Case T‑79/17

Alain Schoonjans

v

European Commission

(Civil service — Contract staff — Recruitment — Internal competition — Constitution of a reserve list for the recruitment of assistants — Eligibility condition relating to the function group to which the candidate belongs on the closing date for applications — Non-admission to the tests in a competition)

Summary — Judgment of the General Court (Ninth Chamber), 12 September 2018

1. Officials — Competitions — Conditions for admission — Mandatory provisions of the first paragraph of Article 27 of the Staff Regulations — Conditions limiting the registration of candidates for a competition — Lawfulness — Conditions — Requirements relating to the interests of the service — Judicial review — Limits

   (Staff Regulations of Officials, Arts 27, first para. and 29(1))

2. Officials — Recruitment — Competition internal to the institution — Extension of entitlement to participate to all agents and officials — Obligation — None

3. Officials — Competitions — Internal competition to constitute a reserve list for the recruitment of assistants — Members of the contract staff — Eligibility condition relating to the function group to which the candidate belongs on the closing date for applications — Non-admission to the tests in a competition of a contract agent in function group IV — Not permissible

   (Staff Regulations of Officials, Art. 27, first para.; Conditions of Employment of Other Servants of the European Communities, Art. 82(7))

1.  The institutions have a wide discretion in deciding upon the criteria of ability required for the posts to be filled and in specifying, on the basis of those criteria and in the interests of the service, the conditions and procedure for organising a competition. However, the exercise of the discretion enjoyed by the institutions with respect to the holding of competitions, in particular as regards setting the conditions for admission, must be compatible with the mandatory provisions of the first paragraph of Article 27 and of Article 29(1) of the Staff Regulations. The terms in which the first paragraph of Article 27 of the Staff Regulations defines the aim of any recruitment and in which Article 29(1) of the Staff Regulations lays down the framework of the procedures to be followed to fill vacant posts are mandatory. That power must therefore always be exercised in the light of the requirements of the positions to be filled and, more generally, of the interests of the service.

   Specifically as regards conditions limiting the registration of candidates for a competition, although such conditions are indeed liable to restrict the ability of the institutions to recruit the best candidates for the purposes of the first paragraph of Article 27 of the Staff Regulations, it does not follow that any condition containing such a restriction is contrary to that provision. The administration’s discretion in the organisation of competitions, and more generally in the interests of the service, allows the institution to impose the conditions which it considers to be appropriate and which, while restricting access of candidates to a competition, and thus, necessarily the number of candidates registered, do not, however, entail the risk of compromising the objective of ensuring the registration of candidates of the highest standard of ability, efficiency and integrity within the meaning of the first paragraph of Article 27 of the Staff Regulations.

   Accordingly, it is only conditions limiting access of candidates to a competition that entail a risk of compromising the objective of ensuring the registration of candidates of the highest standard that are held to be contrary to the first paragraph of Article 27 of the Staff Regulations.

   Furthermore, in view of the institutions’ wide discretion in this field, review by the General Court of whether the institution has complied with the condition relating to the interests of the service must be confined to the question of whether the institution remained within reasonable and proper bounds and did not manifestly misuse its discretion.

   (see paras 28-30, 32, 33)

2.  There is no obligation to admit to a competition internal to the institution every person working for that institution. Such an obligation would, in practice, undermine the wide discretion afforded to the institution. The agents and officials of an institution do not, therefore, have any absolute right to take part in an internal competition.

   (see para. 31)

3.  It emerges from reading the first two sentences of Article 82(7) of the Conditions of Employment of Other Servants [of the European Communities] together that an institution can, exceptionally, hold an internal competition open to contract agents with at least three years’ service. However, if that institution decides to open an internal competition to contract agents satisfying that length of service condition, it must proceed in accordance with the access that the EU legislature gave those agents and, therefore, allow those agents who belong to Function Group IV to take part in any competitions for grades AST 1 to AST 4 or AD 5 and AD 6 that it has chosen to hold.

   Provided it complies with those limits laid down by the EU legislature and having regard to its broad discretion, the institution concerned is nevertheless entitled to restrict access by contract agents in Function Group IV to the competitions for grades AST 1 to AST 4 or AD 5 and AD 6 by establishing additional ability criteria required by the posts to be filled or the interests of the service.

   Nevertheless, by applying a condition that bars all contract agents in Function Group IV from taking part in the internal competition for the constitution of a reserve list for the recruitment of assistants (AST 2), even where they satisfy the other conditions laid down by the competition notice, the institution infringed the second sentence of Article 82(7) of the Conditions of Employment of Other Servants, which expressly gives those agents access to competitions for grade AST 2. In such circumstances, the institution uses its discretion in a manifestly wrong way by prohibiting agents in Function Group IV from applying to that internal competition.

   (see paras 39-41, 49)