ORDER OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Second Chamber)

10 July 2014

Case F‑22/13

Mátyás Tamás Mészáros

v

European Commission

(Civil service — Competitions — Notice of competition EPSO/AD/207/11 — Successful candidate included on the reserve list — Verification by the appointing authority of the conditions for taking part in an AD 7 grade competition — Professional experience of a shorter duration than the minimum duration required — Manifest error of assessment by the selection board — Withdrawal by the appointing authority of the offer of employment — Mandatory duty of the appointing authority)

Application: under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Mr Mészáros seeks annulment of the decision of the appointing authority of the European Commission (‘the appointing authority’) of 26 September 2012, refusing his recruitment by the Statistical Office of the European Union (Eurostat) from the reserve list of competition EPSO/AD/207/11, and informing him of its intention to seek the insertion of a comment, in the database of the European Personnel Selection Office (EPSO), to inform the institutions of the European Union that he did not satisfy the condition as to the minimum duration of professional experience required by that competition to be eligible to be recruited as an administrator (AD) at grade AD 7 on the basis of that competition.

Held: The action is dismissed as manifestly unfounded. The European Commission is to bear its own costs and is ordered to pay the costs incurred by Mr Mészáros.

Summary

1. Officials — Competitions — Selection board — Drawing up of the reserve list — Review of lawfulness by the appointing authority — Finding of a manifest error of assessment — Consequence — Refusal to appoint a successful candidate

(Staff Regulations, Art. 30 and Annex III, Art. 5)

2. Officials — Competitions — Competition based on qualifications and tests — Conditions for admission — Professional experience — Concept — Periods of studies — Not included — Activities pursued in a self-employed capacity or in a liberal profession — Included — Condition

(Staff Regulations, Annex III, Art. 5)

3. Officials — Competitions — Conditions for admission — Establishment by the competition notice — Requirement for a minimum duration of professional experience — Requirement to be interpreted as relating to experience corresponding, in terms of working time, to full-time work

(Staff Regulations, Art. 5(3))

4. Actions brought by officials — Act adversely affecting an official — Definition — Offer of employment — Preparatory act — Not included

(Staff Regulations, Arts 90 and 91)

5. Officials — Competitions — Organisation — Two separate but related competitions for recruitment at different grades — Possibility of reassigning a successful candidate in the higher grade competition to the lower grade competition without having sat the tests for the latter — Not included

(Staff Regulations, Art. 31(1))

1. Even though the appointing authority does not have the power to annul or amend a decision taken by a competition selection board, it is, however, required, in exercising its own powers, to take decisions free of irregularities. It cannot therefore be bound by the decision of a selection board the illegality of which decision is liable to vitiate its own decisions. That is the reason why the appointing authority is required to verify, before appointing a person as an official, whether that person satisfies the conditions required for that purpose. Where the selection board wrongly allows a candidate to take part in a competition and subsequently places him on the reserve list, the appointing authority must express its refusal to appoint that candidate by way of a reasoned decision from which the Union judicature can judge whether the refusal is well-founded.

Consequently, in the context of the review it carries out of the lawfulness of decisions of a selection board, the appointing authority must confine itself to ascertaining that the selection board’s exercise of discretion was not vitiated by a manifest error. Thus, if it considers a candidate’s admission to a competition to be unlawful, the appointing authority must refuse to appoint as a probationary official a person whose name is placed on the reserve list of a competition as a result of a manifest error of assessment; it is not, however, able to request that the selection board amend that list, for that would constitute interference by the administration in the work of a selection board incompatible with the independence of that selection board.

Moreover, an error may be said to be manifest only where it may easily be detected in the light of the criteria to which the legislature intended the exercise by the administration of its broad discretion to be subject. Consequently, in order to establish that a manifest error was made in the assessment of the facts such as to justify the annulment of a decision, it is necessary to demonstrate that the findings made in the decision at issue are implausible. In other words, there cannot be manifest error if the contested assessment may be accepted as true or valid.

(see paras 48-50, 52)

See:

judgments in Schwiering v Court of Auditors, 142/85, EU:C:1986:405, paras 19 and 20; Parliament v Hanning, C‑345/90 P, EU:C:1992:79, para. 22

judgment in Luxem v Commission, T‑306/04, EU:T:2005:326, paras 22 and 24

judgments in Pascual-García v Commission, F‑145/06, EU:F:2008:65, para. 55; Eklund v Commission, F‑57/11, EU:F:2012:145, paras 49 to 51

2. Unless a notice of competition provides otherwise, periods of studies do not constitute periods that may be taken into account as professional experience acquired after the diploma, irrespective of the level of those studies, since studies lead to the acquisition of knowledge and not of skills.

It is true that periods during which a candidate has been studying at the same time as working may be taken into account, but it must be pointed out that, in such a situation, it is the work carried out which counts as professional experience, the studies pursued at the same time, on a marginal and incidental basis, not precluding those professional services being taken into account.

Moreover, as regards activities pursued in a self-employed capacity or in the framework of a liberal profession, a mere reference to publications of an academic nature does not in any way establish actual professional experience. In the case of such non-salaried work, invoices or order forms detailing the work performed or any other relevant official supporting documents may be accepted as evidence.

(see paras 57-59)

See:

judgment in Wolf v Commission, T‑101/96, EU:T:1997:171, para. 71

judgments in Pascual-García v Commission, EU:F:2008:65, para. 66; Eklund v Commission, EU:F:2012:145, para. 54

3. In its assessment of a candidate’s professional experience compared with the minimum duration required by the competition notice as a condition for admission to the competition, a selection board should consider a period of part-time work for an employer only in terms of actual full-time work.

(see para. 64)

See:

judgment in Giulietti v Commission, T‑293/03, EU:T:2006:37, para. 71

order in Klopfer v Commission, F‑118/05, EU:F:2006:137, para. 35

4. An offer of employment addressed to a candidate with a view to his appointment as a probationary official is a preparatory measure, that is, a statement of intent which, depending on the circumstances, may be coupled with requests for information, and it therefore does not create rights.

(see para. 73)

See:

judgment in Eklund v Commission, EU:F:2012:145, para. 66

5. Where two competitions are held in parallel to recruit officials at different grades, the content of the tests organised at the assessment centre of the European Personnel Selection Office (EPSO) necessarily depends on the grade of the competition entered by the candidate, so that it cannot be assumed, without infringing the principle of equal treatment, that a candidate who has passed the tests of a competition for the recruitment of officials of a higher grade would necessarily have passed the tests of another competition for the recruitment of officials of a lower grade. In those circumstances, the reassignment of a candidate from one competition to another can lawfully take place only before the tests corresponding to the competition to which the candidate has been reassigned. The administration does not, therefore, err in law in taking the view that a candidate who has passed the tests of a grade AD 7 competition cannot automatically be reassigned to a grade AD 5 competition, even though that competition corresponds to a lower grade, since such a candidate has not in fact passed the tests specific to the grade AD 5 competition.

(see para. 76)

See:

judgment in Demeneix v Commission, F‑96/12, EU:F:2013:52, para. 64