JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Third Chamber)

2 July 2014

Case F‑5/13

Paulo Jorge Da Cunha Almeida

v

European Commission

(Civil service — Open competition — Non-inclusion on the reserve list — Verbal reasoning test — Plea of illegality of the competition notice — Choice of the second language from three languages — Principle of non-discrimination)

Application:      under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Mr Da Cunha Almeida seeks, principally, annulment of the decisions of the selection board in competition EPSO/AD/205/10 excluding him from the reserve list and refusing his request for review, and annulment of the competition notice and the reserve list.

Held:      The decision of the selection board in competition EPSO/AD/205/10 of 9 March 2012, transmitted by the European Personnel Selection Office, refusing the request of Mr Da Cunha Almeida for review, following his exclusion from the reserve list of the competition by a decision of 23 December 2011, is annulled. The remainder of the action is dismissed. The European Commission is to bear its own costs and is ordered to pay the costs incurred by Mr Da Cunha Almeida.

Summary

1.      Actions brought by officials — Prior administrative complaint — Date when lodged — Receipt by the administration — Presumption created by the registration stamp

(Staff Regulations, Art. 90(2))

2.      Actions brought by officials — Prior administrative complaint — Correspondence between complaint and action — Same subject-matter and legal basis — Submissions and arguments not made in the complaint but closely related to it — Admissibility

(Staff Regulations, Arts 90 and 91)

3.      Officials — Competitions — Conduct of an open competition — Languages for participation in the tests — Equal treatment — Requirement for knowledge of specific languages — Statement of reasons — Justified in the interest of the service — Observance of the principle of proportionality

(Council Regulation No 1, Arts 1 and 6; Staff Regulations, Arts 1d(1) and (6), 28(f) and Annex III, Art. 1(1)(f))

1.      Article 90(2) of the Staff Regulations must be interpreted as meaning that a complaint is ‘lodged’ not when it is sent to the institution, but when it reaches that institution. Although the acknowledgment or registration by the administration of a document sent to it is not capable of fixing a certain date for the introduction of that document, as an example of sound administrative management, it is at least a means of raising a presumption, until the contrary is proved, that the document reached it on the date indicated.

(see paras 20, 23)

See:

order in Schmit v Commission, F‑3/05, EU:F:2006:31, paras 28 and 29 and the case-law cited therein

2.      Since the pre-litigation procedure is an informal procedure and those involved at that stage are generally acting without the assistance of a lawyer, the administration must not interpret complaints restrictively but should, on the contrary, examine them with an open mind. Moreover, it is not the purpose of Article 91 of the Staff Regulations to bind strictly and absolutely the contentious stage of the proceedings, if any, provided that the claims submitted at that stage change neither the legal basis nor the subject-matter of the complaint.

(see para. 36)

See:

judgment in Commission v Moschonaki, T‑476/11 P, EU:T:2013:557, paras 76 and 78

3.      A competition notice limiting the choice of the second language that may be used to participate in a competition is unlawful in circumstances in which the institutions concerned by that notice have not adopted internal rules relating to the application of the language regime of the Union, in accordance with Article 6 of Regulation No 1 determining the languages to be used by the European Economic Community, or other communications laying down criteria limiting the choice of the second language, where the competition notice does not contain any statement of reasons justifying the limited choice of languages.

Article 1 of the Regulation names 23 languages not just as official languages, but also as working languages of the institutions of the Union. The provisions of Article 1(1)(f) of Annex III, Article 1d(1) and (6), first sentence, and Article 28(f) of the Staff Regulations do not lay down express criteria which would allow the choice of the second language required to participate in a competition to be limited. The interest of the service may be a legitimate objective that can be taken into consideration in order to impose such a limitation, provided that that interest is objectively justified and that the required level of knowledge of languages is proportionate to the genuine needs of the service. In addition, the rules limiting the choice of the second language must provide for clear, objective and foreseeable criteria so that the candidates may know, sufficiently in advance, what the language requirements are and can prepare to take part in the competitions in the best possible circumstances.

(see paras 44, 46-50)

See:

judgment in Italy v Commission, C‑566/10 P, EU:C:2012:752, paras 85, 88 and 90