JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Third Chamber)

14 May 2014

Christodoulos Alexandrou

v

European Commission

‛Civil service — Open competition EPSO/AD/231/12 — Access to documents — Refusal of the confirmatory request for access to the multiple-choice questions put in the admission tests’

Application:

under Article 270 TFEU, applicable to the EAEC Treaty by virtue of Article 106a thereof, in which Mr Alexandrou essentially seeks annulment of the European Commission’s decision of 25 September 2012 rejecting his confirmatory request for access to documents and, in so far as is necessary, of the decision of 20 July 2012 by which the European Personnel Selection Office (EPSO) refused to communicate seven of the multiple-choice questions put in the admission tests for open competition EPSO/AD/231/12 (‘the competition’).

Held:

The action is dismissed. Mr Alexandrou is to bear his own costs and is ordered to pay those incurred by the European Commission.

Summary

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 — Acquired right of candidates to obtain a copy of the test — None

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 — Communication of the final eliminatory mark — Sufficient statement of reasons unless there are special circumstances

Actions brought by officials — Jurisdiction of the Civil Service Tribunal — Action for annulment concerning decisions adopted on the basis of Regulation No 1049/2001 — Not included — Requests for access to documents in a competition procedure — Included

The Civil Service Tribunal has jurisdiction to review the legality of measures adopted by the European Personnel Selection Office on the basis of the provisions of a competition notice, but not to hear and determine an action for annulment against a decision adopted by an institution on the basis of Regulation No 1049/2001. The respective jurisdictions of the Civil Service Tribunal and the General Court of the European Union, particularly as regards access to documents, must be based on objective criteria and may not depend on the parties’ characterisation of the measures and, in particular, on the applicant’s willingness to initiate an administrative procedure prior to bringing an action, or on the institution’s willingness to deal with a request for access to a document under Regulation No 1049/2001 rather than under the Staff Regulations. Consequently, the criterion for determining which court has jurisdiction is the legal basis for the applicant’s right to request access to documents. An applicant’s request for disclosure of the questions from his admission tests relates to the application of Article 6 of Annex III to the Staff Regulations and of point 6.2 of the guide to open competitions, and manifestly concerns a dispute seeking to challenge the applicant’s exclusion from the competition. Consequently, since the subject-matter of the action is an institution’s decision to refuse the applicant access to the questions at issue, it follows that the applicant is seeking annulment of an act adversely affecting him under Article 90(2) and Article 91 of the Staff Regulations, rather than a decision as provided for in Regulation No 1049/2001. (see paras 17, 19-27) See: 18 September 2012, F‑96/09 Cuallado Martorell v Commission, para. 60; 2 December 2013, F‑49/12 Pachtitis v Commission, para. 22 13 December 2012, T‑197/11 P and T‑198/11 P Commission v Strack, para. 54

The requirement that a decision adversely affecting a person, such as a decision taken by a selection board in a competition about a candidate, should state the reasons on which it is based is intended to provide the person concerned with sufficient details to allow him to ascertain whether or not the decision is well founded and make it possible for the decision to be the subject of judicial review. 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. The fact that the marks obtained by a candidate in the other tests were much higher than those obtained in the verbal reasoning test does not constitute a special circumstance where, in the absence of any evidence in that regard, it is merely a claim which fails to demonstrate that the contested questions were vitiated by any error. (see paras 34, 37, 39) See: 23 January 2003, T‑53/00 Angioli v Commission, para. 67; 27 March 2003, T‑33/00 Martínez Páramo and Others v Commission, para. 43 11 September 2008, F‑127/07 Coto Moreno v Commission, para. 32; 29 June 2011, F‑7/07 Angioi v Commission, paras 136 and 138

As regards the scope of the obligation to state the reasons for the results of competitions, an applicant who failed computerised admission tests cannot claim that the institution infringed the principles of protection of legitimate expectations, respect for acquired rights or equal treatment if he fails to obtain a copy of the test, relying on a previous practice under which he obtained a copy of his written tests. Computerised admission tests form part of a system of tests conducted using a database from which the European Personnel Selection Office randomly draws questions for the verbal and numerical reasoning tests. Consequently, the fact that the questions put to the candidates were selected at random by computer reflects a concern to ensure equality between candidates, while also enabling the tests to be held over several days in the interest of the candidates themselves. (see paras 47-48) See: 14 July 2005, T‑371/03 Le Voci v Council, para. 18 15 April 2010, F‑2/07 Matos Martins v Commission, para. 178