ORDER OF THE PRESIDENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

14 December 2006 (*)

(Application for interim measures – Notice of competition – Admissibility of main action – Urgency – None)

In Case F‑120/06 R,

APPLICATION under Articles 242 EC, 243 EC, 157 EA and 158 EA,

Noémi Dálnoky, residing in Brussels (Belgium), represented by P. Horváth, lawyer,

applicant,

v

Commission of the European Communities, represented by J. Currall and H. Kraemer, acting as Agents, with an address for service in Luxembourg,

defendant,

THE PRESIDENT OF THE TRIBUNAL

makes the following

Order

1       By application received at the Tribunal Registry on 26 October 2006, Ms Dálnoky applied for suspension of the operation of the tests in Open Competition EPSO/AD/47/06 (‘the competition’), pending judgment on the application for annulment of the notice of that competition published in the Official Journal of the European Union of 21 June 2006 (OJ 2006 C 145 A, p. 1; ‘the notice of competition’).

 Relevant provisions

2       Article 6 of the Treaty on European Union provides:

‘1.      The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States.

2.      The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law.

…’

3       Article 12 EC provides:

‘Within the scope of application of this Treaty, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited.

The Council, acting in accordance with the procedure referred to in Article 251, may adopt rules designed to prohibit such discrimination.’

4       Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (OJ 2000 L 180, p. 22) is aimed at laying down a framework for combating discrimination on the grounds of racial or ethnic origin, and at encouraging, in the Member States, observance of the principle of equal treatment.

5       Under Article 8 of Regulation (EEC) No 1 of the Council of 15 April 1958 determining the languages to be used by the European Economic Community (OJ, English Special Edition 1952-1958 (I), p. 59), most recently amended by Council Regulation (EC) No 920/2005 of 13 June 2005 (OJ 2005 L 156, p. 3):

‘If a Member State has more than one official language, the language to be used shall, at the request of such State, be governed by the general rules of its law.’

6       The first subparagraph of Article 1d(1) of the Staff Regulations of Officials of the European Communities (hereinafter ‘the Staff Regulations’) provides:

‘In the application of these Staff Regulations, any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age, or sexual orientation shall be prohibited.’

7       Under Article 28(f) of the Staff Regulations, an official may be appointed only on condition that he produces evidence of a thorough knowledge of one of the languages of the Communities and of a satisfactory knowledge of another language of the Communities to the extent necessary for the performance of his duties.

8       The second subparagraph of Article 1(1) in Annex III to the Staff Regulations provides, under (f), that notice of competitions drawn up by the appointing authority must specify, where applicable, the knowledge of languages required in view of the special nature of the posts to be filled.

 Facts

9       The applicant, a Romanian national, belongs to the Hungarian‑speaking minority in Romania, which numbers about 1.4 million citizens, that is 6.6% of the total population of that country.

10     She submitted her application in the competition organised by the European Personnel Selection Office (EPSO) to constitute a reserve pool from which to recruit administrators with Romanian citizenship (Competition EPSO/AD/47/06; OJ 2006 C 145 A, p. 1).

11     One of the requirements, laid down in Section A.(II).3(a) of the notice of competition relating to the candidate’s main language, is to have a thorough knowledge of Romanian.

12     Section C.1(c) of the notice of competition provides, among the written tests, for the drafting of a short memo in the candidate’s main language, which ‘is designed to assess [the candidate’s] command of [her] main language as regards both the quality of [her] writing style and presentation’ (‘the test at issue’). That test is to be marked out of 10, with a pass‑mark of 8.

13     Section C.2 of the notice of competition provides that only the candidates with the highest marks for all the written tests combined and the pass‑mark in each will be admitted to the oral test.

14     Following the publication of the notice of competition, the applicant, on 2 July 2006, sent EPSO an email in which she criticised that notice, in that it required a thorough knowledge of the Romanian language. She contended that that was discriminatory against Romanian nationals of Hungarian mother tongue and requested, accordingly, that it be changed so that ‘a thorough knowledge of one Community language’ would be required. She also stated that she had submitted a complaint to that effect to the European Ombudsman.

15     By email of 4 July 2006, EPSO declined to comply with her request.

16     By email of the same day, the applicant set out her arguments that the notice of competition was unlawful.

17     By email of 5 July 2006, EPSO reaffirmed and made clear its position, whilst drawing the applicant’s attention to the review and appeal procedures set out in the notice of competition.

 Procedure and forms of order sought by the parties

18     By application received at the Tribunal Registry on 26 October 2006, the applicant claims, first, annulment of the notice of competition, second, that EPSO be ordered not to commit similar discrimination in future and, finally, if the competition has already been conducted or is in progress at the time of delivery of the Tribunal’s decision, that EPSO be ordered to eliminate any disadvantage suffered by her or by any other person concerned because of the discriminatory provision of the notice of competition. That application was registered in the Tribunal Registry under No F‑120/06.

19     By separate document of the same date, the applicant lodged an application for interim measures seeking suspension of the operation of the competition’s tests, pending final judgment on the substance of the action. That application was registered in the Tribunal Registry under No F‑120/06 R.

20     In her application for interim measures, the applicant claims that the President of the Tribunal should suspend the competition procedure initiated by EPSO on the basis of the notice of competition, pending the Tribunal’s decision on the substance of the case.

21     The Commission of the European Communities, which lodged its written observations on 14 November 2006, contends that the President of the Tribunal should:

–       dismiss the application for interim measures;

–       reserve the costs.

22     On the basis of the contents of the case‑file, the President of the Tribunal considers that he has all the information enabling him to rule on the application without the need to hear the parties’ oral arguments.

 Law

 Arguments of the parties

23     As regards the pleas of fact and law justifying, at first sight, the grant of the interim relief sought, the applicant maintains that the notice of competition infringes a number of provisions of Community law, by requiring that candidates have a thorough knowledge of Romanian.

24     In her first plea in law, she submits that the notice of competition, by favouring, unjustifiably, Romanian citizens of Romanian mother tongue compared with those of Hungarian mother tongue, infringes Article 6 EU, which provides that the Union is founded on the principle of respect for human rights and fundamental freedoms, and the first subparagraph of Article 1d(1) of the Staff Regulations which prohibits any discrimination based on, among other things, ethnic origin, language, or membership of a national minority. She also claims that the notice of competition is discriminatory for the purposes of Directive 2000/43.

25     In her second plea in law, she submits that the notice of competition, by not allowing Romanian nationals to prove a thorough knowledge of an official language of the European Union other than Romanian, infringes Article 12 EC which prohibits any discrimination on grounds of nationality. According to the applicant, the provisions of a number of notices of competition published in the past have permitted the nationals of certain Member States to prove a thorough knowledge of an official language of the European Union other than the main language of the Member State of which they were nationals.

26     Finally, she submits in her third plea in law that the notice of competition, by requiring a thorough knowledge of Romanian, infringes, first, Article 28(f) of the Staff Regulations which requires an official to have a thorough knowledge of one of the languages of the Communities ‘to the extent necessary for the performance of his duties’ and, second, the second subparagraph of Article 1(1) in Annex III to the Staff Regulations, under (f), which refers to ‘the knowledge of languages required in view of the special nature of the posts to be filled’. According to the applicant, the description of the duties as set forth in the notice of competition makes no reference to any particularity of the posts to be filled which would justify the requirement of a thorough knowledge of Romanian.

27     As regards the requirement of urgency, the applicant submits that the further advanced the competition tests are when the Tribunal gives its decision on the substance of the case, the more difficult it will be for EPSO to eliminate any disadvantage suffered by her and by any other person concerned, if that decision grants her application.

28     According to the applicant, if such a decision is given after the written tests have taken place, she and other candidates will have to be allowed to resit the written test in question, which will be costly and time‑consuming for all parties involved and negative for the Commission’s image. If such a decision is given after the oral tests have taken place, the situation will be even more complex.

29     She also claims that, if the Tribunal grants her application on the substance of the case, people who might have been discouraged from applying for the competition because of the requirement to have a thorough knowledge of Romanian will have to be given the opportunity of submitting their applications. According to the applicant, it would be relatively easy to organise new preselection tests for such people before the date on which the group of candidates successful in those tests is called for the written tests, whereas it would be much more complicated to proceed in that way after that date.

30     The applicant concludes therefrom that the suspension of the conduct of the competition tests would be ‘best for all concerned parties’.

31     The Commission challenges the admissibility of the application for interim measures on the ground that the main action is inadmissible for two reasons. First, it was brought outside the period prescribed by the Staff Regulations and, second, it is not brought against an act adversely affecting the applicant.

32     In the Commission’s submission, the main action should have been brought within the period of three months prescribed by Articles 90 and 91 of the Staff Regulations, with an extension thereto of 10 days on account of distance, under Article 102(2) of the Rules of Procedure of the Court of First Instance of the European Communities, which apply, mutatis mutandis, to the Tribunal, by virtue of Article 3(4) of Council Decision 2004/752/EC, Euratom of 2 November 2004 establishing the European Union Civil Service Tribunal (OJ 2004 L 333, p. 7), until the entry into force of its rules of procedure. Since the starting point of the period of three months was the publication of the notice of competition in the Official Journal, that is 21 June 2006, the action on the substance, lodged on 26 October 2006, was brought outside the period prescribed by the Staff Regulations. The Commission argues that, even if the exchange of emails between the applicant and EPSO were regarded as a complaint and a rejection of that complaint, the action on the substance was in all events brought outside that period.

33     The Commission further submits that the notice of competition does not adversely affect the applicant, since it did not exclude her from the competition.

34     As regards the requirement of urgency, the Commission submits that there is no risk of serious and irreparable damage threatening the applicant’s interests.

35     It observes, first, that no decision has been taken in this case rejecting the applicant’s application and that such a decision will perhaps never be taken.

36     Second, it points out that according to settled case‑law, in the event of annulment of the decision by which the selection board in an open competition organised for the constitution of a recruitment reserve has refused to include a candidate on a reserve list, the candidate’s rights are adequately protected if the selection board and the appointing authority reconsider their decisions and seek a just solution in the case, without its being necessary to call in question the entire results of the competition or to annul the appointments made as a result thereof.

37     As regards the requirement to show a prima facie case, the Commission refutes the applicant’s argument that the notice of competition infringes Article 6 EU, Directive 2000/43, the first subparagraph of Article 1d(1) of the Staff Regulations, Article 12 EC, as well as Articles 27 and 28 of the Staff Regulations. It points out in particular that Romania has made no request to be treated as a Member State having more than one official language, and to have Hungarian used in its relations with the Community Institutions, as it was entitled to do under Article 8 of Regulation No 1.

38     Finally, as regards the weighing-up of the interests involved, the Commission submits that a decision suspending the conduct of the competition tests would affect disproportionately its interests and those of the other candidates.

 Findings of the President

39     Under, first, the combined provisions of Articles 242 EC, 243 EC, 157 EA and 158 EA and, second, Article 39 of the Statute of the Court of Justice and Article 7(1) of Annex I to that Statute, the Tribunal may, if it considers that the circumstances require it, suspend execution of the contested act or prescribe interim measures.

40     The first subparagraph of Article 104(1) of the Rules of Procedure of the Court of First Instance provides that an application to suspend the operation of any measure adopted by an institution, made pursuant to Articles 242 EC and 157 EA, is to be admissible only if the applicant is challenging that measure in proceedings before the Tribunal. The second subparagraph of the said Article 104(1) states that any application for the adoption of any other interim measure referred to in Articles 243 EC and 158 EA is to be admissible only if it is made by a party to a case before the Tribunal and relates to that case.

41     According to settled case-law, in principle the question of the admissibility of the main action is not to be examined in proceedings for interim relief but is to be reserved for the examination of the main application, unless it be apparent at first sight that the latter is manifestly inadmissible. To determine admissibility at the interlocutory stage, when an application is not, prima facie, entirely inadmissible, would be tantamount to prejudging the Tribunal’s decision on the main action (order of the President of the Court of First Instance in Case T‑196/98 R Peña Abizanda and Others v Commission [1999] ECR‑SC I‑A‑5 and II‑15, paragraph 10 and the case-law there cited).

42     Under Article 104(2) of the Rules of Procedure of the Court of First Instance, applications for interim measures must state the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case for the interim measures applied for. Those requirements are cumulative, so that an application for such measures must be dismissed if one of them is lacking (order of the President of the Court of First Instance in Case T‑120/01 R De Nicola v EIB [2001] ECR-SC I‑A‑171 and II‑783, paragraph 12). The judge hearing an application for interim relief must also, where appropriate, weigh up the interests involved (order of the President of the Court of First Instance in Case T‑173/99 R ElkaïmandMazuel v Commission [1999] ECR‑SC I‑A‑155 and II‑811, paragraph 18).

43     Furthermore, in the context of that general examination, the judge hearing the application for interim relief is invested with a wide discretion, and is free to determine, having regard to the specific circumstances of the case, the manner and order in which those various conditions are to be examined, there being no rule of Community law imposing a pre‑established scheme of analysis to determine the need to order interim measures (De Nicola v EIB, paragraph 13).

44     In the circumstances of this case, it is appropriate to examine at the outset whether, at first sight, the main action is not manifestly inadmissible.

45     Under Article 91(2) of the Staff Regulations, an appeal to the Community judicature lies only if the appointing authority has previously had a complaint submitted to it pursuant to Article 90(2) of the Staff Regulations against an act having adverse effect.

46     In that regard, it must be pointed out that, according to the case-law, save in cases in which the action is directed against an act which does not emanate from the appointing authority itself, such as a decision of a selection board (Case T‑133/89 Burban v Parliament [1990] ECR II‑245, paragraph 17) or a staff report (Case T‑1/91 Della Pietra v Commission [1992] ECR II‑2145, paragraph 23), failure to make a prior complaint within the prescribed period means that the action is manifestly inadmissible (order in Case 317/85 Pomar v Commission [1987] ECR 2467, paragraphs 11 and 13).

47     Article 1(1) of Annex III to the Staff Regulations provides that notice of competitions is to be drawn up by the appointing authority. A challenge to a notice of competition must therefore be preceded by a complaint made under Article 90(2) of the Staff Regulations (see, to that effect, order in Case T‑208/00 Barleycorn Mongolue and Boixader Rivas v Council and Parliament [2001] ECR‑SC I‑A‑103 and II‑479, paragraphs 30 to 32).

48     Under Article 91(3) of the Staff Regulations, an appeal to the Tribunal must be brought within three months of the date of notification of the decision taken in response to the complaint.

49     In this case, even if the email sent by the applicant to EPSO on 2 July 2006 could be regarded as a complaint and the reply thereto of 4 July 2006 as an express decision rejecting that complaint, the main action, instituted on 26 October 2006, was brought after the expiry of the limitation period of three months prescribed by Article 91(3) of the Staff Regulations.

50     This being so, without the need to determine whether the notice of competition is an act adversely affecting the applicant within the meaning of Article 90(2) of the Staff Regulations, it must be concluded that the main action appears, at first sight, to be manifestly inadmissible.

51     In any event, the requirement of urgency must also be held to be lacking.

52     It is established that the purpose of the application for interim relief is to ensure that the judgment on the substance of the case takes full effect. To attain that objective, the measures sought must be urgent in so far as, in order to avoid serious and irreparable harm to the applicant’s interests, they must be adopted and produce their effects before a decision is reached in the main action (order in Case C‑65/99 P(R) Willeme v Commission [1999] ECR I‑1857, paragraph 62).

53     According to settled case-law, where a test in an open competition for the purpose of constituting a reserve for future recruitment is annulled, the rights of an applicant who has failed that test will be adequately protected if the selection board and the appointing authority reconsider their decisions and seek a just solution in the case, without its being necessary to call in question the entire results of the competition or to annul the appointments made as a result thereof (Case 144/82 Detti v Court of Justice [1983] ECR 2421, paragraph 33, and Case C‑242/90 P Commission v Albani and Others [1993] ECR I‑3839, paragraphs 13 and 14).

54     It follows that the harm which the applicant could suffer if she is excluded from the competition is not irreparable.

55     In this connection, it is to be noted that the applicant does not allege that any serious and irreparable harm is threatening her interests. She confines herself, at the very most, to maintaining that the suspension of the conduct of the competition tests would be ‘best for all concerned parties’. In particular, she recognises that the harm which she could suffer, if she were excluded from the competition, could be remedied, were the notice of competition to be annulled by the Tribunal, by the test at issue being organised again. The applicant therefore acknowledges, implicitly, that the harm which she could suffer is not irreparable.

56     As regards, first, the argument that organisation anew of the test at issue would be costly and time‑consuming for all the parties involved and negative for the Commission’s image, and, second, the argument that people who might have been discouraged from submitting their applications because of the requirement to have a thorough knowledge of Romanian would have to be given the opportunity of submitting such an application, it must be noted that such arguments are not personal to the applicant and are therefore incapable of establishing the requirement of urgency, which relates to harm which must be personal to the person concerned.

57     In addition, the adverse effects alleged by the applicant cannot outweigh the difficulties and harmful consequences, for the defendant institution and for the other candidates, which would result from the suspension of the organisation of the competition and could not be remedied in the event of the later dismissal of the main action (order of the President of the Second Chamber in Case 161/87 R Muysers and Tülp v Court of Auditors [1987] ECR 2381, paragraph 13; orders of the President of the Court of First Instance in Case T‑167/99 R Giulietti v Commission [1999] ECR-SC I‑A‑139 and II‑751, paragraph 31; and Elkaïm and Mazuel v Commission, paragraph 28).

58     Since no urgency has been established and the weighing-up of the interests involved precludes the suspension of the competition tests, this application must be dismissed also on those grounds, without the need to examine whether the requirement of a prima facie case is satisfied.

On those grounds,

THE PRESIDENT OF THE TRIBUNAL

hereby orders:

1.      The application for interim measures is dismissed.

2.      The costs are reserved.

Luxembourg, 14 December 2006.

W. Hakenberg

P. Mahoney

Registrar

President

The text of this decision and the decisions of the Community courts cited herein but not yet reported in the Court Reports are available on the Court of Justice’s website: www.curia.europa.eu

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* Language of the case: English.