# C_2014135EN.01004002.xml

| 5.5.2014 | EN | Official Journal of the European Union | C 135/40 |
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5.5.2014

EN

Official Journal of the European Union

C 135/40

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Appeal brought on 12 March 2014 by Eva Cuallado Martorell against the judgment of the Civil Service Tribunal of 18 September 2012 in Case F-96/09 Cuallado Martorell v Commission

(Case T-506/12 P)

2014/C 135/52

Language of the case: Spanish

Parties

Parties

Appellant: Eva Cuallado Martorell (Augsburg, Germany) (represented by C. Pinto Cañón, lawyer)

Appellant:

Other party to the proceedings: European Commission

Other party to the proceedings:

Form of order sought by the appellant

Form of order sought by the appellant

The appellant claims that the General Court should:

| — | declare her appeal against the judgment of the Civil Service Tribunal (Second Chamber) in Case F-96/09 to be well founded and set that judgment aside in part, that is to say, setting aside the ruling of inadmissibility made in respect of her application for annulment of the competition selection board’s decision refusing her admission to the oral test and the rejection of her application for annulment of the decisions refusing to send her the marked written tests and the personal evaluation sheet relating to those tests; |
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declare her appeal against the judgment of the Civil Service Tribunal (Second Chamber) in Case F-96/09 to be well founded and set that judgment aside in part, that is to say, setting aside the ruling of inadmissibility made in respect of her application for annulment of the competition selection board’s decision refusing her admission to the oral test and the rejection of her application for annulment of the decisions refusing to send her the marked written tests and the personal evaluation sheet relating to those tests;

| — | grant the forms of order sought at first instance, except to the extent that they impugn the decisions refusing written tests (b) and (c) in so far as those decisions refused disclosure of her test papers and the evaluation sheets drawn up by the selection board for each of those tests, since EPSO sent her those documents by letter of 16 June 2010, paragraphs 72 and 73; and |
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grant the forms of order sought at first instance, except to the extent that they impugn the decisions refusing written tests (b) and (c) in so far as those decisions refused disclosure of her test papers and the evaluation sheets drawn up by the selection board for each of those tests, since EPSO sent her those documents by letter of 16 June 2010, paragraphs 72 and 73; and

| — | uphold the order that the Commission pay the costs of the proceedings at first instance and order the Commission to pay the costs of the appeal proceedings. |
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uphold the order that the Commission pay the costs of the proceedings at first instance and order the Commission to pay the costs of the appeal proceedings.

Pleas in law and main arguments

Pleas in law and main arguments

The appellant relies on three grounds of appeal.

| 1. | First ground of appeal: the Civil Service Tribunal erred in law in holding inadmissible certain pleas set out in the application, thereby acting in breach of the right to an effective remedy enshrined in Article 47 of the Charter of Fundamental Rights of the European Union.






  — | The appellant submits in this regard that the Civil Service Tribunal held certain of the pleas set out in the application to be out of time, in that it found, in breach of the principle of pro actione, that in order to calculate, in relation to the contested act, the time allowed for bringing an action, there was no need to consider the appellant’s administrative complaint submitted in accordance with Article 90(2) of the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Economic Community and the European Atomic Energy Community. |
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1.

First ground of appeal: the Civil Service Tribunal erred in law in holding inadmissible certain pleas set out in the application, thereby acting in breach of the right to an effective remedy enshrined in Article 47 of the Charter of Fundamental Rights of the European Union.

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The appellant submits in this regard that the Civil Service Tribunal held certain of the pleas set out in the application to be out of time, in that it found, in breach of the principle of pro actione, that in order to calculate, in relation to the contested act, the time allowed for bringing an action, there was no need to consider the appellant’s administrative complaint submitted in accordance with Article 90(2) of the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Economic Community and the European Atomic Energy Community.

pro actione

| 2. | Second ground of appeal: the Civil Service Tribunal infringed Article 41(2) of the Charter of Fundamental Rights of the European Union and Article 296 TFEU in finding that the communication to a candidate merely of the marks obtained by that person in two written tests in an open competition, without further reasoning, constitutes an adequate statement of reasons.






  — | In response to the finding made by the Civil Service Tribunal that all the proceedings of a selection board are covered by secrecy, by implication defending the immunity of decisions, the appellant argues that a selection board’s decisions may be open to review by the courts on the basis of the distinction, within the selection board’s technical assessment, between the ‘substantive core of the decision’ and the ‘background’ to that decision. |
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2.

Second ground of appeal: the Civil Service Tribunal infringed Article 41(2) of the Charter of Fundamental Rights of the European Union and Article 296 TFEU in finding that the communication to a candidate merely of the marks obtained by that person in two written tests in an open competition, without further reasoning, constitutes an adequate statement of reasons.

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In response to the finding made by the Civil Service Tribunal that all the proceedings of a selection board are covered by secrecy, by implication defending the immunity of decisions, the appellant argues that a selection board’s decisions may be open to review by the courts on the basis of the distinction, within the selection board’s technical assessment, between the ‘substantive core of the decision’ and the ‘background’ to that decision.

| 3. | Third ground of appeal: infringement of Articles 42 and 52 of the Charter of Fundamental Rights of the European Union.






  — | The appellant submits in this regard that the Civil Service Tribunal erred in law in holding that an open competition candidate who disagrees with the mark obtained does not have a right of access to the marked written tests and that, in so doing, it infringed her right of access to the documents. |
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3.

Third ground of appeal: infringement of Articles 42 and 52 of the Charter of Fundamental Rights of the European Union.

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The appellant submits in this regard that the Civil Service Tribunal erred in law in holding that an open competition candidate who disagrees with the mark obtained does not have a right of access to the marked written tests and that, in so doing, it infringed her right of access to the documents.

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