ORDER OF THE CIVIL SERVICE TRIBUNAL (Second Chamber)

27 September 2007

Case F-120/06

Noémi Dálnoky

v

Commission of the European Communities

(Civil service – Open competition – Notice of competition – Admissibility)

Application: brought under Articles 236 EC and 152 EA, in which Mrs Dálnoky seeks, in particular, annulment of the notice of open competition EPSO/AD/47/06, published in the Official Journal of the European Union of 21 June 2006 (OJ 2006 C 145 A, p. 3), in that it requires candidates to have a thorough knowledge of Romanian.

Held: The action is dismissed as manifestly inadmissible. Each party is to bear its own costs.

Summary

1. Officials – Actions – Prior administrative complaint – None – Inadmissibility – Exceptions

(Staff Regulations, Arts 90(2) and 91(2), and Annex III, Art. 1(1))

2. Officials – Actions – Subject-matter – Direction to the administration – Inadmissibility

(Staff Regulations, Art. 91)

1. Under Article 91(2) of the Staff Regulations, an appeal to the Community judicature is admissible only if a complaint against the act adversely affecting the person concerned has previously been submitted to the appointing authority pursuant to Article 90(2) of the Staff Regulations.

Save where the appeal is brought against an act which does not emanate from the appointing authority itself, such as a decision taken by a competition selection board or a staff report, a failure to lodge a prior complaint within the time-limit prescribed renders the appeal manifestly inadmissible.

In that regard, Article 1(1) of Annex III to the Staff Regulations provides that a notice of competition is an act drawn up by the appointing authority. For a notice of competition to be disputed, therefore, a complaint must first be lodged under Article 90(2) of the Staff Regulations.

(see paras 35-37)

See:

317/85 Pomar v Commission [1987] ECR 2467, paras 11 and 13

T-133/89 Burban v Parliament [1990] ECR II‑245, para. 17; T-1/91 Della Pietra v Commission [1992] ECR II‑2145, para. 23; T-208/00 Barleycorn Mongolue and Boixader Rivas v Council and Parliament [2001] ECR-SC I‑A‑103 and II‑479, paras 30 to 32

2. It is not for the Community judicature to issue directions to the administration or to make declaratory rulings in the context of a review of legality under Article 91 of the Staff Regulations.

(see para. 42)

See:

T-94/92 X v Commission [1994] ECR-SC I‑A‑149 and II‑481, para. 33; T‑21/95 and T‑186/95 Mazzocchi-Alemanni v Commission [1996] ECR-SC I‑A‑501 and II‑1377, para. 44; T-187/01 Mellone v Commission [2002] ECR-SC I‑A‑81 and II‑389, para. 16; T-14/03 Di Marzio v Commission [2004] ECR-SC I‑A‑43 and II‑167, para. 63

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

27 September 2007 ( )

(Staff cases – Open competition – Notice of competition – Admissibility)

In Case F‑120/06,

ACTION under Articles 236 EC and 152 EA,

Noémi Dálnoky, residing in Brussels (Belgium), represented by P. Horváth, lawyer,

applicant,

v

Commission of the European Communities, represented by J. Currall and H. Kraemer, acting as Agents,

defendant,

THE TRIBUNAL (Second Chamber),

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

Registrar: W. Hakenberg,

makes the following

Order

1 By application lodged at the Tribunal Registry on 26 October 2006, Ms Dálnoky applied, inter alia, for annulment of the notice of Open Competition EPSO/AD/47/06, published in the Official Journal of the European Union of 21 June 2006 (OJ 2006 C 145 A, p. 3; ‘the notice of competition’), in so far as it required candidates to have a thorough knowledge of Romanian.

Legal Framework

2 Article 6 EU provides:

‘1. The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States.

2. The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law.

…’

3 Article 12 EC provides:

‘Within the scope of application of this Treaty, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited.

The Council, acting in accordance with the procedure referred to in Article 251, may adopt rules designed to prohibit such discrimination.’

4 The purpose of Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (OJ 2000 L 180, p. 22) is to lay down a framework for combating discrimination on the grounds of racial or ethnic origin, with a view to putting into effect in the Member States the principle of equal treatment.

5 Under Article 8 of Regulation (EEC) No 1 of the Council of 15 April 1958 determining the languages to be used by the European Economic Community (OJ, English Special Edition 1952-1958 (I), p. 59), most recently amended by Council Regulation (EC) No 920/2005 of 13 June 2005 (OJ 2005 L 156, p. 3):

‘If a Member State has more than one official language, the language to be used shall, at the request of such State, be governed by the general rules of its law.’

6 The first subparagraph of Article 1d(1) of the Staff Regulations of Officials of the European Communities (hereinafter ‘the Staff Regulations’) provides:

‘In the application of these Staff Regulations, any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age, or sexual orientation shall be prohibited.’

7 Under Article 28(f) of the Staff Regulations, an official may be appointed only on condition that he produces evidence of a thorough knowledge of one of the languages of the Communities and of a satisfactory knowledge of another language of the Communities to the extent necessary for the performance of his duties.

8 The second subparagraph of Article 1(1) in Annex III to the Staff Regulations provides, under (f), that notice of competitions drawn up by the appointing authority must specify, where applicable, the knowledge of languages required in view of the special nature of the posts to be filled.

Facts at the origin of the dispute

9 The applicant, a Romanian national, belongs to the Hungarian‑speaking minority in Romania.

10 She submitted her application to participate in Open Competition EPSO/AD/47/06 organised by the European Personnel Selection Office (EPSO) to constitute a reserve pool from which to recruit administrators with Romanian citizenship.

11 With regard to the conditions for admission to the competition, Section A.II.3(a) of the notice of competition, relating to the main language, provides that the candidates must have a thorough knowledge of Romanian.

12 Section C.1(c) of the notice of competition provides that the candidates must draft a brief note in the main language, a test ‘designed to assess … command of [the] main language as regards both the quality of [the] writing style and presentation’. That test is to be marked out of 10, with a pass mark of 8.

13 Section C.2 of the notice of competition provides that only the candidates with the highest marks for all the written tests combined and the pass mark in each will be admitted to the oral test.

14 Following the publication of the notice of competition, the applicant, on 2 July 2006, sent EPSO an e‑mail in which she criticised that notice, in that it required a thorough knowledge of the Romanian language. She contended that that was discriminatory against Romanian nationals of Hungarian mother tongue and requested, accordingly, that it be changed so that ‘a thorough knowledge of one Community language’ would be required. She also stated that she had submitted a complaint to that effect to the European Ombudsman.

15 By e‑mail of 4 July 2006, EPSO declined to comply with her request.

16 By e‑mail of the same day, the applicant set out her arguments that the notice of competition was unlawful.

17 By e‑mail of 5 July 2006, EPSO reaffirmed and made clear its position, whilst drawing the applicant’s attention to the review and appeal procedures set out in the notice of competition.

Procedure and forms of order sought by the parties

18 The applicant claims that the Tribunal should:

– annul the notice of open competition;

– order the Commission of the European Communities not to publish in future any notice of competition, and not to organise any competition requiring knowledge of just one specified Community language, but to publish and organise competitions requiring knowledge of one of the Community languages, unless a particular language is required in view of the specific nature of the posts to be filled;

– if Open Competition EPSO/AD/47/06 was partially or fully conducted before its annulment by the Tribunal, order the Commission to eliminate any disadvantage suffered by the applicant or other persons due to the discriminatory condition applied in the competition, including the provision of another opportunity to apply for the posts that were to be filled by Competition EPSO/AD/47/06 for any citizens who might have been deterred from applying by the abovementioned discriminatory provision;

– order the Commission to pay the costs.

19 The Commission contends that the Tribunal should:

– dismiss the action;

– make an appropriate order as to costs.

20 By a separate document lodged at the Tribunal Registry on 26 October 2006 the applicant made an application for interim measures seeking suspension of the conduct of the tests in the competition pending judgment on the substance of the action. That application was registered at the Tribunal Registry under number F‑120/06 R.

21 By order of 14 December 2006 the President of the Tribunal dismissed the application for interim measures on the grounds, first, that the action in the main proceedings appeared, at first sight, to be manifestly inadmissible, and second, that, in any event, the requirement of urgency had not been met. The costs were reserved.

Law

22 Article 111 of the Rules of Procedure of the Court of First Instance of the European Communities, applicable mutatis mutandis to the Civil Service Tribunal by virtue of Article 3(4) of Council Decision 2004/752/EC, Euratom of 2 November 2004 establishing the European Union Civil Service Tribunal (OJ 2004 L 333, p.7) until the entry into force of the Rules of Procedure of the Tribunal, provides that, where it is clear that the Court of First Instance has no jurisdiction to take cognisance of an action or where that action is manifestly inadmissible or manifestly lacking any foundation in law, the Tribunal may, by reasoned order, without taking further steps in the proceedings, give a decision on the action.

23 In the present case, the Tribunal considers that it has sufficient information from the documents before it and decides, pursuant to Article 111, to give judgment without taking further steps in the proceedings.

The first head of claim

Arguments of the parties

24 The applicant maintains that the notice of competition infringes a number of provisions of Community law, by requiring that candidates have a thorough knowledge of Romanian.

25 In her first plea in law, she submits that the notice of competition, by favouring, unjustifiably, Romanian citizens of Romanian mother tongue compared with those of Hungarian mother tongue, infringes Article 6 EU, which provides that the Union is founded on the principle of respect for human rights and fundamental freedoms, as laid down by the European Convention for the Protection of Human Rights and Fundamental Freedoms and the general principles of Community law.

26 In addition, the right to be protected from discrimination is a universal right laid down in several international instruments, such as the Universal Declaration of Human Rights, international agreements signed under the aegis of the United Nations, and the International Convention for the Elimination of all Forms of Racial Discrimination.

27 The applicant infers from the above that the requirement laid down in the notice of competition of a thorough knowledge of Romanian is contrary to the principle of non-discrimination on grounds of ethnic origin, which is a principle of Community law, and thus adversely affects her fundamental right to work and to fair and satisfactory working conditions.

28 She claims, moreover, that the notice of competition infringes the first subparagraph of Article 1d(1) of the Staff Regulations which prohibits any discrimination based on, among other things, ethnic origin, language, or membership of a national minority. The applicant also claims that the notice of competition is discriminatory for the purposes of Directive 2000/43 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin. In her view, her ethnic origin and identity are primarily determined by the fact that her mother tongue is Hungarian. Consequently, the applicant is a victim of both direct discrimination, in that she is treated less favourably than candidates of Romanian mother tongue, and of indirect discrimination, since the requirement of a thorough knowledge of Romanian places those belonging to a particular ethnic group in a disadvantageous situation in that it requires them to have a command of an additional foreign language in comparison to candidates of Romanian mother tongue.

29 In her second plea in law, she submits that the notice of competition, by not allowing Romanian nationals to prove a thorough knowledge of an official language of the European Union other than Romanian, infringes Article 12 EC which prohibits any discrimination on grounds of nationality. According to the applicant, the provisions of a number of notices of competition published in the past have permitted the nationals of certain Member States to prove a thorough knowledge of an official language of the European Union other than the main language of the Member State of which they were nationals. Opportunities granted to a particular group of EU citizens cannot be denied another group of EU citizens on the ground of the nationality of the latter.

30 In her third plea, the applicant submits that the notice of competition, by requiring a thorough knowledge of Romanian, infringes, first, Article 28(f) of the Staff Regulations which requires an official to have a thorough knowledge of one of the languages of the Communities ‘to the extent necessary for the performance of his duties’ and, second, the second subparagraph of Article 1(1) in Annex III to the Staff Regulations, (f), which refers to ‘the knowledge of languages required in view of the special nature of the posts to be filled’. According to the applicant, the description of the duties as set forth in the notice of competition makes no reference to any particularity of the posts to be filled which would justify the requirement of a thorough knowledge of Romanian.

31 The Commission challenges the admissibility of the action. First, the action was brought outside the period prescribed by the Staff Regulations and, second, it was not brought against an act adversely affecting the applicant.

32 According to the Commission, the action should have been brought within the period of three months prescribed by Articles 90 and 91 of the Staff Regulations, with an extension thereto of 10 days on account of distance, under Article 102(2) of the Rules of Procedure of the Court of First Instance. Since the starting point of the period of three months was the publication of the notice of competition in the Official Journal of the European Union, that is 21 June 2006, the action, lodged on 26 October 2006, was brought outside the period prescribed by the Staff Regulations. The Commission argues that, even if the exchange of e‑mails between the applicant and EPSO were regarded as a complaint and a rejection of that complaint, the action was in all events brought outside that period.

33 The Commission further submits that the notice of competition did not adversely affect the applicant, since it did not exclude her from the competition.

34 Finally, the Commission submits, in the alternative, that the action is unfounded in any case.

Findings of the Tribunal

35 Under Article 91(2) of the Staff Regulations, an appeal to the Community judicature is to lie only if the appointing authority has previously had a complaint submitted to it pursuant to Article 90(2) of the Staff Regulations against an act adversely affecting the person concerned.

36 It should be pointed out in that regard that, according to settled case‑law, except in cases where an action is brought against an act which does not emanate from the appointing authority itself, such as a decision of a selection board (Case T‑133/89 Burban v Parliament [1990] ECR II‑245, paragraph 17) or a staff report (Case T‑1/91 Della Pietra v Commission [1992] ECR II‑2145, paragraph 23), the failure to lodge a prior complaint within the period prescribed renders the application manifestly inadmissible (order of the Court in Case 317/85 Pomar v Commission [1987] ECR 2467, paragraphs 11 and 13).

37 Article 1(1) of Annex III to the Staff Regulations provides that a notice of competition is an act drawn up by the appointing authority. Thus, the challenging of a notice of competition must be preceded by a complaint lodged in accordance with Article 90(2) of the Staff Regulations (see, to that effect, the order in Case T‑208/00 Barleycorn Mongolue and Boixader Rivas v Council and Parliament [2001] ECR‑SC I‑A‑103 and II‑479, paragraphs 30 to 32).

38 Under Article 91(3) of the Staff Regulations, an action before the Tribunal must be brought within three months of the date of notification of the decision taken in response to the complaint. According to Article 102(2) of the Rules of Procedure of the Court of First Instance, that time‑limit is to be extended on account of distance by a single period of 10 days.

39 In the present case it must be found that, even if the e‑mail sent by the applicant to EPSO on 2 July 2006 could be regarded as a complaint seeking to challenge the notice of competition and the response given on 4 July 2006 as an explicit decision of rejection thereof, the main action, brought on 26 October 2006, was brought after the expiry of the time-limit for doing so, namely 16 October 2006.

40 It is thus necessary to find that the head of claim seeking annulment of the notice of competition is manifestly inadmissible without there being any need to determine whether that notice constitutes an act adversely affecting the applicant within the meaning of Article 90(2) of the Staff Regulations.

The second and third heads of claim

41 In addition to the annulment of the notice of competition, the applicant requests the Tribunal to order the Commission, first, not to publish in future any notice of competition requiring a thorough knowledge of just one specified Community language, but requiring a thorough knowledge of any of the Community languages, unless a particular language is called for in view of the specific nature of the posts to be filled and, second, to eliminate any disadvantage suffered by the applicant or other persons due to the discriminatory provision requiring all candidates of Romanian nationality to have a thorough knowledge of Romanian, including the provision of another opportunity to apply for all Romanian nationals who might have been deterred from applying due to the abovementioned discriminatory provision.

42 It must, first, be considered that, since they are related to the application for annulment of the notice of competition, those heads of claim are also manifestly inadmissible. Second, it must be added in any event that, according to settled case‑law, it is not for the Community judicature to issue directions to the administration or to make declarations of law in the context of a review of legality based on Article 91 of the Staff Regulations (Case T‑94/92 X v Commission [1994] ECR‑SC I‑A‑149 and II‑481, paragraph 33; Joined Cases T‑21/95 and T‑186/95 Mazzocchi‑Alemanni v Commission [1996] ECR‑SC I‑A‑501 and II‑1377, paragraph 44; Case T‑187/01 Mellone v Commission [2002] ECR‑SC I‑A‑81 and II‑389, paragraph 16; and Case T‑14/03 Di Marzio v Commission [2004] ECR‑SC I‑A‑43 and II‑167, paragraph 63).

43 It follows from all of the foregoing that the application must be dismissed as manifestly inadmissible.

Costs

44 As the Tribunal held in Case F‑16/05 Falcione v Commission [2006] ECR‑SC I‑A-0000, paragraphs 77 to 86, as long as the Rules of Procedure of the Tribunal and, in particular, the specific provisions relating to costs have not entered into force, in the interest of the proper administration of justice and in order to ensure that the rules relating to the costs in the case are sufficiently predictable for the litigants, only the Rules of Procedure of the Court of First Instance are to be applied.

45 Under Article 87(2) of those Rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Nevertheless, Article 88 of those Rules provides that, in proceedings between the Communities and their servants, the institutions are to bear their own costs. Since the applicant has been unsuccessful, it must be ordered that each party is to bear its own costs.

On those grounds,

THE TRIBUNAL (Second Chamber)

hereby orders:

1. The action is dismissed as manifestly inadmissible.

2. The parties shall bear their own costs.

Luxembourg, 27 September 2007.

W. Hakenberg S. Van Raepenbusch

Registrar President