ORDER OF THE COURT OF FIRST INSTANCE (Appeal Chamber)

24 September 2008

Case T-105/08 P

Kris Van Neyghem

v

Commission of the European Communities

(Appeal – Civil service – Dismissal of the action at first instance – Recruitment – Open competition – Non‑admission to the oral tests – Appeal manifestly unfounded)

Appeal: against the judgment of the European Civil Service Tribunal (Second Chamber) of 13 December 2007 in Case F-73/06 Van Neyghem v Commission [2007] ECR-SC I-A-1-0000 and II‑A‑1‑0000, seeking annulment of that judgment.

Held: The appeal is dismissed. Mr Kris Van Neyghem is ordered to bear his own costs and to pay those incurred by the Commission in the context of the appeal.

Summary

1. Appeals – Grounds – Distortion of the clear sense of the evidence – Findings of fact from the Tribunal’s file substantially incorrect – Admissibility

(Art. 225a EC; Statute of the Court of Justice, Annex I, Art. 11(1))

2. Officials – Competitions – Selection board – Rejection of application – Obligation to state reasons

(Staff Regulations, Art. 25, second para.; Annex III, Art. 6)

3. Officials – Competitions – Assessment of the candidates’ performance – Selection board’s discretion

(Staff Regulations, Annex III)

1. Complaints based on findings of fact and on the assessment of those facts in the contested judgment are admissible on appeal where the appellant contends that the Civil Service Tribunal has made findings which the documents in the file show to be substantially incorrect or that it has distorted the clear sense of the evidence before it. There is such distortion where, without recourse to new evidence, the assessment of the existing evidence appears to be clearly incorrect.

(see paras 29, 32)

See: C‑82/01 P Aéroports de Paris v Commission [2002] ECR I‑9297, para. 56; C‑229/05 P PKK and KNK v Council [2007] ECR I‑439, paras 32 to 35 and 37

2. The obligation to state the reasons on which decisions of a selection board in a competition are based must be reconciled with observance of the secrecy which must surround its proceedings pursuant to Article 6 of Annex III to the Staff Regulations. Consequently, in stating the reasons for its decision not to admit a candidate to a test, a selection board may confine itself to disclosing to the candidate the marks and points he was awarded, and is not required to identify the answers which were considered unsatisfactory or to explain why they were considered unsatisfactory .

(see paras 34-35)

See: C‑254/95 P Parliament v Innamorati [1996] ECR I‑3423, para. 24; T‑33/00 Martínez Páramo and Others v Commission [2003] ECR-SC I‑A‑105 and II‑541, para. 44; T‑19/03 Konstantopoulou v Court of Justice [2004] ECR-SC I‑A‑25 and II‑107, para. 27

3. The assessments which a selection board in a competition makes when it evaluates the knowledge and abilities of candidates and also the decisions whereby it determines that a candidate has failed a test constitute the expression of a value judgement of the candidate’s performance in the test. The selection board enjoys a broad discretion in evaluating competition test results and the well‑foundedness of its value judgements can be reviewed by the Community judicature only in clear cases of infringement of the rules governing its proceedings, manifest error or misuse of powers, or if it has manifestly exceeded the bounds of its discretion.

(see paras 46-47)

See: 40/86 Kolivas v Commission [1987] ECR 2643, para. 11; T‑200/97 Jiménez v OHIM [1999] ECR-SC I‑A‑19 and II‑73, para. 40; T‑294/03 Gibault v Commission [2005] ECR-SC I‑A‑141 and II‑635, para. 41