JUDGMENT OF THE GENERAL COURT (Appeal Chamber)

3 December 2015

Eva Cuallado Martorell

v

European Commission

‛Appeal — Civil service — Officials — Recruitment — Open competition to draw up a reserve list of lawyer-linguists with Spanish as their main language — Decision of the selection board confirming failure to pass the last written test and non-admittance to the oral test — Article 90(2) of the Staff Regulations — Admissibility of the action at first instance — Duty to state reasons — Refusal to send the marked written tests to the appellant — Access to documents’

Appeal:

against the judgment of the European Union Civil Service Tribunal (Second Chamber) of 18 September 2012 in Cuallado Martorell v Commission (F‑96/09, ECR-SC, EU:F:2012:129) and seeking to have that judgment set aside.

Held:

The judgment of the European Union Civil Service Tribunal (Second Chamber) of 18 September 2012 in Cuallado Martorell v Commission (F‑96/09, ECR-SC, EU:F:2012:129) is set aside inasmuch as it declares the action to be inadmissible in seeking the annulment of the decision refusing admission to the oral test and, consequently, the reserve list. The remainder of the appeal is dismissed. The case is referred back to the Civil Service Tribunal. The costs are reserved.

Summary

The statement of reasons for a decision adversely affecting a person is intended, first, to provide the person concerned with details sufficient to allow him to ascertain whether the decision is well founded and whether it is appropriate to bring proceedings before the Courts of the Union and, secondly, to enable the Courts to review the legality of the decision. As regards decisions taken by a selection board in a competition, the obligation to state reasons must be reconciled with observance of the secrecy surrounding the proceedings of the selection board, and therefore communication of the marks obtained in the various tests constitutes an adequate statement of the reasons on which the selection board’s decisions are based. An express decision refusing to send the marked written tests contains a sufficient statement of reasons in so far as it refers to Article 6 of Annex III to the Staff Regulations, which provides that the proceedings of the selection board are to be secret. (see paras 37-39, 67) See: Judgment of 4 July 1996 in Parliament v Innamorati, C‑254/95 P, ECR, EU:C:1996:276, para. 31 Judgments of 25 June 2003 in Pyres v Commission, T‑72/01, ECR-SC, EU:T:2003:176, para. 66 and the case-law cited therein; 5 April 2005 in Hendrickx v Council, T‑376/03, ECR-SC, EU:T:2005:116, paras 73 and 74 and the case-law cited therein; 12 February 2014 in De Mendoza Asensi v Commission, F‑127/11, ECR-SC, EU:F:2014:14, para. 94, and 11 December 2014 in van der Aat and Others v Commission, T‑304/13 P, ECR-SC, EU:T:2014:1055, para. 43 and the case-law cited therein

The legal remedy available regarding decisions of a selection board normally consists of a direct application to the Union Court. The whole point of allowing a person to rely on that direct legal remedy without a prior administrative complaint is to implement his right to effective judicial protection. It is a possibility, not an obligation. However, if the person concerned by a decision of a selection board, instead of making an application directly to the Union Court, invokes the Staff Regulations and submits an administrative complaint to the appointing authority, the admissibility of the action brought subsequently will depend on his compliance with all the procedural requirements applicable to the prior complaint. (see paras 54, 55, 62) See: Judgment of 23 January 2002 in Gonçalves v Parliament, T‑386/00, ECR-SC, EU:T:2002:12, paras 34 and 35 and the case-law cited therein