ORDER OF THE GENERAL COURT (Appeal Chamber)

17 December 2015

Maria Luisa Garcia Minguez

v

European Commission

‛Appeal — Civil service — Recruitment — Commission internal competition open to the institution’s temporary staff — Non-admission to a member of the temporary staff of an executive agency — Article 29(1)(b) of the Staff Regulations — Equal treatment — Appeal manifestly devoid of any basis in law’

Appeal:

against the order of the European Union Civil Service Tribunal (Second Chamber) of 28 April 2015 in Garcia Minguez v Commission (F‑72/14, ECR-SC, EU:F:2015:40), seeking to have that order set aside.

Held:

The appeal is dismissed. Ms Maria Luisa Garcia Minguez is ordered to pay the costs.

Summary

Actions brought by officials — Pleas in law — Plea seeking to classify an executive agency as a department of an institution — Reliance on an organisation chart for the institution concerned — Rejection

Officials — Competitions — Internal competitions — Conditions for admission — Member of the staff of the institution — Members of the temporary staff directly recruited by an executive agency excluded, but not officials seconded as temporary staff within those agencies — Breach of the principle of equal treatment — None

Officials — Competitions — Internal competitions — Conditions for admission — Member of the staff of the institution — Member of the temporary staff directly recruited by an executive agency — Not included

Article 29(1)(b) of the Staff Regulations authorises each institution to organise internal competitions open only to its officials and temporary staff. The expression ‘competition internal to the institution’ in that article concerns all persons in the service of that institution, in whatever capacity. Executive agencies, within the meaning of Article 18(1) of Regulation No 58/2003 laying down the statute for executive agencies to be entrusted with certain tasks in the management of Community programmes, have departments which are separate from those of the Commission. Consequently, those agencies do not form part of the Commission for the purposes of access to internal competitions. In that regard, in so far as the person concerned has been directly recruited by an executive agency as a member of the temporary staff and still has that status when he applies for an internal competition, it is not possible to find that there is an adequate relationship under public law between that staff member and the institution concerned. (see paras 23, 24, 27, 41) See: Judgment of 31 March 1965 in Rauch v Commission, 16/64, ECR, EU:C:1965:29, p. 179, 190 Judgments of 15 November 2001 in Van Huffel v Commission, T‑142/00, ECR-SC, EU:T:2001:268, para. 56; 23 January 2003 in Angioli v Commission, T‑53/00, ECR-SC, EU:T:2003:12, para. 50 and the case-law cited therein, and 13 December 2006 in Heus v Commission, T‑173/05, ECR-SC, EU:T:2006:392, para. 39

The principle of equal treatment requires that comparable situations are not treated differently and that different situations are not treated in the same way unless such treatment is objectively justified. The same is true of the principle of non-discrimination, which is simply a specific expression of the general principle of equal treatment. In that regard, where an institution decides to organise an internal competition in accordance with the Staff Regulations, that competition, one of the objectives of which is to appoint temporary staff of that institution as officials, is, by its very nature, intended only for officials and temporary staff working for that institution, in whatever capacity. Those officials and temporary staff, including those seconded outside the institution, would therefore not be in a comparable legal and factual situation, as regards the possibility of entering such a competition, to that of temporary staff working for an executive agency separate from the institution, who would consequently not be working for that institution. (see paras 30, 31) See: Judgments of 19 October 1977 in Ruckdeschel and Others, 117/76 and 16/77, ECR, EU:C:1977:160, para. 7, and 9 October 2008 in Chetcuti v Commission, C‑16/07 P, ECR, EU:C:2008:549, para. 40 and the case-law cited therein