Judgments nº T-734/15 P of Tribunal General de la Unión Europea, September 15, 2017

• Resolution Date: September 15, 2017
• Issuing Organization: Tribunal General de la Unión Europea
• Decision Number: T-734/15 P

In Case T-734/15 P,

APPEAL against the judgment of the European Union Civil Service Tribunal (First Chamber) of 6 October 2015, FE v Commission (F-119/14, EU:F:2015:116), seeking to have that judgment set aside,

European Commission, represented by F. Simonetti and G. Gattinara, acting as Agents,

appellant,

the other party to the proceedings being

FE, represented by L. Levi and A. Blot, lawyers,

applicant at first instance,

THE GENERAL COURT (Appeal Chamber),

composed of M. Jaeger, President, M. Prek (Rapporteur) and S. Frimodt Nielsen, Judges,

Registrar: E. Coulon,

gives the following

Judgment

1 By its appeal lodged under Article 9 of Annex I to the Statute of the Court of Justice of the European Union, the European Commission seeks to have set aside the judgment of the European Union Civil Service Tribunal (First Chamber) of 6 October 2015, FE v Commission (F-119/14, EU:F:2015:116) (‘the judgment under appeal’), by which it annulled the decision of 17 December 2013 by which the Commission had refused to recruit FE and ordered the Commission to pay EUR 10 000 whilst dismissing the action as to the remainder.

Background to the dispute

2 The facts giving rise to the dispute are set out in paragraphs 8 to 20 of the judgment under appeal, as follows:

‘8 On 8 December 2005, the European Personnel Selection Office (EPSO) published competition notice EPSO/AD/42/05 (“the competition”) to constitute a reserve of lawyer-linguists in grade AD 7 with Polish as their main language, from which to fill vacant posts in the EU institutions (notably the Court of Justice of the European Communities) (OJ 2005 C 310 A, p. 3, “the competition notice”) …

9 In section A.I of the competition notice, headed ‘Duties’, the duties to be performed were described in the following terms:

- “Translating legal texts into Polish from at least two of the official languages of the European Union and/or revising such texts.

- Checking the Polish version of legislative texts (already translated and revised) for linguistic and legal consistency with the other language versions. Checking their drafting and compliance with formal presentational rules.

…”

10 Furthermore, Section A.II.2 of the competition notice stipulated that, in order to be admitted to the competition tests, candidates were required, as at the closing date for registration for the competition, to show that, “since completing the required abovementioned degree, [they had] had at least two years’ professional experience”.

11 [FE] applied for the competition on 27 December 2005. She stated under the heading “Professional Experience” in her application form for the competition (“the application form”) that she had six periods of professional experience with a total duration of 31 months, of which 15 months had been as a freelance lawyer-linguist for the Court of Justice, from 15 October 2004 up to the date of her application form, and three months had been as an intern in the W. law firm in Brussels (Belgium), from 1 July to 30 September 2005.

12 [FE] was admitted to the competition tests. Upon completion of its work, the selection board included her name on the reserve list for the competition, the expiry date of which had initially been fixed at 31 December 2007 but was deferred, after several extensions, to 31 December 2013, when the list definitively expired.

13 By email of 22 May 2013, [FE] was invited by DG Justice to attend for interview on 28 May, in connection with her potential recruitment to an administrator’s post in that Directorate-General …

14 In June 2013, [FE] was informed by DG Justice that she had been selected for the post of administrator and that a recruitment request had been sent to [DG Human Resources and Security (“DG Human Resources”)].

15 According to the documents on the file, in June 2013, the relevant departments of the Commission had also informed [FE] that “as the Commission was not involved in organising the competition … and the reserve list produced by that competition, on which [FE’s] name appeared, was a list of lawyer-linguists and not administrators, it was necessary to seek a derogation from the Commissioner for Human Resources and Security, as it was Commission policy not to use such lists, with notable exceptions relating to its Legal Service and certain specialised tasks in other [Directorates-General], subject to certain conditions”.

16 By email of 26 July 2013, the head of the contract law unit of DG Justice informed [FE] that DG Human Resources had given its approval for her [derogating] recruitment as an administrator [from] the reserve list of lawyer-linguists, making it clear that DG Human Resources would contact her and that she did not need to take any action before receiving an official communication from that DG.

17 At the end of August 2013, DG Human Resources asked [FE] to provide evidence of the professional experience she had had prior to the date of her application form, with reference to the eligibility condition requiring a minimum of two years’ professional experience set out in the competition notice.

18 During the period from the end of August 2013 to November 2013, [FE] had several meetings with representatives of DG Human Resources and provided various documents and explanations so as to clarify matters relating to the professional experience she had relied on in her application form. On several occasions during that period, the representatives of DG Justice confirmed their interest in recruiting her.

19 By letter of 17 December 2013, the appointing authority informed [FE] that she could not be recruited by DG Justice, on the ground that she did not meet the condition of eligibility for the competition concerning the professional experience required (“the contested decision”). According to the appointing authority, on the closing date for registration for the competition, [FE] had only 22 months of professional experience, rather than the two years required by the competition notice. In arriving at that conclusion the appointing authority had only given credit for seven months of professional experience as a “freelance translator” for the Court of Justice, and two months of professional experience as an intern in the W. law firm, which did not correspond to the 15 months and 3 months which the applicant had declared in the application form. The contested decision also stated that, in relation to the “freelance [work] for the [Court of Justice]”, the duration of [FE’s] professional experience had been calculated on the basis of the total number of pages translated (721) and a standard rate of 5 pages per day, regarded as adequate by the Commission and considerably below the rate of 8 pages per day used by the Court of Justice.

20 On 14 March 2014, the applicant lodged a complaint against the contested decision. That complaint was rejected by a decision of the appointing authority of 14 July 2014 …’

Proceedings at first instance and the judgment under appeal

3 By an application lodged at the Registry of the Civil Tribunal on 24 October 2014, FE brought an action, registered under number F-119/14, seeking, first, annulment of the decision of 17 December 2013 by which the Commission refused to recruit her (‘the contested decision’) and of the decision of 14 July 2014 rejecting her claim and, second, to have the Commission ordered to pay the sum of EUR 26 132.85, together with default interest, as well as pension scheme contributions as from September 2013, and a symbolic euro for the non-material harm caused. She also claimed for the Commission to be ordered to pay the costs.

4 By the judgment under appeal, the Civil Service Tribunal annulled the contested decision and ordered the Commission to pay FE the sum of EUR 10 000, whilst dismissing the action as to the remainder. It ordered the Commission to bear its own costs and to pay the costs incurred by FE.

5 The Civil Service Tribunal observed, inter alia, that, unlike the case-law relied on by the Commission, ‘in the present case, while the competition notice undoubtedly required a minimum of two years’ professional experience in the field of translation or, more realistically, legal translation, it contained no explanation as to how professional experience acquired as a self-employed individual was to be taken into account or quantified in terms of duration’ and that, ‘the … argument that the minimum duration of two years’ professional experience must, in the specific case of the competition, be understood as relating, by definition, to professional activity carried out on a full-time basis, the duration of which, moreover, is to be calculated in the manner set out in the contested decision … cannot be accepted’ (paragraphs 51 and 56 of the judgment under appeal).

6 The Civil Service Tribunal also held that, ‘in adopting the contested decision, the appointing authority overstepped its competence to review compliance with the additional condition of eligibility relating to professional experience and thus encroached on the competence which the competition notice had expressly reserved, in this regard, to the selection board, as well as the prerogatives of autonomy and independence of competition selection boards’ (paragraph 71 of the judgment under appeal).

7 Lastly, the Civil Service Tribunal held that, ‘the analysis of [FE’s] professional experience carried out by the Commission with a view to calculating, in accordance with the principles used by its translation services, the number of pages translated by [FE] during her period of activity as a freelance lawyer-linguist to the Court of Justice, as if it was the work of a Commission “translator” that was in question, even supposing it to be plausible, has no basis in any relevant legal provision which can be relied upon directly against [FE] and, accordingly, constitutes a manifest error on the part of the appointing authority which can be readily detected by the [Civil Service] Tribunal’ (paragraph...