JUDGMENT OF THE GENERAL COURT (Appeal Chamber)

9 June 2015

Victor Navarro

v

European Commission

‛Appeal — Civil service — Members of the contract staff — Recruitment — Call for expressions of interest — Minimum qualifications required — Refusal to offer employment — Infringement of Article 116(2) of the Rules of Procedure of the Civil Service Tribunal — Error of law — Distortion of the facts’

Appeal:

against the judgment of the European Union Civil Service Tribunal (Third Chamber) of 21 May 2014 in Navarro v Commission (F-46/13, ECR-SC, EU:F:2014:104) and seeking to have that judgment set aside.

Held:

The appeal is dismissed. Mr Victor Navarro is ordered to pay the costs.

Summary

Judicial proceedings — Action before the Civil Service Tribunal — Application of the procedure for judgment by default — Obligation for the Civil Service Tribunal to deliver judgment by default — None (Rules of Procedure of the Civil Service Tribunal, Art. 116(1)) Actions brought by officials — Pleas in law — Action directed against an administrative decision — Plea alleging use of the wrong legal basis not affecting the administration’s substantive assessment — Invalid plea in law (Staff Regulations, Arts 90 and 91) Appeals — Pleas in law — Plea against a ground of the judgment not necessary to support the operative part — Invalid plea in law Officials — Recruitment — Competitions — Selection board — Independence — Limits — Adoption of unlawful decisions — Obligation of the appointing authority — Refusal to recruit a candidate who does not satisfy the minimum conditions for taking part in a selection procedure

It follows from Article 116(1) of the Rules of Procedure of the Civil Service Tribunal that if the Tribunal considers that it has sufficient information to deliver a judgment by default, there being no doubt that the application is admissible and the appropriate formalities having been complied with, it must determine whether the applicant’s claims are well founded and deliver its judgment, without, however, being obliged to grant those claims. (see para. 21) See: Order of 11 September 2014 in Think Schuhwerk v OHIM, C-521/13 P, ECR, EU:C:2014:2222, para. 22 The annulment of an administrative decision because the wrong legal basis was used is not justified where that error had no decisive effect on the assessment made by the administration, so that a plea in law alleging selection of the wrong legal basis must be rejected in so far as it is purely formal in scope. (see para. 26) See: Judgment of 16 July 1998 in Jensen v Commission, T-156/96, ECR-SC, EU:T:1998:174, para. 33 and the case-law cited therein An error of law made by the court at first instance does not invalidate its judgment if the operative part thereof appears founded on other legal grounds. In such a substitution of grounds, the appeal court may take into consideration the facts, as established by the court at first instance. (see para. 33) See: Judgments of 10 December 2002 in Commission v Camar and Tico, C-312/00 P, ECR, EU:C:2002:736, para. 57 and the case-law cited therein, and 30 September 2003 in Biret International v Council, C-93/02 P, ECR, EU:C:2003:517, paras 60 to 66 and the case-law cited therein Judgment of 12 July 2011 in Commission v Q, T-80/09 P, ECR, EU:T:2011:347, para. 98 The appointing authority is required, in the exercise of its own powers, to take decisions which are free of illegalities. It cannot therefore be bound by decisions of selection boards the unlawfulness of which would be liable as a consequence to vitiate its own decisions. Accordingly, where the selection board wrongly allows a candidate to take part in a competition and subsequently places him on the list of suitable candidates, the appointing authority must express its refusal to appoint that candidate by way of a reasoned decision from which the Union judicature can judge whether the refusal is well-founded. (see para. 38) See: Judgment of 23 October 1986 in Schwiering v Court of Auditors, 142/85, ECR, EU:C:1986:405, paras 19 and 20 Judgment of 4 July 2006 in Tzirani v Commission, T-45/04, ECR-SC, EU:T:2006:185, para. 46 and the case-law cited therein

JUDGMENT OF THE GENERAL COURT (Appeal Chamber)

9 June 2015

Victor Navarro

v

European Commission

‛Appeal — Civil service — Members of the contract staff — Recruitment — Call for expressions of interest — Minimum qualifications required — Refusal to offer employment — Infringement of Article 116(2) of the Rules of Procedure of the Civil Service Tribunal — Error of law — Distortion of the facts’

Appeal:

against the judgment of the European Union Civil Service Tribunal (Third Chamber) of 21 May 2014 in Navarro v Commission (F-46/13, ECR-SC, EU:F:2014:104) and seeking to have that judgment set aside.

Held:

The appeal is dismissed. Mr Victor Navarro is ordered to pay the costs.

Summary

Judicial proceedings — Action before the Civil Service Tribunal — Application of the procedure for judgment by default — Obligation for the Civil Service Tribunal to deliver judgment by default — None (Rules of Procedure of the Civil Service Tribunal, Art. 116(1)) Actions brought by officials — Pleas in law — Action directed against an administrative decision — Plea alleging use of the wrong legal basis not affecting the administration’s substantive assessment — Invalid plea in law (Staff Regulations, Arts 90 and 91) Appeals — Pleas in law — Plea against a ground of the judgment not necessary to support the operative part — Invalid plea in law Officials — Recruitment — Competitions — Selection board — Independence — Limits — Adoption of unlawful decisions — Obligation of the appointing authority — Refusal to recruit a candidate who does not satisfy the minimum conditions for taking part in a selection procedure