JUDGMENT OF THE COURT OF FIRST INSTANCE (Third Chamber)

14 July 2005 ( )

(Officials – Internal competition – Non-admission to the oral tests – Breach of the competition notice – Irregularity in the conduct of the tests of such a kind as to distort the results – Principle of equal treatment and non-discrimination – Principle of sound administration)

In Case T‑371/03,

Vincenzo Le Voci, an official of the Council of the European Union, residing in Brussels (Belgium), represented by G. van der Wal and E. Oude Elferink, lawyers,

applicant,

v

Council of the European Union, represented by M. Sims and F. Anton, acting as Agents,

defendant,

APPLICATION for annulment of the procedure in internal competition Council/A/270 or, in the alternative, of the Selection Board’s decision not to admit the applicant to the oral tests in that competition,

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Third Chamber),

composed of M. Jaeger, President, V. Tiili and O. Czúcz, Judges,

Registrar: C. Kristensen, Administrator,

having regard to the written procedure and further to the hearing on 2 March 2005,

gives the following

Judgment

Facts

1 The applicant has been an official of the Council since 1992. He is currently in grade B 4.

2 The applicant took part in internal competition Council/A/270, notice of which was published by the General Secretariat of the Council (‘the GSC’) on 4 October 2002 in English and French, under reference number 138/02. That competition gave grade B officials and servants of the GSC the opportunity to proceed to grade A and was intended to fill four vacancies and to draw up a reserve list of administrators.

3 According to point I of the competition notice, entitled ‘Nature of duties’:

‘The official job description is as follows:

– carrying out planning, analysis or supervisory tasks on the basis of general directives according to the department to which the candidate is assigned, or

– assisting the official responsible for a particular activity within a division.’

4 Point I of the competition notice further states:

‘In practice, in the light of the activities of the [GSC], the duties to be carried out consist of performing, within a Directorate-General, the following tasks:

either

– providing assistance and secretarial support to the various working parties or committees and to meetings of the Permanent Representatives Committee and of the Council in a given field (drafting of notes and opinions, advice and assistance to Council members and to the Presidency, in particular);

or

– supervisory and management activities in the field of administration or in the technical departments (personnel, internal services, budget, auditing, building, new technologies).’

5 Point IV of the competition notice describes the content and details of the tests for the competition:

‘General remark: a candidate who obtains a mark of less than 60% for any of the following tests will be disqualified.

Written tests A.1 and A.2, and oral test B.1, will take place in the main language chosen by the candidate on the application form.

A. Written tests

[Written test A.1] Practical test consisting of an analysis and summary of a file relating to the activities of the European Union.

Time allowed: 3 hours

Marks: out of 40

[Written test A.2] Essay on a topic chosen by the candidate from several subjects relating to the activities of the European Union, to assess candidate’s level of knowledge, drafting ability and powers of reasoning.

Time allowed: 3 hours

Marks: out of 40

[Written test A.3] Short essay in English or French (whichever the candidate has indicated on his/her application form) in connection with the activities of the Council of the European Union, to assess his/her drafting ability in one of these two languages. Candidates who take tests A.1 and A.2 in French must take this test in English and candidates who take tests in A.1 and A. 2 in English must take this test in French.

Time allowed: 2 hours

Marks: out of 30’.

6 Point IV of the competition notice also states that test A.1 will take place in the main language chosen by the candidate on the application form.

7 The written tests took place on 25 and 26 June 2003. At the beginning of test A.1, a file relating to a co-decision procedure concerning the adoption of an action programme in the field of public health was distributed to the candidates. It contained three documents in the main languages chosen by the candidates on their application forms: document 10222/01 of 24 July 2001, containing a common position adopted by the Council; document 10222/3/01 of 31 July 2001, containing a short description of the Council’s statement of reasons, and document 15153/01 of 19 December 2001, consisting of a briefing note containing the outcome of the second reading by the Parliament (‘the note on the second reading’).

8 On the cover page of test A.1, the text, in English, reproduced that of the competition notice (‘Practical test consisting of an analysis and summary of a file relating to the activities of the European Union’).

9 On the second page of the test, the detailed instructions concerning test A.1 were set out for each candidate in the language chosen on the application form. As the applicant was an Italian-language candidate, he received the following instructions:

‘1. Redigere una breve relazione del Segretario generale del Consiglio al Coreper che illustri a grandi linee, in base alla documentazione e ai risultati dei lavori del Gruppo “Sanità Pubblica”, i principali punti di disaccordo tra il Consiglio e il Parlamento europeo. [20 punti]

2. Redigere una nota all’attenzione del Presidente del Coreper in preparazione della prima riunione a tre con il Parlamento europeo, volta ad indicare gli eventuali mezzi e modi per trattare le questioni fondamentali in sospeso. [20 punti]’

10 The instructions to English-language candidates were as follows:

‘1. Write a short Report to Coreper from the [GSC] outlining, on the basis of the documentation and the outcome of the Working Party on Public Health, the main issues of contention between the Council and the European Parliament [20 points] …

2. Write a briefing note for the Chairman of Coreper in preparation for the first Trialogue meeting with the European Parliament, setting out possible ways of handling the key outstanding issues. [20 points].’

11 Certain of the documents provided to the candidates contained material errors. One error affected all the language versions of the note on the second reading. Two other errors appeared only in the Spanish version of that document.

12 The error in all the language versions of the note on the second reading appeared in the following context: Section II of the document states the Commission’s position on the amendments proposed by the Parliament. Point 1 of that section indicates the numbers of the amendments acceptable in their entirety to the Commission (26 amendments). Point 2 lists the numbers of the amendments acceptable to the Commission in part or in spirit (9 amendments), while point 3 indicates the numbers of the amendments rejected by the Commission (16 amendments plus the last part of amendment 56). The material error in the document consisted in the fact that amendment 52 appears twice in that section: it is indicated in the list of amendments acceptable in their entirety to the Commission and then also among the amendments rejected by the Commission.

13 The applicant noticed that error during the course of test A.1 and decided to speak to the members of the Selection Board who were present at the examination. They took the view that it was too late to inform the other candidates or to cancel the examination. They then advised the applicant not to focus too much on amendment 52.

14 The errors found only in the Spanish version of the note on the second reading appeared on the first and second pages of the document in question. The first error was in the title of the Spanish version of the note on the second reading, which refers to the ‘Outcome of the first reading of the European Parliament’ instead of the ‘Outcome of the second reading of the European Parliament’. The second error appeared in the fifth paragraph of section I of the document, which in the Spanish version wrongly stated that the amount provided for in the Commission’s initial proposal was EUR 380 million instead of EUR 300 million.

15 When the members of the Selection Board present at written test A.1 learnt that the Spanish version contained errors, they immediately checked the other language versions of the text and established that they did not contain those errors. They then informed individually each of the eight candidates sitting the test in Spanish of those errors. Those candidates were informed before 10.45 a.m., or 1 hour and 20 minutes after the beginning of the examination, which lasted three hours in all.

16 By letter of 28 July 2003, the Selection Board informed the applicant that he was not being admitted to the oral test, as he had obtained only 20 points out of 40 in written test A.1, whereas the minimum mark required in that test was 24 points and all the tests in the competition were eliminatory.

17 By letter of 8 August 2003 to the Chairman of the Selection Board, the applicant disputed the result arrived at by the Selection Board with regard to test A.1 and requested that it be reviewed. He also pointed out that there were certain anomalies in the text of the note on the second reading.

18 By letter of 15 September 2003, the Chairman of the Selection Board confirmed the result of written test A.1 and informed the applicant that his paper in that test had been marked by the Selection Board in close collaboration with two examiners of Italian mother tongue serving in an advisory capacity. A copy of his test A.1 was also sent to the applicant, without the corrections made by the Selection Board. In support of its decision to send only the unmarked copy of the test, the Selection Board relied on Article 6 of Annex III to the Staff Regulations, which provides that ‘[t]he proceedings of the Selection Board shall be secret’, and also on the judgment of the Court of Justice in Case C-254/95 P Parliament v Innamorati [1996] ECR I-3423.

19 By letter of 29 September 2003, the applicant requested a copy of written test A.1 showing the corrections; he referred to the decision of the European Ombudsman of 4 September 2003 in relation to complaint 2097/2002/GG. He also reminded the Selection Board of the ‘incorrect information relating to the Council’s position on certain amendments of the European Parliament’ in the documents for test A.1.

20 On 30 October 2003 the Chairman of the Selection Board sent the following letter to the applicant:

‘In reply to your letter of 29 September 2003, I have the honour to inform you, after consulting the administration’s legal advisers, that the practice established by the GSC for competitions which were already in progress on 1 September 2003 is to give access to the unmarked copies of the tests and to the summary evaluation sheets setting out the mark awarded, where the Selection Board has drawn up such a sheet. Since the Selection Board has not drawn up such a sheet in the present case, the only document to be sent is the unmarked copy of the test.

Concerning your final remark, I would emphasise that the text which you mention was the same for all the candidates. The repetition of amendment 52 under two different headings reflecting the Commission’s position (and not the Council’s, as you write) was not such as to distort the assessment which candidates were required to make of the differences between the [Parliament] and the Council.’

21 The four successful candidates in the competition were, in order of merit, Italian, Danish, Belgian and Spanish.

Procedure and forms of order sought by the parties

22 By application lodged at the Registry of the Court of First Instance on 7 November 2003, the applicant brought the present action.

23 Upon hearing the report of the Judge-Rapporteur, the Court (Third Chamber) decided to open the oral procedure and, in the context of the measures of organisation of procedure, requested the parties to produce certain documents and to answer certain questions in writing. The parties complied with that request within the prescribed period.

24 The parties presented oral argument and their answers to the questions put by the Court at the hearing on 2 March 2005.

25 Following a request by the Court at the hearing, the Council lodged a non-confidential version of the observations and comments of the language examiners relating to the applicant’s paper in test A.1. After the applicant’s observations on those documents had been lodged, the oral procedure was closed on 7 April 2005.

26 The applicant claims that the Court should:

– declare the present action admissible;

– declare internal competition Council/A/270 invalid and void, or at least declare invalid the decision of the Selection Board of 28 July 2003 not to admit the applicant to the oral test;

– order the Council to pay the costs.

27 The Council contends that the Court should:

– dismiss the action as unfounded;

– order the parties to bear their own costs.

Law

28 In support of his application, the applicant puts forward four pleas in law. The first plea alleges failure to comply with the terms of the competition notice. The second plea alleges breach of the principle of equal treatment. The third plea alleges breach of the principle of sound administration. The fourth plea alleges lack of transparency in the marking of the tests.

1. First plea, alleging breach of the terms of the competition notice

Arguments of the parties

29 The applicant claims that the content of test A.1 in internal competition Council/A/270 departs from the framework fixed by the competition notice. He maintains that the instructions in the file handed out at the beginning of test A.1 went beyond the terms of the competition notice.

30 In support of that claim, the applicant observes that, in order to respond to the instructions in the file distributed in test A.1, the candidates, instead of merely making an analysis of a file relating to a particular European Union issue and summarising it, were also expected to give their own strategic input. Test A.1 therefore required a different approach and the application of different intellectual and writing skills from those for which the candidates were prepared. In other words, ‘making suggestions for possible solutions’, which, in the applicant’s submission, was the essence of the instructions accompanying the file distributed at the test, required a different approach from that consisting in ‘analysing and summarising a file’ as provided for in the competition notice.

31 The applicant refers to Article 1(1)(e) of Annex III to the Staff Regulations, which provides that ‘what kind [the tests] will be and how they will be marked’ must be specified in the competition notice.

32 The applicant further claims that, according to the case-law of the Court of Justice, the content of a test must be confined within the limits laid down in the competition notice.

33 The applicant acknowledges that the appointing authority has a wide discretion in deciding on the ability criteria for a specific post or for a reserve list of officials. However, in the applicant’s submission, that discretion does not extend to the question as to whether or not a written test is confined to what is set out in the competition notice and the appointing authority is required to follow the competition notice scrupulously.

34 The applicant also disputes the Council’s argument that the content of the written test was perfectly consistent with the objective of the competition, which was to fill vacant posts and to draw up a reserve list of administrators in grade A7.

35 The applicant emphasises in that regard that the task to be completed by candidates in the test was to write a briefing note for the Chairman of the Committee of Permanent Representatives (Coreper) in order to enable him to run a meeting at which the Council’s position on a Community action programme in the field of public health was to be adopted. The applicant maintains that briefing notes of that type are generally drafted by the Head of Division (grade A3) or by an official in a higher grade. The applicant further claims that administrators in a lower grade are not expected to deal with cases of that type. Consequently, the content of written test A.1 bore no relation to the job for which the candidates had applied.

36 For those reasons, the applicant claims that the level of written test A.1 did not correspond to the nature and level of the duties with which a grade A7 official tends to be entrusted.

37 None the less, the applicant asserts that he was able to cope with the difficulties of test A.1, owing to the experience acquired while working with the Council.

38 The Council disputes the applicant’s arguments and maintains that the content of test A.1 did not go beyond the description in the competition notice. It contends that the tests were entirely consistent with the purposes of the test and with the purposes of the competition.

Findings of the Court

39 By the present plea, the applicant claims that the Council acted in breach of the notice for competition Council/A/270, since one of the written tests departed from the framework established in that notice and because the content of the test in question did not correspond with the purpose of the competition.

40 As a preliminary point, it must be borne in mind that, according to Article 1(1)(e) of Annex III to the Staff Regulations, the competition notice must specify, where the competition is on the basis of tests, what kind those tests will be and how they will be marked.

41 As regards the appraisal of a possible breach of the competition notice, it is settled case-law that the Selection Board for a competition has a wide discretion as regards the detailed content of the tests provided for within the framework of a competition. The Court may not review the arrangements for the conduct of a test except to the extent necessary to ensure that the candidates were treated equally and that the choice made from among them was objective. It is likewise not for the Court to review the detailed content of a test, unless that content is not confined within the limits laid down in the competition notice or is not consonant with the purposes of the test or of the competition (Joined Cases 64/86, 71/86 to 73/86 and 78/86 Sergio and Others v Commission [1988] ECR 1399, paragraph 22; Case T‑132/89 Gallone v Council [1990] ECR II-549, paragraph 27; Case T-156/89 Valverde Mordt v Court of Justice [1991] ECR II-407, paragraph 121; Case T‑170/95 Carrer v Court of Justice [1996] ECR-SC I-A-363 and II-1071, paragraph 37; Case T-173/99 Elkaïm and Mazuel v Commission [2000] ECR-SC I-A-101 and II-433, paragraph 35; and Case T-146/99 Teixeira Neves v Court of Justice [2000] ECR-SC I-A-159 and II-731, paragraph 37).

42 It is in the light of that case-law that the Court must consider whether the applicant’s two claims, alleging inconsistency between the content of test A.1 and the purpose of the competition and the failure of the content of the test to comply with the competition notice, are well founded.

– The alleged inconsistency between the content of the test and the purpose of the competition

43 The applicant maintains that the content of test A.1 did not correspond with the purpose of the competition, which in his submission constitutes a breach of the competition notice. He maintains that writing a briefing note for the Chairman of Coreper in order to enable him to run a meeting with a view to defining the Council’s position, which was the task given to candidates in test A.1, is normally a matter for the head of division (in grade A3) and not for officials in grade A7, whom competition Council/A/270 was intended to recruit.

44 The descriptions of officials’ tasks presented by the Council during the proceedings before the Court contain clear indications of the nature of the duties to be carried out by various officials in grade A7 working within the GSC. Those duties include, inter alia, planning and analysis tasks in various fields of the Community policies, preparing the work of Coreper and the Council in relation to those fields, providing advice to the Chairman in preparing for and conducting meetings and also participating in meetings with the Parliament in the context of the co-decision procedure.

45 It should also be noted that the competition notice itself contains information about the nature of the tasks to be carried out by the successful candidates in competition Council/A/270. According to point I, the duties to be carried out by successful candidates consist of planning, analysis or supervisory tasks or assisting the official responsible for a particular activity within a division. Point I also states that successful candidates are expected to provide assistance and secretarial support to the various working parties or committees and to meetings of Coreper and the Council in a given field. That assistance, according to the wording of the competition notice, includes the drafting of notes and opinions, advice and assistance to Council members and to the Presidency, in particular.

46 The responsibilities specified in the descriptions of tasks provided by the Council and in the text of the competition notice include the task of drafting notes very similar, indeed identical, to those forming the subject-matter of test A.1, namely, first, a report to Coreper outlining, on the basis of the outcome of the Working Party on Public Health, the main issues of contention between the Council and the Parliament and, second, a briefing note for the Chairman of Coreper setting out possible ways of handling the outstanding issues

47 In the light of those considerations, it must be concluded that tasks similar to test A.1 may be required of the successful candidates in the course of their work within the GSC and that, consequently, the test constituted an appropriate means of appraising candidates’ capacity to meet the challenges that officials in grade A7 may encounter in that situation.

48 Accordingly, it must be held that the applicant’s claim that test A.1 did not correspond with the purpose of the competition is unfounded.

– The alleged failure to comply with the competition notice

49 As regards the alleged failure to comply with the competition notice, the applicant essentially maintains that to write a ‘briefing note setting out possible ways of handling the key outstanding issues’ entails more than analysing a file and summarising it. The difference, in his submission, consists in that, in order to comply with the instructions in test A.1, candidates also had to give their own strategic input, which required a different approach and a different preparation by comparison with a mere analysis and summary.

50 It should be observed at the outset that although the appointing authority enjoys a wide discretion to determine the conditions governing a competition, the Selection Board is bound by the text of the competition notice as published (Case 67/81 Ruske v Commission [1982] ECR 661, paragraph 9; and Case T-24/01 Staelen v Parliament [2003] ECR-SC I-A-79 and II-423, paragraph 47). The competition notice forms both the legal basis and the basis of assessment for the Selection Board (Case T-80/96 Fernandes Leite Mateus v Council [1997] ECR-SC I-A-87 and II-259, paragraph 27, and Staelen v Parliament, paragraph 47).

51 The Court considers that an assessment of the abstract and general meanings of the words ‘analysis’ and ‘summary’ is not a sufficient and appropriate basis on which to decide whether, in the specific context of the test in question, those words may cover not only writing a report from the GSC setting out the main issues of contention between the Council and the Parliament but also outlining possible ways of handling the key outstanding issues.

52 Accordingly, in order to consider whether the instructions in the second part of test A.1 (‘the instructions’) did in fact depart from the description of the test set out in the competition notice, it is necessary to take into consideration the wider context of the description of the tests and the other aspects of the competition notice.

53 In that regard, it should be noted that the competition notice describes test A.1 as a practical test dealing with a field of the activities of the European Union and that, according to the description of the duties to be carried out by the successful candidates in the competition, the latter are expected to carry out planning tasks, in particular to draft notes and opinions and to give advice to the members of the Council and to the Presidency.

54 The only written test which permitted an assessment of candidates’ ability to carry out those duties was test A.1, since test A.2 was intended to measure the level of candidates’ general knowledge and their drafting ability and test A.3 was designed to establish their knowledge of English or French.

55 The description of the responsibilities of successful candidates in the competition, in particular the reference to the requirement to advise members of the Council and the Presidency, and the fact that test A.1 was stated to be a practical test, provide sufficiently clear information as to the interpretation of the words ‘analysis’ and ‘summary’. That additional information defines the meaning of the description of test A.1 as consisting in providing an inventive or strategic input to the work of the GSC, in particular by drawing up proposals to reconcile the position of the Council and that of the Parliament in the context of a co-decision procedure.

56 Accordingly, it must be held that the applicant’s claim that the instructions for test A.1 departed from the framework indicated in the competition notice is unfounded.

57 In the light of the foregoing, the first plea in law must be rejected.

2. Second plea, alleging breach of the principle of equal treatment; third plea, alleging breach of the principle of sound administration; and fourth plea, alleging lack of transparency

58 The applicant maintains that the Council has acted in breach of the principle of equal treatment in four respects. First, he claims that there was a breach of that principle owing to the discrepancies between the different language versions of the instructions. Second, he contends that the errors in the working documents also gave rise to unequal treatment of the candidates. Third, the composition of the Selection Board also entailed a breach of that principle. Fourth, he claims that the there was a breach of the principle when the tests were assessed.

59 The applicant puts forward two separate pleas with regard to the errors in the working documents. He maintains that those errors gave rise to a breach of the principle of equal treatment (second part of the second plea) and a breach of the principle of sound administration (third plea). The Court therefore considers it appropriate to examine the second part of the second plea and the third plea together.

60 At the same time, the applicant contends that when assessing the tests the Selection Board failed to observe the principle of equal treatment (fourth part of the second plea) and that there was also a lack of transparency (fourth plea). The Court will therefore examine the fourth part of the second plea and the fourth plea together.

The discrepancies between the different language versions of the instructions

Arguments of the parties

61 The applicant claims that the instructions in the file distributed to candidates at the test were badly translated and gave rise to unequal treatment of the candidates.

62 The applicant observes, inter alia, that the meanings of the Dutch word ‘achtergrondnota’, of the Italian word ‘nota’ and of the English expression ‘briefing note’ are different. The expression ‘briefing note’ has a ‘proactive’ meaning, whereas the word ‘nota’ does not, as it corresponds to the English word ‘note’. The word ‘achtergrondnota’, according to the applicant, means literally ‘note relating to the context’ and corresponds to the English expression ‘background note’. Furthermore, the Italian instructions require candidates to set out the different ways and means (‘mezzi e modi’) of handling the outstanding issues, whereas the English version mentions only the ‘ways’.

63 The Council, on the other hand, asserts that all the language versions of the instructions are entirely consistent with each other.

Findings of the Court

64 As recalled in paragraph 41 above, it is settled case-law that the Selection Board has a wide discretion as regards the arrangements and detailed content of the tests provided for within the framework of a competition. The Court may not review the arrangements for the conduct of a test except to the extent necessary to ensure that the candidates were treated equally and that the choice made from among them was objective.

65 Next, it should be emphasised that an irregularity during the conduct of the tests for 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 (Case T-200/97 Jiménez v OHIM [1999] ECR-SC I-A-19 and II-73, paragraph 55; Case T-159/98 Torre and Others v Commission [2001] ECR-SC I-A-83 and II-395, paragraph 47; and Case T-193/00 Felix v Commission [2002] ECR-SC I-A-23 and II-101, paragraph 45).

66 In the present case, the extremely subtle differences between the various language versions of the instructions to which the applicant refers were not of such a kind as to give a different meaning to all of the instructions in one language by comparison with another. The meaning of the instructions is clear and unitary, in that the candidates were invited to summarise the relevant material from the file and to offer proposals to resolve the main outstanding issues. The slight imprecisions in the various translations cannot therefore be regarded as substantive errors capable of affecting the result of the competition.

67 Therefore, it must be held that the applicant has not adduced evidence of a discrepancy between the different language versions that might have entailed unequal treatment of the candidates or might call in question the objectivity of the choice made from among them.

Errors in the working documents

Arguments of the parties

68 The applicant claims that, first, the error in all the language versions of the working document and, second, those found in the Spanish version of that document were of such a kind as to distort the result of the competition.

69 The applicant claims that the note on the second reading by the Parliament, where it describes the Commission’s position on the amendments proposed by the Parliament, refers to amendment 52 twice, which constitutes an inconsistency.

70 In the applicant’s submission, that error entailed a breach of the principle of equal treatment, since some candidates did not notice the inconsistency in the text, whereas other candidates did. The candidates who were aware of the errors had to find a solution.

71 The applicant also recalls that when he spoke to the members of the Selection Board who were present at the test in order to inform them of the error, they replied that it was too late to inform the other candidates and advised him not to focus too much on amendment 52. The applicant asserts that those express instructions on the part of the members of the Selection Board put him in an entirely different position from that of the other candidates.

72 As regards the errors in the Spanish version, the applicant maintains that they were of such a kind as to cause a breach of the principle of equal treatment. He also observes that the attention of all the Spanish-language candidates was drawn to that error immediately it was discovered.

73 The applicant contends that the errors in the Spanish version of the working document were taken into account by the Selection Board when it appraised the test taken by the Spanish-language candidates. He observes that 4 of the 10 candidates admitted to the oral test were Spanish-speaking and regards this ‘extraordinar[il]y high percentage’ of Spanish-language candidates as ‘remarkable’.

74 The applicant also claims that the errors in the note on the second reading and also the reaction of the members of the Selection Board to his observations in respect of those errors during the course of test A.1 constitute a serious and manifest breach of the principle of sound administration.

75 The Council contests the applicant’s arguments and contends that the candidates were treated equally and that the choice made from among them by the Selection Board was objective.

Findings of the Court

76 The applicant claims that the errors in the note on the second reading by the Parliament were of such a kind as to distort the result of the competition, which in his submission constitutes a breach of the principle of equal treatment and also of the principle of sound administration.

77 It should be borne in mind, first of all, that, according to a consistent line of decisions, there is a breach of the principle of equal treatment, which is a general principle of Community law, only where comparable situations are treated differently or different situations are treated in the same way, unless such difference in treatment is objectively justified (Case 106/83 Sermide [1984] ECR 4029, paragraph 28, and Case C-174/89 Hoche [1990] ECR I-2681, paragraph 25; to the same effect, Case T-100/92 La Pietra v Commission [1994] ECR-SC I-A-83 and II-275, paragraph 50, and Case T-311/94 BPB de Eendracht v Commission [1998] ECR II-1129, paragraph 309).

78 Furthermore, under the principles of sound administration and equal treatment, the Community institutions have a duty to all candidates in a competition to ensure that the tests are conducted as smoothly and properly as possible. To that end, the administration is obliged to ensure that the competition is properly organised and, in particular, that the material distributed to candidates is carefully prepared (see, to that effect, Case T-102/98 Papadeas v Committee of the Regions [1999] ECR-SC I-A-211 and II-1091, paragraph 68; Torre and Others v Commission, paragraph 65 above, paragraph 46; and Felix v Commission, paragraph 65 above, paragraph 45).

79 However, it must be borne in mind that an irregularity during the conduct of the tests for 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 the irregularity did not affect the results of the tests (see the case-law cited at paragraph 65 above).

80 It is therefore necessary to consider whether, according to those criteria, first, the double reference to amendment 52 in all the language versions and, second, the errors in the Spanish version constitute a breach of the principle of equal treatment and of the principle of sound administration.

– The double reference to amendment 52

81 It should be noted at the outset that the mere presence of the error in question, that is, the double reference to amendment 52, cannot have placed the candidates in different situations, precisely because the error appeared in all the language versions.

82 As regards the applicant’s argument that he suffered discrimination by comparison with the candidates who did not notice that error, the applicant has not in any way demonstrated that the other candidates did not notice it.

83 Furthermore, the paragraph on the Commission’s position in which that error appeared is relatively unimportant, since the essential part of the work to be carried out by the candidates had to focus on the analysis of the discrepancies between the Council’s position and that of the Parliament. In addition, within that paragraph the impact of the double reference to the number 52 is minimal, since there are 50 amendments in all.

84 The Court considers, moreover, that the double reference to amendment 52 may be perceived as one of the difficulties of the test that candidates were required to overcome. The fact that the note on the second reading is a document actually dealt with by the Council underlines the fact that such inaccuracies may be encountered and must therefore be dealt with by GSC officials in the course of their work. It would therefore have been a simple matter for candidates to indicate in their briefing notes for the Chairman of Coreper that the working document contained that slight error, if they considered it worth mentioning.

85 In the light of those considerations, it must be concluded that the double reference to amendment 52 could not place candidates in different positions and that it cannot therefore be regarded as a substantive error capable of distorting the result of the competition.

86 Nor, in the light of the virtually negligible nature of the error in question, is it possible to accept the applicant’s argument that the instructions of the members of the Selection Board not to focus too much on that amendment placed him in a different situation from that of the other candidates in a way that might call in question the validity of the competition.

– The errors found only in the Spanish version of the documents

87 It should be borne in mind at the outset that the applicant, an Italian-language candidate, did not work on the basis of the Spanish documents, which means that the errors in that language version were not capable of placing him at a disadvantage by comparison with the other candidates. Consequently, any discrimination against him in the drafting of test A.1 is precluded.

88 As regards the applicant’s argument that the Selection Board boosted the Spanish-language candidates’ marks on account of the errors in the Spanish version of the documents, which would constitute discrimination against every other candidate, the applicant himself admits that the only evidence on which he relies in support of that argument, that is, the high number of Spanish-language candidates admitted to the oral test, is purely statistical in nature.

89 In that regard, in the absence of firm evidence, statistical indications alone are not sufficient to prove that the Selection Board applied a discriminatory criterion in the course of a competition (see, to that effect, Case 164/87 Simonella v Commission [1988] ECR 3807, paragraph 24).

90 The Court therefore finds that the applicant has not adduced evidence that he suffered discrimination owing to the errors in the Spanish version of the note on the second reading.

91 As regards the applicant’s argument that the presence of errors in the Spanish version constituted a breach of the principle of sound administration, the Court reiterates that only irregularities which are substantive or capable of distorting the result of the competition and in respect of which the appointing authority has not adduced proof of an effective remedy can constitute a breach of that principle.

92 The Court considers it appropriate to examine first of all whether the Council has adduced evidence that the errors present only in the Spanish version affected the results of the competition.

93 In that regard, the Council emphasises that those errors were discovered 1 hour and 20 minutes after the test had begun and that the members of the Selection Board then brought them to the notice of all the Spanish-language candidates. The candidates then still had 1 hour and 40 minutes to prepare the report and the information note.

94 That the impact of the error as thus corrected on the Spanish-language candidates’ performance in the test is negligible, or even non-existent, is also apparent from the fact that the note for the members of the Selection Board on the conduct of the written tests does not mention any complaint on the part of the Spanish-language candidates and that none of those candidates has brought an action for annulment of the competition.

95 Therefore, the Court considers that by proceeding as described above, the Council did in fact remedy the presence of errors in the documents distributed at the written test in question and has adduced evidence that the errors did not affect the results of the competition. In those circumstances, there is no further need to consider whether those errors were substantive and/or capable of affecting the results in a situation where there was no remedy.

96 In the light of the foregoing, it must be concluded that the presence of errors in the working documents did not offend against the principles of sound administration and equal treatment.

The composition of the Selection Board

Arguments of the parties

97 The applicant observes that none of the members of the Selection Board was proficient in Italian and that, in consequence, the Selection Board relied entirely on the two Italian examiners. He concludes that the Selection Board was not capable of retaining ultimate control over the proceedings, as it ought to have done, according to Article 3 of Annex III to the Staff Regulations. He maintains that those irregularities constitute a breach of the principle of non-discrimination, as it is likely that the Italian-language candidates were treated differently from the other candidates.

98 The applicant further maintains that one of the two Italian examiners, for whom the applicant had worked as personal secretary for two years, informed the applicant that he had recognised his test by his handwriting. That casts doubt on the Council’s assertion that the tests were marked on an anonymous basis.

99 The Council disputes the applicant’s arguments and submits that the methods of marking the tests were the same for all candidates and that the Selection Board retained the power to make the final assessment.

Findings of the Court

100 It should be borne in mind, as a preliminary point, that under the third paragraph of Article 3 of Annex III to the Staff Regulations, ‘[t]he Selection Board may, for certain tests, be assisted by one or more examiners serving in an advisory capacity’.

101 It is settled case-law, moreover, that Selection Boards may have recourse to the assistance of examiners whenever they consider that necessary. There is no irregularity if the methods of marking do not differ from one candidate to another and the Selection Board retains the power to make the final assessment (Gallone v Council, paragraph 41 above, paragraph 28; Case T-153/95 Kaps v Court of Justice [1996] ECR-SC I-A-233 and II-663, paragraph 26; and Case T-33/00 Martínez Páramo and Others v Commission [2003] ECR-SC I-A-105 and II-541, paragraph 58).

102 Furthermore, the assessments which a Selection Board in a competition makes when it evaluates the knowledge and abilities of candidates and also the decisions whereby the Selection Board determines that a candidate has failed a test constitute the expression of a value judgment. They fall within the wide discretion enjoyed by the Selection Board and are amenable to review by the Community judicature only where there has been a flagrant breach of the rules governing the Selection Board’s work (Papadeas v Committee of the Regions, paragraph 78 above, paragraph 54; Case T-95/98 Gogos v Commission [2000] ECR-SC I-A-51 and II-219, paragraph 36; and Felix v Commission, paragraph 65 above, paragraph 36).

103 In the present case, the two Italian examiners made the first assessment of the written tests of the Italian-language candidates on the basis of the assessment model used by all the members of the Selection Board and all the language examiners. The Council submitted a copy of that assessment model during the procedure before the Court. Then, the first assessments by the Italian examiners were checked by two members of the Selection Board. The Council explained that, although the Selection Board had no member whose mother tongue was Italian, a number of the members of the Selection Board were sufficiently competent in Italian to carry out such a check.

104 As regards the final assessment, the two members of the Selection Board who checked the first assessment by the Italian examiners presented the assessment made by those examiners to all the other members of the Selection Board. The Italian examiners were present at the meeting of the Selection Board, in an advisory capacity. The Selection Board then made a final comparative assessment of all the candidates at the same time.

105 The Court considers that in following that procedure, and in particular by using a common assessment model for all languages, the Council fully complied with the requirement that the methods of marking must be the same for all candidates. Also, regard being had to the fact that the final comparative assessment of all the tests took place after the assessment by the language examiners, which, moreover, had already been checked by two other members of the Selection Board, the applicant cannot validly claim that the Selection Board lost its power of final assessment.

106 In the light of those circumstances, it must be held that the applicant’s claim that the fact that the Selection Board had no Italian member gave rise to irregularities in the conduct of competition Council/A/270 is wholly unfounded.

107 As regards the applicant’s claim that one of the Italian language examiners recognised his handwriting, it must be pointed out that the applicant has not claimed that the fact that his handwriting was recognised influenced the assessment of his test. That circumstance cannot therefore be regarded as an irregularity that affected the results of the competition.

The absence of non-discriminatory criteria and of transparency in the assessment of the written tests

Arguments of the parties

108 The applicant states in his application that it may be inferred from the letter of 30 October 2003 from the Chairman of the Selection Board that no evaluation was made as regards the applicant’s test. He reiterates that claim in the reply, where he submits that the ‘Council leaves in the middle whether or not it disposes of a marked version of [his] examination paper’. He draws the conclusion that in acting in that way, the Council implicitly confirms that there actually is no marked version of his A.1 test.

109 The applicant also maintains that the Council confirms in the defence that no evaluation sheet was used in competition Council/A/270, which gives rise to a lack of transparency. He also infers that the Selection Board and the examiners assessed the candidates’ tests without putting any of their comments, remarks and marks awarded in writing and without any norm or standard applying to all candidates.

110 The applicant maintains that it follows from the Community case-law that the Selection Board must be in a position to compare all the candidates and that the principle of equal treatment must be respected meticulously. Owing to the excessive weight given by the Selection Board to the assessment and the opinion of the examiners, the absence of an evaluation sheet means that the Selection Board did not exercise effective control of the applicant’s test. In the applicant’s submission, that omission also affects the Court’s exercise of its review of the test.

111 The applicant further maintains that the Council’s supposed policy of releasing only unmarked versions and evaluation sheets to participants in a competition does not correspond to the position which the Council adopted in Case 2097/2002/GG before the European Ombudsman and entails a lack of transparency.

112 The applicant observes that the European Ombudsman addressed a written recommendation to the Council, in which he expressed the view that the Council’s refusal to grant the complainant access to her marked test paper was an instance of maladministration. The applicant submits that the European Ombudsman considered that the rule laid down in Article 6 of Annex III to the Staff Regulations, which provides that ‘[t]he proceedings of the Selection Board shall be secret’, does not necessarily mean that the candidate must be denied access to his marked examination paper. He emphasises, in particular, that the Council accepted that recommendation in its entirety.

113 The applicant also claims that the Council noted, with regard to its acceptance of the recommendation of the European Ombudsman in Case 2097/2002/GG, that, ‘in consideration of the Staff Regulations and the very recent judgment of the Court of First Instance in Case T-72/01, the communication of these documents could not be considered to infringe the principle of secrecy inherent in the proceedings of the Selection Board’.

114 The Council disputes the applicant’s arguments and contends that the Selection Board observed the principle of equal treatment and that there was no lack of transparency.

Findings of the Court

115 The applicant criticises the Council because no assessment of his test was made and because the Selection Board had no evaluation sheet, which made it impossible to apply non-discriminatory criteria to the tests and entailed a lack of transparency. He maintains that the Council’s refusal to send him a marked copy of his test also gave rise to a lack of transparency.

116 In answer to the questions put by the Court, the Council explained that there is not a single marked version of the applicant’s test, since one of the Italian examiners placed his comments directly on the test paper while the other recorded his observations on a separate sheet. Following a request by the Court, the Council lodged those documents at the Court Registry.

117 As the Council thus demonstrated that the applicant’s test was marked, his claim that it was not marked must be rejected as unfounded.

118 As regards the argument which the applicant bases on the absence of an evaluation sheet, it should be pointed out that a Selection Board for a competition is under no obligation to draw up an evaluation sheet for the marking of the written tests. Furthermore, the Council has demonstrated that the Selection Board had used a standard model for the assessment of all the tests.

119 In those circumstances, it must be concluded that the applicant has not proved his claim that the Selection Board and the examiners marked the tests without any norm or criterion applying to all candidates. Consequently, he has not demonstrated any breach of the rules governing the Selection Board’s work.

120 As regards the applicant’s complaint that he was not sent the marked version of his test, the Court considers that that assertion must be examined from the aspect of the rules on access to documents, whereby the concept of transparency is reflected in Community law.

121 Article 255(1) EC, which provides that ‘[a]ny citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right of access to European Parliament, Council and Commission documents, subject to the principles and the conditions to be defined in accordance with paragraphs 2 and 3’, and Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43), which was adopted on the basis of Article 255(2) EC in order to determine the general principles governing the exercise of that right of access to documents, constitute general rules which apply to all citizens of the European Union. Those texts themselves place limits on the right of access to the documents of the institutions concerned, in particular for reasons of public interest (Case T-233/02 Alexandratos and Panagiotou v Council [2003] ECR-SC I-A-201 and II-989, paragraph 36).

122 Like any general rule, the right of access to Council documents provided for in the provisions cited above may be limited or excluded – according to the principle that a special rule derogates from the general rule (lex specialis derogat legi generali) – where there are special rules governing specific matters.

123 In that regard, it should be observed that Article 6 of Annex III to the Staff Regulations, adopted on the basis of Article 283 EC, and which specifically lays down the procedure for competitions, provides that ‘[t]he proceedings of the Selection Board shall be secret’. As the Court of Justice has already had the occasion to point out, that secrecy was introduced with a view to guaranteeing the independence of Selection Boards and the objectivity of their proceedings, by protecting them from all external interference and pressures whether these come from the Community administration itself or the candidates concerned or third parties. Consequently, observance of that secrecy runs counter to divulging the attitudes adopted by individual members of Selection Boards and also to revealing all the factors relating to individual or comparative assessment of candidates (Case 89/79 Bonu v Council [1980] ECR 553, paragraph 5; Parliament v Innamorati, paragraph 18 above, paragraph 24; and Martínez Páramo and Others v Commission, paragraph 101 above, paragraph 44).

124 It follows that the applicant cannot validly rely on the concept of transparency in order to call in question the applicability of Article 6 of Annex III to the Staff Regulations (Case T-53/00 Angioli v Commission [2003] ECR-SC I-A-13 and II‑73, paragraph 84).

125 That finding cannot be called in question by the fact that in Case 2097/2002/GG the Council accepted the recommendation of the European Ombudsman and sent a marked copy to the complainant.

126 It must be borne in mind that in accepting the recommendation of the European Ombudsman in Case 2097/2002/GG the Council did not in any way undertake to disclose marked tests in future on a systematic basis, as the scope of that decision of the Council was limited to that particular case. Likewise, when the Council stated, in reply to the recommendation of the European Ombudsman, that ‘in consideration of the Staff Regulations and the very recent judgment of the Court of First Instance in Case T-72/01, the communication of these documents could not be considered to infringe the principle of secrecy inherent in the proceedings of the Selection Board’, it was expressing its opinion that that judgment (the judgment of the Court of First Instance of 25 June 2003 in Case T-72/01 Pyres v Commission [2003] ECR-SC I-A-169 and II-861) allowed the Council to provide the candidate with a marked copy, which does not in any way mean that the Council recognised that it was under an obligation to do so in similar cases.

127 In the light of the foregoing, it must be held that the applicant has not demonstrated either a breach of the principle of equal treatment in the assessment of the tests or a lack of transparency.

128 In those circumstances, the applicant’s second, third and fourth pleas in law must be rejected.

Costs

129 Under Article 87(2) of the Rules of Procedure of the Court of First Instance, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. However, under Article 88 of the Rules of Procedure, in proceedings between the Communities and their servants the institutions are to bear their own costs. In the present case, the parties shall therefore bear their own costs.

On those grounds,

THE COURT OF FIRST INSTANCE (Third Chamber)

hereby:

1. Dismisses the action;

2. Orders the parties to bear their own costs.

















Jaeger Tiili Czúcz

Delivered in open court in Luxembourg on 14 July 2005.













H. Jung M. Jaeger