JUDGMENT OF THE COURT OF FIRST INSTANCE (Fourth Chamber)

29 January 1998

Case T-157/96

Paolo Salvatore Affatato

v

Commission of the European Communities

‛Officials — General competitions — Candidate not entered on the list of suitable candidates — Letter correcting a letter initially sent to the candidate — Legal relationship between the institution and a candidate in a competition — Obligation to provide a statement of reasons — Compensation for material and nonmaterial damage — Admissibility’

Full text in Italian II-97

Application for:

first, a finding of the validity of the letter whereby the President of the selection board for competition COM/B/794 informed the applicant that he had been entered on the list of suitable candidates in that competition and, in the alternative, the annulment of the unlawful stages of the competition, and, secondly, compensation for material and nonmaterial damage.

Decision:

Application dismissed. Order to pay compensation for nonmaterial damage.

Abstract of the Judgment

The applicant participated in Open Competition COM/B/794, organised by the Commission in order to draw up a reserve list for the recruitment of administrative assistants in Category B (OJ 1995 C 120 A, p. 9). After sitting the written tests the applicant was admitted to the oral test, which was held on 13 June 1996.

By letter of 5 July 1996 the Head of Unit 7 ‘Recruitment’ of Directorate A ‘Personnel’ of the Directorate-General for Personnel and Administration (DG IX) of the Commission (Unit IX. A.7) informed the applicant, on behalf of the Chairman of the Selection Board for the competition, that the Board had completed its work. He stated, inter alia, that the successful candidates would be chosen from the list of suitable candidates to fill posts which became vacant and that the Commission might therefore request the applicant to attend an interview with a representative of a department which might offer him a post.

By letter of 10 July 1996 the Head of Unit IX.A.7, still acting on behalf of the Chairman of the Selection Board, informed the applicant that the letter sent to him on 5 July 1996 had been sent in error and explained that he had actually passed all the tests but that, unfortunately, his total marks did not allow the Commission to enter him on the list of suitable candidates, in accordance with Section XI of the notice of competition. The applicant was also asked to excuse the Commission for the enormous error represented by the letter of 5 July 1996.

The applicant replied by letter of 18 July 1996, in which he informed the Commission that he did not accept the content of the letter of 10 July 1996 in so far as it had the effect of altering facts which had become final on 5 July 1996. He therefore requested to be reinstated on the list of suitable candidates.

By letter of 2 August 1996 the Head of Unit IX. A.7 confirmed the applicant's total marks as indicated in the letter of 10 July 1996 and rejected the applicant's request.

The principal claim, for a declaration thai the letter of 5 July 1996 from the Chairman of the Selection Board for Competition COM/B/794 informing the applicant that he had been entered on the list of suitable candidates is valid, with the consequence that the applicant must be reinstated on the said list

The legal relations established between candidates in an open competition organised in order to enable the Community civil service, which is governed by the Staff Regulations of Officials of the European Communities (Staff Regulations), in particular Annex III, to function properly and the institution organising the competition come under public law and are subject to the general rules of administrative law (paragraph 19).

The applicant is seeking the annulment of the alleged decision excluding him from the list of suitable candidates in Competition COM/B/794 contained in the letter of 10 July 1996. It follows that the Commission's argument alleging that the Court of First Instance has no jurisdiction to review the matter must be rejected (paragraph 20).

Under Articles 90 and 91 of the Staff Regulations, only actions directed against an act adversely affecting the applicant are admissible. Only acts which directly and immediately affect the applicant's legal situation can be regarded as adversely affecting him. The conditions of admissibility laid down by Articles 90 and 91 are a matter of public policy and the Community judicature must therefore consider them of its own motion (paragraph 21).

See: 204/85 Streghili v Court of Auditors [1987] ECR 389, para. 6; T-587/93 Ortega Urretavizcaya v Commission [1996] ECRSC II-1027, para. 25

The letters of 5 and 10 July 1996, which merely inform the applicant of the decision of the Selection Board in Competition COM/B/794 establishing the list of suitable candidates, the second letter correcting the incorrect information communicated in the first letter, do not per se constitute acts adversely affecting the applicant capable of forming the subject-matter of an action for annulment. On the other hand, the decision of the selection board in Competition COM/B/794 refusing to enter the applicant's name on the list of suitable candidates may in principle form the subject-matter of such an action (paragraph 26).

See: T-74/91 Tancredi v Parliament [1992] ECR II-1645, paras 16 to 18

The alterative claim, for the annulment of the unlawful stages of the competition

The secrecy which, by virtue of Article 6 of Annex III to the Staff Regulations, surrounds the proceedings of the selection board was introduced with a view to guaranteeing the independence of selection boards and the objectivity of their proceedings, by protecting them from all external interference and pressures, whether these come from the Community administration itself or the candidates concerned or third parties. Observance of this secrecy therefore precludes both disclosure of the attitudes adopted by individual members of selection boards and disclosure of any factors relating to individual or comparative assessments of candidates. That being so, the obligation to state the reasons on which decisions of a selection board in a competition are based must take account of the nature of the proceedings concerned (paragraph 33).

See: C-254/95 P Parliament v Innamorati [1996] ECR I-3423, paras 24 and 25

The proceedings of a selection board involve as a rule at least two separate stages, the first being an examination of the applications in order to select the candidates admitted to the competition and the second being an examination of the abilities of the candidates for the posts to be filled in order to draw up a list of suitable candidates. The second stage is primarily comparative in character and is accordingly covered by the secrecy inherent in the proceedings. The comparative assessments made by the selection board are reflected in the marks it allocates to the candidates. The marks are the expression of the value judgments made concerning each of them (paragraph 34).

See: Parliament v Innamorati, cited above, paras 26, 28 and 30

Having regard to the secrecy which must surround the proceedings of a selection board, communication of the marks obtained in the various tests constitutes an adequate statement of die reasons on which the board's decisions are based. In order to take account of the practical problems facing a selection board in a competition with a large number of candidates, it is permissible for the board initially merely to notify candidates of the general result of the tests and to provide the actual figures only at a later stage to those who request them (paragraph 35).

See: Parliament v Innamorati, cited above, paras 31 and 33

It follows from the foregoing that, first, the Selection Board was not required to communicate the marks obtained in the various tests before it had adopted the decision drawing up the list of suitable candidates. Second, it follows from the secrecy inherent in the proceedings of the Selection Board in the second stage of the competition that it was quite proper for the oral test to be held in private and without external witnesses being present. Third, the letter of 10 July 1996 informed the applicant of the marks which he had obtained in the various tests, his total marks and those of the last candidate entered on the list of suitable candidates in accordance with Section XI of the Notice of Competition. It follows that the competition did not infringe any rule of transparency or publicity and that the Selection Board's decision contained an adequate statement of reasons (paragraphs 36 and 37).

The claim for compensation for material and nonmaterial damage

Under Article 19 of the EC Statute of the Court of Justice and Article 44(1 )(c) of the Rules of Procedure of the Court of First Instance, an application must state the subject-matter of the proceedings and a summary of the pleas in law on which it is based. The information given must be sufficiently clear and precise to enable the defendant to prepare his defence and the Court to give a ruling, if necessary without other supporting information. In order to ensure legal certainty and the proper administration of justice, if an action is to be admissible, the essential facts and law on which it is based must emerge, at the very least summarily, but coherently and comprehensibly, from the text of the application itself (paragraph 44).

See: T-387/94 Asia Motor France and Others v Commission [1996] ECR II-961, para. 106

In order to meet these requirements, an application seeking compensation for damage caused by a Community institution must set out the factors from which the conduct alleged against the institution by the applicant may be identified, the reasons for which the applicant considers that there is a causal link between that conduct and the damage which he claims to have suffered, and the nature and extent of that damage. A claim for some unspecified compensation, on the other hand, is not sufficiently concrete and must therefore be regarded as inadmissible (paragraph 45).

See: 5/71 Zuckerfabrik Schöppensteiltv Council [1971] ECR 975, para. 9; T-505/93 Osório v Commission [1994] ECRSC II-581, para. 33

An infringement of Article 19 of the Statute of the Court of Justice and of Article 44(1 )(c) of the Rules of Procedure of the Court of First Instance is among the bars to proceedings which the Court may raise of its own motion at any time in accordance with Article 113 of the Rules of Procedure (paragraph 46).

See: 3/66 Alfieri v Parliament [1966] ECR 437, at 447; Asia Motor France and Others v Commission, cited above, para. 108

In his application, the applicant, without providing further information, has simply claimed that the Court should award him damages in respect of the material and nonmaterial harm which he suffered owing to the ‘conduct of the Selection Board and other related bodies, which was at the least equivocal’. It is impossible on the basis of that claim or of the application taken as a whole to identify with the requisite degree of clarity and precision the nature and extent of the damage which the applicant claims to have suffered or the grounds on which he considers that a causal link exits between the conduct alleged against the Commission and the damage (paragraph ).

Although in special circumstances it is not essential to specify the exact extent of the damage in the application or to quantify the amount of compensation sought, in the present case the applicant has neither established nor even claimed the existence of such circumstances (paragraph 48).

See: T-64/89 Automec v Commission [1990] ECR II-367, paras 75 to 77; Osório v Commission, cited above, para. 35

With regard to the nonmaterial damage claimed, quite apart from the complete absence of any quantification thereof, the applicant has not placed the Court in a position to assess the extent or character of that damage. Whether a symbolic reparation or true compensation is claimed, it is for the applicant to specify the nature of the alleged nonmaterial damage in relation to the conduct of the Commission of which he complains and then to quantify, even approximately, the amount thereof (paragraph 49).

See: T-112/94 Moat v Commission [1995] ECRSC II-135, para. 38

Since the present case involves proceedings in which the Court has unlimited jurisdiction it has, notwithstanding the absence of any properly formulated claim to that effect, the power not only to annul but also, if need be, of its own motion to order the defendant to pay compensation for the nonmaterial damage caused by a service-related fault (paragraph 51).

See: 44/59 Fiddelaar v Commission [1960] ECR 535, at 542-3; 24/79 Oberthürv Commission [1980] ECR 1743, para. 14; T-90/91 and T-62/92rfe Compte v Parliament [1995] ECRSC II-1, para. 64

In that regard, the Community institutions, which are large and well-equipped organisations, must show diligence towards those affected by their decisions. In the present case the error committed by the Commission is the result of a manifest lack of diligence on the part of the Commission towards the applicant, which is such as to constitute a service-related fault whose effect is to cause the applicant nonmaterial damage. Even though the receipt by a candidate in a competition of a letter informing him that he has not been entered on the list of suitable candidates is normally likely to provoke a negative reaction on his part, in the present case the letter of 10 July 1996 informing the applicant that he had not been entered on the list of suitable candidates was preceded by the letter of 5 July 1996 mistakenly informing him that he had and thus adding to his disappointment and causing him additional suffering of such a nature as to constitute nonmaterial damage (paragraphs 52 to 54).

See: de Compte v Parliament, cited above, para. 65

Operative part:

The claims in the application are dismissed.

The Commission is ordered to pay the applicant BFR 30000 by way of compensation for nonmaterial damage.