JUDGMENT OF THE COURT OF FIRST INSTANCE (Second Chamber)

9 November 2004

Joined Cases T-285/02 and T-395/02

Eva Vega Rodríguez

v

Commission of the European Communities

(Officials – Open competition – Multiple-choice questions – Accuracy of the answers in the marking sheet – Judicial review – Limits)

Full text in French II - 0000

Application: primarily, for annulment of the decision of the selection board in competition COM/A/10/01 excluding the applicant and awarding an insufficient number of marks for her to continue in the competition and of the decision rejecting her complaint and, in the alternative, for damages.

Held: The action is dismissed. Each party is to bear its own costs.

Summary

1. Officials – Actions – Act adversely affecting an official – Decision taken after re-examination of an earlier decision – Decision adopted by a competition selection board after re-examination of the situation of the candidate

(Staff Regulations, Arts 90(2) and 91(1))

2. Procedure – Measures of organisation of procedure – Request for the production of documents concerning the admissibility of the action – Admissibility of documents produced after the time-limit set by the Court

(Rules of Procedure of the Court of First Instance, Arts 64 and 65)

3. Officials – Actions – Interest in bringing proceedings – Action against the decision of a competition selection board awarding an eliminatory mark – Candidate who could not be selected to take part in the remainder of the competition even if the mark were amended – Inadmissible

(Staff Regulations, Art. 91)

4. Officials – Competitions – Competition based on qualifications and tests – Content of the tests – Multiple-choice questions – Discretion of the selection board – Judicial review – Limits

(Staff Regulations, Annex III)

1. When a candidate in a competition seeks re-examination of a decision taken by the selection board, it is the decision taken by the selection board after re-examination of the situation which must be regarded as the act adversely affecting him. It is also that decision, taken after re-examination, which causes the periods for lodging a complaint and bringing an action to start to run, without there being any need to ascertain whether, in such a situation, that decision may be regarded as a purely confirmatory act.

(see para. 18)

See: T‑386/00 Gonçalves v Parliament [2002] ECR-SC I‑A‑13 and II‑55, para. 39, and the case-law cited therein

2. Where the Court requests, by way of a measure of organisation of the procedure, the production of a document concerning the conditions of admissibility of the action, the delay by a party in producing the document cannot entail the inadmissibility of that document. First, the conditions of admissibility of an action must be considered by the Court, if need be of its own motion, at all times. Second, where the party concerned fails to comply, the Court is entitled to order the production of the document requested under Article 65 of its Rules of Procedure. Accordingly, the time-limits for production of that document cannot be preclusive time-limits.

(see para. 24)

See: T‑34/91 Whitehead v Commission [1992] ECR II‑1723, para. 19; T‑128/96 Lebedef v Commission [1996] ECR-SC I‑A‑629 and II‑1679, para. 25

3. In an action for annulment of a decision of a selection board awarding the applicant an eliminatory mark and a number of points insufficient to allow him to be selected for the next stage of the competition, the applicant has no interest in bringing proceedings if he could not have been selected for the next stage of the competition even if he had replied correctly to the questions at issue.

(see para. 25)

4. The selection board in a competition has a wide discretion with regard to the detailed content of the tests which form part of that competition. It is not for the Community Court to criticise that content unless it is not confined within the limits laid down in the competition notice or is not consistent with the purposes of the test of the competition.

In the case of tests made up of multiple-choice questions, it is not for the Court to substitute its own correction for that of the selection board in the competition. Criticism of a question is called for, possibly in the light of the answers it proposes, only if it appears that the question was manifestly inappropriate in view of the purpose of the competition in question. That would be the case, inter alia, if it were clear from the explanations of the competition selection board that the various answers proposed for a question did not allow the sole correct answer to be determined, contrary to the specific instructions to do so given to the candidates. In that connection, the great difficulty of a question cannot constitute an indication of its inappropriate nature. A competition selection board is entitled to choose questions from a wide range of difficulty in order to achieve the primary objective of a competition which is to recruit officials of the highest standard of ability.

(see paras 35-36)

See: 64/86, 71/86 to 73/86 and 76/86 Sergio and Others v Commission [1988] ECR 1399, para. 22; T‑153/95 Kaps v Court of Justice [1996] ECR-SC I‑A‑233 and II‑663, para. 37