JUDGMENT OF THE CIVIL SERVICE TRIBUNAL (Second Chamber)

8 July 2010

Case F-17/08

Andrzej Wybranowski

v

European Commission

(Civil service — Open competition — Non-inclusion on the reserve list — Evaluation of the oral test — Notice of Competition EPSO/AD/60/06 — Statement of reasons — Powers of the selection board — Assessment of candidates)

Application: brought under Articles 236 EC and 152 EA, in which Mr Wybranowski essentially seeks annulment of the decision of 20 December 2007 not to include him on the reserve list for open competition EPSO/AD/60/06.

Held: The action is dismissed. The applicant is ordered to pay the costs.

Summary

1. Officials — Competitions — Competition based on qualifications and tests — Application of marking criteria and their ranking

(Staff Regulations, Annex III)

2. Officials — Recruitment — Competitions — Competition based on qualifications and tests — Evaluation of candidates’ abilities

(Staff Regulations, Annex III)

3. Officials — Competitions — Selection board — Rejection of candidature — Obligation to state reasons — Scope

(Staff Regulations, Arts 90 and 91; Annex III, Art. 6)

1. The selection board in a competition enjoys a wide discretion in conducting its proceedings. Consequently, where the notice of competition does not lay down criteria for marking, it may fix such criteria or, where the notice lays down such criteria but does not state their respective ranking, it may determine that ranking.

(see para. 32)

See:

34/80 Authié v Commission [1981] ECR 665, para. 14

T-115/89 González Holguera v Parliament [1990] ECR II-831, publication by extracts, para. 53; T-291/94 Pimley-Smith v Commission [1995] ECR-SC I-A-209 and II-637, para. 48

F-127/07 Coto Moreno v Commission [2008] ECR-SC I-A-1-295 and II-A-1-1563, para. 47

2. When it comes to assessing subjective qualities such as the ‘ability’, ‘motivation’ and ‘capability’ of candidates, it is open to the selection board, in view of its broad discretion, to take into consideration factors specific to each candidate, such as professional experience or particular knowledge of languages.

The factual situation of candidates whose professional experience and knowledge of languages go beyond those required by the notice of competition is not comparable to that of the other candidates, and, in so far as the higher mark obtained by the former is the result not of the selection board applying an additional criterion not mentioned in the competition notice, but of the taking into account of the candidates’ capability to satisfy the criteria set out there, that mark is not merely consistent with, but also required by, the principle of equal treatment. The taking into account of experience and knowledge of languages other than those required by the notice of competition is thus not discriminatory.

(see paras 54-56)

See:

40/86 Kolivas v Commission [1987] ECR 2643, para. 11

T-267/03 Roccato v Commission [2005] ECR-SC I-A-1 and II-1, para. 41; T-336/02 Christensen v Commission [2005] ECR-SC I-A-75 and II-341, para. 25

3. The obligation to state the reasons on which a decision adversely affecting an official is based is intended, on the one hand, to provide the person concerned with sufficient information to allow him to ascertain whether or not the decision is well founded and to enable him to decide whether to bring an action to challenge its legality, and, on the other, to enable the Union judicature to conduct its review.

As far as concerns decisions taken by a selection board in a competition, the obligation to state reasons must be reconciled with observance of the secrecy surrounding the proceedings of selection boards. That principle, provided for in Article 6 of Annex III to the Staff Regulations, guarantees 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 institutions themselves or the candidates concerned or third parties.

The decision of a selection board not to admit a candidate to the tests is the result of applying to his candidature objective evaluation criteria set out in the notice of competition or defined by the selection board itself. In respect of such decisions, although the selection board may, where there is a large number of candidates in a competition, initially confine itself to informing the candidates only of the criteria and the result of the selection, it must subsequently provide an individual explanation to those candidates who expressly ask for it, stating the reasons why they have not been admitted to the competition.

A decision by which a selection board states that a candidate has failed in a test is, however, the expression of the comparative assessments undertaken by the board. Having regard to the secrecy which must surround the proceedings of a selection board and in view of the wide discretion it enjoys to evaluate the results of competition tests, it cannot be required, in giving reasons for a candidate’s failure in a test, to specify which of the candidate’s answers were judged inadequate or to explain why those answers were considered inadequate. Consequently, communication of the marks obtained in the various tests constitutes, in principle, an adequate statement of the reasons on which the board’s decisions were based.

However, the secrecy surrounding the proceedings of a selection board and the wide discretion it enjoys do not mean that candidates in a competition who so request may not, where appropriate, be informed of the marks obtained for each of the evaluation criteria set out in the competition notice for the oral test.

Where requested by a candidate, the information needed to satisfy the obligation to state reasons must, in principle, be communicated before the expiry of the period laid down in Articles 90 and 91 of the Staff Regulations. However, where the candidate has been provided with the initial elements of a statement of reasons before filing his appeal, the selection board may supplement the information initially provided during the proceedings and thus deprive of its purpose a ground of appeal alleging the absence of a statement of reasons.

(see paras 94-95, 97-100)

See:

195/80 Michel v Parliament [1981] ECR 2861, para. 27; C-254/95 P Parliament v Innamorati [1996] ECR I-3423, paras 24, 30 and 31; C-150/03 P Hectors v Parliament [2004] ECR I-8691, para. 39

González Holguera v Parliament, para. 43; T-55/91 Fascilla v Parliament [1992] ECR II-1757, para. 35; T-71/96 Berlingieri Vinzek v Commission [1997] ECR-SC I-A-339 and II-921, para. 79; T-53/00 Angioli v Commission [2003] ECR-SC I-A-13 and II-73, para. 82; T-72/01 Pyres v Commission [2003] ECR-SC I-A-169 and II-861, para. 70; T-233/02 Alexandratos and Panagiotou v Council [2003] ECR-SC I-A-201 and II-989, paras 30 and 31

F-73/06 Van Neyghem v Commission [2007] ECR-SC I-A-1-441 and II-A-1-2515, para. 78