JUDGMENT OF THE COURT OF FIRST INSTANCE (Fourth Chamber)

17 December 1997

Case T-217/95

Lucia Passera

v

Commission of the European Communities

‛(Officials — Internal competition for transfer from category C to category B — Decision of the selection board failing candidates at the oral test — Scope of the obligation to state reasons — Assessment by the Selection Board)’

Full text in French II-1109

Application for:

first, annulment of the decision of the Selection Board in internal competition COM/B/9/93 not to enter the applicant's name on the list of suitable candidates and, second, annulment of the notice of that competition.

Decision:

Application dismissed

Abstract of the Judgment

Following discussion with various trade union and professional organisations within the Joint Committee concerning the holding of and arrangements for a new competition for transfer from category C to category B and in particular the number of posts to be filled by that means, the appointing authority agreed to publish a notice of internal competition based on tests to fill a maximum of 60 posts.

In response to that notice, the applicant, an official of the Commission in category C, applied to take part in internal competition COM/B/9/93, the purpose of which was to establish a list of suitable candidates for posts as administrative assistants in grades 5 and 4 of category B to carry out, executive duties, under supervision, comprising routine office work in the capacity of administrative assistant, secretarial assistant or technical assistant.

Having achieved a satisfactory result in the preselection test and the essay paper, the applicant was admitted to the oral test which took place in November 1994.

By letter of 18 November 1994 the applicant was informed that, as she had not obtained the minimum mark in the oral test, her name had not been entered on the list of suitable candidates.

On 21 December 1994, the Chairman of the Central Staff Committee of the Commission (CSC) sent the following note to the chairman and members of the Selection Board:

‘At its meeting of 16 December 1994 die [CSC] heard the report on the progress of the work of the above competition Selection Board and was informed inter alia that the number of successful candidates in that competition [was] very much lower than the number of posts made available for this transfer from one category to another.

Since, according to the wording of the notice of competition, the oral test was intended primarily to examine in greater depth questions arising from the specific maners covered in the written part, the [CSC] felt it appropriate to ask the Selection Board to reconsider the general level of marks awarded in the oral test which would allow a better balance to be achieved between the written and oral tests respectively.

The office of the CSC is at your disposal for any further information concerning its position.’

On 17 February 1995 the applicant lodged a complaint against the decision not to enter her name on the list of suitable candidates and against the notice of competition itself.

By decision of 25 July 1995, following expiry of the period allowed for a reply, the Commission expressly rejected that complaint. That decision was notified to the applicant on 16 August 1995 and to her counsel, who assisted her during the pre-litigation procedure, on 15 September 1995. The applicant confirmed receipt of the express rejection of her complaint on 13 October 1995.

Substance

The application for annulment of the decision of the Selection Board of internal competition COM/B/9/93 not to enter the applicant's name on the list of suitable candidates

The first plea, alleging breach of the obligation to state reasons

The obligation to state the reasons for a decision contained in Article 25 of the Staff Regulations applicable to officials of the European Communities (Staff Regulations) must be assessed in the light of the circumstances of the case, particularly the content of the measure, the nature of the reasons given and the interest of the addressee in being given an explanation (paragraph 29).

See: T-80/92 Turnerv Commission [1993] ECR II-1465, para. 62

According to the notice of competition, to be included on the list of suitable candidates, a candidate needed to obtain at least half of the marks available in each of the tests of the competition. Again according to that notice, the oral test was to consist of an interview between the Selection Board and the candidates, during which the Selection Board was to assess, in the light of the information obtained from the written tests, the candidates' oral communication skills and suitability for category B duties (paragraph 30).

By means of the contested decision the applicant was notified that she had not obtained the requisite 50% of the marks in the oral test and she was informed of her exact mark (paragraph 31).

Whilst the reasons thus stated are not exhaustive in that they reveal neither the assessment of the Selection Board nor any more detailed criteria for awarding marks than those given in the notice of competition, those matters are covered by the confidentiality of the deliberations of a Selection Board, and the obligation to state reasons must be reconciled with observance of the secrecy of the proceedings of a Selection Board pursuant to Article 6 of Annex III to the Staff Regulations. Therefore, communication of the marks obtained in the various tests constitutes an adequate statement of the reasons on which the board's decisions are based. Such a statement of reasons is not prejudicial to the candidates' rights. It enables them to know the value set on their performance and to ascertain, if such is the case, that they have not in fact obtained the number of marks required by the notice of competition in order to be admitted to certain tests or to all the tests (paragraphs 32 to 34).

See: C-254/95 P Parliament v Innamorati [1996] ECR I-3423. paras 24, 31 and 32

The plea alleging infringment of the notice of competition

The essential purpose of a notice of competition is to give those interested the most accurate information possible about the conditions of eligibility for the post in question so as to enable them to judge whether they should apply for it. The Selection Board, which has considerable discretion as regards the arrangements for and the detailed content of the tests provided for within the framework of a competition, is none the less bound by the wording of that notice and therefore if the detailed content of a test is not confined within the limits laid down in the notice of competition it is for the Court of First Instance to censure it (paragraphs 44 and 45).

See: T-132/89 Gallone v Council [1990] ECR II-549, para. 27

Although the notice of competition provides that the oral test is to consist of an interview between the Selection Board and the candidates, for the purpose of assessing, in the light of the information obtained from the written tests, the candidates' oral communication skills and suitability for category B duties, it does not stipulate that the oral test and the written test must cover matters of the same type (paragraph 46).

In view of the way the oral test is described in the notice, it is to be considered, rather, as a complement to the written tests, allowing the Selection Board to assess whether the candidate's personality is suitable for a category B post (paragraph 47).

Accordingly, the questions described by the applicant do not suggest that there were any subjects covered which were inappropriate for an interview for the purpose of assessing the oral communication skills of the candidates and their ability to perform category B duties (paragraph 48).

The third plea, alleging failure to take account of the purpose of the tests

The questions described by the applicant do not suggest that the Selection Board exceeded the bounds set by the notice of competition (paragraph 53).

The fifth plea, alleging misuse of powers and breach of the principle of the independence of the Selection Board

The applicant has furnished no evidence capable of proving that the contested decision was taken to achieve objectives other than those alleged or that the administration used its powers for purposes other than those for which they were conferred on it (paragraph 64).

See: T-544/93 and T-566/93 Abello and Others v Commission [1995] ECR-SC II-815, para. 86

The sixth plea, alleging a manifest error of assessment by the Selection Board as regards the applicant's ability to perform category B duties

A competition Selection Board has a wide discretion and the merits of its value judgments are subject to review by the Community judicature only where there is a breach of the rules governing the Selection Board's work (paragraph 68).

See: T-17/90, T-28/91 and T-17/92 Cámara Alloisio and Others v Commission [1993] ECR II-841, para. 90; T-6/93 Pérez Jimenez v Commission [1994] ECR-SC II-497, para. 42; T-46/93 Michaël-Chiouv Commission [1994] ECR-SC II-929, para. 48

It is therefore not the role of the Court of First Instance to review the assessment made by the Selection Board of the ability of the applicant to perform category B duties (paragraph 69).

In any event, whatever the value placed on the applicant's merits, it cannot suffice to establish a manifest error in the assessment of the applicant's performance in the oral test, particularly as this was a competition based on tests and not on qualifications (paragraph 70).

See: T-125/95 Belhanbelv Commission [1996] ECR-SC II-115. para. 33

The application for annulment of Notice of Internal Competition COM/B/9/93

The plea alleging breach of Article l(l)(e) of Annex III to the Staff Regulations

The essential puipose of a notice of competition is to give those concerned the most accurate information possible about the conditions of eligibility for the post in question so as to enable them to judge whether they should apply for it (paragraph 76).

See: Gallone v Council, cited above, para. 27

However, that requirement does not imply that candidates must be informed of the detailed content of each test. That is all the more true as regards the exact content of the oral test, as there is an element of uncertainty inherent in this, by its very nature. This test gives the Selection Board an opportunity to assess, in an unstructured way, the ability of the candidates to perform the duties in question, in order to supplement its assessment of the qualities of which the written tests provide evidence. The content of the test may vary in accordance with the experience and personality of the candidates provided that the level of difficulty remains the same (paragraph 77).

See: Gallone v Council, cited above, para. 36

Moreover, there is no doubt that in this case the notice of competition achieved its essential purpose, which is to enable those concerned to assess whether they should apply (paragraph 78).

The ‘amplifying’ plea, alleging breach by the Selection Board of the rules governing its work

Article 44(1 )(c) and Article 48(2) of the Rules of Procedure read in combination provide that an application must state the subject-matter of the proceedings and a summary of the pleas in law on which the application is based and that no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or fact which come to light in the course of the procedure. However, a submission which may be regarded as amplifying a submission made previously, directly or by implication, in the original application, and which is closely connected with that previous submission, must be considered admissible (paragraph 87).

See: 101/81 Amylum v Council [1982] ECR 3107, para. 25; 306/81 Verros v Parliament [1983] ECR 1755, para. 9; T-37/89 Hanning v Parliament [1990] ECR II-463, para. 38; T-207/95 ¡barra Gil v Commission [1997] ECR-SC II-31, para. 51

In this case the plea is not based on matters of law or fact which came to light in the course of the procedure. The mere fact that the Commission did not supply information on any criteria used by the Selection Board to assess the replies of the candidates in the oral test does not constitute a new fact (paragraph 88).

Moreover, no plea in the application is closely linked with the allegation by the applicant that the Selection Board did not adopt criteria for awarding marks in advance. That allegation is no more closely linked with the plea against the notice of competition. That plea confines itself to criticising the way the notice of competition was drafted and is therefore directed at the appointing authority rather than the Selection Board (paragraph 89).

The so-called ‘amplifying’ plea was not put forward either directly or implicitly in the application and is not closely linked to the pleas in it, with the result that it does not amplify those pleas (paragraph 90).

Accordingly, this plea must be considered to be a new plea within the meaning of Article 48(2) of the Rules of Procedure and, as it is not based on matters of law or fact which came to light in the course of the procedure, it must be declared inadmissible (paragraph 91).

Operative part:

The application is dismissed.