Judgment — ECLI:EU:F:2008:65
Date: 2008-05-22
Language of the case: French
Court formation: Second Chamber
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Concepts: Conditions for admission
Procedure: Staff cases

summary publication, paragraph 54; Wolf v Commission, paragraph 68; Case T‑244/97 Mertens v Commission [1999] ECR-SC I‑A‑23 and II‑91, paragraph 44; Carrasco Benítez v Commission, paragraph 71; Case T-332/01 Pujals Gomis v Commission [2002] ECR‑SC I‑A‑233 and II‑1155, paragraph 41; and Ricci v Commission, paragraph 45). 56 The same principles govern the control exercised by the appointing authority over the selection board’s decisions regarding the conditions for admission to the competition (Ricci v Commission, paragraph 46). Thus the appointing authority is required, in exercising its own powers, not to act in accordance with a decision of the selection board where that decision is vitiated by a manifest error of assessment of the professional experience required. Consequently, where the selection board has wrongly allowed a candidate to take part in a competition and put his name on the list of suitable candidates, the appointing authority must express its refusal to appoint the candidate by way of a reasoned decision from which the Community judicature can judge whether the refusal is well founded (Ricci v Commission, paragraph 35, and Luxem v Commission, paragraph 23). 57 In the present case, therefore, it is for the Tribunal to ascertain, by comparing the requirements of the notice of competition with the particulars that emerge from the supporting documents forwarded by the applicant, whether the selection board committed a manifest error in evaluating his professional experience. That review is, at the same time, designed to assess whether the contested decision, which differs from the selection board’s view, is well founded. 58 It is apparent from Title A, Section II 2, of the notice of competition that, in order to be admitted, candidates must, since obtaining the diploma on completion of a course of advanced secondary education, have acquired at least four years’ full time professional experience, including two years relevant to the duties concerned, in other words those described in Title A, Section I, of the notice. 59 In the present case, the appointing authority calculated that the applicant had three years and seven months’ professional experience, made up of two years of university studies, in accordance with the second paragraph of Title A, Section II 2, of the notice of competition, in respect of the physics studies pursued by the applicant between September 1993 and August 1998, and one year and seven months in respect of his paid employment at the UAM from August 1998 to March 2000. 60 The dispute relates in particular to two other periods of activity completed by the applicant: – first, the period of activity at the NEST as part of the research doctorate, from 1 February 2001 to 30 January 2004, and – second, the period covered by the research contract with the SNS, from 2 February to 30 April 2004, the closing date for registration for the competition. 61 Before deciding on the question of whether the periods at issue qualify as professional experience for the purpose of the notice of competition, it must be ascertained whether they may be regarded as ‘specialist work placements or periods of further training’ or as ‘additional periods of training, studies or research’ as provided for in the second paragraph of Title A, Section II 2 of the notice of competition, which may be counted as professional experience only up to a maximum of two years. In the present case the appointing authority has already taken into account, on that basis and as the maximum two years, the years of physics studies completed by the applicant between September 1993 and August 1998. 62 The disputed periods cannot be covered by the second paragraph of Title A, Section II.2, of the notice of competition since, as the applicant rightly observes, they could not, as such, prepare for the duties described in Title A, Section I. It is important to note that the aim of competition ESPO/B/23/04 was to recruit laboratory technicians at grades B 5/B 4 (which became, under Article 12(3) of Annex XIII to the Staff Regulations, B*3, then AST 3). That being so, it cannot be claimed that doctoral studies or postgraduate research ‘prepare’ for duties in the AST 3 function group, which, according to the terms of Annex I to the Staff Regulations, include posts such as ‘junior technician’. 63 It is therefore appropriate to consider whether the applicant’s activities during the disputed periods may, without manifest error, come under the concept of professional experience in the narrow sense, as provided for in the first paragraph of Title A, Section II 2, of the notice of competition. In the Commission’s view, these were not periods of paid employment or self-employment, but were manifestly periods of study; the applicant claims that the periods in question were manifestly periods of self-employment. 64 According to the case-law, the concept of required professional experience must be interpreted exclusively in the light of the aims of the competition, as set out in the general description of the duties to be performed (Ricci v Commission, paragraph 52). An interpretation of the notice of competition on the basis of the specific requirements of national legislation would inevitably lead to differences in treatment between candidates of different nationalities, in view of the differences between the post-university systems in the various Member States (see, by analogy, Sparr v Commission, paragraph 18, and Wolf v Commission, paragraph 74). 65 With regard, firstly, to the period of 36 months completed as part of the research doctorate, the parties agree that, even if the applicant attended 150 hours of courses during that period, as the file shows, he carried out high-level research work for the NEST, as a physics and materials science graduate, in the fields of semi-conductors and nanoscience, work which was indeed relevant to the duties described in Title A, Section I, of the notice of competition. 66 Such work, which, as the Commission admitted at the hearing, was comparable to the work that might be carried out in the JRC, must be counted as required professional experience within the meaning of the notice of competition if: – it is real and genuine, excluding research work carried out for study purposes that proves to be such a small component as to be purely marginal and incidental, and – it is remunerated, it being understood that the amount of remuneration, even if it is below the minimum wage, cannot have any consequence as to whether the work is to be treated as professional experience (see, by analogy, as regards the definition of real and genuine activities in the context of the freedom of movement for workers, Trojani, paragraph 16). 67 Neither the sui generis nature of the employment relationship, whether paid or self-employed, under national law, nor the origin or designation of the funds from which the remuneration is paid can determine whether the work is to be treated as requisite professional experience for the purposes of the notice of competition. 68 It is not disputed that the applicant genuinely carried out high-level research work at a joint research undertaking for 36 months, in return for which he received a small, but nonetheless real contribution of some EUR 690 per month, while at the same time having his living expenses paid directly by the SNS. 69 Even allowing for the 150 hours of courses which the applicant attended, the selection board was legitimately able, without committing a manifest error of assessment, to count such a period of activity as at the very least five months’ full-time professional experience, the period which the applicant needed to make up the four years of professional experience required (see by analogy, Case T‑293/03 Giulietti v Commission [2006] ECR‑SC II‑A‑2‑5 and II‑A‑2‑19, paragraph 72). 70 The fact that the research work in question might have further developed the applicant’s training and subsequently enabled him to obtain the qualification of doctor does not, as such, prevent it from being classified as professional experience within the meaning of the notice of competition. 71 Secondly, the same finding applies a fortiori in relation to the three months between February and April 2004 when the applicant had a research contract with the SNS and received a payment of around EUR 1 290 per month. 72 Having regard to the foregoing and in the circumstances of the present case, the appointing authority must be deemed to have been wrong to conclude that the selection board had committed a manifest error of assessment, both under the terms of the notice of competition and in view of the nature of the activities concerned, in taking into consideration, for the purposes of calculating the applicant’s professional experience, the periods of activity which he completed, as part of his research doctorate and under the research contract, between February 2001 and April 2004. Consequently, the contested decision must be annulled, without any need to examine the other two pleas relied on in support of the action. Costs 73 Under Article 122 of the Rules of Procedure, the provisions of Title 2, Chapter 8, on costs apply only to cases brought before the Tribunal from the date on which those Rules entered into force, that is to say, 1 November 2007. The provisions of the Rules of Procedure of the Court of First Instance continue to apply mutatis mutandis to cases pending before the Tribunal before that date. 74 Under the terms of Article 87(2) of the Rules of Procedure of the Court of First Instance, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. As the Commission has been unsuccessful, it should be ordered to pay all the costs, in accordance with the form of order sought by the applicant. On those grounds, THE TRIBUNAL (Second Chamber) hereby: 1. Annuls the decision of 7 April 2006 of the Director-General of the Joint Research Centre (JRC) of the Commission of the European Communities refusing to take Mr Pascual García’s application into consideration for the post referred to in vacancy notice COM/2005/2969 and adding a comment in the reserve list of open competition EPSO/B/23/04 informing the Commission’s departments that the applicant did not meet the conditions of eligibility for that competition; 2. Orders the Commission of the European Communities to pay the costs. Van Raepenbusch Boruta Kanninen Delivered in open court in Luxembourg on 22 May 2008. W. Hakenberg S. Van Raepenbusch Registrar President The text of the present decision and those of the decisions of the Community Courts cited in it which have not yet been published in the European Court Reports are available on the internet site of the Court of Justice: www.curia.europa.eu * Language of the case: French.