JUDGMENT OF THE COURT OF FIRST INSTANCE (Third Chamber)

21 November 2000

Case T-214/99

Manuel Tomás Carrasco Benítez

v

Commission of the European Communities

‛Officials — Recruitment — Access to internal competitions — Competition notice — Condition relating to length of service — Professional experience of the candidate’

Full text in French   II-1169

Application for:

annulment of the decision of the internal selection boards for competitions COM/T/R/ADM/A/98, COM/R/5179/98, COM/R/5182/98, COM/R/5183/98, COM/R/5188/98 and COM/R/5190/98 not to admit the applicant to the tests in those competitions.

Held:

The application is dismissed. The parties are to bear their own costs.

Summary

1. Officials — Actions — Prior administrative complaint — Requirement that subject-matter and grounds be the same — Pleas in law and arguments not appearing in the complaint — Matter considered in detail by the appointing authority in the decision rejecting the complaint — Admissible

   (Staff Regulations, Arts 90 and 91)

2. Officials — Competitions — Internal competitions — Competition for the purpose of establishment — Conditions of admission — Ten years' service as member of staff subject to conditions of employment of other servants — Whether permissible

   (Staff Regulations, Art. 27, first para; and 29(1))

3. Officials — Competitions — Competition based on qualifications and tests — Conditions of admission — Definition in notice of competition — Assessment by the selection board of the professional experience of the candidates — Judicial review — Limits

   (Staff Regulations, Annex III, Art. 2)

4. Officials — Competitions — Competition based on qualifications and tests — Conditions of admission — Supporting documents — Request by selection board for additional information — Merely optional — No obligation to request submission of all documents required

   (Staff Regulations, Annex III, Art. 2, second para.)

5. Officials — Competitions — Competition based on qualifications and tests — Refusal to admit to tests — Statement of reasons — Obligation — Scope

   (Staff Regulations, Art. 25, second para; Annex III, Art. 5)

1.  Where, in a decision rejecting a complaint, the appointing authority states its position in great detail on a matter which was not raised in the complaint, the argument put forward by the official concerned on that matter in the action brought before the Community court following rejection of his complaint must be declared admissible.

   Once the defendant institution has made observations on the matter in the course of the administrative procedure, it can no longer be considered that the failure to mention the matter in the complaint has undermined the principles of legal certainty and observance of the rights of the defence underlying the rule of consistency between the administrative complaint and the action.

   (see paras 37-38)

   See: T-78/96 and T-170/96 W v Commission [1998] ECRSC I-A-239 and II-745, para. 66

2.  The wide discretion which the Staff Regulations confer on the institutions as regards the organisation of competitions must be compatible with the mandatory requirements of the first paragraph of Article 27 of the Staff Regulations according to which the aim ascribed to the recruitment procedure is to secure for the institution the services of officials of the highest standard of ability, efficiency and integrity, and of Article 29(1) of those Regulations. The choice to be made in the exercise of the wide power conferred on the appointing authority in that regard must, therefore, always be governed by the requirements of the post to be filled and, more generally, the interests of the service.

   In requiring ten years' service with the European Communities as a condition of admission to a competition intended to lead to the establishment of temporary staff in grades A 8 and A 3, the Commission exercised its discretion in a manner compatible with the interests of the service. Having a certain length of service, and thus significant experience within the Community institutions, constitutes a clear indication of the possession of the qualities required by the first paragraph of Article 27 of the Staff Regulations. Given the nature of the posts to be filled, which all involve high level administrative and advisory duties, the Commission also respected the limits of a reasonable exercise of its discretion.

   (see paras 52-56)

   See: T-56/89 Bataille and Others v Parliament [1990] ECR II-597, para. 42; T-40/96 and T-55/96 de Kerros and Kohn-Bergé v Commission [1997] ECRSC I-A-47 and II-135, para. 39; T-294/97 Carrasco Benítez v Commission [1998] ECRSC I-A-601 and II-1819, paras 41 and 43, and the case-law cited therein

3.  It is for the selection board in a competition based on qualifications and tests to assess in each case whether the certificates produced or the experience of each candidate correspond to the level required by the Staff Regulations and by the notice of competition. It enjoys a discretion when assessing the previous experience of candidates both as regards the nature and duration thereof and as regards their relevance to the post to be filled.

   In its review of legality the Court of First Instance must confine itself to ascertaining whether the selection board's decisions were free from manifest errors of assessment.

   (see paras 69-71)

   See: T-115/89 González Holguera v Parliament [1990] ECR II-831, para. 54; T-2/90 Ferreira de Freitas v Commission [1991] ECR II-103, para. 56; T-158/89 Van Hecken v ESC [1991] ECR II-1341, para. 23, and the case-law cited therein; T-101/96 Wolf \Commission [1997] ECRSC I-A-351 and II-949, paras 64 and 68; T-244/97 Menens v Commission [1999] ECRSC I-A-23 and II-91, para. 44

4.  A selection board is obliged to take into account only the documents which the candidates submitted to assess their professional experience in the light of the requirements laid down by the notice of competition. It is under no obligation to ask candidates to produce additional documents or to undertake research itself in order to ascertain whether the candidate meets all the conditions of the notice of competition.

   In that regard, it is clear from the second paragraph of Article 2 of Annex III to the Staff Regulations that it merely enables a selection board to request additional information from candidates if it is in doubt as to the exact significance of a document submitted, and there can be no question of transforming into an obligation that which the Community legislature viewed as a mere possibility open to the selection board in a competition.

   (see paras 77-78)

   See; C-255/90 P Burban v Parliament [1992] ECR I-2253, paras 16 and 20; T-54/91 Almeida Antunes v Parliament [1992] ECR II-1739, para. 40; T-215/97 Jouhki v Commission [1998] ECRSC I-A-503 and II-1513, para. 58

5.  The duty to state the grounds for each decision adversely affecting an official is intended both to provide the person concerned with sufficient details to allow him to ascertain whether or not the decision is well founded and to enable the Court to review the legality of the decision. Such an obligation must, inter alia, enable the official concerned to know why a decision was adopted in his regard in order that he may take the legal steps necessary to defend his rights and interests. With respect to the decision of a selection board not to admit a candidate to the tests, the selection board is required to indicate precisely which conditions in the notice of competition are considered not to have been satisfied by the candidate.

   (see paras 172-173)

   See: 69/83 Lux v Court of Justice [1984] ECR 2447, para. 36; Burban v Parliament, cited above, para. 43; González Holguera v Parliament, cited above, paras 42 and 43, and the case-law cited therein; Almeida Antunes v Parliament, cited above, para. 32