JUDGMENT OF THE COURT OF FIRST INSTANCE (Appeal Chamber)
13 October 2008 (*)
(Appeals – Staff cases – Open competition – Rejection of the appellant’s candidature – Composition of the selection board for the oral tests – Principle of equal treatment – New pleas in law – Error of law – Appeal in part unfounded and in part founded – Referral back to the Civil Service Tribunal)
In Case T‑43/07 P,
APPEAL against the judgment of the European Union Civil Service Tribunal (Third Chamber) of 13 December 2006 in Case F‑22/05 Neophytou v Commission seeking to have that judgment set aside,
Neophytos Neophytou, residing in Itzig (Luxembourg), represented by S. Pappas, lawyer,
appellant,
the other party to the proceedings being:
Commission of the European Communities, represented by J. Currall and H. Krämer, acting as Agents,
defendant at first instance,
THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Appeal Chamber),
composed of M. Jaeger (Rapporteur), President, A.W.H. Meij, M. Vilaras, N.J. Forwood and E. Martins Ribeiro, Judges,
Registrar: E. Coulon,
gives the following
Judgment
1        By his appeal brought pursuant to Article 9 of Annex I to the Statute of the Court of Justice, the appellant, Mr Neophytou, requests the Court of First Instance to set aside the judgment of the European Union Civil Service Tribunal (Third Chamber) of 13 December 2006, in Case F‑22/05 Neophytou v Commission [2006] ECR‑SC II‑A‑1‑617, ‘the judgment under appeal’, by which the Tribunal dismissed his action for annulment of the decision of the selection board of open competition EPSO/A/1/03 not to include his name on the reserve list of successful candidates in that competition.
Facts
2        The facts of the dispute were set out in paragraphs 2 to 14 of the judgment under appeal, as follows:
‘2      The appellant was a candidate in open competition EPSO/A/1/03 to constitute a reserve of assistant administrators (A8) having Cypriot citizenship (OJ 2003 C 120 A, p. 13).
3      That competition covered four fields … Candidates could choose only one of those fields … The applicant chose the field of “European public administration”.
4      … the competition notice stated that the nature and number of the tests were as follows: three pre-selection tests …, two written tests … and an oral test …
…
6      The corrigendum to the competition notice published on 6 June 2003 (OJ 2003 C 132 A, p. 33) stated, in relation to the field of “European public administration”, that only those applicants who obtained the 30 best marks out of all those who obtained the pass mark in written tests … would be asked to take part in the oral test.
…
9      The provisions concerning the drawing up of a reserve list of successful candidates … were worded as follows:
“At the end of the competition, out of all the appellants who obtain the highest marks in all the written and oral tests …, the selection board will draw up lists of the successful applicants ….”
10      The number of successful applicants of Cypriot citizenship in the field of “European public administration”, initially fixed at 25, was then reduced to 20 in the corrigendum to the competition notice.
11      … After … marking the written tests, the selection board invited the appellant to the oral test on 8 September 2004.
12      … the selection board informed the appellant that, as his final results were insufficient, it was not possible for his name to be included on the reserve list of successful candidates. According to the selection board, the applicant obtained a final mark of 58 points, whereas the candidates who obtained the 20 highest marks for the written and oral tests had an overall mark of at least 61.
13      … the applicant submitted a complaint under Article 90(2) of the Staff Regulations of Officials of the European Communities (‘the Staff Regulations’) against the decision of the selection board not to include his name on the reserve list. The applicant maintained, firstly, that the composition of the selection board had varied in the course of the oral tests, infringing the candidates’ right to equal treatment. Three selection board members were present on 8 September 2004, the day of his interview, whereas on all the other days (that is, on 9, 10, 15 and 16 September 2004) the board was composed of four members. In the applicant’s opinion, the composition of the board should have been the same for all candidates …
14      … the appointing authority dismissed the applicant’s complaint on the ground, inter alia, that there was no unjustified difference between the treatment of the applicant and that of the other candidates ...’.
The procedure at first instance
3        By an action lodged at the Court of First Instance on 21 April 2005, the applicant requested the Court to annul the decision of the selection board not to include his name on the reserve list for the abovementioned competition.
4        By order of 15 December 2005, the Court of First Instance, pursuant to Article 3(3) of Council Decision 2004/752/EC, Euratom of 2 November 2004 establishing the European Union Civil Service Tribunal (OJ 2004 L 333, p. 7), referred this case to the European Union Civil Service Tribunal.
5        In support of his application, the applicant put forward three pleas in law.
6        The second and third pleas, alleging infringement of the notice of competition and of the limits of the selection board’s discretion, respectively, were dismissed as unfounded by the Civil Service Tribunal. That part of the judgment under appeal is not covered by this appeal.
7        The first plea, alleging infringement of the principle of non‑discrimination, was in two parts. In the first part, the applicant maintained that the composition of the selection board varied in the course of the oral tests. In the second part, he challenged the presence on the selection board of both full and alternate members at the same time.
8        At the stage of the reply, the applicant put forward two new submissions. He stated, first, that 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. According to the applicant, that was not the case here. The applicant, second, challenged the manner in which his interview with the selection board was conducted, alleging that the interview was delayed by 20 minutes, shortened by 15 minutes and disorganised in that it was conducted by the chairman alone, who asked the appellant fewer questions than were asked of the other candidates.
9        At the end of the written procedure, the Tribunal adopted measures of organisation of procedure and requested the Commission to produce a copy of the decision establishing the composition of the selection board of open competition EPSO/A/1/03 and the records of the oral tests (in particular those parts of the record relating to the composition of the selection board for each day of the oral tests).
10      Following that request, the Commission lodged the documents requested. By letter of 29 May 2006, the Registrar of the Tribunal sent them to the applicant and informed him that he would have an opportunity to comment on those documents at the hearing.
11      At the hearing on 21 June 2006, the applicant put forward additional submissions. In that regard, paragraph 27 of the judgment under appeal includes the following findings:
‘Firstly, he maintained that the selection board had not been lawfully appointed by the Commission. Next, he complained that, without any explanation being given by the administration, the number of members present on the selection board was considerably lower than the number of members appointed. The applicant further stated that all the oral tests were presided over by an alternate chairman without any explanation being given for the absence of the chairman proper. Moreover, the applicant observes that on the Commission’s website Mr Carle is shown as the chairman of the selection board whereas, according to the attendance sheets for the members of the selection board produced by the Commission to the Tribunal at its request, Mr Carle was the alternate chairman. Lastly, the applicant challenged the fact that, at the time of the oral tests, Mr Carle was the chairman of the selection board when he was no longer an active official of the Commission.’
The judgment under appeal
12      The Civil Service Tribunal held the submissions put forward in the reply relating to the replacement of full members by alternate members and to disorganisation in the manner in which the oral tests were conducted to be admissible inasmuch as they constituted an amplification of the first plea, relied on in its application and alleging infringement of the principle of non‑discrimination (paragraphs 29 to 31 of the judgment under appeal). However, after classifying those submissions as the third and fourth part of the plea, it rejected them as unfounded (paragraphs 53 to 64 of the judgment under appeal). That part of the judgment under appeal is not covered by this appeal.
13      As for the submissions expressed at the hearing, they were declared to be inadmissible, at paragraphs 32 to 35 of the judgment under appeal, for the following reasons:
‘32      … 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 appellant 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.’
14      As to the merits, the Tribunal rejected the first and second parts of the first plea – alleging that the composition of the selection board was unstable and that a full member and an alternate member were present on the board at the same time, respectively – having considered them together on the basis that they were closely connected one with the other (paragraph 36 of the judgment under appeal). In that regard, at paragraphs 47 to 52 of the judgment under appeal, it made the following findings:
‘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 ([Case T‑290/03] Pantoulis v Commission [[2005] ECR‑SC I‑A‑241 and II‑1123], 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.’
15      Consequently, the Tribunal dismissed the action in its entirety.
The appeal
A –  Procedure
16      By document lodged at the Registry of the Court of First Instance on 14 February 2007, the appellant brought the present appeal.
17      After the Commission lodged its response, the appellant was granted leave to file a reply followed by a rejoinder from the Commission.
18      Acting on a report from the Judge‑Rapporteur, the Court of First Instance (Appeal Chamber) noted that no application for a hearing to be arranged had been submitted by the parties within the period of one month from notification of the closure of the written procedure and decided to give a ruling without an oral procedure, pursuant to Article 146 of the Rules of Procedure.
B –  Forms of order sought
19      The appellant claims that the Court of First Instance should:
–        set aside the judgment under appeal and, consequently, annul the contested decision of the appointing authority;
–        order the Commission to pay the costs.
20      The Commission contends that the Court of First Instance should:
–        dismiss the appeal;
–        order the appellant to pay the costs of the appeal.
C –  Law
21      In support of his claims that the judgment under appeal should be set aside, the appellant raises two pleas. He claims that the Tribunal erred in law in finding, first, that his submissions put forward at the hearing at first instance were not admissible and, second, that there was no infringement of the principle of equal treatment, since the composition of the selection board was considered to be sufficiently stable and correct despite the presence at the same time of full members and alternate members appointed by the appointing authority. The Commission is of the view that the appeal must be declared to be inadmissible or, at least, be dismissed as unfounded.
1.     Admissibility of the appeal
22      Pointing out that the appellant may not simply repeat before the higher court arguments already submitted unsuccessfully to the lower court, or introduce for the first time at the stage of an appeal new pleas in law or arguments not put to the lower court, the Commission contends that the present appeal is inadmissible.
23      The Commission raises the question whether an appeal limited to the rejection of two parts of the first plea can succeed, when the operative part of the judgment, dismissing the action, is also based on the rejection of the other two parts of the first plea and on the rejection of the second and third pleas and when the appeal does not challenge any of those parts of the judgment. In addition, the Commission questions whether the appeal meets the requirements of clarity, which are a condition of admissibility.
24      In that regard, it should be pointed out that, where an appellant challenges the interpretation or application of Community law by the judges at first instance, the points of law examined at first instance may be the subject of new arguments in the course of an appeal. If an appellant could not base his appeal on pleas in law and arguments already relied on at first instance, an appeal would be deprived of its purpose. However, it is clear from Article 11(1) of the Annex to the Statute of the Court of Justice and Article 138(1)(c) of the Rules of Procedure that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside, and also the legal arguments specifically advanced in support of that appeal (see, to that effect, Case C‑352/98 P Bergaderm and Goupil v Commission [2000] ECR I‑5291, paragraph 34, and the order in Case C‑488/01 P Martinez v Parliament [2003] ECR I‑13355, paragraphs 39 and 40 and the case‑law cited).
25      In the present case, it is clear from the appeal that the appellant complains that the Tribunal erred in finding, at paragraphs 32 to 34 of the judgment under appeal, that the submissions made at the hearing at first instance were inadmissible and, at paragraphs 47, 48, 50 and 51 of the judgment under appeal, that there had been no infringement of the principle of equal treatment relied on in the originating application, and in holding that the composition of the selection board was sufficiently stable and that the presence at the same time of full members and alternate members appointed by the appointing authority did not make its composition irregular. The appellant thus indicated precisely the elements of the judgment under appeal criticised, while presenting legal arguments for the purpose of supporting his claim that the judgment under appeal should be set aside.
26      It follows that the appeal must be declared to be admissible.
2.     The merits of the appeal
27      With regard to the two pleas put forward in support of the appeal, it is appropriate, in the circumstances of the present case, to examine first the plea alleging infringement of the principle of equal treatment.
(a)     The plea alleging infringement of the principle of equal treatment
Arguments of the parties
28      The Commission pleads the inadmissibility of the present plea. The first two parts of the plea were analysed at paragraphs 42 to 50 of the judgment under appeal, of which the appellant, in his appeal, contests only two sentences: one in paragraph 47 and the other in paragraph 48 of the judgment under appeal. Paragraphs 42 to 50 of the judgment under appeal are the basis for paragraph 51, which is merely the conclusion which follows from those paragraphs. It is not enough for the appellant to challenge paragraph 51: he has to explain why the supporting reasons are wrong. The appeal is thus incapable, in that respect, of affecting the operative part of the judgment under appeal.
29      With regard to changes which occurred in the composition of the selection board, the Commission contends that the appellant seeks to have the Court of First Instance decide on the facts at the appeal stage, which is inadmissible, since the appellant does not allege that the Tribunal distorted the evidence. The same is true of the question whether alternate members voted or not, since that question of fact cannot be examined on appeal.
30      Although the appellant appears to be arguing that the Tribunal distorted the evidence, that assertion is not substantiated. In particular, the appellant never submitted to the judges at first instance its point that in five days there were three different formations of the selection board and not two as the judgment under appeal assumed. That point was raised for the first time on appeal.
31      As regards the admissibility of the plea, the appellant criticises paragraph 47 of the judgment under appeal, according to which the selection board had two different formations for the interviews. That finding is crucial, since it is the basis for the conclusion, set out in paragraph 51 of the judgment under appeal, that the composition of the selection board was sufficiently stable. The error is fundamental since, if corrected, the conclusion of the Tribunal might have been different.
32      The appellant adds that paragraph 48 of the judgment under appeal contains the erroneous finding that he did not maintain that the alternate member had a right to vote. The fact that one alternate member signed the attendance list next to the full members constitutes, according to the appellant, a sufficient proof that the alternate member participated in the oral tests in the same way as the full members.
33      With regard to the merits, the appellant alleges that the Tribunal erred in finding, at paragraph 47 of the judgment under appeal, that the selection board had two different formations, when it is clear from the attendance list produced by the Commission at first instance that in five days there were three different formations of the selection board.
34      The appellant also challenges the finding at paragraph 48 of the judgment under appeal that he did not maintain that the alternative member had a right to vote. In that regard, he asserts that he could not in fact know whether the alternate member had a right to vote or not. The Commission, for its part, was unable to establish that he had not voted. The important thing is whether the presence of an alternate member, alongside ‘his’ corresponding full member, influenced the voting of the other members.
35      In that context, the appellant claims that it is impossible for him to establish whether the alternate member actually voted, since he was not present during the deliberations and has in his possession no relevant documents. According to the documents which the Commission submitted to the Tribunal, the alternate member did participate alongside the full member and he did not abstain from the discussions or from voting on the same basis as a full member. According to the principle of transparency and good administration, it is for the Commission to prove the contrary.
36      The appellant adds that the conduct of the oral tests led to considerable confusion. In that context, he states, inter alia, that the submissions which he put forward at the hearing at first instance, criticising the finding, in paragraph 50 of the judgment under appeal, that he did not contest that the selection board conducted all the interviews in accordance with marking criteria determined in advance by all the members of the board. According to the appellant, in paragraph 2 of the reply at first instance – which records the disorganisation in the way his interview was conducted, and in particular the unequal number, compared with other interviews, of the questions asked by the chairman of the selection board – the contrary is argued.
37      Lastly, the Tribunal failed to state sufficient reasons for the judgment under appeal in view of the particular features of the present case.
38      The Commission contends, with regard to the merits, that it follows from paragraph 47 of the judgment under appeal read in conjunction with paragraphs 48 and 49, that the appellant’s criticism of the last sentence of paragraph 47 is unfounded. The content of the Commission’s documents corresponded precisely with the findings at paragraph 47 of the judgment under appeal.
39      In any event, the appellant cannot simply argue that neither party had proved whether the alternate had voted or not. The legal requirement is that the alternate must not vote if the full member is present. The appellant accepts that he is unable to establish whether the alternate member voted.
Findings of the Court
–       Admissibility
40      With regard to the Commission’s argument alleging that the appellant failed to put before the Tribunal his submission that in five days there were three different formations of the selection board and not two as found in the judgment under appeal, it must be observed that, in the first part of its first plea at first instance, the appellant relied on the alleged instability in the composition of the selection board. In order to examine the merits of that plea, the Tribunal had to, and did, verify the composition of the selection board throughout the conduct of the oral tests and determine whether that composition was sufficiently stable. In that context, the fact that the appellant, in his original pleading only claimed that there were two different compositions of the selection board cannot preclude the Tribunal from finding, on the basis of evidence before it, that the number of different formations of the selection board was greater, nor preclude the appellant himself from maintaining that, in the light of the evidence, that finding should have been made.
41      In order to challenge the interpretation or application of Community law by the Tribunal, the points of law examined at first instance may be the subject of new arguments in the course of an appeal. If an appellant were to be unable to base his appeal on pleas in law and arguments already relied on at first instance, an appeal would lose part of its purpose. In that context, the appellant, on appeal, may rely on submissions based on findings of fact and on the assessment of those facts in the judgment under appeal where the appellant claims that the Tribunal has made findings which the documents in the file show to be substantially incorrect or that it has distorted the clear sense of the evidence before it (see, to that effect and by analogy, Case C‑229/05 P PKKandKNK v Council [2007] ECR I‑439, paragraphs 32 to 35).
42      In the present case, by the above submission, the appellant alleges that the Tribunal erred in law, inasmuch as it wrongly rejected the first part of the first plea relied on at first instance. In that context, it claims, essentially, that the Tribunal, in paragraph 47 of the judgment under appeal, distorted the picture of the daily composition of the competition selection board, produced by the Commission at the request of the judges at first instance, from which it was apparent that there were three different compositions of the selection board and not the two found by the Tribunal in the judgment under appeal. In the light of the findings and the case‑law set out at paragraphs 40 and 41 above, that submission is admissible and must be examined as to the merits.
43      As regards the changes which occurred in the composition of the selection board and the question whether or not the alternate member of the selection board took part in the vote, the Commission contends that the appellant is seeking to obtain a ruling from the Court of First Instance on questions of fact at the appeal stage, which is, however, inadmissible.
44      In that regard, it should be noted that, pursuant to Article 11(1) of Annex I to the Statute of the Court of Justice, an appeal is to be limited to points of law, meaning that the Tribunal has exclusive jurisdiction to find and appraise the relevant facts and assess the evidence. The appraisal of those facts and the assessment of that evidence thus do not, save where the facts and evidence are distorted, constitute a point of law which is subject, as such, to review by the Court of First Instance on appeal (see, to that effect, Case C‑193/06 P Nestlé v OHIM [2007] ECR I‑0000, paragraph 53 and the case‑law cited).
45      However, contrary to the argument put forward by the Commission, the present plea seeks, in fact, to challenge the Tribunal’s reasoning that the selection board correctly discharged ‘its obligation to ensure stability in its composition [in order to ensure respect for] the candidates’ fundamental right to equal treatment or its duty to ensure that the choice made among them is objective’ (paragraph 44 et seq. of the judgment under appeal). Therefore, the appellant challenges the characterisation by the judges at first instance of the legal nature of the facts in order to determine the legal consequences thereof. That is a question of law which may be raised in the context of an appeal (see, to that effect, Case C‑136/92 P Commission v Brazzelli Lualdi and Others [1994] ECR I‑1981, paragraph 49, and Case C‑412/05 P Alcon v OHIM [2007] ECR I‑3569, paragraphs 38 to 40).
46      That is particularly true with regard to the legal question whether the established presence at the deliberations of the selection board of an alternate member alongside ‘his’ corresponding full member might be such as to influence improperly the voting of the selection board and, accordingly, to render that vote unlawful.
47      By its submission directed against the finding, in paragraph 50 of the judgment under appeal, that ‘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 appellant,’ the appellant maintains, essentially, that he contested that allegation in the reply which he filed at first instance. Thus, he claims that the Tribunal distorted that document. Consequently, that submission must be declared to be admissible.
48      Lastly, with regard to the last sentence of paragraph 48 of the judgment under appeal to the effect that ‘the appellant does not maintain that the alternate member had the right to vote’, it should be pointed out that the submission criticising that sentence does not seek, contrary to the argument supported by the Commission, a pure finding of fact which would, as such, be excluded from the appeal proceedings. What the appellant is actually claiming by that submission is that, since it was impossible for him to know whether the alternate member of the selection board voted or not, the mere presence of that member within the selection board at the same time as ‘his’ full member must be considered to be sufficient to vitiate the selection board’s deliberations. The submission is, thus, admissible inasmuch as it relates to an error of law by the judges at first instance.
49      The present plea must thus be declared admissible in its entirety.
–       Substance
50      It is necessary to examine, first, the submission alleging that the Tribunal failed to take account of the fact that the established presence of an alternate member alongside the full member whom he replaces was at least capable of influencing the vote of the other members and the fact that it was for the Commission, in accordance with the principles of transparency and sound administration, to prove that that alternate member neither voted nor unduly influenced the deliberations of the selection board.
51      In that regard, it must be held that the appellant did not put forward at first instance – or, moreover, in the context of his appeal – any matters capable of serving as evidence of the actions which he imputes to the alternate member referred to above. Nor did he even request the Tribunal to hear members of the selection board as witnesses on that point, pursuant to Article 65(c) of the Rules of Procedure of this Court – applicable mutatis mutandis to the Civil Service Tribunal pursuant to Article 3(4) of Decision 2004/752 until the Tribunal’s own rules of procedure came into force –, or to request those members, by way of measures of organisation of procedure pursuant to Article 64(3)(c) of that regulation, to provide information relating thereto. The appellant thus did not succeed in reversing the burden of proof which he had to bear in that context.
52      In those circumstances, the submission put forward by the appellant is tantamount to a claim that the mere fact that an alternate member is present in the selection board at the same times as ‘his’ full member is sufficient, in itself, to vitiate the work and the composition of the selection board, by reason of the fact that there is nothing to ensure that the alternate member refrains from expressing his opinion on the performance of the candidates or from taking part in the vote. Thus, the appellant confines himself, essentially, to pleading the mere risk arising from the presence of both full and alternate members at the same time.
53      Faced with such an argument, the Court of First Instance decided in Case T‑290/03 Pantoulis v Commission [2005] ECR‑SC I‑A‑241 and II‑1123, paragraphs 62, 77 and 78, that such simultaneous presence does not render the proceedings and composition of the selection board unlawful, as long as, in such circumstances, the alternate member does not have a vote (see, also, Case T‑100/04 Giannini v Commission [2008] ECR‑SC I‑A‑000, paragraph 210).
54      The Tribunal was therefore justified in rejecting the second part of the plea alleging infringement of the principle of equal treatment.
55      Next, with regard to the submission alleging that the judges at first instance failed to take account of the instability of the selection board, since that board had three different formations rather than only the two erroneously referred to at paragraph 47 of the judgment under appeal, it must be observed that the Tribunal, at paragraphs 47 and 48 of the judgment under appeal (read in conjunction with paragraphs 11 and 13), described the different selection board formations indicating that the chairman and the full member appointed by the appointing authority had been present at all the oral tests, whilst the full member appointed by the staff committee was present only on 15 and 16 September, his alternate member having replaced him on 8, 9 and 10 September adding, however, that the alternate member appointed by the appointing authority was also present at the same time as ‘his’ full member, on all days, except 8 September 2004, which was the day of the appellant’s oral test.
56      As is clear from that description of the manner in which the oral tests were conducted, the Tribunal was aware of the fact that the selection board had in fact sat in three different formations (first: chairman, full member appointed by the appointing authority and full member appointed by the staff committee; second: chairman, a full member and an alternate member both appointed by the appointing authority and a full member appointed by the staff committee; third: chairman, full members and an alternate member appointed by the appointing authority and an alternate member appointed by the staff committee).
57      Although the Tribunal none the less stated in the last sentence of paragraph 47 of the judgment under appeal that the selection board had only ‘two different formations’, that is clearly explained, as the Commission correctly states, by the lack of relevance, for the work of the selection board, of the presence of an alternate member alongside ‘his’ full member, and paragraph 48 of the judgment under appeal expressly stated that that alternate member did not have the right to vote.
58      In those circumstances, the Tribunal did not err in law in finding, at paragraphs 49 and 51 of the judgment under appeal, that there was a core selection board composed of the chairman and the full member appointed by the appointing authority, both of whom were present on all days of the oral tests, thereby ensuring sufficient stability in the composition of the selection board formations.
59      With regard, first, to the submission alleging that the Tribunal, in paragraph 50 of the judgment under appeal, distorted paragraph 2 of the reply filed at first instance, suffice it to observe that that passage of the reply includes no reference, not even an implied one, to the lack of marking criteria fixed by the selection board with a view to harmonising the manner in which the oral tests were conducted, so that the Tribunal cannot be criticised for finding that the appellant had not contested that point. There can, thus, be no question of a distortion of the content of the reply filed at first instance. Second, the argument concerning the disorder which allegedly reigned during the appellant’s oral test and the unequal number, in comparison with the other interviews, of questions asked by the chairman formed part of the fourth part of the plea alleging infringement of the principle of equal treatment. The appellant has refrained from directing his appeal against paragraphs 60 to 64 of the judgment under appeal in which the Tribunal rejected that fourth part of the plea.
60      Lastly, the submission alleging that insufficient reasons were stated in support of the judgment under appeal manifestly cannot be upheld. As is apparent from the foregoing considerations, the Tribunal provided a statement of reasons sufficient to allow this Court to exercise its power to review the appraisal, by the judges at first instance, of the first and second parts of the plea alleging infringement of the principle of equal treatment relied on at first instance.
61      It follows that the plea alleging that the Tribunal infringed the principle of equal treatment must be rejected.
(b)     The plea concerning the admissibility of the submissions put forward at the hearing at first instance
Arguments of the parties
62      With regard to the admissibility of the plea, the appellant points out that the Tribunal requested the Commission to produce certain documents, and he had the opportunity to comment on them at the hearing. It was on the basis of those documents, of which he had no previous knowledge, that the appellant put forward the submissions presented at the hearing. In his appeal, he challenges the Tribunal’s finding that those new submissions were inadmissible, objecting that they were based, as was moreover stated at the hearing at first instance, on facts which came to light for the first time after the written stage of the proceedings. Furthermore, the submissions at issue are closely connected to the plea raised in the original application alleging infringement of the principle of equal treatment. According to the appellant, this is a criticism of the judgment under appeal, and therefore the appeal must, on that basis, be declared admissible.
63      With regard to the substance of the case, the appellant states that he suggested to the Tribunal, for the purpose of establishing the facts, that it obtain the minutes of the oral tests, in order to determine whether his interview was conducted in the spirit of the competition. Following the measures of organisation of procedure ordered at first instance, the Commission produced the decision establishing the composition of the selection board of the competition in question and the minutes of the oral tests, those documents having permitted the appellant to make for the first time the submission put forward at the hearing. In declaring those submissions to be inadmissible, the Tribunal distorted the evidence contained in those documents concerning irregularities affecting the appointment and composition of the selection board. In any event, the Tribunal was under an obligation to raise of its own motion the points contained in the submission concerning those irregularities.
64      Moreover, each of the submissions put forward at the hearing at first instance must be declared to be founded.
65      The Commission states, concerning the admissibility of the plea, that paragraphs 32 to 34 of the judgment under appeal concern exclusively the submissions put forward at the hearing and held to be inadmissible by the Tribunal. Those paragraphs concern the plea alleging infringement of the principle of equal treatment which the judges at first instance dismissed as unfounded on the evidence contained in the application and the reply. The appellant does not explain how the result would have been different if the submissions put forward at the hearing had been held to be admissible. Even if the appeal were to show that the lower court had erred in law, the appeal could be upheld only if the element vitiated by error is essential for the operative part of the judgment under appeal. The Commission thus contends that this Court should dismiss the appeal, since, even if the appellant’s argument concerning paragraphs 32 to 34 of the judgment under appeal were correct, it would have no impact on the operative part of that judgment.
66      With regard to the appellant’s assertion that the submissions made at the hearing should have been held to be admissible inasmuch as, first, they are based on facts which came to light for the first time during the proceedings or, second, they are closely connected to the plea alleging infringement of the principle of equal treatment, the Commission maintains that the question of when a matter arose or whether an argument is connected with an existing plea is one which falls within the discretion of the judge at first instance. Those are questions of fact, which cannot be examined in the context of the present appeal proceedings, since the appellant has not established any distortion of the facts of this case by the judges at first instance.
67      To the extent that the submissions put forward at the hearing at first instance allege breaches of essential procedural requirements, in that the general composition of the selection board was not correct, the Commission contends that reliance on them in the course of proceedings is, in any event, rendered inadmissible by the requirement of a prior complaint, pursuant to Article 90 of the Staff Regulations, and by the principle of consistency between that complaint and the application according to which a plea which has not been raised in the administrative proceedings, cannot be relied on in the judicial proceedings.
68      In fact, according to the Commission, the appellant is inviting the Court of First Instance to consider the merits of the submissions held to be inadmissible at first instance. This cannot be the subject of an appeal, particularly where the submissions involve questions of fact. An argument of this kind could only be considered on appeal in the context of a distortion of the evidence by the Tribunal. The appellant has not, however, established that there was such distortion.
69      Indeed, none of the submissions put forward by the appellant at the hearing at first instance is legally founded.
Findings of the Court
–       Admissibility
70      It must be observed that what the appellant is essentially and primarily attacking is infringement by the judgment under appeal of the first paragraph of Article 48(2) of the Rules of Procedure – applicable mutatis mutandis to the Civil Service Tribunal pursuant to Article 3(4) of Decision 2004/752 until the Tribunal’s own rules of procedure came into force – in maintaining that the submissions put forward at the hearing at first instance were based, as was, moreover, stated at the hearing, on facts which were revealed for the first time after the written stage of the judicial procedure. He adds that the Tribunal should, moreover, have held that those submissions were closely connected with the other pleas alleging infringement of the principle of equal treatment.
71      Contrary to the argument advanced by the Commission, when deciding whether a submission is to be classified as a new plea, within the meaning of the first paragraph of Article 48(2) of the Rules of Procedure, or a permissible amplification of a plea put forward at the appropriate time, the first instance court does not proceed to an assessment of the facts, but determines their legal nature and establishes the legal consequences thereof. Such a legal classification of the facts is a question of law which may be raised in the context of an appeal (see paragraph 45 above). It follows that the plea cannot be held to be inadmissible in that respect.
72      The same is true of the argument alleging that the plea is inoperative, since the appellant has failed to establish that his action would not have been dismissed by the Tribunal if the submissions put forward at the hearing at first instance had been held to be admissible.
73      In that regard, it is sufficient, first, to point out that, in the judgment under appeal, the Tribunal did not examine the merits of the submissions at issue and, second, to note that it cannot be ruled out that those submissions, if they were admissible and well founded, would justify the annulment of the appointing authority’s contested decision. This Court would be in a position to express a view on the merits of the submissions at issue, pursuant to Article 13(1) of Annex I to the Statute of the Court of Justice, only after upholding the appeal, finding that there is a triable dispute and disposing of the case. In those circumstances, the appellant cannot be required to anticipate those steps, at the stage of considering admissibility, and establish that the judgment under appeal would have upheld his action if the submissions at issue had been declared to be admissible.
74      It follows that the plea by which the appellant alleges that the judges at first instance erred in law by holding that the submissions which he had put forward at the hearing at first instance were inadmissible must be held to be admissible.
–       Substance
75      The appellant alleges that the Tribunal, first, infringed the first paragraph of Article 48(2) of the Rules of Procedure by failing to take account of the fact that the submissions at issue were based on documents which the Commission produced only in the course of the proceedings and, second, failed to recognise that the submissions at issue must be held to be admissible on the ground that they were closely connected with the other plea alleging infringement of the principle of equal treatment.
76      In order to assess the merits of that argument, it must be recalled that the first paragraph of Article 48(2) of the Rules of Procedure prohibits the introduction of ‘new pleas’ in the course of the proceedings unless they are based on elements which come to light in the course of the procedure and that the same applies to a submission made in support of a plea in law (Case T‑231/99 Joynson v Commission [2002] ECR II‑2085, paragraph 156). Moreover, that provision in no way excludes the possibility that the elements may have been discovered, as in the present case in the context of a measure of organisation of procedure (Joined Cases C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P Limburgse Vinyl Maatschappij and Others v Commission [2002] ECR I‑8375, paragraph 370). Lastly, the time-bar laid down by that provision inasmuch as it restricts the interested party’s ability to put forward all matters necessary for the success of its claims, should be interpreted restrictively (see, to that effect, Case T‑32/91 Solvay v Commission [1995] ECR II‑1825, paragraph 40).
77      In the present case, it is necessary to note that, at the close of the written procedure at first instance, the Tribunal requested the Commission to produce the decision establishing the composition of the selection board at issue, the records of the oral tests and, in particular, the documents indicating the composition of the selection board for each day of the oral tests (see paragraph 9 above). In response to that request, the Commission filed the requested documents (see paragraph 10 above). Having been informed by the Tribunal that it would have the opportunity to comment on those documents at the hearing at first instance, the appellant essentially put forward, at the hearing of 21 June 2006, a number of new submissions, five in all (see paragraphs 27 and 35 of the judgment under appeal), which, in his appeal, he claims were based on the documents produced by the Commission in the course of the proceedings.
78      In order to determine whether the judges at first instance distorted the evidence contained in the documents at issue by holding the submissions put forward at the hearing at first instance to be inadmissible, it is necessary for this Court to examine whether the case‑file at first instance and, in particular, the documents filed by the Commission are such as to allow this Court to establish the meaning and scope of those submissions and to review whether the Tribunal clearly erred in its reading and assessment of those documents (see, to that effect, Case C‑326/05 P Industrias Químicas del Vallés v Commission [2007] ECR I‑6557, paragraphs 57 to 60).
79      With regard to the submission alleging that the appointment of the selection board was unlawful, it is apparent that it was clearly based solely on the ‘Note for the attention of Mr Erik Halskov, Director pro tem of EPSO’ of 18 August 2003, which is the first of the documents filed by the Commission at the request of the Civil Service Tribunal. That note, written by a head of unit, contains proposals for the appointment of the eight selection boards for ‘Competition EPSO/A/1‑10/03 (Assistant administrators–A 8)’, those proposals having been accepted the same day by Mr Halskov who merely appended his signature to the note. There is nothing on the case‑file to indicate that the appellant was in a position to put forward that submission prior to the hearing at first instance.
80      In that regard, it is necessary to point out that neither the selection board for the competition nor the Commission sent the note to the appellant during the pre-litigation phase of the proceedings on their own initiative. In view of the presumption of legality operating in respect of the decision concerning the appointment and composition of the selection board, the appellant, who initially made no complaint concerning the instability of the selection board during the oral tests, had, in particular, no reason to call into question the legality of the appointment and composition of the selection board or to claim, at the stage of his administrative complaint, that the note of 18 August 2003 or other documents produced later by the Commission in the course of the proceedings should be communicated to him.
81      The Tribunal thus erred in law, in paragraph 34 of the judgment under appeal, when it held that submission to be late and thus inadmissible pursuant to the first paragraph of Article 48(2) of the Rules of Procedure.
82      The same is true of the submission alleging that the number of members present on the selection board was substantially lower than the number of appointed members. That submission was clearly based on the same note of 18 August 2003, from which it is apparent that both the full and the alternate members of the selection board at issue numbered five, and nothing in the case‑file indicates that the appellant was in a position to make it prior to the hearing at first instance.
83      With regard to submissions that all the oral tests took place in the presence of the alternate chairman (Mr Carle), without any explanation being given for the absence of the full chairman (Mr Van Hövell), and that the Commission’s website presented Mr Carle as the full chairman of the selection board while Mr Carle was only the alternate chairman, the Tribunal itself states, at paragraph 27 of the judgment under appeal, that Mr Carle was present as the alternate chairman ‘according to the attendance sheets for the members of the selection board produced by the Commission to the Tribunal at its request’. According to the case‑file, those submissions were clearly based solely on comparing the attendance sheet with the website of the Commission, and there is nothing to indicate that the appellant was in a position to make them prior to the hearing at first instance (see paragraphs 79 and 80 above). The Tribunal thus also erred in law in holding, at paragraph 34 of the judgment under appeal, that those submissions were inadmissible.
84      However, that is not true of the last of the submissions put forward at the hearing at first instance, alleging that Mr Carle presided over the selection board when he was no longer an active official of the Commission. Neither the documents produced by the Commission in the course of the proceedings nor the judgment under appeal contain the least indication justifying the finding that the present submission is closely connected with a matter which came to light only during the procedure. Moreover, the appellant has failed to indicate what prevented him from verifying, even before the start of the oral tests, whether Mr Carle had already retired.
85      With regard to the appellant’s argument that the submissions mentioned above should, furthermore, have been held to be admissible because they are closely connected with the plea alleging infringement of the principle of equal treatment, it should be stated that, in its judgment in Case T‑95/98 Gogos v Commission [2000] ECR‑SC I‑A‑51 and II‑219, paragraphs 25, 37 to 39, 53 and 54 and the case‑law cited, the Court of First Instance, examining the plea alleging infringement of the principle of equal treatment of candidates in conjunction with that alleging an infringement of the rules governing the functioning of selection boards, held that it was for the selection board to ensure that the principle of equal treatment is complied with and for the Community judicature to examine, in that context, whether the composition of the selection board during the oral tests complied with the procedural requirements established by the Community legal order. In that context, this Court stated that a selection board’s failure to abide by the rules governing its work may be characterised as a breach of essential procedural requirements, with the result that it is not necessary for the appellant to prove that the result of the competition might have been different if that breach had not occurred.
86      Having regard to the case‑law, according to which the principle of equality underpins the rules on the composition of selection boards for competitions (Case T‑165/03 Vonier v Commission [2004]ECR‑SC I‑A‑343 and II‑1575, paragraph 40), it is evident that the Civil Service Tribunal erred in law, first, in finding, at paragraph 33 of the judgment under appeal, that the submissions summarised in paragraph 27 of that judgment, with the exception of the last submission, relate, in a general manner, to the question whether the selection board was properly constituted and are not connected with the plea alleging infringement of the principle of equal treatment and, second, in failing thus to take account of the close connection which exists between that principle and the rules on the composition of the selection board.
87      With regard to the last submission, it is sufficient to state that it relates to Mr Carle’s administrative status alone – retired or in active service – and that it is not capable of calling into question the legality of the composition of the selection board or that of its functioning. That administrative status cannot thus be considered to constitute a breach of an essential procedural requirement for the purpose of the case‑law cited above (see also Case T‑80/01 Diehl–Leistner v Commission [2003]ECR‑SC I‑A‑145 and II‑709, paragraph 44). In those circumstances, the Tribunal cannot be criticised as having erred in law in rejecting as inadmissible the submission that Mr Carle had already retired at the date when he acted as chairman of the selection board.
88      The judgment under appeal must thus be set aside in that the Tribunal erred in law in rejecting the submissions summarised in paragraph 27 thereof, with the exception of the last submission – alleging that the chairman of the selection board was not an official in active service –, as inadmissible.
89      Contrary to the argument put forward by the Commission, that finding does not infringe the rule of consistency between the pre-litigation complaint, pursuant to Article 90 of the Staff Regulation, and the subsequent action, which requires, for a plea before the Community judicature to be admissible, that it must have already been raised in the pre-litigation procedure, enabling the appointing authority to know in sufficient detail the criticisms made by the person concerned of the contested decision (see Case T‑175/03 Schmitt v EAR [2004]ECR‑SC I‑A‑211 and II‑939, paragraph 42 and the case‑law cited), the rule being justified by the purpose of the pre-litigation procedure, which is to permit an amicable settlement of the differences which have arisen (see, to that effect, Case 133/88 Del Amo Martinez v Parliament [1989] ECR 689, paragraph 9, and Case T-57/89 Alexandrakis v Commission [1990] ECR II‑143, paragraph 8).
90      The first paragraph of Article 48(2) of the Rules of Procedure expressly allows the introduction, before the Community judicature, of new pleas based on matters which come to light in the course of the judicial procedure. Moreover, the case‑law permits, in situations such as those in this case, the introduction of new pleas (see, to that effect, Case T‑109/92 Lacruz Bassols v Court of Justice [1994]ECR‑SC I‑A‑31 and II‑105, paragraph 67). Furthermore, there is nothing to prevent the defendant institution, faced with a new plea, from contacting the appellant in order to attempt, in parallel with the judicial proceedings – where appropriate after requesting and obtaining a stay thereof –, to reach an amicable settlement.
91      In the light of all the foregoing considerations, the judgment under appeal must be set aside inasmuch as the Tribunal declared inadmissible the submissions put forward by the appellant at the hearing at first instance and summarised in paragraph 27 of the judgment under appeal, with the exception of the last submission. The remainder of the appeal must be dismissed.
D –  Referral of the case back to the Civil Service Tribunal
92      In accordance with Article 13(1) of Annex I to the Statute of the Court of Justice, where the decision of the Civil Service Tribunal is quashed, the Court of First Instance is itself to give judgment in the matter where the state of the proceedings permits a decision by the Court. It is to refer the case back to the Tribunal for judgment where the state of the proceedings does not permit a decision by the Court.
93      In the present case, it is necessary to note that the Tribunal restricted itself to holding the submissions put forward at the hearing at first instance to be inadmissible, after summarising them in paragraph 27 of the judgment under appeal. It cannot thus be found that all the facts necessary for an assessment of those submissions, with the exception of the last submission, were established by the judges at first instance and that, in particular, the appellant had, at first instance, the opportunity to put forward all his arguments in that regard. Therefore, the case must be referred back to the Civil Service Tribunal for it to rule on the submissions, with the exception of the last, summarised in paragraph 27 of the judgment under appeal.
94      Since the case has been referred back to the Civil Service Tribunal, it is appropriate for the costs relating to this appeal to be reserved.
On those grounds,
THE COURT OF FIRST INSTANCE (Appeal Chamber)
hereby:
1.      Sets aside the judgment of the European Union Civil Service Tribunal of 13 December 2006 in Case F‑22/05 Neophytou v Commission to the extent that the Civil Service Tribunal held that the submissions, with the exception of the last, put forward by Mr Neophytos Neophytou at the hearing at first instance and summarised in paragraph 27 of that judgment, were inadmissible.
2.      Dismisses the remainder of the appeal.
3.      Refers the case back to the Civil Service Tribunal.
4.      Orders that the costs be reserved.
Jaeger
Meij
Vilaras
Forwood
Martins Ribeiro
Delivered in open court in Luxembourg on 13 October 2008.
E. Coulon
M. Jaeger
Table of contents
Facts
The procedure at first instance
The judgment under appeal
The appeal
A –  Procedure
B –  Forms of order sought
C –  Law
1.  Admissibility of the appeal
2.  The merits of the appeal
(a) The plea alleging infringement of the principle of equal treatment
Arguments of the parties
Findings of the Court
–  Admissibility
–  Substance
(b) The plea concerning the admissibility of the submissions put forward at the hearing at first instance
Arguments of the parties
Findings of the Court
–  Admissibility
–  Substance
D –  Referral of the case back to the Civil Service Tribunal
* Language of the case: English.