JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(First Chamber)

30 November 2009

Case F-83/07

Brigitte Zangerl-Posselt

v

Commission of the European Communities

(Civil service – Open competition – Candidate not admitted to the practical and oral tests – Qualifications required – Concept of post-secondary education – Age discrimination)

Application: brought under Articles 236 EC and 152 EA, in which Ms Zangerl-Posselt seeks annulment of the decision of the selection board not to admit her to the tests for competition EPSO/AST/27/06 for the establishment of a reserve list of German-language assistants.

Held: The action is dismissed. The Commission is to bear its own costs and to pay two thirds of those incurred by the applicant. The applicant is to bear one third of her own costs.

Summary

1.      Officials – Competitions – Conditions for admission – Diploma giving access to post-secondary education

(Staff Regulations, Art. 5(3)(a)(ii))

2.      Officials – Competitions – Conditions for admission – Equal treatment and non‑discrimination

(Staff Regulations, Art. 27)

1.      The term ‘diploma giving access to post-secondary education’, used in a competition notice, is taken from Article 5(3)(a)(ii) of the Staff Regulations, which provides that appointment to a post as official in function group AST requires possession of at least ‘a level of secondary education attested by a diploma giving access to post-secondary education’.

Although the Staff Regulations do not define the concept of ‘post-secondary education’, the term necessarily refers to a level of education delivered after obtaining a diploma attesting completion of full secondary education. First of all, the use, in the French version of Article 5(3)(a)(ii) of the Staff Regulations, of the adjective ‘supérieur’ shows, absolutely unambiguously, that the education in question cannot be confused with that delivered in the context of secondary education, and that, on the contrary, it corresponds to education delivered in establishments to which access is subject to completion of full secondary education, that is to say, both lower and upper secondary education. Secondly, while the concept is expressed, in the German and English versions of Article 5(3)(a)(ii) of the Staff Regulations, by the terms ‘postsekundäre[r] Bildung’ and ‘post-secondary education’, those terms, apart from literally referring to a level of education distinct from secondary education, cannot in any event be interpreted differently from the concept in the French version of the same article, since the need for a uniform application, and hence interpretation, of Community rules means that provisions may not be considered in one language version in isolation, but must be interpreted according to their author’s actual intention and purpose, viewed in the light of all the Community language versions.

In the absence of any provision to the contrary contained either in a regulation or a directive applicable to recruitment competitions or in the notice of competition, the requirement of possession of a university diploma on which admission to an open competition depends is necessarily to be construed in the light of the definition of such a diploma given in the legislation of the Member State in which the candidate completed the studies on which he relies.

The concept of ‘post-secondary education’ within the meaning of Article 5(3)(a)(ii) of the Staff Regulations corresponds, in Germany, to a level of education delivered in establishments such as universities, Fachhochschulen, Fachschulen/Fachakademien, Berufsakademien or Verwaltungsfachhochschulen, to which access is, in principle, subject to possession of a diploma attesting completion of upper secondary education, namely the Allgemeine Hochschulreife, Fachhochschulreife or Fachgebundene Hochschulreife, the first of those being commonly known as the ‘Abitur’ and the other two ‘Fachabitur’.

(see paras 48, 49, 51-52)

See:

29/69 Stauder [1969] ECR 419, para. 3; 9/79 Koschniske [1979] ECR 2717, para. 6; C-219/95 P Ferriere Nord v Commission [1997] ECR I‑4411, para. 15

T-68/97 Neumann and Neumann-Schölles v Commission [1999] ECR-SC I‑A‑193 and II‑1005, para. 79; T-299/97 Alonso Morales v Commission [1999] ECR-SC I‑A‑249 and II‑1227, para. 60

F‑52/06 Pimlott v Europol [2007] ECR-SC I‑A‑1‑0000 and II‑A‑1‑0000, para. 61

2.      The principle of equal treatment prohibits comparable situations from being treated differently and different situations from being treated alike, unless such treatment is objectively justified. The same is true of the principle of non‑discrimination, which is merely the specific expression of the general principle of equal treatment and constitutes, in conjunction with the latter, one of the fundamental rights of Community law the observance of which the Court ensures. For officials and other staff of the Communities, the principle of non‑discrimination is expressed in Article 1(d)(1) of the Staff Regulations, according to which, in particular, ‘any discrimination based on any ground such as … age … shall be prohibited’. Finally, in a matter involving the exercise of discretion, the principle of non-discrimination is disregarded where the institution concerned makes a differentiation which is arbitrary or manifestly inappropriate in relation to the objective of the rules.

A competition notice which contains a diploma requirement that candidates must provide evidence of ‘a level of secondary education attested by a diploma giving access to post-secondary education’ does not prove any discrimination directly based on age. Even if that diploma requirement is likely to affect a larger proportion of the 45 to 50 age group than of the 20 to 25 age group, the purpose of any recruitment procedure, as Article 27 of the Staff Regulations expressly provides, is to secure for the institution the services of officials of the highest standard of ability, efficiency and integrity.

Consequently, by requiring candidates to possess a diploma ‘giving access to post-secondary education’ – a requirement taken from Article 5(3)(a)(ii) of the Staff Regulations, adopted by the Community legislature in the exercise of its wide discretion – the European Personnel Selection Office pursues a legitimate objective without making an arbitrary or manifestly inappropriate differentiation.

(see paras 71-78)

See:

117/76 and 16/77 Ruckdeschel and Others [1977] ECR 1753, para. 7; C-442/00 Rodríguez Caballero [2002] ECR I‑11915, para. 32; C-110/03 Belgium v Commission [2005] ECR I‑2801, para. 71

T-164/97 Busacca and Others v Court of Auditors [1998] ECR-SC I‑A‑565 and II‑1699, para. 49; T-323/02 Breton v Court of Justice [2003] ECR-SC I‑A‑325 and II‑1587, para. 99

F‑43/05 Chassagne v Commission [2007] ECR-SC I‑A‑1‑0000 and II‑A‑1‑0000, para. 62; F-54/06 Davis and Others v Council [2007] ECR-SC I‑A‑1‑27 and II‑A‑1‑139, para. 62 and the case-law cited therein