JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Second Chamber)

22 January 2015

Joined Cases F‑1/14 and F‑48/14

Danuta Kakol

v

European Commission

(Civil service — Competitions — Open competition EPSO/AD/177/10 — Conditions for eligibility — Not admitted to the competition — Failure to state reasons — Admitted to an earlier similar competition — Duty to state specific reasons — Action for annulment — Action for compensation)

Applications: under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Ms Kakol seeks, first, annulment of the decision of 3 October 2013 of the selection board in open competition EPSO/AD/177/10 not to admit her to the assessment centre tests and, second, an order that the European Commission compensate her for the non-material harm which she considers she has suffered.

Held: Case F‑1/14 is removed from the Register of the Tribunal. The decision of 14 February 2014 of the selection board in competition EPSO/AD/177/10 not to admit Ms Kakol to that competition is annulled. The remainder of the action in Case F‑48/14 is dismissed. In Case F‑1/14 the European Commission is to pay the costs incurred by Ms Kakol and is ordered to bear its own costs. In Case F‑48/14 the European Commission is to bear its own costs and is ordered to pay the costs incurred by Ms Kakol.

Summary

Officials — Competitions — Competition based on qualifications and tests — Decision not to admit to tests — Obligation to state reasons — Scope — Same candidate assessed differently in similar successive competitions — Lawfulness — Condition — Need for specific statement of reasons

(Staff Regulations, Art. 25, and Annex III, Art. 5)

The purpose of the obligation to state the reasons for any individual decision adopted under the Staff Regulations is to provide the person concerned with sufficient details to allow him to ascertain whether or not the decision is well founded and to make it possible for the decision to be subject to judicial review. As regards more especially decisions refusing admission to a competition, the Union judicature requires the selection board to state precisely which of the conditions laid down in the competition notice were deemed not to have been satisfied.

In that connection, where the conditions for admission to a competition have similar or identical wording in successive competition notices, it is possible for a candidate’s qualifications or professional experience to be assessed less favourably than in earlier competitions only if the statement of reasons for the decision clearly justifies that difference in assessment, although the obligation to provide such a statement of reasons applies only in so far as the person concerned has drawn the selection board’s attention to the fact that he was admitted to a similar competition previously. The selection board’s obligation to state the reasons for the difference between its assessment and that of a previous selection board is not confined to having to state the grounds for its own decision not to admit the candidate to the tests in the competition at issue, but requires it to explain why its assessment of the relevance of the candidate’s qualifications is different from that of a previous selection board. A decision not to admit a candidate is therefore vitiated by a procedural defect for lack of an adequate statement of reasons such as to entail its annulment where the selection board merely stated the reasons for its decision not to admit a candidate to the competition without specifically and clearly justifying the difference between its assessment of his qualifications in the light of the tasks to be performed, as described in the competition notice, and the assessment made by a selection board in a similar previous competition.

Moreover, in order to ascertain whether two competitions are similar, the conditions for admission and the job description for each must be examined side by side. In that regard, the aims of a competition are evident from the description of the duties which successful candidates will have to perform, and not from the nationality requirement which they must satisfy. A nationality requirement for candidates in a competition is not in itself an aim of that competition. It is an additional factor alongside the relevance of candidates’ qualifications, though without any influence on how those qualifications are assessed.

(see paras 45, 48, 53, 54, 56, 70, 77, 78)

See:

Judgments in Kobor v Commission, 112/78, EU:C:1979:107, paras 11 and 12; De Santis v Court of Auditors, 108/84, EU:C:1985:134, paras 18 and 19, and Belardinelli and Others v Court of Justice, 225/87, EU:C:1989:309, paras 23 and 27

Judgments in Giannini v Commission, T‑21/96, EU:T:1997:40, para. 21, and Teixeira Neves v Court of Justice, T‑146/99, EU:T:2000:194, para. 34

Judgment in Hristova v Commission, F‑50/07, EU:F:2008:147, para. 22 and the case-law cited therein