JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL
(First Chamber)

20 November 2012

Case F‑10/11

Dorina Maria Ghiba

v

European Commission

(Civil service — Internal competition — Non-admission to participate in a competition — Eligibility conditions — Concept of services attached to the Commission)

Application: brought under Article 270 TFEU, applicable to the EAEC Treaty by virtue of Article 106a thereof, in which Ms Ghiba seeks annulment of the decision of the selection board for internal competition COM/INT/EU2/AST 3 to reject her candidature on the ground that she did not meet certain eligibility requirements.

Held: The action is dismissed. The applicant is to bear her own costs and those incurred by the Commission. The Council is to bear its own costs.

Summary

Officials — Competitions — Internal competitions — Conditions for admission — Membership of the staff of the Commission or of a service attached to the Commission — Candidate who is a member of the staff of an executive agency — Not included

(Art. 308 EC; Council Regulation No 58/2003, recital 19 and Arts 9(1) and (5), 11(6), and 18)

An executive agency, such as the Research Executive Agency (REA), cannot be considered to be a service attached to the Commission. Accordingly, a candidate for an internal competition within the Commission cannot be regarded, in her capacity as a member of the contract staff of the REA, as belonging to the staff of the Commission or of services attached to the Commission.

The power of the Commission to set up and organise its services does not extend to executive agencies. It is true that the competence to establish executive agencies as separate legal entities was conferred on it by the EU legislature on the basis of Article 308 EC. However, Article 9(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 provides that the steering committee of the executive agency is to adopt its own rules of procedure. Although the Commission provides and organises its services, it is for the steering committee of the executive agency, according to Article 9(5), to decide on the organisation of the departments of the executive agency.

In that regard, recital 19 to Regulation No 58/2003 draws a clear distinction between, on the one hand, Commission departments and, on the other hand, executive agencies. Also, as regards the staff of an executive agency, it is clear from Article 11(6) of that regulation that the director of the executive agency is empowered under the arrangements applicable to other servants of the European Union to conclude employment contracts in respect of staff of the executive agency. Lastly, it is clear from Article 18 of that regulation that the executive agency’s staff consists, inter alia, of temporary staff members and other staff members directly recruited by the agency.

(see paras 34, 36-40, 43-44)

See:

21 October 2010, T‑439/08 Agapiou Joséphidès v Commission and EACEA, paras 35 and 43