Judgment — ECLI:EU:F:2009:120
Date: 2009-09-23
Language of the case: English
Court formation: Third Chamber
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Concepts: Admissibility and examination of applications, forms of order sought and pleas in law;European Personnel Selection Office (EPSO);Selection Board
Procedure: Staff cases;Judgment delivered after back reference

summary of the pleas in law relied on, and that new pleas in law may not be introduced in the course of the proceedings unless they are based on matters of law or of fact which come to light in the course of the procedure. However, a plea in law which may be regarded as amplifying a plea in law made previously, whether directly or by implication, in the original application, and which is closely connected therewith, must be declared admissible (Case 108/81 Amylum v Council [1982] ECR 3107, paragraph 25; Case 306/81 Verros v Parliament [1983] ECR 1755, paragraph 9; Case T-118/96 Thai Bicycle v Council [1998] ECR II-2991, paragraph 142; and Case T-96/04 Cwik v Commission [2005] ECR-SC I-A-0000 and II-0000, paragraph 62). 29 With regard, firstly, to the complaints put forward in the reply, these cannot be regarded as pleas based on matters of law or of fact which came to light in the course of the written procedure. The replacement of full members with alternate members and the alleged disorder in the conduct of the oral test are matters of fact known to the applicant before the action was brought. 30 Those complaints are, however, closely linked to the plea alleging infringement of the principle of non-discrimination, which is relied on in the application, and thus amplify it. On the one hand, the replacement without justification of full members with alternate members contributed to instability in the composition of the selection board pleaded by the applicant in his application. On the other hand, that instability in the composition of the selection board, which forms the central argument of the first plea in the application, was the cause of some of the disorganisation in the conduct of the oral test. In the reply, the applicant states that ‘[p]robably a last minute change did not allow the full member to participate, [which explains] the 20 minute delay in the start of the interview and the fact that the interview was conducted by the chairman [alone], [who asked] 14 questions against [an average] on the other days of 21’. 31 Accordingly, the complaints raised in the reply relating, firstly, to the replacement of full members with alternate members, and, secondly, to disorganisation in the conduct of the oral tests, are by implication part of the plea put forward by the applicant in his application and must therefore be considered admissible. 32 With regard to the complaints made at the hearing, they were not relied on either directly or by implication in the application. Nor are they closely connected with the other pleas relied on in the application. 33 Those complaints relate, in a general manner, to whether the selection board was properly constituted and are not connected with the plea alleging infringement of the principle of non-discrimination. Examination of those complaints would not therefore be based on an assessment of the same facts and questions of law as those put forward at the written stage of the judicial procedure. 34 Moreover, the applicant neither specified matters of fact or of law coming to light in the course of the procedure on which those new complaints were based, nor did he assert that he was not in a position to be aware of those matters beforehand (see, in that regard, Case T-141/97 Yasse v EIB [1999] ECR-SC I-A-177 and II-929, paragraphs 126 to 128, and Case T-139/99 AICS v Parliament [2000] ECR II-2849, paragraph 62). 35 They therefore constitute new pleas in law and, as such, must be dismissed as inadmissible. Substance The plea alleging infringement of the principle of non-discrimination 36 In the light of the points made at paragraphs 22 to 35 above, the plea alleging infringement of the principle of non-discrimination must be understood as falling into four parts. In the first part, the applicant alleges instability in the composition of the selection board. In the second part, he challenges the fact that both a full member and an alternate member were present on the selection board at the same time. In the third part, the applicant maintains that full members cannot be replaced with alternate members without a valid reason. Finally, in the fourth part, he submits that the conduct of the oral test was, in a number of respects, disorganised. As the first and second parts are closely connected with each other, it is appropriate to consider them together. The first and second parts of the plea – Arguments of the parties 37 The applicant points out that at his interview on 8 September 2004 the selection board was composed of three people (the chairman, a full member and an alternate member), whereas on the other days when oral tests were held – namely, on 9, 10, 15 and 16 September 2004 – it was composed of four people (the chairman, two full members and an alternate member). That variation in the composition of the selection board constitutes an infringement of the principle of non-discrimination. 38 In support of that first part of the plea, the applicant relies on settled case-law of the Court of First Instance according to which the composition of the selection board must be as stable as is possible throughout the tests in a competition, in order to ensure that marking criteria are applied in a uniform manner and that the principle of equal treatment of candidates is complied with. The applicant notes that the Court of First Instance conceded that it may be otherwise where there are special circumstances but adds that, in the present case, the appointing authority did not refer to any circumstances capable of justifying such different treatment. The applicant therefore submits that the decision of the selection board must be annulled on the ground that it infringed an essential procedural requirement of the organisation of the competition without there being any need for him to demonstrate any specific prejudice to his individual rights. 39 He further claims that the alternate members should not participate in the selection board at the same time as full members, the role of an alternate being to replace but not to assist a full member. 40 The Commission contends that the applicant has failed to establish, as required by case-law, facts capable of demonstrating a lack of stability in the composition of the selection board. On the contrary, according to the Commission, a high degree of continuity was maintained in the present case on account of the fact that the chairman and the full member appointed by the administration were present at all the interviews and because the selection board used selection criteria determined in advance and applied to all candidates. 41 The Commission acknowledges that, on the day of the applicant’s oral test, apart from the chairman, the selection board was composed of a full member and an alternate member only. It maintains, however, that the presence of a second alternate member on the other days (namely, on 9, 10, 15 and 16 September 2004) alongside the two full members did not infringe the principle of equal treatment of candidates. In that regard, the defendant submits, firstly, that the alternate does not take part in the vote when the full member he is intended to replace is present. Then, it considers that, far from infringing the principle of equality, the presence of an alternate may promote equal treatment since it enables the alternate to make comparisons between candidates, which could be helpful if he is required to replace a full member during the tests. Lastly, the Commission notes that there is no rule or principle which prohibits full members and alternate members being present on the selection board at the same time. – Findings of the Tribunal 42 Under the second paragraph of Article 3 of Annex III to the Staff Regulations, for open competitions common to two or more institutions, the selection board is to consist of a chairman appointed by the appointing authority and of members also appointed by the appointing authority on a proposal from the institutions, as well as of members appointed by agreement between the Staff Committees of the institutions, in such a way as to ensure equal representation. 43 According to settled case-law, a competition selection board is required to ensure that its assessment of candidates examined in oral tests is conducted in an objective manner ensuring equal treatment and it is necessary for it to apply uniform marking criteria consistently to all candidates. That means that, in so far as is possible, the composition of the selection board should remain stable throughout the tests of the competition (Case T-95/98 Gogos v Commission [2000] ECR-SC I‑A‑51 and II-219, paragraph 41; Case T-193/00 Felix v Commission [2002] ECR-SC I-A-23 and II-101, paragraph 37; Case T-92/01 Girardot v Commission [2002] ECR-SC I-A-163 and II-859, paragraphs 25 and 26; and Case T-290/03 Pantoulis v Commission [2005] ECR-SC I-A-0000 and II‑0000, paragraph 90). 44 It is to be noted that the measures taken by a selection board in order to discharge its obligation to ensure stability in its composition must, where appropriate, be assessed in the light of the particular features of the recruitment competition that has been organised and of the practical requirements dictated by the organisation of a competition, without the selection board being able, nevertheless, to disregard the candidates’ fundamental right to equal treatment or its duty to ensure that the choice made among them is objective (see, to that effect, Gogos v Commission, paragraph 52; Felix v Commission, paragraph 41; Girardot v Commission, paragraph 34; and Case T-336/02 Christensen v Commission [2005] ECR-SC I‑A‑0000 and II‑0000, paragraph 43). 45 Moreover, in view of the importance of the principle of equal treatment in recruitment procedures, failure on the part of a competition selection board to ensure stability in its composition may be considered to be an infringement of an essential procedural requirement. Consequently, a decision that is vitiated by such a defect must be annulled without the person concerned being required to prove specific prejudice to his individual rights or to demonstrate that the results of the competition might have been different if the essential procedural requirements in question had been complied with (Gogos v Commission, paragraphs 53 and 54; Case T-165/03 Vonier v Commission [2004] ECR-SC I-A-343 and II-1575, paragraph 39; and Pantoulis v Commission, paragraphs 91 and 92). 46 It is necessary to examine whether, in the present case, the composition of the selection board complied with the abovementioned essential procedural requirements when the oral tests were being conducted. 47 It is apparent from both the chart showing the daily composition of the competition selection board, produced by the Commission at the request of the Tribunal, and the Commission’s explanations at the hearing that, firstly, two members of the selection board, namely Mr Carle, who acted as chairman, and Ms Efthymiou, a full member appointed by the appointing authority, were present at all the oral tests. The third member of the selection board, a full member appointed by the Staff Committee, was present on 15 and 16 September 2004 but was replaced on the other days by the alternate member. The selection board thus had two different formations as a result of that replacement. 48 In addition, whilst the full member appointed by the appointing authority was present every day of the oral tests, the alternate member appointed by the appointing authority was also present on those days with the exception of 8 September 2004. It follows that there were three members in total that day, whereas there were four on the other days of the oral tests. It is to be noted that, provided the composition of the selection board complies with the requirements under the second paragraph of Article 3 of Annex III to the Staff Regulations, the fact that full members and alternate members are present at the same time on the selection board does not make the work or the composition of the selection board unlawful (Pantoulis v Commission, paragraph 77). Nevertheless, it is for the members of the selection board having the right to vote to retain control over the proceedings and to make their own final assessment (see, to that effect, Pantoulis v Commission, paragraph 78). Moreover, the applicant does not maintain that the alternate member had a right to vote. 49 In spite of the changes noted in the composition of the selection board, there was, therefore, a core selection board composed of the chairman, Mr Carle, and the full member appointed by the appointing authority, Ms Efthymiou, both of whom were present on all days of the oral tests. Two out of the three members of the board, including the chairman, had the right to vote and therefore contributed, as a result of their presence at all the interviews, to maintaining stability in the composition of the selection board formations assessing the candidates’ abilities in the oral tests. 50 Lastly, as the Commission asserts, the selection board conducted all the interviews in accordance with marking criteria determined in advance by all the members of the board, which is not contested by the applicant. The small number of candidates and of days on which oral tests were held made it possible, moreover, for the marking criteria to be applied consistently. 51 It follows from all the foregoing that, for the purposes of the principle of non-discrimination, firstly, the composition of the selection board was sufficiently stable to ensure that the candidates were compared and marked in an objective manner and, secondly, the presence at the same time of full members and alternate members appointed by the appointing authority did not make the composition of the selection board irregular. 52 The first and second parts of the plea must therefore be dismissed as unfounded. Third part of the plea – Arguments of the parties 53 The applicant maintains that only the full members of the selection board should select candidates. Alternate members can replace full members only in exceptional circumstances and where there is some compelling reason why the full member is unable to attend. In the present case, the applicant stated that, as the full member appointed by the Staff Committee was unavailable only occasionally, there was no compelling reason why that member was not able to participate in the selection board. 54 The Commission submits that case-law does not require the institution to give reasons for the absence of a full member. For the Commission, it is sufficient that the absence was merely circumstantial. – Findings of the Tribunal 55 Firstly, and contrary to the argument put forward by the applicant, there is no provision which requires there to be a compelling reason for the replacement of a full member. 56 Secondly, with the exception of the chairman of the selection board, whose key role in the board is recognised by case-law (Gogos v Commission, paragraph 42), an alternate member may replace a full member without there being any need to justify the absence of the full member where, notwithstanding that replacement, the composition of the selection board remains sufficiently stable. 57 It follows that the third part of the plea must be dismissed as unfounded. The fourth part of the plea – Arguments of the parties 58 According to the applicant, the replacement of the full member appointed by the Staff Committee was an aggravating factor in the unequal treatment of the candidates since, as a result of that member’s sudden absence on 8 September 2004, the oral test was delayed, shortened and disorganised, the conduct of the interview and the number of questions asked being different for the other candidates. 59 The Commission observes that, although the oral test started late, the interview nevertheless lasted 46 minutes and therefore continued beyond the anticipated finishing time. – Findings of the Tribunal 60 In accordance with the principles of sound administration and equal treatment, the Community institutions have a duty to all candidates in a competition to ensure that the tests are conducted as smoothly and properly as possible (Case T-159/98 Torre and Others v Commission [2001] ECR-SC I-A-83 and II-395, paragraph 46, and Felix v Commission, paragraph 45). However, an irregularity that occurs during the tests of a competition does not affect the lawfulness of the tests unless it is substantive in nature and capable of distorting the results of the tests (Case T-200/97 Jiménez v OHIM [1999] ECR-SC I-A-19 and II-73, paragraph 55, and Torre and Others v Commission, paragraph 47). 61 With regard, firstly, to the delay in the start of the applicant’s oral test, the evaluation sheet for that test shows that the interview with the selection board started 15 minutes late rather than 20 minutes late, as the applicant claims in his reply. That delay, which was short, cannot constitute a substantive irregularity. 62 Secondly, as regards the length of the interview, it must be pointed out that this was not 15 minutes shorter than that of the other candidates as a result of the delay in the start of the test, as the applicant asserts in his reply. The evaluation sheet for his oral test shows that the interview started at 09.30 and concluded at 10.16. It therefore lasted 46 minutes and thus went on longer than average duration of the interviews, scheduled at 45 minutes. 63 As for the disorganised nature of the oral test alleged by the applicant, in particular the fact that the chairman, who alone conducted the interview, asked him only 14 questions whereas the other candidates were asked an average of 21 questions, it is to be noted, firstly, that the applicant did not adduce any evidence capable of substantiating his assertions with any degree of certainty and, secondly, even if those assertions were made out, that cannot in the circumstances of the case constitute a substantial irregularity. 64 The fourth part of the plea must therefore be dismissed as unfounded. 65 In the light of the foregoing, the first plea must be dismissed in its entirety as unfounded. The plea alleging infringement of the competition notice Arguments of the parties 66 The applicant submits that, contrary to what is stated in the competition notice, the selection board took into consideration only the marks of the later tests and not all of the marks obtained by the candidates. 67 Relying on section B(5) of the competition notice, which states that candidates who ‘obtain the highest marks in all the written and oral tests (NB: they must have also obtained the pass mark in every test)’ will be included on the reserve list, the applicant maintains that the selection board should have taken account of all the marks obtained by candidates, including those of the pre-selection tests. Moreover, in his view, whenever the appointing authority intended to make a clear distinction between pre-selection tests and written tests, the competition notice expressly indicated this by referring to tests (d) and (e). Thus, since section B(5) does not refer directly to written tests (d) and (e) but to all the written and oral tests, the results obtained in the pre-selection tests should have been taken into consideration in the final score. 68 The Commission contends, on the contrary, that ‘written tests’ means tests (d) and (e) referred to in section B(2) of the competition notice and not tests (a), (b) and (c) in section B(1) of the notice, which the competition notice presents as pre-selection tests. Findings of the Tribunal 69 When organising an open competition, the appointing authority has discretion to provide in the competition notice for an initial pre-selection phase so as to enable the selection board to admit only those candidates who possess, in the field concerned, the qualifications required for admission to the written and oral tests. 70 In the present case, it is clear from section B of the competition notice that the competition notice in question included a pre-selection phase consisting of pre-selection tests, followed by a written test and then oral test phase, which reflects a difference in function between the pre-selection tests and the written tests. Moreover, section B(2)(d) and (e) of the notice, which defines the nature of the written tests, does not include the pre-selection tests and, therefore, the reference to ‘all the written and oral tests’ in section B(5) of the competition notice cannot be a reference to the pre-selection tests. 71 It is clear from the foregoing that neither a literal interpretation nor a teleological analysis of the competition notice supports the argument put forward by the applicant. The simple fact that the pre-selection tests were in written form cannot undermine that conclusion. 72 The plea alleging infringement of the competition notice must therefore be dismissed as unfounded. The plea alleging that the selection board exceeded the limits of its discretion Arguments of the parties 73 According to the applicant, a number of candidates holding a degree in law were admitted to the competition in the field of ‘European public administration’. That demonstrates that the selection board exceeded the limits of its discretion in that it disregarded the selection criteria imposed by the competition in the different fields of ‘Auditing’, ‘Law’, ‘Economics’ and ‘European public administration’. The applicant considers that, as a result of that categorisation in the competition notice, the selection board should have limited the applications it accepted. Thus, only candidates with training in a given field should have been able to take part in the competition for recruitment in that field. By accepting in particular that candidates holding degrees in law could take part in the written and oral tests in the field of ‘European public administration’, the selection board overstepped the limits of its discretion and failed to take account of the Commission’s recruitment policy. 74 The Commission refers, firstly, to the contents of the competition notice, which states in section A(II)(1) that for the field of ‘European public administration’ ‘[y]ou must have successfully completed a full course at university level and obtained a degree in a relevant subject’. Next, the Commission observes that the competition notice did not state that law graduates could apply only for the field of ‘Law’. Moreover, it contends that it would be contrary to the interests of the service to restrict access to the competition to candidates with a specific qualification to perform the duties set out in the competition notice. Lastly, the Commission states that law graduates gained no advantage from the competition notice, given that they were necessarily obliged to choose only one field between the fields of ‘European public administration’ and ‘Law’. Findings of the Tribunal 75 The wording of the competition notice was unambiguous in that it did not exclude candidates holding a degree in law from the field of ‘European public administration’. The admission of such candidates to the competition depended solely on whether the candidate’s degree in law was relevant to that field. The applicant does not, moreover, argue to the contrary. Furthermore, he does not argue that the competition notice was unlawful on that point. 76 Moreover, the fact that the competition notice restricted access to the field of ‘Law’ to candidates qualified in law cannot directly entail those candidates being excluded from access to another field offered by the same competition notice. It was for the appointing authority, if it so intended, to lay down such a restriction in the wording of the competition notice. Accordingly, the applicant cannot validly maintain, either, that the selection board was under an obligation to introduce an additional criterion to take account of the Commission’s recruitment policy. 77 For the sake of completeness, it should be noted, as the Commission observed, that as the competition notice stated that ‘[y]ou may apply for … one field only … – applying for more than one … will entail your disqualification from all’, candidates meeting the conditions for admission in more than one field and those meeting the conditions for admission in only one were placed on an equal footing. 78 The third plea must therefore be dismissed as unfounded. 79 It follows from all the foregoing that the action must be dismissed in its entirety. Costs 80 As the Tribunal held in Case F-16/05 Falcione v Commission [2006] ECR-SC I‑A‑0000 and II-0000, paragraphs 77 to 86, until the Rules of Procedure of the Tribunal, and in particular the special provisions relating to costs, enter into force, in the interests of sound administration and justice and in order to afford individuals a sufficient degree of predictability concerning the rules relating to costs, the Rules of Procedure of the Court of First Instance alone must be applied. 81 Under Article 87(2) of the Rules of Procedure of the Court of First Instance, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. However, under Article 88 of those Rules, in proceedings between the Communities and their servants the institutions are to bear their own costs. As the applicant has been unsuccessful, each party must be ordered to bear its own costs. On those grounds, THE TRIBUNAL (Third Chamber) hereby: 1. Dismisses the action; 2. Orders each party to bear its own costs. Mahoney Kanninen Gervasoni Delivered in open court in Luxembourg on 13 December 2006. W. Hakenberg P. Mahoney Registrar President The text of this decision and of the decisions of the Community courts cited herein but not yet published in the European Court Reports are available on the Court of Justice’s website: www.curia.europa.eu * Language of the case: English.