JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Third Chamber)

14 November 2012

Case F‑120/11

Mario Paulo da Silva Tenreiro

v

European Commission

(Civil service — Officials — Appointment — Post of Director — Rejection of the applicant’s candidature — Notice of vacancy — Opinion of the pre-selection panel — Manifest error of assessment)

Application: brought under Article 270 TFEU, applicable to the EAEC Treaty by virtue of Article 106a thereof, in which Mr da Silva Tenreiro seeks annulment of the Commission’s decision rejecting his candidature for the post of Director of Directorate A ‘Civil Justice’ of the Directorate-General (DG) for Justice and the decision to appoint Y to that post.

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

Summary

1. Officials — Vacancy notice — Determination of minimum qualifications required for the post to be filled — Administration’s discretion — Limits — Manifest error of assessment in the drafting of the notice — Burden of proof

(Staff Regulations, Art. 29)

2. Officials — Vacancy — Filled by promotion or transfer — Consideration of candidates’ comparative merits — Post of Director — Capacity to manage — Condition may be met by experience acquired outside the sphere of action of the Directorate

(Staff Regulations, Arts 29(1)(a) and 45(1))

3. Officials — Vacancy notice — Consideration of candidatures with regard to conditions laid down — Administration’s discretion — Limits — Observance of the conditions laid down in the vacancy notice — Judicial review — Limits

4. Officials — Vacancy — Filled by promotion or transfer — Consideration of candidates’ comparative merits — Distinction between the procedure for filling a post and the promotion procedure — Obligation to take account only of appraisal reports — None

(Staff Regulations, Art. 29(1)(a) and 45)

1. The appointing authority enjoys a wide discretion in deciding upon the abilities required for posts to be filled, and only a manifest error of assessment in the definition of the minimum conditions required to fill the post in question can render the notice of vacancy unlawful.

Accordingly, the evidence, which it is for the applicant to adduce, must be sufficient to show that it is unlikely that the conditions required for the vacant post, as given in the notice of vacancy, are adequate as regards the interest of the service. In other words and more generally, the plea alleging a manifest error of assessment must be rejected if, irrespective of the evidence adduced by the applicant, the choice at issue can still be accepted as valid.

(see paras 26-27)

See:

11 July 2007, T‑93/03 Konidaris v Commission, para. 72

29 September 2011, F‑72/10 da Silva Tenreiro v Commission, the subject of an appeal before the General Court, Case T‑634/11 P, para. 61; 29 September 2011, F‑80/10 AJ v Commission, para. 35 and the case-law cited

2. In the context of consideration of the comparative merits of the candidates for a vacant post, it is permissible for a director to have training or experience which does not fall exclusively within the the sphere of action of the directorate which he is called upon to manage, in so far as specifc knowledge can be found within the directorate itself, at the level of heads of unit and their colleagues, and the focus should be more on outstanding general management, analysis and judgment skills.

(see para. 28)

See:

3 March 1993, T‑58/91 Booss and Fischer v Commission, para. 69

da Silva Tenreiro v Commission, para. 62

3. It is for the appointing authority to assess whether a candidate fulfils the conditions required by the vacancy notice and that assessment may be questioned only in the event of manifest error. Consequently, the Tribunal cannot substitute itself for the appointing authority and review the latter’s assessment of the professional abilities of the candidates, except in so far as it finds a manifest error of assessment.

In that regard, a line of argument alleging that that authority committed a manifest error of assessment in not taking into account the applicant’s specific experience in relation to the post to be filled, where such specific experience as regards the duties relating to the post does not constitute a condition of the vacancy notice, cannot play a role in whether or not a manifest error of assessment has been committed.

(see paras 34-35)

See:

13 December 1990, T‑160/89 and T‑161/89 Kalavros v Court of Justice, para. 29 and the case-law cited; 29 May 1997, T‑6/96 Contargyris v Council, para. 124

4. There are differences between the procedure for filling a vacancy by transfer or promotion under Article 29(1)(a) of the Staff Regulations, and the promotion procedure provided for in Article 45 of the Staff Regulations. While the latter procedure is intended to adjust the career progress of officials according to the effort they have made and the merits they have demonstrated in the performance of their duties, that is to say, to reward officials who have, as a whole, displayed superior merits in the past, the purpose of the procedure for filling a vacancy is to find, solely in the interests of the service, the official who is best able to perform the duties involved in the post to be filled. In considering candidates’ comparative merits, therefore, the administration is not obliged to base its assessment exclusively on the appraisal reports, but may take account of other factors relating to the candidates’ merits, such as to qualify an assessment of candidates’ past merits made on the basis of those reports.

(see para. 41)

See:

Konidaris v Commission, paras 91 and 92