Order — ECLI:EU:T:2001:114
Date: 2001-04-03
Language of the case: French
Court formation: Third Chamber
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Concepts: Conditions for admission;Specific cases of acts having adverse effect;Purpose
Procedure: Staff cases - unfounded

SUMMARY - JOINED CASES T-95/00 AND T-96/00 
Summary 
1. Officials — Actions —Act adversely affecting an official — Decision taken after 
re-examination of an earlier decision — Decision adopted by a competition selection 
board after re-examination of the files of candidates not admitted to the competition 
(Staff Regulations, Art. 90(2)) 
2. Officials - Competitions — Competition based on qualifications and tests -
Conditions of admission — Set out in notice of competition — Selection board taking 
into account facts and/or legal factors justifying a candidate's failure to satisfy the 
conditions of admission — Not permissible 
(Staff Regulations, Annex III, Art. 5) 
1. An action for the annulment of a decision which is merely confirmative of a 
previous decision not contested within the time-limit is inadmissible, since that 
classification entails that the measure in question contains no new factors as 
compared with the previous decision and was not preceded by a re-examination of 
the circumstances of the person to whom that previous decision was addressed. 
Thus, as a rule, an action for annulment brought against a decision of the selection 
board, taken after a re-examination, confirming a previous decision refusing to 
admit the person concerned cannot be declared admissible unless that decision 
contains new factors as compared with the previous decision and unless it has, 
therefore, replaced the previous decision. 
However, where a rule which is binding on the institution - such as a provision of 
a notice of competition - confers on candidates the right to request a review of 
decisions refusing to admit them, it is the decision taken after re-examination and 
not the original decision refusing to admit a candidate which must be regarded as 
the act adversely affecting him within the meaning of Article 90(2) of the Staff 
Regulations. 
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ZAUR-GORA AND DUBIGH v COMMISSION 
To take the opposite view would be to negate the effectiveness or, at the very least, 
reduce the relevance of such a remedy which has been instituted by the 
administration for the benefit of persons wishing to take part in Community 
competitions. If the previous decision refusing admission were the only one to be 
regarded as an act adversely affecting him, the person wishing to request review of 
such a decision would be forced, in order to avoid any failure to observe the 
time-limit, to lodge, at the same time as his request, a complaint within the meaning 
of Article 90(2) of the Staff Regulations or an appeal with the Court of First 
Instance, which would render the review procedure purposeless. Such a situation 
would also be contrary to the principle of procedural economy. 
(see paras 24-27) 
See: 191/82 Fediol v Commission [1983] ECR 2913, paragraph 31 ; T-2/90 Ferreira de 
Freitas v Commission [1991] ECR II-103, paras 56 and 61; T-7/89 Hercules Chemicals 
v Commission [1991] ECR II-1711, para. 53; T-82/92 Cortes Jimenez and Others v 
Commission [1994] ECR-SC I-A-69 and II-237, para. 14; T-331/94 IPK-München v 
Commission [1997] ECR II-1665, para. 24; T-100/96 Vicente-Nuñez v Commission [1998] 
ECR-SC I-A-591 and II-1779, paras 37 et seq. and 67 
2. Notwithstanding its discretionary power, the selection board is bound by the 
wording of the notice of competition as published. The basic function of a notice of 
competition, according to the Staff Regulations, is to give those interested the most 
accurate information possible about the conditions of eligibility for the post, in order 
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 the application. 
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SUMMARY - JOINED CASES T-95/00 AND T-96/00 
In order to ascertain whether the conditions of admission set out in the notice of 
competition have been satisfied, the selection board is entitled to take account only 
of the information provided by candidates in their application and of the documents 
which they are required to produce in support of it. By contrast, for the purpose of 
determining whether the conditions of admission have been satisfied, the selection 
board may in no circumstances take account of factual and/or legal matters intended 
to justify a candidate's failure to satisfy the conditions of admission. In particular, 
it is not for the selection board, in the context of its assessment of whether the 
condition relating to a candidate's status as a servant of the Communities has been 
satisfied, to disregard the nature of the contract by which the candidate is bound to 
his employer at the time of submission of the application. If it is apparent from the 
documents produced by that candidate that he does not have the required status, the 
selection board must reject the application. In no circumstances is the selection 
board empowered to redefine the nature of that contract, even if it may be the 
consequence of illegal practices within a Community institution. 
(see paras 47, 55-56) 
See: T-158/89 Van Hecken v ESC [1991] ECR II-1341, para. 23; T-54/91 Almeida 
Antunes v Parliament [1992] ECR II-1739, para. 39 
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