CELEX: 62007TJ0043
Appeals
Staff cases
Open competition
Rejection of the appellant’s candidature
Composition of the selection board for the oral tests
Principle of equal treatment
New pleas in law
Error of law
Appeal in part unfounded and in part founded
Referral back to the Civil Service Tribunal

By his appeal brought pursuant to Article 9 of Annex I to the Statute of the Court of Justice, the appellant, Mr Neophytou,
requests the Court of First Instance to set aside the judgment of the European Union Civil Service Tribunal (Third Chamber)
of 13 December 2006, in Case F‑22/05
Neophytou
v
Commission
[2006] ECR‑SC II‑A‑1‑617, ‘the judgment under appeal’, by which the Tribunal dismissed his action for annulment of the decision
of the selection board of open competition EPSO/A/1/03 not to include his name on the reserve list of successful candidates
in that competition.

Facts
The facts of the dispute were set out in paragraphs 2 to 14 of the judgment under appeal, as follows:
‘2      The appellant was a candidate in open competition EPSO/A/1/03 to constitute a reserve of assistant administrators (A8) having
Cypriot citizenship (OJ 2003 C 120 A, p. 13).
3      That competition covered four fields … Candidates could choose only one of those fields … The applicant chose the field of
“European public administration”.
4      … the competition notice stated that the nature and number of the tests were as follows: three pre-selection tests … , two
written tests … and an oral test …
…
6      The corrigendum to the competition notice published on 6 June 2003 (OJ 2003 C 132 A, p. 33) stated, in relation to the field
of “European public administration”, that only those applicants who obtained the 30 best marks out of all those who obtained
the pass mark in written tests … would be asked to take part in the oral test.
…
9      The provisions concerning the drawing up of a reserve list of successful candidates … were worded as follows:
“At the end of the competition, out of all the appellants who obtain the highest marks in all the written and oral tests …
, the selection board will draw up lists of the successful applicants ….”
10      The number of successful applicants of Cypriot citizenship in the field of “European public administration”, initially fixed
at 25, was then reduced to 20 in the corrigendum to the competition notice.
11      … After … marking the written tests, the selection board invited the appellant to the oral test on 8 September 2004.
12      … the selection board informed the appellant that, as his final results were insufficient, it was not possible for his name
to be included on the reserve list of successful candidates. According to the selection board, the applicant obtained a final
mark of 58 points, whereas the candidates who obtained the 20 highest marks for the written and oral tests had an overall
mark of at least 61.
13      … the applicant submitted a complaint under Article 90(2) of the Staff Regulations of Officials of the European Communities
(‘the Staff Regulations’) against the decision of the selection board not to include his name on the reserve list. The applicant
maintained, firstly, that the composition of the selection board had varied in the course of the oral tests, infringing the
candidates’ right to equal treatment. Three selection board members were present on 8 September 2004, the day of his interview,
whereas on all the other days (that is, on 9, 10, 15 and 16 September 2004) the board was composed of four members. In the
applicant’s opinion, the composition of the board should have been the same for all candidates …
14      … the appointing authority dismissed the applicant’s complaint on the ground, inter alia, that there was no unjustified difference
between the treatment of the applicant and that of the other candidates ...’.

The procedure at first instance
By an action lodged at the Court of First Instance on 21 April 2005, the applicant requested the Court to annul the decision
of the selection board not to include his name on the reserve list for the abovementioned competition.
By order of 15 December 2005, the Court of First Instance, pursuant to Article 3(3) of Council Decision 2004/752/EC, Euratom
of 2 November 2004 establishing the European Union Civil Service Tribunal (OJ 2004 L 333, p. 7), referred this case to the
European Union Civil Service Tribunal.
In support of his application, the applicant put forward three pleas in law.
The second and third pleas, alleging infringement of the notice of competition and of the limits of the selection board’s
discretion, respectively, were dismissed as unfounded by the Civil Service Tribunal. That part of the judgment under appeal
is not covered by this appeal.
The first plea, alleging infringement of the principle of non‑discrimination, was in two parts. In the first part, the applicant
maintained that the composition of the selection board varied in the course of the oral tests. In the second part, he challenged
the presence on the selection board of both full and alternate members at the same time.
At the stage of the reply, the applicant put forward two new submissions. He stated, first, that alternate members can replace
full members only in exceptional circumstances and where there is some compelling reason why the full member is unable to
attend. According to the applicant, that was not the case here. The applicant, second, challenged the manner in which his
interview with the selection board was conducted, alleging that the interview was delayed by 20 minutes, shortened by 15 minutes
and disorganised in that it was conducted by the chairman alone, who asked the appellant fewer questions than were asked of
the other candidates.
At the end of the written procedure, the Tribunal adopted measures of organisation of procedure and requested the Commission
to produce a copy of the decision establishing the composition of the selection board of open competition EPSO/A/1/03 and
the records of the oral tests (in particular those parts of the record relating to the composition of the selection board
for each day of the oral tests).
Following that request, the Commission lodged the documents requested. By letter of 29 May 2006, the Registrar of the Tribunal
sent them to the applicant and informed him that he would have an opportunity to comment on those documents at the hearing.
At the hearing on 21 June 2006, the applicant put forward additional submissions. In that regard, paragraph 27 of the judgment
under appeal includes the following findings:
‘Firstly, he maintained that the selection board had not been lawfully appointed by the Commission. Next, he complained that,
without any explanation being given by the administration, the number of members present on the selection board was considerably
lower than the number of members appointed. The applicant further stated that all the oral tests were presided over by an
alternate chairman without any explanation being given for the absence of the chairman proper. Moreover, the applicant observes
that on the Commission’s website Mr Carle is shown as the chairman of the selection board whereas, according to the attendance
sheets for the members of the selection board produced by the Commission to the Tribunal at its request, Mr Carle was the
alternate chairman. Lastly, the applicant challenged the fact that, at the time of the oral tests, Mr Carle was the chairman
of the selection board when he was no longer an active official of the Commission.’

The judgment under appeal
The Civil Service Tribunal held the submissions put forward in the reply relating to the replacement of full members by alternate
members and to disorganisation in the manner in which the oral tests were conducted to be admissible inasmuch as they constituted
an amplification of the first plea, relied on in its application and alleging infringement of the principle of non‑discrimination
(paragraphs 29 to 31 of the judgment under appeal). However, after classifying those submissions as the third and fourth part
of the plea, it rejected them as unfounded (paragraphs 53 to 64 of the judgment under appeal). That part of the judgment under
appeal is not covered by this appeal.
As for the submissions expressed at the hearing, they were declared to be inadmissible, at paragraphs 32 to 35 of the judgment
under appeal, for the following reasons:
‘32      … they were not relied on either directly or by implication in the application. Nor are they closely connected with the other
pleas relied on in the application.
33      Those complaints relate, in a general manner, to whether the selection board was properly constituted and are not connected
with the plea alleging infringement of the principle of non-discrimination. Examination of those complaints would not therefore
be based on an assessment of the same facts and questions of law as those put forward at the written stage of the judicial
procedure.
34      Moreover, the appellant neither specified matters of fact or of law coming to light in the course of the procedure on which
those new complaints were based, nor did he assert that he was not in a position to be aware of those matters beforehand (see,
in that regard, Case T‑141/97
Yasse
v
EIB
[1999] ECR‑SC I‑A‑177 and II‑929, paragraphs 126 to 128, and Case T‑139/99
AICS
v
Parliament
[2000] ECR II‑2849, paragraph 62).
35      They therefore constitute new pleas in law and, as such, must be dismissed as inadmissible.’
As to the merits, the Tribunal rejected the first and second parts of the first plea – alleging that the composition of the
selection board was unstable and that a full member and an alternate member were present on the board at the same time, respectively – having
considered them together on the basis that they were closely connected one with the other (paragraph 36 of the judgment under
appeal). In that regard, at paragraphs 47 to 52 of the judgment under appeal, it made the following findings:
‘47      It is apparent from both the chart showing the daily composition of the competition selection board, produced by the Commission
at the request of the Tribunal, and the Commission’s explanations at the hearing that, firstly, two members of the selection
board, namely Mr Carle, who acted as chairman, and Ms Efthymiou, a full member appointed by the appointing authority, were
present at all the oral tests. The third member of the selection board, a full member appointed by the Staff Committee, was
present on 15 and 16 September 2004 but was replaced on the other days by the alternate member. The selection board thus had
two different formations as a result of that replacement.
48      In addition, whilst the full member appointed by the appointing authority was present every day of the oral tests, the alternate
member appointed by the appointing authority was also present on those days with the exception of 8 September 2004. It follows
that there were three members in total that day, whereas there were four on the other days of the oral tests. It is to be
noted that, provided the composition of the selection board complies with the requirements under the second paragraph of Article 3
of Annex III to the Staff Regulations, the fact that full members and alternate members are present at the same time on the
selection board does not make the work or the composition of the selection board unlawful ([Case T‑290/03]
Pantoulis
v
Commission
[[2005] ECR‑SC I‑A‑241 and II‑1123], paragraph 77). Nevertheless, it is for the members of the selection board having the
right to vote to retain control over the proceedings and to make their own final assessment (see, to that effect,
Pantoulis
v
Commission
, paragraph 78). Moreover, the applicant does not maintain that the alternate member had a right to vote.
49      In spite of the changes noted in the composition of the selection board, there was, therefore, a core selection board composed
of the chairman, Mr Carle, and the full member appointed by the appointing authority, Ms Efthymiou, both of whom were present
on all days of the oral tests. Two out of the three members of the board, including the chairman, had the right to vote and
therefore contributed, as a result of their presence at all the interviews, to maintaining stability in the composition of
the selection board formations assessing the candidates’ abilities in the oral tests.
50      Lastly, as the Commission asserts, the selection board conducted all the interviews in accordance with marking criteria determined
in advance by all the members of the board, which is not contested by the applicant. The small number of candidates and of
days on which oral tests were held made it possible, moreover, for the marking criteria to be applied consistently.
51      It follows from all the foregoing that, for the purposes of the principle of non-discrimination, firstly, the composition
of the selection board was sufficiently stable to ensure that the candidates were compared and marked in an objective manner
and, secondly, the presence at the same time of full members and alternate members appointed by the appointing authority did
not make the composition of the selection board irregular.
52      The first and second parts of the plea must therefore be dismissed as unfounded.’
Consequently, the Tribunal dismissed the action in its entirety.

The appeal
A –
Procedure
By document lodged at the Registry of the Court of First Instance on 14 February 2007, the appellant brought the present appeal.
After the Commission lodged its response, the appellant was granted leave to file a reply followed by a rejoinder from the
Commission.
Acting on a report from the Judge‑Rapporteur, the Court of First Instance (Appeal Chamber) noted that no application for a
hearing to be arranged had been submitted by the parties within the period of one month from notification of the closure of
the written procedure and decided to give a ruling without an oral procedure, pursuant to Article 146 of the Rules of Procedure.
B –
Forms of order sought
The appellant claims that the Court of First Instance should:
–        set aside the judgment under appeal and, consequently, annul the contested decision of the appointing authority;
–        order the Commission to pay the costs.
The Commission contends that the Court of First Instance should:
–        dismiss the appeal;
–        order the appellant to pay the costs of the appeal.
C –
Law
In support of his claims that the judgment under appeal should be set aside, the appellant raises two pleas. He claims that
the Tribunal erred in law in finding, first, that his submissions put forward at the hearing at first instance were not admissible
and, second, that there was no infringement of the principle of equal treatment, since the composition of the selection board
was considered to be sufficiently stable and correct despite the presence at the same time of full members and alternate members
appointed by the appointing authority. The Commission is of the view that the appeal must be declared to be inadmissible or,
at least, be dismissed as unfounded.
1.
Admissibility of the appeal
Pointing out that the appellant may not simply repeat before the higher court arguments already submitted unsuccessfully to
the lower court, or introduce for the first time at the stage of an appeal new pleas in law or arguments not put to the lower
court, the Commission contends that the present appeal is inadmissible.
The Commission raises the question whether an appeal limited to the rejection of two parts of the first plea can succeed,
when the operative part of the judgment, dismissing the action, is also based on the rejection of the other two parts of the
first plea and on the rejection of the second and third pleas and when the appeal does not challenge any of those parts of
the judgment. In addition, the Commission questions whether the appeal meets the requirements of clarity, which are a condition
of admissibility.
In that regard, it should be pointed out that, where an appellant challenges the interpretation or application of Community
law by the judges at first instance, the points of law examined at first instance may be the subject of new arguments in the
course of an appeal. If an appellant could not base his appeal on pleas in law and arguments already relied on at first instance,
an appeal would be deprived of its purpose. However, it is clear from Article 11(1) of the Annex to the Statute of the Court
of Justice and Article 138(1)(c) of the Rules of Procedure that an appeal must indicate precisely the contested elements of
the judgment which the appellant seeks to have set aside, and also the legal arguments specifically advanced in support of
that appeal (see, to that effect, Case C‑352/98 P
Bergaderm and Goupil
v
Commission
[2000] ECR I‑5291, paragraph 34, and the order in Case C‑488/01 P
Martinez
v
Parliament
[2003] ECR I‑13355, paragraphs 39 and 40 and the case‑law cited).
In the present case, it is clear from the appeal that the appellant complains that the Tribunal erred in finding, at paragraphs 32
to 34 of the judgment under appeal, that the submissions made at the hearing at first instance were inadmissible and, at paragraphs 47,
48, 50 and 51 of the judgment under appeal, that there had been no infringement of the principle of equal treatment relied
on in the originating application, and in holding that the composition of the selection board was sufficiently stable and
that the presence at the same time of full members and alternate members appointed by the appointing authority did not make
its composition irregular. The appellant thus indicated precisely the elements of the judgment under appeal criticised, while
presenting legal arguments for the purpose of supporting his claim that the judgment under appeal should be set aside.
It follows that the appeal must be declared to be admissible.
2.
The merits of the appeal
With regard to the two pleas put forward in support of the appeal, it is appropriate, in the circumstances of the present
case, to examine first the plea alleging infringement of the principle of equal treatment.
(a)     The plea alleging infringement of the principle of equal treatment
Arguments of the parties
The Commission pleads the inadmissibility of the present plea. The first two parts of the plea were analysed at paragraphs 42
to 50 of the judgment under appeal, of which the appellant, in his appeal, contests only two sentences: one in paragraph 47
and the other in paragraph 48 of the judgment under appeal. Paragraphs 42 to 50 of the judgment under appeal are the basis
for paragraph 51, which is merely the conclusion which follows from those paragraphs. It is not enough for the appellant to
challenge paragraph 51: he has to explain why the supporting reasons are wrong. The appeal is thus incapable, in that respect,
of affecting the operative part of the judgment under appeal.
With regard to changes which occurred in the composition of the selection board, the Commission contends that the appellant
seeks to have the Court of First Instance decide on the facts at the appeal stage, which is inadmissible, since the appellant
does not allege that the Tribunal distorted the evidence. The same is true of the question whether alternate members voted
or not, since that question of fact cannot be examined on appeal.
Although the appellant appears to be arguing that the Tribunal distorted the evidence, that assertion is not substantiated.
In particular, the appellant never submitted to the judges at first instance its point that in five days there were three
different formations of the selection board and not two as the judgment under appeal assumed. That point was raised for the
first time on appeal.
As regards the admissibility of the plea, the appellant criticises paragraph 47 of the judgment under appeal, according to
which the selection board had two different formations for the interviews. That finding is crucial, since it is the basis
for the conclusion, set out in paragraph 51 of the judgment under appeal, that the composition of the selection board was
sufficiently stable. The error is fundamental since, if corrected, the conclusion of the Tribunal might have been different.
The appellant adds that paragraph 48 of the judgment under appeal contains the erroneous finding that he did not maintain
that the alternate member had a right to vote. The fact that one alternate member signed the attendance list next to the full
members constitutes, according to the appellant, a sufficient proof that the alternate member participated in the oral tests
in the same way as the full members.
With regard to the merits, the appellant alleges that the Tribunal erred in finding, at paragraph 47 of the judgment under
appeal, that the selection board had two different formations, when it is clear from the attendance list produced by the Commission
at first instance that in five days there were three different formations of the selection board.
The appellant also challenges the finding at paragraph 48 of the judgment under appeal that he did not maintain that the alternative
member had a right to vote. In that regard, he asserts that he could not in fact know whether the alternate member had a right
to vote or not. The Commission, for its part, was unable to establish that he had not voted. The important thing is whether
the presence of an alternate member, alongside ‘his’ corresponding full member, influenced the voting of the other members.
In that context, the appellant claims that it is impossible for him to establish whether the alternate member actually voted,
since he was not present during the deliberations and has in his possession no relevant documents. According to the documents
which the Commission submitted to the Tribunal, the alternate member did participate alongside the full member and he did
not abstain from the discussions or from voting on the same basis as a full member. According to the principle of transparency
and good administration, it is for the Commission to prove the contrary.
The appellant adds that the conduct of the oral tests led to considerable confusion. In that context, he states, inter alia,
that the submissions which he put forward at the hearing at first instance, criticising the finding, in paragraph 50 of the
judgment under appeal, that he did not contest that the selection board conducted all the interviews in accordance with marking
criteria determined in advance by all the members of the board. According to the appellant, in paragraph 2 of the reply at
first instance – which records the disorganisation in the way his interview was conducted, and in particular the unequal number,
compared with other interviews, of the questions asked by the chairman of the selection board – the contrary is argued.
Lastly, the Tribunal failed to state sufficient reasons for the judgment under appeal in view of the particular features of
the present case.
The Commission contends, with regard to the merits, that it follows from paragraph 47 of the judgment under appeal read in
conjunction with paragraphs 48 and 49, that the appellant’s criticism of the last sentence of paragraph 47 is unfounded. The
content of the Commission’s documents corresponded precisely with the findings at paragraph 47 of the judgment under appeal.
In any event, the appellant cannot simply argue that neither party had proved whether the alternate had voted or not. The
legal requirement is that the alternate must not vote if the full member is present. The appellant accepts that he is unable
to establish whether the alternate member voted.
Findings of the Court
–       Admissibility
With regard to the Commission’s argument alleging that the appellant failed to put before the Tribunal his submission that
in five days there were three different formations of the selection board and not two as found in the judgment under appeal,
it must be observed that, in the first part of its first plea at first instance, the appellant relied on the alleged instability
in the composition of the selection board. In order to examine the merits of that plea, the Tribunal had to, and did, verify
the composition of the selection board throughout the conduct of the oral tests and determine whether that composition was
sufficiently stable. In that context, the fact that the appellant, in his original pleading only claimed that there were two
different compositions of the selection board cannot preclude the Tribunal from finding, on the basis of evidence before it,
that the number of different formations of the selection board was greater, nor preclude the appellant himself from maintaining
that, in the light of the evidence, that finding should have been made.
In order to challenge the interpretation or application of Community law by the Tribunal, the points of law examined at first
instance may be the subject of new arguments in the course of an appeal. If an appellant were to be unable to base his appeal
on pleas in law and arguments already relied on at first instance, an appeal would lose part of its purpose. In that context,
the appellant, on appeal, may rely on submissions based on findings of fact and on the assessment of those facts in the judgment
under appeal where the appellant claims that the Tribunal has made findings which the documents in the file show to be substantially
incorrect or that it has distorted the clear sense of the evidence before it (see, to that effect and by analogy, Case C‑229/05 P
PKK
and
KNK
v Council [2007] ECR I‑439, paragraphs 32 to 35).
In the present case, by the above submission, the appellant alleges that the Tribunal erred in law, inasmuch as it wrongly
rejected the first part of the first plea relied on at first instance. In that context, it claims, essentially, that the Tribunal,
in paragraph 47 of the judgment under appeal, distorted the picture of the daily composition of the competition selection
board, produced by the Commission at the request of the judges at first instance, from which it was apparent that there were
three different compositions of the selection board and not the two found by the Tribunal in the judgment under appeal. In
the light of the findings and the case‑law set out at paragraphs 40 and 41 above, that submission is admissible and must be
examined as to the merits.
As regards the changes which occurred in the composition of the selection board and the question whether or not the alternate
member of the selection board took part in the vote, the Commission contends that the appellant is seeking to obtain a ruling
from the Court of First Instance on questions of fact at the appeal stage, which is, however, inadmissible.
In that regard, it should be noted that, pursuant to Article 11(1) of Annex I to the Statute of the Court of Justice, an appeal
is to be limited to points of law, meaning that the Tribunal has exclusive jurisdiction to find and appraise the relevant
facts and assess the evidence. The appraisal of those facts and the assessment of that evidence thus do not, save where the
facts and evidence are distorted, constitute a point of law which is subject, as such, to review by the Court of First Instance
on appeal (see, to that effect, Case C‑193/06 P
Nestlé
v
OHIM
[2007] ECR I‑0000, paragraph 53 and the case‑law cited).
However, contrary to the argument put forward by the Commission, the present plea seeks, in fact, to challenge the Tribunal’s
reasoning that the selection board correctly discharged ‘its obligation to ensure stability in its composition [in order to
ensure respect for] the candidates’ fundamental right to equal treatment or its duty to ensure that the choice made among
them is objective’ (paragraph 44 et seq. of the judgment under appeal). Therefore, the appellant challenges the characterisation
by the judges at first instance of the legal nature of the facts in order to determine the legal consequences thereof. That
is a question of law which may be raised in the context of an appeal (see, to that effect, Case C‑136/92 P
Commission
v
Brazzelli Lualdi and Others
[1994] ECR I‑1981, paragraph 49, and Case C‑412/05 P
Alcon
v
OHIM
[2007] ECR I‑3569, paragraphs 38 to 40).
That is particularly true with regard to the legal question whether the established presence at the deliberations of the selection
board of an alternate member alongside ‘his’ corresponding full member might be such as to influence improperly the voting
of the selection board and, accordingly, to render that vote unlawful.
By its submission directed against the finding, in paragraph 50 of the judgment under appeal, that ‘the selection board conducted
all the interviews in accordance with marking criteria determined in advance by all the members of the board, which is not
contested by the appellant,’ the appellant maintains, essentially, that he contested that allegation in the reply which he
filed at first instance. Thus, he claims that the Tribunal distorted that document. Consequently, that submission must be
declared to be admissible.
Lastly, with regard to the last sentence of paragraph 48 of the judgment under appeal to the effect that ‘the appellant does
not maintain that the alternate member had the right to vote’, it should be pointed out that the submission criticising that
sentence does not seek, contrary to the argument supported by the Commission, a pure finding of fact which would, as such,
be excluded from the appeal proceedings. What the appellant is actually claiming by that submission is that, since it was
impossible for him to know whether the alternate member of the selection board voted or not, the mere presence of that member
within the selection board at the same time as ‘his’ full member must be considered to be sufficient to vitiate the selection
board’s deliberations. The submission is, thus, admissible inasmuch as it relates to an error of law by the judges at first
instance.
The present plea must thus be declared admissible in its entirety.
–       Substance
It is necessary to examine, first, the submission alleging that the Tribunal failed to take account of the fact that the established
presence of an alternate member alongside the full member whom he replaces was at least capable of influencing the vote of
the other members and the fact that it was for the Commission, in accordance with the principles of transparency and sound
administration, to prove that that alternate member neither voted nor unduly influenced the deliberations of the selection
board.
In that regard, it must be held that the appellant did not put forward at first instance – or, moreover, in the context of
his appeal – any matters capable of serving as evidence of the actions which he imputes to the alternate member referred to
above. Nor did he even request the Tribunal to hear members of the selection board as witnesses on that point, pursuant to
Article 65(c) of the Rules of Procedure of this Court – applicable
mutatis mutandis
to the Civil Service Tribunal pursuant to Article 3(4) of Decision 2004/752 until the Tribunal’s own rules of procedure came
into force –, or to request those members, by way of measures of organisation of procedure pursuant to Article 64(3)(c) of
that regulation, to provide information relating thereto. The appellant thus did not succeed in reversing the burden of proof
which he had to bear in that context.
In those circumstances, the submission put forward by the appellant is tantamount to a claim that the mere fact that an alternate
member is present in the selection board at the same times as ‘his’ full member is sufficient, in itself, to vitiate the work
and the composition of the selection board, by reason of the fact that there is nothing to ensure that the alternate member
refrains from expressing his opinion on the performance of the candidates or from taking part in the vote. Thus, the appellant
confines himself, essentially, to pleading the mere risk arising from the presence of both full and alternate members at the
same time.
Faced with such an argument, the Court of First Instance decided in Case T‑290/03
Pantoulis
v
Commission
[2005] ECR‑SC I‑A‑241 and II‑1123, paragraphs 62, 77 and 78, that such simultaneous presence does not render the proceedings
and composition of the selection board unlawful, as long as, in such circumstances, the alternate member does not have a vote
(see, also, Case T‑100/04
Giannini
v
Commission
[2008] ECR‑SC I‑A‑000, paragraph 210).
The Tribunal was therefore justified in rejecting the second part of the plea alleging infringement of the principle of equal
treatment.
Next, with regard to the submission alleging that the judges at first instance failed to take account of the instability of
the selection board, since that board had three different formations rather than only the two erroneously referred to at paragraph 47
of the judgment under appeal, it must be observed that the Tribunal, at paragraphs 47 and 48 of the judgment under appeal
(read in conjunction with paragraphs 11 and 13), described the different selection board formations indicating that the chairman
and the full member appointed by the appointing authority had been present at all the oral tests, whilst the full member appointed
by the staff committee was present only on 15 and 16 September, his alternate member having replaced him on 8, 9 and 10 September
adding, however, that the alternate member appointed by the appointing authority was also present at the same time as ‘his’
full member, on all days, except 8 September 2004, which was the day of the appellant’s oral test.
As is clear from that description of the manner in which the oral tests were conducted, the Tribunal was aware of the fact
that the selection board had in fact sat in three different formations (first: chairman, full member appointed by the appointing
authority and full member appointed by the staff committee; second: chairman, a full member and an alternate member both appointed
by the appointing authority and a full member appointed by the staff committee; third: chairman, full members and an alternate
member appointed by the appointing authority and an alternate member appointed by the staff committee).
Although the Tribunal none the less stated in the last sentence of paragraph 47 of the judgment under appeal that the selection
board had only ‘two different formations’, that is clearly explained, as the Commission correctly states, by the lack of relevance,
for the work of the selection board, of the presence of an alternate member alongside ‘his’ full member, and paragraph 48
of the judgment under appeal expressly stated that that alternate member did not have the right to vote.
In those circumstances, the Tribunal did not err in law in finding, at paragraphs 49 and 51 of the judgment under appeal,
that there was a core selection board composed of the chairman and the full member appointed by the appointing authority,
both of whom were present on all days of the oral tests, thereby ensuring sufficient stability in the composition of the selection
board formations.
With regard, first, to the submission alleging that the Tribunal, in paragraph 50 of the judgment under appeal, distorted
paragraph 2 of the reply filed at first instance, suffice it to observe that that passage of the reply includes no reference,
not even an implied one, to the lack of marking criteria fixed by the selection board with a view to harmonising the manner
in which the oral tests were conducted, so that the Tribunal cannot be criticised for finding that the appellant had not contested
that point. There can, thus, be no question of a distortion of the content of the reply filed at first instance. Second, the
argument concerning the disorder which allegedly reigned during the appellant’s oral test and the unequal number, in comparison
with the other interviews, of questions asked by the chairman formed part of the fourth part of the plea alleging infringement
of the principle of equal treatment. The appellant has refrained from directing his appeal against paragraphs 60 to 64 of
the judgment under appeal in which the Tribunal rejected that fourth part of the plea.
Lastly, the submission alleging that insufficient reasons were stated in support of the judgment under appeal manifestly cannot
be upheld. As is apparent from the foregoing considerations, the Tribunal provided a statement of reasons sufficient to allow
this Court to exercise its power to review the appraisal, by the judges at first instance, of the first and second parts of
the plea alleging infringement of the principle of equal treatment relied on at first instance.
It follows that the plea alleging that the Tribunal infringed the principle of equal treatment must be rejected.
(b)     The plea concerning the admissibility of the submissions put forward at the hearing at first instance
Arguments of the parties
With regard to the admissibility of the plea, the appellant points out that the Tribunal requested the Commission to produce
certain documents, and he had the opportunity to comment on them at the hearing. It was on the basis of those documents, of
which he had no previous knowledge, that the appellant put forward the submissions presented at the hearing. In his appeal,
he challenges the Tribunal’s finding that those new submissions were inadmissible, objecting that they were based, as was
moreover stated at the hearing at first instance, on facts which came to light for the first time after the written stage
of the proceedings. Furthermore, the submissions at issue are closely connected to the plea raised in the original application
alleging infringement of the principle of equal treatment. According to the appellant, this is a criticism of the judgment
under appeal, and therefore the appeal must, on that basis, be declared admissible.
With regard to the substance of the case, the appellant states that he suggested to the Tribunal, for the purpose of establishing
the facts, that it obtain the minutes of the oral tests, in order to determine whether his interview was conducted in the
spirit of the competition. Following the measures of organisation of procedure ordered at first instance, the Commission produced
the decision establishing the composition of the selection board of the competition in question and the minutes of the oral
tests, those documents having permitted the appellant to make for the first time the submission put forward at the hearing.
In declaring those submissions to be inadmissible, the Tribunal distorted the evidence contained in those documents concerning
irregularities affecting the appointment and composition of the selection board. In any event, the Tribunal was under an obligation
to raise of its own motion the points contained in the submission concerning those irregularities.
Moreover, each of the submissions put forward at the hearing at first instance must be declared to be founded.
The Commission states, concerning the admissibility of the plea, that paragraphs 32 to 34 of the judgment under appeal concern
exclusively the submissions put forward at the hearing and held to be inadmissible by the Tribunal. Those paragraphs concern
the plea alleging infringement of the principle of equal treatment which the judges at first instance dismissed as unfounded
on the evidence contained in the application and the reply. The appellant does not explain how the result would have been
different if the submissions put forward at the hearing had been held to be admissible. Even if the appeal were to show that
the lower court had erred in law, the appeal could be upheld only if the element vitiated by error is essential for the operative
part of the judgment under appeal. The Commission thus contends that this Court should dismiss the appeal, since, even if
the appellant’s argument concerning paragraphs 32 to 34 of the judgment under appeal were correct, it would have no impact
on the operative part of that judgment.
With regard to the appellant’s assertion that the submissions made at the hearing should have been held to be admissible inasmuch
as, first, they are based on facts which came to light for the first time during the proceedings or, second, they are closely
connected to the plea alleging infringement of the principle of equal treatment, the Commission maintains that the question
of when a matter arose or whether an argument is connected with an existing plea is one which falls within the discretion
of the judge at first instance. Those are questions of fact, which cannot be examined in the context of the present appeal
proceedings, since the appellant has not established any distortion of the facts of this case by the judges at first instance.
To the extent that the submissions put forward at the hearing at first instance allege breaches of essential procedural requirements,
in that the general composition of the selection board was not correct, the Commission contends that reliance on them in the
course of proceedings is, in any event, rendered inadmissible by the requirement of a prior complaint, pursuant to Article 90
of the Staff Regulations, and by the principle of consistency between that complaint and the application according to which
a plea which has not been raised in the administrative proceedings, cannot be relied on in the judicial proceedings.
In fact, according to the Commission, the appellant is inviting the Court of First Instance to consider the merits of the
submissions held to be inadmissible at first instance. This cannot be the subject of an appeal, particularly where the submissions
involve questions of fact. An argument of this kind could only be considered on appeal in the context of a distortion of the
evidence by the Tribunal. The appellant has not, however, established that there was such distortion.
Indeed, none of the submissions put forward by the appellant at the hearing at first instance is legally founded.
Findings of the Court
–       Admissibility
It must be observed that what the appellant is essentially and primarily attacking is infringement by the judgment under appeal
of the first paragraph of Article 48(2) of the Rules of Procedure – applicable
mutatis mutandis
to the Civil Service Tribunal pursuant to Article 3(4) of Decision 2004/752 until the Tribunal’s own rules of procedure came
into force – in maintaining that the submissions put forward at the hearing at first instance were based, as was, moreover,
stated at the hearing, on facts which were revealed for the first time after the written stage of the judicial procedure.
He adds that the Tribunal should, moreover, have held that those submissions were closely connected with the other pleas alleging
infringement of the principle of equal treatment.
Contrary to the argument advanced by the Commission, when deciding whether a submission is to be classified as a new plea,
within the meaning of the first paragraph of Article 48(2) of the Rules of Procedure, or a permissible amplification of a
plea put forward at the appropriate time, the first instance court does not proceed to an assessment of the facts, but determines
their legal nature and establishes the legal consequences thereof. Such a legal classification of the facts is a question
of law which may be raised in the context of an appeal (see paragraph 45 above). It follows that the plea cannot be held to
be inadmissible in that respect.
The same is true of the argument alleging that the plea is inoperative, since the appellant has failed to establish that his
action would not have been dismissed by the Tribunal if the submissions put forward at the hearing at first instance had been
held to be admissible.
In that regard, it is sufficient, first, to point out that, in the judgment under appeal, the Tribunal did not examine the
merits of the submissions at issue and, second, to note that it cannot be ruled out that those submissions, if they were admissible
and well founded, would justify the annulment of the appointing authority’s contested decision. This Court would be in a position
to express a view on the merits of the submissions at issue, pursuant to Article 13(1) of Annex I to the Statute of the Court
of Justice, only after upholding the appeal, finding that there is a triable dispute and disposing of the case. In those circumstances,
the appellant cannot be required to anticipate those steps, at the stage of considering admissibility, and establish that
the judgment under appeal would have upheld his action if the submissions at issue had been declared to be admissible.
It follows that the plea by which the appellant alleges that the judges at first instance erred in law by holding that the
submissions which he had put forward at the hearing at first instance were inadmissible must be held to be admissible.
–       Substance
The appellant alleges that the Tribunal, first, infringed the first paragraph of Article 48(2) of the Rules of Procedure by
failing to take account of the fact that the submissions at issue were based on documents which the Commission produced only
in the course of the proceedings and, second, failed to recognise that the submissions at issue must be held to be admissible
on the ground that they were closely connected with the other plea alleging infringement of the principle of equal treatment.
In order to assess the merits of that argument, it must be recalled that the first paragraph of Article 48(2) of the Rules
of Procedure prohibits the introduction of ‘new pleas’ in the course of the proceedings unless they are based on elements
which come to light in the course of the procedure and that the same applies to a submission made in support of a plea in
law (Case T‑231/99
Joynson
v
Commission
[2002] ECR II‑2085, paragraph 156). Moreover, that provision in no way excludes the possibility that the elements may have
been discovered, as in the present case in the context of a measure of organisation of procedure (Joined Cases C‑238/99 P,
C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P
Limburgse Vinyl Maatschappij and Others
v
Commission
[2002] ECR I‑8375, paragraph 370). Lastly, the time-bar laid down by that provision inasmuch as it restricts the interested
party’s ability to put forward all matters necessary for the success of its claims, should be interpreted restrictively (see,
to that effect, Case T‑32/91
Solvay
v
Commission
[1995] ECR II‑1825, paragraph 40).
In the present case, it is necessary to note that, at the close of the written procedure at first instance, the Tribunal requested
the Commission to produce the decision establishing the composition of the selection board at issue, the records of the oral
tests and, in particular, the documents indicating the composition of the selection board for each day of the oral tests (see
paragraph 9 above). In response to that request, the Commission filed the requested documents (see paragraph 10 above). Having
been informed by the Tribunal that it would have the opportunity to comment on those documents at the hearing at first instance,
the appellant essentially put forward, at the hearing of 21 June 2006, a number of new submissions, five in all (see paragraphs 27
and 35 of the judgment under appeal), which, in his appeal, he claims were based on the documents produced by the Commission
in the course of the proceedings.
In order to determine whether the judges at first instance distorted the evidence contained in the documents at issue by holding
the submissions put forward at the hearing at first instance to be inadmissible, it is necessary for this Court to examine
whether the case‑file at first instance and, in particular, the documents filed by the Commission are such as to allow this
Court to establish the meaning and scope of those submissions and to review whether the Tribunal clearly erred in its reading
and assessment of those documents (see, to that effect, Case C‑326/05 P
Industrias Químicas del Vallés
v
Commission
[2007] ECR I‑6557, paragraphs 57 to 60).
With regard to the submission alleging that the appointment of the selection board was unlawful, it is apparent that it was
clearly based solely on the ‘Note for the attention of Mr Erik Halskov, Director pro tem of EPSO’ of 18 August 2003, which
is the first of the documents filed by the Commission at the request of the Civil Service Tribunal. That note, written by
a head of unit, contains proposals for the appointment of the eight selection boards for ‘Competition EPSO/A/1‑10/03 (Assistant
administrators–A 8)’, those proposals having been accepted the same day by Mr Halskov who merely appended his signature to
the note. There is nothing on the case‑file to indicate that the appellant was in a position to put forward that submission
prior to the hearing at first instance.
In that regard, it is necessary to point out that neither the selection board for the competition nor the Commission sent
the note to the appellant during the pre-litigation phase of the proceedings on their own initiative. In view of the presumption
of legality operating in respect of the decision concerning the appointment and composition of the selection board, the appellant,
who initially made no complaint concerning the instability of the selection board during the oral tests, had, in particular,
no reason to call into question the legality of the appointment and composition of the selection board or to claim, at the
stage of his administrative complaint, that the note of 18 August 2003 or other documents produced later by the Commission
in the course of the proceedings should be communicated to him.
The Tribunal thus erred in law, in paragraph 34 of the judgment under appeal, when it held that submission to be late and
thus inadmissible pursuant to the first paragraph of Article 48(2) of the Rules of Procedure.
The same is true of the submission alleging that the number of members present on the selection board was substantially lower
than the number of appointed members. That submission was clearly based on the same note of 18 August 2003, from which it
is apparent that both the full and the alternate members of the selection board at issue numbered five, and nothing in the
case‑file indicates that the appellant was in a position to make it prior to the hearing at first instance.
With regard to submissions that all the oral tests took place in the presence of the alternate chairman (Mr Carle), without
any explanation being given for the absence of the full chairman (Mr Van Hövell), and that the Commission’s website presented
Mr Carle as the full chairman of the selection board while Mr Carle was only the alternate chairman, the Tribunal itself states,
at paragraph 27 of the judgment under appeal, that Mr Carle was present as the alternate chairman ‘according to the attendance
sheets for the members of the selection board produced by the Commission to the Tribunal at its request’. According to the
case‑file, those submissions were clearly based solely on comparing the attendance sheet with the website of the Commission,
and there is nothing to indicate that the appellant was in a position to make them prior to the hearing at first instance
(see paragraphs 79 and 80 above). The Tribunal thus also erred in law in holding, at paragraph 34 of the judgment under appeal,
that those submissions were inadmissible.
However, that is not true of the last of the submissions put forward at the hearing at first instance, alleging that Mr Carle
presided over the selection board when he was no longer an active official of the Commission. Neither the documents produced
by the Commission in the course of the proceedings nor the judgment under appeal contain the least indication justifying the
finding that the present submission is closely connected with a matter which came to light only during the procedure. Moreover,
the appellant has failed to indicate what prevented him from verifying, even before the start of the oral tests, whether Mr Carle
had already retired.
With regard to the appellant’s argument that the submissions mentioned above should, furthermore, have been held to be admissible
because they are closely connected with the plea alleging infringement of the principle of equal treatment, it should be stated
that, in its judgment in Case T‑95/98
Gogos
v
Commission
[2000] ECR‑SC I‑A‑51 and II‑219, paragraphs 25, 37 to 39, 53 and 54 and the case‑law cited, the Court of First Instance,
examining the plea alleging infringement of the principle of equal treatment of candidates in conjunction with that alleging
an infringement of the rules governing the functioning of selection boards, held that it was for the selection board to ensure
that the principle of equal treatment is complied with and for the Community judicature to examine, in that context, whether
the composition of the selection board during the oral tests complied with the procedural requirements established by the
Community legal order. In that context, this Court stated that a selection board’s failure to abide by the rules governing
its work may be characterised as a breach of essential procedural requirements, with the result that it is not necessary for
the appellant to prove that the result of the competition might have been different if that breach had not occurred.
Having regard to the case‑law, according to which the principle of equality underpins the rules on the composition of selection
boards for competitions (Case T‑165/03
Vonier
v
Commission
[2004]ECR‑SC I‑A‑343 and II‑1575, paragraph 40), it is evident that the Civil Service Tribunal erred in law, first, in finding,
at paragraph 33 of the judgment under appeal, that the submissions summarised in paragraph 27 of that judgment, with the exception
of the last submission, relate, in a general manner, to the question whether the selection board was properly constituted
and are not connected with the plea alleging infringement of the principle of equal treatment and, second, in failing thus
to take account of the close connection which exists between that principle and the rules on the composition of the selection
board.
With regard to the last submission, it is sufficient to state that it relates to Mr Carle’s administrative status alone – retired
or in active service – and that it is not capable of calling into question the legality of the composition of the selection
board or that of its functioning. That administrative status cannot thus be considered to constitute a breach of an essential
procedural requirement for the purpose of the case‑law cited above (see also Case T‑80/01
Diehl–Leistner
v
Commission
[2003]ECR‑SC I‑A‑145 and II‑709, paragraph 44). In those circumstances, the Tribunal cannot be criticised as having erred in law
in rejecting as inadmissible the submission that Mr Carle had already retired at the date when he acted as chairman of the
selection board.
The judgment under appeal must thus be set aside in that the Tribunal erred in law in rejecting the submissions summarised
in paragraph 27 thereof, with the exception of the last submission – alleging that the chairman of the selection board was
not an official in active service –, as inadmissible.
Contrary to the argument put forward by the Commission, that finding does not infringe the rule of consistency between the
pre-litigation complaint, pursuant to Article 90 of the Staff Regulation, and the subsequent action, which requires, for a
plea before the Community judicature to be admissible, that it must have already been raised in the pre-litigation procedure,
enabling the appointing authority to know in sufficient detail the criticisms made by the person concerned of the contested
decision (see Case T‑175/03
Schmitt
v
EAR
[2004]ECR‑SC I‑A‑211 and II‑939, paragraph 42 and the case‑law cited), the rule being justified by the purpose of the pre-litigation
procedure, which is to permit an amicable settlement of the differences which have arisen (see, to that effect, Case 133/88
Del Amo Martinez
v
Parliament
[1989] ECR 689, paragraph 9, and Case T-57/89
Alexandrakis
v
Commission
[1990] ECR II‑143, paragraph 8).
The first paragraph of Article 48(2) of the Rules of Procedure expressly allows the introduction, before the Community judicature,
of new pleas based on matters which come to light in the course of the judicial procedure. Moreover, the case‑law permits,
in situations such as those in this case, the introduction of new pleas (see, to that effect, Case T‑109/92
Lacruz Bassols
v
Court of Justice
[1994]ECR‑SC I‑A‑31 and II‑105, paragraph 67). Furthermore, there is nothing to prevent the defendant institution, faced with a
new plea, from contacting the appellant in order to attempt, in parallel with the judicial proceedings – where appropriate
after requesting and obtaining a stay thereof –, to reach an amicable settlement.
In the light of all the foregoing considerations, the judgment under appeal must be set aside inasmuch as the Tribunal declared
inadmissible the submissions put forward by the appellant at the hearing at first instance and summarised in paragraph 27
of the judgment under appeal, with the exception of the last submission. The remainder of the appeal must be dismissed.
D –
Referral of the case back to the Civil Service Tribunal
In accordance with Article 13(1) of Annex I to the Statute of the Court of Justice, where the decision of the Civil Service
Tribunal is quashed, the Court of First Instance is itself to give judgment in the matter where the state of the proceedings
permits a decision by the Court. It is to refer the case back to the Tribunal for judgment where the state of the proceedings
does not permit a decision by the Court.
In the present case, it is necessary to note that the Tribunal restricted itself to holding the submissions put forward at
the hearing at first instance to be inadmissible, after summarising them in paragraph 27 of the judgment under appeal. It
cannot thus be found that all the facts necessary for an assessment of those submissions, with the exception of the last submission,
were established by the judges at first instance and that, in particular, the appellant had, at first instance, the opportunity
to put forward all his arguments in that regard. Therefore, the case must be referred back to the Civil Service Tribunal for
it to rule on the submissions, with the exception of the last, summarised in paragraph 27 of the judgment under appeal.
Since the case has been referred back to the Civil Service Tribunal, it is appropriate for the costs relating to this appeal
to be reserved.
On those grounds,
THE COURT OF FIRST INSTANCE (Appeal Chamber)
hereby:
1.
Sets aside the judgment of the European Union Civil Service Tribunal of 13 December 2006 in Case F‑22/05
Neophytou
v
Commission
to the extent that the Civil Service Tribunal held that the submissions, with the exception of the last, put forward by Mr Neophytos
Neophytou at the hearing at first instance and summarised in paragraph 27 of that judgment, were inadmissible.
2.
Dismisses the remainder of the appeal.
3.
Refers the case back to the Civil Service Tribunal.
4.
Orders that the costs be reserved.
Jaeger

Meij
Vilaras
Forwood
Martins Ribeiro
Delivered in open court in Luxembourg on 13 October 2008.
E. Coulon

M. Jaeger
Table of contents
Facts
The procedure at first instance
The judgment under appeal
The appeal
A –  Procedure
B –  Forms of order sought
C –  Law
1.  Admissibility of the appeal
2.  The merits of the appeal
(a) The plea alleging infringement of the principle of equal treatment
Arguments of the parties
Findings of the Court
–  Admissibility
–  Substance
(b) The plea concerning the admissibility of the submissions put forward at the hearing at first instance
Arguments of the parties
Findings of the Court
–  Admissibility
–  Substance
D –  Referral of the case back to the Civil Service Tribunal
*
Language of the case: English.