CELEX: 62017TJ0055
Language: en
Date: 2018-09-12 00:00:00
Title: Judgment of the General Court (Ninth Chamber) of 12 September 2018.#John Morrison Healy v European Commission.#Civil service — Contract staff — Recruitment — Internal competition — Constitution of a reserve list for the recruitment of assistants — Eligibility condition relating to length of service within the Commission — Non-admission to the assessment tests in a competition.#Case T-55/17.

JUDGMENT OF THE GENERAL COURT (Ninth Chamber)
   12 September 2018 (
         *1
      )
   (Civil service — Contract staff — Recruitment — Internal competition — Constitution of a reserve list for the recruitment of assistants — Eligibility condition relating to length of service within the Commission — Non-admission to the assessment tests in a competition)
   In Case T‑55/17,
   
      John Morrison Healy, contract agent at the European Commission, residing in Celbridge (Ireland), represented by S. Orlandi and T. Martin, lawyers,
   applicant,
   v
   
      European Commission, represented by G. Berscheid and L. Radu Bouyon, acting as Agents,
   defendant,
   ACTION under Article 270 TFEU seeking annulment of the decision of the selection board for internal competition COM/02/AST/16 (AST 2) rejecting the applicant’s candidature,
   THE GENERAL COURT (Ninth Chamber),
   composed of S. Gervasoni, President, K. Kowalik-Bańczyk and C. Mac Eochaidh (Rapporteur), Judges,
   Registrar: M. Marescaux, Administrator,
   having regard to the written procedure and further to the hearing on 18 January 2018,
   delivers the following
   
      Judgment
   
   
      Background of the dispute
   
   
            1
         
         
            On 16 January 2013, the applicant, John Morrison Healy, began working for the European Commission as a contract agent in Function Group III (FG III), grade 11, step 1.
         
      
            2
         
         
            On 9 February 2016, the Commission published a notice of internal competitions based on tests to constitute a reserve list from which to recruit secretaries/clerks in grade 2 (AST/SC 2), assistants in grade 2 (AST 2) and administrators in grade 6 (AD 6) (‘the competition notice’). The reference numbers for those three competitions were, respectively, as follows: COM/01/AST-SC/16 (AST/SC 2) — Secretaries/Clerks, COM/02/AST/16 (AST 2) — Assistants, and COM/03/AD/16 (AD 6) — Administrators.
         
      
            3
         
         
            In section III, ‘Eligibility’, Article 2.1(a) of the competition notice stated inter alia the following as regards candidates’ administrative status:
            ‘[You must] have served for at least 42 months, which do not have to be consecutive, as an official or member of the temporary or contract staff in the Commission; periods of employment spent in Agencies or other Institutions are not taken into account; periods of employment spent in the Commission as interimaire, auxiliary or local staff or seconded national expert (SNE) are not taken into account either’.
         
      
            4
         
         
            In the same section, Article 2.3 of the competition notice provided as follows in relation to the diploma or professional experience required:
            ‘[You must have] a level of post-secondary education attested by a diploma, or a level of secondary education attested by a diploma giving access to post-secondary education, and appropriate professional experience of at least three years, or vocational training or professional experience of an equivalent level.’
         
      
            5
         
         
            Under Article 2 of the competition notice, candidates had to fulfil all the eligibility conditions.
         
      
            6
         
         
            On an unknown date, the applicant applied for internal competition COM/02/AST/16 (AST 2).
         
      
            7
         
         
            On 9 March 2016, that is to say, the deadline for registering for the competition, the applicant provided evidence of 38 months of service in the Commission as a contract agent in Function Group III.
         
      
            8
         
         
            On 11 April 2016, the selection board of the internal competition COM/02/AST/16 (AST 2) informed the applicant of its decision to reject his candidature (‘the contested decision’), because he did not fulfil the condition laid down in the competition notice requiring a minimum of 42 months of service within the Commission (‘the condition at issue’).
         
      
            9
         
         
            On 11 July 2016, the applicant lodged a complaint against the contested decision.
         
      
            10
         
         
            By a decision of 19 October 2016, served on the applicant on the same date, the appointing authority dismissed his complaint.
         
      
      Procedure and forms of order sought by the parties
   
   
            11
         
         
            By application lodged at the Registry of the General Court on 30 January 2017, the applicant brought the present action.
         
      
            12
         
         
            In response to an enquiry from the Registry of the General Court, the applicant declared, by letter of 23 February 2017, that he was in favour of this case being joined with Cases T‑73/17, RS v Commission, and T‑79/17, Schoonjans v Commission, for the purposes of the oral part of the procedure.
         
      
            13
         
         
            On 3 April 2017, the Commission lodged its defence.
         
      
            14
         
         
            By letter of 18 May 2017, the applicant waived his right to lodge a reply.
         
      
            15
         
         
            By letter of 30 May 2017, the applicant requested that a hearing be held.
         
      
            16
         
         
            By decision of 14 November 2017, the President of the Ninth Chamber of the Court ordered that this case should not be joined with Cases T‑73/17, RS v Commission, and T‑79/17, Schoonjans v Commission.
         
      
            17
         
         
            At the hearing on 18 January 2018, the parties presented oral argument and replied to the questions put to them by the Court.
         
      
            18
         
         
            The applicant claims that the General Court should:
            
                     –
                  
                  
                     annul the contested decision;
                  
               
                     –
                  
                  
                     order the Commission to pay the costs.
                  
               
      
            19
         
         
            The Commission claims that the General Court should:
            
                     –
                  
                  
                     dismiss the action;
                  
               
                     –
                  
                  
                     order the applicant to pay the costs.
                  
               
      
      Law
   
   
      
         Arguments of the parties
      
   
   
            20
         
         
            In support of the action, the applicant relies on a single plea in law, essentially raising a plea of illegality, alleging that the condition at issue, on which the contested decision is based, infringes the mandatory provisions of the first paragraph of Article 27 of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’). He claims that, in requiring candidates to have 42 months of service, the appointing authority disproportionately limited access to internal competition COM/02/AST/16 (AST 2).
         
      
            21
         
         
            According to the applicant, Article 27 of the Staff Regulations requires, on the contrary, the appointing authority to conduct recruitment procedures on as broad a basis as possible, and that any limitation on the number of people entitled to participate in an internal competition must be justified by requirements relating to the positions to be filled and, more generally, by the interests of the service.
         
      
            22
         
         
            The requirement of having 42 months of service within the Commission is not, he claims, justified by the interests of the service. Nor, moreover, does the Commission pursue that objective systematically in so far as, under Title III, ‘Eligibility’, of the competition notice, point 2.3 states that candidates must have professional experience of at least three years.
         
      
            23
         
         
            Furthermore, according to the applicant, 42 months of service cannot automatically be regarded as more appropriate than 36 months of service within the Commission. That condition, considered in isolation, is not sufficient to allow the appointing authority to assess an agent’s professional experience and his or her suitability to perform the functions of the position to be filled, since it does not take into account other circumstances, such as a renewal of an earlier contract, that could show such experience and suitability.
         
      
            24
         
         
            In any event, by providing that contract staff in Function Groups II to IV can take part in internal competitions only if they have completed three years of service within the institution, Article 82(7) of the Conditions of Employment of Other Servants of the European Union (‘the CEOS’), underpinning the condition at issue, is based on the assumption that contract staff who have served for periods shorter than that can never be identified as potential candidates able to offer the higher standard of ability for the positions to be filled by means of internal competitions.
         
      
            25
         
         
            By requiring candidates to prove 42 months of service, the competition notice, the applicant contends, therefore adversely affected the appointing authority’s ability to make the best choice from a sufficiently wide circle of candidates, in breach of the first paragraph of Article 27 of the Staff Regulations. Relying in particular on the judgment of 31 March 1965, Rauch v Commission (16/64, EU:C:1965:29), the applicant asserts that this requirement is all the more unlawful in so far as, previously, the expression ‘competition internal to the institution’ concerned, in principle, all persons in the service of the institution, in whatever capacity.
         
      
            26
         
         
            The Commission disputes the applicant’s arguments.
         
      
      
         Findings of the Court
      
   
   
            27
         
         
            Under the first paragraph of Article 27 of the Staff Regulations, ‘recruitment shall be directed to securing for the institution the services of officials of the highest standard of ability, efficiency and integrity, recruited on the broadest possible geographical basis from among nationals of Member States of the European Union. No posts shall be reserved for nationals of any specific Member State’.
         
      
            28
         
         
            In the first place, it is necessary to call to mind the principles laid down by the case-law on the conditions and procedure for holding a competition.
         
      
            29
         
         
            First, the essential role of a notice of competition is to give those interested the most accurate information possible as to the conditions of eligibility for the post to be filled, in order to enable them to decide whether they should apply for it (see judgment of 31 January 2006, Giulietti v Commission, T‑293/03, EU:T:2006:37, paragraph 63 and the case-law cited).
         
      
            30
         
         
            Secondly, when holding competitions, the institution has a wide discretion in deciding upon the criteria of ability required for the posts to be filled and in specifying, on the basis of those criteria and in the interests of the service, the conditions and procedure for organising a competition (see, to that effect, judgments of 9 October 2008, Chetcuti v Commission, C‑16/07 P, EU:C:2008:549, paragraphs 76 and 77 and the case-law cited; of 31 January 2006, Giulietti v Commission, T‑293/03, EU:T:2006:37, paragraph 63 and the case-law cited; and of 13 December 2006, Heus v Commission, T‑173/05, EU:T:2006:392, paragraph 36 and the case-law cited).
         
      
            31
         
         
            However, the exercise of the discretion enjoyed by the institutions with respect to the holding of competitions, in particular as regards setting the conditions for admission, must be compatible with the mandatory provisions of the first paragraph of Article 27, and of Article 29(1) of the Staff Regulations. The terms in which the first paragraph of Article 27 of the Staff Regulations defines the aim of any recruitment and in which Article 29(1) of the Staff Regulations lays down the framework of the procedures to be followed to fill vacant posts are mandatory. That power must therefore always be exercised in the light of the requirements of the positions to be filled and, more generally, by the interests of the service (see judgment of 13 December 2006, Heus v Commission, T‑173/05, EU:T:2006:392, paragraph 37 and the case-law cited; see, also, to that effect, judgment of 17 November 2009, Di Prospero v Commission, F‑99/08, EU:F:2009:153, paragraphs 28 and 29 and the case-law cited).
         
      
            32
         
         
            Specifically as regards conditions limiting the registration of candidates for a competition, although such conditions are indeed liable to restrict the ability of the institutions to recruit the best candidates for the purposes of the first paragraph of Article 27 of the Staff Regulations, it does not follow that any condition containing such a restriction is contrary to that provision. The administration’s discretion in the organisation of competitions, and more generally in the interests of the service, allows the institution to impose the conditions which it considers to be appropriate and which, while restricting access of candidates to a competition, and thus, necessarily the number of candidates registered, does not, however, entail the risk of compromising the objective of ensuring the registration of candidates of the highest standard of ability, efficiency and integrity within the meaning of the first paragraph of Article 27 of the Staff Regulations (see, to that effect, judgment of 17 November 2009, Di Prospero v Commission, F‑99/08, EU:F:2009:153, paragraph 30).
         
      
            33
         
         
            Accordingly, it is only conditions limiting access of candidates to a competition that entail a risk of compromising the objective of ensuring the registration of candidates of the highest standard that are held to be contrary to the first paragraph of Article 27 of the Staff Regulations (see, to that effect, judgments of 6 March 1997, de Kerros and Kohn-Bergé v Commission, T‑40/96 and T‑55/96, EU:T:1997:28, paragraph 40, and of 17 November 2009, Di Prospero v Commission, F‑99/08, EU:F:2009:153, paragraph 32).
         
      
            34
         
         
            Thirdly, in view of the institutions’ wide discretion in this field, review by the General Court of whether the institution has complied with the condition relating to the interests of the service must be confined to the question of whether the institution remained within reasonable and proper bounds and did not manifestly misuse its discretion (see, to that effect, judgment of 19 June 2015, Z v Court of Justice, T‑88/13 P, EU:T:2015:393, paragraph 106).
         
      
            35
         
         
            In the second place, it is necessary to determine the scope of the first sentence of Article 82(7) of the CEOS.
         
      
            36
         
         
            The first sentence of Article 82(7) of the CEOS provides that contract staff in Function Groups II to IV can take part in internal competitions only if they have completed three years of service within the institution.
         
      
            37
         
         
            First and contrary to the applicant’s assertions, in the first sentence of Article 82(7) of the CEOS the EU legislature chose to limit the institutions’ discretion by setting a threshold of three years of service below which contract agents in Function Groups II to IV cannot take part in internal competitions, irrespective of their professional ability and merits. That limitation flows from the fact that, in the light of the third subparagraph of Article 29(1) of the Staff Regulations, internal competitions open to those contract agents are held only exceptionally. That interpretation is moreover supported by reading the travaux préparatoires of Regulation (EU, Euratom) No 1023/2013 of the European Parliament and of the Council of 22 October 2013 amending the Staff Regulations of Officials of the European Union and the Conditions of Employment of Other Servants of the European Union (OJ 2013 L 287, p. 15). The Committee on Legal Affairs of the European Parliament explained that contract staff could be admitted to such competitions only ‘provided they have worked … for at least three years for the institution concerned at the closing date for applications for the competition’ (amendment 30 in the Report on the proposal for a regulation of the European Parliament and of the Council amending the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Union (COM(2011)0890 — C7-0507/2011 — 2011/0455(COD)), p. 26).
         
      
            38
         
         
            Secondly, before that legislative reform, the case-law had already allowed requirements of length of service of 3 years (judgments of 6 March 1997, de Kerros and Kohn-Bergé v Commission, T‑40/96 and T‑55/96, EU:T:1997:28, paragraph 47, and of 17 November 2009, Di Prospero v Commission, F‑99/08, EU:F:2009:153, paragraph 31), of 5 years (judgment of 13 December 2006, Heus v Commission, T‑173/05, EU:T:2006:392, paragraphs 38, 40 and 42) and of 10 years (judgment of 21 November 2000,Carrasco Benítez v Commission, T‑214/99, EU:T:2000:272, paragraphs 56 and 61), in so far as, in those cases, the institution at issue had exercised its wide discretion in accordance with the condition relating to the interests of the service.
         
      
            39
         
         
            Thirdly, it has already been held that requiring a particular number of years of service was an appropriate means of ensuring that officials have the qualities established in the first paragraph of Article 27 of the Staff Regulations and, therefore, of safeguarding the interests of the service. Having a particular period of service, and therefore meaningful experience within the EU institutions is in fact a ‘clear indication’ of the qualities referred to (see, to that effect, judgment of 13 December 2006, Heus v Commission, T‑173/05, EU:T:2006:392, paragraph 40 and the case-law cited).
         
      
            40
         
         
            Such a service requirement ensures that the persons admitted to the internal competition have been subject to the regime applicable to the administrative staff of the institutions, in particular the rules relating to staff reports and discipline, for a particular period and that they have demonstrated their abilities in that context. The recruitment procedure therefore secures for the institution the services of officials who have the highest standard of ability, efficiency and integrity, as assessed by the institutions themselves (see, to that effect, judgment of 13 December 2006, Heus v Commission, T‑173/05, EU:T:2006:392, paragraph 41).
         
      
            41
         
         
            It follows that, as the Commission argues, an institution that decides, exceptionally, to hold an internal competition open to contract staff in Function Groups II to IV must comply with the threshold of three years of service under the first sentence of Article 82(7) of the CEOS. That institution is nevertheless free, in view of its wide discretion and provided it complies with the mandatory provisions of the first paragraph of Article 27, and of Article 29(1) of the Staff Regulations, to fix conditions for certain posts or function groups that are more rigorous, requiring in particular that applicants have a longer period of service than the minimum provided for under the first sentence of Article 82(7) of the CEOS (see, to that effect, by analogy, judgment of 13 July 1989, Jaenicke Cendoya v Commission, 108/88, EU:C:1989:325, paragraph 24).
         
      
            42
         
         
            That finding, which involves excluding contract staff who do not satisfy the service requirements defined by the institution at issue, cannot be weakened, contrary to what the applicant claims, by the fact that, previously, the expression ‘competition internal to the institution’ concerned, in principle, all persons in the service of that institution, in whatever capacity.
         
      
            43
         
         
            Indeed, the obligation to admit everyone in the service of an institution to a competition internal to it would undermine the wide discretion afforded to it (see, to that effect, judgments of 9 October 2008, Chetcuti v Commission, C‑16/07 P, EU:C:2008:549, paragraphs 70 to 76, and of 24 September 2009, Brown v Commission, F‑37/05, EU:F:2009:121, paragraph 68) and the contract staff and officials of that institution cannot, therefore, have an absolute right to take part in a competition internal to it (see, to that effect, judgments of 6 March 1997, de Kerros and Kohn-Bergé v Commission, T‑40/96 and T‑55/96, EU:T:1997:28, paragraph 39, and of 8 November 2006, Chetcuti v Commission, T‑357/04, EU:T:2006:339, paragraph 42).
         
      
            44
         
         
            In the present case, it must be held that the condition at issue, which requires candidates in internal competitions to have served for 42 months, not necessarily consecutively, does fulfil the condition relating to the interests of the service.
         
      
            45
         
         
            It is, indeed, apparent from the case-law cited in paragraphs 38 to 40 above that the requirement to have a particular number of years of service is a ‘clear indication’ that the candidates in internal competitions have the qualities required under the first paragraph of Article 27 of the Staff Regulations.
         
      
            46
         
         
            On that point, the competition notice therefore explicitly states that the interests of the service require that the recruitment of temporary agents as officials should secure for the Commission the services of officials of the highest standard of ability, efficiency and integrity and that, in that sense, only candidates with proven experience in a given function group become immediately operational officials.
         
      
            47
         
         
            As the Commission indicated in its defence, the organisation of the internal competitions referred to in the competition notice accordingly presents the interests of the service as a dual objective, that is to say, both that of regularising the situation of a number of temporary and contract agents by making them permanent and that of recruiting staff who are not only highly skilled but immediately operational.
         
      
            48
         
         
            It should also be noted that, in response to a written question from the Court, the Commission provided the minutes of the social dialogue meeting of 11 December 2015 on the internal competitions open to contract staff. Those show that the Commission had initially planned to require four years of service. The reason for that condition was that ‘requiring [four] years of professional experience in the institutions gave a degree of assurance about the professional ability of the agents to whom the measure related since those agents had had their contracts renewed’. However, having regard to the observations of a number of trade unions that proposed that the period of service should be three years, the Commission ultimately fixed the period under the condition at issue at three and a half years (page 4 of the minutes).
         
      
            49
         
         
            From the outset, therefore, the Commission intended candidates to have a minimum period of service, initially four years and ultimately three and a half, since that period gives a degree of assurance of their professional ability. That being so, the Commission did not manifestly misuse its discretion in requiring as a service condition in the competition notice a period of service only six months longer than the minimum period under the first sentence of Article 82(7) of the CEOS.
         
      
            50
         
         
            Moreover, the applicant’s argument that the condition at issue is incompatible with the principle of proportionality is likewise untenable.
         
      
            51
         
         
            According to the settled case-law of the Court of Justice, the principle of proportionality requires that acts of the EU institutions be appropriate for attaining the legitimate objectives pursued by the legislation at issue and do not go beyond what is necessary in order to achieve those objectives (judgment of 8 April 2014, Digital Rights Ireland and Others, C‑293/12 and C‑594/12, EU:C:2014:238, paragraph 46 and the case-law cited). In addition, in view of the appointing authority’s wide discretion in deciding upon the criteria of abilities required for the posts to be filled and in specifying, on the basis of those criteria and, more generally, in the interests of the service, the conditions and procedure for organising a competition (judgment of 5 February 1997, Petit-Laurent v Commission, T‑211/95, EU:T:1997:13, paragraph 54), the legality of the competition notice can be affected only if the condition at issue is manifestly inappropriate having regard to the objectives pursued (see, to that effect, judgment of 8 June 2010, Vodafone and Others, C‑58/08, EU:C:2010:321, paragraph 52). Lastly, it should be noted that, as is apparent from the first paragraph of Article 27 of the Staff Regulations, the purpose of any competition organised within the European Union is to secure for the institution, as for any body, the services of officials of the highest standard of ability, efficiency and integrity (judgment of 14 April 2011, Clarke and Others v OHIM, F‑82/08, EU:F:2011:45, paragraph 181).
         
      
            52
         
         
            In that respect, first, it is apparent from the considerations set out in paragraphs 44 to 49 above that the requirement of having 42 months of service is an appropriate means of achieving the dual objective pursued, that is to say, both to regularise the situation of a number of temporary and contract agents by making them permanent and to recruit staff who are not only highly skilled but immediately operational.
         
      
            53
         
         
            Secondly, the condition at issue does not go beyond what is appropriate and necessary in order to achieve that dual objective. On the one hand, by requiring candidates to have 42 months of service, the condition exceeds by only 6 months the minimum period under the first sentence of Article 82(7) of the CEOS. As stated in paragraph 38 above, the General Court has already upheld length of service conditions of much longer than 42 months, wherever, as in the present case, the institution in question had exercised its wide discretion in a manner compatible with the interests of the service. On the other hand, as the Commission stated in response to a written question from the General Court, 84% of the 615 candidates registered in internal competition COM/02/AST/16 (AST 2) were eligible.
         
      
            54
         
         
            That last finding is ultimately sufficient to refute the applicant’s argument that the condition at issue did not enable the appointing authority to conduct the recruitment procedure on as broad a basis as possible. It emerges in fact from the figures provided by the Commission that 519 candidates were able to take part in the internal competition in question.
         
      
            55
         
         
            In the light of those elements, it should be considered that, in establishing the condition at issue, the Commission did not use its discretion in a manifestly erroneous manner and that, accordingly, it did not infringe the mandatory provisions of the first paragraph of Article 27 of the Staff Regulations.
         
      
            56
         
         
            The plea of illegality and, accordingly, the action, must therefore be dismissed.
         
      
      Costs
   
   
            57
         
         
            Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. In the present case, as the applicant has been unsuccessful, he must be ordered to pay the costs, in accordance with the form of order sought by the Commission.
         
       
         
            On those grounds,
            THE GENERAL COURT (Ninth Chamber)
            hereby:
         
       
         
            
                     
                        1.
                     
                  
                  
                     
                        Dismisses the action;
                     
                  
               
       
         
            
                     
                        2.
                     
                  
                  
                     
                        Orders John Morrison Healy to pay the costs.
                     
                  
               
       
            
               
                  
                     
                        Gervasoni
                     
                     
                        Kowalik-Bańczyk
                     
                     
                        Mac Eochaidh
                     
                  
                  Delivered in open court in Luxembourg on 12 September 2018.
                  [Signatures]
               
            
         (
         *1
      )	Language of the case: French.