JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Second Chamber)

23 January 2013

Case F‑24/11

Nicolas Katrakasas

v

European Commission

(Civil service — Internal competitions COM/INT/OLAF/09/AD 8 and COM/INT/OLAF/09/AD 10 — Fraud prevention — Reconsideration of the decision to admit to take the oral test — Reconsideration of the decision not to include on the reserve list — Plea of illegality of the notice of competition — Conditions concerning diplomas and professional experience — Anonymity rule — Breach of Article 31 of the Staff Regulations — Misuse of powers — Subject of the written test favouring one category of candidates — Behaviour of a member of the selection board during the oral test)

Application: brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, whereby Mr Katrakasas seeks, in essence, annulment of the decision of the selection board for internal competition COM/INT/OLAF/09/AD 8 of 11 May 2010, confirming, after reconsideration, its decision of 9 March 2010 not to include him on the reserve list.

Held: The action is dismissed. The applicant is to bear his own costs and is ordered to pay those incurred by the Commission.

Summary

1. Actions brought by officials — Action brought against a decision not to include the applicant on the reserve list for a competition — Possibility of relying on the irregularity of the notice of competition in order to challenge non-inclusion — Conditions

(Staff Regulations, Art. 91)

2. Officials — Competitions — Competition based on qualifications and tests — Conditions for admission — Fixing by the competition notice — Selection board’s assessment of candidates’ professional experience — Judicial review — Limits

(Staff Regulations, Annex III, Arts 2 and 5)

3. Officials — Competitions — Competition based on qualifications and tests — Implementation and weighting of marking criteria — Selection Board’s discretion

(Staff Regulations, Annex III)

4. Officials — Competitions — Competition based on qualifications and tests — Assessment of candidates’ abilities — Selection Board’s discretion — Judicial review — Limits

(Staff Regulations, Annex III)

1. In the context of a recruitment procedure, the applicant may, in an action brought against subsequent measures, such as a decision not to include him on the reserve list for a competition, claim the irregularity of earlier measures which are closely linked to them. Thus, the Civil Service Tribunal may, in view of the interrelation between the various steps which make up the recruitment procedure, examine whether a preparatory act, such as the notice of competition, which is closely linked to the contested decision, may be unlawful.

More precisely, where the plea alleging irregularities in the notice of competition, which has not been challenged in good time, concerns the statement of reasons for the contested individual decision, the action is accepted as admissible. A candidate in a competition must not be deprived of the right to challenge all the elements, including those defined in the notice of competition, comprising the justification for the individual decision concerning him taken on the basis of the conditions laid down in the notice, in so far as only that specific decision applying them affects his legal position individually and enables him to ascertain with certainty how and to what extent his personal interests are affected.

Conversely, where there is no close link between the actual statement of reasons for the contested decision and the plea alleging that the notice of competition, which was not challenged in good time, is unlawful, that plea must be declared inadmissible, in application of the public-policy rules on time-limits for bringing actions, from which there can be no derogation, in a situation of that type, without undermining the principle of legal certainty.

(see paras 68, 70, 71)

See:

11 March 1986, 294/84 Adams and Others v Commission, para. 17

15 February 2005, T‑256/01 Pyres v Commission, para. 16; 31 January 2006, T‑293/03 Giulietti v Commission, paras 39, 41 and 42 and the case-law cited

2. It is for the selection board in a competition to assess in each case whether the professional experience of each candidate corresponds to the level required by the notice of competition. The selection board enjoys a discretion in that regard, under the provisions of the Staff Regulations concerning competition procedures, in assessing the nature and duration of the previous experience of candidates and the extent to which they satisfy the requirements of the post to be filled. In its review of legality, the Civil Service Tribunal must therefore confine itself to ascertaining whether the selection board’s exercise of that discretion was free from manifest errors.

(see para. 124)

See:

1 July 2010, F‑40/09 Časta v Commission, para. 58 and the case-law cited; 23 October 2012, F‑57/11 Eklund v Commission, para 50 and the case-law cited

3. The selection board in a competition enjoys a wide discretion in conducting its proceedings. Consequently, where the notice of competition does not lay down criteria for marking, it may fix such criteria or, where the notice lays down such criteria but does not specify their respective weighting, it may determine that weighting.

(see para. 136)

See:

8 July 2010, F‑17/08 Wybranowski v Commission, para. 32 and the case-law cited

4. A selection board’s assessment of candidates’ knowledge and ability is of a comparative nature. Such assessments, and the decisions whereby the selection board establishes that a candidate has been unsuccessful in a test, constitute the expression of a value judgement of a candidate’s performance in the test. They fall within the wide discretion enjoyed by the selection board and are amenable to review by the Courts only where there has been a breach of the rules governing the selection board’s proceedings. It follows that where, in an action for annulment of the decision of a selection board declaring that the applicant has failed the eliminatory tests, the applicant does not allege a breach of the rules governing the proceedings of the board or does not provide proof of such a breach, the Courts of the European Union have no jurisdiction to review the validity of the selection board’s assessment.

(see paras 148, 161, 184)

See:

1 December 1994, T‑46/93 Michaël-Chiou v Commission, para. 49; 23 January 2003, T‑53/00 Angioli v Commission, para. 91 and the case-law cited; 12 March 2008, T‑100/04 Giannini v Commission, para. 276 and the case-law cited