JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(First Chamber)

15 October 2014

Case F‑55/10 RENV

Chrysanthe Moschonaki

v

European Commission

(Civil service — Officials — Referral back to the Tribunal after setting aside — Recruitment — Vacancy notice internal to the institution — Eligibility conditions in the vacancy notice — Appointing authority’s discretion)

Application:      under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Ms Moschonaki sought annulment of the decision of the European Commission of 30 September 2009 rejecting her candidature for a post as ‘[a]ssistant [l]ibrarian/[d]ocumentalist’ and compensation for the harm she claimed to have suffered.

Held:      The decision of 30 September 2009 by which the European Commission rejected Ms Moschonaki’s candidature for the post of ‘[a]ssistant [l]ibrarian/[d]ocumentalist’ is annulled. The European Commission is ordered to pay Ms Moschonaki the sum of EUR 5 000. The European Commission is to bear its own costs and is ordered to pay the costs incurred Ms Moschonaki in Cases F‑55/10, T‑476/11 P and F‑55/10 RENV.

Summary

Officials — Vacancy notice — Purpose — Obligation for the administration to state the conditions necessary to fill a post — Scope — Rejection of a candidature for failure to satisfy a condition not in the vacancy notice — Infringement

(Staff Regulations, Arts 4 and 29)

Since the principle of legal certainty requires that the administration put those concerned in a position to know precisely the scope of their obligations or their rights, it requires that a rule which determines rights and obligations for the members of its staff is given adequate publicity according to the procedures and forms which it is for the administration to determine.

In particular, as regards the rules on the recruitment of officials, the appointing authority is required to state as precisely as possible in the vacancy notice the conditions required to fill the post in question, in order to enable those concerned to determine whether it is appropriate to submit an application. Admittedly, the appointing authority cannot be required to refer to all the conditions expressly provided for in the Staff Regulations, since candidates are presumed to be familiar with the Staff Regulations, but a vacancy notice would be deprived of its purpose, which is to inform candidates of the conditions that must be satisfied in order to fill a post, if the administration were able to exclude a candidate on a ground not expressly stated in the vacancy notice or in the Staff Regulations, or that has not been published.

Consequently, a condition which, in a vacancy notice internal to the institution, appears to be designed to exclude certain entirely eligible officials from participating in the selection process must, because of the intended legal effect, which is to restrict participation in the selection process for some of those entitled to do so, state clearly and precisely the terms justifying that exclusion. Accordingly, a requirement which has not been advertised and is not clearly apparent from the vacancy notice cannot be enforced against the person concerned in order to reject his candidature.

(see paras 41, 42, 45, 47)

See:

judgments in Grassi v Council, 188/73, EU:C:1974:112, para. 40; ROM-projecten, C‑158/06, EU:C:2007:370, para. 25; Skoma-Lux, C‑161/06, EU:C:2007:773, para. 28; and Heinrich, C‑345/06, EU:C:2009:140, para. 44

judgment in Vecchi v Commission, T‑356/94, EU:T:1996:136, para. 50

judgments in Wenig v Commission, F‑80/08, EU:F:2009:160, para. 90; and Šimonis v Commission, F‑113/07, EU:F:2011:44, paras 73 and 74