JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(Second Chamber)

22 May 2008

Case F-145/06

César Pascual García

v

Commission of the European Communities

(Civil service – Open competition – Conditions of eligibility – Required professional experience – Refusal to recruit a candidate on the reserve list – Discretion of selection board and appointing authority)

Application: brought under Articles 236 EC and 152 EA, in which Mr Pascual García, a successful candidate in open competition EPSO/B/23/04 (OJ C 81 A of 31 March 2004, p. 17), seeks, in particular, annulment of the decision of 7 April 2006 of the Director-General of the Joint Research Centre (JRC) of the Commission, at Ispra (Italy), refusing to take his application into consideration for vacancy notice COM/2005/2969 and adding a comment in the reserve list of that competition informing the Commission’s departments that the applicant did not meet the conditions of eligibility for that competition.

Held: The decision of 7 April 2006 of the Director-General of the JRC of the Commission refusing to take Mr Pascual García’s application into consideration for vacancy notice COM/2005/2969 and adding a comment in the reserve list of open competition EPSO/B/23/04 informing the Commission’s departments that the applicant did not meet the conditions of eligibility for that competition is annulled. The Commission is ordered to pay the costs.

Summary

Officials – Competitions – Competition based on qualifications and tests – Conditions of eligibility – Experience

(Staff Regulations, Annex III, Art. 5)

The requirement that a candidate must have professional experience to be admitted to a competition based on qualifications and tests for access to the Community civil service must be interpreted exclusively in the light of the aims of the competition, as set out in the general description of the duties to be performed.

Where it is a question of assessing whether periods of work as part of doctoral studies or postgraduate research relevant to the duties to be performed may be counted as professional experience, an interpretation of the notice of competition on the basis of the specific requirements of national legislation would inevitably lead to differences in treatment in view of the differences between the post-university systems in the various Member States. Such work must be counted as required professional experience if it is real and genuine, excluding research work carried out for study purposes that proves to be such a small component as to be purely marginal and incidental, and if it is remunerated, it being understood that the amount of remuneration, even if it is below the minimum wage, cannot have any consequence as to whether the work is to be treated as professional experience. Neither the sui generis nature of the employment relationship, whether paid or self-employed, under national law, nor the origin or designation of the funds from which the remuneration is paid can determine whether the work is to be treated as requisite professional experience for the purposes of the competition notice.

The fact that the research work might have further developed the candidate’s training and subsequently enabled him to obtain the qualification of doctor does not, as such, prevent it from being classified as professional experience within the meaning of the competition notice.

(see paras 64, 66, 67, 70)

See:

C-456/02 Trojani [2004] ECR I‑7573, para. 16

T-50/89 Sparr v Commission [1990] ECR II‑207, para. 18; T-101/96 Wolf v Commission [1997] ECR-SC I‑A‑351 and II‑949, para. 74; T‑329/03 Ricci v Commission [2005] ECR-SC I‑A‑69 and II‑315, para. 52

JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL (Second Chamber)

22 May 2008 ( )

(Civil service – Open competition – Conditions of eligibility – Required professional experience – Refusal to recruit a candidate on the reserve list – Discretion of selection board and appointing authority)

In Case F‑145/06,

ACTION under Articles 236 EC and 152 EA,

César Pascual García, residing in Madrid (Spain), represented by B. Cortese and C. Cortese, lawyers,

applicant,

v

Commission of the European Communities, represented by J. Currall and M. Velardo, acting as Agents,

defendant,

THE TRIBUNAL (Second Chamber),

composed of S. Van Raepenbusch (Rapporteur), President, I. Boruta and H. Kanninen, Judges,

Registrar: R. Schiano, Administrator,

having regard to the written procedure and further to the hearing on 6 March 2008,

gives the following

Judgment

1 By application received at the Registry of the Civil Service Tribunal on 22 December 2006 by fax (the original was lodged on 2 January 2007) Mr Pascual García, a successful candidate in open competition EPSO/B/23/04 (OJ 2004 C 81 A, p. 17), seeks, inter alia, annulment of the decision of 7 April 2006 of the Director-General of the Joint Research Centre (JRC) of the Commission of the European Communities, at Ispra (Italy), refusing to take his application into consideration for the post referred to in vacancy notice COM/2005/2969 and adding a comment in the reserve list of that competition informing the Commission’s departments that the applicant did not meet the conditions of eligibility for that competition (‘the contested decision’).

Background to the dispute

2 The applicant was awarded a degree in physical sciences in August 1998 and a degree in materials sciences in 2000 by the Autonomous University of Madrid (Spain) (Universidad autónoma de Madrid, ‘the UAM’).

3 From 1 February 2001 to 31 January 2004 he worked at the Pisa Teaching and Research Academy (Italy) (Scuola Normale Superiore, ‘the SNS’) and at the National Institute for the Physics of Matter (Istituto Nazionale per la Fisica della Materia, ‘the INFM’), doing a three-year postgraduate course in condensed matter physics (posto di perfezionamento triennale in fisica della materia condensata, ‘the research doctorate’). During that period he performed research in semi-conductors and nanoscience at the National Enterprise for nanoScience and nanoTechnology, a joint research undertaking set up by the SNS and the INFM (‘the NEST’), while also attending 150 hours of classes.

4 It should be pointed out that, following the introduction of research doctorates in Italy by Decreto del Presidente della Repubblica 11 luglio 1980, n. 382, Riordinamento della docenza universitaria, relativa fascia di formazione nonché sperimentazione organizzativa e didattica (Presidential Decree No 382 of 11 July 1980 on the reform of academic teaching, training and experimentation in organisation and teaching methods, Official Gazette of the Italian Republic No 209 of 31 July 1980), the Legge 18 giugno 1986, n. 308, Equipollenza del Diploma di Perfezionamento della Scuola Normale Superiore di Pisa con il titolo di Dottore di Ricerca (Law No 308 of 18 June 1986, Official Gazette of the Italian Republic No 149 of 30 June 1986) established equivalence between the postgraduate diploma (diploma di perfezionamento) awarded by the SNS and the research doctorate (dottore di ricerca) awarded by the other Italian universities.

5 From 2 February 2004 to 1 February 2005 the applicant continued to work for the SNS, this time under a research collaboration contract (contratto di collaborazione ad attività di ricerca, ‘the research contract’).

Open competition EPSO/B/23/04

6 On 31 March 2004 notice of open competition EPSO/B/23/04 was published for the constitution of a reserve for future recruitment of laboratory technicians (B 5/B 4) in technical and research fields (‘the notice of competition’). The competition covered various fields, in particular that of ‘physics and materials science, mechanics and electronics’, for which the applicant submitted his candidature. The closing date for registration was 30 April 2004.

7 In the ‘physics and materials science, mechanics and electronics’ field the duties were described in Title A, Section I, of the notice of competition as follows:

‘The duties mainly involve:

– using and designing experimental equipment on the basis of instructions, and implementing experimental measures,

– devising and using analytical techniques,

– verifying and validating results,

– implementing quality assurance methods in the fields below.

…

Mainly:

– instrumentation, surveillance systems and measurement and detection systems in the fields of the environment, health, renewable energy and emissions,

– analysis and processing of materials for biomedical technologies,

– designing and implementing experimental equipment,

– equipment and maintenance for hydraulic, high pressure, low pressure and cryogenic systems,

– metrology,

– responsibility for an electronics and electrical engineering laboratory,

– responsibility for and maintenance of electronic equipment,

– data collection and modelling.’

8 Title A, Section II, of the notice of competition detailed the eligibility requirements concerning certificates and diplomas, professional experience and knowledge of languages, which candidates had to meet on the closing date for registration. In particular, regarding the professional experience required, paragraph 2 read as follows:

‘Since obtaining the diploma on completion of the course of advanced secondary education, you must have acquired at least four years [of] full time professional experience, including two years relevant to the duties concerned.

The following will be counted as professional experience, up to a maximum of two years:

– all duly attested specialist work placements or periods of further training preparing for the duties described at A.I,

– additional periods of training, studies or research preparing for the duties described at A.I above, provided that, on completion, you obtained a certificate or diploma at least equivalent to that required for admission to the competition.

If the period of the specialist work placement or further training coincides with a period of professional activity, the selection board will take only the period of professional activity into account.’

9 In Title C, paragraph 3 ‘Full application’ required the application to give full details of citizenship, studies, training, research and professional experience and to enclose supporting documents, on the basis of which it was for the selection board to ascertain whether applicants met the conditions set out in A.II of the notice of competition.

10 By a letter of 30 March 2005 the European Personnel Selection Office (EPSO) informed the applicant that he satisfied all the conditions laid down in the notice of competition. Then, by a letter of 13 October 2005, it told him that his name had been placed on the reserve list which expired on 31 December 2007, though that gave no guarantee that he would be recruited.

Notice of vacancy COM/2005/2969

11 The JRC published notice of vacancy COM/2005/2969 – B*3/B*11 (‘the vacancy notice’). On 21 November 2005 the applicant was invited for an employment interview at the Institute for Health and Consumer Protection at Ispra (‘the IHCP’). The interview was held on 6 December 2005.

12 On 14 December 2005, the applicant was also invited for an employment interview at the JRC’s Institute for Transuranium Elements at Karlsruhe (Germany). The date set for that interview was 17 January 2006.

13 By a letter of 16 December 2005 the head of the JRC’s human resources unit at Ispra informed the applicant that he was to be engaged for the post that was the subject of the vacancy notice, but that his recruitment was still dependent on the results of the medical examination and security checks.

14 Over the following few days a series of telephone calls and an email confirmed the fact that the applicant had been selected for the vacant post. It was also evident from those contacts that if he accepted that post, the applicant would have to decline the invitation to an employment interview from the Institute for Transuranium Elements at Karlsruhe.

15 On 23 January 2006 the applicant attended the medical examination. On the same day he met the science officer from the IHCP, where he was to be employed. He was to start work at the JRC on 1 April 2006.

16 The applicant also submitted to the JRC’s human resources unit all the same documents in his file as had been sent to the EPSO. He subsequently decided to end his employment relationship with the SNS and not to pursue other offers of employment.

17 In an email of 3 March 2006 from the JRC’s human resources unit, the applicant was asked to produce any additional documents relating to his professional experience in order to determine the period of time spent on study and the period spent on research during his research doctorate. The applicant complied with that request.

18 On 20 March 2006, having still not received an official job offer, the applicant sent an email to the IHCP science officer mentioned earlier, who assured him that he would make enquiries with the relevant department.

19 On 21 March 2006, following a telephone call to the JRC’s human resources unit, the applicant received an email from that unit informing him that, following the submission of the additional documents requested, there was still doubt as to whether, on 30 April 2004, he met the conditions required to be allowed to take part in competition EPSO/B/23/04.

20 On 25 March 2006, the applicant forwarded to the JRC a letter from the Director of the NEST testifying to the research work he had carried out during the period from 1 February 2001 to 30 April 2004.

21 By a decision of 7 April 2006, the Director-General of the JRC considered that the applicant’s candidature could not be taken into consideration because he did not meet the conditions for admission to the competition in question. At the same time the Director decided that a comment to that effect would be added to the reserve list from that competition, for the information of the Commission’s departments. The applicant was notified of that decision in a letter of 17 April 2006.

22 On 19 June 2006, the applicant lodged a complaint against the contested decision under Article 90(2) of the Staff Regulations of Officials of the European Communities (‘the Staff Regulations’), claiming that that decision underestimated the duration of his professional experience, which was five years and eight months.

23 The applicant also sent an explanatory document dated 21 April 2006, which the Commission characterised as a supplementary complaint that was out of time and could not, in its view, legitimately supplement the complaint of 19 June 2006.

24 By a decision of 22 September 2006, notified to the applicant on 13 November 2006, the appointing authority rejected the complaint.

25 In the decision rejecting the complaint, the appointing authority counted as professional experience, for the purpose of the notice of competition, the applicant’s years of study between September 1993 and August 1998 in order to obtain his physics degree, in accordance with the second paragraph of A.II.2 of that notice, with a ceiling of two years, and the period of one year and seven months from August 1998 to March 2000, during which the applicant worked for the UAM as an employee. However, it refused to take into consideration other periods of activity of the applicant, in particular:

– 36 months, from 1 February 2001 to 30 January 2004, when the applicant was working with the NEST in connection with his research doctorate at the SNS;

– 3 months, from 2 February to 30 April 2004, the closing date given in the notice of competition for the submission of candidatures, during which the applicant had a research contract with the SNS.

26 Consequently, the appointing authority calculated that the applicant had only three years and seven months’ professional experience and concluded that he did not have the minimum of four years’ experience required by the notice of competition.

Forms of order sought

27 The applicant claims that the Court should:

– annul the contested decision;

– if necessary, annul the decision of the appointing authority of 22 September 2006 rejecting his complaint;

– order the Commission to pay the costs.

28 The Commission contends that the Court should:

– dismiss the action;

– make an appropriate order as to costs.

Decision

29 The applicant bases his action on four pleas. Three of those pleas relate to, first, abuse of process, second, infringement of the legal framework laid down by the notice of competition and manifest error of assessment and failure to state reasons, and third, infringement of the principle of protection of legitimate expectations. The fourth plea, in the alternative, alleges infringement of the principle of equal treatment.

The first two pleas relating to, first, abuse of process, and second, infringement of the legal framework laid down by the notice of competition and manifest error of assessment and failure to state reasons

Arguments of the parties

30 As regards the first plea, the applicant, having pointed out the limits of a judicial review of the proceedings of a selection board in a competition, whereby the Community judicature is able to sanction only manifest errors of assessment, contends that the same limits must apply to the appointing authority’s review of the selection board’s decisions, in particular as regards the conditions for admission to the competition in question.

31 In the present case, the selection board considered, without committing a manifest error of assessment, that the applicant met the conditions for admission to the competition, particularly those relating to the period of professional experience.

32 In the applicant’s submission, the contested decision is vitiated by an abuse of process, in that the appointing authority substituted its assessment of his qualifications and professional experience for that of the selection board, without the selection board having committed any manifest error of assessment.

33 The Commission counters that, although it is true that the selection board in a competition based on qualifications and tests enjoys a wide discretion in assessing the diplomas produced by the candidates and their professional experience, the appointing authority cannot, however, when taking its own decision, be bound by a decision of a selection board that is unlawful (see Case T-306/04 Luxem v Commission [2005] ECR-SC I‑A‑263 and II‑1209, paragraph 23). Thus, no abuse of process was committed by the appointing authority in adopting the contested decision.

34 As regards the second plea, the applicant claims, principally, that the appointing authority infringed the legal framework laid down by the notice of competition concerning the concept of ‘professional experience’, and committed a manifest error of assessment.

35 The applicant argues that the professional experience required of candidates in a competition must, in accordance with the case-law, be interpreted exclusively in the light of the aims of the competition in question, as set out in the general description of the duties to be performed (Case T‑50/89 Sparr v Commission [1990] ECR II‑207, paragraph 18; Case T-101/96 Wolf v Commission [1997] ECR‑SC I‑A‑351 and II‑949, paragraph 74; and Case T‑329/03 Ricci v Commission [2005] ECR-SC I‑A‑69 and II‑315, paragraph 52).

36 In the present case, the aim of the competition was to draw up a reserve pool from which to recruit laboratory technicians in ‘Field 2: Physics and materials science, mechanics and electronics’, to perform the duties described in Title A, Section I, of the notice of competition.

37 The applicant points out that, according to Section II 1 ‘Certificates and diplomas’ of Title A of the notice of competition, ‘you must have successfully completed a course of advanced secondary education and obtained the relevant diploma’. Regarding professional experience, Section II 2 of the same title states that ‘[s]ince obtaining the diploma on completion of the course of advanced secondary education, you must have acquired at least four years [of] full time professional experience, including two years relevant to the duties concerned’. The notice of competition further states, in the second indent of that same point, ‘[t]he following will be counted as professional experience, up to a maximum of two years’: ‘additional periods of training, studies or research preparing for the duties described at A.I [in the present case, duties as laboratory technicians in the field of physics, etc.] provided that, on completion, you obtained a certificate or diploma at least equivalent to that required for admission to the competition’.

38 The second indent of Title A, Section II 2, of the notice of competition does not, however, mention studies, research, further training or specialist activities preparing for duties at a higher level than those of the posts covered by the notice of competition, such as the duties of a university lecturer, a head of a research department or a research team leader, or any studies, research, further training or specialist activities preparing for administrative and advisory duties requiring university education or equivalent professional experience. Such activities must be classified in full as professional experience ‘relevant to the duties concerned’ within the meaning of the notice of competition, provided that they are economic activities as defined by the EC Treaty and the Community case-law on internal market freedoms.

39 In the present case, in his collaboration with the SNS and in particular with the NEST during the period from 1 February 2001 to 30 April 2004, the applicant carried out research activities which involved constant use of the experimental techniques referred to in the notice of competition, thus preparing himself for duties and responsibilities other than those of laboratory technician.

40 The research conducted and the advanced training received by the applicant at the SNS presuppose a command of the experimental techniques referred to in the notice of competition and do not constitute training, study or research ‘preparing’ for the use of those techniques. In the applicant’s view, that is true both of the period when he was pursuing his research doctorate with the SNS and the NEST and of the following period covered by his research contract.

41 Consequently, in classifying the activities in question as an ‘additional period of training, studies or research’ preparing for the duties described in the notice of competition, the appointing authority infringed the legal framework established by the notice of competition and committed a manifest error of assessment.

42 As regards the economic nature of the activities carried out by the applicant, during his research doctorate he was paid an annual sum of around EUR 8 000 (‘contributo didattico’), or EUR 690 per month, in remuneration for the research work; living expenses such as canteen meals and accommodation were paid for separately, subject to itemised checks, by the SNS, and attendance of classes and the use of the experimental facilities were free of charge. The applicant points out that, according to the case-law, neither the sui generis nature of the employment relationship, nor the origin of the funds from which the remuneration is paid or the limited amount of the remuneration can have any consequence in regard to whether or not a person is a worker for the purposes of Community law (see, in particular, Case 53/81 Levin [1982] ECR 1035, paragraph 16, and Case C‑456/02 Trojani [2004] ECR I‑7573, paragraph 16).

43 In addition, the research contract included a research allowance (assegno di ricerca) of EUR 15 493.71 per year, or EUR 1 291.15 per month, equivalent to the usual pay for a university researcher in Italy. There was a correlation between the research carried out and the remuneration paid in return.

44 The applicant adds that Italian legislation, to which Article 2 of the research contract refers, requires social security contributions to be paid for any work carried out in continuous and coordinated collaboration, but without an employment contract, as was the case here. According to that legislation, which applies in particular to doctoral grants, a person with a research contract, just like a doctoral candidate, must be regarded not as a student, but as a self-employed worker who is not subject to his employer’s managerial authority.

45 In the alternative, the applicant claims that, even applying the definitions of the relevant national law, the activity carried out as part of a research doctorate is regarded, under Italian law, as a self-employed, intellectual professional activity.

46 The applicant concludes that the work he provided both as part of his research doctorate and under the research contract must be classified as professional experience within the meaning of the notice of competition.

47 In reply to the applicant’s two principal arguments, the Commission argues that the certificates which he produced confirm that the activities carried out both as part of the research doctorate and under the research contract constitute study and research activities and not professional experience as provided for in the notice of competition. The selection board thus committed a manifest error of assessment when evaluating the applicant’s professional experience for the purpose of admission to the competition in question. In accordance with the judgment in Luxem v Commission (paragraph 23), the appointing authority was required, in the exercise of its own powers, not to follow the selection board’s decision.

48 In particular, none of the certificates produced by the applicant states that he was actually in paid employment during the period between 1 February 2001 and 31 January 2004. Furthermore, the letter of 29 January 2001 from the Director of the SNS, which the applicant produced, uses a particular terminology (‘students’, ‘study grant’, ‘studies’, ‘curriculum’) which is specific to the pursuit of a course of higher education.

49 As regards the nature of the ‘remuneration’ received by the applicant during the periods in question, the Commission considers that it constitutes a study grant, which means that the link between the applicant and the SNS cannot be regarded as an employment relationship.

50 Concerning the research contract in particular, the Commission argues that, according to the very terms of that contract, the relationship of collaboration which it establishes can in no way be characterised as work under a contract of employment. The applicant merely cites clause 2 of the contract, on tax and social security obligations, without mentioning clause 1, which expressly excludes the possibility of an employment relationship being established by the contract.

51 In reply to the applicant’s arguments in the alternative, the Commission contends that the requirements set out in a notice of competition as to the duration and nature of the professional experience necessary are a matter of choice for the appointing authority and, within the framework delineated by that notice, fall within the selection board’s wide discretion. National law is relevant only in so far as the notice of vacancy expressly refers to it, which is not the case here.

52 In any event, even under Italian legislation, doctoral studies cannot be regarded as genuine professional experience, since the stated aim of those studies is to broaden students’ knowledge base through study and research. The letter of 16 June 2006 from the SNS makes it clear that ‘[d]uring this whole period [the applicant] has carried out experimental research work …; [d]uring his first and second year at [SNS], [the applicant] also attended about 150 hours of formal courses and successfully passed the subsequent examinations[; t]his together with his technical and scientific achievements allows him to be entitled to apply for the “Diploma di Perfezionamento” of [SNS]’.

53 Even if it were possible to reason on the basis of national law alone, it would not help the applicant, since Italian legislation does not classify a research doctoral candidate as a self-employed worker. The fact that a research doctoral candidate may be covered by a social security scheme does not prove that the person concerned has actually acquired professional experience by virtue of that university activity, since his duties have principally remained study and research, allowing him to obtain an academic qualification at the end of the three-year research doctorate.

54 Lastly, regarding the research contract, that too covered only research work, but not an employment relationship.

Findings of the Tribunal

55 It is settled case-law that selection boards enjoy, in principle, a discretion when assessing, as a condition for admission to a competition, the previous professional experience of candidates, both as regards the nature and duration thereof and as regards its relevance to the post to be filled (Case T‑214/99 Carrasco Benítez v Commission [2000] ECR-SC I‑A‑257 and II‑1169, paragraph 70; Case T‑145/02 Petrich v Commission [2004] ECR-SC I‑A‑101 and II‑447, paragraph 34; and Ricci v Commission, paragraph 45). In its review of legality the Community judicature must confine itself to ascertaining whether the selection board’s decisions were free from manifest errors (Case 417/85 Maurissen v Court of Auditors [1987] ECR 551, paragraphs 14 and 15; Case T‑115/89 González Holguera v Parliament [1990] ECR II‑831, summary publication, paragraph 54; Wolf v Commission, paragraph 68; Case T‑244/97 Mertens v Commission [1999] ECR-SC I‑A‑23 and II‑91, paragraph 44; Carrasco Benítez v Commission, paragraph 71; Case T-332/01 Pujals Gomis v Commission [2002] ECR‑SC I‑A‑233 and II‑1155, paragraph 41; and Ricci v Commission, paragraph 45).

56 The same principles govern the control exercised by the appointing authority over the selection board’s decisions regarding the conditions for admission to the competition (Ricci v Commission, paragraph 46). Thus the appointing authority is required, in exercising its own powers, not to act in accordance with a decision of the selection board where that decision is vitiated by a manifest error of assessment of the professional experience required. Consequently, where the selection board has wrongly allowed a candidate to take part in a competition and put his name on the list of suitable candidates, the appointing authority must express its refusal to appoint the candidate by way of a reasoned decision from which the Community judicature can judge whether the refusal is well founded (Ricci v Commission, paragraph 35, and Luxem v Commission, paragraph 23).

57 In the present case, therefore, it is for the Tribunal to ascertain, by comparing the requirements of the notice of competition with the particulars that emerge from the supporting documents forwarded by the applicant, whether the selection board committed a manifest error in evaluating his professional experience. That review is, at the same time, designed to assess whether the contested decision, which differs from the selection board’s view, is well founded.

58 It is apparent from Title A, Section II 2, of the notice of competition that, in order to be admitted, candidates must, since obtaining the diploma on completion of a course of advanced secondary education, have acquired at least four years’ full time professional experience, including two years relevant to the duties concerned, in other words those described in Title A, Section I, of the notice.

59 In the present case, the appointing authority calculated that the applicant had three years and seven months’ professional experience, made up of two years of university studies, in accordance with the second paragraph of Title A, Section II 2, of the notice of competition, in respect of the physics studies pursued by the applicant between September 1993 and August 1998, and one year and seven months in respect of his paid employment at the UAM from August 1998 to March 2000.

60 The dispute relates in particular to two other periods of activity completed by the applicant:

– first, the period of activity at the NEST as part of the research doctorate, from 1 February 2001 to 30 January 2004, and

– second, the period covered by the research contract with the SNS, from 2 February to 30 April 2004, the closing date for registration for the competition.

61 Before deciding on the question of whether the periods at issue qualify as professional experience for the purpose of the notice of competition, it must be ascertained whether they may be regarded as ‘specialist work placements or periods of further training’ or as ‘additional periods of training, studies or research’ as provided for in the second paragraph of Title A, Section II 2 of the notice of competition, which may be counted as professional experience only up to a maximum of two years. In the present case the appointing authority has already taken into account, on that basis and as the maximum two years, the years of physics studies completed by the applicant between September 1993 and August 1998.

62 The disputed periods cannot be covered by the second paragraph of Title A, Section II.2, of the notice of competition since, as the applicant rightly observes, they could not, as such, prepare for the duties described in Title A, Section I. It is important to note that the aim of competition ESPO/B/23/04 was to recruit laboratory technicians at grades B 5/B 4 (which became, under Article 12(3) of Annex XIII to the Staff Regulations, B*3, then AST 3). That being so, it cannot be claimed that doctoral studies or postgraduate research ‘prepare’ for duties in the AST 3 function group, which, according to the terms of Annex I to the Staff Regulations, include posts such as ‘junior technician’.

63 It is therefore appropriate to consider whether the applicant’s activities during the disputed periods may, without manifest error, come under the concept of professional experience in the narrow sense, as provided for in the first paragraph of Title A, Section II 2, of the notice of competition. In the Commission’s view, these were not periods of paid employment or self-employment, but were manifestly periods of study; the applicant claims that the periods in question were manifestly periods of self-employment.

64 According to the case-law, the concept of required professional experience must be interpreted exclusively in the light of the aims of the competition, as set out in the general description of the duties to be performed (Ricci v Commission, paragraph 52). An interpretation of the notice of competition on the basis of the specific requirements of national legislation would inevitably lead to differences in treatment between candidates of different nationalities, in view of the differences between the post-university systems in the various Member States (see, by analogy, Sparr v Commission, paragraph 18, and Wolf v Commission, paragraph 74).

65 With regard, firstly, to the period of 36 months completed as part of the research doctorate, the parties agree that, even if the applicant attended 150 hours of courses during that period, as the file shows, he carried out high-level research work for the NEST, as a physics and materials science graduate, in the fields of semi-conductors and nanoscience, work which was indeed relevant to the duties described in Title A, Section I, of the notice of competition.

66 Such work, which, as the Commission admitted at the hearing, was comparable to the work that might be carried out in the JRC, must be counted as required professional experience within the meaning of the notice of competition if:

– it is real and genuine, excluding research work carried out for study purposes that proves to be such a small component as to be purely marginal and incidental, and

– it is remunerated, it being understood that the amount of remuneration, even if it is below the minimum wage, cannot have any consequence as to whether the work is to be treated as professional experience (see, by analogy, as regards the definition of real and genuine activities in the context of the freedom of movement for workers, Trojani, paragraph 16).

67 Neither the sui generis nature of the employment relationship, whether paid or self-employed, under national law, nor the origin or designation of the funds from which the remuneration is paid can determine whether the work is to be treated as requisite professional experience for the purposes of the notice of competition.

68 It is not disputed that the applicant genuinely carried out high-level research work at a joint research undertaking for 36 months, in return for which he received a small, but nonetheless real contribution of some EUR 690 per month, while at the same time having his living expenses paid directly by the SNS.

69 Even allowing for the 150 hours of courses which the applicant attended, the selection board was legitimately able, without committing a manifest error of assessment, to count such a period of activity as at the very least five months’ full-time professional experience, the period which the applicant needed to make up the four years of professional experience required (see by analogy, Case T‑293/03 Giulietti v Commission [2006] ECR‑SC II‑A‑2‑5 and II‑A‑2‑19, paragraph 72).

70 The fact that the research work in question might have further developed the applicant’s training and subsequently enabled him to obtain the qualification of doctor does not, as such, prevent it from being classified as professional experience within the meaning of the notice of competition.

71 Secondly, the same finding applies a fortiori in relation to the three months between February and April 2004 when the applicant had a research contract with the SNS and received a payment of around EUR 1 290 per month.

72 Having regard to the foregoing and in the circumstances of the present case, the appointing authority must be deemed to have been wrong to conclude that the selection board had committed a manifest error of assessment, both under the terms of the notice of competition and in view of the nature of the activities concerned, in taking into consideration, for the purposes of calculating the applicant’s professional experience, the periods of activity which he completed, as part of his research doctorate and under the research contract, between February 2001 and April 2004. Consequently, the contested decision must be annulled, without any need to examine the other two pleas relied on in support of the action.

Costs

73 Under Article 122 of the Rules of Procedure, the provisions of Title 2, Chapter 8, on costs apply only to cases brought before the Tribunal from the date on which those Rules entered into force, that is to say, 1 November 2007. The provisions of the Rules of Procedure of the Court of First Instance continue to apply mutatis mutandis to cases pending before the Tribunal before that date.

74 Under the terms of Article 87(2) of the Rules of Procedure of the Court of First Instance, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. As the Commission has been unsuccessful, it should be ordered to pay all the costs, in accordance with the form of order sought by the applicant.

On those grounds,

THE TRIBUNAL (Second Chamber)

hereby:

1. Annuls the decision of 7 April 2006 of the Director-General of the Joint Research Centre (JRC) of the Commission of the European Communities refusing to take Mr Pascual García’s application into consideration for the post referred to in vacancy notice COM/2005/2969 and adding a comment in the reserve list of open competition EPSO/B/23/04 informing the Commission’s departments that the applicant did not meet the conditions of eligibility for that competition;

2. Orders the Commission of the European Communities to pay the costs.

Van Raepenbusch Boruta Kanninen

Delivered in open court in Luxembourg on 22 May 2008.

W. Hakenberg S. Van Raepenbusch

Registrar President