JUDGMENT OF THE COURT OF FIRST INSTANCE (First Chamber)

6 March 1997

Joined Cases T-40/96 and T-55/96

Armel de Kerros and Véronique Kohn-Bergé

v

Commission of the European Communities

‛Officials — Recruitment — Admission to internal competitions — Notice of competition — Conditions for admission — Requirement relating to length of service’

Full text in French II-135

Application for:

in Case T-40/96, annulment of the decision of the Selection Board in internal Competition COM/T/B/96 and, in Case T-55/96, annulment of the decision of the Selection Board in internal Competition COM/T/C/96 not to admit the applicants to the tests in those competitions on the ground that they did not meet the condition of completion of a minimum of three years' uninterrupted service with the European Communities as a member of staff subject to the Conditions of Employment of Other Servants of the European Communities.

Decision:

Annulment.

Abstract of the Judgment

The applicant in Case T-40/96 entered the service of the Commission of the European Communities (Commission) on 16 March 1992 as a member of the auxiliary staff in Category B. His initial contract was for a period of six months and was extended twice in succession, up to 15 March 1993. From 16 to 31 March 1993 the applicant continued to perform the same duties, but as a supplementary B member of the local staff. From 1 April 1993 the applicant was engaged as a member of the temporary staff in Grade B 5. That contract was for a period of six months. It was also extended a number of times in succession, for different periods, until 31 March 1996. On 22 August 1995 the Commission published the notice of the internal competition on the basis of tests COM/T/B/96, for members of the temporary staff in Category B who were in service at that time. Point 11(b) of the notice specified that candidates in the competition were required, on 30 September 1995 at the latest, to have at least three years' continuous service with the European Communities as a member of staff subject to the Rules Applicable to Other Agents of the European Communities. The applicant put forward his candidature for that competition. By a note dated 18 December 1995 the applicant was informed of the decision of the Selection Board in the competition not to admit him to the written tests. The Selection Board considered that he did not fulfil the conditions for admission set out in Point 11(b) of the notice of competition.

The applicant in Case T-55/96 was engaged by the Commission as a member of the auxiliary staff in Category C for a period of four months from 16 October 1991. The applicant's contract as a member of the auxiliary staff was extended until 15 October 1992. From 16 to 31 October 1992 the services of the applicant were made available to the Commission by the company Manpower. By letter of 30 October 1992 the Directorate-General for Personnel and Administration (DGIX) offered the applicant a contract as a member of the temporary staff for a period of 12 months. From 1 November 1992 the applicant occupied the same post as a member of the temporary staff, in Grade C 5. Her contract was extended a number of times in succession. On 22 August 1995 the Commission published the notice of internal competition on the basis of tests COM/T/C/96, for members of the temporary staff in Category C in service at that time, with a view to the constitution of a reserve list. Point 11(b) of the notice specified that candidates for the competition were required, at the latest on 30 September 1995, to have at least three years' continuous uninterrupted service with the European Communities as a member of staff subject to the Rules Applicable to Other Agents of the European Communities. The applicant submitted her candidature for the competition. By a note dated 18 December 1995 the applicant was informed of the Selection Board's decision not to admit her to the written tests of the competition, on the ground that, on 30 September 1995, she had less than three years' continuous uninterrupted service with the European Communities as a member of staff subject to the Rules Applicable to Other Agents of the European Communities.

Substance

Plea alleging manifest error of assessment

The condition for admission applied by the Selection Boards expressly required candidates to have three years' uninterrupted service as a member of staff subject to the Rules Applicable to Other Agents of the European Communities. The applicants could not prove that they had three years' uninterrupted service in that capacity, since they had both carried out their duties as members of the local staff for a period of two weeks during those three years; the Selection Boards therefore did not err in their assessment of the facts when they decided that the applicants did not meet the condition at issue (paragraph 27).

The plea alleging infringement of the first subparagraph of Article 27 and Article 29(1) of the Staff Regulations, and the right of members of the temporary staff to participate in internal competitions

A condition in a notice of competition which bars access to internal competitions intended to establish members of the temporary staff of an institution to candidates who do not prove that they have three years' continuous uninterrupted service as a member of staff subject to the Rules Applicable to Other Agents of the European Communities is unlawful on the ground that it is incompatible with the first subparagraph of Article 27 of the Staff Regulations of Officials of the European Communities (the Staff Regulations), which states that the aim of recruitment is to secure for the institution the services of officials of the highest standard of ability, efficiency and integrity, in conjunction with Article 29(1) of the Staff Regulations. The Selection Board's decision based on that condition is therefore also unlawful. That is not altered by the fact that the Commission enjoys a wide discretion in determining the conditions for admission to a competition. The choice which that discretion makes possible must always be made on the basis of the requirements of the post to be filled and, more generally, of the interests of the service. In the light of Article 27 of the Staff Regulations, the sole purpose of limiting the number of persons eligible to participate in each competition cannot, in itself, constitute a legitimate interest of the institution. The condition at issue conflicts with the interests of the service which the institution claims to be pursuing by organizing the so-called internal ‘establishment’ competitions, in so far as it has the effect of excluding certain members of staff with longer periods of service than other members of staff who are admitted to the competition. The fact that certain members of staff who are excluded by the condition at issue may apply for future competitions is not sufficient to render compatible with the Staff Regulations a condition which, not being dictated by the interests of the service, restricts the right of members of the temporary staff to participate in internal competitions (paragraphs 39 to 53).

See: T-56/89 Bataille and Others v Parliament [1990] ECR II-597, paras 41, 42, 47 and 49; T-60/92 Noonan v Commission [1996] ECRSC II-443, para. 43

Operative part:

The decision of the Selection Board in internal Competition COM/T/B/96 not to admit Mr Armel de Kerros to the tests of that competition is annulled.

The decision of the Selection Board in internal Competition COM/T/C/96 not to admit Ms Véronique Kohn-Bergé to the tests ofthat competition is annulled.

The Commission is ordered to pay the costs.