Case T‑671/16

Vincent Villeneuve

v

European Commission

(Civil Service — Recruitment — Open competition — Notice of competition EPSO/AD/303/15 (AD 7) — Verification by EPSO of the conditions for admission to the competition — Professional experience of a period shorter than the minimum period required — Nature of the check of the eligibility condition relating to professional experience — Obligation to state reasons — Manifest error of assessment by the selection board of the competition — Equal treatment)

Summary — Judgment of the General Court (Fourth Chamber), 5 September 2018

1.      Actions brought by officials — Acts adversely affecting an official — Decision adopted after reconsideration of a previous decision — Decision adopted by a competition selection board after reviewing the file of a candidate not admitted to the competition

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

2.      Officials — Competitions — Competition based on qualifications and tests — Decision not to admit to tests — Obligation to state reasons — Scope

(Staff Regulations of Officials, Art. 25, second para.)

3.      Officials — Action brought against a decision rejecting an application — Plea based on the lack of statement of reasons — Taking into consideration of the reasons in the decision rejecting the claim

(Staff Regulations of Officials, Arts 90 and 91)

4.      Actions brought by officials — Action brought against a decision not to admit the applicant to the tests of a competition — Possibility of alleging that the notice of competition was irregular — Conditions

(Staff Regulations of Officials, Arts 90 and 91)

5.      Officials — Competitions — Competition based on qualifications and tests — Verification that the admission requirements laid down in the notice of competition were satisfied — Decision to exclude a candidate made after that verification — Lawfulness

(Staff Regulations of Officials, Annex III, Art. 5, first para. and fourth para.)

6.      Officials — Competitions — Competition based on qualifications and tests — Verification that the admission requirements laid down in the notice of competition were satisfied — Scope — Comparison of the candidate’s professional experience with the duties of the post to be filled — Lawfulness

(Staff Regulations of Officials, Annex III, Art. 5)

7.      Officials — Competitions — Competition based on qualifications and tests — Conditions for admission — Fixing by the notice of competition — Selection board’s assessment of candidates’ professional experience — Judicial review — Limits

(Staff Regulations of Officials, Annex III, Arts 2 and 5)

8.      Officials — Competitions — Conditions for admission — Equal treatment — Exclusion of a candidate before the selection on the basis of qualifications — Lawfulness

1.      See the text of the decision.

(see para. 24)

2.      The purpose of the obligation to state reasons, laid down in the second paragraph of Article 25 of the Staff Regulations, is, one the one hand, to provide the person concerned with sufficient details to allow him to ascertain whether or not the decision is well founded and, on the other, to make it possible for the decision to be the subject of judicial review. As regards, in particular, decisions refusing a candidate admission to a competition, the selection board must indicate precisely which conditions in the notice of competition were considered not to have been satisfied by the candidate. The selection board in a competition in which there is a large number of applicants may confine itself, at the stage of admission to the tests for such a competition, to stating the reasons for its refusal in a summary manner by informing the candidates only of the selection criteria and the selection board’s decision, unless those candidates expressly request that it provide individual explanations.

(see paras 34, 35)

3.      See the text of the decision.

(see para. 38)

4.      Although a candidate to a competition is entitled to lodge a direct action, within the period prescribed, against a notice of competition where it constitutes a decision by the appointing authority adversely affecting him within the meaning of Articles 90 and 91 of the Staff Regulations, he is not barred from bringing an action directed against the decision not to admit him to the competition solely on the grounds that he did not challenge the notice of competition in due time. Such a candidate must not be deprived of the right to challenge all the elements, including those defined in the notice of competition, comprising the justification for the individual decision concerning him taken on the basis of the conditions laid down in the notice, inasmuch as only the decision applying them affects his legal position individually and enables him to ascertain with certainty how and to what extent his personal interests are affected. However, where there is no close connection between the statement of reasons for the challenged decision and the plea alleging irregularities in the notice of competition, which has not been challenged in good time, that plea must be declared inadmissible, in accordance with the mandatory rules governing time limits for bringing proceedings.

(see paras 54, 55)

5.      The elimination of candidates to a competition based on qualifications and tests at the end of the stage of verification of eligibility requirements is expressly provided for by the procedure for competitions, as set out in the first and fourth paragraphs of Article 5 of Annex III to the Staff Regulation.

It therefore follows from Article 5 of Annex III to the Staff Regulations and from point 2.4 of the General rules governing open competitions that the second stage concerns only those candidates who satisfy the eligibility conditions. Thus, under the applicable provisions, the competition not only could have, but should have provided for the prior checking of the eligibility requirements before the selection board went on to examine qualifications.

(see paras 68, 70)

6.      However, if, in the context of the first stage, the selection board must check only whether the candidate has experience in the field of the competition, it must, to that end, compare the activities pursued by the candidate, as set out in his application form, with the duties of the post to be filled.

The conditions for admission must be interpreted in the light of the aims of the competition at issue, as they result from the description of the duties relating to the posts to be filled, and therefore the part concerning the nature of the duties and that concerning the conditions for admission set out in the notice of competition concerned must be considered together.

In this case, by comparing the activities pursued by the candidate, described in the ‘Professional Experience’ tab of his application form, with the duties of the post to be filled, as described in the notice of competition, the selection board did not assess whether his experience was appropriate for the post to be filled, an assessment which falls under the stage of the selection based on qualifications, but confined itself to checking whether his professional experience was in the field of the competition.

(see paras 87-89, 91)

7.      With regard to a condition for admission to the competition regarding professional experience, the function of the notice of competition does not preclude the selection board from being responsible for determining in each case whether the professional experience declared by each candidate corresponds to the level required by the notice of competition. The selection board enjoys broad discretion in that regard, under the provisions of the Staff Regulations concerning competition procedures, when assessing the nature and duration of the previous professional experience of candidates and its relevance to the post to be filled. In its review of legality, the General Court must therefore confine itself to ascertaining whether the selection board’s exercise of that discretion was free from manifest error.

(see paras 97, 98)

8.      The principle of equal treatment, as a general principle of EU law, requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified. In a matter which involves the exercise of a discretion, that principle is infringed where the institution concerned makes a differentiation which is arbitrary or manifestly inappropriate in relation to the objective pursued by the rules.

A notice of competition which draws a distinction between the stage of checking eligibility requirements and the stage of the selection based on qualifications, where the latter stage took effect only in respect of the candidates chosen at the end of the previous stage is not unlawful. Accordingly, a candidate excluded at the end of the eligibility stage cannot compare his situation with that of admissible candidates, whose applications have been examined in the context of the second stage of the selection based on qualifications and who, therefore, were not in the same situation as him.

(see paras 118-123)