ORDER OF THE CIVIL SERVICE TRIBUNAL

(First Chamber)

25 May 2011





Case F-74/07 RENV

Stefan Meierhofer

v

European Commission

(Civil service — Recruitment — Open competition — Failure of a candidate in the oral test — Obligation to state the reasons on which the decision is based — Rules governing the selection board’s proceedings)

Application: brought under Articles 236 EC and 152 EA, in which Mr Meierhofer seeks in essence, firstly, annulment of the decision of 10 May 2007 of the selection board in competition EPSO/AD/26/05 informing him of his failure in the oral test in that competition, and of the decision of 19 June 2007 not granting his request for review submitted against the decision of 10 May 2007, and, secondly, a re-evaluation of that test and his inclusion on the reserve list.

Held: There is no longer any need to adjudicate on the applicant’s application in so far as it contests the inadequacy of the statement of reasons for the decision of 19 June 2007. The remainder of the application is dismissed, in part as manifestly unfounded and in part as manifestly inadmissible. The European Commission is to pay two thirds of the costs incurred by the applicant in the first proceedings before the Tribunal and its own costs relating to the same proceedings before the Tribunal, the proceedings before the General Court of the European Union and the present proceedings. The applicant is to pay one third of his own costs relating to the first proceedings before the Tribunal as well as all his own costs relating to the proceedings before the General Court of the European Union and the present proceedings.

Summary

1. Officials — Actions — Time-limits — Reopening — Condition — New fact — Judgment finding infringement of the Staff Regulations by an administrative decision of general application — No new fact in respect of persons who have not made use of remedies available to them

(Staff Regulations, Arts 90 and 91)

2. Officials — Competitions — Decision not to include on the list of suitable candidates — Obligation to state the reasons on which the decision is based — Inadequate statement of reasons — Regularisation during the procedure before the court — Conditions

(Staff Regulations, Art. 25, second para.; Annex III, Art. 6)

3. Officials — Competitions — Selection board — Composition — Members’ qualification to assess oral tests objectively

(Staff Regulations, Annex III, Art. 3)

4. Officials — Competitions — Consideration of candidatures — Selection board's discretion — Judicial review — Limits

1. The legal effects of a judgment annulling a measure of an institution concern only the parties in the proceedings and those directly affected by the annulled measure. It is only in respect of those persons that a judgment may constitute a new fact and re-open the time-limits for appeal against that measure. It is also settled case-law that the finding, by a judgment of a Union court, that an administrative decision of general application infringes the Staff Regulations cannot constitute, in respect of persons who have failed to make use in good time of the possible remedies offered by the Staff Regulations, a new fact warranting the submission of a request for reconsideration of individual decisions concerning them. Such a judgment does not annul the administrative decision of general application in question, but merely declares inapplicable some of its provisions in a specific case. Those principles may apply similarly, if a new plea is submitted out of time in the course of the proceedings, where a judgment annuls only the decisions not to include the applicants’ names on the reserve list in a competition without annulling the competition itself.

(see paras 39-41)

See:

14 December 1965, 52/64 Pfloeschner v Commission; 8 March 1988, 125/87 Brown v Court of Justice, para. 13; 14 June 1988, 161/87 Muysers and Tülp v Court of Auditors, para. 10

11 July 1997, T-16/97 Chauvin v Commission, paras 39 to 45; 9 February 2000, T-165/97 Gómez de la Cruz Talegón v Commission, para. 51

11 June 2009, F-81/08 Ketselidou v Commission, paras 46 and 47

2. In the case of proceedings brought by a candidate in a competition based on qualifications and tests who has failed the oral test and not been included on the reserve list, the Commission satisfies its obligation to state the reasons for its decision where it has already given the initial elements of a statement of reasons before the action was brought and where it has produced, in the course of the proceedings, the intermediate marks obtained by the applicant in the oral test, which constitute the additional information required.

(see para. 47)

3. In order to be constituted in accordance with the provisions of the Staff Regulations and in particular of Article 3 of Annex III thereto, a selection board must be composed in such a way as to guarantee an objective assessment of the performance of candidates in the tests in relation to their professional qualities. The knowledge that members of a selection board must have of the language in which candidates are required to sit an oral test varies according to the circumstances of each competition, the importance of having a thorough knowledge of that language in the post to be filled, and the purpose of the oral test concerned. With regard to an open competition held in order to recruit administrators in the field of European public administration, for example, where the purpose of the oral test is not to examine the candidate’s linguistic knowledge in his main language, but rather to examine his ability to communicate in that language in a multicultural environment, at the oral test the selection board need not necessarily include a member or assessor with the same main language as the candidates, since interpreters may perfectly well be used to overcome any problems of comprehension.

Furthermore, the assertion that the chairman of the selection board did not know the candidate’s main language and that he did not use headphones during the oral test is not in itself sufficient to consider the composition of the selection board unlawful, if the applicant does not prove that the selection board was not in a position, for linguistic reasons, objectively to assess his professional qualities. Moreover, the fact that the chairman of the selection board did not know that language, even if proved, did not place the applicant at a disadvantage compared with the other candidates, who, like him, had chosen that language and were therefore in the same situation faced with the supposed lack of knowledge of the language in question.

(see paras 51, 52, 54-57)

See:

22 June 1990, T-32/89 and T-39/89 Marcopoulos v Court of Justice, para. 37; 27 June 1991, T-156/89 Valverde Mordt v Court of Justice, para. 105; 20 May 2003, T-80/01 Diehl Leistner v Commission, paras 28 to 31

4. Where it is required to review the legality of a decision refusing to include a candidate on a reserve list, the Civil Service Tribunal verifies whether the relevant rules of law have been observed, that is to say, the rules, in particular the procedural rules, laid down in the Staff Regulations and the notice of competition and those governing the proceedings of the selection board, in particular the selection board’s duty of impartiality and its observance of the principle of equal treatment of candidates, as well as the absence of any misuse of powers. The Tribunal also verifies whether the content of a test goes beyond the limits laid down in the competition notice or is not consonant with the purposes of that test in the competition. In some circumstances where the selection board has no discretion, the Tribunal’s review may also cover the accuracy of the facts on which the selection board based its decision. However, a selection board’s assessment of candidates’ knowledge and ability is not open to review by the courts. Moreover, the oral tests are those for which the selection board has the widest discretion. The same does not apply regarding a review of consistency between the mark awarded and the selection board’s written assessments. Such consistency, which furnishes a guarantee of equal treatment of candidates, is one of the rules governing the proceedings of the selection board, such that compliance with it must be verified as part of judicial review. Consistency between the mark awarded to the candidate and the selection board’s written assessment may form part of the Tribunal’s review of the selection board’s assessment of the candidate’s performance.

(see paras 62-64)

See:

9 October 1974, 112/73, 144/73 and 145/73 Campogrande and Others v Commission, paras 34 to 53; 8 March 1988, 64/86, 71/86 to 73/86 and 78/86 Sergio and Others v Commission, para. 22;

21 May 1996, T-153/95 Kaps v Court of Justice, para. 37; 11 February 1999, T-200/97 Jiménez v OHIM, paras 43 to 57; 23 January 2003, T-53/00 Angioli v Commission, paras 91, 93 and 94; 5 March 2003, T-24/01 Staelen v Parliament, paras 47 to 52; 26 January 2005, T-267/03 Roccato v Commission, para. 42; 12 March 2008, T-100/04 Giannini v Commission, paras 277 and 278;

11 September 2008, F-127/07 Coto Moreno v Commission, para. 33; 5 May 2010, F-48/09 Schopphoven v Commission, para. 26