JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL (First Chamber)

12 December 2013 ( )

(Civil service – Temporary staff – Recruitment – Call for expressions of interest REA/2011/TA/PO/AD 5 – Non-inclusion on the reserve list – Validity of the selection procedure – Stability of the composition of the selection committee)

In Case F‑135/12,

ACTION brought under Article 270 TFEU,

Claudia Marenco, residing in Brussels (Belgium), represented by S. Rodrigues, A. Blot and A. Tymen, lawyers,

applicant,

v

Research Executive Agency (REA), represented by S. Payan-Lagrou, acting as Agent, and by B. Wägenbaur, lawyer,

defendant,

THE CIVIL SERVICE TRIBUNAL (First Chamber)

composed of H. Kreppel, President, E. Perillo (Rapporteur) and R. Barents, Judges,

Registrar: J. Tomac, Administrator,

having regard to the written procedure and further to the hearing on 17 September 2013,

gives the following

Judgment

1 By application lodged at the Tribunal Registry on 9 November 2012, Ms Marenco brought the present action seeking inter alia the annulment of the decision of 21 February 2012 by which the selection committee of the Call for expressions of interest REA/2011/TA/PO/AD 5 (‘call for expressions of interest’) refused to include the applicant on the reserve list at the end of the selection procedure.

Facts

2 On 18 January 2011, the Research Executive Agency (REA or ‘the Agency’) published the call for expressions of interest with a view to the drawing up of a reserve list of temporary agents of grade AD 5.

3 The call for expressions of interest stated that, at the end of a phase of evaluation of applications, selected candidates would be invited to two written tests and an oral test before a selection committee composed of at least three members (‘the selection committee’).

4 The oral tests for the 107 candidates selected at the end of the phase of evaluation of applications were held between 29 November 2011 and 20 December 2011. The applicant took the oral test on 15 December 2011.

5 By e-mail of 21 February 2012, the head of the ‘human resources’ division of the REA informed the applicant of the decision of the selection committee not to include her on the reserve list (‘the decision of 21 February 2012’).

6 By e-mail of the same day, the applicant requested that she be provided with her results, the minimum mark required in order for candidates to be included on the reserve list and the marking criteria.

7 By e-mail of 24 February 2012, the head of the ‘human resources’ division of the REA provided the applicant with her results and informed her that the minimum mark achieved by the 63 best candidates, included on the reserve list, was 67/100. The applicant had obtained a mark of 24.5/40 in the written tests and a mark of 39/60 in the oral test, that is to say, an overall mark of 63.5/100.

8 By e-mail of 29 February 2012, the applicant requested that the selection committee review her results and in particular those obtained in the oral test. In response to the request for review, the head of the ‘human resources’ division of the REA informed her, by e-mail of 12 March 2012, that the selection committee had decided to confirm the applicant’s results (‘the decision adopted after review’).

9 By e-mails of 13 March and 4 April 2012, the applicant requested, in particular, that she be provided with a copy of her marked written test and information concerning the marking grid and marking criteria.

10 By e-mail of 4 April 2012, the head of the ‘human resources’ division of the REA sent the applicant a copy of her unmarked written test, but refused to send her the marking grid and marking criteria, taking the view that the information in question was covered by the secrecy of the proceedings of the selection committee.

11 By letter of 25 April 2012, the applicant lodged a complaint under Article 90(2) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) against the decision of 21 February 2012.

12 The complaint was rejected on 10 August 2012 (‘the decision rejecting the complaint’) by the director of the REA, acting as the authority authorised to conclude contracts of employment.

Forms of order sought

13 The applicant claims that the Tribunal should:

– annul the decision of 21 February 2012;

– annul the decision rejecting the complaint;

– order the REA to pay the costs.

14 The REA contends that the Tribunal should:

– dismiss the action as unfounded;

– order the applicant to pay the costs.

Law

Subject-matter of the action

15 According to settled case-law, which can be applied by analogy to a selection procedure such as that at issue in the present case, where a candidate in a competition requests, in accordance with a rule laid down in the notice of competition, the review of a decision adopted by a selection board, the decision adopted by the latter on review replaces the selection board’s original decision and therefore constitutes the act adversely affecting [the candidate] (judgment of 24 April 2013 in Case F‑96/12 Demeneix v Commission, paragraph 27 and the case-law cited).

16 The complaint of 25 April 2012, rejected by the authority authorised to conclude contracts of employment on 10 August 2012, was directed against the decision of 21 February 2012 in respect of which, on 29 February 2012, the applicant requested a review.

17 The decision rejecting the complaint is devoid of any independent content since it merely confirms, with a fuller statement of reasons, the decision of 21 February 2012 and the decision adopted after review.

18 It follows from all of the foregoing that the present action must be regarded as seeking the annulment of the decision adopted after review.

Substance

19 The applicant puts forward three pleas in support of her action:

– the first alleges a manifest error of assessment and infringement of Article 27 of the Staff Regulations;

– the second alleges infringement of Article 29 of the Staff Regulations, of procedural rules and of Article 3 of Annex III to the Staff Regulations and breach of the principle of equal treatment;

– the third alleges breach of the obligation to state reasons, infringement of Article 25 of the Staff Regulations, breach of the ‘principle of transparency’ and infringement of Article 15(1) TFEU.

20 It is appropriate to examine first the fourth part of the second plea in law, relating to instability in the composition of the selection committee.

Arguments of the parties

21 According to the applicant, the chairman of the selection committee attended only 70% of the oral tests and there was no significant overlap between the attendance of the chairman and his alternate.

22 Similarly, the two other full members of the selection committee attended only 63% and 59% of the oral tests, respectively, which, it is claimed, is a particularly low level of attendance having regard to the small number of candidates invited to the oral tests.

23 Lastly, the applicant claims that the REA has not explained how the members of the selection committee coordinated with each other or agreed in advance on a common method for the assessment of candidates.

24 According to the REA, in the circumstances of the present case, the number of candidates invited to the oral tests should, on the contrary, be regarded as very high, for it represents 25% of the REA’s total number of staff.

25 Furthermore, again according to the REA, only one quarter of its staff are temporary agents eligible, as such, to sit on a selection board. Some members of the selection committee, it is contended, had professional commitments of their own or were members of a number of selection boards at the same time, since six selection procedures for temporary agents were being carried out simultaneously by the Agency. In fact, the organisation of the selection procedure in question, while the REA was still in ‘start up’ phase, had proved very complex.

26 The REA also contends that the chairman of the selection committee was present during the first six days of the oral tests and that he had attended the majority of the interviews and been replaced by the alternate chairman in his absence, including at the applicant’s oral test. The chairman was an official of the European Commission in grade AD 12 with professional commitments of his own. That was an objective fact over which the Agency had no control, and for which it could not, therefore, be held responsible.

27 According to the REA, the alternate chairman was present, furthermore, as an observer during the first day of the oral tests in order to familiarise himself with the practical application of the method of assessment.

28 As regards the two full members of the selection committee, who attended 63% and 59% of the interviews, respectively, the REA argues that those figures must also be considered in the light of the size of the Agency, the large number of candidates invited to the oral tests and of the fact that six selection procedures for temporary agents were being carried out simultaneously.

29 Lastly, the REA submits that, in order to ensure the required degree of stability of the selection committee, it appointed three alternate members to the selection committee and took measures in order to ensure equality and consistency in the assessment of all the candidates. All of the members of the selection committee, full and alternate, received the same assessment criteria for candidates for the oral test, namely, a series of questions and assessment criteria. Each member of the selection committee was required, in addition, to keep his alternate informed, which, it is contended, was done in the course of several meetings. The wording of the questions asked at the oral test was strictly identical for all candidates.

Findings of the Tribunal

30 It should, first of all, be recalled that, in view of the importance of the role and task of a selection board, any official or member of staff who is a member of a selection board must carry out, with all the necessary diligence, the tasks falling to him in that capacity. In particular, a full member of a selection board must, as a rule, attend the oral tests of a competition (see, to that effect, judgment of 29 September 2010 in Case F‑5/08 Brune v Commission, paragraph 55).

31 Next, it must be stated that, according to settled case-law, the broad discretion that a selection board enjoys as regards the determination of the arrangements for and detailed content of the oral tests of a competition or of a selection procedure must be counterbalanced by scrupulous observance of the rules governing the organisation of those tests. The selection board must therefore ensure that the principle of equal treatment of candidates is strictly observed when the oral tests are being carried out and that the choice it makes from among the persons concerned is objective. To this end, a selection board is required to ensure the consistent application of the assessment criteria to all candidates concerned, by ensuring in particular the stability of its composition (see, to that effect, Brune v Commission, paragraphs 38 to 40 and the case-law cited).

32 However, it has been accepted that when securing the attendance of all the members of the selection board at all of the tests proves impossible or very difficult, the need to ensure the continuity of the civil service may justify relaxing the principle of the stability of a selection board, provided that the selection board takes the coordination measures necessary to ensure that the performance of candidates is consistently marked and compared (see, to that effect, Brune v Commission, paragraphs 41 and 42 and the case-law cited).

33 In the present case, the REA does not dispute the fact that, over a period of 13.5 days, seven different formations of the selection committee assessed the 107 candidates invited to the oral tests. It is also apparent from the attendance chart of the six full and alternate members of the selection committee, which was drawn up by the applicant on the basis of electronic data of the REA, that no full or alternate member of the selection committee attended all of the interviews, the highest attendance rate being 70% and the lowest 33%. Furthermore, no single formation of the selection committee attended more than four days of oral tests or more than three consecutive days of tests. The members who attended the largest number of interviews, with attendance rates of 70% and 63%, attended only half of the interviews together. By way of example, on the day of the applicant’s oral test, the chairman of the selection committee was not present and the selection committee, composed of the alternate chairman, a full member and an alternate member, sat in that formation on that day alone. It must therefore be held, on the basis of the attendance chart, the content of which was expressly confirmed by the REA at the hearing, that during the oral phase of the selection procedure, which was carried out over a relatively short period, the composition of the selection committee fluctuated significantly.

34 In this connection, the REA submits that, having regard to the size of the Agency and to the fact that six selection procedures were being carried out simultaneously, it was difficult to appoint members to the selection committee from the Agency’s personnel and to ensure that only one formation of the selection committee was able to assess all of the numerous candidates invited to the oral test of the selection procedure.

35 It should be stated, however, that there is nothing to show that the members of the selection committee had necessarily to be drawn only or in the majority from REA personnel. It is common ground, for instance, that the chairman of the selection committee was a Commission official. Therefore, even if proved, neither the fact that the number of candidates invited to the oral test represented 25% of the REA’s total number of staff nor the fact that six selection procedures were being carried out simultaneously is capable of justifying so large a fluctuation in the composition of the selection committee.

36 As regards the coordination measures that the selection committee allegedly took in order to ensure consistent marking and comparison of the candidates’ performance despite the fluctuation in its composition, it should be recalled that in order to assess the merits of such measures, an overall examination must be made of the organisation of the oral tests in question, having regard to all the relevant factors, including the extent of the fluctuation and the level of attendance of the chairman of the selection board, which is a factor of the utmost importance having regard to the crucial role of coordination for which he is responsible (Brune v Commission, paragraph 41 and the case-law cited).

37 In the present case, it appears from the attendance chart of the members of the selection committee that the chairman attended only 70% of the interviews, without his absence being explained in any way. The REA confines itself to stating that the chairman of the selection committee was a Commission official of grade AD 12 and that he had professional commitments of his own. In addition, it is also apparent from that chart that the alternate chairman attended 33% of the tests. The full chairman and the alternate chairman did not therefore attend at the same time, with a view to coordination, to any significant extent.

38 Furthermore, there is nothing to show that the selection committee took coordination measures to counterbalance the fluctuation in its composition. Apart from the statement that appears in a selection committee report dated 28 November 2011, that is to say, the day before the commencement of the oral tests, according to which ‘the Selection Committee agreed on the set of questions and their related assessment criteria’, there is nothing in the file which refers to any coordination measures. In particular, there is nothing to permit the inference that coordination between the members of the selection committee took place after the oral tests even though, precisely because of the fluctuation in the composition of the selection committee, some of its members attended the interviews of a limited number of candidates only and, therefore, were able to carry out only a very limited comparative assessment of their performance.

39 In the same way, the fact, even if proved, that the same questions were put to all the candidates at the oral tests does not show that the members of the selection committee coordinated with each other after those tests in order to ensure objectivity in marking and equal treatment of candidates.

40 It follows from the foregoing that the complaint based on the instability in the composition of the selection committee must be upheld and, without there being any need to examine the other pleas in law put forward by the applicant, the decision adopted after review must be annulled.

Costs

41 Under Article 87(1) of the Rules of Procedure, without prejudice to the provisions of Chapter 8 of Title 2 to those rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Under Article 87(2), the Tribunal may, if equity so requires, decide that an unsuccessful party is to pay only part of the costs or even that the unsuccessful party is not to be ordered to pay any costs.

42 It follows from the reasoning set out in the present judgment that the REA is the unsuccessful party. Moreover, in her pleadings, the applicant has expressly applied for the REA to pay the costs. Since the circumstances of this case do not warrant application of the provisions of Article 87(2) of the Rules of Procedure, the REA must bear its own costs and be ordered to pay the costs incurred by the applicant.

On those grounds,

THE CIVIL SERVICE TRIBUNAL (First Chamber)

hereby:

1. Annuls the decision communicated by e-mail of 12 March 2012 to Ms Marenco by which the selection committee of the Call for expressions of interest REA/2011/TA/PO/AD 5 refused, after review, to include Ms Marenco’s name on the reserve list at the end of the selection procedure.

2. Declares that the Research Executive Agency is to bear its own costs and orders it to pay the costs incurred by Ms Marenco.

Kreppel Perillo Barents

Delivered in open court in Luxembourg on 12 December 2013.

W. Hakenberg H. Kreppel