JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(First Chamber)

17 October 2013

Case F‑77/12

Vasil Vasilev

v

European Commission

(Civil service — Open competition — Notice of competition EPSO/AD/208/11 — Lack of availability, at the preliminary test, of a keyboard for the applicant to use to which he was accustomed — Refusal of admission to the assessment tests — Equal treatment)

Application:      under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Mr Vasilev seeks, in particular, annulment of the decision of 10 May 2012 by which the selection board in open competition EPSO/AD/208/11 refused to admit him to the assessment tests in that competition.

Held:      The action is dismissed. Mr Vasilev is to bear his own costs and is ordered to pay those incurred by the European Commission.

Summary

1.      Actions brought by officials — Action brought against a decision not to admit the applicant to the tests in a competition — Possibility of relying on the unlawfulness of the organisation of the competition

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

2.      Officials — Competitions — Organisation of an open competition — Impossibility for the candidate to change the type of keyboard at the preliminary test — Breach of the principle of equal treatment — None

(Staff Regulations, Arts 1d and 27, first para.)

1.      In the light of the complex nature of the recruitment procedure, which is composed of a series of very closely-linked decisions, an applicant is entitled to rely on irregularities occurring in the course of a competition in an action against a subsequent individual decision, such as a decision not to admit him to the assessment tests.

(see para. 15)

See:

21 March 2013, F‑93/11 Taghani v Commission, para. 38

2.      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. Consequently, a breach of the principle of equal treatment, applicable to the law relating to the employment of European Union officials, occurs when two categories of person employed by the European Union whose factual and legal circumstances disclose no essential difference are treated differently and that difference in treatment is not objectively justified.

The fact that a candidate in an open competition to constitute a reserve pool of Bulgarian-language lawyer-linguists used a phonetic keyboard rather than a BDS keyboard prior to the competition and that he did not familiarise himself with the BDS keyboard, even though he was told that it would be used for the tests, is a circumstance particular to the candidate which cannot constitute a difference capable of resulting in a breach of the principle of equal treatment.

In view of the selection board’s wide discretion in deciding on the content and arrangements for the tests in a competition, the identical treatment of all the candidates and the use by all of the BDS keyboard alone are justified by the nature and purpose of the competition, which was a specialised competition to select a number of highly skilled lawyer-linguists for the Court of Justice, where all Bulgarian lawyer-linguists use the standard BDS keyboard.

(see paras 26, 31, 35-36)

See:

16 December 2008, C‑127/07 Arcelor Atlantique et Lorraine and Others, para. 23

5 April 2005, T‑376/03 Hendrickx v Council, para. 33

25 February 2010, F‑91/08 Pleijte v Commission, para. 36; 28 March 2012, F‑19/10 Marsili v Commission, para. 20 and the case-law cited therein