JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(Third Chamber)

23 September 2009

Case F-22/05 RENV

Neophytos Neophytou

v

Commission of the European Communities

(Civil service – Referral back to the Tribunal after setting aside – Open competition – Not included on the reserve list – Selection board – Appointment)

Application: brought under Articles 236 EC and 152 EA, in which Mr Neophytou seeks, in essence, the annulment of the decision of 24 September 2004 of the selection board for open competition EPSO/A/1/03 not to include his name on the reserve list published in the Official Journal of the European Union (OJ 2004 C 285 A, p. 3).

Held: The action is dismissed. The Commission is to pay, in addition to all its own costs relating to the proceedings before the Tribunal and the Court of First Instance, half of the costs incurred by the applicant relating to those proceedings. The applicant is ordered to bear half of his own costs relating to the proceedings before the Tribunal and the Court of First Instance.

Summary

1. Procedure – Actions – Plea alleging infringement of the scope of the law’s application – Finding made by the Tribunal of its own motion

2. European Personnel Selection Office (EPSO) – Definition of the responsibilities of the Management Board and Head of EPSO – Appointment of members of a selection board – Responsibilities of the Head of EPSO

(Decision 2002/621 of the Secretaries-General of the European Parliament, the Council and the Commission, the Registrar of the Court of Justice, the Secretaries-General of the Court of Auditors, the Economic and Social Committee and the Committee of the Regions, and the Representative of the European Ombudsman, Arts 6 and 8)

3. European Personnel Selection Office (EPSO) – Appointment of members of a selection board – Appointment by the Director of EPSO – Interference with the powers of the appointing authority – None

4. Officials – Recruitment – Competitions – Selection board – Composition

(Staff Regulations, Annex III, Art. 3, second para.)

1. A plea relating to the scope of the law’s application raises a matter of public policy and it is for the Community judicature to consider such a plea of its own motion. The Community judicature would be neglecting its function as the arbiter of legality if, even in the absence of a challenge by the parties in this regard, it failed to make a finding that the contested decision before it had been adopted on the basis of a rule that was not applicable to the circumstances of the case and if, as a consequence, it was led to adjudicate on the dispute before it by itself applying such a rule. In that respect, the ‘law’ is not to be understood as meaning the law in the formal sense of the word but as referring to any provision of a general and impersonal nature that is applicable to the dispute.

(see paras 56-58)

See:

T-576/93 to T-582/93 Browet and Others v Commission [1994] ECR II‑677, para. 35

F‑31/07 Putterie-De-Beukelaer v Commission [2008] ECR-SC I‑A‑1‑0000 and II‑A‑1‑0000, para. 51, on appeal before the Court of First Instance, Case T‑160/08 P

2. The areas of responsibility of the Management Board of the European Personnel Selection Office (EPSO) are not defined in a provision of a general nature but in a list of the series of tasks conferred on the board, which is set out in Article 6 of Decision 2002/621 on the organisation and operation of EPSO. That list, which is necessarily exhaustive, should not be broadly construed.

By contrast, the areas of responsibility of the Head of EPSO are defined in a provision of a general nature. Under the terms of Article 8(1) of Decision 2002/621, the Head is responsible for the smooth running of EPSO. Within the area of responsibility of the Management Board, the Head of EPSO is to act under the authority of the latter. He or she is to provide secretarial services for the Management Board, report to it on the performance of his or her duties and submit to it any suggestion for the smooth running of EPSO.

The areas of responsibility of the Management Board thus relate to the running and organisation of EPSO, its general policy and its budget, whereas the Head is responsible for the day‑to‑day management of EPSO.

It follows that, since the appointment of the members of a competition selection board lies outside the area of responsibility of the Management Board set out in Article 6 of Decision 2002/621, the decision appointing those members is a task which must be regarded as forming part of the day‑to‑day management of EPSO and which, accordingly, falls within the responsibility of its Head.

(see paras 92-97)

3. The fact that the Head of the European Personnel Selection Office (EPSO) appointed the members of a selection board by countersigning a document prepared by EPSO’s staff summarising the proposals communicated by the institutions does not mean that as appointing authority he did not properly exercise his powers. First, when the appointing authority is to make a decision on the basis of a proposal, the fact that the decision taken is in line with the proposal submitted cannot of itself mean that the appointing authority has failed to exercise its powers. To argue otherwise would be to deny the appointing authority the freedom ever to adopt a decision consonant with a proposal that has been put to it. Second, subject to compliance with the procedure laid down by the applicable texts, the administration is free to determine the practical measures for the adoption of decisions and a decision cannot be called in question merely on the ground that it became effective by means of the apposition to the written statement of its contents of the dated signature of the person vested with the decision-making power.

(see paras 107-109)

4. The second paragraph of Article 3 of Annex III to the Staff Regulations provides that ‘[f]or open competitions common to two or more institutions, the Selection Board shall consist of a chairman appointed by the appointing authority … and of members 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’. The phrase ‘in such a way as to ensure equal representation’ is to be understood to refer to the appointment by the appointing authority and the Staff Committees of the ‘members’ other than the chairman. That meaning is confirmed when the provision is construed in its context. This provision is to be read in the light of the first paragraph of Article 3 of Annex III to the Staff Regulations, which provides, in relation to competitions organised by a single institution, that the selection board is to consist of a chairman designated by the appointing authority and members designated in equal numbers by the appointing authority and the Staff Committee.

Accordingly, the second paragraph of Article 3 of Annex III to the Staff Regulations has to be understood as providing that, in the case of an open competition common to two or more institutions, the selection board is to be composed of a chairman appointed by the appointing authority and of members appointed in equal numbers, on the one hand, by the appointing authority on a proposal from the institutions and, on the other, by the Staff Committees of the institutions by agreement between them.

(see paras 112-114, 116)

JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL (THIRD CHAMBER)

23 September 2009 ( )

(Civil service – Referral back to the Tribunal after setting aside – Open competition – Not included on the reserve list – Selection board – Appointment)

In Case F‑22/05 RENV,

ACTION under Articles 236 EC and 152 EA,

Neophytos Neophytou, residing in Itzig (Luxembourg), represented by S.A. Pappas, lawyer,

applicant,

v

Commission of the European Communities, represented by J. Currall and H. Krämer, acting as Agents,

defendant,

THE TRIBUNAL (Third Chamber),

composed of P. Mahoney (Rapporteur), President, H. Kanninen and S. Gervasoni, Judges,

Registrar: W. Hakenberg,

having regard to the procedure under Article 114 of the Rules of Procedure,

gives the following

Judgment

1 By application received by fax at the Registry of the Court of First Instance of the European Communities on 21 April 2005 (the original being lodged on 28 April 2005), Mr Neophytou seeks, in essence, the annulment of the decision of 24 September 2004 of the selection board for open competition EPSO/A/1/03 not to include his name on the reserve list published in the Official Journal of the European Union (OJ 2004 C 285 A, p. 3) (‘the contested decision’).

Legal context

2 Article 2 of the Staff Regulations of Officials of the European Communities, in the version resulting from Council Regulation (EC, Euratom) No 723/2004 of 22 March 2004 amending those regulations and the Conditions of Employment of other servants of the European Communities (OJ 2004 L 124, p. 1) (‘the Staff Regulations’), provides as follows:

‘1. Each institution shall determine who within it shall exercise the powers conferred by these Staff Regulations on the appointing authority.

2. However, one or more institutions may entrust to any one of them or to an inter-institutional body the exercise of some or all of the powers conferred on the Appointing Authority other than decisions relating to appointments, promotions or transfers of officials.’

3 The first sentence of the first paragraph of Article 30 of the Staff Regulations provides that, for each competition, a selection board is to be appointed by the appointing authority.

4 Article 3 of Annex III to the Staff Regulations, concerning competitions, provides as follows:

‘The Selection Board shall consist of a chairman designated by the Appointing Authority and of members designated by the Appointing Authority and the Staff Committee, each designating the same number.

For open competitions common to two or more institutions, the Selection Board shall consist of a chairman appointed by the appointing authority referred to in Article 2(2) of the Staff Regulations and of members appointed by the appointing authority referred to in Article 2(2) of the Staff Regulations 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.

...’

5 Article 7(1) of Annex III to the Staff Regulations provides as follows:

‘The institutions shall, after consultation of the Staff Regulations Committee, entrust the European Communities Personnel Selection Office [EPSO] with responsibility for taking the necessary measures to ensure that uniform standards are applied in the selection procedures for officials of the Communities and in the assessment and in the examination procedures referred to in Articles 45 and 45a of the Staff Regulations.’

6 Decision 2002/620/EC of the European Parliament, the Council, the Commission, the Court of Justice, the Court of Auditors, the Economic and Social Committee, the Committee of the Regions and the European Ombudsman establishing EPSO was adopted on 25 July 2002 (OJ 2002 L 197, p. 53).

7 Under the first sentence of Article 2(1) of Decision 2002/620, EPSO is to exercise the powers of selection conferred under the first paragraph of Article 30 of the Staff Regulations and under Annex III thereto on the appointing authorities of the institutions signing that decision.

8 Decision 2002/621/EC of the Secretaries-General of the European Parliament, the Council and the Commission, the Registrar of the Court of Justice, the Secretaries‑General of the Court of Auditors, the Economic and Social Committee and the Committee of the Regions, and the Representative of the European Ombudsman on the organisation and operation of EPSO was adopted on 25 July 2002 (OJ 2002 L 197, p. 56).

9 Article 2 of Decision 2002/621, entitled ‘Responsibilities of the institutions’, is worded as follows:

‘The appointing authority of each institution shall make available to [EPSO] a sufficient number of selection board members, examiners and invigilators on the basis of the “quota” approved by the Management Board as provided for in Article 6(i), to enable the selection procedures to proceed smoothly in accordance with Article 3 of Annex III to the Staff Regulations.’

10 Paragraph 1 of Article 5 of Decision 2002/621, entitled ‘Management Board’, provides as follows:

‘A Management Board shall be set up for [EPSO], comprising one member appointed by each institution and three staff representatives with observer status appointed by common assent by the staff committees of the institutions.’

11 Article 6 of Decision 2002/621, entitled ‘Tasks of the Management Board’, is worded as follows:

‘In the common interest of the institutions, the Management Board shall:

(a) acting by a qualified majority, approve the rules governing the running of [EPSO];

(b) acting by a simple majority on a proposal from the Head of [EPSO], approve the organisational structure of [EPSO];

(c) acting by a qualified majority on proposals from the Head of [EPSO], … approve the principles governing the selection policy to be followed by [EPSO];

(d) acting by a simple majority under the budget procedure on the basis of a draft drawn up by the Head of [EPSO], draw up an estimate of the [EPSO’s] revenue and expenditure …;

(e) acting by a simple majority, approve the type of and the rates chargeable for additional services that [EPSO] may perform against payment for the institutions, bodies, offices and agencies and the conditions under which [EPSO] may perform them;

(f) acting unanimously on a proposal from the Head of [EPSO], approve the work programme, and in particular the scheduling of and timetable for competitions to be organised. …;

(g) acting by a qualified majority on the basis of a draft prepared by the Head of [EPSO], approve an annual management report covering all individual revenue and expenditure headings relating to work performed and services provided by [EPSO]. …;

(h) acting by a simple majority, approve a fair, balanced breakdown of the variable and direct costs to be charged for analytical purposes to the individual institutions and update it every three years;

(i) acting by a simple majority on the basis of recruitment needs, agree on rules whereby each institution is to make a suitable number of selection board members, examiners and invigilator available to [EPSO];

(j) acting by a simple majority, approve the conditions under which [EPSO] may grant agreement to the institutions to organise their own competitions in accordance with Article 2(1) of Decision [2002/620].’

12 Paragraph 1 of Article 7 of Decision 2002/621, entitled ‘Appointment of staff’, provides as follows:

‘[EPSO] shall be administered by a Head appointed by the Commission [of the European Communities] after the Management Board has issued a favourable opinion by a simple majority. …’

13 Paragraph 1 of Article 8 of Decision 2002/621, entitled ‘Tasks of the Head of [EPSO]; management of staff’, is worded as follows:

‘The Head of [EPSO] shall be responsible for the smooth running of [EPSO]. Within the area of responsibility of the Management Board, he or she shall act under the authority of the latter. He or she shall provide secretarial services for the Management Board, shall report to it on the performance of his or her duties and shall submit to it any suggestion for the smooth running of [EPSO].’

Background to the dispute

14 In 2003, the applicant 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) (‘the competition notice’). The competition in which the applicant participated formed part of a series of competitions advertised under references EPSO/A/1/03 to 10/03 and intended for nationals of the new Member States.

15 It is apparent from Section A of the competition notice that the competition was common to several institutions. According to Section A, the objective of the competition was to constitute a reserve list from which vacant posts within the various institutions of the European Union could be filled.

16 Open competition EPSO/A/1/03 covered four fields, from which the candidates had to choose one. The applicant chose the field of ‘European public administration’.

17 By decision of 18 August 2003, the Head of EPSO, acting in the capacity of appointing authority, appointed the members of the selection boards for competitions EPSO/A/1/03 to 10/03 (‘the decision of 18 August 2003’). As a result of that decision, the selection board for competition EPSO/A/1/03 consisted of 10 members, that is to say, five full members and five alternate members. The chairman and alternate chairman were Mr van Hövell and Mr Carle, respectively.

18 By letter of 5 February 2004, the applicant was informed that he had been successful in the pre-selection tests and invited to submit a full application with a view to his admission to the competition. Following acceptance of this full application, he took the written tests. After having been successful in the written tests, he was invited to attend the oral tests.

19 By decision of 5 May 2004, the Head of EPSO reorganised the selection boards for competitions EPSO/A/1/03 to 10/03 for the field of European public administration (‘the decision of 5 May 2004’). That decision stated that the purpose of the reorganisation was set up four selection boards, instead of the two which had been appointed by the decision of 18 August 2003, in order to enable the oral tests to proceed as smoothly as possible. As a result of the decision of 5 May 2004, the selection board for competition EPSO/A/1/03 consisted thereafter of six members, that is to say, three full and three alternate members. The chairman and alternate chairman of the selection board were Mr Carle and Mr van Hövell, respectively.

20 The applicant took the oral test on 8 September 2004. At the test, he was questioned by a selection board composed of a chairman, Mr Carle, and of two other members.

21 The selection board notified the applicant by letter of 24 September 2004 that it was not possible for his name to be included on the reserve list of successful candidates.

22 On 19 October 2004, the applicant submitted a complaint against the contested decision pursuant to Article 90(2) of the Staff Regulations.

23 The appointing authority rejected the applicant’s complaint by letter of 21 January 2005.

Procedures before the Tribunal and the Court of First Instance

24 The present action was initially lodged at the Registry of the Court of First Instance as Case T‑165/05.

25 By order of 15 December 2005, 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), the Court of First Instance referred the present case to the Tribunal. The action was registered at the Registry of the Tribunal as Case F‑22/05.

26 The applicant put forward three pleas in law in support of his action. The first plea, alleging infringement of the principle of non-discrimination, was divided into four parts. In the first part, the applicant objected in particular that the composition of the selection board had varied in the course of the oral tests and, in the second part, challenged the presence on the selection board of both full and alternate members at the same time. The second and third pleas alleged, respectively, infringement of the competition notice and that the selection board had exceeded the limits of its discretion.

27 At the conclusion of the written procedure, by way of measure of organisation of procedure, the Tribunal asked the Commission to produce, inter alia, the decision establishing the composition of the selection board for competition EPSO/A/1/03 and those parts of the record relating to the composition of the selection board for each day of the oral tests.

28 In compliance with the Tribunal’s request, the Commission produced, inter alia, the decision of 18 August 2003 and those parts of the record relating to the composition of the selection board for each day of the oral tests.

29 By letter of 29 May 2006, the Registrar of the Tribunal sent to the applicant a copy of the documents provided by the Commission and informed him that he would have the opportunity to comment on them at the hearing.

30 At the hearing on 21 June 2006, the applicant raised a number of additional complaints. He maintained, first, that the selection board had not been lawfully appointed by the Commission, since the Head of EPSO had not properly exercised his powers. Next, he objected 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 also stated that all the oral tests were presided over by the alternate chairman, without any explanation being given for the absence of the chairman proper. Moreover, the applicant observed that on EPSO’s website Mr Carle was 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.

31 By judgment in Case F‑22/05 Neophytou v Commission [2006] ECR‑SC I‑A‑1‑159 and II‑A‑617 (‘the judgment of the Tribunal’), the Tribunal (Third Chamber) dismissed the applicant’s action. The Tribunal held to be inadmissible, in particular, the complaints introduced by the applicant at the hearing, on the ground that neither had they been relied on, whether directly or by implication, in the application, nor were they closely connected with the other pleas relied on in the application and also on the ground that the applicant had failed to specify matters of fact or of law coming to light in the course of the proceedings on which those new complaints were based and to explain why he had not been in a position to be aware of those matters beforehand (judgment of the Tribunal, paragraphs 32 to 35).

32 By application lodged at the Registry of the Court of First Instance on 14 February 2007, the applicant appealed against the judgment of the Tribunal, pursuant to Article 9 of the Annex to the Statute of the Court of Justice. The appeal was registered as Case T‑43/07 P.

33 The applicant relied on two grounds, alleging errors of law, in support of his appeal. He criticised the Tribunal for concluding, first, that there had been no infringement of the principle of equal treatment and, second, that the complaints raised at the hearing at first instance were inadmissible.

34 In its judgment in Case T‑43/07 P Neophytou v Commission [2008] ECR II‑0000 (‘the judgment of the Court of First Instance’), the Court of First Instance upheld the second ground of appeal, finding that the Tribunal had erred in law in holding that the submissions put forward by the applicant at the hearing, with the exception of the last submission, were new pleas which it was necessary to reject as inadmissible. The Court of First Instance therefore set aside the judgment of the Tribunal to the extent that it had held those submissions to be inadmissible. The appeal was dismissed as to the remainder. Moreover, the Court of First Instance found that all the facts necessary for an assessment of the submissions made at the hearing had not been established by the judges at first instance. The Court of First Instance therefore referred the case back to the Tribunal to give a ruling on those submissions and ordered that the costs be reserved.

35 By fax received at the Registry of the Tribunal on 19 December 2008 (the original being lodged on 22 December 2008), the applicant lodged a statement of written observations in accordance with Article 114(1) of the Rules of Procedure.

36 The Commission lodged a statement of written observations on 20 February 2009, pursuant to Article 114(2) of the Rules of Procedure. The Commission produced as an annex to that statement, inter alia, a memorandum from the Head of EPSO dated 4 May 2004 and the decision of 5 May 2004 to reorganise the selection boards for competitions EPSO/A/1/03 to 10/03.

37 The Tribunal invited the applicant, pursuant to Article 114(5) of the Rules of Procedure, to submit any observations on the statement lodged by the Commission.

38 The applicant lodged a second statement of written observations by fax on 23 March 2009 (the original being lodged on 25 March 2009).

39 The Tribunal invited the Commission, pursuant to Article 114(5) of the Rules of Procedure, to submit any observations on the applicant’s second statement.

40 The Commission lodged a second statement of written observations by fax on 30 April 2009 (the original being lodged on 4 May 2009).

41 By letter of 8 June 2009, the Tribunal indicated to the parties that, in view of the fact that there had been what amounted to two exchanges of pleadings in the proceedings before the Tribunal following the judgment of the Court of First Instance, it proposed to proceed to judgment without holding a hearing, on the basis of Article 114(6) of the Rules of Procedure and Article 48(2) of those rules, applied mutatis mutandis.

42 By letters dated 10 and 12 June 2009 respectively, the Commission and the applicant stated that they had no objection to proceeding in such a manner.

Forms of order sought by the parties in the proceedings following referral back of the case

43 The applicant claims that the Tribunal should:

– annul the contested decision;

– order the Commission to pay the costs.

44 The Commission contends that the Tribunal should:

– dismiss the action;

– make an appropriate order as to costs.

Law

45 It is apparent from paragraphs 11 and 93 of the judgment of the Court of First Instance that the Tribunal is called on to rule on the following submissions:

– the selection board was not lawfully appointed by the Commission in so far as the Head of EPSO did not properly exercise his powers;

– 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;

– all the oral tests were presided over by an alternate chairman without any explanation being given for the absence of the chairman proper;

– on EPSO’s website, Mr Carle was 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.

46 Those submissions may be grouped together into two pleas, alleging, respectively, that the appointment of the selection board was unlawful (first plea) and that the composition of the selection board was unlawful (second plea), it being possible to regard the last three submissions set out in the preceding paragraph as being put forward in support of the second plea.

47 The Commission annexed to its first statement of written observations new evidence, the admissibility of which is contested by the applicant. That question must be examined as a preliminary point.

1. Whether the evidence produced by the Commission as an annex to its first statement of written observations is admissible

Arguments of the parties

48 The Commission explains that the decision of 18 August 2003 was replaced by the decision of 5 May 2004. This latter text the Commission annexed to its first statement of written observations, while regretting that it had failed to communicate it to the Tribunal at the same time as the decision of 18 August 2003, which had been communicated in implementation of the measure of organisation of procedure adopted by the Tribunal.

49 The Commission states that, as a result of the decision of 5 May 2004, first, the competition selection board consisted of three full members and three alternate members and, second, the chairman and alternate chairman were Mr Carle and Mr van Hövell, respectively. There was therefore no divergence between the decision appointing the selection board and the information recorded relating to the composition of the selection board on the day of the applicant’s oral test.

50 In his second statement of written observations, the applicant contends that the new evidence produced by the Commission is inadmissible. He points out, first, that under Article 42 of the Rules of Procedure the parties may offer further evidence in support of their arguments until the end of the hearing, on condition that the delay in offering it is duly justified and, second, that Article 114(4) of the Rules of Procedure provides that, where the written procedure before the Tribunal had not been completed when the judgment referring the case back to the Tribunal was delivered, it is to be resumed at the stage which it had reached. Accordingly, the rule that the parties may offer further evidence in support of their arguments until the end of the hearing, on condition that the delay in offering it is duly justified is also applicable in the procedure before the Tribunal following a decision setting aside a judgment of the Tribunal and referring the case back to it, in circumstances where the written procedure had not been completed when the decision setting aside the earlier judgment of the Tribunal and referring the case back to it was delivered. In the present case, however, the written procedure had been completed by the time the judgment of the Court of First Instance was delivered. The new evidence submitted by the Commission is therefore inadmissible. Moreover, the Commission failed to give a plausible explanation as to why it did not provide that evidence when the Tribunal requested it.

51 In its second statement of written observations, the Commission contends that the purpose of the rule on the submission of evidence is to enable the proceedings to be conducted effectively and to protect the rights of defence. However, such a rule is not intended to form an obstacle to the preparation of the case for hearing at the initiative of the Tribunal. The Commission observes that, in the present case, the applicant has been afforded the opportunity to submit his observations on the disputed evidence. It therefore takes the view that the solution to be adopted in the circumstances is not to declare the evidence inadmissible but, if appropriate, for the Tribunal’s decision on costs to take due account of the fact that the Commission has inadvertently caused time to be wasted for the applicant and the Tribunal.

Findings of the Tribunal

52 By way of measure of organisation of procedure adopted at the conclusion of the written procedure, the Tribunal requested the Commission to produce, inter alia, the decision establishing the composition of the selection board for competition EPSO/A/1/03. In response to that request, the Commission produced the decision of 18 August 2003. It was only in the procedure before the Tribunal following the judgment of the Court of First Instance that the Commission produced, as an annex to its first statement of written observations, a memorandum from EPSO dated 4 May 2004 and the decision of 5 May 2004.

53 As the Commission acknowledges, it produced the documents at issue belatedly. Those documents, which relate to the composition of the competition selection board, should have been produced by the Commission in implementation of the measure of organisation of procedure adopted by the Tribunal, by which the latter requested the institution to produce, inter alia, the decision establishing the composition of that selection board.

54 Contrary to the applicant’s submissions, the documents at issue cannot be regarded as an offer of evidence within the meaning of Article 42 of the Rules of Procedure but must be regarded as a response, albeit belated, to a measure of organisation of procedure within the meaning of Articles 55 and 56 of the Rules of Procedure.

55 It is in the light of that characterisation that it is necessary to determine the consequences of the belated production of those documents and, in particular, whether that evidence should be rejected, as the applicant contends.

56 As the Court of First Instance held in Joined Cases T‑576/93 to T‑582/93 Browet and Others v Commission [1994] ECR II‑677, paragraph 35, a plea relating to the scope of the law’s application raises a matter of public policy and it is for the Tribunal to consider such a plea of its own motion.

57 The Tribunal would be neglecting its function as the arbiter of legality if, even in the absence of a challenge by the parties in this regard, it failed to make a finding that the contested decision before the Tribunal had been adopted on the basis of a rule that was not applicable to the circumstances of the case and if, as a consequence, it was led to adjudicate on the dispute before it by itself applying such a rule (judgment in Case F‑31/07 Putterie-De-Beukelaer v Commission [2008] ECR‑SC I‑A‑I‑0000 and II‑A‑I‑0000, paragraph 51, which is the subject of an appeal before the Court of First Instance in Case T‑160/08 P).

58 It must be pointed out that the ‘law’, for the purpose of that case‑law, is not to be understood as meaning the law in the formal sense of the word but as referring to any provision of a general and impersonal nature that is applicable to the dispute.

59 In the present case, the decision of the appointing authority appointing the competition selection board is one component of the legal framework applicable to the dispute between the parties, in which one of the pleas relied on alleges that the composition of the selection board was unlawful in the light of that decision.

60 It is apparent from the documents provided by the Commission as an annex to its first statement of written observations that the decision of 18 August 2003 was replaced by the decision of 5 May 2004.

61 Accordingly, the Tribunal would be neglecting its function as the arbiter of legality if it adjudicated on the dispute before it by applying a decision that was not applicable to the circumstances of the case.

62 The applicant’s request that the EPSO memorandum of 4 May 2004 and the decision of 5 May 2004 be ruled inadmissible must therefore be rejected.

2. The plea alleging that the appointment of the selection board was unlawful

Arguments of the parties

Arguments of the applicant

63 The applicant maintains that both the decision of 18 August 2003 and the decision of 5 May 2004 are unlawful.

64 With regard, first, to the decision of 18 August 2003, at the hearing held on 21 June 2006 in the proceedings which led the judgment of the Tribunal, after pointing out that, in accordance with the Staff Regulations, it is for the appointing authority to determine the composition of a competition selection board, the applicant expressed the view that the appointing authority, which in this case was EPSO, did not properly exercise its powers relating to the appointment of the selection board. In his submission, that authority simply received a proposal ‘from the administration’, which it merely endorsed.

65 In his first statement of written observations, the applicant also submitted that, where there is an open competition common to several institutions, the competent appointing authority is not the Head of EPSO but the EPSO Management Board. The applicant bases that assertion on Article 6(f) of Decision 2002/621, which provides that the Management Board is to approve the work programme, and in particular the scheduling of and timetable for competitions to be organised. The applicant infers from this that, in the circumstances, since the competition selection board was appointed by the Head of EPSO and not the EPSO Management Board, the appointment was unlawful.

66 In his first statement of written observations, the applicant reiterated and elaborated upon the argument put forward at the hearing on 21 June 2006 that the appointing authority failed properly to exercise its powers. According to the applicant, the Head of EPSO did no more than endorse proposals formulated by the Head of EPSO’s ‘Selection policy/Legal questions/Information and communication’ unit. However, that argument is now put forward in the alternative, in the event that the Tribunal were to consider that the appointing authority is the Head of EPSO and not the EPSO Management Board.

67 Second, the applicant maintains that the decision of 5 May 2004 is unlawful. He takes the view, first, that, in so far as that decision altered the decision of 18 August 2003, reasons should have been stated for it. The reasons given are insufficient on account of their general nature. The applicant submits, second, that the decision of 5 May 2004 fails to have regard to the principles of transparency and objectivity necessary for the proper running of a competition and that it was not appropriate for the purpose of ensuring that all candidates be treated equally. He maintains, third, that the decision of 5 May 2004 infringes Article 3 of Annex III to the Staff Regulations. The selection board consisted of the chairman and two members designated by the appointing authority, with only two members being designated by the Staff Committees. However, according to the applicant, Article 3 of Annex III to the Staff Regulations requires parity between the number of selection board members appointed by the appointing authority and those appointed by the Staff Committees. Finally, in his submission, the later decision is vitiated by the same defects as the decision of 18 August 2003.

Arguments of the Commission

68 The Commission points out in particular that whereas the first sentence of Article 2(1) of Decision 2002/620 provides that EPSO is to exercise the powers of selection conferred under the first paragraph of Article 30 of the Staff Regulations and under Annex III thereto on the appointing authorities of the institutions signing that decision, the decision is silent as to who, as between the Head of EPSO and the Management Board, is to exercise the powers of the appointing authority within EPSO. However, according to the Commission, it is apparent from the overall scheme of Decisions 2002/620 and 2002/621 that the day‑to‑day management of EPSO is entrusted to its Head, who is responsible for the smooth running of EPSO under Article 8(1) of Decision 2002/621, whereas the Management Board is responsible for setting EPSO’s general policy.

69 According to the Commission, the appointment of selection board members forms part of the day‑to‑day management of EPSO and, therefore, is the responsibility of its Head. The argument relied on by the applicant that the task of approving EPSO’s work programme, and in particular the scheduling of and timetable for competitions to be organised, falls to the Management Board adds strength to the interpretation that the Management Board alone is responsible for establishing EPSO’s general policy.

70 Next, the Commission submits that the fact that the Head of EPSO adopted the decision appointing the competition selection board acting on a proposal submitted to him by his administration does not deprive such an act of its decision-making nature. Indeed, it is clear that the Head of EPSO could have rejected the proposal put to him or altered it.

Findings of the Tribunal

71 First of all, it should be pointed out that the decision of the appointing authority appointing the members of a competition selection board is a preparatory measure within the competition procedure (Joined Cases T‑32/89 and T‑39/89 Marcopoulos v Court of Justice [1990] ECR II‑281, paragraph 22).

72 It is therefore open to the applicant, in an action against a final decision of the appointing authority not to include his name on the reserve list, to contest the legality of the decision appointing the members of the selection board (see Marcopoulos v Court of Justice, paragraphs 22 and 23).

The grounds of complaint in respect of the decision of 18 August 2003

73 By decision of 18 August 2003, the Head of EPSO, acting as appointing authority, appointed the members of the selection boards for competitions EPSO/A/1/03 to 10/03. As a result of that decision, the selection board for competition EPSO/A/1/03 consisted of five full members and five alternate members. By decision of 5 May 2004, which was made after the written tests had been concluded, the Head of EPSO appointed new selection boards for competitions EPSO/A/1/03 to 10/03 for the field of European public administration. That decision stated that it had become apparent that, in order to enable the oral tests to proceed as smoothly as possible, it was advisable to reorganise the selection boards for those competitions, with a view to having four selection boards instead of the two which had been appointed by the decision of 18 August 2003. As a result of the decision of 5 May 2004, the selection board for competition EPSO/A/1/03 consisted thereafter of three full members and three alternate members. The decision of 18 August 2003 was thus replaced, in so far as concerns the composition of the selection board for the oral tests in the field of European public administration, by the decision of 5 May 2004.

74 As a consequence, the selection board for competition EPSO/A/1/03 consisted of five full members and five alternate members for the written tests and three full members and three alternate members for the oral tests.

75 It follows from the foregoing that the applicant has no legal interest in asserting grounds of complaint against the decision of 18 August 2003.

76 In point of fact, the decision contested in the present action is the decision not to include the applicant on the reserve list at the conclusion of the oral tests and not any decision, adopted at the conclusion of the written tests, not to admit him to the oral tests. Therefore, even if the decision of 18 August 2003, which appointed the competition selection board that was responsible for the conduct of the written tests, in which the applicant was successful, were unlawful, that could not invalidate the composition of the selection board at the oral tests stage.

77 Accordingly, the complaints against the decision of 18 August 2003 can only be rejected.

The grounds of complaint in respect of the decision of 5 May 2004

– The complaint alleging that insufficient reasons were given for the decision

78 According to the second sentence of the second paragraph of Article 25 of the Staff Regulations, any decision adversely affecting an official must state the grounds on which it is based.

79 Measures adversely affecting an official are those which are capable of directly affecting the official’s legal situation (Case 32/68 Grasselli v Commission [1969] ECR 505, paragraph 4).

80 Moreover, in staff cases, according to established case‑law, acts preparatory to a final decision do not adversely affect an official within the meaning of Article 90(2) of the Staff Regulations (Marcopoulos v Commission, paragraph 21).

81 As pointed out above, the decision of the appointing authority appointing the members of a competition selection board is a preparatory measure within the competition procedure.

82 The decision of 5 May 2004 to reorganise the competition selection board does not therefore adversely affect the applicant.

83 It was therefore unnecessary to state the grounds on which the decision of 5 May 2004 was based.

84 It follows from this that the complaint alleging that insufficient reasons were given for the decision of 5 May 2004 must be rejected as ineffective (that is to say, as being incapable, even in the event that it is well founded, of leading to the annulment sought by the applicant).

– The ground of complaint alleging breach of the principles of transparency, objectivity and equal treatment as between candidates

85 The applicant is of the view that, by reorganising the competition selection board, the appointing authority infringed the principles of transparency, objectivity and equal treatment as between candidates.

86 As a preliminary point, it may be recalled that when reviewing the legality of the decision of a competition selection board not to include a candidate on the reserve list, the Tribunal’s task is to verify whether the relevant rules of law have been observed, that is to say, the rules, inter alia the procedural rules, laid down in the Staff Regulations and the notice of competition and those governing the proceedings of the selection board, in particular the selection board’s duty of impartiality and its observance of the principle of equal treatment of candidates, and to ensure that there has been no misuse of powers (Case F‑127/07 Coto Moreno v Commission [2008] ECR‑SC I‑A‑I‑0000 and II‑A‑I‑0000, paragraphs 31 and 32 and the case‑law cited).

87 The applicant raises the ground of complaint in question merely in vague terms and fails to indicate in what manner the principles of objectivity and transparency constitute legal principles in the light of which the Tribunal must exercise its powers of review and also fails to state in what manner the decision to reorganise the competition selection boards infringed the principle of equal treatment as between candidates.

88 This being so, it is not possible to relate the complaint relied on to any infringement of a rule laid down in the Staff Regulations or the competition notice, to a rule governing the proceedings of the selection board or to misuse of powers.

89 The complaint under consideration must therefore be rejected.

– The ground of complaint alleging that appointing authority having competence to adopt the decision of 5 May 2004 was not the Head of EPSO but the EPSO Management Board

90 First, in so far as the first sentence of the first paragraph of Article 30 of the Staff Regulations provides that, for each competition, a selection board is to be appointed by the appointing authority, the complaint in question, alleging that the author of the decision appointing the selection board lacked competence to take such a decision, relates to a possible infringement of a rule set forth in the Staff Regulations and it is incumbent on the Tribunal to verify whether that rule has been observed.

91 The areas of responsibility of the decision‑making entities of EPSO are laid down in Articles 6 and 8 of Decision 2002/621. However, it is not stated expressly in either of those provisions whether it is the Head of EPSO or the EPSO Management Board which has responsibility for adopting decisions appointing competition selection boards. It is therefore necessary to have regard to the overall scheme of those provisions.

92 The areas of responsibility of the Management Board are not defined in a provision of a general nature but in a list of the series of tasks conferred on the board, which is set out in Article 6 of Decision 2002/621. For each of those tasks, that list specifies the method of voting within the board (simple majority, qualified majority or unanimity).

93 By contrast, the areas of responsibility of the Head of EPSO are defined in a provision of a general nature. Under the terms of Article 8(1) of Decision 2002/621, the Head is responsible for the smooth running of EPSO. Within the area of responsibility of the Management Board, the Head of EPSO is to act under the authority of the latter. He or she is to provide secretarial services for the Management Board, report to it on the performance of his or her duties and submit to it any suggestion for the smooth running of EPSO.

94 It can be seen that the areas of responsibility of the Management Board, which are listed exhaustively, are defined as relating to the running and organisation of EPSO, its general policy and its budget, whereas the Head is responsible for the day‑to‑day management of EPSO.

95 Given the absence of any general provision defining the areas of responsibility of the Management Board, the – exhaustive – list of tasks set out in Article 6 of Decision 2002/621 should not be broadly construed.

96 To be rejected in particular is the applicant’s argument that the appointment of the members of a competition selection board should be taken to fall within the area of responsibility of the Management Board set out in Article 6(f) of Decision 2002/621, which provides that, on a proposal from the Head of EPSO, the Management Board is to approve the work programme, including the scheduling of and timetable for competitions to be organised.

97 As the Commission correctly observed, the decision appointing a competition selection board is a task which must be regarded as forming part of the day‑to‑day management of EPSO and which, accordingly, falls within the responsibility of its Head.

98 Consequently, the complaint alleging that the appointment of the competition selection board was unlawful, in that the latter was designated by the Head of EPSO and not its Management Board, must be rejected as unfounded.

– The complaint alleging that the appointing authority did not properly exercise its powers

99 The applicant is of the view that, should it be decided none the less that the Head of EPSO is the competent authority, the competition selection board was appointed unlawfully, since the Head of EPSO did not properly exercise his powers.

100 It should be noted as a preliminary point that, since the first sentence of the first paragraph of Article 30 of the Staff Regulations provides that, for each competition, a selection board is to be appointed by the appointing authority, the complaint in question, concerning the exercise of his powers by the author of a decision appointing a selection board, relates to a possible infringement of a rule laid down in the Staff Regulations and it is incumbent on the Tribunal to verify whether that rule has been observed.

101 The competition selection board at issue was appointed by the decision of 5 May 2004. It was thus appointed after the entry into force, on 1 May 2004, of Regulation No 723/2004, such that the provisions of the Staff Regulations, in the version resulting from that regulation, are applicable to the present dispute.

102 It is apparent from Section A of the competition notice that the competition is an open competition common to a number of institutions.

103 According to the second paragraph of Article 3 of Annex III to the Staff Regulations, ‘[f]or open competitions common to two or more institutions, the Selection Board shall consist of a chairman appointed by the appointing authority … and of members 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’.

104 It follows from the very wording of that provision that the chairman and some members of the selection board are appointed by the appointing authority on a proposal from the institutions, whereas other members are appointed by the Staff Committees by agreement between those committees.

105 Accordingly, since the appointing authority has no part to play in the appointment of the members of the selection board designated by the Staff Committees, the applicant’s argument is to be understood as meaning that the appointing authority surrendered the proper exercise of his powers only as regards the appointment of the members proposed by the institutions.

106 By memorandum of 5 May 2005, the head of EPSO’s ‘Selection policy/Legal questions/Information and communication’ unit summarised the various proposals submitted by the institutions and the Staff Committees. That memorandum was sent to the Head of EPSO, who dated and signed it in the section ‘Agreement of Mr Erik Halskov’, which was provided for that purpose.

107 Contrary to the applicant’s submissions, the fact that the Head of EPSO appointed the members of the selection board by countersigning a document prepared by EPSO’s staff summarising the proposals communicated by the institutions does not mean that as appointing authority he did not properly exercise his powers.

108 First, when the appointing authority is to make a decision on the basis of a proposal, the fact that the decision taken is in line with the proposal submitted cannot of itself mean that the appointing authority has failed to exercise its powers. To argue otherwise would be to deny the appointing authority the freedom ever to adopt a decision consonant with a proposal that has been put to it.

109 Second, subject to compliance with the procedure laid down by the applicable texts, the administration is free to determine the practical measures for the adoption of decisions and a decision cannot be called in question merely on the ground that it became effective by means of the apposition to the written statement of its contents of the dated signature of the person vested with the decision-making power.

110 The complaint alleging that the appointing authority did not properly exercise its powers must therefore be rejected as unfounded.

– The complaint alleging infringement of Article 3 of Annex III to the Staff Regulations

111 The applicant’s argument is based on the submission that there should have been strict parity, covering also the chairman, between the number of members of the selection board appointed by the institutions and the number of members of the board appointed by the Staff Committees. Such an argument cannot be upheld.

112 As stated at paragraphs 101 to 103 above, the second paragraph of Article 3 of Annex III to the Staff Regulations is applicable to the decision of 5 May 2004. According to that provision, ‘[f]or open competitions common to two or more institutions, the Selection Board shall consist of a chairman appointed by the appointing authority … and of members 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’.

113 Even though the text may not be worded with exemplary clarity, if it is read in such a manner as to give the words their ordinary meaning, the phrase ‘in such a way as to ensure equal representation’ is to be understood to refer to the appointment by the appointing authority and the Staff Committees of the ‘members’ other than the chairman.

114 The meaning that derives from the wording of the text of the second paragraph of Article 3 of Annex III to the Staff Regulations is confirmed when the provision is construed in its context. In that regard, this second paragraph of Article 3 of the Annex III to the Staff Regulations is to be read in the light of the first paragraph of the same Article, which provides, in relation to competitions organised by a single institution, that the selection board is to consist of a chairman designated by the appointing authority and members designated in equal numbers by the appointing authority and the Staff Committee.

115 Moreover, the implication of the applicant’s argument is that competition selection boards should consist of an equal number of board members with voting rights, which would make the functioning of such selection boards difficult.

116 Accordingly, the second paragraph of Article 3 of Annex III to the Staff Regulations has to be understood as providing that, in the case of an open competition common to two or more institutions, the selection board is to be composed of a chairman appointed by the appointing authority and of members appointed in equal numbers, on the one hand, by the appointing authority on a proposal from the institutions and, on the other, by the Staff Committees of the institutions by agreement between them.

117 Given that the competition selection board in fact consisted of a chairman appointed by the appointing authority, one member appointed by the appointing authority on a proposal from the institutions and one member appointed by the Staff Committees by agreement between them, the complaint can only be rejected as unfounded.

118 It follows from all the foregoing that the first plea must be rejected as unfounded.

3. The plea alleging that the composition of the selection board was unlawful

Arguments of the parties

119 At the hearing on 21 June 2006 and in his first statement of written observations, the applicant put forward three arguments.

120 First, the applicant observed that it was apparent from the decision of 18 August 2003 that there were five full members and five alternate members appointed to the selection board, whereas, on the day of his oral test, the selection board consisted of three people. In his submission, there was nothing on the file to explain the reasons for which the selection board did not consist of five people on that occasion.

121 Second, the applicant submits that the Commission failed to provide any explanation as to why the chairman of the selection board was absent. According to established case‑law, the alternate chairman may act as chairman of the selection board only in exceptional circumstances which are not connected with the service but are prompted by personal reasons particular to the chairman proper.

122 Third, the applicant argues that on EPSO’s website Mr Carle was shown as the chairman of the selection board whereas, according to the decision of 18 August 2003, he was simply the alternate chairman.

123 In its first statement of written observations, the Commission explained that the decision of 18 August 2003 had been amended by the decision of 5 May 2004, which it annexed to that statement, while regretting that it had failed to communicate it to the Tribunal at the same time as the decision of 18 August 2003, which had been communicated in implementation of the measure of organisation of procedure adopted by the Tribunal.

124 The Commission stated that, as a result of the decision of 5 May 2004, first, the competition selection board consisted of three full members and three alternate members and, second, the chairman and the alternate chairman of the selection board were Mr Carle and Mr van Hövell, respectively. There was therefore no discrepancy between the decision appointing the selection board and the information recorded relating to the composition of the selection board on the day of the applicant’s oral test.

Findings of the Tribunal

125 Since the decision of 18 August 2003 was replaced, as regards the oral tests, by the decision of 5 May 2004, the plea as formulated by the applicant, alleging that the composition of the competition selection board was unlawful in the light of the decision of 18 August 2003, must be rejected as ineffective.

126 It should be specified, in so far as there is any call to do so, that if the plea is to be regarded as contesting the composition of the selection board in the light of the decision of 5 May 2004, it must be rejected as unfounded.

127 The decision of 5 May 2004 makes it clear that the competition selection board thereafter consisted of three full members and three alternate members and that the chairman of the selection board was Mr Carle, Mr van Hövell being the alternate chairman.

128 On the day of the applicant’s oral test, the selection board was made up of three members and was chaired by Mr Carle.

129 Consequently, the arguments alleging, first, that the number of members of the selection board present on the day of the applicant’s oral test was lower than the number of members appointed, second, that the Commission failed to give any explanation as to why the chairman of the selection board was replaced by the alternate chairman and, third, that, as regards the name of the chairman of the selection board, the decision appointing the selection board and the information in that connection on EPSO’s website contradicted each other, are unfounded.

130 The second plea must therefore be rejected.

131 It follows from all the foregoing that the action must be dismissed as unfounded.

Costs

132 It is for the Tribunal to decide in this judgment on all the costs relating to the various proceedings, in accordance with Article 115 of the Rules of Procedure.

133 Under Article 122 of the Rules of Procedure, the provisions of Title 2, Chapter 8, on costs are to apply only to cases brought before the Tribunal from the date on which those rules entered into force, namely 1 November 2007. The relevant provisions of the Rules of Procedure of the Court of First Instance on the subject are to continue to apply mutatis mutandis to cases pending before the Tribunal before that date.

134 Article 87(2) of the Rules of Procedure of the Court of First Instance provides that 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.

135 Moreover, the first subparagraph of Article 87(3) of the Rules of Procedure of the Court of First Instance provides that that court may, where the circumstances are exceptional, order that the costs be shared.

136 In the present case, the applicant has been unsuccessful in the proceedings before the Tribunal following the judgment of the Court of First Instance.

137 However, it is appropriate to take account of the fact that the Commission only belatedly produced evidence forming part of the legal framework applicable to the present case, which the Tribunal had requested it to produce by way of a measure of organisation of procedure, and that that resulted in the judicial proceedings being prolonged considerably.

138 At the hearing on 21 June 2006, the applicant put forward a new plea, alleging that the composition of the selection board was unlawful in the light of the decision of 18 August 2003, a plea which he could not have raised in the same terms if the decision of 5 May 2004 had been provided in good time by the Commission.

139 Accordingly, the proceedings before the Court of First Instance and the proceedings before the Tribunal following the judgment of the Court of First Instance may be regarded as being in part attributable to oversight on the part of the Commission.

140 The circumstances of the case therefore warrant an order that the Commission pay, in addition to its own costs, half of the costs incurred by the applicant. The applicant is to bear half his own costs.

On those grounds,

THE TRIBUNAL (Third Chamber)

hereby:

1. Dismisses the action;

2. Orders the Commission of the European Communities to pay, in addition to all its own costs relating to the proceedings before the Tribunal and the Court of First Instance, half of the costs incurred by Mr Neophytou relating to those proceedings;

3. Orders Mr Neophytou to bear half of his own costs relating to the proceedings before the Tribunal and the Court of First Instance.

Mahoney Kanninen Gervasoni

Delivered in open court in Luxembourg on 23 September 2009.





W. Hakenberg P. Mahoney

Registrar President