Order — ECLI:EU:F:2015:114
Date: 2015-10-01
Language of the case: Spanish
Court formation: President of the Chamber
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Procedure: Staff cases;Application for interim measures - unfounded

Summary 1. Officials — Members of the contract staff — Selection procedure of the Fusion for Energy joint undertaking — Notice of vacancy — Purpose — Obligation of the selection board and the authority empowered to conclude contracts of employment to adhere to the conditions laid down in the vacancy notice — Scope 2. Officials — Equal treatment — Limits — Advantage unlawfully granted 3. Application for interim measures — Suspension of operation of a measure — Conditions for granting — Urgency — Serious and irreparable damage — Decision of a selection board not to include a candidate on a reserve list — Lack of any urgency (Rules of Procedure of the Civil Service Tribunal, Art. 115(2), first para.) 1. The function of the vacancy notice is, first, to give those interested the most accurate information possible as to the nature of the conditions of eligibility for the post to be filled, in order to enable them to decide whether they should apply for it and, second, to establish the legal framework within which the institution intends to undertake a comparison of the candidates’ merits. As a vacancy notice lays down conditions relating to access to employment in the relevant post, the appointing authority, in relation to officials, must adhere to it. Furthermore, just as a vacancy notice is intended to establish the legal framework within which the appointing authority will undertake the consideration of the candidates’ comparative merits provided for in Article 45(1) of the Staff Regulations, the conditions laid down in a call for applications by the authority empowered to conclude contracts of employment are binding upon that authority. To permit a selection board and the authority empowered to conclude contracts of employment to depart from a vacancy notice and its supplementary documents, without a sufficient basis having been adequately publicised in a timely manner, would deprive those documents of the essential role they must play in the recruitment procedure, namely to inform interested parties, in as accurate a fashion as possible, as to the nature of the conditions of eligibility for the post in question. Although the written test was only one factor in the assessment of the candidates’ merits, like the covering letter, the curriculum vitæ and the oral test, its cancellation cannot in any circumstances be regarded as a matter which could arise from the absence of any reference to it in the invitation to candidates and the explanations given at the beginning of their hearing by the selection committee in the absence of timely publicisation, that is to say publicisation leaving the interested parties sufficient time to prepare for the tests and, where applicable, to refocus their preparation. (see paras 18, 23, 24) See: Judgments of 5 November 2003 in Cougnon v Court of Justice, T‑240/01, EU:T:2003:290, paragraphs 112 and 113, and 21 January 2004 in Robinson v Parliament, T‑328/01, EU:T:2004:13, paragraph 55 Judgments of 15 April 2010 in Angelidis v Parliament, F‑104/08, EU:F:2010:23, paragraph 78, and 16 July 2015 in Murariu v EIOPA, F‑116/14, EU:F:2015:89, paragraphs 74 and 75 2. It is irrelevant that a written test which is provided for by the supplemental documents to a vacancy notice is not held and that all candidates are, consequently, treated in the same way. It must be pointed out in this regard that the principle of non-discrimination does not justify any entitlement to the non-discriminatory application of unlawful treatment. (see para. 25) See: Judgment of 11 September 2002 in Pfizer Animal Health v Council, T‑13/99, EU:T:2002:209, paragraph 479 Judgment of 1 July 2010 in Časta v Commission, F‑40/09, EU:F:2010:74, paragraph 89 3. According to settled case-law, the decisions taken following a competition organised in order to establish a reserve list are not such as to cause irreparable harm to a candidate who is disadvantaged by an irregularity occurring during that competition, since where, in the course of such a competition, a test is judged to be unlawful, a candidate’s rights are adequately protected if the selection board and the appointing authority reconsider their decisions and seek a fair resolution for that candidate, and it is unnecessary to call the competition results into question in their entirety, or to annul the appointments made following the competition. That case-law, however, concerns action taken following general competitions, as opposed to more limited selection tests. Furthermore, if the unlawfulness which is identified does not only concern the applicant’s situation, but affects the selection procedure as a whole, that case-law, which is based on the principle of proportionality, does not apply and does not lead to the dismissal of the application for a suspension of operation on grounds of lack of urgency. That being so, a body which recommences or returns to and continues a selection procedure following a judgment annulling the appointments made at the conclusion of that procedure cannot, in assessing the qualifications and merits of the candidates, take account of the experience those candidates have acquired carrying out the duties attaching to their annulled appointments. In such cases, the seniority and experience acquired by successful candidates who are appointed, but whose appointments are subsequently annulled, is deemed never to have existed. Where the selection procedure is returned to and continued, it is, on the other hand, incumbent on those bodies, in assessing the candidates’ merits, to ensure that they do not grant the interested parties an undue advantage. (see paras 29-31) See: Order of 1 February 2007 in Bligny v Commission, F‑142/06 R, EU:F:2007:20, paragraph 24 and the case-law cited therein