JUDGMENT OF THE COURT OF FIRST INSTANCE (Fourth Chamber)

5 February 1997

Case T-207/95

Maria de los Angeles Ibarra Gil

v

Commission of the European Communities

‛Officials — Internal competition — Notice of competition — Requirement that candidates be members of the temporary staff on the closing date for receipt of applications — Principle of protection of legitimate expectations — Principle of equal treatment — Duty to have regard for the interests of officials — Action for damages’

Full text in French II-31

Application for:

firstly, annulment of the decision of the Selection Board in Competition COM/T/B/95 of 7 November 1994 not to admit the applicant to the written tests of that competition and of the Commission's decision of 27 July 1995 not to authorize the applicant to take part in an additional internal competition other than Competition COM/T/B/95 and, secondly, for damages in respect of the material and nonmaterial loss suffered by the applicant.

Decision:

Application dismissed.

Abstract of the Judgment

On 12 July 1988 the Commission decided that contracts offered to new members of the temporary staff would be entered into for a minimum period of three years and a maximum period of five years and that, in exceptional circumstances justified by the interests of the service, each contract could be renewed once only, but that such renewal could not result in the total period of employment of the member of the temporary staff exceeding seven years.

On 18 March 1992 the Commission removed the clause providing for exceptional renewal of the contracts of members of the temporary staff. To compensate for this, it decided to organize annual internal competitions, based on written and oral tests, for all members of the temporary staff with at least three years' service, whilst none the less limiting the number of persons to be included on the list of successful candidates.

On 23 February 1994 the Commission abolished the limit on the maximum number of persons to be included on the list of successful candidates in respect of the competitions in progress at that time and of future competitions.

On 1 September 1989 the applicant was engaged by the Commission for a period of three years as a member of the temporary staff in Grade B 5. On 7 April 1992 the Commission extended the applicant's contract until 31 August 1994. In early 1993 and early 1994 the applicant unsuccessfully participated in the written tests of two consecutive internal competitions organized by the Commission for members of the temporary staff. The applicant's contract as a member of the temporaiy staff expired on 31 August 1994. On 1 September 1994 she was engaged by the Commission as a member of the auxiliary staff for a period of one month. In the course of September 1994 the applicant submitted an application for the internal Competition COM/T/B/95. By letter of 7 November 1994 the Chairman of the Selection Board in Competition COM/T/B/95 informed the applicant that the Selection Board was unable to admit her to the written tests of that competition on the ground that she had not been a member of the temporary staff on 30 September 1994.

The claim for annulment

Tfie first plea, alleging breach of the principle of the protection of legitimate expectations

The right to claim protection of legitimate expectations extends to any individual who is in a situation in which it appears that the Community administration, by giving him precise assurances, has led him to entertain reasonable expectations (paragraph 25).

See: T-3/92 Latham v Commission [1994] ECRSCII-83, para. 58; T-534/93 Grynberg and Hall v Commission [1994] ECRSC II-595, para. 51 ; T-235/94 Galtieri v Parliament [1996] ECRSC II-129, para. 63

The Commission's letter of 26 July 1994, produced by the applicant, gave her the precise assurance that, when her contract as a member of the temporary staff expired on 31 August 1994, the Commission would offer her a contract as a member of the auxiliary staff for a period of one month to enable her to be in the service of the Commission at the time when the appointing authority decided whether or not to admit members of the auxiliary staff to Competition COM/T/B/95. The consequence ofthat assurance was that if, in September 1994, the appointing authority had decided to admit members of the auxiliary staff to that competition, the applicant would have been able to participate in it (paragraph 29).

By offering the applicant a contract as a member of the auxiliary staff from 1 to 30 September 1994, the Commission scrupulously complied with the assurances given to her in its letter of 26 July 1994 (paragraph 31).

Furthermore, the fact that the trade unions exerted pressure in order to give unsuccessful candidates another chance cannot change the nature and extent of undertakings effectively given by the appointing authority in its aforementioned letter (paragraph 32).

The second plea, alleging breach of the principle of equal treatment and/or of the rule ‘pátere legem quam ipse f ecisti’

The admissibility of the argument concerning the alleged breach of the principle of equal treatment of members of the temporary staff and members of the auxiliary staff

It is clear from the combined provisions of Articles 44(l)(c) and 48(2) of the Rules of Procedure that the application initiating proceedings must state the subject-matter of the proceedings and a summary of the pleas in law on which the application is based and that no fresh issues may be raised in the course of proceedings unless they are based on matters of law or of fact which come to light in the course of the procedure. However, a plea which may be regarded as amplifying a plea previously put forward, directly or by implication, in the application initiating proceedings, and which is closely connected with that previous plea, must be held to be admissible (paragraph 51).

See: 108/81 Amylum v Council [1982] ECR 3107, para. 25; 306/81 Verms v Parliament [1983] ECR 1755, para. 9; T-37/89 Hanning v Parliament [1990] ECR II-463, para. 38

The argument which the applicant put forward at the hearing, to the effect that the contested acts constitute a breach of the principle of equal treatment of members of the temporary staff and members of the auxiliary staff, was not raised either directly or by implication in the application and is not closely connected with the original plea, which was strictly limited to an alleged breach of the principle of equal treatment of members of the temporary staff. It cannot therefore be regarded as amplifying that plea. Consequently, it must be regarded as a new plea in law within the meaning of Article 48(2) of the Rules of Procedure and be declared inadmissible (paragraphs 52 to 57).

Examination of the substance of the plea

In its decision of 18 March 1992 the Commission undertook to organize internal competitions for members of the temporary staff recruited after July 1988, in accordance with three principles. The internal competitions would be open to members of the temporary staff with three years' service. The internal competitions would be held on an ‘annual’ basis. The Commission wished to enable all members of the temporary staff engaged after July R988 to take part in two internal competitions in the course of their contracts. In this case, the Commission observed those three principles when organizing Competitions COM/T/B/93, COM/T/B/94 and COM/T/B/95 (paragraphs 58 to 64).

Provided that it complies with the provisions of the Staff Regulations and, in particular, the first paragraph of Article 27 and Article 29(1), the appointing authority enjoys a wide discretion in deciding upon the criteria of ability required for the posts that are to be filled and in determining, in the light of those criteria and in the interests of the service, die rules and conditions under which a competition is organized. The choice governed by that wide discretion must, certainly, always be made with reference to the requirements of die posts to be filled and, more generally, the interests of die service (paragraph 66).

See: 90/74 Deboeck v Commission [1975] ECR 1123, para. 29; 39/83 Fabius v Commission [1984] ECR 627, para. 7; T-132/89 Gallone v Council [1990] ECR II-549, para. 27; T-56/89Bataille and Others v Parliament [1990] ECR II-597, paras 42 to 50; T-60/92 Noonan v Commission [1996] ECRSC II-443, para. 43

There is a breach of the principle of equal treatment where two categories of person whose factual and legal circumstances disclose no essential difference are treated differently or where situations which are different are treated in an identical manner (paragraph 68).

See: T-18/89 and T-24/89 Tagaras v Court of Justice [1991] ECR II-53, para. 68

The wide discretion enjoyed by the appointing authority in determining the conditions under which a competition is organized means that the appointing authority can, with reference to the requirements of the posts to be filled and to the interests of the service, set the specific dates on which competitions are held. The mere fact that certain members of the temporary staff engaged by the Commission between July 1988 and March 1992 were able to submit applications in Competitions COM/T/B/93, COM/T/B/94 and COM/T/B/95, whilst others were able to submit applications only in Competitions COM/T/B/93 and COM/T/B/94 does not amount to discrimination prohibited by the principle of equal treatment, but results from the purely fortuitous interaction of different dates, in particular the dates chosen by the appointing authority for holding the three competitions, on the one hand, and the dates on which those members of staff took up their duties and those on which their contracts expired, on the other (paragraph 70).

The third plea, alleging breach of the duty to have regard to the interests of officials

The duty of the administration to have regard to the interests of its officials reflects the balance of the reciprocal rights and obligations established by the Staff Regulations in the relationship between the official authority and the civil servants. A particular consequence of that duty is that when the official authority takes a decision concerning the situation of an official, it should take into consideration all the factors which may affect its decision and that when doing so it should take into account not only the interests of the service but also the interests of the official concerned (paragraph 75).

See: 321/85 Schwiering v Court of Auditors [1986] ECR 3199, para. 18; T-33/89and T-74/89 Blackman v Parliament [1993] ECR II-249, para. 96; T-100/92 La Pietra v Commission [1994] ECRSC II-275, para. 58

However, the duty to have regard to the interests of officials does not in any way oblige the appointing authority to maximize the chances of members of the temporary staff or of the auxiliary staff of becoming established (paragraph 76).

In any event, in this case, the Commission took account of the applicant's interests in a particularly generous manner (paragraph 77).

The plea alleging that the Commission's decisions of 18 March 1992 and 23 February 1994 are unlawful

The applicant's plea that the decisions are unlawful must be dismissed as unfounded. The applicant's main claim and also her alternative claim must also be dismissed as unfounded.

The claim for compensation

The claim for compensation in respect of material and nonmaterial loss must be dismissed since it is closely associated with the claim for annulment which has itself been dismissed, the pleas in support of it being either inadmissible or unfounded (paragraph 88).

See: T-1/91 Della Pietra v Commission [1992] ECR II-2145, para. 34

Operative part:

The application is dismissed as unfounded.