JUDGMENT OF THE COURT OF FIRST INSTANCE (Second Chamber)

2 May 2001

Joined Cases T-167/99 and T-174/99

Carla Giulietti and Others

v

Commission of the European Communities

‛Officials — Competition — Action for annulment — Pre-selection procedure — Conduct of the tests — Principle of equal treatment — Obligation to state grounds — Principle of the protection of legitimate expectations — Principle of sound administration — Consequences for the subsequent conduct of the competition’

Full text in French II-441

Application for:

annulment, first, of the decision taken by the selection board in competition COM/A/10/98 excluding the applicants from the tests subsequent to the pre-selection tests and, second, of all the subsequent steps taken and acts done in connection with that competition.

Held:

The decision of the selection board in competition COM/A/10/98 is annulled in so far as it excludes Ms Caprile and Mr Radelet from the subsequent tests in competition COM/A/10/98. The claims of Ms Caprile and Mr Radelet that all the acts subsequent to that decision, adopted in connection with competition COM/A/10/98, should be annulled are dismissed. The actions brought by Ms Giulietti, Mr Dell'Olio and Mr Fuhrmann are dismissed. In Case T-174/99, the Commission is ordered to pay half of the applicants' costs and to bear the entirety of its own costs. In Case T-167/99, each party is ordered to bear its own costs, including those relating to proceedings on the application for interim measures.

Summary

Where, in an open competition organised for the purpose of constituting a reserve for future recruitment, the selection board's decision excluding a candidate from the tests subsequent to the pre-selection tests is annulled, the rights of the person concerned who has failed that test will be adequately protected if the selection board and the appointing authority reconsider their decisions and seek a just solution in his case, without its being necessary to call in question the entire results of the competition or to annul the appointments made as a result thereof. In such a situation, it is necessary to reconcile the interests of the candidates placed at a disadvantage by an irregularity committed in the course of the competition and those of the other candidates. In that regard, the Court is required to take account, not only of the need to restore the rights of the candidates who have been adversely affected, but also of the legitimate expectations of the successful candidates. (see paras 56-57) See: C-242/90 P Commission v Albani and Others [1993] ECR I-3839, paras 13, 14, 16 and 17

The selection board in a competition has a wide discretion with regard to the procedures for and detailed content of the tests held in connection with the competition. The Community judicature may therefore review the procedures for the tests only in so far as is necessary to ensure equal treatment of the candidates and objectivity in the choice made between them. That wide discretion must, subject to the same limits, be afforded to the selection board in a competition where it is confronted with irregularities or errors which have occurred in the course of an open competition involving a large number of candidates and which cannot, under the principles of proportionality and sound administration, be rectified by a repetition of the tests in the competition. By virtue of those same principles, the selection board in a competition also has a wide discretion with regard to the question whether it is confronted with irregularities or errors which have occurred in the course of an open competition involving a large number of candidates, in particular as regards the formulation of the multiple-choice questions. Consequently, the Community judicature must also confine itself to a restricted review as regards the intelligibility of those questions. (see paras 58, 61) See: T-153/95 Kaps v Court of Justice [1996] ECRSC I-A-233 and II-663, para. 37

A candidate for a competition cannot rely to any purpose, in support of his claim that the selection board's decision should be annulled, upon conditions of admission to another competition organised by the same institution according to different procedures and in pursuit of a different aim. The same must apply, more generally, to the method of organising a competition aimed at recruiting candidates possessing skills in different fields. That is a fortiori the case where different competitions were organised simultaneously and the applicants therefore had the opportunity to choose, from among all the available competitions, the one in which they wished to take part. (see para. 75) See: 143/82 Lipman v Commission [1983] ECR 1301, para. 10