of a directorate-general of the Commission is not capable of categorising an executive agency, within the meaning of Article 18(1) of Regulation No 58/2003 laying down the statute for executive agencies to be entrusted with certain tasks in the management of Community programmes, as a department of the Commission, since such a document does not have any legal effects and is strictly intended for information purposes only.

(see para. 41)

See:

Judgment of 18 February 1993 in McAvoy v Parliament, T‑45/91, EU:T:1993:11, para. 45

3.      The exercise of the broad discretion which the Staff Regulations confer on the institutions in the organisation of competitions must be compatible with the mandatory provisions of the first paragraph of Article 27 of the Staff Regulations, according to which the purpose of any recruitment procedure is to secure for the institution the services of officials of the highest standard of ability, efficiency and integrity, and with Article 29(1) of the Staff Regulations. It follows that, where it organises an internal competition, an institution is required to comply with both the first paragraph of Article 27 and with Article 29 of the Staff Regulations.

In that regard, in limiting access to an internal competition solely to officials and members of the temporary staff employed in its departments, an institution is merely applying Article 29(1)(b) of the Staff Regulations. Furthermore, the institution is fully entitled to exclude the candidatures of staff of the executive agencies from that competition, since those staff are not officials and temporary staff members in the service of the institution. In those circumstances, regarding the institution as infringing Article 27 of the Staff Regulations solely because it is applying Article 29 of those Regulations would amount to denying it any possibility of organising an internal competition, yet that option is specifically provided for by the Staff Regulations.

(see paras 45-47)

See:

Judgment of 21 November 2000 in Carrasco Benítez v Commission, T‑214/99, EU:T:2000:272, para. 53

4.      There is a breach of the principle of equal treatment where two classes of persons whose factual and legal situations are not essentially different are treated differently or where different situations are treated in an identical manner, unless such treatment is objectively justified. The same applies to the principle of non-discrimination, which is merely the specific expression of the general principle of equal treatment and constitutes, in conjunction with the latter, one of the fundamental rights of EU law with which the Court of Justice of the European Union ensures compliance.

In that regard, where an institution decides to organise an internal competition in accordance with the Staff Regulations, that competition, one of the purposes of which is to appoint temporary staff of the institution as established officials, is inherently intended only for officials and temporary staff members in the service of the institution, in whatever capacity. The factual and legal situation, as regards the possibility of taking part in the competition, of those officials and temporary staff, including staff seconded outside the institution, is thus not comparable to that of temporary staff in the service of an executive agency separate from the institution, who, consequently, are not in the service of that institution. Accordingly, it cannot reasonably be claimed that a competition notice infringes the principles of equal treatment and non-discrimination by allowing officials of an institution, including those seconded as temporary staff to the executive agencies, to apply for an internal competition, while denying access to temporary staff directly recruited by those agencies.

(see paras 48-50)

See:

Judgment of 8 November 1990 in Bataille and Others v Parliament, T‑56/89, EU:T:1990:64, para. 47

Judgment of 24 September 2009 in Brown v Commission, F‑37/05, EU:F:2009:121, para. 64 and the case-law cited therein