JUDGMENT OF THE COURT OF FIRST INSTANCE (Fifth Chamber)

15 June 1994

Case T-6/93

Fernando Pérez Jiménez

v

Commission of the European Communities

‛Officials — Open competition — Application to annul a decision of the Selection Board — Admissibility — Act adversely affecting an official’

Full text in Spanish II-497

Application for:

annulment of the decision of the Selection Board in Open Competition COM/A/720 to ‘extend’ the list of candidates admitted to written tests (d) and (e) and of all the operations involved in the competition subsequent to that decision.

Decision:

Application dismissed.

Abstract of the Judgment

The Commission organized an open competition to constitute a reserve list, the written part of which comprised a pre-selection stage subdivided into three tests (a), (b) and (c), and a second stage comprising two tests (d) and (e). Only candidates who obtained a total of at least 48 marks in tests (d) and (e) and the minimum number of marks required for each of those tests were admitted to the oral test.

Having passed the pre-selection tests, the applicant was invited to take part in the second stage of the written part of the competition, as were, on 15 May 1992, a number of candidates who had initially failed in the pre-selection tests.

The applicant lodged a complaint against the widening of the list of candidates invited on the grounds that it reduced his chances of being entered on the list of suitable candidates and infringed the notice of competition.

On 1 October 1992 the applicant was informed that he would not be admitted to the oral test because he had failed to obtain the minimum number of marks required in written test (d).

His complaint was then rejected on the ground that only those candidates whose marks in the pre-selection tests reached the minimum required by the notice of competition had been admitted to tests (d) and (e).

The claims directed against the extension of the list of candidates admitted to written tests (d) and (e)

Admissibility

In support of its plea of inadmissibility based on the absence of any act adversely affecting the applicant inasmuch as the contested extension did not diminish his chances of being entered on the list of suitable candidates, the Commission maintains that, in the pre-selection tests, 2405 candidates initially obtained the minimum number of marks required by the notice of competition. The Selection Board then applied a weighting coefficient which reduced the number of candidates admitted to tests (d) and (e) to 394. Following complaints received, the weighting coefficient was finally abandoned, so that eventually candidates who had initially obtained the minimum number of marks required in the pre-selection tests were invited to sit tests (d) and (e).

The Court points out that the only acts or decisions that are capable of forming the subject-matter of an action for annulment are those which produce binding legal consequences that are likely directly and immediately to affect the applicant's interests by significantly changing his legal situation. In the case of acts or decisions that involve several stages, especially in the course of an internal procedure such as a competition, the only measures which constitute acts that can be challenged are those which definitively establish the position of the institution at the end of that procedure, to the exclusion of intermediate measures whose purpose is to prepare die final decision. Those acts do not adversely affect an official within the meaning of Article 90(2) of the Staff Regulations and may only be challenged incidentally in the course of an action brought against acts which may be annulled (paragraphs 34 and 35).

See: 204/85 Stroghili v Court of Auditors [1987] ECR 389; T-69/92 Seghers v Council [1993] ECR II-651; T-20/92 Moat v Commission [1993] ECR I-799; T-17/90, T-28/91 and T-17/92 Cámara Alloisio v Commission [1993] ECR II-841

The Court dismisses as inadmissible the claims directed against the act in question, whose sole purpose was to regularize the steps in the competition and whose effects do not go beyond those appropriate for an intermediate act. The act in question does not change the conditions under which the competition was conducted and is not an act adversely affecting the candidates admitted initially, whose interests it does not affect, but a preparatory act forming part of the competition procedure as a whole and may only be challenged for irregularity in the context of an action directed against the decision taken at the end of that procedure, namely the refusal to admit the applicant to the oral tests. That decision adversely affects the applicant because it entailed the refusal of the Selection Board to enter him on the list of suitable candidates (paragraphs 37 and 38).

The claims directed against the decision of 1 October 1992 refusing to admit the applicant to the oral test

As regards the legality of the act preparatory to the decision in question, which is an incidental issue which falls for the Court to consider at this stage, the Court points out that the Selection Board is bound by the published text of the notice of competition, which it applied exactly by inviting to these tests the 2405 candidates who had obtained the minimum number of marks required in the pre-selection tests (paragraphs 40 and 41).

See: T-44/92 Delloye v Commission [1993] ECR II-221; Cámara Alloisio v Commission, cited above

The Court is of the opinion that the applicant has not established that the refusal to admit him to the oral test was unlawful, bearing in mind that a selection board enjoys a wide discretion and that, whilst it must proceed on the basis of objective criteria which are known to each of the candidates and must state adequately the grounds on which its decision is based, the Community judicature has no jurisdiction to review its value judgments.

See: 144/82 Detti v Court of Justice [1983] ECR 2421

Operative part:

The application is dismissed.