JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Second Chamber)

13 March 2013

Case F‑125/11

Isabel Mendes

v

European Commission

(Civil service — Open competition — Non-admission to the assessment exercises — Administration’s duty to interpret complaints with an open mind — Amendment of the competition notice after the admission tests — Principle of the protection of legitimate expectations — Legal certainty)

Application: Brought by Ms Mendes under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, seeking, first, the annulment of the decision of the selection board in open competition EPSO/AST/111/10 refusing to admit her to the assessment exercises and, second, an order that the European Commission pay damages to make good the loss which she suffered as a result of that decision.

Held: The decision of the selection board in open competition EPSO/AST/111/10 of 7 April 2011 not to admit the applicant to the assessment exercises is annulled. The Commission is ordered to pay EUR 2 000 to the applicant. The remainder of the application is dismissed. The parties are to bear their own costs.

Summary

1. Actions brought by officials — Prior administrative complaint — Meaning — Classification a matter for the court

(Staff Regulations of Officials, Art. 90(2))

2. Actions brought by officials — Prior administrative complaint — Same subject-matter and legal basis — Administration’s duty to interpret complaints with an open mind

(Staff Regulations, Arts 90 and 91)

3. Officials — Competition based on qualifications and tests — Conditions of success — Fixing by the competition notice — Amendment of the competition notice after the admission tests reducing candidates’ prospects of success — Breach of principle of the protection of legitimate expectations

(Staff Regulations, Annex III, Art. 1(1)(e))

4. Officials — Competition based on qualifications and tests — Conditions of success — Fixing by the competition notice — Amendment of the competition notice after holding of the admission tests reducing candidates’ prospects of success — Breach of the principle of legal certainty

(Staff Regulations, Annex III, Art. 1(1)(e))

5. Officials — Principles — Proportionality — Scope — Reliance on principle so as to justify a measure infringing the principle of the protection of legitimate expectations — Not included

1. The precise legal classification of a letter or note is a matter for the Tribunal alone and not for the parties. A letter from an official which does not expressly request the withdrawal of the decision in question but is clearly intended to challenge the decision adversely affecting him constitutes a complaint within the meaning of Article 90(2) of the Regulations. In that respect, the content of the act takes precedence over its form.

(see paras 33-34)

See:

29 June 2000, C‑154/99 P Politi v European Training Foundation, para. 16

14 July 1998, T‑291/97 Brems v Council, para. 45 and the case-law cited; 16 February 2005, T‑354/03 Reggimenti v Parliament, para. 43

2. The pre-litigation procedure, during which those concerned may act without the assistance of a lawyer, is informal in character and the administration must not therefore interpret the complaints restrictively but, on the contrary, must consider them with an open mind.

(see para. 35)

See:

14 March 1989, 133/88 Del Amo Martinez v Parliament, para. 11

21 October 2004, T‑49/03 Schumann v Commission, para. 39

3. The amendment of the rules on the marking of the tests laid down in the competition notice is capable of affecting the applicant’s prospects of being included on the list of candidates admitted to the assessment exercises, in so far as such an amendment is likely to have the effect of increasing the number of candidates who have obtained the pass mark in the tests and thus reducing her prospects of being among the best candidates. In that regard, the application of the corrigendum to the competition notice after the admission tests had been held was not consistent with the assurances which had been given to the applicant by the competition notice and, accordingly, constituted a breach of the principle of protection of legitimate expectations.

Comparative tests are by definition tests in which the performance of each candidate is assessed by reference to those of the other candidates, so that the number of candidates admitted to those tests is likely to have an impact on the selection board’s assessment of the candidates. Those assessments reflect the value judgment made of a candidate’s performance by comparison with the performance of other candidates. It follows that the greater the number of candidates in that type of test, the higher the standard of performance expected of those candidates by the selection board will be.

(see paras 64-65, 70, 84)

See:

5 March 2003, T‑24/01 Staelen v Parliament, para. 57

4. The principle of legal certainty aims to ensure that situations and legal relationships governed by EU law remain foreseeable. Although in general that principle precludes a measure of the institutions of the Union from taking effect from a point in time before its publication, it is exceptionally otherwise where the purpose to be achieved so demands and where the legitimate expectations of those concerned are duly respected. Those conditions are not satisfied in the case of a corrigendum to a competition notice amending the marking of the admission tests relating to that competition after they had been held.

It is true that, where the appointing authority finds, after the publication of a competition, that the conditions of eligibility required were more exacting than the needs of the service demanded, it may either continue the procedure and, if necessary, recruit a smaller number of successful candidates than that initially foreseen, or reopen the competition procedure after withdrawing the original competition notice and replacing it with an amended notice. However, the adoption of a corrigendum to the competition notice after some of the tests have been held cannot be regarded as equivalent to either of those solutions.

(see paras 71-73, 76-77)

See:

15 September 2005, C‑199/03 Ireland v Commission, para. 69

2 October 1996, T‑356/94 Vecchi v Commission, para. 56

10 November 2010, T‑260/09 P OHIM v Simões Dos Santos, para. 48 and the case-law cited

5. In accordance with this latter principle, which has consistently been recognised in the case-law as forming part of the general principles of EU law, the legality of a measure adopted by an institution of the Union is subject to the condition that, where there is a choice between several appropriate measures, it is appropriate to have recourse to the least onerous measure and the disadvantages caused must not be disproportionate to the objective pursued. However, considerations linked to the proportionality of a measure cannot justify the adoption of a measure which breaches the principle of legitimate expectations, such as the amendment of a competition notice after the admission tests have been held, since the principle of proportionality is applicable only where there is a choice between several appropriate measures.

(see para. 83)

See:

21 October 2004, T‑49/03 Schumann v Commission, para. 52

30 September 2010, F‑76/05 Torijano Montero v Council, para. 81 and the case-law cited