JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Third Chamber)

28 March 2012

Letizia Marsili

v

European Commission

‛Civil service — Open competition — Non-inclusion on the reserve list — Evaluation of the oral test — Composition of the selection board’

Application:

brought under Article 270 TFEU, applicable to the EAEC Treaty by virtue of Article 106a thereof, in which Ms Marsili seeks, principally, annulment of the decision of the selection board in open competition EPSO/AST/51/08 not to include her on the reserve list.

Held:

The action is dismissed. The applicant is to pay all the costs.

Summary

The selection board has a wide discretion with regard to the organisation and detailed content of the tests in 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. With regard to criteria which do not relate to specific knowledge which the candidate must possess, but to qualities such as ‘motivation’, ‘adaptability’ or ‘creativity’ which the candidate must demonstrate, those qualities may be assessed in the light of the candidate’s conduct and statements at the oral test, without any question being asked directly or explicitly concerning the qualities at issue. Consequently, the mere absence of any question directly and obviously relating to the demonstration of those qualities, if proved, would not show that the selection board was not in a position to make an assessment of them. (see paras 20, 23-24) See: 7 February 2002, T-193/00 Felix v Commission, para. 35 5 May 2010, F-48/09 Schopphoven v Commission, para. 31

A selection board’s assessment of candidates’ knowledge and ability is not open to review by the courts. Furthermore, in a competition the candidates’ performance is marked on a comparative scale. Thus, even if it can be demonstrated that a candidate actually possesses the qualities required by the competition notice, that does not establish a manifest error invalidating the selection board’s assessment. The selection board in a competition has a wide discretion when marking the tests, and its deliberations are open to review by the courts only where there has been a clear breach of the rules governing the selection board’s proceedings. (see paras 39, 42, 52) See: 9 October 1974, 112/73, 144/73 and 145/73 Campogrande and Others v Commission, para. 53; 16 June 1987, 40/86 Kolivas v Commission, para. 11; 4 July 1996, C-254/95 P Parliament v Innamorati, para. 32 11 September 2008, F-127/07 Coto Moreno v Commission, para. 33 and the case-law cited therein

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. 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 pursuant to Article 6 of Annex III to the Staff Regulations. 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 administration itself, the candidates concerned or third parties. Observance of this secrecy therefore precludes both disclosure of the attitudes adopted by individual members of selection boards and disclosure of any factors relating to individual assessments of candidates. When the suitability of candidates is considered, the proceedings of the selection board are above all of a comparative nature and, accordingly, are covered by the secrecy surrounding such proceedings. In view of the need to reconcile the obligation to state the reasons on which a decision adversely affecting a person is based with observance of the secrecy surrounding the proceedings of the selection board, communication of the marks obtained in the various tests constitutes an adequate statement of the reasons on which the selection board’s decisions are based. Such a statement of reasons is not prejudicial to the rights of the unsuccessful candidates and enables the Court to carry out a judicial review appropriate for that type of dispute. (see paras 47-52) See: Campogrande and Others v Commission, para. 53; 26 November 1981, 195/80 Michel v Parliament, para. 22; Parliament v Innamorati, paras 23, 24, 28, 31 and 32; Kolivas v Commission, para. 11