Judgment — ECLI:EU:T:2018:532
Date: 2018-09-12
Language of the case: French
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Procedure: Action for damages - unfounded;Staff cases - successful

Summary — Judgment of the General Court (Ninth Chamber), 12 September 2018 1. Officials — Competitions — Conditions for admission — Mandatory provisions of the first paragraph of Article 27 of the Staff Regulations — Conditions limiting the registration of candidates for a competition — Lawfulness — Conditions — Requirements relating to the interests of the service — Judicial review — Limits (Staff Regulations of Officials, Arts 27, first para. and 29(1)) 2. Officials — Recruitment — Competition internal to the institution — Extension of entitlement to participate to all agents and officials — Obligation — None 3. Officials — Competitions — Internal competition to constitute a reserve list for the recruitment of assistants — Members of the temporary staff — Eligibility condition relating to the requirement of 12 months’ continuous employment before the expiry of the deadline for submitting an application — Non-admission to the tests in a competition of a temporary agent because of his unpaid leave of two months during that period — Not permissible (Staff Regulations of Officials, Art. 27, first para.; Conditions of Employment of Other Servants of the European Communities, Art. 82(7)) 1. The institutions have a wide discretion in deciding upon the criteria of ability required for the posts to be filled and in specifying, on the basis of those criteria and in the interests of the service, the conditions and procedure for organising a competition. However, the exercise of the discretion enjoyed by the institutions with respect to the holding of competitions, in particular as regards setting the conditions for admission, must be compatible with the mandatory provisions of the first paragraph of Article 27 and of Article 29(1) of the Staff Regulations. The terms in which the first paragraph of Article 27 of the Staff Regulations defines the aim of any recruitment and in which Article 29(1) of the Staff Regulations lays down the framework of the procedures to be followed to fill vacant posts are mandatory. That power must therefore always be exercised in the light of the requirements of the positions to be filled and, more generally, of the interests of the service. Specifically as regards conditions limiting the registration of candidates for a competition, although such conditions are indeed liable to restrict the ability of the institutions to recruit the best candidates for the purposes of the first paragraph of Article 27 of the Staff Regulations, it does not follow that any condition containing such a restriction is contrary to that provision. The administration’s discretion in the organisation of competitions, and more generally in the interests of the service, allows the institution to impose the conditions which it considers to be appropriate and which, while restricting access of candidates to a competition, and thus, necessarily the number of candidates registered, do not, however, entail the risk of compromising the objective of ensuring the registration of candidates of the highest standard of ability, efficiency and integrity within the meaning of the first paragraph of Article 27 of the Staff Regulations. Accordingly, it is only conditions limiting access of candidates to a competition that entail a risk of compromising the objective of ensuring the registration of candidates of the highest standard that are held to be contrary to the first paragraph of Article 27 of the Staff Regulations. Furthermore, in view of the institutions’ wide discretion in this field, review by the General Court of whether the institution has complied with the condition relating to the interests of the service must be confined to the question of whether the institution remained within reasonable and proper bounds and did not manifestly misuse its discretion. (see paras 36-38, 40, 41) 2. There is no obligation to admit to a competition internal to the institution every person working for that institution. Such an obligation would, in practice, undermine the wide discretion afforded to the institution. The agents and officials of an institution do not, therefore, have any absolute right to take part in an internal competition. (see para 39) 3. Requiring a particular number of years’ service is an appropriate means of ensuring that officials have the qualities set out in the first paragraph of Article 27 of the Staff Regulations and, therefore, of safeguarding the interests of the service. Having a particular period of service, and therefore meaningful experience within the EU institutions is a ‘clear indication’ of the qualities referred to. Such a service requirement ensures that the people admitted to the internal competition have been subject, for a particular period, to the regime applicable to the administrative staff of the institutions, inter alia, to the rules relating to staff reports and discipline, and that they have demonstrated their abilities in that context. The recruitment procedure therefore secures for the institution concerned the services of officials who have the highest standard of ability, efficiency and integrity, as assessed by the institutions themselves. By contrast, a further condition — in addition to one imposing a particular period of service — whereby candidate-officials or agents must have worked without interruption for the institution for that period of service, may have the effect of excluding from the internal competition officials or agents who can prove that they have a period of service that is the same as or longer than that required by the period of service condition. The competition notice requires, during the 12 month period preceding the closing date for online applications, that candidates have been working for the institution without interruption in an administrative position of active employment, on leave for military service, on parental or family leave, on secondment in the interests of the service, or on secondment at the candidate’s own request; those positions do not include, notably, leave on personal grounds. The applicant provided evidence of 69 months’ service but had taken 2 months’ leave on personal grounds in the 12 months preceding the closing date for online applications. It follows that, in the absence of a justification provided by the institution, such a requirement must be found to be unlawful. In those circumstances, the institution concerned must be considered to have used its discretion in a manifestly incorrect manner by including in the competition notice a condition — additional to that relating to length of service — requiring candidates to have worked for the institution without interruption for the 12 month period preceding the closing date for online applications. (see paras 43, 44, 46-49, 51)