Order — ECLI:EU:T:1999:168
Date: 1999-09-10
Language of the case: French
Court formation: President of the Chamber
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Concepts: Application for interim measures: suspension of operation of the contested measure and other interim measures
Procedure: Staff cases;Application for interim measures - unfounded

SUMMARY — CASE T-173/99 
Summary 
1. Officials — Actions — Locus standi — Candidates not included on a list of 
suitable candidates 
2. Officials - Actions — Annulling judgment — Effects — Annulment of a test in 
an open competition — Obligations of the Selection Board and of the appointing 
authority 
(Staff Regulations, Art. 91) 
3. Officials — Competitions — Competition based on qualifications and tests — 
Content of the tests — Discretion of the Selection Board — Judicial review — Limits 
4. Officials — Competitions — Selection Board - Composition — Members' 
capacity to make an objective assessment of the tests — Equal treatment of 
candidates 
(Staff Regulations, Annex III, Art. 3) 
5. Officials — Competitions — Selection Board — Composition — Requirement that 
members of the Selection Board be chosen from among officials of a grade at least 
equal to that of the post to be filled 
(Staff Regulations, Annex III, Art. 3) 
6. Officials - Actions — Pleas in law - Abuse of powers — Concept 
7. Procedure — Costs — Article 88 of the Rules of Procedure of the Court of First 
Instance — Scope ratione personae — Action brought by a candidate not admitted 
to the tests in an open competition 
(Rules of Procedure of the Court of First Instance, Art. 88) 
I-A - 102 
ELKAÏM AND MAZUEL v COMMISSION 
1. An application by a candidate who was not included on the list of suitable 
candidates, drawn up following a competition, for annulment of the competition 
procedure is admissible only in so far as it concerns the refusal of the Selection 
Board to enter him on the list of suitable candidates. 
(see para. 23) 
See: T-74/91 Tancredi v Parliament [1992] ECR II-1645, para. 17, and the case-law cited 
therein 
2. Where a test in an open competition held for the purpose of constituting a reserve 
list for future recruitment is annulled, the rights of an applicant who was 
unsuccessful in that test will be adequately protected if the Selection Board and the 
appointing authority reconsider their decisions and seek a just solution in his case, 
without its being necessary to call in question the entire results of the competition 
or to annul the appointments made as a result thereof. 
(see para. 23) 
See: C-242/90 P Commission v Albani and Others [1993] ECR I-3839, para. 13, and the 
case-law cited therein 
3. The Selection Board in a competition has a wide discretion with regard to the 
detailed content of the tests. It is not for the Community court to criticise that 
content unless it is not confined within the limits laid down in the competition notice 
or is not consistent with the purposes of the test or of the competition. 
(see para. 35) 
See: 64/86, 71/86 to 73/86 and 78/86 Sergio and Others v Commission [1988] ECR 1399, 
para. 22; T-132/89 Galione v Council [1990] ECR II-549, para. 27, and the case-law 
cited there; T-156/89 Valverde Mordi v Court of Justice [1991] ECR II-407, para. 121 
I-A - 103 
SUMMARY - CASE T-173/99 
4. In order to be constituted in accordance with the provisions of the Staff 
Regulations and of Article 3 of Annex III thereto, the Selection Board in a 
competition based on qualifications and tests must be composed in such a way as to 
guarantee an objective assessment of the performance of candidates in the tests in 
relation to the professional qualities expected. However, the requirements which 
the abilities of the members of the Selection Board must satisfy vary according to 
the particular circumstances of each competition. In that regard, the appointing 
authority and the Staff Committee enjoy a wide discretion to evaluate the abilities 
of the persons whom they nominate as members of the Selection Board and it is not 
for the Court to criticise their choice if the limits ofthat discretion are not exceeded. 
Where one competition is held in order to constitute two separate reserve lists and 
for that purpose includes two distinct options, the fact that the same Selection Board 
is responsible for evaluating the results of the tests associated with the two options 
is not a ground of irregularity, provided that the members of the Selection Board 
have the necessary abilities to make an objective assessment of the performance of 
the candidates in the tests for each option. 
(see paras 70 and 71) 
See: Valverde Mordt v Court of Justice, cited above, paras 195 and 196, and the case-law 
cited there; T-166/95 Karagiozopoulou v Commission [1997] ECR-SC I-A-397 and 
II-1065, para. 34 
5. Having regard to the third paragraph of Article 3 of Annex III to the Staff 
Regulations, which provides that members of a selection board are to be chosen 
from officials whose grade is at least equal to that of the post to be filled, an 
institution cannot be criticised for not having appointed a person from outside the 
institution as chairman of the selection board. 
(see para. 107) 
I-A - 104 
ELKAĪM AND MAZUEL v COMMISSION 
6. There is no abuse of power, of which abuse of procedure is merely one form, 
unless it is proved that in adopting the contested measure the appointing authority 
pursued an aim other than that laid down in the rules in question or if it is apparent, 
on the basis of objective, relevant and consistent evidence, that the contested 
measure was adopted for purposes other than those stated. 
(see para. 120) 
See: T-86/97 Apostolidis v Court of Justice [1998] ECR-SCI-A-167 and II-521, para. 61, 
and the case-law cited therein 
7. Since the purpose of an action by a candidate in an open competition against the 
decision of the selection board not to admit him to the tests is to enable him to 
become a member of the Community civil service, where the action is dismissed it 
is appropriate to apply the provisions of the Rules of Procedure under which the 
institutions are to bear their own costs in actions brought by servants of the 
Communities. 
(see para. 128) 
See: T-37/93 Stagakis v Parliament [1994] ECR-SC I-A-137 and II-451, para. 24 
I-A - 105