JUDGMENT OF THE GENERAL COURT (Fourth Chamber)
7 September 2022 (*)
(Civil service – Recruitment – Notice of open competition EPSO/AD/378/20 (AD 7) – Croatian-language lawyer-linguists at the Court of Justice of the European Union – Decision of the selection board not to admit the applicant to the next stage of the competition – Conditions for admission – Condition relating to a level of education corresponding to completed university studies attested by a diploma in Croatian law – Possession of a French diploma in law – Freedom of movement for workers – Action for annulment)
In Case T‑713/20,
OQ, represented by R. Štaba, lawyer,
applicant,
v
European Commission, represented by D. Milanowska, R. Mrljić and L. Vernier, acting as Agents,
defendant,
THE GENERAL COURT (Fourth Chamber),
composed of S. Gervasoni, President, L. Madise (Rapporteur) and J. Martín y Pérez de Nanclares, Judges,
Registrar: E. Coulon,
having regard to the written part of the procedure,
having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,
gives the following
Judgment
1 By his action under Article 270 TFEU, the applicant, OQ, seeks annulment of the decision of the competition selection board (‘the selection board’) of 3 September 2020 not to admit him to the next stage of open competition EPSO/AD/378/20 for the purposes of drawing up a reserve list of Croatian-language lawyer-linguists for the Court of Justice of the European Union. The applicant also seeks the annulment of the rejection of his request for that decision to be reviewed, adopted by decision of the selection board of 12 October 2020.
Background to the dispute
2 The applicant, a Croatian national, completed his higher level studies in law in Italy and France. In 2012, he obtained in France a master’s degree in ‘law, economics and management, private law, lawyer-linguist specialism’ from the University of Poitiers, which was recognised in Croatia by virtue of ‘professional recognition’ for the purposes of employment. The applicant worked for just over three years, from the end of 2013 to the beginning of 2017, as a translator at the European Parliament in the Croatian language unit and, from autumn 2018, he was a trainee lawyer in Croatia, a status which he held when he submitted his application in April 2020 for the open competition referred to in paragraph 1 above. He referred to those various elements in his application form for that competition.
3 The notice of competition for the competition in which the applicant participated (OJ 2020 C 72 A, p. 1; ‘the competition notice’) stated inter alia, in respect of the specific conditions of recruitment, that no professional experience was required and, in respect of ‘qualifications sought’, which related both to knowledge of languages and the possession of qualifications, that, for the latter aspect, ‘a level of education corresponding to completed university studies attested by one of the following qualifications in Croatian law: Diploma iz hrvatskog prava stečena na sveučilišnom studiju (magistar/magistra prava ili diplomirani pravnik/diplomirana pravnica)’ was required. It stated that, to determine whether a candidate has attained a level corresponding to completed university studies, the selection board would take into account the rules in force at the time when the diploma was awarded.
4 In its decision of 3 September 2020, the selection board informed the applicant:
‘On the basis of the information provided in your application form, you do not satisfy the conditions for admission relating to qualifications: you do not have a level of education corresponding to completed university studies attested by one of the qualifications in Croatian law [requested].’
5 In his request for review, the applicant argued that his French master’s degree had been recognised in Croatia as equivalent to a Croatian Master 2 by an order of the competent authority, which he attached. The scope of such an order in the Croatian legal order was said to have been clarified in decisions of the Ustavni sud (Constitutional Court, Croatia) and the Vrhovni sud (Supreme Court, Croatia), which the applicant also attached. Referring to the judgment of 13 October 2017, Brouillard v Commission (T‑572/16, not published, EU:T:2017:720; ‘the judgment in Brouillard III’), the applicant argued that the selection board was obliged to take account of the legal effects of the abovementioned order, namely that, under Croatian law, his French master’s degree had the same effects as a Master 2 diploma obtained in Croatia.
6 In its decision of 12 October 2020, the selection board rejected the request for review on the ground that it was bound by the competition notice which determined the competencies required for the posts to be filled and that all applications had been examined in the same way in the light of that notice. It noted that lawyer-linguists of the Court of Justice of the European Union must be able to translate often complex legal or legislative texts into the ‘language of the competition’ from at least two other languages, which required, in the present case, a thorough knowledge of the Croatian legal system and Croatian legal terminology which, again, could be ensured only by holding a university degree in Croatian law. In that regard, the selection board pointed out that the applicant’s studies had not focused on Croatian law. The recognition of his French diploma for the purposes of employment in Croatia was also said to fail to demonstrate his knowledge of the Croatian legal system and terminology.
Forms of order sought
7 The applicant claims that the decisions of the selection board of 3 September and 12 October 2020 should be annulled and that the European Commission should be ordered to pay the costs.
8 The Commission contends that the action should be dismissed and that the applicant should be ordered to pay the costs.
Law
9 As a preliminary point, it should be recalled that Article 4 of Decision 2002/620/EC of the European Parliament, the Council, the Commission, the Court of Justice, the Court of Auditors, the Economic and Social Committee, the Committee of the Regions and the European Ombudsman of 25 July 2002 establishing a European Communities Personnel Selection Office (OJ 2002 L 197, p. 53) provides:
‘In accordance with Article 91a of the Staff Regulations, requests and complaints relating to the exercise of the powers conferred under Article 2(1) and (2) of this Decision shall be lodged with the Office. Any appeal in these areas shall be against the Commission.’
10 That is why the defendant in the present case is the Commission even though a decision of a selection board in a competition organised by the European Personnel Selection Office (EPSO) on behalf of the Court of Justice of the European Union is at issue. In response to a question from the General Court, the applicant stated that he was indeed referring to the Commission as the defendant although he had initially mentioned EPSO in the application (see, to that effect, judgment of 16 October 2013, Italy v Commission, T‑248/10, not published, EU:T:2013:534, paragraphs 25 and 26 and the case-law cited).
11 It should also be recalled that when a candidate in a competition requests, in accordance with a rule laid down by the notice of that competition, review of a decision taken by a selection board, as is the case here, it is the decision taken by the selection board after review of the candidate’s situation which is substituted for the selection board’s initial decision and which therefore must be regarded as the act adversely affecting that candidate (judgments of 16 December 1987, Beiten v Commission, 206/85, EU:C:1987:559, paragraph 8; of 11 February 1992, Panagiotopoulou v Parliament, T‑16/90, EU:T:1992:11, paragraph 20; and of 5 September 2018, Villeneuve v Commission, T‑671/16, EU:T:2018:519, paragraph 24).
12 Consequently, in the present case, the claims for annulment must be regarded as being directed against the only decision adversely affecting the applicant, namely the decision of the selection board of 12 October 2020 (‘the contested decision’), adopted in response to the request for review of its decision of 3 September 2020, which it replaces.
13 The applicant submits as pleas for annulment a misuse of powers on the part of the selection board, which failed to take account of the recognition in Croatia of his French diploma, and a manifest error of assessment by the selection board, in particular for failing to take account of his professional experience.
14 In his first plea, the applicant submits that the selection board encroached upon the powers of the Croatian authorities which were said to have recognised his French diploma as equivalent to a Croatian diploma by virtue of a professional recognition of foreign higher education diplomas for the purposes of employment in Croatia. That recognition procedure is said to take account only of the level of knowledge, skills and competences acquired without comparing the teaching programmes and, accordingly, in the applicant’s view, the selection board could not rely on the absence, in that procedure, of a comparison of the programmes leading respectively to the applicant’s French diploma and the Croatian diplomas requested in the competition notice and on the failure by the Croatian authorities to verify the applicant’s knowledge of Croatian law in order to reject his application. The applicant’s French diploma is said to have enabled him to enter the legal profession in Croatia and to practise as a trainee lawyer at the Zagreb Bar (Croatia) in two successive law firms, even though one of the fundamental conditions for entitlement to that role was to have completed university studies in law in a law school in Croatia. This is said to demonstrate that, under Croatian law, the applicant’s law degree was treated in exactly the same way as a law degree at an equivalent level awarded in Croatia. The applicant submits that those factors, including his professional experience to which he referred in his application form, demonstrated that he was at a fully equivalent level, both substantively and formally, to that attested by the diplomas required by the competition notice. Therefore, the selection board’s decision is said to infringe his fundamental rights as a citizen of the European Union as enshrined in the Charter of Fundamental Rights of the European Union, in particular the right to work and the right to equality as well as the prohibition of discrimination.
15 In his second plea, the applicant submits that, by not taking those factors into account, the selection board committed a manifest error of assessment, in particular as regards the level of his knowledge of Croatian law. In making that error, the selection board is said to have overlooked the contributions of his experience, both as regards the practice of Croatian law and in the field of translation. The applicant states that, a few months after submitting his application, he also passed the ‘judicial examination’ which trainee lawyers may take after 18 months of practice in Croatia, which allows them to perform all the functions of a lawyer. This is said to demonstrate a posteriori that he did have the knowledge of the Croatian legal system and terminology required in the competition notice. In that regard, he criticises the inconsistency between the rejection of his application and the acceptance of applications from persons who had only theoretical knowledge of Croatian law.
16 In the reply, the applicant responds to the Commission without linking his arguments to any of his pleas for annulment since, in the defence, the Commission itself responded to those pleas together on the ground that they largely overlapped. The applicant alleges infringement by the selection board of Article 5(3)(c) and Article 27 of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), concerning minimum levels of training for officials and the principles that must guide their recruitment, respectively. More generally, he submits that the conditions for participation in a competition may not be contrary to EU rules and that the selection board cannot have unlimited discretion in determining whether candidates’ qualifications and professional experience correspond to the level required in the competition notice. He states that the hierarchy of rules which the selection board should apply is as follows: the founding Treaties, the Staff Regulations and the competition notice. He submits in that regard that the selection board infringed Article 45 TFEU on freedom of movement for workers within the Union, which applies to recruitment both within the EU institutions and within the Member States. On that basis, the applicant considers that the selection board should have applied the principles laid down in the judgment of 6 October 2015, Brouillard (C‑298/14, EU:C:2015:652; ‘the judgment in Brouillard I’), that is to say, it should have taken into consideration all of his diplomas, certificates and other qualifications and his relevant professional experience by comparing the qualifications attested by those elements and those required in the competition notice.
17 As to the substance, the Commission’s response, supplementing what the selection board stated in its decision of 3 September 2020 and in the contested decision, was that, having regard to the needs of the Croatian-language lawyer-linguist posts at the Court of Justice of the European Union, the competition notice set out clearly and precisely the requirements in respect of qualifications in order to participate in the competition: a university degree, the content of the studies, namely Croatian law, and the qualifications, namely one of the Croatian law diplomas listed. In the rejoinder, the Commission states that the competition notice did not require all the studies to have been completed in Croatia. The applicant is said to have failed to satisfy the second and third requirements mentioned above. The Commission states that it has been repeatedly held that the selection board in a competition is required to comply with the wording of the competition notice. The recognition of the applicant’s French master’s degree in Croatia, for the purposes of employment in Croatia, even in order to join the legal profession there as a trainee lawyer, does not make it one of the diplomas in Croatian law required to take part in the competition in which the applicant participated in order to perform the duties of a lawyer-linguist in question, nor to perform duties in Croatia. The Commission states that, in that regard, the selection board did not encroach upon the powers of the Croatian authorities. As regards the applicant’s professional experience, that is said to be irrelevant since the competition notice stated that no professional experience was required. If it had taken that into account, the selection board would not have complied with the competition notice.
18 Moreover, in the rejoinder, the Commission argues that the reliance by the applicant, at the reply stage, on Article 5(3)(c) and Article 27 of the Staff Regulations and Article 45 TFEU is inadmissible. In its view, the applicant has raised new pleas in law in the course of the proceedings, in breach of Article 84(1) of the Rules of Procedure of the General Court.
19 In the following, the General Court will examine together the two complaints put forward as pleas for annulment in the application. As the Commission has stated, they overlap to a large extent. Moreover, under the headings ‘misuse of powers’ and ‘manifest error of assessment’, they in fact encompass various pleas and arguments which the Court will examine as necessary.
20 As the Commission submits, the selection board of a competition is bound by the terms of the competition notice. The first paragraph of Article 5 of Annex III to the Staff Regulations, relating to competitions, provides that, ‘after examining [the candidates’] files, the Selection Board shall draw up a list of candidates who meet the requirements set out in the notice of competition’. The purpose of that provision is to comply with the essential role which the competition notice must play according to the Staff Regulations, which is precisely to give those interested the most accurate information possible about the conditions of eligibility for the post to enable them to judge, first, whether they should apply for it and, second, what supporting documents are important for the proceedings of the selection board and must therefore be enclosed with application forms (see, to that effect, judgments of 28 June 1979, Anselme and Constant v Commission, 255/78, EU:C:1979:175, paragraph 9, and of 28 November 1991, Van Hecken v ESC, T‑158/89, EU:T:1991:63, paragraph 23). Thus, the selection board may neither add selection criteria to those set out in the competition notice, as was held in the cases giving rise to the two judgments mentioned in the present paragraph, nor, conversely, remove them (see, to that effect, judgment of 14 December 2018, UR v Commission, T‑761/17, not published, EU:T:2018:968, paragraph 67).
21 In the present case, as set out in paragraph 3 above, the competition notice stated that, with regard to qualifications, it required ‘a level of education corresponding to completed university studies attested by one of the following qualifications in Croatian law: Diploma iz hrvatskog prava stečena na sveučilišnom studiju (magistar/magistra prava ili diplomirani pravnik/diplomirana pravnica)’. That provision, which expressly refers to Croatian law diplomas, could not be interpreted by the selection board as allowing it, in compliance with the competition notice, to accept equivalents to the possession of those diplomas. That was also the view taken by the selection board when it stated in its decision of 3 September 2020:
‘On the basis of the information provided in your application form, you do not satisfy the conditions for admission relating to qualifications: you do not have a level of education corresponding to completed university studies attested by one of the qualifications in Croatian law [requested].’
22 It must therefore be held that the applicant is complaining that the selection board complied with an unlawful competition notice. In other words, the applicant must be regarded as raising, in particular by means of the pleas and arguments set out in paragraphs 14 to 16 above, a plea of illegality, in accordance with Article 277 TFEU, in respect of the provision of the competition notice relating to the qualifications required, in particular on the ground that it is contrary to Article 45 TFEU.
23 In that regard, there is no requirement under EU law for a plea of illegality to be raised formally. A plea of illegality may be raised implicitly since it is relatively clear from the application that the applicant is in fact making such a plea (see judgment of 27 November 2018, Mouvement pour une Europe des nations et des libertés v Parliament, T‑829/16, EU:T:2018:840, paragraph 66 and the case-law cited).
24 Moreover, contrary to what the Commission maintains in the rejoinder, the applicant’s reliance on Article 45 TFEU at the reply stage, in particular in connection with the interpretation given to it in the judgment in Brouillard I, is not out of time in the present proceedings and, accordingly, is not inadmissible under Article 84(1) of the Rules of Procedure which prohibits the introduction of new pleas in law in the course of proceedings unless they are based on matters of law or of fact which come to light in the course of the procedure. As is clear from paragraph 16 above, the reliance on Article 45 TFEU in the reply is merely an amplification of the pleas in law expressly raised in the application since the applicant essentially complained in the application that the value of his French diploma in Croatia had not been taken into account, nor had his professional experience which was in part acquired outside Croatia, which are elements that may be directly relevant in the assessment of a measure in the light of the requirements arising from that provision as interpreted in the judgment in Brouillard I (see, to that effect and by analogy, judgments of 19 May 1983, Verros v Parliament, 306/81, EU:C:1983:143, paragraphs 9 and 10, and of 26 February 2016, Bodson and Others v EIB, T‑240/14 P, EU:T:2016:104, paragraph 30). As regards more specifically the reliance on the judgment in Brouillard I, it must be noted that there is nothing to prevent an applicant from putting forward additional case-law precedents in the course of the proceedings, provided that they support a plea which is itself admissible.
25 However, the Commission is right to argue that the pleas put forward in the reply alleging infringement of Article 5(3)(c) and Article 27 of the Staff Regulations are inadmissible. The arguments in the application do not establish in a sufficiently direct and obvious way that those provisions were disregarded and no new factor has arisen in the course of the proceedings which would justify the introduction of those new pleas in law at the reply stage.
26 With that in mind, it is necessary to examine first the plea in law according to which the competition notice led the selection board to encroach upon the powers of the Croatian authorities which are said to have recognised the applicant’s French diploma as equivalent to a Croatian diploma by virtue of a professional recognition of foreign higher education diplomas for the purposes of employment in Croatia.
27 That plea in law must be rejected. The competition notice did not lead the selection board to challenge the fact that the applicant’s French diploma was, according to a decision by the competent Croatian authority, recognised as equivalent to a Croatian diploma by virtue of a professional recognition of foreign higher education diplomas for the purposes of employment in Croatia. However, that national recognition for those purposes does not mean that that French diploma had to be recognised automatically, for the purposes of a recruitment competition in an EU institution, as equivalent to the Croatian diplomas requested in the competition notice. The Croatian authorities do not have the competence to determine the conditions of recruitment in such an institution. Therefore, in the present case, the competition notice cannot have led the selection board to encroach upon the powers of the Croatian authorities. It must, however, be made clear from the outset that that finding does not mean that no consideration whatsoever must be given to such national recognition by an EU institution organising a recruitment competition when examining applications claiming it.
28 Next, it is necessary to examine the plea that the competition notice published in the present case on behalf of the Court of Justice of the European Union is, in the light of the applicant’s situation as presented in his application form, contrary to Article 45 TFEU.
29 Article 45 TFEU provides, inter alia, that freedom of movement for workers is to be secured within the Union and that it is to entail the right, subject to limitations and conditions which are not relevant in the present case, to accept offers of employment actually made, to move freely within the territory of Member States for this purpose and to stay there for the purpose of employment.
30 Where a worker has exercised his or her freedom of movement between Member States, he or she may, if the conditions for the application of that provision are met, rely on Article 45 TFEU before an EU institution in the same way as before the authorities of the Member States (see, to that effect, together, judgments of 15 March 1989, Echternach and Moritz, 389/87 and 390/87, EU:C:1989:130, paragraph 11; of 6 October 2016, Adrien and Others, C‑466/15, EU:C:2016:749, paragraph 25; and of 14 September 2015, Brouillard v Court of Justice, T‑420/13, not published, EU:T:2015:633; ‘the judgment in Brouillard II’, paragraph 93).
31 In the present case, having completed his university studies in Member States other than that of which he is a national, namely Croatia, the applicant may usefully rely on Article 45 TFEU in a process for accessing employment in an EU institution where, for that purpose, that institution does not place the law degree which he obtained in France on the same footing as the law degrees of an equivalent level awarded in Croatia which were requested in the competition notice. The freedom of movement of nationals of the Member States provided for by the FEU Treaty would not be fully realised if the benefit of that provision were denied to those nationals who have taken advantage of the provisions of EU law to acquire vocational qualifications in a Member State other than that of which they are nationals (see, to that effect, judgments of 31 March 1993, Kraus, C‑19/92, EU:C:1993:125, paragraphs 16 and 17, and Brouillard I, paragraphs 27 to 29).
32 Next, it should be noted that the competition notice stating that, with regard to qualifications, ‘a level of education corresponding to completed university studies attested by one of the … qualifications in Croatian law [listed]’ was required, is worded in the same way as the competition notice at issue in the case which gave rise to the judgment in Brouillard III. In that judgment, it was held that such wording did indeed indicate that possession of one of the law degrees mentioned was requested, but not the completion of a specific course or learning in a number of specific disciplines during the course which culminated in the award of one of those qualifications (the judgment in Brouillard III, paragraphs 49 and 50). The Court has no reason to depart from that interpretation in the present case, which the Commission confirms, as set out in paragraph 17 above. Candidates who had completed part of their studies outside Croatia were therefore not excluded from the competition at issue in the present case on that ground alone.
33 It must also be noted that Article 45 TFEU, in the absence of harmonisation measures adopted for that purpose on the basis of Article 46 TFEU, does not require an entity, when recruiting a worker by requiring that candidates possess certain specific diplomas, to automatically accept as equivalent to those diplomas other diplomas awarded in other Member States, even if the latter diplomas attest to the same level of studies in the same field.
34 In the absence of the harmonisation referred to, such an entity is entitled to lay down the specific knowledge and qualifications needed in order to pursue the role concerned and to require the production of a diploma certifying that the holder has the relevant knowledge and qualifications (see, to that effect, judgments of 7 May 1991, Vlassopoulou, C‑340/89, EU:C:1991:193, paragraph 9, and Brouillard I, paragraphs 48 to 50). In particular, an EU institution has, subject to the minimum requirements laid down in the Staff Regulations, a wide discretion in deciding upon the criteria of ability required by the posts to be filled (judgments of 16 October 1975, Deboeck v Commission, 90/74, EU:C:1975:128, paragraph 29, and of 27 September 2006, Blackler v Parliament, T‑420/04, EU:T:2006:282, paragraph 45). Moreover, in the present case, the applicant does not dispute the need for the candidates in the competition in which he took part, seeking to recruit Croatian-language lawyer-linguists to the Court of Justice of the European Union, to have a thorough knowledge of the Croatian legal system and Croatian legal terminology, which had to be demonstrated by the Croatian law diplomas requested.
35 While Article 45 TFEU requires account to be taken of other diplomas, awarded in other Member States, put forward by candidates, in order to make a comparison between, on the one hand, the skills attested by those diplomas and, on the other, the skills attested by the diplomas requested by the entity in question (see, to that effect, judgments of 7 May 1991, Vlassopoulou, C‑340/89, EU:C:1991:193, paragraphs 16 to 19, and Brouillard I, paragraphs 54 and 55), that provision does not require any automatic recognition of equivalence between those various diplomas.
36 The notice for the competition in which the applicant participated did not therefore infringe Article 45 TFEU merely because it did not provide that qualifications in law awarded in Member States other than Croatia, attesting to the same level of study as that attested by the Croatian diplomas requested, including if they were recognised as equivalent to those diplomas by the Croatian authorities, would automatically be recognised as equivalent in the context of that competition.
37 Nevertheless, the failure to take into account studies, attested by diplomas, and the professional experience which a worker applying for a position has respectively completed and acquired by making use of the freedom of movement between Member States enshrined in Article 45 TFEU would have the effect of restricting the scope of that fundamental freedom guaranteed by the FEU Treaty (see, to that effect, judgments of 31 March 1993, Kraus, C‑19/92, EU:C:1993:125, paragraph 32, and of 10 December 2009, Peśla, C‑345/08, EU:C:2009:771, paragraph 36). In that regard, in the present case, the applicant refers in particular to the case which gave rise to the judgment in Brouillard I.
38 In the case which gave rise to the judgment in Brouillard I, a Belgian national, Mr Brouillard, had started his higher level studies in Belgium and had subsequently obtained in France the same master’s degree as that obtained by the applicant in the present case, namely the master’s degree in ‘law, economics and management, private law, lawyer-linguist specialism’ from the University of Poitiers. In 2011, when he was already working at the Belgian Cour de cassation (Court of Cassation), he participated in a competition to recruit legal secretaries at that court. His application had been declared inadmissible on the ground that he was required to hold a doctorate, licentiate or master’s degree from a Belgian university which would have attested to his ability to perform the role. His application for recognition that his French master’s degree was equivalent to the Belgian master’s degree in law had, moreover, subsequently been rejected by the competent Belgian authority on the ground that his studies completed abroad did not meet the requirements of Belgian law faculties, which were said to train students for the legal duties in the Belgian legal system. In particular, it was stated that certain skills in Belgian law were not acquired by the person concerned during his studies. Following the lodging of an appeal by Mr Brouillard against the decision declaring his application inadmissible, the Belgian Conseil d’État (Council of State) referred a number of questions to the Court of Justice for a preliminary ruling.
39 In paragraph 47 of the judgment in Brouillard I, the Court of Justice summarised the relevant questions as follows:
‘… the referring court asks essentially whether Article 45 TFEU must be interpreted as meaning that the selection board for the competition to recruit legal secretaries for a court of a Member State, when it examines an application to take part in that competition submitted by a national of that Member State, may not make participation contingent on the possession of the diplomas required by the law of that Member State or to the recognition of academic equivalence of a master’s degree awarded by the university of another Member State without taking into consideration all the diplomas, certificates and other titles and the relevant professional experience of the person concerned, by making a comparison of the professional qualifications attested by those qualifications and those required by that law.’
40 By that wording, the Court of Justice drew a distinction between, on the one hand, the equivalence generally recognised, or not, in a Member State of a diploma awarded in another Member State and, on the other, the assessment in concreto which a selection board for a competition is likely to also make of the suitability of the qualifications obtained, including through professional experience, by a candidate who has exercised his or her right to freedom of movement between Member States in relation to the qualifications which are requested in order to be able to take part in that competition. In paragraph 50 of the judgment in Brouillard I, the Court stated that, in that case, the Member State concerned was free to determine knowledge and qualifications deemed to be necessary in order to gain access to the posts covered.
41 In paragraphs 53 and 54 of the judgment in Brouillard I, the Court of Justice recalled that the national rules establishing the conditions for qualifications, even when applied in an indiscriminate manner in relation to nationality, may infringe the exercise of freedom of movement for workers if the national rules at issue fail to take account of learning, skills and qualifications already acquired by the person concerned in another Member State. It inferred from that that the authorities of a Member State which receive a request for authorisation, submitted by an EU national, to pursue a profession to which access, under national law, depends upon the possession of a diploma or a professional qualification or periods of practical experience, must take into consideration all of the diplomas, certificates and other evidence of formal qualifications of the person concerned and his or her relevant experience by comparing the specialised knowledge and abilities so certified and that experience with the knowledge and qualifications required by the national legislation.
42 In paragraph 57 of the judgment in Brouillard I, the Court of Justice recalled that, if the comparison of diplomas obtained in other Member States with the national diplomas requested were to result in the finding that the knowledge and qualifications attested by those different diplomas correspond only partially, due in particular to differences in the legal framework between Member States, the competent authority could require the person concerned to show that he or she has acquired the knowledge and qualifications which are lacking.
43 In paragraphs 58 and 59 of the judgment in Brouillard I, the Court of Justice stated in that regard that it is for the competent national authorities to assess whether the knowledge acquired in the host Member State, either during a course of study or by way of practical experience, is sufficient in order to prove possession of the knowledge which is lacking and that, in so far as all practical experience in the pursuit of related activities can increase an applicant’s knowledge, it is incumbent on the competent national authorities to take into consideration all practical experience of use in the pursuit of the profession to which access is sought. The Court added that the precise value to attach to such experience must be determined by the competent authority in the light of the specific functions carried out, knowledge acquired and applied in pursuit of those functions, responsibilities assumed and the level of independence accorded to the person concerned.
44 In paragraph 65 of the judgment in Brouillard I, the Court noted inter alia that Mr Brouillard’s professional experience, in particular the experience he acquired in the services of the Belgian Cour de cassation (Court of Cassation), could appear to be relevant.
45 The Court of Justice therefore indicated to the national court that Article 45 TFEU must be interpreted as meaning that it precludes, in circumstances such as those at issue in the main proceedings, the selection board for a competition for recruitment of legal secretaries at a court of a Member State, where it examines an application to participate in that competition submitted by a national of that Member State, from making that participation contingent on the possession of diplomas required by the legislation of that Member State or the recognition of academic equivalence of a master’s degree awarded by the university of another Member State, without taking into consideration all of the diplomas, certificates and other qualifications, and the relevant professional experience of the person concerned, by comparing the professional qualifications attested by those qualifications with those required by that legislation.
46 In so far as, as stated in paragraph 30 above, the EU institutions, like the authorities of the Member States, are bound by the principles deriving from Article 45 TFEU in situations where that article applies, a very close analogy between the situation which gave rise to the judgment in Brouillard I, on which the applicant relies, and the situation giving rise to the present case must be established.
47 Therefore, as the applicant submits, his application for the open competition in which he took part could not be rejected solely on the ground that he did not hold one of the Croatian law diplomas requested in the competition notice since, in his application form, he mentioned not only that he held a master’s degree in French law of an equivalent level, that was clearly recognised in Croatia in order to gain access to the profession of a lawyer, but also that he had just over 3 years’ experience as a translator at the European Parliament in the Croatian language unit and 18 months’ experience as a trainee lawyer in Croatia. Such evidence was capable of helping to demonstrate that the applicant had the same qualifications as those attested by the Croatian legal diplomas requested, but they were acquired in a different way, in particular in the context of the exercise of his freedom of movement within the European Union, which the selection board should have been able to verify. As is apparent from paragraph 6 above, in view of the wording of the competition notice recalled in paragraph 3 above, the selection board was not in a position, when examining the applicant’s application, to go beyond the finding that he did not have one of the Croatian diplomas requested and that neither his French diploma, nor the recognition of that diploma for the purposes of employment in Croatia, demonstrated any knowledge of the Croatian legal system and terminology. Accordingly, the selection board was not able to examine the real significance of the applicant’s French diploma for the purpose of performing a legal role in Croatia, nor whether, considered with his professional experience, that element could attest to his knowledge of the Croatian legal system and terminology at the same level as that attested by the possession of the Croatian legal diplomas requested.
48 It must be noted that, contrary to the Commission’s submissions, the provision in the competition notice, in the specific conditions of recruitment, that no professional experience was required – in contradiction, moreover, with the other provision stipulating that such experience was one of the criteria for possible selection ‘based on qualifications’ and referred to as the ‘Talent Screener’, on the basis of the information provided in the application forms, which, if necessary was to reduce the number of candidates admitted to sit the tests to 20 times the number of successful candidates sought – cannot preclude professional experience from being taken into account in order to verify, in accordance with the interpretation of Article 45 TFEU given in the case-law, whether the qualifications attested by the national diplomas requested in a competition notice are met in some other way by a candidate who does not hold those diplomas and who may rely on the provisions contained in Article 45 TFEU.
49 It follows from the foregoing that, in the light of the applicant’s situation, by not allowing the selection board to examine his application in accordance with the principles deriving from Article 45 TFEU, the competition notice is unlawful in so far as its provision relating to qualifications led to the rejection of that application solely because the applicant did not hold one of the Croatian law diplomas requested in that notice. Since the selection board based the contested decision on that provision of the competition notice, which must be declared inapplicable to the applicant under Article 277 TFEU, the contested decision must be annulled without there being any need to examine the remainder of the parties’ arguments.
Costs
50 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. 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.
On those grounds,
THE GENERAL COURT (Fourth Chamber)
hereby:
1. Annuls the decision of the competition selection board of 12 October 2020 rejecting OQ’s request for review and refusing to admit him to the next stage of open competition EPSO/AD/378/20 for the purposes of drawing up a reserve list of ‘Croatian-language (HR) lawyer-linguists (AD 7)’ for the Court of Justice of the European Union;
2. Orders the European Commission to bear its own costs and pay those incurred by OQ.
Gervasoni | Madise | Martín y Pérez de Nanclares |
Delivered in open court in Luxembourg on 7 September 2022.
[Signatures]