62017TJ0079
JUDGMENT OF THE GENERAL COURT (Ninth Chamber)
12 September 2018 (
*1
)
(Civil service — Contract staff — Recruitment — Internal competition — Constitution of a reserve list for the recruitment of assistants — Eligibility condition relating to the function group to which the candidate belongs on the closing date for online applications — Non-admission to the assessment tests in a competition)
In Case T‑79/17,
Alain Schoonjans, contract agent at the European External Action Service, residing in Brussels (Belgium), represented by S. Orlandi and T. Martin, lawyers,
applicant,
v
European Commission, represented by G. Berscheid and L. Radu Bouyon, acting as Agents,
defendant,
ACTION under Article 270 TFEU seeking, first, annulment of the decision of the selection board for internal competition COM/02/AST/16 (AST 2) rejecting the applicant’s candidature and, secondly, compensation for the damage he allegedly suffered,
THE GENERAL COURT (Ninth Chamber),
composed of S. Gervasoni, President, K. Kowalik-Bańczyk and C. Mac Eochaidh (Rapporteur), Judges,
Registrar: M. Marescaux, Administrator,
having regard to the written procedure and further to the hearing on 19 January 2018,
gives the following
Judgment
Background of the dispute
1
The applicant, Alain Schoonjans, worked at the European Commission as a contract agent in Function Group III from 1 December 2010 to 30 November 2013, as an intérimaire from 1 to 31 December 2013, again as a contract agent in Function Group III from 1 January 2014 to 15 September 2015 and, finally, as a contract agent in Function Group IV from 16 September 2015 to 31 December 2016.
2
On 9 February 2016, the Commission published a notice of internal competitions based on tests to constitute a reserve list from which to recruit secretaries/clerks in grade 2 (AST/SC 2), assistants in grade 2 (AST 2) and administrators in grade 6 (AD 6) (‘the competition notice’). The reference numbers for those three competitions were, respectively, as follows: COM/01/AST-SC/16 (AST/SC 2) — Secretaries/Clerks, COM/02/AST/16 (AST 2) — Assistants, and COM/03/AD/16 (AD 6) — Administrators.
3
In section III, ‘Eligibility’, Article 2.1(c) of the competition notice stated the following as regards candidates’ administrative status:
‘[You must] have served for at least over the 6 months before the closing date for online applications in the function group which is required in section III.2.2 for the competition to which you apply or having served in a higher function group for all or part of the 6 months referred to above.
The following periods serve for the calculation of the required six months: periods with the administrative status “in active employment”, “on leave for military service”, “on parental or family leave”, “on secondment in the interests of the service”, or “on secondment at your own request” (in the first six months of that secondment) within the meaning of Articles 37 and seq. of the Staff Regulations [of Officials of the European Communities].’
4
In the same section, Article 2.2 of the competition notice provided as follows as regards candidates’ function group and grade:
‘On the closing date for online applications you must belong to the following function group:
For COM/01/AST-SC/16 (AST/SC2): You must be an official or temporary agent AST/SC or a contract agent FGII.
For COM/02/AST/16 (AST2): You must be an official or temporary agent AST or a contract agent FGIII.
For COM/03/AD/16 (AD6): You must be an official or temporary agent AD or a contract agent FGIV.’
5
On an unknown date, the applicant applied for internal competition COM/02/AST/16 (AST 2).
6
On 11 April 2016, the selection board of the internal competition COM/02/AST/16 (AST 2) informed the applicant of its decision to reject his candidature (‘the contested decision’), because he did not fulfil the condition laid down in the competition notice requiring him to be in Function Group III on the closing date for online applications (‘the condition at issue’).
7
On 11 July 2016, the applicant lodged a complaint against the contested decision.
8
By a decision of 27 October 2016, served on the applicant on the same date, the appointing authority dismissed his complaint.
Procedure and forms of order sought by the parties
9
By application lodged at the Registry of the General Court on 6 February 2017, the applicant brought the present action.
10
By letter of 14 February 2017, the applicant applied for this case to be joined, under Article 68 of the Rules of Procedure of the General Court, with Cases T‑55/17, Healy v Commission, and T‑73/17, RS v Commission, on account of the connection between them.
11
By letter of 15 February 2017, the Commission was invited to submit its observations on the potential joinder of this case and Cases T‑55/17, Healy v Commission, and T‑73/17, RS v Commission.
12
On 5 April 2017, the Commission lodged its defence.
13
By letter of 18 May 2017, the applicant waived his right to lodge a reply.
14
By letter of 30 May 2017, the applicant requested that a hearing be held.
15
By decision of 14 November 2017, the President of the Ninth Chamber of the Court ordered that this case should not be joined with Cases T‑55/17, Healy v Commission, and T‑73/17, RS v Commission.
16
At the hearing on 19 January 2018, the parties presented oral argument and replied to the questions put to them by the Court.
17
The applicant claims that the General Court should:
–
annul the contested decision;
–
order the Commission to pay him the sum of EUR 5000 in respect of the non-pecuniary harm which he allegedly suffered;
–
order the Commission to pay the costs.
18
The Commission claims that the General Court should:
–
dismiss the action;
–
order the applicant to pay the costs.
Law
The claims for annulment
Arguments of the parties
19
In support of his claims against the contested decision, the applicant raises a plea of illegality of the contested decision to the extent that it infringes Article 82(7) of the Conditions of Employment of Other Servants of the European Union (‘the CEOS’) and the first paragraph of Article 27 of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’).
20
First, the applicant contends that the wording of the second sentence of Article 82(7) of the CEOS is unambiguous, leaves no discretion to the Commission and provides that contract agents in Function Groups IV can take part in the competitions for grades AST 1 to AST 4.
21
In the present case, he argues that the competition notice provides that only contract agents in Function Group III can take part in the competition for the grade AST 2. The Commission has therefore infringed the second sentence of Article 82(7) of the CEOS and, accordingly, since the notice in question must be found to be unlawful, the contested decision must be annulled.
22
Secondly, the applicant is of the view that, even assuming the condition at issue were compatible with Article 82(7) of the CEOS, it infringes the first paragraph of Article 27 of the Staff Regulations because it unjustifiably — and, in any event, disproportionately — restricts the pool of candidates for the recruitment.
23
The Commission disputes the applicant’s arguments.
Findings of the Court
24
According to the first paragraph of Article 27 of the Staff Regulations:
‘Recruitment shall be directed to securing for the institution the services of officials of the highest standard of ability, efficiency and integrity, recruited on the broadest possible geographical basis from among nationals of Member States of the Union. No posts shall be reserved for nationals of any specific Member State.’
25
The fourth subparagraph of Article 29(1) of the Staff Regulations provides as follows:
‘While maintaining the principle that the vast majority of officials are to be recruited on the basis of open competitions, the appointing authority may decide, by way of derogation from point (d) and only in exceptional cases, to hold a competition internal to the institution which shall also be open to contract staff as defined in Articles 3a and 3b of the [CEOS]. That latter category of staff shall be subject to restrictions with regard to that possibility as laid down in Article 82(7) of the [CEOS] and with regard to the specific tasks it was entitled to perform as contract staff.’
26
In the first place, it is necessary to call to mind the principles laid down by the case-law on the conditions and procedure for holding a competition.
27
First, the essential role of a notice of competition is to give those interested the most accurate information possible as to the conditions of eligibility for the post to be filled, in order to enable them to decide whether they should apply for it (see judgment of 31 January 2006, Giulietti v Commission, T‑293/03, EU:T:2006:37, paragraph 63 and the case-law cited).
28
Secondly, when holding competitions, the institution has 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 (see, to that effect, judgments of 9 October 2008, Chetcuti v Commission, C‑16/07 P, EU:C:2008:549, paragraphs 76 and 77 and the case-law cited; of 31 January 2006, Giulietti v Commission, T‑293/03, EU:T:2006:37, paragraph 63 and the case-law cited; and of 13 December 2006, Heus v Commission, T‑173/05, EU:T:2006:392, paragraph 36 and the case-law cited).
29
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, by the interests of the service (see judgment of 13 December 2006, Heus v Commission, T‑173/05, EU:T:2006:392, paragraph 37 and the case-law cited; see, also, to that effect, judgment of 17 November 2009, Di Prospero v Commission, F‑99/08, EU:F:2009:153, paragraphs 28 and 29 and the case-law cited).
30
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, does 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 (see, to that effect, judgment of 17 November 2009, Di Prospero v Commission, F‑99/08, EU:F:2009:153, paragraph 30).
31
In that respect and as the Commission submits, the case-law has already held that 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 (see, to that effect, judgments of 9 October 2008, Chetcuti v Commission, C‑16/07 P, EU:C:2008:549, paragraphs 70 to 76, and of 24 September 2009, Brown v Commission, F‑37/05, EU:F:2009:121, paragraph 68). The agents and officials of an institution do not, therefore, have any absolute right to take part in an internal competition (see, to that effect, judgments of 6 March 1997, de Kerros and Kohn-Bergé v Commission, T‑40/96 and T‑55/96, EU:T:1997:28, paragraph 39, and of 8 November 2006, Chetcuti v Commission, T‑357/04, EU:T:2006:339, paragraph 42).
32
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 (see, to that effect, judgments of 6 March 1997, de Kerros and Kohn-Bergé v Commission, T‑40/96 and T‑55/96, EU:T:1997:28, paragraph 40, and of 17 November 2009, Di Prospero v Commission, F‑99/08, EU:F:2009:153, paragraph 32).
33
Thirdly, 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, to that effect, judgment of 19 June 2015, Z v Court of Justice, T‑88/13 P, EU:T:2015:393, paragraph 106).
34
In the second place, it is necessary to determine the scope of the first and second sentences of Article 82(7) of the CEOS.
35
The first sentence of Article 82(7) of the CEOS provides that contract staff in Function Groups II to IV can take part in internal competitions only if they have completed three years of service within the institution. The second sentence of Article 82(7) of the CEOS states inter alia that contract staff in Function Group III can take part only in competitions for grades AST 1 and 2 and that contract agents in Function Group IV can take part only in the competitions for grades AST 1 to 4 or grades AD 5 and AD 6.
36
In relation to the first sentence of Article 82(7) of the CEOS, the General Court held, by today’s judgment, Healy v Commission (T‑55/17), that an institution which decides, exceptionally, to hold an internal competition open to contract staff in Function Groups II to IV must comply with the threshold of three years’ service set by that provision. That institution is nevertheless free, in view of its wide discretion and provided it complies with the mandatory provisions of the first paragraph of Article 27, and of Article 29(1) of the Staff Regulations, to fix conditions for certain posts or function groups that are more rigorous, requiring in particular that applicants have a longer period of service than the minimum provided for under the first sentence of Article 82(7) of the CEOS (see, to that effect, by analogy, judgment of 13 July 1989, Jaenicke Cendoya v Commission, 108/88, EU:C:1989:325, paragraph 24).
37
In relation to the second sentence of Article 82(7) of the CEOS, contract agents in Function Group IV, such as the applicant, should in principle be deemed to have been entitled by the EU legislature to take part in competitions for grades AST 1 to 4 or grades AD 5 and AD 6.
38
That is the conclusion that must be drawn having regard to the divergence of the expressions used by the EU legislature in the first and second sentences of Article 82(7) of the CEOS. In the first sentence, the EU legislature states that the contract agents in question ‘peuvent être autorisés’ [in French] — ‘podrá autorizarse’ in Spanish, ‘kann … erteilt werden’ in German, ‘may be authorised’ in English, ‘possono essere autorizzati’ in Italian, ‘może być upoważniony’ in Polish and ‘podem ser autorizados’ in Portuguese — to take part in internal competitions if they show that they have completed at least three years of service. In the second sentence, however, the EU legislature does not mention any authorisation. On the contrary, it entitles contract agents in Function Group IV to take part in the competitions for grades AST 1 to AST 4 and AD 5 and AD 6, without extending that access to competitions for the other grades. In that regard, although the French version uses an expression in the negative ‘ne peuvent prendre part qu’aux concours’, the same idea is expressed in the affirmative in other language versions: ‘solo tendrán acceso’ in Spanish, ‘haben Zugang … nur für’ in German, ‘may have access only’ in English, ‘possono partecipare unicamente’ in Italian, ‘może mieć dostęp jedynie’ in Polish and ‘apenas podem ter acesso’ in Portuguese.
39
It follows from reading the first two sentences of Article 82(7) of the CEOS together that an institution can, exceptionally, hold an internal competition open to contract agents with at least three years’ service. However, if that institution decides to open an internal competition to contract agents satisfying that length of service condition, it must proceed in accordance with the access that the EU legislature gave those agents and, therefore, allow those agents who belong to Function Group IV to take part in any competitions for grades AST 1 to AST 4 or AD 5 and AD 6 that it has chosen to hold.
40
Provided it complies with those limits laid down by the EU legislature and having regard to its wide discretion, the institution concerned is nevertheless entitled, as the Commission submits and in line with the case-law cited in paragraph 28 above, to restrict access by contract agents in Function Group IV to the competitions for grades AST 1 to AST 4 or AD 5 and AD 6 by establishing additional ability criteria required by the posts to be filled or in the interests of the service.
41
In the present case, it is evident that the condition at issue bars all contract agents in Function Group IV from taking part in competition COM/02/AST/16 (AST 2), even where they satisfy the other conditions laid down by the competition notice. In so doing, the Commission has infringed the second sentence of Article 82(7) of the CEOS, which expressly entitles those agents to take in part in competitions for grade AST 2.
42
The Commission states, however, in the defence that the condition at issue is compatible with the first paragraph of Article 27 and Article 29 of the Staff Regulations. It argues in essence that the condition in question is directly related to the interests of the service, which involve having highly skilled and immediately operational staff. Indeed, the tasks to be performed by agents in Function Group III and their responsibilities are, it argues, as different from those of agents in Function Group IV as those of officials in grade AST are from those of officials in grade AD, as borne out in section A of Annex I to the Staff Regulations and Article 80 of the CEOS.
43
That argument is untenable, however, in that it is tantamount to excluding all contract agents in Function Group IV, even those who have previously, as agents in Function Group III, performed tasks comparable with those of the posts to be filled, solely on the ground that they are considered to be overqualified for the AST 2 posts.
44
It has already been held that to reject a candidature for a competition solely because the candidate was overqualified was at odds with the objective assigned by the first paragraph of Article 27 of the Staff Regulations to any procedure to employ an official or an agent, namely, securing for the institution the services of persons of the highest standard of ability, efficiency and integrity. Such a rejection is, by contrast, admissible if the institution puts forward elements showing that that overqualification would prevent the candidates concerned from performing the duties attached to the posts to be filled or that it would have a negative effect on the quality of their work, their efficiency or their motivation (see, to that effect, judgment of 11 February 1999, Jiménez v OHIM, T‑200/97, EU:T:1999:26, paragraphs 47 to 49; see, also, by analogy, judgment of 28 March 1996, Noonan v Commission, T‑60/92, EU:T:1996:44, paragraphs 38 to 44).
45
The Commission emphasises, first, that the tasks and level of responsibility of contract agents in Function Group III are not the same as those of contract agents in Function Group IV and, secondly, that the same applies to the grades for functions AST and AD.
46
Furthermore, the Commission contends that, for contract agents, Function Grade III is the equivalent of grades AST 1 and AST 2 for officials and that Function Group IV is the equivalent of grade AD for officials.
47
On the basis of that dual premiss and in view of the need to have immediately operational staff, the Commission concludes that contract agents in Function Group III could take part only in internal competition COM/02/AST/16 (AST 2) and that those in Function Group IV could take part only in internal competition COM/03/AD/16 (AD 6).
48
Thus, contrary to the principles set out in paragraph 44 above, the Commission’s line of argument is not supported by any element capable of establishing that the overqualification of contract agents in Function Group IV could have had a negative effect on the quality of their work, their efficiency or their motivation in performing an AST 2 grade post.
49
Under those circumstances, the Commission manifestly misused its discretion in prohibiting agents in Function Group IV from applying for internal competition COM/02/AST/16 (AST 2).
50
Moreover, if contract agents in Function Group IV could not, as a general rule, take part in competitions for AST 2 grade posts on the ground that this function group is the equivalent of grade AD for officials, the second sentence of Article 82(7) of the CEOS would be deprived of effectiveness, in so far as it specifically entitles those contract agents to take part in such competitions.
51
In the light of those elements, the plea of illegality of the condition at issue must be upheld and, therefore, the contested decision must be annulled.
Claim for compensation
52
In so far as, according to the applicant, annulment of the contested decision is insufficient to constitute reparation for the non-pecuniary damage he claims he suffered, the applicant applies to the Court to order the Commission to pay the sum of EUR 5000. The Commission contends that, unless the contested decision is unlawful, those claims, made for the first time before the General Court, must be dismissed. In any event, even assuming that decision to be unlawful, its annulment would be sufficient to constitute reparation for the non-pecuniary damage alleged.
53
According to settled case-law, the annulment of an unlawful act can in itself constitute appropriate and, in principle, sufficient compensation for any non-material damage which that act may have caused (judgment of 9 November 2004, Montalto v Council, T‑116/03, EU:T:2004:325, paragraph 127; see, also, to that effect, judgment of 9 July 1987, Hochbaum and Rawes v Commission, 44/85, 77/85, 294/85 and 295/85, EU:C:1987:348, paragraph 22).
54
Nonetheless, the annulment of an unlawful act cannot in itself constitute adequate compensation where, first, the contested act involves an explicitly negative and potentially damaging assessment of the applicant’s abilities (see, to that effect, judgments of 7 February 1990, Culin v Commission, C‑343/87, EU:C:1990:49, paragraphs 27 to 29; of 23 March 2000, Rudolph v Commission, T‑197/98, EU:T:2000:86, paragraph 98; and of 13 December 2005, Cwik v Commission, T‑155/03, T‑157/03 and T‑331/03, EU:T:2005:447, paragraphs 205 and 206) and, secondly, the applicant demonstrates that he has suffered non-material damage which is separable from the unlawfulness giving rise to the annulment and which cannot be fully compensated for by the annulment (judgments of 6 June 2006, Girardot v Commission, T‑10/02, EU:T:2006:148, paragraph 131, and of 19 November 2009, Michail v Commission, T‑49/08 P, EU:T:2009:456, paragraph 88).
55
In the present case, the applicant asserts that the non-material damage caused to him arises because the Commission cannot reinstate him in the same circumstances as those in which the competition should have been held in order to ensure equal treatment for all the candidates and objective marking.
56
Clearly, the applicant is not criticising the Commission for any negative and potentially damaging assessment of his abilities; nor has he demonstrated that he suffered any non-material damage separable from the unlawfulness giving rise to the annulment.
57
In those circumstances, applying the case-law summarised in paragraphs 53 and 54 above, the Court finds that any non-material damage that the applicant may have suffered as a result of the illegality of the contested decision is appropriately and sufficiently remedied by annulling that decision. The claim for compensation must therefore be dismissed.
58
It follows from all the foregoing considerations that the action must be upheld in so far as it seeks annulment of the contested decision and must dismissed as to the remainder.
Costs
59
Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. In the present case, as the Commission has, essentially, been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the applicant.
On those grounds,
THE GENERAL COURT (Ninth Chamber)
hereby:
1.
Annuls the decision of the selection board for internal competition COM/02/AST/16 (AST 2) rejecting the candidature of Alain Schoonjans;
2.
Dismisses the action as to the remainder;
3.
Orders the European Commission to pay the costs.
Gervasoni
Kowalik-Bańczyk
Mac Eochaidh
Delivered in open court in Luxembourg on 12 September 2018.
[Signatures]
(
*1
)	Language of the case: French.