JUDGMENT OF THE COURT OF FIRST INSTANCE (Fourth Chamber)

12 November 1998

Case T-294/97

Manuel Tomás Carrasco Benítez

v

Commission of the European Communities

‛Officials — Internal competition for establishment reserved for members of the temporary staff in category A — Candidature of an official in Grade B 5 — Illegality of the notice of competition’

Full text in French II-1819

Application for:

annulment of the decision of the selection board for competition COM/T/A/97 not to admit the applicant to the tests in the competition held to draw up a reserve list of assistant administrators, administrators and principal administrators.

Decision:

Annulment.

Abstract of the Judgment

The applicant, an official of the Commission in Grade B 5, was a candidate in internal competition based on tests COM/T/A/97, for serving members of the temporary staff, for the purpose of constituting a reserve of administrators and principal administrators whose career brackets were in grades 8, 7, 6, 5 and 4 respectively of category A. In order to be eligible for the competition a candidate was required to show that:

(a) he was a member of the temporary staff of the Commission in Grade A 8, A 7, A 6, A 5 or A 4 on 30 September 1996;.

(b) by no later than and including 30 September 1996 he had completed at least three years of continuous service with the European Communities as a member of the temporary staff.

By letter of 14 April 1997 the applicant was informed of the selection board's decision not to admit him to the written tests on the ground that he was not a member of the temporary staff on 30 September 1996.

On 15 July 1997 the applicant lodged a complaint; this complaint was rejected on 14 November 1997.

Substance

The same considerations which led the Community judicature to consider that members of the temporary staff are in principle entitled to participate in internal competitions held by their institutions are equally relevant to the participation of officials. Neither the second paragraph of Article 4 of the Staff Regulations of Officials of the European Communities (Staff Regulations), which provides that vacant posts are to be notified to the ‘staff’ of the institution concerned, nor Article 29(l)(b) of the Staff Regulations, which refers to competitions ‘internal to the institution’, differentiates between the various categories of staff. Furthermore, the expression ‘competitions internal to the institution’, taken literally, applies to all persons employed by the institution, in whatever capacity, and that interpretation is confirmed by the aim ascribed to the recruitment procedure by Article 27 of the Staff Regulations, namely to secure for the institution the services of officials of the highest standard of ability, efficiency and integrity, which implies the need to recruit officials on the broadest possible basis (paragraphs 35 to 39).

See: 16/64 Rauch v Commission [1965] ECR 135; T-56/89 Bataille and Others v Parliament [1990] ECR II-597, para. 48; T-40/97 and T-55/96 de Kerros and-Kohn Berge v Commission [1997] ECRSC II-135, paras 40 and 41

The officials of an institution must in principle be allowed to participate in a competition internal to that institution and a condition which limits participation in such a competition to members of the temporary staff currently employed by the institution is not compatible with the abovementioned provisions of the Staff Regulations (paragraph 40).

It is appropriate to examine, however, whether the exclusion of officials from participating in the competition in question falls within the exercise of the wide discretion which the Staff Regulations confer on the institutions as regards the organisation of competitions. This discretion falls to be exercised when the institution decides, in accordance with Articles 4 and 29 of the Staff Regulations, to fill vacant posts by holding an internal competition. The same applies to competitions held to constitute a reserve for recruitment (paragraph 41).

See: Bataille and Others v Parliament, cited above, para. 42; T-60/92 Noonan v Commission [1996] ECR II-215, para. 43; de Kerros and Kohn-Bergé v Commission, cited above, para. 39

That discretion is exercised, in particular, where the appointing authority, acting in accordance with Article 1 of Annex III to the Staff Regulations, draws up the notice of competition and specifies the various requirements provided for in that provision, including the conditions for admission to the competition (paragraph 42).

See: de Kerros and Kohn-Bergév Commission, cited above, para. 39

The exercise of that discretion, in particular as regards the determination of the conditions of admission, must be compatible with the mandatory requirements of the first paragraph of Article 27 and Article 29(1) of the Staff Regulations. The choice to be made in the exercise of that power must always be governed by the requirements of the post to be filled and, more generally, the interests of the service (paragraph 43).

See: Noonan v Commission, cited above, para. 43; de Kerros and Kohn-Bergé v Commission, cited above, paras 40 and 42

In that regard, the interests of the service cannot justify a decision by an institution to reserve access to a competition stated to be for the purpose of ‘establishment’ to category A temporary staff on the grounds that it is appropriate not to reduce the opportunities for those persons to be established and that they are more likely to have the necessary abilities to perform the duties in question. The interests of the service are not to be confused with the interests of a category of staff identified beforehand by the institution as the only category to which the notice of competition is addressed; and since every recruitment procedure must lead to the appointment of officials of the highest standard of ability, efficiency and integrity, any desire to retain persons who have shown their ability to occupy the posts to be filled cannot justify excluding officials, since there is no indication that the latter do not have abilities equal to, or indeed greater than, those of the temporary staff concerned.

Operative part:

The decisions of the selection board for internal competition COM/T/A/97 of 14 April and 12 May 1997 refusing to admit Mr Manuel Tomás Carrasco Benítez to the tests in that competition are annulled.