Judgment — ECLI:EU:F:2012:47
Date: 2012-03-28
Language of the case: French
Court formation: Third Chamber
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Procedure: Staff cases - unfounded;Staff cases - inadmissible;Action for damages - unfounded

Summary 1. Officials — Competitions — Competition based on qualifications and tests — Organisation and content of tests — Selection board’s discretion — Judicial review — Limits (Staff Regulations, Annex III) 2. Officials — Competitions — Assessment of candidates’ abilities — Selection board’s discretion — Judicial review — Limits (Staff Regulations, Annex III, Art. 5) 3. Officials — Competitions — Selection board — Rejection of application — Obligation to state reasons — Scope — Respect for the secrecy of the selection board’s deliberations (Staff Regulations, Art. 25; Annex III, Art. 6) 4. Officials — Competitions — Selection board — Composition — Balanced representation of men and women (Staff Regulations, Annex III, Art. 3, fifth para.) 1. The selection board has a wide discretion with regard to the organisation and detailed content of the tests in a competition. The Court may not review the arrangements for the conduct of a test except to the extent necessary to ensure that the candidates were treated equally and that the choice made from among them was objective. It is likewise not for the Court to review the detailed content of a test, unless that content is not confined within the limits laid down in the competition notice or is not consonant with the purposes of the test or of the competition. With regard to criteria which do not relate to specific knowledge which the candidate must possess, but to qualities such as ‘motivation’, ‘adaptability’ or ‘creativity’ which the candidate must demonstrate, those qualities may be assessed in the light of the candidate’s conduct and statements at the oral test, without any question being asked directly or explicitly concerning the qualities at issue. Consequently, the mere absence of any question directly and obviously relating to the demonstration of those qualities, if proved, would not show that the selection board was not in a position to make an assessment of them. (see paras 20, 23-24) See: 7 February 2002, T‑193/00 Felix v Commission, para. 35 5 May 2010, F‑48/09 Schopphoven v Commission, para. 31 2. A selection board’s assessment of candidates’ knowledge and ability is not open to review by the courts. Furthermore, in a competition the candidates’ performance is marked on a comparative scale. Thus, even if it can be demonstrated that a candidate actually possesses the qualities required by the competition notice, that does not establish a manifest error invalidating the selection board’s assessment. The selection board in a competition has a wide discretion when marking the tests, and its deliberations are open to review by the courts only where there has been a clear breach of the rules governing the selection board’s proceedings. (see paras 39, 42, 52) See: 9 October 1974, 112/73, 144/73 and 145/73 Campogrande and Others v Commission, para. 53; 16 June 1987, 40/86 Kolivas v Commission, para. 11; 4 July 1996, C‑254/95 P Parliament v Innamorati, para. 32 11 September 2008, F‑127/07 Coto Moreno v Commission, para. 33 and the case‑law cited therein 3. The requirement that a decision adversely affecting a person, such as a decision taken by a selection board in a competition about a candidate, 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 pursuant to Article 6 of Annex III to the Staff Regulations. That secrecy 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 administration itself, 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 assessments of candidates. When the suitability of candidates is considered, the proceedings of the selection board are above all of a comparative nature and, accordingly, are covered by the secrecy surrounding such proceedings. In view of the need to reconcile the obligation to state the reasons on which a decision adversely affecting a person is based with observance of the secrecy surrounding the proceedings of the selection board, 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 unsuccessful candidates and enables the Court to carry out a judicial review appropriate for that type of dispute. (see paras 47-52) See: Campogrande and Others v Commission, para. 53; 26 November 1981, 195/80 Michel v Parliament, para. 22; Parliament v Innamorati, paras 23, 24, 28, 31 and 32; Kolivas v Commission, para. 11 4. Annex III to the Staff Regulations, and particularly Article 3 relating to the composition of selection boards in competitions, make no provision for the possibility of appointing alternate members, even though the case‑law accepts that the administration may have recourse to them. The provisions of that annex therefore refer, in principle, to selection boards of full members, without prejudice to the fact that those provisions may apply by analogy to alternate members. As regards the term ‘[if a] selection board consists of more than four members’ used in the fifth paragraph of Article 3 of Annex III to the Staff Regulations, that must be understood to mean ‘[if a] selection board consists of more than four full members’. Alternate members of a selection board may express an opinion on the qualities of a candidate sitting the oral test only if they are standing in for a full member who is absent, the number of deliberating votes in the selection board being limited to the number of full members. The use of alternate members thus does not have the effect of substantially altering the number of members of a selection board. Furthermore, the application by analogy of the term ‘[if a] selection board consists of more than four members’ to alternate members is not possible, since for each competition a single threshold has to be fixed beyond which the rule set out in the fifth paragraph of Article 3 of Annex III to the Staff Regulations applies. Lastly, in order to determine whether the rule set out in the fifth paragraph of Article 3 of Annex III to the Staff Regulations has been satisfied, only the full members of the selection board should, in principle, be taken into consideration, since they are usually the ones who are called upon to take part in the actual conduct of the tests. Compliance with that rule must be established when the list of selection board members is published and not when the tests are conducted. (see paras 83-86, 88, 91) See: 12 March 2008, T‑100/04 Giannini v Commission, para. 207 13 October 2008, T‑43/07 P Neophytou v Commission, para. 53 23 November 2010, F‑50/08 Bartha v Commission, paras 39 and 41