Opinion of the Advocate-General



Opinion of the Advocate-General

1. This case concerns the appeal brought by Marguerite Chetcuti, an auxiliary staff member, against the judgment of the Court of First Instance of the European Communities of 8 November 2006, (2) in which that Court dismissed the action for annulment she had brought against the decision of the Commission of the European Communities rejecting her application to enter a competition for progression from Category B to Category A.

2. Ms Chetcuti puts forward three pleas in support of her appeal, alleging misinterpretation by the Court of First Instance of the concept of competition internal to the institution, infringement of the principle of equal treatment and infringement of the obligation to state reasons for judgments.

3. In this opinion I shall argue that the Court of First Instance did not commit an error of law in finding that the Commission was entitled to reserve the competition at issue for officials and temporary staff, to the exclusion of auxiliary staff, and that it stated the reasons for its judgment to the requisite legal standard.

I – Legal background

4. Article 4 of the Staff Regulations of Officials of the European Communities, in the version in force until 30 April 2004, applicable to the facts in this case (‘the Staff Regulations’), provides:

‘No appointment or promotion shall be made for any purpose other than that of filling a vacant post as provided for in these Staff Regulations.

Vacant posts in an institution shall be notified to the staff of that institution once the appointing authority decides that the vacancy is to be filled.

If the vacancy cannot be filled by transfer, promotion or an internal competition, it shall be notified to the staff of the three European Communities.’

5. The first paragraph of Article 27 of the Staff Regulations provides:

‘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 Communities.’

6. Article 29(1) of the Staff Regulations provides:

‘Before filling a vacant post in an institution, the appointing authority shall first consider:

(a) whether the post can be filled by promotion or transfer within the institutions;

(b) whether to hold competitions internal to the institution;

(c) what applications for transfer have been made by officials of other institutions of the three European Communities;

and then follow the procedure for competitions on the basis either of qualifications or of tests, or of both qualifications and tests. Annex III lays down the competition procedure.

The procedure may likewise be followed for the purpose of constituting a reserve for future recruitment.’

7. Article 1(1) of Annex III to the Staff Regulations, entitled ‘Competitions’ provides:

‘Notice of competitions shall be drawn up by the appointing authority after consulting the Joint Committee.

It must specify:

(a) the nature of the competition (competition internal to the institution, competition internal to the institutions, open competition, where appropriate, common to two or more institutions);

(b) the kind of competition (whether on the basis of either qualifications or tests, or of both qualifications and tests);

(c) the type of duties and tasks involved in the post to be filled;

(d) the diplomas and other evidence of formal qualifications or the degree of experience required for the posts to be filled;

…’

8. The first subparagraph of Article 12(1) of the Conditions of Employment of Other Servants of the European Communities, in the version in force until 30 April 2004, applicable to the facts in this case (‘the Conditions of Employment’), provides:

‘The engagement of temporary staff shall be directed to securing for the institution the services of persons of the highest standard of ability, efficiency and integrity, recruited on the broadest possible geographical basis from among nationals of Member States of the Communities.’

9. The Conditions of Employment, however, do not contain any requirement as to the standard of ability and efficiency expected of auxiliary staff for their engagement.

II – Facts in the present case

10. Ms Chetcuti, worked as a secretary at the Commission’s Delegation to Malta, as a local staff member, from 1 November 1991 to 30 April 2004. Her contract ended when Malta acceded to the European Community on 1 May of that year.

11. The appellant then signed a contract to join the auxiliary staff in Category B on 27 April 2004, for the period 1 May 2004 to 31 December 2004. Article 2 of her contract stated that she would work as a ‘staff member responsible for complex tasks of drafting, correcting, accounting or technical work’.

12. On 6 April 2004 the Commission published a ‘notice of internal competition for progression from Category B to Category A’ (COM/PA/04), concerning a competition based on tests for the purpose of drawing up a reserve list from which to fill vacant administrative posts (A 7/A 6) (‘the notice of competition’).

13. Point III of the notice of competition stated that the competition was open to officials and temporary staff in one of the grades in Category B, and those in one of the grades in the higher category, who, at the closing date for submitting applications, were either currently working in a department of the Commission, seconded in the interests of the service or on leave for military service. All such persons should also be in a post funded from administrative or research appropriations.

14. That provision also states that candidates should have five or more years’ service in Category B, or in a higher category, as an official, a temporary staff member or an auxiliary staff member in Groups I to V with the Commission or, part of the time, with other institutions or agencies whose staff are governed by the Staff Regulations or the Conditions of Employment.

15. By letter of 22 June 2004 the appellant, who had applied to enter the competition, was informed that her application had been rejected on the ground that she did not have the five years’ service required and did not fulfil the admission requirements as regards her administrative situation, because, for the purposes of the notice of competition, only officials or temporary staff were eligible to apply.

III – Proceedings before the Court of First Instance and judgment under appeal

16. By application lodged at the Registry of the Court of First Instance on 31 August 2004 the applicant brought an action for annulment of the decision of the selection board rejecting her application to enter the internal competition to progress from Category B to Category A (‘the contested decision’), and subsequent acts connected with the competition procedure, in particular the list, adopted by the selection board, of candidates meeting the conditions laid down in the notice of competition, the Commission decision determining on that basis the number of posts to be filled, the list of suitable candidates adopted by the board on completion of its work and the appointment decisions taken by the appointing authority.

17. The applicant also applied for the Commission to be ordered to pay the costs.

18. The applicant relied on two pleas in law in support of her action, both alleging that the notice of competition was unlawful.

19. By her first plea she submitted that, because it reserves access to the competition solely for officials and temporary staff, thus excluding auxiliary staff, the first and second paragraphs and subparagraph (a) of the third subparagraph of Point III.1 of the notice of competition infringe Articles 4, 27 and 29(1)(b) of the Staff Regulations and also the principle of equal treatment. The contested decision is therefore unlawful.

20. By her second plea, the applicant claims that subparagraph (b) of the third paragraph of Point III.1, Point III.2 and Point III.3 of the notice of competition, in so far as they require five years’ service in Category B or a higher category, as an official, temporary staff member or auxiliary staff member in Groups I to V, thereby excluding service as a local staff member, are in breach of Articles 27 and 29 of the Staff Regulations, and the interests of the service and also the principle of equal treatment. For those reasons, the contested decision is unlawful.

21. In the judgment under appeal the applicant’s application was dismissed and the Court ordered each party to bear its own costs.

22. The Court of First Instance rejected the first plea as unfounded for the following reasons.

23. It held first of all that the Staff Regulations confer a wide discretion on the institutions as regards their recruitment procedures and that review by the Community legislature is limited to whether the authority concerned has used its discretion in a manifestly erroneous manner.

24. The Court of First Instance then pointed out that the different categories of person employed by the Communities each meet legitimate needs of the Community administration. It added that the essential requirements laid down for the employment of officials and temporary staff are different from those for auxiliary staff.

25. Next, the Court of First Instance held that it follows expressly from the notice of competition that the main purpose of that competition is for officials and temporary staff to progress from Category B to Category A. The Court held that the Commission had not misused its discretion in laying down in Point III.1 of the notice of competition the condition of admission that the candidate must be an official or temporary staff member and not a member of the auxiliary staff.

26. Moreover, the Court of First Instance held to be irrelevant the applicant’s argument that the competition at issue is not only a competition for progression from Category B to Category A, but also an internal competition of another nature, in particular because it is open both to temporary staff members in Category B or A and to officials in Category A. The Court ruled that that argument was irrelevant because, unlike auxiliary staff, officials and temporary staff who are admitted to the competition have already proved their expertise at the time of their initial recruitment and engagement in accordance with Article 27 of the Staff Regulations and Article 12 of the Conditions of Employment.

27. Therefore the Court of First Instance held that, since those two provisions had applied at the time of the initial recruitment and engagement of officials and temporary staff, the applicant’s argument that the Commission misconstrued the purpose of all recruitment and engagement laid down in those provisions was unfounded.

28. The Court of First Instance added that the fact that auxiliary staff may perform any kind of duties within the institution is not sufficient to mean that they should be treated in the same way as officials and temporary staff for the purposes of competitions for promotion. Therefore, in the Court’s view, the Commission was entitled to reserve the competition in question for progression from Category B to Category A of officials and temporary staff who had already satisfied the initial recruitment and engagement requirements in accordance with Article 27 of the Staff Regulations and Article 12 of the Conditions of Employment.

29. Lastly, the Court of First Instance held that the applicant was wrong to rely on infringement of the principle of equal treatment since officials and temporary staff, on the one hand, and auxiliary staff, on the other, are in legal situations which are not comparable, due to the differences between their respective conditions of recruitment and engagement.

30. In the light of all these considerations, the Court of First Instance took the view that there was no need to give a ruling on the second plea and rejected the submissions regarding the acts connected with the competition procedure.

IV – Proceedings before the Court of Justice and the forms of order sought

31. By application lodged at the Registry of the Court of Justice on 18 January 2007, Ms Chetcuti brought this action.

32. The appellant claims that the Court should set aside the judgment under appeal, annul the contested decision, the subsequent acts connected with the competition procedure and, in particular, the list adopted by the selection board of candidates meeting the conditions laid down in the notice of competition, the Commission decision determining on that basis the number of posts to be filled, the list of suitable candidates adopted by the selection board on completion of its task and the appointment decisions adopted by the appointing authority.

33. The appellant also claims that the Commission should be ordered to pay the costs of the proceedings at first instance and the costs of the proceedings before the Court of Justice.

34. The Commission contends that the Court should dismiss the appeal and order the appellant to pay the costs.

V – Assessment

35. As I see it, the appellant relies on three pleas in law in support of her appeal.

36. By her first plea the appellant submits that the Court of First Instance misinterpreted the concept of internal competition and therefore drew incorrect legal conclusions from it.

37. By her second plea the appellant claims that the judgment under appeal infringes the principle of equal treatment.

38. Lastly, by her third plea, the appellant submits that the Court of First Instance failed to state the reasons for its judgment to the requisite legal standard.

39. I shall examine each of these three pleas in turn.

A – First plea in law: misinterpretation of the concept of internal competition

40. First of all, it is appropriate to examine the admissibility of the first plea.

41. The Commission regards the first plea as inadmissible since the appellant is challenging the characterisation of the competition at issue given by the Court of First Instance. The Commission considers that according to settled case-law the Court of First Instance has exclusive jurisdiction to find and appraise the relevant facts.

42. Under that case-law, it is clear from Article 225 EC and the first paragraph of Article 58 of the Statute of the Court of Justice that the Court of First Instance alone has jurisdiction to find and to appraise the facts, save where the factual inaccuracy of its findings results from the documents in the case before it. (3)

43. The Court of Justice added that when the Court of First Instance has found or assessed the facts, the Court of Justice has jurisdiction under Article 225 EC to review the legal classification of those facts by the Court of First Instance and the legal conclusions it has drawn from them. (4)

44. It is clear from the appeal that Ms Chetcuti is challenging the finding, made by the Court of First Instance in paragraph 56 of the judgment under appeal, that the competition at issue is a competition ‘[whose] main purpose … is progression from Category B to Category A’. In support of that challenge the appellant puts forward a number of arguments designed to demonstrate that the Court of First Instance made a wrong legal classification of the concept of an internal competition and hence drew incorrect legal conclusions from this.

45. Since the classification by the Court of First Instance of an act or a measure for legal purposes is a question of law which may be raised in an appeal, (5) my view is that the plea is admissible.

46. By that first plea the appellant submits that the Court of First Instance infringed the concept of ‘competition internal to the institution’ within the meaning of Articles 4 and 29(1)(b) of the Staff Regulations and hence drew incorrect legal conclusions from this.

47. She puts forward a number of arguments in support of that plea.

48. First, the appellant criticises the Court of First Instance for using, in paragraph 56 of the judgment under appeal, a subjective criterion in order to define the nature of the competition, namely its purpose, as assigned to it in the title of the notice of competition. Taking that classification as its basis, the Court of First Instance committed an error of law in its assessment of the categories of candidates who could or could not lawfully be admitted to the competition. According to the appellant, the nature of the competition at issue should have been described on the basis of the objective conditions for admission stipulated in the notice of competition itself, conditions which were themselves defined on the basis of the requirements of the posts to be filled.

49. In the alternative, she states that even if the main purpose of the competition at issue was progression from Category B to Category A, it was a competition for a permanent post and should be classified as an internal competition. Therefore, according to the case-law in Rauch v Commission (6) and Van Huffel v Commission , (7) auxiliary staff could not lawfully be excluded from that competition.

50. I am of the view that this argument is unfounded.

51. First of all, the Court recalled the principles which should govern any recruitment procedure.

52. Thus, the Court observed in paragraph 48 of the judgment under appeal that, ‘in order to meet the objective assigned by Article 27 of the Staff Regulations to any recruitment procedure, namely that of “securing for the institution the services of officials of the highest standard of ability, efficiency and integrity”, it is necessary to recruit officials on the broadest possible basis. Therefore, the expression “competition internal to the institution” concerns, in principle, all persons in the service of that institution, in whatever capacity’.

53. Next, in paragraph 49 of the judgment under appeal, the Court of First Instance observed ‘[h]owever, the Staff Regulations confer a wide discretion on the institutions in deciding upon the criteria of ability required for the posts that are to be filled and in deciding, on the basis of those criteria and, more generally, in the interests of the service, the conditions and procedure for organising a competition. (8) The Court of First Instance went on to state that such discretion may be exercised in particular when the appointing authority draws up the notice of competition and lays down the conditions for admission to the competition. (9)

54. Exercise of the discretion conferred on the appointing authority must, as correctly observed by the Court of First Instance in paragraph 50 of the judgment under appeal, be compatible, in particular, with the mandatory provisions of the first paragraph of Article 27 and Article 29(1) of the Staff Regulations.

55. It is in the light of those principles that the Court of First Instance found, in paragraph 56 of the judgment under appeal, that it was stated expressly in the notice of competition that it was an internal competition for progression from Category B to Category A and that it was designed to enable officials and temporary staff who, unlike auxiliary staff, have already demonstrated the highest standard of ability, efficiency and integrity, to progress from Category B to Category A.

56. In my view the Court made a correct classification of the concept of competition internal to the institution.

57. The wording of Article 29(1) of the Staff Regulations shows that the appointing authority enjoys a wide discretion as regards the procedure for organising a competition. According to that provision, the appointing authority, after considering whether the post can be filled by promotion or transfer within the institutions, whether to hold competitions internal to the institution, and what applications for transfer have been made by officials of other institutions of the three European Communities, then follows the procedure for competitions on the basis either of qualifications or of tests, or of both qualifications and tests. It is also stated that this procedure may likewise be followed for the purpose of constituting a reserve for future recruitment.

58. It is clear from the case-law of the Court of Justice that the use of the formulation ‘whether ... can’ clearly indicates that the appointing authority is not bound to opt for a given procedure but has a choice of several procedures and may select the one which enables it to obtain the best candidates, (10) the most important point being that the procedure chosen should result, in every case, in the appointment of a person of the highest standard of ability, efficiency and integrity. (11)

59. The Court of Justice has also held, with regard to a competition for progression from one category to another, that the Commission enjoys a wide discretion in deciding upon the criteria of ability required for newly-created posts and, consequently, in deciding upon the rules of the competition in view of these criteria and in the interests of the service. (12)

60. Also, according to settled case-law, the appointing authority has a wide discretion in seeking candidates with the highest standard of ability, efficiency and integrity. (13)

61. In the present case, the title of the competition at issue makes clear that it is a competition internal to an institution for progression from Category B to Category A.

62. Moreover, as the Court stated in paragraph 56 of the judgment under appeal, the persons eligible for the competition at issue were officials and temporary staff since, under Article 27 of the Staff Regulations and Article 12 of the Conditions of Employment, those persons had already demonstrated, at the time of their initial recruitment, the highest standard of ability, efficiency and integrity, unlike auxiliary staff of whom no such standard is required at the time of their engagement.

63. In those circumstances, I consider the Court of First Instance was correct in stating, in paragraphs 56 and 57 of the judgment under appeal, that the competition at issue is an internal competition for officials and temporary staff for progression from Category B to Category A and that, consequently, the Commission did not use its discretion incorrectly in providing that only those two categories of person could be admitted to the competition.

64. I would add that the Commission, in order to draw up a reserve list from which to fill vacant administrative posts, could also have opted to recruit by means of promotion, under Article 45 of the Staff Regulations, which would have restricted recruitment to officials alone, since there is no equivalent in the Conditions of Employment for temporary staff.

65. The Commission, in choosing an internal competition, open to officials and to temporary staff, for progression from one category to another, secured for the institution the services of the best candidates, by recruiting on the broadest possible basis.

66. Secondly, the appellant submits that the Court of First Instance committed an error in law in holding that exclusion of auxiliary staff from the competition at issue was justified, since the latter, unlike officials and temporary staff, did not have to prove at the time of their initial recruitment that they were of the highest standard of ability, efficiency and integrity. The appellant disputes that the condition that that standard must be met can be inferred from the requirements of the posts to be filled and, more generally, from the interests of the service. In her view, officials and temporary staff in Category B have demonstrated that they meet that standard only in order to occupy posts in Category B. Proof of the highest standard of ability, efficiency and integrity should result from passing the pre-selection and selection tests.

67. I do not take that view.

68. I consider that it was correct for the Court of First Instance to find in paragraphs 59 and 60 of the judgment under appeal that the Commission did not misconstrue the purpose of all recruitment and engagement described in Article 27 of the Staff Regulations and Article 12 of the Conditions of Employment.

69. I would point out that, under those two provisions, recruitment of officials and engagement of temporary staff must be directed to securing for the institution the services of persons of the highest standard of ability, efficiency and integrity.

70. Although under Article 55(1)(c) of the Conditions of Employment auxiliary staff may be engaged only on condition that they produce the appropriate character references as to their suitability for the performance of their duties, no mention is made in the Conditions of Employment of the obligation on those staff members to meet that standard.

71. The appellant argues that the criterion relating to initial recruitment and engagement is not relevant since it does not follow from the requirements of the posts to be filled or, more generally, from the interests of the service that candidates should be of the highest standard of ability, efficiency and integrity.

72. It is appropriate to note that the appointing authority enjoys a wide discretion in evaluating the interests of the service. Review by the Court of First Instance must therefore be confined to the question whether the appointing authority remained within the bounds of that discretion and did not use it in a manifestly wrong way. (14)

73. As is clear from paragraph 15 of the judgment under appeal, the competition at issue was being held in order to draw up a reserve list and not to fill a specific post. I would point out in that regard that the notice of competition does not stipulate any requirement regarding qualifications or specific skills. When a reserve list is being drawn up the conditions for admission are confined to requiring candidates to possess general skills. (15) Like the Commission, I consider that the requirements relating to initial recruitment and engagement, namely proof of the highest standard of ability, efficiency and integrity, thus constituted an appropriate criterion for the admission of candidates.

74. I am therefore of the view that the Court of First Instance was right to find that the Commission had not misconstrued the purpose of Article 27 of the Staff Regulations and Article 12 of the Conditions of Employment.

75. Thirdly, the appellant considers that the Court of First Instance was wrong to reject her argument that as auxiliary staff may, under Article 3 of the Conditions of Employment, perform any type of duties provided they are not engaged in order to provide a replacement for an official, they may be treated in the same way as officials and temporary staff. The appellant states in that regard that officials and temporary staff in Category B had not themselves demonstrated the highest standard of ability, efficiency and integrity as regards duties in Category A, but they were none the less permitted to take part in the competition at issue.

76. I would point out that the Court of First Instance, in paragraph 61 of the judgment under appeal, rejected the appellant’s argument on the ground that ‘the fact that auxiliary staff may perform any type of duties in the institution does not mean that they can be treated in the same way as officials and temporary staff for the purposes of a competition for promotion. Thus, the Commission was able quite legitimately to reserve the competition at issue for progression to Category A of officials and temporary staff who had already met the requirements for initial recruitment under Article 27 of the Staff Regulations and Article 12 of the Conditions of Employment, irrespective of the dut ies they have performed’.

77. I would also point out that in paragraphs 49 and 56 of the judgment under appeal the Court of First Instance observed that the Staff Regulations confer upon the appointing authority a wide discretion in deciding on the criteria of ability required by the posts to be filled and that, unlike officials and temporary staff, auxiliary staff did not have to demonstrate the highest standard of ability, efficiency and integrity when they were engaged.

78. Moreover, the Court rightly noted in paragraph 52 of the judgment under appeal that each category of person employed by the Communities meets legitimate needs of the Community administration and corresponds to the permanent or temporary nature of the tasks it is called upon to perform.

79. I therefore regard the appellant’s argument as unfounded.

80. In the light of all these considerations, I am of the view that the first plea in law is inadmissible and unfounded.

B – Second plea in law: infringement of the principle of equal treatment

81. According to the appellant, the Court of First Instance was wrong to find in paragraph 62 of the judgment under appeal that the legal situation of officials and temporary staff is not comparable to that of auxiliary staff on account of the differences between their respective conditions of recruitment and engagement, and thus infringed the principle of equal treatment.

82. As the Court of Justice has held, although the principle of equality of treatment is a general rule forming part of the law applicable to the employees of the Communities, discrimination occurs only where identical or comparable situations are treated in an unequal way. (16)

83. There is a breach of the principle of equal treatment when two categories of person whose factual and legal circumstances disclose no essential difference are treated differently at the time of their recruitment or engagement. (17)

84. The question which arises is therefore whether officials and temporary staff, on the one hand, and auxiliary staff, on the other hand, are in identical or comparable situations.

85. I do not think so.

86. As the Court of First Instance rightly held in paragraph 53 of the judgment under appeal, it is clear from Article 27 of the Staff Regulations and Article 12 of the Conditions of Employment that the essential requirements laid down for the recruitment of officials and the engagement of temporary staff are different from those laid down for auxiliary staff, since the latter, unlike the two other categories, do not have to demonstrate the highest standard of ability, efficiency and integrity at the time of their engagement.

87. We have seen above that under Article 55(1)(c) of the Conditions of Employment auxiliary staff are required, when seeking engagement, to produce only the appropriate character references as to their suitability for the performance of their duties.

88. Moreover, I would add that there are significant differences between the status of official and the status of temporary staff member, on the one hand, and the status of auxiliary staff member, on the other.

89. It is clear from Article 6 of the Staff Regulations and Article 9 of the Conditions of Employment that the posts of officials and temporary staff appear in the list of posts, which is not the case for auxiliary staff. The Court of Justice has moreover held that Article 3 of the Conditions of Employment provides that ‘auxiliary staff’ means staff engaged for the performance of duties in an institution but not assigned to a post included in the list of posts appended to the section of the budget relating to that institution. (18)

90. The Court also held that Article 52 of the Conditions of Employment provides that the actual period of employment of auxiliary staff must not exceed the period of temporary assignment for the purpose of replacing an official or a member of the temporary staff who is unable for the time being to perform his duties, or one year in all other cases. (19)

91. The Court concluded from this that the characteristic of the contract of a member of the auxiliary staff is therefore its precariousness in time, since it can be used only to effect a temporary replacement or to allow the performance of administrative duties which are of a transitory nature, which fill an urgent need or which are not clearly defined. (20)

92. It should also be noted that there are differences between, on the one hand, the status of auxiliary staff member and, on the other, the status of official and that of temporary staff member, as regards in particular staff reports, advancement to a higher step and pension rights. Whilst officials and temporary staff members have staff reports, may advance to a higher step and are entitled to a retirement pension, (21) the Conditions of Employment make no such provision for auxiliary staff.

93. The status of auxiliary staff member was created in order to meet specific needs of Community institutions and the duties of such a staff member are not intended to last for very long.

94. I therefore take the view that officials and temporary staff are in a different legal situation from that of auxiliary staff.

95. For these reasons I do not consider the Court of First Instance committed an error of law in finding, in paragraph 62 of the judgment under appeal, that the legal situation of officials and temporary staff is not comparable to that of auxiliary staff on account of the differences between their respective conditions of recruitment and engagement.

96. Accordingly, in view of the above considerations, I think the second plea must be rejected as unfounded.

C – Third plea in law: failure to state reasons in the judgment under appeal

97. My understanding is that, by her third plea, the appellant submits that the Court of First Instance did not respond to her arguments intended to refute the Commission’s view that the reason why the notice of competition did not contain conditions concerning general aptitude, such as academic qualifications, is that officials and temporary staff had already demonstrated the required expertise at the time of their initial recruitment or engagement.

98. At first instance the appellant submitted that the Commission’s argument that this omission was explained by the fact that officials and temporary staff had already demonstrated the highest standard of ability, efficiency and integrity at the time of their initial recruitment or engagement was wrong.

99. The appellant maintained before the Court of First Instance that the omission was not explained by the fact that officials and temporary staff had already demonstrated that standard at the time of their initial recruitment or engagement, since the competition is open to officials in Category B and employment within that category does not require a degree.

100. According to the appellant, the omission of those conditions was explained by the fact that the Commission had considered that five years’ service as an official, temporary staff member or auxiliary staff member was equivalent professional experience within the meaning of Article 5 of the Staff Regulations. The appellant also thought that the omission of specific conditions was explained by the fact that the Commission’s intention was not to fill vacant posts directly but to draw up a reserve list, the conditions for admission to which were confined to a requirement of skills of a general nature.

101. The appellant also submitted that it was essential that a competition whose purpose was the recruitment of officials should comply with the objective laid down in Article 27 of the Staff Regulations. It was therefore of little importance that checks had already been made to ensure that objective was met in the case of officials and temporary staff and not in the case of auxiliary staff, since the internal competition at issue would itself have enabled this to be checked.

102. It must be borne in mind at the outset that the question whether the grounds of a judgment of the Court of First Instance are inadequate is a point of law which is amenable, as such, to judicial review on appeal. (22)

103. I would also point out that, under Article 36 of the Statute of the Court of Justice, applicable to the Court of First Instance under Article 53 of that statute, ‘[j]udgments shall state the reasons on which they are based’.

104. Moreover, according to settled case-law, the statement of reasons which the Court of First Instance is required to provide must disclose its reasoning in a clear and unequivocal fashion in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the Court of Justice to exercise its power of review. (23) .

105. Having noted this, we should now consider whether the Court of First Instance failed to respond to the appellant’s argument.

106. The Court of First Instance, having stated in paragraph 48 of the judgment under appeal that the institution must recruit on the broadest possible basis in order to comply with the objective assigned by Article 27 of the Staff Regulations, held in paragraph 53 of its judgment: ‘It is clear from Article 27 of the Staff Regulations and Article 12 of the Conditions of Employment, respectively, that the essential requirements laid down for the engagement of officials and temporary staff are different from those laid down for auxiliary staff. Unlike auxiliary staff, in respect of whom no such requirements are laid down, the two above-mentioned provisions state that the recruitment of officials and the engagement of temporary staff must be directed to securing for the institution the services of persons of the highest standard of ability, efficiency and integrity’.

107. Having described the competition as ‘an internal competition for progression from Category B to Category A’, the Court of First Instance then held, in paragraphs 59 and 60 of the judgment under appeal, that the competition was open only to officials and temporary staff, for the very reason that those persons had already demonstrated, at the time of their initial recruitment or engagement, the highest standard of ability, efficiency and integrity, in accordance with Article 27 of the Staff Regulations and Article 12 of the Conditions of Employment.

108. The obligation to state reasons does not require the Court of First Instance to provide an account that follows exhaustively and point by point all the reasoning articulated by the parties to the case. The reasoning of the Court of First Instance may therefore be implicit, on condition that it enables the persons concerned to know why the measures in question were taken and provides the competent court with sufficient material for it to exercise its power of review. (24)

109. Although the Court of First Instance did not respond in detail to all the arguments put forward by Ms Chetcuti, it clearly confirmed the Commission’s view in paragraphs 59 and 60 of the judgment under appeal. It explained that officials and temporary staff, unlike auxiliary staff, are required to demonstrate, at the time of their initial recruitment or engagement, the highest standard of ability, efficiency and integrity, in accordance with Article 27 of the Staff Regulations and Article 12 of the Conditions of Employment.

110. As I have observed, the analysis of the Court of First Instance in particular, explained why only officials and temporary staff were eligible for the competition at issue and demonstrated that the purpose of all recruitment and engagement had been met, whilst noting that the appointing authority enjoys a wide discretion as regards the procedure for organising a competition.

111. The Court of First Instance was thus able to infer from this that the Commission was entitled to reserve the contested competition for officials and temporary staff and that the purpose of all recruitment and engagement, namely to meet that standard, had been met.

112. The appellant also complains that the Court of First Instance did not respond to her argument that the notice of competition contained an internal contradiction in so far as the first condition for admission excluded auxiliary staff but accepted the experience of such staff for calculating professional experience.

113. I regard that argument as being unfounded.

114. As we saw above, the Court of First Instance sought, throughout its analysis, to indicate the reasons why the Commission had not exceeded its powers in accepting applications only from officials and temporary staff, on the ground that those two categories of person had already demonstrated the highest standard of ability, efficiency and integrity.

115. Taking into account the professional experience of auxiliary staff when calculating the length of service of an official or temporary staff member does not in any way undermine the fact that, unlike auxiliary staff, the latter two categories of person have, at a particular time, demonstrated the standard required for their recruitment and engagement in accordance with Article 27 of the Staff Regulations and Article 12 of the Conditions of Employment.

116. Moreover, taking into account service as a staff member engaged under the Conditions of Employment is an appropriate way of pursuing the interests of the service. (25)

117. Those two conditions are therefore not conflicting but complementary. As the Court of Justice rightly held in paragraph 61 of the judgment under appeal, although auxiliary staff may perform any type of duties this does not mean that they can be treated in the same way as officials and temporary staff since those two categories of person, unlike auxiliary staff, have already demonstrated the highest standard o f ability, efficiency and integrity at the time of their initial recruitment and engagement.

118. I therefore propose that the Court should reject this plea as unfounded.

VI – Costs

119. Under the first paragraph of Article 122 of the Rules of Procedure of the Court of Justice, in the case of an appeal the Court of Justice itself is to make a decision as to costs.

120. Under Article 69(2) of those rules, which by virtue of Article 118 thereof, applies to appeal proceedings, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

121. In accordance with Article 70 of the Rules of Procedure, in disputes between the Communities and their servants, the institutions are to bear their own costs.

122. However, under the second paragraph of Article 122 of those rules, Article 70 is to apply only to appeals brought by officials or other servants of an institution against that institution.

123. Since the Commission has applied for costs and, in my view, Ms Chetcuti has been unsuccessful, I take the view she should be ordered to pay the costs.

VII – Conclusion

124. In the light of all the above considerations, I propose that the Court should:

(1) dismiss the appeal;

(2) order Ms Chetcuti to pay the costs of the appeal.

(1) .

(2) – Case T-357/04 Chetcuti v Commission [2006] ECR-SC I-A-000 and II-00000 (‘the judgment under appeal’).

(3) – See, in particular, Case C‑167/04 P JCB Service v Commission [2006] ECR I‑8935, paragraph 106, and case-law cited therein.

(4) – Ibid.

(5) – See Case C‑154/99 P Politi v European Training Foundation [2000] ECR I‑5019, paragraph 11, and case-law cited therein.

(6) – Case 16/64 [1965] ECR 135.

(7) – Case T‑142/00 [2001] ECR-SC I‑A‑219 and II‑1011).

(8) – Case T‑56/89 Bataille and Others v European Parliament [1990] ECR II‑597, paragraph 42; Case T‑207/95 Ibarra Gil v Commission [1997] ECR-SC I‑A‑13 and II‑31, paragraph 66, and Case T‑256/01 Pyres v Commission [2005] ECR-SC I‑A‑23 and II‑99, paragraph 36.

(9) – Case T‑214/99 Carrasco Benítez v Commission [2000] ECR-SC I‑A‑257 and II‑1169, paragraph 52, and Van Huffel v Commission , paragraph 51.

(10) – See, in particular, Case C‑174/99 P European Parliament v Richard [2000] ECR I‑6189, paragraph 38. See also Case T‑372/00 Campolargo v Commission [2002] ECR-SC I‑A‑49 and II‑223, paragraphs 93 and 98.

(11) – See Joined Cases 12/64 and 29/64 Ley v Commission [1965] ECR 107, at 121; Case 10/82 Mogensen and Others v Commission [1983] ECR 2397, paragraph 9, and Case 135/87 Vlachou v Court of Auditors [1988] ECR 2901, paragraph 23.

(12) – See Case 90/74 Deboeck v Commission [1975] ECR 1123, paragraph 29.

(13) – Case T‑248/02 Faita v ESC [2003] ECR-SC I‑A‑281 and II‑1365, paragraph 45.

(14) – See Case T‑237/95 Carbajo Ferrero v European Parliament [1997] ECR-SC I‑A‑141 and II‑429, paragraph 99, and Case T‑258/03 Mausolf v Europol [2005] ECR-SC I‑A‑45 and II‑189, paragraph 49.

(15) – Joined Cases T‑40/96 and T‑55/96 Kerros and Kohn‑Bergé v Commission [1997] ECR-SC I‑A‑47 and II‑135, paragraph 43.

(16) – Joined Cases 198/81 to 202/81 Micheli and Others v Commission [1982] ECR 4145, paragraph 5.

(17) – Joined Cases 66/83 to 68/83 and 136/83 to 140/83 Hattet and Others v Commission [1985] ECR 2459, paragraph 24. See also Joined Cases T‑18/89 and T‑24/89 Tagaras v Court of Justice [1991] ECR II‑53, paragraph 68; Case T‑159/95 Dricot and Others v Commission [1997] ECR-SC I‑A‑385 and II‑1035, paragraphs 83 and 98; Case T‑225/95 Chiou v Commission [1997] ECR-SC I‑A‑423 and II‑1135, paragraphs 48 and 66; and Case T‑381/00 Wasmeier v Commission [2002] ECR-SC I‑A‑125 and II‑677, paragraph 122.

(18) – Case 17/78 Deshormes v Commission [1979] 189, paragraph 35.

(19) – Ibid . , paragraph 36. It should also be noted that, under the Conditions of Employment, the maximum period of employment of auxiliary staff was extended to three years in all cases except where the person concerned is engaged to replace an official or a member of the temporary staff (Article 52(b) of the Conditions of Employment).

(20) – Deshormes v Commission (paragraph 37).

(21) – See, as regards officials, Articles 43, 44 and 77 of the Staff Regulations and, as regards temporary staff, Articles 15, 20 and 39 of the Conditions of Employment.

(22) – See Case C‑3/06 P Groupe Danone v Commission [2007] ECR I‑1331, paragraph 45, and case-law cited therein.

(23) – See, to that effect, Case C‑259/96 P Council v d e Nil and Impens [1998] ECR I‑2915, paragraphs 32 to 34, and Case C‑449/98 P IECC v Commission [2001] ECR I‑3875, paragraph 70, and Order of the President of the Court of 19 July 1995 in Case C‑149/95 P(R) Commission v Atlantic Container Line and Others [1995] ECR I‑2165, paragraph 58; Order of the President of the Court of 14 October 1996 in Case C‑268/96 P(R) SCK and FNK v Commission [1996] ECR I‑4971, paragraph 52, and Order of the President of the Court of 25 June 1998 in Case C‑159/98 P(R) Netherlands Antilles v Council [1998] ECR I‑4147, paragraph 70.

(24) – Groupe Danone v Commission , paragraph 46. See also Joined Cases C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P Aalborg Portland and Others v Commission [2004] ECR I‑123, paragraph 372.

(25) – Kerros and Kohn‑Bergé v Commission , paragraph 47.