JUDGMENT OF THE EUROPEAN UNION
CIVIL SERVICE TRIBUNAL

(Second Chamber)

1 February 2012

Case F‑123/10

Giovanni Bancale and Roberto Buccheri

v

European Commission

(Civil service –Temporary staff — Internal competitions — Conditions for admission — Professional experience acquired after obtaining the diploma — Diploma — Qualifications obtained before obtaining the diploma — Equivalence)

Application:      brought under Article 270 TFEU, applicable to the EAEC Treaty by virtue of Article 106a thereof, in which Mr Bancale and Mr Buccheri, members of the temporary staff of the Commission at the European Anti-Fraud Office (OLAF), brought the present action essentially seeking annulment of the decisions of the Selection Boards in internal competitions COM/INT/OLAF/09/AD 8 and COM/INT/OLAF/09/AD 10 to reject their respective applications for those competitions.

Held:      The action is dismissed. The applicants are to bear all the costs.

Summary

1.      Procedure — Application initiating proceedings — Formal requirements — Identification of the subject-matter of the dispute

(Rules of Procedure of the Civil Service Tribunal, Art. 35(1)(e))

2.      Officials — Actions — Act adversely affecting a member of staff — Decision adopted after reconsideration of a previous decision — Decision adopted by a selection board in a competition after reconsideration of the file of a candidate not admitted to the competition

(Staff Regulations, Arts 90(2) and 91(1))

3.      Officials — Competitions — Conditions for admission — Requirements stricter than those laid down in the Staff Regulations with regard to grading — Lawfulness

(Staff Regulations, Arts 5 and 29; Annex III)

4.      Officials — Competitions — Conditions for admission — Requirement for a number of years’ professional experience acquired after obtaining the diploma giving access to the competition — Lawfulness

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

1.      Under Article 35(1)(e) of the Rules of Procedure of the Civil Service Tribunal the application must contain a statement of the pleas and arguments of fact and law on which it is based. That statement must be sufficiently clear and precise to enable the defendant to prepare its defence and the Tribunal to rule on the application, if necessary without any further information. In order to guarantee legal certainty and the sound administration of justice it is necessary, in order for an action to be admissible, that the essential matters of law and fact relied on are stated coherently and intelligibly in the application itself.

(see para. 38)

See:

15 February 2011, F‑76/09 AH v Commission, para. 29

2.      When a candidate in a competition seeks reconsideration of a decision adopted by the selection board, it is the decision adopted by the latter after it has reconsidered the candidate’s situation that constitutes the act adversely affecting the candidate.

(see para. 42)

See:

31 January 2006, T‑293/03 Giulietti v Commission, para. 27; 13 December 2006, T‑173/05 Heus v Commission, para. 19

3.      The provisions of Article 5 of the Staff Regulations seek to provide a general definition, based on the nature of the duties attached to each post, of the minimum levels of university or secondary education and professional training, or in certain cases professional experience, required for each function group and the various grades, and do not concern conditions of recruitment, which are governed by the provisions of Article 29 and Annex III to the Staff Regulations. It follows that there is nothing to prevent there being fixed in notices of competition conditions in relation to certain posts or certain categories of posts which are more rigorous than those which correspond to the minimum requirements resulting from the classification of posts, whether such conditions are fixed in order to fill a specific vacant post or for the purpose of constituting a reserve with which to fill posts in a certain category.

(see para. 52)

See:

16 March 2005, T‑329/03 Ricci v Commission, para. 70

4.      The Staff Regulations confer a wide discretion on the institutions for the organisation of competitions. That discretion must be exercised when the appointing authority adopts a competition notice and, in particular, lays down the conditions for admission to the competition. The exercise of that discretion must, however, be compatible with the mandatory provisions of the first paragraph of Article 27 and Article 29(1) of the Staff Regulations.

The choices made by the appointing authority under the wide discretion it enjoys in this regard must therefore always be made in the light of the requirements of the posts to be filled and, more generally, the interests of the service.

It is clear from Article 5(2) of the Staff Regulations, read in conjunction with Article 5(3), that grades AD 8 and AD 10 are higher grades in the administrators’ function group, involving, in particular, managerial, conceptual and analytical duties.

In a situation where a competition is designed to fill officials’ posts in those grades, the requirement for a certain number of years’ professional experience acquired after obtaining the diploma giving access to the competition appears to be an appropriate method for the institution to secure the services of officials in possession of the qualities laid down in the first paragraph of Article 27 of the Staff Regulations and thus to safeguard the interests of the service.

Professional experience acquired after obtaining a diploma and related to that qualification is more likely to give candidates deeper insight into the application of academic approaches to practical problems than professional experience acquired before obtaining the diploma. It is, as a rule, more enriching than experience acquired before obtaining the diploma in that it enables candidates to put previously acquired academic concepts into practice and thus to broaden their professional skills. Moreover, it increases the probability that candidates genuinely have professional experience in performing administrator-level duties. It is thus a reliable indication that candidates have the qualities required.

(see paras 66, 76, 79-81)

See:

21 November 2000, T‑214/99 Carrasco Benítez v Commission, paras 52 and 53