Complaint under Article 90(2) of the Staff Regulations
I, the undersigned, [insert name], with the Staff Number [insert number], hereby submit a complaint under Article 90(2) of the Staff Regulations (hereinafter referred to as the SR).
1. Subject of the Complaint
This complaint concerns the European Commission's decision to deny my right to take part in an internal competition due to the application of discriminatory restrictions imposed in relation to administrative status and functiongroup of officials in Sections 2.1. and 2.2. of the Notice of Internal Competition of 12 February 2016 COM/03/AD/16 (AD6). I particularly contest that, through the foregoing discriminatory restrictions, the European Commission breached the principle of equal treatment and committed certain violations of the SR.
2. Facts
2.1.I am currently serving as a [temporary agent/official] at the AST (#) grade.
2.2.On 12 February 2016, the European Commission published a Notice of Internal Competition (hereinafter referred to as "the Notice") concerning three internal competitions, one of them being COM/03/AD/16 (AD6) - Administrators (hereinafter referred to as "the Competition").
2.3.Section III of the Notice reads as follows:
(i) As regards “Administrative Status”, Paragraph 2.1.(c) requires to “have served at least the past 6 months before the closing date for online applications in the function group which is required in section III.2.2 for the competition to which you apply or having served in a higher function group for all or part of the 6 months referred to above.”
(ii)As regards “Function group and Grade”, Paragraph2.2. requires “For COM/03/AD/16 (AD6): You must be an official or temporary agent AD or a contract agent FGIV.”
(iii)As regards “Diploma and/or professional experience”, Paragraph2.3. requires “A level of education which corresponds to completed university studies of at least three years attested by a diploma, or vocational training of an equivalent level.”
2.4.Due to the arbitrary and discriminatory restrictions imposed in paragraphs 2.1. and 2.2. of Section 2 of the Notice, as quoted above, I was effectively prevented from taking part in the Competition in contravention to the relevant provisions of the SR and fundamental principles of the Union law, as well as past precedence set by the Institution through its prior administrative practice. As such, I have been adversely affected by the contested paragraphs of the Notice.
3. Legal Grounds
I contend, on grounds explained below, that the European Commission has acted in violation of Article 27 of the SR, the principle of equal treatment, the principle of good administration and the principle of legitimate expectations by preventing me from taking part in the Competition due to arbitrary and discriminatory restrictions it imposed in the contested Notice.
(i) Relevant Elements
Article 5.3. reads as follows:
Appointment shall require at least:
(...)
(b) in function group AD for grades 5 and 6:
(i) a level of education which corresponds to completed university studies of at least three years attested by a diploma, or
(ii) where justified in the interest of the service, professional training of an equivalent level.
First paragraph of Article 27 of the SR reads as follows:
Recruitment shall be directed to securing for the institution the services of officials of the highest standard of ability, efficiency and integrity, recruited on the broadest geographical basis from among nationals of Member States if the Union. No posts shall be reserved for nationals of any specific MemberState.
Article 28 of the SR read as follows:
An official may be appointed only on condition that:
(a) he is a national of one of the Member States of the Union (...) and enjoys his full rights as a citizen;
(b) he has fulfilled any obligations imposed on him by the laws concerning military service;
(c) he produces appropriate character references as to his suitability for the performance of his duties;
(d) he has, subject to Article 29(2), passed a competition based on either qualifications or tests, or both qualifications and tests, as provided in Annex III;
(e) he is physically fit to perform his duties; and
(f) he produces evidence of a thorough knowledge of one of the languages of the Union and of a satisfactory knowledge of another (...).
Article 29 of the SR provides the following:
1. Before filling a vacant post in an institution, the appointing authority shall first consider:
(...)
(d) whether to hold a competition internal to the institution, which shall be open only to officials and temporary staff as defined in Article 2 of the Conditions of Employment of Other Servants of the European Union; (...) While maintaining the principle that the vast majority of officials are to be recruited on the basis of open competitions, the appointing authority may decide, by way of derogation from point (d) and only in exceptional cases, to hold a competition internal to the institution which shall also be open to contract staff as defined in Articles 3a and 3b of the Conditions of Employment of Other Servants of the European Union. That latter category shall be subject to restrictions with regard to that possibility as laid down in Article 82(7) of the Conditions of Employment of Other Servants of the European Union and with regard to the specific tasks it was entitled to perform as contract staff.
Moreover, prior administrative practice of the European Commission established precedence regarding the eligibility criteria common to internal competitions. As evident in Section III of the Notice of Internal Competition COM/INT/EU10/08/AD5, eligibility criteria in internal competitions do not include arbitrary restrictions which discriminate among officials and temporary staff on grounds of their administrative status and function group.
As highlighted in the relevant sections below, case law of the Civil Service Tribunal also provides sufficient precedence which disallow administrative status and function group discrimination in the conduct of competitions.
(ii) Violation of Article 27 of the SR
According to the first paragraph of Article 27 of the Staff Regulations recruitment is to be directed to securing for the institution the services of officials of the highest standard of ability, efficiency and integrity.
EU courts have stated that the Commission, being the appointing authority, has 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, more generally, in the interests of the service, the conditions and procedure for organising a competition on the basis of several provisions of the Staff Regulations. However, the exercise of such discretion with respect to the holding of competitions, in particular as regards setting the conditions of admission of candidates, is circumscribed by the requirement that they comply with the mandatory provisions of the first paragraph of Article 27 of the Staff Regulations. The terms in which the first paragraph of Article 27 of the Staff Regulations defines the aim to be pursued by any recruitment are mandatory. According to the case-law, both the requirements attaching to the post to be filled and the interests of the service can only be conceived in full compliance with that provision. Thus, conditions of admission to any competition deriving from the above requirements and interests must in any event remain compatible with the provisions of the first paragraph of Article 27 of the Staff Regulations.
According to the Civil Service Tribunal, it follows that for it to be lawful, any clause for admission to a competition must comply with a dual requirement:
- first, the clause be justified by requirements connected with the post to be filled and, more generally, by the interests of the service; and
- second, that it complies with the objective of the first paragraph of Article 27 of the Staff Regulations. Although, most frequently, those two parts of the dual requirement largely overlap, they are none the less distinct concepts.
The Court of First Instance has rejected the existence of such a sufficient “connection” or link when the appointing authority has tried to justify conditions of admission to competitions by their practical, discriminatory, or budgetary nature that, while showing an “interest” of the service, disproportionately departed from the objective of Article 27.
Section IIIParagraphs 2.1 and 2.2 of the Notice do not pass this two-step test established by the case-law.
(a) The conditions for eligibility in Section IIIParagraphs 2.1 and 2.2 of the Notice do not show enough connection to the criteria of ability required for the AD6 posts to be filled.
EU Courts have stated that the appointing authority should, first, exercise its wide discretion in the light of the requirements attaching to the posts to be filled and, more generally, of the interests of the service and, second, establish the existence of a sufficient link between the conditions and those requirements and interest. This means that where the Commission establishes conditions for admission to competitions it should do so showing a link to the requirements of an AD6 position. This link is not shown by the eligibility conditions in Section IIIParagraphs 2.1 and 2.2 of the Notice.
The condition of being official or temporary AD or contract agent GFIV personnel during at least the six months before the closing date for online applications is not related to the requirements of an AD6 post or an indication of the possession of better skills than non-eligible personnel. There is neither such presumption in the Staff Regulations, nor can it be acceptable by common sense. The Civil Service Tribunal already found in Carrasco Benítez v Commission, a case concerning the exclusion of permanent officials, that there was no indication that excluded officials would not have abilities equal to, or indeed greater than, those of the members of the temporary staff who were eligible.
As regards the internal AD6 competition at stake, there is no indication (paraphrasing the Civil Service Tribunal) that the excluded AST personnel (permanent or temporary) do not have abilities equal to, or indeed greater than, those AD officials or temporary agents or contract agents GFIV. The fact that an applicant may not be temporary or official AD or contract agent GFIV during the 6 months prior to the closing of applications does not imply that he/she won't be able to fulfil the “criteria of ability required for the posts to be filled”, that is, as the Court of First instance has put it, “to accomplish the tasks which successful candidates in the competition will be called upon to perform in the same way as other candidates and to satisfy the criterion laid down in the first paragraph of Article 27 of the Staff Regulations”.
Therefore, any member of the Commission's personnel meeting the minimum qualifications of Article 5(3) of the Staff Regulations, a university degree or equivalent professional experience as required in the Notice, may serve as an AD6 official. The Notice adopts such minimum qualifications in Section IIIParagraph 2.3 in order to set up the recruitment of AD6 personnel with no specific professional characteristics.
Indeed, the Notice does not call a “specialist” AD competition either. The Notice provides for the conditions of recruitment of “plain” AD6 personnel. In this regard, in line with the Staff Regulations, Section IIIParagraph 2.3 of the Notice requires candidates to be in possession of university qualifications or equivalent professional experience. There is no indication that such qualifications or experience are special ones.
The Notice does not indicate either that the Commission's interest resides in the recruitment of personnel with such very specific work experience that can only be acquired at the Commission while being official or temporary AD or contract agent GFIV (e.g. hypothetical “commitology experts”, “Commission's protocol experts”, or “Commission's HR experts”) during a minimum of six months. In the hypothetical case where the Commission needed such specialist personnel, the Commission should indicate such interest in the notice of competition and require specific experience related to the performance of such specialist posts. Accordingly, the Commission would have to require the relevant number of years of experience (as laid down in the Article 5 of the Staff Regulations) in the specific field of “commitology”, “protocol” or “HR”, for example, in order to “link” these conditions of eligibility to AD6 specialist posts as required by the case-law.
Not only is such minimum 6-month experience in the staff categories of Section IIIParagraph 2.2 not related to the performance of a general AD6 job. Neither is the condition that such minimum 6-month experience has to be obtained immediately before the closing date of applications related to the performance of AD6 tasks. The “order or experience” imposed by Section IIIParagraph 2.1 is not required by Article 5(3) of the Staff Regulations and is entirely unrelated to the requirements of post to be filled. For the performance of AD6 tasks it should not matter whether this experience is acquired in the 6-months immediately preceding the closing date of applications or at any other moment in the career of a candidate.
It follows that if the aim of the Commission were to recruit personnel with 6 months of professional experience relevant to the performance of general AD6 tasks, the Commission should have accepted experience obtained outside the Commission as well as experience obtained at the Commission at any moment of time, and not only in the six months immediately before the closing date of applications.
Therefore, Section IIIParagraphs 2.1 and 2.2 of the Notice do not show sufficient link between the conditions on the one hand, and the requirements of an AD6 position and interest on the other hand, and the Commission is deliberately ignoring the case-law of EU courts on Article 27 of the Staff Regulations by applying such sections.
(b) The conditions for eligibility in Section IIIParagraphs 2.1 and 2.2 of the Notice compromise the objective of ensuring the registration of candidates of the highest standard.
Although the Civil Service Tribunal has recognised that the administration’s discretion in the organization of competitions and more generally in the interests of the service offers the Commission the right to impose conditions which it considers to be appropriate, if the requirements limiting access of candidates to a competition entail the risk of compromising the objective of ensuring the registration of candidates of the highest standard, the requirements in question are to be held contrary to the first paragraph of Article 27 of the Staff Regulations.
The Civil Service Tribunal found in Rita di Prospero v Commission that the interests of the service cannot justify a decision by an institution to reserve access to an internal competition merely to certain members of the staff and not others. The Tribunal found that “every recruitment procedure must lead to the appointment of officials of the highest standard of ability, efficiency and integrity, there being no indication that the excluded officials do not have abilities equal to, or indeed greater than, those of the members of the temporary staff concerned”.
By requiring that eligible candidates be officials or temporary AD or contract agents GFIV during at least 6 months, the Commission is narrowing the scope of eligibility with conditions that are unrelated to the fulfilment of an AD6 job, and is excluding experienced, qualified and suitable candidates from the possibility of being successful at the competition. Such eligibility approach undoubtedly compromises the objective of a high standard of ability of Article 27 as many potential suitable candidates for performing the tasks of an AD6 job are excluded, preventing the Commission from choosing between those showing the highest level of ability, efficiency and integrity during the competition process.
Besides that, the "order of experience" imposed by Section IIIParagraph 2.1 is a questionable condition in the light of the objective of paragraph 1 of Article 27. Not only this particular “order” of "Commission experience” is not required by Article 5(3) of the Staff Regulations or for an AD6 job, but neither plays any role in the selection of the best candidates as it is totally irrelevant for that purpose. This “order” of experience also risks admitting to the internal competition candidates with less graduated experience obtained at the Commission than other candidates who were in the categories of Section IIIParagraph 2.2 in the past, usually for years, but who at the moment of applying find themselves excluded because they are, for example, AST. Such unsound eligibility approach completely denies the purpose of Article 27.
If in a hypothetical case the requirement of a minimum of 6 months of experience in the categories of Section IIIParagraph 2.2 were considered appropriate for the recruitment of general AD6 personnel, there could never be a legitimate interest of the service justifying the exclusion of such personnel on the basis of an arbitrary “order of experience”. Any such legitimate interest would be disproportionately departing from Article 27.
By contrast, by allowing any AST personnel with the required qualifications (in line with Section 2.3) to be eligible for the internal AD6 competition the Commission would promote the recruitment of officials ‘on the broadest possible basis’, the need for which has been recognized on numerous occasions in the case-law. The Commission has already followed the right approach consistent with Article 27 of the Staff Regulations in 2008, when AST personnel were eligible for an internal AD5 competition in 2008 (see above point 10 of this appeal).
For all the above, there cannot be any legitimate interest in justifying the conditions of Section IIIParagraphs 2.1 and 2.2 in the light of Article 27 of the Staff Regulations. The Commission cannot deny that suitable personnel exists currently serving in AST positions in the different DGs and services of the Commission, and such personnel are qualified for carrying out the tasks of an AD6 job.
Therefore, Section IIIParagraphs 2.1 and 2.2 of the Notice are against Article 27 of the Staff Regulations and should be repealed.
(iii) Violation of the Principle of Equal Treatment
It is settled case-law that the principle of equality requires that comparable situations must not be treated differently. EU Courts have also stated that the breach of the principle of equality presupposes that the treatment concerned entails disadvantages to some persons as opposed to others.
A breach of the principle of equal treatment, applicable to the law relating to the employment of European Union officials, occurs when two categories of persons in the service of the European Union whose factual and legal circumstances disclose no essential difference are treated differently and that difference in treatment is not objectively justified. Moreover, in matters such as personnel selection, where a large discretion is used, there is a breach of the principle of equal treatment when an Institution carries out an arbitrary or manifestly disproportionate differentiation in relation to the objective to be attained by the law.
By applying Section IIIParagraphs 2.1 and 2.2 of the Notice the Commission not only violates Article 27 of the Staff Regulations, but also the principle of equal treatment as the Commission is discriminatingly applying Article 29(1)(d) and Article 5(3)(b) of the Staff Regulations in favour of officials or temporary AD or contract agents GFIV and against other personnel, for example the AST category. In other words, the Commission is unequally treating personnel where such personnel is legally and factually in the same situation.Such unequal treatment is not justified.