JUDGMENT OF THE CIVIL SERVICE TRIBUNAL (Second Chamber)

13 December 2007

Case F-73/06

**Kris Van Neyghem**

**v**

**Commission of the European Communities**

(Civil service – Officials – Open competition – Assessment of the written test – Time-limit for lodging a complaint – Admissibility – Duty to state reasons)

**Application:**brought under Articles 236 EC and 152 EA, in which Mr Van Neyghem essentially seeks, first, annulment of the decision of 1
June 2005 of the selection board in open competition EPSO/A/19/04 not to admit him to the oral test in that competition, and,
second, an order for the Commission to pay him damages for the material and non-material harm allegedly suffered.

**Held:**The application is dismissed. Each party is to bear its own costs.

**Summary**

1.      *Officials – Actions – Decision of a competition selection board – Prior administrative complaint – Optional – Submission –
Consequences*

*(Staff Regulations, Arts 90 and 91)*

2.      *Officials – Actions – Act adversely affecting an official – Decision adopted after reconsideration of a previous decision*

*(Staff Regulations, Arts 90(2) and 91(1))*

3.      *Officials – Actions – Prior administrative complaint – Date when lodged*

*(Staff Regulations, Art. 90(2); Council Regulation No 1182/71, Art. 3(4))*

4.      *Officials – Competitions – Selection Board – Rejection of application – Duty to state reasons*

*(Art. 253 EC; Staff Regulations, Art. 25, second para.; Annex III, Art. 6)*

5.      *Officials – Competitions – Assessment of candidates’ abilities – Selection Board’s discretion*

*(Staff Regulations, Annex III)*

1.      A decision of a selection board in a competition cannot be directly contested before the Community judicature without a prior
complaint being lodged within the meaning of Article 90 of the Staff Regulations.

However, if the person concerned, instead of making an application directly to the Court, invokes the Staff Regulations and
submits an administrative complaint to the appointing authority, the admissibility of the action brought subsequently will
depend on his compliance with all the procedural requirements applicable to the prior complaint.

(see paras 36-37)

See:

52/85 *Rihoux and Others* v *Commission* [1986] ECR 1555, para. 9

T-386/00 *Gonçalves* v *Parliament* [2002] ECR-SC I‐A‐13 and II‐55, para. 35; T-49/03 *Schumann* v *Commission* [2004] ECR-SC I‐A‐301 and II‐1371, para. 25

2.      When a candidate whose request to be admitted to a Community competition has been rejected seeks reconsideration of that decision
on the basis of a precise provision binding on the administration, it is the decision taken by the selection board after reconsideration
which must be regarded as the act adversely affecting him within the meaning of Article 90(2) or, as the case may be, Article 91(1)
of the Staff Regulations. It is also that decision, taken after reconsideration, which causes the periods for lodging a complaint
and bringing an action to start to run, without there being any need to ascertain whether, in such a situation, that decision
may be regarded as a purely confirmatory act.

(see para. 39)

See:

*Gonçalves* v *Parliament*, para. 39; T-357/02 *Cavallaro* v *Commission* [2005] ECR-SC I‐A‐151 and II‐673, para. 58; T‐293/03 *Giulietti* v *Commission* [2006] ECR-SC I‐A‐2‐5 and II‐A‐2‐19, para. 28

3.      As regards the determination of the date when a prior administrative complaint is lodged, Article 90(2) of the Staff Regulations
is to be interpreted as meaning that a complaint is ‘lodged’ not when it is sent to the institution, but when the institution
receives it.

The period of three months provided for in that provision expires at the end of the day which, in the third month, bears the
same number as the day of the event or act which started the time running. Under the terms of Article 3(4) of Regulation No
1182/71 determining the rules applicable to periods, dates and time-limits, where that time-limit expires on a Saturday, the
period ends with the expiry of the last hour of the following working day.

(see paras 43, 45, 47-48)

See:

195/80 *Michel* v *Parliament* [1981] ECR 2861, paras 8 and 13; 152/85 *Misset* v *Council* [1987] ECR 223, paras 8 and 9

T-54/90 *Lacroix* v *Commission* [1991] ECR II‐749, paras 28 and 29; T-192/94 *Maurissen* v *Court of Auditors* [1996] ECR-SC I‐A‐425 and II‐1229, para. 28; T‐247/97 *Lonuzzo-Murgante* v *Parliament* [1998] ECR-SC I‐A‐119 and II‐317, para. 38; T-197/00 *Onidi* v *Commission* [2002] ECR-SC I‐A‐69 and II‐325, para. 47

F-3/05 *Schmit* v *Commission* [2006] ECR-SC I‐A‐1‐9 and II‐A‐1‐33, para. 28; F‐27/06 and F‐75/06 *Lofaro* v *Commission* [2007] ECR-SC I-A-1-0000 and II‐A‐1‐0000, paras 31 and 32, currently the subject of an appeal before the Court of First Instance

4.      It follows from Article 253 EC and the second paragraph of Article 25 of the Staff Regulations that any decision relating
to a specific individual taken under the Staff Regulations and which adversely affects that person must state the grounds
on which it is based. The requirement that a decision adversely affecting a person should state the reasons on which it is
based is intended to provide the person concerned with sufficient details to allow him to ascertain whether or not the decision
is well founded and make it possible for the decision to be the subject of judicial review.

As far as concerns decisions taken by a selection board in a competition, the obligation to state reasons must be reconciled
with observance of the secrecy surrounding the proceedings of selection boards by virtue of Article 6 of Annex III to the
Staff Regulations, which was introduced with a view to guaranteeing the independence of selection boards and the objectivity
of their proceedings, by protecting them from all external interference and pressures, whether these come from the Community
administration itself or the candidates concerned or third parties. Observance of this secrecy therefore precludes both disclosure
of the attitudes adopted by individual members of selection boards and disclosure of any factors relating to individual or
comparative assessments of candidates.

The comparative assessments made by the selection board are reflected in the marks it allocates to the candidates and are
the expression of the value judgements made concerning each of them. Having regard to that secrecy, communication of the marks
obtained in the various tests constitutes an adequate statement of the reasons on which the selection board’s decisions are
based. Such a statement of reasons is not prejudicial to the rights of the candidates. It serves to make them aware of the
value judgement made in regard to their performance and enables them to satisfy themselves, where appropriate, that they have
not in fact obtained the number of points required by the notice of competition in order to be admitted to certain tests or
to all the tests.

(see paras 70, 74-77)

See:

*Michel* v *Parliament*, para. 22; C-254/95 P *Parliament* v *Innamorati* [1996] ECR I‐3423, paras 23 and 24

T-53/00 *Angioli* v *Commission* [2003] ECR-SC I‐A‐13 and II‐73, para. 67; T-33/00 *Martínez Páramo and Others* v *Commission* [2003] ECR-SC I‐A‐105 and II‐541, paras 43 and 44; T-19/03 *Konstantopoulou* v *Court of Justice* [2004] ECR-SC I‐A‐25 and II‐107, paras 27 and 31 to 33

5.      The assessments which a selection board in a competition makes when it evaluates the knowledge and abilities of candidates
and also the decisions whereby it determines that a candidate has failed a test constitute the expression of a value judgement.
They fall within the wide discretion enjoyed by the selection board, which is still, however, subject to review by the Community
judicature in the event of manifest error. The board is not, therefore, required to identify the applicants’ answers which
were considered unsatisfactory or to explain why they were considered unsatisfactory.

(see paras 78, 86)

See:

40/86 *Kolivas* v *Commission* [1987] ECR 2643, para. 11

T-200/97 *Jiménez* v *OHIM* [1999] ECR-SC I‐A‐19 and II‐73, para. 40; *Konstantopoulou* v *Court of Justice*, para. 34; T‐336/02 *Christensen* v *Commission* [2005] ECR-SC I‐A‐75 and II‐341, para. 25