Judgment — ECLI:EU:T:2003:52
Date: 2003-03-05
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Concepts: Act adversely affecting the official;Conduct of competitions
Procedure: Staff cases - successful

SUMMARY - CASE T-24/01 
Summary 
1. Officials - Actions — Act adversely affecting an official - Decision of a 
selection board to reduce the minimum number of points required in the Notice of 
Competition for the eliminating tests - Inadmissibility 
(Staff Regulations, Art. 90(2)) 
2. Officials - Competition based on qualifications and tests - Pass requirements 
- Definition in notice of competition - Reduction by the selection board of the 
minimum number of points required in the Notice of Competition for the eliminating 
tests - Procedural irregularity likely to distort the final outcome of the competition 
(Staff Regulations, Annex III, Art. 1(1) (e)) 
1. The only acts or decisions that are capable of forming the subject-matter of an 
action for annulment are those which produce binding legal consequences that are 
likely to affect the applicant's interests by significantly changing his legal situation. 
In the case of acts or decisions that involve several stages, especially in the course 
of an internal procedure such as a competition, the only measures which constitute 
acts that can be challenged are those which definitively establish the position of the 
institution at the end of that procedure. Intermediate measures whose purpose is to 
prepare the final decision, however, do not adversely affect an official within the 
meaning of Article 90(2) of the Staff Regulations and may only be challenged 
incidentally in the course of an action brought against acts which may be annulled. 
A decision of a selection board in a competition to reduce the minimum number of 
points required in the Notice of Competition in order to pass the eliminating tests 
does not constitute an act that can be challenged and may only be challenged by a 
candidate incidentally in the course of an action brought against an act adversely 
affecting him. 
(see paras 32-34) 
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STAELEN v PARLIAMENT 
See: T-6/93 Pérez Jiménez v Commission [1994] ECR-SC I-A-155 and II-497. paras 34 
and 35: T-208/00 Barleycorn Mongolite and Boixader Rivas v Council and Parliament 
[2001] ECR-SC I-A-103 and II-479. para. 34 
2. Although the appointing authority enjoys a wide discretion to determine the 
conditions governing a competition, the selection board is bound by the text of the 
notice of competition as published. The notice of competition forms both the legal 
basis and the basis of assessment for the selection board. 
Although the selection board determines the level of difficulty of a competition by 
defining, under the wide discretion which it enjoys, the rules for and detailed 
contents of the tests referred to in the Notice of Competition, the pass marks for the 
tests are set out by the appointing authority in the Notice of Competition in 
accordance with Annex III, Article 1(1)(e) of the Staff Regulations, which states that 
the notice must specify, among other things, where the competition is on the basis 
of tests, what kind they will be and how they will be marked. Therefore, a decision 
of the selection board to change the pass marks for the tests renders the competition 
procedure flawed. 
It is true that a procedural irregularity can invalidate an act only if it is established 
that in the absence of that irregularity the act might have been substantively 
different, but a reduction in the pass marks by a selection board in a competition, 
which has the direct effect of significantly increasing the number of candidates 
taking part in the subsequent comparative tests, is necessarily likely to invalidate the 
conduct of those tests. 
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SUMMARY - CASE T-24/01 
Tests of a comparative nature are, by definition, tests in which each candidate's 
performance is assessed in relation to that of the other candidates, so that the 
number of candidates admitted to the tests is likely to affect the selection board's 
assessments of the candidates. Those assessments reflect a value judgment of a 
candidate's performance compared with that of the other candidates. The higher the 
number of candidates in that type of tests, the greater the demands made of them by 
the selection board. That conclusion might be open to question only if the defendant 
institution could prove that each candidate had been marked in such a way as to 
eliminate any comparison with the other candidates, since if an irregularity occurs 
during the course of a competition, it is for the defendant institution to prove that 
it did not affect the final outcome of the competition. 
(see paras 47, 51-54, 57-58) 
See: 67/81 Ruske v Commission [1982] ECR 661, para. 9; 150/84Bernardi v Parliament 
[1986] ECR 1375, para. 28; 181/86 to 184/86 Del Plato and Others v Commission [1987] 
ECR 4991, para. 36; T-35/89 Albani and Others v Commission [1990] ECR II-395, paras 
43 to 45; T-153/95 Kaps v Court of Justice [1996] ECR-SCI-A-233 and II-663, para. 37; 
T-80/96 Fernandes Leite Mateus v Council [1997] ECR-SC I-A-87 and II-259, para. 27; 
T-200/97 Jiménez v OHM [1999] ECR-SC I-A-19 and II-73, para. 55 
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