JUDGMENT OF THE COURT OF FIRST INSTANCE (Fifth Chamber)

16 September 1997

Case T-220/95

Christophe Giménez

ZAKEN

Committee of the Regions of the European Union

‛Officials — Economic and Social Committee — Committee of the Regions — Common organizational structure — Internal competition — Selection board decision not to admit a candidate to an internal competition — Action for annulment’

Full text in French II-775

Application for:

annulment of the decision by the selection board of internal competition CdR-A/03/95 of 27 November 1995 not to admit the applicant to that competition.

Decision:

Annulment.

Abstract of the Judgment

Protocol No 16 annexed to the Treaty on European Union provides that the Economic and Social Committee (‘the ESC’) and the Committee of the Regions (‘the CoR’) are to have a common organizational structure (‘the COS’).

By a notice to the staff of the ESC and the CoR of 6 December 1994, the Secretaries General of the two committees communicated the following information:

‘The European Parliament is expected to vote the definitive budget of the CoR, the ESC and the common services on 16 December next. Consequently, as from 1 January 1995, the common structure envisaged by Protocol No 16 to the Maastricht Treaty will exist [...] Management of the staff of the common structure, including rights and obligations, is assigned by the two authorities, with the relevant services, to the personnel directorate of the ESC, in principle until 1 May 1995. That directorate will also supply personnel services to the CoR, at the latter's request, until it has its own personnel service. The responsibilities of the appointing authority of the common structure will be carried out by the respective authorities of the two institutions, each in respect of the staff belonging to it. [...] The offices of the CoR and the ESC will shortly define, by agreement, the detailed organizational and management arrangements in the new organization chart of the common structure.’

As from 31 December 1994, Section VI of the Community Budget, headed ‘Economic and Social Committee and Committee of the Regions’ was in three parts: Part A relating to the ESC with its establishment plan; Part B relating to the CoR with its establishment plan; and Part C relating to the COS with its establishment plan.

On the basis of those establishment plans, the ESC and the CoR drew up organization plans. However, only organization plans of the COS which did not specify names were signed by the appointing authorities of the ESC and the CoR; neither of the respective Secretaries General signed an organization plan of the COS showing, in relation to each post, the name of the official or other servant occupying it, accompanied by the initials ‘CA’ or ‘CB’, according to whether the person concerned was from the ESC or the CoR.

On 24 May 1995, the President of the CoR adopted Decision No 039/95, the sole article of which read as follows:

‘ 1. The staff of the CoR shall comprise all officials and servants in parts B and C of the detailed organization plans appointed or employed by the relevant appointing authority of the Committee of the Regions.

2. However, all staff in the latter category shall be provisionally regarded as forming an integral part of the CoR under the terms of participation in internal competitions of the institution.’

That decision was rescinded in March 1997.

On 30 October 1995, a notice to staff signed by Mr H. Müllers, Director of the CoR's Directorate for Administration, Personnel, Finance and Litigation, drew the attention of CoR and COS staff members to the notice of Internal Competition CdR-A/03/95 (‘the competition notice’) organized by the Secretariat-General of the CoR with a view to constituting a reserve for the future recruitment of administrators and assistant administrators in Grades A 8 to A 6.

That competition notice was worded as follows:

‘European Union

Committee of the Regions

Notice of Internal Competition CdR-A/03/95

The Secretariat-General of the Committee of the Regions of the European Union is organizing an internal competition, based on qualifications and tests, for the constitution of a reserve for future recruitment of:

Administrators/Assistant administrators

I. Career bracket

[...]

VII. [...]’

The applicant, Mr Christophe Giménez, entered the service of the ESC on 3 March 1993 and was assigned to the Directorate for Personnel, Administration and Finance. According to information supplied by him, he was initially, until the entry into force of the Treaty on European Union, given the task of preparing for the CoR to begin operation, and subsequently, since the entry into force of the Treaty on European Union, assigned to the COS. Under those postings, he was entrusted in particular with the following development tasks: preparation of the rules of procedure of the CoR; establishment of the COS and of the code of conduct governing the exercise of the powers of the appointing authority within the COS; exercise of budgetary authorization powers within the COS; decisions on the delegation of authorization powers within the COS adopted jointly or separately by the CoR and ESC authorities; internal directives on the interpretation of the provisions of the Staff Regulations of officials of the European Communities, adopted by the CoR and ESC authorities; auditing of several COS departments as part of the rationalization of administrative expenses.

His payslips show that, from 1 May until 31 December 1995, his salary was charged against the COS budget.

On 16 November 1995, he lodged his candidature for Competition CdR-A/03/95.

On 27 November 1995, the chairman of the selection board informed him of the board's decision (‘the decision of 27 November 1995’) not to admit him to the competition on the ground that he did not fulfil the conditions at the head of the competition notice, inasmuch as he did not form part of the COS of the CoR and the ESC.

By application lodged at the Registry of the Court of First Instance on 4 December 1995, the applicant brought the present action. By a separate document lodged the same day, he also brought an interim application for suspension of the competition procedure or the resulting appointment procedures and requested under Article 105(2) of the Rules of Procedure that his interim application be ruled upon as a matter of urgency.

By order of the President of the Court of First Instance of 21 December 1995, Union Syndicale Bruxelles and the ESC were given leave to intervene in the interim procedure in support of the applicant, and the application for interim measures was dismissed.

Admissibility

It is first necessary to identify the subject-matter of the action and the various pleas and complaints.

The action is admissible in so far as it seeks the annulment of the decision of 27 November 1995 (paragraph 34).

Concerning the admissibility of the pleas alleging that the competition notice and the decision designating the members of the selection board were unlawful, the Court of Justice has confirmed that an applicant challenging a measure adversely affecting him that was adopted at a certain stage in a recruitment procedure may contest the legality of earlier steps in that procedure if they are closely linked to the contested measure (paragraph 35).

See: C-448/93 P Commission v Noonan [1995] ECR I-2321, paras 17 to 19

As regards the plea alleging illegality of the competition notice, the complaints that the notice infringed Protocol No 16, the principle of equal treatment, Article 27 of the Staff Regulations, the general principles of the public service and Article l(l)(a) of Annex III to the Staff Regulations must be regarded as closely linked and therefore admissible (paragraph 36).

It follows that the plea alleging illegality of the competition notice is admissible to the extent specified above, without there being any need to rule on the admissibility of the other complaints raised in support of that plea or on the admissibility of the plea alleging that the decision designating the members of the selection board was unlawful (paragraph 37).

Substance

The various pleas in law, grounds of complaint and arguments fall into two parts. The applicant is effectively arguing that the decision of 27 November 1995 must be annulled either because the competition in question could not be reserved solely for staff of the CoR and the COS to the exclusion of ESC staff or because, in any event, he should be regarded as forming part of the COS (paragraph 67).

The plea alleging illegality of the decision of 27 November 1995 on the basis that access to the competition could not be reserved for CoR and COS staffatone

Protocol No 16 annexed to the Treaty on European Union, which provides that ‘the Economic and Social Committee and the Committee of the Regions shall have a common organizational structure’, is intended to allow the CoR to be set up at a lower economic, financial, political and institutional cost by encouraging (in particular) synergy and economies of scale (paragraphs 69 and 71).

Even if Protocol No 16 and Article 198a of the Treaty do not require the COS to be regarded as embracing the whole of the staff of the CoR and the ESC, neither do they exclude that interpretation. In those circumstances, where the forms of cooperation between Community institutions have not been specified by the treaties, it is for the institutions concerned to organize such cooperation. By the same token, the principle of the autonomy of the institutions, given practical expression in particular by their power to determine their own self-organization, requires them to define in common the detailed rales for their cooperation where competences are shared (paragraph 72).

See: 244/81 Klöckner-Werke v Commission [1983] ECR 1451, para. 11

For the purposes of an internal competition and in compliance with the principle of legal certainty, the COS must be regarded, in the absence of any agreement between the CoR and the ESC as to its content, nature, organization and functioning, as comprising the whole of the staff working for those institutions, so that a competition reserved for personnel of the CoR and the COS alone is unlawful (paragraphs 73 to 82).

The pleas in law alleging illegality of the competition notice and infringement of Protocol No 16 are therefore well founded (paragraph 83).

By excluding officials and other servants of the ESC who carried out tasks for the COS and even for the CoR from participation in the competition, the CoR adopted as a prior criterion for admission to the competition the mere fact, devoid of any legal significance under the Staff Regulations or the Treaty, of supposed membership of a body of indeterminate content, the COS, such fact being unconnected with the possession of any qualification or experience. That criterion gives rise to a differentiation in treatment within a single category of staff that is not objectively justified and therefore infringes the principle of nondiscrimination (paragraph 86).

It follows that the pleas in law alleging infringement of the first paragraph of Article 27 of the Staff Regulations and the principle of equal treatment are also well founded (paragraph 87).

Moreover, the competition notice infringes the rules of the Staff Regulations concerning competitions (paragraph 88).

Where an appointing authority decides to open a competition procedure, that procedure must take place in accordance with Annex III to the Staff Regulations. Article l(l)(a) ofthat annex provides that the competition notice must specify ‘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)’ (paragraph 89).

Whilst the institutions have a wide discretion in choosing the most appropriate means for meeting their personnel requirements, they must nevertheless follow one of the legal procedures which are laid down limitatively in the Staff Regulations or the Conditions of Employment of Other Servants (paragraph 90).

See: 341/85, 251/86, 258/86, 259/86, 262/86, 266/86, 222/87 and 232/87 van der Stijl and Ciillington v Commission [1989] ECR 511, para. 11

The appointing authority was therefore obliged to choose between a competition internal to the CoR and a competition internal to the institutions. The provisions of the Staff Regulations use precise terminology, which cannot be extended by analogy to cases not expressly envisaged. In this case, it appears from the competition notice, combined with the decision of the President of the CoR of 24 May 1995, that the competition in question was open to officials and other servants of the CoR and of the COS, which is composed of staff belonging both to the CoR and the ESC. Since it was open to the staff of the CoR, but only to part of the staff of the other committee, namely that part of the ESC's staff assigned to the COS, the competition did not fall within the types limitatively provided for in Article l(l)(a) of Annex III to the Staff Regulations. It therefore infringed that provision.

See: T-15/95 do Paço Quesado v Commission [1996] ECRSC II-171, para. 29

It follows that the plea in law alleging infringement of the provisions of Annex III to the Staff Regulations concerning the competition procedure is also well founded (paragraph 92).

The plea alleging illegality of the decision of 27 November 1995 on the basis that the applicant should be regarded as forming part of the COS

It is necessary to examine the applicant's argument that, even if admission to the competition in question could have been reserved for officials and other servants of the CoR and the COS alone, the selection board of the competition committed a manifest error of assessment and infringed the principle of equal treatment in holding that he did not form part of the COS (paragraph 93).

The charging of the remuneration of an official or other servant to Part A, B or C of the new Section VI of the Budget is subject to a number of rules, and in particular to Articles 19(1) and 20(3) and (4) of the Financial Regulation of 21 December 1977, as amended by Regulation No 1923/94, from which it follows, inter alia, that the position of an official or other servant under the Staff Regulations and his membership of one of the three bodies CoR, ESC or COS must correspond to a post on the establishment plan of that body. To allow the CoR and/or the ESC to assign an official or other servant to one or other of their own respective structures, while at the same time charging his remuneration against the establishment plan of the COS, would moreover adversely affect the ability of the budgetary authority to determine the orientation of the COS by deciding, for example, to concentrate funds mainly within the COS rather than the individual and specific structures of the two consultative bodies (paragraph 119).

The selection board committed a manifest error of assessment by deciding that the applicant could not be admitted to the competition in question. Not only did it base its decision on vague, imprecise and irrelevant criteria, but it also failed to take account of specific and easily verifiable signs, such as the applicant's application form, the nature of his duties and the charging of his remuneration to the COS budget. In so doing, it also infringed the principle of equal treatment by excluding the applicant from participation in the competition without any objective reason even though, by reason of his working for the COS and being remunerated from its budget, he was in a situation identical to that of other candidates assigned to the COS and admitted to participate in the competition in question (paragraph 121).

It follows that the pleas in law alleging a manifest error of assessment and infringement of the principle of equal treatment are also well founded (paragraph 122).

Operative part:

The decision of the selection board of Internal Competition CdR-A/03/95 refusing to admit the applicant to participate in that competition is annulled.