JUDGMENT OF THE COURT OF FIRST INSTANCE (Fifth Chamber)

28 October 2004

Joined Cases T-219/02 and T-337/02

Olga Lutz Herrera

v

Commission of the European Communities

(Officials – Open competition – Non-admission to test – Notice of competition – Age limit)

Full text in Spanish II - 0000

Application:         for annulment of the decisions of the selection board in competition COM/A/6/01 of 31 July 2001 and of the selection board in competition COM/A/10/01 of 20 December 2001 refusing to admit the applicant to those tests on the ground that she exceeded the age limit and, in the alternative, applications for annulment of the rejection of the administrative complaints lodged by the applicant against the decisions of the selection boards in competitions COM/A/6/01 and COM/A/10/01.

Held:         The applications are dismissed. Each party is to bear its own costs.

Summary

1.      Officials – Actions – Action brought against decision to refuse admission taken by a competition selection board – Whether unlawfulness of the competition notice may be relied upon to challenge refusal of admission – Conditions

(Staff Regulations, Art. 91)

2.     Officials – Recruitment – Recruitment procedure – Discretion of the administration – Review by the Court – Limits

3.     Officials – Competition – Organisation – Conditions for admission and arrangements – Discretion of the appointing authority – Setting of an age limit – Whether permissible

(Staff Regulations, Arts 27, first para., and 29(1); Annex III, Art. 1(1)(g))

4.     Community law – Fundamental rights – Charter of Fundamental Rights of the European Union – Scope

5.     Officials – Recruitment – General principle of non-discrimination – Setting of an age limit – Whether permissible with regard to the legitimate objectives pursued

(Council Directive 2000/78)

6.     Officials – Competition – Refusal of admission to a competition – Not possible for the person concerned to rely on the conditions of admission to other competitions

1.     A candidate in a competition may, in support of an action brought against a decision of a competition selection board refusing to allow him to participate in the competition, rely on pleas based on the alleged unlawfulness of the competition notice which was not challenged in time, where there is a close link between the pleas in question and the grounds of the decision challenged.

(see paras 45, 47)

See: T-60/92 Noonan v Commission [1993] ECR II-911, upheld by C‑448/93 P Commission v Noonan [1995] ECR I-2321

2.     The scope of the Court’s review of decisions adopted in a recruitment procedure is limited, in view of the discretion vested in the appointing authority, to consideration of the propriety of the procedures used by the administration, checking the material exactitude of the facts relied on by the administration in adopting its decision and, finally, the absence of an manifest error of appraisal, error of law or misuse of powers that might vitiate the administrative decision.

(see para. 59)

See: T-1/90 Perez-MínguezCasariego v Commission [1991] ECR II-143, para. 56

3.     It follows from Article 1(1)(g) of Annex III to the Staff Regulations that those regulations authorise Community institutions, as part of their recruitment procedures, both voluntarily to set an age limit in competition notices and to communicate this limit to members of staff who meet the condition of having one year’s service with the institution. The Staff Regulations do not therefore prohibit age limits; on the contrary, they establish a power that must be used at the discretion of each institution.

The Staff Regulations confer a wide discretion on the appointing authority for the organisation of competitions. Indeed, provided that it complies with the provisions of the Staff Regulations and of the first paragraph of Article 27 and Article 29(1) in particular, 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, the rules and conditions under which a competition is organised.

Among the criteria that Community selection procedures must meet, Article 27 of the Staff Regulations does not impose a requirement to ensure that persons recruited are selected without reference to age. Article 29(1) of the Staff Regulations, which lays down the framework for the procedures for filling vacant posts, does not impose any obligation in this regard either.

The exercise of the discretion enjoyed by the institutions with respect to the holding of competitions, in particular as regards setting an age limit as a specific condition of admission to competitions, is compatible with the provisions of the first paragraph of Article 27 and Article 29(1) of the Staff Regulations.

(see paras 78, 80-84)

See: 90/74 Deboeck v Commission [1975] ECR 1123, para. 29; T-132/89 Gallone v Council [1990] ECR II-549, para. 27; T-56/89 Batailleand Others v Parliament [1990] ECR II-597, para. 42; T-214/99 CarrascoBenítez v Commission [2000] ECR-SC I-A-257 and II-1169, para. 52

4.     The Charter of Fundamental Rights of the European Union lays down a series of rights fundamental to the European Union with a view to guaranteeing that the rights of Community citizens are protected. However, although the Charter has been relied on by the Community Courts on several occasions as a source of inspiration for recognising and protecting the rights of citizens and as a reference criterion for the rights protected by the Community legal order, the fact remains that, at the present time (that is to say in October 2004), it is merely a declaration that has no legally binding force.

(see paras 87-88)

See: T-377/00, T-379/00, T-380/00, T-260/01 and T-272/01 Philip Morris International and Others v Commission [2003] ECR II-1, para. 122

5.     In imposing age limits in its recruitment procedures, the Commission is pursuing the aim of allowing reasonable career prospects both for officials who have an extended career ahead of them at the Commission and for those officials who are recruited at a greater age, and the aim of ensuring that officials perform their duties for a certain minimum period of time, in the light of the rights laid down by the Staff Regulations in terms of pension, in other words of maintaining the financial balance of Community pension funds. In the light of these objectives, this limit is reasonable and proportionate. The Commission can thus not be accused of breaching either the general principle of non-discrimination or Directive 2000/78, establishing a general framework for equal treatment in employment and occupation.

(see paras 95-100)

See: T-14/03 DiMarzio v Commission [2004] ECR-SC I-A-43 and II-167, para. 83

6.     Measures adopted by one institution in favour of a particular group of persons cannot, in the absence of any legal obligation under the Staff Regulations, be relied on in support of an allegation of infringement of the principle of equal treatment by officials of another institution.

Similarly, a candidate for a given competition who has not been admitted cannot rely to any purpose on the conditions of admission to other competitions, organised according to different procedures and pursuing different objectives.

(see paras 110, 112)

See: C-193/87 and C-194/87 MaurissenandUnionsyndicale v Courtof Auditors [1990] ECR I-95, paras 26 and 27; T-82/92 CortesJiménez and Others v Commission [1994] ECR-SC I-A-69 and II-237, para. 44; T‑101/96 Wolf v Commission [1997] ECR-SC I-A-351 and II-949