JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(Second Chamber)

24 September 2009

Case F-37/05

**Michael Brown**

**v**

**Commission of the European Communities**

(Civil service – Competition internal to the institution – Admission criteria – Members of the auxiliary staff – Rejection of candidature)

**Application:**brought under Articles 236 EC and 152 EA, in which Mr Brown seeks, in essence, annulment of the selection board’s decision
of 19 July 2004 in competition COM/PB/04, internal competition for change of category C to B, held in order to draw up a reserve
list of administrative assistants, secretarial assistants and technical assistants in grade B 4/B 5, confirming, following
reconsideration, the decision of 22 June 2004 refusing to admit him to the tests for the competition in question.

**Held:**The action is dismissed. Each party is to bear its own costs.

**Summary**

1.      *Officials – Actions – Act adversely affecting an official – Decision adopted after reconsideration of a previous decision*

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

2.      *Officials – Recruitment – Competitions – Internal competitions – Rules and conditions for organising*

*(Staff Regulations, Arts 27 and 29(1); Conditions of Employment of Other Servants, Art. 12(1))*

3.      *Officials – Conditions of Employment of Other Servants – Official and member of the temporary staff – Member of the auxiliary
staff – Difference*

*(Staff Regulations, Arts 5, 6, 27, first para., and 32; Conditions of Employment of Other Servants, Arts 3, 8, 9 and 12(1))*

4.      *Officials – Recruitment – Competition internal to the institution – Participation extended to members of the auxiliary staff
– Obligation – None*

1.      When a candidate whose request to be admitted to a Community competition has been rejected seeks reconsideration of that decision
on the basis of a precise provision binding on the administration, it is the decision taken by the selection board after reconsideration
which must be regarded as the act adversely affecting him within the meaning of Article 90(2) or, as the case may be, Article 91(1)
of the Staff Regulations, both in the version prior to 1 May 2004 and in the version in force since that date. It is also
that decision, taken after reconsideration, which causes the periods for lodging a complaint and bringing an action to start
to run, without there being any need to ascertain whether, in such a situation, that decision may be regarded as a purely
confirmatory act.

(see para. 28)

See:

T-375/02 *Cavallaro* v *Commission* [2005] ECR-SC I‐A‐151 and II‐673, para. 58; T-293/03 *Giulietti* v *Commission* [2006] ECR-SC I‐A‐2‐5 and II‐A‐2‐19, paras 27 and 28; T-173/05 *Heus* v *Commission* [2006] ECR-SC I‐A‐2‐329 and II‐A‐2‐1695, para. 19

2.      In order to meet the objective assigned by Article 27 of the Staff Regulations to any recruitment procedure, namely that of
‘securing for the institution the services of officials of the highest standard of ability, efficiency and integrity’, it
is necessary to recruit officials on the broadest possible basis. Therefore the expression ‘competition internal to the institution’
concerns, in principle, all persons in the service of that institution, in whatever capacity. However, the Staff Regulations
confer a wide discretion on the institutions in deciding upon the criteria of ability required for the posts that are to be
filled and in determining, in the light of those criteria and, more generally, in the interests of the service, the rules
and conditions under which a competition is organised. The exercise of that discretion must none the less be compatible in
particular with the mandatory provisions of the first paragraph of Article 27 and Article 29(1) of the Staff Regulations and,
consequently, it must always be exercised in the light of the requirements connected with the posts that are to be filled
and, more generally, the interest of the service, the evaluation of which also falls within the discretion of the competent
authority. Consequently, the review by the Community judicature must be limited to the issue of whether the authority concerned
has remained within reasonable bounds and has not used its power in a manifestly incorrect way. That review does not mean
that the latter substitutes its own assessment for that of the institution.

An institution has not used its discretion incorrectly by requiring the status of official or member of the temporary staff,
to the exclusion of that of member of the auxiliary staff, as a condition for admission to an internal competition the essential
purpose of which is progression from category C to category B. Officials and members of the temporary staff, unlike members
of the auxiliary staff, must have demonstrated the highest standards of ability, efficiency and integrity at the time of their
initial recruitment, in accordance with the first paragraph of Article 27 of the Staff Regulations and Article 12(1) of the
Conditions of Employment of other Servants.

The exclusion of members of the auxiliary staff does not involve an infringement of the principle of equal treatment, since
their legal situation is not comparable to that of members of the temporary staff and of officials on account of the differences
between their respective administrative status, recruitment requirements and conditions of engagement. There is a breach of
the principle of equal treatment only where two classes of persons whose factual and legal situations are not essentially
different are treated differently or where different situations are treated in an identical manner, unless such treatment
is objectively justified.

(see paras 54-58, 60, 64, 66, 71, 72, 76)

See:

16/64 *Rauch* v *Commission* [1965] ECR 135; C-16/07 P *Chetcuti* v *Commission* [2008] ECR I‐7469, paras 40 to 50 and 77

T-56/89 *Bataille and Others* v *Parliament* [1990] ECR II‐597, para. 42; T-207/95 *Ibarra Gil* v *Commission* [1997] ECR-SC I‐A‐13 and II‐31, para. 66; T-214/99 *Carrasco Benítez* v *Commission* [2000] ECR-SC I‐A‐257 and II‐1169, para. 53; T-142/00 *Van Huffel* v *Commission* [2001] ECR-SC I‐A‐219 and II‐1011, para. 52; T-53/00 *Angioli* v *Commission* [2003] ECR-SC I‐A‐13 and II‐73, para. 50; T‐256/01 *Pyres* v *Commission* [2005] ECR-SC I‐A‐23 and II‐99, para. 36; T-357/04 *Chetcuti* v *Commission* [2006] ECR-SC I‐A‐2‐255 and II‐A‐2‐1323, paras 48 to 51, 53, 56 and 62

3.      It is clear from the provisions of the Staff Regulations and the Conditions of Employment of Other Servants that there are
differences between the administrative status, recruitment requirements and conditions of engagement of auxiliary staff and
those of officials and temporary staff. It follows from those differences that auxiliary staff are not recruited to fulfil
a permanent role within the Community institutions. On the contrary, the outstanding feature of contracts for auxiliary staff
is their precariousness since they may be used only to provide a temporary replacement or to ensure the performance of administrative
duties which are of a transitory nature or which fulfil an urgent need or which are not clearly defined. Auxiliary staff therefore
constitute a separate category which meets separate requirements of the institutions which employ such staff.

(see paras 58, 74)

See:

C-16/07 *Chetcuti* v *Commission*, para. 42

4.      Although the appointing authority has the right to allow the participation of auxiliary staff in a competition internal to
the institution, that does not mean that it is required to open each internal competition to all persons within the service.
Such a requirement would undermine the wide discretion which is accorded to the Community institutions in organising their
services and, in particular, in determining the procedure and conditions of competitions in the interests of the service.

(see paras 55, 68)

See:

*Rauch* v *Commission*, C-16/07 *Chetcuti* v *Commission*, paras 71 to 74, 76 and 77

*Bataille and Others* v *Parliament*, para. 42; *Ibarra Gil* v *Commission*, para. 66; *Carrasco Benítez* v *Commission*, para. 52; *Van Huffel* v *Commission*, para. 51; *Pyres* v *Commission*, para. 36; T-357/04 *Chetcuti* v *Commission*, para. 49