JUDGMENT OF THE COURT OF FIRST INSTANCE (First Chamber)

17 November 1998

Case T-217/96

Lut Fabert-Goossens

v

Commission of the European Communities

‛Temporary staff — Selection procedure — Necessary professional experience — Classification in grade’

Full text in French II-1841

Application for:

annulment of the Commission's decision recruiting the applicant as a member of the temporary staff in the context of selection 50T/XVI/I/93 rather than selection 71T/TFRH/93 and classifying her in Grade A 7 rather than in Grade A 5.

Decision:

Application dismissed.

Abstract of the Judgment

The Commission decision on the criteria applicable to the appointment in grade and classification in step upon the recruitment of officials, published in Administrative Information No 420 of 21 October 1983, was amended on 7 February 1996 in order to comply with the judgment of the Court of First Instance of 5 October 1995 in Case T-17/95 Alexopoulou v Court of First Instance [1995] ECRSC II-683.

Article 5 states that it ‘applies mutatis mutandi to the employment of members of the temporary staff’.

The applicant was employed as a temporary agent in Grade B 3 with effect from 1 September 1989. On 10 August 1994 her contract was extended for an indefinite period.

In September 1993 the Commission published a number of calls for applications for temporary staff in category A. The applicant applied for a number of these selections, including selections 71T/TFRH/93, Grade A 5/A 4 (selection 71 T), and 50T/XVI/93, Grade A 7/A 4 (selection 50 T). By letters of 30 June and 14 July 1994 she was informed that she had been entered on the lists of successful candidates in selections 71 T and 50 T. On 21 November 1995 she informed the Directorate-General for Personnel and Administration (DG IX) that on 5 September 1995 the Directorate-General for Education, Training and Young Persons (DG XXII) had requested that she be employed in the context of selection 71 T. On 24 November 1995 DG IX replied: ‘... DG XXII has proposed that you be employed following the selection at level A 7/A 4, in which you were successful.’ On 21 December 1995 DG IX sent the applicant a contract of employment for a period of three years from 1 January 1996, with classification in Grade A 7, step 3, and posted her to DG XXII. The applicant took up her duties in January 1996. On 18 March 1996 she lodged a complaint against the decision to recruit her in the context of selection 50 T rather than selection 71 T and, in the alternative, against the decision to classify her in Grade A 7. The Commission rejected her complaint on 28 August 1996.

Law

Claim for the annulment of the Commission's decision to recruit the applicant as a member of the temporary staff in the context of selection 50 T rather than selection 71 T

The appointing authority has a very wide discretion in appointing candidates on lists of suitable candidates, in so far as it is under no obligation, once the recruitment procedure has been begun, to proceed to fill the vacant post or to follow the precise order of merit of the successful candidates (paragraph 28).

See: 26/68 Fitx v Commission [1969] ECR 145, para. 11; T-158/94 Brunagel v Parliament [1996] ECRSC II-1131. para. 67; T-237/95 Carbajo Ferrerò v Parliament [1997] ECRSC II-429, para. 77

Those criteria apply a fortiori to the recruitment of members of the temporary staff, since the appointing authority has an even wider discretion in choosing candidates, in so far as it is not required to hold a competition (paragraph 29).

In those circumstances, the fact that the applicant was entered on the lists of suitable candidates in selections 50 T and 71 T did not in any event entitle her to be recruited as a member of the temporary staff (paragraph 30).

If the Commission is free to employ or not to employ candidates on a particular list of suitable candidates, it is clearly free to choose a candidate from one or another of a number of lists. The applicant had no right to be recruited in the context of one selection rather than another (paragraph 31).

In the present case the Commission recruited the applicant in the context of the less favourable selection, in order to post her to the service and entrust her with duties relating to the more favourable selection. Such a ‘reorganisation’ operation is compatible with the Rules applicable to other servants of the European Communities (RAA) and, more generally, with the principle of proper administration, since it reconciles the discretion of the administration with the candidate's preference as regards the posting and duties to be performed (paragraphs 32 and 34).

Alternative claims for the annulment of the Commission's decision to. classify the applicant in Grade A 7 rather than in Grade A 5

Although Article 31 of the Staff Regulations of Officials of the European Communities (Staff Regulations) on the criteria for the classification in grade of officials upon recruitment is not expressly stated in the RAA to be applicable to members of the temporary staff, the guiding criterion - that recruitment must normally be to the basic grade in the category or service - may reasonably be applied to members of the temporary staff, by virtue of the principle of proper administration (paragraph 41).

The appointing authority has a wide discretion in assessing the professional experience of a person recruited as an official, both as regards the nature and length of that experience and as regards the extent to which it meets the requirements of the post to be filled (paragraph 43).

See: T-2/90 Ferreira de Freitas v Commission [1991] ECR II-103, para. 56

Since the Commission properly applied Article 31 of the Staff Regulations and the relevant case-law it did not commit a manifest error from the aspect of evaluating professional experience by taking into consideration, for the purpose of classification in category A, only professional experience acquired in that category (paragraph 45).

See: 343/82 Michael v Commission [1983] ECR 4023, para. 22

Operative part:

The application is dismissed.