JUDGMENT OF THE COURT OF FIRST INSTANCE (Fifth Chamber)

14 May 1998

Case T-21/97

Sofia Goycoolea

v

Commission of the European Communities

‛Temporary staff — False information given on the application form — Article 50(1) of the Conditions of Employment of Other Servants — Third subparagraph of Article 5(1) of the Staff Regulations — Conditions governing the form in which complaints are to be made’

Full text in French II-679

Application for:

annulment of the decision of the authority empowered to conclude contracts of employment within the Commission of 7 May 1996 terminating the applicant's contract as a member of the temporary staff.

Decision:

Application dismissed.

Abstract of the Judgment

The applicant, Sofia Goycoolea, began to work for the Commission on 16 September 1991 as a member of the auxiliary staff in Category C, in the position of typist, for a period of three months. Her contract was extended on several occasions.

On 7 February 1994 the applicant took part in a selection procedure for temporary staff in Category B by applying for four vacant posts (114T/IX/93, 121T/XI/93, 112T/V/93 and 124T/XVI/93).

One of the general qualifications required by the vacancy notice, for all the posts to be filled, was the completion of the advanced level of secondary education evidenced by a diploma.

At the end of the selection procedure the Selection Board included the applicant on the list of people considered able to fill post 114T/IX/93, in Grade 3/B 2.

One of the special qualifications required of candidates for the above post — in addition to the general qualifications — was the requirement of ‘at least 12 years’ professional experience since leaving school'.

The candidate's application form for the post in question stated — under point 7 A, ‘Secondary or technical education’ — that she had obtained her baccalaureate at the Sagrado Corazón School in Buenos Aires (Argentina) in December 1966. In addition, under point 7 B, ‘Higher education’, die form stated that she had a degree in the policy and practice of training, awarded by the Catholic University of Louvain (Belgium) in November 1992.

The applicant signed the sworn statement at the end of the application form declaring that the information contained in her application form was correct and complete.

Following the selection procedure the applicant was formally engaged, with effect from 1 December 1994, as a member of the temporary staff in Grade b 3 to carry out the duties of assistant in the Secretariat-General of the Commission, Directorate H, ‘Cohesion Fund’. Her contract was for three years.

When the meeting of the Classification Committee of 31 January 1995 was being prepared, the administration noted that the applicant's baccalaureate diploma was not included in her personal file and asked her to send it the missing document.

After several fruitless requests, the applicant finally acknowledged, in a memorandum of 6 September 1995 sent to the Director of Directorate B ‘Rights and obligations’ of the Directorate-General for Personnel and Administration (DG IX), that she had not completed her secondary education and thus had no secondary school diploma. She emphasised that she had not realised the importance of the inaccuracy of her statement for the recruitment procedure.

Consequently, the administration opened disciplinary proceedings against the applicant on 20 September 1995.

On 26 February 1996 the Disciplinary Board delivered a reasoned opinion in which it ‘unanimously recommends to the appointing authority that it impose on Ms Goycoolea the penalty provided for in Article 50 of the Conditions of Employment of Other Servants of the European Communities’ (CEOS), ‘namely termination of her employment without notice, without her allowances being withheld or limited in accordance with Article 49(2) of the CEOS’.

By decision of 7 May 1996 (the decision challenged), the Director-General of DG IX, acting in his capacity as authority empowered to conclude contracts of employment (AECC), terminated the applicant's contract as a member of the temporary staff with effect from 1 September 1996.

By memorandum of 28 May 1996 the applicant's lawyer asked the Director-General of DG IX to withdraw the decision to terminate her contract as a member of the temporary staff. That memorandum was registered by the Commission on 17 June 1996 as a complaint in accordance with Article 90(2) of the Staff Regulations of Officials of the European Communities (Staff Regulations).

On 18 July 1996 a meeting of the Inter-Service Group took place during which the applicant's file was examined.

By decision of 21 October 1996, the AECC rejected the applicant's complaint.

Substance

First plea: infringement of Article 50(1) of the CEOS and the third subparagraph of Article 5(1) of the Staff Regulations and manifest error of assessment

Two conditions must be concurrently fulfilled before an institution can legitimately have recourse to Article 50(1) of the CEOS. The AECC must have found that at the time of his engagement the person concerned deliberately furnished false information as to either his professional ability or the requirements of Article 12(2), and that the false information furnished was a determining factor in the applicant's being engaged (paragraph 42).

It is therefore necessary to examine whether, in this case, the two conditions are fulfilled.

As to the condition relating to the deliberate furnishing, by the person concerned, at the time of her engagement, of false information about her professional ability

The fact of giving false information about two of the qualifications required by the selection notice is equivalent to furnishing ‘false information as to his professional ability’ within the meaning of Article 50(1) of the CEOS (paragraph 46).

During the selection procedure for temporary staff, an institution is not in a position to know the ‘professional ability’ of candidates by means other than the diplomas and certificates evidencing the level of education required and the statements confirming the professional experience required. In addition, Article 50 of the CEOS is not intended only to enable the institution to impose sanctions on staff who have given false information in particular circumstances during the selection procedure, but also constitutes a mechanism for ensuring the proper general conduct of selection procedures. Consequently, in order to safeguard the effectiveness ofthat article, the notion of ‘furnishing false information as to his professional ability’ must necessarily include the false declaration of having the diploma and/or professional experience required in the selection notice (paragraph 47).

Since the applicant gave false information about two of the qualifications required in the selection notice, she fulfils the first condition for the application of Article 50(1) of the CEOS. The other condition, expressly referred to in Article 50(l)(a) of the CEOS, regarding the deliberate nature of the behaviour of the person concerned, is also fulfilled in this case (paragraphs 51 and 52).

As to the condition that the false information be a determining factor in the engagement of the person concerned

The importance of the conditions referred to in the selection notice which the applicant does not fulfil is such that the false information provided was a determining factor in her being admitted to the selection procedure and, consequently, in her being engaged. As was stated above, during the selection procedure, the institution is not in a position to know the professional ability of candidates by means other than the diplomas and certificates evidencing the level of education required and the statements confirming their professional experience. It necessarily follows that it is on the basis of the information provided by the applicant that she was engaged (paragraph 56).

Therefore, the second condition for the application of Article 50(1) of the CEOS is also fulfilled in this case, since the false information furnished by the applicant was a determining factor in her being engaged (paragraph 61).

It follows from all the foregoing that, since the two conditions required by Article 50(1) of the CEOS are fulfilled, the decision challenged was not adopted in breach of that article (paragraph 62).

As to the alleged infringement of the third subparagraph of Article 5(1) of the Staff Regulations, which states that Category B posts are reserved for duties which require an advanced level of secondary education or equivalent professional experience, it must be noted that that article of the Staff Regulations seeks to provide a general definition, according to the nature of the duties corresponding to the posts, of the minimum level required for the officials in the different grades and does not concern conditions of recruitment, which are governed by the provisions of Article 29 and Annex III to the Staff Regulations. There is nothing to prevent there being fixed in the competition notice conditions in relation to certain posts or certain categories of posts which are more rigorous than those which correspond to the minimum requirements resulting from the classification of posts, whether such conditions are fixed in order to fill a specific vacant post or for the purpose of constituting a reserve list with which to fill posts in a certain category (paragraph 64).

See: 108/88 Jaenicke Cendoya v Commission [1989] ECR 2711, para. 24; T-2/90 Ferreira de Freitas v Commission [1991] ECR II-103, para. 54; T-82/92 Cortes Jimenez and Others v Commission [1994] ECRSC II-237, para. 20

Consequently, the fact that the selection notice requires of candidates 12 years' professional experience since leaving school is not such as to constitute a breach of the third subparagraph of Article 5(1) of the Staff Regulations (paragraph 65).

Second plea: lack of competence of the AECC to verify the conditions governing access to the selection procedure for temporary staff

The object of the pre-litigation procedure is to permit an amicable settlement of the differences which have arisen between officials or servants and the administration. In order that such a procedure may fulfil its purpose, it is necessary for the appointing authority to be in a position to know in sufficient detail the criticisms made by those concerned of the contested decision.

Although the submissions made by an official at the time of the appeal must have the same subject-matter as do those made in the complaint, and although the heads of claim must be based on the same matters as those relied on in the complaint, the submissions and arguments made to the Court in support of those heads of claim need not necessarily appear in the complaint, but must be closely linked to it.

Moreover the pre-litigation procedure is informal in character and those concerned are generally acting at that stage without the assistance of a lawyer. The administration must not interpret the complaints restrictively but, on the contrary, must consider them with an open mind (paragraphs 78 to 82).

See: 58/75 Sergy v Commission [1976] ECR 1139, para. 32; 133/88 Del Amo Martinez v Parliament [1989] ECR 689, paras 10 and 11; T-18/90 Jongen v Commission [1991] ECR II-187, para. 22; T-1/91 Della Pietra v Commission [1992] ECR II-2145, para. 24; T-496/93 Allo v Commission [1995] ECRSC II-405, para. 26

It is not disputed that the memorandum of 28 May 1996, which was lodged by the applicant's lawyer and was treated by the Commission as a complaint in accordance with Article 90(2) of the Staff Regulations, does not raise this plea, either expressly or by implication. The memorandum does not refer, either directly or indirectly, to an alleged lack of competence on the part of the AECC to verify the conditions governing access to the selection procedure. Although the applicant raised the argument in question during the inter-service meeting of 18 July 1996, she has not specified in writing the terms and scope of her argument, so that the Commission cannot know in sufficient detail the criticisms she wishes to make of the contested decision (paragraphs 80 and 83).

In those circumstances the plea must be declared inadmissible (paragraph 84).

Operative part:

The application is dismissed.