JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(Full Court)

29 June 2011

Case F-7/07

Marie-Thérèse Angioi

v

European Commission

(Civil service — Contract staff — Call for expression of interest — Pre-selection procedure — Requirements relating to knowledge of languages — Discrimination — Incidents during the tests)

Application: brought under Articles 236 EC and 152 EA, in which Ms Angioi seeks annulment of the decision of 14 March 2006 by which the European Personnel Selection Office, in the context of a Call for expression of interest to constitute a database of candidates to be recruited as contract staff, decided to exclude her from the remainder of the pre-selection tests because of insufficient marks obtained during the first tests to assess her verbal and numerical reasoning capacity.

Held: The action is dismissed. The applicant and the European Commission are to bear their own costs. The Kingdom of Spain and the Italian Republic, interveners, are to bear their own costs.

Summary

1. Officials — Contract staff — Recruitment — Competitions — Conditions for admission — Knowledge of languages — Choice of main language

(Conditions of Employment of Other Servants, Art. 82(3)(e))

2. Union law — Interpretation — Texts in several languages — Differences between the various language versions

3. Officials — Contract staff — Recruitment — Competitions — Conditions for admission — Knowledge of languages — Requirement to have satisfactory knowledge of a specific language — Justification

(Staff Regulations, Art. 1d(1) and (6); Conditions of Employment of Other Servants, Art. 82(3)(e))

4. Procedure — Intervention — Plea on which applicant cannot rely — Inadmissibility

(Statute of the Court of Justice, Art. 40, fourth para.; Rules of Procedure of the General Court, Art. 116(4); Rules of Procedure of the Civil Service Tribunal, Art. 110(3) and (4))

5. Officials — Competitions — Duty of the Union institutions to ensure that tests are conducted smoothly and properly for all candidates

6. Officials — Actions — Action directed against a decision to exclude from a competition because of inadequate results obtained in pre-selection tests

7. Officials — Competitions — Selection board — Elimination of a candidate because of inadequate results obtained in multiple-choice tests — Obligation to state the reasons on which the decision is based — Scope

(Staff Regulations of Officials, Art. 25, second para.)

8. Officials — Competitions — Competition based on qualifications and tests — Content of the tests — Multiple-choice questions — Selection board's discretion — Judicial review — Limits

(Staff Regulations, Annex III)

9. European Personnel Selection Office (EPSO) — Powers — Organisation of pre-selection tests for contract staff and rejection of failed candidates — Included

(Conditions of Employment of Other Servants, Art. 82(5); Decision 2002/620 of the European Parliament, the Council, the Commission, the Court of Justice, the Court of Auditors, the Economic and Social Committee, the Committee of the Regions and the Ombudsman, Art. 3(2))

1. Pursuant to Article 82(3)(e) of the Conditions of Employment of Other Servants, a member of the contract staff may be engaged only on condition that he produces evidence of, inter alia, a thorough knowledge of one of the languages of the Union.

That provision does not mean, however, that the language of which a candidate for a contract staff post has a thorough knowledge should be limited only to the language of his nationality or, in the case of a candidate who is a national of a Member State having more than one official language, only to that in which he underwent his education.

(see paras 67, 68)

2. The need for a uniform application and, accordingly, interpretation of the provisions of EU law makes it impossible to consider one version of a text in isolation but requires that it be interpreted on the basis of both the real intention of its author and the aim pursued by that author, in the light in particular of the other versions drawn up in the languages of the European Union. Consequently, where one language version is in the minority in relation to other language versions of the text in question, the latter must be allowed to prevail.

(see para. 72)

See:

30 November 2009, F-83/07 Zangerl-Posselt v Commission, para. 49 and the case-law cited therein, on appeal before the General Court of the European Union, Case T-62/10 P

3. The language requirements set out in Article 82(3)(e) of the Conditions of Employment of Other Servants, in this instance having a thorough knowledge of one of the languages of the European Union and a satisfactory knowledge of another language of the European Union to the extent necessary for the performance of the duties involved, constitute only minimum conditions for the recruitment of members of the contract staff. It follows that the administration may, if necessary, where the needs of the service or those of the post require it, legitimately specify the language(s) of which a thorough or satisfactory knowledge is required.

Although such a specific language requirement may result from the particular profile of the post that the member of the contract staff is required to fill, it may result more generally from the existence, within the institution, of one or more languages of internal communication. Since an institution has the right, even without taking a formal decision to that effect, to choose a limited number of languages of internal communication, provided that that choice is based on objective considerations relating to its operational needs, it follows that that institution may legitimately impose on contract staff whom it intends to recruit a knowledge of languages matching those languages of internal communication.

However, any discrimination based on language is expressly prohibited by Article 1d(1) of the Staff Regulations, and under Article 1d(6), while respecting the principle of non-discrimination and the principle of proportionality, any limitation of their application must be justified on objective and reasonable grounds and must be aimed at legitimate objectives in the general interest in the framework of staff policy.

A call for expressions of interest in order to recruit contract staff to carry out various tasks within the European institutions which restricts the choice of the second language to German, English or French must be regarded as pursuing such an objective. In the light of the position occupied by those languages within the institutions in which the contract staff recruited were required to perform their duties, the language requirements pursued the objective of ensuring that those members of staff had a knowledge of languages matching those languages of internal communication. Furthermore, unlike officials, members of the contract staff are intended, in principle, to remain within the institutions only for a limited period and, therefore, any language deficiencies on the part of those staff members cannot be remedied by means of training programmes.

(see paras 89-92, 94, 95, 97)

See:

4 March 1964, 15/63 Lassalle v Parliament, p. 73 and 74; 15 March 2005, C-160/03 Spain v Eurojust, Opinion of Advocate General Poiares Maduro, points 49 and 56

13 September 2010, T-156/07 and T-232/07 Spain v Commission, paras 65 and 75; 13 September 2010, T-166/07 and T-285/07 Italy v Commission, paras 81 and 93

4. An intervener does not have standing to advance an argument which the applicant would not be entitled to put forward. That is true of pleas alleging illegalities which could not have harmed the interests of the applicant.

(see para. 112)

See:

9 February 1994, T-3/92 Latham v Commission, para. 53

5. In accordance with the principles of sound administration and equal treatment, the institutions have a duty to all candidates in a competition to ensure that the tests are conducted as smoothly and properly as possible. However, an irregularity that occurs during the tests of a competition does not affect the lawfulness of the tests unless it is substantive in nature and capable of distorting the results of the tests. Where such an irregularity occurs, it is for the defendant institution to prove that it did not affect the results of the tests.

(see para. 123)

See:

13 December 2006, F-22/05 Neophytou v Commission, para. 60

6. The argument challenging the overall reliability of the results of the pre-selection tests communicated to the candidates by the European Personnel Selection Office (EPSO) could properly be relied on by a candidate in support of his claim for the annulment of the decision to exclude him only to the extent that that argument demonstrated that he had satisfied the requirements laid down by EPSO for the evaluation of the pre-selection tests, namely the attainment of a minimum number of correct answers in those tests.

(see para. 128)

7. In the absence of special circumstances, an administration which organises recruitment tests in the form of multiple-choice questions complies with its obligation to state reasons by communicating to the candidates who have failed those tests the proportion, as a percentage, of correct answers and by sending to them, upon request to that effect, the answer which should have been given to each of the questions asked. It could be otherwise only where the applicant, in his complaint, specifically disputes the relevance of certain questions or the validity of the answer adopted as correct and provided that the difference between his results and the pass threshold is such that, assuming that his objection is well founded (which would require the discovery on the part of the Court of factual inaccuracy), he could be among the candidates who passed the tests in question. In such a case, it would be for the administration, in its reply to the complaint, to communicate the information to that effect, in particular the text of the questions put to him during the tests.

(see para. 138)

See:

11 September 2008, F-127/07 Coto Moreno v Commission, para. 32

8. In the context of tests comprising multiple-choice questions, the Civil Service Tribunal cannot cast doubt on the validity of the classification of the questions according to the various levels of difficulty except on the basis of an examination of all the questions, an examination which it is not for it to make unless it has before it numerous indications that the classification made by the organisers is vitiated by errors exceeding the discretion enjoyed by them.

(see para. 146)

9. It is clear from the wording of the first sentence of Article 82(5) of the Conditions of Employment of Other Servants, and of Article 3(2) of Decision 2002/620, that the European Personnel Selection Office is competent to organise pre-selection tests for contract staff and to reject the applications of candidates who fail those tests.

(see paras 151, 152)